Cpr3701 Assignment 1 Feedback

CPR3701 ASSIGNMENT 1 FEEDBACK A Magistrate Court has Jurisdiction, the Magistrate Court may make an extradition order directly, provided that all requirements have been met, this is only to an African State. When a foreign country is involved the findings of the Magistrate will first be referred to the Minister of Justice for his decision.1 (b) In terms of extradition agreements certain corresponding principles is considered: i. With regards to serious crimes or double criminality, extradition will be granted, and the crimes committed must be punishable in terms of the law on both sides. ii. A person will not be extradited if it is one of a political nature. iii. The person is only tried to the crime that person is extradited for, except if the state who extradited him consents to the new charge. iv. Extradition will be refused in terms of the death penalty, in the case of S v Makwanyane 1995 (3) SA 391 (CC) the court held “that the death penalty constitutes inhuman and degrading treatment, and that it cannot stand constitutional muster.”2 If one state enforces the death penalty and the other state does not, the extradition will not be granted. v. Extradition agreements usually contains a ne bis idem rule (meaning "not twice in the same [thing]", is a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action) which corresponds with pleas of autrefois acquit (meaning a plea by a person indicted for a crime for which he or she had previously been tried and acquitted) and autrefois convict (meaning is a plea made by a defendant in a case when s/he is indicted for a crime or misdemeanour. By this plea, a defendant can claim that s/he was charged of the same crime under substantially same facts). (c) In Criminal Procedure handbook it was held by JJ Joubert that “In terms of International law principles, every government of a state has authority of everything that’s happening within their borders, and therefore has the right to try crimes which was committed 1 Joubert JJ (ed) Criminal Procedure Handbook 12th edition (2016) Juta Cape Town 2 S v Makwanyane 1995 (3) SA 391 (CC) within their area of jurisdiction. Generally speaking, it has not power to punish persons who have committed crimes in the area of jurisdiction within another state. Therefore, where a person commits a crime in one state and flees to another state and then fails to return of his own accord in an attempt to escape the consequences of his act, the state where the crime was committed is powerless to act. Extradition makes provision for such person to be extradited to the state whose area of jurisdiction the crime was committed.” In terms of Section 40(1)(k) of the CPA, (1) A peace officer may without warrant arrest any person - who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic; Question 2 1) If any person is charged with any offence, which was committed in another province but within four kilometres beyond the boundary of the particular area. This is known as the 4-kilometre rule.3 Where any person is charged with any offence: i. Committed within 4 kilometres beyond the boundary of the district or regional division4 , or ii. In or upon any vehicle on a journey within 4 kilometres of the district or regional division5 , or 3 Section 90 of the Criminal Procedure Act 51 of 1977 4 Section 90(2)(a) of the Criminal Procedure Act 51 of 1977 5 Section 90(2)(b) of the Criminal Procedure Act 51 of 1977 iii. On board any vessel or a journey upon any river or part thereof6 , or iv. On board any vessel within the territorial water of the republic7 ; v. Begun or completed within the district or within the regional division, such person may be tried by the court of the district or the regional division, as if he had been charged with an offence committed within the district or regional division respectively.8 vi. If any court is uncertain in which jurisdictions the offences was committed, it may be tried in any of such jurisdictions.9 vii. A person charged with an offence, wherein any act, omission or event which an element of the offence took place, may be tried by the court of any district or regional division.10 viii. A person charged with theft of property in any nature, may be tried by the court of any district or of any regional division, wherein he has or had part of the property in his possession.11 ix. A person charged with kidnapping, child-stealing or abduction, can be tried by the court of any district or of any regional division.12 x. Where by any special provision of the law a Magistrate Court has jurisdiction of an offence committed beyond local limits of the district or regional division, such court will not be deprived of such jurisdiction by any of the provisions of section 90 of the CPA.13 xi. Where an accused is alleged to have committed various offences within various jurisdictions, the Attorney-general concerned may in writing, direct the criminal procedure in respect of such various offences be commenced in the of any particular district within his area of jurisdiction, so the court will act on the offences as if it was committed within that court’s jurisdiction.