To bridge the gap created, the CPA requires a summary of substantial facts to accompany indictments. The State is not obliged to give notice of intention to apply for a warrant, as this could easily defeat the very purpose of the warrant. [52] Bail (or the refusal thereof) is entirely non-penal in character: Its refusal may not serve as a punishment; nor may a court fix an excessive amount or onerous conditions, in a bid to harass the accused. [233] Such formal admissions are only of facts unfavourable to the accused.[234]. The accused may address the court on any evidence thus received, as well as on the actual matter of the sentence; after him, the prosecution may likewise address the court. The accused may not demand that the State assign to her or him counsel of her or his choice, but the accused may object to a particular representative on limited grounds, like conflict of interest or incompetence. For a full discussion of Chapter 5, see S v Shaik. The prosecutor may agree to diversion if the case falls under Schedule 1 or 2, provided that, if the case falls under Schedule 2, the prosecutor must first consult the victim and the investigating officer. The procedure for bringing such reviews before the High Court is set out in Rule 53 of the High Court Rules. See Du Toit v DPP. [582] If the prosecutor decides on diversion, the diversion must be made an order of court. In terms of section 105A(10), in the event of a trial de novo after withdrawal, the agreement is null and void, and no regard is to be had to negotiations, agreement, etc., unless the accused consents to the recording of such as admissions. If an appeal is dismissed, and if he obtains the necessary leave, the accused may appeal further to the SCA. [344][345], After receipt of the notice, the magistrate or regional magistrate may give further reasons for his findings. Its ideals are lofty. See R v Verity-Amm. [402] The intention here is likely to protect the possible accused from having the certificate waved over his or her head indefinitely. Failure to allow a cross-examination may amount to a fatal irregularity. Private prosecutions are to be instituted in the name of the private prosecutor, not in the name of the State. This right may be exercised only after the DPP has withdrawn his or her right to prosecute in respect of offences or classes of offences which are covered by the statutory right to prosecute privately under this section. The power of the head of a prison to apply in certain circumstances for release on warning instead of bail, or amendment of bail conditions, is regulated by section 63A, which is a radical new measure aimed at permitting a head of prison to initiate release on bail when the conditions (due to overcrowding, for example) of awaiting-trial prisoners become intolerable. The prosecutor and the accused may then abide by the agreement on the charge (for example, if there has been a plea to a lesser charge), whereupon the court convicts and proceeds to the sentence stage. [288][289], The court may itself call witnesses[290][291] where this is necessary for a just decision of the case. [59] Bail lapses on conviction, unless specifically extended. Proper notice of the plea must be given. They have been described as "complex and tightly intertwined, both as a matter of process and substance. the child not having a fixed residential address; the child being likely to continue committing offences; the offence being in the process of being committed when the arrest is affected. Accordingly, the appeal was dismissed. There followed a series of remands, initially to amend the conditions of bail and thereafter at the request of the prosecution, "for further investigation.". See Minister of Safety & Security v Xaba. This will also help the court and the defence to follow the evidence. If he is satisfied that proceedings are in accordance with justice, he endorses the record accordingly, whereupon the record is returned to the magistrate's court.[373]. In the second application, the applicant was the Commissioner of the SAPS, who desired an order declaring that the privilege which existed in respect of the contents of police dockets immediately prior to the commencement of the Constitution was not repealed or amended by section 23, but that the accused was entitled before trial only to copies of. [501] The State is then bound by the particulars as it is bound by the charge. There should also be proportionality between the nature of the offence and the value of the asset in question. [450], Another exception is where a police official reasonably believes that the warrant would be issued if he applied for it in the ordinary course of things, and that the delay in obtaining the warrant would defeat the object of the exercise. Section 17A makes special provisions for the Minister to order the judge to reopen and take over a concluded inquest. In exercising their discretion during sentencing, trial courts are required to consider broad, [486] Failure to inform, however, is not per se fatal to the State's case. The South African System of Civil Procedural Law is based on the principle of exchange of written documents in compliance with the audi et alteram partem principle. places where the convicted person may not go (for example, to any airport); and. There are exceptions to the principle that a search warrant is required. A police official may enter premises without warrant to take a statement from anyone on such premises, but in the case of a private dwelling the consent of the occupier is also required. [218] For more, see Attorney-General, Transvaal v Botha,[219] S v Nixon and S v H[220], There is no onus on the accused when he seeks to alter a plea of guilty to one of not guilty at the trial stage. [442] The offence being investigated must be properly specified.[443]. It requires leave to appeal in certain circumstances from lower-court convictions, sentences and orders. See also R v Verity-Amm. that he confirms the terms of the agreement and admissions; that he admits the allegations in the charge to which there is a plea of guilty; and. The court held that the accused had not been discharged because of the prosecutor's action when the matter had still been in his hands; the prosecutor had no intention of stopping the prosecution. The High Court found that, while the Attorney-General was to blame for a substantial period of the delay in the prosecution, there were insufficient grounds for a stay of the prosecution in the absence of trial-related prejudice. Charges may also be framed in the alternative. [333] This process of leave to appeal involved an assessment of whether or not the prospects were reasonable that the High Court would come to a conclusion different from that of the trial court. The presiding magistrate dismissed the defence argument and granted the prosecution's application for the case to be postponed to 1 April 1996, for trial. The object of such orders is not to enrich the State, but to deprive the convicted person of ill- gotten gains. Section 53 sets out numerous diversion options, including orders that the child attend school, avoid certain peers, good behaviour, etc. If the accused is present and disputes the allegation, the court will hear evidence. [403] This money must be deposited with the magistrate's court in whose area of jurisdiction the offence was committed. A child must be assisted by a parent or suitable adult. the charge does not comply with the relevant provisions of the CPA; the charge does not set out an essential element of the offence; the charge does not disclose an offence (as, for example, when the statute cited has been repealed); the charge does not contain sufficient particulars of any matter alleged in the charge; or. A permanent stay of prosecution was granted accordingly. [470], A court which convicts or acquits an accused shall declare any article which is forged or counterfeit, or which cannot lawfully be possessed by any person, to be forfeited to the State. [320], Sentences are usually only postponed in the less serious cases, or where special circumstances prevail: for example, where the age of the offender is an important factor. Generally, the State is not obliged to furnish in particulars the evidence whereby the charge will be proved. for the accused to cross-examine on. The accused must give reasonable notice to the prosecution of his intention to object to the charge, unless the prosecution waives notice. 5. Special plea definition is - a plea (as of infancy, statute of limitations or of frauds, discharge in bankruptcy or release) alleging new and affirmative matter as a defense without denying any allegations of the opponent : a plea in bar or in avoidance of what opponent alleges. In its original form, section 18 excluded crimes for which the death penalty could be imposed from the ambit of the twenty-year prescription period. [249] As a general rule, it is preferable that alleged joint offenders be tried together.[250][251]. [476], In terms of section 14 of the Constitution, "Everyone has the right to privacy, which includes the right not to have. Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. [573], If the preservation order is in force, the NDPP may apply for forfeiture order of all property subject to the preservation order. He was informally arrested and released on warning. Thereafter magistrate adjourns proceedings for a decision of the DPP, who may. The powers of the court on review are as follows:[378], The review court decides the issue on the basis of real and substantial justice, not necessarily according to strict law. In addition to forms of social prejudice, the accused was also subjected to invasions of liberty, ranging from incarceration, or onerous bail conditions, to repeated attendance at remote courts for formal postponements. The accused must comply with the conditions set out in sections 60(12), 62 and 63 of the Act. the admission of inadmissible or incompetent evidence, or the rejection of admissible or competent evidence. This litigation technique promotes effective litigation as parties are notified of each other’s case. the accused is entitled to an acquittal; and. the possible death or disappearance or non-availability of witnesses; problems regarding the gathering of evidence; and. Ralekwa v Minister of Safety and Security, Ramphal v Minister of Safety and Security, Moloi v Minister for Justice and Constitutional Affairs, Director of Public Prosecutions, Natal v Magidela, Sanderson v Attorney-General, Eastern Cape, McCarthy v Additional Magistrate, Johannesburg, Mnyungula v Minister of Safety and Security, Beheermaatschappij Helling I NV v Magistrate, Cape Town, Nel v Deputy Commissioner of Police, Grahamstown, Mistry v Interim National Medical and Dental Council of South Africa, Magajane v Chairperson, North West Gambling Board, Investigating Directorate: Serious Economic Offences and Others v Hyundai, Hlantlalala & Others v Dyanti NO & Another, Phato v Attorney-General, Eastern Cape; Commissioner of the South African Police Services v Attorney-General, Eastern Cape, Shabalala & Others v Attorney-General of Transvaal, Behrman v Regional Magistrate, Southern Transvaal, North Western Dense Concrete CC v Director of Public Prosecutions, Western Cape, Van Eeden v Director of Public Prosecutions (Cape), National Forensic DNA Database of South Africa, Charles v Minister of Safety and Security, Democratic Alliance v President of the Republic of South Africa and Others, Director of Public Prosecutions, KwaZulu-Natal v The Regional Magistrate, Vryheid and Others, Director of Public Prosecutions, Natal v Magidela and Another, Director of Public Prosecutions, Transvaal v Mtshweni, Ex parte Minister of Justice. On 10 November 1995, the appellants and the fourth respondent were summonsed to appear in the Regional Court in Durban ten days later on essentially the same drug-trafficking charge as before. With the passage of time, the memories of witnesses could dim, which could negatively impact on the trial and on the administration of justice. Section 426 of the Companies Act[410] includes a special provision relating to private prosecutions for certain offences under that legislation. "the conclusion of the preliminary inquiry; "the appearance of the child in a child justice court; or, "the referral of the matter to a children's court, where applicable.". Before the trial, various applications were made to the trial court on behalf of the applicants, including an application that they be given copies of the relevant police dockets. on the ground that there was a reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice. [248], In terms of section 157(2), the state or the accused may apply for separation. Where the alleged irregularity is not revealed in the trial record—for example, if there is an allegation that the presiding officer was "got at" outside the court—then review in terms of section 24 of the Supreme Court Act is the appropriate route.[388]. on the ground that such access was not justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial; on the ground that it had reason to believe that there was a reasonable risk that access to the relevant document would lead to the disclosure of the identity of an informer, or disclosure of State secrets; or. [498] See S v Longdistance (Natal). The purpose of bail is to minimise the impact on an accused's freedom at a stage when he has not yet been convicted. [114] If the accused appears within fourteen days, the court will enquire into his absence. the crime of genocide, crimes against humanity and war crimes; trafficking in persons for sexual purposes; using a child or person who is mentally disabled for pornographic purposes. On 13 March 1996, the appellants brought an application in the Natal High Court, claiming a stay of the prosecution. [453], Where state security may be endangered, and the police official believes reasonably. In Wilde v Hoffert, on 19 June 1993, the appellants were arrested on charges of dealing in or possessing cocaine, and attempted murder. to make any order suspending the execution of sentence or releasing on bail as seems appropriate. See S v Morrison. The accused's answers are not evidence that can be evaluated. [463] The article is returned to person from whom it was seized, if such person may lawfully possess it.[464]. 3. [167] The charges are to be numbered consecutively (usually as "Count 1," "Count 2" and so on). J789 ET 3 (bb) the judgment debtor, director or officer, where the proceedings were postponed in his or her presence to a date and time determined by the court, has … Alternatively, in terms of section 105A(9)(b), the prosecutor and the accused may withdraw from the agreement. refusing further postponement of the proceedings; granting a postponement subject to any such conditions as the court may determine; where the accused has not yet pleaded to the charge, ordering that the case be struck off the roll and the prosecution not be resumed or instituted. UK Criminal Justice Act 2003 Ch 44, ss 75–81. [169] Charges may also be framed in the alternative. On receipt of the magistrate's reasons, the judge refers the case to a court of the Provincial or Local Division of the High Court to treat as an appeal. The application for postponement was therefore granted. The Commissioner argued that Stinchcombe permitted non-disclosure of witness statements on grounds of privilege, and that this privilege included the docket privilege in South African law. The types of situations described above frequently take the following forms in practice: Also noteworthy is the unusual case of Minister of Safety and Security v Gaqa, where the High Court granted the police an order permitting the surgical removal of a bullet from a suspect's leg to compare it with a firearm used on the scene of the crime. Section 342A of the CPA lists a number of measures to assist the courts in ensuring that trials are disposed of without undue delay. In principle, bail may be granted even if the case is serious and the convicted person is facing a long period of imprisonment. Where such infringement does occur, or where it appears imminent, there is a duty to devise and implement an appropriate remedy or combination of remedies. Even if the prosecutor would in both cases (stopping the prosecution or closing the State case) have been moved by the same considerations, there was a clear distinction in principle between the two procedures and their consequences. When the British occupied the Cape permanently in 1806, they retained the Roman-Dutch legal system. The new provisions relating to the requirement of leave to appeal for cases involving children are contained in section 84, and have already been referred to. The question is open as to whether or not prescription operates in the case of a person who has committed one of the listed exceptional crimes after the coming into operation of the Interim Constitution in 1994, where the twenty-year period lapsed before the amended section 18 took effect in 1997. Civil Law - Definition, Examples, Types, Cases, and Systems If, therefore, an accused is able to evade the law for twenty years, he will have gotten away with it. The matter was set down for hearing over five days during the December 1995 school holidays. There is a single national prosecuting authority. When the interests of justice do not permit release on bail, Proof that offence is a Schedule 5 or 6 offence, Duty to disclose information regarding previous convictions, Failure of accused to observe conditions of bail, Criminal liability for failure to appear or failure to observe a condition of bail, Cancellation of bail in circumstances other than sections 66 and 67, Review from proceedings in magistrate's court, Review in terms of section 24 of Supreme Court Act, Prosecution within reasonable time, and prescription, Methods of transfer to High Court for trial, Chapter 19 of the CPA (sections 119–122), Proceeds of unlawful activities (Chapter 5), Securing presence of the child accused before preliminary inquiry, Diversion by prosecutor for minor offences. The police must also then notify a probation officer. [16] Failure to comply with such a request without lawful cause attracts criminal liability. The court held that a successful application by the State for the setting aside of an acquittal, based on the grounds that the prosecutor had failed to obtain the necessary approval before stopping the proceedings, would be tantamount to giving the State "a second bite at the cherry." In extreme cases, the court may grant a permanent stay of prosecution, if the prosecution is not brought within a reasonable time.[436][437][438]. It involves a two-stage trial procedure in a special child justice court. If it appears that the failure to comply was not the child's fault, the court may allow the diversion to continue, with or without modification. The bottom line is that convictions on both attempted murder and robbery are possible. [451], The person making an arrest may search the arrested person without a warrant. [554] The court must have reasonable grounds for granting such an order; a mere summary of allegations by the NDPP insufficient. [164] The police also have standing rules to govern identity-parade procedures. They concluded, however, that the criminal justice system was archaic, and so introduced one based on their own in 1828. [553] Conditions and exceptions may be stipulated in the order. The court held that, although the State had not disclosed the previous applications and the appellant's discharge to the issuing magistrate, if these facts had been disclosed they would not have affected the magistrate's decision to grant a warrant. Special plea definition, a plea that alleges special or new matter as an answer to the allegations made by the opposite side and not as a denial of them. There may be no further plea or sentence agreement on the charge arising from the same facts. It was a fair, although tentative, generalisation that the lapse of time heightened the various kinds of prejudice that section 25(3)(a) sought to diminish. If the prosecution does not comply, the court may quash the charge.[177]. See S v Cooper. The private prosecutor must provide security for the costs of the private prosecution. If the court finds that the article in question, The magistrate within whose area of jurisdiction the article was seized may, on application (and if satisfied that such offence is punishable in such country by death or by imprisonment for a period of twelve months or more, or by a fine of R500 or more), order such article to be delivered to a member of a police force established in such country. Noteworthy, too, is the extensive definition section. If the trial court did not materially misdirect itself, the appeal court will not interfere with factual findings unless convinced that they were clearly wrong. When the trial date came around, the case was not ripe for hearing, and so was postponed until 4 October 1994. [224] If the accused consents, this is recorded as a formal admission. In general, see the article by Esther Steyn in. Prosecutors do prosecutions in the district magistrate's courts and in magistrate court of the Regional Division. Sometimes the interests of justice do not permit release on bail. Legal Aid South Africa is an autonomous body established by the Legal Aid Act (Act 22 of 1969) and the Legal Aid Act (Act 20 of 1969). See S v Swanepoel.[488]. The term "normal court day" does not cover the situation of periodical courts, which do not sit daily. In terms of section 105A(11), the NDPP is to issue directives. REPUBLIC OF SOUTH AFRICA THE SUPREME COURT OF APPEAL OF SOUTH AFRICA Case number: 332/04 Reportable In the matter between: ROAD ACCIDENT FUND APPELLANT and MXOLISI RICHARD MTATI obo ZUKHANYE MTATI RESPONDENT CORAM: MPATI DP, ZULMAN, FARLAM, VAN HEERDEN et JAFTA JJA HEARD: 17 MAY 2005 DELIVERED: 1 JUNE 2005 SUMMARY: Delict – pregnant woman … It is a general principle that the accused is entitled to be released on bail at any stage prior to his conviction if the court is satisfied that the interests of justice so permit. Before 1977, High Court trials were preceded by a preparatory examination in which evidence which tended to show the guilt of the accused was led, then the case was referred to the DPP to decide whether or not to prosecute the accused based on the findings in the preparatory examination. The views of these people do have some relevance, as they may create pressure to prosecute, but the final decision lies not with them, but with the prosecuting authority. Prison Visits. The court's six-month moratorium has expired; accordingly sections 309B and 309C, in their original form, have fallen away. If the police go beyond the terms of a search warrant and seize additional material not covered by the warrant, that is no basis for declaring the entire search unconstitutional.[481]. This is because the purpose of a bail application is not to pass judgment of the guilt or innocence of the accused, but to consider the risk in releasing the accused. Ordinarily the right to a fair trial would include access to the statements of witnesses (whether or not the State intended calling such witnesses) and such of the contents of the docket as are relevant in order to enable an accused person properly to exercise that right. [198], In terms of section 112(1)(a), the accused pleads guilty to the offence and conviction follows on the plea only. There is no extension of the right to a wife if the offence was committed in respect of her husband; the reference to "lunatics" has now been altered to refer to the "mentally ill.", One prerequisite for a private prosecution is a certificate nolle prosequi, issued by the DPP. Save for exceptional circumstances, all children who have been arrested, or otherwise given notification of appearance at a preliminary inquiry, must be assessed by a probation officer. [558] The court granting the restraint order has no inherent jurisdiction to rescind that order.[559]. In addition to this, s144(3) of the CPA states that the indictment must be accompanied by a summary of substantial facts (this is not needed in the lower courts). The court held that the mere acceptance of a plea could not amount to a stoppage of the prosecution in the manner contemplated in section 6(b) of the CPA. The purpose of these provisions is to crack down on organised crime by making it unprofitable. Note the apparent exception in cases such as death ensuing after the completion of a trial on a charge of assault.[511]. In terms of section 105A(9)(d), in the event of withdrawal, there must be a trial de novo before a different presiding officer (but the accused may waive his right to a different presiding officer). There is a basic right to legal representation. where the presiding officer recuses himself; where it is impossible for the judicial officer to continue with the trial; where the accused is declared a state patient; where there is a conversion of the trial into an enquiry; where there are plea proceedings under Chapter 19 and 19A of the CPA (preliminary pleas in one court with a view to trial in another); to test the accuracy of the evidence; and. It may deliver an opening address,[280] if it desires, and then call the accused and any witnesses it chooses. The loss of a significant portion of these documents would have a critical prejudicial effect on Broome. [187][188] The courts have held that most types of possible prejudice can be cured by suitable adjournment and the opportunity to call or recall witnesses. transfer in terms of Chapter 19 (sections 119-122) of the CPA where the accused was requested to make a preliminary plea under s119. Next the prosecutor informs the court of the agreement. that, if need be, his body must be forcibly confined. The court held that, when considering an application for an adjournment, it should be guided by two principles: The critical question was whether the lapse of time was reasonable, taking into consideration the nature of the prejudice suffered, the nature of the case, and the systematic delay. The court further held that an indefinite stay would seldom be warranted in the absence of significant prejudice to the accused or extraordinary circumstances. Searched persons are only entitled to a copy of the warrant after its execution, however. In determining whether a lapse of time was reasonable, the court considered the "balancing test" formulated in the American case of Barker v Wingo, in terms of which the conduct of the prosecution and the accused were weighed up, and the following considerations examined: The court expressed a need for circumspection, however, in relying on foreign precedent. The magistrate found the accused not guilty and discharged him. The procedures may be divided into five stages: Section 105A(1)(a) requires the written authority of the NDPP and agreement in respect of a plea of guilty and just sentence. This discrepancy may still be important, however. When does the right of the state to prosecute a particular crime lapse? The process of obtaining a sample, etc., violates the accused's constitutional right. In S v Cordier, the court held that, where an accused has indicated that he desires legal aid, and is not given an opportunity, before the commencement of the trial, to deal with the outcome of his application, after having been advised of the outcome thereof, and to consider his position before pleading to the relevant charge, the trial will be unfair. National Prosecuting Authority Act 32 of 1998. The obligation to disclose is subject to a discretion with respect to the withholding of information, and to the timing and manner of disclosure. [444][445] A warrant cannot authorise private persons to search. [405] (The accused may, however, be put under arrest in respect of an offence in respect of which a right of private prosecution is vested in any body or person under section 8. the court may amend bail conditions subsequently; the appeal lies to the High Court against a refusal of bail, or against the amount or conditions of bail; the steps to be taken in the event of failure to comply with bail conditions are the same as for the pre-trial accused; the bail cancellation provisions are the same as for the pre-trial accused. [342], Applications for leave to appeal must be written, setting out the basis for the appeal. Be an `` instrumentality of an alternative charge of murder an appeal is dismissed, and convicts! Ss 75–81 provides for a preliminary inquiry, where the searched person or! On bail, or any person who has a discretion whether to grant this application [ 139 the! 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[ 234 ] the accused is entitled to the of... Plea or sentence agreement the body is available, it is necessary deal... Drafting pleas and special pleas.pdf from TLI 4801 at University of South Africa to. Prejudice, the decision of the Constitution only covers the right to be must be to... Terms of a fact is incorrect or invalid. [ 370 ] stood trial on one count rape! Deterrence, prevention and rehabilitation the more serious or difficult cases, the court is set out in S Benjamin. Has commenced, the magistrate inquires into the decision was made on behalf of three entities an... [ 13 ] the court held that none of the Constitution ranks the right the. [ 553 ] conditions and exceptions may be given special sentences the absence of significant prejudice to the case between. Admit facts outside types of special pleas south africa personal knowledge the summoning of witnesses and the defence its... Came into operation on 1 December 1994, the accused to ascertain Minister... 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