Criminal Procedure of South Africa PDF

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Pre-Trial, Trial & Post Trial or Sentencing Procedure...

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CHAPTER 12 - INDICTMENTS AND CHARGE SHEETS 1. LODGEMENT AND SERVICE OF INDICTMENTS AND CHARGE SHEETS Introduction:  (Indictment – High Court) (charge sheet – magistrate’s court)  S32 of Constitution: Everyone has the right of access to any information held by the state and any other person and that is required for the exercise of protection of any rights.  Thus, accused is entitled to access all documents in the police docket (Shabalala v Attorney-General). (Except in terms of the Promotion of Acces to Information Act s 39 – where a state official may refuse access if it is prejudicial to the police investigation).  The accused has the right to be informed of the charge with sufficient detail to answer it (s35(3)(a) of Constitution) (Petersen 2003).  First Golden Rule: Indictment/charge sheet should inform accused in clear,and unambiguous language of the nature of the charge to be met (S v Pillay). In Superior Courts (s 144): Having decided to indict accused, the DPPdraws up the charges andlodges awritten indictment with the registrar of the High Court, who will hand it over to a designated officer to serve on the accused.  S144: The indictment contains:  The charge sheet against accused (the offence the accused is alleged to have committed);  Date and place of offence;  Personal particulars of accused;  Asummary of the essential facts of the case is attached to the indictment (unless the summary will be prejudicial to the administration of justice or the security of the state) (Mpetha 1981);  A list of names and addresses of persons the DPP intends calling as witnesses (unless DPP believes that the witnesses may be intimidated or tampered with).  The state is not bound by the summary of facts and can lead evidence which contradicts it.  The indictment (together with notice of trial) must then be served on accused at least 10 days before the date of the trial, unless accused agrees to a shorter period. 

In Lower Courts (s 76): S76(1): a written charge sheet is drawn up by a prosecutor and is lodged with the clerk/registrar of a district/regional court, but unlike the indictment, the charge sheetis not served on accused but is presented to the accused in court.  Accused is usually brought to court on written notice by summons or under arrest.  The summons must be served at least 14 court days before the date of the trial, but no such time limit applies to the charge sheet. 

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Usually the summons will have the written charge sheet attached to the summons when it is served on the accused, but in practice this is only done for minor offences or where the investigation is complete.  For serious offences, or where the investigation is incomplete, the prosecution will request postponements from the courtfor further investigation , and the charge sheet is usually handed to the accused at one of the postponed hearings or even in some cases on the day of the trial;  If this is insufficient time for accused to prepare his/herdefense the court may grant a further postponement at the request of the accused. 

2. FORM AND SUBSTANCE OF CHARGES AND INDICTMENTS Necessary averments in the charge sheet (s 84)  A charge sheet should be as simple as possible (Rautenbach 1991).  S84(1): The relevant offence should be set out in the charge sheet in such a manner that accused is sufficiently informed of the nature of the charge against him (i.e. all the elements should be includedand the charge sheet should disclose a clear offence).  More specifically, the charge sheet should include:  All the elements of the offence (a description of the act is not required - s 91);  The time and place of the alleged offence;  The person against whom and property in respect of which the offence was allegedly committed. o For example: “The accused (Mr XXX) is guilty of murder in that on or about 1August 2014, at 11h00hours, and at or near Honey Street in the district ofRandburg, the accused did intentionally and unlawfully kill John Smith, an adult male”.  If accused is charged with a statutory offence, the words of the statutorysection which defines the crime, or similar words, must beclearly set out in the charge sheet.  Accused’s previous convictions cannot be set out in a charge – s89). The Element of “time”:  S92(1): If time is not an essential element of the offence, a failure to refer to it will not render the charge defective.  S92(2): If the wrong time is alleged in charge and it is not essential to the offence, then as long as the correct time is within three months of the wrong time set out in the charge sheet, the state can adduce evidence to prove the corrected time at trial.  S 93: However where the time element is essential; i.e. where an accused raises an alibi as a defense, and the court believes that accused would be prejudiced in its defense if the time element is missing from the charge sheet, then the time element must be clearly and precisely set out in the charge sheet.

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The Element of “place”:  The place where the crime was committed may be essential. (i.e some crimes can only be committed in a public place such as – reckless and negligent driving, or drunk driving).  In such cases, the charge will be defective if it does not allege the offence was committed in such a place. The mental element: Where it is an essential feature of an offence that it be committed in circumstances showing a particular mental attitude ( animus) of the offender – for example, that it was done intentionally (as in the case of murder), knowingly, maliciously or negligently (as in the case of culpable homicide) – such mental attitude should be averred, otherwise the charge sheet does not disclose a clear offence. Provisos, exemptions, exceptions in statutorily defined offences (s90)   

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If a statutorily defined offence contains a proviso or allows for an exemption, the prosecution is not obliged to specify or set out the proviso in the charge sheet and even ifthe proviso is included, the prosecution need not prove it. The accused is obliged to raise the proviso in its defence at trial; For example in the Drug and Drug Trafficking Act, it is an offence to possess dangerous dependence producing drugs. The proviso to this statutory offence allows an exemption for those persons legally entitled to possess the drug – ie pharmacists or researchers, etc. This means that it is up to the accused to raise the defence of being legally in possession of the drugs. Therefore a distinction is drawn between a necessary averment (which must be included in a charge) and an exception/proviso (which need not).in other wordsincriminating factors must be proved by the prosecution and exculpatory facts by the accused. Second Golden Rule: Incriminating facts must be stated by the prosecution in the chargesheet, while exculpatory facts need not be included. The onusis on the accused to raise exculpatory facts.

Obligation to provide particulars (s87)  S 85: the accused may before pleading object to the charge; and  S87: If accused believes the particulars in the indictment are insufficient to inform him properly on the charge against him, he can request further particulars from the state.  Where the prosecution refuses or fails to provide the particulars, the court has a discretion to order furnishing of particulars at any time prior to evidence being led.  The court will order the prosecution to furnish such particulars as are necessary to inform the accused properly of the charge against him unless such is shown to be impracticable. 3

 In addition, the court may grant an order for further particulars even if the charge sheet contains all necessary averments, to enable accused to prepare for trial.  If the state refuses to supply further particulars, accused can apply for a “mandamus” from the High Court. However, the High Courtis generally reluctant to issue one.  Where particulars are given, they become part of the record and the state must prove the charge “as particularised”. Thus, where a conviction is based on evidence not covered by the particulars, the conviction may be set aside on  If the charge discloses an offence, but is lacking in particularity, the accused cannot rely on such fact as a basis for an appeal if theaccused failed to apply for further particulars (in essence he is presumed to have waived his right to further particulars).  A court’s refusal to order the furnishing of further particulars will result in accused’s conviction being set aside if such resulted in prejudice to accused or a failure of justice.  Third Golden Rule: The function of a request for further particulars is to define the issues and not to enlarge them. 3. CORRECTING MISTAKES/ERRORS IN THE CHARGE SHEET/INDICTMENT Minor defects in the form of errors, mistakes, omissions, or the inclusion of minor unnecessary insertions, or superfluous facts, in a charge contained in a charge sheet need not be corrected if there is no prejudice to the accused. However material defects in the necessary averments (as defined in s 84 above) of a charge in a charge sheet may cause prejudice at trial to an accused and must be corrected. There are two methods of correcting a charge sheet. These are set out in s 86 (an actual amendment to the charge sheet) and s 88 (the defect, in form of an omission, in the charge automatically cured by adducing evidence at trial). Amendment of material errors in charge/indictment (s86)  S86 makes provision for the amendment of a charge sheet where:  The charge is materially defective because of a material mistake or a material omission;  There is a material difference between the averment in the charge sheet and the evidence offered at trial by the prosecution in proof of such averment;  Words have been omitted, or unnecessarily inserted or any other material error is made. (Moloi 2010 (CC))  The material error must be brought to the attention of the court before the trial or during the state’s case at trial. Once the error has been identified the charge sheet must be amended by the prosecution (onus on prosecution) by way of an affidavit which clearly sets out the amendment.  The court may order an amendment only if, on the facts and circumstances of the particular case, it considers that the making of the amendment will not prejudice the accused in its defence. There will not be prejudice if there is but a slight variation or where it is clear that the accused’s defence would remain exactly the same even if the charge sheet is amended.  S86 makes provision for the amendment of the charge, notreplacement thereof by an altogether new charge. Test: Does the proposed amendment differ to such an extent from the original charge that it is in essence another charge. Should a 4

new charge be framed in the course of a trial, the possibility of prejudice to accused is strong, as accused comes to court prepared to meet a particular charge and now will be faced with a different charge.  S86(4): Failure by the prosecution to amend the charge sheet does not affect the validity of the trial, unless the court has refused to allow the amendment and prejudice to the accused will result.  Note the issue of prejudice to the accusedmay be irrelevant where a charge does not contain an essential averment because the method set out in s88 allows for such defect to be curedautomatically by evidence adduced at trial. Defects and material omissions in indictment/charge cured by evidence (s88)  Before 1959 the courts consistently required charge sheets/indictments to disclose an offence.  If a material element of the crime was omitted, accused could not be found guilty, even if the evidence at the trial proved the omitted element (even if accused pleaded guilty).  S88 now provides: Where a charge is defective because an essential element of the offence is missing, the defect can be automatically cured by the evidence introduced at the trial. The evidence cures the defect by providing the factual element that is missing in the charge sheet.  If the defect or omission has been picked up or has been brought to the court’s attention before trial, or judgment, then the prosecution cannot rely on the automatic method in s 88. In this situation the state has the onus to amend the charge in terms of s 86.  The reason for this automatic curing of a defect by way of s 88 is to prevent the accused from remaining silent during the state’s case, while knowing of the defect, and then arguing for a discharge, or not guilty verdict, as a result of the defect.  Effect: Greatly alleviates the burden on prosecutors but subject to criticism.  The automatic cure by evidence is subject to certain qualifications;  At a minimum, the offence with which the accused is charged should be named in the charge sheet/indictment (some recognizable offence must be indicated – i.e.by its technical common law name – murder - or by a section number).  The prosecutor should frame the charge in a way that it discloses an offence (or the accused may raise an exception against the charge before pleading).  If accused brings the defect to the court’s attention before judgment, and the court refuses to amend the charge and the accused is prejudiced, accused can rely on this on appeal.  A defect can only be cured by admissible evidence (eg. not through statutory presumptions).  The purpose of s88 is to cure the defect in the charge and not to replace or substitute one offence by another offence. Example: an accused may be found guilty even though the charge contained in the charge sheet is materially defective (i.e. in that it does not disclose an offence) as long the evidence admitted during the trial automatically cures the defect (i.e. by filling up the gap or admission).

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S 86 – AMENDMENTS  when charge sheet is materially defective, or contains incorrect words;  or there is a material difference between charge sheet and evidence being lead at trial, and evidence shows charge defective;  which will prejudice the accused’s defence. Picked up and brought to either parties attention before trial, or court’s attention during trial;  onus on prosecution to amend;  court may order amendment;  amendment must not prejudice accused;  amendment must not replace charge with a new one;  accused may request a postponement to prepare a defence to the amended charge sheet.

S 88 – AUTOMATIC CURE when charge sheet is materially defective by way of a material omission (i.e. does not disclose an offence); which will prejudice the accused’s defence; and defect not picked up before trial; or during the state’s case during trial. The defect, or omission, may be cured automatically during the course of the trial by admitting admissible relevant evidence (i.e. not by way of presumptions); The evidence must cure the defect and not replace the charge with a new one. Reason: to prevent the accused form remaining silent during state’s case, while knowing of the defect, and then arguing for discharge, or not guilty, at end of state’s case as a result of the defect.

4. THE SPLITTING OF CHARGES OR DUPLICATION OF CONVICTIONS (s83) Sometimes the single act of an accusedmay constitute more than one offence: Example 1; the offence of robbery consists of the act of theft and assault while stealing. The prosecution may charge the accused with both assault and robbery. This is an unfair splitting of charges as the two offences flow from the same act. An accused may also commit the same act multiple times during a certain period of time which results in the continuous repetition of the same offence: Example 2: an accused who fraudulently pretends to be an admitted attorney and consults with clients over a period of a year may be charged with multiple counts of criminal fraudcommitted throughout the year. An accused may commit similar acts in a brief period of time which are causally related to each other: Example 3: The accused molests and forcibly rapes his minor daughter. In this brief period of time the accused through his similar sexual acts may be faced with a charge of sexual assault, a charge of rape of a minor, and a charge of incest.  Splitting of charges is prosecution centered. The prosecution is entitled to charge the accused with as many offences as the facts allow (s83).  Duplication of convictions is judge/magistrate centered. The accused can be charged with many offences by the prosecution, but in passing judgment the judge/magistrate should not find the accused guilty of all these offences where it would result in an unfair duplication of convictions (by reason of considerations of fairness (Kuzwayo).  According to s83: The meaning of splitting of charges is described as follows: if there is uncertainty as to the facts which can be proven the prosecution may 6

formulate as many charges as the available facts justify. The accused may be charged with having committed all, or any of the offences, and any number may be tried at once, or the accused may be charged in the alternative with having committed any number of those offences(Grobler).  The meaning of duplication: if, however, it appears, at the end of the trial, that according to the proven facts, two charges comprise one and the same punishable act, the judgeshould for reasons of fairness convict accused on only one charge. The following are further examples of splitting of charges: A single actconstitutes more than one statutory offence, or consists of a statutory and a common law offence (s336). The accused may be charged with both the statutory and the common law offence but may only be held liable for one punishment. Example: the statutory crime of pointing a fire-arm and the common law crime of assault – one punishment. Example: the statutory crime of driving under the influence and the common law crime of reckless driving – one punishment. A single act constitutes more than one offence at common law: Example: where two persons are killed in a motor car accident caused by the accused. The accused should be charged with only one count of culpable homicide – and thus only one punishment. But see S v Humphries More than one act of the same nature, or of a similar nature, is committed practically simultaneously, constituting more than one offence (whether a statutory or common law offence): Test (only guideline):  Was the act committed with a single intent, or is the act part of one continuous transaction spread over a time period,  or does the evidence required to prove the one charge necessarily involve proof of the other charge?  If the answer to either of these alternatives is yes, improper splitting has occurred.  However, where the nature of the separate acts and the intent with which each act has been committed, differ to such an extent that it is unreasonable to accommodate all the acts within only one offence, conviction on multiple charges would not constitute an unfair duplication of convictions. Example: If the accused breaks into a house with intent to steal and then actually steals something he should only be charged with one count of housebreaking and theft. However if he breaks into different flats in a block of flats he can be charged with multiple counts of housebreaking. Example: an act of robbery accompanied with rape. Accused can be convicted of two separate offences. Example: an accused caught in the possession of drugs may be charged and convicted only of one count of either possession or drug dealing. A continuous repetition of the same act spread over a period of time: (See example of fraudulent attorney, doctor, conman,etc.). Finally; If accused has been convicted/acquitted of offence X and is thereafter charged with offence Y (which, if X and Y were charged together, would have amounted to a splitting of charges), accused can plead autrefois convict/acquit. 5. JOINDER OF OFFENCES (s81) 7

 In practice, a prosecutor usually charges an accused with the most serious crime as main charge, and the lesser offences as alternative charges.  S81(1)allows forjoinder of offences. This means that any number of offences may be charged against the same accused in one charge sheet/indictment, on the condition that they do not constitute un...