Law of Criminal Procedure
Definition of crim proc
Regulates duties and powers of criminal courts and prosecutorial authority
Duties and powers of police
Rights of suspects and arrested and accused persons
Pre-trial procedural matters
Bail, pleading, the course of criminal trial and trial rights and duties of
prosecution and defence
Verdict, sentencing, post-trial remedies and executive action
Substantive law – legal rules determining the rights and duties of individuals and
state
Public and private law part of substantive law
Substantive criminal law – determines prerequisites for criminal liability
(unlawfulness / fault) and attaches sanction
Adjectival law
Puts substantive criminal law into action
Rules of criminal procedure
State has to enforce criminal law (hold people liable)
Has to be in line with constitution
s35(3) – fair trial
s35(5) – evidence gained in unconstitutional way, court may exclude it
SA public law divided into 2:
Substantive law - criminal law
Formal law (machinery used to enforced the law) – law of evidence + law of
criminal procedure
Need search warrant, otherwise violates right to privacy
Need warrant for arrest, otherwise violation of bodily integrity
Criminal procedure divided into 3 phases
1. Pre-trial: complain / arrest / investigation / bail
2. Trial: Court hears case / judgment
Discharged – art 174, S v Dewani 2014
3. Post-trial: appeal / review
Double functionality of Law of Crim Proc
Not only regulates crim proc, but operates as ground of justification
When arresting someone, you violate their dignity and bodily integrity
Crim proc ensures policeman cannot be accused of assault when arresting
someone – ground of justification
The infringement (e.g. searching someone’s house) is both a regular procedural
action and a lawful limitation of suspect’s rights
Search was illegal if not permitted by the law of criminal procedure
When someone acts outside of law of crim proc, they cannot rely on ground of
justification
1
, 2 consequences:
Formal consequences – exclusion of evidence
Substantive consequence – claim form damages
Shashape v The Minister of Police 2020
Police receive tip miss Shashape received mysterious meat
Was a stock theft previous night
Police took her meat, and community thought she was theft
She was performer and could not get job because of tarnished reputation
Got R96000 damages from state for loss of income
Tension between crime control and due process
Two models of criminal procedure
Prescribed article
Packer “The limits of the criminal sanction”
We want to stop crime, but must do so in line with crim proc
Crime control must take place in line with due process (balance)
Crime control does not take crime rights / police treatment of criminals into
account
Crime control POD: Packer – the value system underlying Crime Control Model is
based on proposition that repression of criminal conduct is most important function
to be performed by criminal process
Due Process POD: Primary function of criminal justice system is to ensure that
results (conviction and sentence) are achieved in terms of rules that recognises
individual’s rights
Due process focusses on how criminals are treated throughout criminal justice
process
Bill of Rights places limitations on official power
Due process demands that there must be practical limitations on state powers
Section 35(5) of Constitution – evidence obtained in manner that violates human
right must be excluded if admission of evidence would render trial unfair /
detrimental to justice
Internal tensions:
1. Cannot assume that strict criminal procedural rules will only be applied to criminals
Innocent people may also get drawn into system
2. Liberty of innocent individual should not be sacrificed to increase efficiency of crime
control
Could also risk acquitting the guilty if taken too far
3. If State had absolute powers, it would curb criminality, but society would live under
tyranny
If rights of individual were absolute, state would have no power, and society
would also suffer
4. Crim proc rules regulate state power positively (authorising police to do something)
and in a negative sense (limitation to their authority)
2
,5. Conflict between rights of accused and rights of victim
Introduction
Victims are often relegated to the status of witnesses
Victims’ rights - Four models of criminal process
2 new models emerged
1. Punitive model of victim’s rights
In line with crime control – assures that enactment of criminal law,
prosecution and punishment controls crime
victim want their justice
2. Non-punitive model of victim’s rights
Focus on restorative justice
Process outside formal criminal justice system
Child Justice Act 75 of 2008
Children below certain age – not court system, rather mediation
Involves child offender, victim, families concerned, and members of
community
Victim Participation
(everything in block important, notes are additional information)
Don’t need to know entire provision, just know e.g. section 105
S 300 – victim must be consulted where court makes compensation order
Usually in cases of theft
E.g. ex boyfriend stole your TV and failed to return – court can order person to
pay value of TV
3
, S 179 – Prosecution must consult victim in decision to prosecute
National Prosecuting Authority has no duty to prosecute a crime
Reasons not to prosecute:
Lack of evidence
Might be diplomat from abroad, difficult to charge
Service Charter
Standard for treating victims of crimes
States what rights they have – no absolute right to be heard
Para 21(3) of Instruction on Sexual Offences
Victim is entitled to be heard through Impact Statement
E.g. if they had PTSD and could not work afterwards
Mhlongo case – court obliged to request impact statement
Section 299A CPA
When defenders on parole – released from prison on certain provisions /
conditions
Victim has right to testify at parole hearing
Deceased victim – family testifies
S 7 – Private prosecution
Director of Public Prosecution does not want to prosecute
Victim can institute private prosecution under certain circumstances
Witness participation
S 153 – witness in separate room (often anonymously)
Often child witnesses / victims of sexual violence
Can be done if seems likely harm will occur to witness
S 158 – includes Zoom or Teams
4
Definition of crim proc
Regulates duties and powers of criminal courts and prosecutorial authority
Duties and powers of police
Rights of suspects and arrested and accused persons
Pre-trial procedural matters
Bail, pleading, the course of criminal trial and trial rights and duties of
prosecution and defence
Verdict, sentencing, post-trial remedies and executive action
Substantive law – legal rules determining the rights and duties of individuals and
state
Public and private law part of substantive law
Substantive criminal law – determines prerequisites for criminal liability
(unlawfulness / fault) and attaches sanction
Adjectival law
Puts substantive criminal law into action
Rules of criminal procedure
State has to enforce criminal law (hold people liable)
Has to be in line with constitution
s35(3) – fair trial
s35(5) – evidence gained in unconstitutional way, court may exclude it
SA public law divided into 2:
Substantive law - criminal law
Formal law (machinery used to enforced the law) – law of evidence + law of
criminal procedure
Need search warrant, otherwise violates right to privacy
Need warrant for arrest, otherwise violation of bodily integrity
Criminal procedure divided into 3 phases
1. Pre-trial: complain / arrest / investigation / bail
2. Trial: Court hears case / judgment
Discharged – art 174, S v Dewani 2014
3. Post-trial: appeal / review
Double functionality of Law of Crim Proc
Not only regulates crim proc, but operates as ground of justification
When arresting someone, you violate their dignity and bodily integrity
Crim proc ensures policeman cannot be accused of assault when arresting
someone – ground of justification
The infringement (e.g. searching someone’s house) is both a regular procedural
action and a lawful limitation of suspect’s rights
Search was illegal if not permitted by the law of criminal procedure
When someone acts outside of law of crim proc, they cannot rely on ground of
justification
1
, 2 consequences:
Formal consequences – exclusion of evidence
Substantive consequence – claim form damages
Shashape v The Minister of Police 2020
Police receive tip miss Shashape received mysterious meat
Was a stock theft previous night
Police took her meat, and community thought she was theft
She was performer and could not get job because of tarnished reputation
Got R96000 damages from state for loss of income
Tension between crime control and due process
Two models of criminal procedure
Prescribed article
Packer “The limits of the criminal sanction”
We want to stop crime, but must do so in line with crim proc
Crime control must take place in line with due process (balance)
Crime control does not take crime rights / police treatment of criminals into
account
Crime control POD: Packer – the value system underlying Crime Control Model is
based on proposition that repression of criminal conduct is most important function
to be performed by criminal process
Due Process POD: Primary function of criminal justice system is to ensure that
results (conviction and sentence) are achieved in terms of rules that recognises
individual’s rights
Due process focusses on how criminals are treated throughout criminal justice
process
Bill of Rights places limitations on official power
Due process demands that there must be practical limitations on state powers
Section 35(5) of Constitution – evidence obtained in manner that violates human
right must be excluded if admission of evidence would render trial unfair /
detrimental to justice
Internal tensions:
1. Cannot assume that strict criminal procedural rules will only be applied to criminals
Innocent people may also get drawn into system
2. Liberty of innocent individual should not be sacrificed to increase efficiency of crime
control
Could also risk acquitting the guilty if taken too far
3. If State had absolute powers, it would curb criminality, but society would live under
tyranny
If rights of individual were absolute, state would have no power, and society
would also suffer
4. Crim proc rules regulate state power positively (authorising police to do something)
and in a negative sense (limitation to their authority)
2
,5. Conflict between rights of accused and rights of victim
Introduction
Victims are often relegated to the status of witnesses
Victims’ rights - Four models of criminal process
2 new models emerged
1. Punitive model of victim’s rights
In line with crime control – assures that enactment of criminal law,
prosecution and punishment controls crime
victim want their justice
2. Non-punitive model of victim’s rights
Focus on restorative justice
Process outside formal criminal justice system
Child Justice Act 75 of 2008
Children below certain age – not court system, rather mediation
Involves child offender, victim, families concerned, and members of
community
Victim Participation
(everything in block important, notes are additional information)
Don’t need to know entire provision, just know e.g. section 105
S 300 – victim must be consulted where court makes compensation order
Usually in cases of theft
E.g. ex boyfriend stole your TV and failed to return – court can order person to
pay value of TV
3
, S 179 – Prosecution must consult victim in decision to prosecute
National Prosecuting Authority has no duty to prosecute a crime
Reasons not to prosecute:
Lack of evidence
Might be diplomat from abroad, difficult to charge
Service Charter
Standard for treating victims of crimes
States what rights they have – no absolute right to be heard
Para 21(3) of Instruction on Sexual Offences
Victim is entitled to be heard through Impact Statement
E.g. if they had PTSD and could not work afterwards
Mhlongo case – court obliged to request impact statement
Section 299A CPA
When defenders on parole – released from prison on certain provisions /
conditions
Victim has right to testify at parole hearing
Deceased victim – family testifies
S 7 – Private prosecution
Director of Public Prosecution does not want to prosecute
Victim can institute private prosecution under certain circumstances
Witness participation
S 153 – witness in separate room (often anonymously)
Often child witnesses / victims of sexual violence
Can be done if seems likely harm will occur to witness
S 158 – includes Zoom or Teams
4
