1
Unit 1 – a basic understanding of criminal procedure
Distinguish between the accusatorial and inquisitorial systems of law. To which
system does South Africa essentially adhere? (6)
Accusatorial and Inquisitorial procedures
➢ Difference between the two procedures lies in the functions of the parties.
Accusatorial Procedure:
• e.g. Anglo-American systems and SA (although witness can be called by the judge and
procedure of questioning contains inquisitorial elements)
• Judge is in the role of detached umpire who should not enter the argument between the
prosecution and defence for fear of becoming partial or loosing perspective.
• Police primary investigative force passing evidence to prosecutor in file format who then
becomes the dominus litis.
• Prosecution decides on appropriate charges, court etc.
• Trial is in the form of a contest between two theoretically equal parties.
Inquisitorial Procedure:
• e.g. France
• Judge is master of proceedings (dominus litis) – he actively conduct | controls the search for
the truth by dominating the questions of witnesses | accused.
• After arrest: accused questioned by judge not police.
• In trial judge primarily does the questioning and not the counsel for defense
Do you agree with the following statement and, if so, why? The presumption of innocence principle is the
cornerstone of constitutionalism. If this principle is not upheld at all costs in criminal procedure law and the
law of evidence in South Africa, then the law in these categories could be classified as a ``crime control model''.
Crime Control Model
• Regards the repression of criminal conduct as the most important function of criminal procedure.
Due Process Model
• Regards the adherence to rules which duly and properly acknowledge individual rights at every stage
of the criminal process as the only ground on which a conviction and sentence can be secured.
Supported by the Bill of Rights.
Criticism – tends to neglect the right of victims of crime and law abiding citizens in favour of the rights of the
accused as a result truth seeking suffers.
• Both models do not exclude each other, and no existing system of criminal procedure consists of only
one model.
Discussion and description of the presumption of innocence applied in the law of criminal procedure
• Criminal procedure does not deal with the detection, investigation and prosecution of criminals,
but of suspects (not yet charged) and Accused (charged).
➢ The presumption of innocence & legal guilt:
• Due to the Presumption of innocence every person is innocent until:-
• Convicted by a court of law in compliance with the rules of evidence & criminal procedure.
• Conviction is an objective and impartial pronouncement proving legal guilt in accordance with
the principle of legality.
• Factual or moral guilt is not the same as legal guilt, conviction in any other way except legally
may amount to vigilantism, mob trials and even anarchy.
➢ The presumption of innocence as a statement of the prosecution’s burden of proof:
• Prosecution to prove every element of the crime. If a single element is not proved beyond a
reasonable doubt the accused cannot be convicted.
• The onus of proof rests on the prosecution who must prove guilt beyond a reasonable doubt.
• If the State does succeed in proving a prima facie case and the accused does nothing to disturb
that case, prima facie proof may harden into proof beyond reasonable doubt and the accused
Page 1 of 53
,2
may be convicted because there is nothing which produces a doubt in the court’s mind about
the guilt of the accused.
• If the accused can make the court doubt reasonably that one of the required elements has
been proved, he must be acquitted.
• Even if the State’s version is more probable than the accused’s, he will be acquitted if there is a
reasonable possibility that his version may be true and it is not even necessary for the court to
believe the accused.
➢ The presumption of innocence and the nature of the alleged crime:
• Neither the prevalence nor offensiveness of the crime can disrupt the presumption of
innocence.
• Not convicting an innocent person far outweighs the public interest of bringing the perpetrators
to justice.
• In Coetzee the Constitutional Court held, inter alia that the more serious the crime and greater
the public interest in securing a conviction of the guilty the more important do constitutional
protections of the accused become.
The right to silence
• Accused can never be forced to testify, he has the right to silence – privilege against self-incrimination.
• Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a
confession or admission which could be used in evidence against him. As well as the right to remain
silent & not to testify during the proceedings.
• The root of this is that the subject is a full legal subject and not merely an object of enquiry.
• A full legal subject is entitled to participate in his trial according to his own autonomous decisions and
to be assisted. He cannot be tried if he is mentally unable to understand enough to participate
meaningfully & communicate with his lawyer.
• Many of the rights of accused persons can be traced to
• The presumption of innocence
• The status of the accused as a legal subject.
• Coupled with the notion of legality, that the state is not absolute but limited to the
rule of law.
• No adverse inference should be drawn against his decision to remain silent or not to testify as
1. he may think that the state is weak and does not merit an answer or the court cannot be
trusted
2. if an element of crime has not been covered by prima facie proof the nothingness of the
accused’s silence cannot logically fill the gap of the state’s case.
• May cause the conviction where the state has proved a prima facie case and the accused has
remained silent, then the state’s evidence is uncontroverted and becomes proof beyond a reasonable
doubt as the silence of the defence did not ‘disturb’ the state’s case.
Constitutionalism in the light of what the ``rule of law'' and the legality principle require in a constitutional
state, for example that juridical guilt is important in a constitutional state. This means that it is not important to
secure a verdict of guilty at any cost and by any means whatsoever, but that it is imperative that the rules of
evidence and criminal procedure law be complied with according to the entrenched rights in the Constitution.
It also means that the burden of proof generally falls on the state to prove the guilt of the accused beyond
reasonable doubt; that if a legal provision shifts the burden of proof to the accused, then the restriction of the
constitutional
right of the accused to be deemed innocent until proven guilty must comply with the limiting provisions of
section 36 of the Constitution, namely that the restriction must be reasonable and justifiable as in an open and
democratic society based on the principles of human dignity, equality and freedom, taking due account of
factors such as the nature of the law, the importance and purpose of the restriction, the nature and extent of
the restriction, and whether there is a less restrictive way of achieving the set purpose. A practical example of
such a curtailment of the presumption can be found in the inverse or reversed burden of proof in the case of
applications
for bail for Schedule 6 offences as contemplated in section 60 (11) of the Criminal Procedure Act, where the
accused has to convince the court that unusual circumstances exist under which it is justifiable in the interests
of justice that the accused should be released although facing a serious charge. It can be said, therefore, that
where bail applications relating to certain serious offences are concerned, South Africa espouses the ``crime
control'' model in the interests of justice. The different criteria of proof required for each
stage/phase/component may also have an impact on assessment of the type of model.
Page 2 of 53
,3
What are the rights of the arrested suspect and the accused?
Section 35 of Constitution - Arrested, detained and accused persons
(1) Everyone who is arrested for allegedly committing an offence has the right-
(a) to remain silent;
(b) to be informed promptly-
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in
evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than -
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours
expire outside ordinary court hours or on a day which is not an ordinary court
day;
(e) at the first court appearance after being arrested, to be charged or to be informed of
the reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to reasonable
conditions.
(3) Every accused person has a right to a fair trial, which includes the right-
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national
or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has
previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information must be
given in a language that the person understands.
(5)Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.
What is meant by the statement that criminal procedure is a system?
Criminal procedure functions as part of a system which is referred to as the criminal justice system.
Page 3 of 53
, 4
Criminal Justice consists of criminal procedure, substantive criminal law, law of evidence in criminal
proceedings, law of sentencing and related disciplines and the law governing prisoners and prisons.
The common binding factor between the aforementioned branches of law is that they deal primarily with
crime and its perpetrators and form a coherent whole in order to ensure that there is, in the interests of
society, firm but fair enforcement of the rules of substantive law in accordance with constitutional and all other
legal requirements.
Write notes on the contents and meaning of the privilege against self-incrimination (right to silence). (5)
The right to silence
• Accused can never be forced to testify, he has the right to silence – privilege against self-incrimination.
• Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a
confession or admission which could be used in evidence against him. As well as the right to remain
silent & not to testify during the proceedings.
• The root of this is that the subject is a full legal subject and not merely an object of enquiry.
• A full legal subject is entitled to participate in his trial according to his own autonomous decisions and
to be assisted. He cannot be tried if he is mentally unable to understand enough to participate
meaningfully & communicate with his lawyer.
• Many of the rights of accused persons can be traced to
• The presumption of innocence
• The status of the accused as a legal subject.
• Coupled with the notion of legality, that the state is not absolute but limited to the
rule of law.
• No adverse inference should be drawn against his decision to remain silent or not to testify as
3. he may think that the state is weak and does not merit an answer or the court cannot be
trusted
4. if an element of crime has not been covered by prima facie proof the nothingness of the
accused’s silence cannot logically fill the gap of the state’s case.
1.a. Name and discuss the remedies available to a suspect, arrested or accused person against any
infringement or pending infringement of his or her fundamental rights.
➢ The rights of the suspect are maintained and state official encouraged to conform to the principle of
legality by sanctions ranging from informal social sanctions to formal legal sanctions.
1. The writ of habeas corpus (interdictum de libero homine exhibendo):
1. Remedy to obtain judicial review of police action – protecting the subject against unlawful
deprivation of his liberty.
2. Court asked for order that the respondent produce the detainee before the court at a
certain date.
3. Order coupled with a rule nisi that the respondent must show reason why the detainee
should not be released.
4. Prima facie reasons for believing the detention is wrongful must be adduced.
5. The application heard by single judge in civil court & preference on roll.
6. Application may be made ex parte.
7. The return date is set as early as possible may be same day.
2. Civil Action for damages
1. e.g. on the grounds of wrongful arrest.
2. A delictual liability which may be used by suspects for compensation of abuse which they
suffered.
3. The interdict:
1. An order of court whereby a person is prohibited from acting a certain way.
2. to limit or prevent harm or damage.
3. May be obtained where harm has not occurred but is threatening.
4. May be employed during criminal proceedings to obtain relief for e.g. detainees.
4. Mandamus:
Page 4 of 53
Unit 1 – a basic understanding of criminal procedure
Distinguish between the accusatorial and inquisitorial systems of law. To which
system does South Africa essentially adhere? (6)
Accusatorial and Inquisitorial procedures
➢ Difference between the two procedures lies in the functions of the parties.
Accusatorial Procedure:
• e.g. Anglo-American systems and SA (although witness can be called by the judge and
procedure of questioning contains inquisitorial elements)
• Judge is in the role of detached umpire who should not enter the argument between the
prosecution and defence for fear of becoming partial or loosing perspective.
• Police primary investigative force passing evidence to prosecutor in file format who then
becomes the dominus litis.
• Prosecution decides on appropriate charges, court etc.
• Trial is in the form of a contest between two theoretically equal parties.
Inquisitorial Procedure:
• e.g. France
• Judge is master of proceedings (dominus litis) – he actively conduct | controls the search for
the truth by dominating the questions of witnesses | accused.
• After arrest: accused questioned by judge not police.
• In trial judge primarily does the questioning and not the counsel for defense
Do you agree with the following statement and, if so, why? The presumption of innocence principle is the
cornerstone of constitutionalism. If this principle is not upheld at all costs in criminal procedure law and the
law of evidence in South Africa, then the law in these categories could be classified as a ``crime control model''.
Crime Control Model
• Regards the repression of criminal conduct as the most important function of criminal procedure.
Due Process Model
• Regards the adherence to rules which duly and properly acknowledge individual rights at every stage
of the criminal process as the only ground on which a conviction and sentence can be secured.
Supported by the Bill of Rights.
Criticism – tends to neglect the right of victims of crime and law abiding citizens in favour of the rights of the
accused as a result truth seeking suffers.
• Both models do not exclude each other, and no existing system of criminal procedure consists of only
one model.
Discussion and description of the presumption of innocence applied in the law of criminal procedure
• Criminal procedure does not deal with the detection, investigation and prosecution of criminals,
but of suspects (not yet charged) and Accused (charged).
➢ The presumption of innocence & legal guilt:
• Due to the Presumption of innocence every person is innocent until:-
• Convicted by a court of law in compliance with the rules of evidence & criminal procedure.
• Conviction is an objective and impartial pronouncement proving legal guilt in accordance with
the principle of legality.
• Factual or moral guilt is not the same as legal guilt, conviction in any other way except legally
may amount to vigilantism, mob trials and even anarchy.
➢ The presumption of innocence as a statement of the prosecution’s burden of proof:
• Prosecution to prove every element of the crime. If a single element is not proved beyond a
reasonable doubt the accused cannot be convicted.
• The onus of proof rests on the prosecution who must prove guilt beyond a reasonable doubt.
• If the State does succeed in proving a prima facie case and the accused does nothing to disturb
that case, prima facie proof may harden into proof beyond reasonable doubt and the accused
Page 1 of 53
,2
may be convicted because there is nothing which produces a doubt in the court’s mind about
the guilt of the accused.
• If the accused can make the court doubt reasonably that one of the required elements has
been proved, he must be acquitted.
• Even if the State’s version is more probable than the accused’s, he will be acquitted if there is a
reasonable possibility that his version may be true and it is not even necessary for the court to
believe the accused.
➢ The presumption of innocence and the nature of the alleged crime:
• Neither the prevalence nor offensiveness of the crime can disrupt the presumption of
innocence.
• Not convicting an innocent person far outweighs the public interest of bringing the perpetrators
to justice.
• In Coetzee the Constitutional Court held, inter alia that the more serious the crime and greater
the public interest in securing a conviction of the guilty the more important do constitutional
protections of the accused become.
The right to silence
• Accused can never be forced to testify, he has the right to silence – privilege against self-incrimination.
• Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a
confession or admission which could be used in evidence against him. As well as the right to remain
silent & not to testify during the proceedings.
• The root of this is that the subject is a full legal subject and not merely an object of enquiry.
• A full legal subject is entitled to participate in his trial according to his own autonomous decisions and
to be assisted. He cannot be tried if he is mentally unable to understand enough to participate
meaningfully & communicate with his lawyer.
• Many of the rights of accused persons can be traced to
• The presumption of innocence
• The status of the accused as a legal subject.
• Coupled with the notion of legality, that the state is not absolute but limited to the
rule of law.
• No adverse inference should be drawn against his decision to remain silent or not to testify as
1. he may think that the state is weak and does not merit an answer or the court cannot be
trusted
2. if an element of crime has not been covered by prima facie proof the nothingness of the
accused’s silence cannot logically fill the gap of the state’s case.
• May cause the conviction where the state has proved a prima facie case and the accused has
remained silent, then the state’s evidence is uncontroverted and becomes proof beyond a reasonable
doubt as the silence of the defence did not ‘disturb’ the state’s case.
Constitutionalism in the light of what the ``rule of law'' and the legality principle require in a constitutional
state, for example that juridical guilt is important in a constitutional state. This means that it is not important to
secure a verdict of guilty at any cost and by any means whatsoever, but that it is imperative that the rules of
evidence and criminal procedure law be complied with according to the entrenched rights in the Constitution.
It also means that the burden of proof generally falls on the state to prove the guilt of the accused beyond
reasonable doubt; that if a legal provision shifts the burden of proof to the accused, then the restriction of the
constitutional
right of the accused to be deemed innocent until proven guilty must comply with the limiting provisions of
section 36 of the Constitution, namely that the restriction must be reasonable and justifiable as in an open and
democratic society based on the principles of human dignity, equality and freedom, taking due account of
factors such as the nature of the law, the importance and purpose of the restriction, the nature and extent of
the restriction, and whether there is a less restrictive way of achieving the set purpose. A practical example of
such a curtailment of the presumption can be found in the inverse or reversed burden of proof in the case of
applications
for bail for Schedule 6 offences as contemplated in section 60 (11) of the Criminal Procedure Act, where the
accused has to convince the court that unusual circumstances exist under which it is justifiable in the interests
of justice that the accused should be released although facing a serious charge. It can be said, therefore, that
where bail applications relating to certain serious offences are concerned, South Africa espouses the ``crime
control'' model in the interests of justice. The different criteria of proof required for each
stage/phase/component may also have an impact on assessment of the type of model.
Page 2 of 53
,3
What are the rights of the arrested suspect and the accused?
Section 35 of Constitution - Arrested, detained and accused persons
(1) Everyone who is arrested for allegedly committing an offence has the right-
(a) to remain silent;
(b) to be informed promptly-
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in
evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than -
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours
expire outside ordinary court hours or on a day which is not an ordinary court
day;
(e) at the first court appearance after being arrested, to be charged or to be informed of
the reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to reasonable
conditions.
(3) Every accused person has a right to a fair trial, which includes the right-
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national
or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has
previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information must be
given in a language that the person understands.
(5)Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.
What is meant by the statement that criminal procedure is a system?
Criminal procedure functions as part of a system which is referred to as the criminal justice system.
Page 3 of 53
, 4
Criminal Justice consists of criminal procedure, substantive criminal law, law of evidence in criminal
proceedings, law of sentencing and related disciplines and the law governing prisoners and prisons.
The common binding factor between the aforementioned branches of law is that they deal primarily with
crime and its perpetrators and form a coherent whole in order to ensure that there is, in the interests of
society, firm but fair enforcement of the rules of substantive law in accordance with constitutional and all other
legal requirements.
Write notes on the contents and meaning of the privilege against self-incrimination (right to silence). (5)
The right to silence
• Accused can never be forced to testify, he has the right to silence – privilege against self-incrimination.
• Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a
confession or admission which could be used in evidence against him. As well as the right to remain
silent & not to testify during the proceedings.
• The root of this is that the subject is a full legal subject and not merely an object of enquiry.
• A full legal subject is entitled to participate in his trial according to his own autonomous decisions and
to be assisted. He cannot be tried if he is mentally unable to understand enough to participate
meaningfully & communicate with his lawyer.
• Many of the rights of accused persons can be traced to
• The presumption of innocence
• The status of the accused as a legal subject.
• Coupled with the notion of legality, that the state is not absolute but limited to the
rule of law.
• No adverse inference should be drawn against his decision to remain silent or not to testify as
3. he may think that the state is weak and does not merit an answer or the court cannot be
trusted
4. if an element of crime has not been covered by prima facie proof the nothingness of the
accused’s silence cannot logically fill the gap of the state’s case.
1.a. Name and discuss the remedies available to a suspect, arrested or accused person against any
infringement or pending infringement of his or her fundamental rights.
➢ The rights of the suspect are maintained and state official encouraged to conform to the principle of
legality by sanctions ranging from informal social sanctions to formal legal sanctions.
1. The writ of habeas corpus (interdictum de libero homine exhibendo):
1. Remedy to obtain judicial review of police action – protecting the subject against unlawful
deprivation of his liberty.
2. Court asked for order that the respondent produce the detainee before the court at a
certain date.
3. Order coupled with a rule nisi that the respondent must show reason why the detainee
should not be released.
4. Prima facie reasons for believing the detention is wrongful must be adduced.
5. The application heard by single judge in civil court & preference on roll.
6. Application may be made ex parte.
7. The return date is set as early as possible may be same day.
2. Civil Action for damages
1. e.g. on the grounds of wrongful arrest.
2. A delictual liability which may be used by suspects for compensation of abuse which they
suffered.
3. The interdict:
1. An order of court whereby a person is prohibited from acting a certain way.
2. to limit or prevent harm or damage.
3. May be obtained where harm has not occurred but is threatening.
4. May be employed during criminal proceedings to obtain relief for e.g. detainees.
4. Mandamus:
Page 4 of 53
