CRIMINAL COURT PROCESS

SECURING OF ACCUSED
In order to secure the arrest of an accused, it requires that the arrested person
be informed of his reasons for arrest and that physical control has been
executed over the arrested person unless the arrested person submits to the
arrest;

The arrested person must be informed during the arrest or directly afterwards
in a language he/her understands and that he is entitled to consult a legal
representative.

This is done either by:

ARREST BY WARRANT (j50 warrant)

A magistrate or justice of peace issues a warrant on written application of DPP,

public prosecutor or police official.

The application must comply with the following:

1. Must mention the offence which has been committed;

2. Must state reasonable suspicion exists based upon information obtained
under oath that the person in respect of whom the warrant is requested,
has committed the alleged offence;
3. It must be alleged that the offence committed falls within the
jurisdiction of the justice of peace or magistrate.

ARREST WITHOUT WARRANT

Section 40 of CPA regulates the powers of the police officer to take arrested
persons into custody. It is required that the police officer should have
reasonable suspicion to believe a crime is in progress or has been committed.

SUMMONS
In matters where there is no reason to assume that the accused would flee or
interfere with state witnesses, It is better to secure the attendance of the
accused by way of summons.

WRITTEN NOTICE TO APPEAR

If a peace officer on reasonable grounds thinks that a magistrate court will

upon convicting a person of an offence impose a fine not exceeding R 2500, he
may hand the accused a written notice which states the accused’s name,
address, occupation and orders the accused to appear at a specific time, date
and place.

RELEASE ON WARNING

In terms of section 72 of the CPA, if an accused is in custody in respect of an

offence and can be released by a police official or court on bail in terms of
section 59 or 60, the police official can, instead of granting bail, release the
accused in the case of certain offences and warn him to appear on specific
date, time and place.

1. STEP-BY-STEP GUIDE

a) BAIL APPLICATION
BAIL GRANTED BY THE POLICE- Section 59 of the CPA provides
that bail may be granted before the first appearance of the
accused in the lower court if the accused is in custody in respect
of any offence other than an offence referred to in Part II or Part
III of Schedule 2. The bail granted must be made in consultation
with the investigating officer.
This is also known as after-hours bail and brought in respect of
minor offences that fall under Schedule 2 of Part 1 of the CPA, if
you are approached by a family member of the Accused, you
would then have to establish, whether the accused has been
charged, the nature of the offence, where he is being held, name,
age and his time of arrest.
NB: if accused has been held for longer than 48 hours without
being charged, he must be released from custody.
BAIL GRANTED BY THE PROSECUTOR – Section 59A of the CPA
provides that a prosecutor may authorise the release of an
accused, this is normally bail granted in court by the prosecutor
with consultation with the investigating officer and/or DPP and
are often for any listed cases of Schedule 7 crimes.

CONDITIONS FOR GRANTING OF BAIL AND EVIDENCE THAT

SHOULD BE PRODUCED FOR BAIL APPLICATION

Attorney has to make sure that the court takes note of the
following:
- That the accused has a fixed address;
- That the accused has fixed employment and the time period
that he has remained employed;
- The nature of the crime the accused is suspected of
committing;
- The seriousness of the sentence which may be imposed;
- The accused’s ability to travel and settle in foreign country;
- The time period that the accused will spend in custody whilst in
finalization of his case;
- Evidence that he/she will not communicate with the state
witnesses or is not able to communicate with state witnesses;
- The accused financial status and amount of bail that he/she
will be able to pay;

THE COURT WILL CONSIDER BAIL BASED ON THE FOLLOWING

CIRCUMSTANCES IN TERMS OF SECTION 60(4):

- Where there is a likelihood that the accused, if he/she were

released on bail, that it will endanger public safety or that the
individual will commit a Schedule 1 offence;
- Where there is the likelihood that the accused, if he or she
were released on bail would evade trial;
- Where there is a strong possibility that the accused will
intimidate witnesses or tamper with evidence;
 - Where there is a likelihood that the accused, if he or she were
released on bail, will undermine the proper functioning of the
criminal justice system;
- Where there is an exceptional circumstance that there is a
likelihood that the accused will undermine public order.

The court on application by the state set BAIL CONDITIONS IN

TERMS OF SECTION 62 for the release of the accused on bail,
namely:

- That the accused reports to certain persons at certain time and

place;
- That the accused be forbidden to appear in certain locations;
- That the accused be refrained from communicating with
certain individuals eg, state’s witnesses;
- That the accused be placed under a probation officer or
correctional officer.

If bail is refused, the accused has a right to appeal to the High

Court in terms of section 65 CPA.

b) ACCUSEDS FIRST APPEARANCE / POSTPONEMENTS

At the accused’s first appearance, the court would request
information from the accused, if he or she intends obtaining legal
representation or whether he/she will represent themselves.

At the first appearance, the presiding officer may enquire what

the accused intends to plea, without going into the merits of the
case.

Once, the accused’s plea has been established, the court normally
would request that the matter be postponed for further
investigation.

Further investigation may be postponed a few more times, if the

postponements for further investigation becomes unreasonable,
the legal practitioner may object to further investigation on the
grounds that it violates the accused’s right to a speedy trial/
prejudicial to the accused based upon his/her circumstances.

If, investigation has been completed, the legal practitioner should

make a request for further particulars, this is done by a way of a
written request and the accused’s case shall be postponed for the
state to provide the defence with copies of the file, which may
contain : the Charge Sheet and Annexures, Witness statements,
SAP 69 – previous convictions and/or reports depending on the
case.

Once, the Defence has received the further particulars, the legal
practitioner may postpone for consultation with the Accused, as
he may advise him concerning the documentation and the success
of his case in respect of the States evidence.

At times circumstances present themselves according to the

circumstances of each matter, where a case may be disposed of
without plea or trial.

METHODS OF DISPOSING OF CASE

REPRESENTATIONS

This is done by way of oral or written information that is directed

to the State, specifically the senior state prosecutor or the DPP to
withdraw charges against your accused/ change to a lesser
charge/ alternative sentence.

These representations can either be based on the merits of the

case or on humanitarian grounds.

The procedure, is to present a written and motivated

representation of the case. The DPP, might also, accept reports
from senior prosecutor and investigating officer.
DIVERSION

-Circumstances exist where your client intends to plea guilty, such

a matter may be referred for community service and shall be
withdrawn on the basis of completing the community service
programme.

-The National Director of Public Prosecutions’ Policy Directive No 7

defines diversion as: the election, in suitable and deserving cases,
of a manner of disposal of a criminal case rather than through
normal court proceedings. It usually implies the provisional
withdrawal of the charges against the accused, on condition that
they participate in particular programmes and/or make reparation
to the complainant. Diversion is preferable to the mere
withdrawal of cases as the offender takes responsibility for their
actions.

-Of the requirements that the Accused has to be a first-time

offender and the crime of a minor nature as in Schedule 2 Part 1
crime. This happens in consultation with the public prosecutor
and NICRO Social worker.

After the consultation the Defence may either make a plea of guilt
in terms of SECTION 112(2) or 112(1)(a) if the matter cannot be
disposed of or enter not guilty plea or postpone the matter for
trial.

SECTION 112(1)(a)

The general principal in guilty plea, is that there is no dispute

between the accused and the State. In terms of section 112(1)(a),
the case of minor offences these cases may be finalized without
hearing the merits of plea or any evidence being presented before
court, if the presiding officer and prosecutor is of the opinion the
offence does not warrant a fine exceeding R 1500 or
imprisonment.

SECTION 112(2) STATEMENT

This is when the legal representative of the Accused submits a

written statement that’s read out in court.

The accused has to make a statement under oath, without being

unduly influenced thereto and with sound and sober senses.

The accused must make admissions to all the elements of the

crime charged and has to understand the charge and the
implications of his intentions to plea guilty.

If the state and the court is satisfied with the statement of guilt, it
is handed in and placed on record.

Thereafter, the legal representative will have an opportunity to

mitigate the accused’s sentence.

MITIGATION

The legal representative will address the court on the following:

- The Age of the accused, eg, ignorance of youth;

- Whether the Accused has dependants, married, children,
looking after aged parents etc;
- The Accused is employed or not;
- The Accused is a first-time offender;
- The Accused did not waste the time of court and pleaded guilty
and showed remorse by pleading guilty;
- The Nature of the Offence and prevalence in the community;
- The interest of justice;
- The highest level of education that has been completed;
- If the accused was co-operative in the State’s case.
c) TRIAL PROCEDURE
I. The accused’s name will be called up by the prosecutor and
the charges will be put to him.

The magistrate will then ask the accused what he intends pleading
and he will respond “ not guilty”.

The procedure in terms of section 115 CPA is then followed and

the prosecutor may address the court in terms of section 150.

II. The accused is innocent until proven guilty and therefore

the State bears onus to prove guilt of the accused and will
proceed by calling their first witness during exam-in-chief.

The prosecutor may ask leading questions with regards to matters

that are not in dispute, however, if the prosecutor does ask
leading questions during exam in chief, the defence may object.

III. The attorney for the accused may proceed to cross-examine

the States witness;
IV. The prosecutor may re-examine his witness and if so, the
court may pose questions with regard to clarifying up issues
and will allow the defence to re-exam;
V. If the State does not have any further witnesses and
chooses to close their case, the Defence may either call up
their own witnesses or the accused himself or request a
discharge in terms of section 174 CPA, if the state did not
make a prima facie case or close the defence’s case without
calling further witnesses;
VI. If the accused brings his own witness, he will start the
exam-in-chief and the prosecution will be given the
opportunity to cross-exam;
VII. The defence, thereafter may call further witnesses or close
his case;
 VIII. The prosecutor will then address the court and the attorney
will start his closing argument;
IX. The prosecutor will reply in matters of law;
X. The court may either find the accused thereafter guilty or
not guilty and withdraw the charges against him;
XI. If the accused is found guilty and the state proves any
previous convictions then the Attorney may mitigate the
sentence of the Accused.

EVIDENTIARY RULES

1. ONUS OF PROOF
General Rule : State bears onus to prove guilt of accused and has to
prove all the elements of the offence.

a. STATUTORY PROVISIONS
Legislature may determine either directly or by implication where
the onus of proof rests. When the legislature determines
something to be prims facie until the contrary is proven, then it
creates a reverse onus.

2. ADMISSIBILITY
Evidence is admissible if it can assist the court to prove facts in dispute.

a. RELEVANCE AND ADMISSIBILITY

The court may exclude evidence if the evidentiary value of it is
weak and requires that a reasonable inference must be drawn
from the evidence placed before the court.

All irrelevant evidence would therefore be considered

inadmissible.

3. CAUTIONARY RULE
 These are rules of practice which are applied by the presiding officer in
establishing weight of evidence.

These are often applied to circumstances with regards to particular

witnesses – eg. The evidence of a single witness, the evidence of a child
witness.

4. PRESUMPTIONS IN LAW
This is an assumption the court makes regarding a fact which is not
directly proved through evidence.
Evidence being deduced without evidence being led, eg- A rebuttable
presumption in law, marriage, presumption of innocence and factual
presumptions, where a court makes an inference from the facts.

FATHERHOOD – There are two presumptions which can play a part when
the fatherhood of a child is in dispute, firstly, that the husband of the
mother is the father of the child and secondly, that a person who had
intercourse with the mother, is the father. The first is directed at
fatherhood of the child of a married woman and the second is mainly
directed at fatherhood of an unmarried woman.

RES IPSA LOQUITUR – The facts speaks for themselves, this refers to
cases where there is evidence before the court regarding an event and
the court is asked to make an inference from the evidence regarding the
cause of the event. There is no direct evidence of the defendant’s
conduct but negligence is inferred from the nature of the event, eg,
where motor car starts moving downhill after the driver gets out of his
car, here the inference is drawn that the driver never secured his
handbrake.

5. CONFESSIONS / ADMISSIONS

We have to distinguish between a formal admission and informal

admissions, they differ in respect of nature and purpose.
FORMAL ADMISSION- is the confirmation of an unfavourable fact which
is done during a case and which is intended to place that fact beyond
dispute. A formal admission can pertain to merits or to sentence and
may be made at any stage during the proceedings but is usually
presented together with a plea of not guilty,section 115, where an
accused pleads not guilty to an offence, the court may question him to
establish the basis for his defence.

INFORMAL ADMISSION- has to be proved in court and therefore

constitutes evidence regarding the fact which is being admitted.

UNINTENTIONAL ADMISSIONS- this is an admission that was made

unintentionally, and where inference can drawn from that admission.

ADMISSIONS THROUGH CONDUCT- An admission need not be an express

statement, but can be inferred from the conduct of the person
concerned.

VICARIOUS ADMISSIONS- this admission is admissible against the person

whom made it.

CONFESSIONS

Is an unqualified admission of guilt, which, if it were to have been made

in court, would have amounted to a plea of guilty. It is really an
admission of all elements of the offence charged.

REQUIREMENTS FOR THE ADMISSIBILITY OF CONFESSIONS – SECTION

217

The State has to prove beyond reasonable doubt that the confession is
admissible, if a dispute arises regarding the admissibility of a confession
the court will hold a “trial within a trial”.

A practitioner should always first establish whether a statement made

by their client to a peace officer, constituted a confession or merely an
admission. If there are still defences available to the accused then it
would constitute an admission.
 Secondly, if the statement is indeed a confession, the question then
arises if statutory requirements have been complied with.

6. EVIDENCE OF POINTING OUT

In terms of Section 218(1) of the CPA provides that even if an admission

or confession is inadmissible, the facts which have been discovered due
to information contained are admissible as evidence.

WITNESSES

a. COMPETENCE OF WITNESSES

GENERAL RULE: it is presumed that every person is a competent and

compellable witness.

i. MENTAL ILLNESS/MENTAL DERANGEMENT

Generally, a person whom does not possess cognitive
and conative abilities will not be considered as a
competent witness.

If a person has a lucid interval such evidence would

be taken into consideration by the courts.

ii. DEAF MUTES

are considered competent and compellable

witnesses.

iii. CHILDREN

Are considered competent and compellable as far as

there mental maturity is concerned and ability to
speak the truth.

iv. OFFICERS OF THE COURT

Presiding officers are considered to be competent

and compellable however may not testify in matters
in which they preside.
 v. SPOUSES

in terms of common law spouses are forbidden to

testify against each other, however the position has
changed and a spouse is considered competent and
compellable to testify for the defence, however while
the spouse maybe a competent witness, they won’t
be considered compellable for the prosecution.

b. HOSTILE WITNESSES

General rule: A party may not discredit or cross-examine his own

witness.

If you during examination in chief, you find that your witness is

giving a different account of events that he has previously given,
the practitioner may discredit the witness by putting the previous
statement to him and by proving it if necessary. This procedure
will not grant the practitioner the right to cross-examine his own
witness. This he may only obtain if the court declares the witness
as a hostile witness.

c. REFRESHING MEMORY

A witness may refresh his memory by means of a note which he

made or verified while the events were still fresh in his memory.

The limitations which are laid down in practice for refreshing

memory are mainly directed at ensuring the viva voce rule and
possibly also hearsay rule.

If the practitioner wishes to request the witness to refresh his

memory evidence must be presented as follows:

i. AUTHENTICITY – the witness must have made the note

himself or it must have been made on his instructions or read at
the time when his memory was fresh.
 ii. MADE WHEN THE EVENT TO WHICH IT REFERS WAS FRESH
IN HIS MEMORY- this is factual and the time periods may differ
from case to case.

iii. DISCLOSURE – when a witness refreshes his memory with a

reference note , he must be prepared to make it available to his
opponent and the court and to be cross-examined thereon. If the
witness retains the note because it’s a privileged document, he
cannot refer thereto in his evidence.

d. OPINION EVIDENCE / EXPERT EVIDENCE

The general rule is that opinion evidence is inadmissible.

REQUIREMENTS FOR THE ADMISSIBILITY OF OPINION EVIDENCE

I. The grounds for the opinion must be set out- the general
rule is that the facts upon which an opinion is based must
be mentioned to enable the court to determine the value of
the opinion.
II. The court must not subject itself to the opinion of the
witness- the court must not subject its own judgements to
the opinion of the witness and should take all factors into
account.
III. Expert witness- the opinion of an expert in a specific field
will be more relevant more often than that of a layperson.
The laypersons opinion evidence is admissible in cases of
identification of a person or thing, speed, age and
drunkenness, handwritings.
The expert witness can assist the court in matters which
are technical and complex that only an expert is qualified to
form an opinion in respect of them.
IV. Qualifications- the more technical and sophisticated the
subject is about which the opinion must be formed, the
greater the demands will be on the knowledge of the
expert.
V. The facts upon which the opinion is based must normally be
stated.
 VI. The rule that the court is not obliged to accept the opinion
of a witness as final, in general this would also apply to
experts.

DOCUMENTARY EVIDENCE

A document is considered to be any document including any book,

map, plan, drawing or portrait.

a) THE DIFFERENCE BETWEEN A PRIVATE / PUBLIC DOCUMENT

An example of a public document would be a birth certificate which would be
admissible in proving the birth of an individual.

PRIVATE DOCUMENT- a private document can be described as any document

which is not a public document, this includes letters and contracts of private
persons.

I. PRODUCING PRIVATE DOCUMENTS- a document in the possession of the

party, who wants to prove it, is usually produced and identified by a
competent witness. In exceptional cases it may be handed in from the
bar. If the document is in possession of a third party, he can be
compelled to bring the document to court by means of a subpoena
duces tecum.

PUBLIC DOCUMENTS- a public document irrespective of the hearsay rule, may

be applied to prove its contents as the truth. A public document I proved
differently to a private document. Identification and authenticity by a witness
who speaks from his own knowledge is not required. It is only required that
the document be made available by the competent custodian.

HANDING IN OF PRIVATE DOCUMENTS

The general rule – that a document may not be handed in from the bar, it ,ust
be handed by a witness and proved as authentic.

The following persons may hand in a document:

The author, certifier or signatory thereof;

The person whom has signed as witness to the document;

The person who can identify the signature;

Someone who found the document in the possession or control of the

opponent;

Someone under whose lawful custody and control the document is;

Documents older than 20 years are presumed to be authentic;

There are certain times when authenticity need not be proven:

When it has been discovered by the opponent and has been requested to be
brought before court;

When judicial notice can be taken therefrom;

When authenticity has been admitted by other party.

HANDING IN OF PUBLIC DOCUMENTS

A public document can be handed in from custody of the competent custodian

without proving the authenticity of the document, normally certified copies
thereof are handed in.