CPR3701 Assignment 1
(COMPLETE ANSWERS)
Semester 2 2025 - DUE 27
August 2025
For assistance contact
Email:
,1. Merits of A's Contention Regarding the 48-Hour Rule
A's contention that his case should be 'struck off the roll' due to the violation of his right to
appear in court within 48 hours has some legal standing, but it is unlikely to succeed.
The right to be brought before a court within 48 hours is a fundamental constitutional right,
as stated in Section 35(1)(d) of the Constitution and Section 50(1)(d) of the Criminal
Procedure Act (CPA). However, the law provides for exceptions. The key phrase in the
legislation is "as soon as reasonably possible, but not later than 48 hours after the arrest,"
with the caveat that weekends and public holidays don't count towards the 48-hour period if
they fall at the end of the period.
The Supreme Court of Appeal has held that the 48-hour rule is not an absolute one. The
period can be extended if the delay is justified, for instance, due to the medical condition of
the arrested person. In the case of S v Ndlovu, the court found that the delay in bringing an
accused to court was justified due to the accused's recuperation from injuries. The court
reasoned that it would be inhumane and impractical to force a seriously injured person to
appear in court.
In this scenario, A was placed in a hospital for ten weeks to recuperate from a gunshot
wound. This constitutes a valid, justifiable reason for the delay. The purpose of the 48-hour
rule is to prevent arbitrary detention and provide judicial oversight, which is not being
circumvented in this instance. The delay is not a result of a willful failure by the police or
prosecutor but is a necessary consequence of the accused's physical condition. Therefore,
while A's right was technically violated, the violation is legally excusable. The court is highly
unlikely to strike the case from the roll based on this ground.
2. Evaluation of the Prosecutor and Investigating Officer's Arguments Against Bail
The arguments made by the prosecutor (P) and the investigating officer (Sgt. Kekana) are
flawed and inconsistent with South African jurisprudence.
• 2.1 The presumption of innocence: The argument that A "cannot be presumed
innocent" because he was arrested at the scene of the crime is incorrect. The
presumption of innocence is a cornerstone of the criminal justice system and a
fundamental right guaranteed by Section 35(3)(h) of the Constitution. This right
applies to an accused person from the moment of arrest until they are proven guilty
beyond a reasonable doubt in a court of law. The location of the arrest is irrelevant to
this principle. A must be presumed innocent until his guilt is established at trial.
• 2.2 Bail as a form of punishment: The view that A should be kept in custody as "a
measure of punishment" is a direct violation of the purpose of bail. Bail is not a pre-
trial punishment. Its primary purpose is to balance the interests of justice with the
accused's right to liberty. The argument that the public would lose faith in the system
by releasing the "obviously guilty" is a dangerous and legally unfounded proposition
that undermines the principles of due process and the right to freedom.
, • 2.3.1 The onus of proof in Schedule 6 bail applications: The statement that "the
prosecution bears the onus to prove to the court beyond any reasonable doubt that the
interests of justice do not warrant C’s release" is incorrect. In a Schedule 6 bail
application (such as one for robbery with aggravating circumstances), the onus is on
the accused to prove, on a balance of probabilities, that the interests of justice permit
their release. The prosecution does not bear this burden. This is a crucial distinction.
• 2.3.2 Substantial and compelling circumstances: The statement that the prosecution
"must prove that 'substantial and compelling' circumstances are absent" is also
incorrect. This again misplaces the burden of proof. It is the accused's responsibility
to adduce evidence to convince the court that "substantial and compelling"
circumstances exist which justify their release. If the accused fails to do so, the court
must deny bail.
3. The Correctness of the Prosecutor's Course of Action
The prosecutor's (P) course of action in calling the first witness, Q, whom she intends to
cross-examine, is incorrect.
The function of cross-examination is to test the credibility, reliability, and accuracy of a
witness called by the opposing party. A prosecutor calls witnesses to present the State's
case, and once they've finished examining their own witness (examination-in-chief), it is the
defence counsel's turn to cross-examine that witness. The prosecutor cannot cross-examine
their own witness unless the witness is declared a hostile witness, which requires a specific
application to the court and a finding that the witness is deliberately being unhelpful to the
party that called them. Therefore, P's action of attempting to cross-examine her own witness
is procedurally wrong. The correct course of action for P would be to conduct an
examination-in-chief to lead Q's evidence.
4. Evaluation of the Magistrate's Finding
The magistrate's (M) finding to convict the accused of assault with intent to do grievous
bodily harm (a lesser offence) is permissible and correct under South African law.
This finding is based on the principle of competent verdicts. According to Section 260 of
the CPA, if an accused is charged with a specific offence, they can be convicted of a lesser
offence that is naturally included in the main charge, provided the evidence supports the
lesser charge.
In this case, the initial charge was robbery with aggravating circumstances, which includes
the element of assault. For a conviction of assault with intent to do grievous bodily harm, the
prosecution must prove that the accused committed an assault and had the specific intention
to cause serious harm. The facts of the scenario, where A was shot on his left shoulder during
a firefight, could provide sufficient evidence for the magistrate to find that the lesser offence
of assault with intent to do grievous bodily harm was proven, even if the main charge of
robbery with aggravating circumstances could not be established beyond a reasonable doubt.
(COMPLETE ANSWERS)
Semester 2 2025 - DUE 27
August 2025
For assistance contact
Email:
,1. Merits of A's Contention Regarding the 48-Hour Rule
A's contention that his case should be 'struck off the roll' due to the violation of his right to
appear in court within 48 hours has some legal standing, but it is unlikely to succeed.
The right to be brought before a court within 48 hours is a fundamental constitutional right,
as stated in Section 35(1)(d) of the Constitution and Section 50(1)(d) of the Criminal
Procedure Act (CPA). However, the law provides for exceptions. The key phrase in the
legislation is "as soon as reasonably possible, but not later than 48 hours after the arrest,"
with the caveat that weekends and public holidays don't count towards the 48-hour period if
they fall at the end of the period.
The Supreme Court of Appeal has held that the 48-hour rule is not an absolute one. The
period can be extended if the delay is justified, for instance, due to the medical condition of
the arrested person. In the case of S v Ndlovu, the court found that the delay in bringing an
accused to court was justified due to the accused's recuperation from injuries. The court
reasoned that it would be inhumane and impractical to force a seriously injured person to
appear in court.
In this scenario, A was placed in a hospital for ten weeks to recuperate from a gunshot
wound. This constitutes a valid, justifiable reason for the delay. The purpose of the 48-hour
rule is to prevent arbitrary detention and provide judicial oversight, which is not being
circumvented in this instance. The delay is not a result of a willful failure by the police or
prosecutor but is a necessary consequence of the accused's physical condition. Therefore,
while A's right was technically violated, the violation is legally excusable. The court is highly
unlikely to strike the case from the roll based on this ground.
2. Evaluation of the Prosecutor and Investigating Officer's Arguments Against Bail
The arguments made by the prosecutor (P) and the investigating officer (Sgt. Kekana) are
flawed and inconsistent with South African jurisprudence.
• 2.1 The presumption of innocence: The argument that A "cannot be presumed
innocent" because he was arrested at the scene of the crime is incorrect. The
presumption of innocence is a cornerstone of the criminal justice system and a
fundamental right guaranteed by Section 35(3)(h) of the Constitution. This right
applies to an accused person from the moment of arrest until they are proven guilty
beyond a reasonable doubt in a court of law. The location of the arrest is irrelevant to
this principle. A must be presumed innocent until his guilt is established at trial.
• 2.2 Bail as a form of punishment: The view that A should be kept in custody as "a
measure of punishment" is a direct violation of the purpose of bail. Bail is not a pre-
trial punishment. Its primary purpose is to balance the interests of justice with the
accused's right to liberty. The argument that the public would lose faith in the system
by releasing the "obviously guilty" is a dangerous and legally unfounded proposition
that undermines the principles of due process and the right to freedom.
, • 2.3.1 The onus of proof in Schedule 6 bail applications: The statement that "the
prosecution bears the onus to prove to the court beyond any reasonable doubt that the
interests of justice do not warrant C’s release" is incorrect. In a Schedule 6 bail
application (such as one for robbery with aggravating circumstances), the onus is on
the accused to prove, on a balance of probabilities, that the interests of justice permit
their release. The prosecution does not bear this burden. This is a crucial distinction.
• 2.3.2 Substantial and compelling circumstances: The statement that the prosecution
"must prove that 'substantial and compelling' circumstances are absent" is also
incorrect. This again misplaces the burden of proof. It is the accused's responsibility
to adduce evidence to convince the court that "substantial and compelling"
circumstances exist which justify their release. If the accused fails to do so, the court
must deny bail.
3. The Correctness of the Prosecutor's Course of Action
The prosecutor's (P) course of action in calling the first witness, Q, whom she intends to
cross-examine, is incorrect.
The function of cross-examination is to test the credibility, reliability, and accuracy of a
witness called by the opposing party. A prosecutor calls witnesses to present the State's
case, and once they've finished examining their own witness (examination-in-chief), it is the
defence counsel's turn to cross-examine that witness. The prosecutor cannot cross-examine
their own witness unless the witness is declared a hostile witness, which requires a specific
application to the court and a finding that the witness is deliberately being unhelpful to the
party that called them. Therefore, P's action of attempting to cross-examine her own witness
is procedurally wrong. The correct course of action for P would be to conduct an
examination-in-chief to lead Q's evidence.
4. Evaluation of the Magistrate's Finding
The magistrate's (M) finding to convict the accused of assault with intent to do grievous
bodily harm (a lesser offence) is permissible and correct under South African law.
This finding is based on the principle of competent verdicts. According to Section 260 of
the CPA, if an accused is charged with a specific offence, they can be convicted of a lesser
offence that is naturally included in the main charge, provided the evidence supports the
lesser charge.
In this case, the initial charge was robbery with aggravating circumstances, which includes
the element of assault. For a conviction of assault with intent to do grievous bodily harm, the
prosecution must prove that the accused committed an assault and had the specific intention
to cause serious harm. The facts of the scenario, where A was shot on his left shoulder during
a firefight, could provide sufficient evidence for the magistrate to find that the lesser offence
of assault with intent to do grievous bodily harm was proven, even if the main charge of
robbery with aggravating circumstances could not be established beyond a reasonable doubt.
