CRIMINAL PROCEDURE
CHAPTER 1- Introduction
DEF: Criminal procedure- enforcing substantive criminal law. Machinery to achieve the criminal
justice goals. Legitimizing the criminal law function. Regulates the procedures according to which the
norms and sanctions of criminal law is enforced. (part of adjectival law aka formal law which puts
substantive criminal law into practice)
Criminal procedure divided into 3 phases
1. Pre-trial: e.g.- complaint, arrest, bail, investigation
2. Trial: court hears the case, judgement (possibility of discharge if for example no evidence)
3. Appeal and review [due to dissatisfaction of outcome]
Double functionality of CPL they regulate procedure AND act as a ground of justification in
substantive law. E.g.- if a police officer infringes suspects right to privacy by searching them i.t.o CPA
= lawful limitation of rights and regular procedural action.
o If the search was unlawful and not according to CPA = exclusion of such evidence [formal
consequence] and a substantive consequence would be a claim for damages.
o But umbrella of protection not available if the state acts unfairly. e.g.- Shashape case
(received bad anonyms’ tip)
Tension between Crime control and due process
Background: there is a need to find balance between interest of society in effective criminal law
enforcement and interest of society in the protection of the rights and freedom of individuals
suspected, arrested, charged, convicted or sentenced. crim. proc. seeks to do this (no mem.)
o Packer “the limits of the criminal sanction”
Crime Control model: repression of criminal conduct is the most important function to
be performed by the criminal process
Due Process model: is based on the principle that the primary function/goal of criminal
justice system is not only to secure conviction/sentence but to ensure that these
results are achieved in terms of rules which duly and properly acknowledge the rights
of an individual at every critical stage = Supported by Bill of rights
BOTH try to achieve the same purpose of further the goals of substantive crim. law
balance should be sought between the two in real life.
o Public perceptions “Constitution is pro criminal”
o historical context “detention without trial”
o Due process (legality/rule of law) and need to limit state power
Due process = there must be practical limitations on state power in the detection,
investigation, prosecution and punishment of crime
o Internal Tensions
, Cannot create strict crim. proc. rules on the assumption that these will only be applied
to criminals. [take into consideration innocent people in beginning stages- their liberty
should not be sacrificed for efficiency of crime control].
Criminal procedure rules should regulate state powers in a positive and negative sense
e.g. rules authorizing police to do certain things but also rules limiting their authority to
do so
Conflict between the rights of the accused and the rights of the victim.
s 35(5) of the Constitution- Evidence obtained in a manner that infringes rights
contained in the Bill of Rights is excluded [should such evidence be included in pursuit
of the truth]
o victims’ rights- par 2.4: Roach ‘Four models of the Criminal Process’ (1999).
Punitive model: Rights of victims of crime are worthy of respect [crime control model]
Non- Punitive model: prefers to put emphasis on prevention of crime and restorative
justice.
Restorative justice- process outside of the normal criminal justice system. Not
appropriate in violent crimes.
In SA: Child Justice Act 75 van 2008 – restorative justice is an approach to justice that
aims to involve the child offender/victim and families to collectively identify and
address harms/needs through accepting responsibility, making restitution, taking
measures to avoid recurrence, promoting reconciliation.
VICTIM PARTICIPATION
o Often reduced to that of a witness
o Victims have very limited participation (see summary in slide 16)
S 105 CPA- plea & sentence agreement (victim of the crime must give input on this)
S 300 CPA- Compensation order from court (e.g.- in cases of theft)
S 179 Constitution- victims must be consulted in the decision to prosecute (national
prosecuting association has no obligation to prosecute)
Service Charter for Victims of Crime in South Africa- No absolute right to be heard
Case Para 21(3) National Instruction on Sexual Offences- Impact statement: victims of
sexual offences (these victims are entitled to give this statement if they so choose)
S 299A CPA & S 75(4) Correctional Services Act- The victims have a right to testify at
these parole hearings. Serious crimes – (day) parole under correctional supervision
S 7 CPA- if declined to prosecute, you can institute a private prosecution
WITNESS/ VICTIM PARTICIPATION [protection of them]
o S 144 CPA- Withholding of names
o S 153 CPA- someone can testify in camera (can do so anonymously)
o S 158 CPA- someone can testify via CCTV or similar means
o S 170 CPA- Intermediary: hear questions and relay them to witness in a less intimidating way
Below mental/physical age
Undue mental stress
, o Criminal Law (Sexual Offences and Related Matters Amendment Act) 32 of 2007 (SORMAA)-
Framework for protection of sexual offence victims
o Witness Protection Act 112 of 1998 & Prevention of Organized Crime Act 121 of 1998- Under
threat of person or group of persons (they are not forced to physically testify)
o Part 16: Prosecution Directives [Principles: safety/protection of witnesses]
CONSTITUTIONAL CRIMINAL PROCEDURE
1. Impact of Constitution- all legislation must be in line with constitution. E.g.- change in CPA in
S v Makwanyane with regards to capital punishment
2. Bill of rights
S 7 & 8- bill of rights cornerstone of democracy. State must protect, respect, promote,
fulfil the bill of rights [7]. Vertical and horizontal application [8]. (pg-17)
S 36: limitation clause [entrenched rights which may only be limited if reasonable and
justifiable to do so]
S 37: State of emergency – non-derogable rights are “human dignity” and “life”
o Derogation means the relaxing of a law
S 38: locus standi in constitutional litigation [anyone acting in their own interest or
interest of someone else who cannot act in his/her own name, anyone acting in public
interest, an association acting on behalf of its members]
S 39: Interpretation of Bill of Rights –international law must be considered
3. NBBBB- S 35 of constitution: rights of detained, arrested, accused. (Case: Veldman v DPP)
not a numerous clauses of rights. Courts can interpret this.
PASSIVE DEFENCE RIGHT
a) presumption of innocence
every person is regarded as innocent until convicted by court of law
b) burden and standard of proof (beyond a reasonable doubt must be proven by the state)
c) presumption of innocence and nature of the crime [presumption stands irrespective of the
type of crime]
d) right to remain silent & privilege against self-incrimination
35(1)(a)- accused has right to remain silent
35(1)(b)- cannot be compelled to make a confession that might be used against you
S 35(3)(h) and (j)- right to silence and not to testify in proceedings
[legal guilt- grounds of justification can exclude this] [suspect not charged yet but accused was
charged]
ACCUSATORIAL VS INQUISITORIAL CRIMINAL PROCEDURE
SA we have an accusatorial system. NPA decides whether they are going to prosecute the
case.
Difference is in the function of the parties
, Inquisitorial:
o Judicial officer- master of the proceedings (dominus litis) actively conducts search
for truth by questioning witness and accused
o Prosecuting authority-
o Accused-
o Victims- is party to the proceedings [can have lawyer]
Accusatorial:
o Judicial officer- passive. Detached umpire
o Prosecuting authority- primary investigating force (dominis litis)
o Accused-
o Victims- often reduced to witness (see above notes)
Historical background of criminal procedure in SA:
1. 1652-1806: roman dutch law basis + inquisitorial process
o Torture practices were allowed to get a confession- burning, drowning, whipping
2. 1806: 2nd British occupation of cape. Roman Dutch law substantive and English law
accusatorial influence on process. Allowed the colonist of cape to keep own common law
but applied their own procedural law. [inquisitorial system was phased out]
3. 1910: Union of SA. English influence on procedural law intact. 1917: first comprehensive
Criminal Procedure Act.
o Privilege against self-incrimination
4. 961: RSA 1977 current CPA [as it is today with constitutional amendments etc.]
SA COURTS TODAY:
o Presiding judge/magistrate with or without assessors [helps judges decide]
o Prosecutor (LC)/State advocate (HC)
o No jury since 1969
o Accused can be with or without legal representation.
SOURCES:
Criminal procedure act 51 of 1977
National prosecuting authority act 32 of 1998 (as amended)
Constitution 1996 (NB S35)
Common law and case law
Other statutes
o Child justice act [SEE the amendment act on sunlearn] age 12 minimum capacity
o Extradition act
o Criminal law amendment act
o Legal aid South Africa act
CHAPTER 1- Introduction
DEF: Criminal procedure- enforcing substantive criminal law. Machinery to achieve the criminal
justice goals. Legitimizing the criminal law function. Regulates the procedures according to which the
norms and sanctions of criminal law is enforced. (part of adjectival law aka formal law which puts
substantive criminal law into practice)
Criminal procedure divided into 3 phases
1. Pre-trial: e.g.- complaint, arrest, bail, investigation
2. Trial: court hears the case, judgement (possibility of discharge if for example no evidence)
3. Appeal and review [due to dissatisfaction of outcome]
Double functionality of CPL they regulate procedure AND act as a ground of justification in
substantive law. E.g.- if a police officer infringes suspects right to privacy by searching them i.t.o CPA
= lawful limitation of rights and regular procedural action.
o If the search was unlawful and not according to CPA = exclusion of such evidence [formal
consequence] and a substantive consequence would be a claim for damages.
o But umbrella of protection not available if the state acts unfairly. e.g.- Shashape case
(received bad anonyms’ tip)
Tension between Crime control and due process
Background: there is a need to find balance between interest of society in effective criminal law
enforcement and interest of society in the protection of the rights and freedom of individuals
suspected, arrested, charged, convicted or sentenced. crim. proc. seeks to do this (no mem.)
o Packer “the limits of the criminal sanction”
Crime Control model: repression of criminal conduct is the most important function to
be performed by the criminal process
Due Process model: is based on the principle that the primary function/goal of criminal
justice system is not only to secure conviction/sentence but to ensure that these
results are achieved in terms of rules which duly and properly acknowledge the rights
of an individual at every critical stage = Supported by Bill of rights
BOTH try to achieve the same purpose of further the goals of substantive crim. law
balance should be sought between the two in real life.
o Public perceptions “Constitution is pro criminal”
o historical context “detention without trial”
o Due process (legality/rule of law) and need to limit state power
Due process = there must be practical limitations on state power in the detection,
investigation, prosecution and punishment of crime
o Internal Tensions
, Cannot create strict crim. proc. rules on the assumption that these will only be applied
to criminals. [take into consideration innocent people in beginning stages- their liberty
should not be sacrificed for efficiency of crime control].
Criminal procedure rules should regulate state powers in a positive and negative sense
e.g. rules authorizing police to do certain things but also rules limiting their authority to
do so
Conflict between the rights of the accused and the rights of the victim.
s 35(5) of the Constitution- Evidence obtained in a manner that infringes rights
contained in the Bill of Rights is excluded [should such evidence be included in pursuit
of the truth]
o victims’ rights- par 2.4: Roach ‘Four models of the Criminal Process’ (1999).
Punitive model: Rights of victims of crime are worthy of respect [crime control model]
Non- Punitive model: prefers to put emphasis on prevention of crime and restorative
justice.
Restorative justice- process outside of the normal criminal justice system. Not
appropriate in violent crimes.
In SA: Child Justice Act 75 van 2008 – restorative justice is an approach to justice that
aims to involve the child offender/victim and families to collectively identify and
address harms/needs through accepting responsibility, making restitution, taking
measures to avoid recurrence, promoting reconciliation.
VICTIM PARTICIPATION
o Often reduced to that of a witness
o Victims have very limited participation (see summary in slide 16)
S 105 CPA- plea & sentence agreement (victim of the crime must give input on this)
S 300 CPA- Compensation order from court (e.g.- in cases of theft)
S 179 Constitution- victims must be consulted in the decision to prosecute (national
prosecuting association has no obligation to prosecute)
Service Charter for Victims of Crime in South Africa- No absolute right to be heard
Case Para 21(3) National Instruction on Sexual Offences- Impact statement: victims of
sexual offences (these victims are entitled to give this statement if they so choose)
S 299A CPA & S 75(4) Correctional Services Act- The victims have a right to testify at
these parole hearings. Serious crimes – (day) parole under correctional supervision
S 7 CPA- if declined to prosecute, you can institute a private prosecution
WITNESS/ VICTIM PARTICIPATION [protection of them]
o S 144 CPA- Withholding of names
o S 153 CPA- someone can testify in camera (can do so anonymously)
o S 158 CPA- someone can testify via CCTV or similar means
o S 170 CPA- Intermediary: hear questions and relay them to witness in a less intimidating way
Below mental/physical age
Undue mental stress
, o Criminal Law (Sexual Offences and Related Matters Amendment Act) 32 of 2007 (SORMAA)-
Framework for protection of sexual offence victims
o Witness Protection Act 112 of 1998 & Prevention of Organized Crime Act 121 of 1998- Under
threat of person or group of persons (they are not forced to physically testify)
o Part 16: Prosecution Directives [Principles: safety/protection of witnesses]
CONSTITUTIONAL CRIMINAL PROCEDURE
1. Impact of Constitution- all legislation must be in line with constitution. E.g.- change in CPA in
S v Makwanyane with regards to capital punishment
2. Bill of rights
S 7 & 8- bill of rights cornerstone of democracy. State must protect, respect, promote,
fulfil the bill of rights [7]. Vertical and horizontal application [8]. (pg-17)
S 36: limitation clause [entrenched rights which may only be limited if reasonable and
justifiable to do so]
S 37: State of emergency – non-derogable rights are “human dignity” and “life”
o Derogation means the relaxing of a law
S 38: locus standi in constitutional litigation [anyone acting in their own interest or
interest of someone else who cannot act in his/her own name, anyone acting in public
interest, an association acting on behalf of its members]
S 39: Interpretation of Bill of Rights –international law must be considered
3. NBBBB- S 35 of constitution: rights of detained, arrested, accused. (Case: Veldman v DPP)
not a numerous clauses of rights. Courts can interpret this.
PASSIVE DEFENCE RIGHT
a) presumption of innocence
every person is regarded as innocent until convicted by court of law
b) burden and standard of proof (beyond a reasonable doubt must be proven by the state)
c) presumption of innocence and nature of the crime [presumption stands irrespective of the
type of crime]
d) right to remain silent & privilege against self-incrimination
35(1)(a)- accused has right to remain silent
35(1)(b)- cannot be compelled to make a confession that might be used against you
S 35(3)(h) and (j)- right to silence and not to testify in proceedings
[legal guilt- grounds of justification can exclude this] [suspect not charged yet but accused was
charged]
ACCUSATORIAL VS INQUISITORIAL CRIMINAL PROCEDURE
SA we have an accusatorial system. NPA decides whether they are going to prosecute the
case.
Difference is in the function of the parties
, Inquisitorial:
o Judicial officer- master of the proceedings (dominus litis) actively conducts search
for truth by questioning witness and accused
o Prosecuting authority-
o Accused-
o Victims- is party to the proceedings [can have lawyer]
Accusatorial:
o Judicial officer- passive. Detached umpire
o Prosecuting authority- primary investigating force (dominis litis)
o Accused-
o Victims- often reduced to witness (see above notes)
Historical background of criminal procedure in SA:
1. 1652-1806: roman dutch law basis + inquisitorial process
o Torture practices were allowed to get a confession- burning, drowning, whipping
2. 1806: 2nd British occupation of cape. Roman Dutch law substantive and English law
accusatorial influence on process. Allowed the colonist of cape to keep own common law
but applied their own procedural law. [inquisitorial system was phased out]
3. 1910: Union of SA. English influence on procedural law intact. 1917: first comprehensive
Criminal Procedure Act.
o Privilege against self-incrimination
4. 961: RSA 1977 current CPA [as it is today with constitutional amendments etc.]
SA COURTS TODAY:
o Presiding judge/magistrate with or without assessors [helps judges decide]
o Prosecutor (LC)/State advocate (HC)
o No jury since 1969
o Accused can be with or without legal representation.
SOURCES:
Criminal procedure act 51 of 1977
National prosecuting authority act 32 of 1998 (as amended)
Constitution 1996 (NB S35)
Common law and case law
Other statutes
o Child justice act [SEE the amendment act on sunlearn] age 12 minimum capacity
o Extradition act
o Criminal law amendment act
o Legal aid South Africa act
