In addition to the rights just mentioned, the accused has the right to be informed of these rights. Among the implications of the above is that. If officials detain a person without lawful authority, the detainee, or someone on his behalf, may bring an interdictum de homine libero exhibendo application, which is a special type of mandamus, to compel his release. Section 9 stipulates that, in such a case, the police may not arrest the child; they must take the child to its parents or, if they are unavailable, to some other appropriate adult. [532], If, at any time after inquest has been decided on, it comes to the notice of the judicial officer that criminal proceedings are being instituted in connection with the death, he must stop the proceedings. In 1991, McCarthy was arrested on a third warrant. For the purpose of section 112(1)(b), see S v Mkhize,[203] the Appellate Division's judgment in S v Naidoo[204] and S v Diniso. [48][49][50][51], Bail applications are always matters of urgency. Courts in South Africa (loose leaf) vols 1 & 2, Juta. They are as follows: It must be noted that, although the final measure, in section 342A(3)(e), is on the statute books, an order of costs against the State has never been made, as the financial implications are very onerous. Although Thint v NDPP deals with warrants under section 29 of the National Prosecuting Authority Act,[480] the same would apply to warrants under the CPA. The test is prejudice to the accused. [452], The person lawfully in charge or occupation of premises may, if he reasonably believes that certain categories of goods may be on such premises, search them for such goods without a warrant. Here, too, the DPP must consult the victim and the investigating officer. the effect of the earlier plea explanation, in particular the fact that it is, the prevalence of the crime in question; and. The court held, seeking to be sensitive to the multilingual nature of South Africa, made a sort of exception for Dangatye. See also Minister of Safety and Security v Xaba. The private prosecutor must provide security for the costs of the private prosecution. 3. [257] In practice this occurs only in complicated or serious cases. Objection may not be taken to the so-called "splitting of charges;" only to a duplication of convictions. Prosecutors and presiding officers are constitutionally bound, therefore, to prevent infringement of the right to a speedy trial. [537][538], In case of a death, where the body is destroyed or not found, and if the judicial officer makes a finding beyond a reasonable doubt that a death occurred, special provisions apply. [539] The judicial officer then makes findings as required by section 16(2), and if the judicial officer is not a judge he sends the findings to the High Court on review. The court held that a stay of prosecution could not be granted in the absence of trial-related prejudice or extraordinary circumstances. Only once a person has been accused of a crime, therefore, does he benefit from this right. variance between the charge and the evidence; the presiding officer is of the opinion that the offence merits punishment exceeding the limits provided in section 112(1)(a); or. Prosecutors often ask the police to do further investigation along certain lines: for example, to investigate further a possible defence revealed in an accused's warning statement. Section 32(2) states that national legislation must be enacted to give effect to this right. [169] Charges may also be framed in the alternative. [171], On the importance of properly informing the accused of the nature of the charge or charges, see S v Wannenburg. They perform High Court prosecutions, appeal from lower courts, and also spend much time assisting with the decision process in cases referred to the DPP for decision. In terms of section 37(2)(b), a medical practitioner attached to a hospital may take a blood sample of a person admitted to the hospital if he is of the reasonable opinion that such a sample may be relevant at later criminal proceedings. An award under section 300 is usually inappropriate if the accused is sentenced to a lengthy period of imprisonment and has no assets.[330]. She was then was discharged after an objection was sustained that the documentary evidence filed in support of the application for extradition was deficient. According to section 32(1) of the Constitution, everyone has the right to access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights. all medical, hospital and autopsy reports; summaries of other expert evidence to be tendered by the State; and. [361], Where conviction and sentence are set aside on appeal on grounds of technical irregularity, the accused may be retried.[362]. [165] Nowadays identity parades are often videotaped to minimise disputes about what occurred in or was established by them. It requires leave to appeal in certain circumstances from lower-court convictions, sentences and orders. This part, however, was struck down as unconstitutional in. In subsections 106(1)(c) and (d), an extended meaning is given to the words "substantially identical. : This is the method used to transfer the accused from a lower court which does not have the jurisdiction to try the case. S v Benjamin appeared to reverse previous authority until the case of S v Moloto, where the SCA overturned the principle in Benjamin. [321], Suspended sentences are imposed frequently, either in whole or in part. The court has the power to increase or reduce the amount of bail, or to amend or supplement any condition, on application by the prosecutor or the accused.[105]. Prison Visits. These are orders issued in anticipation of a confiscation order to keep safe from disposal the property, etc., to be sought in a confiscation order. The trial then continues on that basis. It would also blur the clear distinction between a prosecutorial decision, which was part of the executive's competence, and the sentencing power, which was a judicial power. In certain other cases, the minimums are lengthy periods of imprisonment. On the pre-constitutional position, see R v Steyn, where the police docket was privileged from disclosure. The person in whose favour an award is made may within sixty days renounce it. As certain State witnesses were unavailable during that time, the prosecution applied for a further postponement, so the trial was postponed to December 1996. The SCA has now held, however, that there can be multiple convictions for culpable homicide arising out of the same act. The court held that the delay in this instance was not unreasonable. Plea bargains are extraordinarily common in the American legal system, accounting for roughly 90% of all criminal cases. [148], If no prosecution is instituted, or if the prosecution has been instituted and the accused acquitted, the fingerprints, etc., are to be destroyed.[149]. An accused may not, through the choice of any particular counsel, ignore all other considerations and the convenience of counsel is not overriding. [199][200] This section should not be invoked in serious matters. [554] The court must have reasonable grounds for granting such an order; a mere summary of allegations by the NDPP insufficient. [356], In general, for the approach of appeal court to, Where a conviction or a sentence is set aside on appeal or review, because section 112 or 113 have not been applied or have not been properly applied, the appeal court must remit to the lower court for proper compliance with section 112 or 113. That the State has decided to charge accused, and has already disclosed the docket, does not prevent the State from investigating the case further. Sections 2 and 3 take this theme further. Rule 67 of the Magistrates' Courts Rules. [13] The ensuing trial, however, would not automatically be invalid.[14][15]. The purpose of bail is to minimise the impact on an accused's freedom at a stage when he has not yet been convicted. ", "'diversion' means diversion of a matter involving a child away from the formal court procedures in a criminal matter by means of the procedures established by Chapter 6 and Chapter 8. However, if the prosecutor chooses to allege the charges in the alternative, a conviction cannot be obtained on both the charges. Section 10 provides that the inquest is to be held in public, unless the judicial officer decides that there are good reasons to the contrary. The general rule is that an accused who has pleaded is entitled to a verdict. [369] Ten counts of theft with a R100 fine on each count would therefore not be automatically reviewable, even though the total sentence would exceed R6000. [259] Documents of this type are catered for specifically in certain provisions. The accused must give reasonable notice to the prosecution of his intention to object to the charge, unless the prosecution waives notice. In addition not this, the public interest was served by bringing litigation to finality. The court may also hear any evidence, etc.,[377] although this rarely happens. The prosecution may be stopped after the plea, however, provided that the prosecutor has the necessary authority from the DPP. In considering the likelihood that the accused will attempt to evade trial if released, the court takes into account the following: Certain of these grounds are also part of the common law. If a child is over ten, but under fourteen, a prosecutor considering whether to prosecute is required to consider a long list of criteria about capacity to commit a crime, whether a prosecution is in fact warranted, and whether some form of diversion would not be more appropriate instead of prosecution. when the accused is about to evade justice or abscond; when the accused has interfered with witnesses, or threatened or attempted to interfere with them; when the accused has defeated or attempted to defeat the ends of justice; when the accused poses a threat to the safety of the public or an individual; when the accused has not fully disclosed all previous convictions during the bail hearing; when further evidence or factors come to light (including falsity of information during bail proceedings) which might have affected the decision to grant bail; and. 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. Accordingly, the appeal was dismissed. As to the meaning of "just sentence," it is not required that the court find that it is the exact sentence that it would have imposed.[520][521][522]. [189] The fact that the charge is not amended shall not affect the validity of proceedings, unless the court refuses to grant an amendment.[190]. Criminal procedure can be divided into three stages or phrases, namely pre-trial, trial and post-trial. It further provides that no-one may interfere improperly with the National Prosecuting Authority in the performance of its duties and functions. reinstate a special plea in terms section 3 Act 40 of 2002, in terms which the third defendant made known his intention to apply for leave for the reinstatement of its special plea in terms of section 3 of Act 40 of 2002. The court may, if it believes this to be in the interests of justice, direct that one or more charges be tried separately. The State had been obliged, when the third warrant of arrest was applied for, to disclose that there had been two previous warrants of arrest issued, that the first had been withdrawn, and that the second had culminated in the appellant's discharge. The accused is not entitled to request further particulars when pleading under section 119 or 122A. On 7 August 1995, the decision was made to prosecute the appellant on two charges. For the meaning of "hostile witness," and the effect of a declaration of witness as hostile, see, for example, Meyers Trustee v Malan[298] and City Panel Beaters v Bana. [60] The court must raise the issue of bail if it has not already been raised by the prosecutor or by the accused.[61]. It is regarded as evidence, not part of the charge itself. The defendants sought discovery of certain documents from … places where the convicted person may not go (for example, to any airport); and. Until fairly recently, insufficient attention was given to this stage of proceedings. In general, what may be seized is discussed in section 20 of the CPA: anything that is. This legislation introduced for the purpose of the inquest in In re Goniwe. Appeals are also permitted by the DPP to the High Court against a decision to release on bail, or against a bail condition. It was held in Stinchombe that the fruits of the police investigation are not the property only of the prosecution; the defence is entitled to pre-trial disclosure. September 1990 to November 1990, when McCarthy was arrested and subsequently discharged; November 1990 to 8 November 1991, when McCarthy was arrested on the third warrant; and. See S v Mpetha. The accused's answers are not evidence that can be evaluated. The prosecutor may make an opening address. No certificate nolle prosequi as such is required. November 1991 to the time of the present application. In South Africa, the primary authority and responsibility for the prosecution of crime lies with the State. There is no general provision for trial in absentia. What such remedy or remedies ought to be must be left to be determined in the light of the circumstances of each particular case. 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. 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. Questioning should not be confined simply to asking the accused if he admits each allegation. In June 1996, a reply to a request for further particulars to the charge-sheet, together with various other documents, was supplied to the defence. [524][525] Section 105A does not appear to prevent the informal type of agreement as in North Western Dense Concrete. The Minister appoints Deputy DPPs to assist DPPs with their work. In terms of section 300 of the CPA, where the court convicts an accused of an offence involving damage to or loss of property belonging to another, the court. The magistrate found the accused not guilty and discharged him. In terms of section 302, the following cases go on automatic review: It is the individual sentence on each count that is taken into consideration when determining whether the sentence exceeds these limits, not the total effect of all the different sentences on each count. The court had a discretion, which was to be exercised judicially on consideration of the particular case's facts and circumstances. This is because the trial has not commenced yet. to acquire the information needed for a decision in an informal manner, if the prosecutor and the accused do not dispute this; to require the prosecutor or the accused to lead evidence of matters in dispute; to require (which is mandatory) that the prosecutor place reasons on the record if he does not oppose bail on a charge of a Schedule 5 or 6 offence; to order that further evidence or information be placed before the court if such is necessary for it to reach decision. The third is inapplicable because a conviction would necessarily be on the merits. The DPP may issue written confirmation that he intends to charge the accused with a scheduled offence. [22] Failure to comply with such a request constitutes an offence.[23]. 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]. After the plea, however, the case may no longer be withdrawn. [122] The court may permit the convicted person to furnish a guarantee instead of cash. It seems to follow that section 51(2), which provides for certain lengthy periods of imprisonment by High Courts and regional courts for slightly less serious crimes than in subsection (1), will also survive constitutional challenge. These divisions are not absolutely watertight. If no person is entitled to or may lawfully possess the article, it is forfeited to State. The court considered three of the most important factors bearing on the enquiry: The more serious the prejudice suffered by the accused, the shorter had to be the time within which the accused was tried. [115] This provision contains a reverse onus, and a similar reverse onus in the case of non-appearance, after release on warning was modified by the Constitutional Court in S v Singo[116] to read that the onus is on the State. He denied the accusation and declined to make a statement. The provisions provide for certain minimum sentences in respect of various categories of serious offences set out in the schedules to the Act. the accused is entitled to an acquittal; and. Chapter 2 of the CPA deals with the issue of search warrants, entering of premises, seizure, forfeiture and disposal of property connected with offences. 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