CPR 3701 ASSIGNMENT 1

Question 1 (a) The following classes of persons qualify for locus standi on a private prosecution under certificate nolle prosequi, in terms of Section 7 of the Criminal Procedure Act 51 of 19771 : Sec 7(1) (a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence; 2 (b) a husband, if the said offence was committed in respect of his wife; 3 (c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; 4 or (d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward5 . (b) Yes, in terms of Sec 7(1)(c) of the CPA, Belligerent Ben, indeed qualifies to preside over a private prosecution under certificate nolle prosequi. (c) In terms of Section 7 of the Criminal Procedure Act, a private person may prosecute another person privately should the Director of Public Prosecutions (DPP) decide not to prosecute an accused person who has been formally charged with a criminal offence by a complainant. Should such a decision be taken, a nolle prosequi certificate will be issued by the DPP. A certificate nolle prosequi, is a certificate signed by a DPP, in which he confirms, first, that he has examined the statements of affidavits on which the charge is based and secondly that he declines to prosecute at the instance of the state.6 1 Section 7 – Criminal Procedure Act 51 of 1977 (herewith referred to the CPA). 2 Ibid 7(1)(a). 3 Ibid7(1)(b). 4 Ibid 7(1)(c) 5 Ibid 7(1)(d) 6 Ibid 7(2)(a). At the request of the person intending to prosecute, the DPP must grant the certificate nolle prosequi in every case in which he has declined to prosecute. The DPP may refuse to issue the certificate where the applicant is a juristic person and not a private person as required by Sec7(1)(a) CPA.7 If an accused can show at the trial that the certificate does not relate to the charges against him by the private prosecutor, he is entitled to a discharge, as it was held in Solomon v Magistrate, Pretoria that a DPP cannot be required to particularise or identify the charges on which he declines to prosecute. The nolle prosequi certificate is valid for a period of three months, which means that any person considering a private prosecution must take the necessary legal steps within three months from the date of issue of the nolle prosequi certificate being issued.8 (d) Before the commencement of any process undertaken by the private prosecutor, he is required to deposit the sum of two thousand five hundred rand with the magistrate’s court in whose area of jurisdiction the offense was committed.9 This amount serves as security that the private prosecutor will follow through with the prosecution until the end. The court may also as an alternative to a further deposit, direct that the private prosecutor enters a recognizance with or without sureties, in such additional amount as the court may determine.10 These costs are concerned only with the actual costs that an accused will probably incur personally in conducting his defence. 11 7 Criminal Procedure Handbook – 12th Edition – 89. 8 Sec 7(2) (c) CPA. 9 Ibid 9(1) CPA. 10 Ibid 9(2)(b) CPA. 11 Williams v Janse van Rensburg (1) 1989 (4) SA 485 (C ). Question 2 (a) A shooting incident in Lady Frere one night in February 1999, where a father and son shot a burglar at their bakery, fatally wounding the burglar who was fleeing, resulting in a murder charge. The defence raised the exculpatory provisions of section 49(2) of the CPA. The prosecution disputed both the factual and legal foundations of this defence. The presiding judge found the section inconsistent with the Constitution and invalid, to the extent that it legally sanctions the use of force to prevent the suspec