CPR3701 Assignment 02 Due date: 28 June 2021
Unique number: 645023 Student number: 55612792 Ashleigh Hala
Question 1
The following discussion will look at the burden and standard of proof as well as
the proof of previous convictions during the course of a bail application.
The burden and standard of proof
Firstly, when discussing the burden and standard of proof during the course of a
bail application, sections 60(11)(a) and (b) of the Criminal Procedure Act 51 of
1977 will be consulted. As provided for in section 60(11)(a) and (b), the accused
bears the burden of proof, with the burden of proof being on a balance of
probabilities.
Section 60(11)(a) is a constitutional provision, even though it places a burden of
proof (formal onus) on the accused to provide evidence that exceptional
circumstances are present, and that the ‘interests of justice’ permit the release of
the accused and that bail should be granted.1 Although these ‘exceptional
circumstances’ in section 60(11)(a) limit section 35(1)(f) of the Constitution, the
case of Dlamini etc found it to be a constitutionally permissible limitation in terms
of the limitation provisions provided in section 36 of the Constitution2.
The constitutionality of section 60(11)(b) has not been investigated in case law
thus far and this section does not include the ‘exceptional circumstances’ limitation
as section 60(11)(a) does. This means that a bail application under section
60(11)(a) is a far more intrusive test of the accused’s right to freedom than that of
section 60(11)(b).3
Proof of previous convictions
As seen in the cases of Patel 1970 (3) SA 565 (W), Ho 1979 (3) SA 734 (W) and
Attorney-General, Zimbabwe v Phiri 1988 (2) SA 696, previous convictions during
the course of a bail application may be proved by the state,4 unlike in the case of
normal criminal proceedings.
1
Joubert, J.J., Ally, D., Kemp, G.P., Mokoena, M.T., Swanepoel, J.P., Terblanche, S.S. & Van der Merwe, S.E.
2020. Criminal Procedure Handbook. 13th ed. Cape Town: Juta. (234).
2
Joubert 2020 (234).
3
Joubert 2020 (234).
4
Joubert 2020 (231).
, CPR3701 Assignment 02 Due date: 28 June 2021
Unique number: 645023 Student number: 55612792 Ashleigh Hala
In terms of section 60(11B)(a)(i)5, the accused or his or her legal advisor are
compelled to inform the court as to whether the accused has previously been
convicted of an offence.6 Section 60(11B)(a)(ii)7 provides that the accused or his
or her legal adviser must disclose to the court whether the accused has any
charges pending against him or her, as well as whether the accused has been
released on bail pending these charges.8 Section 60(11B)(b)9 then requires the
accused to declare whether he or she confirms the information put forward by the
legal representative. It is imperative that the accused abides by the provisions laid
out in section 60(11B)(a), as failing to comply with this results in the committing of
an offence, making the accused liable on conviction to a fine or imprisonment for
not more than two years, as stated in section 60(11B)(d)(i)10.
Factors such as where the accused is on parole for a previous offence or is aware
that he or she has provided false information to the court at a bail application, will
be taken into consideration by the court when deciding on whether to grant bail to
the accused or not. This is provided for in section 60(5)(b) and (c)11 and must be
considered by the court along with section 60(4)(a)12 in order to establish whether
the accused should be released on bail.13
Question 2
Determining whether a charge has sufficient detail or not is subjective, however,
section 84(1) of the Criminal Procedure Act 51 of 1977 provides guidelines
regarding which details should be included and contains a provision in section 86
and 88 of the Criminal Procedure Act 51 of 1977, allowing for the courts to secure
a conviction in cases where details are excluded and where a charge does not
accurately state the offence committed.
5
Criminal Procedure Act 51 of 1977.
6
Joubert 2020 (231).
7
Criminal Procedure Act 51 of 1977.
8
Joubert 2020 (231).
9
Criminal Procedure Act 51 of 1977.
10
Criminal Procedure Act 51 of 1977.
11
Criminal Procedure Act 51 of 1977.
12
Criminal Procedure Act 51 of 1977.
13
Joubert 2020 (231).
Unique number: 645023 Student number: 55612792 Ashleigh Hala
Question 1
The following discussion will look at the burden and standard of proof as well as
the proof of previous convictions during the course of a bail application.
The burden and standard of proof
Firstly, when discussing the burden and standard of proof during the course of a
bail application, sections 60(11)(a) and (b) of the Criminal Procedure Act 51 of
1977 will be consulted. As provided for in section 60(11)(a) and (b), the accused
bears the burden of proof, with the burden of proof being on a balance of
probabilities.
Section 60(11)(a) is a constitutional provision, even though it places a burden of
proof (formal onus) on the accused to provide evidence that exceptional
circumstances are present, and that the ‘interests of justice’ permit the release of
the accused and that bail should be granted.1 Although these ‘exceptional
circumstances’ in section 60(11)(a) limit section 35(1)(f) of the Constitution, the
case of Dlamini etc found it to be a constitutionally permissible limitation in terms
of the limitation provisions provided in section 36 of the Constitution2.
The constitutionality of section 60(11)(b) has not been investigated in case law
thus far and this section does not include the ‘exceptional circumstances’ limitation
as section 60(11)(a) does. This means that a bail application under section
60(11)(a) is a far more intrusive test of the accused’s right to freedom than that of
section 60(11)(b).3
Proof of previous convictions
As seen in the cases of Patel 1970 (3) SA 565 (W), Ho 1979 (3) SA 734 (W) and
Attorney-General, Zimbabwe v Phiri 1988 (2) SA 696, previous convictions during
the course of a bail application may be proved by the state,4 unlike in the case of
normal criminal proceedings.
1
Joubert, J.J., Ally, D., Kemp, G.P., Mokoena, M.T., Swanepoel, J.P., Terblanche, S.S. & Van der Merwe, S.E.
2020. Criminal Procedure Handbook. 13th ed. Cape Town: Juta. (234).
2
Joubert 2020 (234).
3
Joubert 2020 (234).
4
Joubert 2020 (231).
, CPR3701 Assignment 02 Due date: 28 June 2021
Unique number: 645023 Student number: 55612792 Ashleigh Hala
In terms of section 60(11B)(a)(i)5, the accused or his or her legal advisor are
compelled to inform the court as to whether the accused has previously been
convicted of an offence.6 Section 60(11B)(a)(ii)7 provides that the accused or his
or her legal adviser must disclose to the court whether the accused has any
charges pending against him or her, as well as whether the accused has been
released on bail pending these charges.8 Section 60(11B)(b)9 then requires the
accused to declare whether he or she confirms the information put forward by the
legal representative. It is imperative that the accused abides by the provisions laid
out in section 60(11B)(a), as failing to comply with this results in the committing of
an offence, making the accused liable on conviction to a fine or imprisonment for
not more than two years, as stated in section 60(11B)(d)(i)10.
Factors such as where the accused is on parole for a previous offence or is aware
that he or she has provided false information to the court at a bail application, will
be taken into consideration by the court when deciding on whether to grant bail to
the accused or not. This is provided for in section 60(5)(b) and (c)11 and must be
considered by the court along with section 60(4)(a)12 in order to establish whether
the accused should be released on bail.13
Question 2
Determining whether a charge has sufficient detail or not is subjective, however,
section 84(1) of the Criminal Procedure Act 51 of 1977 provides guidelines
regarding which details should be included and contains a provision in section 86
and 88 of the Criminal Procedure Act 51 of 1977, allowing for the courts to secure
a conviction in cases where details are excluded and where a charge does not
accurately state the offence committed.
5
Criminal Procedure Act 51 of 1977.
6
Joubert 2020 (231).
7
Criminal Procedure Act 51 of 1977.
8
Joubert 2020 (231).
9
Criminal Procedure Act 51 of 1977.
10
Criminal Procedure Act 51 of 1977.
11
Criminal Procedure Act 51 of 1977.
12
Criminal Procedure Act 51 of 1977.
13
Joubert 2020 (231).
