TLI4801 ASSIGNMENT 2 SEMESTER 1-TECHNIQUES
IN TRIAL AND LITIGATION. 90% AND ABOVE.
DISTINCTION GUARANTEED. QUALITY WORK WITH
FOOTNOTES AND BIBLIOGRAPHY.
QUESTION 1
(a)
The prosecutorial bail may be applied for the release of the accused, F in this instance
because of the following explanation. According to Section 59A of the Criminal Procedure
Act 51 of 1977, a prosecutor may instruct the release of an accused before his first
appearance for any offence listed in schedule 7 of the act. 1 Prosecutorial bail can be
applied for prior to the arrested person making their first appearance in court. A
prosecutor, under the authorization of the Director of Public Prosecutions may release
the arrested person on bail after consultation with the investigating officer. Prosecutorial
Bail is mainly applicable to more serious offences as listed in schedule 7, for instance
arson, public violence, robbery and culpable homicide. According to section 35(1)(f) of
the Constitution an accused has the right to be released from detention if the interests
of justice permit, subject to reasonable conditions.2
This clearly shows that prosecutorial bail may be applied for the release of the accused,
F in this instance because schedule 7 of the Criminal Procedure Act allows the release
on prosecutorial bail in respect of offences like arson.
(b)
The factors/grounds which a court must consider before releasing an accused on bail are
given below. The interests of justice will most likely favour the arrested persons release
on bail if the following circumstances exist: There is likelihood that if released, the arrested
person will
1 Criminal Procedure Act 51 of 1977.
2 Constitution of the Republic of South Africa 108 of 1996.
, • not endanger the safety of the public or any particular person or commit a schedule 1
offence;
• not attempt to evade trial;
• not attempt to influence or intimidate witnesses or conceal or destroy evidence;
• not undermine or jeopardise the objectives or proper functioning of the criminal justice
system including the bail system; or
• not disturb public order or undermine public peace or security.
When considering whether or not bail must be granted in a particular case the court
must consider the personal circumstances of the accused, the seriousness of the
offence and the interests of justice. Maharaj A (2010) argued that it is because of the
different facts of each bail application that some people would obtain bail on the same
charge on which another person might be refused bail.3
QUESTION 2
Section 105A of the Criminal Procedure Act is the empowering provision that allows
prosecutors to negotiate and enter into plea and sentence agreement. It is implicit in the
provision that there must be a negotiation between the prosecution and defence. Section
105A(1)(a) provides that a prosecutor who is authorised thereto in writing by the National
Director of Public Prosecutions and an accused who is legally represented may, before
the accused pleads to the charge brought against them, negotiate andenter into an
agreement in respect of a plea of guilty by the accused to the offence charged or to an
offence of which they may be convicted on the charge and, if the accused is convicted of
the offence to which they have agreed to plead guilty, a just sentence can be imposed by
the court.4
Added to that, Section 105A(1)(a) requires an accused who enters into a plea and
sentence agreement with the prosecutor to be legally represented. There is a plethora
3 Maharaj A, A confident Criminal Litigation (LexisNexis 2010).
4 Criminal Procedure Act.
IN TRIAL AND LITIGATION. 90% AND ABOVE.
DISTINCTION GUARANTEED. QUALITY WORK WITH
FOOTNOTES AND BIBLIOGRAPHY.
QUESTION 1
(a)
The prosecutorial bail may be applied for the release of the accused, F in this instance
because of the following explanation. According to Section 59A of the Criminal Procedure
Act 51 of 1977, a prosecutor may instruct the release of an accused before his first
appearance for any offence listed in schedule 7 of the act. 1 Prosecutorial bail can be
applied for prior to the arrested person making their first appearance in court. A
prosecutor, under the authorization of the Director of Public Prosecutions may release
the arrested person on bail after consultation with the investigating officer. Prosecutorial
Bail is mainly applicable to more serious offences as listed in schedule 7, for instance
arson, public violence, robbery and culpable homicide. According to section 35(1)(f) of
the Constitution an accused has the right to be released from detention if the interests
of justice permit, subject to reasonable conditions.2
This clearly shows that prosecutorial bail may be applied for the release of the accused,
F in this instance because schedule 7 of the Criminal Procedure Act allows the release
on prosecutorial bail in respect of offences like arson.
(b)
The factors/grounds which a court must consider before releasing an accused on bail are
given below. The interests of justice will most likely favour the arrested persons release
on bail if the following circumstances exist: There is likelihood that if released, the arrested
person will
1 Criminal Procedure Act 51 of 1977.
2 Constitution of the Republic of South Africa 108 of 1996.
, • not endanger the safety of the public or any particular person or commit a schedule 1
offence;
• not attempt to evade trial;
• not attempt to influence or intimidate witnesses or conceal or destroy evidence;
• not undermine or jeopardise the objectives or proper functioning of the criminal justice
system including the bail system; or
• not disturb public order or undermine public peace or security.
When considering whether or not bail must be granted in a particular case the court
must consider the personal circumstances of the accused, the seriousness of the
offence and the interests of justice. Maharaj A (2010) argued that it is because of the
different facts of each bail application that some people would obtain bail on the same
charge on which another person might be refused bail.3
QUESTION 2
Section 105A of the Criminal Procedure Act is the empowering provision that allows
prosecutors to negotiate and enter into plea and sentence agreement. It is implicit in the
provision that there must be a negotiation between the prosecution and defence. Section
105A(1)(a) provides that a prosecutor who is authorised thereto in writing by the National
Director of Public Prosecutions and an accused who is legally represented may, before
the accused pleads to the charge brought against them, negotiate andenter into an
agreement in respect of a plea of guilty by the accused to the offence charged or to an
offence of which they may be convicted on the charge and, if the accused is convicted of
the offence to which they have agreed to plead guilty, a just sentence can be imposed by
the court.4
Added to that, Section 105A(1)(a) requires an accused who enters into a plea and
sentence agreement with the prosecutor to be legally represented. There is a plethora
3 Maharaj A, A confident Criminal Litigation (LexisNexis 2010).
4 Criminal Procedure Act.
