ASPIRANT PROSECUTOR PROGRAMME Study Guide 2025 Part 7 PDF

good cause shown, dispense with such notice or remand the case to enable such notice to be given. o The plea of autrefois convict is not available where it was impossible at the previous trial to prefer the more serious charge now presented. Thus, a conviction for assault is no bar...

good cause shown, dispense with such notice or remand the case to enable such notice to be given. o The plea of autrefois convict is not available where it was impossible at the previous trial to prefer the more serious charge now presented. Thus, a conviction for assault is no bar to a prosecution for murder or culpable homicide where the victim has died since the conviction, for the more comprehensive offence could not have been proved at the former trial, and the fact of death has altered the essential nature of the crime. S v Lelaka ZASCA 169 (unreported, SCA case no 409/2015, 26 November 2015) In S v Basson 2007 (1) SACR 566 (CC) the Constitutional Court upheld the State’s appeal against the trial court’s quashing of six charges against the respondent (at ). It also confirmed the principles that in such circumstances the plea of autrefois acquit would not succeed in a subsequent prosecution ‘as there was no acquittal on merits in respect of the quashed charges, and the accused did not plead to these charges and was therefore never in jeopardy of conviction upon them’ at (). The requirement that the previous acquittal (autrefois acquit) should have been on merits, must be interpreted in the light of provisions of sections 322(3) and 324. Section 324 should also be read with section 313 which deals with the institution of proceedings de novo when a conviction in a lower court is set aside on appeal or review (Makau v Magistrate (unreported, GNP case no. A10/2011, 25 October 2011) at. In S v Msomi 2009 (1) SACR 441 (N) the accused at his second trial had pleaded guilty to and was convicted of theft. Prior to sentencing it emerged that the accused could successfully rely upon autrefois convict. The magistrate upheld this ‘plea’ despite the fact that the accused himself had never tendered such plea. The magistrate sent the matter on review for confirmation of his finding. On review it was held that the magistrate should have stopped the proceeding and sent the matter on review in terms of section 304A, which provides for the situation where magistrates are faced with irregular proceedings after conviction but before sentence. Section106(4) contains the important principle that an accused who pleads to a charge shall, except in special circumstances, be entitled to demand that he be acquitted or convicted. - 246 - o The effect of this section is that an accused must be acquitted or convicted on the charge which was proffered and not on an entirely different offence, to which he might have admitted during the course of the proceedings. o An accused who has pleaded to certain charges but in respect of which no judgement was given, should be acquitted on all those charges. o The procedural right granted to an accused in terms of section 106(4) only exists in a situation where the accused pleads to a charge on which he is actually being tried in the sense that he is before tribunal which has the power to find him guilty or not guilty on that charge. o The availability of the presiding officer is also a factor that affects the right of the accused to demand a verdict. Where the magistrate who started the trial is no longer available in the absolute sense like where he dies or recuses himself, the trial can start de novo before another presiding officer. For a case to start de novo, it means that the case is to start afresh, or from the beginning. The plea of lis pendens is not referred to in section 106. But it is a plea that can be raised, see S v Motsepa 1982 (1) SA 304 (O). See also Wild & anther v Hoffert NO & others 1997 (2) SACR (N) 237. This is where accused replies that this matter which he is being charged for, is already pending or proceeding before another court and as such he cannot be prosecuted again as it has to be finalized where he is being tried. Section 107-Truth and Publication for public benefit of defamatory matter to specially pleaded A person charged with the unlawful publication of defamatory matter, who sets up as a defence that the defamatory matter is true and that it was for the public benefit that the matter should be published, shall plead such defence specially, and may plead with any other plea except the plea on guilty. The common law crime of defamation has not been abrogated by disuse and is consistent with constitutional provisions ((S v Hoho 2009 (1) SACR 276 (SCA); (S v Motsepe 2015 (2) SACR 125 (GP)) - 247 - Section 108 - Issues raised by plea to be tried If an accused pleads a plea other than a plea of guilty, he shall, subject to the provisions of sections 115, 122 and 141(3), by such plea be deemed to demand that the issues raised by the plea be tried. Section 109 - Accused refusing to plead Where an accused in criminal proceedings refuses to plead to any charge, the court shall record a plea of not guilty on behalf of the accused, and a plea so recorded shall have the same effect as if it had been actually pleaded. A refusal to plead does not amount to contempt of court (S v Monnanyane 1997 (3) SA 976 (O)) Section 110 - Accused brought before court which has no jurisdiction (1) Where an accused has pleaded that the court has no jurisdiction and it at any stage - (a) after the accused has pleaded a plea of guilty or of not guilty; or (b) where the accused has pleaded any other plea and the court has determined such plea against the accused, appears that the court in question does not have jurisdiction, the court shall for the purposes of this act be deemed to have jurisdiction in respect of the offence in question. (2) where an accused pleads that the court in question has no jurisdiction and the plea is upheld, the court shall adjourn the case to the court having jurisdiction. The Court explained in Savoi & others v National Prosecuting Authority & another 2021 (2) SACR 278 (KZP) at , ‘in a criminal matter, jurisdiction is determined by the area in which the offences have been committed (territorial jurisdiction), the nature of the offence (substantive jurisdiction) and also the nature of the penalty that should be imposed (punitive jurisdiction). o Territorial jurisdiction refers to the place at which the offence was committed. The crime must have been committed within the geographic jurisdiction of the court, unless the - 248 -  Director of Public Prosecution issues a certificate of consolidation of offences (commonly called “centralisation certificate), in term of S.111 of CPA o Substantive jurisdiction refers to the type of crime. High Courts have jurisdiction over all crimes. Regional courts have jurisdiction over all crimes except treason. District courts have jurisdiction over all crimes except treason, murder, rape and compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively o Penal jurisdiction refers to the sentences which may be imposed by the court. High court may impose any sentence in terms of the CPA. Regional court has a maximum jurisdiction of 15 years imprisonment. District court has a maximum jurisdiction of 3 years imprisonment. o The Criminal Law Amendment Act 105 of 1997 – gives the High Court and Regional Court the power to impose minimum sentences – including life imprisonment according to the categories of crimes listed in the schedule of the Act (see discussion on sentencing for full details) o Prosecution Policy Directives - Where minimum sentences as contemplated in section 51(1) or 51(2) of the Criminal Law Amendment Act, 105 of 1997, are applicable, the trial must be conducted in the Regional Court (or High Court). Section 110A - Jurisdiction in respect of offences committed by certain persons outside Republic Notwithstanding any other law, any South African citizen who commits an offence outside the area of jurisdiction of the courts of the Republic and who cannot be prosecuted by the courts of the country in which the offence was committed, due to the fact that the person is immune from prosecution as a result of the operation of provisions of - the convention on the Privileges and immunities of the UN, 1946 the convention on the Privileges and immunities of the specialized agencies, 1947, the Vienna Convention on Diplomatic Relations, 1961; the Vienna Convention on Consular Relations, 1963; or any other international convention, treaty or any agreement between the Republic and any other country or international organisation. - 249 - and that person is found within the area of jurisdiction of any court in the Republic which would have had jurisdiction to try the offence if it had been committed within its area of jurisdiction, that court shall, subject to subsection (2) have jurisdiction to try that offence. (2) no prosecution may be instituted against a person under subsection (1) unless; (a) the offence is an offence under the laws of the Republic, and (b) the NDPP instructs that a prosecution be instituted against the person (3) At the conclusion of the trial against a person under this section, a copy of the proceedings, certified by the clerk of the court or registrar, together with any remarks as the prosecutor may wish to append thereto, must be submitted to the Minister of Foreign Affairs. In Southern African Litigation Centre & another v NDPP & others 2012 (10) BCLR 1089 (GNP), the North Gauteng High Court in Pretoria considered the provision or universal jurisdiction in Act 27 of 2002. The High Court held that the decision taken by the NPA refusing and/ or failing to accede to the first applicant’s request that an investigation be initiated under the implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 into acts of torture as crimes against humanity committed by certain named perpetrators in Zimbabwe, was unlawful and inconsistent with the constitution and therefore invalid. The SALC judgement was taken on appeal. In National Commissioner, South African Police Service & another v Southern African Human Rights Litigation Centre & another 2014 (2) SA 42 (SCA) the SCA agreed with the High Court. The SCA clearly understood the notion of universality as a basis for prescriptive jurisdiction to be the idea that ‘states are empowered to prescribe conduct that is recognized as [threatening] the good order not only of particular states but of the international community as a whole’. Section 112 - Plea of Guilty (1) where an accused at a summary trial in any court, pleads guilty to the offence charged, or to an offence of which he/she may be convicted on the charge and _the prosecutor accepts that plea – (a) the presiding judge, regional magistrate or magistrate may, if he or she is of the opinion that the offence does not merit punishment of Imprisonment or any other form of detention without the option of a fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, convict the accused in respect of the offence to which he or she has pleaded guilty on his or her plea of guilty only and - - 250 -  (i) impose any competent sentence other than imprisonment or any other form of detention without the option of a fine or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette or (ii) deal with the accused otherwise in accordance with the law (b) the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that the offence merits punishment of imprisonment without the option of a fine or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence. If an accused or his legal advisor hands a written statement by the accused into court, in which the accused sets out the facts which he admits and on which he has pleaded guilty, the court may in lieu of questioning the accused under subsection 1(b), convict the accused on the strength of such statement and sentence him or her as provided in the said subsection if the court is satisfied that the accused is guilty of the offence to which he has pleaded guilty: Provided that the court may in its discretion put any question to the accused in order to clarify any matter raised in the statement. Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence. The amount is currently R5000 as per GN R62 in GG 36111 of 30 January 2013. This section must be read with section 106 (1)(a) and (b) as discussed above. It is a section wherein accused admits that he knows what he has been charged with and furthermore, he is taking responsibility for what he has done, and again admitting that he does not have a just excuse in law which he can defend himself or herself. It becomes the responsibility of the presiding officer or judge to ensure that indeed the accused is guilty in terms of the law, by following all necessary steps that are prescribed. ◼ If accused is pleading guilty to an offence which according to the prosecutor, does not warrant a fine which has been determined in government gazette, then the prosecutor shall inform the presiding officer that he or she is accepting the plea of accused and - 251 - request the court to find accused guilty on his plea- section 112 (1)(a). This is done for those minor offences wherein the court will not impose a punishment of direct imprisonment or sentence with option of fine exceeding the one determined in the gazette. The finalization of cases via summary route as provided for in section 112 (1)(a) is not acceptable in cases where an accused has no legal representation and pleads guilty to an offence of some complexity. The court should exercise its discretion and not pursue the speedy disposal of cases at the expense of protecting and promoting the truth and fair trial requirements. In S v Gumede & Others 2020 (1) SACR 644 (KZP) Olsen J stated… ‘the discretion must be exercised judicially, in exercising that discretion, the magistrate must recognize that the advantage sought to be gained by the employment of section 112 (1)(a) is one of efficiency. That however must be weighed against the fact that an important component of the right to a fair criminal trial is the achievement of an adequate assurance that innocent people are not wrongly convicted, bearing in mind that protection against wrong conviction is no less important in the case of a minor offence’. ◼ If the prosecutor is of the view that accused deserves a sentence which is beyond the amount specified in the gazette or detention without the option of a fine, the prosecutor shall request the court to question the accused in terms of section 112 (1)(b) in order to confirm that indeed accused has pleaded guilty correctly and in terms of the law. If accused is convicted following section 112 (1)(b) then he/she can be sentenced to any sentence which such court has jurisdiction to impose, in respect of that offence, including sentence where accused is sent direct to prison without an option of a fine. In S v Kholoane 2012 (1) SACR 8(FB) at - Rampai J took the following view as regards the different procedures created by section 112 (1)(a) and (b): The configuration of the two procedures is undesirable. The important distinction between the two may thereby be blurred. If subsection (1)(a) is not strictly complied with, then subsection (1)(b) should not be used as corrective procedure for a sentence which does not fully fall within the scope of sub-section (1)(a). The court has to decide whether to use sub-section (1)(a) or (1)(b). There is no room somewhere for hybrid procedure. The court which applies sub- section (1)(a) should only import the tool of judicial questioning into the subsection provided the fine component of the sentence it proposes imposing does not exceed the statutory limit. In other words, if the matter falls squarely within the ambit of sub- section (1)(a) the court is at liberty to ask certain judicial questions to the accused for the purpose of confirming legal compliance. However, if the proposed fine exceeds such limit, then the - 252 -  court should rather completely deal with the matter in terms of subsection (1)(b) instead of using sub-section (1)(b) to perfect irregular use of sub-section (1)(a) procedure’. Section 112 (1)(b) was designed to protect an accused who is uneducated and undefended from the adverse consequences of an ill-considered plea of guilty. The questions and answers must cover all essential elements of the offence which the State in the absence of plea of guilty would have been required to prove. The court should avoid a procedure in terms of which the accused is merely asked to confirm his plea by making a series of admissions in respect of each element of the offence. The court should use a simple and understandable language to an undefended accused when questioning him or her. It is improper to ask an accused whether he admits all the allegations made in the charge read by the prosecutor. If there is more than one accused, each accused should be questioned separately from the other. Grant AJ said in S v Serame 2019 (2) SACR 407 (GJ) at , ‘a court is obliged to ensure that the accused means to say that, in truth, he is really guilty’. Section 112 (1)(b) must be applied within the context of an accused’s constitutional right to a fair trial, (see remarks made by Makgoba AJA in S v Shiburi 2018 (2) SACR 485 (SCA) at.) Section 112 (1)(b) was designed to avoid the necessity for calling evidence in cases where it is clear that the accused understands all the elements of the charge against him and admits them all. ◼ A section 112 (2) statement serves the same purpose as questioning in terms of section 112 (1)(b), i.e. to ensure that the court is provided with an adequate factual basis which supports the plea of guilty and justifies a conviction to the satisfaction of the court. The statement has to satisfy the court that the accused admits the facts which underlie the charge and the court must be fully informed of the facts. This is a written statement which accused prepares or through his or her legal representative presents to the court as exhibit after pleading guilty to the charge., detailing the facts on which his plea is premised, and if the prosecutor accepts, and court also finds that it is in order, then accused can consequently be sentenced. In DPP, Gauteng Division, Pretoria v Hamisi 2018 (2) SACR 230 (SCA) at Dambuzo JA pointed out that section 112(2) ‘regulates guilty pleas made in writing; whereas section 112(1) governs the conviction and sentence of an accused on a verbal plea of guilty’. It was further indicated that a court considering a statement made in terms of section 112 (2) exercises its discretion to determine whether the statement admits all the elements of the offence in question. If it is not satisfied that that is so, it must question the accused as set out in section - 253 - 112 (1)(b) to clarify a matter raised in the written plea. If it determines that the statement is satisfactory and admits all the elements of the offence, it shall convict the accused on the plea of guilty. The written plea is aimed at ensuring that the court is provided with an adequate factual basis to make a determination on whether the admissions made by an accused support the plea of guilty tendered. Section 113 - Correction of plea of guilty (1) If the court at any stage of the proceedings under section 112 (1)(a) or (b) or 112(2) and before sentence is passed, is in doubt whether the accused is in law guilty of the offence to which he or she has pleaded guilty or if it is alleged or appears to the court that the accused does not admit an allegation in the charge, or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge or if the court is of the opinion for any other reason that the accused`s plea of guilty should not stand, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution, provided that any allegation, other than an allegation referred to above, admitted by the accused up to the stage at which the court records a plea of not guilty shall stand as proof in any court of such allegation. (2) If the court records a plea of not guilty under subsection (1) before any evidence has been led, the prosecution shall proceed on the original charge laid against the accused, unless the prosecutor explicitly indicates otherwise. The court in S v Mangena 2022 (1) SACR 102 (LP) at held that the prerequisites for a presiding officer to record a plea of not guilty in terms of section 113 are that: i. there must be doubt whether the accused is in law guilty of the offence to which he/she has pleaded guilty, or ii. it must appear to the court that the accused does not admit an allegation in the charge, or iii. the accused has incorrectly admitted any such allegation, or iv. the accused has a valid defence to the charge, or v. the court is of the opinion for any other reason that accused’s plea of guilty should not stand. There must be a basis for presiding officer to record a plea of not guilty in terms of section 113. The presiding officer will be guided by what the accused tells the court during questioning by court or during mitigation of sentence and not what the presiding officer thinks will transpire. - 254 - Section 114 - Committal by magistrate’s court of an accused for sentence by regional court after plea of guilty (1) If a magistrate’s court, after conviction following on a plea of guilty but before sentence, is of the opinion – (a) that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of magistrate’s court, or (b) that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of magistrate’s court; or (c) that the accused is a person referred to in section 286A (1) the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction. (2) Where an accused is committed under subsection (1) for sentence by a regional court, the record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court, and the guilty plea and any admission shall stand unless the accused satisfies the court that such plea or such admission was incorrectly recorded. (3) (a) Unless the regional court concerned - (i) is satisfied that a plea of guilty or an admission by the accused which is material to his guilt was incorrectly recorded; or (ii) is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence, the court shall make a formal finding of guilty and sentence the accused. (b) If the court is satisfied that a plea of guilty or any admission by the accused which is material to his guilt was incorrectly recorded or if the court is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence or that he has no valid defence to the charge, the court shall enter a plea of not guilty and proceed with the trial or summary trial in that court, provided that any admission by the accused of the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted. (4) The provisions of section 112(3) shall apply with reference to the proceedings under this section. Section 115 - Plea of not guilty and procedure with regard to issues (1) Where an accused at summary trial pleads not guilty to the offence charged, the presiding judge, regional magistrate or magistrate may ask him or her whether he wishes to make statement indicating the basis of his or her defence. - 255 -  (2) (a) Where an accused does not make a statement under subsection (1), or does so and it is not clear from the statement to what extent he or she denies or admits the issues raised by the plea, the court may question the accused in order to establish which allegations in the charge are in dispute. (b) The court may in its discretion put any question to the accused in order to clarify any matter raised under subsection (1) or this subsection, and shall enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an admission under section 220. (3) Where the legal advisor of an accused on behalf of the accused replies, whether in writing or orally, to any question by the court under this section, the accused shall be required by the court to declare whether he or she confirms such reply or not. This section gives procedure on what should happen after accused has chosen section 106 (1)(b) and as such, this section gives accused opportunity to explain the basis of his denial of the allegations against him or her. However, the accused is not obliged to give an explanation, and as such the prosecutor can proceed to lead evidence without any plea explanation by the accused. ◼ The aim of section 115 is to give the accused an opportunity to put forward his or her defence.. Common-law and statutory procedural rights which are affected by section 115 must be explained to an accused who appears without legal representation. A court is not obliged to question an accused who has pleaded not guilty. ◼ The presiding officer should inform the accused that he is under no obligation to make a statement indicating the basis of his defence. The accused is also under no obligation to answer any question from the presiding officer for the purpose of plea explanation. ◼ Once a statement indicating the basis of the defence is however supplied, the court is obliged to enquire whether an allegation not placed in dispute may be recorded as an admission. ◼ Should the accused agree, the formal admissions made during questioning shall be formally recorded and deemed to be admissions in terms of section 220 and the prosecutor shall be relieved from proving same. Formal admissions which cover all the - 256 -  elements of the offence eliminate the necessity for State to adduce evidence in support of its allegations. ◼ The accused’s silence during the explanation of plea simply means that the State must prove all its allegations. Section 115A - Committal of accused for trial by the regional court (1) Where an accused pleads not guilty in a magistrate’s court, the court shall, subject to the provisions of section 115, at the request of the prosecutor, made before any evidence is tendered, refer the accused for trial to a regional court having jurisdiction. (2) The record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court. Section 116 - Committal of accused for sentence by regional court after trial in magistrate’s court (1) If a magistrate’s court, after conviction following on a plea of not guilty but before sentence, is of the opinion (a) that the offence in respect of which the accused has been convicted is of such nature or magnitude that it merits punishment in excess of the jurisdiction of magistrate’s court; (b) that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of magistrate’s court; or (c) that the accused is a person referred to in section 286A (1), the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction. (2) The record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court. (3) (a) The regional court shall, after considering the record of the proceedings in the magistrate’s court, sentence the accused, and the judgement of the magistrate’s court shall stand for this purpose and be sufficient for the regional court to pass any competent sentence: Provided that if the regional magistrate is of the opinion that the proceedings are not in accordance with justice or doubt exists whether the proceedings are in accordance with justice, he or she may request the presiding officer in the magistrate’s court to provide him or her with the reasons for conviction, and if after considering the reasons, the regional magistrate is satisfied that the proceedings are in accordance with justice he or she may sentence the accused, but if he or she remains of the opinion that the proceedings are not in accordance with justice or doubt exists whether the proceedings are in accordance with justice, he or she shall, without sentencing the accused, record the reasons for his or her opinion and transmit such reasons and the reasons of the presiding officer of the magistrate`s court, together with the record of the proceedings in the magistrate`s court to the registrar of provincial division having jurisdiction, and such registrar - 257 - shall , as soon as possible, lay the same in chambers before a judge who shall have the same powers in respect of such proceedings as if the record had been laid before him or her under section 303. (b) If a regional magistrate acts under the proviso to paragraph (a), he or she shall inform the accused accordingly and postpone the case to some future date pending the outcome of the review proceedings, and if the accused is in custody, the regional magistrate may make such order with regard to the detention or release of the accused as he may deem fit. In terms of S v Duma 2012 (2) SACR 585 (KZP) at ; S v Davids & another 2020 (1) SACR 134 (WCC), ‘an order made by a district-court magistrate in terms of either section 116 or section 114 referring a case to the regional court for sentencing purposes, is merely a ruling of a procedural nature seeking to direct the future conduct of the proceedings and does not dispose, or seek to dispose of the case’. Section 114, after a guilty plea, does not empower the regional magistrate to request reasons from the magistrate, whereas section 116, after a plea of not guilty, does. Section 114 empowers the regional magistrate to continue with the case where there is doubt whether the proceedings were in accordance with justice, whereas section 116 does not. Section 117 - Committal to Superior Court in special case Where an accused in a lower court pleads not guilty to the offence charged against him and a ground of his defence is the alleged invalidity of a provincial ordinance or a proclamation of the State President on which the charge against is founded and upon the validity of which a magistrate’s court is in terms of section 110 of the magistrate’s courts Act, 1944 (Act 32 of 1944), not competent to pronounce, the accused shall be committed for a summary trial before a superior court having jurisdiction. A lower court is competent to pronounce upon validity of any statutory regulation, order or by- law, but must assume – and is incompetent to pronounce upon – the validity of a provincial ordinance or of a statutory proclamation of the State President. Cases in which section 117 will be invoked are ‘rare’ and where it is invoked ‘the accused must be committed for trial in the High Court’ (S v John (unreported, WCC case no A610/2002, 27 August 2003) at ). - 258 - Section 118 - Non-availability of judicial officer after plea of not guilty If the judge, regional magistrate or magistrate before whom an accused at a summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced yet, the trial may be continued before any other judge, regional magistrate or magistrate of the same court. Section118 should be read with section 106(4). It would seem as if real purpose of s 118 is merely to ensure that an explanation of plea can be taken by one magistrate and that the actual trial can then be commenced before a different magistrate. See generally S v Stokffels & 11 Similar cases 2004 (1) SACR 176(C) 177a and S v Mokoena 2005 (2) SACR 280 (O) at as well as S v Masumpa 2005 (2) SACR 512(CK) at. In S v Moses 2019 (1) SACR 75 (WCC) at the court held that ‘should a judicial officer for any reason nevertheless feel uncomfortable about proceeding with the matter with knowledge of the accused’s previous convictions after altering the plea in terms of s 113, he or she may properly recuse themselves and, provided that they do so before any evidence has been adduced, the trial may continue before a substitute in terms of s118 of the Act. Plea in Magistrate’s Court on Charge Justiciable in Superior Court (ss 119-122) Section 119 - Accused to plead in magistrate’s court on instructions of DPP When an accused appears in a magistrate’s court and the alleged offence may be tried by a superior court only or is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court, the prosecutor may, notwithstanding the provisions of section 75, on the instructions of DPP, put the charge as well as any other charge which shall, in terms of section 82, be disposed of in a superior court, to the accused in the magistrate’s court, and the accused shall, subject to the provisions of section 77 and 85 be required by the magistrate to plead thereto forthwith It was held in DPP Transvaal versus Viljoen 2005 (1) SACR 505 (SCA) at : In terms of section 35 (3) (h) an accused has the right to fair trial, which includes the right to remain silent (not a right to be informed of the right to remain silent).The right is clearly one that can be waived. A failure to inform accused of the right to remain silent may result in the trial being unfair (DPP Natal, v Magidela & another 2000 (1) SACR 458 (SCA)) Section 119 proceedings only serve as aid to the DPP who determines the charge and the decision on the prosecution rests with him in terms of section 122 (1) of the Act. - 259 - Section 120 - Charge sheet and proof of record The proceedings shall be commenced by the lodging of a charge-sheet with the clerk of the court in question and the provisions of subsections (2) and (3) of section 76 shall mutatis mutandis apply with reference to the charge- sheet and the record of the proceedings. Section 121 - Plea of guilty (1) Where an accused under section 119 pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b) of section 112(1). (2) (a) if the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall stop the proceedings. (b) If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122(1): Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation. (3) If the magistrate is satisfied as provided in subsection (2)(a), he shall adjourn the proceedings pending the decision of the attorney-general, who may— (a) arraign the accused for sentence before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were stopped under subsection (2)(a); (b) decline to arraign the accused for sentence before any court but arraign him for trial on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were stopped under subsection (2)(a); (c) institute a preparatory examination against the accused. (4) The magistrate or any other magistrate of the magistrate’s court concerned shall advise the accused of the decision of the attorney-general and, if the decision is that the accused be arraigned for sentence— (a) in the magistrate’s court concerned, dispose of the case on the charge on which the accused is arraigned; or (b) in a regional court or superior court, adjourn the case for sentence by the regional court or superior court concerned. (5) (a) The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused or, if the accused is arraigned in the magistrate’s court in which the proceedings were stopped under subsection (2)(a), the record of such proceedings shall stand as the record of that court, and the plea of guilty and any admission by the - 260 - accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded. (aA) The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such admission was incorrectly recorded. (b) Unless the accused satisfies the court that a plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty and impose any competent sentence. If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted. Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence. Section 122 - Plea of not guilty Where an accused under section 119 pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied (with), the magistrate shall stop the proceedings and adjourn the case pending the decision of the DPP. Where the proceedings have been adjourned under subsection (1) the DPP may- arraign the accused on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were adjourned under subsection (1); or institute a preparatory examination against the accused, and the DPP shall advise the magistrate’s court concerned of his decision. The magistrate, who need not be the magistrate before whom the proceedings under section 119 or 122(1) were conducted, shall advise the accused of the decision of the DPP, and if the decision is that the accused be arraigned – - 261 -  (a) in the magistrate’s court concerned, require the accused to plead to that charge, and, if the plea to that charge is one of guilty or the plea in respect of an offence of which the accused may on such charge be convicted is one of guilty and the prosecutor accepts such plea, deal with the matter in accordance with the provisions of section 112, in which event the provisions of section 114(1) shall not apply, or, if the plea is one of not guilty, deal with the matter in accordance with the provisions of section 115 and proceed with the trial; (b) in a regional court or a superior court, commit the accused for a summary trial before the court concerned. (4) The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such an admission. In S v Sesetse 1981 (3) SA 353 (A) it was pointed out that if an accused, who has spontaneously made an admission after he was required to plead in terms of s 119 but before the procedure prescribed by s122 was followed, should consent, after questioning by the magistrate in terms of s115(2)(b), to the admission being recorded such admission becomes an admission in terms of section 220. Where consent is not given, the admission should be treated as an informal admission. Plea in Magistrate’s Court on Charge to be Adjudicated in Regional Court (ss 122A – 122D) Section 122A - Accused to plead in magistrate’s court on charge to be tried in regional court When an accused appears in a magistrate’s court and the alleged offence may be tried by a regional court but not by a magistrate’s court or the prosecutor informs the court that he is of the opinion that the alleged offence is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court but not of the jurisdiction of a regional court, the prosecutor may notwithstanding the provisions of section 75, put the relevant charge, as well as any other charge which shall, in terms of section 82, be disposed of by a regional court, to the accused, who shall, subject to the provisions of sections 77 and 85, be required by the magistrate to plead thereto forthwith See S v Lethopa 1994 (1) SACR 553 (O) wherein accused had pleaded not guilty under section 122A, matter was provisionally withdrawn by the DPP, but later reinstated and accused - 262 - was asked to plead again, this time he pleaded guilty but this second proceedings were set aside by the full bench. Section 122B - Charge-sheet and proof of record The provisions of section 120 shall mutatis mutandis apply with reference to the proceedings under section 122A and the record of the proceedings. Section 122C - Plea of guilty (1) Where an accused under section 122A pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b)of section 112(1) (2)(a) If the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall adjourn the case for sentence by the regional court concerned. (b) If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122D (1). (3)(a) The record of the proceedings in the magistrate’s court shall, upon proof thereof in the regional court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded. (b) Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty, and impose any competent sentence (4) If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, the court shall record a plea of not guilty and proceed with the trial with as a summary trial in that court. (5) Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purpose of determining an appropriate sentence. In S v M 1980 (4) SA 404 (O) it was held that the expression ‘he shall adjourn the case for sentence’ in s 122C(2)(a) and the expression ‘arraigned for sentence’ in s 122C(3)(a) do not mean that the accused must be convicted in the magistrate’s court before he is referred to the regional court. The effect of ss 122A-C is that the conviction must be entered by the regional court. See also S v Ndlolo & others 1992 (2) SACR 658 (CK). - 263 - Section 122D - Plea of not guilty (1) Where an accused under section 122A pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied with, the magistrate shall commit the accused for a summary trial in the regional court concerned on the charge to which he has pleaded not guilty or on the charge to which he has pleaded not guilty or on the charge in respect of which a plea of not guilty has been entered under section 122C(2)(b). (2) The regional court may try the accused on the charge in respect of which he has been committed for a summary trial under subsection (1) or on any other or further charge which the prosecutor may prefer against the accused and which the court is competent to try. (3) The record of proceedings in the magistrate’s court shall, upon proof thereof in the regional court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such admission. Preparatory Examination (ss123 -143) Preparatory examinations have three main functions, namely to – (1) underline the evidence available against the accused; (2) inform the accused of the available evidence in the State`s case; and (3) enable a decision to be made whether the case was trial ready. Preparatory examinations have largely, if not entirely, fallen into disuse. However, the provisions remain available and the DPP has a discretion to convert a trial in the Magistrates’ courts into a preparatory inquiry. Section 123 - DPP may instruct that preparatory examination be held If DPP is of the opinion that it is necessary for the more effective administration of justice – (a) that a trial in a superior court be preceded by a preparatory examination in a magistrate’s court into the allegations against the accused, he may, where he does not follow the procedure under section 119, or, where he does follow it and the proceedings are adjourned under section 121(3) or 122(1) pending the decision of the DPP, instruct that a preparatory examination be instituted against the accused; (b) that a trial in a magistrate’s court or a regional court be converted into a preparatory examination, he may at any stage of the proceedings, but before sentence is passed, instruct that the trial be converted into preparatory examination. - 264 - The decision to hold a preparatory examination or convert a magistrate’s court or regional court trial into a preparatory examination, is in the sole discretion of the DPP- the only issue to be considered is whether such preparatory examination is necessary for the more effective administration of justice. Section 124 - Proceedings preceding holding of preparatory examination to form part of preparatory examination record Where a DPP acts under paragraph (a) or (b) of section 123- (a) the record of any proceedings under section 121(1) or 122(1), or of any proceedings in the magistrate’s court or regional court before the trial was converted into a preparatory examination, shall form part of the preparatory examination record; (b) and the accused has pleaded to a charge, the preparatory examination shall continue on the charge to which the accused has pleaded: provided that where evidence is led at such preparatory examination which relates to an offence, other than the offence contained in the charge to which the accused has pleaded, allegedly committed by the accused, such evidence shall not be excluded on the ground only that the evidence does not relate to the offence to which the accused has pleaded. Section 125 - DPP may direct that preparatory examination be conducted at a specified place Where a DPP instructs that a preparatory examination be instituted or that a trial be converted into a preparatory examination, he may, if it appears to him expedient on account of the number of accused involved or of excessive inconvenience or of possible disturbance of the public order, that the preparatory examination be held within his area of jurisdiction in a court other than the court in which the relevant proceedings were commenced, direct that the preparatory examination be instituted in such other court, or where a trial has been converted into a preparatory examination, be continued in such other court The magistrate or regional magistrate shall, after advise of the decision of the DPP, advise the accused of the decision of the DPP and adjourn the proceedings to such other court, and thereafter forward a copy of the record of the proceedings, certified as correct by the clerk of the court, to the court to which the proceedings have been adjourned. The court to which the proceedings are adjourned under subsection (2), shall receive the copy of the record referred to in that subsection, which shall then form part of the proceedings of that court of that court, and shall proceed to conduct the preparatory examination as if it were a preparatory examination instituted in that court. Section 126 - Procedure to be followed by magistrate at preparatory examination - 265 - Where a DPP instructs that a preparatory examination be held against an accused, the magistrate or regional magistrate shall, after advice of the decision of DPP, advise the accused of the DPP and proceed in the manner hereinafter described to enquire into the charge against the accused. Section 127 - Recalling of witnesses after conversion of trial into preparatory examination Where a DPP instructs that a trial be converted into a preparatory examination, it shall not be necessary for the magistrate or regional magistrate to recall any witness who has already given evidence at the trial, but the record of the evidence thus given, certified as correct by the magistrate or regional magistrate, as the case may be, or if, such evidence was recorded in short hand or by mechanical means, any document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed it, shall have the same legal force and effect and shall be admissible in evidence in the same circumstances as the evidence given in the course of a preparatory examination: Provided that if it appears to the magistrate or regional magistrate concerned that it may be in the interest of justice to have a witness already examined recalled for further examination, then such witness shall be recalled and further examined and the evidence given by him shall be recorded in the same manner as other evidence given at a preparatory examination. Section 128 - Examination of prosecution witnesses at preparatory examination The prosecutor may, at a preparatory examination, call any witness in support of the charge to which the accused has pleaded or to testify in relation to any other offence allegedly committed by the accused. Section 129 - Recording of evidence at preparatory examination and proof of record (1) The evidence given at a preparatory examination shall be recorded, and the document purporting to be certified copy shall have the same legal force and effect as such original record. (2) The record of a preparatory examination may be proved in a court by the mere production thereof or of a copy thereof in terms of section 235. Section 130 - Charge to be put at conclusion of evidence for prosecution The prosecutor shall, at the conclusion of the evidence in support of the charge, put to the accused such charge or charges as may arise from the evidence and which the prosecutor may prefer against the accused. - 266 - Section 131 - Accused to plead to charge The magistrate or regional magistrate, as the case may be, shall, subject to the provisions of section 77 and 85, require an accused to who a charge is put under section 130 forthwith to plead to the charge. Section 132 - Procedure after plea (1) (a) Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads guilty to the offence charged, the presiding officer shall question him in accordance with the provisions of section 112 (1)(b). (b) If the presiding judicial officer is not satisfied that the accused admits all the allegations in the charge, he shall record in what respect he is not so satisfied and enter a plea of not guilty: provided that the recorded admissions shall stand at the trial of accused as proof of such allegation (2) Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads not guilty to the offence charged, the presiding judicial officer shall act in accordance with the provisions of section 115. Section 133 - Accused may testify at preparatory examination An accused may, after the provisions of section 132 have been complied with but subject to the provisions of section 151 (1)(b) which shall mutatis mutandis apply, give evidence or make an unsworn statement in relation to a charge put to him under section 130, and the record of such evidence or statement shall be received in evidence before any court in criminal proceedings against the accused upon its mere production without further proof. Section 134 - Accused may call witnesses at preparatory examination An accused may call any competent witness on behalf of the defence. This section is – in terms of section 9(2) of the Extradition Act 67 of 1967- also applicable to extradition enquiry – see case of Garrido v Director of Public Prosecutions, Witwatersrand Local Division, & others 2007 (1) SACR 1(SCA) at. - 267 - Section 135 - Discharge of accused at conclusion of preparatory examination As soon as a preparatory examination is concluded and the magistrate or regional magistrate is upon the whole of the evidence of the opinion that no sufficient case ha been made out to put the accused on trial on any charge put to the accused under section 130 or upon any charge in respect of an offence of which the accused may on such charge be convicted, he may discharge the accused in respect of such charge. Section 136 - Procedure with regard to exhibits at preparatory examination The magistrate or regional magistrate shall cause every document and every article produced or identified as an exhibit by any witness at a preparatory examination to be inventoried and labelled or otherwise marked, and shall cause such documents and articles to be kept in safe custody pending any trial following upon such preparatory examination. Section 137 - Magistrate to transmit record of preparatory examination to Director of Public Prosecutions The magistrate or regional magistrate shall at the conclusion of a preparatory examination and whether or not the accused is under section 135 discharged in respect of any charge, send a copy of the record of the preparatory examination to the DPP and, where the accused is not discharged in respect of all the charges put to him under section 130, adjourn the proceedings pending the decision of the DPP. Section 138 - Preparatory examination may be continued before different judicial officer A preparatory examination may at any stage be continued by a judicial officer other than the judicial officer before whom the proceedings were commenced, and , if necessary, again be continued by the judicial officer before whom the proceedings were commenced. Section 139 - Director of Public Prosecutions may arraign accused for sentence or trial After considering the record of a preparatory examination transmitted to him under section 137, the DPP may – in respect of any charge to which the accused has under section 131 pleaded guilty, arraign the accused for sentence before any court having jurisdiction; arraign the accused for trial before any court having jurisdiction, whether the accused has under section 131 pleaded guilty or not guilty to any charge and whether or not he has been discharged under section 135; decline to prosecute the accused, - 268 - and the DPP shall advise the lower court concerned of his decision. Section 140 - Procedure where accused arraigned for sentence (1) Where an accused is under section 139(a) arraigned for sentence, any magistrate or regional magistrate of the court in which the preparatory examination was held shall advice the accused of the decision of the DPP and, if the decision is that the accused be arraigned – (a) in the court concerned, dispose of the case on the charge on which the accused is arraigned; or (b) in a court other than the court concerned, adjourn the case for sentence by such other court. (2)(a) The record of preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused unless the accused satisfies the court that such plea or such admission was incorrectly recorded. (b) Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty and impose any competent sentence. (3) If the accused satisfies the court that that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court. (4) Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence including evidence or statement by or on behalf of the accused, with regard to sentence. Section 141 - Procedure where accused arraigned for trial where an accused is under section 139(b) arraigned for trial, a magistrate or regional magistrate of the court in which the preparatory examination was held shall advise the accused of the decision of the DPP and, if the accused is to be arraigned in a court other than the court concerned, commit the accused for trial by such other court. where an accused is arraigned for trial after a preparatory examination, the case shall be dealt with in all respects as with a summary trial. The record of the preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for trial, be received as part of the record of that court against accused, provided that the evidence adduced at such preparatory examination shall not form part of the record of the trial of the accused, unless – - 269 -  (a) the accuse pleads guilty at his trial for the offence charged, or to an offence of which he may be convicted on the charge and the prosecutor accepts that plea; or (b) the parties to the proceedings agree that any part of such evidence be admitted to the proceedings. (4) (a) where an accused who has been discharged under section 135is arraigned for trial under section 139(b), the clerk of the court where the preparatory examination was held shall issue to him a written notice to that effect and stating the place, date and time for the appearance of the accused in that court for committal for trial, or, if he is to be arraigned in that court, to plead to the charge on which he is to be arraigned. The notice referred to in paragraph (a) shall be served on the accused in the manner provided for in sections 54(2) and (3) for the service of a summons in a lower court and the provisions of sections 55(1) and (2) shall mutatis mutandis apply with reference to such notice. If the accused is committed for trial by another court, the court committing the accused may direct that he be detained in custody, whereupon the provisions of chapter 9 shall apply with reference to the release of the accused on bail. In S v Sterrenberg 1980 (2) SA 888 (A) 829H – 893A it was held that neither the prosecution nor the accused is obliged to adduce the preparatory examination record in evidence. It was also held that there is no duty or discretion resting on the trial court mero motu to receive it in evidence or have regard to it. Section 142 - Procedure where the DPP declines to prosecute Where the DPP under section 139(c) declines to prosecute an accused, he shall advise the magistrate of the district in which the preparatory examination was held of his decision, and such magistrate shall forthwith have the accused released from custody or, if the accused is not in custody, advise the accused in writing of the decision of the DPP, whereupon no criminal proceedings shall again be instituted against the accused in respect of the charge in question. Effect of DPP’s decision to decline to prosecute in terms of section 139(c) read with section 142, should for all practical purposes be equated to an acquittal on merits by a court of law, i.e. the accused will at a’ re-trial’ in respect of the same subject matter be able to rely on the plea of autrefois acquit under section 106. Section 143 - Accused may inspect preparatory examination record and is entitled to copy thereof (1) An accused who is arraigned for sentence or for trial under section 139 may, without payment, inspect the record of the preparatory examination at the time of his arraignment before the court. - 270 - (2) (a) An accused who is for sentence or for trial under section 139 shall be entitled to a copy of the record of the preparatory examination upon payment, except where a legal practitioner under the Legal Aid South Africa Act,2014, or pro deo counsel is appointed to defend the accused or where the accused is not legally represented, of a reasonable amount not exceeding amount determined. (b) The clerk of the court shall provide the accused or his legal adviser with the preparatory examination record in accordance with the provisions of paragraph (a). Section 143 confirms he principle that an accused should be informed of the allegations against him and where such allegations are contained in a preparatory examination, he is entitled to have access to the record. Trial before Superior Court (Sections 144 -149) Section 144 - Charge in Superior court to be laid in an indictment (1) Where the DPP arraigns an accused for sentence or trial by a superior court, the charge shall be contained in a document called an indictment, which shall be framed in the name of the DPP. (2) The indictment shall, in addition to the charge against the accused, include the name and, where known and where applicable, the address, gender, nationality and age of the accused. (3)(a) Where the DPP under section 75, 121(3)(b) or 122(2)(i) arraigns an accused for a summary trial in a Superior court, the indictment shall be accompanied by summary of the substantial facts of the case, as well as a list of the names and addresses of the witnesses in the case, provided that (i) this provision shall not be construed that the State shall be bound by the contents of summary (ii) the DPP may withhold the name and address of a witness if he is of the opinion that such witness may be tempered with or be intimidated or that it would be in the interest of the security of the State (iii) the omission of the name or address of a witness from such list shall not affect validity of the trial. (b) Where the evidence for the State at the trial of the accused differs in material respect from the summary referred to in paragraph (a), the trial court may, at the request of the accused, adjourn the trial for such period as the court may seem adequate. (4)(a) An indictment shall be served on an accused at least ten days (Sundays and public holidays excluded) before the date appointed for trial – (i) in accordance with the procedure and manner laid down by the rules of court, (ii) by the magistrate or regional magistrate committing him to the Superior court by handing it to him. (b) A return of the mode of service by the person who served the indictment and the notice of trial, or if the said documents were served in court on the accused by a magistrate or regional magistrate, an endorsement - 271 - to that effect, upon the failure of the accused to attend the proceedings in the Superior court, be handed in at the proceedings and shall be prima facie proof of service. (c) The provisions of section 55(1) and (2) shall mutatis mutandis apply with reference to a notice of trial served on an accused in terms of this subsection. In S v Makayi 2021 (2) SACR 197 (ECB) at the court held that although the State is not bound by the summary of substantial facts, the prosecution is expected to either supplement or present an opening address where the evidence it intends to lead differs vastly from that reflected in the summary of substantial facts. Section 145 - Trial in Superior court by Judge sitting with or without assessor (1)(a) Except as provided in section 148, an accused arraigned before a Superior court shall be tried by a judge of that court sitting with or without assessors in accordance with the provisions set out hereunder. (b) An assessor for the purposes of this section means a person who, in the opinion of the judge who presides at a trial, has experience in the administration of justice or skill in any matter which may be considered at the trial. (2) Where a DPP arraigns an accused before a superior court – (a) for trial and the accused pleads not guilty; or (b) for sentence, or for trial and the accused pleads guilty, and a plea of not guilty is entered at the direction of the presiding judge, the presiding judge may summon not more than two assessors to assist him at the trial. (3) No assessor shall hear any evidence unless he first takes an oath or, an affirmation that he will give a true verdict upon the issues to be tried (4) An assessor who takes an oath or makes an affirmation shall be a member of the court. (5) If an assessor is not in the full-time employment of the State, he shall be entitled to such compensation as the Minister, in consultation with the Minister of finance, may determine in respect of expenses incurred by him in connection with his attendance at the trial, and in respect of his services as assessor. The interpretation of the term ‘a person experienced in the administration of justice’ in practice leads to the appointment of advocates, magistrates, attorneys and legal academics as assessors. Persons with a specific skill will include accountants or auditors, but significant cost implications and their availability for lengthy trials are problematic. (section 145(1)(b)) - 272 - On the use, purpose and functions of assessors, see S v Mncwengi & others 2019 (2) SACR 583 (SCA) at. Section 146 - Reasons for decision by Superior Court in criminal matters A judge at a criminal trial in a superior court shall give the reasons for the decision or finding of the member of court who is in the minority or, where the presiding judge sits with only one assessor of such an assessor. Section 147 - Death or incapacity of assessor (1) If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as assessor at any time during a trial, the presiding judge may direct – (a) that the trial proceed before the remaining member or members of the court; or (b) that the trial start de novo, and for that purpose summon an assessor in the place of the assessor who has died or has become unable to act as assessor. (2) Where the presiding judge acts under subsection (1)(b), the plea already recorded shall stand. Section 148… repealed Section 149 - Change of venue in Superior court after indictment has been lodged (1) A superior court may, at any time after an indictment has been lodged with the registrar of that court and before the date of trial, upon application by either prosecution or accused, order that the trial be held at a place within the area of jurisdiction of such court, other than the place determined for the trial, and that it be held on a date and time, other than the date and time determined for the trial. (2) If the accused is not present or represented at such an application or if the prosecution is not present at such an application by the accused, the court shall direct that a copy of the order be served on either prosecution or accused, as the case may be. Conduct of proceedings ( ss 150-178) - 273 - Section 150 - Prosecutor may address court and adduce evidence (1) The prosecutor may at any trial, before any evidence is adduced, address the court for the purpose of explaining the charge and indicating, without comment, to the court what evidence he intends adducing in support of the charge. (2)(a) The prosecutor may then examine the witnesses for the prosecution and adduce such evidence as may be admissible to prove that the accused committed the offence referred to in the charge or that he committed an offence of which he may be convicted on the charge. (b) Where any document may be received in evidence before any court upon its mere production, the prosecutor shall read out such document in court unless the accused is in possession of a copy of such document or dispenses with the reading out thereof. Section 179(2) of the Constitution provides that the prosecuting authority has the power to institute criminal proceedings on behalf of the State, and to carry out any necessary functions incidental to instituting criminal proceedings. Section 179(4) makes provision for the enactment of national legislation that ensures that the prosecuting authority exercises its functions ‘without fear, favour or prejudice’. The prosecutorial responsibility has a duty to act fairly and to serve the broader interests of justice and to guard against the conviction of innocent persons. The prosecutor has a duty to inform the court about the case which is before court and which the State has to prove, by means of bringing in evidence which the court must be satisfied that the State has indeed proved its case beyond any reasonable doubt. The prosecutor will have to bring in the facts of the case through witnesses, thereafter address the court, in line with what the law says. It is also the responsibility of the prosecutor to address the court and bring it to the attention of the court if accused has to be discharged because the State did not succeed in proving the case beyond reasonable doubt. The general roles, functions, powers and duties of the prosecution are summed up in the International Association of Prosecutors’ Standards, referred to in S v Van der Westhuizen 2011 (2) SACR 26 (SCA) and Mohan v Director of Public Prosecutions Kwazulu-Natal & others 2017 (2) SACR 76 (KZD) at where Chetty J indicated to the effect that ‘prosecutors shall perform their duties fairly, consistently and expeditiously, and in the institution of criminal proceedings only to proceed when a case is well-founded upon evidence reasonably believed to be reliable and admissible and will not continue with the prosecution in the absence of such evidence. - 274 - The above mentioned case makes it is clear that a prosecutor shall proceed with prosecution only where there is evidence to prove the allegations. A prosecutor must be honest when addressing the court in terms of section 150, because this is to be viewed in line with the constitutional obligation as set out in section 179 above. The requirement that the prosecutor must act impartially entails that he or she must avoid discrimination as part of the general duty to act without fear, favour or prejudice, also provided for in section 32(1)(a) of the National Prosecuting Authority Act, 32 of 1998. In S v Makayi 2021 (2) SACR 197(ECB) at Stretch J set out at length some of the many duties and responsibilities of the prosecutors, warning that the decision to prosecute must be taken with care because it may have profound consequences for victims, witnesses, accused and their families, and that a wrong decision may undermine the community’s confidence in the criminal justice system. There is no absolute duty on the prosecutor to address the court before evidence is lead. The prosecutor has a discretion to do so and the exercise of that discretion may well depend on factors such as the complexity of the case, the nature of the evidence, the volume of the evidence, etc. The prosecutor is not obliged to call all available witnesses. The prosecutor will exercise the discretion to call witnesses according to the issues in dispute, the need for corroboration or clarification and the possible defence/s raised by the accused. As an officer of the court the primary duty of a prosecutor is not to obtain a conviction but rather to assist the court to arrive at the truth and to this end he should make available to the defence witnesses not called by the State. Failure to avail witnesses to the defence may lead to an adverse inference drawn by the court. Where the prosecutor is in possession of information favourable to the accused, he/she should bring it to the notice of the court. It is not, however, the obligation of the prosecutor to call witnesses who are firmly vested in the camp of the accused or to place contradictory evidence before court and expect the court to find its way through the maze. It is the obligation of a prosecutor firmly, but fairly and dispassionately, to construct and present a case from what appears to be credible evidence, and to challenge the evidence of - 275 - the accused and other defence witnesses, with a view to discrediting such evidence for the very purpose of obtaining a conviction. Witnesses in court when another witness is testifying For obvious reasons, the situation where a witness testifies whilst another witness is present in court, should be avoided. Although nothing in law prohibits a witness who was present in court from later testifying, it may well have an impact on the weight of the evidence the court attaches thereto when evaluating all the evidence at the end of the case. Section 150(2)(b) is often used when statements have been obtained for example in terms of section 236 and 212 of the CPA. Re-opening of State case There are no statutory provisions which may provision for the re-opening of the State case. The trial court has the discretion to allow the State an opportunity to re-open its case. The court in deciding whether to tallow the re-opening of the State’s case, will consider the following: the reasons why the evidence was not led previously, the degree of relevance of the evidence, possible prejudice to the other party (such as the fact that a rebutting witness may no longer be available), the stage at which the proceedings have reached and the general need for finality. There is no absolute rule that the trial court`s discretion to admit evidence for the State after the close of the defence case should be limited to the situation where new matter is introduced which the State could not foresee. An inflexible rule of this sort would hamper the exercise of the judicial officer`s discretion. Section 151 - Accused may address court and adduce evidence (1)(a) If an accused is not under section 174 discharged at the close of the case of the prosecution, the court shall ask him whether he intends adducing any evidence on behalf of the defence, and if so, he may address the - 276 - court for the purpose of indicating to the court, without comment, what evidence he intends adducing on behalf of the defence. (b) The court shall also ask the accused whether he himself intends giving evidence on behalf of the defence ; and – If accused so wish, he shall be called as a witness before any other witness for the defence; or If the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused’s conduct as may be reasonable in the circumstances. (2)(a) The accused may then examine any other witness for the defence and adduce such other evidence on behalf of the defence. (b) Where any document may be received in evidence before any court upon its mere production and the accused wishes to place such evidence before the court, he shall read out the relevant document in court unless the prosecutor is in possession of a copy or dispenses with reading. Similar to the functions of the prosecutor in section 150, it also follows that the accused can also address the court and lead evidence about his or her defence in terms of section 151. He can even bring in evidence favourable to his case through witnesses or any other type of evidence. Therefore, the accused shall have opportunity to adduce evidence if at the end of the State’s case, he or she is not discharged in terms of section 174. An undefended accused must be informed of his or her rights and any possible competent verdicts, and he must be advised of any onus which may be placed on him or her. In S v Ramulifho 2013 (1) SACR 388 (SCA), it was stated that in order to ensure fair trial, a judicial officer must not be a ‘passive observer of the trial’ at : he or she is obliged to ensure fairness and justice and, if necessary, to intervene to achieve this. The accused cannot be forced to give evidence. Section 196(1) makes him competent witness on his own application. In S v Zuma & others 1995 (1) SACR 568 (CC); 1995 (2) SA 642 (CC), Kentridge AJ referred to some presumptions which may be justifiable as being rational in themselves, requiring an accused person to prove only facts to which he or she has easy access, and which it would be unreasonable to expect the prosecution to disprove. This decision shows that there are some presumptions which the court recognized, the court recognized that there are pressing social need for the effective prosecution and that in some cases the prosecution may require reasonable presumptions to assist in this task. - 277 - Section 152 - Criminal proceedings to be conducted in open court Except where otherwise expressly provided by this Act any other law, criminal proceedings in any court shall take place in open court and may take place on any day. It has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. This openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective, so that people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. Therefore, it means that each and every person is allowed as a member of public to get inside the court and listen to the criminal proceedings, unless specific restrictions are imposed like when the child testifies or where the presiding officer rules that matter be heard in camera. Section 153 - Circumstances in which criminal proceedings shall not take place in open court (1) In addition to the provisions of section 63(5) of the Child Justice Act,2008, if it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof. (2) If it appears to any court at criminal proceedings that there is likelihood that harm might result to any person, other than accused, if he testifies at such proceedings, the court may direct – (a) that such person shall testify behind closed door and that no person shall be present when such evidence is given unless his presence is necessary in connection with such proceedings or is authorized by the court. (b) that the identity of such person shall not be revealed or that it shall not be revealed for a period determined by the court (3) In criminal proceedings relating to a charge that the accused committed or attempted to commit – (a) any sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and related Matters) Amendment Act,2007, towards or in connection with any other person; (b) any act for the purpose of furthering the commission of a sexual offence, as contemplated in section 1 of Sexual Offences Act, towards or in connection with any other person; or (c) extortion or any statutory offence demanding from any other person some advantage which was not due and by inspiring fear in the mind of such other person, compelling him to render such advantage, - 278 - the court before which such proceedings are pending may, at the request of such other person, or if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings, shall not be present, provided that judgement shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be revealed thereby. (3A) Any person whose presence is not necessary at criminal proceedings referred to in paragraphs (a) and (b) of subsection 3, shall not be admitted at such proceedings, while the other person referred to, is giving evidence, unless such other person or, if he is a minor, his parent or guardian or a person in loco parentis, requests otherwise. (4) … substituted Where a witness at criminal proceedings before any court is under the age of 18 years, the court may direct that no person, other than such witness and his parent/ guardian or a person in loco parents shall be present at such proceedings, unless his presence is necessary in connection with such proceedings or is authorized by the court. The court may direct that no person under the age of eighteen years shall be present at criminal proceedings before the court, unless he is a witness referred to in subsection (5) and is actually giving evidence at such proceedings or his presence is authorized by the court. Section 154 - Prohibition of publication of certain information relating to criminal proceedings Where a court under section 153(1) on any of the grounds referred to in that subsection directs that the public or any class thereof shall not be present at any proceedings or part thereof, the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever: Provided that a direction by the court shall not prevent the publication of information relating to the name and personal particulars of the accused, the charge against him, the plea, the verdict and the sentence, unless the court is of the opinion that the publication of any part of such information might defeat the object of its direction under section 153(1), in which event the court may direct that such part shall not be published. (a) Where a court under section 153(3) directs that any person or class, of persons shall not be present at criminal proceedings or where any person is in terms of section 153(3A) not admitted at criminal proceedings, no person shall publish in any manner whatever any information which might reveal the identity of any complainant in the proceedings: Provided that the presiding judge or judicial officer may authorize the publication of such information if he is of the opinion that such publication would be just and equitable. (b) No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153(3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question. - 279 - (3) (a) No person shall before, during or at any stage after the conclusion of criminal proceedings, in any manner, including on any social media or electronic platform publish any information which reveals or may reveal the identity of— (i) an accused who is or was under the age of 18 years at the time of the alleged commission of an offence; (ii) a witness who is or was under the age of 18 years at the time of the alleged commission of an offence; or (iii) a person against whom an offence has allegedly been committed who is or was under the age of 18 years at the time of the alleged commission of the offence, unless the publication of such information is authorised in terms of subsection (3B). (b) Subject to paragraph (a), the presiding judge or judicial officer at such criminal proceedings, may authorise the publication of as much of any information relating to the proceedings as he or she may deem fit, if the publication thereof would in his or her opinion be just and equitable and in the interest of any particular person. (3A) Notwithstanding subsection (3)(a), and in the event where substantial injustice would result and no other means are available, information may be published by a police official or by any other person, who is authorised by the National Commissioner of the South African Police Service or a person delegated by him or her— (a) which reveals or may reveal the identity of an accused under the age of 18 years, if— (i) (aa) there are reasonable grounds to suspect that the accused committed an offence listed in Schedule 3 to the Child Justice Act, 2008 (Act 75 of 2008), or an offence which, if committed by an adult, would have justified a term of imprisonment exceeding 10 years; or (bb) the accused escaped from lawful custody or any other place of detention or was released on bail or a warning and failed to appear or remain in attendance at the proceedings, as contemplated in section 67(1); (ii) the South African Police Service has been unsuccessful in locating the whereabouts of the accused; (iii) the information so published does not reveal the age of the accused or the fact that the accused is involved in the commission of the offence; and (iv) it is necessary as a measure to locate the whereabouts of the accused; (b) which reveals or may reveal the identity of a witness under the age of 18 years, if— (i) it is necessary as a measure to locate the whereabouts of the witness to obtain a statement from him or her concerning the commission of any alleged offence, or to testify in criminal proceedings; and (ii) the information so published does not reveal the age of the person or the fact the he or she may be a witness at criminal proceedings; (c) which reveals or may reveal the identity of a person under the age of 18 years against whom an offence has allegedly been committed, if— (i) it is necessary to locate the whereabouts of the person to prevent harm to such a person; and - 280 -  (ii) the information so published is reasonably necessary in the circumstances to identify the person, or any other person who may have relevant information about the alleged offence or whereabouts of the person; or (d) which reveals or may reveal the identity of a person under the age of 18 years, whether or not an offence has allegedly been committed against the person, if— (i) it is necessary to locate the whereabouts of the person to prevent harm to such a person; and (ii) the information so published is reasonably necessary in the circumstances to identify the person, or any other person who may have relevant information about— (aa) an alleged offence which may have been committed against the person; or (bb) the whereabouts of the person. (3B) (a) The court before which criminal proceedings contemplated in subsection (3) have been concluded may, on application of an accused, a witness or a person contemplated in subsection (3)(a) who has attained the age of 18 years and where the court has granted an order that extends into adulthood, grant an order authorising the publication of information which reveals the identity of the applicant, if the court is satisfied that the applicant understands the nature and effect of a court order in terms of this subsection. (b) The High Court before which, or in whose area of jurisdiction, the criminal proceedings contemplated in subsection (3) have been concluded may, on the application of an interested person, grant an order authorising the publication of information which may reveal the identity of a person contemplated in subsection (3)(a). (c) In determining whether an order may be granted, a court referred to in paragraph (a) or (b) must take into account all relevant factors, including— (i) the nature of the charges against the accused; (ii) the age of the persons referred to in subsection (3)(a); (iii) the period which has elapsed since completion of the criminal proceedings and the application; (iv) the interest of the public or any person or category of persons in the publication of such information; (v) the interest of society to encourage the reporting of offences and the participation of witnesses and victims of offences in criminal justice processes; (vi) the likelihood that the publication of such information, which reveals the identity of a person contemplated in subsection (3)(a), will also reveal the identity of any other person contemplated in subsection (1), (2), (3)(a) or (5); (vii) the nature and extent of any hardship that a person contemplated in subsection (3)(a) or any person related to such person may suffer if such information is published; and (viii) the effect of the order on— (aa) a person’s freedom of expression; and - 281 -  (bb) the dignity, security and privacy of a person referred to in subsection (3)(a) or any person related to such person. (d) A court may, if it deems it in the interest of the administration of justice, hold a hearing to determine whether an order should be granted. (e) A hearing contemplated in paragraph (d) must take place behind closed doors and no person shall be present at such hearing, unless his or her presence is necessary in connection with such hearing or is authorised by the court. (f) The verdict of the court must be delivered in open court: Provided that the court may decline to state in open court all or any of the facts, reasons or other considerations that it has taken into account in reaching its verdict, if it is of the opinion that the identity of a person contemplated in subsection (3)(a) may be revealed thereby. (g) No person shall in any manner disclose— (i) the contents of an application; (ii) any evidence taken, information provided or submissions made at the hearing; or (iii) any other information that may reveal the identity of a person contemplated in subsection (3)(a), unless it is authorised by the court or required in the course of further legal proceedings relating to the hearing or in the course of the administration of justice. (4) No prohibition or direction under this section shall apply with reference to the publication in the form of a bona fide law report of— (a) information for the purpose of reporting any question of law relating to the proceedings in question; or (b) any decision or ruling given by any court on such question, if such report does not mention the name of the person charged or of the person against whom or in connection with whom the offence in question was alleged to have been committed or of any witness at such proceedings, and does not mention the place where the offence in question was alleged to have been committed. (5) Any person who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatever reveals the identity of a witness in contravention of a direction under section 153(2), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment if the person in respect of whom the publication or revelation of identity was done, is over the age of 18 years, and if such person is under the age of 18 years, to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment. (6) The provisions of sec