CPR3701
NOTES
,STUDY UNIT 1: A BASIC INTRODUCTION TO CRIMINAL PROCEDURE
(Based on Chapter 1 of the handbook)
1. Introduction
Criminal procedure refers to the complete set of legal rules that determine how the
State exercises its authority to prosecute and punish individuals who commit crimes.
It provides the framework within which criminal law is enforced. This system must,
under the supremacy of the Constitution:
Ensure a fair and lawful process for enforcing criminal law,
Define the powers and responsibilities of officials involved in the criminal justice
process, and
Promote fairness and reliability in criminal proceedings.
1.1 The distinction between substantive and adjectival law
The law as a whole can be divided into two main categories: substantive law and
adjectival (or procedural) law.
Type of Law Focus Examples
Substantive Establishes rights, duties, and Constitutional law, administrative
Law obligations of individuals and law, international law, criminal
the State. law, family law, property law, law
of persons, law of delict.
Adjectival Provides the methods and Criminal procedure, civil
(Procedural) processes used to enforce procedure, and the law of
Law substantive law, by proving evidence.
and adjudicating legal
disputes.
,Substantive law determines what behaviour is lawful or unlawful, while procedural law
determines how those rules are applied and enforced in court.
1.2 Criminal Procedure
1.2.1 Scope and Content
Criminal procedure governs the duties, powers, and functions of various actors in the
criminal justice process, such as:
Courts and their jurisdiction,
Prosecuting authorities,
Police officials, particularly in relation to crime investigation,
Rights of suspects, arrested persons, and accused persons,
Pre-trial procedures, including bail, charge sheets, and indictments,
Pleading and trial conduct, including the roles of prosecution and defence,
Verdicts and sentencing, and
Post-trial processes, such as appeals, reviews, and executive actions like
pardons or clemency.
In essence, criminal procedure is concerned with every step from the investigation of a
crime to the execution of the sentence.
1.2.2 Criminal Procedure as Part of the Criminal Justice System
Criminal procedure forms an essential component of the criminal justice system,
which also includes:
Substantive criminal law,
Law of evidence,
, Law of sentencing, and related disciplines like penology and criminology,
Correctional law, which governs the treatment, rights, and rehabilitation of
prisoners (as outlined in the Correctional Services Act 111 of 1998).
All these branches work together to ensure that crimes are addressed in a manner that
is both firm and fair, balancing the rights of individuals with the interests of society.
1.3 The Dual Nature of Some Rules
Certain rules within criminal procedure serve two functions—they regulate procedure
and simultaneously act as grounds of justification in substantive law.
For example:
When a police officer lawfully searches a suspect in accordance with criminal
procedure, the act is both a valid procedural step and a lawful restriction of the
suspect’s right to privacy.
If, however, the search is unlawful, it may lead to procedural consequences
(such as exclusion of evidence) and also expose the officer to criminal or civil
liability.
Likewise, some justifications from substantive law also apply within criminal procedure.
For instance, a police officer who is attacked while making a lawful arrest may rely on
self-defence. Although self-defence is primarily a concept of substantive criminal and
private law, it also provides procedural authority for the officer to protect themselves
during the arrest.
NOTES
,STUDY UNIT 1: A BASIC INTRODUCTION TO CRIMINAL PROCEDURE
(Based on Chapter 1 of the handbook)
1. Introduction
Criminal procedure refers to the complete set of legal rules that determine how the
State exercises its authority to prosecute and punish individuals who commit crimes.
It provides the framework within which criminal law is enforced. This system must,
under the supremacy of the Constitution:
Ensure a fair and lawful process for enforcing criminal law,
Define the powers and responsibilities of officials involved in the criminal justice
process, and
Promote fairness and reliability in criminal proceedings.
1.1 The distinction between substantive and adjectival law
The law as a whole can be divided into two main categories: substantive law and
adjectival (or procedural) law.
Type of Law Focus Examples
Substantive Establishes rights, duties, and Constitutional law, administrative
Law obligations of individuals and law, international law, criminal
the State. law, family law, property law, law
of persons, law of delict.
Adjectival Provides the methods and Criminal procedure, civil
(Procedural) processes used to enforce procedure, and the law of
Law substantive law, by proving evidence.
and adjudicating legal
disputes.
,Substantive law determines what behaviour is lawful or unlawful, while procedural law
determines how those rules are applied and enforced in court.
1.2 Criminal Procedure
1.2.1 Scope and Content
Criminal procedure governs the duties, powers, and functions of various actors in the
criminal justice process, such as:
Courts and their jurisdiction,
Prosecuting authorities,
Police officials, particularly in relation to crime investigation,
Rights of suspects, arrested persons, and accused persons,
Pre-trial procedures, including bail, charge sheets, and indictments,
Pleading and trial conduct, including the roles of prosecution and defence,
Verdicts and sentencing, and
Post-trial processes, such as appeals, reviews, and executive actions like
pardons or clemency.
In essence, criminal procedure is concerned with every step from the investigation of a
crime to the execution of the sentence.
1.2.2 Criminal Procedure as Part of the Criminal Justice System
Criminal procedure forms an essential component of the criminal justice system,
which also includes:
Substantive criminal law,
Law of evidence,
, Law of sentencing, and related disciplines like penology and criminology,
Correctional law, which governs the treatment, rights, and rehabilitation of
prisoners (as outlined in the Correctional Services Act 111 of 1998).
All these branches work together to ensure that crimes are addressed in a manner that
is both firm and fair, balancing the rights of individuals with the interests of society.
1.3 The Dual Nature of Some Rules
Certain rules within criminal procedure serve two functions—they regulate procedure
and simultaneously act as grounds of justification in substantive law.
For example:
When a police officer lawfully searches a suspect in accordance with criminal
procedure, the act is both a valid procedural step and a lawful restriction of the
suspect’s right to privacy.
If, however, the search is unlawful, it may lead to procedural consequences
(such as exclusion of evidence) and also expose the officer to criminal or civil
liability.
Likewise, some justifications from substantive law also apply within criminal procedure.
For instance, a police officer who is attacked while making a lawful arrest may rely on
self-defence. Although self-defence is primarily a concept of substantive criminal and
private law, it also provides procedural authority for the officer to protect themselves
during the arrest.
