Criminal Court Practice
2019
The syllabus is compiled by practitioners with experience in practice.
2019 updated by Dr Henry Lerm
Version 003/Learning Resources Reg 012
PLEASE NOTE THAT THIS GUIDE MAY NOT BE A CORRECT REFLECTION OF THE LAW AND/OR PRACTICE AT
THE MOMENT OF READING DUE TO LEGISLATIVE CHANGES AFTER PRINTING.
This guide records the views of the drafter.
There may be justifiable variations in practice.
The publishing of this manual was made possible through financial support of the
Attorneys Fidelity Fund.
Purpose
This material is not offered as a manual or handbook on the topic.
It is intended as a supplementary tool for purpose of the training at L.E.A.D’s Practical Legal
Training School and Courses.
,
© Law Society of South Africa 2019
Copyright subsists in this work. No part of this work may be reproduced in any form or by any means
without the Law Society of South Africa’s permission. Any unauthorised reproduction of this work will constitute
a copyright infringement and render the doer liable under both civil and criminal law.
Whilst every effort has been made to ensure that the information published in this work is accurate, the
editors, publishers and printers take no responsibility for any loss or damage suffered by any person
as a result of the reliance upon the information contained therein.
Topics
This material is updated annually. Updated practice manuals can be purchased from Legal Education &
Development [L.E.A.D®]:
Alternative Dispute Resolution Forms of Business Enterprise Legal Writing
Attorney’s Bookkeeping High Court Practice Litigation Techniques
Business Writing Skills Introductory Notes Magistrate’s Court Practice
Commercial Litigatio Insolvency Law Matrimonial Matters
Conveyancing Introduction to Practice Personal Injury Claims
Criminal Court Practice Management Professional Legal Ethics
Customary Law Labour Dispute Resolution Wills and Estates
Drafting of Contracts Legal Costs
For more information:
L.E.A.D, L.E.A.D QA Section.
Tel: (012) 441-4600 or Fax: 086 455 2678
e-mail:
The Law Society of South Africa brings together the Black Lawyers Association, the Cape Law Society, the KwaZulu-
Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces and the National
Association of Democratic Lawyers in representing the attorneys’ profession in South Africa.
Tel +27 (12) 366 8800 Fax +27 (12) 362 0969 www.lssa.org.za
PO Box 36626 Menlo Park 0102 Docex 82 Pretoria 304 Brooks Street Menlo Park Pretoria
, Criminal Court Practice 2019
Contents
A. PREFACE TO PRACTICE MANUAL 1
1. WELCOME AND PURPOSE 1
2. WHY IS THIS SUBJECT IMPORTANT? 1
3. LEARNING ASSUMED TO BE IN PLACE 1
4. LEARNING OUTCOMES 1
5. CANDIDATE SUPPORT BEFORE, DURING AND AFTER SUBJECT SPECIFIC TRAINING 2
6. TIME MANAGEMENT 3
B. SYLLABUS 4
C. PRACTICE NOTES – GENERAL 4
1. INTRODUCTION 4
2. SOURCES 4
2.1 CONSTITUTION 4
2.2 OTHER STATUTES 5
2.3 COMMON LAW 5
2.4 TEXT BOOKS 6
2.5 ARTICLES AND OTHER SOURCES 6
3. PARTICIPANTS 6
3.1 THE POLICE OR OTHER LAW ENFORCEMENT AGENCIES 7
3.2 THE PROSECUTING AUTHORITY 7
3.3 WITNESSES 9
3.4 THE CORRECTIONAL SERVICES 11
3.5 THE CLIENT AND THE DEFENCE ATTORNEY 11
4. THE COURTS 12
4.1 HIGH COURTS 12
4.2 LOWER COURTS 13
4.3 GENERAL REMARKS 13
5. ETHICS 14
5.1 GENERAL 14
5.2 CONFLICT OF INTERESTS 14
SELF-ASSESSMENT QUESTIONS 15
©LSSA
, I. PRE-TRIAL 16
1. TAKING INSTRUCTIONS 16
1.1 PRELIMINARY CONSULTATION 16
1.2 FEES AND ALTERNATIVES 18
SELF ASSESSMENT QUESTIONS 19
2. RIGHTS OF THE ACCUSED 20
2.1 RIGHT TO REMAIN SILENT 20
2.2 STATEMENT TO POLICE 22
2.3 SHABALALA AND FIVE OTHERS V ATTORNEY GENERAL OF THE TRANSVAAL AND
ANOTHER 23
2.4 RIGHT TO LEGAL REPRESENTATION 23
2.5 THE PRESENCE OF LEGAL REPRESENTATIVE AT PRE-TRIAL PROCEDURES 24
2.6 THE RIGHT TO BE BROUGHT BEFORE A COURT WITHIN 48 HOURS 25
2.7 THE RIGHT TO A SPEEDY TRIAL 26
SELF-ASSESSMENT QUESTIONS 27
3. INVESTIGATION 28
3.1 POWERS OF THE POLICE TO SEARCH, SEIZE, ARREST, TO OBTAIN EVIDENCE
AND TO INTERROGATE 28
SELF-ASSESSMENT QUESTIONS 33
4. ESTABLISHING RELATIONS WITH STATE OFFICIALS 34
4.1 INVESTIGATING OFFICER/STATION COMMANDER 34
4.2 PROSECUTOR 34
4.3 DIRECTORS OF PUBLIC PROSECUTIONS (DPP) 35
4.4 CLERK OF THE COURT 35
4.5 DEPARTMENT OF CORRECTIONAL SERVICES 36
4.6 INTERPRETER 36
4.7 COURT ORDERLEY 36
SELF-ASSESSMENT QUESTION 37
5. METHODS OF SECURING THE ATTENDANCE OF THE ACCUSED
IN COURT 38
5.1 ARREST 38
5.2 SUMMONS 42
5.3 WRITTEN NOTICE TO APPEAR 43
5.4 RELEASE ON WARNING 44
5.5. DIVERSION OF JUVENILES 44
SELF-ASSESSMENT QUESTIONS 44
©LSSA
2019
The syllabus is compiled by practitioners with experience in practice.
2019 updated by Dr Henry Lerm
Version 003/Learning Resources Reg 012
PLEASE NOTE THAT THIS GUIDE MAY NOT BE A CORRECT REFLECTION OF THE LAW AND/OR PRACTICE AT
THE MOMENT OF READING DUE TO LEGISLATIVE CHANGES AFTER PRINTING.
This guide records the views of the drafter.
There may be justifiable variations in practice.
The publishing of this manual was made possible through financial support of the
Attorneys Fidelity Fund.
Purpose
This material is not offered as a manual or handbook on the topic.
It is intended as a supplementary tool for purpose of the training at L.E.A.D’s Practical Legal
Training School and Courses.
,
© Law Society of South Africa 2019
Copyright subsists in this work. No part of this work may be reproduced in any form or by any means
without the Law Society of South Africa’s permission. Any unauthorised reproduction of this work will constitute
a copyright infringement and render the doer liable under both civil and criminal law.
Whilst every effort has been made to ensure that the information published in this work is accurate, the
editors, publishers and printers take no responsibility for any loss or damage suffered by any person
as a result of the reliance upon the information contained therein.
Topics
This material is updated annually. Updated practice manuals can be purchased from Legal Education &
Development [L.E.A.D®]:
Alternative Dispute Resolution Forms of Business Enterprise Legal Writing
Attorney’s Bookkeeping High Court Practice Litigation Techniques
Business Writing Skills Introductory Notes Magistrate’s Court Practice
Commercial Litigatio Insolvency Law Matrimonial Matters
Conveyancing Introduction to Practice Personal Injury Claims
Criminal Court Practice Management Professional Legal Ethics
Customary Law Labour Dispute Resolution Wills and Estates
Drafting of Contracts Legal Costs
For more information:
L.E.A.D, L.E.A.D QA Section.
Tel: (012) 441-4600 or Fax: 086 455 2678
e-mail:
The Law Society of South Africa brings together the Black Lawyers Association, the Cape Law Society, the KwaZulu-
Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces and the National
Association of Democratic Lawyers in representing the attorneys’ profession in South Africa.
Tel +27 (12) 366 8800 Fax +27 (12) 362 0969 www.lssa.org.za
PO Box 36626 Menlo Park 0102 Docex 82 Pretoria 304 Brooks Street Menlo Park Pretoria
, Criminal Court Practice 2019
Contents
A. PREFACE TO PRACTICE MANUAL 1
1. WELCOME AND PURPOSE 1
2. WHY IS THIS SUBJECT IMPORTANT? 1
3. LEARNING ASSUMED TO BE IN PLACE 1
4. LEARNING OUTCOMES 1
5. CANDIDATE SUPPORT BEFORE, DURING AND AFTER SUBJECT SPECIFIC TRAINING 2
6. TIME MANAGEMENT 3
B. SYLLABUS 4
C. PRACTICE NOTES – GENERAL 4
1. INTRODUCTION 4
2. SOURCES 4
2.1 CONSTITUTION 4
2.2 OTHER STATUTES 5
2.3 COMMON LAW 5
2.4 TEXT BOOKS 6
2.5 ARTICLES AND OTHER SOURCES 6
3. PARTICIPANTS 6
3.1 THE POLICE OR OTHER LAW ENFORCEMENT AGENCIES 7
3.2 THE PROSECUTING AUTHORITY 7
3.3 WITNESSES 9
3.4 THE CORRECTIONAL SERVICES 11
3.5 THE CLIENT AND THE DEFENCE ATTORNEY 11
4. THE COURTS 12
4.1 HIGH COURTS 12
4.2 LOWER COURTS 13
4.3 GENERAL REMARKS 13
5. ETHICS 14
5.1 GENERAL 14
5.2 CONFLICT OF INTERESTS 14
SELF-ASSESSMENT QUESTIONS 15
©LSSA
, I. PRE-TRIAL 16
1. TAKING INSTRUCTIONS 16
1.1 PRELIMINARY CONSULTATION 16
1.2 FEES AND ALTERNATIVES 18
SELF ASSESSMENT QUESTIONS 19
2. RIGHTS OF THE ACCUSED 20
2.1 RIGHT TO REMAIN SILENT 20
2.2 STATEMENT TO POLICE 22
2.3 SHABALALA AND FIVE OTHERS V ATTORNEY GENERAL OF THE TRANSVAAL AND
ANOTHER 23
2.4 RIGHT TO LEGAL REPRESENTATION 23
2.5 THE PRESENCE OF LEGAL REPRESENTATIVE AT PRE-TRIAL PROCEDURES 24
2.6 THE RIGHT TO BE BROUGHT BEFORE A COURT WITHIN 48 HOURS 25
2.7 THE RIGHT TO A SPEEDY TRIAL 26
SELF-ASSESSMENT QUESTIONS 27
3. INVESTIGATION 28
3.1 POWERS OF THE POLICE TO SEARCH, SEIZE, ARREST, TO OBTAIN EVIDENCE
AND TO INTERROGATE 28
SELF-ASSESSMENT QUESTIONS 33
4. ESTABLISHING RELATIONS WITH STATE OFFICIALS 34
4.1 INVESTIGATING OFFICER/STATION COMMANDER 34
4.2 PROSECUTOR 34
4.3 DIRECTORS OF PUBLIC PROSECUTIONS (DPP) 35
4.4 CLERK OF THE COURT 35
4.5 DEPARTMENT OF CORRECTIONAL SERVICES 36
4.6 INTERPRETER 36
4.7 COURT ORDERLEY 36
SELF-ASSESSMENT QUESTION 37
5. METHODS OF SECURING THE ATTENDANCE OF THE ACCUSED
IN COURT 38
5.1 ARREST 38
5.2 SUMMONS 42
5.3 WRITTEN NOTICE TO APPEAR 43
5.4 RELEASE ON WARNING 44
5.5. DIVERSION OF JUVENILES 44
SELF-ASSESSMENT QUESTIONS 44
©LSSA
