Criminal Procedure PDF - Module 9

# CRIMINAL PROCEDURE - Module 9 ## Introduction to Legal Studies (ILS41Y0) ## Prescribed Study Sources - PowerPoint lecture slides - Prescribed textbook: Madlingozi et al *Introduction to Law and Legal Skills in South Africa* 2nd ed, Oxford (2021), par 10.4. - Prescribed cases: Study *Magobodi v M...

# CRIMINAL PROCEDURE - Module 9 ## Introduction to Legal Studies (ILS41Y0) ## Prescribed Study Sources - PowerPoint lecture slides - Prescribed textbook: Madlingozi et al *Introduction to Law and Legal Skills in South Africa* 2nd ed, Oxford (2021), par 10.4. - Prescribed cases: Study *Magobodi v Minister of Safety and Security and Another* 2009 (1) SACR 355 (Tk). Compare the decisions in *S v Sebejan* 1997 (1) SACR 626 (W) and *S v Mthethwa* 2004 (1) SACR 449 (E) regarding the due process rights of suspects. ## Discussion Index - INTRODUCTION TO CRIMINAL JUSTICE - CRIMINAL COURTS AND THE JURISDICTION OF CRIMINAL COURTS - OVERVIEW OF THE TYPICAL PROCESSES OR PHASES OF CRIMINAL JUSTICE - PARTICIPANTS IN THE CRIMINAL JUSTICE SYSTEM - DUE PROCESS OR PROCEDURAL FAIRNESS IN SEC 35 OF THE CONSTITUTION ## Introduction to Criminal Justice "Society needs a reliable and fair system in which the guilty are separated from the innocent”; in this way, criminal justice helps to protect the constitutional rights of all. ## Criminal Offence - A crime or offence (or criminal offence) is an act harmful not only to some individual (victim/s) but also to a community, society, or the state, and acts are, therefore, forbidden and punishable by substantive criminal law. - In other words, crime influences everyone (directly or indirectly), it is "a public wrong”. - Therefore, society must be protected against such criminal behavior - this is the function of the criminal justice system. ## Introduction to Criminal Justice "Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts." The criminal justice system oversees the following key components: - Proscribing criminal conduct and the requirements for criminal liability, - Providing the rules and procedures in investigating criminal conduct, - Prosecuting criminal conduct in a fair & objective manner, - Proving guilt through admissible evidence, and - Sentencing and punishment of convicted offenders. ## "[A]n effective criminal justice system is... vital to our democracy” - *DA v President of the RSA* 2013 (1) SA 248 (CC). ## What is an effective criminal justice system? An effective criminal justice system implies "the certainty of detection, the certainty of follow up, the certainty of arraignment, the certainty of prosecution - and the certainty of punishment.” ## What elements are necessary for a criminal justice system to be effective? - Successfully implementing a criminal justice system necessitates the integration of several vital elements to operate cohesively, inter alia: - A functional and competent government, - Access to justice (judiciary) - fair public hearing before an independent and impartial court (sec 34 of the Constitution), - Competent law enforcement agencies - institutions and functionaries that operate in harmony, - A reliable and fair legal framework regulating the criminal justice system. ## Responsibility of the State - In a democratic State, the interests of society are protected through the functioning of State powers (law enforcement agencies and courts). - These agencies must investigate, prosecute, adjudicate, and punish a person who is clearly guilty, in the interest of the whole of society to maintain the rule of law, uphold social control, and ensure stability and peace in society. - Consequently, the State bears the primary constitutional duty to proscribe criminal conduct and provide a procedurally fair mechanism for the enforcement and punishment of such conduct. ## Institutional Components - The three branches of authority MUST function independently and cooperatively under the rule of law: - Legislative authority (parliament criminalizes certain conduct); - Judicial authority (adjudication by criminal courts); and - Executive authority (Law enforcement agencies - SAPS, prosecution by the NPA, and correctional services). - The law enforcement agencies of the State (including courts) must act in the interests of justice to reliably and fairly enforce the norms of criminal law in a manner that is consistent with the Constitution, statute, common law, moral, ethical and social values of society. ## A reliable and fair legal framework regulating the criminal justice system An effective criminal justice system requires a functional interdependency between criminal law, law of criminal procedure, and law of evidence, so that the institutional components of the criminal justice system act in the interests of justice to enforce these norms reliably and fairly in a manner that is consistent with Constitution, legislation, common law, moral, ethical, and social values of society. ## Criminal Law Criminal Law (substantive law/material criminal justice) provides for the content and meaning of criminal justice. It is primarily concerned with the definitions and particular requirements for specific ‘crimes’ (i.e. what constitutes a crime), regulating the principles relevant to determining criminal liability (wrongdoing), and it also tells us which punishment could be a suitable punishment in respect of a convicted accused. Criminal law provides legal certainty about what behaviour is considered criminal ('illegal’) ## Specific Crimes - One of the primary aims of criminal law is to prescribe what conduct constitutes a criminal offense by providing a definition and specific requirements for each crime. - Criminal liability requires that the wrongdoer's conduct must comply with (i.e. be the type of act described in) the definitional elements of the specific crime charged. **Self-study:** Research and study the definition and specific requirements for each of the following offences: murder, culpable homicide, assault, theft, robbery, arson, malicious injury to property, and rape. ## Law of Criminal Procedure Criminal procedure is part of the adjective/formal (procedural) element of criminal justice. It forms part of public law and, together with the law of evidence, it focuses on the fair and proper procedures used to decide criminal liability and consists of all the procedures necessary to enforce substantive criminal law. The core of this foundational concept is that ‘justice be done and be seen to be done’. ## Criminal Procedure - Criminal procedure plots the general course of criminal justice processes, including the pre-trial investigation; trial prosecution, adjudication, and sentencing; and post-trial procedural mechanisms. - During this process, the State acts with State authority in the interest of society in general and bears the onus (burden) to prove the guilt of the accused beyond a reasonable doubt. - All the while, the accused remains innocent until proven guilty. - *Criminal Procedure Act 51 of 1977 ("CPA")* is the most important source and sets out the rules on the formal procedure. ## Criminal Procedure - Criminal procedure consists of all the rules and practices governing: - the pre-trial investigation of crime (duties and powers of the police), - the functions of the prosecutorial authority to institute criminal proceedings, - the fair adjudication of criminal trials before criminal courts, - the post-trial sentencing of a convicted accused, - the appeal and review processes, - the punishment (e.g., incarceration) of a convicted accused. - Importantly, in these processes, the constitutional rights of the alleged offender must be safeguarded by imposing reasonable checks and balances on the procedural powers of the law enforcement agencies and courts. ## Purposes of the Law of Criminal Procedure - Criminal law, applied through criminal procedure, serves the following purposes in a society: - It maintains order in society by providing legal certainty regarding what people may and may not do, and the consequences thereof. - It protects various, individual and collective, societal interests against invasion or infringement. - It assists in the orderly functioning of society by separating the guilty from the innocent and punishing the guilty appropriately. - It serves to protect individual human rights of both the alleged perpetrator and the victim. ## Law of Evidence The law of Evidence determines what material may be presented as evidence, by whom, in what manner and its probative value. In the criminal justice system, the Law of Evidence regulates the proving of facts in a court of law by way of admissible evidence in order to establish the guilt or innocence of the accused. Together, Criminal Procedure and the Law of Evidence deals with the “process in the court and how to prove what is necessary to prove the commission of the crime”. ## Consider the following practical example of the interdependence of the substantive and adjective elements of criminal justice: **SUBSTANTIVE CRIMINAL LAW** prescribes that if it is alleged that X unlawfully and intentionally killed another human being, such conduct constitutes the crime of murder. **In terms of ADJECTIVE CRIMINAL PROCEDURE**, the presumption of innocence prescribes that before X can be punished for murder, such a crime must be properly investigated and tried. In this regard X is entitled to certain fundamental due process rights that the relevant state authorities must respect throughout the pre-trial, trial and after-trial processes. **The LAW OF EVIDENCE** regulates what material may be presented as evidence by the Prosecution during the criminal trial in order to prove X’s guilt. ## Interdependency Between Substantive and Adjective Criminal Justice There is an interdependency between defining the scope and content of criminal behavior and procedurally enforcing criminal liability and punishment for such conduct. The criminal justice system will lack legal certainty without criminal law; and … interdependency… will lack practical enforceability (i.e. unable to hold perpetrators responsible) without procedural rules and processes provided for through criminal procedure and law of evidence. ## Sources of the Law of Criminal Procedure - The Constitution and the Bill of Rights - Legislation - Common-law rules - Case law (judicial precedents) ## Sources of Criminal Procedure - Legislation is the most important source of the rules and principles of criminal procedure, particularly the *Criminal Procedure Act 51 of 1977 (“CPA”)*, as amended. - The Constitution is the highest source of procedural fairness, but not the primary source of criminal procedural rules. - Several Constitutional provisions that are either directly or indirectly applicable in procedural criminal matters, most notably the due process (procedural fairness) rights of the perpetrator - sec 35. ## Criminal Courts and the Jurisdiction of Criminal Courts According to sec 165 of the Constitution, judicial authority of the State is vested in the courts. A court’s ability to adjudicate a dispute is guided by the principles of jurisdiction. ## Jurisdiction in a Criminal Matter Criminal jurisdiction means the right (competence or authority) of a particular court to adjudicate on, and pass judgment over (adjudicative jurisdiction), a perpetrator who has committed an offence within the territorial area in which a court exercises such authority, and to enforce the imposed sentence (enforcement/sentencing jurisdiction). The foundational principles of jurisdiction are effectiveness and territoriality, further delineated based on the type and seriousness of the offence and the severity of appropriate sentence related to the offence, and appeal and review possibilities. ## Basic Principles that Determine CriminalJurisdiction of a Court - **A. Subject matter**- criminal matters can only be adjudicated and decided on by criminal courts - i.e., courts that have criminal jurisdiction. - **B. Principle of Effectiveness** - A court will only assume jurisdiction over an accused, and an offence, when it is able to give an effective and meaningful judgment. - **C. Principle of Territoriality** - In order to give an effective judgment, a jurisdictional connection, or link (connecting factor), must be established between the offence committed by a perpetrator and the territorial/geographical jurisdictional area of a particular court. ## Basic Principles that Determine Criminal Jurisdiction of a Court - **D. Severity of the offence and related sentence** - jurisdiction of a criminal court is also determined by the type and seriousness of the offence, and relatedly, the severity (extent) of the sentence the court is authorised to impose. - More severe crimes with heavier sentences will be dealt with by higher courts in terms of the hierarchy of courts (sec 166 of the Constitution). - Generally, the High Court has jurisdiction over all offences and may impose any sentence including a life sentence. - Regional courts have jurisdiction over all offences except treason, but may not impose a sentence of more than 15 years, except for murder, rape, armed robbery or armed hi-jacking. - District courts have jurisdiction over all offences except rape, murder and treason, and it’s sentencing limit is 3 years. ## Jurisdiction of South African Courts in Adjudicating Criminal (and criminal-related) Matters Based on the above categories, the various criminal courts in South Africa may exercise their jurisdiction as follows: - District Magistrate’s Courts - Regional Magistrate’s Courts - Divisions of the High Court of South Africa - The Supreme Court of Appeal (SCA) - The Constitutional Court ## Magistrate’s Courts - *Magistrates Court Act 32 of 1944* sets out the functions and jurisdiction of Magistrates courts. - Divided into the Regional magistrate’s court and the District magistrate’s courts, which has different criminal subject-matter jurisdiction based on the ‘severity’ or nature of the offence and the imposition of related sentences (regulated by s276 of the CPA and s92 of the Magistrate’s Court Act). - Extension of territorial jurisdiction - Section 90(2) of the Magistrates’ Courts Act allows a district or regional court to extend its jurisdictional reach by asserting jurisdiction over another district or regional division under specific circumstances. ## District Magistrate’s Courts - Deal with criminal and civil cases - Territorial jurisdiction over a magisterial district - Criminal - May hear less serious offences and bail applications. - Jurisdiction to try all crimes committed within their respective districts, except treason, murder, rape and compelled rape. - Sentencing jurisdiction – may impose the following sentences, inter alia: imprisonment (not exceeding a period of 3 years), periodical imprisonment, committal to a treatment centre, a fine (not exceeding an amount determined from time-to-time by the Minister, currently R120 000), correctional supervision. ## Regional Magistrate’s Courts - Deals with criminal and civil cases. - Territorial jurisdiction over a region, consisting of several districts. - May hear more serious offences than District courts and bail applications. - Jurisdiction to try all crimes committed within their respective regional division, except treason. - Sentencing jurisdiction – may impose life imprisonment for murder or rape, 20 years’ imprisonment for armed robbery or hi-jacking, and a maximum sentence of 15 years for common law offences (provided there is no prescribed minimum sentence); a fine (not exceeding an amount of R600 000); ## Divisions of the High Court of South Africa - Regulated by the Superior Courts Act and Constitution (S169). - Provincial territorial jurisdiction. - Jurisdiction in respect of all crimes (incl. treason), committed within their respective area, but usually only complex and very serious criminal cases. - May also hear criminal appeals from lower courts and criminal appeal cases decided by a single judge in the high court may be heard by a ‘full bench’ (3 judges). - Sentencing jurisdiction – may impose the same sentences as magistrate’s courts, and imprisonment (including life imprisonment), and a fine of any amount. ## Overview of the Typical Processes or Phases of Criminal Justice The CPA governs the procedures and related matters in criminal proceedings and regulates the phases of the criminal justice process. The process or phases involved depends on the specific circumstances of the case. ## Phases / Stages of Criminal Justice Process A criminal prosecution is divided into several administrative phases, viz. - the PRE-TRIAL INVESTIGATIVE STAGE, - a PRE-TRIAL PRELIMINARY HEARING STAGE, - the TRIAL PHASE (including the plea stage and the court’s verdict), & - POST-TRIAL PROCEDURES commencing with sentencing and followed by review and the possibility of appeal. Within these four stages there are several specific practical steps that must be followed by those involved. ## The 12 Basic Steps of a Criminal Prosecution: ### A. Pre-trial / Investigation Phase: 1. Complainant lodges a complaint with SAPS, which then opens a police docket and assigns a Crime Assessment System (CAS) number. 2. Criminal investigation - the SAPS is authorized by the CPA to investigate the offence, including visiting and examining the crime scene, contacting the victims and the witnesses of the crime and taking statements, gathering evidence, identifying suspects, obtaining assistance of experts such as forensic scientists (e.g., fingerprint or ballistics experts) or pathologists. - To facilitate this process investigating officers are authorized to take several investigative steps and exercise investigatory powers… - Searching and seizing evidence with warrant or without warrant. - Entry into premises to interrogate a person by consent, and entry into premises by reasonable force to interrogate a suspect. - Arresting a person with a warrant or without a warrant for the purposes of questioning (interrogation), and the use of reasonable force to achieve this aim. - Monitoring and intercepting private electronic communications – *RICA 70 of 2002*. - Taking fingerprints and body-prints, taking buccal samples, bodily samples and crime scene samples, on reasonable believe taking buccal samples for investigation purposes from suspect to be used as physical real evidence - Conducting an identity parade or photo line-up ### B. ...Pre-trial / Investigation Phase: 2. Criminal investigation - study *Magobodi v Minister of Safety and Security and Another* 2009 (1) SACR 355 (Tk). - The SAPS’ investigatory powers are crucial for crime control. However, the exercise of these powers may significantly infringe upon the fundamental human rights of individuals. Thus, a balance must be struck between the protection of the individual’s right and the maintenance of law and order. Accordingly, investigatory powers must be exercised without unreasonably or unjustifiably infringing upon the constitutional or procedural rights of suspects. In this way, everyone in society, as potential suspects, are protected from the excessive abuse of law enforcement authority ### A. …Pre-trial / Investigation Phase: 3. The NPA has the prosecutorial discretion to institute criminal prosecution (S20 of the NPA Act & S179 of the Constitution), which decision must be taken impartially, without fear, favour or prejudice based on the information in the docket. The prosecutor has a duty to prosecute if: - There is sufficient admissible evidence to provide a reasonable prospect of a successful prosecution (i.e., a prima facie case), & - There are no compelling reasons or clear and legitimate public interest, for a refusal to prosecute. ### B. Pre-trial Preliminary Hearing Stage: 4. An accused is formally charged with a specific offence and prosecutor must draft the charge sheet - see s35(3)(a) of the Constitution. - A charge must contain several necessary averments: - All the material and essential definitional elements of the alleged offence - study definitions of the crimes listed above; - the date, time, and place at which the offence is alleged to have been committed (to the extent available); - the victim(s), if any, against whom, and/or the property, if any, in respect of which the offence is alleged to have been committed; & - a description and details of the accused. ### B. Pre-trial Preliminary Hearing Stage: 5. An arrested accused must be brought before a court as soon as reasonably possible and must either be detained in custody or released on warning or bail - see s35(1)(d-f) of the Constitution. 6. Alternatively, in anticipation of trial, the suspect may be brought into the criminal justice system by written notice, summons, or indictment. (Accused must be in attendance to conduct the trial - see sec 35(3)(e) of the Constitution). ### B. ...Pre-trial Preliminary Hearing Stage: 7. The prosecution commences trial preparation, lodges and services the charge sheet. The matter will then be set down for trial. 8. Prosecution may arrange for preliminary postponements pending completion of police investigation. ## C. Trial / Criminal Trial / Trial on Merits Phase: 9. Arraignment and plea hearing is held, and the charge is put to the accused. E.g., a murder charge would be put to the accused (X) as follows: Count 1 - ‘In that, on or about the [date], and at or near [place], in the district of [area], the accused did unlawfully and intentionally murder [Y].’ - There are several pleas an accused may decide to plead in terms of section 106 of the CPA, most notably a plea of guilty (s 112) or a plea of not guilty (s 115) - provided it is done freely and voluntarily. - A plea of guilty is a confession of the allegations, leaving no dispute between the parties, and the accused may be sentenced (a formal and binding plea and/or sentence agreement may be concluded). A plea of not guilty is a denial of the charges. ## C. Trial / Criminal Trial / Trial on Merits Phase: 10. A public trial before an ordinary court is run with both parties able to call witnesses and lead evidence during examination in chief, cross-examination, and re-examination. Once both parties have closed their cases, the court must consider both sides of the case and weigh up all the evidence and arguments objectively in order to come to a reasoned verdict (judgment), which is either a conviction or an acquittal. Where the the prosecution (State) has proven the legal guilt of the accused beyond reasonable doubt, the accused is convicted, and the sentencing stage will commence. ## D. Post-trial Phase: 11. Sentencing procedures follow, which involves a further court hearing during which the sentencing court will consider all relevant evidence (mitigating and aggravating circumstances) in order to impose a just / appropriate / suitable sentence (punishment) in the particular circumstances of the case. The sentencing court has a wide discretion in determining the appropriate sentencing option (e.g., imprisonment, fine, community service, etc.) and (extent) of the sentence to be imposed, subject to several necessary restrictions (e.g., where relevant, the imposition of prescribed minimum sentences in terms of sec 51 of the Criminal Law Amendment Act 105 of 1997, as well as relevant previous sentencing precedents). ## D. Post-trial Phase: 12. Finally, the accused person has a right to a review or appeal - 35(3)(o) of the Constitution - during which the trial of the court a quo (court of first instance, i.e., the court that tried that case originally) is reappraised by a court of higher instance. - A review by a higher court is called for when there is a material irregularity in the manner (procedure) by which a judicial officer in the lower court a quo conducted the proceedings, preventing a procedurally fair trial. - An appeal is a complete rehearing without the leading of evidence, whereby a trial court’s conclusions on both the facts and the law may be challenged in a higher court. ## Participants in the Criminal Justice System Two perspectives: - Correct legal terminology to denote the alleged perpetrator, and - The affected persons and the role-players, functionaries, and institutions dedicated to upholding justice. ## Correct Legal Terminology to Denote the Perpetrator - It’s crucial to understand and proficiently use the accurate legal terminology when referencing the alleged perpetrator at various stages of the criminal justice process, viz. “arrested", "detained", & "accused". - These identifiers or descriptors are significant in determining the applicable due process protections outlined in sec 35 of the Constitution; specific rights are allocated to different categories of persons. - A person may fit into one or more of these categories and are thus entitled to the related rights. ## Correct Legal Terminology to Denote the Perpetrator ### Suspect - A person of interest in relation to the commission of the offence, has not been formally charged, and may or may not be in police custody for purposes of questioning. - "Suspect” is not explicitly afforded due process rights, is there any protection during questioning? - Compare the decisions in *S v Sebejan 1997 (1) SACR 626 (W)* and *S v Mthethwa 2004 (1) SACR 449 (E)* regarding the due process rights of suspects. ## Correct Legal Terminology to Denote the Perpetrator ### Arrested - An arrested person is someone who is taken into actual and lawful physical custody by the arrestor but has not been formally charged. - Entitled to the pre-trial rights listed in sec 35(1) of the Constitution. - Arrest = detention, thus arrested person will also be entitled to the rights listed in sec 35(2) of the Constitution. ## Correct Legal Terminology to Denote the Perpetrator ### Detainee / Detained Person - A detained person is any person who is deprived of their freedom of movement because they are under the effective control of a state authority (e.g., police). - Temporary physical control, e.g., stopped at a roadblock, or actual physical control, e.g., arrested suspect. - Entitled to the rights listed in sec 35(2) of the Constitution. - Police may “detain” for various other reasons, including: questioning (interrogation) a suspect of arrested person, awaiting trial prisoner, incarcerated sentenced prisoner. ## Correct Legal Terminology to Denote the Perpetrator ### Accused - A suspect or arrested person becomes an “accused” person once he/she has been formally charged by the NPA. - Accused persons are entitled to the rights listed in sec 35(3) of the Constitution. - In addition, those accused persons who have been arrested and are being detained in anticipation of trial, will also be entitled to the rights listed in sec 35(1) & (2) of the Constitution. ## The Intersection of the Descriptors is Evident: - a “perpetrator” may be associated with one of these descriptors, for instance an accused released on warning, or - a “perpetrator” may be associated with multiple descriptors simultaneously, depending on the situation, for instance, usually both arrested and detained concurrently, or they may be an arrested, detained, and accused simultaneously. The entitlement to procedural rights outlined in sec 35(1) - (3) hinges on the specific status of the individual in question. ## Other Legal Terminology Related to the Perpetrator ### Convicted Person - If the court convicts the accused (guilty), he/she is known as the “convict” and he/she is sentenced. A convict is entitled to at least the rights listed in sec 35(3)(m), (n) & (o) of the Constitution. A sentence may include a form of detention = convicted prisoner / sentenced prisoner - additionally entitled to the rights listed in sec 35(2) of the Constitution. ### Acquitted Person - If the accused is found not guilty (acquitted), he/she remains entitled the protection against double jeopardy - sec 35(2)(m) Constitution. ## Other Legal Terminology Related to the Perpetrator ### Defence Council / Legal Representation / Legal Practitioners - Criminal defence attorneys, advocates, or legal practitioners are tasked with representing the accused during their trial, presenting their case to the court, and fulfilling various criminal-law-related functions, to the best of their abilities. ### “State” - In criminal prosecutions, the term “State” is synonymous with the prosecution / *National Prosecuting Authority (NPA)* which has the power to institute criminal prosecutions against an accused - on behalf of society and in the name of the state - (State v Accused) - in terms of sec 179 of the Constitution. ## Affected Persons - **Victim** - person(s) directly wronged or aggrieved by the crime, may or may not be the complainant and their role is that of an ordinary witness. - **Complainant** is someone who makes a report of criminal wrongdoing and provides a detailed statement to the police regarding the facts and circumstances of the complaint. A complainant can be the victim or witness of an alleged crime, or the family member of a victim. - **Witness** - person who can provide direct or circumstantial eyewitness testimony about the alleged commission of an offence, or it may refer to an expert witness. State witnesses v defence witnesses v court witness. ## Due Process or Procedural Fairness Sec 35 of the Constitution “Due process” (procedural fairness) refers to due process of law, founded on principles of natural justice, and “refers to the right to be treated fairly, efficiently and effectively by the administration of justice”. ## Due Process Reflection - Do you think perpetrators in South Africa are granted an excessive number of protections? - Consider this example: Thabo was at a café when a robbery occurred. Surveillance footage captured Thabo entering the café just as the robbery started, making it appear as if he was involved. Witnesses saw him near the scene but didn't notice he was simply trying to avoid the commotion. Thabo was arrested and questioned by the police. - Whether justly or unjustly, any person can be implicated in the commission of an offence, bringing them into contact with crime control powers exercised by state agencies, which may severely infringe upon their rights. ## Due Process - “Due process in law” or “procedural fairness” implies that every person is entitled to fair and equal treatment during criminal justice processes. - Due process is fundamentally grounded in the principles of natural justice and the principle of access to justice, as enshrined in section 34 (s 34 applies to all legal proceedings). - In the context of criminal justice, arrested, detained, or accused persons have the right to have the criminal allegations against them adjudicated through a fair public hearing before an independent and impartial court. ## Due Process - Due process rights are not entrenched in sec 35 of the Bill of Rights, which provides for several substantive and procedural rights applicable to all criminal justice processes. - While constitutional (human) rights are generally available to everyone, due process rights specifically apply to individuals who are arrested, detained, or accused. - A person may fit into one or more of these categories and are thus entitled to the related rights - sec 35 (1), (2), and/or (3). - Because these descriptors are significant in determining the applicable due process rights (s35), it is crucial to identify and use the correct legal terminology when referring to the alleged perpetrator. ## Rights of Arrested Persons - sec 35(1) - Everyone who is arrested for allegedly committing an offence has the right- - a. to remain silent; - b. to be informed promptly- - a. of the right to remain silent; and - b. of the consequences of not remaining silent; - c. not to be compelled to make any confession or admission that could be used in evidence against that person; - d. to be brought before a court as soon as reasonably possible, but not later than- - a. 48 hours after the arrest; or - b. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; - e. at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and - f. to be released from detention if the interests of justice permit, subject to reasonable conditions. ## Rights of Detained Persons - sec 35(2) - Everyone who is detained, including every sentenced prisoner, has the right- - a . to be informed promptly of the reason for being detained; - b. to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; - c. to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; - d. to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; - e. to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and -f. to communicate with, and be visited by, that person's- (i) spouse or partner; (ii) next of kin; (iii) chosen religious counsellor; and (iv) chosen medical practitioner. ## Rights of Accused Persons - sec 35(3)… - Every accused person has a right to a fair trial, which includes the right- - a. to be informed of the charge with sufficient detail to answer it; - b. to have adequate time and facilities to prepare a defence; - c. to a public trial before an ordinary court; - d. to have their trial begin and conclude without unreasonable delay; - e. to be present when being tried; - f. to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; - g. to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; - h. to be presumed innocent, to remain silent, and not to testify during the proceedings; - i. to adduce and challenge evidence; ## …Rights of Accused Persons - sec 35(3) - Every accused person has a right to a fair trial, which includes the right- - j. not to be compelled to give self-incriminating evidence; - k. to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language; - l. not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; - m. not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; - n. to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and - o. of appeal to, or review by, a higher court. ## Procedural Rights of All Perpetrators - sec 35(4) & 35(5) - Sec 35(4) - the procedural due process rights in sec 35(1)-(3) must be promptly and clearly explained to an alleged offender by the police at the pre-trial stage and by a judicial officer at the trial stage, in a language understood by the person. - Sect 35(5) - Unconstitutionally obtained evidence - “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.” ## Application of Law to Facts X, a 19-year-old female student from the University of Johannesburg (UJ), was walking home when a dog belonging to Y attacked her. In defending herself, X shot and killed Y'