Student No.: Unique No.: 645023 CPR3701
SUBJECT: Criminal Procedure Law: Analyzing Bail, Charge
Formulation, and Child Justice in South African Legal
Context
SUBJECT
CPR3701
CODE:
SEMESTER: 02
ASSIGNMENT: 04
UNIQUE
645023
NUMBER:
STUDENT
NUMBER:
CLOSING
30 July 2022
DATE:
Page
1
Page
Table of 1
Contents Page
3
Question 1 Page
Answer 1 3
Question 2 Page
4
Answer 2
Page
Question 3
5
Answer 3
Page
1. Bibliography 8
2. Academic Honesty Declaration Page 8
___________________________________________________________________
Question 1:
Discuss the burden and standard of proof as well as the proof of previous convictions
during the course of a bail application. (15)
Answer 1:
An accused who has been arrested for allegedly having committed an offence, in terms of
section 35 (1) (f) of the Constitution, “has the right to be released from detention if the interests
1
, Student No.: Unique No.: 645023 CPR3701
of justice permit, subject to reasonable conditions”. An accused, in the absence of a conviction
by a court of law, is according to the Constitution presumed innocent. This presents an area of
tension between the presumption and the deprivation of the accused’s liberty pending the court’s
verdict. Bail is the mechanism of securing a compromise.
The burden and standard of proof
A court hearing a bail application should not be passive and in so doing neglect to present the
accused with the opportunity to apply for bail. If no such application nor the question of the
possible release of an accused on bail is requested or raised by the accused or the prosecutor,
the court should out of its own establish from the accused whether he/she wishes bail to be
considered by the court. The court may inquire in an informal manner the information needed
for its decision or order regarding bail.
The court has the power to decide who leads evidence first. Where the prosecutor doesn't oppose
bail in respect of matters referred, the court must require him to place on record the reasons for
not opposing the bail application - this is an inquisitorial feature of bail.
The strict rules of evidence are relaxed for the purposes of bail applications. Hearsay may be
received more readily than at the trial. The personal opinion of a Director of Public Prosecution
(DPP) is a relevant consideration, but his opinion cannot be substituted for the court's discretion.
Sections 60 (11) (a) and (b) of the Criminal Procedure Act 51 of 1977 (CPA) provides the
standard of proof required from the accused where they bears the burden of proof. This is the
civil standard, whereby proof presented is considered on a balance of probabilities. A general
rule where the accused carries the burden of proof is that he or she is required to lead evidence
first in support of their bail application. This was upheld in S v Nwabunwanne 2017 (2) SACR
124 (NCK).
If a case falls outside the ambit of Sections 60 (11) (a) and (b) of the CPA, the burden of proof
shifts to the prosecution. The burden of proof remains one based on a balance of probability.
Due to guilt or innocence in respect of the charge not being the issue in a bail application, proof
beyond reasonable doubt is not necessary.
Proof of previous convictions
2
SUBJECT: Criminal Procedure Law: Analyzing Bail, Charge
Formulation, and Child Justice in South African Legal
Context
SUBJECT
CPR3701
CODE:
SEMESTER: 02
ASSIGNMENT: 04
UNIQUE
645023
NUMBER:
STUDENT
NUMBER:
CLOSING
30 July 2022
DATE:
Page
1
Page
Table of 1
Contents Page
3
Question 1 Page
Answer 1 3
Question 2 Page
4
Answer 2
Page
Question 3
5
Answer 3
Page
1. Bibliography 8
2. Academic Honesty Declaration Page 8
___________________________________________________________________
Question 1:
Discuss the burden and standard of proof as well as the proof of previous convictions
during the course of a bail application. (15)
Answer 1:
An accused who has been arrested for allegedly having committed an offence, in terms of
section 35 (1) (f) of the Constitution, “has the right to be released from detention if the interests
1
, Student No.: Unique No.: 645023 CPR3701
of justice permit, subject to reasonable conditions”. An accused, in the absence of a conviction
by a court of law, is according to the Constitution presumed innocent. This presents an area of
tension between the presumption and the deprivation of the accused’s liberty pending the court’s
verdict. Bail is the mechanism of securing a compromise.
The burden and standard of proof
A court hearing a bail application should not be passive and in so doing neglect to present the
accused with the opportunity to apply for bail. If no such application nor the question of the
possible release of an accused on bail is requested or raised by the accused or the prosecutor,
the court should out of its own establish from the accused whether he/she wishes bail to be
considered by the court. The court may inquire in an informal manner the information needed
for its decision or order regarding bail.
The court has the power to decide who leads evidence first. Where the prosecutor doesn't oppose
bail in respect of matters referred, the court must require him to place on record the reasons for
not opposing the bail application - this is an inquisitorial feature of bail.
The strict rules of evidence are relaxed for the purposes of bail applications. Hearsay may be
received more readily than at the trial. The personal opinion of a Director of Public Prosecution
(DPP) is a relevant consideration, but his opinion cannot be substituted for the court's discretion.
Sections 60 (11) (a) and (b) of the Criminal Procedure Act 51 of 1977 (CPA) provides the
standard of proof required from the accused where they bears the burden of proof. This is the
civil standard, whereby proof presented is considered on a balance of probabilities. A general
rule where the accused carries the burden of proof is that he or she is required to lead evidence
first in support of their bail application. This was upheld in S v Nwabunwanne 2017 (2) SACR
124 (NCK).
If a case falls outside the ambit of Sections 60 (11) (a) and (b) of the CPA, the burden of proof
shifts to the prosecution. The burden of proof remains one based on a balance of probability.
Due to guilt or innocence in respect of the charge not being the issue in a bail application, proof
beyond reasonable doubt is not necessary.
Proof of previous convictions
2
