Law of Criminal Procedure 271 Lecture & textbook notes from 2022
Brief Case Summaries
CHAPTER 1
A Basic introduction to Criminal Procedure
Describe Criminal Procedure?
Machinery in which substantive criminal law is enforced
Criminal law = substantive public law, defines offences
Crim Proc = Adjectival & formal public law
What does Crim proc cover & its scope?
• Duties and powers of prosecutorial authority/NPA
• Duties and powers of the courts
• Duties and powers of police officers
• Rights of arrested people, suspects
• Pre-trial batters, eg. bail & course of the trial
• Role of the victim & victim rights
o Often relegated to just witnesses, merely there to recount what
happened but more protection has been offered to victims & make
victims feel protected by secondary victimisation as law has evolved
Criminal justice system
Criminal Procedure
3 phases of Crim Proc:
• PRE-TRIAL
o Complaint, arrest, investigation, bail (may end here)
• TRIAL
o Court hears case, judgement (guilty/not guilty)
• APPEAL & REVIEW by court of higher instance
Impact of the Constitution is always present in the whole criminal process
Eg. Alleged offender's right to dignity and privacy but state's constitutional
obligation to protect society
Protection of interests & rights of the victim
3 phases of criminal procedure largely focused around the offender & victim
easily forgotten
1.3 Double functionality of CPL
Example - unlawful search of property
• Formal consequences: could lead to exclusion of evidence found during
unlawful search
• Substantive consequences: claim for damages made by the accused
Double functional = Regulates procedure and operates as ground of justification
• Must operate within bounds of procedures otherwise face formal &
substantive consequences
,Law of Criminal Procedure 271 Lecture & textbook notes from 2022
Brief Case Summaries
• GoJ: Official capacity or Public Authority = acting in execution of
their duties by virtue of his office as a public servant. Arrest =
assault. Must act within bounds of GoJ and if not can face substantive
consequences.
• Some rules in Criminal procedure have double functions in that they regulate
procedure and operate as a ground of justification in substantive law.
Para 4.1-5 of VDL Article Obiter
Shashape v The Minister of Police
• Facts: The plaintiff, Ms Shashape, sued the Minister of Police for R100 000 in
damages for an unlawful/warrantless search and seizure and unlawful entry of her
premises without her consent S22(a) of CPA
• Police did not have reasonable grounds to believe that a warrant would have been
granted
• No reasonable grounds to believe that the offence had been committed/prospect of
being committed S11(1)(a)
• Search was not conducted in an orderly way S29 CPA
• Unlawful search = violation of the plaintiff's right to dignity & privacy
• Judge considered applicable legal principles relating to warrantless search &
seizure
o Consent to permit warrantless search = S22(a) of CPA!!
o Search & seizure is an infringement of our constitutionally protected right to
freedom and must be done in a just and reasonable fashion, considering the
particular circumstances
• seizure occurred outside of the framework of section 22 of the CPA & plaintiff
awarded damages = substantive consequences
• Unlawful search involved lasting and intense humiliation and loss of esteem in her
community, which led to the effective destruction of her life’s passion and source of
income.
o Defendant could not provide justification for this warrantless search
• S22(b) of CPA = whether there was a reasonable belief by the officers that they
would have been granted a warrant had they applied for one, and that the delay in
obtaining a warrant would have thwarted the objective of their search.
• Rights and values (privacy, dignity, security of the person, presumption of
innocence) must be weighed against the police’s constitutional duty to investigate
crime and protect the inhabitants of the country
Wrongdoing of unlawful searches invokes the double functionality of the
law of criminal procedure, as police officials faced with a claim for damages
against an unlawful search cannot rely on the execution of their duties as a
ground of justification.
• Tension between crime control & due process (2.1-2.3)
Models of crim procedure
= Crime control model = criminal justice system used to repress and control
criminal conduct
• Does not care about fair trial, accused's rights & how the accused is
arrested is not of much importance
• Main function: punish and seize criminals
,Law of Criminal Procedure 271 Lecture & textbook notes from 2022
Brief Case Summaries
= Due process model = focusses on procedure, treatment of accused
person & procedure being effected properly and with respect to all persons
involved = innocent until proven guilty
• SA makes use of both models
• Both models seek to vindicate the goals of substantive criminal law but is
done by following different routes
• Public perceptions: "Constitution is pro-criminal"
o Allows for criminals to get away with crime
o Historical context: "detention without trial", no due process &
parliamentary sovereignty did not allow for fair trial rights
o But NOW = innocent until proven guilty & large part of BOR & CT is
dedicated to fair trial rights
• More emphasis now placed on Victim's rights (2.4)
o Child Justice Act = restorative justice
• 2.5.1 How are victim's involved in the criminal justice procedure?
o VICTIM PARTICIPATION & how it is advanced
S105(1)(b)(iii) Plea & sentence agreements
CPA = offender pleas guilty and then does not go
through normal trial and usually receives a lesser
punishment
Victim has to be asked about these agreements
before such is entered but opinion is not persuasive
S300 CPA Compensation order
= property related crimes
Service Charter Victim has no absolute right to participate in a
for victims of criminal trial other than where you are required
crimes in SA (usually as a witness)
S179(5)(d)(ii) CT Victims should be consulted in the decision to
prosecute
National Impact statement: victim of sexual offences
Instruction on informed of rights when giving impact statement =
Sexual Offences statement made during sentencing phase and
describe how crime impacted life & usually
advocate for a harsh sentence
S299A CPA & Serious crimes - offender considered for (day)
Correctional parole then victim should be consulted
Services Act
S7 CPA Private prosecution - state declined to prosecute a
case then victim entitled to prosecute offender
privately and take over role of prosecutor
o 2.5.2 WITNESS/VICTIM PROTECTION
S144(3)(a)(ii) CPA Withholding of names - witness' name withheld to
protect from being intimidated
, Law of Criminal Procedure 271 Lecture & textbook notes from 2022
Brief Case Summaries
S153(2) CPA Testify in camera (behind closed doors) to protect
witness from harm
S158(3)( e ) CPA Testify via CCTV or live online - if witness is under
emotional stress
Witness still observable/seen - prosecution pose
question & relayed to witness - NB that witness still
seen? = observe the reliability & credibility of the
witness
S170A CPA o Intermediary between defence and witness
o Below mental/physical age of 18
o Undue mental stress
• = then witness does not have to testify in
person and will use other means
SORMA/Act 32 of Framework for victims of sexual offences in SA,
2007 includes compulsory HIV testing of alleged sex
offender & other means of protection
Witness Protection Witness under threat by person/group of persons
Act & prevention of then apply for protection
organized crime act • Removed from residence for specified or
(POCA) indefinite time
• Usually in SA just for period of ongoing trial
Part 16 of Sets out principles for safety and protection of
Prosecution witnesses
Directives
Factual scenario and then set out how victim/witness can be protected and
participate
• If not a sexual offence then cannot include that piece of legislation
• Witness protection not always necessary if not under any reasonable threat
Constitutional Criminal Procedure
1. Impact of the Constitution, eg. S v Makwanyane & the death penalty
2. Bill of Rights
. Horizontal & vertical application
a. Section 2
b. Section 7 & 8
i. Rights not applicable to juristic persons?
1. Right to life
. Section 36 - Limitation clause
i. Rights can be limited such as right to privacy when you are
searched
ii. Right to freedom limited if imprisoned or denied bail
iii. Right to bodily integrity limited if arrested
a. Section 37 - State of emergency
b. Section 38 - locus standi in constitutional litigation not too important
c. Section 39 - interpretation of BOR
Brief Case Summaries
CHAPTER 1
A Basic introduction to Criminal Procedure
Describe Criminal Procedure?
Machinery in which substantive criminal law is enforced
Criminal law = substantive public law, defines offences
Crim Proc = Adjectival & formal public law
What does Crim proc cover & its scope?
• Duties and powers of prosecutorial authority/NPA
• Duties and powers of the courts
• Duties and powers of police officers
• Rights of arrested people, suspects
• Pre-trial batters, eg. bail & course of the trial
• Role of the victim & victim rights
o Often relegated to just witnesses, merely there to recount what
happened but more protection has been offered to victims & make
victims feel protected by secondary victimisation as law has evolved
Criminal justice system
Criminal Procedure
3 phases of Crim Proc:
• PRE-TRIAL
o Complaint, arrest, investigation, bail (may end here)
• TRIAL
o Court hears case, judgement (guilty/not guilty)
• APPEAL & REVIEW by court of higher instance
Impact of the Constitution is always present in the whole criminal process
Eg. Alleged offender's right to dignity and privacy but state's constitutional
obligation to protect society
Protection of interests & rights of the victim
3 phases of criminal procedure largely focused around the offender & victim
easily forgotten
1.3 Double functionality of CPL
Example - unlawful search of property
• Formal consequences: could lead to exclusion of evidence found during
unlawful search
• Substantive consequences: claim for damages made by the accused
Double functional = Regulates procedure and operates as ground of justification
• Must operate within bounds of procedures otherwise face formal &
substantive consequences
,Law of Criminal Procedure 271 Lecture & textbook notes from 2022
Brief Case Summaries
• GoJ: Official capacity or Public Authority = acting in execution of
their duties by virtue of his office as a public servant. Arrest =
assault. Must act within bounds of GoJ and if not can face substantive
consequences.
• Some rules in Criminal procedure have double functions in that they regulate
procedure and operate as a ground of justification in substantive law.
Para 4.1-5 of VDL Article Obiter
Shashape v The Minister of Police
• Facts: The plaintiff, Ms Shashape, sued the Minister of Police for R100 000 in
damages for an unlawful/warrantless search and seizure and unlawful entry of her
premises without her consent S22(a) of CPA
• Police did not have reasonable grounds to believe that a warrant would have been
granted
• No reasonable grounds to believe that the offence had been committed/prospect of
being committed S11(1)(a)
• Search was not conducted in an orderly way S29 CPA
• Unlawful search = violation of the plaintiff's right to dignity & privacy
• Judge considered applicable legal principles relating to warrantless search &
seizure
o Consent to permit warrantless search = S22(a) of CPA!!
o Search & seizure is an infringement of our constitutionally protected right to
freedom and must be done in a just and reasonable fashion, considering the
particular circumstances
• seizure occurred outside of the framework of section 22 of the CPA & plaintiff
awarded damages = substantive consequences
• Unlawful search involved lasting and intense humiliation and loss of esteem in her
community, which led to the effective destruction of her life’s passion and source of
income.
o Defendant could not provide justification for this warrantless search
• S22(b) of CPA = whether there was a reasonable belief by the officers that they
would have been granted a warrant had they applied for one, and that the delay in
obtaining a warrant would have thwarted the objective of their search.
• Rights and values (privacy, dignity, security of the person, presumption of
innocence) must be weighed against the police’s constitutional duty to investigate
crime and protect the inhabitants of the country
Wrongdoing of unlawful searches invokes the double functionality of the
law of criminal procedure, as police officials faced with a claim for damages
against an unlawful search cannot rely on the execution of their duties as a
ground of justification.
• Tension between crime control & due process (2.1-2.3)
Models of crim procedure
= Crime control model = criminal justice system used to repress and control
criminal conduct
• Does not care about fair trial, accused's rights & how the accused is
arrested is not of much importance
• Main function: punish and seize criminals
,Law of Criminal Procedure 271 Lecture & textbook notes from 2022
Brief Case Summaries
= Due process model = focusses on procedure, treatment of accused
person & procedure being effected properly and with respect to all persons
involved = innocent until proven guilty
• SA makes use of both models
• Both models seek to vindicate the goals of substantive criminal law but is
done by following different routes
• Public perceptions: "Constitution is pro-criminal"
o Allows for criminals to get away with crime
o Historical context: "detention without trial", no due process &
parliamentary sovereignty did not allow for fair trial rights
o But NOW = innocent until proven guilty & large part of BOR & CT is
dedicated to fair trial rights
• More emphasis now placed on Victim's rights (2.4)
o Child Justice Act = restorative justice
• 2.5.1 How are victim's involved in the criminal justice procedure?
o VICTIM PARTICIPATION & how it is advanced
S105(1)(b)(iii) Plea & sentence agreements
CPA = offender pleas guilty and then does not go
through normal trial and usually receives a lesser
punishment
Victim has to be asked about these agreements
before such is entered but opinion is not persuasive
S300 CPA Compensation order
= property related crimes
Service Charter Victim has no absolute right to participate in a
for victims of criminal trial other than where you are required
crimes in SA (usually as a witness)
S179(5)(d)(ii) CT Victims should be consulted in the decision to
prosecute
National Impact statement: victim of sexual offences
Instruction on informed of rights when giving impact statement =
Sexual Offences statement made during sentencing phase and
describe how crime impacted life & usually
advocate for a harsh sentence
S299A CPA & Serious crimes - offender considered for (day)
Correctional parole then victim should be consulted
Services Act
S7 CPA Private prosecution - state declined to prosecute a
case then victim entitled to prosecute offender
privately and take over role of prosecutor
o 2.5.2 WITNESS/VICTIM PROTECTION
S144(3)(a)(ii) CPA Withholding of names - witness' name withheld to
protect from being intimidated
, Law of Criminal Procedure 271 Lecture & textbook notes from 2022
Brief Case Summaries
S153(2) CPA Testify in camera (behind closed doors) to protect
witness from harm
S158(3)( e ) CPA Testify via CCTV or live online - if witness is under
emotional stress
Witness still observable/seen - prosecution pose
question & relayed to witness - NB that witness still
seen? = observe the reliability & credibility of the
witness
S170A CPA o Intermediary between defence and witness
o Below mental/physical age of 18
o Undue mental stress
• = then witness does not have to testify in
person and will use other means
SORMA/Act 32 of Framework for victims of sexual offences in SA,
2007 includes compulsory HIV testing of alleged sex
offender & other means of protection
Witness Protection Witness under threat by person/group of persons
Act & prevention of then apply for protection
organized crime act • Removed from residence for specified or
(POCA) indefinite time
• Usually in SA just for period of ongoing trial
Part 16 of Sets out principles for safety and protection of
Prosecution witnesses
Directives
Factual scenario and then set out how victim/witness can be protected and
participate
• If not a sexual offence then cannot include that piece of legislation
• Witness protection not always necessary if not under any reasonable threat
Constitutional Criminal Procedure
1. Impact of the Constitution, eg. S v Makwanyane & the death penalty
2. Bill of Rights
. Horizontal & vertical application
a. Section 2
b. Section 7 & 8
i. Rights not applicable to juristic persons?
1. Right to life
. Section 36 - Limitation clause
i. Rights can be limited such as right to privacy when you are
searched
ii. Right to freedom limited if imprisoned or denied bail
iii. Right to bodily integrity limited if arrested
a. Section 37 - State of emergency
b. Section 38 - locus standi in constitutional litigation not too important
c. Section 39 - interpretation of BOR
