ASPIRANT PROSECUTOR PROGRAMME - Study Guide - 2025-part-9_1.pdf

A bank can only be compelled to produce such records and documents by an order of court. 236A Proof of entries in accounting records and documentation of banks in countries outside Republic (1) The entries in the accounting records of an institution in a state or territory outside the Republic wh...

A bank can only be compelled to produce such records and documents by an order of court. 236A Proof of entries in accounting records and documentation of banks in countries outside Republic (1) The entries in the accounting records of an institution in a state or territory outside the Republic which is similar to a bank in the Republic, and any document which is in the possession of such an institution and which refers to the said entries or to any business transaction of the institution, shall, upon the mere production at criminal proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges— (a) that he is in the service of the institution in question; (b) that such accounting records or document are or were the ordinary records or document of the institution; (c) that the said entries have been made in the usual and ordinary course of the business of such institution; and (d) that such accounting records are or document is in the custody or under the control of such institution, be prima facie proof at such proceedings of the matters, transactions and accounts recorded in such accounting records or document. (2) Any entry in any accounting record contemplated in subsection (1) or any document contemplated in subsection (1) may be proved at criminal proceedings upon the mere production at such proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges— (a) that he is in the service of the institution in question; (b) that he has examined the entry, accounting record or document in question; and (c) that a copy of such entry or document set out in the affidavit or in an 0annexure thereto is a correct copy of such entry or document. (3) A document purporting to be an affidavit shall for the purposes of this section have no effect unless— (a) it is obtained in terms of an order of a competent court or on the authority of a competent government institution of the state or territory concerned, as the case may be; (b) it is authenticated in the manner prescribed in the rules of court for the authentication of documents executed outside the Republic; or (c) it is authenticated by a person, and in the manner, contemplated in section 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963). (4) The admissibility and evidentiary value of an affidavit contemplated in subsections (1) and (2) shall not be affected by the fact that the form of the oath, confirmation or attestation thereof differs from the form of the oath, confirmation or attestation prescribed in the Republic. (5) A court before which an affidavit contemplated in subsections (1) and (2) is placed may, in order to clarify obscurities in the said affidavit, on the request of a party to the proceedings order that a supplementary affidavit be submitted or that oral evidence be heard: Provided that oral evidence shall only be heard if the court is of the opinion that it is in the interests of the administration of justice and that a party to the proceedings would be materially prejudiced should oral evidence not be heard. (6) In this section— 'document' includes a recording or transcribed computer printout produced by any mechanical or electronic device and any device by means of which information is recorded or stored; and 'entry' includes any notation, by any means whatsoever, in the accounting records of an institution contemplated in subsection (1). - 380 - Proof of entries in accounting records and documentation of banks in countries outside the Republic are regulated by s 236A of the CPA. The requirements as set out in s236 (above) are applicable Sub-sections (3) (4) (5) are equivalents to the relevant sub-sections of s212A - the requirements set out in s212A are also applicable. 237 Evidence on charge of bigamy (1) At criminal proceedings at which an accused is charged with bigamy, it shall, as soon as it is proved that a marriage ceremony, other than the ceremony relating to the alleged bigamous marriage, took place within the Republic between the accused and another person, be presumed, unless the contrary is proved, that the marriage was on the date of the solemnization thereof lawful and binding. (2) At criminal proceedings at which an accused is charged with bigamy, it shall be presumed, unless the contrary is proved, that at the time of the solemnization of the alleged bigamous marriage there subsisted between the accused and another person a lawful and binding marriage— (a) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized within the Republic, an extract from the marriage register which purports— (i) to be a duplicate original or a copy of the marriage register relating to such marriage; and (ii) to be certified as such a duplicate original or such a copy by the person having the custody of such marriage register or by a registrar of marriages; (b) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized outside the Republic, a document which purports— (i) to be an extract from a marriage register kept according to law in the country where the marriage is alleged to have been solemnized; and (ii) to be certified as such an extract by the person having the custody of such register, if the signature of such person on the certificate is authenticated in accordance with any law of the Republic governing the authentication of documents executed outside the Republic. (3) At criminal proceedings at which an accused is charged with bigamy, evidence— (a) that shortly before the alleged bigamous marriage the accused had been cohabiting with the person to whom he is alleged to be lawfully married; (b) that the accused had been treating and recognizing such person as a spouse; and (c) of the performance of a marriage ceremony between the accused and such person, shall, as soon as the alleged bigamous marriage, wherever solemnized, has been proved, be prima facie proof that there was a lawful and binding marriage subsisting between the accused and such person at the time of the solemnization of the alleged bigamous marriage. This section creates three presumptions to assist the State on a charge of bigamy. It must be emphasized at the outset, however, that the first and second of these presumptions (contained in subsections (1) and (2)) have the effect of placing an onus on the accused (the onus in its true and primary sense, that is). They are, therefore, unlikely to - 381 - survive a constitutional challenge, since they fly in the face of the presumption of innocence set out in s 35(3)(h) Section 237(1) Once it is shown that a previous marriage ceremony took place within the Republic between the accused and another person it will be presumed that this previous marriage was lawful and binding on the date of its solemnization. There is no mention of the continuation of the marriage in this presumption, merely that it was lawful at the time it was solemnized. Before this presumption may be invoked it must at least be shown that the ceremony was solemnized by a competent marriage officer (R v Damons 1952 (1) PH H47 (C)). The effect of the words 'unless the contrary is proved' is that the accused bears the onus of proving that this previous marriage was not lawful and binding. Section 237(2) On the production of an extract from a marriage register which complies with the respective requirements of paragraphs (a) and (b) and which purports to record a marriage between the accused and another person it will be presumed unless the contrary is proved that those parties were lawfully married at the time the alleged bigamous marriage was solemnized. This subsection therefore creates a presumption of continuity and it places the onus on the accused to prove that the previous marriage has been terminated. The requirements relating to the extract from the marriage register are different according to whether the marriage is alleged to have been solemnized within the Republic (see para (a)) or outside the Republic (see para (b)). Section 237(3) This subsection also creates a presumption of continuity, but its effect differs from subsec (2) in that it places on the accused a duty to adduce evidence rather that the onus in its primary sense. This presumption will therefore usually be invoked where the certificate required under subsec (2) cannot be procured. In order to avail itself of this presumption the prosecution need only provide evidence—as opposed to proof—of the matters contained in paras (a), (b) and (c). Failure to furnish evidence on any one of these items is, however, fatal to the prosecution's cause. Furthermore, the presumption may only be invoked when such evidence is joined by proof of the alleged bigamous marriage. 238 Evidence of relationship on charge of incest (1) At criminal proceedings at which an accused is charged with incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007— (a) it shall be sufficient to prove that the person against whom or by whom the offence is alleged to have been committed, is reputed to be the lineal ascendant or descendant or the sister, brother, stepmother, stepfather, stepdaughter or stepson of the other party to the incest; (b) the accused shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest. (2) Whenever the fact that any lawful and binding marriage was contracted is relevant to the issue at criminal proceedings at which an accused is charged with incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, such fact may be proved prima facie in the manner provided in section 237 for the proof of the existence of a lawful and binding marriage of a person charged with bigamy. - 382 - Incest is sexual intercourse between persons who are not allowed to be married to each other owing to their relationship. Intent is required for conviction, which means that the accused must be aware of the relationship, although there is a rebuttable presumption in paragraph (b) that he or she was in fact aware. If both parties were aware, they are accomplices. Section 238 was amended by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 to include a reference to the definition of incest in section 12 of Act 32 of 2007, and to make it clear that incest can also be committed against a male. Section 12 of Act 32 of 2007 - (2) For the purposes of subsection (1)- (a) the prohibited degrees of consanguinity (blood relationship) are the following: (i) Ascendants and descendants in the direct line; or (ii) collaterals, if either of them is related to their common ancestor in the first degree of descent; (b) the prohibited degrees of affinity are relations by marriage in the ascending and descending line; and (c) an adoptive relationship is the relationship of adoption as provided for in any other law. Incest – Authorisation of the National Director of Public Prosecutions It is important to note that in terms of s12(3) of Act 32 of 2007 - The institution of a prosecution of a person who is a child at the time of the alleged commission of the offence of incest must be authorised in writing by the National Director of Public Prosecutions. 239 Evidence on charge of infanticide or concealment of birth (1) At criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive if the child is proved to have breathed, whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother. (2) At criminal proceedings at which an accused is charged with the concealment of the birth of a child, it shall not be necessary to prove whether the child died before or at or after birth. Section 239(1): Infanticide What is a 'newly born child' for the purposes of s 239(1)? In R v Adams 1929 CPD 452 a child between three and four weeks old was held not to be newly born for the purpose of s 338 of Act 31 of 1917 which empowered a judge to pass a sentence other than the death sentence upon a woman convicted of murdering her newly born child. In R v Belliana Mackinini 1931 WLD 20, however, a ten-day-old child was held to be newly born for the purpose of that section. - 383 - Infanticide is a term which refers to the murder of a new born baby. The crime of murder requires proof that the accused killed a human being. A person must have been alive before a death can be caused. A child which has allegedly been killed is deemed to have been born alive if it is proved that the child breathed. This can be proved by medical evidence Section 239(2): Concealment of birth Section 113(1) of the General Law Amendment Act 46 of 1935, as amended by the Judicial Matters Amendment Act 66 of 2008, provides that 'any person who without a lawful burial order, disposes of the body of any newly born child with the intention to conceal the fact of its birth, whether the child died before, during or after birth, shall be guilty of an offence'. The elements of this offence are thus (a) a disposal (b) of the dead body (c) of a newly born child (d) with intent to conceal the fact of birth. This section is concerned with the disposal of the body of the newly born child. It is not necessary to prove that the child was born alive or that the child was alive at any time before the body was disposed. The disposal of a baby that was still-born is sufficient for this section to apply. Concealment of birth: DPP's written authorisation required It should be noted that a prosecution for contravention of s 113(1) must in terms of s 113(3) be authorised in writing by the Director of Public Prosecutions having jurisdiction. 240 Evidence on charge of receiving stolen property At criminal proceedings at which an accused is charged with receiving stolen property which he knew to be stolen property, evidence may be given at any stage of the proceedings that the accused was, within the period of twelve months immediately preceding the date on which he first appeared in a magistrate's court in respect of such charge, found in possession of other stolen property: Provided that no such evidence shall be given against the accused unless at least three days' notice in writing has been given to him that it is intended to adduce such evidence against him. The evidence referred to in subsection (1) may be taken into consideration for the purpose of proving that the accused knew that the property which forms the subject of the charge was stolen property. - 384 - (3) Where the accused is proved to have received the property which is the subject of the charge, from a person under the age of eighteen years, he shall be presumed to have known at the time when he received such property that it was stolen property, unless it is proved— that the accused was at that time under the age of twenty-one years; or that the accused had good cause, other than the mere statement of the person from whom he received such property, to believe, and that he did believe, that such person had the right to dispose of such property. As a general rule evidence of an accused’s prior misconduct is admissible in criminal proceedings. As discussed in s227 – the bad character of the accused may not be used by the State. Further, the prosecution is generally prohibited from disclosing the accused’s previous convictions (see s 211) The section assists the prosecution by permitting the reception of evidence which might otherwise be inadmissible (sub-ss (1) and (2)) and by creating a presumption as to the accused’s guilty knowledge (sub-s (3)). The constitutional status of sub-s (3) has not yet been evaluated. The provisions of this section were a response to the difficulty of proving the requisite mens rea on charges of receiving stolen property knowing it to be stolen. Further assistance to the prosecution is furnished by s 197(c) which provides that the accused may be required to answer questions relating to his bad character or previous convictions where the proceedings against him are such as are described in s 240 or 241 (see the notes to s 197). Section 240(1) The presumption of guilty knowledge created in this subsection may not be invoked where the accused proves (a) that he was himself under twenty-one years of age at the relevant time or (b) that he had good cause to believe and that he did believe that the person from whom he received the property had the right to dispose of it. Section 240(1) and (2) Where an accused is charged with receiving stolen property knowing it to be stolen the prosecution may lead evidence that he was within the twelve months prior to his first appearance on the charge in question found in possession of other stolen property (s 240(1)). Such evidence may be used to prove that the accused knew that the property which forms the subject of the charge was stolen (s 240(2)). Where the requirements of this section are not satisfied, for example where the State tenders evidence that the accused was found in possession of other stolen property fifteen months before he first appeared on the present charge, such evidence may nevertheless be admissible in terms of the similar fact rule (see the notes to s 210). While these provisions assist the State in proving the accused’s guilty knowledge it is clear that such knowledge may also be inferred from the circumstances. - 385 - 241 Evidence of previous conviction on charge of receiving stolen property If at criminal proceedings at which an accused is charged with receiving stolen property which he knew to be stolen property, it is proved that such property was found in the possession of the accused, evidence may at any stage of the proceedings be given that the accused was, within the five years immediately preceding the date on which he first appeared in a magistrate’s court in respect of such charge, convicted of an offence involving fraud or dishonesty, and such evidence may be taken into consideration for the purpose of proving that the accused knew that the property found in his possession was stolen property: Provided that not less than three days’ notice in writing shall be given to the accused that it is intended to adduce evidence of such previous conviction. This section, similar to s240 provides the prosecution with the means to prove mens rea (guilty mind). The two provisions differ, however, in the following respects: (a) Only evidence of a conviction may be received in terms of s 241. Section 240(1), on the other hand, allows the prosecution to show that the accused was 'found in possession of other stolen property’. The scope of the former provision is, however, broadened by allowing a conviction of any offence involving fraud or dishonesty to be proved. (b) The reception of the evidence described in s 241 is conditional upon proof that the property which forms the subject of the charge was found in possession of the accused. Section 240(1) contains no such condition. (c) A conviction may be proved in terms of s 241 if it fell within the period of five years immediately preceding the date on which the accused first appeared in a magistrate’s court on the charge in question. The corresponding period in s 240(1) is only twelve months. Section 241 only applies where an accused is charged with receiving stolen propertyknowing it to be stolen. It does not apply to a charge of theft or other related offences. 242 Evidence on charge of defamation If at criminal proceedings at which an accused is charged with the unlawful publication of defamatory matter which is contained in a periodical, it is proved that such periodical or the part in which such defamatory matter is contained, was published by the accused, other writings or prints purporting to be other numbers or parts of the same periodical, previously or subsequently published, and containing a printed statement that they were published by or for the accused, shall be admissible in evidence without further proof of their publication. 243 Evidence of receipt of money or property and general deficiency on charge of theft (1) At criminal proceedings at which an accused is charged with theft— (a) while employed in any capacity in the service of the State, of money or of property which belonged to the State or which came into the possession of the accused by virtue of his employment; (b) while a clerk, servant or agent, of money or of property which belonged to his employer or principal or which came into the possession of the accused on account of his employer or principal, an entry in any book of account kept by the accused or kept under or subject to his charge or supervision, and which purports to be an entry of the receipt of money or of property, shall be proof that such money or such property was received by the accused. (2) It shall not be necessary at proceedings referred to in subsection (1) to prove the theft by the accused of a specific sum of money or of specific goods, if— (a) on the examination of the books of account kept or the entries made by the accused or under or subject to his charge or supervision, there is proof of a general deficiency; and (b) the court is satisfied that the accused stole the money or goods so deficient or any part thereof. - 386 - This section aims to overcome the difficulty of proving (a) the receipt in certain cases of allegedly stolen money or property by an accused person who is in the service of the State or who is a clerk, servant or agent of another and (b) the specific amount of money or the specific goods actually stolen where such money or goods were stolen over a period in different amounts or numbers. The section facilitates the proof of such matters in the following ways: (a) Subsection (1) provides that an entry in any book of account kept by or subject to the charge of such person and which purports to be an entry of the receipt of money or property shall be 'proof’ of the receipt of such money or property by the accused. (b) Subsection (2) dispenses with the need to prove the specific sum of money or specific goods stolen if on an examination of the books of account there is proof of a general deficiency and it is proved that the accused stole the money or goods in question or any part thereof. 244 Evidence on charge relating to seals and stamps At criminal proceedings at which an accused is charged with any offence relating to any seal or stamp used for the purposes of the public revenue or the post office in any foreign country, a despatch purporting to be from the officer administering the government of such country and transmitting to the State President any stamp, mark or impression and stating it to be a genuine stamp, mark or impression of a die-plate or other instrument provided or made or used by or under the direction of the proper authority of such country for the purpose of denoting stamp duty or postal charge, shall on its mere production at such proceedings be prima facie proof of the facts stated in the despatch. 245 Evidence on charge of which false representation is element If at criminal proceedings at which an accused is charged with an offence of which a false representation is an element, it is proved that the false representation was made by the accused, he shall be deemed, unless the contrary is proved, to have made such representation knowing it to be false. This section was held to be unconstitutional in S v Coetzee & others 1997 (1) SACR 379 (CC). The Constitutional Court held that, since the effect of the presumption was to oblige a court to convict an accused where the probabilities were evenly balanced and where there was a reasonable doubt as to whether the accused in fact had the requisite knowledge, the presumption fell into 'the class of “reverse onus“ provisions which have been held by this Court to infringe the right of an accused person to be presumed innocent as envisaged in s 25(3)(c) of the [interim] Constitution’ (now s 35(3)(h) of the final Constitution) (at para 6). The function and effect of the presumption was to relieve the prosecution of the burden of proving one of the essential elements of the offence—knowledge of the falseness of the representation. It was, therefore, in conflict with the long-established rule of the common law that it was for the prosecution to prove the guilt of the accused beyond a reasonable doubt, and it clearly infringed the constitutionally entrenched presumption of innocence. - 387 - 246 Presumptions relating to certain documents Any document, including any book, pamphlet, letter, circular letter, list, record, placard or poster, which was at any time on premises occupied by any association of persons, incorporated or unincorporated, or in the possession or under the control of any office-bearer, officer or member of such association, and— (a) on the face whereof a person of a name corresponding to that of an accused person appears to be a member or an office-bearer of such association, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the accused is a member or an office-bearer of such association, as the case may be; (b) on the face whereof a person of a name corresponding to that of an accused person who is or was a member of such association, appears to be the author of such document, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the accused is the author thereof; (c) which on the face thereof appears to be the minutes or a copy of or an extract from the minutes of a meeting of such association or of any committee thereof, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof of the holding of such meeting and of the proceedings thereat; (d) which on the face thereof discloses any object of such association, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the said object is an object of such association. This section has not been a subject of a constitutional court decision (as yet), however, it is likely to be found to offend against the rights of the accused by placing a “reverse onus” of burden of proof. It is likely to be deemed unconstitutional – similar to s245. 247 Presumptions relating to absence from Republic of certain persons Any document, including any newspaper, periodical, book, pamphlet, letter, circular letter, list, record, placard or poster, on the face whereof it appears that a person of a name corresponding to that of an accused person has at any particular time been outside the Republic or has at any particular time made any statement outside the Republic, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the accused was outside the Republic at such time or, as the case may be, that the accused made such statement outside the Republic at such time, if such document is accompanied by a certificate, purporting to have been signed by the Secretary for Foreign Affairs, to the effect that he is satisfied that such document is of foreign origin. This section creates another exception to the rule against hearsay (see the notes to s 216) in that a document which satisfied the requirements of the section constitutes prima facie proof that the accused was absent from the Republic or made a statement outside the Republic at the time indicated on the face of that document. Once the document is received the accused bears the burden of adducing contrary evidence, but this does not affect the incidence of the primary onus. Whether this is enough to save the section from constitutional invalidity remains to be seen. 248 Presumption that accused possessed particular qualification or acted in particular capacity (1) If an act or an omission constitutes an offence only when committed by a person possessing a particular qualification or quality, or vested with a particular authority or acting in a particular capacity, an accused charged with such an offence upon a charge alleging that he possessed such qualification or quality or was vested with such authority or was acting in such capacity, shall, at criminal proceedings, be deemed to have possessed such qualification or quality or to have been vested with such authority or to have been acting in such capacity at the - 388 - time of the commission of the offence, unless such allegation is at any time during the criminal proceedings expressly denied by the accused or is disproved. (2) If such allegation is denied or evidence is led to disprove it after the prosecution has closed its case, the prosecution may adduce any evidence and submit any argument in support of the allegation as if it had not closed its case. This section creates a presumption that relieves the prosecution of the burden of adducing evidence as to the qualification, authority or capacity of the accused where this quality constitutes an essential element of the offence with which he is charged. Once the allegation is denied the presumption falls away and the State is obliged to adduce evidence to establish the requisite qualification, capacity or authority. An unusual feature of this presumption is that it may be rebutted by a mere denial that the accused possessed the alleged qualification, authority or capacity as well as by the customary mode of furnishing proof to the contrary. Such a denial must, however, be expressly made. This aspect of the 'reverse onus’ may save the section from constitutional invalidity, although this cannot be regarded as certain. 249 Presumption of failure to pay tax or to furnish information relating to tax When an accused is at criminal proceedings charged with any offence of which the failure to pay any tax or impost to the State, or of which the failure to furnish to any officer of the State any information relating to any tax or impost which is or may be due to the State is an element, the accused shall be deemed to have failed to pay such tax or impost or to furnish such information, unless the contrary is proved. The presumption created by this section applies to any offence of which the failure to pay tax or the failure to furnish information to an officer of the state relating to tax is an element. 250 Presumption of lack of authority If a person would commit an offence if he— carried on any occupation or business; performed any act; owned or had in his possession or custody or used any article; or was present at or entered any place, without being the holder of a licence, permit, permission or other authority or qualification (in this section referred to as the 'necessary authority'), an accused shall, at criminal proceedings upon a charge that he committed such an offence, be deemed not to have been the holder of the necessary authority, unless the contrary is proved. (a) Any peace officer and, where any fee payable for the necessary authority would accrue to the National Revenue Fund or the Railway and Harbour Fund or a provincial revenue fund, any person authorized thereto in writing by the head of the relevant department or sub-department or by the officer in charge of the relevant office, may demand the production from a person referred to in subsection (1) of the necessary authority which is appropriate. - 389 - (b) Any peace officer, other than a police official in uniform, and any person authorized under paragraph (a) shall, when demanding the necessary authority from any person, produce at the request of that person, his authority to make the demand. (3) Any person who is the holder of the necessary authority and who fails without reasonable cause to produce forthwith such authority to the person making the demand under subsection (2) for the production thereof, or who fails without reasonable cause to submit such authority to a person and at a place and within such reasonable time as the person making the demand may specify, shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months. That section relieves the State of the burden of having to specify, negative or prove 'any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence' The section is applicable in circumstances where a person requires a licience or authority to perform a specific function or carry out a specific business. Eg driving a motor vehicle; possession of a firearm; or practicing as a medical practitioner, etc. The effect of subsection(1) is that if a person would commit an offence if he engaged in any of the activities specified in paras (a)–(d) without being the holder of the 'necessary authority' (as defined) he will, if he is charged with the commission of that offence, be deemed not to have been the holder of such authority unless the contrary is proved. The onus thus rests on the accused to establish on a balance of probabilities that he was the holder of the necessary authority. A constitutional challenge to the validity s 250(1) on the basis that the subsection violated the presumption of innocence by creating an unacceptable 'reverse onus' failed in S v Fransman 2000 (1) SACR 99 (W) for the following reasons: (1) The presumption in s 250(1) does not place the entire onus on the accused; (2) it is easy for an accused to discharge the onus, so that there is no chance of his being convicted if he is innocent; (3) the question as to whether the accused has the requisite licence or authority is peculiarly within his knowledge (4) the presumption is both rebuttable and reasonable in view of the ease with which a licence may be produced compared to the time and effort which the state would have to invest in order to prove its non-existence; and (5) the fact that the presumption is justified by important legislative objectives such as controlling the possession of unlicensed firearms. - 390 - 251 Unstamped instrument admissible in criminal proceedings An instrument liable to stamp duty shall not be held inadmissible at criminal proceedings on the ground only that it is not stamped as required by law. 252 The law in cases not provided for The law as to the admissibility of evidence which was in force in respect of criminal proceedings on the thirtieth day of May, 1961, shall apply in any case not expressly provided for by this Act or any other law. 252A Authority to make use of traps and undercover operations and admissibility of evidence so obtained (1) Any law enforcement officer, official of the State or any other person authorised thereto for such purpose (hereinafter referred to in this section as an official or his or her agent) may make use of a trap or engage in an undercover operation in order to detect, investigate or uncover the commission of an offence, or to prevent the commission of any offence, and the evidence so obtained shall be admissible if that conduct does not go beyond providing an opportunity to commit an offence: Provided that where the conduct goes beyond providing an opportunity to commit an offence a court may admit evidence so obtained subject to subsection (3). (2) In considering the question whether the conduct goes beyond providing an opportunity to commit an offence, the court shall have regard to the following factors: (a) Whether, prior to the setting of a trap or the use of an undercover operation, approval, if it was required, was obtained from the attorney-general to engage such investigation methods and the extent to which the instructions or guidelines issued by the attorney-general were adhered to; (b) the nature of the offence under investigation, including— (i) whether the security of the State, the safety of the public, the maintenance of public order or the national economy is seriously threatened thereby; (ii) the prevalence of the offence in the area concerned; and (iii) the seriousness of such offence; (c) the availability of other techniques for the detection, investigation or uncovering of the commission of the offence or the prevention thereof in the particular circumstances of the case and in the area concerned; (d) whether an average person who was in the position of the accused, would have been induced into the commission of an offence by the kind of conduct employed by the official or his or her agent concerned; (e) the degree of persistence and number of attempts made by the official or his or her agent before the accused succumbed and committed the offence; (f) the type of inducement used, including the degree of deceit, trickery, misrepresentation or reward; (g) the timing of the conduct, in particular whether the official or his or her agent instigated the commission of the offence or became involved in an existing unlawful activity; (h) whether the conduct involved an exploitation of human characteristics such as emotions, sympathy or friendship or an exploitation of the accused's personal, professional or economic circumstances in order to increase the probability of the commission of the offence; (i) whether the official or his or her agent has exploited a particular vulnerability of the accused such as a mental handicap or a substance addiction; - 391 -  (j) the proportionality between the involvement of the official or his or her agent as compared to that of the accused, including an assessment of the extent of the harm caused or risked by the official or his or her agent as compared to that of the accused, and the commission of any illegal acts by the official or his or her agent; (k) any threats, implied or expressed, by the official or his or her agent against the accused; (l) whether, before the trap was set or the undercover operation was used, there existed any suspicion, entertained upon reasonable grounds, that the accused had committed an offence similar to that to which the charge relates; (m) whether the official of his or her agent acted in good or bad faith; or (n) any other factor which in the opinion of the court has a bearing on the question. (3) (a) If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an undercover operation the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. (b) When considering the admissibility of the evidence the court shall weigh up the public interest against the personal interest of the accused, having regard to the following factors, if applicable: (i) The nature and seriousness of the offence, including— (aa) whether it is of such a nature and of such an extent that the security of the State, the safety of the public the maintenance of public order or the national economy is seriously threatened thereby; (bb) whether, in the absence of the use of a trap or an undercover operation, it would be difficult to detect, investigate, uncover or prevent its commission; (cc) whether it is so frequently committed that special measures are required to detect, investigate or uncover it or to prevent its commission; or (dd) whether it is so indecent or serious that the setting of a trap or the engaging of an undercover operation was justified; (ii) the extent of the effect of the trap or undercover operation upon the interests of the accused, if regard is had to— (aa) the deliberate disregard, if at all, of the accused's rights or any applicable legal and statutory requirements; (bb) the facility, or otherwise, with which such requirements could have been complied with, having regard to the circumstances in which the offence was committed; or (cc) the prejudice to the accused resulting from any improper or unfair conduct; (iii) the nature and seriousness of any infringement of any fundamental right contained in the Constitution; (iv) whether in the setting of a trap or the engagement of an undercover operation the means used was proportional to the seriousness of the offence; and (v) any other factor which in the opinion of the court ought to be taken into account. (4) An attorney-general may issue general or specific guidelines regarding the supervision and control of traps and undercover operations, and may require any official or his or her agent to obtain his or her written approval in order to set a trap or to engage in an undercover operation at any place within his or her area of jurisdiction, and in connection therewith to comply with his or her instructions, written or otherwise. (5) (a) An official or his or her agent who sets or participates in a trap or an undercover operation to detect, investigate or uncover or to obtain evidence of or to prevent the commission of an offence, shall not be criminally liable in respect of any act which constitutes an offence and which relates to the trap or undercover operation if it was performed in good faith. - 392 - (b) No prosecution for an offence contemplated in paragraph (a) shall be instituted against an official or his or her agent without the written authority of the attorney-general. If at any stage of the proceedings the question is raised whether evidence should be excluded in terms of subsection (3) the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest on the prosecution: Provided that the accused shall furnish the grounds on which the admissibility of the evidence is challenged: Provided further that if the accused is not represented the court shall raise the question of the admissibility of the evidence. The question whether evidence should be excluded in terms of subsection (3) may, on application by the accused or the prosecution, or by order of the court of its own accord be adjudicated as a separate issue in dispute. This section regulates the procedure for engaging in traps or undercover operations. S v Kotzé 2010 (1) SACR 100 (SCA) the court noted the the section applies: a. only to those carried out by a 'law enforcement officer, official of the State or any other person authorised thereto for such purpose’; and, b. only those carried out 'in order to detect, investigate or uncover the commission of an offence or to prevent the commission of any offence’ No substantive defence of entrapment was created by this section. However, following the general recommendations made by the South African Law Commission, the legislature opted for a qualified rule of exclusion. Section 252A(3)(a) — which must be read with s 252A(1) and 252A(2) — provides as follows: “If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an undercover operation the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.” To avoid the conviction of people who are victims of unfair or improper trapping or undercover operations the section creates, not a defence of entrapment, but an evidentiary rule that is predicated upon a distinction between two classes of conduct engaged in by traps or undercover operations: (a) conduct that 'does not go beyond providing an opportunity to commit an offence’ (sub-s (1)); and (b) conduct that does. Evidence obtained - 393 - in the course of conduct of the which does not go beyond creating an opportunity to commit an offence 'shall be admissible’ (sub-s (1)); whereas the admissibility of evidence obtained in the course of conduct which does go beyond the creating an opportunity to commit an offence, is made the subject of a judicial discretion set out in sub-s (3)(a), according to which a court 'may’ exclude such evidence 'if the evidence was obtained in an improper or unfair manner and the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice’ Section 252A(3)(b) stipulates that the court — when considering the admissibility of the evidence — “shall weigh up the public interest against the personal interest of the accused”. The same section also requires the court to have regard to several factors, if applicable. These factors are set out in s 252A(3)(b)(i) to 252A(3)(b)(vi). Section 252A(3)(b)(iii) provides that one of the factors the court is required to consider, is “the nature and seriousness of any infringement of any fundamental right contained in the Constitution.” Section 252A(6) provides that if the question is raised whether entrapment evidence should in terms of s 252A(3)(a) be excluded, “the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest on the prosecution: Provided that the accused shall furnish the grounds on which the admissibility of the evidence is challenged: Provided further that if the accused is not represented the court shall raise the question of the admissibility of the evidence.” S v Kotzé 2010 (1) SACR 100 (SCA) the court stressed that it was important for presiding officers faced with challenges to the admissibility of the evidence of a trap to be aware of and apply the requirement that the accused must furnish the grounds on which the admissibility of the evidence is challenged. The question whether evidence should be excluded in terms of s 252A(3)(a), may — on application of the accused or the prosecution, or by order of the court mero motu — be adjudicated as a separate issue in dispute, that is, by having a trial within a trial. It should be noted that the discretionary rule of exclusion created by s 252A(3)(a), remains subject to the provisions of s 35(5) of the Constitution. - 394 -  Evidence obtained as a result of a trap or undercover operation which went beyond creating an opportunity to commit an offence, may still in the discretion of the court be deemed admissible. However, where the entrapment evidence was unconstitutionally obtained, the provisions of s 35(5) must prevail: the court must exclude the evidence if it is satisfied that admission would result in one of the consequences identified in s 35(5). Note: All traps and undercover operations must be authorized by the Director of Public Prosecutions in the specific division. Written authorisation must be granted by the DPP prior to commencement of the trap or undercover operation. The are specific guidelines for the application and authorization of traps and undercover operations and prosecutors must ensure that the guidelines are followed. 253 Saving of special provisions in other laws No provision of this Chapter shall be construed as modifying any provision of any other law whereby in any criminal proceedings referred to in such law certain specified facts and circumstances are deemed to be evidence or a particular fact or circumstance may be proved in a manner specified therein. 254... [S 254 repealed by s 99(1) of Act 75 of 2008.] The repeal of s 254 of the Act and the provisions of the Child Justice Act 75 of 2008 The repealed s 254 of the Act gave the court the power to refer a juvenile accused to a children’s court in certain circumstances. With effect from 1 April 2010, the position is governed by ss 50 and 64 of the Child Justice Act 75 of 2008. Section 64 provides as follows: '64 Referral of children in need of care and protection to children’s court If it appears to the presiding officer during the course of proceedings at a child justice court that a child is a child in need of care and protection referred to in section 50, the court must act in accordance with that section.’ Section 50 of Act 75 of 2008 provides as follows: '50 Referral of children in need of care and protection to children’s court If it appears to the inquiry magistrate during the course of a preliminary inquiry that— (a) a child is in need of care and protection referred to in section 150(1) or (2) of the Children’s Act, and it is desirable to deal with the child in terms of sections 155 and 156 of that Act; or (b) the child does not live at his or her family home or in appropriate alternative care; or (c) the child is alleged to have committed a minor offence or offences aimed at meeting the child’s basic need for food and warmth, the inquiry magistrate may stop the proceedings and order that the child be brought before a children’s court referred to in section 42 of that Act and that the child be dealt with under the said sections 155 and 156.’ - 395 - 255 Court may order enquiry under Prevention and Treatment of Drug Dependency Act, 1992 (1) (a) If in any court during the trial of a person who is charged with an offence other than an offence referred to in section 18, it appears to the judge or judicial officer presiding at the trial that such person is probably a person as is described in section 21(1) of the Prevention and Treatment of Drug Dependency Act, 1992 (in this section referred to as the said Act), the judge or judicial officer may, with the consent of the prosecutor given after consultation with a social worker as defined in section 1 of the said Act, stop the trial and order that an enquiry be held in terms of section 22 of the said Act in respect of the person concerned by a magistrate as defined in section 1 of the said Act and indicated in the order. (b) The prosecutor shall not give his consent in terms of paragraph (a) if the person concerned is a person in respect of whom the imposition of punishment of imprisonment would be compulsory if he were convicted at such trial. (2) (a) If the person concerned is in custody he shall for all purposes be deemed to have been arrested in terms of a warrant issued under section 21(1) of the said Act and shall as soon as practicable be brought before the said magistrate. (b) If the person concerned is not in custody the said judge or judicial officer shall determine the time when and the place where the person concerned shall appear before the said magistrate, and he shall thereafter for all purposes be deemed to have been summoned in terms of section 21(1) of the said Act to appear before the said magistrate at the time and place so determined. (3) As soon as possible after an order has been made under subsection (1) of this section, a prosecutor attached to the court of the said magistrate shall obtain a report as is mentioned in section 21(2) of the said Act. (4) The provisions of the said Act shall mutatis mutandis apply in respect of a person who appears before a magistrate, as defined in section 1 of the said Act, in pursuance of an order made under subsection (1) of this section as if he were a person brought before the said magistrate in terms of section 21(1) of the said Act and as if the report obtained in terms of subsection (3) of this section were a report obtained in terms of section 21(2) of the said Act. (5) If an order is made under subsection (1) in the course of a trial, whether before or after conviction, and a magistrate under the said Act orders that the person concerned be detained in a treatment centre or registered treatment centre, the proceedings at the trial shall be null and void in so far as such person is concerned. (6) A copy of the record of the proceedings at the trial, certified or purporting to be certified by the registrar or clerk of the court or other officers having custody of the record of such proceedings or by the deputy of such registrar, clerk or other officer or, in the case where the proceedings were taken down in shorthand or by mechanical means, by the person who transcribed the proceedings, as a true copy of such record, may be produced at the said enquiry as evidence. Section 255 of the Criminal Procedure Act must be read with s 37 of the Prevention of and Treatment for Substance Abuse Act 70 of 2008. Section 37 states as follows: 'S37 Court may order enquiry in terms of this Act Section 255 of the Criminal Procedure Act, 1977 (Act 51 of 1977), applies with the changes required by the context to an enquiry ordered by the court if, in any court during a trial of a person who is charged with an offence other than an offence referred to in section 18 of the said Act, it appears to the officer presiding at the trial that such person is probably a person contemplated in section 33(1).’ - 396 - The following sections in Act 70 of 2008 are of special importance in the application of s 255 of the Criminal Procedure Act: s 33 (admission of involuntary service user to treatment centre); s 34 (admission and transfer of children); s 35 (committal to treatment after enquiry); s 36 (committal to treatment after conviction) Note: 1. in terms of subsection 1(a) the consent of the prosecutor is required before the trial can be converted into an enquiry 2. The prosecutor shall not give such consent, if the offence for which the accused is charged would attracted a custodial sentence. This is most relevant to offences which are stated in the Criminal Law Ammendment Act 105 of 1997 – Minimum sentences. 3. The trial can not be converted into an enquiry where the accused is charged with offences mentioned in section 18 of CPA – offences not subject to prescription after 20 years. Competent Verdicts (ss 256-270) There is an instance where a competent verdict is regulated by a statutory provision falling outside ss 256 to 270 of the Act. Eg. 'Conviction of “statutory intoxication” as a competent verdict on any charge: Section 1 of the Criminal Law Amendment Act 1 of 1988’. The Cybercrimes Act 19 of 2020 also contains competent verdicts for some of the crimes created by the Act. Competent verdicts are only possible when permitted by statutory provisions. Competent verdicts: General rules and principles The following general rules and principles are applicable to competent verdicts: (a) If the main charge is proved, an accused should be convicted thereof and no resort may be taken to the provisions of ss 256–270. - 397 - (b) It is extremely desirable that an undefended accused should be informed timeously of the competent verdicts which may be returned against him, especially where these verdicts relate to offences which place an onus on the accused. It is irregular for a trial court to warn an accused of the risks of being convicted of a competent verdict only after the court has noted the accused’s admissions in regard to such competent verdict. (c) It is not necessary that competent verdicts should formally be mentioned in the charge sheet or indictment. It is submitted that reference in a charge sheet to the possible application of a competent verdict can be useful and is advisable. But the competent verdicts must be explained to the accused before he pleads, as the accused will in this way 'know the case he has to meet in its entirety’. S v Motsomi (unreported, T case no C726/04, 12 September 2005) the court stated: 'It is a fundamental and time-honoured principle of our criminal law that every accused must be fully and properly advised of the charge which he/she is facing with sufficient details to be able to answer thereto. (See section 35(3)(a) of the Constitution). This hallowed principle is intended to avoid the possibility of “a trial by ambush”. This requires that where the State intends to rely on competent verdicts in terms of section 256 to 270 of the Code, that such an accused be informed of all relevant competent verdicts even before he pleads to the charge. Such a step will put such an accused in a position to know and make an informed decision inter alia as to how to plead, which facts to admit and how to conduct his defence. (See S v Velela 1979 (4) SA 581 (C) and S v Kester 1996 (1) SACR 461 (8) at 469i. Furthermore such an approach will avert any possible prejudice to such an accused, particularly if he is illiterate, unsophisticated and unrepresented.’ S v Mashinini & another 2012 (1) SACR 604 (SCA) at : 'Section 35(3)(a) of the Constitution provides that every accused person has a right to a fair trial which, inter alia, includes the right to be informed of the charge with sufficient detail to answer it. This section appears to me to be central to the notion of a fair trial. It requires in clear terms that, before a trial can start, every accused person must be fully and clearly informed of the specific charge(s) which he or she faces. Evidently, this would also include all competent verdicts. The clear objective is to ensure that the charge is sufficiently detailed and clear to an extent where an accused person is able to respond and, importantly, to defend himself or herself. In my view, this is intended to avoid trials by ambush.’ - 398 - (d) The legality of competent verdicts in terms of ss 256–270, is subject to the principle that the accused should not have been prejudiced in the presentation of his case. An accused has a right to know the case he has to meet (e) There can in principle be no prejudice if the accused had legal representation In S v Hasane & others (unreported, NCK case no K/S 01/2017, 12 May 2020) all the legal representatives of the accused formally informed the trial court at the plea stage of proceedings that 'the competent verdicts applicable to their charges’ had been explained to the accused. There is indeed considerable merit in this practice. It can prevent most of the difficulties that can be encountered should issues arise regarding competent verdicts during the trial itself or later in the course of post-trial proceedings. (f) Conviction on a competent verdict must be regarded as an acquittal on the main count and does not debar an appeal on a question of law (see Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at –). (g) Presiding judicial officers have a responsibility to consider competent verdicts on a specific charge and should not leave it to prosecutors to alert them to such possible verdicts (S v Marothi (unreported, FB case no R47/2020, 18 June 2020) at ). This, of course, does not mean that prosecutors should leave it to the bench to raise issues regarding competent verdicts. Conviction of 'statutory intoxication’ as a competent verdict on any charge: Section 1 of the Criminal Law Amendment Act 1 of 1988 Section 1(1) of the above Act provides that in certain defined circumstances a person who voluntarily consumes alcohol (or uses any drug) to the point where criminal non- responsibility sets in and who, whilst in this condition, commits a crime of which he would have been convicted but for the lack of criminal responsibility, is guilty of an offence. Competent verdicts in terms of the Cybercrimes Act 19 of 2020 Certain sections of the Cybercrimes Act 19 of 2020 came into effect on 1 December 2021 (Proc R42, GG 45562 of 30 November 2021). Part IV introduced a detailed and lengthy exposition of possible competent verdicts. For example: - 399 - s 18(2) provides that when the evidence on a charge of contravening s 3(1) (unlawful interception of data) does not prove the offence itself or an attempt, conspiracy, incitement or instruction to commit that offence, but proves the contravention of one of a range of other listed offences created in the Act, the accused may be convicted of the offence so proved. The list of offences that serve as competent verdicts to s 3(1) is: unlawful access to computer systems of computer data storage (s 18(2)(a), with reference to s 2(1) and (2)); unlawful possession of data with the knowledge or suspicion that it has been unlawfully intercepted (s 18 (2)(b), with reference to s 3(2) and (3)); and the use or possession of a software or hardware tool, for purposes of unlawful interception of data (s 18(2)(c), with reference to s 4(1)). Section 18(10) provides for situations when there is insufficient proof of any of the preceding offences related to unlawful data access and interception, or cyber fraud and forgery or any competent verdict thereof. A conviction is then permitted of an offence which is proved because its essential elements are included in the offence so charged. Note: this is not a complete list of competent verdicts in terms of the Cybercrimes Act. See further s 18(3)–(9), for the complete exposition of competent verdicts to all the newly created cybercrimes. Regarding the three malicious communication offences (s 18(11), referring to ss 14–16). 256 Attempt If the evidence in criminal proceedings does not prove the commission of the offence charged but proves an attempt to commit the offence or an attempt to commit any other offence of which an accused may be convicted on the offence charged, the accused may be found guilty of an attempt to commit that offence or, as the case may be, such other offence. In terms of the general principles of our common law, attempts to commit common-law and statutory crimes are punishable. Section 18(1) of the Riotous Assemblies Act 17 of 1956 provides that any person who attempts to commit an offence against a statute or statutory regulation shall be guilty of an offence. - 400 - Section 17 of the Cybercrimes Act 19 of 2020 provides specifically for the option to convict an accused of an attempt to commit one of the offences in Part I or II (cybercrimes (ss 2–12) or malicious communications (ss 14–16)). While s 17 creates the offence of attempt, s 18(1)(a) makes it a competent verdict in respect of the relevant offence charged in terms of the Cybercrimes Act 19 of 2020. It goes further to allow a conviction on an attempt in respect 'of any other offence of which an accused may be convicted on the offence charged’, in other words of a competent verdict (s 18(1)(b)). 257 Accessory after the fact If the evidence in criminal proceedings does not prove the commission of the offence charged but proves that the accused is guilty as an accessory after that offence or any other offence of which he may be convicted on the offence charged, the accused may be found guilty as an accessory after that offence or, as the case may be, such other offence, and shall, in the absence of any punishment expressly provided by law, be liable to punishment at the discretion of the court: Provided that such punishment shall not exceed the punishment which may be imposed in respect of the offence with reference to which the accused is convicted as an accessory. Definition An accessory after the fact is someone who after the completion of the crime unlawfully and intentionally associates himself or herself with the commission of the crime by helping the perpetrator or accomplice to evade justice. In terms of this definition, there is no distinction between accessory-after-the-fact liability and the crime of defeating or obstructing the course of justice (or attempting to do so). A typical example of an accessory after the fact is someone who does not play a part in the killing of another, but who intervenes after the victim’s death has resulted and assists the perpetrator by disposing of the corpse, or helping the perpetrator to evade justice in some other way. However, where the accused renders assistance after the completion of the crime, and such assistance was, in fact, promised before the crime was complete, then, of course, the accused can be an accomplice. Furthermore, since theft is a ‘continuing crime’ in the sense that it continues to be committed as long as the thief, his agent or a party to the theft is in possession of the stolen property, one who assists such a person after the original taking, but while the theft ‘continues’, could be either a perpetrator or an accomplice. - 401 - Two theories Two broad approaches to the definition of accessory after the fact liability have been identified. A The ‘association’ approach This approach requires that an accessory after the fact is someone who unlawfully and intentionally assists the perpetrator(s) after the completion of the crime by associating himself or herself with the commission of the crime. This approach finds support in the Privy Council decision in Nkau Majara AC 235 (PC) where the court concluded: To constitute a person an accessory after the fact in South Africa it is sufficient to establish that assistance was given to the principal offender in the circumstances from which it would appear that the giver ‘associated’ himself with, in the broad sense of that word, the offence committed. In Augustine 1986 (3) SA 294 (C) Marais J emphasised that mere approval of the commission of the offence expressed after the event is not sufficient for accessory-after-the- fact liability. “The use of the word ‘associates’... is perhaps unfortunate, because it tends to obscure the fact that something more than mere ratification or approval of an offence is required before criminal liability will exist. The writer of a letter of congratulation to the killer of a detested member of the community may be associating himself with the crime of murder, but he is certainly not an accessory or an accomplice, and he attracts no criminal liability.” In Morgan, 1993 (2) SACR 134 (A) the Appellate Division expressed a preference for the narrow approach to the liability of the accessory after the fact by defining the required ‘association’ as ‘helping the perpetrator evade justice’ B The ‘defeating or obstructing the course of justice’ approach In terms of this approach, a person is only an accessory after the fact if he or she has some specific objective, ie helping the perpetrator or accomplice evade justice, by, for instance, hiding them from the police, helping them to escape or disposing of the evidence of the crime. - 402 - This is the approach which the Appellate Division favoured in Morgan (supra). The reason for a separate offence of being an accessory after the fact now falls away, since the offence of defeating (or obstructing) the course (or administration) of justice (or of attempting to do so) adequately covers the conduct of the alleged accessory after the fact. The Supreme Court of Appeal in Pakane 2008 (1) SACR 518 (SCA) has acknowledged that there is ‘in our law generally no distinction between accessorial liability and defeating the course of justice’ and that to convict an accused of both offences would amount to an unacceptable duplication of convictions. 258 Murder and attempted murder If the evidence on a charge of murder or attempted murder does not prove the offence of murder or, as the case may be, attempted murder, but— (a) the offence of culpable homicide; (b) the offence of assault with intent to do grievous bodily harm; (c) the offence of robbery; (d) in a case relating to a child, the offence of exposing an infant, whether under a statute or at common law, or the offence of disposing of the body of a child, in contravention of section 113 of the General Law Amendment Act, 1935 (Act 46 of 1935), with intent to conceal the fact of its birth; (e) the offence of common assault; (f) the offence of public violence; or (g) the offence of pointing a fire-arm, air-gun or air-pistol in contravention of any law, the accused may be found guilty of the offence so proved. Murder and conspiracy to assault Conspiracy to assault is not a competent verdict on a charge of assault. See S v Mitchell & another 1992 (1) SACR 17 (A) Culpable homicide: s 258 as read with s 256 A verdict of attempt to commit culpable homicide is not possible in our law (S v Ntanzi 1981 (4) SA 477 (N) - 403 - 259 Culpable homicide If the evidence on a charge of culpable homicide does not prove the offence of culpable homicide, but— (a) the offence of assault with intent to do grievous bodily harm; (b) the offence of robbery; (c) in a case relating to a child, the offence of exposing an infant, whether under a statute or at common law, or the offence of disposing of the body of a child, in contravention of section 113 of the General Law Amendment Act, 1935 (Act 46 of 1935), with intent to conceal the fact of its birth; (d) the offence of common assault; (e) the offence of public violence; or (f) the offence of pointing a fire-arm, air-gun or air-pistol in contravention of any law, the accused may be found guilty of the offence so proved. It must be noted that, culpable homicide will be proved if it is proved that the accused acted negligently (as measured by the Reasonable man test). However, for the prosecution to succeed in invoking the application of the competent verdicts, it must prove that the accused had the intention to commit the said competent verdict. 260 Robbery If the evidence on a charge of robbery or attempted robbery does not prove the offence of robbery or, as the case may be, attempted robbery, but— (a) the offence of assault with intent to do grievous bodily harm; (b) the offence of common assault; (c) the offence of pointing a fire-arm, air-gun or air-pistol in contravention of any law; (d) the offence of theft; (e) the offence of receiving stolen property knowing it to have been stolen; or (f) an offence under section 36 or 37 of the General Law Amendment Act, 1955 (Act 62 of 1955). (g)... the accused may be found guilty of the offence so proved, or, where the offence of assault with intent to do grievous bodily harm or the offence of common assault and the offence of theft are proved, of both such offences. Section 260 provides that on a charge of robbery where robbery or attempted robbery is not proved, the accused may be convicted of both theft and assault with intent to do grievous bodily harm (or both theft and common assault) where these offences are proved (S v Matjeke 1980 (4) SA 267 (B); S v Jabulani 1980 (1) SA 331 (N)). - 404 - This provision does not amount to some form of duplication of convictions permitted by statutory law, but really only acknowledges the practical reality that the evidence on a charge of robbery might not disclose a causal link between the violence and the taking or removal of the object. In S v Chimola (unreported, GSJ case no A054/2018, 7 May 2021) 'the evidence further established that the appellant and the deceased managed to exercise full and effective control over the items found on the appellant and on the driveway and that the complainant had lost control over those items. The facts thus did not establish robbery but did establish the offence of theft, which is a competent verdict of the offence of robbery. The facts pertaining to the attack on the complainant by both the appellant and the deceased in his bedroom established the offence of assault. Although a monkey wrench was used in the attack on the complainant he was not injured as a result, but sustained only minimal bruises’. 261 Rape, compelled rape, sexual assault, compelled sexual assault and compelled self-sexual assault (1) If the evidence on a charge of rape or compelled rape, as contemplated in sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or any attempt to commit any of those offences, does not prove any such offence or an attempt to commit any such offence, but the offence of— (a) assault with intent to do grievous bodily harm; (b) common assault; (c) sexual assault as contemplated in section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; (d) compelled sexual assault as contemplated in section 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; (e) compelled self-sexual assault as contemplated in section 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; (f) incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; (g) having committed an act of consensual sexual penetration with a child as contemplated in section 15 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or (h) having committed an act of consensual sexual violation with a child as contemplated in section 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, the accused may be found guilty of the offence so proved. (2) If the evidence on a charge of sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in sections 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, does not prove any such offence but the offence of— (a) common assault or; (b) having committed an act of consensual sexual violation with a child as contemplated in section 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007,the accused may be found guilty of the offence so proved. - 405 - In S v Scheepers (unreported, GP case no A116/2019, 5 August 2020) the charge sheet in which contravention of S 3 of Act 32 of 2007 (ie, rape) was alleged, also specifically stated that the charge was to be read with s 261 of the Criminal Procedure Act 51 of 1977. This is a practice that must be encouraged: the accused is made aware of the wide variety of possible competent verdicts even before he has pleaded. Meaning of 'rape’ The Constitutional Court extended the common-law definition of rape to include acts of non- consensual penetration of a penis into the anus of a female (see Masiya v Director of Public Prosecutions, Pretoria (Centre for Applied Legal Studies & another, Amici Curiae) 2007 (2) SACR 435 (CC). It should be noted, however, that the Constitutional Court also held that this extended definition of rape would only be applicable to conduct which took place after the date of judgment, ie, 10 May 2007. The Constitutional Court’s expanded definition of common-law rape was, in turn, on 16 December 2007 replaced by the statutory offences rape and compelled rape as contemplated in ss 3 and 4 of Act 32 of 2007. Section 261(1) The fact that an attempt is referred to in the opening words of s 261(1) and not in any of the subparagraphs of s 261(1), can be attributed to the fact that s 256 already provides for a conviction of attempt where the charge alleges actual rape. Section 261(1)(g)–(h) and (2)(b) The references in the above sections to ss 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 must be read subject to Teddy Bear Clinic for Abused Children & another v Minister of Justice and Constitutional Development & another 2014 (1) SACR 327 (CC): where the court found that Sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are unconstitutional and invalid to the extent that they impose criminal liability for consensual sexual conduct on children under the age of 16. Their unconstitutionality lies in their unjustifiable intrusion on children's rights to human dignity and privacy, and their incompatibility with the best interests of children. The decision of the Constitutional court resulted in the amendment of the SORMA – to the effect that it is not a criminal offence for children between the ages of 12 and 16 years old to engage in consensual sexual acts with each other. Further, if one of the parties is 16 or 17 years old, the other party should not be more than two years younger. Note: In terms of SORMA, the prosecution of a person 16 or 17 years old, who engages in sexual acts with a child over the age of 12 years but more than 2 years younger than the accused, must be authorized in writing by the Director of Public Prosecutions. - 406 - 261A Trafficking in persons (1) In this section— 'Basic Conditions of Employment Act’ means the Basic Conditions of Employment Act, 1997 (Act 75 of 1997); 'Criminal Law (Sexual Offences and Related Matters) Amendment Act’ means the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007); 'Immigration Act’ means the Immigration Act, 2002 (Act 13 of 2002); and 'Prevention and Combating of Trafficking in Persons Act’ means the Prevention and Combating of Trafficking in Persons Act, 2013. (2) If the evidence on a charge of trafficking in persons provided for in section 4 or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, does not prove the offence of trafficking in persons or the involvement in the offence, but the offence of— (a) assault with intent to do grievous bodily harm; (b) common assault; (c) rape as provided for in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act; (d) compelled rape as provided for in section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act; (e) sexual assault as provided for in section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act; (f) compelled sexual assault as provided for in section 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act; (g) compelled self-sexual assault as provided for in section 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act; (h) debt bondage as provided for in section 5 or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act; (i) the possession, destruction, confiscation, concealment of or tampering with documents as provided for in section 6 or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act; (j) using the services of a victim of trafficking as provided for in section 7 or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act; (k) conduct facilitating trafficking in persons as provided for in section 8 or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act; (l) transporting a person within or across the borders of the Republic knowing that the person is a victim of trafficking as provided for in section 9(1) or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act; (m) entering or remaining in, or departing from the Republic as provided for in section 49(1)(a) of the Immigration Act; (n) knowingly assisting a person to enter or remain in, or depart from the Republic as provided for in section 49(2) of the Immigration Act; (o) employing a child as provided for in section 43 of the Basic Conditions of Employment Act; or (p) forced labour as provided for in section 48 of the Basic Conditions of Employment Act, - 407 - the accused may be found guilty of the offence so proved. 262 Housebreaking with intent to commit an offence (1) If the evidence on a charge of housebreaking with intent to commit an offence specified in the charge, whether the charge is brought under a statute or the common law, does not prove the offence of housebreaking with intent to commit the offence so specified but the offence of housebreaking with intent to commit an offence other than the offence so specified or the offence of housebreaking with intent to commit an offence unknown or the offence of malicious injury to property, the accused may be found guilty of the offence so proved. (2) If the evidence on a charge of housebreaking with intent to commit an offence to the prosecutor unknown, whether the charge is brought under a statute or the common law, does not prove the offence of housebreaking with intent to commit an offence to the prosecutor unknown, but the offence of housebreaking with intent to commit a specific offence, or the offence of malicious injury to property, the accused may be found guilty of the offence so proved. (3) If the evidence on a charge of attempted housebreaking with intent to commit an offence specified in the charge, or attempted housebreaking with intent to commit an offence to the prosecutor unknown, whether the charge is brought under a statute or the common law, does not prove the offence of attempted housebreaking with intent to commit the offence so specified, or attempted housebreaking with intent to commit an offence to the prosecutor unknown, but the offence of malicious injury to property, the accused may be found guilty of the offence so proved. Section 262(1) On a charge of housebreaking with intent to steal and theft, it is competent for the court to convict of housebreaking with intent to commit malicious damage to property if the State fails to prove theft but manages to prove damage to property after entrance was gained. The present wording of s 262(1) also makes it possible to convict of malicious damage to property (simpliciter) where the accused is charged with the crime of housebreaking with intent to commit an offence specified in the charge and the evidence does not prove the offence of housebreaking with intent to commit the offence so specified, but does in fact only prove malicious damage to property. S v Jasat 1997 (1) SACR 489 (SCA) is an example of a case where an accused who had been charged with housebreaking with intent to steal and theft, was ultimately convicted of housebreaking with intent of contravening s 1(1) of the Trespass Act 6 of 1959. Section 262(2) S v Slabb 2007 (1) SACR 77 (C) the court made the valid observation that where 'perpetrators are caught after unlawfully breaking and entering into premises and the evidence is overwhelming that their intention was to commit (a) crime(s), but it is impossible for the prosecution to prove what crime(s) they intended to commit, the allegation that they intended to commit an offence unknown and to pronounce a verdict accordingly is, in my view, the proper one. To view it any differently will in effect force the State to resort to trespass prosecutions, or to speculate in respect of some known offences, which may lead to questionable decisions. This clearly will place the prosecution in an untenable position and will make s 262 of the Act redundant.’ - 408 - Where an accused is charged with housebreaking with intent to commit an offence unknown to the prosecutor and the accused tenders a valid plea of guilty establishing housebreaking with intent to steal, then he must be convicted of housebreaking with intent to steal. See S v Kesolofetse & another 2004 (2) SACR 166 (NC). A verdict of housebreaking with intent to rape is in terms of s 262(2) permitted on a charge of housebreaking to commit an offence unknown to the prosecutor; and a verdict of this nature does not preclude a conviction of rape in a separate count related to the same housebreaking (Lekeka v S 3 All SA 485 (FB) at ). In such an instance the two counts should be taken together for sentencing purposes. In SvM 1989 (4) SA 718 (T) an accused who had been charged with housebreaking with intent to commit an offence unknown to the prosecutor was on the available evidence convicted by the trial court of the crime charged and indecent assault. On review it was held that in terms of s 262(2) the accused could only have been convicted of housebreaking with intent to commit indecent assault—and not of housebreaking with intent to commit indecent assault and indecent assault. See also S v Zamisa 1990 (1) SACR 22 (N) and S v Blaauw 1994 (1) SACR 11 (E). In the latter case Zietsman JP also remarked as follows (13g–h): The Supreme Court of Appeal has confirmed that '[h]ousebreaking is not a crime eo nomine; it must be accompanied by the intent to commit another offence on the premises entered’ (S v Livanje 2020 (2) SACR 451 (SCA) This conclusion is logical when one considers that the essential elements of the offence of housebreaking are: (a) the “breaking” of premises in the legal sense by the displacement of any obstruction to entry which forms part of the premises. (b) the entry to the premises by means of any part of the person or an instrument; (c) the unlawfulness of the conduct complained of; and (d) the intention to commit an offence. It follows, therefore, that there can be no conviction for housebreaking even if a “breaking” is proved if no entry is achieved. Similarly an unlawful breaking and entering without a concomitant intention to commit a common-law or statutory offence, does not constitute the crime of housebreaking....... If, therefore, an accused person cannot be convicted of housebreaking if no intent to commit an offence is proved, there can be no conviction of an attempt to commit that offence without proof of the relevant intent.’ In S v Bhengu 2011 (1) SACR 224 (KZP) 'housebreaking’ was found absent as the accused had entered through a door left open by the plaintiff. Section 262(3) Section 262(3) was added to s 262 by s 5 of the Criminal Law Amendment Act 4 of 1992. It governs 'attempts’ whereas s 262(1) and (2) deal with the completed crimes. - 409 - 263 Statutory offence of breaking and entering or of entering premises (1) If the evidence on a charge for the statutory offence in any province of breaking and entering or of the entering of any premises with intent to commit an offence specified in the charge, does not prove the offence of breaking and entering or of entering the premises with intent to commit the offence so specified but the offence of breaking and entering or of entering the premises with intent to commit an offence other than the offence so specified or of breaking and entering or of entering the premises with intent to commit an offence unknown, the accused may be found guilty— (a) of the offence so proved; or (b) where it is a statutory offence within the province in question to be in or upon any dwelling, premises or enclosed area between sunset and sunrise without lawful excuse, of such offence, if such be the facts proved. (2) If the evidence on a charge for the statutory offence in any province of breaking and entering or of the entering of any premises with intent to commit an offence to the prosecutor unknown, does not prove the offence of breaking and entering or of entering the premises with intent to commit an offence to the prosecutor unknown but the offence of breaking and entering or of entering the premises with intent to commit a specific offence, the accused may be found guilty of the offence so proved. 264 Theft (1) If the evidence on a charge of theft does not prove the offence of theft, but— (a) the offence of receiving stolen property knowing it to have been stolen; (b) an offence under section 36 or 37 of the General Law Amendment Act 62 of 1955; or (c) an offence under section 1 of the General Law Amendment Act 50 of 1956. (d)... the accused may be found guilty of the offence so proved. (2) If a charge of theft alleges that the property referred to therein was stolen on one occasion and the evidence proves that the property was stolen on different occasions, the accused may be convicted of the theft of such property as if it has been stolen on that one occasion. Section 264(1) only comes into play where 'the evidence on a charge of theft does not prove theft...’ In this regard it should be borne in mind that theft is a continuing offence and the person assisting the original thief is also guilty of theft, provided there is proof that the person rendering the assistance was aware of the theft. 265 Receiving stolen property knowing it to have been stolen If the evidence on a charge of receiving stolen property knowing it to have been stolen does not prove that offence, but— (a) the offence of theft; or (b) an offence under section 37 of the General Law Amendment Act, 1955 (Act 62 of 1955); (c)... the accused may be found guilty of the offence so proved. - 410 - 266 Assault with intent to do grievous bodily harm If the evidence on a charge of assault with intent to do grievous bodily harm does not prove the offence of assault with intent to do grievous bodily harm but the offence of— (a) common assault; (b) sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in sections 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; or (c) pointing a fire-arm, air-gun or air-pistol in contravention of any law, the accused may be found guilty of the offence so proved. 267 Common assault If the evidence on a charge of common assault proves the offence of sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in sections 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, the accused may be found guilty of any such offence, or, if the evidence on such a charge does not prove the offence of common assault but the offence of pointing a fire- arm, air-gun or air-pistol in contravention of any law, the accused may be found guilty of that offence. 268 Statutory unlawful carnal intercourse If the evidence on a charge of unlawful carnal intercourse or attempted unlawful carnal intercourse with another person in contravention of any statute does not prove that offence but— (a) the offence of sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; (b) the offence of common assault; or (c) the statutory offence of— (i) committing an immoral or indecent act with such other person; (ii) soliciting, enticing or importuning such other person to have unlawful carnal intercourse; (iii) soliciting, enticing or importuning such other person to commit an immoral or indecent act; or (iv) conspiring with such other person to have unlawful carnal intercourse, the accused may be found guilty of the offence so proved. 269... [S 269 repealed by s 68(2) of Act 32 of 2007.] - 411 - 269A If evidence on a charge of an offence under Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004, does not prove the offence so charged but proves the offence of— (a) theft; (b) fraud; or (c) extortion, the accused may be found guilty of the crime or offence so proved. The Prevention and Combating of Corrupt Activities Act 12 of 200 Parts 1 to 4 of this Act—as referred to in s 269A of the Criminal Procedure Act—cover the following broad categories of offences: (1) general offence of corruption; (2) offences in respect of corrupt activities relating to specific persons; (3) offences in respect of corrupt activities relating to receiving or offering of unauthorised gratification; and (4) offences in respect of corrupt activities relating to specific matters. Sections 17, 20 and 21 of Act 12 of 2004—and which are specifically referred to in s 269A of the Criminal Procedure Act—relate, respectively, to the following: offence concerning acquisition of private interest in contract; agreement or investment of public body; accessory to or after an offence; and attempt, conspiracy and inducing another person to commit an offence. 270 Offences not specified in this Chapter If the evidence on a charge for any offence not referred to in the preceding sections of this Chapter does not prove the commission of the offence so charged but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved. Section 270 can only be invoked in respect of an offence not mentioned in the preceding sections in Chapter 26 of the Act. In S v Van Ieperen 2017 (1) SACR 226 (WCC) stated: 'The magistrate’s reliance on s 270... to bring in a conviction of crimen injuria as a form of competent verdict was fundamentally misdirected. According to its tenor, s 270 can apply only if the charge put to the accused person is not in respect of an offence referred to in the preceding sections of ch 26 of the Act. The main charge of “sexual assault” put to the appellant is referred to in s 261(2), and the alternative charge of common assault in s 267. Both of those sections are in ch 26. The magistrate was therefore not empowered to invoke s 270. On that ground alone the conviction cannot be sustained.’ - 412 - 271 Previous convictions may be proved (1) The prosecution may, after an accused has been convicted but before sentence has been imposed upon him, produce to the court for admission or denial by the accused a record of previous convictions alleged against the accused. (2) The court shall ask the accused whether he admits or denies any previous conviction referred to in subsection (1). (3) If the accused denies such previous conviction, the prosecution may tender evidence that the accused was so previously convicted. (4) If the accused admits such previous conviction or such previous conviction is proved against the accused, the court shall take such conviction into account when imposing any sentence in respect of the offence of which the accused has been convicted. After conviction the State may produce to the court a list of previous convictions which it is alleged the accused committed. The Act does not provide a definition, but our courts have defined the concept previous conviction: it means a previous conviction, that is, a conviction by a court of law of a crime or offence. A conviction will not be a previous conviction for purposes of s 271 unless the accused has been brought before court and convicted and sentenced by that court. The criminal record should include record admission of guilt, by the accused. In S v Madhinha 2019 (1) SACR 297 (WCC) it was observed that payment of an admission of guilt fine resulted in a conviction in terms of s 57(6), which was a sui generis conviction and not a court verdict for purposes of s 271. This approach was rejected in Mong v Director of Public Prosecutions & another 4 All SA 447 (WCC). Henney J took the view that payment of an admission of guilt fine results in a fully-fledged conviction once it is appreciated that s 57(6) must be read with s 57(7) which requires judicial confirmation of the payment of the admission of guilt fine. According to Henney J the court in Madhinha erred in its conclusion 'that such conviction and sentence cannot be regarded as a conviction and sentence that can be entered onto the criminal record book for the purposes of a previous conviction in terms of section