Table of Contents
Chapter 1: Introduction to criminal procedure ................................................................... 2
Chapter 2: criminal procedure ......................................................................................... 13
Chapter 3: Prosecution of Crime ...................................................................................... 19
Chapter 4: legal representation ....................................................................................... 32
Chapter 5: The accused: his/her presence as a party........................................................ 37
Chapter 7: securing the attendance of the accused at the trial ........................................ 40
Chapter 8: Interrogation, interception and establishing bodily features of persons ......... 49
Chapter 9: Search and Seizure ......................................................................................... 56
Chapter 10: Bail ............................................................................................................... 64
1
,Chapter 1: Introduction to criminal procedure
Definition of Criminal Procedure
- TB 1.2
- Substantive criminal law – what is an offence – murder, sexual assault, drugs etc. –
substantive offences under criminal law
- Law of criminal procedure is the machinery in which we enforce the rules of
substantive criminal law
- It provides some legitimate function to dispute resolution
- Back in the day: people used to resolve disputes themselves – now the state is
involved between an alleged victim and alleged offender
- Constitution is an important functionary that protects the victims and the alleged
offender
- We mustn’t look at criminal procedure in a vacuum
- There are lots of societal issues affecting the prosecution of crime in SA like
backlogged courts and police resource allocation
How do you present evidence in a court of law? What is admissible evidence?
- Sometimes thinks that happen during the investigation can influence the
presentation of evidence
- Eg. If you assault someone during the investigation, that evidence may be admissible
if they made a confession during the investigation
What does criminal procedure cover?
- Duties and power of the prosecutorial authority – NPA – what can a prosecutor do,
which cases must they prosecute? Must they prosecute all cases?
- Duties and powers of the courts
- Duties and powers of police officers
- The rights of arrested people, suspects
- Pre-trial matters such as bail
- The course of the trial
- The role of the victim – the victim’s rights – often victims become the witness
Criminal procedure forms part of the larger criminal justice process and criminal justice
system
2
,- includes substantive criminal law, law of evidence, criminology, victimology, how victims
and offenders act and react, penology
- eg. Why do victims wait such a long time before reporting sexual assault? – they have
realized that it takes a lot of time
criminal procedure has 3 phases
eg. Tinder Swindler
Stage 1: victim would come forward and say she has
been defrauded by Simon. They may search his house,
car, cellphone. Do they need warrant to search? Can
they arrest with force? Will he get bail?
Stage 2: court has to present the case – elements of
criminal law. The court does not prove a case. The state
does. The court hears a matter and makes a conviction.
The court will make judgment – procedure differs if
someone has plead guilty, non-guilty etc.
Stage 3: if Simon is dissatisfied, he could have the
matter appealed or reviewed
Criminal procedure is double functional
- Regulates procedure and operates as a ground of justification
- If someone doesn’t operate within the dictates of these procedures or grounds of
justification they may face formal or substantive consequences
Example:
Mr Swindler property is being searched – it was unlawful
- Such an unlawful action conducted by police officer has formal consequences and
substantive consequences
Formal: could lead to an exclusion of all of the evidence found during the search and this
evidence is excluded at trial
- We don’t have a strict exclusionary rule – because the evidence was obtained
improperly doesn’t mean that it will be excluded
Substantive: claim for damages
- The accused will be able to claim for damages
Shashape v Minister of Police WHC
- Not prescribed
- Shashape went to music practice one day and got a call saying police were at her
house
- They had received an anonymous tip that she had stolen meat
- She returned to her house and they seized the meat
3
, - She asked why they were taking the meat into possession and how they would
match the meat to the particular livestock
- She received difficulties from this – her community saw this and now called her a
thief
- She sold CDs, did dance classes and music – people didn’t want to send children to
dance classes etc
- She approached the court to claim damages for wrongful search
- She was awarded R96K search for the unlawful search and there was no legal basis
to search her house
Tension between Crime Control and Due Process
- Packer “The Limits of the criminal Sanction” (1968)
- Handbook Ch1 para 2.1-2.3
- Public perceptions: “Constitution is pro-criminal”
- Historical context eg. “detention without trial”
- See para 2.2 [internal tensions]
Crime control model
- The criminal justice system is used to repress and control criminal conduct
- This model doesn’t really care about trial fairness and accused’s rights
Due process model
- Focuses on procedure
- Treatment of the accused person and the procedures being done properly – with
respect of all the persons involved – especially so the accused person
- Up until sentenced guilty – they are innocent and must be treated so
Legal innocence and factual innocence
- Someone may have killed someone but were they legally responsible for it
- Eg. Oscar killed Reeva but was he legally responsible
No modern system is one system
- We have an affective, substantive criminal law system
- The enforcement is lacking
- We also have big attention and consciousness in due process to accused persons
In SA we have crime control model and due process model
Public perceptions
- “The constitution is pro-criminal” – we must remember the historical context of SA –
in Apartheid, people were thrown into prison without due process, laws were made
overnight to convict people
Fair trial rights – large part of the BoR
Constitution is not pro criminal it is pro-humanity -> believes in treating all humans as
equally as possible. People often treat criminal as less than
4
Chapter 1: Introduction to criminal procedure ................................................................... 2
Chapter 2: criminal procedure ......................................................................................... 13
Chapter 3: Prosecution of Crime ...................................................................................... 19
Chapter 4: legal representation ....................................................................................... 32
Chapter 5: The accused: his/her presence as a party........................................................ 37
Chapter 7: securing the attendance of the accused at the trial ........................................ 40
Chapter 8: Interrogation, interception and establishing bodily features of persons ......... 49
Chapter 9: Search and Seizure ......................................................................................... 56
Chapter 10: Bail ............................................................................................................... 64
1
,Chapter 1: Introduction to criminal procedure
Definition of Criminal Procedure
- TB 1.2
- Substantive criminal law – what is an offence – murder, sexual assault, drugs etc. –
substantive offences under criminal law
- Law of criminal procedure is the machinery in which we enforce the rules of
substantive criminal law
- It provides some legitimate function to dispute resolution
- Back in the day: people used to resolve disputes themselves – now the state is
involved between an alleged victim and alleged offender
- Constitution is an important functionary that protects the victims and the alleged
offender
- We mustn’t look at criminal procedure in a vacuum
- There are lots of societal issues affecting the prosecution of crime in SA like
backlogged courts and police resource allocation
How do you present evidence in a court of law? What is admissible evidence?
- Sometimes thinks that happen during the investigation can influence the
presentation of evidence
- Eg. If you assault someone during the investigation, that evidence may be admissible
if they made a confession during the investigation
What does criminal procedure cover?
- Duties and power of the prosecutorial authority – NPA – what can a prosecutor do,
which cases must they prosecute? Must they prosecute all cases?
- Duties and powers of the courts
- Duties and powers of police officers
- The rights of arrested people, suspects
- Pre-trial matters such as bail
- The course of the trial
- The role of the victim – the victim’s rights – often victims become the witness
Criminal procedure forms part of the larger criminal justice process and criminal justice
system
2
,- includes substantive criminal law, law of evidence, criminology, victimology, how victims
and offenders act and react, penology
- eg. Why do victims wait such a long time before reporting sexual assault? – they have
realized that it takes a lot of time
criminal procedure has 3 phases
eg. Tinder Swindler
Stage 1: victim would come forward and say she has
been defrauded by Simon. They may search his house,
car, cellphone. Do they need warrant to search? Can
they arrest with force? Will he get bail?
Stage 2: court has to present the case – elements of
criminal law. The court does not prove a case. The state
does. The court hears a matter and makes a conviction.
The court will make judgment – procedure differs if
someone has plead guilty, non-guilty etc.
Stage 3: if Simon is dissatisfied, he could have the
matter appealed or reviewed
Criminal procedure is double functional
- Regulates procedure and operates as a ground of justification
- If someone doesn’t operate within the dictates of these procedures or grounds of
justification they may face formal or substantive consequences
Example:
Mr Swindler property is being searched – it was unlawful
- Such an unlawful action conducted by police officer has formal consequences and
substantive consequences
Formal: could lead to an exclusion of all of the evidence found during the search and this
evidence is excluded at trial
- We don’t have a strict exclusionary rule – because the evidence was obtained
improperly doesn’t mean that it will be excluded
Substantive: claim for damages
- The accused will be able to claim for damages
Shashape v Minister of Police WHC
- Not prescribed
- Shashape went to music practice one day and got a call saying police were at her
house
- They had received an anonymous tip that she had stolen meat
- She returned to her house and they seized the meat
3
, - She asked why they were taking the meat into possession and how they would
match the meat to the particular livestock
- She received difficulties from this – her community saw this and now called her a
thief
- She sold CDs, did dance classes and music – people didn’t want to send children to
dance classes etc
- She approached the court to claim damages for wrongful search
- She was awarded R96K search for the unlawful search and there was no legal basis
to search her house
Tension between Crime Control and Due Process
- Packer “The Limits of the criminal Sanction” (1968)
- Handbook Ch1 para 2.1-2.3
- Public perceptions: “Constitution is pro-criminal”
- Historical context eg. “detention without trial”
- See para 2.2 [internal tensions]
Crime control model
- The criminal justice system is used to repress and control criminal conduct
- This model doesn’t really care about trial fairness and accused’s rights
Due process model
- Focuses on procedure
- Treatment of the accused person and the procedures being done properly – with
respect of all the persons involved – especially so the accused person
- Up until sentenced guilty – they are innocent and must be treated so
Legal innocence and factual innocence
- Someone may have killed someone but were they legally responsible for it
- Eg. Oscar killed Reeva but was he legally responsible
No modern system is one system
- We have an affective, substantive criminal law system
- The enforcement is lacking
- We also have big attention and consciousness in due process to accused persons
In SA we have crime control model and due process model
Public perceptions
- “The constitution is pro-criminal” – we must remember the historical context of SA –
in Apartheid, people were thrown into prison without due process, laws were made
overnight to convict people
Fair trial rights – large part of the BoR
Constitution is not pro criminal it is pro-humanity -> believes in treating all humans as
equally as possible. People often treat criminal as less than
4
