CPR3701 Criminal Procedure Handbook.pdf

Contents Preface Part I: Selected General Principles of the Law of Criminal Procedure Chapter 1 A basic introduction to criminal procedure SE van der Merwe Chapter 2 The criminal courts of the Republic JP Swanepoel Chapter 3 The prosecution of crime SE van der Merwe Chapter 4 The right to legal assistance GP Kemp Chapter 5 The accused: his or her presence as a party GP Kemp Part II: The Criminal Process Phase One Pre-Trial Criminal Procedure Chapter 6 The exercise of powers and the vindication of individual rights GP Kemp Chapter 7 Securing the attendance of the accused at the trial M Basdeo, T Geldenhuys, MG Karels Chapter 8 Interrogation, interception and establishing the bodily features of persons M Basdeo, T Geldenhuys, MG Karels Chapter 9 Search and seizure M Basdeo, T Geldenhuys, MG Karels Page viii Chapter 10 Bail and other forms of release SE van der Merwe Chapter 11 Pre-trial examinations M Basdeo, T Geldenhuys, MG Karels Phase Two The Trial Chapter 12 Indictments and charge sheets M Basdeo, MG Karels, JP Swanepoel Contents Page 1 of 2 CPR3701 Criminal Procedure H Chapter 13 The trial courts M Basdeo, MG Karels, JP Swanepoel Chapter 14 Arraignment and plea of an accused JP Swanepoel Chapter 15 Miscellaneous matters relating to the trial JP Swanepoel Chapter 16 Joinder and separation of trials SE van der Merwe Chapter 17 Trial principles and the course of the criminal trial SE van der Merwe Chapter 18 The verdict SE van der Merwe Phase Three The Sentence Chapter 19 The sentence SS Terblanche Phase Four Post Verdict and Post-Sentence Remedies Chapter 20 Review JP Swanepoel Contents Page 2 of 2 Page ix Chapter 21 Appeal JP Swanepoel Chapter 22 Clemency and related powers JP Swanepoel Appendices Schedules to the Criminal Procedure Act Selected sections of the Constitution of the Republic of South Africa References References to the Criminal Procedure Act References to the Child Justice Act References to the Constitution of the Republic of South Africa 1996 References to the Superior Courts Act Table of cases Subject Index Contents Page 1 of 1 08-Aug-18 Page 1 Part I: Selected General Principles of the Law of Criminal Procedure Chapter 1 A basic introduction to criminal procedure Chapter 2 The criminal courts of the Republic Chapter 3 The prosecution of crime Chapter 4 The right to legal assistance Chapter 5 The accused: his or her presence as a party PartI Page 1 of 1 08-Aug-18 1 1.1 1.2 1.2.1 1.2.2 1.3 2 2.1 2.2 2.3 2.4 2.5 2.5.1 2.5.2 3 3.1 3.2 3.3 3.4 3.4.1 3.4.2 3.4.3 3.5 4 5 5.1 5.2 5.3 5.3.1 5.3.2 5.4 6 6.1 6.2 6.3 6.4 Page 3 Chapter 1 A basic introduction to criminal procedure SE van der Merwe Introduction Criminal procedure: the distinction between substantive and adjectival law Criminal procedure Scope and content Criminal procedure as component of the criminal justice system The double functional nature of some rules Crime control and due process The need to balance values The internal tensions Due process (legality, the rule of law) and the need to limit state power Models based on conceptions of victims’ rights The position of the victim in the criminal process Victim participation Victim protection Constitutional criminal procedure Introductory remarks A survey of the contents of the Bill of Rights Section 35 of the Constitution The presumption of innocence The presumption of innocence and legal guilt The presumption of innocence as a statement of the prosecution’s burden of proof The presumption of innocence and the nature of the alleged crime Page 4 The right to silence (including the privilege against self-incrimination) Accusatorial and inquisitorial procedures and a brief history of South African criminal procedure Sources of South African criminal procedure Constitutional provisions The Criminal Procedure Act 51 of 1977 (‘the Act’) Legislation other than the Act The Child Justice Act 75 of 2008 Various other statutes Common-law rules and case law Remedies The writ of habeas corpus (or rather the interdictum de libero homine exhibendo) A civil action for damages The interdict Mandamus Chap01 Page 1 of 24 08-Aug-18 6.5 6.6 6.7 7 The exclusionary rule Informal remedies Constitutional mechanisms Remarks in conclusion The Constitution and this chapter: Section—Supremacy of Constitution This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. See 3.1, below Section 7—Rights 7(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. 7(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. See 3.2, below Section 8—Application of Bill of Rights 8(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. See 3.1, below Page 5 8(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. See 3.1 and 3.2, below Section 35—Arrested, detained and accused persons see the Appendix ‘Selected sections, Constitution . . .’ See 3.3, 3.5, 5.2 and 6, below—and passim in this book. Section 36—Limitation of rights see the Appendix ‘Selected sections, Constitution . . .’ See 3.2, below Section 37—States of emergency see the Appendix ‘Selected sections, Constitution . . .’ See 3.2, below Section 38—Enforcement of rights see the Appendix ‘Selected sections, Constitution . . .’ See 3.2, below Section 39—Interpretation of Bill of Rights see the Appendix ‘Selected sections, Constitution . . .’ Chap01 Page 2 of 24 08-Aug-18 (a) (i) (a) The Child Justice Act 75 of 2008 and this chapter: Section 52(2)(a)—Consideration for diversion (2) A prosecutor may, in the case of an offence referred to in Schedule 1, if the matter has not already been diverted in accordance with Chapter 6, or in the case of an offence referred to in Schedule 2, after he or she has— . . . considered the views of the victim or any person who has a direct interest in the affairs of the victim, whether or not the matter should be diverted, unless it is not reasonably possible to do so; and See 2.5.1 below Section 52(3)(b)(i)—Consideration for diversion (3) (a) The Director of Public Prosecutions having jurisdiction may, in the case of an offence referred to in Schedule 3, in writing, indicate that the matter be diverted if exceptional circumstances exist, as determined by the National Director of Public Prosecutions in directives issued in terms of section 97(4)(a)(iii). (b) A Director of Public Prosecutions may only indicate that a matter may be diverted in terms of paragraph (a) after he or she has— Page 6 afforded the victim or any person who has a direct interest in the affairs of the victim, where it is reasonable to do so an opportunity to express a view on whether or not the matter should be diverted, and if so, on the nature and content of the diversion option being considered and the possibility of including in the diversion option, a condition relating to compensation or the rendering of a specific benefit or service and has considered the views expressed; and See 2.5.1 below Section 7—Impact of offence on victim (1) For purposes of this section, a victim impact statement means a sworn statement by the victim or someone authorised by the victim to make a statement on behalf of the victim which reflects the physical, psychological, social, financial or any other consequences of the offence for the victim. (2) The prosecutor may, when adducing evidence or addressing the court on sentence, consider the interests of a victim of the offence and the impact of the crime on the victim, and, where practicable, furnish the child justice court with a victim impact statement provided for in subsection (1). (3) If the contents of a victim impact statement are not disputed, a victim impact statement is admissible as evidence on its production. See 2.5.1 below Section 43(1)(a)—Nature and objectives of preliminary inquiry (1) A preliminary inquiry— is an informal pre-trial procedure which is inquisitorial in nature; See 4 below See also 5.3.1 below 1 Introduction This chapter deals with various preliminary topics, issues, perspectives and approaches. It serves as a basic backdrop to the rest of the book and does not provide a complete overview of the study of criminal procedure. It is an ‘introduction’. Chap01 Page 3 of 24 08-Aug-18 Crime is a reality of life, especially in South Africa; and every country needs rules, principles, mechanisms and state structures to prevent, detect, cope with and control criminal behaviour. Criminal procedural rules play a pivotal role in this regard. According to Aranella ‘Rethinking the Functions of Criminal Procedure: the Warren and Burger Courts’ Competing Ideologies’ 1983 72 The Georgetown Law Journal 185 188, the three main purposes served by criminal procedure are as follows: First, criminal procedure must provide a process that vindicates substantive criminal law goals. [P] rocedural mechanism[s] must determine substantive guilt reliably, authoritatively, and in a manner that promotes the criminal law’s sentencing objectives. Second, criminal procedure must provide a dispute resolution mechanism that allocates scarce resources efficiently and that distributes power amongst state officials. Finally, criminal procedure can perform a legitimation function by resolving state-citizen disputes in a manner that commands the community’s respect for the fairness of its processes as well as Page 7 the reliability of its outcomes. Criminal procedure can serve this function by articulating fair process norms that attempt to validate the state’s exercise of coercive power over its citizens. Of course, all of the above—the state’s duty to enforce criminal law, the allocation of power to state officials, the articulation of fair process norms—are subject to the supremacy of the Constitution of the Republic of South Africa, 1996 (hereafter ‘the Constitution’). See para 3 below. The Bill of Rights (ie, Chapter 2 of the Constitution) is of fundamental importance in this regard. See para 3.2 below. Constitutional provisions (and especially those contained in the Bill of Rights) form a dominant source of criminal procedure. See para 5.1 below. 1.1 Criminal procedure: the distinction between substantive and adjectival law It is customary to distinguish between substantive and adjectival (formal) law. Substantive law comprises legal rules determining the rights and duties of individuals and the state; and both private law and public law are part of substantive law. Substantive criminal law, for instance, determines the prerequisites for criminal liability (like unlawfulness, fault) and prescribes the elements of various specific crimes (like theft, fraud or murder). It also attaches a sanction to breach of its prohibitions. But the mere threat of criminal sanctions would serve little purpose. Measures are necessary to enforce the rules of substantive criminal law. These measures are provided by adjectival law. Adjectival law puts substantive criminal law into action. The rules of criminal procedure form that part of adjectival law which assists in making substantive criminal law dynamic. The law of evidence—which is also a part of adjectival law—operates in tandem with criminal procedural rules in ensuring that criminal law is not static. It must be appreciated that criminal procedural rules—although identifiable as adjectival law—do not, may not and cannot operate in isolation from common-law and constitutional rights such as the right to life, human dignity, privacy, bodily integrity, etc. 1.2 Criminal procedure 1.2.1 Scope and content Criminal procedure regulates, inter alia, the duties and powers of the criminal courts and prosecutorial authority; the duties and powers of the police, especially in the course of the investigation of a crime; the rights of suspects and arrested and accused persons; pre-trial procedural matters; bail, charge sheets (in the lower courts) and indictments (in the superior courts); pleading; the course of the criminal trial, and especially the trial rights and duties of the prosecution (the State) and the defence; verdict; sentencing; post-trial remedies (such as appeal or review) and executive action (eg mercy, indemnification and free pardon). All these aspects are dealt with in the rest of this book. Criminal procedure must also accommodate and protect the rights and interests of victims. See paras 2.4 to 2.5.2 below.