ASPIRANT PROSECUTOR PROGRAMME - Study Guide - 2025-part-1.docx

**2024** 1. Commentary on the Criminal Procedure Act: Du Toit and others. 2. Hiemstra\`s Commentary on Criminal Procedure Act. Publisher: LexisNexis South Africa: Albert Kruger 3. Principles of Evidence. 4. Snyman's Criminal Law 7th Ed 5. A Guide to Bail Applications. 6. Recent Cases...

**2024** 1. Commentary on the Criminal Procedure Act: Du Toit and others. 2. Hiemstra\`s Commentary on Criminal Procedure Act. Publisher: LexisNexis South Africa: Albert Kruger 3. Principles of Evidence. 4. Snyman's Criminal Law 7th Ed 5. A Guide to Bail Applications. 6. Recent Cases: Sentencing 9. Justice College note: A selective discussion of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992) by B J King, Updated by J P Nordier 2021. 10. LAWSA: Evidence (Volume 18 - Third Edition) DP Van Der Merwe. 11. Criminal Matters Amendment Act 18 of 2015 12. Domestic Violence Act 116 of 1998, Domestic Violence Amendment Act 14 of 2021 Criminal and Related Matters Amendment Act 12 of 2021 13. Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021. 14. Child Justice Act 75 of 2008. +-----------------------------------+-----------------------------------+ | Introduction | | +===================================+===================================+ | **Part I** | | +-----------------------------------+-----------------------------------+ | Basic Principles of Criminal Law | | +-----------------------------------+-----------------------------------+ | Common Law Crimes | | +-----------------------------------+-----------------------------------+ | Statutory Offences | | +-----------------------------------+-----------------------------------+ | **Part II** | | +-----------------------------------+-----------------------------------+ | The Law of Evidence | | +-----------------------------------+-----------------------------------+ | Modern Technology and how this | | | impacts on: | | | | | | The Presentation of Evidence | | +-----------------------------------+-----------------------------------+ | **Part III** | | +-----------------------------------+-----------------------------------+ | The Criminal Procedure Act | | +-----------------------------------+-----------------------------------+ | **Part IV** | | +-----------------------------------+-----------------------------------+ | Sentencing | | +-----------------------------------+-----------------------------------+ - Criminal law provides for offences and lays the foundations as to what elements are required in respect of specific offences. - Criminal procedure lays down the procedure to follow in respect of the evidence secured for presentation. - Law of Evidence deals with the admissibility and relevance of the evidence to be presented at court.  1. [Requirements for Legality] - the law must recognise the act/conduct as a crime in clear terms - before the conduct took place. 2. [Conduct and Voluntariness] - ###### [Act (positive conduct]) - ###### [Omission (failure to act]) 3. **Dangerous Object** - duty may arise where a person accepts responsibility for the control of a dangerous or a potentially dangerous object, and then fails to control it properly. **[Fernandez v S 1966 2 SA 259 (A)]**, herein Fernandez kept a baboon and failed to repair its cage properly, with the result that the animal escaped and bit a child, who later died. Fernandez was convicted of culpable homicide. 4. A duty may arise where a person stands in **a protective relationship** towards somebody else. A parent or guardian has a duty to feed a child. This is espoused in both the Children's Act as well in the case of **[Chenjere v S 1960 1 SA 473 (FC).]** In this matter a partner to the parent of the child had a legal duty to care for their child failed to feed the child and the child died as a result. He was convicted of Murder. 5. A duty may sometimes arise by virtue of the fact that a person is **the incumbent of a certain office,** such as a medical practitioner or a police official. In **[Minister van] [Polisie v Ewels 1975 3 SA 590 (A)]** it was held that a policeman on duty who witnesses an assault has a duty to come to the assistance of the person being assaulted. 6. A duty may arise from a **previous positive act.** The omission follows upon a commission or positive act which has created a duty to act positively. **[S v Van Aardt] [2009 1 SACR 648 (SCA)]**, in this matter the accused severely assaulted the victim, then as opposed to obtaining medical attention for the victim he left him to succumb to his injuries. Accused was convicted of murder. 7. A legal duty may arise by virtue of **an order of court**. If a court orders the person to pay monthly maintenance in terms of a divorce decree, and the person fails to pay the said maintenance he may be charged with contempt of court. 3. [Causation] 4. [Unlawfulness] ### [Defences excluding unlawfulness]: - ###### Private Defence 1. Be unlawful - **[Papu 2015 2 SACR 313 (ECB)]** wherein at para 10 the court held that; "*It is self-evident that in those circumstances the deceased\'s actions, in firing a shot at what he believed to be intruders on his property, were clearly not unlawful" A*s a result the accused was convicted of murder. 2. Against interests which should be protected -- **[Teixeira v S 1980 3 SA 755 (A)] [765 A]**; wherein the court found "*The only conduct really relevant to the issue of self-defence is that relating to appellant\'s reaction to the deceased\'s threat to assault him with the bottle. It was suggested to appellant that he could have called for help. I do not appreciate how a call for help could possibly have availed appellant when (on appellant\'s version) the deceased advanced towards him evincing a clear intention of striking him with the bottle. It was suggested that appellant \"had enough time and place to get himself out of the dilemma\". In my opinion, the circumstances indicate the contrary. Even on an armchair approach, it appears that, with the deceased being less than a metre away from him, it would have been an act of folly on appellant\'s behalf to have attempted to seek safety in flight. In my opinion, the State failed to prove beyond any reasonable doubt that appellant\'s conduct in killing the deceased was not justified, i.e., that he had acted unlawfully*." Resultantly the accused was acquitted of the murder charge. 3. The attack must be imminent but not yet completed - **[Mokgiba 1999 1 SACR] [534 (O) 550 ]**-- The court held that once the attack is completed one cannot act 1. Directed against the attacker 2. Be necessary - The defensive act must be essential in order to protect the interest threatened --in **[S v Engelbrecht 2005 2 SACR 41 (W)]** the court held that "*The basic idea underlying private defence is that a person is allowed to "take the law into his own hands", as it were, only if the ordinary legal remedies do not afford him effective protection he is not allowed to claim the functions of a judge and a sheriff. On the other hand, a threatened person need not accept the threats or actual violence merely because he will be able to claim damages afterwards.*" 3. There must be a reasonable relationship between the attack and the defensive act -- **[Ngobeni v S 2014 ZASCA 59]**. 4. Be taken while the defender is aware that he is acting in private defence - ###### Necessity 1. Private defence always stems from and is always directed at an unlawful attack; necessity, on the other hand, can stem from either an unlawful act or from chance circumstances, such as acts of nature or even an animal. 2. In cases of necessity it is directed at the interests of another innocent party. - ###### Impossibility - ###### Superior orders 1. The order must emanate from a person lawfully placed in authority over the accused. 2. The accused must have been under a duty to obey the given order. 3. The accused must have done no more harm than was necessary to carry out the order. - ###### Entrapment - ***De minimis non curat lex*** - ###### Official Capacity - ###### Disciplinary Chastisement ##### [ Criminal Capacity] ##### [ Fault / Culpability] ##### [ Participation in crime] 1. **[Perpetrators]** -- is a person whose conduct, considering the circumstances as well as his/her fault/culpability satisfies all the elements of a crime. 2. **[Accomplices]** -- An accomplice is a person whose actions unlawfully and intentionally further, facilitates and or makes possible the commission of a crime by another person. An accomplice's conduct does not satisfy all the elements of the offence, but his/her conduct makes it possible for the main perpetrator to commit the offence. Please see **[S v Williams 1980 1 SA 60 (A) 63]** where the appellant was charged as an accomplice to murder. The appellant was on a train with his co-accused. One of his co-accused stabbed the deceased with a knife while the appellant held the deceased by the neck. In his appeal there was a discussion if the accused should have been charged with the main count of murder as a co-perpetrator or whether the conviction, by the court, as an accomplice was correct. The conviction was upheld but this judgement has been criticized on numerous occasions by different authors including Snyman stating that the accused should have been charged as a participant and not an accomplice. (Snyman argues that it is not possible for a person to be an accomplice to murder.) ### [Doctrine of Common Purpose] ### [Possession/Joint Possession] 1. Did the person have physical possession or custody or control over an item? [This test] [is objective in nature.] 2. Did the person have the intent to exercise control over the item? [This test is subjective] [in nature.] ###### Possession = physical possession + knowledge of possession OR ### [Executive Statements:] B. SPECIFIC OFFENCES -------------------- 1. [COMMON LAW CRIMES] 1. *[Public Violence]* =============================== *[Contempt of Court]* ================================= *[Defeating or Obstructing the Course of Justice]* ============================================================== ###### [S v Ncamane \[2019\] ZAFSHC 220 at para 5]. *[Murder]* ====================== *[Culpable Homicide]* ================================= a. whether a reasonable person in the same position and circumstances of the accused would have foreseen the possibility that the deceased's death may result from his conduct; b. whether the reasonable person would have taken steps to guard against this possibility *[Assault]* ======================= *[Assault with the intent to do Grievous Bodily Harm]* ================================================================== a. The nature of the weapon and the manner in which it was used; b. the extent of the violence and how the injury was inflicted; c. the part of the body to which the blow was directed; d. the nature of the injuries, if any, sustained. 9. *[Crimen Iniuria]* ============================== a. Be aware of the accused's offending behaviour b. Feel degraded or humiliated by it 10. *[Criminal Defamation]* =================================== *[Kidnapping]* ========================== *[Theft]* ===================== i. Deprives the lawful owner or possessor of his property; and ii. Acts or exercises the rights of the property as though he is the owner of the said property -- In **[Nkosi v S 2012 1 SACR 87 (GNP)]** states at para 20 - the principle that a mere assumption of control over the property is not yet sufficient to constitute theft, but it should further be required that the owner effectively be excluded from his property. 1. intentionally effects an appropriation 2. intending to deprive the owner of his property permanently 3. knowing that the property is capable of being stolen 4. knowing that he is acting unlawfully when taking the property *[S36 of the General Law Amendment Act 62/1955]* ============================================================ *[Robbery]* ======================= *[Fraud]* ===================== - [**Mngqibisa v S (2007) SCA 119 (RSA)** at para 12] -- "*I am therefore satisfied that potential prejudice was shown on the facts before us which was neither too remote nor fanciful. It is of no assistance to the appellant that he subsequently told the truth. Potential prejudice is occasioned at the time of making the false representation and this must be determined on the facts of each case."* *[Forgery and Uttering of a forged document]* ========================================================= *[Malicious Injury to Property]* ============================================ *[Arson]* ===================== - *'In my opinion, therefore, we should sanction that procedure by holding that the crime of brandstichting (Roman-Dutch law) is committed by a man who sets fire to his own house wrongfully, maliciously and with intent to injure or defraud another person.'* This was confirmed by the full bench of the Supreme Court of Appeal in **[Dalindyebo v S (2015) ZASCA 144]*.*** a. of the lawful occupier of any land or any building or part of a building; or b. of the owner or person in charge of any land or any building or part of a building that is not lawfully occupied by any person, 2. [STATUTORY OFFENCES] 4. ***THE FIREARMS CONTROL ACT 60 OF 2000, AS AMENDED*** *2.1.2. [Unlawful possession of firearms ]*[-- *S.3*] ============================================================================= ###### [Section 3]; b. *device manufactured or designed to discharge rim-fire, centre-fire or pin-fire ammunition;* c. *device which is not at the time capable of discharging any bullet or projectile, but which can be readily altered to be a firearm within the meaning of (a) or (b);* d. *device manufactured to discharge a bullet or any other projectile of a calibre of 5.6mm or higher at a muzzle energy of more than 8 joules (6 ft-lbs), by means of compressed gas and not by means of burning propellant; or* e. *barrel, frame or receiver of a device referred to in paragraphs (a), (b), (c), or (d), but does not include a muzzle loading firearm or any device contemplated in section 5.* a. *the group had the intention (animus) to exercise possession of the guns through the actual detentor and* a. *Any fully automatic firearm;* b. *any gun, cannon, recoilless gun, mortar, light mortar or launcher manufactured to fire a rocket, grenade, self-propelled grenade, bomb or explosive device;* c. *any frame, body or barrel of such a fully automatic firearm, gun, cannon, recoilless gun, mortar, light mortar or launcher;* d. *any projectile or rocket manufactured to be discharged from a canon, recoilless gun or mortar, or rocket launcher;* e. *Any imitation of any device contemplated in paragraph (b), (c) excluding the frame, body or barrel of a fully automatic firearm, or (d);* f. *any firearm-* i. *the mechanism of which has been altered so as to enable the discharging of more than on shot with a single depression of the trigger;* ii. *the calibre of which has been altered without the written permission of the Registrar;* iii. *the barrel length of which has been altered without the written permission of the Registrar;* iv. *the serial number or any other identifying mark of which has been changed or removed without the written permission of the Registrar."* 1. A semi-automatic firearm, also called a self-loading or auto loading firearm is a repeating firearm whose action mechanism automatically loads a following round into the chamber and prepares it for subsequent firing, but requires the shooter to 2. An automatic firearm is also a self-loading firearm, but continuously chambers and fires rounds when the trigger mechanism is actuated. These firearms include what is commonly referred to as machine guns. 3. The third category is then those firearms that are not semi-automatic or fully automatic such as revolvers. *2.1.2. [Unlawful possession of ammunition ]*[-- *S.90*] ================================================================================ ###### [Section 90]; 5. *[DRUGS AND DRUG TRAFFICKING ACT 140 OF 1992]* ========================================================== 1. **[*Manufacture and supply of scheduled substances* -- *S.3*]** [*Use And Possession Of Drugs* -- *S.4*] ==================================================== ii. *he has acquired or bought any such substance for medicinal purposes* iii. *he is the Director General: Welfare who has acquired or bought any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;* iv. *he, she or it is a patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer, of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to administer, supply, sell, transmit or export any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation;* v. *he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who has acquired, bought, imported, cultivated,* 3. [*Dealing in Drugs* -- *S.5*] ========================================= a. *any dependence-producing substance; or* b. *any dangerous dependence-producing substance or any undesirable dependence- producing substance,unless-* i. *he has acquired or bought any such substance for medicinal purposes -* ii. *he is the Director-General: Welfare who acquires, buys or sells any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;* b. *The operation of the order in paragraph 1 is suspended for a period of 24 months to enable Parliament to finalise the legislative reform process.* c. *During the period of suspension referred to in paragraph 2, no child may be arrested and/or prosecuted and/or diverted for contravening section 4(b) of the Drugs and Drug Trafficking Act insofar as it criminalises the use and/or possession of cannabis by a child.* #### *[Offences and Penalties]:* ###### [Section 13] a. the value of the dependence producing substance in question is more than R50 000,00 b. the value of the dependence producing substance in question is more than R10 000,00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; c. the offence was committed by any law enforcement officer. i. a first offender to imprisonment for a period not less than 15 years; ii. a second offender of any such offence to imprisonment for a period not less than 20 years; and iii. a third or subsequent offender of any such offence to imprisonment for a period not less than 25 years. *[Prevention and Combating of Corrupt Activities Act 12 of 2004]* ============================================================================= #### *[Corruption by giver and corruption by recipient].* ###### General crime: corruption committed by the recipient - the acceptance by Y or the offer to accept (the act); - of a gratification; (need not be in monetary value) - in order to act in a certain way (the inducement); - unlawfulness; - intention. ###### General crime of corruption: corruption by the giver - the giving or offer to give by Y to X (the act); - of a gratification; (benefit of any type -- need not be monetory) - in order to influence Y to act in a certain way (the inducement); - unlawfulness; - intention."