South African Criminal Procedure: Introduction

Basic Information

• The lecturer for the course is Dr Delecia Beyers, located in office number 25 on the ground floor.
• Dr Beyers can be contacted via [email protected] or at 021-959 3298.
• Consultation times are Wednesdays from 09:00-13:00 for in-person meetings.
• Online consultations are scheduled for Mondays from 10:00-12:00.
• IKHAMVA will be used for announcements, slides, podcasts, and assessments.
• Self-study is expected.
• Course rules include punctuality, silence, and preparation.

Introduction

• There is a high crime rate with high levels of violence, so crime is a major issue in South Africa
• Rules, principles, mechanisms, and structures are needed to prevent, cope with, and control criminal behavior and it’s consequences
• Main purposes of criminal procedure includes:
  • Provides process for achieving criminal law goals such as sentencing objectives
  • Provides a dispute resolution mechanism
  • Allocates resources and distributes power among state officials

Scope of Criminal Procedure

• Regulates the duties and powers of criminal courts, prosecuting authorities, and the police during investigations of crimes.
• Regulates the rights and duties of suspects, arrested persons, and accused persons in pre-trial and trial proceedings.
• Considers matters such as bail, charge sheets/indictments, pleading, trial conduct, and the rights/duties of prosecution/defense.
• Seeks to balance the interests of society in holding the accused accountable.
• Protects the rights of suspects, arrestees, and the accused.
• Protects the rights and interests of victims.

Criminal Procedure as Component of the Criminal Justice System

• Criminal justice includes criminal procedure, substantive criminal law, the law of evidence, sentencing, and the law governing prisons.
• The binding factor between these branches is that they deal with crime and its perpetrators.
• Forms a coherent whole to ensure the fair enforcement of substantive law within constitutional and legal requirements.
• Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC) states that an effective criminal justice system is vital.
• Corruption Watch NPC v President of the RSA 2018 (2) SACR 442 (CC) states that subverting the criminal justice system subverts the rule of law and constitutional democracy.

Crime Control and Due Process

• Criminal procedure consists of a series of compromises.
• Balances the interests of society in effective criminal law enforcement with protecting individual rights and freedoms.
• The crime control model focuses on controlling crime and repressing criminal conduct.
• The due process model focuses not just on conviction and sentencing.
• Ensures results are achieved in terms of rules that duly and properly acknowledges the rights of individuals during pre-arrest investigation, pre-trial, trial and post-trial proceedings.
• Models are complementary and supplement one another.
• Both models aim to vindicate the goals of substantive criminal law.
• State power shouldn't be abused.

Objectives of Punishment

• Deterrence aims to prevent the commission of further crime through specific and general deterrence.
• Retribution emphasizes punishing the offender for breaking the law, different from deterrence and rehabilitation.
• Rehabilitation or reform seeks to make offenders law-abiding through support programs.

The Position of the Victim in the Criminal Process

• Prosecution is instituted by the state constituting a contest between the state and the accused.
• Victim's role is confinement to that of an ordinary witness.
• The Service Charter of Victims of Crime sets out victim rights as contained in the Constitution and legislation.
• The state must prove guilt beyond a reasonable doubt, but the accused must raise reasonable doubt in the mind of the court.
• Victims are called as ordinary witnesses and may be called during sentencing upon conviction. The criminal justice system is offender-orientated and does not sufficiently support victims.
• The system lacks adequate victim support strategies and protections against secondary traumatization.
• Current victim support measures are inadequate or underutilized.

Victim's Participation in Criminal Process

• S 105 A(1)(b)(iii) of the CPA: permits a victim to make representations re: content of agreement and/or compensation during sentence and plea agreement.
• S179(5)(d)(iii) of the Constitution: the NDPP may consult with the complainant when reviewing the decision whether to prosecute or not.
• S 299A of the CPA: allows the complaintant to make representations when an accused had been sentenced to imprisonment for serious crimes etc.
• Albutt v CSVR 2010 (2) SACR 101 (CC) discusses the participation of victims in the pardon process
• Wickham v Magistrate, Stellenbosch 2017 (1) SACR 209 (CC) critiques the Service Charter for Victims in SA for not providing a victim with the absolute right to be heard on demand.

Victim Protection in the Criminal Process

• S144 (3)(a)(ii) permits the withholding of witness details if the DPP believes a witness may be intimidated.
• S153(2) allows a court to direct a witness to testify behind closed doors and not disclose their identity if there is a likelihood of harm.
• S158(3): Allows testimony to be taken by means of closed-circuit television to protect the victim.
• S170(A) allows the court to appoint an intermediary if proceedings may expose a witness under 18.
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides a framework for adequate protection of victims of sexual offenses.
• The Witness Protection Act 112 of 1998 allows witnesses, including victims, to be placed under witness protection.

Constitutional Criminal Procedure

• S2 of the Constitution establishes constitutional supremacy.
• The Bill of Rights has direct relevance to criminal procedure, affecting rights such as privacy through search and seizure provisions.
• The Bill of Rights contains specific rights that must be upheld by the criminal justice system.
  • S35(1): Guarantees rights to everyone arrested for allegedly committing a crime.
  • S35(2): Guarantees rights to everyone who is detained.
  • S35(3): Guarantees every accused person has a right to a fair trial.

Bill Of Rights: Evidence

• S35(5): states that evidence obtained in violation of any right in the BoR must be excluded if it would render the trial unfair or detrimental to the administration of justice.
• Evidence that violates any right in the BoR MUST be excluded if it prevents a fair trial or is disadvantageous to the administration of justice.
• S36 of the Constitution addresses the limitation of rights and when such limitations are justifiable.

Sources of South African Criminal Procedure

• The Constitution.
• The Criminal Procedure Act 51 of 1977 (CPA).
• Other legislation such as the Child Justice Act 75 of 2008, the National Prosecuting Authority Act 32 of 1998, and the South African Police Services Act 68 of 1995.
• Case law – Doctrine of Precedent.
• Common law governs aspects of criminal law such as recusal in criminal trials.

Criminal Justice Remedies

• Courts must uphold the principle of legality, ensuring effective protection of the rights of suspected, arrested, and accused individuals.
• Writ of habeas corpus (interdictum de libero homine exhibendo) protects individuals against unlawful infringement of his/her liberty and detention.
• A court order produces the detainee’s body before a court at a specific time and date.
• The respondent of the order could be the Minister of Correctional Services, chief Warder or Commanding Officer.
• The application is heard by a single judge in the civil court and is made ex-parte.
• Sees Lamboleni and Ten Other Appeal Case v The State 2016 (1) NR (NLD).

Remedies Continued

• Civil action for damages is available for wrongful arrest (law of delict).
• Interdict: a court order that prohibits someone from acting in a certain way.
• Mandamus: A court order that forces someone to perform his duties, such as to decrease levels of overcrowding.
• The exclusionary rule (S35(2) of the Constitution) excludes evidence after violating rights in the Bill of Rights.
• Informal remedies include resisting unlawful arrest or escaping unlawful custody (very risky).
• Constitutional Mechanisms includes the public protector, SA Human Rights Commission, and NGOs.

Accusatorial and Inquisitorial Procedures

• Parties have different functions in these models.
• Inquisitorial model: Judge is dominus litis actively involved and controls the proceedings.
• The judge dominates the questioning of witnesses and the accused.
• Accusatorial model: Prosecutor is dominus litis
• The judge or magistrate does not enter the arena of the fight between the prosecutor and the defense.