CPR3701 EXAM PACK 2023

Green true 1. The notion of “open justice” establishes a protective function in respect of the fair-trial rights of the accused. 2. Open justice can be limited in cases where the accused is in danger of being exposed as a state informant. 3. The accused can testify by way of closed-circuit television in cases where an open trial may cause him or her emotional or physical harm. 4. Witnesses are protected in cases of sexual assault and extortion by way of the court’s discretion to “close the court”. 5. Irrespective of the charge, if a matter relates to an adult accused and complainant, the court cannot exclude the public from the trial in the interests of justice. 6. The court, the prosecutor and the accused all have the power to subpoena witnesses. 7. The advantage of a joint trial is that it saves the state resources and time. 8. Joinder is permissive and not imperative. 9. The decision to separate a trial is at the discretion of the presiding officer. CPR3701/101 39 lOMoARcPSD| 10. Cross-examination of a witness by the court is permissible within the bounds of reasonableness. 11. The principle of equality of arms can be related to the competence of both the prosecutor and the representative for the defence. 12. An ex-tempore judgment does not infringe on the right of the accused to a speedy trial. 13. An improper delay in delivering judgment undermines public confidence in the judicial system. 14. Community service as a condition of a suspended sentence is not considered a punishment. 15. Most statutory offences are enacted with an attendant penalty clause. 16. Tradition seems to indicate that the state and the accused must supply the information required by the court during trial on sentencing. 17. Compensation and restitution are forms of restorative sentences. 18. Review is not solely the domain of the CPA. 19. The Superior Courts Act does not provide for review in criminal proceedings. 20. Judicial review has a common-law origin. 21. Any conviction, sentence, or order of a lower court, and even a discharge after conviction, are subject to leave to appeal. 22. An appeal on the facts relates to the merits of the matter in the trial court. 23. If the appellant files a notice of appeal after the prescribed period, he or she can apply for condonation, although the court is not obliged to grant it. 24. Expungement takes place in one of three ways: automatically, on application or when a certain period has lapsed. 25. The President is empowered to remit any fine, penalty or forfeiture within the confines of the Constitution. 1. Open justice can be equated with the concept that justice must be “seen to be done”. 2. Open justice is protected by the right to a fair trial and is an absolute right. 3. The court cannot exclude any member of the public from the trial of an adult accused. 4. In cases where a witness for the state is about to abscond, the prosecutor may apply for a warrant of arrest and have the said witness detained pending the trial. 5. Co-accused are ordered numerically. 6. The prosecution decides the numerical order of co-accused at a trial. 7. The court can of its own accord raise the issue of separation. Downloaded by Thomas Mboya () lOMoARcPSD| 8. The principle of legality is constitutionally entrenched. 9. The principle of equality of arms is founded on equal opportunities being available to both the state and the defence to prove their respective cases. 10. The merits of a case are the cardinal point of the court’s considerations when determining whether to convict or acquit. 30 11. Where required, the entire judgment of the court must be translated into a language that the accused understands. 12. In cases where the charge pertains to multiple acts or omissions, the court must deliver judgment separately on each individual charge. 13. Some sentences do not constitute punishments. 14. In Rabie 1975 (4) SA 855 (A) 862G, the court summarised the general principles of sentencing. 15. Imprisonment, committal to a treatment centre, a fine and correctional supervision are the only sentences that can be imposed by a court. 16. Periodical imprisonment is a form of short-term imprisonment and is also informally known as “weekend imprisonment”. 17. The Constitution secures a general right of review. 18. Fairness no longer entails enquiring whether there was a failure of justice, but whether the trial was fair. 19. Review is more appropriate than appeal in cases where the accused is dissatisfied with the procedures during the trial. 20. There is a general right of appeal in South Africa. 21. The right of appeal is justifiably limited by section 36 of the Constitution. 22. A person can appeal against the sentence imposed or the conviction – not both. 23. The Constitution empowers the President to pardon or reprieve offenders in certain circumstances. 24. The President is empowered to remit any fine, penalty or forfeiture within the confines of the Constitution. 25. The Department of Justice and Constitutional Development has the sole responsibility to expunge records on application by the accused. 1. The court is not entitled to postpone a case to consider the verdict. 2. Legislation expressly identifies the offences which are the subject of competent verdicts. Downloaded by Thomas Mboya () lOMoARcPSD| 3. Public violence is a competent verdict to a charge of murder. 4. Sentencing is the imposition of a sentence by the prosecution, on an offender. 5. Sentence is any measure which is applied by the court to the person convicted of a crime, and which finalises the case. 6. Minimum In order to be fair, punishment must only suit society. 7. Minimum sentences are applicable to all crimes. 8. In general, youth is regarded as an aggravating factor in sentencing. 9. The term ‘forms of imprisonment’ essentially depicts separate kinds of imprisonment rather than the description of terms of imprisonment. 10. The court must make enquiries into the means of the offender to pay the fine. 11. Both reviews and appeals are fundamentally aimed at setting aside convictions and sentences. 12. Automatic review is of English law origin. 13. Extraordinary review proceedings apply in respect of criminal proceedings which are not ordinarily subject to automatic review. 14. Criminal proceedings may not be reviewed after conviction but before sentencing. 15. Review may not be instituted at the instance of the prosecution. 16. The high court should, generally use its inherent review powers to interfere in lower courts in respect of unterminated criminal proceedings against. 17. A declaratory order should only be granted in respect of a dispute between parties. 18. Appeal may be noted before the finalisation of the criminal trial, in order to right patent wrongs in the proceedings. 19. A court of appeal does not possess the inherent power to correct the sentences of lower courts. 20. In an appeal on a question of law the question is not whether the court of appeal could have made the same finding but whether the trial court would have made such a finding. 21. The Criminal Procedure Act does not, in general, allow the prosecution to appeal against a decision on the merits or facts of a case. 22. The State President’s power to pardon offenders is Constitutionally mandated. 23. Expungement takes place in one of three ways: automatically, on application or when a certain period has lapsed. 24. Presidential clemency is never subject to judicial review. 25. The essence of Presidential clemency and parole is that both processes are restorative in nature. Downloaded by Thomas Mboya () lOMoARcPSD| 1. The prosecutor is entitled to address the court at the opening of the State’s case. 2. The procedure in terms of which the prosecution asks questions to its own witnesses is called cross-examination. 3. The procedure in terms of which the defence asks questions to the state witnesses is called examination-in-chief. 4. The prosecutor must close his or her case after all the evidence of the prosecution has been disposed of. 5. The test for a discharge is based on the question whether there is sufficient evidence upon which a reasonable man might convict. 6. The court is not required to give reasons for its judgment. 7. Common assault is a competent verdict to a charge of murder. 8. A caution amounts to a sentence. 9. A minimum sentence may be imposed in respect of any offence with which the accused has been convicted. 10. After convicting the accused, the court must forthwith sentence him or her without hearing further evidence. 11. Previous convictions are regarded as a mitigating factor in sentencing proceedings. 12. Life imprisonment is a determinate form of sentence in the sense that the accused is effectively incarcerated for the entirety of his or her lifetime. 13. The amount of the fine to be paid by the accused is left to the discretion of the prosecutor. 14. An appeal is concerned with the substantive correctness of the decision based on the facts or merits of the case on the record and the law relevant to such facts. 15. A review is concerned with the validity of the proceedings. 16. No review may be instituted at the instance of the prosecution. 17. The high court may order the proceedings of a lower court to start afresh upon making a finding of procedural irregularity. 18. A declaratory order can only be granted where there is a dispute between parties. 19. The right of appeal is not Constitutionally mandated. 20. A member of the public is permitted to approach the Constitutional Court directly. 21. An appeal court has the general discretion to correct a sentence. 22. An appeal court is in a better position to make reliable findings of credibility. 23. In an appeal on a question of fact, it is the duty of the court of appeal to retry or rehear the case on the record before the court together with any other evidential material. 24. There is, in principle, no right to be pardoned. Downloaded by Thomas Mboya () lOMoARcPSD| 25. The accused does not have further recourse beyond the process of appeal. 1. A criminal trial commences once an accused has pleaded in a court which has the required jurisdiction to hear evidence. 2. The phrase “in the course of a criminal trial” refers to all procedures which may or must be followed from the time the accused has pleaded until a verdict on the merits. 3. A criminal trial can be broadly described as a state-sponsored, public, judicial and primarily oral hearing. 4. The seven fundamental principles which govern a criminal trial are trial fairness, legality, judicial impartiality, equality of arms, judicial control, orality and finality. 5. At the end of a criminal trial, the court must consider and deliver its verdict based on the state’s ability to satisfy its burden of proof. . 6. An extempore judgment is one in which the court postpones its judgment owing to the complexity of the merits. 7. It is generally impossible for the accused to be convicted on another charge where the prosecutor manages to prove the elements of that crime as opposed to the crime as charged at the trial. 8. In cases where the accused is not legally represented, the court will be slow to conclude that the absence of a warning concerning the applicability of competent verdicts renders the trial unfair. 9. A sentence is any measure applied by a court to the person convicted of a crime and which finalises the case, except where specific provision is made for reconsideration of that measure. 10. All penalty clauses providing for the imposition of a fine must be read together with Act 105 of 1997. 11. In practice, after conviction, the accused indicates his or her previous convictions. 12. Tradition dictates that the accused provides the information required by the court during the trial for the purpose of sentencing. 13. The law is a precise instrument and therefore any consideration of what is deemed cruel, inhumane and degrading conduct is based on the certainty of doctrinal law. 14. Declaration as a dangerous criminal is a sui generis sentence which negates the traditional jurisdiction of the district court. Downloaded by Thomas Mboya () lOMoARcPSD| 15. An habitual criminal is one considered by society to be potentially harmful. 16. Periodical imprisonment is a form of imprisonment where the convict serves periods of his or her sentence on an outpatient basis at a psychiatric institute. 17. An accused who is dissatisfied with the decision of a lower court on fact or law may bring the matter before a division of a higher court by way of appeal or review. 18. Judicial review is a process which allows a court to set aside a statute or provision on the grounds of unconstitutionality. 19. No right, whether entrenched or not, is absolute. 20. Constitutional matters include issues of interpretation, protection or enforcement of the Constitution. 21. The criteria for an acceptable limitation of rights are prescribed by section 39 of the Constitution. 22. If an adult accused wishes to appeal the decision of a lower court, no leave to appeal is required. 23. When it is alleged in a lower court that a law is constitutionally invalid, the decision as to invalidity rests with the lower court, subject to review by a higher court on the basis of section 171 of the Magistrates’ Courts Act. 24. Owing to the supreme nature of the Constitution, direct access to the Constitutional Court is permitted regarding any issue relating to a procedural irregularity. 25. It is a general rule that there is no appeal before conviction. Question 1 a) Where a charge is defective for want of an averment which is an essential ingredient of the relevant offence, the defect can be cured by evidence at the trial proving the matter which should have been averred. b) Section 86 makes provision for amendment of the charge and requires that the proposed amendment must differ to such an extent from the original charge that it is in essence another charge. c) When the accused is called upon to plead to a charge and it appears uncertain whether he or she is capable of understanding the proceedings at the trial so as to be able to make a proper defence, an enquiry into his or her mental state must be made by the court, with the assistance of a general medical practitioner. d) Where an accused at a summary trial pleads not guilty, the presiding officer must inform the accused that he or she is not obliged to answer any questions. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statements (a) and (d) are correct. Downloaded by Thomas Mboya () lOMoARcPSD| (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 1: The accused is not compelled to make a statement in terms of section 115 of the CPA and can put the state to the proof of all elements where he or she chooses not to make any admissions. CMP3701/101 29 Downloaded by Thomas Mboya () lOMoARcPSD| question 2 + a) An accused, or his or her counsel on behalf of the accused, may admit any fact placed in issue. b) Open justice can be limited where a witness is in danger of being exposed as a state informant. c) The notion of open justice establishes a protective function in respect of the fair-trial rights of the accused. d) In general, the accused is entitled to access exculpatory documentation in the docket. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statement (c) is incorrect. (4) Only statement (d) is incorrect. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 2: Open justice is a form of openness as guaranteed by the founding provisions of the Constitution, 1996. Question 3 a) Where the legal adviser replies in writing or orally to any question by the court in terms of section 115(3), the accused must also confirm this, but the court may not require the accused to answer the questions personally. b) At the trial in the regional court of an accused on a charge of murder, the judicial officer must summon two assessors to assist him or her, unless the accused requests that the trial proceed without assessors. c) Section 112 can be used when an accused pleads guilty to a serious or less serious offence. d) It is possible for the accused to issue a written statement in terms of section 112. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (b) is incorrect. (5) Only statement (a) is incorrect. HINT FOR QUESTION 3: An accused is entitled to legal representation at the trial, and the legal representative acts as a shield between the accused and the court. The representative is entitled to answer on behalf of a client, but the court has a duty to ensure that the information put before the court is correct. 30 Downloaded by Thomas Mboya () lOMoARcPSD| Question 4 a) Only the accused person appears in the dock. b) Where persons are jointly charged, the mere possibility of prejudice is not sufficient to justify an order for separation of trials in such a case. c) Persons charged with separate offences alleged to have been committed at the same time and place, or at the same place and about the same time, may be tried jointly where the prosecutor informs the court that evidence admissible at the trial of one person will also be admissible as evidence at the trial of another person or persons. d) Generally, where no preparatory examination has been held, the indictment must be accompanied by a summary of the salient facts of the case in order to inform the accused of the allegations against him or her. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 4: Every general rule has an exception that is applicable in certain circumstances. The exception does not, however, completely exclude the operation of the general rule in ordinary circumstances. Question 5 a) If the accused’s refusal to plead is accompanied by such improper behaviour that it obstructs the conduct of the proceedings of the court, the court may order his or her removal and direct that the trial proceed in his or her absence. b) When the accused is called upon to plead to a charge, and it appears uncertain whether he or she is capable of understanding the proceedings at trial so as to be able to put forward a proper defence, an enquiry into his or her mental state should be made. c) Statutory plea bargaining in terms of section 105A of the Criminal Procedure Act means that the prosecutor can now reach an agreement with the defence on the sentence to be imposed. d) The indictment must be served on the accused in accordance with the rules of court. Service is complete the moment that the indictment is posted to the accused and received by him or her. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (d) is incorrect. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 5: The meaning of “return of service” is relevant when an accused is served with a summons to appear at the trial. CMP3701/101 31 Downloaded by Thomas Mboya () lOMoARcPSD| Question 6 a) A charge sheet containing the following averments complies with all necessary requirements in terms of section 84(1) of the Criminal Procedure Act 51 of 1977: “That the accused is guilty of unlawfully and intentionally killing Joey Smith, an adult female on the 21st of January 2001 at Groenkloof in the district of Pretoria.” b) Where an accused is convicted of both driving under the influence of liquor and reckless driving, and both counts are based on the same facts, this would not constitute an incorrect duplication of convictions. c) If assessors abscond during the trial without good reason and the magistrate continues with the trial without them, this amounts to a fatal irregularity which vitiates the proceedings. d) Generally, where an accused is caught selling dagga, he or she may be convicted only of selling and not also of possession of the rest of the unsold dagga. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statement (b) is incorrect. (4) Only statement (c) is correct. (5) Only statements (a) and (d) are correct. HINT FOR QUESTION 6: In some instances, the courts have made conflicting decisions as to what constitutes proper and improper splitting and duplication, and therefore we work with general principles; principles that are most often based on common sense. Question 7 a) The court must enter a plea of not guilty if the accused refuses to plead or answer directly to the charge. b) If the totality of the accused’s criminal conduct can be accommodated in one single charge, the accused may not be convicted on multiple charges. c) An accused can now be found guilty even though the indictment does not disclose an offence, as long as the evidence proves the offence. d) Section 86 of the Criminal Procedure Act makes provision for amendment of the charge and not for its replacement by an altogether new charge. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 7: The courts have issued conflicting judgments on issues of splitting and duplication, but there are general principles by means of which the issue can be approached in each case. 32 Downloaded by Thomas Mboya () lOMoARcPSD| Question 8 a) The rule against the splitting of charges has in fact always been directed at the duplication of convictions and was designed to apply in the field of punishment. b) Where an accused is charged with both rape and incest arising from the same act of intercourse, he will be convicted of both. c) If an assault is committed pursuant to or in the course of an attempt to escape, the accused should be convicted of one of these offences only. d) The prosecution or the accused may apply for the recusal of an assessor. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (b) is incorrect. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 8: The courts have issued conflicting judgments on issues of splitting and duplication, but there are general principles by means of which the issue can be approached in each case. Question 9 a) Threatening a judicial officer will materially affect his or her impartiality, and his or her refusal to recuse himself or herself on this ground is therefore irregular. b) An accused may plead truth and public benefit where the charge is one of criminal defamation. c) It is regular for a court to put questions directly to an accused who is represented. d) The right to silence has been greatly and negatively affected by the introduction of the “plea explanation” procedure at arraignment in terms of section 115 of the CPA. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (b) is correct. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 9: The right to remain silent does not amount to the right not to be questioned, but rather the right to refuse to answer any questions. CMP3701/101 33 Downloaded by Thomas Mboya () lOMoARcPSD| Question 10 a) In the case of traditional plea bargaining, the prosecutor and the defence cannot bind the court to a sentence. However, the prosecutor may agree to suggest a possible lighter sentence to the court. b) After the accused has brought an application for a separation of trials, a proper refusal to order a separation of trials will amount to an infringement of the accused’s right to a fair trial. c) An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question. d) The general principle is that the conducting of criminal trials should take place in open court and in the presence of the accused. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statement (b) is incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are correct. Question 1 a) The Constitution entrenches the right to a public trial. b) The right to a public trial can be validly limited where necessary. c) In terms of the CJA, open justice is generally limited. d) Open justice can be limited when the complainant is under the age of 18 years. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 1: In terms of section 63(5) of the CJA, the presiding officer has discretion to grant access to those whom the court considers necessary for the purpose of a trial. Question 2 a) In principle, an accused is entitled to access exculpatory documents in the docket. b) Where an accused is charged with a common law offence, the only requirement is that it be named in order for the charge sheet to be valid. c) Sections 86 and 88 of the CPA make provision for the same action in respect of the correction of a defect in the charge sheet. d) Provided that the accused is not prejudiced, section 86 can be used to replace a charge with another in the same matter. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statement (d) is incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are correct. HINT FOR QUESTION 2: Remember that section 88 is called the “silent cure”, whereas you can consider section 86 as an “active cure”. CMP3701/101 19 Downloaded by Thomas Mboya () lOMoARcPSD| Question 3 a) Circuit courts deviate jurisdictionally from the fixed division or seat of court. b) A child justice court is any court established in terms of the Children’s Act 38 of 2005. c) A child justice court can simultaneously serve as a children’s court where a child accused is affected by social or welfare issues. d) During arraignment of an accused, assessors take an oath to deliver a true judgment based on the merits of the case. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are incorrect. HINTS FOR QUESTION 3: A circuit court is a court that sits (i.e. hears a case) at a venue other than the high court prescribed for a certain jurisdictional area. Do not apply the principles of CIVIL PROCEDURE to this question, because the rules are different in criminal cases. With regard to child offenders, and the powers of the child justice court, make sure you consult section 50 of the CJA. Remember that a child justice court is a criminal court, even though it must make decisions using a restorative-justice framework and thereby ensure that the best interests of the child are served. Question 4 a) Where the plea of an accused is ambiguous, the court must enter a plea of not guilty and question the accused in terms of section 115 of the CPA. b) Truth and public benefit constitute a valid plea in terms of section 106 of the CPA. c) An accused cannot object to the information in a charge sheet or indictment, but can object to the fact that such charge sheet or indictment discloses insufficient detail. d) In traditional plea bargaining, the parties bind the court to a certain sentence in return for a guilty plea. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 4: We no longer use the phrase “excepting to a charge” in South African criminal courts. 20 Downloaded by Thomas Mboya () lOMoARcPSD| Question 5 a) A charge sheet (or indictment) does not necessarily have to disclose an offence in order to be valid. b) An indictment must be served on the accused at most 14 days before the trial. c) It is mandatory for the prosecution to attach a list of witnesses to the charge sheet. d) The prosecution cannot deviate from the information in a charge sheet or indictment. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (a) and (b) are correct. (4) Only statement (c) is correct. (5) Only statement (a) is correct. HINT FOR QUESTION 5: Remember that sections 86 and 88 of the CPA allow for a defect to be cured or an error to be corrected if the accused is not prejudiced thereby. Question 6 a) Any number of participants in the same offence may be tried jointly. b) Any number of accessories after the same fact may be tried jointly. c) Joinder is permissive and not imperative. d) Refusal to join is not in itself an irregularity. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statements (a) and (b) are correct. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 6: Refer to Shaik 2008 (1) SACR 1 (CC). Question 7 a) Section 115 of the CPA allows the accused to plead not guilty but to admit to certain elements of the offence. b) Statutory plea bargaining can only take place where the accused is represented. c) A child offender cannot enter into a statutory or traditional plea bargain. d) Diversion is a form of plea bargaining. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statement (c) is incorrect. (4) Only statement (d) is incorrect. (5) Only statements (c) and (d) are incorrect. CMP3701/101 21 Downloaded by Thomas Mboya () lOMoARcPSD| HINT FOR QUESTION 7: Consider the requirements of section 105A of the CPA as opposed to the requirements of section 52 of the CJA. Question 8 a) It is not necessary for the court to question an accused who has pleaded guilty in terms of section 112 of the CPA. b) A child offender can plead guilty at the preliminary-inquiry stage in terms of section 112 of the CJA. c) Section 115 of the CPA can be used to alter a plea of guilty to one of not guilty where, during the arraignment phases, the court finds that the accused has a defence. d) After pleading, the accused is entitled, without exception, to a verdict. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are incorrect. HINTS FOR QUESTION 8: Firstly, keep in mind that, if a statement is partly correct and partly incorrect, it is considered entirely incorrect for purposes of this assignment. Secondly, with regard to child offenders, the preliminary inquiry is considered a first appearance in terms of section 43(3)(c) of the CJA. Question 9 a) Sections 77 to 79 of the CPA apply to child offenders. b) A court will, in principle, grant a postponement to allow the accused an opportunity to find work in order to pay for legal representation. c) There are limitations to the length of time for which a child justice proceeding can be postponed. d) A fair trial includes the right to a speedy trial. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (b) is incorrect. (5) Only statements (a) and (d) are incorrect. HINT FOR QUESTION 9: “Child justice proceeding” refers to both preliminary inquiry and trial. 22 Downloaded by Thomas Mboya () lOMoARcPSD| Question 10 a) Section 336 of the CPA provides that, where an act constitutes an offence under a statutory and a common law provision, the accused can be convicted and sentenced under either the statutory or common law provision. b) There is no consensus on the part of South African courts as to whether the conduct of a perpetrator that occurs over a long period of time should form the subject of a single conviction or multiple convictions. c) A court can order the removal of a trial from one venue to another venue if the court deems it necessary or expedient. d) In a division of the high court, the presiding judge has discretion to sit with or without assessors. (1) All of the statements are incorrect. (2) All of the statements are correct. (3) Only statements (c) and (d) are incorrect. (4) Only statement (a) is correct. (5) Only statements (a) and (d) are incorrect. 1. The notion of “open justice” establishes a protective function in respect of the fair-trial rights of the accused. 2. Open justice can be limited in cases where the accused is in danger of being exposed as a state informant. 3. The accused can testify by way of closed-circuit television in cases where an open trial may cause him or her emotional or physical harm. 4. Witnesses are protected in cases of sexual assault and extortion by way of the court’s discretion to “close the court”. 5. Irrespective of the charge, if a matter relates to an adult accused and complainant, the court cannot exclude the public from the trial in the interests of justice. 6. The court, the prosecutor and the accused all have the power to subpoena witnesses. 7. The advantage of a joint trial is that it saves the state resources and time. 8. Joinder is permissive and not imperative. 9. The decision to separate a trial is at the discretion of the presiding officer. 10. Cross-examination of a witness by the court is permissible within the bounds of reasonableness. 11. The principle of equality of arms can be related to the competence of both the prosecutor and the representative for the defence. 12. An ex tempore judgment does not infringe on the right of the accused to a speedy trial. 13. An improper delay in delivering judgment undermines public confidence in the judicial system. 14. Community service as a condition of a suspended sentence is not considered a punishment. 15. Most statutory offences are enacted with an attendant penalty clause. Downloaded by Thomas Mboya () lOMoARcPSD| 16. Tradition seems to indicate that the state and the accused must supply the information required by the court during trial on sentencing. 17. Compensation and restitution are forms of restorative sentences. 18. Review is not solely the domain of the CPA. 19. The Superior Courts Act does not provide for review in criminal proceedings. 20. Judicial review has a common-law origin. 21. Any conviction, sentence or order of a lower court, and even a discharge after conviction, are subject to leave to appeal. 22. An appeal on the facts relates to the merits of the matter in the trial court. 23. If the appellant files a notice of appeal after the prescribed period, he or she can apply for condonation, although the court is not obliged to grant it. 24. Expungement takes place in one of three ways: automatically, on application or when a certain period has lapsed. 25. The President is empowered to remit any fine, penalty or forfeiture within the confines of the Constitution. 1. Open justice can be equated with the concept that justice must be “seen to be done”. 2. Open justice is protected by the right to a fair trial and is an absolute right. 3. The court cannot exclude any member of the public from the trial of an adult accused. 4. In cases where a witness for the state is about to abscond, the prosecutor may apply for a warrant of arrest and have the said witness detained pending the trial. 5. Co-accused are ordered numerically. 6. The prosecution decides the numerical order of co-accused at a trial. 7. The court can of its own accord raise the issue of separation. 8. The principle of legality is constitutionally entrenched. 9. The principle of equality of arms is founded on equal opportunities being available to both the state and the defence to prove their respective cases. 10. The merits of a case are the cardinal point of the court’s considerations when determining whether to convict or acquit. 30 11. Where required, the entire judgment of the court must be translated into a language that the accused understands. 12. In cases where the charge pertains to multiple acts or omissions, the court must deliver judgment separately on each individual charge. 13. Some sentences do not constitute punishments. Downloaded by Thomas Mboya () lOMoARcPSD| 14. In Rabie 1975 (4) SA 855 (A) 862G, the court summarised the general principles of sentencing. 15. Imprisonment, committal to a treatment centre, a fine and correctional supervision are the only sentences that can be imposed by a court. 16. Periodical imprisonment is a form of short-term imprisonment and is also informally known as “weekend imprisonment”. 17. The Constitution secures a general right of review. 18. Fairness no longer entails enquiring whether there was a failure of justice, but whether the trial was fair. 19. Review is more appropriate than appeal in cases where the accused is dissatisfied with the procedures during the trial. 20. There is a general right of appeal in South Africa. 21. The right of appeal is justifiably limited by section 36 of the Constitution. 22. A person can appeal against the sentence imposed or the conviction – not both. 23. The Constitution empowers the President to pardon or reprieve offenders in certain circumstances. 24. The President is empowered to remit any fine, penalty or forfeiture within the confines of the Constitution. 25. The Department of Justice and Constitutional Development has the sole responsibility to expunge records on application by the accused. 1. Escaping from unlawful custody constitutes a serious offence. 2. Public violence is a competent verdict to a charge of murder. 3. South Africa does not follow a system of compulsory prosecution. 4. A defect in the charge sheet or indictment may be cured by evidence. 5. In general, youth is regarded as an aggravating factor in sentencing. 6. A declaratory order may be applied for in order to establish a conviction. 7. An application for leave to appeal may not be brought verbally in the lower court and the higher courts directly after the verdict. 8. Extraordinary review proceedings apply in respect of criminal proceedings which are not ordinarily subject to automatic review. 9. The police are empowered in the case of certain serious offences to arrest persons and detain them for the purpose of interrogation. 10. Section 9 of Child Justice Act 75 of 2008 deals with the procedure for child offenders between 10 and 14 years of age. 11. The methods of securing the attendance of a child at a preliminary inquiry are limited to arrest. 12. The purpose of the probation officer’s report is to determine the criminal capacity of the child offender. 13. A preliminary inquiry is an informal inquisitorial procedure conducted in court. 14. Condonation will be readily granted by the court if there is a reasonable prospect of a successful appeal. 15. The trial of the accused does not usually commence at his first appearance in court. Downloaded by Thomas Mboya () lOMoARcPSD| 1. A district court has the jurisdiction to try serious offences against the State. 2. The function of further particulars is to define issues and not to enlarge them. 3. The procedure in terms of which the defence asks questions to the state witnesses is called examination-in-chief. 4. The test for a discharge is based on the question whether there is sufficient evidence upon which a reasonable man might convict. 5. Generally, force must be used to effect arrest. 6. Common assault is a competent verdict on a charge of murder or attempted murder. 7. A caution amounts to a sentence. 8. A prosecutor may withdraw a case without the permission of the DPP. 9. A convicted accused may appeal his or her conviction by a district court to a regional court in the same division. 10. Previous convictions are regarded as a mitigating factor in sentencing proceedings. 11. The state is dominus litis and is therefore in control of the prosecution. 12. The amount of the fine to be paid by the accused is left to the discretion of the prosecutor. 13. An appeal court has the general discretion to correct a sentence. 14. A review is concerned with the validity of the proceedings. 15. No review may be instituted at the instance of the prosecution. 1. The right to a fair trial includes the right to a prosecutor who acts without fear, favour or prejudice. 2. Section 186 of the Criminal Procedure Act empowers the court to recall witnesses who have previously testified at the trial so that they can be examined by the court. 3. In terms of section 63(4) of the Child Justice Act, the court may not interfere in the cross-examination of a child. 4. The court must control and manage the proceedings within the bounds of the law and without sacrificing its impartiality. 5. The presiding officer must make sure that the accused understands the language used by a witness. 6. The principle of finality demands that the state and the accused have an opportunity to reopen their cases where they previously failed to examine evidence introduced in the main trial. 7. Cross-examination partly by the accused and partly by his or her legal representative must be avoided. 8. Section 174 (CPA) provides that, if there is no chance that the accused will incriminate himself or herself during his or her defence, he or she must be discharged from prosecution. 9. The so-called “Shuping test” is the constitutional test for section 174 (CPA). 10. An accused may not be discharged at the end of the state’s case if there is a possibility that he or she will incriminate himself or herself during his or her defence. 11. The constitutional right of the public to justice demands that an application in terms of section 174 (CPA) be denied if there is a reasonable possibility that the accused will discharge the burden of proof in his or her defence. Downloaded by Thomas Mboya () lOMoARcPSD| 12. In order to definitively prove the innocence of the accused, the defence may proceed with its case even where the court has granted a section 174 (CPA) discharge. 13. The accused must be informed of the charge against him or her in sufficient detail to answer it. 14. If there is no proof that the accused was a perpetrator or co-perpetrator or accomplice in the crime charged, he or she may be convicted as an accessory after the fact to the crime charged should there indeed be proof that he or she acted in such capacity. 15. The court is functus officio after delivery of judgment. 16. Section 176 is primarily aimed at a situation where a court inadvertently sentences the accused to punishment which, on further consideration, is too harsh. 17. A court has a wide-ranging sentencing discretion. 18. Rabie 1975 (4) SA 855 emphasised the role of the criminal, the crime and society in the implementation of punishment. 19. If a court is satisfied that substantial and compelling circumstances exist which justify a lesser sentence, it must deviate from the sentence prescribed. 20. After previous convictions have been proven, the accused is entitled to lead evidence in aggravation of sentence. 21. As a general principle, young offenders are sentenced more leniently than adults. 22. A person convicted time and again for similar offences will progressively be punished more severely. 23. One of the first decisions of a sentencing court is whether to remove the offender from society or to punish him or her within the community. 24. Ordinary imprisonment for a term determined by the court is the most common form of imprisonment. 25. Life imprisonment can only be imposed by a division of the high court, unless the Criminal Law Amendment Act 105 of 1997 allows a regional court to impose imprisonment for life. 26. The Criminal Procedure Act provides that any reference in a statute to a minimum period of imprisonment of more than three months must be construed as a reference to a period of exactly three months. 27. Courts do not have a wide discretion with regard to the imposition of a fine as a form of sentence. 28. Sections 287(2), 288 and 289 of the Criminal Procedure Act provide the means by which fines may be recovered. 29. In terms of section 172 of the Constitution, the Supreme Court of Appeal is a competent court as a court of first instance on a constitutional matter. 30. In terms of section 172 of the Constitution, an association acting in the interests of its members lacks locus standi in the Constitutional Court. 31. Any person may, by way of the action procedure, approach any court to confirm an order of constitutional invalidity. Downloaded by Thomas Mboya () lOMoARcPSD| 32. Access to courts competent to hear constitutional matters may be gained by way of leave to appeal. 33. There is a vast difference between appeal and review proceedings, since only one aims at setting aside a conviction or sentence. 34. A review may be brought against the finding of a lower court on any point of law and/or fact, whereas an appeal may only be brought on the ground of a specific procedural irregularity. 35. In an appeal, the parties are confined to what appears on the record, but, in a review, it is permissible to prove any of the grounds for review. 36. A review is generally not permissible on a finding of fact, unless the finding is so unreasonable that it constitutes an irregularity. 37. After the decision in Ntuli 1997 (2) SACR 19 (CC), all convicted persons had an absolute or unlimited right of appeal. 38. Evidence of certain formal matters may be given by way of affidavit but is subject to the right of the opposing party to object to such evidence. 39. Where a magistrate has made a mistake in the recording of the evidence, he/she cannot correct the mistake after sentence as he/she is then functus officio. 40. It is accepted practice that the prosecutor in a superior court trial is obliged to call all the witnesses who made depositions at the preparatory examination. 41. Where an accused has more than one legal representative, only one of the representatives is permitted to cross-examine any particular state witness. 42. If an accused’s application for discharge at the end of the state’s case is successful, the director of public prosecutions (or public prosecutor) may appeal in terms of section . 43. The legislature did not specially provide for an “accessory before the fact” as a competent verdict on a charge of having committed an offence. However, such a person can be charged and punished as a principal offender. 44. All sentences should take into account only the (so-called) main purposes of punishment, namely retribution, deterrence, prevention and rehabilitation. 45. In the United States of America, the death penalty itself has not been held to be unconstitutional. 46. In terms of the Constitution, the Constitutional Court found the death penalty not to be cruel, inhuman and degrading. 47. Life imprisonment is an indeterminate sentence, because, when it is imposed, it is unknown for how long the offender will be imprisoned. 48. A court may discharge an offender with a mere caution and, although the discharge has the effect of an acquittal, the conviction is still recorded and counts as a previous conviction. 49. A full court is a court of appeal and not a court of first instance, and, consequently, a criminal trial cannot be conducted before such a court. 50. A child justice court is any court properly constituted in terms of the Children’s Act 38 of 2005. Downloaded by Thomas Mboya () lOMoARcPSD| Question 1 (a) A charge sheet containing the following averments complies with all necessary requirements in terms of section 84(1) of the Criminal Procedure Act 51 of 1977: “That the accused is guilty of unlawfully and intentionally killing Joey Smith, an adult female on the 21st of January 2001 at Groenkloof in the district of Pretoria.” (b) Where an accused is convicted of both driving under the influence of liquor and reckless driving, and both counts are based on the same facts, this would not constitute an incorrect duplication of convictions. (c) If assessors abscond during the trial without good reason and the magistrate continues with the trial without them, this amounts to a fatal irregularity which vitiates the proceedings. (d) Generally, where an accused is caught selling dagga, he or she may be convicted only of selling and not also of possession of the rest of the unsold dagga. [1] All of the statements are incorrect. [2] All of the statements are correct. [3] Only statement (b) is incorrect. [4] Only statement (c) is correct. [5] Only statements (a) and (d) are correct. HINT FOR QUESTION 1: In some instances, the courts have made conflicting decisions as to what constitutes proper and improper splitting and duplication, and therefore we work with general principles, principles that are most often based on common sense. CMP3701/101 49 Downloaded by Thomas Mboya () lOMoARcPSD| Question 2 (a) In the case of traditional plea bargaining, the prosecutor and the defence cannot bind the court to a sentence. However, the prosecutor may agree to suggest a possible lighter sentence to the court. (b) After the accused has brought an application for a separation of trials, a proper refusal to order a separation of trials will amount to an infringement of the accused’s right to a fair trial. (c) An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question. (d) The general principle is that the conducting of criminal trials should take place in open court and in the presence of the accused. [1] All of the statements are incorrect. [2] All of the statements are correct. [3] Only statement (b) is incorrect. [4] Only statement (a) is correct. [5] Only statements (a) and (d) are correct. HINT FOR QUESTION 2: The rights contained in section 35 of the Constitution can be validly and properly limited in certain instances. Question 3 (a) Where the legal adviser replies in writing or orally to any question by the court in terms of section 115(3), the accused must also confirm this, but the court may not require of the accused to answer the questions personally. (b) At the trial in the regional court of an accused on a charge of murder, the judicial officer must summon two assessors to assist him or her, unless the accused requests that the trial proceed without assessors. (c) Section 112 can be used when an accused pleads guilty to a serious or less serious offence. (d) It is possible for the accused to issue a written statement in terms of section 112. [1] All of the statements are incorrect. [2] All of the statements are correct. [3] Only statements (c) and (d) are incorrect. [4] Only statement (b) is incorrect. [5] Only statement (a) is incorrect. HINT FOR QUESTION 3: An accused is entitled to legal representation at the trial, and the legal representative acts as a shield between the accused and the court. The representative is entitled to answer on behalf of a client, but the court has a duty to ensure that the information put before the court is correct. 50 Downloaded by Thomas Mboya () lOMoARcPSD| Question 4 (a) Only the accused person appears in the dock. (b) Where persons are jointly charged, the mere possibility of prejudice is not sufficient to justify an order for separation of trials in such a case. (c) Persons charged with separate offences alleged to have been committed at the same time and place, or at the same place and about the same time, may be tried jointly where the prosecutor informs the court that evidence admissible at the trial of one person will also be admissible as evidence at the trial of another person or persons. (d) Generally, where no preparatory examination has been held, the indictment must be accompanied by a summary of the salient facts of the case in order to inform the accused of the allegations against him or her. [1] All of the statements are incorrect. [2] All of the statements are correct. [3] Only statements (c) and (d) are incorrect. [4] Only statement (a) is correct. [5] Only statements (a) and (d) are incorrect. HINT FOR QUESTION 4: Every general rule has an exception that is applicable in certain circumstances. The exception does not, however, completely exclude the operation of the general rule in ordinary circumstances. CMP3701/101 51 Downloaded by Thomas Mboya () lOMoARcPSD| Question 5 (a) If the accused’s refusal to plead is accompanied by such improper behaviour that it obstructs the conduct of the proceedings of the court, the court may order his or her removal and direct that the trial proceed in his or her absence. (b) When the accused is called upon to plead to a charge, and it appears uncertain whether he or she is capable of understanding the proceedings at trial so as to be able to put forward a proper defence, an enquiry into his or her mental state should be made. (c) Statutory plea bargaining in terms of section 105A of the Criminal Procedure Act means that the prosecutor can now reach an agreement with the defence on the sentence to be imposed. (d) The indictment must be served on the accused in accordance with the rules of court. Service is complete the moment that the indictment is posted to the accused and received by him or her. [1] All of the statements are incorrect. [2] All of the statements are correct. [3] Only statements (c) and (d) are incorrect. [4] Only statement (d) is incorrect. [5] Only statements (a) and (d) are incorrect. HINT FOR QUESTION 5: The meaning of “return of service” is relevant when an accused is served with a summons to appear at the trial. 52 Downloaded by Thomas Mboya () lOMoARcPSD| Question 6 (a) Where a charge is defective for want of an averment which is an essential ingredient of the relevant offence, the defect can be cured by evidence at the trial proving the matter which should have been averred. (b) Section 86 makes provision for amendment of the charge and requires that the proposed amendment must differ to such an extent from the original charge that it is in essence another charge. (c) When the accused is called upon to plead to a charge and it appears uncertain whether he or she is capable of understanding the proceedings at the trial so as to be able to make a proper defence, an enquiry into his or her mental state must be made by the court, with the assistance of a general medical practitioner. (d) Where an accused at a summary trial pleads not guilty, the presiding officer must inform the accused that he or she is not obliged to answer any questions. [1] All of the statements are incorrect. [2] All of the statements are correct. [3] Only statements (c) and (d) are incorrect. [4] Only statements (a) and (d) are correct. [5] Only statements (a) and (d) are incorrect. HINT FOR QUESTION 6: The accused is not compelled to make a statement in terms of section 115 of the CPA and can put the state to the proof of all elements where he or she chooses not to make any admissions. CMP3701/101 53