Criminal Law: Courts and Prosecution

Introduction to Criminal Courts and Prosecution

• The courts of South Africa have judicial authority in terms of section 165 of the Constitution of the Republic of South Africa, 1996.
• The courts have a hierarchical structure, with higher and lower courts.
• The National Prosecuting Authority (NPA) is established in terms of section 179 of the Constitution and represents the state in instituting criminal proceedings.

The Superior Courts

• The Constitutional Court is the highest court in the Republic and has final jurisdiction in respect of all matters.
• The Constitutional Court consists of a Chief Justice, a Deputy Chief Justice, and nine other judges.
• The Court has the authority to decide on constitutional matters, including the constitutionality of any legislation or conduct of the President.
• The Court also has the power to develop the common law.

The Supreme Court of Appeal

• The Supreme Court of Appeal has its seat in Bloemfontein and consists of a President and Deputy President, and as many other judges as may be determined.
• The Court has the authority to decide on any matter on appeal and may enquire into and rule on the constitutionality of any legislation or conduct of the President.
• The Court has the power to develop the common law.
• The Court has the authority to decide on appeals and matters referred to it in terms of an Act of Parliament.

The High Court of South Africa

• The High Court of South Africa consists of nine main seats and eight local seats.
• Each division of the High Court consists of a Judge President and one or more Deputy Judges President, and as many other judges as may be determined.
• The Court has jurisdiction to decide on the constitutionality of any legislation or conduct of the President.
• The Court has the power to develop the common law.

The Lower Courts

• The lower courts include the magistrates' courts and regional courts.
• A magistrates' court is instituted for a district, and a court for a regional division is instituted in terms of the Magistrates' Courts Act.
• The lower courts do not have jurisdiction to enquire into or rule on the constitutionality of any legislation or conduct of the President.
• The lower courts have jurisdiction to try certain offences committed within their respective areas.

Jurisdiction of Criminal Courts

• The jurisdiction of the criminal courts of the Republic includes jurisdiction in respect of offences, territory, and punishment.
• The divisions of the High Court have original jurisdiction in respect of all offences.
• A district court has jurisdiction to try all crimes except treason, murder, and serious offences against the state.
• A regional court may try all crimes except treason.
• The jurisdiction of the criminal courts has been extended in many respects, including the "four-kilometer rule" in terms of section 90 of the Magistrates' Court Act.### Jurisdiction and Extended Jurisdiction
• A statutory offence of resisting police is only operative in Kimberley, not in the Free State.
• Baba could not be tried in Kimberley because the act took place in the Free State, even though the Free State has a similar provision.
• In cases of uncertainty, a person can be tried in any jurisdiction where an act or omission is an element of the offence.
• In cases of theft, receiving stolen property, or kidnapping, a person can be tried in any jurisdiction where they had or had possession of the property, or where the person was conveyed or detained.
• Section 90 of the CPA does not deprive a Magistrate's Court of special statutory provisions conveying jurisdiction in respect of offences committed beyond the district.

Preparatory Examinations and Preliminary Enquiries

• Section 125 of the CPA regulates the jurisdiction of Magistrate's Courts.
• Section 43(3)(c) of the Child Justice Act requires a child in conflict with the law to appear before a lower court.

Jurisdiction in Respect of Offences Committed Outside South Africa

• The general principle is that courts of the Republic of South Africa will exercise jurisdiction with regard to offences committed on South African territory only.
• There are exceptions to this principle, which apply to particular offences or instances.

Jurisdiction with Regard to Sentencing

• The CPA lays down specific rules with regard to the offences for which certain sentences may or may not be imposed.
• The Child Justice Act provides that a child justice court may not impose a sentence of imprisonment on a child under the age of 14 years.

Prosecutions

• A criminal prosecution is a matter between the state and the accused, whereas a civil action is a matter between two individuals.
• The CPA provides for private prosecutions in certain limited instances.
• Public prosecutions represent the vast majority of prosecutions.

Constitutional Provisions

• Section 179 of the Constitution provides the constitutional framework for public prosecutions.
• The National Prosecuting Authority Act was passed to give effect to the provisions of section 179 of the Constitution.

The National Prosecuting Authority

• The NPA is a single national prosecuting authority established by the Constitution.
• The structure of the NPA consists of the office of the National Director of Public Prosecutions (NDPP) and various offices of the prosecuting authority at the High Court.
• The NPA comprises the NDPP, Deputy National Directors of Public Prosecutions (DNDPP), Directors of Public Prosecutions (DPP), Deputy Directors of Public Prosecutions (DDPP), and Public Prosecutors (PP).

The Power to Conduct and Institute Criminal Proceedings

• The power to conduct and institute criminal proceedings vests in the prosecuting authority and is exercised on behalf of the Republic.
• The NDPP has the power to institute and conduct criminal proceedings, and to discontinue criminal proceedings.
• Any DNDPP, DPP, or DDPP shall exercise the powers referred to in section 20(1) subject to the control and directions of the NDPP.### NDPP and DNDPP

• The President appoints the National Director of Public Prosecutions (NDPP) and up to four Deputy National Directors of Public Prosecutions (DNDPPs) after consultation with the Minister of Justice and the NDPP. • The Constitutional Court has held that the President's appointment of a NDPP as successor to a NDPP who was unlawfully removed from office is invalid.

Powers, Functions, and Duties of the NDPP and DNDPP

• The NDPP and DNDPP are responsible for exercising the powers and performing the duties of the National Prosecuting Authority (NPA). • The NDPP and DNDPP must furnish the Minister with information or reports on cases, decisions, and policies. • The NDPP and DNDPP may intervene in prosecutions and provide reasons for decisions.

Ministerial Responsibility

• The Minister of Justice has final responsibility over the prosecuting authority. • The Minister may not interfere with decisions to prosecute or not, but is entitled to be kept informed where public interest or an important aspect of legal or prosecutorial authority is involved.

The Prosecution and the Police

• The police investigate crimes and submit cases to the prosecuting authority. • The prosecution decides whether to institute a prosecution, and the final decision rests with the DPP concerned or the local public prosecutors. • The NDPP may also intervene.

The Prosecution, the Police, the Public, and the Reporting of Crime

• There is no general legal duty to report crime, but a moral duty may exist. • Certain statutory provisions impose a duty to report in certain cases, such as unnatural deaths. • The prosecution may use an informer's privilege to protect the identity of a private individual who provides information. • The witness protection system encourages members of the public to report crimes.

The Prosecution as Dominus Litis

• The prosecution has control over the prosecution process, including determining charges, dates, and venues. • The prosecution must ensure fairness to the accused and consider public interest when deciding whether to prosecute.

Discretion to Prosecute

• A prosecutor has a duty to prosecute if there is a prima facie case and reasonable prospects of success. • The prosecution may decline to prosecute if the consequences are out of proportion to the gravity of the offence. • The decision not to prosecute must be made for a good reason.

Prescription

• The right to institute a prosecution for any offence lapses after 20 years, unless another period is provided by law. • Common law crimes, such as murder, treason, and rape, have no prescription period.

Ethics and Fairness

• The prosecution must seek to promote a fair criminal justice system. • A public prosecutor must display the highest degree of fairness to an accused, particularly an unrepresented accused. • Information favourable to the defence must be disclosed.

Diversion of the Criminal Trial

• Diversion procedures allow a criminal trial to be avoided or delayed. • Examples include converting a trial into an enquiry for rehabilitation or commitment to a mental institution. • The Child Justice Act provides for diversion procedures for children.

Criminal Capacity of Children

• A child aged 10-14 is presumed to lack criminal capacity unless shown otherwise. • The Child Justice Act provides for diversion procedures and powers for DPPs in respect of child offenders.

Private Prosecution

• A private prosecution is a system where an individual may prosecute an alleged perpetrator in certain circumstances. • The individual must obtain a certificate and provide security, and the State may intervene. • The purpose of a private prosecution is to prove the defendant's guilt and have them punished.