Cpr3701 Portfolio Memo - May/June 2025 - Semester 1 - Unisa - Due Date :- 30 May 2025 - (Detailed Answers With Footnotes And Bibliography - Distinction Guaranteed!)

CPR3701 PORTFOLIO MEMO - MAY/JUNE 2025 - SEMESTER 1 - UNISA - DUE DATE :- 30 MAY 2025 - (DETAILED ANSWERS WITH FOOTNOTES AND BIBLIOGRAPHY - DISTINCTION GUARANTEED!) Section 1 1.1 The Criminal Procedure Act 51, 1977 (CPA) contains a Schedule (list) of offences in respect of which different crimes are classified. Name the main charge (one only) to be preferred against K, L and B, and the Schedule under which the crime is classified in terms of the CPA. (2) 1.2 Name any court (according to the hierarchy of courts, not the location) which may enjoy trial jurisdiction in respect of the charge set out in 1.1 above, and the reason why the case may be heard in said jurisdiction. (2) 1.3 After K, L and B’s first appearance, the court sets down the case to a different date for further investigations. Briefly explain whether the further ‘setting down’ of the case to a different date constitutes a postponement or an adjournment (and why you say so). (2) PLEASE NOTE: You will not be awarded marks for describing the difference between postponement and adjournment or providing a definition of either. 1.4 During the subsequent trial, the magistrate, M, decides that she is, in fact, dominus litis, and therefore has the duty to prepare the charges against the accused. Briefly discuss the accuracy or otherwise of M’s assertion. (2) 1.5 It also transpires during further investigations that L was not actually responsible for taking P but was only responsible for hiding P at a “safehouse” after the initial taking. Briefly explain whether L may be designated as perpetrator or accomplice, and why you say so. (2) NB: you will not be awarded marks for merely giving the definitions or differences between an accomplice and a perpetrator. [10] Section 2 2.1 L subsequently turns state witness against K and B, in return for which the case is withdrawn against her. However, A, P’s biological father and legal guardian, is unhappy about this outcome (to withdraw the case against L), particularly because P has not yet been found. He thereupon decides to institute a private prosecution against L. Briefly evaluate whether A has locus standi to institute private prosecution against L in terms of section 7 of the Criminal Procedure Act 51, 1977. (4) 2.2 Upon A’s application to institute private prosecution, he is informed by the Director of Public Prosecutions (DPP) to “rather institute civil action … and that proceeding with a private prosecution will only harm your chances of success (in civil proceedings) if the private prosecution falls through”. Critically analyse the DPP’s position with reference to South African jurisprudence. (4) 2.3 During the subsequent trial, L refuses, when called upon to do so by the court, to take the oath, and also to testify. Name and briefly describe the designation of L as a witness in South African law, and why she is regarded as such. (3) 2.4 “A person ... can … be said to have ‘reasonable grounds’ to believe or suspect something if he or she actually believes or suspects it … if this belief or suspicion is based on facts from which he or she has drawn an inference, and if any reasonable person would, in view of those facts, have drawn the same inference.” Critically analyse whether, in the absence of any other evidence (as set out in the facts above), an objective finding might, in your view, be arrived at, justifying the notion that there are “reasonable grounds” to arrest K, L and B for the commission of the crime set out in 1.1, above. (10) 2.5 The arrest of K, L and B was effected by members of the community who, after seeking explanations from them regarding the disappearance of P (the child), were not satisfied with the seemingly “unsatisfactory and cheeky responses from the suspects”. Briefly explain the legality of the action of the community members in arresting K, L and B. (4) [25] Section 3 K and B decide to apply for bail, based on the classification of the offence to be preferred against the accused as set out in 1.1, above, 3.1 P, the prosecutor, argues that the onus of proof to justify release lies with the accused; 3.2 P, the prosecutor, also argues that the standard of proof in respect of the offence set out in 1.1 is proof beyond any reasonable doubt. (2) (2) Briefly evaluate the accuracy or inaccuracy of both the prosecutor’s assertions. 3.3 During the bail application, M, the magistrate, poses the following questions to the accused, namely, (i) “Have you ever been previously convicted of any criminal offence?”; (ii) “Do you have any outstanding cases in respect of which you are attending court as we speak?” Both accused respond through their attorney, L, in the negative to both questions. However, N, the investigating officer, reveals, during his testimony in the bail application that B was, in fact, convicted of assault with intent to do grievous bodily harm five years earlier, and given a wholly suspended 5-year sentence. K, on the other hand, has a pending case at a different court for the unlawful possession of mandrax tablets. She was released on warning in respect of said charge, and the case was set down to a different date for further investigations. L (the accused’s attorney) argues, however, that: “It is a long-established principle of the Law of Evidence that the court should not be exposed to the accused’s previous convictions or outstanding cases, to avoid assuming pre-conceived notions against the accused, which may result in bias.” Critically discuss L’s assertions against prevailing bail legislation. (10) 3.4 In terms of section 84(1) of the Criminal Procedure Act 51, 1977, an indictment or charge sheet must explain the charges against the accused in clear and unambiguous terms. Equally, section 35(3)(a) of the Constitution of the Republic of South Africa, 1996, advocates the right to a fair trial, which includes the right “to be informed of the charge with sufficient detail to answer it”. At the start of the trial, the following charge is put to the accused: “The accused are charged with the offence of taking the victim P.” Critically evaluate whether the content of the charge sheet complies with the legislative and Constitutional imperatives set out above. (10) [24] Section 4 4.1 During the subsequent trial, B refuses to take the prescribed oath. He informs the court that he essentially regards himself “non-religious”, and does not, therefore, regard the oath as binding on his conscience. Briefly state the applicable rule of procedure when it comes to the taking of the oath, and also explain the procedure which is supposed to follow B’s refusal to take the prescribed oath. (6) 4.2 At the conclusion of the prosecution’s case, the accused are called upon to testify, after the denial of their application for a discharge in terms of section 174 of the Criminal Procedure Act 51, 1977. The accused elect not to testify in their own defence, or to call witnesses. L (the accused’s attorney) argues that “the State does not have a case against the accused upon which to answer”. PLEASE NOTE: the question does not require a discussion of section 174 of the Criminal Procedure Act 51, 1977. 4.2.1 Critically evaluate the legitimacy of the accused’s posture (through their attorney) and the advantages / consequences that may follow from such defence; and (7) 4.2.2 Write your own conclusion, based on the facts set out above, and refer to the advantages / consequences for the accused, in light of the merits of this case if they decline the right to present evidence. (3) [16] [TOTAL: 80]