Summary CPR3701 Notes. Complete And Verified. Must Read.

1. INDICTMENTS AND CHARGE SHEETS

Section 32 of the Constitution - Access to information

(1) Everyone has the right of access to –

(a) any information held by the state; and

(b) any information that is held by another person and that is required for the exercise or
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protection of any rights. Section 35 of the Constitution – Arrested, detained and accused persons

(3) Every accused person has a right to a fair trial, which includes the right –

(a) to be informed of the charge with sufficient detail to answer it;



1.1. Lodgement and service of indictments and charge sheets High Court:
- Indictment Lower Courts: Charge sheets Accused is entitled to have access to documents
in the police file (Shabalala v Attorney-General), unless such disclosure may prejudice the
police investigation or prosecution of the crime.

-He further has the right to be informed of the charge with sufficient detail to answer it.

- The legislature has, however, endeavoured to avoid criminal trials being rendered abortive
merely because of insignificant mistakes made by the persons who draw up indictments or
charge sheets.

-Golden rule: An indictment or charge sheet should inform the accused in clear and
unmistakable language of the charge he has to meet – Pillay. Section 76 of the CPA - Charge-
sheet and proof of record of criminal case

(1) Unless an accused has been summoned to appear before the court, the proceedings at a
summary trial in a lower court shall be commenced by lodging a charge-sheet with the clerk
of the court, and, in the case of a superior court, by serving an indictment referred to in
section 144 on the accused and the lodging thereof with the registrar of the court
concerned.
In superior courts The DPP must lodge an indictment with the Registrar of the High Court
after deciding to indict an accused, which is presented in the name of the DPP wherein he
informs the court that the accused is guilty of the crime alleged therein. Such an indictment
must contain:
(i) the charge against the accused;

(ii) the date and place at which the crime was allegedly committed;

(ii) certain personal particulars of the accused;

(iv) where no preparatory exam has been held, a summary1 of the facts of the case must
be attached to the indictment (this need not be given where it will be prejudicial to the
administration of justice or the security of the state);

(v) a list of witnesses and their addresses that may be called by the state (this may be
withheld if the DPP believes the witnesses may be tampered with or intimidated). The

, indictment must be served on the accused by the sheriff at least 10 days before the date of
the trial, unless the accused agrees to a shorter period.

In the lower courts Unlike the indictment, this is presented in court where he may
examine it and is not served on the accused.

- The accused is brought to court on written notice, by summons or under arrest.

- If a summons is served on him, it must be served at least 14 court days before the date of
the trial. If this is insufficient time for him to prepare his defence, the court may grant a
postponement.

-In Singh v Blomerus it was held that short service to which no objection had been made at
the trial could not be relies on before the appeal court.

1 The State is not bound by the summary of facts and can lead evidence which contradicts
it.

- Form and substance of charges and indictments Charge sheets should be kept as simple as
possible and should reflect all the elements of the offence or, put differently, the charge
sheet should disclose an offence.

- Section 84 of the CPA - Essentials of charge (1) Subject to the provisions of this Act and of
any other law relating to any particular offence, a charge shall set forth the relevant offence
in such manner and with such particulars as to the time and place at which the offence is
alleged to have been committed and the person, if any, against whom and the property, if
any, in respect of which the offence is alleged to have been committed, as may be
reasonably sufficient to inform the accused of the nature of the charge. {Specifically
required}

-Drafters of indictments should not slavishly follow the wording of a statute, but should
confine the charge to what is relevant (Mangqu) and, in terms of Section 84(3) of the CPA,
the description of a statutory offence will be sufficient if the words of the enactment or
similar words are used.

- If time isn’t an essential element of the crime, failure to refer to it won’t render the charge
defective

- Section 92(1). If the time is mentioned but it is proved that the act was committed on any
day or time not more than 3 months before or after the day alleged, such proof will be
taken to support such allegation, provided the time is not of the essence of the offence -
Section 92(2).

-If the accused raises an alibi as a defence (i.e. at the time he was elsewhere) and the court believes
that the accused will be prejudiced in making such defence if proof were to be admitted that the
offence were committed on some other day or time (even though the time to be proved is within the
3 month period, such proof must be rejected.

-Place may also be important as some crimes can only be committed in certain places2 and the
charge will be defective if it does not allege that the offence was committed in such a place.

-Where mental attitude3 is an essential element of a crime, it should be averred or else the charge
will not disclose an offence.

, Golden rule: Incriminating factors (necessary averments) must be proved by the prosecution and
reflect on the charge sheet; exculpatory factors (exceptions) need not be mentioned and must be
proved by the accused

- If unnecessary averments have been included, it may be amended unless refused by the court. Such
unnecessary averment will not affect the validity of the proceedings unless it embarrasses the
accused in his defence.

- If the accused believes the particulars in the indictment are inadequate to inform him properly of
the charge, he can request further particulars from the State.

- In addition, he can request further particulars even if the charge sheet is not inadequate in order to
enable him to prepare his defence.

- Reluctantly, the High Court will intervene in pending proceedings in the Magistrate’s Court by
granting a mandamus to direct the Magistrate to order the prosecutor to deliver further particulars
only if it is necessary to prevent a grave injustice.

-Such further particulars may be delivered to the accused free of charge at any time before evidence
is led.

- The function of particulars is to define the issues and not enlarge them.

-When the accused fails to apply for further particulars, he may not set up the inadequate narration
of particulars on appeal.

- Where the request for further particulars was refused and it is shown on appeal that such refusal
prejudiced the accused, the court will set aside the accused’s conviction.

-Where particulars are given, the state must prove the charge as particularised and where a
conviction is based on evidence not covered by the particulars, the conviction may be set aside on
review.



1.3. Defect in indictment or charge cured by evidence



- Before 1959 the courts consistently required indictments to disclose an offence and if a material
element of the crime was omitted, the accused could not be found guilty, even if the evidence at the
trial proved the omitted element.

-Section 88 of the CPA - Defect in charge cured by evidence Where a charge is defective for the want
of an averment which is an essential ingredient of the relevant offence, the defect shall, unless
brought to the notice of the court before judgement, be cured by evidence at the trial proving the
matter which should have been averred.

-This means that the accused can now be found guilty even though the indictment does not disclose
an offence as long as the evidence proves the offence.

-This alleviates the burden of prosecutors, but is open to criticism:

At the very least, the offence with which the accused is charged should be named (e.g. use the word
“theft” in the indictment on a charge of theft). 2

, Example: Reckless and negligent driving can only be committed on a public road 3 I.e. Intentionally,
knowingly, maliciously or negligently

The prosecutor should exercise caution by framing the charge in such terms that it does disclose an
offence, otherwise the accused can raise an exception against it before pleading.

If the accused brings the defect to the court’s attention before judgment and it refuses to amend
the charge, the accused can rely on this on appeal to have his conviction set aside.

A defect can only be cured by evidence proper, not by the invocation of statutory provisions and
presumptions.

-The replies of an accused who has pleaded guilty to questioning may be treated as evidence capable
of curing a defect in the charge.

Section 88 doesn’t authorise replacement of one offence by another offence proved by evidence
(eg. ‘meat’ for ‘jersey’ in a theft charge)



1.4. Correction of errors in charge



- Section 86 allows for the amendment of charge sheets that are defective where:

a material allegation, such as an element of the offence in question, isn’t reflected therein;

there is a material difference between the allegation in the charge sheet and the evidence that has
been led;

where words have been omitted, unnecessarily inserted or any other error is made.

- Before 1959 it was generally accepted that a charge could only be amended where it disclosed an
offence.

- In 1959 the Supreme Court of Appeal in Crause held, however, that a trial court could correct the
indictment even though it did not disclose an offence.

-This was confirmed by an express provision in the 1959 CPA.

The following points regarding amendment should be noted:

Court may order an amendment only if it considers that the making of the amendment will not
prejudice the accused in his defence.

-There won’t be prejudice if there is only a slight variance or where it is clear that the defence would
have remained exactly the same had the state originally presented the charge in the amended form.

Section 86 makes provision for the amendment of the charge and not replacement thereof by an
altogether new charge.

- If the proposed amendment doesn’t correspond at all to the original charge, then we talk of
substitution and not amendment.