CMP3701
FULL NOTES
, NOTES
1. INDICTMENTS AND CHARGE SHEETS
Section 32 of the Constitution - Access to information
(1) Everyone has the right of access to -
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or
protection of any rights.
Section 35 of the Constitution – Arrested, detained and accused persons
(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;
1.1. Lodgement and service of indictments and charge sheets
High Court: Indictment
Lower Courts: Charge sheets
Accused is entitled to have access to documents in the police file (Shabalala v Attorney-General),
unless such disclosure may prejudice the police investigation or prosecution of the crime. He
further has the right to be informed of the charge with sufficient detail to answer it. The legislature
has, however, endeavoured to avoid criminal trials being rendered abortive merely because of
insignificant mistakes made by the persons who draw up indictments or charge sheets.
Golden rule: An indictment or charge sheet should inform the accused in clear and unmistakable
language of the charge he has to meet – Pillay.
Section 76 of the CPA - Charge-sheet and proof of record of criminal case
(1) Unless an accused has been summoned to appear before the court, the proceedings at a
summary trial in a lower court shall be commenced by lodging a charge-sheet with the clerk
of the court, and, in the case of a superior court, by serving an indictment referred to in
section 144 on the accused and the lodging thereof with the registrar of the court concerned.
In superior courts
The DPP must lodge an indictment with the Registrar of the High Court after deciding to indict
an accused, which is presented in the name of the DPP wherein he informs the court that the
accused is guilty of the crime alleged therein. Such an indictment must contain:
(i) the charge against the accused;
(ii) the date and place at which the crime was allegedly committed;
(iii) certain personal particulars of the accused;
1
(iv) where no preparatory exam has been held, a summary of the facts of the case must be
attached to the indictment (this need not be given where it will be prejudicial to the
administration of justice or the security of the state);
(v) a list of witnesses and their addresses that may be called by the state (this may be
withheld if the DPP believes the witnesses may be tampered with or intimidated).
The indictment must be served on the accused by the sheriff at least 10 days before the date of
the trial, unless the accused agrees to a shorter period.
In the lower courts
Unlike the indictment, this is presented in court where he may examine it and is not served on
the accused. The accused is brought to court on written notice, by summons or under arrest. If
a summons is served on him, it must be served at least 14 court days before the date of the
trial. If this is insufficient time for him to prepare his defence, the court may grant a
postponement. In Singh v Blomerus it was held that short service to which no objection had
been made at the trial could not be relies on before the appeal court.
1
The State is not bound by the summary of facts and can lead evidence which contradicts it.
Downloaded by Tanya Botha ()
FULL NOTES
, NOTES
1. INDICTMENTS AND CHARGE SHEETS
Section 32 of the Constitution - Access to information
(1) Everyone has the right of access to -
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or
protection of any rights.
Section 35 of the Constitution – Arrested, detained and accused persons
(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;
1.1. Lodgement and service of indictments and charge sheets
High Court: Indictment
Lower Courts: Charge sheets
Accused is entitled to have access to documents in the police file (Shabalala v Attorney-General),
unless such disclosure may prejudice the police investigation or prosecution of the crime. He
further has the right to be informed of the charge with sufficient detail to answer it. The legislature
has, however, endeavoured to avoid criminal trials being rendered abortive merely because of
insignificant mistakes made by the persons who draw up indictments or charge sheets.
Golden rule: An indictment or charge sheet should inform the accused in clear and unmistakable
language of the charge he has to meet – Pillay.
Section 76 of the CPA - Charge-sheet and proof of record of criminal case
(1) Unless an accused has been summoned to appear before the court, the proceedings at a
summary trial in a lower court shall be commenced by lodging a charge-sheet with the clerk
of the court, and, in the case of a superior court, by serving an indictment referred to in
section 144 on the accused and the lodging thereof with the registrar of the court concerned.
In superior courts
The DPP must lodge an indictment with the Registrar of the High Court after deciding to indict
an accused, which is presented in the name of the DPP wherein he informs the court that the
accused is guilty of the crime alleged therein. Such an indictment must contain:
(i) the charge against the accused;
(ii) the date and place at which the crime was allegedly committed;
(iii) certain personal particulars of the accused;
1
(iv) where no preparatory exam has been held, a summary of the facts of the case must be
attached to the indictment (this need not be given where it will be prejudicial to the
administration of justice or the security of the state);
(v) a list of witnesses and their addresses that may be called by the state (this may be
withheld if the DPP believes the witnesses may be tampered with or intimidated).
The indictment must be served on the accused by the sheriff at least 10 days before the date of
the trial, unless the accused agrees to a shorter period.
In the lower courts
Unlike the indictment, this is presented in court where he may examine it and is not served on
the accused. The accused is brought to court on written notice, by summons or under arrest. If
a summons is served on him, it must be served at least 14 court days before the date of the
trial. If this is insufficient time for him to prepare his defence, the court may grant a
postponement. In Singh v Blomerus it was held that short service to which no objection had
been made at the trial could not be relies on before the appeal court.
1
The State is not bound by the summary of facts and can lead evidence which contradicts it.
Downloaded by Tanya Botha ()
