Du Toit: Commentary on the Criminal Procedure Act PDF

Document 1 of 7 Du Toit: Commentary on the Criminal Procedure Act Jutastat CD­Rom & Intranet: ISSN 1819­7655 Internet: ISSN 1819­8775...

Document 1 of 7 Du Toit: Commentary on the Criminal Procedure Act Jutastat CD­Rom & Intranet: ISSN 1819­7655 Internet: ISSN 1819­8775 e­publications Contents Legislation: The legislation section in this product is updated to What’s new 30 September 2023. Preface Editorial Note Commentary: Section 319(3) of Act 56 of 1955 Criminal Procedure Act 51 of 1977 Corresponds with Revision Service 70, 2023 of the loose­leaf publication, updated to 31 January 2023. Chapter 1 Prosecuting Authority (ss 2­18) Chapter 2 Search Warrants, Entering of Premises, Seizure, Forfeiture and Based on the loose­leaf publication Disposal of Property Connected with Offences (ss 19­36) by Chapter 3 Ascertainment of Bodily Features of Persons (ss 36A­37) Etienne du Toit † Chapter 4 Methods of Securing Attendance of Accused in Court (s 38) SC BIuris LLB Member of the Johannesburg Bar, Chapter 5 Arrest (ss 39­53) Formerly Deputy Attorney­General of the Witwatersrand Local Chapter 6 Summons (ss 54­55) Division of the Supreme Court of South Africa, Senior Advocate of the High Court of South Africa Chapter 7 Written Notice to Appear in Court (s 56) Chapter 8 Admission of Guilt Fine (ss 57­57A) Frederick de Jager BA LLB (Stell) LLM (SA) LLD (RAU) Chapter 9 Bail (ss 58­71) Formerly Professor in Criminal Law and Procedure, Rand Chapter 10 Release on Warning (ss 72­72A) Afrikaans University, Advocate of the High Court of South Africa Chapter 11 Assistance to Accused (ss 73­74) Andrew Paizes Chapter 12 Summary Trial (ss 75­76) BCOM LLB PhD (Witwatersrand) Chapter 13 Accused: Capacity to Understand Proceedings: Mental Illness and Honorary Professor of Law, University of the Witwatersrand, Criminal Responsibility (ss 77­79) Advocate of the High Court of South Africa Chapter 14 The Charge (ss 80­104) Andrew St Quintin Skeen † BA (Hons) (Rhodes) BL (Hons) LLB (Rhodesia) MPhil (Cantab) Chapter 15 The Plea (ss 105­109) Professor of Law, University of the Witwatersrand, Chapter 16 Jurisdiction (ss 110­111) Legal Practitioner, Zimbabwe Chapter 17 Plea of Guilty at Summary Trial (ss 112­114) Steph van der Merwe † Chapter 18 Plea of Not Guilty at Summary Trial (ss 115­118) B Iuris (UPE) LLB (SA) LLD (Cape Town) Formerly Professor of Law, University of the Stellenbosch, Chapter 19 Plea in Magistrate’s Court on Charge Justiciable in Superior Court Advocate of the High Court of South Africa (ss 119­122) General Editor Chapter 19A Plea in Magistrate’s Court on Charge to be Adjudicated in Regional Court (ss 122A­122D) Stephan Terblanche BJuris (PU for CHE) LLD (SA) Chapter 20 Preparatory Examination (ss 123­143) Honorary Professor of Law, University of KwaZulu­Natal, Chapter 21 Trial Before Superior Court (ss 144­149) Advocate of the High Court of South Africa Chapter 22 Conduct of Proceedings (ss 150­178) with additional information added by Juta Law Chapter 23 Witnesses (ss 179­207) Chapter 24 Evidence (ss 208­253) Chapter 25 Conversion of Trial into Enquiry (ss 254­255) Chapter 26 Competent Verdicts (ss 256­270) Chapter 27 Previous Convictions (ss 271­273) Chapter 28 Sentence (ss 274­299A) Chapter 29 Compensation and Restitution (ss 300­301) Chapter 30 Reviews and Appeals in Cases of Criminal Proceedings in Lower Courts (ss 302­314) Chapter 31 Appeals in Cases of Criminal Proceedings in Superior Courts (ss 315­324) Chapter 32 Mercy and Free Pardon (ss 325­327) Chapter 33 General Provisions (ss 328­345) Schedules Appendix A Judges' Rules Appendix B International and Transnational Criminal Procedure Appendix C Chapter 10 'SENTENCING' (ss 68–79) of the Child Justice Act 75 of 2008 Appendix D Chapter 12 'APPEALS AND AUTOMATIC REVIEW OF CERTAIN CONVICTIONS AND SENTENCES' (ss 84­86) of the Child Justice Act 75 of 2008 Appendix E Chapter 5B 'ESTABLISHMENT, ADMINISTRATION AND MAINTENANCE OF NATIONAL FORENSIC DNA DATABASE OF SOUTH AFRICA' (ss 15E–15AD) of the South African Police Appendix F Service Charter for Victims of Crime in South Africa © 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jan 04 2024 21:48:35 GMT+0200 (South Africa Standard Time) Important Sources  CONVICTIONS AND SENTENCES' (ss 84­86) of the Child Justice Act 75 of 2008 Appendix E Chapter 5B 'ESTABLISHMENT, ADMINISTRATION AND MAINTENANCE OF NATIONAL FORENSIC DNA DATABASE OF SOUTH AFRICA' (ss 15E–15AD) of the South African Police Appendix F Service Charter for Victims of Crime in South Africa Important Sources Supplementary Table of Cases General Index Index of Child Justice Act 75 of 2008 Table of Cases Criminal Justice Review Legislation Law Report Extracts Document 2 of 7 What's New September 2023 Legislation: Legislation has been updated between the period July to September 2023. Changes made to existing Legislation: Regulations Firearms Control Act 60 of 2000 Firearms Control Fees Regulations published under GN R345 in GG 26156 of 26 March 2004 amended (GN 3412 in GG 48604 of 17 May 2023) Justices of the Peace and Commissioners of Oaths Act 16 of 1963 Designation of Commissioners of Oaths in terms of section 6 of the Act published in GN 903 in GG 19033 of 10 July 1998 amended (GN 3873 in GG 49307 of 14 September 2023) Commentary: Revision Service 70, 2023 brings Commentary up to date as at the end of May 2023. Document 3 of 7 Preface Juta Law extends a warm welcome to our new General Editor of Commentary on the Criminal Procedure Act, Professor Stephan Terblanche. Professor Terblanche, who is an Advocate of the High Court of South Africa and a Professor at Unisa's Department of Criminal and Procedural Law, is no stranger to Juta & Company: he is the co­editor of the South African Journal of Criminal Justice and The Law of Evidence: Cases and Statutes (2017), as well as the co­author of The Criminal Procedure Handbook (2017, 12 ed), the Criminal Procedure Casebook (2017, 2 ed) and, since Revision Service 59, a contributor to Commentary itself. Professor Terblanche has published extensively both in South Africa and abroad, and is the author of, among other publications, the Guide to Sentencing in South Africa (2016, 3 ed, LexisNexis). Since its first publication 30 years ago, Commentary on the Criminal Procedure Act has become the leading criminal procedure loose­leaf and digital compendium and we are delighted that Professor Terblanche has made himself available to maintain the quality of the bi­annual revision services subscribers have become accustomed to. Juta Law April 2018 Document 4 of 7 Editorial Note Revision Service 70, 2023 1. Revision Service 70 (RS 70) brings Commentary up to date as at the end of January 2023. Where possible, subsequent authority has been included. We are, once again, indebted to Ms Nondumiso Phenyane for her contribution in finding relevant case law and other sources for this update. 2. Little happened on the legislative front. Although the Criminal Law (Forensic Procedures) Amendment Act 8 of 2022 is mentioned in Chapter 3, it had not been put into operation at the time of writing. 3. Likewise, few judgments of the Constitutional Court impacted criminal procedure in this Revision Service. The judgment in Residents, Industry House & others v Minister of Police & others 2023 (1) SACR 14 (CC), in connection with the constitutionality of s 3(7) of South African Police Service Act 68 of 1995, is noted in Chapter 2; Ayres & another v Minister of Correctional Services & another 2022 (2) SACR 123 (CC) is mentioned in Chapter 31, in connection with leave to appeal to the Constitutional Court; and Walus v Minister of Justice and Correctional Services & others 2023 (1) SACR 447 (CC) receives attention in Chapter 28, on parole and the role of victims in the process. One unreported judgment is dealt with in more detail: S v Kapa ZACC 1 (unreported, CC case no CCT 292/21,24 January 2023) in Chapter 24, with respect to hearsay evidence (also briefly in Chapter 18). 4. Some reported judgments of the Supreme Court of Appeal were attended to in RS 70. These include Land and Agricultural Bank of South © 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jan 04 2024 21:48:35 GMT+0200 (South Africa Standard Time) Africa v Minister of Rural Development and Land Reform & others 2023 (1) SACR 1 (SCA) (Chapter 2 (POCA)); S v Peloeole 2022 (2) SACR 349 (SCA); Jacobs v Minister of Justice 2022 (2) SACR 569 (SCA) (both in Chapter 28); and S v Qurashi & others 2022 (2) SACR  SACR 123 (CC) is mentioned in Chapter 31, in connection with leave to appeal to the Constitutional Court; and Walus v Minister of Justice and Correctional Services & others 2023 (1) SACR 447 (CC) receives attention in Chapter 28, on parole and the role of victims in the process. One unreported judgment is dealt with in more detail: S v Kapa ZACC 1 (unreported, CC case no CCT 292/21,24 January 2023) in Chapter 24, with respect to hearsay evidence (also briefly in Chapter 18). 4. Some reported judgments of the Supreme Court of Appeal were attended to in RS 70. These include Land and Agricultural Bank of South Africa v Minister of Rural Development and Land Reform & others 2023 (1) SACR 1 (SCA) (Chapter 2 (POCA)); S v Peloeole 2022 (2) SACR 349 (SCA); Jacobs v Minister of Justice 2022 (2) SACR 569 (SCA) (both in Chapter 28); and S v Qurashi & others 2022 (2) SACR 459 (SCA) (Chapter 24, inter alia on hearsay evidence). Several unreported SCA judgments received considerable attention in the chapters on evidence (Chapters 23 and 24): S v Maila ZASCA 3 (unreported, SCA case no 429/2022, 23 January 2023); S v Claasen & another ZASCA 130 (unreported, SCA case no 803/21, 3 October 2022); and S v Zondi ZASCA 173 (unreported, SCA case no 1232/2021, 7 November 2022). 5. Cases referred to in the present Revision Service, as well as the Supplementary Table of Cases issued with the previous Revision Service, have now been consolidated in the main Table of Cases. 6. For RS 70 the following authors have been responsible for the revised chapters: Murdoch Watney (Chapters 1, 14 and 21) Andrew Paizes (Chapters 2, 3, 5, and 22–24) Thomas Mokoena (Chapters 2 (POCA) and 9) Managay Reddi (Chapters 15 and 27) Jamil Mujuzi (Chapters 16 18, and Appendix B) Annette van der Merwe (the commentary on Victims Rights in Chapter 28) Stephan Terblanche (Chapters 28 (except Victims Rights), 30 and 31) Stephan Terblanche (General Editor) Honorary Professor, UKZN Pretoria 18 May 2023 Document 5 of 7 Steph Van der Merwe: A personal tribute I was, along with all the other authors and publishers of Commentary, deeply shocked and saddened by the sudden passing of my long­time co­ author, colleague and friend, Steph Van der Merwe, early this year. I worked very closely with Steph for all of 40 years and, in that time, got to know him well in a number of different capacities. First, as an academic colleague and fellow teacher and writer in the areas of criminal justice and evidence, I was well placed to witness the very high regard Steph enjoyed as a teacher and researcher. He had a very close relationship with his many former students, and their affection and respect for Steph was clear to see. I read several of his publications, and these were, without exception, lucid, helpful, extremely well written and a mix, in equal measure, of theoretical insight and solid practicality. The fact that his works were so often cited with approval by the courts speaks to both his skill as an analyst and the very high esteem in which he was held as a critical exponent of the law. Second, as a co­author of the Commentary on the Criminal Procedure Act, I was afforded a unique view, over 36 years, into both Steph’s talents and his character. Commentary is a dauntingly demanding undertaking. It requires not only an encyclopaedic understanding of the law, but also enormous dedication, consistency, focus and experience. You need, as a major author of this vast work, to read thousands of cases, be ever alert to new legislation and stitch together the new with the old in a seamless whole. And you need, at the same time, to serve both doctrinal fidelity and the needs of busy practitioners who might need an accurate and helpful analysis that can be delivered in the pressurised air of a courtroom. Steph managed to master this difficult art. One could not have wished for a more reliable, hard­working, able, or considerate partner in such a massive project over a span of four decades. During this period, no fewer than 66 revision services were published. For 12 years, between 2005 and 2017, Steph took on, in addition to his enormous writing load, the role of general editor. In all those years, Commentary was not once delivered late to its thousands of subscribers. He had a light hand as an editor and remained encouraging as well as generous in his praise. As the years progressed, only Steph and I were left of the original five authors. Others were added, but the bulk of the work was divided between the two of us. This meant more work and relentlessly growing pressure. And yet the task never became oppressive or disagreeable. We worked extremely well together, and I will remember with great fondness and nostalgia the countless telephone conversations we shared over so many years. These would always begin with the work of the day, but they would invariably meander into more exotic territory involving books, history, world affairs and travel. Steph had a great love and deep understanding of South African history and poetry, and we would often talk of these. He even told me once that he shared a birthday with both Jan Smuts and Queen Victoria! Third, and most importantly, I got to understand Steph the man. In an age when this has become unfashionable, Steph had a deep aversion to the public stage. An extremely private and humble person, he was modest to a fault and disdained the acclaim that inevitably came his way. He preferred always to stay out of the public eye and to work at his considerable achievements quietly and with a minimum of fuss or recognition. Socially, he was much the same. He liked nothing more than a quiet, convivial lunch with a good friend and a glass of beer—something we enjoyed often at the Cape Town Waterfront. He had a dread of large gatherings, especially one in which he might be the centre of attention. I would joke with him and tell him I was organising an official dinner to honour him for his long and distinguished service as a teacher of the law. At this he would laugh loud and long, for he knew that I shared his distaste for such events and would never subject myself or him to such unspeakable torture. So, he would probably hate even this tribute I am paying him now. However, it would not only be remiss of me not to do so, but also a palpable injustice. For Steph richly deserves our thanks, our respect, and our recognition. We have lost an outstanding and irreplaceable legal talent, and I have lost a very kind and loyal friend. His work on Commentary, Principles of Evidence and many other widely respected books will, however, endure as a lasting and bright beacon that will continue to illuminate the way for courts, legal practitioners, and students of the law for many years to come. I know I speak for all involved in Commentary, both authors and publishers, when I extend my heartfelt sympathies for their sad loss to his wife Lynn, his sons Stephen and Justin, and his daughter Kristin. Andrew Paizes Document 6 of 7 Foreword © 2018 Juta and Twenty Company years ago, in(Pty) 1987,Ltd.the first edition of Commentary on the CriminalDownloaded : Thu Procedure Act Jan 04 2024 appeared. The21:48:35 authorsGMT+0200 (Southdu were Etienne Africa Standard Toit, SC, andTime) Professors Frederick de Jager, Andrew Paizes, Andrew St Quintin Skeen and Steph van der Merwe. After the death of Etienne du Toit and  Document 6 of 7 Foreword Twenty years ago, in 1987, the first edition of Commentary on the Criminal Procedure Act appeared. The authors were Etienne du Toit, SC, and Professors Frederick de Jager, Andrew Paizes, Andrew St Quintin Skeen and Steph van der Merwe. After the death of Etienne du Toit and Andrew Skeen in 2005 and 2006, Steph van der Merwe took over as General Editor, with Frederick de Jager and Andrew Paizes making up the rest of the team. In a review of the first edition—in (1988) 105 SA Law Journal 591—the work was referred to as 'uniformly excellent’ and as one that 'will no doubt become a procedural vade mecum of criminal lawyers’. Prophetic words indeed! From the outset, the work was in loose­leaf form. Regular and accurate updating, the essential requirement for the success of any loose­leaf publication, has always been the hallmark of Commentary. Keeping the work up to date over the twenty years was a daunting task. Since 1987 the Criminal Procedure Act has been amended on 51 occasions. Some of these amendments were of a minor nature; others were extensive and affected fundamental features of our criminal procedure. Far­reaching changes were brought about by the new constitutional dispensation. In addition, there was (and is) the large volume of case law that has to be considered and evaluated for possible inclusion in the updating services. Commentary has become an essential tool for all those who are involved in the administration of criminal justice: practitioners, prosecutors, magistrates and judges. It has been cited as authority in at least 225 reported judgments, including judgments of the Constitutional Court and Supreme Court of Appeal. The members of the legal profession in South Africa are fortunate to have a book of such quality to guide their efforts in the field of criminal justice. We look forward to the next twenty years. Justice HJ Erasmus Chambers High Court Cape Town 3 May 2007 Document 7 of 7 Contents Definitions Chapter 1 ­ Prosecuting Authority (ss 2­18) Chapter 2 ­ Search Warrants, Entering of Premises, Seizure, Forfeiture and Disposal of Property Connected with Offences (ss 19­36) Chapter 3 ­ Ascertainment of Bodily Features of Persons (ss 36A­37) Chapter 4 ­ Methods of Securing Attendance of Accused in Court (s 38) Chapter 5 ­ Arrest (ss 39­53) Chapter 6 ­ Summons (ss 54­55) Chapter 7 ­ Written Notice to Appear in Court (s 56) Chapter 8 ­ Admission of Guilt Fine (ss 57­57A) Chapter 9 ­ Bail (ss 58­71) Chapter 10 ­ Release on Warning (ss 72­72A) Chapter 11 ­ Assistance to Accused (ss 73­74) Chapter 12 ­ Summary Trial (ss 75­76) Chapter 13 ­ Accused: Capacity to Understand Proceedings: Mental Illness and Criminal Responsibility (ss 77­79) Chapter 14 ­ The Charge (ss 80­104) Chapter 15 ­ The Plea (ss 105­109) Chapter 16 ­ Jurisdiction (ss 110­111) Chapter 17 ­ Plea of Guilty at Summary Trial (ss 112­114) Chapter 18 ­ Plea of Not Guilty at Summary Trial (ss 115­118) Chapter 19 ­ Plea in Magistrate's Court on Charge Justiciable in Superior Court (ss 119­122) Chapter 19A ­ Plea in Magistrate's Court on Charge to be Adjudicated in Regional Court (ss 122A­122D) Chapter 20 ­ Preparatory Examination (ss 123­143) Chapter 21 ­ Trial Before Superior Court (ss 144­149) Chapter 22 ­ Conduct of Proceedings (ss 150­178) Chapter 23 ­ Witnesses (ss 179­207) Chapter 24 ­ Evidence (ss 208­253) Chapter 25 ­ Conversion of Trial into Enquiry (ss 254­255) Chapter 26 ­ Competent Verdicts (ss 256­270) Chapter 27 ­ Previous Convictions (ss 271­273) Chapter 28 ­ Sentence (ss 274­299A) Chapter 29 ­ Compensation and Restitution (ss 300­301) Chapter 30 ­ Reviews and Appeals in Cases of Criminal Proceedings in Lower Courts (ss 302­314) Chapter 31 ­ Appeals in Cases of Criminal Proceedings in Superior Courts (ss 315­324) Chapter 32 ­ Mercy and Free Pardon (ss 325­327) Chapter 33 ­ General Provisions (ss 328­345) Schedules © 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jan 04 2024 21:48:35 GMT+0200 (South Africa Standard Time) Appendix A ­ Judges' Rules  Chapter 31 ­ Appeals in Cases of Criminal Proceedings in Superior Courts (ss 315­324) Chapter 32 ­ Mercy and Free Pardon (ss 325­327) Chapter 33 ­ General Provisions (ss 328­345) Schedules Appendix A ­ Judges' Rules Appendix B ­ International and Transnational Criminal Procedure Appendix C ­ Chapter 10 'Sentencing' (ss 68­79) of the Child Justice Act 75 of 2008 Appendix D ­ Chapter 12 'Appeals and Automatic Review of Certain Convictions and Sentences' (ss 84­86) of the Child Justice Act 75 of 2008 Appendix E ­ Chapter 5B 'Establishment, Administration and Maintenance of National Forensic DNA Database of South Africa' (ss 15E­15AD) of the South African Police Service Act 68 of 1995 Appendix F ­ Service Charter for Victims of Crime in South Africa Important Sources General Index Index of Child JusticeAct 75 of 2008 Table of Cases Supplementary Table of Cases RS 56, 2016 xiii © 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jan 04 2024 21:48:35 GMT+0200 (South Africa Standard Time)  Document 1 of 2 Criminal Procedure Act 51 of 1977 RS 70, 2023 DEF­1 To make provision for procedures and related matters in criminal proceedings Afrikaans text signed by the State President Assented to: Commencement date: 21 April 1977 22 July 1977 as amended by Criminal Procedure Matters Amendment Act 79 of 1978 Criminal Procedure Amendment Act 56 of 1979 Criminal Procedure Amendment Act 64 of 1982 Appeals Amendment Act 105 of 1982 Criminal Law Amendment Act 59 of 1983 Criminal Procedure Matters Amendment Act 109 of 1984 Immorality and Prohibition of Mixed Marriages Act 72 of 1985 Criminal Procedure Amendment Act 33 of 1986 Special Courts for Blacks Abolition Act 34 of 1986 Transfer of Powers and Duties of the State President Act 97 of 1986 Criminal Procedure Amendment Act 26 of 1987 Law of Evidence and the Criminal Procedure Act Amendment Act 103 of 1987 Law of Evidence Amendment Act 45 of 1988 Criminal Procedure Amendment Act 8 of 1989 Criminal Law and Criminal Procedure Amendment Act 39 of 1989 Judicial Matters Amendment Act 77 of 1989 Criminal Law Amendment Act 107 of 1990 Criminal Procedure Amendment Act 5 of 1991 Transfer of Powers and Duties of the State President Act 51 of 1991 Correctional Services and Supervision Matters Amendment Act 122 of 1991 Criminal Law Amendment Act 135 of 1991 Criminal Law Amendment Act 4 of 1992 Prevention and Treatment of Drug Dependency Act 20 of 1992 Attorney­General Act 92 of 1992 Criminal Law Second Amendment Act 126 of 1992 General Law Amendment Act 139 of 1992 Criminal Matters Amendment Act 116 of 1993 General Law Third Amendment Act 129 of 1993 General Law Fifth Amendment Act 157 of 1993 General Law Sixth Amendment Act 204 of 1993 Criminal Procedure Second Amendment Act 75 of 1995 Justice Laws Rationalisation Act 18 of 1996 General Law Amendment Act 49 of 1996 International Co­operation in Criminal Matters Act 75 of 1996 Criminal Procedure Second Amendment Act 85 of 1996 Criminal Procedure Amendment Act 86 of 1996 Abolition of Restrictions on the Jurisdiction of Courts Act 88 of 1996 Abolition of Corporal Punishment Act 33 of 1997 Criminal Procedure Amendment Act 76 of 1997 Criminal Procedures Second Amendment Act 85 of 1997 Parole and Correctional Supervision Amendment Act 87 of 1997 Criminal Law Amendment Act 105 of 1997 National Prosecuting Authority Act 32 of 1998 Judicial Matters Amendment Act 34 of 1998 Criminal Matters Amendment Act 68 of 1998 Maintenance Act 99 of 1998 Correctional Services Act 111 of 1998 Witness Protection Act 112 of 1998 Domestic Violence Act 116 of 1998 Judicial Matters Second Amendment Act 122 of 1998 Judicial Matters Amendment Act 62 of 2000 Criminal Procedure Amendment Act 17 of 2001 Judicial Matters Amendment Act 42 of 2001 RS 70, 2023 DEF­2 Criminal Procedure Second Amendment Act 62 of 2001 Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 Judicial Matters Amendment Act 55 of 2002 Regulation of Interception of Communications and Provision of Communication­related Information Act 70 of 2002 Criminal Procedure Amendment Act 42 of 2003 Judicial Matters Second Amendment Act 55 of 2003 Prevention and Combating of Corrupt Activities Act 12 of 2004 Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 Judicial Matters Amendment Act 22 of 2005 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Criminal Law (Sentencing) Amendment Act 38 of 2007 Criminal Procedure Amendment Act 65 of 2008 Judicial Matters Amendment Act 66 of 2008 Child Justice Act 75 of 2008 Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 Criminal Procedure Amendment Act 9 of 2012 Criminal Procedure Amendment Act 8 of 2013 Prevention and Combating of Torture of Persons Act 13 of 2013 Judicial Matters Amendment Act 42 of 2013 Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 Legal Aid South Africa Act 39 of 2014 Prevention and Combating of Trafficking in Persons Act 7 of 2013 Criminal Matters Amendment Act 18 of 2015 Criminal Procedure Amendment Act 4 of 2017 Judicial Matters Amendment Act 8 of 2017 Child Justice Amendment Act 28 of 2019 [from 19 August 2022] Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of 2020 [from 23 December 2020] Cybercrimes Act 19 of 2020 [from 1 December 2021] Criminal Procedure Amendment Act 16 of 2021 [from 9 February 2022] Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Act 23 of 2022 © 2018 Juta and Company (Pty) Ltd. [from 4 JanuaryDownloaded 2023] : Thu Jan 04 2024 21:53:09 GMT+0200 (South Africa Standard Time)  [from 23 December 2020] Cybercrimes Act 19 of 2020 [from 1 December 2021] Criminal Procedure Amendment Act 16 of 2021 [from 9 February 2022] Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Act 23 of 2022 [from 4 January 2023] Document 2 of 2 Definitions (s 1) BE IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows: 1 Definitions (1) In this Act, unless the context otherwise indicates— 'aggravating circumstances’, in relation to— (a)... [Para (a) deleted by s 1 of Act 107 of 1990.] (b) robbery, or attempted robbery, means— (i) the wielding of a fire­arm or any other dangerous weapon; (ii) the infliction of grievous bodily harm; or (iii) a threat to inflict grievous bodily harm, by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence; RS 69, 2022 DEF­2A Constitutionality of phrase 'or an accomplice’ in s 1(1)(b) In at least two High Court cases, the constitutional validity of the phrase 'or an accomplice’ in s 1(1)(b) has been considered. In one, S v Masingili & others 2013 (2) SACR 67 (WCC), it was held that the phrase did violence to s 12(1)(a) of the Constitution, which protects the right to freedom and to security of the person, as well as s 35(3)(h), which entrenches the right to be presumed innocent, and that the phrase could not be saved by the limitation clause (s 36). In the other, S v Mofokeng 2014 (1) SACR 229 (GNP), that approach was emphatically rejected, the court expressing the view that Masingili was 'wrong in law’ and 'not to be followed’ until confirmed by a higher court, a prospect Lamprecht AJ considered 'highly unlikely to happen’ (at ). The Masingili decision has since been the subject of an appeal to the Constitutional Court. In Minister of Justice and Constitutional Development & another v Masingili & another 2014 (1) SACR 437 (CC), the court settled the issue by overturning the decision of the Western Cape High Court. That court had itself overturned the decision of a magistrate, who had convicted X and Y (as well as two others) of robbery with aggravating circumstances. X had acted as a 'scout’ in the robbery and Y had driven the vehicle that transported the robbers to and away from the scene. The basis of their conviction was RS 55, 2015 DEF­3 unclear, but the High Court, after considering various options, concluded that they must have been found to have been accomplices to robbery only, and were thus convicted of robbery with aggravating circumstances on the strength of s 1(1)(b). It then upheld a constitutional challenge against the phrase 'or an accomplice' in that section on the ground that the phrase created strict liability 'on the part of an accomplice or perpetrator who has no dolus with respect to the perpetration of the aggravating circumstances'. In doing so it relied on the fact that the State had to prove the perpetration of aggravating circumstances during the first stage of the trial culminating in the verdict (see S v Legoa 2003 (1) SACR 13 (SCA) at ). It relied, too, on S v Dhlamini & another 1974 (1) SA 90 (A) at 93H and 95B–C for the scope and meaning of the phrase, the language of which suggested strongly the creation of strict liability. The Constitutional Court (per Van der Westhuizen J), however, disagreed. In its view, even if the words 'or an accomplice' did not appear in s 1(1)(b), the convictions of X and Y would still stand since, 'by scouting and driving the getaway vehicle they intentionally furthered the commission of the armed robbery by the other two respondents' and, thus, satisfied the requirements for 'accomplice' liability (at ). The words 'or an accomplice', said Van der Westhuizen J, extended liability only in what he called the 'mirror image case' where the accomplice committed the aggravating circumstances—'for example wielding a knife during the flight just after the actual robbery'—but the perpetrator never does. In the absence of that phrase, the aggravating circumstances, he added, would have to have been committed by the perpetrator, not the accomplice, for the perpetrator to be liable for robbery with aggravating circumstances. In his view, therefore, the decisions of the Appellate Division in R v Sisilane 1959 (2) SA 448 (A) and Dhlamini (supra), relied on by the Western Cape High Court, 'were incorrect in holding that the words extend liability to the accomplice when the perpetrator commits the aggravating circumstances', since this was 'already done by the common law of accomplice liability' (at ). But, he added, this was 'leaving aside for the moment the question whether intent regarding the aggravating circumstances [was] required either on the part of the perpetrator or the accomplice, over and above the intent to further the elements of mere robbery' (at , emphasis added). It was to this question that he turned next. In addressing this question, Van der Westhuizen J made these observations and findings: 1. Robbery with aggravating circumstances is not a separate crime; it is not distinct from mere robbery. It must, it is true, be shown before conviction that aggravating circumstances existed, but this is for reasons of fairness, so that the accused can address the State's case comprehensively. Armed robbery is merely a form of robbery, and the aggravating circumstances are relevant for sentencing. 2. The common­law and constitutional importance of culpability is not impaired by a finding that robbery is not a separate offence or by the notion that 'the state has to prove dolus regarding the definitional elements of robbery only, in order to secure a conviction of armed robbery' (at ). 3. Section 12 of the Constitution 'requires appropriate proportionality between the offence and its sentence on the one hand and the level of intent on the other': the prescribed minimum sentence for robbery with aggravating circumstances is subject to an exception for 'substantial and compelling circumstances' justifying the imposition of a lesser sentence (s 51 of Act 105 of 1997 read with Part II of Schedule 2). The fact that the State had not, in a given case, proved that the aggravating circumstances were intended would, he considered, be relevant in determining whether such substantial and compelling circumstances existed. 4. Section 1(1)(b) does not expressly require any mental element with respect to the aggravating circumstances; instead only 'objective facts' constituting those circumstances are mentioned. Nor is intent implicit in the section: see R v Jacobs 1961 (1) SA 475 (A). 5. Reading s 1(1)(b) not to require specific fault does not offend against the presumption against strict liability, since that principle was 'already satisfied because intent is a requirement for robbery'. RS 55, 2015 DEF­4 6. Section 12(1)(a) of the Constitution is not violated by such an interpretation of the section since the increased penal jurisdiction was not manifestly inappropriate but was a 'rational means to achieve a constitutionally permissible end: confronting violent crime' (at ). The accused 'actively and culpably chose to participate in an inherently violent unlawful activity' and 'may be held accountable for this choice, even if she or he did not intend the exact circumstances that occurred, or method used' (at ). 7. The presumption of innocence (in s 35(3)(h)) is not violated either, because the State does have to prove dolus in the context of robbery, and since armed robbery is not a separate offence, this is sufficient. In any event, he added, 'an insufficient fault requirement and a violation of the presumption of innocence are conceptually two different things'; '[o]ne cannot argue that there is a constitutional defect in an offence due to a missing element, and simultaneously that an accused faces conviction despite the existence of reasonable doubt on that element, since by definition the element is not there' (at ). There are several aspects of this judgment that call for comment. To begin with, the judgment pivots around the proposition that robbery with aggravating circumstances (or 'armed robbery', as the court sometimes describes it) is not a crime separate from mere robbery but is merely a form © 2018 of and Juta robbery in which Company the aggravating circumstances are 'relevant to sentencing'. (Pty) Ltd. DownloadedThis may : Thu be04true Jan in21:53:09 2024 a formal or technical GMT+0200 sense, (South Africa but form Time) Standard cannot be allowed to triumph over substance. The Constitution operates at a very deep level of substantive principle. It does not permit  in an offence due to a missing element, and simultaneously that an accused faces conviction despite the existence of reasonable doubt on that element, since by definition the element is not there' (at ). There are several aspects of this judgment that call for comment. To begin with, the judgment pivots around the proposition that robbery with aggravating circumstances (or 'armed robbery', as the court sometimes describes it) is not a crime separate from mere robbery but is merely a form of robbery in which the aggravating circumstances are 'relevant to sentencing'. This may be true in a formal or technical sense, but form cannot be allowed to triumph over substance. The Constitution operates at a very deep level of substantive principle. It does not permit fundamental rights to be compromised by the outward manner of things or by the garb in which legislation is presented. It is true that the Act presents 'aggravating circumstances' in a way that suggests that they are an adjunct to the existing offence of robbery, and that no new, distinct offence is being created. But there can be no doubt that the cumulative effect of the legislation is to create a separate and significantly more serious 'criminal status', in terms of which more dire criminal consequences must be imposed upon an accused unless substantial and compelling circumstances exist which justify the imposition of a lesser sentence. And it is not to say that these consequences are limited to sentencing. As Van der Westhuizen J himself observed, there are three other important factors which add to the accused's penal burden: first, the fact that the right to prosecute armed robbery never prescribes whereas prescription occurs after 20 years for mere robbery (see s 18 of the Criminal Procedure Act); second, that bail is significantly more difficult to attain in cases of armed robbery; and third, that the stigma attaching to armed robbery is far worse than that attaching to robbery. The courts, moreover, have recognised the need to treat robbery with aggravating circumstances in a way that respects this 'status'. In S v Isaacs & another 2007 (1) SACR 43 (C), Yekiso J rejected the view that no onus attached to the proof of aggravating circumstances. He held that the onus should be on the State to prove the presence of those circumstances since this was a matter that had a significant impact on the quantum of the sentence which a court was likely to impose in view of the minimum sentence legislation. And in S v Qwabe 2012 (1) SACR 347 (WCC) the court, when it came to determining whether the accused was a 'second offender' on a charge of robbery with aggravating circumstances, held that the legislation (s 51(2)(a)(ii) of Act 105 of 1997) relating to a minimum sentence would not be triggered by a previous conviction of robbery; it would require a conviction of robbery with aggravating circumstances to do so. The significantly increased penal and social consequences to which an accused is exposed when aggravating circumstances are present do not, in our view, permit a court to place its trust in the legislature's apparent failure to identify armed robbery formally as a separate offence. Arguments of this kind, although not uncommon in the pre­constitutional era, are insufficiently faithful to the spirit and thrust of the Constitution. One should remember that robbery with aggravating circumstances in the past raised the possibility of the imposition of the death sentence whereas robbery did not. The difference, for a convicted person, between a criminal status that rendered him liable to capital RS 58, 2017 DEF­5 punishment and one that did not was of considerably greater significance than a formal difference between distinctly articulated crimes that did not have anything like this effect. Today the difference, which concerns whether or not a minimum sentence is to be imposed, is less stark but still remains very significant. Why should the decisive factor be the style in which the offence is created rather than the impact that a conviction of the offence will have on the accused and his fundamental rights? If form is decisive, what would there be to stop the legislature, if it was of the view that too many convictions for a common­law crime (such as murder) were being lost to the need to prove dolus, from adding an overlay of 'aggravating circumstances' to a lesser common­law crime (such as assault) that would render a person convicted of that crime with aggravating circumstances liable to a sentence usually imposed in respect of the more serious crime? If the causing of death were such an aggravating circumstance, a person convicted of assault with aggravating circumstances could have the more severe sentence imposed on him without the State having to prove the intent to kill. Even more objectionable, however, would be the entire removal of the element of dolus by the legislature. If it would violate the right to be presumed innocent to put the onus on the accused to prove the absence of the intent to kill, how could it not do so if the legislature took the far more drastic and invasive step of removing that element altogether? In (1998) 11 SACJ 409) it was argued that the right to be presumed innocent in statutory offences does not mean the right to be presumed innocent of a crime as it happens to be defined by the legislature, but, rather, once we take into account what is proper and necessary in the shape and construction of criminal offences, the right to be presumed innocent of a crime that is required to contain an element of fault. The decision in Masingili suggests that a further qualification may be necessary: it must be proved, too, that the element of fault relates to every material act, consequence or circumstance that may materially affect the penal status of the accused. For, if the accused is to be punished substantially more severely for causing death as opposed to injury, how can it be enough to prove only that he intended to cause injury? It is difficult to accept Van der Westhuizen J's view that 'an insufficient fault requirement and a violation of the presumption of innocence are conceptually two different things' (at ). There is even some echo of the old doctrine of versari in re illicita, in terms of which one could, before 1962, be held liable for the unintended consequences of an illegal activity. Consider, for instance, the court's observation (at ) that, once the accused 'actively and culpably chose to participate in an inherently violent unlawful activity' he or she 'may be held accountable for this choice, even if she or he did not intend the exact circumstances that occurred, or method used'. And (at ), that '[t]he decision to participate in a robbery is the crucial moral threshold which, once crossed, ordinarily renders the accused culpable', so that, 'provided the requirement of proportionality between the unlawful act and its punishment is satisfied, it is ordinarily justified for the law to impose liability on him or her for the consequences that flow from the unlawful act'. What is needed, instead of an adherence to form or an application of versari­type thinking, is a careful examination of what the legislation does, what its effect is on the accused and his or her fundamental rights, and whether those rights are adequately protected. What, then, does s 1(1)(b) of the Act do? Quite simply, it creates a status, exposing an accused to significantly enhanced penal consequences, by the articulation of a set of circumstances called 'aggravating circumstances' in the case of robbery or attempted robbery. In R v Sisilane 1959 (2) SA 448 (A), Schreiner JA examined what he called the 'shape' of the definition of aggravating circumstances in the 1955 Act. He found that the expression 'aggravating circumstances' was 'stated to mean something "in relation to" the offence' (at 452). And what it meant was 'a noun describing action by a person', and not the mere existence of impersonal circumstances, such as, for instance, whether the robbery was a 'pay roll robbery', or involved the 'use of a motor vehicle'. This observation, in our view, provides the key to understanding the impact of the phrase RS 58, 2017 DEF­6 'or an accomplice' in s 1(1)(b) of the 1977 Act. Where the person who actually performs the robbery (the 'offender' in s 1(1)(b)) actually performs the actions described in that section himself, he has aggravating circumstances attributed to him by reason of his own conduct. But where those actions are performed by 'an accomplice', the attribution arises by virtue of the conduct of another. If this conduct is such that it can be attributed to him by the operation of the doctrine of common purpose, no problem arises, as it is, in law, treated as being his conduct in any event. But if it is not, what s 1(1)(b) in effect does, is to hold the 'offender' responsible for conduct that is not his own, either in fact or in law. And this is, in our view, why the phrase is, unless the term 'accomplice' is interpreted to mean a party to a common purpose, objectionable. It is an objection that goes further than the creation of strict liability, since not only is there additional criminal responsibility without fault in respect of the circumstances that create the extra responsibility, but there is, moreover, responsibility for conduct that is not one's own. This violates one of the foundational principles upon which our criminal law is built. It is unwarranted and unjustifiable. It is also no answer, in our view, to rely on 'substantial and compelling circumstance' for redress: first, the accused should not be exposed to the risk of the enhanced penal jurisdiction in the first place; second, there is no logic in regarding a factor (whether the absence of intent or the more serious objection regarding the absence of conduct that is one's own) as 'substantial' and 'compelling' when it is clearly the legislature's intention that neither 'intent' nor 'own conduct' is necessary in order to attach aggravating circumstances to an accused's crime to begin with; and, third, these considerations are incapable of providing redress in the other situations in which aggravating circumstances apply to increase the accused's criminal © 2018 burden Juta and (such(Pty) Company as bail Ltd. and prescription). Downloaded : Thu Jan 04 2024 21:53:09 GMT+0200 (South Africa Standard Time) For a further detailed discussion of the Constitutional Court's decision in Masingili (supra), see Stevens (2014) 27 SACJ 188; Du Toit 2015  penal jurisdiction in the first place; second, there is no logic in regarding a factor (whether the absence of intent or the more serious objection regarding the absence of conduct that is one's own) as 'substantial' and 'compelling' when it is clearly the legislature's intention that neither 'intent' nor 'own conduct' is necessary in order to attach aggravating circumstances to an accused's crime to begin with; and, third, these considerations are incapable of providing redress in the other situations in which aggravating circumstances apply to increase the accused's criminal burden (such as bail and prescription). For a further detailed discussion of the Constitutional Court's decision in Masingili (supra), see Stevens (2014) 27 SACJ 188; Du Toit 2015 Constitutional Court Review 273. Notes What follows below must be read subject to Minister of Justice and Constitutional Development & another v Masingili & another 2014 (1) SACR 437 (CC) as discussed in the paragraph above, sv 'Unconstitutionality of phrase "or an accomplice" in s 1(1)(b)'. Aggravating circumstances for purposes of sentence are limited to only one crime, namely robbery or attempted robbery (s 1(1)). In S v Hlongwane 2014 (2) SACR 397 (GP) at Spilg J pointed out that each of the three situations identified in s 1(b)(i)­(iii) 'does not require the presence of the other to amount to aggravating circumstances' and 'each... cannot be understood to impose an internal limitation on the other'. In terms of s 1(b) at least one of the situations identified or described in subparas (i), (ii) or (iii) must be present 'on the occasion when the offence is committed, whether before, during or after the commission of the offence'. The exact role of each robber (perpetrator, co­perpetrator or accomplice) need not be determined before he can be held guilty of robbery with aggravating circumstances. See S v Mofokeng 2014 (1) SACR 229 (GNP). In terms of s 1(b)(i) the wielding of a firearm or other dangerous weapon will constitute aggravating circumstances. On the meaning of 'wielding', see S v Hlongwane (supra) at ­. In this case Spilg J concluded as follows (at ): 'In short "wielding" a dangerous weapon will per se constitute aggravating circumstances whereas other forms of holding, carrying or possessing the weapon will not amount to aggravating circumstances unless, having regard to the circumstances, they constitute a threat to inflict grievous bodily harm for the purposes of sub­paragraph (iii).' It follows that for purposes of subpara (i) mere possession of a weapon would be insufficient, whereas the 'wielding' of even an unloaded firearm would constitute aggravating circumstances. See S v Mbele 1963 (1) SA 257 (N); Du Toit 45. A toy 'firearm' is not included in subpara (i), because an objective approach is required. RS 63, 2019 DEF­7 See S v Anthony 2002 (2) SACR 453 (C) at 454j–455b and 456c–d. However, in these circumstances subpara (iii), the 'threat’ requirement as discussed below, would be satisfied. See also generally R v Zonele & others 1959 (3) SA 319 (A) at 329A–G. The requirement set by subpara (ii) is 'infliction of bodily harm’. What is serious or grievous bodily harm will depend on the facts of each case. See R v Jacobs 1961 (1) SA 475 (A) at 484H. The intention of the robber or his accomplice is irrelevant (Du Toit 45). In terms of subpara (iii) a 'threat to inflict grievous bodily harm’ would suffice. See generally S v Sekwati (unreported, GP case no A445/2015, 14 September 2016) at where reference was also made to Ex Parte Minister of Justice: In re R v Gesa; R v De Jongh 1959 (1) SA 234 (A). Such a threat could be uttered expressly or through conduct. See S v Loate & others 1962 (1) SA 312 (A) at 320C–F. An implied threat could be present and can be inferred even where no firearm or dangerous weapon is 'wielded’. In S v Hlongwane (supra) at Spilg J said: 'Accordingly, holding a high calibre assault rifle such as an AK47 with its muzzle facing the ground, whether by one person or every member of a gang during the course of a robbery at say a fast­food outlet, may not amount to “wielding” in the default type situation contemplated by sub­ paragraph (i) but it fits comfortably within the definition of a threat to inflict grievous bodily harm under sub­paragraph (iii).’ It was noted above that in terms of S v Anthony (supra), subparagraph (i) requires an objective approach, which means that a toy 'firearm’ would fall outside the ambit of subparagraph (i). However, in these circumstances subparagraph (iii), the 'threat’ requirement, would be satisfied if the victim concerned subjectively experienced the conduct of the robber as a threat to inflict bodily harm. See also S v Swarts (unreported, ECG case no 20170042, 14 August 2018) at –. '[A] subjective element’, said Steyn J in S v Mdaka 2014 (2) SACR 393 (KZP) at , 'is introduced by considering what [the] complainant believed’. Where a robber acted as if he was drawing a firearm, subparagraph (iii) would be satisfied. See Mdaka at. Use of a large stone would meet the requirements of subparagraph (i). It is a dangerous weapon. See Mdaka (supra) at. The mere act of pushing the complainant off her feet does not constitute 'aggravating circumstances’ as defined in s 1(1)(b) of the Act. See S v Davids 2019 (1) SACR 257 (WCC) at. In this case it was common cause that the complainant had not suffered grievous bodily harm and the accused had made no such threat to the complainant (at ). In S v Maselani & another 2013 (2) SACR 172 (SCA) the following question was addressed: where an accused is charged with robbery with aggravating circumstances, and a court is required to consider whether, in terms of s 1(b)(ii) of the Criminal Procedure Act, grievous bodily harm has been inflicted, is it appropriate to consider the consequences to the victim of the assault as a relevant factor? It was argued that it was not, since the inquiry was concerned solely with the nature, position and extent of the actual wounds and injuries, and the consequences stemming from these wounds and injuries were to be ignored. But this argument was rejected. The Supreme Court of Appeal agreed with what had been said in R v Jacobs 1961 (1) SA 475 (A), where the majority stipulated that whereas the intention of the accused in this regard was irrelevant, the infliction of grievous bodily harm had to be considered in relation to 'the whole complex of objective factors involved in the accused’s assault’, including 'the results which flowed from’ the infliction of the wounds or injuries. Common sense, too, impelled the court to this conclusion. To exclude the consequences could lead to absurd results, since aggravating circumstances would exist if there was a mere threat to kill, but not if the accused actually caused death if he did so by only the moderate use of force, as in Maselani. Where an accused has been convicted of robbery with aggravating circumstances, a previous conviction that would require s 51(2)(a)(ii) of the Criminal Law Amendment Act 105 of 1997 to be applied would have to be one of robbery with aggravating circumstances. See S v Qwabe 2012 (1) SACR 347 (WCC) at and. The circumstance must be present on the occasion when the offence is committed, ie some nexus must be present. Where the circumstance is unrelated to the robbery it cannot constitute an aggravating circumstance (Du Toit 46). RS 63, 2019 DEF­8 The offender or his accomplice can be responsible for the circumstance. But see S v Masingili & others 2013 (2) SACR 67 (WCC) as discussed above, sv 'Unconstitutionality of phrase “or an accomplice” in s 1(1)(b)’. Originally the offender was not responsible where the circumstance was brought about by an accomplice (see R v Mazibuko 1958 (4) SA 353 (A) 358F; R v Sisilane 1959 (2) SA 448 (A) 453G; R v Cain 1959 (3) SA 376 (A) 381), but the legislature stepped in through s 3 of Act 75 of 1959 and today the position is as follows: 'So, if A and B with common purpose proceed to rob, and A inflicts or threatens grievous bodily harm, aggravating circumstances are present in respect of both of them; and s 330(1)—now s 277(1)—applies’ (S v Dhlamini & another 1974 (1) SA 90 (A) 94B). Foreseeability is irrelevant and strict liability is created by s 1 (S v Dhlamini & another (supra) 94D; Du Toit 47). It would seem as if there is no onus in this regard. The State does not carry an onus to prove aggravating circumstances, nor the accused to show the absence thereof. After a conviction, the court will examine the facts before it and will determine on the facts whether there was an occurrence which can be described as an aggravating circumstance. A discretion similar to that exercised in S v Makoula 1978 (4) SA 763 (SWA) 770 will be exercised (see also Du Toit 47). Where no aggravating circumstance is present, the accused must be convicted of robbery simpliciter. In S v Isaacs & another 2007 (1) SACR 43 (C) the appellants were convicted of robbery simpliciter on the basis that the prosecution had failed to prove the presence of aggravating circumstances. Yekiso J (Abercrombie AJ concurring) held that—given the constitutional presumption of innocence—the burden of proving the presence of aggravating circumstances had to be on the prosecution (at ). This approach is convincing. See also S v Hlongwane (supra) at. Even though the State’s failure to allege 'aggravating circumstances’ in the charge sheet is not necessarily fatal, it remains good practice for © 2018 the Juta Stateand toCompany allege in(Pty) theLtd. Downloaded charge sheet that it would seek a conviction on that : Thu basis. See S vJan 04 2024 Saule 200921:53:09 GMT+0200 (1) SACR (South 196 (Ck) AfricaSStandard at ; v Time) Anthony 2002 (2) SACR 453 (C) at 456d–e.  prosecution had failed to prove the presence of aggravating circumstances. Yekiso J (Abercrombie AJ concurring) held that—given the constitutional presumption of innocence—the burden of proving the presence of aggravating circumstances had to be on the prosecution (at ). This approach is convincing. See also S v Hlongwane (supra) at. Even though the State’s failure to allege 'aggravating circumstances’ in the charge sheet is not necessarily fatal, it remains good practice for the State to allege in the charge sheet that it would seek a conviction on that basis. See S v Saule 2009 (1) SACR 196 (Ck) at ; S v Anthony 2002 (2) SACR 453 (C) at 456d–e. Compare generally S v Tuswa 2013 (2) SACR 269 (KZP) at –. Robbery or attempted robbery with aggravating circumstances (as defined in s 1 of the Act) is not a separate category of statutory offence. See Masingili (supra) at ; Hlongwane (supra) and. See generally S v Mashinini & another 2012 (1) SACR 604 (SCA) at where Ponnan JA referred in his dissenting judgment to what Rumpff CJ said in S v Moloto 1982 (1) SA 844 (A) at 858. 'bank’ means a bank as defined in section 1 of the Banks Act, 1990 (Act 94 of 1990), and includes the Land and Agricultural Bank of South Africa referred to in section 3 of the Land Bank Act, 1944 (Act 13 of 1944), and a mutual building society as defined in section 1 of the Mutual Building Societies Act, 1965 (Act 24 of 1965); [Definition substituted by s 1(a) of Act 5 of 1991 and s 38 of Act 129 of 1993.] 'charge’ includes an indictment and a summons; Notes In a charge the relevant offence is set out in such a manner and with such particulars as to the time and place at which such offence is said to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the crime (s 84). In the superior court the charge will be laid in an indictment (s 144) and in the inferior courts in a summons or charge sheet. 'Commissioner’, means the Commissioner of Correctional Services as defined in section 138 of the Correctional Services Act, 1998, or a person authorised by him or her; [Definition of 'Commissioner’ inserted by s 35 of Act 122 of 1991 and substituted by s 137 of Act 111 of 1998.] RS 68, 2022 DEF­9 'correctional official’ means a correctional official as defined in section 1 of the Correctional Services Act, 1998; [Definition of 'correctional official’ inserted by s 35 of Act 122 of 1991 and substituted by s 137 of Act 111 of 1998.] 'correctional supervision’ means a community based sentence to which a person is subject in accordance with Chapter V and VI of the Correctional Service Act, 1998, and the regulations made under that Act if— (a) he has been placed under that section 6(1)(c); (b) it has been imposed on him under section 276(1)(h) or (i) and he, in the latter case, has been placed under that; (c) his sentence has been converted into that under section 276A(3)(e)(ii), 286B(4)(b)(ii) or 287(4)(b) or he has been placed under that section 286B(5)(iii) or 287(4)(a); (d) it is a condition on which the passing of his sentence has been postponed and he has been released under section 297(1)(a)(i)(ccA); or (e) it is a condition on which the operation of— (i) the whole or any part; or (ii) any part, of his sentence has been suspended under section 297(1)(b) or (4), respectively; [Definition of 'correctional supervision’ inserted by s 35 of Act 122 of 1991, amended by s 16 of Act 116 of 1993 and substituted by s 137 of Act 111 of 1998.] Notes This definition is largely technical. It is clear from S v R 1993 (1) SACR 209 (A) that 'correctional supervision’ is a collective term for a wide variety of measures which have in common that they are all applied outside a prison (see the commentary on s 276A, sv 'Trial court to truly consider correctional supervision as sentencing option’). 'criminal proceedings’ includes a preparatory examination under Chapter 20; Notes The meaning of 'criminal proceedings’ has arisen in a variety of contexts. This is due to the fact that the definition in s 1 does not explain what is meant by 'criminal proceedings’ but only serves to expressly include a preparatory examination. Incidentally, a preparatory examination under Chapter 20 and a trial before the superior court are separate proceedings (S v Swanepoel 1979 (1) SA 478 (A)). In S v Thomas & another 1978 (1) SA 329 (A) 334E–F the court held that, 'there is no indication in the Act that the words “criminal proceedings” were intended to be limited to proceedings at the trial. Criminal proceedings would therefore also include proceedings on appeal.’ Bail applications are part of criminal proceedings, but cannot be classified as 'criminal proceedings in respect of any offence’ as envisaged by s 211 (S v Hlongwa 1979 (4) SA 112 (D) 114E–F). In Kouwenhoven v Director of Public Prosecutions, Western Cape & others 2022 (1) SACR 115 (SCA) the court considered the definition of 'criminal proceedings’, specifically for the purposes of s 310. Wallis JA noted as follows (at –): 'Drawing all these threads together I conclude that an extradition enquiry is a criminal proceeding for the purposes of s 310 of the CPA’ (see also the commentary in Part Two ('Extradition’) of Appendix B ('International and Transnational Criminal Procedure’)). The court observed that extradition inquiries (in terms of ss 9 and 10 of the Extradition Act 67 of 1962) share 'many common features with criminal trials’ and noted that, although it amounts to 'criminal proceedings’, it is 'of a very special kind’ (ibid). The court found a useful 'example’ or definition (at ) of the essence of criminal proceedings in Amand v Home Secretary 2 All ER 381 (HL), namely that a criminal matter is one which has, RS 68, 2022 DEF­10 as a direct outcome, the trial of a person 'for an alleged offence in a court claiming jurisdiction’ (see also Director of Public Prosecutions v Paz & another 2000 (1) SACR 467 (W)). In Wessels & others v Additional Magistrate, Johannesburg & others 1983 (1) SA 530 (T) 532–533 the court noted that an inquest, held in terms of Act 85 of 1959, differs substantially from a criminal trial, and that there are strong indications from the definition of 'criminal proceedings’ that an inquest 'is a far cry from criminal proceedings’. 'day’ means the space of time between sunrise and sunset; Notes Section 229 prescribes approval by the minister of tables of the times of sunset and sunrise on particular days at particular places in the Republic or a portion thereof. The calculation of days is prescribed by s 4 of the Interpretation Act, 1957 (Act 33 of 1957), which determines that the calculation includes the last day of a period of time, excludes the first day, provided that the last day does not fall on a Sunday or a public holiday, in which event the period is calculated with exclusion of the first day and also every such Sunday or public holiday. 'justice’ means a person who is a justice of the peace under the provisions of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963); [Definition of 'law’ deleted by s 1 of Act 49 of 1996.] 'local division’ means a local division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959); Notes See the note below, which deals with the meaning of the words 'supreme court’. 'lower court’ means any court established under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944); Notes Lower courts will include a magistrate’s court and regional court. The old officers’ courts which sat under the Correctional Services Act, 1959 (ActJuta © 2018 8 ofand 1959) are not Company (Pty)lower Ltd. courts for purposes of the criminal code (S v Khupiso 1979: Thu Downloaded (2) Jan SA 605 (O); 04 2024 S v Abrahams 21:53:09 GMT+02001966 (2) (South SA 171 Africa (C);Time) Standard contra S v Williams 1978 (1) SA 1177 (C); S v Nkosi 1966 (2) SA 607 (O); see also S v De Kock 1979 (3) SA 806 (O)).  'lower court’ means any court established under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944); Notes Lower courts will include a magistrate’s court and regional court. The old officers’ courts which sat under the Correctional Services Act, 1959 (Act 8 of 1959) are not lower courts for purposes of the criminal code (S v Khupiso 1979 (2) SA 605 (O); S v Abrahams 1966 (2) SA 171 (C); contra S v Williams 1978 (1) SA 1177 (C); S v Nkosi 1966 (2) SA 607 (O); see also S v De Kock 1979 (3) SA 806 (O)). 'magistrate’ includes an additional magistrate and an assistant magistrate but not a regional magistrate; Notes Magistrates, senior magistrates and chief magistrates are included in the term 'magistrate’ for purposes of the criminal code, but all regional magistrates are expressly excluded. A regional magistrate may therefore not perform the functions mentioned in s 217. 'magistrate’s court’ means a court established for any district under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), and includes any other court established under such provisions, other than a court for a regional division; Notes All lower courts (see above) are magistrates’ courts. Regional courts are expressly excluded. 'Minister’ means the Minister of Justice; 'night’ means the space of time between sunset and sunrise; RS 68, 2022 DEF­11 Notes See the notes under day above. 'offence’ means an act or omission punishable by law; Notes The legislature prefers offence to crime and therefore this term is to be used in charge sheets and indictments. 'peace officer’ includes any magistrate, justice, police official, correctional official as defined in section 1 of the Correctional Services Act, 1959 (Act 8 of 1959), and, in relation to any area, offence, class of offence or power referred to in a notice issued under section 334(1), any person who is a peace officer under that section; [Definition of 'peace officer’ amended by s 4 of Act 18 of 1996.] Notes It is important to establish whether a person is a peace officer when arresting competence is relevant, and when a statement is made to a person by an accused. Only those persons mentioned in the description are peace officers and the definition will be interpreted strictly (R v Debele 1956 (4) SA 570 (A)). In Rabie v Minister of Police & another 1984 (1) SA 786 (W) it was decided that a sergeant in the SA Police Force employed as a mechanic to repair police vehicles was a 'peace officer’ as defined in s 1. 'police official’ means any member of the Force as defined in section 1 of the Police Act, 1958 (Act 7 of 1958), and 'police’ has a corresponding meaning; [Definition substituted by s 1(b) of Act 5 of 1991.] Notes Section 1 of the South African Police Service Act 68 of 1995 describes a member of the police service as follows: 'member’ means any member of the Service referred to in section 5(2) (dealing with the composition of the Police Service), and including— (a) except for the purposes of any provision of this Act in respect of which the National Commissioner may otherwise prescribe, any member of the Reserve while such member is on duty in the Service; (b) any temporary member while employed in the Service; (c) any person appointed in terms of any other law to serve in the Service and in respect of whom the Minister has prescribed that he or she be deemed to be a member of the Service for the purposes of this Act; and (d) any person designated under section 29 as a member (by the Minister by notice in the Gazette);’ 'premises’ includes land, any building or structure, or any vehicle, conveyance, ship, boat or aircraft; [Definition of 'province’ and 'provincial administration’ deleted by s 1 of Act 49 of 1996.] 'provincial division’ means a provincial division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959); Notes See the note below which deals with the meaning of the words 'supreme court’. 'regional court’ means a court established for a regional division under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944); RS 68, 2022 DEF­12 'regional magistrate’ means a magistrate appointed under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), to the court for a regional division; 'rules of court’ means the rules made under section 43 of the Supreme Court Act, 1959 (Act 59 of 1959), or under section 6 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985); [Definition substituted by s 1(c) of Act 5 of 1991.] [Definition of 'special superior court’ deleted by s 7 of Act 62 of 2000.] 'superior court’ means a provincial or local division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959); Notes The Superior Courts Act 10 of 2013 has repealed the Supreme Court Act 59 of 1959. It provides that any reference to the Supreme Court Act must be read as a reference to the Superior Courts Act: '53 References in other laws Any reference in any law— (a) to the Supreme Court Act, 1959, or a provision of the said Act, must be construed as a reference to this Act or a corresponding provision of this Act; (b) to a Supreme Court, a High Court, or a provincial or local division of a Supreme Court, must be construed as a reference to the High Court of South Africa or a Division referred to in this Act, as the context may require; and (c) to the Appellate Division of a Supreme Court, must be construed as a reference to the Supreme Court of Appeal.’ Incidentally, s 1 of the Superior Courts Act 10 of 2013 defines 'superior court’ as the Constitutional Court, the Supreme Court of Appeal, the High Court and any court of a status similar to the High Court. 'supreme court’ means the Supreme Court of South Africa established under the Supreme Court Act, 1959 (Act 59 of 1959); [Definition of 'Republic’, 'State’ and 'territories’ deleted by s 1 of Act 49 of 1996.] Notes See the note above, with regard to the meaning of 'superior court’. 'this Act’ includes the rules of court and any regulations made under this Act. (2) Any reference in any law to an inferior court shall, unless the context of such law indicates otherwise, be construed as a reference to a lower court as defined in subsection (1). © 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jan 04 2024 21:53:09 GMT+0200 (South Africa Standard Time)  'this Act’ includes the rules of court and any regulations made under this Act. (2) Any reference in any law to an inferior court shall, unless the context of such law indicates otherwise, be construed as a reference to a lower court as defined in subsection (1). © 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jan 04 2024 21:53:09 GMT+0200 (South Africa Standard Time)  Document 1 of 17 Chapter 1 Prosecuting Authority (ss 2­18) 1 RS 68, 2022 ch1­p1 1 Original chapter by Steph van der Merwe. Murdoch Watney has updated RS 67 onward. 2... [S 2 repealed by s 44 of Act 32 of 1998.] Document 2 of 17 3... [S 3 repealed by s 8(1) of Act 92 of 1992.] Document 3 of 17 4... [S 4 repealed by s 8(1) of Act 92 of 1992.] Document 4 of 17 5... [S 5 repealed by s 44 of Act 32 of 1998.] Introduction Sections 2 to 5 of the Criminal Procedure Act 51 of 1977 (hereafter 'the Act’) were repealed (by the legislation indicated in square brackets above) in order to pave the way for a new constitutional dispensation and to ensure compliance with the Constitution. In National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & others 2017 (1) SACR 284 (CC) at Khampepe J explained that 'the legal framework for prosecution’ is established through the Constitution, the National Prosecuting Authority Act 32 of 1998 and the Criminal Procedure Act 51 of 1977. For a discussion of this case, see the commentary on s 8 below, sv 'Section 8: Private prosecution and s 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act 169 of 1993’. Section 179(1) of the Constitution provides for a single national prosecuting authority, structured in terms of an Act of Parliament. See, generally, S v Ndlovu 2017 (2) SACR 305 (CC) at ; General Council of the Bar of South Africa v Jiba & others 2017 (1) SACR 47 (GP) at –; Corruption Watch NPC & others v President of the Republic of South Africa & others 2018 (2) SACR 442 (CC) at. In the past South Africa had attorneys­general (head of prosecutions) at various divisions of the High Court. There was no single national prosecuting authority and the attorneys­general had acted independently of each other. The National Prosecuting Authority Act 32 of 1998 (hereafter 'Act 32 of 1998’) established a single national prosecuting authority in compliance with s 179 of the Constitution and also repealed the whole of the Attorneys­General Act 92 of 1992. See National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & another 2016 (1) SACR 308 (SCA) at n3. See further the discussion below, sv 'Public prosecutions: Constitutional provisions and Act 32 of 1998’. See also generally Freedom Under Law (RF) NPC v National Director of Public Prosecutions & others 2018 (1) SACR 436 (GP) at and –; Democratic Alliance v Acting National Director of Public Prosecutions & others 2016 (2) SACR 1 (GP) at ; Moussa v S & another 2015 (2) SACR 537 (SCA); S v Delport & others 2015 (1) SACR 620 (SCA) at ; National Director of Public Prosecutions & others v Freedom Under Law 2014 (2) SACR 107 (SCA) RS 68, 2022 ch1­p2 at ; Democratic Alliance v President of the Republic of South Africa & others 2013 (1) SA 248 (CC) at ; Democratic Alliance v President of the Republic of South Africa & others 2012 (1) SA 417 (SCA) at ; S v Tshilidzi 2013 JDR 1356 (SCA) at ; National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at ; Naidoo & others v National Director of Public Prosecutions & others 2005 (1) SACR 349 (SCA) at ; S v Yengeni 2006 (1) SACR 405 (T) at ; S v De Vries & others 2008 (1) SACR 580 (C) at ; S v Tshotshoza & others 2010 (2) SACR 274 (GNP) at ; S v Van der Westhuizen 2011 (2) SACR 26 (SCA) at and Freedom Under Law v National Director of Public Prosecutions & others 2014 (1) SA 254 (GNP) at. Section 179(2) of the Constitution determines that the prosecuting authority has the power to institute criminal proceedings on behalf of the State, and to carry out any necessary functions incidental to instituting criminal proceedings. See generally National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & another (unreported, GP case no 29677/2013, 8 October 2014); Director of Public Prosecutions, KwaZulu­Natal v The Regional Magistrate, Vryheid & others 2009 (2) SACR 117 (KZP) at ; Corruption Watch (RF) NPC & another v President of the Republic of South Africa & others 2018 (1) SACR 317 (GP) at. Section 20 of the National Prosecuting Authority Act 32 of 1998 gives more detailed effect to this constitutional provision. See the discussions below, sv 'The power to institute and conduct criminal proceedings (s 20(1) of Act 32 of 1998)’ and 'The authority and hierarchy of power to institute criminal proceedings’. In Wickham v Magistrate, Stellenbosch & others 2016 (1) SACR 273 (WCC) at it was said that where the prosecution and defence enter into a s 105A plea and sentence agreement, the prosecution acts 'in line with the broad mandate’ conferred by s 179(2) of the Constitution, namely 'to institute criminal proceedings on behalf of the state, and to carry out the necessary functions incidental to criminal proceedings’. See also generally Wickham v Magistrate, Stellenbosch & others 2017 (1) SACR 209 (CC) which is discussed in the commentary on s 105A below, sv 'Section 105A(7)(b)(i)(bb): Power and duty of the court to receive evidence and other statements for purposes of considering the sentence agreement’. The evolution of prosecutions at the instance of the State: A broad historical background In primitive societies all wrongs were private wrongs, and private vengeance could lawfully be taken by the wronged against the wrongdoer —Black v Barclays Zimbabwe Nominees (Pvt) Ltd 1990 (1) SACR 433 (W) 434E. This right to exact private vengeance —which often escalated into blood­feuds between clans or tribes—was gradually displaced by the idea that there had to be some form of officially enforced system of criminal justice in terms of which the guilt of an alleged perpetrator could be established, and in terms of which punishment could be meted out without the direct involvement of the individual victim concerned. There was a need for what we would today call 'legality’ or 'due process of law’. Several factors contributed to this development. First, societies became progressively more civilised. They began to view private vengeance (personal retaliation, self­help) as a disruptive method of exacting retribution and as a most ineffective means of seeking to restore harmony between wrongdoer and victim, and between © 2018 Juta and and wrongdoer Company (Pty) Ltd. society. Downloaded : Thu Jan 04 2024 21:54:25 GMT+0200 (South Africa Standard Time)  without the direct involvement of the individual victim concerned. There was a need for what we would today call 'legality’ or 'due process of law’. Several factors contributed to this development. First, societies became progressively more civilised. They began to view private vengeance (personal retaliation, self­help) as a disruptive method of exacting retribution and as a most ineffective means of seeking to restore harmony between wrongdoer and victim, and between wrongdoer and society. Secondly, the formation of organised forms of government and the development of political units known as states, made it possible to transfer 'private vengeance’ to a faceless entity which had the necessary resources, and which could create the appropriate structures, publicly to enforce justice on behalf of society, thereby indirectly accommodating or satisfying in a non­personal manner man’s primitive but perhaps natural urge to seek retribution. This progress was accelerated when it became clear that there had to be a distinction between a private wrong and a public wrong, the latter being a wrong of such a nature that it required the state to intervene in the public interest. These 'public wrongs’ RS 67, 2021 ch1­p3 were identified as crimes, and also contributed to the distinction between private and public law. Thirdly, as soon as the state became responsible for the enforcement of criminal law, it was no longer possible to tolerate self­help. In fact, it then became unlawful to exact private vengeance. See Burchell