2025
Law of Criminal Procedure,
LPR500
STADIO School of Law, LLB PG
, Topic 1: Introduction to Criminal Procedure 1
TOPIC 1: INTRODUCTION TO CRIMINAL PROCEDURE
INTRODUCTION
PURPOSE OF CRIMINAL PROCEDURE LAW
Mechanism to
Legitimizes the
enforce the goals
resolution of
of substantial
disputes
criminal law
Enforces criminal Legitimately
law in line w/ the resolves citizen-
Constitution state conflict
DISTINCTION: SUBSTANTIVE VERSUS ADJECTIVAL LAW
Substantive Law
Comrpised of the legal Puts substantive criminal
rules determining the law into action
rights & duties of the •Operate in tandem w/ e/o
individual and the state Enforces rules of
Determines prerequisites substantive law
for criminal liability Common law and
Prescribes the elements of constitutional law affects
Adjectival Law
a crime
Attaches sanctions for the
breach of prohibitions
1
, Topic 1: Introduction to Criminal Procedure 2
CRIMINAL PROCEDURE SCOPE AND CONTENT
• Duties and powers of criminal court and prosecutorial authority
• Duties and powers of the police
• Rights of suspects and accused’s
• Pre-trial procedure
• Trial and prosecution
• Post-trial
DOUBLE FUNCTIONAL NATURE
• Some rules regulate procedure, while also operating as grounds of justification
CRIME CONTROL AND DUE PROCESS
NEED TO BALANCE VALUES
• Balance: society’s interests in 1. Effective criminal law enforcement versus 2.
Protection of rights and freedoms of suspects
• Crime control model: repression of criminal activity
• Due process model: duly and properly acknowledge the rights of individuals at
every stage, including the limits on official powers
TENSION: CRIME CONTROL AND DUE PROCESS
• Criminal procedure rules appy to criminals and innocents
• Do not sacrifice individual liberty for higher crime control
• A state w/ absolute powers may curb criminality well, but would be tyrannical
• Regulate positively and negatively
• Conflict (between victim and accused) will always be there
• Qualified exclusionary rule
DUE PROCESS AND NEED TO LIMIT STATE POWERS
• Criminal procedure sets out state powers, as well as limits state powers
2
, Topic 1: Introduction to Criminal Procedure 3
• Thus: dual purpose
• Certain measures may be effective, but would infringe on suspects rights
o Safeguard’s individual freedoms
o Checks abuses of power
o Preserve fairness in gov-citizen interactions
• Due process demands practical limit on state powers re crime
detection/investigation/prosecution/punishment
• Constitutional role
VICTIM’S RIGHTS
• Punitive model
o Victim rights must be respected via ensuring criminal prosecution
• Non-punitive model
o Prefers crime prevention and restoration to reach a non-punitive resolution
o Victims involved in an attempt to restore prior position
o Not always appropriate
o Child Justice Act
• Current state of victim participation
o Lack adequate support strategies
o Current measures are uncoordinated, limited and under-utilized
o Victims feel alienated
VICTIM PARTICIPATION
S 105(1)(b)(iii) CPA Plea and sentence agreement Accused may receive a reduced
sentence if given information that helps state’s case against other
accuseds
S 300 CPA Compensation order (mostly property theft)
S 179(5)(d)(ii) Constitution Decision to prosecute: victim is consulted Prosecutor has
wide discretion (is there a prima facie case w.r.t. the available
evidence? What is the chance of success?)
3
, Topic 1: Introduction to Criminal Procedure 4
Service No absolute right
Charter for
Victims
National Impact statement: victims of sexual offences Life sentences for rape:
Instruction on MUST be taken? Mhlongo
Sexual
Offences Para
21(3)
S 299A CPA + Serious crimes – (day) parole under correctional supervision S 7 CPA
s 75(4)
Corrective
Services Act
S7 Private Prosecution
VICTIM/WITNESS PROTECTION
CONSTITUTIONAL CRIMINAL PROCEDURE
• Constitution, S 2
o Supreme law
o Inconsistent -> invalid
4
, Topic 1: Introduction to Criminal Procedure 5
o Applies to all law
o Binds all citizens and state
• Constitution and the BoR
o Criminal procedure provisions have a vertical AND horizontal applications
– s 8(2)
o Constitutional criminal procedure provisions are usually stated negatively –
limite state power, and democracy (not unlimited, done via BoR)
o BoR has a limitation clause
o BoR is justiciable
S 36: THE LIMITATIONS CLAUSE
• Regulates
o Scope of rights
o How they may be limited
• Entrenched rights: extent of limitation is reasonable, justifiable, etc etc
• Rights that are not listed =/= negation
• Williams case – corporeal punishment
S 35: ARRESTED, ACCUSED AND DETAINED PERSONS
• Veldman v DPP: fair trial rights are more than what is listed in the Const
• Notions of basic fairness and justice -> courts have a duty to give content to these
rights
PRESUMPTIONS OF INNOCENCE
• Suspect -> not yet charged
• Accused -> charged, not yet convicted
Presumption of innocence and legal guilt
• Innocent until 1. Properly convicted by 2. A court of law
o Properly = compliance w/ rules of evidence and criminal procedure
5
, Topic 1: Introduction to Criminal Procedure 6
o Convicted = objective and impartial official pronouncement by the state in a
properly conducted trial’
• Legal guilt v factual or moral guilt
Presumption of innocence and burden of proof
• Prosecution must prove guilt beyond a reasonable doubt
• Accused does not have to prove their innocence
• Nature of crime cannot affect the presumption
RIGHT TO SILENCE
• Privilege against self-incrimination
• X can never be forced to testify
• No negative inferences re X’s guilt may be drawn from their decision to remain
silent
• Why – X is a full and autonomous legal subjects
o Entitled to participate in their defence as they wish
• Note
o S 77 -> CPA
o If state has a prima facie case
ACCUSITORIAL V INQUISITORIAL
6
, Topic 1: Introduction to Criminal Procedure 7
IN RSA
• Presiding judge/magistrate
o With or without assessors
• Experts or people with interest in case
• Lower courts: prosecutor; Higher courts: state advocate
• Accused w/ or w/out legal representation
o Does not receive automatically
• No jury
SOURCES OF CRIMINAL PROCEDURE
7
, Topic 1: Introduction to Criminal Procedure 8
REMEDIES
8
, Topic 2a: Jurisdiction 9
TOPIC 2A: JURISDICTION
CONSTITUTIONAL COURT
• Composition
o Seat – JHB
o Chief Justice, Deputy Chief Justice, 9 other judges
o Matter must be heard before 8 judges
CONSTITUTIONAL JURISDICTION
• Final jurisdiction in all matters
• Decides all constitutional matters
• Any factual/legal matter, only if
o ConCourt grants leave to appeal
o Where there is an arguable point of law
o Of general public importance
• Final decision
o If matter is in its jurisdiction
o Whether an act of parliament/provincial legislature is constitutional
o Whether presidential conduct is constitutional
• Confirm orders of invalidity
• Several matters may be decided only by the ConCourt
• Whether an applicant may bring a constitutional matter directly
o Constitutional matter: interpretation, protection, enforcement of the
Constitution
• S 15(2) of SCA
o Invoke decision of ConCourt on a question o flaw where there are conflicting
decisions / correctness of decision given by any division in any criminal case
APPEAL JURISDICTION
• ConCourt has appeal jurisdiction
9
Law of Criminal Procedure,
LPR500
STADIO School of Law, LLB PG
, Topic 1: Introduction to Criminal Procedure 1
TOPIC 1: INTRODUCTION TO CRIMINAL PROCEDURE
INTRODUCTION
PURPOSE OF CRIMINAL PROCEDURE LAW
Mechanism to
Legitimizes the
enforce the goals
resolution of
of substantial
disputes
criminal law
Enforces criminal Legitimately
law in line w/ the resolves citizen-
Constitution state conflict
DISTINCTION: SUBSTANTIVE VERSUS ADJECTIVAL LAW
Substantive Law
Comrpised of the legal Puts substantive criminal
rules determining the law into action
rights & duties of the •Operate in tandem w/ e/o
individual and the state Enforces rules of
Determines prerequisites substantive law
for criminal liability Common law and
Prescribes the elements of constitutional law affects
Adjectival Law
a crime
Attaches sanctions for the
breach of prohibitions
1
, Topic 1: Introduction to Criminal Procedure 2
CRIMINAL PROCEDURE SCOPE AND CONTENT
• Duties and powers of criminal court and prosecutorial authority
• Duties and powers of the police
• Rights of suspects and accused’s
• Pre-trial procedure
• Trial and prosecution
• Post-trial
DOUBLE FUNCTIONAL NATURE
• Some rules regulate procedure, while also operating as grounds of justification
CRIME CONTROL AND DUE PROCESS
NEED TO BALANCE VALUES
• Balance: society’s interests in 1. Effective criminal law enforcement versus 2.
Protection of rights and freedoms of suspects
• Crime control model: repression of criminal activity
• Due process model: duly and properly acknowledge the rights of individuals at
every stage, including the limits on official powers
TENSION: CRIME CONTROL AND DUE PROCESS
• Criminal procedure rules appy to criminals and innocents
• Do not sacrifice individual liberty for higher crime control
• A state w/ absolute powers may curb criminality well, but would be tyrannical
• Regulate positively and negatively
• Conflict (between victim and accused) will always be there
• Qualified exclusionary rule
DUE PROCESS AND NEED TO LIMIT STATE POWERS
• Criminal procedure sets out state powers, as well as limits state powers
2
, Topic 1: Introduction to Criminal Procedure 3
• Thus: dual purpose
• Certain measures may be effective, but would infringe on suspects rights
o Safeguard’s individual freedoms
o Checks abuses of power
o Preserve fairness in gov-citizen interactions
• Due process demands practical limit on state powers re crime
detection/investigation/prosecution/punishment
• Constitutional role
VICTIM’S RIGHTS
• Punitive model
o Victim rights must be respected via ensuring criminal prosecution
• Non-punitive model
o Prefers crime prevention and restoration to reach a non-punitive resolution
o Victims involved in an attempt to restore prior position
o Not always appropriate
o Child Justice Act
• Current state of victim participation
o Lack adequate support strategies
o Current measures are uncoordinated, limited and under-utilized
o Victims feel alienated
VICTIM PARTICIPATION
S 105(1)(b)(iii) CPA Plea and sentence agreement Accused may receive a reduced
sentence if given information that helps state’s case against other
accuseds
S 300 CPA Compensation order (mostly property theft)
S 179(5)(d)(ii) Constitution Decision to prosecute: victim is consulted Prosecutor has
wide discretion (is there a prima facie case w.r.t. the available
evidence? What is the chance of success?)
3
, Topic 1: Introduction to Criminal Procedure 4
Service No absolute right
Charter for
Victims
National Impact statement: victims of sexual offences Life sentences for rape:
Instruction on MUST be taken? Mhlongo
Sexual
Offences Para
21(3)
S 299A CPA + Serious crimes – (day) parole under correctional supervision S 7 CPA
s 75(4)
Corrective
Services Act
S7 Private Prosecution
VICTIM/WITNESS PROTECTION
CONSTITUTIONAL CRIMINAL PROCEDURE
• Constitution, S 2
o Supreme law
o Inconsistent -> invalid
4
, Topic 1: Introduction to Criminal Procedure 5
o Applies to all law
o Binds all citizens and state
• Constitution and the BoR
o Criminal procedure provisions have a vertical AND horizontal applications
– s 8(2)
o Constitutional criminal procedure provisions are usually stated negatively –
limite state power, and democracy (not unlimited, done via BoR)
o BoR has a limitation clause
o BoR is justiciable
S 36: THE LIMITATIONS CLAUSE
• Regulates
o Scope of rights
o How they may be limited
• Entrenched rights: extent of limitation is reasonable, justifiable, etc etc
• Rights that are not listed =/= negation
• Williams case – corporeal punishment
S 35: ARRESTED, ACCUSED AND DETAINED PERSONS
• Veldman v DPP: fair trial rights are more than what is listed in the Const
• Notions of basic fairness and justice -> courts have a duty to give content to these
rights
PRESUMPTIONS OF INNOCENCE
• Suspect -> not yet charged
• Accused -> charged, not yet convicted
Presumption of innocence and legal guilt
• Innocent until 1. Properly convicted by 2. A court of law
o Properly = compliance w/ rules of evidence and criminal procedure
5
, Topic 1: Introduction to Criminal Procedure 6
o Convicted = objective and impartial official pronouncement by the state in a
properly conducted trial’
• Legal guilt v factual or moral guilt
Presumption of innocence and burden of proof
• Prosecution must prove guilt beyond a reasonable doubt
• Accused does not have to prove their innocence
• Nature of crime cannot affect the presumption
RIGHT TO SILENCE
• Privilege against self-incrimination
• X can never be forced to testify
• No negative inferences re X’s guilt may be drawn from their decision to remain
silent
• Why – X is a full and autonomous legal subjects
o Entitled to participate in their defence as they wish
• Note
o S 77 -> CPA
o If state has a prima facie case
ACCUSITORIAL V INQUISITORIAL
6
, Topic 1: Introduction to Criminal Procedure 7
IN RSA
• Presiding judge/magistrate
o With or without assessors
• Experts or people with interest in case
• Lower courts: prosecutor; Higher courts: state advocate
• Accused w/ or w/out legal representation
o Does not receive automatically
• No jury
SOURCES OF CRIMINAL PROCEDURE
7
, Topic 1: Introduction to Criminal Procedure 8
REMEDIES
8
, Topic 2a: Jurisdiction 9
TOPIC 2A: JURISDICTION
CONSTITUTIONAL COURT
• Composition
o Seat – JHB
o Chief Justice, Deputy Chief Justice, 9 other judges
o Matter must be heard before 8 judges
CONSTITUTIONAL JURISDICTION
• Final jurisdiction in all matters
• Decides all constitutional matters
• Any factual/legal matter, only if
o ConCourt grants leave to appeal
o Where there is an arguable point of law
o Of general public importance
• Final decision
o If matter is in its jurisdiction
o Whether an act of parliament/provincial legislature is constitutional
o Whether presidential conduct is constitutional
• Confirm orders of invalidity
• Several matters may be decided only by the ConCourt
• Whether an applicant may bring a constitutional matter directly
o Constitutional matter: interpretation, protection, enforcement of the
Constitution
• S 15(2) of SCA
o Invoke decision of ConCourt on a question o flaw where there are conflicting
decisions / correctness of decision given by any division in any criminal case
APPEAL JURISDICTION
• ConCourt has appeal jurisdiction
9
