Criminal Procedure Of South Africa PDF

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CRIMINAL PROCEDURE CHAPTER 1 INTRODUCTION THE PLACE, SOURCES AND PHASES OF CRIMINAL PROCEDURAL LAW Define criminal procedure and indicate its place? Criminal procedure is a branch of procedural law containing rules concerning how to punish people who contravene the norms of criminal law. It is the p...

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CRIMINAL PROCEDURE PRE-TRIAL

CHAPTER 1 INTRODUCTION

THE PLACE, SOURCES AND PHASES OF CRIMINAL PROCEDURAL LAW Define criminal procedure and indicate its place? Criminal procedure is a branch of procedural law containing rules concerning how to punish people who contravene the norms of criminal law. It is the procedure to be followed in punishing criminals. Criminal procedure regulates:  the workings of the entire prosecutorial machinery – the courts’ structure,  the structure of prosecution, the position of suspects or accused persons,  police powers,  pre-trial procedure, detention, bail, charge sheets/indictments, pleading,  the trial, verdict, sentencing,  post-trial remedies (such as appeal and review), and  executive action (ie mercy, indemnification and free pardon). The law of evidence is very closely connected with criminal procedure; it regulates the manner in which relevant issues may be proved in court. Has the Constitution had a significant effect on criminal procedure? The Constitution Act 108 of 1996 has fundamentally changed the legal order in SA; The Constitution is supreme, all acts of parliament are subject to it; The Constitutional Court is the highest court in the land; Acts of parliament which clash with the Constitution (Bill of Rights) may be challenged in court;  Criminal procedural rules must be consistent with the Bill of Rights or they will be declared invalid.    

What is meant by the double-functional nature of criminal procedure? Many rules of criminal procedure are double-functional in the sense that apart from regulating procedure, they also operate as grounds of justification in substantive law, ie substantive criminal as well as civil law. For example; when a police officer lawfully/legally searches, or arrests a suspect , the act of lawful searching, or arrest, is both a regular procedural action and a lawful limitation of the suspect’s right to privacy, or dignity and freedom. In terms of substantive law the suspect cannot charge the peace officer with an offence or sue him in a delictual matter. However; if the search, or arrest, was illegal (i.e. it was not permitted by the law of criminal procedure), then, in terms of criminal procedure and the consequences of procedural actions, the procedural/evidential consequences of the action will be that the evidence thus obtained will not be admissible (i.e illegally obtained evidence); the substantive consequences may be a criminal charge, and/or an action for damages against the police officer.

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Also grounds of justification in substantive law may also be double-functional and may be used to great effect in criminal procedure. If a peace officer may lawfully arrest a suspect and the latter attacks the officer, the officer may rely on the criminal law ground of justification called self-defence and defend himself. While self-defence as such is primarily a ground of justification in substantive criminal and civil law (meaning that action which would otherwise be unlawful is rendered lawful in the circumstances), it here also empowers the officer to act in a criminal procedural sense. Is Criminal Procedure a system? Criminal procedure should be viewed as a system, namely a step-by-step process which moves along according to set legal rules. The various stages in the process have their own characteristics. Later stages are also to a large extent dependent upon earlier stages. If, for instance, poor quality work done by the police in the investigatory phase (e.g. a coerced confession) is fed into the trial phase by the prosecution, it may contaminate the trial and even, if it is not excluded at the trial, have repercussions at the appeal or review stage, leading to the eventual acquittal of the accused. Pre-trial criminal procedure is accordingly just as important as trial procedure. The various phases of the criminal process are dependent on each other:

The INVESTIGATION/PRE-TRIAL STAGE leads on to the TRIAL STAGE leads on to the SENTENCING STAGE leads to the APPEAL/REVIEW STAGE.

What are the differences between a civil case and a criminal case? Civil Law i) ii) iii) iv)

Private law Pleadings Plaintiff Damages

Criminal Law Public law Charge sheet Accused Imprisonment

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BASIC PRINCIPLES MODELS OF CLASSIFICATION 1.

Accusatory and Inquisitorial Models

The differences between these two models is to be found in the functions of the judge, prosecution and the defence. Inquisitorial model: i) The judge (dominus litis) actively conducts and controls the questioning of witnesses and the accused. ii) The questioning of the arrested accused at the pre-trial stage is conducted by an investigating judge (in conjunction with the police). iii) At trial the presiding judge does most of the questioning , not the prosecution or the defence, who are sidelined. iv) All relevant evidence is admissible and there is no cross-examination. Accusatorial model: i) The judge is neutral (a detached umpire), objective and impartial. ii) At the pre-trial stage the police do all the investigatory questioning. iii) The prosecution is dominus litis, by deciding on the charge and the appropriate court. iv) At trial, the contest is a debate between two equal parties, the state and the defence, involving examination-in-chief and cross-examination. v) Some kinds of relevant evidence are excluded from trial by artificial exclusionary rules and privileges. 2.

Due process and crime control models

Due process model (usually found in an accusatorial system): i) The suspect is a full legal subject with rights (dignity, privacy) and powers (access to legal advice, right to silence, etc). ii) The suspect has complete procedural power whereas the state powers are limited by law and the constitution. iii) The most important and unlimited power for the suspect is the presumption of innocence which places a burden of proof on the state. Criminal control model (usually but not always an inquisitorial system): i) Crime control is exactly the opposite of due process, the state has absolute and unlimited power to prosecute, whereas the suspect has limited procedural rights. ii) The suspect is not a full legal subject, is a mere object of inquiry, and the state is all powerful. iii) In an extreme crime control model, there is a presumption of guilty and torture, involuntary confessions, prolonged detention is allowed. Note: No real-life legal system conforms to the above theoretical distinctions, for example, South Africa is an accusatorial (due process) system with certain inquisitorial elements. For example the Child Justice Act includes many

4 inquisitorial elements – the preliminary inquiry, and bail applications. In the Criminal Procedure Act a bail application hearing is also inquisitorial in procedure 3.

Balance of Interests

Two social interests need to be balanced One of the great dilemmas of our criminal procedure law is how to balance two social interests that tend to be mutually exclusive, namely;  society’s interest in individual freedom on the one hand, and  society’s interest in the effective control of crime Rights and powers An accused person has rights; but also has duties, for example the duty to submit to lawful arrest. The content of a right of an accused is in inverse proportion to a power of the state;  the greater or stronger the state power (ie the power to search), the smaller or weaker the accused’s rights (ie right to privacy). If the state were to have absolute powers, it would probably be able to curb criminality to a very large extent, but we would be living under a tyranny and we would have no rights; we would be objects, not legal subjects.  If the individual’s rights, on the other hand, were absolute, the state would be powerless and unable to cope with crime or operate a criminal justice system.  One of the tasks of the law of criminal procedure is to devise a balance between powers and rights which makes life bearable and acceptable to citizens and which nevertheless can control crime at a tolerable level A reasonable balance of interests A reasonable balance must be found between two competing community interests, viz the community’s interest in crime control and the community’s interest in fair treatment of its members. The rules of criminal procedure and the relevant constitutional provisions must give enough powers to the police so that they can operate with an acceptable measure of efficiency. ( Crime control and prevention depends more on effective policing than on severe punishment). This dilemma of constitutional law and the law of criminal procedure accordingly requires compromises: ‘It is to the public good that the police should be strong and effective in preserving law and order and preventing crime; but it is equally to the public good that police power should be controlled and confined so as not to interfere arbitrarily with personal freedom’.

Example We shall give an illustration of how a balance is struck. It should be realised that the converse of a police power is a duty on the part of the citizen to submit; the exercise of the power diminishes or shrinks the citizen’s rights, albeit often only temporarily. If a peace officer has reasonable grounds for searching a suspect and on the suspect’s premises finds the relevant objects and seizes them (and all the other legal requirements for a lawful search and seizure are complied with), the suspect will not be able to sue the officer or the state if it later turns out that the seized objects were not stolen property and that the suspect is innocent. When the exercise

5 of police powers is reasonable and lawful, the innocent citizen’s property rights and right to privacy diminish in inverse proportion to the police powers and the citizen simply has to submit to, or tolerate, the state action. Thus it is possible for an innocent person to be arrested, searched, fingerprinted and lined up for an identification parade quite lawfully; if the criminal procedural requirements have been met, he has a duty to submit. If, on the other hand, the police acted unlawfully by going beyond the provisions of law or by not complying therewith, the suspect has a whole variety of remedies, such as resistance, suing for damages, obtaining an interdict, instituting the rei vindicatio to get his property back, laying criminal charges against the police, as well as other possibilities. THE CONSTITUTION AND CONSTITUTIONALISM In terms of the Constitution (Act 108 of 1996) the Constitution and the Bill of Rights (contained in chapter 2 of the Constitution) create a Higher Law. Parliamentary laws (i.e. such as the Criminal Procedure Act & Child Justice Act) are subject to scrutiny and challenge in the Superior Courts. The Constitution and the Bill of Right must be interpreted authoritatively – this is called the principle of justiciability. Zuma 1995 (4) BCLR 401 (SA) emphasises that the Constitution is to be interpreted so as to give clear expression to the values it seeks to nurture. Constitutionalism Constitutionalism consists of a number of foundational principles of which the most important are the “rule of law” and the legality principle required by a constitutional state to function effectively. Other important principles include the presumption of innocence, right to silence, right to legal representation and juridical guilt. Constitutionalism has the following consequences for a constitutional state:  It is not important to secure a verdict of guilty at any cost and by any means whatsoever,  The principle of reasonableness as explained above (and further in the notes below) requires that a reasonable balance be found between the procedural rights of the accused and the state’s interest in security and preservation of law and order.(S. 36 limitation clause – we can limit a right so long as it is reasonable in an open and democratic society – therefore we can arrest, IF reasonable suspicion)  It is important that the rules of evidence and criminal procedure law be complied with according to the entrenched rights in the Constitution.  It also means that the burden of proof generally falls on the state to prove the guilt of the accused beyond reasonable doubt (see section 35) TWO FUNDAMENTAL RIGHTS (in the constitution): (1)Presumption of innocence (a fundamental right in sec 35(3)(b) of the Constitution)  Due to the presumption of innocence, every person is regarded as innocent until proven guilty and convicted by a court of law, through compliance with the rules of evidence and criminal procedure.  A conviction is an objective and impartial official pronouncement that a person has been proved legally guilty by the state (prosecution) in a properly conducted trial, in accordance with the principle of legality, i.e. in a trial where the state obeys the rules of criminal law, criminal procedure, evidence, and the Constitution. (No crime without a law – no punishment without a law)

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The presumption of innocence consists of four basic elements: (a)

Juridical guilt

The purpose of criminal procedure is to find the truth, in order to convict the guilty and release the innocent. However a distinction should be drawn between factual truth, moral truth, absolute truth and legal (juridical) truth. Legal truth is sometimes different from factual truth, i.e. you may know factually that the accused is guilty of a crime but do not have enough evidence to establish truth beyond a reasonable double (juridical truth). The presumption of innocence requires that juridical quit be proved beyond a reasonable doubt. (b)

Beyond a reasonable doubt/burden of proof

 In order to obtain a conviction, the prosecution must prove the accused’s guilt beyond a reasonable doubt.  The onus or burden of proof rests on the prosecution because of the abovementioned presumption of innocence regarding the accused. This means that an accused person does not have to prove that he is innocent.  The prosecution must prove every element of a crime by presenting concrete and admissible evidence in order to establish prima facie that the accused is guilty (c)

Onus and presumption of law

The presumption of innocence has a profound impact on the validity of presumptions in the law of evidence (which, of course, is closely related to the law of criminal procedure) which purport to shift the burden of proof (onus) to the accused. For instance, in Zuma 1995 (1) SACR 568 (CC), Bhulwana 1995 (12) BCLR 1579 (CC), Mbatha 1996 (3) BCLR 293 (CC), and Scagell v Attorney-General of the Western Cape 1996 (1) BCLR 1446 (CC) statutory presumptions which shift the onus from the state to the accused (creating a reverse onus) were struck down by the Constitutional Court since they infringed the right to be presumed innocent until the state proves guilt above reasonable doubt. (d)

The ethics of defending the guilty

The accused is by law presumed innocent and therefore is by reason of the principle of legality and due process entitled to legal representation. The onus of proof rests on the prosecution and function of the defence lawyer is to check and challenge the prosecution’s performance. (2)Right to silence/Privilege against self-incrimination (s35(1)(a))  Related to the presumption of innocence is the rule that an accused can never be forced to testify; he has a right to silence, which is also called his privilege against self-incrimination or his right to a passive defence.  This applies to the pre-trial stage (ie the investigative or police phase, as well as the pleading phase), the trial phase and also the sentencing stage – Dzukuda 2000 (2) SACR 443 (CC).  Accordingly, the Constitution guarantees the right of every arrestee to:  remain silent (s35(1)(a))  and not to be compelled to make a confession or admission which could be used in evidence against him or her (s35(1)(c)),

7  as well as the right of every accused to remain silent and not to testify during proceedings (s35(3)(h) and (j)). The interrelatedness of the presumption of innocence and the right to silence is apparent in section 35(3)(h) and was explored in S v Zuma 1995 (4) BCLR 401 (SA), which declared unconstitutional the principle of a reverse onus. The presumption of innocence is the basis for the rule that the onus in criminal cases should always rest on the state. A person who exercises his right to silence at his trial should accordingly not be penalised for the exercise of the right and;  no evidentiary inference should be drawn against his decision not to testify, for several reasons:  first, no such inference can be drawn, for there may be a multitude of reasons why he does not wish to testify (he may think the State case is so weak that it does not merit an answer; he may not trust the court or legal system, or be afraid or ignorant as to legal strategy.  Secondly, no logical inference can be drawn from silence.  Thirdly, this does not mean that silence at trial cannot be damaging to the accused, i.e. if the accused through his/her silence fails to rebut a prima facie case produced by the prosecution, the likelihood of a guilty conviction becomes stronger. (3)Other procedural rights Most of the additional rights of accused persons flow from the following fundamental procedural rights:  the presumption of innocence;  including the right to silence/privilege against self-incrimination and the status of the accused as legal subject;  coupled with the notion of legality (ie that the state is not absolute, but is limited or ruled by law). Flowing from the presumption of innocence – right to silence – principle of legality are the following additional constitutionally defined procedures set out in s 35 of the Constitution:  THE RIGHT TO LEGAL REPRESENTATION (see further below- chapter 4)  the right of the accused to be informed of these rights and about the reasons for restrictions of his rights (eg the reasons for arrest, or the contents of a search warrant);  the right to pre-trial release (bail, etc);  the right to contact family, friends and counsel upon arrest;  the right to a specified place of detention (the accused must be locatable in order to effectively exercise his other rights);  the right to silence at the interrogation;  the right to an interpreter;  the right to obtain a copy of a search or arrest warrant;  the right to be brought speedily before a judicial officer – first appearance  the right to be fully informed of the charges;  the right to have any pre-trial procedure (ie arrest, search, bail) conducted upon principles of reasonableness

CONSTITUTIONAL REMEDIES (for the infringement of procedural rights)

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The principle of legality states that in the interest of society, the police should act lawfully and that a meaningful control should be exercised over the actions of the state. The conduct and actions of law enforcement officials must conform to the general requirements of the common, statutory and constitutional law. The principle of legality requires judicial supervision and control over the activities of law enforcement officials and a strong independent judiciary is a guarantee for the maintenance of individual rights. A strong, independent judiciary also allows for access to legal remedies. Remedies for the infringement of fundamental procedural rights are:  A writ of habeaus corpus. To prevent unlawful detention an order may be obtained forcing the state to produce the person (body) of the detainee before the court at a certain date and time.  A civil action for damages. Delictual claim for damages in respect to wrongful arrest and detention.  A possible criminal charge - against the police officer who acted unlawfully.  Interdict. To prevent the state from acting in a harmful manner towards the suspect or detainee.  Mandamus. A positive order forcing the state to perform its duty towards the suspect or detainee.  The exclusion from trial of illegally obtained evidence. A constitutional rule which prevents the state from introducing at trial any evidenc...