CRIMINAL
PROCEDURE
CPR3701
ASSESSMENT 2 FEEDBACK
SUPER SEMESTER 2021
, CRIMINAL PROCEDURE
CPR3701
STUDENT NUMBER :
ASSESSMENT NUMBER : 02
SEMESTER : SUPER
YEAR : 2021
QUESTION 1
The standard of proof required from an accused where he bears the burden of proof
as provided for in subsecs 60(11)(a) and 60(11)(b), is the civil standard, namely proof
of balance and probability. In all cases falling outside the ambit of subsecs 6-(11)(a)
and 60(11)(b), the burden of proof is on the prosecution. The standard of proof is
proof on a balance of probability. Proof beyond a reasonable doubt is not necessary
because guilt or innocence in respect of the charge is not the issue. Section 25(2)(d) of
the interim Constitution provided that every person arrested for the alleged
commission of an offence shall, in addition to the rights which he has as a detained
person, have the right ‘to be released with or without bail, unless the interests of
justice require otherwise’. This former constitutional provision—which is echoed by s
60(1)(a) of the Act—placed the burden of proof on the state. It is submitted that s
35(1)(f) of the new Constitution has not altered the position.
Previous convictions may be proved by the state in the course of a bail application –
Patel 1970 (3) SA 565 (W) at 566B-C; Ho 1979 (3) SA 734 (W); Attorney-General,
Zimbabwe v Phiri 1988 (2) SA 696 (ZHC); Mdleleni 1992 SACJ 197. The accused or
his legal adviser is also compelled to inform the court whether the accused has
previously been convicted of an offence – s 60(11B)(a)(i). Any charges pending
against the accused must also be disclosed by him or his legal representative and there
is also a duty to inform the court whether the accused has been released on bail
pending those charges – s 60(11B)(a)(ii). Where the legal representative submits the
required information, whether in writing or orally, the accused shall be required by
court to declare whether he confirms such information or not – s 60(a11B)(b).
An accused who wilfully fails or refuses to comply with the provisions of s 60(11B)
(a) commits an offence and is liable on conviction to a fine or to imprisonment for a
period not exceeding two years—s 60(11B)(d)(i). The same applies to an accused
who wilfully furnishes false information—s 60(11B)(d)(ii). It is submitted that the
offences referred to in s 60(11B)(d) may not be tried summarily.
The fact that an accused is on parole or knowingly supplied false information at the
bail proceedings may be taken into account in determining the issue of release on bail
—s 60(5) (b) and s 60(5)(c) read with s 60(4)(a).
QUESTION 2
Section 84(1) of the CPA states that ‘a charge shall set forth the relevant offence in
such manner and with such particulars as to the time and place at which the offence is
alleged to have been committed and the person, if any, against whom and the
property, if any, in respect of which the offence is alleged to have been committed, as
PROCEDURE
CPR3701
ASSESSMENT 2 FEEDBACK
SUPER SEMESTER 2021
, CRIMINAL PROCEDURE
CPR3701
STUDENT NUMBER :
ASSESSMENT NUMBER : 02
SEMESTER : SUPER
YEAR : 2021
QUESTION 1
The standard of proof required from an accused where he bears the burden of proof
as provided for in subsecs 60(11)(a) and 60(11)(b), is the civil standard, namely proof
of balance and probability. In all cases falling outside the ambit of subsecs 6-(11)(a)
and 60(11)(b), the burden of proof is on the prosecution. The standard of proof is
proof on a balance of probability. Proof beyond a reasonable doubt is not necessary
because guilt or innocence in respect of the charge is not the issue. Section 25(2)(d) of
the interim Constitution provided that every person arrested for the alleged
commission of an offence shall, in addition to the rights which he has as a detained
person, have the right ‘to be released with or without bail, unless the interests of
justice require otherwise’. This former constitutional provision—which is echoed by s
60(1)(a) of the Act—placed the burden of proof on the state. It is submitted that s
35(1)(f) of the new Constitution has not altered the position.
Previous convictions may be proved by the state in the course of a bail application –
Patel 1970 (3) SA 565 (W) at 566B-C; Ho 1979 (3) SA 734 (W); Attorney-General,
Zimbabwe v Phiri 1988 (2) SA 696 (ZHC); Mdleleni 1992 SACJ 197. The accused or
his legal adviser is also compelled to inform the court whether the accused has
previously been convicted of an offence – s 60(11B)(a)(i). Any charges pending
against the accused must also be disclosed by him or his legal representative and there
is also a duty to inform the court whether the accused has been released on bail
pending those charges – s 60(11B)(a)(ii). Where the legal representative submits the
required information, whether in writing or orally, the accused shall be required by
court to declare whether he confirms such information or not – s 60(a11B)(b).
An accused who wilfully fails or refuses to comply with the provisions of s 60(11B)
(a) commits an offence and is liable on conviction to a fine or to imprisonment for a
period not exceeding two years—s 60(11B)(d)(i). The same applies to an accused
who wilfully furnishes false information—s 60(11B)(d)(ii). It is submitted that the
offences referred to in s 60(11B)(d) may not be tried summarily.
The fact that an accused is on parole or knowingly supplied false information at the
bail proceedings may be taken into account in determining the issue of release on bail
—s 60(5) (b) and s 60(5)(c) read with s 60(4)(a).
QUESTION 2
Section 84(1) of the CPA states that ‘a charge shall set forth the relevant offence in
such manner and with such particulars as to the time and place at which the offence is
alleged to have been committed and the person, if any, against whom and the
property, if any, in respect of which the offence is alleged to have been committed, as
