CPR3701 PORTFOLIO MEMO - SEMESTER 2 - 2022 -OCT./NOV. - UNISA (DETAILED MEMO)

SECTION 1 1.1 X and Y are charged with the offence of high treason. The allegations by the prosecution are that the two accused ‘sold information crucial to the security of the Republic to an agent representing the country of Zamunda’ before escaping to Silo, a country in the East African region. 1.1.1 The National Director of Public Prosecutions (NDPP) Nono Dodo, is of the firm view that the charges against the accused should, when they are arrested, be tried in the regional court ‘due to the nature and seriousness of the offence’. Briefly confirm the correctness or otherwise of this decision. (2) 1.1.2 Name the process to be used or applied by the NDPP to bring X and Y from Silo to the Republic of South Africa to stand trial. (1) 1.1.3 Captain C is tasked with investigating the charges against X and Y. After their arrest, he sets out to ask questions to X and Y regarding what they know about said offence. Name the process used by C to ask questions. (1) 1.1.4 During the questioning process referred to in 1.1.3 above, both X and Y refuse to answer any questions, arguing that “Constitutionally, C does not have the authority question them if they do not feel like answering”. Briefly confirm the correctness or otherwise of this assertion. (2) 1.1.5 The Director of Public Prosecutions (DPP), Dippy Pee, declines to prosecute the accused. She thereupon completes and signs a document in which she confirms, first, that she has examined the statements or affidavits on which the charge is based and, secondly, that she declines to prosecute at the instance of the state. Name said document. (1) 1.2 A and B allegedly commit the offence of rape. After arrest, they decide to bring a bail application before the regional court. 1.2.1 Identify the party who bears the burden (onus) of proof in such proceedings; (1) 1.2.2 Briefly elaborate on the threshold (not the standard of proof! In other words, what the applicant needs to prove to the court to be released on bail) in respect of the offence set out in 1.2, above. (2) [10] 7 CPR3701 Oct/Nov 2022 IMPORTANT NOTICE All four (4) sections of this paper are compulsory and must be completed on one examination script. [TURN OVER] SECTION 2 2.1 During an altercation with his neighbour, Feisty Belligerent in the year 2000, Ed Crook allegedly ‘slapped the complainant across the face with an open hand’, and also ‘urinated on his lawn’. Feisty subsequently laid charges of assault and malicious damage to property. Feisty did not suffer any physical injuries. 2.1.1 Briefly discuss, in the context of section 18 of the Criminal Procedure Act 51 of 1977 (CPA), whether the right to prosecute Ed has prescribed if he is only arrested in 2022. (5) Hints: i. The answer to the question must be sought from p. 79, par, 4.15 ii. Your answer must only be restricted to (a) The general applicable principle as set out in s 18 of the Criminal Procedure Act 51 of 1977 - in other words, the circumstances under which the prescription of offences in respect of prosecution, applies; and (b) The point whether the offences mentioned in 2.1 above, conform to the legal provision mentioned above. NB: All other information is irrelevant, and will not be credited. 2.2 On the same facts mentioned in 2.1 above, Ed is arrested two days after the commission of the alleged offences. Feisty is adamant that Ed should be ‘prosecuted to the fullest extent of the law’. However, Ed’s attorney, Clever Trevor, makes representations to the prosecutor to withdraw the charges against his client. The request is made after Ed has pleaded ‘not guilty’ to the charges, and Feisty has already testified. Discuss the workability of a withdrawal in the circumstances sketched above. (10) Hints: your answer must; i. First set out the requirements for a withdrawal as set out in chapter 3 of the Handbook; ii. Secondly, discuss whether the matter against Ed can, realistically, be withdrawn, based on the requirements set out in hint (i), above; and iii. Thirdly, provide most plausible legal application or alternative (i.e a possible conclusion) if withdrawal is not the most workable solution. 8 CPR3701 Oct/Nov 2022 [TURN OVER] NB: 2.3 i. ii. 9 CPR3701 Oct/Nov 2022 repeating information from the Handbook without applying the above hints will not be credited with full marks; and including irrelevant information will not be credited. Sergeants Skop Madonoro and Trigger Happy are conducting patrols along the Steelpoort Railway Station one evening when they notice a group of males stripping copper cables from the building of one of the offices. Upon the arrival of the two police officers, the group runs away in different directions, but the two officers manage to arrest one suspect, X, in possession of newly-stripped copper cables. The stealing of copper cables is classified as an ‘essential infrastructure-related offence’. Happy Trigger thereupon informs X that he is ‘under arrest for stealing copper cables’. X is put inside the police van, and the two officers proceed to drive to the police station. 2.3.1 Discuss whether the arrest conforms to the requirements of s 39 of the Criminal Procedure Act 51 of 1977. (10) Hints: i. Only the main principles (as set out on p. 152 – 153 of the Handbook) must be discussed in conjunction with the facts. All other information is irrelevant. ii. Each requirement must be discussed in the context of the facts set out in 2.3, above; and iii. Your answer must make conclusions in respect of each of the principles set out on p. 152 – 153 of the Handbook. 2.3.2 Discuss whether X may be released on police bail after the case was postponed a few after the first appearance. (5) Hints: i. The answer must be sourced from p. 213, par. 2.3 of the Handbook; ii. Your answer must be restricted to (a) the timing during which police bail may be granted; and (b) whether the offence mentioned in the facts above falls within the ambit of release on police bail. NB: All other information in the Handbook is irrelevant, and will not be credited [30] [TURN OVER] SECTION 3 3.1 A works for the Department of Social Welfare as an accounting officer, where she allegedly siphons R3-million into the secret bank accounts of six accomplices. A is charged in the regional court with 50 charges of fraud. After obtaining instructions from A, D, A’s attorney approaches the prosecutor, P, with a ‘plea bargain’ offer, and suggests that the arrangement be concluded ‘in the traditional sense’ of plea bargaining. In terms of this arrangement, A agrees to plead ‘guilty’ to 25 instead of 50 charges, and also insists that the plea bargain agreement must include a formal agreement on sentence. Discuss the workability of the arrangement according to D’s suggestions. (8) Hints: Your answer must be sought from p. 310 – 311, par. 3 of the Handbook, and must also be limited to: i. The main object’ of plea-bargaining as discussed in p. 310 par. 3. Please do not include any other information beyond the ‘main object’ in this paragraph; ii. Whether the facts set out above conform to any of the examples applicable to plea bargains as set out in p. 310, par. 3.1; iii. Whether traditional plea bargain is, indeed, possible as per D’s insistence 3.2 After the first state witness gives evidence-in-chief, the magistrate, M requests the for the witness to be to cross-examined. P who led the evidence-in-chief of the same witness, stands up to start cross-examination. Provide a brief explanation of the process of cross-examination with specific reference to i. the party who can/ must conduct cross-examination ii. the purpose of cross-examination; and iii. whether, in the facts set out above, cross-examination by P is, indeed, possible and/ or permissible. (5) Hint: the information to this question should be sourced from p. 376, par. 2.6.4 of the Handbook 3.3 At the close of the defence case, the magistrate, M, convicts A on multiple charges of fraud, and proceeds to the sentencing phase without giving the reasons for arriving at the verdicts. When called upon by the defence to proffer such reasons, M merely repeats the evidence presented by the prosecution, and insinuates that 10 CPR3701 Oct/Nov 2022 [TURN OVER] 11 CPR3701 Oct/Nov 2022 ‘the accused was found guilty on the basis of proven evidence which is already on record’ without necessarily advancing his own submissions for the conclusions. 3.3.1 Discuss, M conduct, in light of the Supreme Court of Appeal’s judgment in National Director of Public Prosecutions v Naidoo 2011 (1) SACR 336 (SCA), where the court concluded, inter alia, that: “The importance of furnishing reasons for a judgment is a salutary practice... ensuring public confidence in the administration of justice”. (12) Hints: your answer must: i. Be sought from p. 388, par. 3 of the Handbook; ii. not include the judgment cited above; and iii. contain a conclusion regarding the correctness or otherwise of M’s conduct. [25] SECTION 4 4.1 The magistrate, M, convicts the accused, X, of malicious damage to property, and postpones the case for sentencing. M subsequently dies of Covid-19 complications before delivering sentence on the sentencing date. A, X’s attorney, insists on the trial starting de novo (from the beginning), asserting that the proceedings essentially ‘died with M’. Briefly discuss X’s argument, in the context of section 275 of the CPA. (5) Hints: the answer to this question must be sought from chapter 19 of the Handbook. 4.2 After conviction and sentence in the district court, X decides to lodge an appeal on both the conviction and the sentence. A, his attorney, advises X that they need to approach the regional court, which has higher jurisdiction than the district court, to hear their appeal. Briefly discuss the workability of A’s strategy. (5) Hints: the answer must be sought from p. 38 par. 3.1.2 of the Handbook, and must discuss the following aspects, namely, i. jurisdiction in respect of appeal from lower to higher courts; ii. the procedure to be followed before approaching a higher court (in terms of ‘permission’); and iii. your conclusion in respect of A’s strategy. [TURN OVER] 12 CPR3701 Oct/Nov 2022 4.3 After his conviction and sentence, A lodges successive appeals to the courts, ending with the Supreme Court of Appeal (SCA). In the meantime, new evidence has come to light which may exonerate him. 4.3.1 Briefly discuss the executive action, in terms of s 327 of the CPA, which may be taken by the State President after the court has evaluated the accused’s petition, and the (procedural) consequences of the State President’s decision. (5) Hints: the content of the answer must be limited to i. information contained on p. 555, par. 3 of the Handbook; ii. the actions of the State President, and not those of any other functionary; and iii. any other procedural remedies (or lack thereof) which may be applied after the action by the State President. NB: Please include only aspects relevant to the question asked, as contained in p. 555 par. 3 of the Handbook. All other information is irrelevant, and will not be credited. [15] TOTAL: [80]