2024 OCTOBER EXAM (ANSWERS) CRIMINAL PROCEDURE (CPR3701) - NOT DETECTABLE BY AI

Section 1 1.1 C, an alleged member of the Live to Die gang, is arrested in Johannesburg, Gauteng, for the alleged murder of A during the gang-related altercation. Upon the police charging C, the prosecutor, P, is of the view that the case should be heard in the district court. Briefly discuss the accuracy or otherwise of the prosecutor’s view in this regard. (2) 8 CPR3701 Oct/Nov 2024 [TURN OVER] 1.2 In any instance where the DPP declines to prosecute for an alleged offence, the Criminal Procedure Act 51 of 1977 (hereinafter, “the CPA”) permits aggrieved individuals to institute and conduct a prosecution in respect of the alleged offence in any competent court. H, A’s brother, is not satisfied with the prosecutor’s decision not to proceed with the case against C. Briefly discuss whether H has locus standi to proceed with a private prosecution against C. (2) 1.3 In terms of section 35(1)(d)(i) of the Constitution of the Republic of South Africa, 1996 (hereinafter, “the Constitution”), and section 50 of the CPA, an arrested person must be brought to court within 48 hours of arrest. C was arrested by the police on Tuesday morning at around 11h00. The investigating officer, Sergeant Nosey Kekana, still needs to conduct further investigations. As a result, he makes C to appear in court on Thursday of the same week, at 15h00. Briefly explain whether Sergeant Kekana acted within the ambit of the law set out above. (2) 1.4 In terms of South African law, the courts of the Republic may only exercise jurisdiction in respect of offences committed on South African territory. The investigating officer, Sergeant Nosey Kekana, receives information from the authorities in Botswana that C is being sought in Botswana in connection with the alleged robbery of the Botswana People’s Bank (BPB). P, the prosecutor, is not keen on extraditing C to Botswana. Briefly discuss whether the charges (relating to the offences committed in Botswana) may be tried in South Africa, or in Botswana. (2) 1.5 During the subsequent proceedings, the matter against C is “held over” several times for further investigations, before C pleads to the charges. Briefly explain whether the holding over of the proceedings constitute adjournments or postponements, and the reason behind your answer. (2) [10] Section 2 2.1 Section 39 of the CPA deals with the “pillars” that underpin lawful arrests. Sergeants Skop Madonoro and Piet Pompies pursue suspects running in a direction away from the altercation between the Live to Die and Hard Dyings gangs. They accost D, a young man, running away in the opposite direction of the gang fight. Sergeant Madonoro orders D to stop, and he (D) obliges. Sergeant Pompies requests D to “come with us to the police station”. D thereupon inquires after the reason for accompanying the two police officers. Sergeant Madonoro responds, upon D’s inquiry to D “not to ask nonsense”, and that D “knows exactly what he and his friends were up to earlier at Strasso Street”. He also tells D that he will “donner” him if D “does not want to co-operate”. D sees an opportunity and runs away. Critically evaluate whether the actions of the two police officers, and those of D comply with 9 CPR3701 Oct/Nov 2024 [TURN OVER] South African legal prescripts. (15) 2. 2 “A person can … be said to have ‘reasonable grounds’ to believe or suspect something if he or she actually believes or suspects it, if this belief or suspicion is based on facts from which he or she has drawn an inference, and if any reasonable person would, in view of those facts, have drawn the same inference”. C is accosted by the police whilst walking in a direction opposite to the altercation at Strasso Street. C is adorned with a skull and bones tattoo on his shoulder, which is a known mark of the Live to Die Gang. He is also found in possession of a concealed ‘Rambo’ knife. Critically expatiate, in light of the facts provided above, whether, in your view, C’s arrest may be said to be based on “reasonable grounds”. (7) [22] Section 3 3.1 “In terms of section 205 of the CPA, a Director of Public Prosecutions or prosecutor may, upon request to a presiding officer, require the attendance of any person who may provide relevant and material information regarding the commission of an alleged offence before him or her or any other judge, regional court magistrate or magistrate, for examination”. Sergeant Nosey Kekana learns that K was a witness to the altercation between the two gangs, and can provide material information in resolving the case. Sergeant Kekana visits K’s home to ask questions to K. K informs Sergeant Kekana that he “knows what he knows”, but that he is “no snitch” and that he “does not talk to the police”. Critically evaluate, in the context of section 189, the actions which Sergeant Kekana may pursue in light of K’s attitude. (NB: please note that your answer should not contain the process outlined in section 205 of the CPA). (4) 3.2 During the ensuing trial in which C, D and N are the accused, J, a journalist for the Morning Newspaper, wishes to attend the court proceedings. The accused, C and D are adults, whereas N is 16 years old. J is of the view that “exceptional circumstances” exist which justify her attendance and reporting of the proceedings and also revealing N’s identity. Critically discuss whether J’s assertions, including the test for admittance by the court, are indeed, correct. (8) 3.3 During C’s bail application, the prosecutor, P and C’s attorney, G, are at odds regarding the Schedule under which the alleged offence of murder, as set out in the facts above, is classified, in terms of the CPA. P insists that the offence should be classified under Schedule 6, whereas G contends that the matter, in fact, falls under Schedule 1 of the CPA. Briefly: 10 CPR3701 Oct/Nov 2024 [TURN OVER] 3.3.1 state the Schedule under which the alleged offence should be classified, in your view; and (1) 3.3.2 elaborate on the reason for your answer in 3.3.1, above; and (3) 3.3.3 state the requisite burden (i.e. which party bears the burden of proof) and the standard of proof in respect of the Schedule to which you referred in 3.3.1, above (3) 3.4 During the ensuing trial the prosecutor, P, conducts examination-in-chief on one of the state witnesses, Q. Critically discuss whether, 3.4.1 P may conduct cross-examination on Q. If so, why, and if not, why not. (3) 3.4.2 G, the accused’s attorney may conduct re-examination on Q. If so, why, and if not, why not. (3) [25] Section 4 4. 1 V is a member of the Live to Die gang who was present during the altercation on the day in question. After his arrest, he informs the investigating officer, Sergeant Kekana, that he fears the “whole affair could be heaped on me to the exclusion of everyone else”. V thereupon agrees to testify against the other gang members in exchange for immunity from prosecution. However, V is wary of incriminating himself. Critically discuss the process which may be followed which ensures that V testifies without implicating himself, and the implications thereof. (10) 4.2 In terms of section 51 of the Criminal Law Amendment Act 105 of 1997 (the so-called “Minimum Sentences Act”), a minimum sentence of 25 years imprisonment may be imposed for the commission of the crime of murder, unless the court is satisfied that there are “exceptional circumstances” justifying a lesser sentence than that prescribed for the particular crime. N (who was 15 years during the commission of the offence but has since turned 16) is convicted of murder and sentenced to 25 years imprisonment. Critically evaluate: 4.2.1 the correctness or otherwise, of the standard required for the imposition of a minimum sentence, as set out in section 51 of the Criminal Law Amendment Act 105 of 1997; (4) 4.2.2 the appropriateness or otherwise, of the sentence imposed on N; (5) 4.2.3 the mitigating factors which should have been considered before N’s sentencing. (Please note that your answer in this regard must only concentrate on the relevant aspects and why they should be considered as such). (4)