SPR 421 Semester Test 2 Notes PDF

Pass and Prosper SPR 421 Semester Test 2 Notes Scope unit 1-9 By: Ken Marcus Vilborn Subject 1 Introduction 1.1 Know the difference between accusatorial and inquisitorial SA- Accusatorial system boxing...

Pass and Prosper SPR 421 Semester Test 2 Notes Scope unit 1-9 By: Ken Marcus Vilborn Subject 1 Introduction 1.1 Know the difference between accusatorial and inquisitorial SA- Accusatorial system boxing match with judge as referee. Lawyers fight each other. EU- Inquisitorial system, presiding officer is engaged in matter. Lawyers are seeing to clients’ rights. Presiding officer questions and cross examines. 1.2 4 stages of trial ❖ Pre trial ch 6-11 ❖ Trial ch12-18 ❖ Sentencing ch 19 ❖ Post verdict ch 20-22 Sources of SA law: CC,CPA, other legislation (CJA), common law, caselaw. Subject 2 Sequence of a criminal case 3 Types of Jurisdiction NB ❖ Territory ❖ Crime ❖ Sentencing Sequence of a case (read through and understand overall) PRE-TRIAL PROCEDURE 1. Accused is arrested (either by peace officer or civilian) s39-43 2. The accused is brought to police station as soon as reasonably possible. He may be released if further detention is unwarranted. (police bail) 3. The accused must then be brought before a court within 48 hours of arrest, unless the 48 hours expires outside of court hours (a weekend) then the accused is brought on the next available court day (Monday) 4. The accused is informed of their rights and the judicial considers the possibility of releasing the accused on bail or other means (e.g warning). S58,60,71. 5. The control of the proceedings is transferred from the police to the prosecutor  6. The prosecutor decides: ❖ What court ❖ What charges ❖ Wording of charge sheet ❖ Possible referral to police for further investigation END OF PRE-TRIAL PROCEDURE AND BEGINNING OF TRIAL 7. Accused brought to court where a charge sheet is presented to them, they can present any defences (incapacity etc..) and then either plead guilty s112 or not guilty 115. This is also where the defence can raise issue with the charge sheet S85-87. 8. The State will present their case with the possibility for the defence to cross-examine 9. The defence will present their case with the possibility for the state to cross-examine 10. The court can also call their own witnesses here. 11. The court will now give a ruling or postpone to deliberate. 12. The Court will consider mitigating and aggravating factors in sentencing such as previous convictions. END OF TRIAL PROCEDURE AND BEGINNING OF POST TRIAL. 13. If you wish to appeal you can do so either on the merits of the case or on sentencing or take it on review. (all the way to CC if good cause) Sections of CPA S44- executing warrant ❖ Done by PO S45- telegraphic authority, not need to know ❖ Can arrest on printed communication S46- non-liability of wrongful arrest. ❖ A person authorised to arrest and who arrests the wrong person but does so on reasonable belief is exempt from liability ❖ If call civilian to help and he arrests wrong person also exempt S47- Private persons assisting arrest ❖ Male over 16 has to assist police to arrest if called, otherwise a crime. S48- Breaking open premises for arrest  ❖ Person who may lawfully arrest another may enter premises for purpose of arrest if they suspect the criminal is in there, must however audibly announce their intention to enter for arrest. S49- Use of deadly force ❖ Only permitted if suspect is a threat of violence ❖ Suspect is suspected of committing serious crime involving grievous bodily harm and no other means to arrest. S50- Procedure after arrest ❖ Any person arrested (with or without warrant) must be brought as soon as possible to police station or to place indicated in warrant. ❖ Person in detention shall be informed of their right to institute bail proceedings as soon as possible ❖ If arrested person is not released as there is no charge brought or they are not granted bail, they must then be brought before lower court no later than 48h after arrest. ❖ Unless the period expires on a non-court day (weekend) in which case they are to be brought before court on next court day (e.g Monday) S51-Escaping/aiding escape before incarceration ❖ Anyone escaping lawful custody or assisting in such is liable to a criminal sanction. S52- Saving powers of arrest ❖ No part of this act will interfere with powers of arrest granted. S53- Saving civil law rights and liability ❖ Any part of act relating to arrest does not remove right for civil claim by person wrongfully/maliciously arrested. Subject 3 Formal plea and sentencing S105A- Plea and sentence agreements NB ❖ An authorised prosecutor and a legally represented accused may, before the pleading of charges against him negotiate an agreement with accused in which he pleads guilty. Definition: main object is to lighten burden on accused with potential for a lesser sentence, helps state in conserving time and expense from a lengthy criminal trial and the risks which stem from an evidence-based trial.  Under s105- prosecutor can reach an agreement with the defence on the sentence to be imposed. ❖ Requires the prosecutor and a properly represented accused (with legal assistance). ❖ Must be in writing ❖ Before commencement of trial ❖ Cannot be reused if the trial is pronounced de novo (again) ❖ Victim can participate in the plea agreement Before using the agreement, the judicial officer will question the accused on the contents of the agreement to make sure they are consenting to admitting to the allegations. If agreed then the trial goes straight to sentencing. Court will consider if the sentence is just, if it disagrees with the sentence there is 2 options ❖ Prosecutor and accused can choose to abide by plea agreement ❖ One of the parties can withdraw from the plea agreement, the trial will start de novo with a new judicial officer Subject 4 Attendance of accused in court S38- securing accused’s attendance in court NB ❖ Summons ❖ Arrest ❖ Written notice ❖ Indictment S 39-Manner and effect of arrest NB ❖ With or without warrant ❖ Inform person being arrested during arrest or immediately after the cause of arrest. If arrest with a warrant, produce a copy to person on demand ❖ Effect of arrest is that person is in lawful custody. S 40 Arrest by peace officer without warrant NB ❖ May arrest if commits crime in presence/suspects of committing a crime, has criminal tools (housebreaking), obstructs duties. S41- requesting name and address on arrest w/o warrant by peace officer (PO) NB ❖ Can do so if PO has power to arrest and suspects person of having committed crime and if believes person may be able to give evidence. S42- Arrest by private person w/o warrant NB ❖ May arrest if sees/suspects person commit crime  ❖ Or is escaping from a person who will arrest ❖ If owns land on which crime committed S43- Issuing of arrest warrant NB ❖ Done by judge, crime alleged to be committed in the area of jurisdiction. ❖ Warrant shall describe person who is to be arrested and brought before court. ❖ Will remain valid until cancelled S54- Summons to secure attendance in mag court NB ❖ If prosecution intends to prosecute an accused not in custody a summons is issued ❖ This summon contains: the charge, date time and place to appear. ❖ This summons must be delivered by person empowered to deliver summons (e.g Sheriff). ❖ Summons to be delivered directly to person, if not found then residence/work place to someone over 16. ❖ Summons to be served at least 14 days before date of trial excluding Sundays and public holidays. S55- Failure to appear after summons (leave out) ❖ If not appear then guilty of an offense unless you can give court explanation how its not their fault for not appearing. ❖ R300 fine or 3m imprisonment S56- Written notice as method of securing attendance of accused in mag court. NB ❖ Specify name, address, occupation of accused ❖ Call accused to certain place at date and time. ❖ Offer to pay admission of guilt fine s57 w/o appearing in court (e.g speeding fine) ❖ Certificate of original notice being handed to accused and steps explained to him. S144-Inditement NB A method of securing accused’s attendance and must include the following ❖ Charge ❖ Name ❖ Address, Sex, Nationality, age (if known and applicable). Subject 5 Subject 5-Issues relating to inditements and charge sheet CPA S80- Accused may examine charge NB ❖ Accused can examine charge at any stage of proceedings ❖ You ask the court for a charge sheet which will be handed to you Class notes: Golden rule it must be informative, clear and unambiguous. The requirements of a charge sheet. S81- Joinder of charges ❖ Charges against same accused can be joined before leading of evidence ❖ Court may allow accused to be tried separately on each charge if in interest of justice S82-Several charges disposed of by same court ❖ If accused faces multiple charges and any one charge is disposed of by certain court in certain proceedings ❖ All other charges must be disposed of by same court in same proceedings S83- Charge where it is doubtful what offense was committed. ❖ If unsure what crime the accused committed, and facts show several offenses he may be charged with any and all of the suspected offenses. ❖ May also be charged in the alternative (e.g if not murder then manslaughter) S84- Essentials of Charge NB ❖ Relevant offense ❖ Particulars of time and place ❖ Against whom(person) or what(property) (2) ❖ If particulars are unclear then sufficient to state that fact in charge Class notes: seems simple, requires: name of accused, name of offense, elements of offense, time, place and person against whom or against what the offense was committed. Always test charge sheet against s84. Whenever you need to draft charge sheet for statutory offense, follow words of act to the letter. Charge sheet for murder example: bolded text is required NB  In or about 8 February 2024 around Richards Street in Pretoria in the regional court of Gauteng, Mr x unlawfully and intentionally killed Mr Y by stabbing him in the chest. Format ❖ Date ❖ Location ❖ Jurisdiction ❖ Describe elements of crime ❖ method S85- Objection to a charge NB Accused may object to charge before pleading (ito s106) on following ❖ Charge does not comply with essential requirements (S84) ❖ Charge does not set out essential element required for offence (intent) ❖ Charge does not disclose an offense ❖ Charge lacks sufficient particulars ❖ Accused incorrectly named/described in charge The accused must notify prosecutor of intention to object to charge with reasonable notice (can be waived by court if good ground shown). If court accepts objection, then an amendment will be ordered. If prosecutor does not do so then charge may be quashed. Class notes: s85 raised by defence at start regarding missing essentialia S86- Court may order charge to be amended NB ❖ If charge is defective (not exact words followed) or unclear court may before judgement order an amendment ❖ The amendment must not prejudice the accused ❖ Trial may be adjourned to be amended, once done so the case will proceed as if the charge was amended from beginning. Class notes: an example, when witness called, the witness’s version is not the same as the prosecution. Then the court may order an amendment on application from prosecutor. S86 is an error in the charge sheet which prosecutor wants to fix. S87- Delivery of particulars NB ❖ Accused may request prosecution for further/better particulars regarding any charge before any evidence has been led.  ❖ Court may order delivery of such particulars to accused, they must be delivered for free, entered into record and the trial shall proceed as if the particulars were delivered from the start. Class notes: you have a charge sheet but it lacks sufficient info to test your client’s defence. (charge sheet: mr x on or about 8 February 2024 around Jan Schobea street in Pretoria unlawfully and negligently killed mr y)- it complies with essentialia but lacks specific particulars. How to draft further particulars NB: made in light of example above In this scenario you ask the Prosecutor for WHAT your client did for negligence (did he speed or was on phone?). you invoke s87, Format: ❖ in matter of state v x. ❖ heading (request for further particulars, ❖ paragraph nr ❖ ask prosecutor to indicate what grounds your client was negligent, ❖ date and sign it. S88- Defect in charge cured by evidence NB for exam ❖ Where charge is defective with an essential element missing it can be cured by evidence unless brought to notice of court before judgement. Class notes: will be asked in exam, comparison between 86 and 88. Gives court option to fix charge sheet on their own when evidence proves it. 88 is automatic while 86 must be raised. Defence would prefer for s86 to be raised as there is a prejudice consideration. Once the defect has been raised by a party the court cannot amend it on its own. S89-Previous conviction not to be alleged in charge ❖ You may not mention previous convictions in charge (unless the previous conviction is part of this charge) S90- Charge not need to specify or negative exception, exemption, provision, excuse or qualification ❖ If there is any exception or excuse, it need not be listed in the charge or proved by prosecution. Subject 6 Pleas S105 of CPA- Sets out the procedure for plea’s NB ❖ Once we have pleaded. Charge can’t be withdrawn anymore and state is dominus litus.  ❖ Client or accused is entitled to a verdict- the accused must be pronounced either guilty or not guilty. State shall put a charge to the accused before trial commences, and the accused shall subject to 77, 85,105A S77 issues of mental capacity. Stipulates that a person who lacks criminal capacity can never be convicted. S105A- state must put charge to accused and he must plead to it unless he relies on 77,85,105A S77- mental capacity S85- object to charge on basis that its not in compliance S105A- Plea agreement S106- List of possible pleas to raise in a court of law. NB ❖ Guilty ❖ Not guilty ❖ Previously been charged on the current offense ❖ Previously acquitted from the current offense ❖ Received a pardon from the offense charged ❖ The court lacks jurisdiction to try the offense ❖ He has been discharged from prosecution under section 204 ❖ The Prosecutor has no title to prosecute ❖ The court may not resume due to waiting on an order by a court under ❖ S342A(3)(c) Format for a plea (this is the one prof briefly explained in class, full drafting examples are included at the bottom) State v accused Tramlines (state that it is a plea) Guilty/ not guilty or a plea other than guilty/not guilty ito S106(3)( these are the ones listed above) and state a reason Date Sign  Sidenote: If special plea is decided (court goes to investigate the merits and give a verdict which can be appealed later) against accused, the court will instruct accused immediately to plead guilty or not guilty. If accused not satisfied with the special plea decision, the HC can be appealed to for the decision. Cannot use a plea agreement and a normal plea at the same time (its contradictory, you cant plea guilty ito the agreement and then also plead not guilty) Failure to ask the accused to plea means that no formal list arises between the accused and prosecutor on that charge. IF the magistrate or the judge did not follow the procedure and neglected to put a charge. Then can’t be convicted on that charge. Subject 7 Pleas of guilty/not guilty If you’re in court and accused pleads guilty, the prosecutor will ask for the matter to be finalised in terms of s112. Based on plea of guilty you may find someone guilty as charged. Accused pleads guilty s112(1)a. default setting is s112(1)b. if matter is not specifically requested ito 112(1)a it will be a s112(1)b. S113 magistrate can alter a plea of guilty to not guilty. 3 variations S112 Plea of guilty NB In the test you can be asked to draft a s112. (you will draft a plea of guilty) 112(1)a- deal with the matter expediently, this is used where the accused has plead guilty, the magistrate accepts this plea and he hands down a competent sentence. 112(1)b-standard way of dealing w matter, the magistrate will question the accused either of their own volition or at request of the prosecutor. The magistrate will then attempt to determine whether the accused understands what they are pleading guilty to. If the court is satisfied that this plea of guilty is legitimate, the judge will then hand down a competent sentence. 112(2)- a written plea explanation which can be drafted on behalf of accused to expedite proceedings. This is where you and legal rep consult with client, client wishes to plead guilty and you’re satisfied of their guilt, you then draft a plea explanation for this. If the court is satisfied that your client is guilty, they may then hand down a competent sentence. The magistrate will ask prosecutor if they will accept the plea. If accepted the judge will dispose of the matter Ito 1121(b) the default setting. 112(2) explanations (provided by prof in class) Lawyer will then say they are authorised to represent client and the plea is in line of their instructions. You present the written plea explanation and ask permission to read it into the record. You ask the courts permission for the client to sign the document Infront of the court. You ask for the document to be taken into evidence. The court will ask the accused if the signature was voluntary and without undue influence. The plea explanation pre-empts the questions by the court and answers them in the plea explanation. Things to be aware of: Plea explanation is the accused’s version of the charges against him by state. You can also present a plea explanation for a plea of not guilty. Plea application=not an affidavit. Do not confuse the 2. Plea explanation is signed by both client and lawyer. All documents must be dated and signed All documents must have a correct heading. Look at facts, make sure you cover jurisdiction Prof’s sidenote: Any document drafted exclusively by legal practitioner is signed only by them. Any document done on behalf of a client belongs to them and must always be cosigned by client and lawyer. S115 (plea of not guilty) You can plead not guilty; court will try simplify issues before the court by asking questions. The court will determine if they need to everything or just certain things. The magistrate will ask if you’re willing to disclose the basis of your defence. You can yes or no. e.g. you say you killed someone in defence. Then court merely needs to see if defence is valid in law and not try to prove everything. If you do not make any admissions in a murder trial. The state needs to call a lot of witnesses. You can make written admissions in your plea of not guilty. NB S220 Formal admission is a statement by defence, accepted by the state that takes the act out of contention (your admission serves as sufficient proof). You cannot go back or retract formal admissions unless its exceptional circumstances. Subject 8 Trial and verdict S150 of CPA Case for the state: S150(1) The prosecutor can address the court for explaining the charge and indicating evidence that will be used without commenting on such evidence. the examination in chief, cross examination (The defence also has an opportunity to cross examine state witnesses.) re-examination State closes their case Options: S174 NB- discharge of accused at end of states case, this will happen when the court is not convinced by the prosecutions evidence that the accused committed the charge. If a S174 is not possible the defence must present their defence. Case for defence S151 of CPA S151(1)(a) If a s174 discharge is not awarded, the defence will address the court to indicate what evidence will be led, without commenting on such evidence Evidence in chief Cross examination (state may cross examine the defence witnesses) Re-examination Defence closes their case Prosecutor and then defence address the court on merits of the case. Flow of the Trial summarised. NB (for an indepth breakdown look back at Ch2) 1. S150- Prosecutor addresses the court on charges and evidence 2. Prosecutor leads evidence. 3. If witnesses then: Examination in chief Cross examination Re-examination.  4. Prosecutor closes. Defence can apply for S174 discharge of accused if prosecutor case not strong enough. If discharge fails then defence must present their case, can choose to not lead any evidence (pg 383 textbook). 5. S151- Defence opens with address to court as to what evidence will be led 6. Defence calls witnesses: Examination in chief Cross examination Re-examination 7. Defence closes. 8. Court allows final arguments by prosecution and defence. 9. Court will then give verdict. Verdict An accused is entitled to judgement, either a finding of conviction or acquittal. Requirements: Verdict be delivered in a reasonable time Court must give reasons for verdict Subject 9 Sentencing NB! When dealing with sentencing you are balancing 3 things (s v Zinn) This is the locus classicus of sentencing. Personal circumstances of accused Seriousness of offense Interests of society Discussion of a possible 4th leg, interest of the victim. However, this most likely forms part of the interests of society. Minimum sentencing S51 of criminal law amendment act 105 of 1997 Know basic principles of minimum sentencing legislation (don’t study the schedules and offenses). Part 1 of schedule 2- life imprisonment (this is for the most serious crimes) Part 2 of schedule 2- first offence 15y, second offence 20y, third offence 25y. NB! Part 3 of schedule 2-first offence 10y, second offence 15y, third offence 20y. Part 4 of schedule 2- first offence 5y, second offence 7y, third offence 10y. Vilekasi case, if matter in minimum legislation, then the states suggestion is the starting point. Unless there is compelling and substantial evidence. Court must always record if it intends to deviate from minimum sentence with reasons. Difficult to persuade a judge not to impose a minimum sentence and the onus in on the accused legal team. The court will look at a holistic approach to sentencing and not one single factor is substantial enough to deviate from minimum sentencing. NB Mitigating and aggravating factors: ❖ Personal circumstances. ❖ Remorse (don’t deny the charge) ❖ A guilty plea is helpful for mitigation. ❖ Admissions ❖ Age ❖ Health ❖ Dependants ❖ Education ❖ Income, what is reasonable for a fine? ❖ Previous convictions Not a closed list, can be anything previous convictions SAP69: a person who’s a first offender will be treated less harshly than a repeat criminal. First step after being found guilty, prosecutor must prove previous convictions. Proven with sap 69, or j14. J14: an extract from fingerprints taken of client. (Is there previous convictions ect….) a fingerprint expert must show that the fingerprints are the same. During trial state was dominus litus. Need to know 4-5 most important principles of punishment/sentencing NB. Deterrence Retribution Restorative justice Rehabilitation Benefit of society For the Test NB! Be able to distinguish between mitigating and aggravating factors. mitigating factors- a young age, has accused settled the debts as a result of theft. aggravating factors- previous convictions, more knowledgeable on matter than layman (profession). Someone who abuses the high degree of trust placed on them (an accounting officer) s276- Show that you understand s276 of the cpa (all sentencing options available to court). e.g. a fine suspended sentence imprisonment periodical imprisonment a warning. Correctional supervision 276 1(h) v 1(i) know the difference. (1)h- Correctional supervision is a community-based sentence which is served by the offender in the community under the control and supervision of correctional officials, subject to conditions which have been set by the court or the Commissioner of Correctional Services- Department of correctional services. (1)i- you serve a certain part of your sentence and are then placed under supervision or given parole S300- compensation orders e.g. someone steals animals the victim is struggling, here you will apply for a s300 by approaching the prosecutor in court and ask for a compensation order in lieu of another sentence, don’t send them to jail rather have him comp me. Drafting Drafting examples. These are provided in the textbook prof made available to us on clickup. 112(2) written plea explanation IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF GAUTENG, HELD AT PRETORIA CASE NUMBER: /2020 THE STATE and MR. X ACCUSED STATEMENT IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 (AS AMENDED) I, the undersigned, MR. X with identity number __________________, declare hereby as follows: A. INTRODUCTION 1. I am the accused in this matter, and I am fully conversant with the contents of the charge(s) against me. 2. I plead guilty to count number 1 against me, namely that I contravened (enter law here) and explain how. I further confirm that this plea of guilty is done freely and voluntarily, without me being influenced to do so, and I being of sound and sober mind set, and while I am fully aware of the seriousness of the charge against me.  3. I admit that on or about the period (time) to (time) I was at or near the area, within the _(location)_ I accept, is within the jurisdiction of this Honourable Court. 4. I admit that during the aforementioned period (admit the crime) 5. Explain here elements of the crime, for murder its unlawfulness and intent. E.g. I unlawfully and intentionally stabbed y with a knife which caused their death. 6. I furthermore understand than I have no defence in law available to me. B. THE FACTS TO WHICH I PLEAD GUILTY Explain the facts which you plead guilty to. 7. xxx C. CONCLUSION 8. (explain guilty and remorse) 9. I beg, however, with respect, for the court’s embracement of all the leniency and mercy that it is empowered with, in imposing a suitable sentence in my specific circumstances. SIGNED AT PRETORIA ON THIS (date) DAY OF (month) 20_(year)_. _______________________ ____________________ Legal Representative Accused S115 plea of not guilty IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF GAUTENG, HELD AT PRETORIA CASE NUMBER: /2020 THE STATE and MR. X ACCUSED STATEMENT IN TERMS OF SECTION 115 OF ACT 51 OF 1977, AS AMENDED I, the undersigned, MR. X with identity number __________________, declare hereby as follows: A. INTRODUCTION 1. I am the accused in this matter, and I am fully conversant with the contents of the charge(s) against me. 2. I plead not guilty to count number 1 against me, as well as any other charges set out in the charge sheet as well as any other competent verdicts (if any) 3. The basis of my defence is one of sudden emergency, in that the deceased ran in front of my motor vehicle and there was no time to take evasive action 4. The following admissions may, however, be recorded in terms of section 220 of the Criminal Procedure Act, 51 of 1977: (you add any admissions here) e.g. I admit that on or about the period (time) to (time) I was at or near the area, within the _(location)_ I accept, is within the jurisdiction of this Honourable Court. SIGNED AT PRETORIA ON THIS (date) DAY OF (month) 20_(year)_. _______________________ ____________________ Legal Representative Accused S87 Request for further particulars: IN THE MAGISTRATES COURT OF _____________________________ HELD AT _______________________ CASE NUMBER: _______ 20___ In the matter between: THE STATE and ________________________ ACCUSED REQUEST FOR FURTHER PARTICULARS IN TERMS OF SECTION 87 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977, AS AMENDED The accused requires the following further particulars to the charge sheet to enable him / her to plea: AD CHARGE: FRAUD (the charge you are asking further particulars for) (you then present questions about the elements of the crime and other issues) e.g. 1.1 In what manner is it alleged that the accused acted “unlawfully”? 1.2 In what manner is it alleged that the accused acted “falsely”? 1.3 On what ground(s) is / are it alleged the accused intentionally “defrauded”? 1.4 Exactly where did the alleged offence take place? Full particulars and description of the place is required. 1.5 Exactly when did the alleged offence take place? Full particulars and description of the time is required. 1.7 In what manner did the accused allegedly “misrepresented”? SIGNED AT ___________________ ON THIS ____ DAY OF ______________ 20____. ________________________________________ LEGAL PRACTITIONER FOR THE ACCUSED (FULL ADDRESS AND CONTACT DETAILS OF LEGAL PRACTITIONER) TO: THE CLERK OF THE CRIMINAL COURT _________________________________ AND TO: THE PROSECUTOR Example of an objection to a charges ito s106 special plea IN THE MAGISTRATES COURT FOR THE DISTRICT OF ___________________ HELD AT ______________________ CASE NUMBER: _______________ In the matter between: - THE STATE and ________________________ ACCUSED OBJECTION TO CHARGES(S) IN TERMS OF SECTION 85(1) OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 AS AMENDED WHEREAS the state served the accused with a charge sheet consisting of a first count (___insert charges here_) and an alternative count to the first count (___insert charges here_) and a second count. AND WHEREAS the defence made a request for further particulars in terms of section 87 of the Criminal Procedure Act (“CPA”) 51 of 1977. AND WHEREAS the state filed further particulars on or about the ________________, all documents to be provided to court and to form part of the record. NOW THEREFOR the accused, formally and in writing object to the charges mentioned supra, before pleading to each charge under section 106 on the ground that the charges: (a) Does not comply with the provisions of the CPA relating to the essentials of the various charges [section 85(1)(a)]; alternatively, - 154 - (b) That the charges do not set out an essential element, to wit the applicable mens rea element in each and every of the mentioned charge(s) / offence(s) [section 85(1)(b)], further alternatively, (c) That the charges do not contain sufficient particulars of the matters alleged in the charge(s), particularly relating to culpability [section 85(1)(d)]. The accused regard an allegation of intent as indispensable to each and every of the aforementioned charge(s) and the absence of such an allegation in each of the charge(s) is / are regarded as material to the charge sheet. The accused regards the lack of an averment with regard to culpability as insufficient to properly plead thereto. Such deficiency is essential and should be alleged expressly or by implication, which it currently does not. The charge(s) must specify the required mens rea since the elements of the offence(s) are vague and embarrassing in the respective definitions suggested in all of the charge(s) mentioned supra. SIGNED AT ___________________ ON THIS ____ DAY OF ______________ 20____. _________________________ (Full name(s) of the accused) THE ACCUSED ____________________________ LEGAL REPRESENTATIVE