Review of proceedings in lower courts may be brought to the High Court by way of section 24 of the Supreme Court Act. Assistance, therefore, was derived from Canada. The application for postponement was therefore granted. A list of many of the prisons we attend in New South Wales. The Promotion of Access to Information Act is the national legislation that was enacted to give effect to the right to access to information. Taking into account, however, all the relevant factors, including. "Compelling reasons" include: Whatever method of securing attendance is adopted, there is an obligation to inform a probation officer of the fact of notice, summons or arrest, as the case may be, as soon as possible, but within a maximum period of 24 hours. There are time limits for noting appeals, but reviews have to be brought only within a reasonable time. If the accused had been the primary agent of delay, he should not be able to rely on it in vindicating his rights under section 25(3)(a): for example where he had sought postponements or delayed the prosecution in ways that were less formal. Various differences between civil and criminal prescription (like interruption, suspension and waiver), as well as the different policy considerations involved, lead Roberts to the conclusion that the Corpus Juris Secundum was correct in holding that criminal prescription confers a substantive right on the perpetrator not to be prosecuted. See S v Alexander. The DPP may at any stage apply to the court to stop all further proceedings so that prosecution may be instituted or continued at the instance of the State. If this is done, the practice is to mention in the list of witnesses that one or more names have been withheld. the effect of the delay on the administration of justice; the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued; and. It is important that the accused or his legal representative advance facts and submissions in mitigation of sentence: for example. [119], When an appeal against a conviction or sentence or order of a lower court is noted, this does not automatically suspend the operation of the sentence unless the court releases the convicted person on bail. The prosecutor may put the charge to the accused, even if such charge is not triable in the magistrate's court. where the accused has pleaded to the charge and the State or the defence is unable to proceed with the case, or refuses to do so, ordering that the proceedings be continued and disposed of as if the case for the prosecution or defence has been closed; the state shall pay the accused concerned the wasted costs incurred as a result of an unreasonable delay caused by an officer employed by the State; the accused or his legal advisor shall pay the State wasted costs incurred; or. This legislation introduced for the purpose of the inquest in In re Goniwe. With the passage of time, the memories of witnesses could dim, which could negatively impact on the trial and on the administration of justice. On the question of the admissibility of evidence obtained in violation of rights, see the entry on the law of evidence in South Africa. For the meaning of "hostile witness," and the effect of a declaration of witness as hostile, see, for example, Meyers Trustee v Malan[298] and City Panel Beaters v Bana. Section 51 sets out the objects of diversion, which are to, Section 52 provides that a case may be diverted if, after consideration of all the relevant material presented at a preliminary inquiry or trial, it appears. South Africa has a number of different types of courts. It should, Section 41 empowers a prosecutor to choose diversion instead of prosecution in the case of a Schedule 1 offence. The prosecution may be stopped after the plea, however, provided that the prosecutor has the necessary authority from the DPP. In terms of section 105A(9)(d), in the event of withdrawal, there must be a trial de novo before a different presiding officer (but the accused may waive his right to a different presiding officer). Sections 72 to 78 set out various sentencing options. McCarthy also contended that she was entitled to the protection of section 25(3)(a) of the Interim Constitution: the right to a fair trial, which included the right to a trial within a reasonable time. Appeals and applications for leave to appeal must be noted and followed up within the times and other requirements of the legislation and the rules of court. The court held that a successful application by the State for the setting aside of an acquittal, based on the grounds that the prosecutor had failed to obtain the necessary approval before stopping the proceedings, would be tantamount to giving the State "a second bite at the cherry." private prosecution by a person or statutory body upon whom or upon which the power to prosecute is expressly conferred by statute. It also has wide-ranging provisions for forfeiture of assets. The applicant in that case had been expelled from his post in the Directorate of Special Operations, and subsequently had been prosecuted for defeating the ends of justice on various counts arising from alleged offences committed in the course of his duties as an investigator. Dilatory Plea: In common-law-pleading, any of several types of defenses that could be asserted against a plaintiff's Cause of Action , delaying the time when the court would begin consideration of the actual facts in the case. This page was last edited on 17 February 2021, at 12:28. In general, what may be seized is discussed in section 20 of the CPA: anything that is. See S v Chabedi. [347] Ultimate responsibility for ensuring that all copies of the record are properly before the High Court lies with the accused (now the appellant) or his attorney. Further particulars may only be requested before the commencement of evidence. He might understandably believe that the court wanted him or her to be convicted. that it is in the interests of society that guilty persons should not evade conviction by reason of an oversight or because of a mistake that could be rectified; that an accused person, deemed to be innocent, was entitled, once indicted, to be tried with expedition. After the plea, however, the case may no longer be withdrawn. Note that the State not obliged to provide the lawyer of the accused's choice. [48][49][50][51], Bail applications are always matters of urgency. s 19 sets out how the value of the defendant's proceeds are calculated: in essence the payments or other rewards received. It is the way in which an accused is transferred from a lower court to a High Court for trial. It must be on the grounds that. The accused is not entitled to indefinite postponements merely because his first-choice legal representative is not available for a long time, or so that he can earn enough money to afford the lawyer of his choice. In this regard, the court has a discretion. Prosecutors usually make their decisions on evidence gathered by the police; in exceptional cases, by special investigative agencies. It further provides that no-one may interfere improperly with the National Prosecuting Authority in the performance of its duties and functions. The court held that the delay in this instance was not unreasonable. There are exceptions to the principle that a search warrant is required. The court, therefore, could not assess the veracity of the allegations, whether Singh had a substantial and peculiar interest, and whether such interest arose out of some personal injury. All proceeds of asset forfeiture go into this account. If he does not, that person will be precluded from proceeding civilly in connection with the same injury. and filed a plea. See, however, S v Western Areas Ltd, which seems to indicate that if there are very good grounds for approaching the SCA, it may be considered. The defendants sought discovery of certain documents from … [404] This means that all process in connection therewith is also issued in his name. Sections 30 to 36 deal with the mechanics of the realisation of property after the confiscation order. [363] The Provincial or Local Division gives leave to appeal: If leave is refused, the appellant may approach the SCA for such leave. on the ground that such access was not justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial; on the ground that it had reason to believe that there was a reasonable risk that access to the relevant document would lead to the disclosure of the identity of an informer, or disclosure of State secrets; or. The search warrant is to be executed by day, unless the warrant clearly states the contrary. If certain documents are admissible as evidence on mere productionâthat is, without having a witness hand them in and explain themâthe prosecutor will read them out. There are, of course, other asset-forfeiture provisions, such as under section 34 and 35 of the CPA and section 20 of the Counterfeit Goods Act.[543]. When the State relies on common purpose between the accused and others, the State is obliged, if requested, to disclose the facts on which it will rely to draw inference of common purpose.[507]. The court now proceeds to consider the sentence agreement. an "instrumentality of an offence" referred to in Schedule 1; an instrumentality of a Schedule 1 offence; or. The court held that Singh did not fit the requirements for private prosecution, so the DPP was not obliged to issue the certificate. As certain State witnesses were unavailable during that time, the prosecution applied for a further postponement, so the trial was postponed to December 1996. The rules of evidence for the purpose of bail are relaxed.[55]. [201][202], In terms of section 112(1)(b), the accused pleads guilty and, The presiding officer questions the accused with reference to the alleged facts to establish whether or not the accused admits the allegations in the charge. As this right falls under the entitlement to a fair trial, a deliberate delay in bringing an accused before court will not be entertained. Ralekwa v Minister of Safety and Security, Ramphal v Minister of Safety and Security, Moloi v Minister for Justice and Constitutional Affairs, Director of Public Prosecutions, Natal v Magidela, Sanderson v Attorney-General, Eastern Cape, McCarthy v Additional Magistrate, Johannesburg, Mnyungula v Minister of Safety and Security, Beheermaatschappij Helling I NV v Magistrate, Cape Town, Nel v Deputy Commissioner of Police, Grahamstown, Mistry v Interim National Medical and Dental Council of South Africa, Magajane v Chairperson, North West Gambling Board, Investigating Directorate: Serious Economic Offences and Others v Hyundai, Hlantlalala & Others v Dyanti NO & Another, Phato v Attorney-General, Eastern Cape; Commissioner of the South African Police Services v Attorney-General, Eastern Cape, Shabalala & Others v Attorney-General of Transvaal, Behrman v Regional Magistrate, Southern Transvaal, North Western Dense Concrete CC v Director of Public Prosecutions, Western Cape, Van Eeden v Director of Public Prosecutions (Cape), National Forensic DNA Database of South Africa, Charles v Minister of Safety and Security, Democratic Alliance v President of the Republic of South Africa and Others, Director of Public Prosecutions, KwaZulu-Natal v The Regional Magistrate, Vryheid and Others, Director of Public Prosecutions, Natal v Magidela and Another, Director of Public Prosecutions, Transvaal v Mtshweni, Ex parte Minister of Justice. Was it by a court of competent jurisdiction? During the trial, he learned that the witness would not be called by the Crown, and sought an order that the witness be called, or that the Crown disclose the contents of the statements to the defence. [3] The three special pleas … In terms of section 105A(10), in the event of a trial de novo after withdrawal, the agreement is null and void, and no regard is to be had to negotiations, agreement, etc., unless the accused consents to the recording of such as admissions. Prison Visits. The papers before me indicate that the child is alleged to have sustained a severe head injury as … "establish whether a child may be in need of care and protection in order to refer the child to a childrenâs court in terms of section 50 or 64;", "estimate the age of the child if the age is uncertain;", "gather information relating to any previous conviction, previous diversion or pending charge in respect of the child;", "formulate recommendations regarding the release or detention and placement of the child;", "where appropriate, establish the prospects for diversion of the matter;", "in the case of a child under the age of 10 years or a child referred to in section 10 (2) (b), establish what measures need to be taken in terms of section 9;", "in the case of a child who is 10 years or older but under the age of 14 years, express a view on whether expert evidence referred to in section 11 (3) would be required;", "determine whether the child has been used by an adult to commit the crime in question;" and, "provide any other relevant information regarding the child which the probation officer may regard to be in the best interests of the child or which may further any objective which this Act intends to achieve. The following factors can be relevant: S v Acheson is of general interest in this regard. Care should be taken when the accused asked to admit facts outside his personal knowledge. The obligation to disclose is subject to a discretion with respect to the withholding of information, and to the timing and manner of disclosure. [90] The court hearing such a bail application, when the offence is a Schedule 5 or 6 offence, must conduct a careful enquiry before deciding to release the accused on bail. its effect, either in general or in this specific case, on the community or environment, etc. The court acknowledged that the Constitution ranks the right to a speedy trial at the forefront of the requirements for a fair criminal trial. if generally it is in the interests of justice. For a Schedule 6 offence, the accused has to adduce evidence to satisfy the court that exceptional circumstances exist in which the interests of justice permit his release. Therefore, the court held that Singh had failed to discharge the onus of proving that he was a private person falling within the ambit of section 7(1). The accusation and its proof are state-driven, with a state-appointed prosecuting authority. [459] No person may lawfully possess drugs or an unlicensed firearm, for example. If the retrospectivity is struck down, all crimes occurring between Makwanyane and the amendment to section 18 will fall into a lacuna. In considering sentence, the court should have regard to the famous Zinn[308] triad: Where the accused is the primary caregiver of young children, additional considerations apply,[309] but see S v Isaacs,[310] where it was suggested that court should have more regard to the interests of the victim. The types of situations described above frequently take the following forms in practice: Also noteworthy is the unusual case of Minister of Safety and Security v Gaqa, where the High Court granted the police an order permitting the surgical removal of a bullet from a suspect's leg to compare it with a firearm used on the scene of the crime. The rule against duplication of convictions is sometimes wrongly called the rule against splitting of charges. They perform High Court prosecutions, appeal from lower courts, and also spend much time assisting with the decision process in cases referred to the DPP for decision. Although section 84(2) of the CPA states that it is sufficient to describe a statutory charge in the words of the statute, this cannot be used as justification for a charge that would otherwise be objectionable. In England, this is referred to as a habeas corpus application; that term, indeed, is sometimes used in South African law.[43]. [440] Search warrants may generally be issued only by a magistrate or a justice of the peace. Here, too, the DPP must consult the victim and the investigating officer. [577] Of particular note are the following: Section 6 ranks the seriousness of possible offences a child can commit according to three groups: Note that these are schedules to CJA, not CPA. See S v Cooper. whether the death was brought about by an act or an omission involving an offence by any person. [22] Failure to comply with such a request constitutes an offence.[23]. When some accused pleads guilty to one or more charges, and others plead not guilty, the practice is to grant separation. There is no exact meaning to the term "substantial injustice." [198], In terms of section 112(1)(a), the accused pleads guilty to the offence and conviction follows on the plea only. Special procedural rules apply to either type of state appeal. The DPP requires leave to appeal. The medical officer of a prison and a district surgeon do not need a police request to proceed in this way, but other medical practitioners and nurses do. Thus it is considered to be a reasonable limitation on the right to access to the police docket. Prevention and Combating of Corrupt Activities Act 12 of 2004. [133], Even if there is no indication that the convicted person will try to evade justice, bail may be refused on the ground that the prospects of success on appeal are small. Courts in South Africa (loose leaf) vols 1 & 2, Juta. The basic rules governing questioning are as follows: For an example of grossly irregular questioning, see S v Williams[214]. The SCA said no: The term had to be strictly interpreted. places where the convicted person may not go (for example, to any airport); and. ", "'restorative justice' means an approach to justice that aims to involve the child offender, the victim, the families concerned and community members to collectively [, "'symbolic restitution' means the giving of an object owned, made or bought by a child or the provision of any service to a specified person, persons, group of persons or community, charity or welfare organisation or institution as symbolic compensation for the harm caused by that child.". In S v Zuma, the accused stood trial on one count of rape. November 1991 to the time of the present application. a husband, if the offence was committed in respect of his wife; the wife or child, or (if there is no wife or child) any of the next of kin of any deceased person, if that person's death is alleged to have been caused by the offence in question; and. He brought an appeal on several grounds, but the most important for present purposes is his contention that certain persons whose names were mentioned in the evidence as prostitutes who resorted to this place were not called as witnesses. If the trial is in the High Court, there must be summary of the substantial facts accompanying the indictment. All prosecutors are under a heavy ethical burden. Note the apparent exception in cases such as death ensuing after the completion of a trial on a charge of assault.[511]. where he is unable to make any finding under section 16(2); where judicial officer makes a finding that someone is. A special plea, which destroys a cause of action, is called a plea in abatement (or a plea in bar) and one which postpones the cause of action, a dilatory plea. the possibility of incriminating evidence from the co-accused. In Sanderson v Attorney-General, Eastern Cape, the Child Protection Unit of the SAPS had received information, at the end of October 1994, that the appellant, the deputy head of a primary school and a well-known singer in local church and musical entertainment circles, had allegedly sexually interfered with two girls who, at the time, had been standard-five pupils at his school. Furthermore, section 73 of the CPA states that an accused is entitled to assistance after arrest and at criminal proceedings. This section deals with asset forfeiture under the provisions of POCA only. If the accused cannot afford a lawyer, he is entitled to have a lawyer assigned by State at the State's expense, but only if substantial injustice would otherwise result. If such person is not entitled to it, or may not lawfully possess it, the article is to go to the person entitled thereto, if he may lawfully possess it. Plea bargaining, in law, the practice of negotiating an agreement between the prosecution and the defense whereby the defendant pleads guilty to a lesser offense or to one or more of the offenses charged in exchange for more lenient sentencing, recommendations, a specific sentence, or a dismissal of other charges. [316] Juveniles (those under eighteen years of age) may be given special sentences. Yengeni filed a review application against sentence on the basis that the NDPP and Minister of Justice had agreed to see to it that he would be sentenced to no more than a fine of R5,000 if he pleaded guilty to fraud. The period of 48 hours may be extended in the following circumstances:[40], The Constitution enshrines this principle.[41]. In the light of this alteration in the law, section 9 is strange: It talks about a child under the age of ten who commits a crime. It regulates comprehensively the entire spectrum of criminal procedure for children (people under eighteen years) from the pre-trial stage through to appeal. an amount such court may determine as security for the costs which may be incurred in respect of the accused's defence to the charge. In terms of section 302, the following cases go on automatic review: It is the individual sentence on each count that is taken into consideration when determining whether the sentence exceeds these limits, not the total effect of all the different sentences on each count. the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay. The accused must give reasonable notice to the prosecution of his intention to object to the charge, unless the prosecution waives notice. [216] Generally on section 112(2), see S v Nixon. [39] If an arrestee is not released, he must be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest. "[545] Although these proceedings are "conviction-based," they are treated as civil proceedings. The summary of substantial facts must be present unless the accused pleads guilty at a preliminary appearance at a lower court and the case is therefore merely sent for sentencing. The court held that, whereas in Canada the State had a discretion to withhold information which would ordinarily be disclosed, the South African Constitution's inclusion of section 23 means there is a protected right to information. What it probably means to refer to is a child under the age of ten who committed an act that would have amounted to a crime but for the fact that the child was under the age of criminal capacity. Certain documents were seized and were thereafter, at all times, under the control of the State. any person found committing an offence on property owned or lawfully occupied by the private person. In assessing the adequacy of particulars, the trial court may have regard to a summary of the substantial facts. The prosecution is instituted in the name of the prosecuting body: Makana Municipality v Smuts, for example. that the arrestee will submit to custody; that he must have his body touched by the arrestor; or. [384] In practice, judges intervene in this way after the magistrate or regional magistrate in question, or a colleague or superior, or the DPP, discovers that something is wrong and brings it to the judge's attention, or even after the judge gets information from outside: from the press, for example, or from a concerned member of the public. See Young v Minister of Safety & Security. One such exception is where the searched person gives his consent. 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