Part 3

The Criminal

The Criminal Procedure Act

Table summary: Definitions for aggravating circumstances in relation to robbery or attempted robbery. These circumstances include the wielding of a fire-arm or any other dangerous weapon, the infliction of grievous bodily harm, or a threat to inflict grievous bodily harm, carried out by the offender or an accomplice before, during, or after the commission of the offence.

At least one of the abovementioned situations must be present. The exact role of each robber (perpetrator, co-perpetrator or accomplice) need not be determined before he can be held guilty of robbery with aggravating circumstances according to S v Mofokeng (1) saker G.N.P.

A dangerous weapon is defined in section 1 of the Dangerous Weapons Act, 2013 as "means any object, other than a firearm, capable of causing death or inflicting serious bodily harm if it were used for an unlawful purpose.

(a) The wielding of a fire-arm or dangerous weapon does not require the pointing of a fire-arm at the victim. In Hongwane (2) saker G.P the court said:

“No proof beyond an action which amounts to “wielding” a dangerous weapon during the course of a robbery is required in order for aggravating circumstances to be present”

The mere carrying, holding or possession of a firearm or dangerous weapon will not amount to aggravating circumstances unless they constitute a threat to inflict grievous bodily harm.

(b) The infliction of grievous bodily harm will depend on the facts of each case. This aspect must be determined objectively and the intention of the robber is irrelevant.

(c) The threat could be uttered expressly or through conduct. In S v Anthony (2) saker (C) a toy firearm was used during the robbery. The court held that the threat requirement would be satisfied if the victim subjectively experienced the conduct of the robber as a threat to inflict grievous bodily harm. An implied threat could be present and can be inferred even when no fire-arm or dangerous weapon is wielded. In S v Hlongwane (supra) the court said that the holding of a rifle with its muzzle facing the ground comfortably fits within the definition of a threat to inflict grievous bodily harm.

Section 6 (a) – Power to withdraw charge

A D.P.P or any person conducting a prosecution at the instance of the State may withdraw a charge before an accused has pleaded to the charge.

In terms of section 20(5) of the N.P.A Act 32 of 1998, D.P.P's have been designated by the National Director of Public Prosecutions N.D.P.P to issue authorisations to prosecutors in their areas of jurisdiction to institute and conduct prosecutions and, where necessary, to prosecute appeals arising from these. This authority to prosecute refers to the day-to-day decisions which prosecutors are called upon to take in the execution of their function. There are exceptions to this general authority to prosecute and certain prosecutions that may not be instituted without the authorisation of a D.P.P or the National Director of Public Prosecutions. The offences mentioned in Part 8 of the Prosecution Policy Directives are examples of such cases.

A charge may only be withdrawn before an accused has pleaded to a charge. When a charge is withdrawn before an accused has pleaded to the charge, the accused is not entitled to a verdict of acquittal in respect of that charge. The fact that there is no verdict on the merits of the case by the court when a case is withdrawn, allows the State to prosecute the accused for the same charge in the future, provided that there is sufficient admissible evidence for a reasonable prospect of a successful prosecution.

The Prosecution Policy Directives directs that once enrolled, cases may only be withdrawn on compelling grounds, for example if it appears after thorough police investigation that there is no longer any reasonable prospect of a successful prosecution or the accused has successfully completed a diversion programme.

Cases should not be withdrawn solely on the ground that the accused person has compensated or reimbursed the complainant, or on the ground that a complainant or victim requests a discontinuance of the prosecution. Prosecutors should exercise special care when approached by a victim who is in a close relationship with the accused person, for example, a victim of domestic violence or parents in a “child abuse” case.

No prosecutor may withdraw any charges without the prior authorisation of the National Director or the D.P.P concerned, where the prosecution was on instruction of either the National Director or D.P.P.

The decision to withdraw a charge is at the discretion of the State (prosecutor). In § 5 Mashaba (unreported review decision by the South Gauteng Division of the High Court, review case number 27/2020) it was confirmed in paragraph 15 that the C.P.A does not make provision for the court to order the State to withdraw a case.

Section 6 (b) – Stopping of prosecution

A D.P.P or any person conducting a prosecution at the instance of the State may at any time after an accused has pleaded to a charge but before conviction, stop prosecution in respect of a charge. If the prosecution is stopped, the court must acquit the accused in respect of that charge.

The stopping of a prosecution in terms of section 6(b) of the Criminal Procedure Act, 1977, effectively means that the prosecuting authority is abandoning the case. The accused person will be entitled to an acquittal and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution without a D.P.P's authorisation.

As a rule, criminal proceedings should only be stopped when it becomes clear during the course of the trial that it would be impossible to obtain a conviction on any of the charges or where the continuation thereof has become undesirable due to exceptional circumstances.

Section 7 – Private Prosecution on certificate nolle prosequi

(1) In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence-

(a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;

(b) a husband, if the said offence was committed in respect of his wife;

(c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or

(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward, may, subject to the provisions of section 9 and section 59 (2) of the Child Justice Act, 2008, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.

(2) (a) No private prosecutor under this section shall obtain the process of any court for summoning any person to answer any charge unless such private prosecutor produces to the officer authorized by law to issue such process a certificate signed by the attorney-general that he has seen the statements or affidavits on which the charge is based and that he declines to prosecute at the instance of the State.

(b) The attorney-general shall, in any case in which he declines to prosecute, at the request of the person intending to prosecute, grant the certificate referred to in paragraph (a).

(c) A certificate issued under this subsection shall lapse unless proceedings in respect of the offence in question are instituted by the issue of the process referred to in paragraph (a) within three months of the date of the certificate.

Section 8 - Private prosecution under statutory right

(1) Any body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.

(2) A body which or a person who intends exercising a right of prosecution under subsection (1), shall exercise such right only after consultation with the attorney-general concerned and after the attorney-general has withdrawn his right of prosecution in respect of any specified offence or any specified class or category of offences with reference to which such body or person may be law exercise such right of prosecution.

(3) An attorney-general may, under subsection (2), withdraw his right of prosecution on such conditions as he may deem fit, including a condition that the appointment by such body or person of a prosecutor to conduct the prosecution in question shall be subject to the approval of the attorney-general, and that the attorney-general may at any time exercise with reference to any such prosecution any power which he might have exercised if he had not withdrawn his right of prosecution.

Section 9 - Security by private prosecutor

(1) No private prosecutor referred to in section 7 shall take out or issue any process commencing the private prosecution unless he deposits with the magistrate's court in whose area of jurisdiction the offence was committed.

(a) the amount the Minister may from time to time determine by notice in the

Gazette as security that he will prosecute the charge against the accused to a conclusion without undue delay; and

(b) the amount such court may determine as security for the costs which may be incurred in respect of the accused's defence to the charge.

(2) The accused may, when he is called upon to plead to the charge, apply to the court hearing the charge to review the amount determined under subsection (1) (b), whereupon the court may, before the accused pleads-

(a) require the private prosecutor to deposit such additional amount as the court may determine with the magistrate's court in which the said amount was deposited; or

(b) direct that the private prosecutor enter into a recognizance, with or without sureties, in such additional amount as the court may determine.

(3) Where a private prosecutor fails to prosecute a charge against an accused to a conclusion without undue delay or where a charge is dismissed under section 11, the amount referred to in subsection (1) (a) shall be forfeited to the State.

R.2 500 - G.N R.62 in G.G 36111 of 30 January 2013

Section 10 - Private prosecution in name of private prosecutor

(1) A private prosecution shall be instituted and conducted and all process in connection therewith issued in the name of the private prosecutor.

(2) The indictment, charge-sheet or summons, as the case may be, shall describe the private prosecutor with certainty and precision and shall, except in the case of a body referred to in section 8, be signed by such prosecutor or his legal representative.

(3) Two or more persons shall not prosecute in the same charge except where two or more persons have been injured by the same offence.

Section 11 - Failure of private prosecutor to appear

(1) If the private prosecutor does not appear on the day set down for the appearance of the accused in the magistrate's court or for the trial of the accused, the charge against the accused shall be dismissed unless the court has reason to believe that the private prosecutor was prevented from being present by circumstances beyond his control, in which event the court may adjourn the case to a later date.

(2) Where the charge is so dismissed, the accused shall forthwith be discharged from custody and may not in respect of that charge be prosecuted privately again but the attorney-general or a public prosecutor with the consent of the attorney-general may at the instance of the State prosecute the accused in respect of that charge.

Section 12 - Mode of conducting private prosecution

(1) A private prosecution shall, subject to the provisions of this Act, be proceeded with in the same manner as if it were a prosecution at the instance of the State:

Provided that the person in respect of whom the private prosecution is instituted shall be brought before the court only by way of summons in the case of a lower court, or an indictment in the case of a superior court, except where he is under arrest in respect of an offence with regard to which a right of private prosecution is vested in any body or person under section 8.

(2) Where the prosecution is instituted under section 7 (1) and the accused pleads guilty to the charge, the prosecution shall be continued at the instance of the State.

Section 13 - Attorney-general may intervene in private prosecution

An attorney-general or a local public prosecutor acting on the instructions of the attorney-general, may in respect of any private prosecution apply by motion to the court before which the private prosecution is pending to stop all further proceedings in the case in order that a prosecution for the offence in question may be instituted or, as the case may be, continued at the instance of the State, and the court shall make such an order.

Section 14 - Costs in respect of process

A private prosecutor, other than a prosecutor contemplated in section 8, shall in respect of any process relating to the private prosecution, pay to the clerk or, as the case may be, the registrar of the court in question, the fees prescribed under the rules of court for the service or execution of such process.

Section 15 - Costs of private prosecution

(1) The costs and expenses of a private prosecutor shall, subject to the provisions of subsection (2), be paid by the private prosecutor.

(2) The court may order a person convicted upon a private prosecution to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence: Provided that the provisions of this subsection shall not apply with reference to any prosecution instituted and conducted under section 8:

Provided further that where a private prosecution is instituted after the grant of a certificate by an attorney-general that he declines to prosecute and the accused is convicted, the court may order the costs and expenses of the private prosecution, including the costs of an appeal arising from such prosecution, to be paid by the State.

Section 16 - Costs of accused in private prosecution

(1) Where in a private prosecution, other than a prosecution contemplated in section 8, the charge against the accused is dismissed or the accused is acquitted or a decision in favour of the accused is given on appeal, the court dismissing the charge or acquitting the accused or deciding in favour of the accused on appeal, may order the private prosecutor to pay to such accused the whole or any part of the costs and expenses incurred in connection with the prosecution or, as the case may be, the appeal.

Table summary: Legal provisions regarding the award and taxation of costs. Under the second provision of an unnamed section, a court may award costs and expenses to an accused person if a private prosecution is deemed unfounded and vexatious. Section 17 specifies that costs awarded under section 15 or 16 are taxed according to the civil case scale of the awarding court, or the magistrate's court scale if a regional court makes the award, with the awarding court determining the scale if multiple exist.

Section 18 – Prescription of right to institute prosecution

Table summary: The general right to institute a prosecution for any offence lapses after 20 years from the time the offence was committed. However, the CPA provides that there is no prescription for certain offences, including Murder, Kidnapping, Child-stealing, and any sexual offence in terms of the common law or statute. Other exceptions include Treason committed during a state of war, Robbery with aggravating circumstances, the common law offence of bribery, and various offences under the Corruption Act 92 of 1994, the Prevention and Combating of Corrupt Activities Act 12 of 2004, the Implementation of the Rome Statute of the International Criminal Court Act 2002, the Prevention and Combating of Trafficking in Persons Act 2003, and the Prevention and Combating of Torture of Persons Act 2013.

Section 19 - Saving as to certain powers conferred by other laws

The provisions of this Chapter shall not derogate from any power conferred by any other law to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter.

Section 20 - State may seize certain articles

The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)-

(a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

(b) which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

Literally anything may be seized in terms of this section provided that it qualifies to be included in one of the three groups provided for in this section. Whether the belief or suspicion was reasonable is an objective question and will be answered objectively on all the facts before the court.

Section - 21 Article to be seized under search warrant

(1) Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued-

(a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or

(b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings.

(2) A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorize such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

(3) (a) A search warrant shall be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night.

(b) A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

(4) A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.

In Minister of Safety and Security v Van der Merwe and others (2) saker C.C the Constitutional Court gave the following summary:

A valid warrant is one that, in a reasonable intelligible manner:

a. states the statutory provision in terms of which it is used;

b. identifies the searcher:

c. clearly mentions the authority it confers upon the searcher;

d. describes the person, container or premises to be searched;

e. describes the article to be searched for and seized, with particularity; and

f. specifies the offence which triggered the criminal investigation and names the suspected offender.

In the case of a statutory offence, it is important that the warrant should pertinently refer to the specific statute and the section or subsection thereof in order to enable the person in charge of the premises to be searched and also the police official authorised in terms of the search warrant to know precisely that for which the search has been authorised.

Only police officials may be authorised to search. The police may however require the assistance of experts in some cases. In these cases, there is a greater need to “carve out and define the role to be played by such outside persons, both in seeking the authorisation for their presence as well as their role in the actual execution of the warrant.” – see Keating and others versus Senior Magistrate and others 1 saker G.P where private individuals were authorised to act purely in an advisory capacity.

In Cine Films (Pty) Ltd v Commissioner of Police (2) S.A (A) it was held that it is not required that each and every article to seized must be described in detail, and types or classes of articles can also be identified, as long as reasonably clear descriptions are given for example where the warrant indicates computers, hard drives, discs and such materials. In Vorster Interior Products C.C v Minister of Police and others the court found that the reference to types of articles did not invalidate the search warrant because the warrant limited the search to specified illegal activities. It was further stated that the warrant is not required to specify precisely what information is sought to be seized when electronic devices are specified in the warrant since it might not be known in advance what information would be found so as to isolate information linked to the investigation from other confidential matters.

The evidence yielded by an irregular search and seizure is not automatically inadmissible. Section 35(5) of the Constitution states that 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. The admissibility of evidence unconstitutionally obtained must, in general, be determined during a trial within a trial.

In considering fairness of the trial, prejudice to the accused becomes relevant. If it becomes apparent that the accused will be prejudiced if the evidence is admitted, the degree and nature of that prejudice must still be ascertained in order to determine whether admission of that evidence will render the trial unfair. Fairness is not a “one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment”. It must be fair to both the accused and the public as represented by the prosecution and not only be aimed at considerations of fairness or be to the advantage of the accused.

With regard to the administration of justice, the presiding officer has to determine whether the reasonable person, impartial, unbiased and fully conversant with all the facts and circumstances of the particular case, is of the opinion that admission of the evidence in question will be detrimental to the administration of justice. While public opinion has some relevance, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour.

If the court finds that admitting the evidence will render the trial unfair or that it will be detrimental to administration of justice, the evidence must be excluded.

Section 22 – Search and seizure without a search warrant

A police official may without a search warrant search any person or container or premises for the purpose of seizing any article Reference is made in this section (and others such as sections 24, 25 and 40. Comments made here about what constitutes a reasonable suspicion are therefore also applicable to such other sections.

Code summary: This procedure defines the legal criteria under section 20 of the CPA for the search and seizure of containers or premises. It first establishes that the target must be linked to an offence, either by being involved in its commission, providing evidence of it, or being intended for use in it. The process then permits the search if either the relevant person consents or if a police official reasonably believes a warrant would be granted but that the delay in obtaining one would jeopardize the purpose of the search.

In Minister of Safety and Security v zasca the court accepted that a suspicion is a state of conjecture or surmise where proof is lacking. “I suspect but I cannot prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. A suspicion inherently involves an absence of certainty or adequate proof. A police officer is not expected to satisfy himself to the same extent as a court and a suspicion can be reasonable despite there being insufficient evidence for a prima facie case.

The standard of a reasonable suspicion is, said the Supreme Court of Appeal in Biyela v Minister of Police (2022) zasca (unreported, S.C.A case no April, very low."It must be more than a hunch; it should not be an unparticularised suspicion but must be based on specific and articulable facts or information." It must be based on credible and trustworthy information and is determined objectively, but the suspicion need not be based on information that would subsequently be admissible in a court of law.

In Buthelezi v Minister of Police (2) saker G.J the court laid down the requirements for consent. 1. The consent must be of a particular quality. The person whose consent is required should be informed of the purpose of the search. A mere request to search is insufficient. It must be established that the person whose consent is required to search a container or premises has the capacity to consent to the search.

2. The consent must be freely given. In Maroko v Minister of Police and another (unreported, G.J case no 21697/2019, 2 November 2021) the court had difficulty in accepting that meaningful consent can be given in the coercive environment created by a police operation, the express purpose of which is to stop and search those whose culpability can (as one of the police officers described it to the court) be read"in their faces".

3. The action taken has to be within the bounds of the consent given.

Whether {reasonable grounds} were present is an objective question answered on all the facts before the court. The state has to prove that at the time of the action the police officer objectively had reasonable grounds for the belief, assessed on all the available facts. The official will have to show that reasonable grounds existed at the time he acted without a warrant and that it was not just a fishing expedition.

Where information is received by the officer it must contain sufficient detail to ensure that it is not based on gossip, but reliable. Factors that may contribute to the reliability of the information include that the information was received from a person who has in the past supplied reliable information, the information was received from more than one source, observation by the police and knowledge by the officer that the area is a crime hotspot.

Section 23 – Search of arrested person and the seizure of article

This section empowers a peace officer that arrested a suspect to search the arrested person and seize any article referred to in section 20 that is in possession or under the control of the arrested person. If the arresting person is not a peace officer, he may not search the arrested person, but still seize an article referred to in section 20 that is in his possession or under his control. If the arresting person is not a police official, the seized article must be delivered to a police official. Any arresting person may also take for safe keeping, any object found on the arrested person which may be used to cause bodily harm to himself or others.

Section 24 – Search of premises

Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he must take possession thereof and deliver it to a police official.

Section 25 - Power of police to enter premises in connection with State security or any offence

Section 25 enables a magistrate or justice, where it appears from information on oath that there are reasonable grounds to believe that the internal security of the Republic is likely to be endangered by or as a result of a meeting which is being held or to be held in or upon premises within his jurisdiction area, to issue a warrant authorising a police official to enter the premises at a reasonable time with certain objects in mind. The same applies where it appears from information on oath that there are reasonable grounds to believe that an offence has been or is being or is likely to be committed or that preparations for such commission are being or are likely to be made on premises within his jurisdiction area.

The police official may enter the premises for the purpose of carrying out such investigations or taking such steps as he may consider necessary for the preservation of the internal security or for the maintenance of law and order or the prevention of an offence. What is necessary will depend on the subjective decision of the police official and the objective standards will thus not apply. The police official may also enter the premises with the purpose of searching the premises or any person thereupon for an article referred to in section 20 which he reasonably suspects to be upon a person or on the premises. Here the test will be an objective one.

The warrant in terms of section 25 may be issued on any day and will remain in force until it is executed or cancelled by the person who issued it or someone with like authority if he is not available.

Where the delay in obtaining a warrant under this section would defeat the object thereof and the police official believes on reasonable grounds that a warrant would have been issued to him if he applied for one, he may also take the steps authorised under this section without such warrant. The test here will be objective.

Section 26 – Entering of premises for purposes of obtaining evidence

Provision is made for the entering of premises for the purposes of obtaining evidence in a criminal matter. The police official can enter a premises without a warrant to obtain evidence provided he reasonably suspects that a person who may furnish information with reference to an offence is on the premises. He may interrogate the person and obtain a statement from him.

The official may not enter a private dwelling without the consent of the occupier thereof. The right to interrogate the person is clear and it is not necessary to obtain his consent before questions are put, although the person will clearly enjoy the right to remain silent.

Section 27 – Resistance against entry and search

Reasonable violence may be applied or used by the official who is entitled to search a person or who may enter a premises under section 26 to overcome any resistance against such search or entry. He may break a door or window of such premises, provided that the official must first audibly demand admission to the premises and notify the purpose for which he seeks to enter the premises. This is also applicable where no warrant has been issued where the delay in obtaining a warrant would defeat the object thereof and the police official believes on reasonable grounds that a warrant would have been issued to him if he applied for one.

If the official is on reasonable grounds of the opinion that an article which is the subject of the search may be destroyed or disposed of if he audibly demands admission and notifies the person on the premises of the purpose for which he seeks entry, he is not required to do so.

Section 28 - Wrongful search an offence, and award of damages

A police official-

(a) who acts contrary to the authority of a search warrant issued under section 21 or a warrant issued under section 25 (1); or

(b) who, without being authorized thereto under this Chapter-

(i) searches any person or container or premises or seizes or detains any article; or

(2) performs any act contemplated in subparagraph (1), (2) or (3) of section 25 (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R.600 or to imprisonment for a period not exceeding six months, and shall in addition be subject to an award under subsection (2).

(2) Where any person falsely gives information on oath under section 21 (1) or 25 (1) and a search warrant or, as the case may be, a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury, the court convicting such person may, upon the application of any person who has suffered damage in consequence of the unlawful entry, search or seizure, as the case may be, or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 shall mutatis mutandis apply with reference to such award.

29 - Search to be conducted in decent and orderly manner

A search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for the purpose by a police official.

Section 30 - Disposal by police official of article after seizure

This section makes provision for articles seized under section 20 to be dealt with in specific way. Perishable goods may be disposed of in a manner as the circumstances may require. Stolen property or property suspected to be stolen may be delivered to the person from whom it was stolen if the person it was seized from consents thereto.

Where consent to return the goods is refused or it is uncertain from whom the article was stolen, the article must be given an identification mark and retain it in police custody. In practice this means that the police book it into the sap 13.

Section 31 - Disposal of article where no criminal proceedings are instituted or where

it is not required for criminal proceedings

(1) (a) If no criminal proceedings are instituted in connection with any article referred to in section 30 (c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it.

(b) If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State.

Section 32 - Disposal of article where criminal proceedings are instituted and

admission of guilt fine is paid

(1) If criminal proceedings are instituted in connection with any article referred to in section 30 (c) and the accused admits his guilt in accordance with the provisions of section 57 (pays an admission of guilt fine), the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it.

(2) If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State.

Section 33 - Article to be transferred to court for purposes of trial

The investigating officer must deliver a seized article to the clerk of the court where it is required as evidence or for a court order such as forfeiture. In cases where detention of the article by the clerk of the court is impracticable or undesirable, the investigating officer may be required to retain custody of the article.

Section 34 - Disposal of article after commencement of criminal proceedings

At the conclusion of the criminal proceedings, the court must make an order disposing of articles which were not forfeited or disposed of under section 35. The following orders may be given:

(a) be returned to the person from whom it was seized, if such person may lawfully possess such article; or

(b) if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or

(c) if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

Section 35 - Forfeiture of article to State

A court which convicts an accused of any offence may, without notice to any person, declare-

(a) any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the commission of such offence; or

(b) if the conviction is in respect of an offence referred to in Part 1 of Schedule 2, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property, and which was seized under the provisions of this Act.

Section 36 - Disposal of article concerned in an offence committed outside Republic

Where an article is seized in connection with which— (a) an offence was committed or is on reasonable grounds suspected to have been committed in a country outside the Republic;

(b) there are reasonable grounds for believing that it will afford evidence as to the commission in a country outside the Republic of any offence or that it was used for the purpose of or in connection with such commission of any offence, the magistrate within whose area of jurisdiction the article was seized may, on application and if satisfied that such offence is punishable in such country by death or by imprisonment for a period of twelve months or more or by a fine of five hundred rand or more, order such article to be delivered to a member of a police force established in such country who may thereupon remove it from the Republic.

(2) Whenever the article so removed from the Republic is returned to the magistrate, or whenever the magistrate refuses to order that the article be delivered as aforesaid, the article shall be returned to the person from whose possession it was taken, unless the magistrate is authorized or required by law to dispose of it otherwise.

Ascertainment of Bodily Features of Persons (ss 36A 37

The meanings and definitions in section 36A (1) apply only for purposes of the interpretation of Chapter 3 of the Act that deals with the ascertainment of bodily features of persons, whereas all other meanings and definitions as provided in section 1 of the Act must be applied to the whole of the Act.

It is important to distinguish between bodily sample, buccal sample and intimate sample because the nature of the sample to be taken determines the procedure to be followed and the requirements that must be met. An intimate sample, for example, may only be taken by a registered medical practitioner or registered nurse as per section 36D (7) (d) (i).

36A - Interpretation of Chapter 3

Code summary: This section establishes the legal definition of an appropriate person for the purposes of the chapter. It identifies such a person as any adult family member or caregiver, specifically expanding the scope to include foster parents, individuals with parental consent, temporary safe care providers, and the heads of child and youth care centres or shelters.

(6) a child and youth care worker, who cares for a child who is without appropriate family care in the community; and

(7) a child at the head of a child-headed household, if such a child is 16 years or older;

(aA) 'authorised officer' means the police officer commanding the Division responsible for forensic services within the South African Police Service, or his or her delegate;

(b) 'authorised person' means

(i) with reference to photographic images, fingerprints or body-prints, any police official or a member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, in the performance of his or her official duties; and

(2) with reference to buccal samples, any police official or member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, who is not the crime scene examiner of the particular case, but has successfully undergone the training prescribed by the Minister of Health under the National Health Act, in respect of the taking of a buccal sample;

(c) 'body-prints' means prints other than fingerprints, taken from a person and which are related to a crime scene, but excludes prints of the genitalia, buttocks or breasts of a person;

(cA) 'bodily sample' means intimate or buccal samples taken from a person;

(cB) 'buccal sample' means a sample of cellular material taken from the inside of a person's mouth;

(d) 'child' means a person under the age of 18 years;

(e)'Child Justice Act' means the Child Justice Act, 2008;

(f) 'comparative search' means the comparing by the authorised officer of

(i) fingerprints, body-prints or photographic images, taken under any power conferred by this Chapter, against any database referred to in Chapter 5A of the South African Police Service Act; and

(2) forensic D.N.A profiles derived from bodily samples, taken under any power conferred by this Chapter, against forensic D.N.A profiles contained in the different indices of the N.F.D.D referred to in Chapter 5B of the South African Police Service Act;

(fA) 'crime scene sample' means physical evidence which is retrieved from the crime scene or any other place where evidence of the crime may be found, and may include physical evidence collected from the body of a person, including a sample taken from a nail or from under the nail of a person;

(fB) D.N.A means deoxyribonucleic acid which is a bio-chemical molecule found in the cells and that makes each species unique;

(fC) 'forensic D.N.A analysis' means the analysis of sections of the D.N.A of a bodily sample or crime scene sample to determine the forensic D.N.A profile:

Provided that this does not relate to any analysis pertaining to medical tests or for health purposes or mental characteristic of a person or to determine any physical information of the person other than the sex of that person;

(fD) 'forensic D.N.A profile' means the results obtained from forensic D.N.A analysis of bodily samples taken from a person or samples taken from a crime scene, providing a unique string of alpha numeric characters to provide identity reference: Provided this does not contain any information on the health or medical condition or mental characteristic of a person or the predisposition or physical information of the person other than the sex of that person;

(fE)'Independent Police Investigative Directorate Act' means the Independent Police Investigative Directorate Act, 2011;

(fF) 'intimate sample' means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person, excluding a buccal sample;

(fG) 'National Health Act' means the National Health Act, 2003 (Act 61 of 2003);

(fH) 'NFDD' means the National Forensic DNA Database of South Africa, established in terms of section 15G of the South African Police Service Act;

(g) 'South African Police Service Act' means the South African Police Service Act, 1995 (Act 68 of 1995).

(2) Any police official who, in terms of this Act or any other law takes the fingerprints, a body-print or buccal sample or ascertains any bodily feature of a child must-

(a) have due regard to the personal rights relating to privacy, dignity and bodily integrity of the child;

(b) do so in a private area, not in view of the public;

(c) ensure the presence of a parent or guardian of the child, a social worker or an appropriate person; and

(d) treat and address the child in a manner that takes into account his or her gender and age.

(3) Buccal samples must be taken by an authorised person who is of the same gender as the person from whom such sample is required with strict regard to decency and order.

(4) Notwithstanding any other law, an authorised person may take a buccal sample or cause the taking of any other bodily sample with the consent of the person whose sample is required or if authorised under-

(5) Any authorised person who, in terms of this Chapter or in terms of any other law takes a buccal sample from any person, must do so-

(a) in accordance with the requirements of any regulation made by the Minister of Police; and

(b) in a designated area deemed suitable for such purposes by the Departmental Heads: Police, Justice and Constitutional Development or Correctional Services in their area of responsibility.

Section 36B – Powers in respect of accused and convicted persons

A police official must take the fingerprints or must cause such fingerprints to be taken of all persons:

1. arrested for an offence referred to in Schedule 1

2. a person who has been released on bail if the fingerprints were not taken upon arrest

3. a person who has been summoned to court for an offence referred to in Schedule 1

4. a convicted person who has been sentenced to imprisonment without the option of a fine, whether suspended or not, if the fingerprints were not taken upon arrest. This includes any person serving a sentence of imprisonment without the option of fine or has been released on parole in respect of such a sentence irrespective of the fact that such a person was convicted prior to the commencement of this section.

5. a person convicted of any offence which the Minister has declared to be an offence for the purposes of this section.

A police officer may take fingerprints or may cause such fingerprints to be taken:

1. Upon the arrest of any charge

2. When admission of guilt has been paid for any offence that the Minister has declared to be an offence applicable to this section.

The fingerprints must be stored on the fingerprint database of the South African Police Service.

The retaking of fingerprints is allowed if

1. The previous fingerprints do not constitute a complete set

2. The previous fingerprints are not of sufficient quality to allow analysis, comparison or matching

3. The previous fingerprints cannot be found or not stored on the database.

The fingerprints may be the subject of a comparative search. This means that the fingerprints are compared against the fingerprints on the database.

The fingerprints must upon conviction of an adult be retained on the database and may be used to establish previous convictions. The fingerprints of a child must be retained on the database, but the retention thereof is subject to the expungement of records of certain convictions and diversion orders.

The fingerprints must as a general rule be destroyed if the prosecution declines to prosecute or a person has been acquitted. Fingerprints that are retained may only be used for the detection or investigation of crime, the identification of missing persons or human remains or the conducting of a prosecution.

Section 36C – Fingerprints and body-prints for investigation purposes

Any police official may without a warrant take fingerprints or body-prints if:

1. there are reasonable grounds to suspect that a person has committed an offence referred to in schedule 1

2. There are reasonable grounds to believe that the prints would be of value by excluding or including any person as a possible perpetrator.

The fingerprints may be used for a comparative search and the retention of the fingerprints are basically the section 36C discussed above.

Code summary: Section 36D, Powers in respect of buccal samples, bodily samples and crime scene samples, mandates that an authorized person must obtain a buccal or other bodily sample from individuals meeting specific legal criteria. This requirement applies to those arrested, released on bail, or summoned to court for schedule 8 offences, individuals listed in the National Register for Sex Offenders, and those charged or convicted of offences designated by the Minister.

An authorised person may take a buccal sample or cause the taking of any other bodily sample by a registered medical practitioner or nurse of any person:

1. upon the arrest for any offence

2. released on bail and such sample was not taken upon arrest

3. who has been summoned to court on any offence

4. whose name appears in the National Register for Sex Offenders

5. charged or convicted for any offence that the Minister declared to be an offence for the purposes of this section.

A person who is required to submit a buccal sample and who requests to take it himself, must do so under the supervision of an authorised person. This procedure is confined to buccal samples. Intimate samples may only be taken by a registered medical practitioner or nurse.

A buccal sample or bodily sample may be retaken if the first sample was insufficient for D.N.A analysis.

The sample may be used for a comparative search.

A D.N.A Profile Derived from a Sample May Be Used:

1. as an investigative tool

2. to identify persons involved in an offence irrespective of whether the crime was committed before or after the commencement of this section

3. to prove the innocence or guilt of a person

4. to exonerate a convicted person

5. to assist with the identification of missing persons or human remains.

Section 36 E – samples for investigation purposes.

(1) Subject to subsection (2) and section 36A (5), an authorised person may take a buccal sample of a person or a group of persons, or supervise the taking of a buccal sample from a person who is required to submit such sample and who requests to do so himself or herself if there are reasonable grounds to—

(a) suspect that the person or that one or more of the persons in that group has committed an offence referred to in Schedule 8; and

(b) believe that the buccal sample or the results of the forensic D.N.A analysis thereof, will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence.

(2) If a person does not consent to the taking of a buccal sample under this section, a warrant may be issued by a judge or a magistrate if it appears from written information given by the authorised person on oath or affirmation that there are reasonable grounds for believing that—

(a) any person from whom a buccal sample is required has committed an offence listed in Schedule 8; and

(b) the sample or the results of an examination thereof, will be of value in the investigation by excluding or including that person as a possible perpetrator of the offence.

(3) The provisions of section 36D (4), (5) (a), (6) and (7) apply with the necessary changes, to a sample or forensic D.N.A profile derived therefrom as contemplated in subsection (1).

This section is wide enough to include the mass screening of a class of persons who are suspected of an offence where it is believed to be of value to include or exclude anybody who agrees to be sampled. This procedure is confined to the taking of buccal samples. If a person does not consent to the taking of the sample a warrant may be issued to obtain the samples.

Section 37 - Powers in respect of body-prints and bodily appearance of accused and convicted persons

(1) Any police official may—

(a) take the body-prints or may cause any such prints to be taken—

(i) of any person arrested upon any charge;

(2) of any such person released on bail;

(3) of any person arrested in respect of any matter referred to in paragraph (n), (o) or (p) of section 40(1);

(4) of any person upon whom a summons has been served in respect of any offence referred to in Schedule 1 or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed;

(5) of any person convicted by a court; or (6) of any person deemed under section 57(6) to have been convicted in respect of any offence which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subparagraph;

(b) make a person referred to in paragraph (a) (1) or (2) or paragraph (a) or (b) of section 36B (1) available or cause such person to be made available for identification in such condition, position or apparel as the police official may determine;

(c) take such steps as he or she may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a) (1) or (2) or paragraph (a) or (b) of section 36B (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance: Provided that a police official may not—

(i) take a blood sample of any person; or

(2) examine the body of a person who is of a different gender to the police official;

(d) take a photographic image or may cause a photographic image to be taken of a person referred to in paragraph (a) (1) or (2) or paragraph (a) or (b) of section 36B (1).

(2) (a) Any medical officer of any prison or, if requested thereto by any police official, any registered medical practitioner or registered nurse may take such steps, including the taking of a blood sample, as may be deemed necessary in order to ascertain whether the body of any person referred to in paragraph (a) (1) or (2) of subsection

(1) or paragraph (a) or (b) of section 36B (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance.

(b) If any registered medical practitioner attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such sample to be taken.

(3) Any court before which criminal proceedings are pending may—

(a) in any case in which a police official is not empowered under subsection (1) or section 36B (1) to take fingerprints or body-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such proceedings or that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance:

(b) order that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain the state of health of any accused at such proceedings.

(4) Any court which has convicted any person of any offence or which has concluded a preparatory examination against any person on any charge, or any magistrate, may order that the fingerprints, body-prints or a photographic image of the person concerned be taken.

(5) Any fingerprints, body-prints or photographic images taken under any power conferred by this section, may be the subject of a comparative search.

(6) (a) Subject to subsection (7), the body-prints or photographic images, taken under any power conferred by this section, and the record of steps taken under this section—

(i) must upon the conviction of an adult person be retained on a database provided for in section 5A of the South African Police Service Act;

(2) must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act; and

(3) in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceeding with reference to such body-prints or photographic images was instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the Division responsible for criminal records referred to in Chapter 5A of the South African Police Service Act has been notified.

(b) Body-prints or photographic images which may be retained in terms of this section, may only be used for purposes related to the detection of crime, the investigation of an offence, the identification of a missing person, the identification of unidentified human remains or the conducting of a prosecution.

(c) The body-prints or photographic images referred to in paragraph (a)(i) and (2), must be stored on the database established by the National Commissioner, as provided for in Chapter 5A of the South African Police Service Act.

(7) Subsection (6) does not prohibit the use of any body-prints or photographic image taken under any powers conferred by this section, for the purposes of establishing if a person has been convicted of an offence.

Any member of the S.A.P's may instruct that a person who is in custody on any charge: or who has been released on bail or warning in terms of Section 72 of the C.P.A be made available for an identification parade in such circumstances, position and clothing as the police official should decide.

Evidence of the process which was followed during the holding of the parade is given by police witnesses. Although they are bound by certain rules and instructions, the only requirement for the admissibility of such evidence is its relevance. The prescribed safety precautions for holding an identification parade have a profound effect on the evidential value of the evidence about the parade. Legal representatives will usually vigorously attack this evidence as it is very damaging.

To eliminate possible irregularities at a parade, certain strict rules have been laid down by the police hierarchy. The court in Bailey (2) saker (C) confirmed that these are rules of practice. These rules have no statutory force. Non-compliance with these rules will not ipso facto deprive an identification parade of all evidential weight. In other words, it does not affect the admissibility of the evidence but will have an impact on the reliability of the identification.

Rule 1

The proceedings at the parade should at the time of the parade be recorded (preferably on Form sap 329) by the police official in charge of the parade.

The police official in charge of the parade should not be the investigating officer of the case in respect of which the parade is held.

Rule 3

: Table summary: Rule 2 regarding identification parades. Suspects must be informed of the parade's purpose and the allegations against them, and they have the right to a legal representative, which the police official in charge cannot refuse. Citing Sibanda 1969 (2) SA 345 (T), the rule states that while the legal representative must be given reasonable notice and opportunity to attend, the parade is not automatically invalid if they are absent. However, if a request for representation was made but not fulfilled, the state must prove to the court that there were very good reasons for the absence and that the suspect's right to a fair trial was not violated.

Rule 4

A suspect should be informed that his refusal to take part in a parade can at a possible later trial be adduced as evidence against him and that the court might draw an adverse inference from such refusal. In S versus Maphumulo (2) saker (N) it was held that the privilege against self-incrimination cannot be successfully invoked with regard to the ascertainment of bodily features because evidence of the identity of the suspect is real evidence.

Rule 5

The parade should in principle consist of at least eight to ten persons, but a greater number is desirable.

It is generally undesirable that there should be more than one suspect on the parade. If a second suspect is placed on the same parade, the two suspects should be more or less similar in general appearance and the persons on the parade should be increased to at least to sixteen.

Photographs taken during the parade constitutes real evidence and will be helpful in this regard.

Rule 7

If the same identifying witnesses are involved in two parades, then the suspect should not be the only person appearing in both; nor should a suspect be added to a parade already inspected by the identifying witnesses for purposes of a second parade.

Rule 8

The suspect and persons in the parade should be more or less of the build, height, age and appearance and should be more or less similarly dressed. General appearance includes standard of dress and grooming. This rule is of crucial importance. In {S v T (2) saker (E)} it was said that it must be ensured that that the suspect does not stand out like a sore thumb, which would obviously attract attention to him and increase the likelihood of him being identified whilst at the same time increases the likelihood of him being identified.

Rule 9

It is desirable that at least one photograph should be taken of all the persons, including the suspect, at the parade, depicting them as they appeared in the line-up and standing next to each other. These photographs may assist with regard to rules 6 and 8.

Rule 10

The police official in charge of the parade should inform the suspect that he may initially take up any position and change his position before any other identifying witness is called.

Rule 11

A suspect should be asked whether he is satisfied with the parade and if he has any further requests.

Rule 12

The police official in charge of the parade should comply with reasonable requests made by the accused especially with regard to a request to change clothing.

Rule 13

Identifying witnesses should be kept separately, not be allowed to discuss the case while waiting to be called to the parade and should not be able to see the parade being formed. The witnesses should be under the supervision of a police official who is neither the one in charge of the parade nor the investigating officer.

Rule 14

Identifying witnesses should not see anybody, particularly the suspect, on the parade before they are brought to the parade.

Rule 15

A police official, other than the investigating officer of the case, the person in charge of the parade and the official supervising witnesses who are waiting to be called to the parade, should escort the witnesses to and from the parade. After the parade the said official must escort the witnesses to a place where the witness can have no contact with witnesses who are still waiting to inspect the parade. The mentioned escorting official may not discuss the case with any of the witnesses.

Rule 16

The supervising official (before the witness is called to the parade) and the escorting official (to and from the parade) should not know who the suspect is and the parade must be formed in their absence.

Table summary: Rules 17 and 18 regarding identification parades. Rule 17 requires the official in charge to inform witnesses that the person they saw may or may not be present and that they should state if they cannot make a positive identification. Rule 18 states that identification may be done by touching the shoulder of the suspect and notes that taking a photo of the act of identification is desirable.

Code summary: Section 38, Methods of Securing Attendance of Accused in Court, defines the legal mechanisms used to ensure a defendant appears for trial based on their age. For accused persons eighteen years or older, attendance is secured through arrest, summons, written notice, or indictment. For those under eighteen, the procedure defers to the specific methods outlined in section 17 of the Child Justice Act, 2008.

In S v Swart the accused was not brought before court in any of the manners mentioned in section 38, but appeared by agreement between the prosecution, the accused and his legal representative. The question arose whether an accused's voluntary appearance has the effect of vesting that court with full jurisdiction over the person or not. The court held that section 38 is neither peremptory nor does it reflect an exhaustive list of methods of obtaining attendance at court. The provisions of section 38 should be purely directory, leaving it to the discretion of the prosecuting authorities as to the manner in which the attendance of an accused person is to be procured. Where an accused voluntarily submits himself to the jurisdiction of the court, the court clearly has jurisdiction over his person.

Section 39 - Manner and effect of arrest

(1) An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body.

(2) The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.

(3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.

An arrest (with or without a warrant) is effected, unless the person submits to custody, by the actual touching of the body of the person to be arrested or by forcibly confining his body if the circumstances require it. The arrested person must at the time of the arrest or immediately after the arrest be informed of the cause of the arrest. If a person is arrested by virtue of a warrant a copy of the warrant must be made available to the arrested person if he so demands. The effect of an arrest is that the arrested person is in lawful custody and is detained in custody until he is lawfully released from custody.

Section 40 - Arrest by peace officer without warrant

A peace officer may without warrant arrest any person-

(a) who commits or attempts to commit any offence in his presence;

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

(c) who has escaped or who attempts to escape from lawful custody;

(d) who has in his possession any implement of housebreaking or carbreaking as contemplated in section 82 of the General Law Third Amendment Act, 1993, and who is unable to account for such possession to the satisfaction of the peace officer;

(e) who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing; (f) who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence;

(g) who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce;

(h) who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition;

(i) who is found in any gambling house or at any gambling table in contravention of any law relating to the prevention or suppression of gambling or games of chance;

(j) who willfully obstructs him in the execution of his duty;

(k) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic;

(I) who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic;

(m) who is reasonably suspected of being a deserter from the South African National Defence Force;

(n) who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act;

(o) who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act;

(p) who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under an order of court or any law relating to prisons;

(q) who is reasonably suspected of having committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element.

Section 41 – Name and address of certain persons and powers of arrest by peace officer without warrant

(1) A peace officer may call upon any person—

(a) whom he has power to arrest;

(b) who is reasonably suspected of having committed or of having attempted to commit an offence;

(c) who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence, to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified.

(2) Any person who, when called upon under the provisions of subsection (1) to furnish his name and address, fails to do so or furnishes a false or incorrect name and address, shall be guilty of an offence and liable on conviction to a fine not exceeding R.300 or to imprisonment for a period not exceeding three months.

A person would normally not be obliged to make statements to the police or to supply information to the police. This includes the provision of information in respect of the name and address. However, section 41 empowers peace officers to demand the names and addresses of person falling into certain categories:

1. All persons who might be arrested by a peace officer in terms of section 40

2. Persons reasonably suspected of having committed or of having attempted to commit an offence

3. Persons who may be able to give evidence in regard to the commission or expected commission of an offence

A person who fails to supply his full name and address or supplies a name and address that the peace officer reasonably suspects to be false, may be arrested. Failure to supply the required information in terms of this section is also an offence.

: Code summary: Section 42 establishes the legal authority for private citizens to perform arrests without a warrant. It defines four specific scenarios where this is permitted: when a person commits or is suspected of committing a Schedule 1 offence in the citizen's presence, when assisting in the fresh pursuit of a suspect by an authorized person, when authorized by other specific laws, or when witnessing an affray. The section further allows for the immediate pursuit of suspects and grants property owners or their authorized representatives the right to arrest anyone committing an offence on their premises.

A private person may arrest without a warrant any person in the following situations:

1. Who commits or attempts to commit an offence in his presence or whom he reasonably suspects of having committed a schedule 1 offence

2. The private person may voluntarily assist a private person or a peace officer who is having difficulty arresting somebody

3. When he may arrest a person without a warrant in terms of any law for an offence specified in that law

4. Any person he sees engaged in an affray

Owners, lawful occupiers or persons in charge of property or somebody authorised thereto by the aforementioned mat arrest a person who commits an offence on the property or in respect of such property. This authority is not restricted to schedule 1 offences.

Section 43 – Warrant of arrest may be issued by magistrate of judge

(1) Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police— (a) which sets out the offence alleged to have been committed:

(a) which sets out the offence alleged to have been committed;

(b) which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and

(c) which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.

(2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50.

(3) A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.

A prosecutor or a commissioned police officer may apply for a warrant to be issued. The application must be in writing and contain the following information:

1. The offence which has allegedly been committed by the person for whose arrest the warrant is intended

2. One of the following – (i) that the offence was committed within the jurisdiction of the magistrate to whom the application is made or (2) that it is known or is on reasonable grounds suspected that the suspect is within the jurisdiction of the magistrate (It is preferable to apply for the warrant in the jurisdiction where the offence was committed, before the alternative is used.)

3. A statement that a reasonable suspicion exists that the person in respect of whom the warrant is applied for has committed the offence and that the suspicion is based upon information taken under oath.

It is preferable that the name of the person to be arrested is mentioned in the application, but if this is not possible, as accurate a description as possible of that person, will suffice.

Code summary: Section 44, Execution of warrants, establishes that arrest warrants issued under the Act must be executed by a peace officer, who is required to perform the execution strictly according to the warrant's specified terms.

A peace officer must execute a warrant issued under any provision of the Criminal Procedure Act and must do so in accordance with the terms thereof.

Section 45 – Arrest on telegraphic authority

(1) A telegraphic or similar written or printed communication from any magistrate, justice or peace officer stating that a warrant has been issued for the arrest of any person, shall be sufficient authority for any peace officer to arrest and detain that person.

(2) The provisions of section 50 shall apply in respect of an arrest effected in accordance with subsection (1).

A peace officer who is advised telegraphically or by means of a similar written or printed communication that a warrant has been issued, is authorized in terms of such communication to arrest the person named in it. If the warrant itself is transmitted and a copy is executed, it has the same effect as the execution of the warrant itself in terms of section 330 of the C.P.A.

Section 46 – Non-liability for wrongful arrest

(1) Any person who is authorized to arrest another under a warrant of arrest or a communication under section 45 and who, in the reasonable belief that he is arresting such person, arrests another, shall be exempt from liability in respect of such wrongful arrest.

(2) Any person who is called upon to assist in making an arrest as contemplated in subsection (1) or who is required to detain a person so arrested, and who reasonably believes that the said person is the one whose arrest has been authorized by the warrant of arrest or the communication, shall likewise be exempt from liability in respect of such assistance or detention.

Section 46 protects an arresting person and the person or authority who is vicariously liable for his actions, who is reasonably mistaken in regard to the identity of the person named in the warrant. If the arresting person believes that the person whom he takes into custody is one who, according to the warrant, he must arrest, he would not be held liable for an unlawful arrest. In determining the question of whether the arresting person acted reasonably, the question is asked whether a reasonable and careful man who was entrusted with the execution of the warrant would have believed that the person he had taken into custody was the person identified in the warrant.

Section 47 – Private persons to assist in arrest when called upon

(1) Every male inhabitant of the Republic of an age not below sixteen and not exceeding sixty years shall, when called upon by any police official to do so, assist such police official—

(a) in arresting any person;

(b) in detaining any person so arrested.

(2) Any person who, without sufficient cause, fails to assist a police official as provided in subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R.300 or to imprisonment for a period not exceeding three months.

Males between 16 and 60 years of age are obliged to assist with the arrest or detention of a person if so requested by a police officer. The duty to aid a police official is seen in a serious light and non-compliance therewith amounts to an offence.

Section 48 – Breaking open premises for purpose of arrest

Any person who may lawfully arrest another in respect of any offence, and who knows or reasonably suspects such other person to be on any premises, if he first audibly demands entry into such premises and gives notification of the purpose for which he seeks entry and fails to gain entry, may break open, enter and search such premises for the purpose of effecting the arrest.

Section 49 – Use of force in effecting arrest

(1) For the purposes of this section—

(a) 'arrestor' means any person authorised under this Act to arrest or to assist in arresting a suspect;

(b) 'suspect' means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and

(c) 'deadly force' means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.

(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if—

(a) the suspect poses a threat of serious violence to the arrestor or any other person; or

(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.

Section 50 – Procedure after arrest

(1) (a) Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.

(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.

(c) Subject to paragraph (d), if such an arrested person is not released by reason that—

(i) no charge is to be brought against him or her; or

(2) bail is not granted to him or her in terms of section 59 or 59A.

he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

(d) If the period of 48 hours expires—

(i) outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day;

(2) or will expire at, or if the time at which such period is deemed to expire under subparagraph (1) or (3) is or will be, a time when the arrested person cannot, because of his or her physical illness or other physical condition, be brought before a lower court, the court before which he or she would, but for the illness or other condition, have been brought, may on the application of the prosecutor, which, if not made before the expiration of the period of 48 hours, may be made at any time before, or on, the next succeeding court day, and in which the circumstances relating to the illness or other condition are set out, supported by a certificate of a medical practitioner, authorise that the arrested person be detained at a place specified by the court and for such period as the court may deem necessary so that he or she may recuperate and be brought before the court: Provided that the court may, on an application as aforesaid, authorise that the arrested person be further detained at a place specified by the court and for such period as the court may deem necessary; or

(3) at a time when the arrested person is outside the area of jurisdiction of the lower court to which he or she is being brought for the purposes of further detention and he or she is at such time in transit from a police station or other place of detention to such court, the said period shall be deemed to expire at the end of the court day next succeeding the day on which such arrested person is brought within the area of jurisdiction of such court.

(2) For purposes of this section—

(a) 'a court day' means a day on which the court in question normally sits as a court and 'ordinary court day' has a corresponding meaning; and

(b) 'ordinary court hours' means the hours from 9:00 until 16:00 on a court day.

(3) Subject to the provisions of subsection (6), nothing in this section shall be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court.

(4) and (5)...

(6) (a) At his or her first appearance in court a person contemplated in subsection (1) (a) who—

(i) was arrested for allegedly committing an offence shall, subject to this subsection and section 60—

(aa) be informed by the court of the reason for his or her further detention; or

(bb) be charged and be entitled to apply to be released on bail.

and if the accused is not so charged or informed of the reason for his or her further detention, he or she shall be released; or

(2) was not arrested in respect of an offence, shall be entitled to adjudication upon the cause for his or her arrest.

(b) An arrested person contemplated in paragraph (a)(i) is not entitled to be brought to court outside ordinary court hours.

(c) The bail application of a person who is charged with an offence referred to in Schedule 6 must be considered by a magistrate's court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or her may, if he or she deems it expedient or necessary for the administration of justice in a particular case, direct in writing that the application must be considered by a regional court.

(d) The lower court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or court, for a period not exceeding seven days at a time, on the terms which the court may deem proper and which are not inconsistent with any provision of this Act, if—

(i) the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail application;

(2) the prosecutor informs the court that the matter has been or is going to be referred to an attorney-general for the issuing of a written confirmation referred to in section 60 11A;

(3) ...

(4) it appears to the court that it is necessary to provide the State with a reasonable opportunity to—

(aa) procure material evidence that may be lost if bail is granted; or

(bb) perform the functions referred to in section 37; or

The detained person must be brought before a lower court within 48 hours. This does not mean that the detainee must be brought before a court that has jurisdiction to do the trial. If a detainee is brought before a court that does not have trial jurisdiction that court may still deal with the aspect of bail. The court is empowered at the arrested person's first appearance or even at a postponed date to make an order in order to determine which court has jurisdiction.

The outer limit of 48 hours envisaged in section 51(1)(c) does not entitle a policeman to detain someone for that entire period without bringing him to court if it could be done earlier. Once it is reasonably possible to bring a detainee before court before the expiry of the 48 hours period, it must be done. What is possible or reasonably possible must be judged in the light of the prevailing circumstances in any particular case. Factors such as the availability of a magistrate, police manpower, transport problems and distances are to be taken into account, but convenience is not such a factor.

Where the 48-period expires outside ordinary court hours or on a day which is not an ordinary court day, the arrested person shall be brought before a lower court not later than the end of the first court day after the expiry of the 48 hours following upon his arrest. Section 50(d)(i) was intended to extend the 48-hour outer limit during which an arrested person could be detained where the 48-hour period expired outside court hours or on a day that was not an ordinary court day. The legislative purpose in extending the 48 hours, if it is interrupted by a weekend, is to overcome the difficulty of coordinating police, prosecutorial and court administration over weekends.

Section 1(d)(ii) in practice usually deals with matters where an arrested person is hospitalized and unable to physically appear in court. Please note that provision is made for a certificate of a medical practitioner in these circumstances and a hospital note from a nurse will not suffice.

Although section 6(a)(ii) states that an arrested person is not entitled to be brought to court outside ordinary court hours, it does not prohibit such a person from having the issue of bail considered outside of ordinary court hours in terms of section 59 (bail before first appearance of accused in lower court) and 59A (Director of Public Prosecutions may authorize release on bail) of the Act. The right to bail in terms of these sections is however limited to certain offences as discussed later when dealing with the respective sections.

Section 6(d) does not mean that all bail applications may not be postponed for longer than 7 days. This section is generally limited to matters where further investigation is required at the request of the prosecution. Where the State seeks a postponement of a bail hearing as provided for in terms of section 50, the prosecutor is not relieved of the duty to put all relevant information before the court. Bail applications or the continuance may otherwise be postponed for longer than 7 days at the discretion of the court.

Section 51 – Escaping and aiding escaping before incarceration

(1) Any person who escapes or attempts to escape from custody after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 117 of the Correctional Services Act, 1998.

(2) Any person who rescues or attempts to rescue from custody any person after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, or who aids the person to escape or to attempt to escape from custody, or who harbours or conceals or assists in harbouring or concealing any person who escapes from custody after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 117 of the said Correctional Services Act, 1998.

(3) Notwithstanding anything to the contrary in any law contained, a lower court shall have jurisdiction to try any offence under this section and to impose any penalty prescribed in respect thereof.

This section deals with escaping, attempting to escape and aiding escaping after a person has been lawfully arrested, but before the arrested person was lodged in a correctional facility, police-cell or lock-up. Once the person has been lodged in any of the mentioned facilities, any escape, attempted escape and aiding an escape is dealt with under the Correctional Services Act 111 of 1998.

Section 52 – Saving of other powers of arrest

No provision of this Chapter relating to arrest shall be construed as removing or diminishing any authority expressly conferred by any other law to arrest, detain or put any restraint upon any person.

Chapter 5 of the C.P.A does not affect the authority conferred by any other law to arrest or detain a person.

Section 53 – Saving of civil-law rights and liability

Subject to the provisions of sections 46 and 331, no provision of this Chapter relating to arrest shall be construed as removing or diminishing any civil right or liability of any person in respect of a wrongful or malicious arrest.

Section 53 provides that persons who suffer as a result of wrongful or malicious arrest have recourse to the usual remedies at civil law.

54 Summons as method of securing attendance of accused in magistrate's court

(1) Where the prosecution intends prosecuting an accused in respect of any offence and the accused is not in custody in respect of that offence and no warrant has been or is to be issued for the arrest of the accused for that offence, the prosecutor may secure the attendance of the accused for a summary trial in a lower court having jurisdiction by drawing up the relevant charge and handing such charge, together with information relating to the name and, where known and where applicable, the residential address and occupation or status of the accused, to the clerk of the court who shall-

(a) issue a summons containing the charge and the information handed to him by the prosecutor, and specifying the place, date and time for the appearance of the accused in court on such charge; and

(b) deliver such summons, together with so many copies thereof as there are accused to be summoned, to a person empowered to serve a summons in criminal proceedings.

(2) (a) Except where otherwise expressly provided by any law, the summons shall be served by a person referred to in subsection (1) (b) by delivering it to the person named therein or, if he cannot be found, by delivering it at his residence or place of employment or business to a person apparently over the age of sixteen years and apparently residing or employed there.

(b) A return by the person who served the summons that the service thereof has been effected in terms of paragraph (a), may, upon the failure of the person concerned to attend the relevant proceedings, be handed in at such proceedings and shall be prima facie proof of such service.

(3) A summons under this section shall be served on an accused so that he is in possession thereof at least fourteen days (Sundays and public holidays excluded) before the date appointed for the trial.

- The issue of a summons is formally the task of the clerk of the court, but it is primarily the prosecutor who is responsible for the preparation of the summons. If the prosecutor decides to prosecute a person, it is the prosecutor who prepares a charge sheet. In practice the prosecutor also completes the summons containing the name and other personal particulars of the accused before it is handed to the clerk of the court. If the prosecutor instead of the clerk of the court signs the summons, it is none the less considered to have been properly issued and valid.

- Service is effected by an authorised official handing the summons to the person therein named, or making use of one of the alternative forms of service. The alternative forms of service which are provided by s 54(2)(a) involve the handing over of the summons at the residential, employment or business address of the person named therein to someone apparently over the age of sixteen and who apparently lives there.

- A summons may not come into the possession of an accused less than 14 days before his intended trial date. Please note that although the summons indicates it as a trial date, it is not the actual trial date, but rather the date of first appearance. At the first appearance issues such as legal representation and access to the docket are considered and only thereafter is the matter postponed for trial. For purposes of computing the 14 day period, Sundays and public holidays are not counted. If this requirement is not observed and the accused fails to appear on the date entered on the summons, no warrant for his arrest may be issued. However, should an accused, despite too short a period of notice being given, appear and plead without objecting to the fact that he came into possession of the summons less than fourteen days earlier, he is barred from arguing that the summons is invalid by virtue of its not having been served in good time – {Singh v Blomerus no (4) S.A (N).}

- o Where children are served in terms of section 19 of the Child Justice Act, it is required that the summons be served on the child in the presence of his or her parent or other adult. The child and the adult involved must then also be specifically informed of the child's rights and the allegation against him or her.

(1) Subject to section 4(2) of the Child Justice Act, 2008, an accused who is eighteen years or older and who is summoned under section 54 to appear at criminal proceedings and who fails to appear at the place and on the date and at the time specified in the summons or who fails to remain in attendance at such proceedings, shall be guilty of an offence and liable to the punishment prescribed under subsection (2).

1A The provisions of section 46 of the Child Justice Act, 2008, apply to an accused who is under the age of eighteen years and who fails to appear at a preliminary inquiry in terms of a summons issued under that Act.

(2) The court may, if satisfied from the return of service referred to in paragraph (b) of section 54(2) that the summons was served on the accused in terms of paragraph (a) of that section and that the accused has failed to appear at the place and on the date and at the time specified in the summons, or if satisfied that the accused has failed to remain in attendance at the proceedings in question, issue a warrant for his arrest and, when he is brought before the court, in a summary manner enquire into his failure so to appear or so to remain in attendance and unless the accused satisfies the court that his failure was not due to any fault on his part, convict him of the offence referred to in subsection (1) and sentence him to a fine not exceeding R.300 or to imprisonment for a period not exceeding three months: Provided that where a warrant is issued for the arrest of an accused who has failed to appear in answer to the summons, the person executing the warrant—

(a) may, where it appears to him that the accused received the summons in question and that the accused will appear in court in accordance with a warning under section 72; or

(b) shall, where it appears to him that the accused did not receive the summons in question or that the accused has paid an admission of guilt fine in terms of section 57 or that there are other grounds on which it appears that the failure of the accused to appear on the summons was not due to any fault on the part of the accused, for which purpose he may require the accused to furnish an affidavit or affirmation, release the accused on warning under section 72 in respect of the offence of failing to appear in answer to the summons, whereupon the provisions of that section shall mutatis mutandis apply with reference to the said offence.

2A (a) If the court issues a warrant of arrest in terms of subsection (2) in respect of a summons which is endorsed in accordance with section 57(1)(a) —

(i) an endorsement to the same effect shall be made on the warrant in question;

(2) the court may make a further endorsement on the warrant to the effect that the accused may admit his guilt in respect of the failure to appear in answer to the summons or to remain in attendance at the criminal proceedings, and that he may upon arrest pay to a clerk of the court or at a police station a fine stipulated on the warrant in respect of such failure, which fine shall not exceed the amount to be imposed in terms of subsection (2), without appearing in court.

(b) The fine paid in terms of paragraph (a) at a police station or to a clerk of a magistrate's court other than the magistrate's court which issued the warrant of arrest, shall, as soon as is expedient, together with the warrant of arrest in question, be forwarded to the clerk of the court which issued that warrant, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such admission of guilt in the criminal record book for admission of guilt, whereupon the accused concerned shall be deemed to have been convicted by the court in respect of the offence in question.

(3) (a) If, in any case in which a warrant of arrest is issued, it was permissible for the accused in terms of section 57 to admit his guilt in respect of the summons on which he failed to appear and to pay a fine in respect thereof without appearing in court, and the accused is arrested under such warrant in the area of jurisdiction of a magistrate's court other than the magistrate's court which issued the warrant of arrest, such other magistrate's court may, notwithstanding any provision of this Act or any other law to the contrary, and if satisfied that the accused has, since the date on which he failed to appear on the summons in question, admitted his guilt in respect of that summons and has paid a fine in respect thereof without appearing in court, in a summary manner enquire into his failure to appear on such summons and, unless the accused satisfies the court that his failure was not due to any fault on his part, convict him of the offence referred to in subsection (1) and sentence him to a fine not exceeding R.300 or to imprisonment for a period not exceeding three months.

(b) In proceedings under paragraph (a) before such other magistrate's court, it shall be presumed, upon production in such court of the relevant warrant of arrest, that the accused failed to appear on the summons in question, unless the contrary is proved.

Where an accused who is 18 years or older was been summoned to court and failed to appear or to remain in attendance, the court may issue a warrant of arrest for the accused if the court is satisfied that the summons was served as prescribed in section 54. If the warrant is executed and the accused is brought before court, the court may enquire into his failure to appear or remain in attendance in a summary manner. If the court is satisfied that the failure to appear or to remain in attendance was due to his fault, the court may then convict him of the offence of failure to appear or remain in attendance as provided for in the section and sentence him to a fine not exceeding R.300 or imprisonment not exceeding 3 months.

The procedure which is followed where a person who has been summoned to appear on a given day is absent on that day consists of two phases. On the day of his failure to attend, the court investigates whether the summons was properly served. For this purpose the court may rely on the return of service of the serving official.

Should the court, however, entertain any doubt as to the accuracy or effectiveness thereof, it may require further evidence before concluding that proper service took place. If there is then no doubt in the court's mind that proper service was effected, the court issues a warrant for the arrest of the accused. It may be that the return of service before the magistrate is in reality the return of a putative or defective service, yet gives no hint of that fact.

The validity of a warrant for the arrest of a person who has failed to appear is not dependent on fault. Even where the accused is unaware of his being required to attend, the consequent warrant can be legally in order – Minister van Polisie v Goldschagg (1) S.A (A). This state of affairs is at least partially mitigated by the rule of practice that warrants are limited to cases in which failure to attend follows personal service of the summons.

- In consequence of the court's being convinced of proper service, a prima facie case of failure to attend exists against the accused. The second phase comes into play once the accused appears in court under the warrant for his arrest. The court may now summarily enquire into the reasons for the accused's failure to attend. First the court will inform him of the prima facie case against him and ask whether he received the summons. The subsequent proceedings must be seen against the background of the onus upon the accused to show on a balance of probabilities that his failure was not because of any fault on his part.

Section 56 – Written notice as method of securing attendance of accused in magistrate's court

: A peace officer may issue a written notice to an accused person if they believe a magistrate's court would not impose a fine exceeding the amount determined by the Minister. This notice must specify the accused's name, address, and occupation, provide a date and place for the court appearance, include a section 57 endorsement allowing the accused to admit guilt and pay a fine without appearing in court, and contain a certificate signed by the officer confirming the notice was delivered and explained. If the accused is in custody, this notice results in their immediate release. The officer must then send a duplicate original of the notice to the clerk of the court, which serves as prima facie proof that the original was issued and handed to the accused.

If an accused is alleged to have committed an offence and a peace officer on reasonable grounds believes that the accused, after being convicted, will not impose a fine exceeding the amount determined by the Minister (currently R.5000, the peace officer may hand the accused a written notice to appear. The written notice may be issued irrespective of whether the person is in custody or not. If the person is in custody, he is released. The failure to attend court after a written notice has been issued is dealt with in the same manner as discussed under section 55.

Section 57 – Admission of guilt and payment of fine without appearance in court

(1) Where-

(a) a summons is issued against an accused under section 54 (in this section referred to as the summons) and the public prosecutor or the clerk of the court concerned on reasonable grounds believes that a magistrate's court, on convicting the accused of the offence in question, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, and such public prosecutor or clerk of the court endorses the summons to the effect that the accused may admit his guilt in respect of the offence in question and that he may pay a fine stipulated on the summons in respect of such offence without appearing in court; or

(b) a written notice under section 56 (in this section referred to as the written

notice) is handed to the accused and the endorsement in terms of paragraph (c) of subsection (1) of that section purports to have been made by a peace officer, the accused may, without appearing in court, admit his guilt in respect of the offence in question by paying the fine stipulated (in this section referred to as the admission of guilt fine) either to the clerk of the magistrate's court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the fine may be paid at a specified local authority, at such local authority.

(2) (a) The summons or the written notice may stipulate that the admission of guilt fine shall be paid before a date specified in the summons or written notice, as the case may be.

(b) An admission of guilt fine may be accepted by the clerk of the court concerned notwithstanding that the date referred to in paragraph (a) or the date on which the accused should have appeared in court has expired.

(3) (a) (i) Subject to the provisions of subparagraphs (2) and (3), an accused who intends to pay an admission of guilt fine in terms of subsection (1), shall surrender the summons or the written notice, as the case may be, at the time of the payment of the fine.

(2) If the summons or written notice, as the case may be, is lost or is not available and the copy thereof known as the control document-

(aa) is not available at the place of payment referred to in subsection (1), the accused shall surrender a copy of the summons or written notice, as the case may be, at the time of the payment of the fine; or

(bb) is available at the place of payment referred to in subsection (1), the admission of guilt fine may be accepted without the surrender of a copy of the summons or written notice, as the case may be.

(3) If an accused in respect of whom a warrant has been endorsed in terms of section 55 2A intends to pay the relevant admission of guilt fine, the clerk of the court may, after he has satisfied himself that the warrant is so endorsed, accept the admission of guilt fine without the surrender of the summons, written notice or copy thereof, as the case may be.

(b) A copy referred to in paragraph (a) (2) may be obtained by the accused at the magistrate's court, police station or local authority where the copy of the summons or written notice in question known as the control document is filed.

(c) Notwithstanding the provisions of subsection (1), an accused referred to in paragraph (a) (3) may pay the admission of guilt fine in question to the clerk of the court where he appears in consequence of such warrant, and if the said clerk of the court is not the clerk of the magistrate's court referred to in subsection (1), he shall transfer such admission of guilt fine to the latter clerk of the magistrate's court.

(4) No provision of this section shall be construed as preventing a public prosecutor attached to the court concerned from reducing an admission of guilt fine on good cause shown.

(5) (a) An admission of guilt fine stipulated in respect of a summons or a written notice shall be in accordance with a determination which the magistrate of the district or area in question may from time to time make in respect of any offence or, if the magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of such magistrate or a police official of or above the rank of non-commissioned officer attached to a police station within the magisterial district or area in question or, in the absence of such a police official at any such police station, by the senior police official then in charge at such police station.

(b) An admission of guilt fine determined under paragraph (a) shall not exceed the maximum of the fine prescribed in respect of the offence in question or the amount determined by the Minister from time to time by notice in the Gazette (currently R.10 000), whichever is the lesser.

(6) An admission of guilt fine paid at a police station or a local authority in terms of subsection and the summons or, as the case may be, the written notice surrendered under subsection, shall, as soon as is expedient, be forwarded to the clerk of the magistrate's court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice surrendered to the clerk of the court under subsection, in the criminal record book for admissions of guilt, whereupon the accused concerned shall, subject to the provisions of subsection, be deemed to have been convicted and sentenced by the court in respect of the offence in question.

(7) The judicial officer presiding at the court in question shall examine the documents and if it appears to him that a conviction or sentence under subsection is not in accordance with justice or that any such sentence, except as provided in subsection, is not in accordance with a determination made by the magistrate under subsection or, where the determination under that subsection has not been made by the magistrate, that the sentence is not adequate, such judicial officer may set aside the conviction and sentence and direct that the accused be

prosecuted in the ordinary course, whereupon the accused may be summoned to answer such charge as the public prosecutor may deem fit to prefer: Provided that where the admission of guilt fine which has been paid exceeds the amount determined by the magistrate under subsection, the said judicial officer may, in lieu of setting aside the conviction and sentence in question, direct that the amount by which the said admission of guilt fine exceeds the said determination be refunded to the accused concerned.

■ In terms of section 35(3)(a) of the Constitution every accused person has the right to be informed of the charge with sufficient detail to enable him to answer to it. In {S v Flynn (2) saker K.Z.P it was held that this constitutional right, as well as the essentials of a charge as set out in section 84 of the C.P.A, govern the charge in an admission of guilt:"The charge must in every respect conform to the requirements of a valid charge."

■ By electing to pay an admission of guilt fine an accused waives several important procedural rights which he would have enjoyed at trial and includes the right to be sentenced only upon proof beyond a reasonable doubt that he committed the offence, the right to confront his accusers, the right to testify in an open court, the right to call witnesses and legal representation.

In {S v Tong (1) saker W.C.C the court stated that an accused must be warned of the full consequences of paying an admission of guilt fine. He must therefore be warned that it will be deemed that he was convicted and sentenced by a court and that such conviction will appear on his criminal record. This has resulted in the practice that an annexure has been included for the accused to sign that he has been warned about the abovementioned consequences.

In § 5 Karan (2) saker W.C.C it was stated that section 57(7) confers a power of review on the magistrate and empowers the magistrate to intervene and set aside any conviction and/or sentence where it appears that any of the 3 grounds mentioned in subsection 7 are present.

■ Where an admission of guilt is set aside, the accused may be prosecuted in the ordinary course and the pleas of autrefois acquit or convict will not be available to the accused.

Section 57A - Admission of guilt and payment of fine after appearing in court

(1) If an accused who is alleged to have committed an offence has appeared in court and is-

(a) in custody awaiting trial on that charge and not on another more serious charge;

(b) released on bail under section 59 or 60; or

(c) released on warning under section 72.

the public prosecutor may, before the accused has entered a plea and if he or she on reasonable grounds believes that a magistrate's court, on convicting such accused of that offence, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, (currently R.10 000) hand to the accused a written notice, or cause such notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay a stipulated fine in respect thereof without appearing in court again.

(2) Such notice shall contain

(a) the case number;

(b) a certificate under the hand of the prosecutor or peace officer affirming that he or she handed or delivered, as the case may be, the original of such notice to the accused and that he or she explained to the accused the import thereof; and

(c) the particulars and instructions contemplated in paragraphs (a) and (b) of section 56 (1).

(3) The public prosecutor shall endorse the charge-sheet to the effect that a notice contemplated in this section has been issued and he or she or the peace officer, as the case may be, shall forthwith forward a duplicate original of the notice to the clerk of the court which has jurisdiction.

(4) The provisions of sections 55, 56 (2) and (4) and 57 (2) to (7), inclusive, shall apply mutatis mutandis to the relevant written notice handed or delivered to an accused under subsection (1) as if, in respect of section 57, such notice were the written notice contemplated in that section and as if the fine stipulated in such written notice were also the admission of guilt fine contemplated in that section.

Payment of admission of guilt is not possible once an accused person has pleaded to a charge in court. (Section 106 of the C.P.A deals with the pleas.) The same principle that the accused must be aware of the full consequences at the time of paying the admission of guilt is also applicable here.

In {S v Makolane (1) saker (T)} it was held that prosecutors are not prohibited by section 103 of the Firearms Control Act 60 of 2000 from invoking admission of guilt procedures as provided for in section 57A of the C.P.A. Section 103 (1) of the Firearms Control Act states that a person convicted of a list of offences mentioned in the section, becomes unfit to possess a firearm unless the court determines otherwise. It lists offences that are of a serious nature. Admission of guilt would not be applicable for these offences and in any event not be appropriate. The prosecution would however be able to set admission of guilt for an offence involving violence or dishonesty for which the accused is not sentenced to imprisonment without the option of a fine (as the case would then be when admission of guilt is set). Section 103(2) of the Firearms Control Act deals with when the court must enquire into the fitness of a person to possess a firearm after the person has been convicted for offences listed in schedule 2 of the same Act. The same principle as mentioned above is again applicable.

- Prosecutors must approach admission of guilt with care with due consideration of the nature of the offence, previous convictions and a possible suitable sentence.

Section 58 – Effect of bail

The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody shall be released from custody upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his bail, and that he shall appear at the place and on the date and at the time appointed for his trial or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned, and that the release shall, unless sooner terminated under the said provisions, endure until a verdict is given by a court in respect of the charge to which the offence in question relates, or, where sentence is not imposed forthwith after verdict and the court in question extends bail, until sentence is imposed: Provided that where a court convicts an accused of an offence contemplated in Schedule 5 or 6, the court shall, in considering the question whether the accused's bail should be extended, apply the provisions of section 60(11)(a) or (b), as the case may be, and the court shall take into account—

(a) the fact that the accused has been convicted of that offence; and

(b) the likely sentence which the court might impose.

Section 59 - Bail before first appearance of accused in lower court

1) (a) An accused who is in custody in respect of any offence, other than an offence –

(i) referred to in Part 2 or Part 3 of Schedule 2;

(2) against a person in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998; or

(3) referred to in –

(aa) section 17(1)(a) of the Domestic Violence Act,

(bb) section (1) (a) of the Protection from Harassment Act, 2011; or

(cc) any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.

(b) The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognizance on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered.

(c) The said police official shall forthwith forward a duplicate original of such recognizance to the clerk of the court which has jurisdiction. (2) Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court, but subject to the provisions of section 62, remain in force after such appearance in the same manner as bail granted by the court under section 60 at the time of such first appearance.

Section 59 creates what is sometimes loosely referred to as police bail.

It is determined by a police official of a certain rank or above and is determined before the first lower court appearance of the accused. In Mvu v Minister of Safety and Security and another 2009 (2) saker G.S.J pointed out that a commissioned officer is of or above the rank of inspector. (warrant officer)

Section 59 has limited application and bail may not be granted for the offences listed in Part 2 or Part 3 of Schedule 2. It further specifically excludes the offences mentioned in the section. In addition to this section 59 and 59A is further excluded for essential infrastructure-related offences in terms of section 2 of the Criminal Matters Amendment Act 18 of 2015.

Section 59A - Director of Public Prosecutions may authorise release on bail

(1) A Director of Public Prosecutions, or a prosecutor authorised thereto in writing by the Director of Public Prosecutions concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail: Provided that a person accused of any offence contemplated in section 59(1)(a)(ii) or (3) may not be released on bail in accordance with the provisions of this section.

(3) The effect of bail granted in terms of this section is that the person who is in custody shall be released from custody.

Table summary: The legal procedures for bail applications under Section 60. An accused person can be released upon payment or guarantee of a determined sum, subject to reasonable conditions imposed by the DPP or prosecutor, or a combination of both. Once released, the accused must appear in court on the first court day at the time specified by the DPP or prosecutor. The court then has the authority to either extend or amend the bail conditions or, if that is not appropriate, consider the bail application using the jurisdiction and duties defined in section 60. Additionally, bail proceedings must be recorded according to section 64, and bail granted under this section is legally regarded as bail granted by a court in terms of section 60.

Bail granted in terms of this section remains subject to judicial control. Section 59A can only be applied prior to first appearance in court and does not permit release on warning. In a policy directive to prosecutors it has been suggested that in considering the amount of bail to be set, the customary or likely amount the court of the district would set in similar circumstances should serve as a guide.

■ Section 59A is confined to Schedule 7 offences and prosecutors acting in terms of section 59A must have the required written authorisation from the D.P.P. In all instances there must be prior consultation with the official charged with the investigation. A policy directive issued to prosecutors determines that the consultation should not take place in the presence of the accused or his legal representative. Mokoena: A Guide to bail Applications, 2 edition @ pg 27 reminds prosecutors that the investigating officer only acts in an advisory capacity and that the prosecutor is required to make the final decision based on fairness and objectivity.

(1) (a) An accused who is in custody in respect of an offence shall, subject to the provisions of section 50(6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.

b) Subject to the provisions of section 50(6)(c), the court referring an accused to any other court for trial or sentencing retains jurisdiction relating to the powers, functions and duties in respect of bail in terms of this Act until the accused appears in such other court for the first time.

(c) If the question of the possible release of the accused on bail is not raised by the accused or the prosecutor, the court shall ascertain from the accused whether he or she wishes that question to be considered by the court.

(2) In bail proceedings the court—

(a) may postpone any such proceedings as contemplated in section 50(6);

(b) may, in respect of matters that are not in dispute between the accused and the prosecutor, acquire in an informal manner the information that is needed for its decision or order regarding bail;

(c) may, in respect of matters that are in dispute between the accused and the prosecutor, require of the prosecutor or the accused, as the case may be, that evidence be adduced;

(d) shall, where the prosecutor does not oppose bail in respect of matters referred to in subsection (11) (a), (b) and (c), require of the prosecutor to place on record the reasons for not opposing the bail application.

2A The court must, before reaching a decision on the bail application, take into consideration—

(a) any pre-trial services report regarding the desirability of releasing an accused on bail, if such a report is available; and

(b) the view of any person against whom the offence in question was allegedly committed, regarding his or her safety.

2B (a) If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), and if the payment of a sum of money is to be considered as a condition of bail, the court must hold a separate inquiry into the ability of the accused to pay the sum of money being considered or any other appropriate sum.

(b) If, after an inquiry referred to in paragraph (a), it is found that the accused is—

(i) unable to pay any sum of money, the court must consider setting appropriate conditions that do not include an amount of money for the release of the accused on bail or must consider the release of the accused in terms of a guarantee as provided for in subsection (13) (b); or

(2) able to pay a sum of money, the court must consider setting conditions for the release of the accused on bail and a sum of money which is appropriate in the circumstances.

(3) If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision on the bail application, the presiding officer shall order that such information or evidence be placed before the court.

(4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established—

(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed, or any other particular person or will commit a Schedule 1 offence;

(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or

(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system.

(e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security;

(5) In considering whether the ground in subsection (4) (a) has been established, the court may, where applicable, take into account the following factors, namely—

(a) the degree of violence towards others implicit in the charge against the accused;

(b) any threat of violence which the accused may have made to a person against whom the offence in question was allegedly committed or any other person;

(c) any resentment the accused is alleged to harbour against a person against whom the offence in question was allegedly committed or any other person;

(d) any disposition to violence on the part of the accused, as is evident from his or her past conduct;

(e) any disposition of the accused to commit—

(i) offences referred to in Schedule 1;

(2) an offence against any person in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998; or

(3) an offence referred to in—

(aa) section 17 (1) (a) of the Domestic Violence Act, 1998;

(bb) section 18 (1) (a) of the Protection from Harassment Act, 2011; or

(cc) any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, as is evident from his or her past conduct;

(f) the prevalence of a particular type of offence;

(g) any evidence that the accused previously committed an offence—

(i) referred to in Schedule 1;

(2) against any person in a domestic relationship, as defined in section 1 of the

Domestic Violence Act, 1998; or

(3) referred to in—

(aa) section 17 (1) (a) of the Domestic Violence Act,

(bb) section 18 (1) (a) of the Protection from Harassment Act, 2011; or

(cc) any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, while released on bail or placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998; or

(h) any other factor which in the opinion of the court should be taken into account.

(6) In considering whether the ground in subsection (4) (b) has been established, the court may, where applicable, take into account the following factors, namely—

(a) the emotional, family, community or occupational ties of the accused to the place at which he or she is to be tried;

(b) the assets held by the accused and where such assets are situated;

(c) the means, and travel documents held by the accused, which may enable him or her to leave the country;

(d) the extent, if any, to which the accused can afford to forfeit the amount of bail which may be set;

(e) the question whether the extradition of the accused could readily be effected should he or she flee across the borders of the Republic in an attempt to evade his or her trial;

(f) the nature and the gravity of the charge on which the accused is to be tried;

(g) the strength of the case against the accused and the incentive that he or she may in consequence have to attempt to evade his or her trial;

(h) the nature and gravity of the punishment which is likely to be imposed should the accused be convicted of the charges against him or her;

(i) the binding effect and enforceability of bail conditions which may be imposed and the ease with which such conditions could be breached; or

(i) any other factor which in the opinion of the court should be taken into account.

(7) In considering whether the ground in subsection (4) (c) has been established, the court may, where applicable, take into account the following factors, namely—

(a) the fact that the accused is familiar with the identity of witnesses and with the evidence which they may bring against him or her;

(b) whether the witnesses have already made statements and agreed to testify;

(c) whether the investigation against the accused has already been completed;

(d) the relationship of the accused with the various witnesses and the extent to which they could be influenced or intimidated;

(e) how effective and enforceable bail conditions prohibiting communication between the accused and witnesses are likely to be;

(f) whether the accused has access to evidentiary material which is to be presented at his or her trial;

(g) the ease with which evidentiary material could be concealed or destroyed; or

(h) any other factor which in the opinion of the court should be taken into account.

(8) In considering whether the ground in subsection (4) (d) has been established, the court may, where applicable, take into account the following factors, namely—

(a) the fact that the accused, knowing it to be false, supplied false information at the time of his or her arrest or during the bail proceedings;

(b) whether the accused is in custody on another charge or whether the accused is on parole;

(c) any previous failure on the part of the accused to comply with bail conditions or any indication that he or she will not comply with any bail conditions; or

(d) any other factor which in the opinion of the court should be taken into account.

8A In considering whether the ground in subsection (4) (e) has been established, the court may, where applicable, take into account the following factors, namely—

(a) whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed;

(b) whether the shock or outrage of the community might lead to public disorder if the accused is released;

(c) whether the safety of the accused might be jeopardised by his or her release;

(d) whether the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused;

(e) whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system; or (f) any other factor which in the opinion of the court should be taken into account.

(9) In considering the question in subsection (4) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely—

(a) the period for which the accused has already been in custody since his or her arrest;

(b) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;

(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay;

(d) any financial loss which the accused may suffer owing to his or her detention;

(e) any impediment to the preparation of the accused's defence or any delay in obtaining legal representation which may be brought about by the detention of the accused;

(f) the state of health of the accused; or

(g) any other factor which in the opinion of the court should be taken into account.

(10) Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the personal interests of the accused against the interests of justice: Provided that the interests of justice should be interpreted to include, but not be limited to, the safety of any person against whom the offence in question has allegedly been committed.

(11) Notwithstanding any provision of this Act, where an accused is charged with an offence —

(a) referred to in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release;

(b) referred to in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release; or contemplated in section 59 (1) (a) (2) or (3), the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release.

11A

(a) If the Director of Public Prosecutions having jurisdiction intends charging any person with an offence referred to in Schedule 5 or 6, the Director of Public Prosecutions may, irrespective of what charge is noted on the charge sheet, at any time before such person pleads to the charge, issue a written confirmation to the effect that he or she intends to charge the accused with an offence referred to in Schedule 5 or 6.

(b) The written confirmation shall be handed in at the court in question by the prosecutor as soon as possible after the issuing thereof and forms part of the record of that court.

(c) Whenever the question arises in a bail application or during bail proceedings whether any person is charged or is to be charged with an offence referred to in Schedule 5 or 6, a written confirmation issued by a Director of Public Prosecutions under paragraph (a) shall, upon its mere production at such application or proceedings, be prima facie proof of the charge to be brought against that person.

11B

(a) In bail proceedings, the accused, or his or her legal adviser, is compelled to inform the court whether—

(i) the accused has previously been convicted of any offence;

(2) there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges;

(3) an order contemplated in section 5 or 6 of the Domestic Violence Act, 1998, section 3 or 9 of the Protection from Harassment Act, 2011, or any similar order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, and whether such an order is still of force; and

(4) the accused is, or was at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998.

(b) Where the legal adviser of an accused on behalf of the accused submits the information contemplated in paragraph (a), whether in writing or orally, the accused shall be required by the court to declare whether he or she confirms such information or not.

(c) The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.

(d) An accused who wilfully—

(i) fails or refuses to comply with the provisions of paragraph (a); or

(2) furnishes the court with false information required in terms of paragraph (a), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(12) (a) The court may make the release of an accused on bail subject to conditions which, in the court's opinion, are in the interests of justice: Provided that the interests of justice should be interpreted to include, but not be limited to, the safety of any person against whom the offence in question has allegedly been committed.

(b) If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), in respect of an offence that was allegedly committed by the accused against any person in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998, with the accused, and a protection order as contemplated in that Act has not been issued against the accused, the court must, after holding an enquiry, issue a protection order referred to in section 6 of that Act against the accused, where after the provisions of that Act shall apply.

(13) The court releasing an accused on bail in terms of this section, may order that the accused—

(a) deposit with the clerk of any magistrate's court or the registrar of any High Court, as the case may be, or with a correctional official at the prison where the accused is in custody or with a police official at the place where the accused is in custody, the sum of money determined by the court in question; or

(b) shall furnish a guarantee, with or without sureties, that he or she will pay and forfeit to the State the amount that has been set as bail, or that has been increased or reduced in terms of section 63(1), in circumstances in which the amount would, had it been deposited, have been forfeited to the State.

(14) Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in or forms part of a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for purposes of his or her trial.

Bail is often misunderstood. The purpose of bail is that the accused must attend his trial without the interference with the administration of justice. This is weighed up against the liberty of the accused and the presumption of innocence. It is not a form of anticipatory punishment.

In S v Mathebula (1) saker S.C.A it was stated in relation to onus:'In order successfully to challenge the merits of such a case in bail proceedings an applicant needs to go further: he must prove on a balance of probability that he will be acquitted of the charge:...Nor is an attack on the prosecution case at all necessary to discharge the onus; the applicant who chooses to follow that route must make his own way and not expect to have it cleared before him'. Thus it has been held that until an applicant has set up a prima facie case of the prosecution failing there is no call on the state to rebut his evidence to that effect. It is thus not sufficient to merely state that the State has a weak case against the applicant.

■ Section 60(1)(b) provides that if a court refers an accused to another court for trial or sentencing the court referring the accused retains jurisdiction relating to bail until the accused appears in such other court for the first time. In S v Seroka (2) saker L.P the court held that if the receiving court refers the matter back to the transferring court, such transferring court shall again have the required jurisdiction to entertain the bail application.

There is a duty on the prosecutor to safeguard the rights of the community. The provisions of the C.P.A must be strictly adhered to. Failure to do so could have dire consequences and the failure to place all relevant information before court may lead to a delictual claim against the State such as in Carmichele v Minister of Safety and Security (4) S.A C.C. In this case not all the facts relevant to the bail application was placed before court. After the accused was released on bail he harmed the applicant and the applicant successfully instituted a civil claim.

If a court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision on the bail application, the presiding officer shall order that such information or evidence be placed before the court. In § 5 Mabena and other (1) saker S.C.A the court held although a bail inquiry is less formal than a trial, it remains a formal court procedure. A court is afforded greater inquisitorial powers in such an inquiry, but those powers are afforded so as to ensure that all material factors are brought to account, even when they were not presented by the parties.

Because bail is not as stringent as trial proceedings, it is often said to be inquisitorial in nature. The rules of evidence are not applied strictly and hearsay evidence is allowed. Viva voice evidence is not always required. For these reasons, the use of so called bail statements by both the investigating officer and the accused are permitted. In S versus Scott-Crossley (2) saker S.C.A it was pointed out that it is not the function of the Court which is seized of a bail application to analyse the evidence regarding the merits of the charges an accused is facing in great detail, otherwise the proceedings will become a dress rehearsal for the trial which is to ensue. In S versus Diamini; S versus Dladla; S versus Joubert; S versus Schietekat (2) saker 51 C.C the Constitutional Court held that bail proceedings are considerably less formal than trial proceedings, as they are interlocutory in nature and are not concerned with the determining of the guilt of the accused. Thus, the evidentiary material which is proffered at such proceedings need not comply with strict rules pertaining to the admissibility of oral or written evidence. In the case of Nafiz Modack & Jacques Cronje v The State, case number A 44/2022, and Ashley Tabisher v The State, case number A.111 22, delivered by the High Court of the Western Cape Division, Cape Town on 3 March 2023, the principle was again confirmed that the admissibility of evidence was a matter which properly fell to be determined by the trial court and not by the court dealing with the bail application.

- If the prosecution does not oppose bail for schedule 5 offences, schedule 6 offences or offences contemplated in section 59(1)(a)(ii) or (3) – in general, offences with regard to the Domestic Violence Act and the Harassment Act stipulated in section 59 – the reasons for not opposing bail must be placed on record. Policy Directives have been issued in this regard to the effect that it is the Senior Prosecutor and the D.P.P who may decide not to oppose bail.

With regard to schedule 5 offences and offences contemplated in section 59(1)(a)(ii) or (3), the onus of proof is on the accused to show that the interest of justice permits his release on bail.

Regarding “interest of justice” the C.P.A is clear in section 60(4) what the grounds are for establishing that it is not in the interest of justice to release the accused on bail. Sections 60(5) to 60 (9) refer to the factors to be taken into account in deciding if any of the grounds mentioned in section 60(4) have been established.

- In schedule 6 offences the accused must show that exceptional circumstances exist which in the interest of justice permit his release.

With regard to exceptional circumstances it must be noted that the C.P.A does not provide an indication of what constitutes exceptional circumstances. In S v Schietekat (and other cases) (2) saker C.C the court indicated that the factors mentioned in subsections 4 to 9 are ordinary factors. In S v C (2) saker (C) the court indicated that exceptional circumstances must be sufficiently unusual or different. In S v H (1) saker (W) the court held that exceptional circumstances must be circumstances which are not found in the ordinary bail application but pertain peculiarly to the application of the accused.

In S v Jonas (2) saker S.E it was held that the term exceptional circumstances do not posit a closed list of circumstances. Whereas exceptional denotes something "unusual, extraordinary, remarkable, peculiar or simply different", it has been observed that showing exceptional circumstances does not set a standard that would render it impossible for an applicant to make a case for bail – S v Viljoen (2) saker S.C.A. They do not have to be circumstances over and beyond and generically different from those enumerated in sections 60 (4) through (9), which are circumstances to which regard is had in run of the mill bail applications not subject to the strictures of section 60(11). It is clear, however, that they must at least be compelling enough to take the case made out for the granting of bail beyond the ordinary.

Although the accused must show these exceptional circumstances, it is not for the accused to do it all. In S v Jonas (2) saker S.E.C it was held that the State can't adopt this attitude and simply argue that the accused has not shown exceptional circumstances without placing any evidence on record.

In Killian v S Z.A.W.C.H.C the court questioned the wisdom, in contested bail proceedings, of applying for bail by way of motion rather than by way of evidence viva voce. It was pointed out that inasmuch as bail proceedings are sui generis (of its own kind or class), where an accused is saddled with a statutory onus of the kind which is set out in sections 60 11 a and b of the C.P.A, the Plascon-Evans rule which applies in civil motion proceedings will not apply. (The Plascon-Evans rule entails that when a factual dispute arises, relief should only be granted if the facts stated by the respondent, together with the admitted facts in the applicant's affidavits, justify the order.) In the case of conflict between the versions which are put up by the accused and the State in contesting affidavits, the version of the State must prevail, unless it is held to be improbable.

- In practice the accused starts with the bail application for schedule 5 offences, schedule 6 offences and offences contemplated in section 59(1)(a)(ii) or (3) because the accused has the onus of proof. In bail applications for other offences the State will start with the bail application. Where it is in dispute whether it is a schedule 5 or 6 offence, the D.P.P may issue a written confirmation about whether the intention is to charge the accused with a schedule 5 or 6 offence. This serves as prima facie proof of the charge against the accused. This is important for the accused because of the burden of proof in that it is an indication whether he has to show “interest of justice” with regards to schedule 5 or “exceptional circumstances” with regard to schedule 6. The C.P.A does not provide that this legislative authority to issue a written notice may be delegated to other prosecutors. The written notice is only prima facie proof with regard and the applicable schedule and the court must still make the final decision.

In {S v Nzima and another 2001 (2) saker (C)} the court stated that the Legislature placed the obligation on the court to advise the accused of the fact that the evidence he gives during the bail proceedings may subsequently be used against him in any proceedings. Irrespective of whether the accused is represented by an experienced or inexperienced legal representative, the court still has a duty to establish that the accused's rights were properly explained to him. It is not a duty which rests upon a legal representative even though the legal representative may assist or complement the court's obligation in explaining the accused's rights.

In S v Agliotti (1) saker G.S.J the court ruled that this judicial warning that must be given by the court also covers the situation where an accused elects to submit an affidavit in support of his bail application.

Section 60(12)(b) has extended the jurisdiction of the court dealing with the bail application of an accused charged with an offence against a person who is in a domestic relationship with the accused. The court must establish whether there is an existing protection order and if there is no such pre-existing protection order, it is incumbent on the bail court to hold and enquiry and grant a protection order in terms of section 6 of the Domestic Violence Act.

■ Section 60(14) seeks to secure a situation where the prosecutor's docket privilege can be kept alive for purposes of a bail application, unless the prosecutor otherwise directs. The State is not obliged to show its hand in advance, at least not before the time when the contents of the docket must be made available to the defence for purposes of trial. In S versus Diamini, S versus Dladla, S versus Joubert, S versus Schietekat 2 saker C.C the court made it clear that nothing that was said in Shabalala versus Attorney-General and another 1995 2 saker 761 C.C should lead anyone to believe that the defence is entitled to look over the prosecution's shoulder as the investigation runs its course. The judgement in {Shabalala} is no authority for the proposition that applicants for bail, or their legal representatives, are entitled to access to the police docket.

Code summary: Section 62, Court may add further conditions of bail, empowers a court with a pending charge to impose additional bail conditions upon a prosecutor's application. This procedure ensures the proper administration of justice by regulating the accused's movements, reporting requirements, communication with witnesses, service of documents, or placement under the supervision of a probation or correctional official.

Section 62 empowers a court, on application by the prosecutor, to add further conditions of bail. It is therefore not applicable to the situation where an accused seeks a reduction of the bail amount in respect of bail granted earlier.

Section 63 - Amendment of conditions of bail

(1) Any court before which a charge is pending in respect of which bail has been granted may, upon the application of the prosecutor or the accused, increase or reduce the amount of bail determined under section 59 or 60 or amend or supplement any condition imposed under section 60 or 62, whether imposed by that court or any other court, and may, where the application is made by the prosecutor and the accused is not present when the application is made, issue a warrant for the arrest of the accused and, when the accused is present in court, determine the application.

(2) If the court referred to in subsection (1) is a superior court, an application under that subsection may be made to any judge of that court if the court is not sitting at the time of the application.

The purpose of s 63 is to provide the necessary procedure for those instances where changed circumstances require appropriate amendments to the conditions or amount of bail fixed at an earlier stage.

Section 63 should be distinguished from s 68 which governs cancellation of bail where the accused is about to abscond. But it is submitted that appropriate stricter amendments to the conditions of bail, or an increase in the amount of bail, can be applied for by the State in circumstances where the State fails to satisfy the court that cancellation of bail in terms of s 68 is warranted.

Section 63A – Release or amendment of bail conditions of accused on account of prison conditions

If the head of prison is satisfied that the prison population is reaching such proportions that it constitutes a material and imminent threat to human dignity, physical health or safety of an accused, he may apply to a lower court for either the release of an accused on warning. This section is largely limited to cases where bail has been set, but not paid, in respect of offences for which the police may set so called police bail in terms of section 59 and schedule 7 offences.

Section 64 - Proceedings with regard-to bail and conditions to be recorded in full

This section merely serves as statutory confirmation of the principle that courts of law courts of record and that the practice of keeping a proper record cannot be relaxed in matters pertaining to bail.

Section 65 - Appeal to superior court with regard to bail

An accused may appeal the refusal of bail, the mount of bail that was set or a condition of bail to the High Court. There is no requirement that leave to appeal against a magistrate's ruling must be obtained.

Section 65A - Appeal by Attorney-General against decision of court to release accused on bail

A Director of Public Prosecutions is entitled to appeal to the High Court not only against a lower court's release on bail, but also against a condition of bail including the amount of bail.

Section 66 - Failure by accused to observe condition of bail

(1) If an accused is released on bail subject to any condition imposed under section 60 or 62, including any amendment or supplementation under section 63 of a condition of bail, and the prosecutor applies to the court before which the charge with regard to which the accused has been released on bail is pending, to lead evidence to prove that the accused has failed to comply with such condition, the court shall, if the accused is present and denies that he or she failed to comply with such condition or that his or her failure to comply with such condition was due to fault on his or her part, proceed to hear such evidence as the prosecutor and the accused may place before it.

(2) If the accused is not present when the prosecutor applies to the court under subsection (1), the court may issue a warrant for the arrest of the accused, and shall, when the accused appears before the court and denies that he failed to comply with the condition in question or that his failure to comply with such condition was due to fault on his part, proceed to hear such evidence as the prosecutor and the accused may place before it.

(3) It the accused admits that he failed to comply with the condition in question or if the court finds that he failed to comply with such condition, the court may, if it finds that the failure by the accused was due to fault on his part, cancel the bail and declare the bail money forfeited to the State.

(4) The proceedings and the evidence under this section shall be recorded.

In § 5 Porrit and another (unreported G.J case no S.S 40/2006, 21 July 2017) it was pointed out that section 66 can only be triggered upon the prosecution's application. The State bears the onus to prove on a balance of probabilities that the accused has breached the condition of bail due to fault on his part – phase 1. Once this is done, there is a burden upon the accused to prove on a balance of probabilities such facts as are relevant to persuade the court not to withdraw the bail or declare it forfeited to the State – phase 2. The court does not need to consider whether the ends of justice would be defeated if bail is not cancelled.

Section 67 deals with the procedures and consequences of the non-attendance of an accused who was on bail. It does not envisage a trial which can result in a conviction and sentence. It has been said that the wording of s 67 'is peremptory and mandatory. A court is compelled to withdraw bail and declare it provisionally forfeited in terms of s 67 if an accused who is on bail fails to appear, or fails to remain in attendance.

The issue with regard to forfeiture of the bail is usually not problematic in practice. If the accused is absent, the bail money is provisionally forfeited and the case postponed for 14 days as stipulated in the section. Upon the return of the case to court after the 14 days, the court may on good cause extent the period before considering the final forfeiture of bail. The court would have to be supplied with information to show that the accused is not at fault for his failure to attend for example that he has been hospitalized. If there is no information before the court to show that the failure to attend court is not due to the fault of the accused, the provisional forfeiture is made final.

With regard to the warrant of arrest, it is often in practice ordered that a warrant of arrest for the accused due to his failure to attend, is authorized, but the execution thereof is held over or stayed for a period of 14 days in line with forfeiture of the bail. The validity of a court order staying the execution of the warrant needs further discussion.

In {S v Lerumo and others (1) saker N.W.M the court dealt with a review of the lower court's decision to issue a warrant of arrest with immediate execution. The court held that section 67 is peremptory and mandatory and that in the event of non-appearance of an accused who was on bail, a court does not have a discretion to stay the execution of the warrant. It is suggested that the finding is correct in so far as it relates to those instances where there is no information before the court to show that non-appearance was perhaps due to circumstances beyond the control of the accused.

In § 5 Porritt and another (unreported, G.J case no S.S 40/2006, 21 July 2017) the court referred to the practice of only authorizing or issuing but not executing a warrant of arrest for non-appearance and stated that the said practice does not ignore the fact that section 67 requires that non-appearance be met with a warrant. It merely means that the court has a discretion, to be exercised on the basis of information made available to it, to remand its finalisation of the warrant of arrest to a specified date when evidence or further information regarding the reason for non-appearance might be available.

Figure Section 67 - Failure of accused on bail to appear summary: When an accused person released on bail fails to appear for their trial or adjourned proceedings, or fails to remain in attendance, the court will provisionally cancel the bail, provisionally forfeit the bail money to the State, and issue an arrest warrant. If the accused appears within fourteen days of the warrant, the provisional cancellation and forfeiture are confirmed unless the accused proves the failure was not their fault, in which case the provisional actions lapse. If the accused fails to appear within fourteen days, or an extended period determined by the court, the cancellation and forfeiture become final. The court may record any evidence it deems necessary to confirm the failure to appear or remain in attendance.

Section 67A - Criminal liability of a person who is on bail on the ground of failure to appear or to comply with a condition of bail

Any person who has been released on bail and who fails, without good cause to appear on the date and at the place determined for his or her appearance, or to remain in attendance until the proceeding in which he or she must appear have been disposed of, or who fails without good cause to comply with a condition of bail imposed by the court in terms of section 60 or 62, including an amendment or supplementation thereof in terms of section 63, shall be guilty of an offence and shall on conviction be liable to a fine or to imprisonment not exceeding one year.

This section does not empower a court to enquire in a summary manner whether section 67A has been contravened. A charge sheet must be drawn and a formal trial held where the prosecution must prove the guilt of the accused beyond reasonable doubt.

Section 68 - Cancellation of bail

(1) Any court before which a charge is pending in respect of which bail has been granted may, whether the accused has been released or not, upon information on oath that—

(a) the accused is about to evade justice or is about to abscond in order to evade justice;

(b) the accused has interfered or threatened or attempted to interfere with witnesses;

(c) the accused has defeated or attempted to defeat the ends of justice;

(cA) the accused has contravened any prohibition, condition, obligation or order imposed in terms of—

(i) section 7 of the Domestic Violence Act, 1998;

(2) section 10 (1) and (2) of the Protection from Harassment Act, 2011; or

(3) an order in terms of any other law,

that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused;

(d) the accused poses a threat to the safety of the public, a person against whom the offence in question was allegedly committed, or any other particular person;

(e) the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail proceedings or where his or her true list of previous convictions has come to light after his or her release on bail;

(eA) the accused has not disclosed that—

(i) a protection order as contemplated in section 5 or 6 of the Domestic Violence Act, 1998;

(2) a protection order as contemplated in section 3 or 9 of the Protection from Harassment Act, 2011; or (3) an order in terms of any other law,

was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused and whether such an order is still of force;

(eB) the accused has not disclosed or correctly disclosed that he or she is or was, at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998;

(f) further evidence has since become available or factors have arisen, including the fact that the accused has furnished false information in the bail proceedings, which might have affected the decision to grant bail; or

(g) it is in the interests of justice to do so.

issue a warrant for the arrest of the accused and make such order as it may deem proper, including an order that the bail be cancelled and that the accused be committed to prison until the conclusion of the relevant criminal proceedings.

(2) Any magistrate may, in circumstances in which it is not practicable to obtain a warrant of arrest under subsection (1), upon the application of any peace officer and upon a written statement on oath by such officer that—

(a) he or she has reason to believe that—

(i) an accused who has been released on bail is about to evade justice or is about to abscond in order to evade justice;

(2) the accused has interfered or threatened or attempted to interfere with witnesses;

(3) the accused has defeated or attempted to defeat the ends of justice; or

(4) the accused poses a threat to the safety of the public, any person against whom the offence in question was allegedly committed, or any other particular person;

(b) the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail proceedings or where his or her true list of previous convictions has come to light after his or her release on bail;

(c) further evidence has since become available or factors have arisen, including the fact that the accused has furnished false information in the bail proceedings, which might have affected the decision to release the accused on bail;

(d) the accused has contravened any prohibition, condition, obligation or order imposed in terms of—

(i) section 7 of the Domestic Violence Act, 1998;

(2) section 10 (1) and (2) of the Protection from Harassment Act, 2011; or

(3) an order in terms of any other law,

that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused;

(e) the accused has not disclosed or correctly disclosed that he or she is or was at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998;

(f) the accused has not disclosed that—

(i) a protection order as contemplated in section 5 or 6 of the Domestic Violence Act, 1998;

(2) a protection order as contemplated in section 3 or 9 of the Protection from Harassment Act, 2011; or (3) an order in terms of any other law,

was issued by a court to protect the person against whom the offence in question as allegedly committed, from the accused and whether such an order is still of force; or issue a warrant for the arrest of the accused, and may, if satisfied that the ends of justice may be defeated if the accused is not placed in custody, cancel the bail and commit the accused to prison, which committal shall remain of force until the conclusion of the relevant criminal proceedings unless the court before which the proceedings are pending sooner reinstates the bail.

The differences between 68(1) and (2):

Although the court may cancel bail in terms of both sections, the court may in terms of (1) impose more severe conditions to the bail.

- While in terms of ss (1) once the bail has been cancelled the accused may be committed to prison until the finalisation of the criminal proceedings, in terms of ss (2) if the bail is cancelled the accused may not be required to remain in custody pending the finalisation of the criminal proceedings, in that the accused could apply to the court before which he is facing charges, for the reinstatement of bail.

An application in terms of ss (1) can only be made in the court before which the accused is facing charges, an application in terms of ss (2) can be brought before any magistrate.

In an application in terms of ss (1) information relating to the factors enumerated in the subsection must be given on oath. This includes viva voce evidence and can be given by a witness. In terms of (2) the magistrate must be provided with a written statement by a peace officer under oath, stating that he has reason to believe that the accused has committed one of the wrongs as set out in ss (2).

○ Subsection (1) has to take place in court whereas subsection (2) refers to a magistrate and the application can be done in chambers.

○ Subsection (2) can only be used in circumstances in which it is not practicable to obtain a warrant under (1).

The magistrate seized with an application under (2) must be satisfied that the ends of justice may be defeated if the accused is not placed in custody whereas this is not the case in (1).

Section 68A - Cancellation of bail at request of accused

Any court before which a charge is pending in respect of which the accused has been released on bail may, upon application by the accused, cancel the bail and refund the bail money if the accused is in custody on any other charge or is serving a sentence.

Section 69 - Payment of bail money by third person

A third person may pay bail on behalf of the accused. Bail may only be refunded to the depositor of the money.

Section 70 - Remission of bail money

The Minister or any officer acting under his or her authority or the court concerned may remit the whole or any part of any bail money forfeited under section 66 or 67.

Section 72 - Accused may be released on warning in lieu of bail

Subject to section 4(2) of the Child Justice Act, 2008, if an accused who is 18 years or older is in custody in respect of any offence and a police official or a court may in respect of such offence release the accused on bail under section or 60, as the case may be, such police official or such court, as the case may be, may, in lieu of bail and if the offence is not, in the case of such police official, an offence referred to in Part 2 or Part 3 of Schedule 2— release the accused from custody and warn him to appear before a specified court at a specified time on a specified date in connection with such offence or, as the case may be, to remain in attendance at the proceedings relating to the offence in question, and the said court may, at the time of such release or at any time thereafter, impose any condition referred to in section in connection with such release;

An accused who is released under subsection (1) (a) and who fails to appear or, as the case may be, to remain in attendance at the proceedings in accordance with a warning under that paragraph, or who fails to comply with a condition imposed under subsection (1) (a), shall be guilty of an offence and liable to the punishment of a fine not exceeding R.300 or to imprisonment not exceeding 3 months.

Section 72A - Cancellation of release on warning

Notwithstanding the provisions of section 72(4), the provisions of section 68(1) and in respect of an accused who has been granted bail, are, with the necessary changes, applicable in respect of an accused who has been released on warning.

Section 73 - Accused entitled to assistance after arrest and at criminal proceedings

(1) An accused who is arrested, whether with or without warrant, shall, subject to any law relating to the management of prisons, be entitled to the assistance of his legal adviser as from the time of his arrest.

(2) An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in question.

2A Every accused shall—

(a) at the time of his or her arrest;

(b) when he or she is served with a summons in terms of section 54;

(c) when a written notice is handed to him or her in terms of section 56;

(d) when an indictment is served on him or her in terms of section 144(4)(a);

(e) at his or her first appearance in court.

be informed of his or her right to be represented at his or her own expense by a legal adviser of his or her own choice and if he or she cannot afford legal representation, that he or she may apply for legal aid and of the institutions which he or she may approach for legal assistance.

2B Every accused shall be given a reasonable opportunity to obtain legal assistance.

2C If an accused refuses or fails to appoint a legal adviser of his or her own choice within a reasonable time and his or her failure to do so is due to his or her own fault, the court may, in addition to any order which it may make in terms of section 342A, order that the trial proceed without legal representation unless the court is of the opinion that that would result in substantial injustice, in which event the court may, subject to the Legal Aid South Africa Act, 2014, order that a legal adviser be assigned to the accused at the expense of the State: Provided that the court may order that the costs of such representation be recovered from the accused: Provided further that the accused shall not be compelled to appoint a legal adviser if he or she prefers to conduct his or her own defence.

(3) In addition to the provisions of sections (g), 38 (2), 44 (1) (b) and of the Child Justice Act, 2008, relating to the assistance of an accused who is under the age of eighteen years by his or her parent, an appropriate person or a guardian at criminal proceedings, any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.

Section 75 - Summary trial and court of trial

Code summary: This legal procedure establishes the rules for determining the venue of a summary trial for an accused person. It defines three primary jurisdictional paths: the court of first appearance, a court to which the accused was referred, or a court specifically designated by the Attorney-General. To ensure the case is heard by a court with appropriate authority, the procedure allows a prosecutor to request a referral if the initial court lacks jurisdiction or if the nature and magnitude of the offense require the higher sentencing powers of a regional court. Additionally, it ensures that after bail proceedings are concluded, the accused is referred to a trial court designated by the prosecutor before a plea is entered.

Section 76 - Charge-sheet and proof of record of criminal case

If an accused is in custody, proceedings in a lower court commence with the lodging of a charge sheet with the clerk of the court. In practice the police docket is submitted to a prosecutor to decide on the case. If the prosecutor decides to institute a prosecution against the accused who is in custody, the prosecutor will complete a charge sheet (known as a J.15 in the lower courts) and attach annexures to the charge sheet setting out the charges (offences) against the accused. The charge sheet with the attached annexures are handed to the clerk of the court in which the accused will make his first appearance for enrolment. The clerk of the court then writes the case in the court book that is used in court for the same day.

Where the attendance of the accused is secured by means of summons, the prosecution is initiated and proceedings commence upon the issue of the summons.

Apart from the charge against the accused, the charge sheet contains the name of the accused and if known, his address, sex, nationality and age.

It is required that a record be kept of the proceedings and the charge sheet, summons or indictment (High Court Charge sheet) forms part of the record.

Such record may be proved in a court by the mere production thereof or a copy thereof in terms of section 235 of the C.P.A.

Section 77 - Capacity of accused to understand proceedings

If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or intellectual disability not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.

At proceedings in terms of sections 77(1) and 78(2) the court may, if it is of the opinion that substantial injustice would otherwise result, order that the accused be provided with the services of a legal practitioner in terms of section 22 of the Legal Aid South Africa Act, 2014.

If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the mental condition of the accused and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence.

If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused.

Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 has enquired into the mental condition of the accused.

Subsection 6 provides that where it is found that the accused is not capable of understanding the proceedings so as to make a proper defence, the court must still be satisfied on a balance of probabilities, with the limited available evidence, that the accused committed the offence. If the court does not have such evidence at its disposal, the court may order that information or evidence is placed before court so as to determine whether the accused has committed the act in question.

The court may then make any one of the orders with regard to the accused as listed in the section.

Where the court has found an accused to be incapable of understanding the proceedings and made an appropriate order, the accused may at time thereafter, when he is capable of understanding the proceedings so as to make a proper defence, again be prosecuted and tried for the offence in question. This is applicable to cases where an accused, after conviction but before completion of sentence, is found to incapable of understanding proceedings. The reason for this is that the court is required to set the conviction aside.

Section 78 - Mental illness or intellectual disability and criminal responsibility

Code summary: Section 76 - Mental illness or intellectual disability and criminal responsibility establishes the legal criteria for exempting a person from criminal responsibility. It stipulates that an individual is not responsible for an offense if, at the time of the act or omission, a mental illness or intellectual disability rendered them incapable of either appreciating the wrongfulness of their conduct or acting in accordance with that appreciation.

Every person is presumed not to suffer from a mental illness or intellectual disability so as not to be criminally responsible in terms of section 78(1), until the contrary is proved on a balance of probabilities.

Whenever the criminal responsibility of an accused with reference to the commission of an act or an omission which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue.

If it is alleged at criminal proceedings that the accused is by reason of mental illness or intellectual disability or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or intellectual disability, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.

If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence.

If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused.

Where the said finding is disputed, the party disputing the finding may subpoena and cross- examine any person who under section 79 enquired into the mental condition of the accused.

If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or intellectual disability not criminally responsible for such act—

(a) the court shall find the accused not guilty, or

(b) if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty,

by reason of mental illness or intellectual disability, as the case may be.

The court may then make any one of the orders with regard to the accused as listed in the section.

If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or intellectual disability, the court may take the fact of such diminished responsibility into account when sentencing the accused.

Code summary: Section 79 establishes the protocol for conducting and reporting on psychiatric enquiries ordered by a court under sections 77 and 78. It differentiates the reporting authority based on the severity of the charge: for standard offences, the enquiry is handled by the head of a designated health establishment or their delegate; for serious violent crimes, public interest cases, or specific court directions, the process expands to allow reports from the health establishment head, court-appointed psychiatrists, psychiatrists requested by the accused upon showing good cause, or a clinical psychologist if directed by the court.

The prosecutor must supply the panel members with information specified in the act.

Section 80 - Accused may examine charge

An accused may examine the charge at any stage of the relevant criminal proceedings. When an accused is arrested it is not always possible for the State to draft a final charge sheet without further investigation. The accused is however still entitled to be informed of the charge against him. In practice it is for example not always possible at the first appearance of the accused, to specify that he is being charged with the possession of methaqualone (mandrax) because the test has not been conducted, but he can be informed that he is being charged with the possession of drugs and possibly what it is suspected to be.

Code summary: Section 81 - Joinder of charges establishes the rules for combining multiple accusations into a single legal proceeding. It allows any number of charges to be joined provided they are numbered consecutively and the joinder occurs before evidence is presented for any specific charge. To ensure the interests of justice, the court retains the authority to order separate trials for joined charges at any point before or during the trial, treating those separated charges as independent proceedings.

■ Any number of charges against an accused may be joined, provided this is done before evidence is led on any one of those charges. Charges may thus be added even after an accused has pleaded and given a plea explanation, but before evidence is lead. Where a charge was added after evidence had been led, such a charge will be declared null and void on review and the matter remitted to the magistrate to continue with the trial on the original charge.

An admission that is recorded in terms of section 220 of the C.P.A, is regarded as evidence for the purposes of section 81. Consequently, an additional charge cannot be joined after an admission is made in terms of section 220 of the C.P.A. Formal admissions in terms of section 220 of the C.P.A must be distinguished from admissions made during a guilty and not guilty plea.

■ Where an accused pleads guilty and makes admissions in the course of the guilty plea, but a plea of not guilty is entered by the court in terms of section 113 of the C.P.A, the admissions “stand as proof in court” in terms of section 113(1) of the C.P.A. It does however not amount to evidence if not recorded as admissions in terms of section 220 of the C.P.A. It has probative value, but will only constitute evidence after formally admitted in terms of section 220 of the C.P.A.

In S v Hendricks (2) saker (A) the court had to determine whether such addition of charges could still take place after the accused had answered the court's questions in the process of a not guilty plea in terms of section 115. The crucial question was whether evidential material obtained in this manner was"evidence" as contemplated in section 81(1). The response was unambiguously negative and therefor charges could still be added. In {S v Mayedwa (1) S.A (E)} it was held that admissions in a plea explanation in terms of section 115, should not be construed as formal admissions in terms of section 220 without the prior and express consent of the accused as required by section 115(2)(b) of the C.P.A.

Section 82 - Several charges to be disposed of by same court

Where an accused is in the same proceedings charged with more than one offence, and any one charge is for any reason to be disposed of by a regional court or a superior court, all the charges shall be disposed of by the same court in the same proceedings.

Section 83 - Charge where it is doubtful what offence committed

If by reason of any uncertainty as to the facts which can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences.

In most cases, the person who is responsible for drafting charge sheets will not, prior to trial, be exactly sure which facts the court will find to be found proven.

To avoid this dilemma, s 83 authorises the drafter of a charge sheet or an indictment to charge an accused with all the offences that might possibly be proved by means of the available facts. Section 83 authorises the inclusion in the charge sheet of all the charges that could possibly be supported by the facts, even if they overlap to such an extent that convictions on all or on some of the counts would amount to a duplication of convictions. An accused may thus not object, at the beginning of the trial, to the charge sheet or indictment on the basis that it contains a duplication of charges.

Such a duplication will occur where more than one charge is supported by the same culpable fact. It is, however, the task of the court to be careful not to convict an accused of more than one offence if the offences with which the accused is charged in the relevant charges rest on the same culpable fact.

In short, it is the court's duty to guard against a duplication of convictions and not the prosecutor's duty to refrain from the duplication of charges.

Section 84 - Essentials of charge

Subject to the provisions of this Act and of any other law relating to any particular offence, a charge shall set forth the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.

(2) Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it shall be sufficient to state that fact in the charge.

(3) In criminal proceedings the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient.

In the charge sheet, the accused is informed of the case that the State intends to prove against him. It is only fair that the charge should in no uncertain terms, let the accused know what to expect.

If the State intends to rely on a common purpose, it must be indicated in the charge sheet. Failure to do so could render the trial unfair.

The same principle is applicable to minimum sentences - section 51 of Act 105 of 1997. Failure to indicate the fact that minimum sentences are applicable in the charge sheet, may result in a sentence other than prescribed by section 51.

Prosecutors should take care not to draw up charge sheets that are careless and ambiguous but should present neat and succinctly formulated charges.

Section 85 - Objection to charge

An accused may, before pleading to the charge under section 106, object to the charge on the ground-

(a) that the charge does not comply with the provisions of this Act relating to the essentials of a charge;

(b) that the charge does not set out an essential element of the relevant offence;

(c) that the charge does not disclose an offence;

(d) that the charge does not contain sufficient particulars of any matter alleged in the charge:

(e) that the accused is not correctly named or described in the charge.

The accused must give reasonable notice to the prosecution of his objection and must state the ground upon which he bases his objection. The court may dispense with such notice if there is a good reason to do so or postpone the trial for the accused to give such notice. Where the court sustains an objection to the charge sheet. The court may make an order relating to the amendment of the charge sheet and the State must be given an opportunity to of remedying the charge sheet. However, if the charge sheet is not capable of amendment or if the particulars will not cure the defect, the charge will be quashed.

Section 86 - Court may order that charge be amended

The only limitation placed on the court is that the amendment may not prejudice the accused in his defence.

Algorithm 86 summary: This procedure outlines the legal criteria for amending a charge sheet before judgment. It allows the court to correct defects to ensure the trial remains fair and accurate, specifically addressing missing essential allegations, discrepancies between charges and evidence, the omission of necessary particulars, the inclusion of irrelevant details, or any other general errors.

Section 87 - Court may order delivery of particulars

Code summary: This legal procedure establishes a mechanism for an accused person to obtain specific details regarding charges against them before evidence is presented. It allows the accused to formally request particulars from the prosecution in writing, or for the court to independently mandate that such details be provided. To ensure these particulars are delivered, the court is empowered to adjourn proceedings, ensuring the accused has sufficient information before the trial progresses to the evidence stage.

It is generally accepted that the accused is entitled to as much information concerning the offence that the State intends to prove against him as will be required for a proper preparation of his defence.

The request for further particulars must take place before any evidence is led related to the charge in respect of which the particulars are requested.

When considering an application for further particulars, the guiding question is whether the accused has a reasonable need for the additional information in order to prepare his defence.

If the accused and the prosecution cannot agree about the provision of particulars, the accused may apply to the court for an order compelling the State to furnish particulars. The court may then direct that particulars be delivered.

The court must decide if the refusal of particulars would prejudice the accused and cause a failure of justice which would result in him not receiving a fair trial.

The request for further particulars may not be aimed at putting every conceivable question to the State rather than to obtain information to which the accused is entitled.

From S v Alexander and others 1 S.A C it is clear that a prosecutor cannot be expected to provide further particulars which he does not have.

It is important to differentiate between particulars that are necessary to inform an accused about the case against him and the evidence that may be led as proof of the commission of the offence. Whereas the State is obliged to provide particulars of the material facts that it intends to prove, no obligation rests on it to disclose the evidence by means of which the facts are to be proved. By this stage the accused is generally in any event probably in possession of the contents of the docket.

In cases where the State alleges a conspiracy or a common purpose, the accused is entitled to particulars of those facts on which the State relies for its allegation that the accused was part of such conspiracy or common purpose.

The State is bound by the particulars. The particulars that the State provides become part of the record and the State must prove these.

Section 88 - Defect in charge cured by evidence

Where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the matter which should have been averred.

By virtue of section 88, a charge that is defective in the sense that an essential element of the offence charged was omitted, may be automatically cured by evidence. Section 88 has the effect that the accused can be found guilty even though the indictment does not disclose an offence, as long as the evidence proves the offence. The possibility of automatic curing exists only if the defect is not brought to the court's attention before judgment.

Section 89 - Previous conviction not to be alleged in charge

Except where the fact of a previous conviction is an element of any offence with which an accused is charged, it shall not in any charge be alleged that an accused has previously been convicted of any offence, whether in the Republic or elsewhere.

The proof of previous convictions during the trial but before judgment is, in general, prohibited. If the previous conviction is an element of the offence for example the contravention of section 11 B d of the C.P.A – failure to inform the court during bail proceedings regarding previous convictions – it may be alleged in the charge.

See discussion below on sections 211, 240, 241,

Section 90 - Charge need not specify or negative exception, exemption, proviso, excuse or qualification

In criminal proceedings any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence, may be proved by the accused but need not be specified or negatived in the charge and, if so specified or negatived, need not be proved by the prosecution.

In defining statutory offences, prohibited conduct is often cast in the form of a general prohibition. The general prohibition is then made subject to a series of exceptions.

These exceptions may, for example, relate to factual situations, a person's sex, age or profession. Section 90 is applicable to this sort of statutory provision.

Where the legislature makes use of this procedure, the State need only allege and prove the essential element of the offence. An accused who alleges that he is excluded from the scope of the provision by an exception, exemption, proviso, excuse or qualification will have to prove the same. The State does not even have to allege that an accused is protected by an exception of other limitation.

Section 91 - Charge need not state manner or means of act

A charge need not set out the manner in which or the means or instrument by which any act was done, unless the manner, means or instrument is an essential element of the relevant offence.

Although section 91 exempts the State from the requirement of setting out the manner in which or the means by which the offence was allegedly committed, it is customary to refer thereto. This exemption does not apply in cases where the manner, means or instrument is a material element of the offence for example the illegal possession of an unlicensed or prohibited firearm. The charge sheet would have to refer to the said firearm.

Section 92 - Certain omissions or imperfections not to invalidate charge

: Code summary: This legal provision defines the conditions under which a criminal charge is not considered defective and establishes the flexibility regarding the timing of alleged offenses. The first phase lists specific formal omissions—such as missing non-essential averments, the use of descriptive titles instead of proper names, or errors in stating the date—that do not invalidate a charge. The second phase provides a mechanism for correcting date discrepancies, allowing evidence of an offense committed within three months of the alleged date to support the charge, provided time is not essential. It further allows for a wider window of time if the court determines the accused is not prejudiced in their defense, otherwise rejecting such proof to protect the accused's rights.

Section 93 - Alibi and date of act or offence

If the defence of an accused is an alibi and the court before which the proceedings are pending is of the opinion that the accused may be prejudiced in making such defence if proof is admitted that the act or offence in question was committed on a day or at a time other than the day or time stated in the charge, the court shall reject such proof notwithstanding that the day or time in question is within a period of three months before or after the day or time stated in the charge, whereupon the same consequences shall follow as are mentioned in proviso (b) of section 92(2).

The special protection that an accused enjoys under section 93 is necessitated by the special nature of the alibi defence. An accused who relies on an alibi alleges that on the day or at the time when the offence was allegedly committed, he was elsewhere and therefore could not have committed the offence. He may thus be easily prejudiced if he ties his alibi to the date or time mentioned in the charge, but the State proves that the offence was committed on another day or at another time. If the court is of the opinion that the accused may be prejudiced if the State proves another day or time than stated in the charge, that evidence will be rejected. The accused is then treated as if he has not yet pleaded to the charge and accordingly a new charge may be out to him.

Code summary: Section 94 allows a single charge to be used when an accused is alleged to have committed the same offence against a specific person on multiple occasions within a stated period, simplifying the charging process for repetitive offenses.

Where it is not practically to individually specify each occasion on which the crime was committed, the prosecution should draw up the charge as provided for in this section. In S v Mponda 2 saker C the court explained that the administration of justice is potentially prejudiced because the allegation of only a single rape in a charge-sheet, where the evidence supports a multiplicity of counts, means that the convicted accused can only be sentenced as a single-count offender.

(1) A charge relating to a testamentary instrument need not allege that the instrument is the property of any person.

(2) A charge relating to anything fixed in a square, street or open place or in a place dedicated to public use or ornament, or relating to anything in a public place or office or taken therefrom, need not allege that the thing in question is the property of any person.

(3) A charge relating to a document which is the evidence of title to land or of an interest in land may describe the document as being the evidence of the title of the person or of one of the persons having an interest in the land to which the document relates, and shall describe the land or any relevant part thereof in a manner sufficient to identify it.

(4) A charge relating to the theft of anything leased to the accused may describe the thing in question as the property of the person who leased it to the accused.

(5) A charge against a person in the public service for an offence committed in connection with anything which came into his possession by virtue of his employment may describe the thing in question as the property of the State.

(6) A charge relating to anything in the possession or under the control of any public officer may describe the thing in question as being in the lawful possession or under the lawful control of such officer without referring to him by name.

(1) A cnarge relating to movable or immovable property whereof any body corporate has by law the management, control or custody, may describe the property in question as being under the lawful management or control or in the lawful custody of the body corporate in question.

(8) If it is uncertain to which of two or more persons property in connection with which an offence has been committed belonged at the time when the offence was committed, the relevant charge may describe the property as the property of one or other of those persons, naming each of them but without specifying which of them, and it shall be sufficient at the trial to prove that at the time when the offence was committed the property belonged to one or other of those persons without proving which of them.

(9) If property alleged to have been stolen was not in the physical possession of the owner thereof at the time when the theft was committed but in the physical possession of another person who had the custody thereof on behalf of the owner, it shall be sufficient to allege in a charge for the theft of that property that it was in the lawful custody or under the lawful control of that other person.

(10) A charge relating to theft from any grave need not allege that anything in the grave is the property of any person.

(11) In a charge in which any trade mark or forged trade mark is proposed to be mentioned, it shall be sufficient, without further description and without any copy or facsimile, to state that such trade mark or forged trade mark is a trade mark or forged trade mark.

(12) A charge relating to housebreaking or the entering of any house or premises with intent to commit an offence, whether the charge is brought under the common law or any statute, may state either that the accused intended to commit a specified offence or that the accused intended to commit an offence to the prosecutor unknown.

Section 96 - Naming of company, firm or partnership in charge

A reference in a charge to a company, firm or partnership shall be sufficient if the reference is to the name of the company, firm or partnership.

This section is not about the accused but a complainant or someone else. When, however, a corporation or association is charged as an accused, such a charge is made in terms of section 332(2) against the name of a director or employee as representative

Section 97 - Naming of joint owners of property in charge The wording of this section is a bit cryptic. It means that when property is held by more than one person in co-ownership, it is sufficient to name one of the owners and to add thereto "and another owner" or "and other owners", or "and another" or "and others", as the case may be.

Section 98 - Charge of murder or culpable homicide sufficient if it alleges fact of killing

It shall be sufficient in a charge of murder to allege that the accused unlawfully and intentionally killed the deceased, and it shall be sufficient in a charge of culpable homicide to allege that the accused unlawfully killed the deceased.

This section might create the impression that it is not required to state the time and place at which the offence was committed or the name of the victim in charges of murder or culpable homicide, but this information must be supplied. In terms of this section it is not required that the charge state the method of killing or the manner of the killing. It is, however customary and advisable to refer to both the manner and the means in the charge sheet.

Section 99 - Charge relating to document sufficient if it refers to document by name

(1) In any charge relating to the forging, uttering, stealing, destroying or concealing of, or to some other unlawful dealing with any document, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing it or stating its value.

(2) Whenever it is necessary in any case not referred to in subsection (1) to make any allegation in any charge in relation to any document, whether it consists wholly or in part of writing, print or figures, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof, unless the wording of the document is an element of the offence.

Section 100 - Charge alleging theft may allege general deficiency

On a charge alleging the theft of money or property by a person entrusted with the control thereof, the charge may allege a general deficiency in a stated amount, notwithstanding that such general deficiency is made up of specific sums of money or articles or of a sum of money representing the value of specific articles, the theft of which extended over a period.

The section presupposes an initial lawful receipt of and possession by an accused of money or property and a subsequent unlawful appropriation of that money or property.

A general deficiency is alleged by stating the amount of money or what property the accused received in custody and that the accused only accounted for a lesser amount or quantity. There has to be an allegation that the money or property was owned by someone other than the accused and that the accused had stolen it.

The provision is intended for a series of thefts over a period of time, the particulars of which are difficult to prove. It is sufficient to mention a deficiency as an amount of money or quantity of goods stolen over a period. It will also be sufficient in an appropriate case to say that the owners are unknown to the prosecutor.

Section 101 - Charge relating to false evidence

(1) A charge relating to the administering or taking of an oath or administering or making of an affirmation or the giving of false evidence or the making of a false statement or the procuring of false evidence or a false statement

(a) Need not set forth the words of the oath or the affirmation or the evidence or the statement

(b) Need not allege, nor need it be established at the trial, that the false evidence or statement was material to any issue at the relevant proceedings or that it was to the prejudice of any person.

(2) A charge relating to the giving or the procuring or attempted procuring of false evidence need not allege jurisdiction or state the nature of authority of the court or tribunal before which or the officer before whom the false evidence was given or was intended or proposed to be given.

The authority to administer oath is derived from the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. Subsection 1(a) was confirmed in the case of R v Motongwane T.P.D 461 to 465...'the elements of the offence to which section 101 applies are identified and discussed in the book by Hoctor: Snyman's Criminal Law 7ed (2020) pages 296 to 202.

Section 319(3) of Act 56 of 1955 has no equivalent section in the new C.P.A and therefore applies unchanged. The State president made regulations pertaining to taking the oaths and affirmation, in terms of section 10 of the Justices of Peace and Commissioners of Oaths Act, 1963.

In the case of an offence that can only be committed while an estate is under sequestration, the fact of sequestration must be stated in the charge (R v Holtz 1928 T.P.D 63)

Code summary: Section 103 establishes that for charges involving intent to defraud, the prosecution only needs to prove the general intent to defraud. It simplifies the legal requirement by specifying that the charge does not need to identify a specific victim, name the property owner, or provide the specific details of the deceit used.

If possible, in the interests of efficiency and fairness towards the accused, the person who was allegedly prejudiced should be made known despite the exemption....

Code summary: Section 104 establishes that a legal charge involving blasphemous, seditious, obscene, or defamatory material is not considered insufficient simply because it lacks the specific words of the material. This ensures the charge remains valid without requiring an exhaustive transcription, though it grants the court the authority to require the prosecution to provide specific passages relied upon to support the charge.

In S v Ncikazi (3) S.A (C), it was held that a court may examine, in its entirety, a speech which is partially quoted in a charge, but that the State was bound by the portion contained in the charge.

Section 105 - Accused to plead to charge The charge shall be put to the accused by the prosecutor before the trial of the accused is commenced, and the accused shall, subject to the provisions of sections 77,85 and 105A, be required by the court forthwith to plead thereto in accordance with section 106.

- In simple terms, to plead is to formally respond or answer to the charge/s read out in court by the prosecutor.

- A criminal matter cannot be said to have started unless accused has pleaded.

- As provided for in section 109, if accused refuses to plead, then the court can enter a plea of not guilty on his or her behalf, and the matter shall proceed as if he has actually pleaded not guilty him or herself.

- The court shall see to it that the accused has pleaded to each and every charge that he or she is facing, regardless of the availability of legal representative.

- Most common pleas are the following, guilty and not guilty, even though there are more others listed under section 106.

- For a person to plead to a charge, he or she must be in sound and sober senses, for example a person who is mentally challenged cannot in law, plead to the charge, see sections 77,85 and 105A.

- The provisions of section 105 are peremptory, S v Mamase & others (1) saker S.C.A. In S v Moses (1) saker W.C.C it was held that a plea process is peremptory in terms of section 105 for purposes of the commencement of the trial.

In S v Ndwanyana & others, one of the issues on appeal related to the third appellant's submission that the court had erred in convicting him on 10 counts as he had not been asked to plead to one of those counts. The court found that as there was no record or evidence to support the state's claim that the third appellant had pleaded to the charge in issue, the requirements of section 105 had not been substantially fulfilled and the matter was not triable, as a result, the conviction on the disputed count was set aside.

Appeal court found in S v Niezula 2019 J.D.R 1683 G.J that the trial court's failure to ask the appellant to plead to the second of two counts amounted to a fatal irregularity. The conviction and sentence of accused were set aside as a result, and the matter was remitted for retrial before another magistrate.

Algorithm 102 summary: Section 102 - Charge relating to insolvency establishes that a charge associated with insolvency is valid without requiring the explicit listing of specific debts, acts of insolvency, court adjudications, proceedings, orders, warrants, or court-issued documents.

Section 105A - Plea and sentence agreements

(1) (a) a prosecutor authorized thereto in writing by the N.D.P.P and an accused who is legally represented may, before the accused pleads to the charge brought against him or her, negotiate and enter into an agreement in respect of a plea of guilty; sentence to be imposed by court, or an award for compensation.

(b) The prosecutor may enter into such agreement after consultation with the investigating officer of the case.

(c) The requirements of paragraph (b) (1) may be dispensed with if prosecutor finds that consultation shall delay proceedings and cause substantial prejudice

(2) Agreement contemplated in subsection 1 shall be in writing

(3) The court shall not participate in the negotiations contemplated in subsection (1)

(4) The prosecutor shall, before the accused is required to plead, inform the court that an agreement contemplated in subsection (1) has been entered into...

(5) If the court is satisfied that the agreement complies with the requirements of sections (1) (b) (1) and (3), the court shall require the accused to plead to the charge and order that the contents of the agreement be disclosed in court.

(6) After the contents of the agreement have been disclosed, the court shall question the accused, and after this inquiry if the court is not satisfied about the plea of guilty, then the court shall record a plea of not guilty and inform the prosecutor and accused about the reasons thereof.

(7) If the court is satisfied that the accused admits the allegations in the charge and that he or she is guilty of the offence in respect of which the agreement was entered into, the court shall proceed to consider the sentence agreement.

(8) If the court is satisfied that the sentence agreement is just, the court shall inform the prosecutor and the accused, and then sentence accordingly.

(9) If the court is of the opinion that the sentence agreement is unjust, the court shall inform the prosecutor and the accused of the sentence which it considers just.

(10) Where a trial starts de novo as contemplated in subsection (6) (c) or (9) (d) – the agreement shall be null and void.

- The prosecutor and the accused who is legally represented are allowed by section 105A to enter into negotiations about plea of guilty that accused is to tender, and they can also agree in terms of this section on sentence that should be imposed by the presiding officer or judge.

- The mandatory provisions in section 105A provide protection to the accused person who has waived his or her rights in terms of section 35(3) of the Constitution to a public trial before an ordinary court and to be presumed innocent in return for agreeing to both plea and sentence.

- Adherence to the provisions of section 105A provides an appropriate check and balance against the abuse of the plea bargain process in the context of waiver of the accused's constitutional rights.

- After the agreement between prosecutor and accused who is legally represented, they must present before court all that they have agreed upon, including terms of the agreement, as well as all admissions that accused is admitting pertaining to the charge he or she is facing.

The court will look into the matter and then deal with the matter, taking into account the interests of justice. The court must also question the accused to ascertain whether the agreement was entered into freely and voluntarily.

- Rules and principles which govern judicial questioning in terms of section 112 (1) (b) are also applicable to judicial questioning in terms of section 105A 6 a 2. In {S v Wessels} (Unreported, F.S.B case no. 62/2019, 23 May 2019) the court pointed out that a prosecutor will as a rule have 'greater bargaining powers than the accused 'and that legal representation is of paramount importance to ensure that the ' unequal negotiating position' does not cause prejudice.

The South African Law Commission, as part of its investigation into the amplification of Criminal Procedure-concluded that the plea negotiations and agreements did take place in South Africa and were legal, whilst sentence bargaining and agreements were not regulated by the C.P.A.

See decision in Uijs A.J in North Western Dens Concrete & another versus Director of Public Prosecutions (Western Cape) 1999 (2) saker 669 (C) in terms of case S v D.J 2016 (1) saker 377 S.C.A at [16], the prosecutor retains his discretion, and the defence need not cooperate but mutuality of negotiations take place in a spirit of 'give and take'. At the core of the give and take process that characterizes a plea and sentence agreement, is the fact that the prosecution can obtain a plea of guilty whilst the accused can secure a lesser sentence than might otherwise have been the case...(S v Groenewald & others, unreported, W.C.C case no. A.688 2010, 10 December 2019 at [19])

Section 106 - Pleas

Code summary: This legal procedure outlines the permissible pleas an accused person may enter when facing a charge. It defines a range of options, including admissions of guilt, denials, and various legal defenses such as prior conviction, acquittal, lack of jurisdiction, or a free pardon. The process establishes a constraint that a guilty plea cannot be combined with any other plea for the same charge, while other pleas may be entered together. To ensure fair trial proceedings, the accused must provide reasonable notice for any plea other than guilty or not guilty. Ultimately, the procedure guarantees the accused's right to a final determination of acquittal or conviction, provided the plea is not based on a lack of court jurisdiction.

- A plea of guilty in terms of s 106. (1) (a), is where an accused agrees that he/she has committed the offence as described in the charge. S. 106(1)(a) must be read with s 112. and s 113..

The court must ensure that what accused is admitting is indeed amounting to a plea of guilty in terms of the law.

○ If the court is not satisfied that the accused is indeed guilty in terms of the law, then the court must alter a plea to one of not guilty in terms of section 113.

○ If the court is satisfied that the accused has correctly pleaded guilty to the charge, then the court shall find accused guilty of such offence.

- A plea of guilty is an admission by the accused of each of the essential allegations in the charge. The accused who pleads guilty waives his right to remain silent but not his right to fair treatment during the court's questioning in terms of section 112(1)(b).

o Where an accused pleads guilty and submits a written statement in terms of section 112(2) wherein the accused sets out the facts which he/she admits and on which he/she has pleaded guilty.

The court may, without further questioning convicted the accused, if the court is satisfied that the accused has admitted all the elements of the offence.

o In practice the prosecutor is requested to indicate whether the statement submitted by the accused factually corresponds with the allegations contained in the docket. If the prosecutor indicates that he/she is satisfied that it does correspond, the court then convicts the accused. If the prosecutor does not agree with the facts as set out in the written statement, section 113 is applied.

o vnere the court is not satisfied that the written statements describes an admission of all the elements of the offence, the court must alter a plea of guilty to one of not guilty in terms of section 113.

o In terms of section 106 (1) (a) it is also permitted that an accused may plead guilty to a lesser alternative charge or a charge which is a competent verdict to the main charge.

However, if the plea of guilty is tendered on the alternative charge or competent verdict, it is not a plea of guilty to the offence charged and questioning in terms of section 112(1)(b) is not permitted unless the prosecutor accepts the plea to the alternative charge or competent verdict.

- Once an accused pleads not guilty as provided for under section 106 (1) (b), he is procedurally protected throughout the proceedings. His persistence to pleading not guilty may not be used against him for the purpose of sentencing.

- The plea of not guilty is a general denial of all the allegations made in the charge. In the case {S v Ngcukana} at [97] Rogers J pointed out that an accused who has pleaded not guilty and has not taken the court into his confidence'is to a disadvantage in advancing the prospect of rehabilitation as a mitigating circumstance but it would not be in keeping with our constitutional order to hold that the prospect of rehabilitation must be ignored just because the accused, as is his right, maintains his innocence'. The other relevant section in respect of 106 (1) (b) is section 115 and 116.

An accused person is entitled to raise plea that he or she has already been convicted (autrefois convict) or already acquitted (autrefois acquit), of the same offence or facts which he or she is standing before court for.

- This is based on the constitutional protection against double jeopardy which is part of the right to fair trial. The individual must be protected against abuse by the State and be given the benefit of a final decision in any criminal prosecution.

- It is in the general interest of the administration of justice that there should be finality in the criminal process. It is the duty of accused to demonstrate that he/she has already been convicted or acquitted of the same charge he or she is facing. An accused should give reasonable notice to prosecution of his intention to raise a plea of autrefois acquit or convict. The prosecution may waive this right of prior information.

- The accused should be called upon to adduce evidence in support of his or her plea. The grounds upon which he bases his plea must be set out in such notice. The court may, on good cause shown, dispense with such notice or remand the case to enable such notice to be given.

- The plea of autrefois convict is not available where it was impossible at the previous trial to prefer the more serious charge now presented. Thus, a conviction for assault is no bar to a prosecution for murder or culpable homicide where the victim has died since the conviction, for the more comprehensive offence could not have been proved at the former trial, and the fact of death has altered the essential nature of the crime. S v LeIaka zasca

In {S v Basson (1) saker C.C} the Constitutional Court upheld the State's appeal against the trial court's quashing of six charges against the respondent. It also confirmed the principles that in such circumstances the plea of autrefois acquit would not succeed in a subsequent prosecution'as there was no acquittal on merits in respect of the quashed charges, and the accused did not plead to these charges and was therefore never in jeopardy of conviction upon them' at ([256]).

The requirement that the previous acquittal (autrefois acquit) should have been on merits, must be interpreted in the light of provisions of sections 322(3) and 324. Section 324 should also be read with section 313 which deals with the institution of proceedings de novo when a conviction in a lower court is set aside on appeal or review (Makau v Magistrate at [24].

In {S v Msomi (1) saker (N)} the accused at his second trial had pleaded guilty to and was convicted of theft. Prior to sentencing it emerged that the accused could successfully rely upon autrefois convict. The magistrate upheld this'plea' despite the fact that the accused himself had never tendered such plea. The magistrate sent the matter on review for confirmation of his finding. On review it was held that the magistrate should have stopped the proceeding and sent the matter on review in terms of section 304A, which provides for the situation where magistrates are faced with irregular proceedings after conviction but before sentence.

- Section 106(4) contains the important principle that an accused who pleads to a charge shall, except in special circumstances, be entitled to demand that he be acquitted or convicted.

- The effect of this section is that an accused must be acquitted or convicted on the charge which was proffered and not on an entirely different offence, to which he might have admitted during the course of the proceedings.

- An accused who has pleaded to certain charges but in respect of which no judgement was given, should be acquitted on all those charges.

- The procedural right granted to an accused in terms of section 106(4) only exists in a situation where the accused pleads to a charge on which he is actually being tried in the sense that he is before tribunal which has the power to find him guilty or not guilty on that charge.

The availability of the presiding officer is also a factor that affects the right of the accused to demand a verdict. Where the magistrate who started the trial is no longer available in the absolute sense like where he dies or recuses himself, the trial can start de novo before another presiding officer. For a case to start de novo, it means that the case is to start afresh, or from the beginning.

The plea of his pendens is not referred to in section 106. But it is a plea that can be raised, see S v Motsepa (1) S.A (O). See also Wild & anther v Hoffert no & others (2) saker (N) This is where accused replies that this matter which he is being charged for, is already pending or proceeding before another court and as such he cannot be prosecuted again as it has to be finalized where he is being tried.

Section 107 Truth and Publication for public benefit of defamatory matter to specially pleaded

A person charged with the unlawful publication of defamatory matter, who sets up as a defence that the defamatory matter is true and that it was for the public benefit that the matter should be published, shall plead such defence specially, and may plead with any other plea except the plea on guilty.

The common law crime of defamation has not been abrogated by disuse and is consistent with constitutional provisions (;

Section 108 - Issues raised by plea to be tried

If an accused pleads a plea other than a plea of guilty, he shall, subject to the provisions of sections 115, 122 and 141(3), by such plea be deemed to demand that the issues raised by the plea be tried.

Section 109 - Accused refusing to plead

A refusal to plead does not amount to contempt of court

Section 110 - Accused brought before court which has no jurisdiction

Code summary: This procedure establishes the rules for handling jurisdictional challenges by an accused party. It creates a legal fiction where the court is deemed to have jurisdiction if a challenge is raised after a plea of guilty or not guilty has been entered, or after other pleas have been ruled against the accused, ensuring the case can proceed. Conversely, if a jurisdictional plea is upheld, the court must adjourn the case to the appropriate court that possesses the legal authority to hear it.

The Court explained in Savoi & others v National Prosecuting Authority & another 2021

saker K.Z.P at [53],'in a criminal matter, jurisdiction is determined by the area in which the offences have been committed (territorial jurisdiction), the nature of the offence (substantive jurisdiction) and also the nature of the penalty that should be imposed (punitive jurisdiction).

- Territorial jurisdiction refers to the place at which the offence was committed. The crime must have been committed within the geographic jurisdiction of the court, unless the Director of Public Prosecution issues a certificate of consolidation of offences (commonly called “centralisation certificate”), in term of S.111 of C.P.A

- Substantive jurisdiction refers to the type of crime. High Courts have jurisdiction over all crimes. Regional courts have jurisdiction over all crimes except treason. District courts have jurisdiction over all crimes except treason, murder, rape and compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively

Penal jurisdiction refers to the sentences which may be imposed by the court. High court may impose any sentence in terms of the C.P.A. Regional court has a maximum jurisdiction of 15 years imprisonment. District court has a maximum jurisdiction of 3 years imprisonment.

The Criminal Law Amendment Act 105 of 1997 – gives the High Court and Regional Court the power to impose minimum sentences – including life imprisonment according to the categories of crimes listed in the schedule of the Act (see discussion on sentencing for full details)

Prosecution Policy Directives - Where minimum sentences as contemplated in section 51(1) or 51(2) of the Criminal Law Amendment Act, 105 of 1997, are applicable, the trial must be conducted in the Regional Court (or High Court).

Section 110A - Jurisdiction in respect of offences committed by certain persons outside Republic

(1) Notwithstanding any other law, any South African citizen who commits an offence outside the area of jurisdiction of the courts of the Republic and who cannot be prosecuted by the courts of the country in which the offence was committed, due to the fact that the person is immune from prosecution as a result of the operation of provisions of

(a) the convention on the Privileges and immunities of the U.N, 1946

(b) the convention on the Privileges and immunities of the specialized agencies, 1947,

(c) the Vienna Convention on Diplomatic Relations, 1961;

(d) the Vienna Convention on Consular Relations, 1963; or

(e) any other international convention, treaty or any agreement between the Republic and any other country or international organisation.

and that person is found within the area of jurisdiction of any court in the Republic which would have had jurisdiction to try the offence if it had been committed within its area of jurisdiction, that court shall, subject to subsection (2) have jurisdiction to try that offence.

(2) no prosecution may be instituted against a person under subsection (1) unless:

(a) the offence is an offence under the laws of the Republic, and

(b) the N.D.P.P instructs that a prosecution be instituted against the person (3) At the conclusion of the trial against a person under this section, a copy of the proceedings, certified by the clerk of the court or registrar, together with any remarks as the prosecutor may wish to append thereto, must be submitted to the Minister of Foreign Affairs.

In Southern African Litigation Centre & another v N.D.P.P & others 2012 (10) B.C.L.R 1089

G.N.P, the North Gauteng High Court in Pretoria considered the provision or universal jurisdiction in Act 27 of 2002. The High Court held that the decision taken by the N.P.A refusing and/or failing to accede to the first applicant's request that an investigation be initiated under the implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 into acts of torture as crimes against humanity committed by certain named perpetrators in Zimbabwe, was unlawful and inconsistent with the constitution and therefore invalid.

The S.A.L.C judgement was taken on appeal. In National Commissioner, South African Police Service and another v Southern African Human Rights Litigation Centre and another vice & another v Southern African Human Rights Litigation Centre & another 2014 (2) S.A S.C.A the S.C.A agreed with the High Court. The S.C.A clearly understood the notion of universality as a basis for prescriptive jurisdiction to be the idea that 'states are empowered to prescribe conduct that is recognized as [threatening] the good order not only of particular states but of the international community as a whole'.

Section 112 - Plea of Guilty

(1) where an accused at a summary trial in any court, pleads guilty to the offence charged, or to an offence of which he/she may be convicted on the charge and _the prosecutor accepts that plea –

(a) the presiding judge, regional magistrate or magistrate may, if he or she is of the opinion that the offence does not merit punishment of Imprisonment or any other form of detention without the option of a fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, convict the accused in respect of the offence to which he or she has pleaded guilty on his or her plea of guilty

only and -

(i) impose any competent sentence other than imprisonment or any other form of detention without the option of a fine or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette or

(2) deal with the accused otherwise in accordance with the law

(b) the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that the offence merits punishment of imprisonment without the option of a fine or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.

(2) If an accused or his legal advisor hands a written statement by the accused into court, in which the accused sets out the facts which he admits and on which he has pleaded guilty, the court may in lieu of questioning the accused under subsection 1(b), convict the accused on the strength of such statement and sentence him or her as provided in the said subsection if the court is satisfied that the accused is guilty of the offence to which he has pleaded guilty: Provided that the court may in its discretion put any question to the accused in order to clarify any matter raised in the statement.

(3) Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of

The amount is currently R.5000 as per G.N R.62 in G.G 36111 of 30 January 2013.

This section must be read with section 106 (1) (a) and (b) as discussed above.

It is a section wherein accused admits that he knows what he has been charged with and furthermore, he is taking responsibility for what he has done, and again admitting that he does not have a just excuse in law which he can defend himself or herself.

It becomes the responsibility of the presiding officer or judge to ensure that indeed the accused is guilty in terms of the law, by following all necessary steps that are prescribed.

If accused is pleading guilty to an offence which according to the prosecutor, does not warrant a fine which has been determined in government gazette, then the prosecutor shall inform the presiding officer that he or she is accepting the plea of accused and request the court to find accused guilty on his plea-section 112 (1) (a). This is done for those minor offences wherein the court will not impose a punishment of direct imprisonment or sentence with option of fine exceeding the one determined in the gazette. The finalization of cases via summary route as provided for in section 112 (1) (a) is not acceptable in cases where an accused has no legal representation and pleads guilty to an offence of some complexity. The court should exercise its discretion and not pursue the speedy disposal of cases at the expense of protecting and promoting the truth and fair trial requirements. In § 5 Gumede & Others (1) saker K.Z.P Olsen J stated...'the discretion must be exercised judicially, in exercising that discretion, the magistrate must recognize that the advantage sought to be gained by the employment of section 112 (1) (a) is one of efficiency. That however must be weighed against the fact that an important component of the right to a fair criminal trial is the achievement of an adequate assurance that innocent people are not wrongly convicted, bearing in mind that protection against wrong conviction is no less important in the case of a minor offence.

If the prosecutor is of the view that accused deserves a sentence which is beyond the amount specified in the gazette or detention without the option of a fine, the prosecutor shall request the court to question the accused in terms of section 112 (1) (b) in order to confirm that indeed accused has pleaded guilty correctly and in terms of the law. If accused is convicted following section 112 (1) (b) then he/she can be sentenced to any sentence which such court has jurisdiction to impose, in respect of that offence, including sentence where accused is sent direct to prison without an option of a fine.

In § 5 Kholoane (1) saker 8 F.B at [15] - Rampai J took the following view as regards the different procedures created by section 112 (1) (a) and (b): The configuration of the two procedures is undesirable. The important distinction between the two may thereby be blurred. If subsection (1) (a) is not strictly complied with, then subsection (1) (b) should not be used as corrective procedure for a sentence which does not fully fall within the scope of sub-section (1) (a). The court has to decide whether to use sub-section (1) (a) or (1) (b). There is no room somewhere for hybrid procedure. The court which applies subsection (1) (a) should only import the tool of judicial questioning into the subsection provided the fine component of the sentence it proposes imposing does not exceed the statutory limit. In other words, if the matter falls squarely within the ambit of sub-section (1) (a) the court is at liberty to ask certain judicial questions to the accused for the purpose of confirming legal compliance. However, if the proposed fine exceeds such limit, then the court should rather completely deal with the matter in terms of subsection (1) (b) instead of using sub-section (1) (b) to perfect irregular use of sub-section (1) (a) procedure'.

Section 112 (1) (b) was designed to protect an accused who is uneducated and undefended from the adverse consequences of an ill-considered plea of guilty. The questions and answers must cover all essential elements of the offence which the State in the absence of plea of guilty would have been required to prove. The court should avoid a procedure in terms of which the accused is merely asked to confirm his plea by making a series of admissions in respect of each element of the offence. The court should use a simple and understandable language to an undefended accused when questioning him or her. It is improper to ask an accused whether he admits all the allegations made in the charge read by the prosecutor. If there is more than one accused, each accused should be questioned separately from the other. Grant A.J said in S v Serame (2) saker G.J at [35], 'a court is obliged to ensure that the accused means to say that, in truth, he is really guilty'.

Section 112 (1) (b) must be applied within the context of an accused's constitutional right to a fair trial, Section 112 (1) (b) was designed to avoid the necessity for calling evidence in cases where it is clear that the accused understands all the elements of the charge against him and admits them all.

- A section 112 (2) statement serves the same purpose as questioning in terms of section 112 (1) (b), that is to ensure that the court is provided with an adequate factual basis which supports the plea of guilty and justifies a conviction to the satisfaction of the court. The statement has to satisfy the court that the accused admits the facts which underlie the charge and the court must be fully informed of the facts. This is a written statement which accused prepares or through his or her legal representative presents to the court as exhibit after pleading guilty to the charge., detailing the facts on which his plea is premised, and if the prosecutor accepts, and court also finds that it is in order, then accused can consequently be sentenced.

In D.P.P, Gauteng Division, Pretoria v Hamisi (2) saker S.C.A at [7] Dambuzo J.A pointed out that section 112(2) 'regulates guilty pleas made in writing; whereas section 112(1) governs the conviction and sentence of an accused on a verbal plea of guilty'. It was further indicated that a court considering a statement made in terms of section 112 (2) exercises its discretion to determine whether the statement admits all the elements of the offence in question. If it is not satisfied that there is so, it must question the accused as set out in section 112 (1) (b) to clarify a matter raised in the written plea. If it determines that the statement is satisfactory and admits all the elements of the offence, it shall convict the accused on the plea of guilty. The written plea is aimed at ensuring that the court is provided with an adequate factual basis to make a determination on whether the admissions made by an accused support the plea of guilty tendered.

Section 113 - Correction of plea of guilty

(1) If the court at any stage of the proceedings under section 112 (1) (a) or (b) or 112(2) and before sentence is passed, is in doubt whether the accused is in law guilty of the offence to which he or she has pleaded guilty or if it is alleged or appears to the court that the accused does not admit an allegation in the charge, or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge or if the court is of the opinion for any other reason that the accused's plea of guilty should not stand, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution, provided that any allegation, other than an allegation referred to above, admitted by the accused up to the stage at which the court records a plea of not guilty shall stand as proof in any court of such allegation.

(2) If the court records a plea of not guilty under subsection (1) before any evidence has been led, the prosecution shall proceed on the original charge laid against the accused, unless the prosecutor explicitly indicates otherwise.

The court in S v Mangena (1) saker L.P at [13] held that the prerequisites for a presiding officer to record a plea of not guilty in terms of section 113 are that:

1. there must be doubt whether the accused is in law guilty of the offence to which he/she has pleaded guilty, or

2. it must appear to the court that the accused does not admit an allegation in the charge, or

3. the accused has incorrectly admitted any such allegation, or

4. the accused has a valid defence to the charge, or

5. the court is of the opinion for any other reason that accused's plea of guilty should not stand.

There must be a basis for presiding officer to record a plea of not guilty in terms of section 113. The presiding officer will be guided by what the accused tells the court during questioning by court or during mitigation of sentence and not what the presiding officer thinks will transpire.

Section 114 - Committal by magistrate's court of an accused for sentence by regional court after plea of guilty

(1) If a magistrate's court, after conviction following on a plea of guilty but before sentence, is of the opinion –

(a) that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of magistrate's court, or

(b) that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of magistrate's court; or

(c) that the accused is a person referred to in section (1) the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.

(2) Where an accused is committed under subsection (1) for sentence by a regional court, the record of the proceedings in the magistrate's court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court, and the guilty plea and any admission shall stand unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

(3) (a) Unless the regional court concerned -

(i) is satisfied that a plea of guilty or an admission by the accused which is material to his guilt was incorrectly recorded; or

(2) is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence, the court shall make a formal finding of guilty and sentence the accused.

(b) If the court is satisfied that a plea of guilty or any admission by the accused which is material to his guilt was incorrectly recorded or if the court is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence or that he has no valid defence to the charge, the court shall enter a plea of not guilty and proceed with the trial or summary trial in that court, provided that any admission by the accused of the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.

(4) The provisions of section 112(3) shall apply with reference to the proceedings under this section.

Section 115 - Plea of not guilty and procedure with regard to issues

(1) Where an accused at summary trial pleads not guilty to the offence charged, the presiding judge, regional magistrate or magistrate may ask him or her whether he wishes to make statement indicating the basis of his or her defence.

(2) (a) Where an accused does not make a statement under subsection (1), or does so and it is not clear from the statement to what extent he or she denies or admits the issues raised by the plea, the court may question the accused in order to establish which allegations in the charge are in dispute.

(b) The court may in its discretion put any question to the accused in order to clarify any matter raised under subsection (1) or this subsection, and shall enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an admission under section 220.

(3) Where the legal advisor of an accused on behalf of the accused replies, whether in writing or orally, to any question by the court under this section, the accused shall be required by the court to declare whether he or she confirms such reply or not.

This section gives procedure on what should happen after accused has chosen section 106(1)(b) and as such, this section gives accused opportunity to explain the basis of his denial of the allegations against him or her. However, the accused is not obliged to give an explanation, and as such the prosecutor can proceed to lead evidence without any plea explanation by the accused.

- The aim of section 115 is to give the accused an opportunity to put forward his or her defence.. Common-law and statutory procedural rights which are affected by section 115 must be explained to an accused who appears without legal representation. A court is not obliged to question an accused who has pleaded not guilty.

- The presiding officer should inform the accused that he is under no obligation to make a statement indicating the basis of his defence. The accused is also under no obligation to answer any question from the presiding officer for the purpose of plea explanation.

- Once a statement indicating the basis of the defence is however supplied, the court is obliged to enquire whether an allegation not placed in dispute may be recorded as an admission.

- Should the accused agree, the formal admissions made during questioning shall be formally recorded and deemed to be admissions in terms of section 220 and the prosecutor shall be relieved from proving same. Formal admissions which cover all the elements of the offence eliminate the necessity for State to adduce evidence in support of its allegations.

- The accused's silence during the explanation of plea simply means that the State must prove all its allegations.

Section 115A - Committal of accused for trial by the regional court

(1) Where an accused pleads not guilty in a magistrate's court, the court shall, subject to the provisions of section at the request of the prosecutor, made before any evidence is tendered, refer the accused for trial to a regional court having jurisdiction.

(2) The record of the proceedings in the magistrate's court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court.

Section 116 - Committal of accused for sentence by regional court after trial in magistrate's court

(1) If a magistrate's court, after conviction following on a plea of not guilty but before sentence, is of the opinion

(a) that the offence in respect of which the accused has been convicted is of such nature or magnitude that it merits punishment in excess of the jurisdiction of magistrate's court;

(b) that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of magistrate's court; or

(c) that the accused is a person referred to in section 286A (1), the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.

(2) The record of the proceedings in the magistrate's court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court.

(3) (a) The regional court shall, after considering the record of the proceedings in the magistrate's court, sentence the accused, and the judgement of the magistrate's court shall stand for this purpose and be sufficient for the regional court to pass any competent sentence: Provided that if the regional magistrate is of the opinion that the proceedings are not in accordance with justice or doubt exists whether the proceedings are in accordance with justice, he or she may request the presiding officer in the magistrate's court to provide him or her with the reasons for conviction, and if after considering the reasons, the regional magistrate is satisfied that the proceedings are in accordance with justice he or she may sentence the accused, but if he or she remains of the opinion that the proceedings are not in accordance with justice or doubt exists whether the proceedings are in accordance with justice, he or she shall, without sentencing the accused, record the reasons for his or her opinion and transmit such reasons and the reasons of the presiding officer of the magistrate's court, together with the record of the proceedings in the magistrate's court to the registrar of provincial division having jurisdiction, and such registrar shall, as soon as possible, lay the same in chambers before a judge who shall have the same powers in respect of such proceedings as if the record had been laid before him or her under section 303.

(b) If a regional magistrate acts under the proviso to paragraph (a), he or she shall inform the accused accordingly and postpone the case to some future date pending the outcome of the review proceedings, and if the accused is in custody, the regional magistrate may make such order with regard to the detention or release of the accused as he may deem fit.

In terms of S v Duma 2012 (2) saker 585 K.Z.P at [11]; S v Davids & another 2020 (1)

saker 134 W.C.C, 'an order made by a district-court magistrate in terms of either section 116 or section 114 referring a case to the regional court for sentencing purposes, is merely a ruling of a procedural nature seeking to direct the future conduct of the proceedings and does not dispose, or seek to dispose of the case'.

Section 114, after a guilty plea, does not empower the regional magistrate to request reasons from the magistrate, whereas section 116, after a plea of not guilty, does.

Section 114 empowers the regional magistrate to continue with the case where there is doubt whether the proceedings were in accordance with justice, whereas section 116 does not.

Section 117 - Committal to Superior Court in special case

Where an accused in a lower court pleads not guilty to the offence charged against him and a ground of his defence is the alleged invalidity of a provincial ordinance or a proclamation of the State President on which the charge against is founded and upon the validity of which a magistrate's court is in terms of section 110 of the magistrate's courts Act, 1944, not competent to pronounce, the accused shall be committed for a summary trial before a superior court having jurisdiction.

A lower court is competent to pronounce upon validity of any statutory regulation, order or by-law, but must assume – and is incompetent to pronounce upon – the validity of a provincial ordinance or of a statutory proclamation of the State President. Cases in which section 117 will be invoked are 'rare' and where it is invoked 'the accused must be committed for trial in the High Court' [117]).

: Code summary: Section 118 - Non-availability of judicial officer after plea of not guilty establishes that if a judicial officer becomes unavailable after an accused has pleaded not guilty in a summary trial, the trial may be transferred to another officer of the same court, provided that no evidence has yet been presented.

Section 118 should be read with section 106(4). It would seem as if real purpose of s 118 is merely to ensure that an explanation of plea can be taken by one magistrate and that the actual trial can then be commenced before a different magistrate. See generally S v Stokffels & Similar cases (1) saker 176 C and S v Mokoena (2) saker (O) at [2] as well as S v Masumpa (2) saker 512 C.K at [8].

In S v Moses (1) saker W.C.C at [32] the court held that 'should a judicial officer for any reason nevertheless feel uncomfortable about proceeding with the matter with knowledge of the accused's previous convictions after altering the plea in terms of s 113, he or she may properly recuse themselves and, provided that they do so before any evidence has been adduced, the trial may continue before a substitute in terms of s118 of the Act.

Plea in Magistrate's Court on Charge Justiciable in Superior Court (ss 119 to 122)

Section 119 - Accused to Plead in Magistrate's Court on Instructions of D.P.P

When an accused appears in a magistrate's court and the alleged offence may be tried by a superior court only or is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate's court, the prosecutor may, notwithstanding the provisions of section 75, on the instructions of D.P.P, put the charge as well as any other charge which shall, in terms of section 82, be disposed of in a superior court, to the accused in the magistrate's court, and the accused shall, subject to the provisions of section 77 and 85 be required by the magistrate to plead thereto forthwith

It was held in D.P.P Transvaal versus Viljoen (1) saker S.C.A at [43]: In terms of section 35 (3) (h) an accused has the right to fair trial, which includes the right to remain silent (not a right to be informed of the right to remain silent). The right is clearly one that can be waived. A failure to inform accused of the right to remain silent may result in the trial being unfair Section 119 proceedings only serve as aid to the D.P.P who determines the charge and the decision on the prosecution rests with him in terms of section 122 (1) of the Act.

Section 120 - Charge sheet and proof of record

The proceedings shall be commenced by the lodging of a charge-sheet with the clerk of the court in question and the provisions of subsections (2) and (3) of section 76 shall mutatis mutandis apply with reference to the charge-sheet and the record of the proceedings.

Section 121 - Plea of guilty

(1) Where an accused under section 119 pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b) of section 112(1).

(2) (a) if the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall stop the proceedings.

(b) If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122(1): Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation.

(3) If the magistrate is satisfied as provided in subsection (2) (a), he shall adjourn the proceedings pending the decision of the attorney-general, who may—

(a) arraign the accused for sentence before a superior court or any other court having jurisdiction, including the magistrate's court in which the proceedings were stopped under subsection (2) (a);

(b) decline to arraign the accused for sentence before any court but arraign him for trial on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate's court in which the proceedings were stopped under subsection (2) (a);

(c) institute a preparatory examination against the accused.

(4) The magistrate or any other magistrate of the magistrate's court concerned shall advise the accused of the decision of the attorney-general and, if the decision is that the accused be arraigned for sentence—

(a) in the magistrate's court concerned, dispose of the case on the charge on which the accused is arraigned; or

(b) in a regional court or superior court, adjourn the case for sentence by the regional court or superior court concerned.

(5) (a) The record of the proceedings in the magistrate's court shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused or, if the accused is arraigned in the magistrate's court in which the proceedings were stopped under subsection (2) (a), the record of such proceedings shall stand as the record of that court, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

(aA) The record of the proceedings in the magistrate's court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such admission was incorrectly recorded.

(b) Unless the accused satisfies the court that a plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty and impose any competent sentence.

(6) If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.

(7) Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

Section 122 - Plea of not guilty

(1) Where an accused under section 119 pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied (with), the magistrate shall stop the proceedings and adjourn the case pending the decision of the D.P.P.

(2) Where the proceedings have been adjourned under subsection (1) the D.P.P may-

(i) arraign the accused on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate's court in which the proceedings were adjourned under subsection (1); or

(2) institute a preparatory examination against the accused, and the D.P.P shall advise the magistrate's court concerned of his decision.

(3) The magistrate, who need not be the magistrate before whom the proceedings under section 119 or 122(1) were conducted, shall advise the accused of the decision of the D.P.P, and if the decision is that the accused be arraigned –

(a) in the magistrate's court concerned, require the accused to plead to that charge, and, if the plea to that charge is one of guilty or the plea in respect of an offence of which the accused may on such charge be convicted is one of guilty and the prosecutor accepts such plea, deal with the matter in accordance with the provisions of section 112, in which event the provisions of section 114(1) shall not apply, or, if the plea is one of not guilty, deal with the matter in accordance with the provisions of section 115 and proceed with the trial;

(b) in a regional court or a superior court, commit the accused for a summary trial before the court concerned.

(4) The record of the proceedings in the magistrate's court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such an admission.

In {S v Sesetse (3) S.A (A)} it was pointed out that if an accused, who has spontaneously made an admission after he was required to plead in terms of s 119 but before the procedure prescribed by s122 was followed, should consent, after questioning by the magistrate in terms of s 115(2)(b), to the admission being recorded such admission becomes an admission in terms of section 220. Where consent is not given, the admission should be treated as an informal admission.

Plea in Magistrate's Court on Charge to be Adjudicated in Regional Court (ss 122 A – 122 D

Section 122 A - Accused to plead in magistrate's court on charge to be tried in regional court

When an accused appears in a magistrate's court and the alleged offence may be tried by a regional court but not by a magistrate's court or the prosecutor informs the court that he is of the opinion that the alleged offence is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate's court but not of the jurisdiction of a regional court, the prosecutor may notwithstanding the provisions of section 75, put the relevant charge, as well as any other charge which shall, in terms of section 82, be disposed of by a regional court, to the accused, who shall, subject to the provisions of sections 77 and 85, be required by the magistrate to plead thereto forthwith

See S v Lethopa (1) saker (O) wherein accused had pleaded not guilty under section 122 A, matter was provisionally withdrawn by the D.P.P, but later reinstated and accused was asked to plead again, this time he pleaded guilty but this second proceedings were set aside by the full bench.

Section 122 B - Charge-sheet and proof of record

The provisions of section 120 shall mutatis mutandis apply with reference to the proceedings under section 122 A and the record of the proceedings.

Section 122 C - Plea of guilty

(1) Where an accused under section 122 A pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b) of section 112(1)

(2) (a) If the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall adjourn the case for sentence by the regional court concerned.

(b) If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122 D (1).

(3) (a) The record of the proceedings in the magistrate's court shall, upon proof thereof in the regional court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

(b) Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty, and impose any competent sentence

(4) If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, the court shall record a plea of not guilty and proceed with the trial with as a summary trial in that court.

(5) Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purpose of determining an appropriate sentence.

In S v M (4) S.A (O) it was held that the expression'he shall adjourn the case for sentence' in section 122 C (2) (a) and the expression'arraigned for sentence' in section 122 C (3) (a) do not mean that the accused must be convicted in the magistrate's court before he is referred to the regional court. The effect of sections 122 A through C is that the conviction must be entered by the regional court. See also S v Ndlolo and others (2) saker C.K.

Section 122 D - Plea of not guilty

(1) Where an accused under section 122 A pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied with, the magistrate shall commit the accused for a summary trial in the regional court concerned on the charge to which he has pleaded not guilty or on the charge to which he has pleaded not guilty or on the charge in respect of which a plea of not guilty has been entered under section 122 C (2) (b).

(2) The regional court may try the accused on the charge in respect of which he has been committed for a summary trial under subsection (1) or on any other or further charge which the prosecutor may prefer against the accused and which the court is competent to try.

(3) The record of proceedings in the magistrate's court shall, upon proof thereof in the regional court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such admission.

Preparatory Examination (ss123-143)

Preparatory examinations have three main functions, namely to –

(1) underline the evidence available against the accused;

(2) inform the accused of the available evidence in the State's case; and

(3) enable a decision to be made whether the case was trial ready.

Preparatory examinations have largely, if not entirely, fallen into disuse. However, the provisions remain available and the D.P.P has a discretion to convert a trial in the Magistrates' courts into a preparatory inquiry.

Section 123 - D.P.P may instruct that preparatory examination be held

If D.P.P is of the opinion that it is necessary for the more effective administration of justice –

(a) that a trial in a superior court be preceded by a preparatory examination in a magistrate's court into the allegations against the accused, he may, where he does not follow the procedure under section 119, or, where he does follow it and the proceedings are adjourned under section 121(3) or 122(1) pending the decision of the D.P.P, instruct that a preparatory examination be instituted against the accused;

(b) that a trial in a magistrate's court or a regional court be converted into a preparatory examination, he may at any stage of the proceedings, but before sentence is passed, instruct that the trial be converted into preparatory examination.

The decision to hold a preparatory examination or convert a magistrate's court or regional court trial into a preparatory examination, is in the sole discretion of the D.P.P-the only issue to be considered is whether such preparatory examination is necessary for the more effective administration of justice.

Section 124 - Proceedings preceding holding of preparatory examination to form part of preparatory examination record

Where a D.P.P acts under paragraph (a) or (b) of section 123-

(a) the record of any proceedings under section 121(1) or 122(1), or of any proceedings in the magistrate's court or regional court before the trial was converted into a preparatory examination, shall form part of the preparatory examination record;

(b) and the accused has pleaded to a charge, the preparatory examination shall continue on the charge to which the accused has pleaded: provided that where evidence is led at such preparatory examination which relates to an offence, other than the offence contained in the charge to which the accused has pleaded, allegedly committed by the accused, such evidence shall not be excluded on the ground only that the evidence does not relate to the offence to which the accused has pleaded.

Section 125 - D.P.P May Direct That Preparatory Examination Be Conducted at a Specified Place

(1) Where a D.P.P instructs that a preparatory examination be instituted or that a trial be converted into a preparatory examination, he may, if it appears to him expedient on account of the number of accused involved or of excessive inconvenience or of possible disturbance of the public order, that the preparatory examination be held within his area of jurisdiction in a court other than the court in which the relevant proceedings were commenced, direct that the preparatory examination be instituted in such other court, or where a trial has been converted into a preparatory examination, be continued in such other court

(2) The magistrate or regional magistrate shall, after advise of the decision of the D.P.P, advise the accused of the decision of the D.P.P and adjourn the proceedings to such other court, and thereafter forward a copy of the record of the proceedings, certified as correct by the clerk of the court, to the court to which the proceedings have been adjourned.

(3) The court to which the proceedings are adjourned under subsection, shall receive the copy of the record referred to in that subsection, which shall then form part of the proceedings of that court of that court, and shall proceed to conduct the preparatory examination as if it were a preparatory examination instituted in that court.

Section 126 - Procedure to be followed by magistrate at preparatory examination

Where a D.P.P instructs that a preparatory examination be held against an accused, the magistrate or regional magistrate shall, after advice of the decision of D.P.P, advise the accused of the D.P.P and proceed in the manner hereinafter described to enquire into the charge against the accused.

Section 127 - Recalling of witnesses after conversion of trial into preparatory examination

Where a D.P.P instructs that a trial be converted into a preparatory examination, it shall not be necessary for the magistrate or regional magistrate to recall any witness who has already given evidence at the trial, but the record of the evidence thus given, certified as correct by the magistrate or regional magistrate, as the case may be, or if, such evidence was recorded in short hand or by mechanical means, any document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed it, shall have the same legal force and effect and shall be admissible in evidence in the same circumstances as the evidence given in the course of a preparatory examination: Provided that if it appears to the magistrate or regional magistrate concerned that it may be in the interest of justice to have a witness already examined recalled for further examination, then such witness shall be recalled and further examined and the evidence given by him shall be recorded in the same manner as other evidence given at a preparatory examination.

Section 128 - Examination of prosecution witnesses at preparatory examination

The prosecutor may, at a preparatory examination, call any witness in support of the charge to which the accused has pleaded or to testify in relation to any other offence allegedly committed by the accused.

Section 129 - Recording of evidence at preparatory examination and proof of record

(1) The evidence given at a preparatory examination shall be recorded, and the document purporting to be certified copy shall have the same legal force and effect as such original record.

(2) The record of a preparatory examination may be proved in a court by the mere production thereof or of a copy thereof in terms of section 235.

Section 130 - Charge to be put at conclusion of evidence for prosecution

The prosecutor shall, at the conclusion of the evidence in support of the charge, put to the accused such charge or charges as may arise from the evidence and which the prosecutor may prefer against the accused.

Section 131 - Accused to plead to charge

The magistrate or regional magistrate, as the case may be, shall, subject to the provisions of section 77 and 85, require an accused to who a charge is put under section 130 forthwith to plead to the charge.

Section 132 - Procedure after plea

(1) (a) Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads guilty to the offence charged, the presiding officer shall question him in accordance with the provisions of section 112 (1) (b).

(b) If the presiding judicial officer is not satisfied that the accused admits all the allegations in the charge, he shall record in what respect he is not so satisfied and enter a plea of not guilty: provided that the recorded admissions shall stand at the trial of accused as proof of such allegation (2) Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads not guilty to the offence charged, the presiding judicial officer shall act in accordance with the provisions of section 115.

Section 133 - Accused may testify at preparatory examination

An accused may, after the provisions of section 132 have been complied with but subject to the provisions of section 151 (1) (b) which shall mutatis mutandis apply, give evidence or make an unsworn statement in relation to a charge put to him under section 130, and the record of such evidence or statement shall be received in evidence before any court in criminal proceedings against the accused upon its mere production without further proof.

Section 134 - Accused may call witnesses at preparatory examination

An accused may call any competent witness on behalf of the defence.

This section is – in terms of section 9(2) of the Extradition Act 67 of 1967-also applicable to extradition enquiry – see case of Garrido v Director of Public Prosecutions, Witwatersrand Local Division, & others (1) saker 1(S.C.A) at [24].

Section 135 - Discharge of accused at conclusion of preparatory examination

As soon as a preparatory examination is concluded and the magistrate or regional magistrate is upon the whole of the evidence of the opinion that no sufficient case ha been made out to put the accused on trial on any charge put to the accused under section 130 or upon any charge in respect of an offence of which the accused may on such charge be convicted, he may discharge the accused in respect of such charge.

Section 136 - Procedure with regard to exhibits at preparatory examination

The magistrate or regional magistrate shall cause every document and every article produced or identified as an exhibit by any witness at a preparatory examination to be inventoried and labelled or otherwise marked, and shall cause such documents and articles to be kept in safe custody pending any trial following upon such preparatory examination.

Section 137 - Magistrate to transmit record of preparatory examination to Director of Public Prosecutions

The magistrate or regional magistrate shall at the conclusion of a preparatory examination and whether or not the accused is under section 135 discharged in respect of any charge, send a copy of the record of the preparatory examination to the D.P.P and, where the accused is not discharged in respect of all the charges put to him under section 130, adjourn the proceedings pending the decision of the D.P.P.

Section 138 - Preparatory examination may be continued before different judicial officer

A preparatory examination may at any stage be continued by a judicial officer other than the judicial officer before whom the proceedings were commenced, and, if necessary, again be continued by the judicial officer before whom the proceedings were commenced.

Section 139 - Director of Public Prosecutions may arraign accused for sentence or trial

After considering the record of a preparatory examination transmitted to him under section 137, the D.P.P may –

(a) in respect of any charge to which the accused has under section 131 pleaded guilty, arraign the accused for sentence before any court having jurisdiction;

(b) arraign the accused for trial before any court having jurisdiction, whether the accused has under section 131 pleaded guilty or not guilty to any charge and whether or not he has been discharged under section 135;

(c) decline to prosecute the accused.

and the D.P.P shall advise the lower court concerned of his decision.

Section 140 - Procedure where accused arraigned for sentence

(1) Where an accused is under section 139(a) arraigned for sentence, any magistrate or regional magistrate of the court in which the preparatory examination was held shall advice the accused of the decision of the D.P.P and, if the decision is that the accused be arraigned –

(a) in the court concerned, dispose of the case on the charge on which the accused is arraigned; or

(b) in a court other than the court concerned, adjourn the case for sentence by such other court.

(2) (a) The record of preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

(b) Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty and impose any competent sentence.

(3) If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court.

(4) Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence including evidence or statement by or on behalf of the accused, with regard to sentence.

Section 141 - Procedure where accused arraigned for trial

(1) where an accused is under section 139(b) arraigned for trial, a magistrate or regional magistrate of the court in which the preparatory examination was held shall advise the accused of the decision of the D.P.P and, if the accused is to be arraigned in a court other than the court concerned, commit the accused for trial by such other court.

(2) where an accused is arraigned for trial after a preparatory examination, the case shall be dealt with in all respects as with a summary trial.

(3) The record of the preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for trial, be received as part of the record of that court against accused, provided that the evidence adduced at such preparatory examination shall not form part of the record of the trial of the accused, unless —

(a) the accuse pleads guilty at his trial for the offence charged, or to an offence of which he may be convicted on the charge and the prosecutor accepts that plea; or

(b) the parties to the proceedings agree that any part of such evidence be admitted to the proceedings.

(4) (a) where an accused who has been discharged under section 135is arraigned for trial under section 139(b), the clerk of the court where the preparatory examination was held shall issue to him a written notice to that effect and stating the place, date and time for the appearance of the accused in that court for committed for trial, or, if he is to be arraigned in that court, to plead to the charge on which he is to be arraigned.

(b) The notice referred to in paragraph (a) shall be served on the accused in the manner provided for in sections 54(2) and (3) for the service of a summons in a lower court and the provisions of sections 55(1) and (2) shall mutatis mutandis apply with reference to such notice.

(c) If the accused is committed for trial by another court, the court committing the accused may direct that he be detained in custody, whereupon the provisions of chapter 9 shall apply with reference to the release of the accused on bail.

In S v Sterrenberg (2) S.A (A) 829 H - it was held that neither the prosecution nor the accused is obliged to adduce the preparatory examination record in evidence. It was also held that there is no duty or discretion resting on the trial court mero motu to receive it in evidence or have regard to it.

Section 142 - Procedure Where the D.P.P Declines to Prosecute

Where the D.P.P under section 139(c) declines to prosecute an accused, he shall advise the magistrate of the district in which the preparatory examination was held of his decision, and such magistrate shall forthwith have the accused released from custody or, if the accused is not in custody, advise the accused in writing of the decision of the D.P.P, whereupon no criminal proceedings shall again be instituted against the accused in respect of the charge in question.

Effect of D.P.P's decision to decline to prosecute in terms of section 139(c) read with section 142, should for all practical purposes be equated to an acquittal on merits by a court of law, that is the accused will at a're-trial' in respect of the same subject matter be able to rely on the plea of autrefois acquit under section 106.

Section 143 - Accused may inspect preparatory examination record and is entitled to copy thereof

(1) An accused who is arraigned for sentence or for trial under section 139 may, without payment, inspect the record of the preparatory examination at the time of his arraignment before the court.

(2) (a) An accused who is for sentence or for trial under section 139 shall be entitled to a copy of the record of the preparatory examination upon payment, except where a legal practitioner under the Legal Aid South Africa Act, 2014, or pro deo counsel is appointed to defend the accused or where the accused is not legally represented, of a reasonable amount not exceeding amount determined.

(b) The clerk of the court shall provide the accused or his legal adviser with the preparatory examination record in accordance with the provisions of paragraph (a).

Section 143 confirms he principle that an accused should be informed of the allegations against him and where such allegations are contained in a preparatory examination, he is entitled to have access to the record.

Trial before Superior Court (Sections 144 to 149)

Image summary: A text document detailing Section 144 regarding the charge in Superior court to be laid in an indictment. It outlines the requirements for an indictment, including the necessity of being framed in the name of the DPP, the inclusion of the accused's personal details, and the provision of a summary of facts and witness lists for summary trials. It also specifies the service of the indictment at least ten days before the trial. The purpose of the text is to define the legal procedures and documentation required for charging an accused person in a Superior court.

Section 144 - Charge in Superior court to be laid in an indictment

(1) Where the D.P.P arraigns an accused for sentence or trial by a superior court, the charge shall be contained in a document called an indictment, which shall be framed in the name of the D.P.P.

(2) The indictment shall, in addition to the charge against the accused, include the name and, where known and where applicable, the address, gender, nationality and age of the accused.

(3) (a) Where the D.P.P under section 75, 121(3)(b) or 122(2)(i) arraigns an accused for a summary trial in a Superior court, the indictment shall be accompanied by summary of the substantial facts of the case, as well as a list of the names and addresses of the witnesses in the case, provided that

(i) this provision shall not be construed that the State shall be bound by the contents of summary

(2) the D.P.P may withhold the name and address of a witness if he is of the opinion that such witness may be tempered with or be intimidated or that it would be in the interest of the security of the State

(3) the omission of the name or address of a witness from such list shall not affect validity of the trial.

(b) Where the evidence for the State at the trial of the accused differs in material respect from the summary referred to in paragraph (a), the trial court may, at the request of the accused, adjourn the trial for such period as the court may seem adequate.

(4) (a) An indictment shall be served on an accused at least ten days (Sundays and public holidays excluded) before the date appointed for trial –

(2) by the magistrate or regional magistrate committing him to the Superior court by handing it to him.

(b) A return of the mode of service by the person who served the indictment and the notice of trial, or if the said documents were served in court on the accused by a magistrate or regional magistrate, an endorsement to that effect, upon the failure of the accused to attend the proceedings in the Superior court, be handed in at the proceedings and shall be prima facie proof of service.

(c) The provisions of section 55(1) and (2) shall mutatis mutandis apply with reference to a notice of trial served on an accused in terms of this subsection.

In S v Makayi (2) saker E.C.B at [67] the court held that although the State is not bound by the summary of substantial facts, the prosecution is expected to either supplement or present an opening address where the evidence it intends to lead differs vastly from that reflected in the summary of substantial facts.

Section 145 - Trial in Superior court by Judge sitting with or without assessor

(1) (a) Except as provided in section 148, an accused arraigned before a Superior court shall be tried by a judge of that court sitting with or without assessors in accordance with the provisions set out hereunder.

(b) An assessor for the purposes of this section means a person who, in the opinion of the judge who presides at a trial, has experience in the administration of justice or skill in any matter which may be considered at the trial.

(2) Where a D.P.P arraigns an accused before a superior court –

(a) for trial and the accused pleads not guilty; or

(b) for sentence, or for trial and the accused pleads guilty, and a plea of not guilty is entered at the direction of the presiding judge, the presiding judge may summon not more than two assessors to assist him at the trial.

(3) No assessor shall hear any evidence unless he first takes an oath or, an affirmation that he will give a true verdict upon the issues to be tried

(4) An assessor who takes an oath or makes an affirmation shall be a member of the court.

(5) If an assessor is not in the full-time employment of the State, he shall be entitled to such compensation as the Minister, in consultation with the Minister of finance, may determine in respect of expenses incurred by him in connection with his attendance at the trial, and in respect of his services as assessor.

The interpretation of the term 'a person experienced in the administration of justice' in practice leads to the appointment of advocates, magistrates, attorneys and legal academics as assessors. Persons with a specific skill will include accountants or auditors, but significant cost implications and their availability for lengthy trials are problematic. (section 145(1)(b))

On the use, purpose and functions of assessors, see S v Mncwengi and others 2 saker S.C.A at 19.

Section 146 - Reasons for decision by Superior Court in criminal matters

A judge at a criminal trial in a superior court shall give the reasons for the decision or finding of the member of court who is in the minority or, where the presiding judge sits with only one assessor of such an assessor.

Section 147 - Death or incapacity of assessor

(1) If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as assessor at any time during a trial, the presiding judge may direct –

(a) that the trial proceed before the remaining member or members of the court; or

Code summary: This procedure outlines the legal requirements for restarting a trial de novo when an assessor dies or becomes unable to act, requiring the appointment of a replacement assessor while ensuring that any previously recorded plea remains valid.

{Section} 148...

repealed

Section 149 - Change of venue in Superior court after indictment has been lodged

(1) A superior court may, at any time after an indictment has been lodged with the registrar of that court and before the date of trial, upon application by either prosecution or accused, order that the trial be held at a place within the area of jurisdiction of such court, other than the place determined for the trial, and that it be held on a date and time, other than the date and time determined for the trial.

(2) If the accused is not present or represented at such an application or if the prosecution is not present at such an application by the accused, the court shall direct that a copy of the order be served on either prosecution or accused, as the case may be.

Conduct of proceedings (ss 150 to 178)

Section 150 - Prosecutor may address court and adduce evidence

(1) The prosecutor may at any trial, before any evidence is adduced, address the court for the purpose of explaining the charge and indicating, without comment, to the court what evidence he intends adducing in support of the charge.

(2) (a) The prosecutor may then examine the witnesses for the prosecution and adduce such evidence as may be admissible to prove that the accused committed the offence referred to in the charge or that he committed an offence of which he may be convicted on the charge.

(b) Where any document may be received in evidence before any court upon its mere production, the prosecutor shall read out such document in court unless the accused is in possession of a copy of such document or dispenses with the reading out thereof.

Section 179(2) of the Constitution provides that the prosecuting authority has the power to institute criminal proceedings on behalf of the State, and to carry out any necessary functions incidental to instituting criminal proceedings.

Section 179(4) makes provision for the enactment of national legislation that ensures that the prosecuting authority exercises its functions 'without fear, favour or prejudice'. The prosecutorial responsibility has a duty to act fairly and to serve the broader interests of justice and to guard against the conviction of innocent persons.

The prosecutor has a duty to inform the court about the case which is before court and which the State has to prove, by means of bringing in evidence which the court must be satisfied that the State has indeed proved its case beyond any reasonable doubt. The prosecutor will have to bring in the facts of the case through witnesses, thereafter address the court, in line with what the law says. It is also the responsibility of the prosecutor to address the court and bring it to the attention of the court if accused has to be discharged because the State did not succeed in proving the case beyond reasonable doubt.

The general roles, functions, powers and duties of the prosecution are summed up in the International Association of Prosecutors' Standards, referred to in § 5 Van der Westhuizen (2) saker S.C.A and Mohan v Director of Public Prosecutions Kwazulu-Natal & others (2) saker K.Z.D at [41] where Chetty J indicated to the effect that'prosecutors shall perform their duties fairly, consistently and expeditiously, and in the institution of criminal proceedings only to proceed when a case is well-founded upon evidence reasonably believed to be reliable and admissible and will not continue with the prosecution in the absence of such evidence.

The above mentioned case makes it is clear that a prosecutor shall proceed with prosecution only where there is evidence to prove the allegations. A prosecutor must be honest when addressing the court in terms of section 150, because this is to be viewed in line with the constitutional obligation as set out in section 179 above. The requirement that the prosecutor must act impartially entails that he or she must avoid discrimination as part of the general duty to act without fear, favour or prejudice, also provided for in section 32(1)(a) of the National Prosecuting Authority Act, 32 of 1998.

In § 5 Makayi (2) saker 197 E.C.B at [69] Stretch J set out at length some of the many duties and responsibilities of the prosecutors, warning that the decision to prosecute must be taken with care because it may have profound consequences for victims, witnesses, accused and their families, and that a wrong decision may undermine the community's confidence in the criminal justice system.

There is no absolute duty on the prosecutor to address the court before evidence is lead. The prosecutor has a discretion to do so and the exercise of that discretion may well depend on factors such as the complexity of the case, the nature of the evidence, the volume of the evidence, etcetera

The prosecutor is not obliged to call all available witnesses. The prosecutor will exercise the discretion to call witnesses according to the issues in dispute, the need for corroboration or clarification and the possible defence/s raised by the accused.

As an officer of the court the primary duty of a prosecutor is not to obtain a conviction but rather to assist the court to arrive at the truth and to this end he should make available to the defence witnesses not called by the State.

Failure to avail witnesses to the defence may lead to an adverse inference drawn by the court. Where the prosecutor is in possession of information favourable to the accused, he/she should bring it to the notice of the court. It is not, however, the obligation of the prosecutor to call witnesses who are firmly vested in the camp of the accused or to place contradictory evidence before court and expect the court to find its way through the maze.

It is the obligation of a prosecutor firmly, but fairly and dispassionately, to construct and present a case from what appears to be credible evidence, and to challenge the evidence of the accused and other defence witnesses, with a view to discrediting such evidence for the very purpose of obtaining a conviction.

Witnesses in court when another witness is testifying

For obvious reasons, the situation where a witness testifies whilst another witness is present in court, should be avoided. Although nothing in law prohibits a witness who was present in court from later testifying, it may well have an impact on the weight of the evidence the court attaches thereto when evaluating all the evidence at the end of the case.

Section 150(2)(b) is often used when statements have been obtained for example in terms of section 236 and 212 of the C.P.A.

Re-opening of State case

There are no statutory provisions which may provision for the re-opening of the State case. The trial court has the discretion to allow the State an opportunity to re-open its case. The court in deciding whether to tallow the re-opening of the State's case, will consider the following:

- the reasons why the evidence was not led previously.

- the degree of relevance of the evidence.

- possible prejudice to the other party (such as the fact that a rebutting witness may no longer be available).

- the stage at which the proceedings have reached and

- the general need for finality.

There is no absolute rule that the trial court's discretion to admit evidence for the State after the close of the defence case should be limited to the situation where new matter is introduced which the State could not foresee. An inflexible rule of this sort would hamper the exercise of the judicial officer's discretion.

Section 151 - Accused may address court and adduce evidence

(1) (a) If an accused is not under section 174 discharged at the close of the case of the prosecution, the court shall ask him whether he intends adducing any evidence on behalf of the defence, and if so, he may address the court for the purpose of indicating to the court, without comment, what evidence he intends adducing on behalf of the defence.

(b) The court shall also ask the accused whether he himself intends giving evidence on behalf of the defence; and –

(i) If accused so wish, he shall be called as a witness before any other witness for the defence; or

(2) If the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused's conduct as may be reasonable in the circumstances.

(2) (a) The accused may then examine any other witness for the defence and adduce such other evidence on behalf of the defence.

(b) Where any document may be received in evidence before any court upon its mere production and the accused wishes to place such evidence before the court, he shall read out the relevant document in court unless the prosecutor is in possession of a copy or dispenses with reading.

Similar to the functions of the prosecutor in section 150, it also follows that the accused can also address the court and lead evidence about his or her defence in terms of section 151. He can even bring in evidence favourable to his case through witnesses or any other type of evidence. Therefore, the accused shall have opportunity to adduce evidence if at the end of the State's case, he or she is not discharged in terms of section 174. An undefended accused must be informed of his or her rights and any possible competent verdicts, and he must be advised of any onus which may be placed on him or her. {In S v Ramulifho (1) saker S.C.A} , it was stated that in order to ensure fair trial, a judicial officer must not be a'passive observer of the trial' at [5]: he or she is obliged to ensure fairness and justice and, if necessary, to intervene to achieve this.

The accused cannot be forced to give evidence. Section 196(1) makes him competent witness on his own application. In S v Zuma & others (1) saker C.C; 1995 (2) S.A C.C. Kentridge A.J referred to some presumptions which may be justifiable as being rational in themselves, requiring an accused person to prove only facts to which he or she has easy access, and which it would be unreasonable to expect the prosecution to disprove. This decision shows that there are some presumptions which the court recognized, the court recognized that there are pressing social need for the effective prosecution and that in some cases the prosecution may require reasonable presumptions to assist in this task.

Table summary: Section 152 mandates that criminal proceedings in any court must take place in open court and may occur on any day, unless expressly provided otherwise by this Act or any other law.

It has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. This openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective, so that people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. Therefore, it means that each and every person is allowed as a member of public to get inside the court and listen to the criminal proceedings, unless specific restrictions are imposed like when the child testifies or where the presiding officer rules that matter be heard in camera.

Section 153 - Circumstances in which criminal proceedings shall not take place in open court

In addition to the provisions of section 63(5) of the Child Justice Act, 2008, if it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.

If it appears to any court at criminal proceedings that there is likelihood that harm might result to any person, other than accused, if he testifies at such proceedings, the court may direct –

(a) that such person shall testify behind closed door and that no person shall be present when such evidence is given unless his presence is necessary in connection with such proceedings or is authorized by the court.

(b) that the identity of such person shall not be revealed or that it shall not be revealed for a period determined by the court

In criminal proceedings relating to a charge that the accused committed or attempted to commit –

(a) any sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and related Matters) Amendment Act 2007, towards or in connection with any other person;

(b) any act for the purpose of furthering the commission of a sexual offence, as contemplated in section 1 of Sexual Offences Act, towards or in connection with any other person; or

(c) extortion or any statutory offence demanding from any other person some advantage which was not due and by inspiring fear in the mind of such other person, compelling him to render such advantage, the court before which such proceedings are pending may, at the request of such other person, or if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings, shall not be present, provided that judgement shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be revealed thereby.

3 A Any person whose presence is not necessary at criminal proceedings referred to in paragraphs (a) and (b) of subsection 3, shall not be admitted at such proceedings, while the other person referred to, is giving evidence, unless such other person or, if he is a minor, his parent or guardian or a person in loco parentis, requests otherwise.

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substituted

Where a witness at criminal proceedings before any court is under the age of 18 years, the court may direct that no person, other than such witness and his parent/guardian or a person in loco parents shall be present at such proceedings, unless his presence is necessary in connection with such proceedings or is authorized by the court.

The court may direct that no person under the age of eighteen years shall be present at criminal proceedings before the court, unless he is a witness referred to in subsection (5) and is actually giving evidence at such proceedings or his presence is authorized by the court.

Section 154 - Prohibition of publication of certain information relating to criminal proceedings

Where a court under section 153(1) on any of the grounds referred to in that subsection directs that the public or any class thereof shall not be present at any proceedings or part thereof, the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever: Provided that a direction by the court shall not prevent the publication of information relating to the name and personal particulars of the accused, the charge against him, the plea, the verdict and the sentence, unless the court is of the opinion that the publication of any part of such information might defeat the object of its direction under section 153(1), in which event the court may direct that such part shall not be published.

(2) (a) Where a court under section 153(3) directs that any person or class, of persons shall not be present at criminal proceedings or where any person is in terms of section 153 3 A not admitted at criminal proceedings, no person shall publish in any manner whatever any information which might reveal the identity of any complainant in the proceedings: Provided that the presiding judge or judicial officer may authorize the publication of such information if he is of the opinion that such publication would be just and equitable.

(b) No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153(3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.

(3) (a) No person shall before, during or at any stage after the conclusion of criminal proceedings, in any manner, including on any social media or electronic platform publish any information which reveals or may reveal the identity of—

(i) an accused who is or was under the age of 18 years at the time of the alleged commission of an offence;

(2) a witness who is or was under the age of 18 years at the time of the alleged commission of an offence; or

(3) a person against whom an offence has allegedly been committed who is or was under the age of 18 years at the time of the alleged commission of the offence, unless the publication of such information is authorised in terms of subsection 3 B.

(b) Subject to paragraph (a), the presiding judge or judicial officer at such criminal proceedings, may authorise the publication of as much of any information relating to the proceedings as he or she may deem fit, if the publication thereof would in his or her opinion be just and equitable and in the interest of any particular person.

3 A Notwithstanding subsection (3) (a), and in the event where substantial injustice would result and no other means are available, information may be published by a police official or by any other person, who is authorised by the National Commissioner of the South African Police Service or a person delegated by him or her—

(a) which reveals or may reveal the identity of an accused under the age of 18 years, if—

(i) (aa) there are reasonable grounds to suspect that the accused committed an offence listed in Schedule 3 to the Child Justice Act, 2008, or an offence which, if committed by an adult, would have justified a term of imprisonment exceeding 10 years; or

(bb) the accused escaped from lawful custody or any other place of detention or was released on bail or a warning and failed to appear or remain in attendance at the proceedings, as contemplated in section 67(1);

(2) the South African Police Service has been unsuccessful in locating the whereabouts of the accused;

(3) the information so published does not reveal the age of the accused or the fact that the accused is involved in the commission of the offence; and

(4) it is necessary as a measure to locate the whereabouts of the accused;

(b) which reveals or may reveal the identity of a witness under the age of 18 years, if—

(i) it is necessary as a measure to locate the whereabouts of the witness to obtain a statement from him or her concerning the commission of any alleged offence, or to testify in criminal proceedings; and

(2) the information so published does not reveal the age of the person or the fact the he or she may be a witness at criminal proceedings;

(c) which reveals or may reveal the identity of a person under the age of 18 years against whom an offence has allegedly been committed, if—

(i) it is necessary to locate the whereabouts of the person to prevent harm to such a person; and

(2) the information so published is reasonably necessary in the circumstances to identify the person, or any other person who may have relevant information about the alleged offence or whereabouts of the person; or

(d) which reveals or may reveal the identity of a person under the age of 18 years, whether or not an offence has allegedly been committed against the person, if—

(i) it is necessary to locate the whereabouts of the person to prevent harm to such a person; and

(2) the information so published is reasonably necessary in the circumstances to identify the person, or any other person who may have relevant information about—

(aa) an alleged offence which may have been committed against the person; or

(bb) the whereabouts of the person.

3 B (a) The court before which criminal proceedings contemplated in subsection (3) have been concluded may, on application of an accused, a witness or a person contemplated in subsection (3) (a) who has attained the age of

18 years and where the court has granted an order that extends into adulthood, grant an order authorising the publication of information which reveals the identity of the applicant, if the court is satisfied that the applicant understands the nature and effect of a court order in terms of this subsection.

(b) The High Court before which, or in whose area of jurisdiction, the criminal proceedings contemplated in subsection (3) have been concluded may, on the application of an interested person, grant an order authorising the publication of information which may reveal the identity of a person contemplated in subsection (3) (a).

(c) In determining whether an order may be granted, a court referred to in paragraph (a) or (b) must take into account all relevant factors, including—

(i) the nature of the charges against the accused;

(2) the age of the persons referred to in subsection (3) (a);

(3) the period which has elapsed since completion of the criminal proceedings and the application;

(4) the interest of the public or any person or category of persons in the publication of such information;

(v) the interest of society to encourage the reporting of offences and the participation of witnesses and victims of offences in criminal justice processes;

(6) the likelihood that the publication of such information, which reveals the identity of a person contemplated in subsection (3) (a), will also reveal the identity of any other person contemplated in subsection (1), (2), (3) (a) or (5);

(7) the nature and extent of any hardship that a person contemplated in subsection (3) (a) or any person related to such person may suffer if such information is published; and

(8) the effect of the order on—

(aa) a person's freedom of expression; and

(bb) the dignity, security and privacy of a person referred to in subsection (3) (a) or any person related to such person.

(d) A court may, if it deems it in the interest of the administration of justice, hold a hearing to determine whether an order should be granted.

(e) A hearing contemplated in paragraph (d) must take place behind closed doors and no person shall be present at such hearing, unless his or her presence is necessary in connection with such hearing or is authorised by the court.

(f) The verdict of the court must be delivered in open court: Provided that the court may decline to state in open court all or any of the facts, reasons or other considerations that it has taken into account in reaching its verdict, if it is of the opinion that the identity of a person contemplated in subsection (3) (a) may be revealed thereby.

(g) No person shall in any manner disclose—

(i) the contents of an application;

(2) any evidence taken, information provided or submissions made at the hearing; or

(3) any other information that may reveal the identity of a person contemplated in subsection (3) (a), unless it is authorised by the court or required in the course of further legal proceedings relating to the hearing or in the course of the administration of justice.

(4) No prohibition or direction under this section shall apply with reference to the publication in the form of a bona fide law report of—

(a) information for the purpose of reporting any question of law relating to the proceedings in question; or

(b) any decision or ruling given by any court on such question.

if such report does not mention the name of the person charged or of the person against whom or in connection with whom the offence in question was alleged to have been committed or of any witness at such proceedings, and does not mention the place where the offence in question was alleged to have been committed.

(5) Any person who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatever reveals the identity of a witness in contravention of a direction under section 153(2), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment if the person in respect of whom the publication or revelation of identity was done, is over the age of 18 years, and if such person is under the age of 18 years, to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

(6) The provisions of section 300 are applicable, with the changes required by the context, upon the conviction of a person in terms of subsection (5) and if—

(a) the criminal proceedings that gave rise to the publication of information or the revelation of identity as contemplated in that subsection related to a charge that an accused person committed or attempted to commit any sexual act as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person or any act for the purpose of procuring or furthering the commission of a sexual act, as contemplated in that Act, towards or in connection with any other person; and

(b) the other person referred to in paragraph (a) suffered any physical, psychological or other injury or loss of income or support.

Section 155 - Persons implicated in same offence may be tried together

(1) Any number of participants in the same offence may be tried together and any number of accessories after the same fact/accessories after the fact/participants and each may be charged at such trial with the relevant substantive offence alleged against him.

Section 155 provides for all persons implicated in the commission of the same offence to be prosecuted in a single trial.

Section 156 provides for all persons implicated in offences committed at the same time and place (even if different offences), to be prosecuted in a single trial.

It is not irregular to prosecute co-perpetrators or accomplices or accessories in separate trials, however this should be avoided unless the circumstances require a separate trial. Example – only one perpetrator is arrested or one of the accused has absconded or one accused pleads guilty. A separate trial is permissible, if it is necessary to avoid prejudice to one or more of the accused. See Section 157 – discussed below.

Perpetrator and co-perpetrator - these are the persons whose actions and intent must satisfy all the definitional aspects of crime.

The liability of perpetrator or co-perpetrator is founded on his own act and his own intention

Co-perpetrators and common purpose: the doctrine of common purpose allows for the imputation of the conduct of one party to the other party, in either of two situations; The first situation is where there is an agreement or mandate between those parties to commit the act in question, and the act falls within the borders of what has been so expressly or impliedly agreed.

In § 5 Tilayi (2) saker E.C.M at [25], D.J.P Van Zyl said the mandate 'would encompass not only acts which were expressly or impliedly agreed upon, but also acts which were necessary to give effect to the common objective, or which are the natural consequences of the execution of the common unlawful enterprise'.

The notion of agreement or mandate is a subjective one. It deals with a meeting of minds. The doctrine of common purpose constitutes an exception to the rule that one is, in our criminal law, responsible for one's own conduct. It creates a model in terms of which one may be responsible for the conduct of another.

The second situation is where, even if no actual agreement, whether express or implied, existed between the parties, the remote party actively associated himself with the conduct of the immediate party by actually committing some act of association with the intention of associating himself with the conduct of the immediate party, i.e the active association of common purpose.

Accomplices as well as accessories after the fact, can also be joined, as accused together with perpetrators and co-perpetrators. An accessory after the fact is a person who knowingly renders assistance after the completion of the crime. An accomplice is a person who takes part in the commission of an offence but who is neither a perpetrator or a co-perpetrator, nor accessory after the fact.

Section 156 - Persons committing separate offences at same time and place may be tried together

Any number of persons charged in respect of separate offences committed at the same place and at the same time, may be charged and tried together in respect of such offences if the prosecutor informs the court that evidence admissible at the trial of one of such persons will also be admissible at the trial of any other such person or such persons

Section 156, like 155 seeks to avoid successive trials involving different accused but based essentially on the same evidence on behalf of the prosecution.

Section 157 - Joinder of accused and separation of trials

(1) An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question.

(2) Where two or more persons are charged jointly, whether with the same offence or with different offences, the court may at any time during the trial, upon the application of the prosecutor or of any of the accused, direct that the trial of any one or more of the accused shall be held separately from the trial of the other accused, and the court may abstain from giving judgment in respect of any of such accused.

Section 157 must be understood in conjunction with Section 155 and Section 156.

S. 157(1) allows for an accused to be joined in criminal proceedings at any time before evidence has been led.

This sub-section provides for those instances where one or more accused are before court, while other perpetrators are not yet arrested. Once the prosecutor is ready to prosecute the outstanding such persons may be joined in the same criminal proceedings as those previously placed on the roll.

However, this joinder of accused is only permissible when “no Evidence has been led. This refers to evidence in a trial – not bail application or other interlocutory applications.

Remember: A plea and the plea explanation / admissions in terms of Section 115 or admissions in terms of Section 220 – are not 'evidence'. Therefore, joinder may take place even if plea proceedings are completed.

The new accused should be advised as to the plea and any explanation of plea made by the existing accused. This procedure is not permissible where the original accused pleaded guilty.

S. 157(2) provides for the separation of accused who are already before court. The application for separation may be brought by the State or the defence.

While it is not desirable to hold seperate trials, it may in certain circumstances be necessary that the trials be separated, examples:

- An accused abscond – the remaining accused will be prejudiced by the delay in tracing and arresting the accused;

- An accused tenders a plea of guilty – he/she should not be prejudiced by having to be present at the trial of the remaining accused.

- If the evidence against one or more of the accused is inadmissible against the other/s – the accused and/or the state should not be prejudiced.

The main test in deciding whether to grant an application for separation is whether the applicant will suffer prejudice if a joint trial takes place. A bare possibility of prejudice is not sufficient to justify reparation.

Section 158 - Criminal proceedings to take place in presence of accused

(1) Except as otherwise expressly provided by this Act or any other law, all criminal proceedings in any court shall take place in the presence of the accused.

(2) (a) A court may, subject to section 153, on its own initiative or on application by the prosecutor, order that a witness, irrespective of whether the is in or outside the Republic, or an accused, if the witness or accused consents thereto, may give evidence by means of closed circuit television or similar electronic media.

(b) A court may make a similar order on the application of an accused or a witness.

(3) A court may make an order contemplated in subsection (2) only if facilities therefor are readily available or obtainable and if it appears to the court that to do so would –

(a) prevent unreasonable delay;

(b) save costs;

(c) be convenient;

(d) be in the interests of the security of the State or of public safety or in the interests of justice or the public; or

(e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings.

(4) The court may, in order to ensure a fair trial, make the giving of evidence in terms of subsection (2) subject to such conditions as it may deem necessary, provided that the prosecutor and the accused have the right, by means of that procedure, to question a witness and to observe the reaction of that witness.

(5) The court shall provide reasons for refusing any application by the public prosecutor for the giving of evidence by a child complainant below the age of 14 years by means of close circuit television or similar electronic media, immediately upon refusal and such reasons shall be entered into the record of the proceedings.

(6) For purposes of this section, a witness who is outside the Republic and who gives evidence by means of a closed circuit television or similar electronic media, is regarded as witness who was subpoenaed to give evidence in such court.

Section 159 - Circumstances in which criminal proceedings may take place in absence of accused

(1) If an accused conducts himself in a manner which makes the continuance of the proceedings in his presence impracticable, the court may direct that he be removed and that the proceedings continue in his absence.

(2) If two or more accused appear jointly at criminal proceedings and –

(a) the court is at any time after the commencement of the proceedings satisfied, upon application made to it by any accused in person or by his representative –

(i) that the physical condition of that accused is such that he is unable or it is undesirable that he should attend the proceedings or

(2) that circumstances relating to the illness or death of a member of the family of that accused make his absence from the proceedings necessary; or (b) any of the accused is absent from the proceedings, whether under the provisions of subsection (1) or without leave of the court, the court, if it is of the opinion that the proceedings cannot be postponed without undue prejudice, embarrassment or inconvenience to the prosecution or any co-accused or any witness in attendance or subpoenaed to attend, may –

(aa) in the case of paragraph (a), authorize the absence of the accused for a period determined by the court and on the conditions which the court may deem fit to impose; and

(bb) direct that proceedings be proceeded with in the absence of the accused concerned.

(3) Where an accused becomes absent from the proceedings in the circumstances referred to in subsection (2), the court may, in lieu of directing that the proceedings be proceeded with in the absence of the accused concerned, upon the application of the prosecution, direct that the proceedings in respect of the accused who are present, and thereafter, when such accused is again in attendance, the proceedings against him shall continue from the stage at which he became absent, and the court shall not be required to be differently constituted merely by reason of such separation.

(4) If an accused who is in custody in terms of an order of court cannot, by reason of his physical indisposition or other physical condition, be brought before a court for purposes of obtaining an order for his further detention, the court before which the accused would have been brought for purposes of such an order if it were not for the indisposition or other condition, may upon application made by the prosecution at any time prior to expiry of the order of his detention wherein the circumstances surrounding the indisposition or other condition are set out, supported by a certificate from a medical practitioner, order, in the absence of such accused, that he be detained at a place indicated by the court and for the period which the court deems necessary in order that he can recover and be brought before court so that an order for his further detention for the purposes of trial can be obtained.

Criminal proceedings shall take place in the presence of the accused, however, if circumstances demands, then an accused can be removed or proceedings can take place in his or her absence so that there cannot be unnecessary delays. Before an accused is removed, the accused should be warned, the warning should be on the record and the accused should be given a last chance at the conclusion of the State case to ask him if he wishes to lead evidence.

Section 159 A - Postponement of certain criminal proceedings through audiovisual link

(1) For purposes of this section and sections 159 B, 159 C and 159 D, unless the context indicates otherwise—

(a) 'appropriate person' means any court official or any other person at the court point and remote point who is required to be, or may be, present at the proceedings, including the presiding officer, the prosecutor, the accused person's legal representative, any technical assistant, the clerk of the court, any witnesses, and members of the public who are entitled to be present;

(b) 'audio link' means a live telephone link between the court point and the remote point which are both equipped with facilities which will enable audio communication between all appropriate persons at the court point and the remote point;

(c) 'audiovisual link' means a live television link between the court point and the remote point which are both equipped with facilities which will enable all appropriate persons at the court point and the remote point to follow the proceedings and see and hear all the appropriate persons;

(d) 'court point' means the courtroom or other place where the court having jurisdiction is sitting;

(e)'correctional facility' means a correctional facility as defined in the Correctional Services Act, 1998, but does not include a police cell or lock-up; and

(f) 'remote point' means the room or place at the designated correctional facility where the accused person appearing through audiovisual link is located.

(2) An accused person—

(a) who is over the age of 18 years;

(b) who is in custody in a correctional facility in respect of an offence;

(c) who has already appeared before a court;

(d) whose case has been postponed and who is in custody pending his or her trial; and

(e) who is required to appear or to be brought before a court in any subsequent proceedings (whether before, during or after the trial or conviction and sentence) for the purpose of—

(i) a further postponement of the case; or

(2) consideration of release on bail in terms of section 60, 63, 63A, 307, 308 A or 321, where the granting of bail is not opposed by the prosecutor or where the granting of bail does not require the leading of evidence,

is not required to appear or to be brought physically before the court but may, subject to the provisions of this section, sections 159 B, 159 C and 159 D, appear before court by audiovisual link and is deemed to be physically before court, unless the court directs, in the interests of justice, that he or she appears or be brought physically before it.

(3) Any proceedings in terms of subsection (2) shall be regarded as having been held in the presence of the accused person if, during the proceedings, that person—

(a) is held in custody in a correctional facility; and

(b) is able to follow the court proceedings and the court is able to see and hear the accused person by means of audiovisual link.

(4) The remote point shall be regarded as being a part of the court.

Image summary: A text document detailing Section 159B, which outlines the requirements for an accused person appearing in court via audiovisual link. It specifies that the Minister may designate equipped correctional facilities for this purpose and mandates that both the court and the remote site provide facilities for private communication between the accused and their legal practitioner, as well as the transmission of documents. Additionally, it requires the court to inquire into the accused person's physical and mental well-being during every appearance. The point is to establish the legal and technical standards ensuring fair representation and welfare during remote court proceedings.

(2) The Minister may, subject to the provisions of this section, designate any correctional facility which has been suitably equipped as a place where proceedings in terms of section 159 A can be held.

(3) Both the court point and the remote point in the correctional facility designated in terms of subsection (2) must be equipped with facilities that, in accordance with any requirements prescribed by regulations and any directions of the court referred to in section 159 C, allow—

(a) private communication to take place between the accused person and any legal practitioner representing that person in the proceedings at the court point; and

(b) documents to be transmitted between both points by the persons referred to in paragraph (a)—

(i) at any time during the proceedings;

(2) during any adjournment of the hearing in the proceedings referred to in paragraph (a); or

(3) at any time on the day of a hearing, shortly before or after the hearing.

(4) The court must, at every appearance of an accused person in terms of section 159 A, inquire into the physical and mental well-being of the accused person and for that purpose may, where necessary, direct that the facilities referred to in section 159 C be used in such a manner which will enable the presiding officer to satisfy himself or herself as to the accused person's well-being as that presiding officer would be able to do if the accused person were physically before the court.

Section 159 C - Technical requirements for use of audiovisual link

Section 159 D - Protection of communication between accused person and legal representative

Section 160 - Procedure at criminal proceedings where accused is absent

(1) If an accused referred to in section 159(1) or (2) again attends the proceedings in question, he may, unless he was legally represented during his absence, examine any witness who testified during his absence, and inspect the record of the proceedings or require the court to have such record read over to him.

(2) If the examination of a witness under subsection (1) takes place after the evidence on behalf of the prosecution or any co-accused has been concluded, the prosecution or such co-accused may in respect of any issue raised by the examination, lead evidence in rebuttal of evidence relating to the issue so raised.

(3) (a) When the evidence on behalf of all the accused, other than an accused who is absent from the proceedings, is concluded, the court shall, subject to the provisions of paragraph (b), postpone the proceedings until such absent accused is in attendance and, if necessary, further postpone the proceedings until the evidence, if any, on behalf of that accused has been led.

(b) If it appears to the court that the presence of an absent accused cannot reasonably be obtained, the court may direct that the proceedings in respect of the accused who are present be concluded as if such proceedings had been separated from the proceedings at the stage at which the accused concerned became absent from the proceedings, and when such absent accused is again in attendance, the proceedings against him shall continue from the stage at which he became absent, and the court shall not be required to be differently constituted merely by reason of such separation.

(c) When, in the case of a trial, the evidence on behalf of all the accused has been concluded and any accused is absent when the verdict is to be delivered, the verdict may be delivered in respect of all the accused or be withheld until all the accused are present or be delivered in respect of any accused present and withheld in respect of the absent accused until he is again in attendance.

Section 161 - Witness to testify viva voce

(1) A witness at criminal proceedings shall, except where this Act or any other law expressly provides otherwise, give his evidence viva voce.

(2) In this section the expression'viva voce' shall—

(a) in the case of a witness lacking the sense of hearing or the ability to speak, be deemed to include gesture-language; and

(b) in the case of a witness under the age of eighteen years or a witness who suffers from a physical, psychological, mental or emotional condition, which inhibits the ability of that witness to give his or her evidence a vitality, strength, and ability to provide a positive response to the problem. The evidence is also provided by the personal evidence, which provides the evidence of the person who is the person who is the cause of the problem. The evidence is also provided by the personal evidence.

In the purposes of a witness's evidence being presented, you've to be in a position to observe and hear what the witness is saying. This allows the court to assess the demeanour of that witness including all gestures that may assist the court in deciding on the matter.

However, demeanour is not decisive, since all factors have to be considered when determining credibility of a witness.

A witness is allowed to refresh his or her memory before entering the witness box. This is done by allowing the witness to go through his or her statement which was made and formed part of the docket. This is done during consultation with the prosecutor.

It is irregular for the prosecutor to consult with State witnesses who have already been sworn in (S v Jacobs 2007 (1) saker 474 (C)). It was held in {S v Roux (1) saker (C)} that it had not been the intention of the legislature to set out in section 161(2) a numerus clausus of what would constitute viva voce communication. Interpreters were routinely employed in the courts to translate evidence into a language with which the court and the accused were familiar, and the courts, had over the years, adopted a wide interpretation of the concept of viva voce evidence as described in section 161.

The purpose of this section was to prevent the exclusion of evidence simply because it was not understandable to the court, the accused and court officials, if a method existed that would render it comprehensible.

Section 162 - Witness to be examined under oath

(1) subject to the provisions of sections 163 and 164, no person shall be examined as a witness unless he is under oath, which shall be administered by the presiding judicial officer or, or presiding judge or the registrar of the court, and which shall be in the following form: -

'I swear that the evidence I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.'

(2) If any person to whom the oath is administered wishes to take the oath with uplifted hand, he shall be permitted to do so

No one can be examined as a witness unless the oath has been administered, except where the provisions of sections 163 and 164 apply. Courts usually administer oaths through court interpreters. A failure to administer the oath to a witness or an oath administered through an interpreter who has not been sworn in results in the 'evidence' being inadmissible. The administration of the oath is essential for the admissibility of evidence given by a witness, and the absence of this requirement will lead a court to treat the evidence as though it never existed.

Section 163 - Affirmation in lieu of oath

(1) Any person who is or may be required to take oath and –

(a) who objects to the taking of oath;

(b) who objects taking the oath in prescribed form;

(c) who does not consider the oath in the prescribed form to be binding on his conscience; or

(d) who informs the presiding judge or presiding officer that he has no religious belief or that the taking of oath is contrary to his religious belief, shall make an affirmation in the following words: -

'I solemnly affirm that the evidence I shall give, shall be the truth, the whole truth and nothing but the truth'.

(2) Such affirmation shall have the same legal force and effect as if the person had taken an oath.

(3) The validity of an oath duly taken by a witness shall not be affected if such witness does not on any of the grounds referred to in subsection (1) decline to take the oath.

Section 164 - When unsworn or unaffirmed evidence admissible

(1) Any person, who is found not to understand the nature and import of the oath or affirmation, may be admitted to give evidence without taking the oath or affirmation, provided that such person shall be admonished by presiding judge or presiding officer to speak the truth.

(2) If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.

Section 165 - Oath, affirmation or admonition may be administered by or through interpreter or intermediary

Where the person concerned is to give evidence through an interpreter or an intermediary appointed under section 170 A (1), the oath, affirmation or admonition under section 162, 163 or 164 shall be administered by the presiding judge or judicial officer or the registrar of the court, as the case may be, through the interpreter or intermediary or by the interpreter or intermediary in the presence or under the eyes of the presiding judge or judicial officer.

Section 166 - Cross-examination and re-examination of witnesses

(1) An accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings or any co-accused who testifies or any witness called on behalf of such co-accused and the prosecutor may cross-examine any witness, including an accused, called on behalf of the defence, and a witness called on behalf of prosecution may be re-examined by the prosecutor on any matter raised during the cross-examination of that witness, and a witness called on behalf of the defence may likewise be re-examined by the accused.

(2) The prosecutor and the accused may, with leave of the court, examine or cross-examine any witness called by the court at criminal proceedings.

(3) (a) If it appears to a court that any cross-examination contemplated in this section is being protracted unreasonably and thereby causing the proceedings to be delayed unreasonably, the court may request the cross-examiner to disclose the relevancy of any particular line of examination and may impose reasonable limits on the examination regarding the length thereof or regarding any particular line of examination.

(b) The court may order that any submission regarding the relevancy of the cross-examination be heard in absence of the witness.

The purpose of cross examination is to elicit evidence favourable to the party cross-examining and to challenge the truth or accuracy of the evidence. A concession made during cross-examination by a witness may, like any other evidence, either be conclusive or count for nothing. Cross-examination is one of the essential components of the adversary system of procedure. It is a crucial adversarial tool for ascertaining truth, is a feature of the right to a fair trial and is guaranteed under section 35(3) of the Constitution.

In § 5 Msimango & another 2010 (1) saker G.S.J at [4], Moshidi J stressed that the right of an accused person to adduce and challenge evidence, per section 35(3)(j) of the Constitution, undoubtedly included the right to cross-examination. The court further indicated that a careful reading of section 166(1) invests reciprocal rights in both the accused and the prosecution to cross examine opposing witnesses, and to re-examine their own witnesses, and that the right to cross-examine a co-accused or witness called on behalf of the co-accused is also extended to both an accused and the prosecution. Failure to allow cross-examination is a gross irregularity.

However, the right to cross-examine is not an absolute right, the court retains a discretion to disallow questioning which is irrelevant, unduly repetitive, oppressive or otherwise improper-see K v The Regional Court Magistrate no & others (1) saker (E) at 442. Also see sections 166(3), 170 A, and 227(2). A cross-examiner who fails to put contested points to a witness in cross-examination runs the risk of having his or her witness criticized for recent fabrication when that witness later testifies and, in appropriate cases, of having an adverse inference drawn from the failure to cross-examine on the contested issues [15]). The rule and its rationale were set out in S v Scott-Crossley (1) saker S.C.A, where reliance was placed on the view of Phipson Evidence ed where the court cited the South African Rugby Football Union case as authority:'The cross-examiner must put his defence on each and every aspect which he wishes to put in issue, explicitly and unambiguously, to the witness implicating his client. A criminal trial is not a game of catch-as catch-can, or should it be turned into a forensic ambush'.

There is an ethical duty on a prosecutor to disclose material discrepancies between the evidence of a witness and his previous statement. With regard to docket privilege and the constitutional challenge, the court said in the case of Nohour and another versus Minister of Justice and Constitutional Development (2) saker S.C.A at [9], where the court pointed out that constitutional values now inform this rule and that the State is obliged to furnish the defence with a copy of the witness statement for cross-examination purposes.

Section 167 - Court may examine witness or person in attendance

The court may at any stage of criminal proceedings examine any person, other than an accused, who has been subpoenaed to attend such proceedings or who is in attendance at such proceedings, and may recall and re-examine any person, including an accused, already examined at the proceedings, and the court shall examine, or recall and re-examine, the person concerned if his evidence appears to the court essential to the just decision of the case.

Section 168 - Court may adjourn proceedings to any date

A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient, adjourn the proceedings to any date on the terms which to the court may seem proper and which are not inconsistent with any provision of this Act.

Section 169 - Court may adjourn proceedings to any place

A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient that the proceedings be continued at any place within its area of jurisdiction other than the one where the court is sitting, adjourn the proceedings to such other place, whether within or outside the

Section 170 - Failure of accused to appear after adjournment or to remain in attendance

(1) An accused who is not in custody and who has not been released on bail, and who fails to appear at the place and on the date and at the time to which such proceedings may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment prescribed under subsection (2).

(2) The court may, if satisfied that an accused referred to in subsection (1) has failed to appear at the place and on the date and at the time to which the proceedings in question were adjourned or has failed to remain in attendance at such proceedings as so adjourned, issue a warrant for his arrest and when he is brought before the court, in a summary manner enquire into his failure to appear or so to remain in attendance and, unless the accused satisfies the court that his failure was not due to fault on his part, convict him of the offence referred to in subsection (1) and sentence him to a fine not exceeding R.300 or to imprisonment for a period not exceeding three months.

Section 170 A - Evidence through intermediaries

(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness—

(a) under the biological or mental age of eighteen years;

(b) who suffers from a physical, psychological, mental or emotional condition; or

(c) who is an older person as defined in section 1 of the Older Persons Act, 2006.

to undue psychological, mental or emotional stress, trauma or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.

(2) (a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary, except examination by the court, may take place in any manner other than through that intermediary.

(b) The said intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness.

(3) If a court appoints an intermediary under subsection (1), the court may direct that the relevant witness shall give his or her evidence at any place—

(a) which is informally arranged to set that witness at ease;

(b) which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and

(c) which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary as well as that witness during his or her testimony.

(4) (a) The Minister may by notice in the Gazette determine the persons or the category or class of persons who are competent to be appointed as intermediaries.

(b) An intermediary who is not in the full-time employment of the State shall be paid such travelling and subsistence and other allowances in respect of the services rendered by him or her as the Minister, with the concurrence of the Minister of Finance, may determine.

(5) (a) No oath, affirmation or admonition which has been administered through an intermediary in terms of section 165 shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), at the time when such oath, affirmation or admonition was administered or such evidence was presented.

(b) If in any proceedings it appears to a court that an oath, affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to—

(i) the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason concerned will affect the reliability of the evidence so presented adversely;

(2) the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and

(3) the likelihood that real and substantial justice will be impaired if that evidence is admitted.

(6) (a) Subsection (5) does not prevent the prosecution from presenting anew any evidence which was presented through an intermediary referred to in that subsection.

(b) The provisions of subsection (5) shall also be applicable in respect of all cases where an intermediary referred to in that subsection has been appointed, and in respect of which, at the time of the commencement of that subsection—

(i) the trial court; or

(2) the court considering an appeal or review.

has not delivered judgment.

(7) (a) The court must provide reasons for refusing any application or request by the public prosecutor or a witness referred to in subsection (1), for the appointment of an intermediary, immediately upon refusal, which reasons must be entered into the record of the proceedings.

(b) A court may, on application by the public prosecutor and if it is satisfied that there is a material change in respect of any fact or circumstance that influenced the refusal contemplated in paragraph (a), review its decision.

(8) An intermediary referred to in subsection (1) shall be summoned to appear in court on a specified date and at a specified place and time to act as an intermediary.

(9) If, at the commencement of or at any stage before the completion of the proceedings concerned, an intermediary appointed by the court—

(a) is for any reason absent;

(b) becomes unable to act as an intermediary in the opinion of the court; or

(c) dies,

the court may, in the interests of justice and after due consideration of the arguments put forward by the accused person and the prosecutor—

(i) postpone the proceedings in order to obtain the intermediary's presence;

(2) summons the intermediary to appear before the court to advance reasons for being absent;

(3) direct that the appointment of the intermediary be revoked and appoint another intermediary; or

(4) direct that the appointment of the intermediary be revoked and that the proceedings continue in the absence of an intermediary.

(10) The court shall immediately give reasons for any direction or order referred to in subsection (9) (4), which reasons shall be entered into the record of the proceedings.

(11) Subject to subsection (13), any person who is competent to be appointed as an intermediary in terms of subsection (4) (a) must, before commencing with his or her functions in terms of this section, take an oath or make an affirmation subscribed by him or her, in the form set out below before the judicial officer presiding over the proceedings:

I, do hereby swear/truly affirm that, whenever I may be called upon to perform the functions of an intermediary, I shall, truly and correctly to the best of my knowledge and ability—

(a) perform my functions as an intermediary; and

(b) convey properly and accurately all questions put to witnesses and, where necessary, convey the general purport of any question to the witness, unless directed otherwise by the court.

(12) (a) Subject to subsection (13), before a person is appointed to perform the functions of an intermediary—

(i) in a magistrate's court for any district or for any regional division, the magistrate presiding over the proceedings; or

(2) in a Superior Court, the judicial officer presiding over the proceedings, must enquire into the competence of the person to be appointed as an intermediary.

(b) The enquiry contemplated in paragraph (a) must include, but is not limited to, the person's—

(i) fitness as a person to be an intermediary;

(2) experience which has a bearing on the role and functions of an intermediary;

(3) qualifications;

(4) knowledge which has a bearing on the role and functions of an intermediary;

(v) language and communication proficiency; and

(6) ability to interact with a witness under the biological or mental age of eighteen years or a witness who suffers from a physical, psychological, mental or emotional condition, or a witness who is an older person as defined in section 1 of the Older Persons Act, 2006.

(13) (a) The head of a court may, at his or her discretion and after holding an enquiry contemplated in subsection (12), issue a certificate in the form prescribed by the Minister by notice in the Gazette, to a person whom he or she has found to be competent to appear as an intermediary in the court concerned.

(b) Before the head of a court issues the certificate referred to in paragraph (a), he or she must cause the person who has been found competent to be appointed as an intermediary to take the oath or make the affirmation referred to in subsection (11) and must endorse the certificate with a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.

(c) A certificate contemplated in paragraph (a) may be accepted as proof—

(i) of the competency of a person to be appointed as an intermediary in the court concerned; and

(2) of the fact that the person has taken the oath or made the affirmation contemplated in subsection (11), for purposes of this section, in any subsequent proceedings in terms of this Act, before the court concerned in respect of which a certificate contemplated in paragraph (a) was issued by the head of a court and it is not necessary for the magistrate or the judicial officer presiding over the proceedings of the court in question to administer the oath or affirmation or to hold an enquiry into the competence of the person to be appointed as an intermediary.

(d) Paragraph (c) must not be construed as prohibiting a magistrate or a judicial officer presiding over proceedings from holding an enquiry, at any stage of the proceedings, regarding the competence of a person to act as an intermediary.

(e) For the purposes of this section, 'head of a court' means the most senior judicial officer of that court.

Section 171 - Evidence on commission

(1) (a) Whenever criminal proceedings are pending before any court and it appears to such court on application made to it that the examination of any witness who is resident in the Republic is necessary in the interests of justice and that the attendance of such witness cannot be obtained without undue delay, expense or inconvenience the court may dispense with such attendance and issue a commission to any magistrate.

(b) …

Code summary: This code block is currently empty or contains only a copyright symbol, providing no algorithmic logic or procedure to summarize.

(2) (a) The magistrate to whom the commission is issued, shall proceed to the place where the witness is or shall summon the witness before him or her, and take down the evidence in the manner set out in paragraph (b).

(b) The witness shall give his or her evidence upon oath or by affirmation, and such evidence shall be recorded and read over to the witness, and if he or she adheres thereto, be subscribed by him or her and the magistrate concerned.

International Co-operation in Criminal Matters Act 75 of 1996 is relevant for this section. Evidence of witnesses who are in foreign States are more suitable to be obtained on commission.

Section 172 - Parties may examine witness

Any party to proceedings in which a commission is issued under section 171, may –

(a) transmit interrogatories in writing which the court issuing the commission may think relevant to the issue and the magistrate to whom the commission is issued, shall examine the witness upon such interrogatories; or

(b) appear before such magistrate, either by a legal representative or, in the case of an accused who is not in custody or in the case of a private prosecutor, in person, and examine the witness.

Section 173 - Evidence on commission part of the court record

The magistrate shall return the evidence in question to the court which issued commission, and such evidence shall be open to the inspection of the parties to the proceedings and shall, in so far as it is admissible as evidence in such proceedings, form part of the record of such court.

Section 174 - Accused may be discharged at close of case for prosecution

Code summary: This legal procedure allows a court to return a verdict of not guilty immediately following the prosecution's case if the court determines there is no evidence supporting the charge or any other offence for which the accused could be convicted.

The words 'no evidence' have been interpreted to mean no evidence upon which a reasonable man acting carefully may convict.

Code summary: Section 175 establishes the sequence for closing arguments after all evidence is presented. It ensures a fair trial by allowing the prosecutor to address the court first, followed by the accused. To maintain legal rigor, the prosecutor is permitted to reply to any legal points raised by the accused and may, with court permission, respond to new factual claims.

S v Kwinda (2) saker (V)'a failure by the court to afford the accused the opportunity of addressing the court was held to be a gross irregularity and the proceedings were set aside as there was nothing on record to show that the accused was not prejudiced by this irregularity or that the omission was due to his fault or that he waived his right to address.'

Code summary: Section 176 - Judgment may be corrected, allows a court to amend a judgment to fix mistakes, provided the correction occurs either before the judgment is recorded or immediately afterward.

The general principle is that once a judicial officer has given his judgment, he is functionus officio and it follows that he cannot alter or revoke an order that he might have had. This section, however, allows for the amendment of judgments in prescribed circumstances.

Code summary: Section 177 - Court may defer final decision, allows a court during criminal proceedings to postpone delivering the reasons for a decision on any raised question, while legally treating those reasons as if they were provided at the time of the original proceedings.

Judicial officers have a duty to give reasons for their decisions. The importance of this duty was stressed by the Supreme Court of Appeal in State versus Mokela (1) saker S.C.A at [12].

Section 178 - Arrest of person committing offence in court and removal from court of person disturbing proceedings

(1) Where an offence is committed in the presence of the court, the presiding judge or judicial officer may order the arrest of the offender.

(2) If any person, other than an accused, who is present at criminal proceedings, disturbs the peace or order of the court, the court may order that such person be removed from the court and that he be detained in custody until the rising of the court.

Section 178 must not be invoked by judicial officer in order to assuage feelings of anger or frustration, as it happened in re Detention of Candidate Attorney in Court Cells (1) saker E.C.G, where the magistrate ordered that candidate attorney from the Legal Aid Board be detained for refusing to represent accused as she said she does not have instructions. Roberson J indicated that the magistrate committed a gross irregularity which led to a serious invasion of the right to liberty and dignity, which must have been'frightening, shocking and humiliating' for the candidate attorney.

The behaviour of magistrate in Minister of Justice and Constitutional Development & another v Masia (2) saker G.P was regarded by the court as a 'bullying tactic which constituted a 'clear abuse of judicial power' and was, moreover, 'malicious' (at [43]). Here, the respondent in maintenance case was detained without a warrant and without charge, for offering to settle arrears in instalment of R.300-00 monthly.

Witnesses (Sections 179 to 207)

Section 179 - Process for securing attendance of witness

(1) (a) The prosecutor or an accused may compel the attendance of any person to give evidence or to produce any book, paper or document in criminal proceedings by taking out of the office prescribed by the rules of the court the process of court for that purpose.

(b) If any police official has reasonable grounds for believing that the attendance of any person is or will be necessary to give evidence or to produce any book, paper or document in criminal proceedings in a lower court, and hands to such person a written notice calling upon him to attend such criminal proceedings on the date and at the time and place specified in the notice, to give evidence or to produce any book, paper or document, likewise specified, such person shall, for the purposes of this Act, be deemed to have been duly subpoenaed so to attend such criminal proceedings.

(2) Where an accused desires to have any witness subpoenaed, a sum of money sufficient to cover the costs of serving the subpoena shall be deposited with the prescribed officer of the court.

(3) (a) Where an accused desires to have any witness subpoenaed and he satisfies the prescribed officer of the court—

(i) that he is unable to pay the necessary costs and fees; and

(2) that such witness is necessary and material for his defence.

such officer shall subpoena such witness.

(b) In any case where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the relevant application to the judge or judicial officer presiding over the court, who may grant or refuse the application or defer his decision until he has heard other evidence in the case.

(4) For the purposes of this section'prescribed officer of the court' means the registrar, assistant registrar, clerk of the court or any officer prescribed by the rules of court.

Section 180 - Service of subpoena

(1) A subpoena in criminal proceedings shall be served in the manner provided by the rules of the court by a person empowered to serve a subpoena in criminal proceedings.

(2) A return by the person empowered to serve a subpoena in criminal proceedings, that the service thereof has been duly effected may, upon the failure of a witness to attend the relevant proceedings and shall be prima facie proof of such service.

Rules of the court; - Supreme Court Rules 54(5) – (8); and Rule 64 of the Magistrates' Courts Rules, are relevant here.

Section 181 - Pre-payment of witness expenses

Where a subpoena is served on a witness at a place outside the magisterial district from which the subpoena is issued, or, in the case of a superior court, at a place outside the magisterial district in which the proceedings at which the witness is to appear are to take place, and the witness is required to travel from such place to the court in question, the necessary expenses to travel to and from such court and of sojourn at the court in question, shall on demand be paid to such witness at the time of service of the subpoena.

Section 182 - Witness from prison

A prisoner who is in prison shall be subpoenaed as a witness on behalf of the defence or private prosecutor only if the court authorizes that the prisoner be subpoenaed as a witness, and the court shall give such authority only if it is satisfied that the evidence in question is necessary and material for the defence or the private prosecutor, and that the public safety or order will not be endangered by the calling of the witness.

Section 183 - Witness to keep police informed of whereabouts

Any person who is advised in writing by any police official that he will be required as a witness in criminal proceedings shall keep such police official informed at all times of his full residential address or any other address where he may conveniently be found, until such criminal proceedings have been finally disposed of or until he is officially advised that he will no longer be required as a witness.

Section 184 - Witness about to abscond and witness evading service of summons

Whenever any person is likely to give material evidence in criminal proceedings, any magistrate, regional magistrate or judge of the court before which the relevant proceedings are pending may, upon information in writing and on oath that such person is about to abscend, issue a warrant for his or her arrest.

If a person referred to in subsection (1) is arrested, the presiding officer or judge, may warn him to appear at the proceedings in question at a stated place, time, date and release him on any condition referred to in paragraph (a) (b) or (e) of section 62.

(a) A person who fails to comply with a warning under subsection (2) shall be guilty of an offence and liable to the punishment contemplated in paragraph (b) of this subsection

(b) The provisions of section 170 (2) shall mutatis mutandis apply with reference to any person who is guilty of an offence under paragraph (a) of this subsection.

Whenever any person is likely to give material evidence in criminal proceedings, any presiding officer or judge of the court before which the relevant proceedings are pending may, upon information in writing and on oath that such person is evading service of the relevant subpoena, issue a warrant for his arrest, whereupon the provisions of subsections (2) and (3) shall mutatis mutandis apply with reference to such person.

Section 185 - Detention of witness

(a) Whenever any person is with reference to any offence referred to in Part 3 of Schedule 2 in the opinion of the attorney-general likely to give evidence on behalf of the State at criminal proceedings in any court, and the attorney-general, from information placed before him— (i) is of the opinion that the personal safety of such person is in danger or that he may be tampered with or that he may be intimidated; or

(2) deems it to be in the interests of such person or of the administration of justice that he be detained in custody, the attorney-general may by way of affidavit place such information before a judge in chambers and apply to such judge for an order that the person concerned be detained pending the relevant proceedings.

(b) The attorney-general may in any case in which he is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not detained without delay, order that such person be detained forthwith but such order shall not endure for longer than seventy-two hours unless the attorney-general within that time by way of affidavit places before a judge in chambers the information on which he ordered the detention of the person concerned and such further information as might become available to him, and applies to such judge for an order that the person concerned be detained pending the relevant proceedings.

(c) The attorney-general shall, as soon as he applies to a judge under paragraph (b) for an order of detention, in writing advise the person in charge of the place where the person concerned is being detained, that he has so applied for an order, and shall, where a judge under subsection (2) (a) refuses to issue a warrant for the detention of the person concerned, forthwith advise the person so in charge of such refusal, whereupon the person so in charge shall without delay release the person detained.

(a) The judge hearing the application under subsection (1) may, if it appears to him from the information placed before him by the attorney-general—

(i) that there is a danger that the personal safety of the person concerned may be threatened or that he may abscond or that he may be tampered with or that he may be intimidated; or

(2) that it would be in the interests of the person concerned or of the administration of justice that he be detained in custody, issue a warrant for the detention of such person.

(b) The decision of a judge under paragraph (a) shall be final: Provided that where a judge refuses an application and further information becomes available to the attorney-general concerning the person in respect of whom the application was refused, the attorney-general may again apply under subsection (1) (a) for the detention of that person.

(3) A person in respect of whom a warrant is issued under subsection (2), shall be taken to the place mentioned in the warrant and, in accordance with regulations which the Minister is hereby authorized to make, be detained there or at any other place determined by any judge from time to time, or, where the person concerned is detained in terms of an order by the attorney-general under subsection (1) (b), such person shall, pending the decision of the judge under subsection (2) (a), be taken to a place determined by the attorney-general and detained there in accordance with the said regulations.

(4) Any person detained under a warrant in terms of subsection (2) shall be detained for the period terminating on the day on which the criminal proceedings concerned are concluded, unless— (a) the attorney-general orders that he be released earlier; or

(b) such proceedings have not commenced within six months from the date on which he is so detained, in which case he shall be released after the expiration of such period.

(5) No person, other than an officer in the service of the State acting in the performance of his official duties, shall have access to a person detained under subsection (2), except with the consent of and subject to the conditions determined by the attorney-general or an officer in the service of the State delegated by him.

(6) Any person detained under subsection (2) shall be visited in private at least once during each week by a magistrate of the district or area in which he is detained.

(7) For the purposes of section 191 any person detained under subsection (2) of this section shall be deemed to have attended the criminal proceedings in question as a witness for the State during the whole of the period of his detention.

(8) …

Deleted by Act 88 of 1996.

(9) (a) In this section the expression'judge in chambers' means a judge sitting behind closed doors when hearing the relevant application.

(b) No information relating to the proceedings under subsection (1) or (2) shall be published or be made public in any manner whatever.

Section 185 A ...

Witness protection - Witness Protection Act 112 of 1998, now applicable.

Section 186 - Court may subpoena witness

The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings if the evidence of such witness appears to the court essential to the just decision of the case.

Court has discretionary power to subpoena a witness only if evidence of such witness is essential. The discretionary power allows a judge to call a witness who is useful but not essential to the just decision of the case – see R v Majosi and others 1 S.A N at 173. The inexperience of prosecutor might create the necessity for calling a witness so that the court can ensure that justice is done. The power granted to the court by this section is not to be confused with what is permitted by section 167.

Section 187 - Witness to attend proceedings and to remain in attendance

A witness who is subpoenaed to attend criminal proceedings, shall attend the proceedings, and a person who is in attendance at criminal proceedings, though not subpoenaed as a witness, and who is warned by the court to remain in attendance at the proceedings, shall remain in attendance at such proceedings, unless such witness or such person is excused by the court: Provided that the court may, at any time during the proceedings in question, order that any person, other than the accused who is to be called as a witness, shall leave the court and remain absent from the proceedings until he is called, and then shall remain in court after he has given evidence.

Section 188 - Failure by witness to attend or remain in attendance

(1) Any person who is subpoenaed to attend criminal proceedings and who fails to attend or to remain in attendance, and any person who is warned by the court to remain in attendance and who fails to remain in attendance, and any person so subpoenaed or so warned who fails to appear at the place and on date and at the time to which the proceedings in question may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to punishment contemplated in subsection (2).

(2) The provisions of section 170 (2) shall mutatis mutandis apply with reference to any person referred to in subsection (1)

Therefore, any witness who has been subpoenaed is obliged to comply with the subpoena, failure which shall lead to possible punishment by the court if an explanation for not complying is not accepted by the court.

Section 189 - Powers of court with regard to recalcitrant witness

(1) If any person at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a witness, or, having been sworn or having made an affirmation as a witness, refuses to answer any question put to him or refuses or fails to produce any book, paper or document required to be produced by him, the court may in a summary manner enquire into such refusal or failure and, unless such person has a just excuse, sentence him or her to imprisonment for a period not exceeding two years or, where the criminal proceedings in question relate to an offence referred to in part 3 of Schedule 2 to imprisonment for a period not exceeding five years.

(2) After expiration of sentence under subsection (1), such person may from time to time, again be dealt with under that subsection with regard to any further refusal or failure.

(3) A court may at any time on good cause shown remit any punishment or part thereof imposed under subsection (1).

(4) Any sentence imposed under subsection (1) shall be executed and be subject to appeal in the same manner as a sentence imposed in any criminal case, and such sentence shall be served before any other sentence of imprisonment imposed on such person.

(5) The court may conclude criminal proceedings at any time irrespective of action taken under subsection (1)

(6) No person shall be bound to produce any document or book not specified in the subpoena unless he has it in court.

(7) Any lower court shall have jurisdiction to sentence any person to the maximum period of imprisonment prescribed by this section.

This section applies to all compelling witnesses and it appears that the only privilege available is that all witnesses are excused from answering incriminating questions. See section 203. In S v Nkosi (1) saker (N) it was decided that there was no reason in logic or fairness for depriving a witness of the right to legal representation, and in this case failure of the court to so advice the witness resulted in a complete failure of justice. The

Constitutional Court held in Nel v Le Roux no and others (1) saker C.C; 1996

S.A C.C; 1996 (4) B.C.L.R C.C that there was nothing in the provisions of section

205 as read with section 189 which compels or requires an examinee to answer a question or produce a document which would unjustifiably infringe or threaten to infringe chapter 3 rights.

Section 190 - Impeachment or support of credibility of witness

(1) Any party may in criminal proceedings impeach or support the credibility of any witness called against or on behalf of such party in any manner in which and by any evidence by which the credibility of such witness might on the thirtieth of May 1961, have been impeached or supported by such party.

(2) Any such party who has called a witness who has given evidence in any such proceedings (whether that witness is or is not, in the opinion of the court, adverse to the party calling him), may, after such party or the court has asked the witness whether he did or did not previously make a statement with which his evidence in the said proceedings is inconsistent, and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been given to the witness, prove that he previously made a statement with which such evidence is inconsistent.

Where a party calls a witness who gives evidence which is unfavourable to him there are three options available for such party, that is to lead evidence to contradict unfavourable witness; he may ask the court to declare the witness hostile, thus allowing party who called him to cross-examine him and; he may prove a previous inconsistent statement made by the witness in terms of subsection (2).

Section 191 - Payment of expenses of witness

(1) Any person who attends criminal proceedings is entitled to such allowance as may be prescribed under subsection (3) provided that the or the judge presiding at such proceedings may, if he thinks fit, direct that no such allowance or that only a part of such allowance shall be paid to any such witness.

(2) Subject to any regulation made under subsection (3), the judicial officer or judge may direct that any person who attended such criminal proceedings as a witness for the accused shall be paid such allowance as prescribed by regulation, or such lesser allowance as the judicial officer or judge may determine.

(3) The Minister may, in consultation with the Minister of Finance, by regulation prescribe a tariff of allwances which may be paid out of public moneys to witness in criminal proceedings, and may by regulation prescribe different tariffs for witnesses according to their several callings, occupations or stations in life, and according also to the distances to be travelled by such witnesses to reach the place where the proceedings in question are to take place, and may by regulation further prescribe the circumstances in which such allowances may be paid to any witness for an accused.

(4) The Minister may under subsection (3) empower any officer in the service of the State to authorize, in any case in which the payment of an allowance in accordance with the tariff prescribed may cause undue hardship or in the case of any person resident outside the Republic, the payment of an allowance in accordance with a higher tariff than the tariff prescribed.

(5) For the purpose of this section, “witness” shall include any person necessarily required to accompany any witness on account of his youth, old age or infirmity.

In S versus Zwelibanzi and another 2005 (2) saker (E), Jones J ordered that full board and lodging be paid to the accused for the duration of the trial. The learned judge held that no violence was done to the wording of the section if accused is regarded as a person who attends the trial as potential witness for the defence.

It is possible to have accused paid as a witness under certain circumstances like it happened in Zwelibanzi case. But generally it would need legislative intervention so that the system of payment is used accountably, otherwise each and every accused may end up demanding payment as a witness/ potential witness for the defence. The purpose behind this section should be looked into which is to ensure that victims of crime should not incur any liability for the wrongs done to them.

Code summary: Section 191A - Witness services grants the Minister the authority to define and provide services for witnesses testifying in court. This includes the power to create regulations for witness assistance, support, counseling, and the establishment of court reception centers. To ensure oversight, any regulations created under this section must be submitted to parliament before they are officially published in the gazette.

This section is aimed at ensuring that witnesses are kept in a welcoming environment upon arrival in court, there should be a waiting room wherein the witnesses will be accommodated whilst they are waiting to be taken inside the courtroom, and they are not supposed to be mingling with accused persons because that may cause more trauma to them. Witnesses should also be catered for by professionals like social workers, psychologists so that they can be helped from different effects they encountered as a result of the crimes committed against them. This is a process of redressing them to almost where they were prior to being victims of crime.

The other relevant legislation is the Witness Protection Act 112 of 1998.

: Table summary: Section 192 establishes that every person is competent and compelling to give evidence in criminal proceedings, provided they are not expressly excluded by the Act and subject to the provisions of section 206.

A number of sections such as 195 and 196 contain specific provisions in respect of competence and compellability and section 206 provides that the law as to the competence, compellability or privileges of witness in cases not specifically provided for shall be the law as it stood on 30 May 1961. A competent witness is a witness whose evidence may be received in court, whereas compellable witness is one who is competent and in addition can be forced to testify, and provisions of section 189 must be noted.

In re R v Demingo and others (1) S.A (A) at 43, it was decided that judicial officers should not give evidence in cases over which they are presiding.

In Caccia v Muller 1929 C.P.D 77, it was decided that advocates and attorneys are competent to give evidence in cases in which they are appearing, but it has been emphasized that this course is highly undesirable.

In R v Becker A.D : 'The prosecutor is not an incompetent witness. It is undesirable that he should give evidence.' It is highly irregular for the prosecutor to give evidence in the form of unsworn statement from the bar.

Code summary: Section 193, Court to decide upon competency of witness, establishes that the court presiding over criminal proceedings has the sole authority to determine whether a witness is competent or can be compelled to provide evidence.

It simply means that it is the duty of that judicial officer or judge to decide on the competency or compellability of the witness to give evidence, since this is a matter of law. Whenever a court is in terms of section 193, required to decide on the competency of a witness due to his or her state of mind, as contemplated in section 194, it now has the power, in terms of section 194 A to order that the witness be examined by a medical practitioner, a psychiatrist or a clinical psychologist designated by the court, who would then be required to furnish the court with a report on the competency of the witness to give evidence. The requirement is that this should be done in the interests of justice.

Section 194 - Incompetency due to state of mind No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or disabled.

Incompetence only lasts for so long as the mental illness lasts. The fact that a person is deaf and dumb does not make the witness incompetent so long as communication can be made through an interpreter, see S v Naidoo (2) S.A (A). It is not always necessary to hold a trial within trial to determine whether a person is a competent witness. A court may base its decision on its own observation of the witness (S v Dladla (1) saker K.Z.P at [12]).

Section 194 A - Evaluation of competency of witnesses due to state of mind

(1) For purpose of section 193, whenever a court is required to decide on the competency of a witness due to his or her state of mind, the court may order that the witness be examined by a medical practitioner, a psychiatrist, or clinical psychologist designated by the court, who must furnish the court with a report on the competency of the witness to give evidence.

(2) A medical practitioner, psychiatrist or clinical psychologist designated by the court in terms of subsection (1) who is not in the full time service of the State, must be compensated for his or her services in connection with the enquiry from public funds in accordance with a tariff determined by the Minister in consultation with the cabinet member responsible for national financial matters.

(3) If the contents of a report contemplated in subsection (1) are not disputed, the report is admissible as evidence upon production.

Section 194 A was inserted by section 10 of Act 8 of 2017, which came into effect on 02 August 2017. It was said in the case of S v Katoo (1) saker S.C.A that since section 193 requires a court to determine the competence of a witness, the trial court should, before concluding that she was incompetent, have conducted a proper investigation into the cause of what was claimed to be the imbecility of the witness. The procedure in the Katoo case is acceptable and recognized as part of our procedural and evidential system of justice.

Section 195 - Evidence for prosecution by husband or wife of accused

(1) The wife or husband of an accused shall be competent, but not compelling, to give evidence for the prosecution, but shall be compelling if he or she is charged with – (a) any offence committed against the person of either of them or of a child of either of them or who is in care of either of them.

(b) any offence under Chapter 8 of the Child Care Act, 1983, committed in respect of any child of either of them.

(c) any contravention of any provision of section 31(1) of the Maintenance Act, 1998

(d) bigamy;

(e) incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007;

(f) abduction;

(g) any contravention of any provision of section2, 8, 10, 12, 12 A, 17 or 20 of the Sexual Offences Act 23 of 1957

(gA) any contravention of any provision of section 17 or 23 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007;

(h) perjury committed in connection with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by the one of them against the other, or in connection with or for the purpose of criminal proceedings in respect of any offence included in this subsection

(i) the statutory offence of making a false statement in any affidavit or any affirmed, solemn or attested declaration if it is made in connection with or for the purpose of any such proceedings as are mentioned in paragraph (h).

(2) For the purpose of the law of evidence in criminal proceedings, 'marriage' shall include a customary marriage or customary union concluded under the indigenous law and custom of any of the indigenous people of the Republic of South Africa or any marriage concluded under any system of religious law.

In general, a spouse of an accused person can testify on behalf of the prosecution, but he or she cannot be forced to do so. However, it remains his or her discretion to either testify or not, except for the offences listed under section (1) subsections (a) – (i). At common law the accused's spouse was not a competent witness for either prosecution or the defence. Prior to 03 October 1988, a spouse remained an incompetent and non-compellable witness. Section 195 and 196 were therefore amended by sections 6 and 7 of the Law of Evidence Amendment Act 45 of 1988. The result is that a spouse is now a competent – but not ordinarily a compelling witness – against another spouse in criminal proceedings, whether for the prosecution or a co-accused. In S v McGwabe (2) saker E.C.G, the court ruled that the fact that a marriage relationship has been severely damaged does not negate in any way, the immunity set out in section 195 (1), therefore a spouse remains competent but non-compellable witness against his or her spouse.

Section 196 - Evidence of accused and husband or wife on behalf of accused

(1) An accused and the wife or husband of an accused shall be a competent witness for the defence at every stage of criminal proceedings, provided that –

(a) an accused shall not be called as a witness except upon his own application;

(b) the wife or husband of an accused shall not be a compelling witness where a co-accused calls that wife or husband as a witness for the defence

(2) The evidence which an accused may give in his own defence at joint criminal proceedings, shall not be inadmissible against a co-accused by reason only that such accused is for any reason not a competent witness for the prosecution against such co-accused.

(3) An accused may not make an unsworn statement at his trial in lieu of evidence but shall, if he wishes to give evidence, do so on oath or, by affirmation.

According to the case law S v Taylor (2) saker (C), the term 'husband' and 'wife' includes the former spouse of an accused when required to testify as to events which occurred during subsistence of the marriage. Prior to 3 October 1988, section 196 (1) (b) provided that the spouse of an accused could not be called as a witness for the defence except upon the application of the accused.

Section 197 - Privileges of accused when giving evidence

An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted or charged with any offence other than the offence with which he is charged, or that he is of bad character, unless-

(a) he or his legal representative asks a witness any question with a view to show his own good character or conduct of the defence involves imputation of character of the complainant or any witness of the prosecution;

(b) he gives evidence against any other person charged with the same offence, or offence with same facts.

(c) the proceedings against him are such as are described in section 240 or 241 and the notice under those sections has been given to him; or

(d) the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged.

Section 197 gives the accused a shield, which not only gives him a right to refuse to answer certain questions but even prohibits the questions being asked. There are four classes of questions prohibited which tend to show, (1) that he has committed; (2) that he has been convicted of, (3) that he has been charged with any offence other than that which forms the subject of the current charge; or (4) that he is of'bad character'. In R v Malindi (4) S.A F.C and 1966 (4) S.A P.C, it was indicated that a question tends to show'bad character' if it suggests that the accused has a disposition to commit the offence with which he is charged. The shield does not protect the accused against questions which are relevant to an issue before court.

A judge has a discretion to exclude cross-examination even if it would be technically permissible in terms of section 197, if it would unduly prejudice the accused. The discretion had to be exercised in the light of the principles governing relevance: the cross-examination must be relevant to the issue of credibility, and it must not prejudice the accused being cross-examined in the conduct of his defence to the extent that his right to a fair trial is undermined.

Section 198 - Privilege arising out of marital state

(1) A husband or wife shall not at criminal proceedings be compelled to disclose any communication which his wife or her husband made during the marriage

(2) subsection (1) shall also apply to a communication made during the subsistence of a marriage or a putative marriage which has been dissolved or annulled by a competent court.

A witness who is not the de jure spouse of the accused is not entitled to invoke the privilege relating to marital communications set out in this section – S v Johardien (1) S.A (C). It was held in that case that a woman who was married by Muslim rites, and whose marriage was potentially polygamous, could not invoke the privilege even though her marriage was de facto a monogamous one.

Section 199 - No witness compelled to answer question which the witness's husband or wife may decline

No person shall be compelled to answer any question or to give any evidence, if the question or evidence is such that under the circumstances, the husband or wife of such person, if under examination as a witness, may lawfully refuse and cannot be compelled to answer or give it.

The effect of this section is that one may refuse to answer or give evidence in respect of where the other party would claim privilege on. The scope of marital privilege as contained in section 198 (1) has been broadened by entitling a spouse to refuse to disclose a communication made by him or her to the other spouse on the ground that his or her spouse could have so refused in terms of section 198 (1).

Section 200 - Witness not excused from answer establishing civil liability on his part

A witness in criminal proceedings may not refuse to answer any question relevant to the issue by reason only that the answer establishes or may establish a civil liability on his part.

Exposure to civil liability does not entitle a witness to invoke the privilege conferred by that section. See Wessels no versus Van Tonder and others, one S.A, Open Court, at 620 to 621.

Section 201 - Privilege of legal practitioner

No legal practitioner qualified to practise in any court, whether within the Republic or elsewhere, shall be competent, without the consent of the person concerned, to give evidence at criminal proceedings against any person by whom he is professionally employed or consulted as to any fact, matter or thing with regard to which such practitioner would not on the thirtieth day of May, 1961, by reason of such employment or consultation, have been competent to give evidence without such consent: Provided that such legal practitioner shall be competent and compellable to give evidence as to any fact, matter or thing which relates to or is connected with the commission of any offence with which the person by whom such legal practitioner is professionally employed or consulted, is charged, if such fact, matter or thing came to the knowledge of such legal practitioner before he was professionally employed or consulted with reference to the defence of the person concerned.

The Appellate Division in S v Safatsa and Others (1) S.A (A) decided in favour of the view that the privilege is not merely a rule of the law of evidence but is indeed founded on an individual's fundamental right to consult freely with a legal adviser.

What is covered by the privilege—

The privilege includes everything confidentially said or communicated between legal practitioner and client by way of legal advice or for the purposes of litigation.

A mere friendly conversation is not covered.

A relationship of legal adviser and client must exist otherwise the communication is not privileged.

The proviso clearly stipulates that, when the client is charged with a criminal offence, relevant matters which come to the knowledge of the legal practitioner before he or she was professionally employed or consulted by that client are not covered by the privilege.

The accused can be questioned about those matters and is obliged to answer.

In addition, if a client makes a confession to an attorney without seeking that attorney's legal advice in connection therewith, the confession is not privileged information.

The communication must have been for the purpose of obtaining legal advice, otherwise it is not protected.

Whether it was a professional conversation is a question of fact, but the answer can be inferred from a circumstance such as payment to a legal adviser.

Whether the relationship of attorney and client, from which privilege flowed, in fact, existed and whether the communication was confidential are questions of fact which have to be decided on the facts.

Who can claim the privilege—

If a question is put to the legal practitioner which encroaches upon the privilege, it is the duty of the legal practitioner to claim that privilege on behalf of the client.

The legal practitioner acts as an agent for the client. If the client waives the privilege, the legal practitioner is obliged to answer.

When the accused's evidence does not correspond with what counsel for the defence has put to the other witnesses, the accused is often asked whether his or her version was given to counsel for the defence. Such a question is in order because it is important to know whether an explanation which is now given was given earlier in circumstances in which one would expect it to have been given. In this manner the question tests the credibility of the evidence.

The accused may not be asked: “What did you say to your legal representative?”

202 Privilege from disclosure on ground of public policy or public interest

Except as is in this Act provided and subject to the provisions of any other law, no witness in criminal proceedings shall be compellable or permitted to give evidence as to any fact, matter or thing or as to any communication made to or by such witness, if such witness would on the thirtieth day of May, 1961, not have been compellable or permitted to give evidence with regard to such fact, matter or thing or communication by reason that it should not, on the grounds of public policy or from regard to public interest, be disclosed, and that it is privileged from disclosure: Provided that any person may in criminal proceedings adduce evidence of any communication alleging the commission of an offence, if the making of that communication prima facie constitutes an offence, and the judge or judicial officer presiding at such proceedings may determine whether the making of such communication prima facie does or does not constitute an offence, and such determination shall, for the purpose of such proceedings, be final.

This provision provides for a privilege on the basis of “public Policy” or “public interest”

As a result of the findings of the Constitutional Court in Shabalala and Others v AttorneyGeneral,

Transvaal and Another (12) B.C.L.R C.C, 1996 (1) S.A C.C there is no blanket privilege on the contents of the police docket.

However, this does not mean that the State is not entitled to privilege.

Three categories of public interest are contemplated in section 202:

(a) Identity of informers—An informer's identity and the information he or she conveys is protected from disclosure. No question may be put and no document entered as evidence which could reveal the identity of the informer or the content of the information.

In Suliman v Hansa (4) S.A (D) The following four fundamental conditions set out the prerequisites for privilege:

1. The communications must originate in a confidence that they will not be disclosed;

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

3. The relation must be one which in the opinion of the community ought to be sedulously fostered; and

4. The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.

(b) Other police methods—Methods used by the police to detect crimes can be kept secret.

The Constitutional Court in Shabalala and Others v AttorneyGeneral, Transvaal and Another (12) B.C.L.R C.C, 1996 (1) S.A C.C pars [5] and [6] of the order regarding the defence's right of access to the prosecutor's docket, specifically indicated that the methods of investigation employed by the police would be regarded as protected information.

(c) State privilege – this category refers to the correspondence between State entities and between the State and international entities.

National Director of Public Prosecutions v King zasca 8: “litigation privilege no longer applies to documents in the police docket that are incriminating, exculpatory or prima facie likely to be helpful to the defence. This means that an accused is entitled to the content in the docket 'relevant' for the exercise or protection of that right. The entitlement is not restricted to statements of witnesses or exhibits but extends to all documents that might be 'important for an accused to properly 'adduce and challenge evidence' to ensure a fair trial'.

The blanket privilege has not been replaced by a blanket right to every bit of information in the hands of the prosecution. Litigation privilege does still exist, also in criminal cases, albeit in an attenuated form as a result of these limitations. Litigation privilege is in essence concerned with what is sometimes called work product and consists of documents that are by their very nature irrelevant because they do not comprise evidence or information relevant to the prosecution or defence.

203 Witness excused from answering incriminating question

No witness in criminal proceedings shall, except as provided by this Act or any other law, be compelled to answer any question which he would not on the thirtieth day of May, 1961, have been compelled to answer by reason that the answer may expose him to a criminal charge.

This provision is aimed at encouraging witnesses to promote the administration of justice by providing information and giving evidence in court.

Duty of the court to warn - the Appellate Division in S v Lwane (2) S.A (A) stated that there is a duty on a judicial officer to warn a witness against self incrimination, otherwise the incriminating statement is not admissible in a subsequent criminal trial against the witness.

This section must be read together with section 204 and 205 – circumstances in which a witness may not claim the privilege in terms of section 203.

204 Incriminating evidence by witness for prosecution

(1) Whenever the prosecutor at criminal proceedings informs the court that any person called as a witness on behalf of the prosecution will be required by the prosecution to answer questions which may incriminate such witness with regard to an offence specified by the prosecutor-

(a) the court, if satisfied that such witness is otherwise a competent witness for the prosecution, shall inform such witness-

(i) that he is obliged to give evidence at the proceedings in question;

(2) that questions may be put to him which may incriminate him with regard to the offence specified by the prosecutor;

(3) that he will be obliged to answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the answer may incriminate him with regard to the offence so specified or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified;

(4) that if he answers frankly and honestly all questions put to him, he shall be discharged from prosecution with regard to the offence so specified and with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and

(b) such witness shall thereupon give evidence and answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the reply thereto may incriminate him with regard to the offence so specified by the prosecutor or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified.

(2) If a witness referred to in subsection (1), in the opinion of the court, answers frankly and honestly all questions put to him-

(a) such witness shall, subject to the provisions of subsection (3), be discharged from prosecution for the offence so specified by the prosecutor and for any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and

(b) the court shall cause such discharge to be entered on the record of the proceedings in question.

(3) The discharge referred to in subsection (2) shall be of no legal force or effect if it is given at preparatory examination proceedings and the witness concerned does not at any trial arising out of such preparatory examination, answer, in the opinion of the court, frankly and honestly all questions put to him at such trial, whether by the prosecution, the accused or the court.

(4) (a) Where a witness gives evidence under this section and is not discharged from prosecution in respect of the offence in question, such evidence shall not be admissible in evidence against him at any trial in respect of such offence or any offence in respect of which a verdict of guilty is competent upon a charge relating to such offence.

(b) The provisions of this subsection shall not apply with reference to a witness who is prosecuted for perjury arising from the giving of the evidence in question, or for a contravention of section (3) of the Criminal Procedure Act, 1955.

This section provides the State with a tool to encourage the co-operation of co-perpetrators or accomplices to testify on behalf of the State.

You will often hear the term “s204 witness” in criminal proceedings. This is a witness who has specific knowledge of the details of the planning and/or commission of an offence. Usually the State will not be able to prove certain facts unless the information is provided by one of the perpetrators.

The s204 witness is not automatically exempt from prosecution. The provisions require that:

1. The State inform the court that the witness will be required to answer question which will incriminate him/her in a criminal offence

2. The State informs the court of the specific offence/s which the witness might incriminate him/herself

3. The witness must answer all relevant questions frankly and honestly despite the answers causing him/her to be implicated in the specified offence/s or any offence which is a competent verdict of the specified offence/s.

4. Only if the court is satisfied that the evidence was frankly and honestly given, the court may order that the witness is discharged from prosecution on the specified offence/s.

5. If the court is not satisfied with the evidence of the witness – the court does not discharge the witness from prosecution and the evidence presented by the witness may be admissible against him/her at a trail where he/she is prosecuted.

205 Judge, regional court magistrate or magistrate may take evidence as to alleged offence

(1) A judge of a High Court, a regional court magistrate or a magistrate may, subject to the provisions of subsection (4) and section 15 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, upon the request of a Director of Public Prosecutions or a public prosecutor authorized thereto in writing by the Director of Public Prosecutions, require the attendance before him or her or any other judge, regional court magistrate or magistrate, for examination by the Director of Public Prosecutions or the public prosecutor authorized thereto in writing by the Director of Public Prosecutions, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to the satisfaction of the Director of Public Prosecutions or public prosecutor concerned prior to the date on which he or she is required to appear before a judge, regional court magistrate or magistrate, he or she shall be under no further obligation to appear before a judge, regional court magistrate or magistrate.

(2) The provisions of sections 162 to 165 inclusive, 179 to 181 inclusive, 187 to 189 inclusive, 191 and 204 shall mutatis mutandis apply with reference to the proceedings under subsection (1).

(3) The examination of any person under subsection (1) may be conducted in private at any place designated by the judge, regional court magistrate or magistrate.

(4) A person required in terms of subsection (1) to appear before a judge, a regional court magistrate or a magistrate for examination, and who refuses or fails to give the information contemplated in subsection (1), shall not be sentenced to imprisonment as contemplated in section 189 unless the judge, regional court magistrate or magistrate concerned, as the case may be, is also of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law and order.

This section is not concerned with testimony in court, but rather with the ability to gather the necessary information during the investigation of an offence.

Section 205 attempts to assist the State gather information which can assist in the investigation of an offence and possibly the institution of prosecution in respect of that offence. Someone who has information regarding an offence but does not want to give it to the police can be forced, by the application of this section, to furnish it under oath.

It provides the State with a tool to obtain information which would otherwise be protected in terms of the Protection of Personal Information Act.

To give effect to this provision the following procedure must be followed:

1. The police / investigator must prepare an affidavit which sets out the crimes which are under investigation; the information which is required; and the person/s who is in possession of the information.

2. The prosecutor, if satisfied that the information is required for the purpose of gathering evidence to prosecute the specified crime, must issue a subpoena in the name of the person specified by the investigator.

3. The subpoena must contain the following details – name of the person required for examination; crime under investigation; information which will be requested; date and place of the examination.

4. A magistrate must authorize the issue of the subpoena.

5. The person named in the subpoena or anyone authorized by the named person (in the case of juristic persons) may provide the requested information in writing prior to the date mentioned in the subpoena.

6. If the information is provided to the satisfaction of the prosecutor, the person will not be required to present him/herself before the judge/magistrate.

This section is commonly used to secure information in regard to bank account records; cellphone records; or any information kept by service providers in the ordinary course of their business. However, the section can be used to access any relevant information.

The information gathered, is not evidence unless it is presented during the trial in the ordinary manner of presenting evidence.

: Table summary: Legal provisions regarding witness competency and the application of law. Section 206 states that for cases not expressly provided for by this Act or other laws, the law regarding witness competency, compellingability, or privilege in force on May 30, 1961, shall apply. Section 207 specifies that nothing in this Chapter modifies other laws that deem a person a competent witness in criminal proceedings.

208 Conviction may follow on evidence of single witness

An accused may be convicted of any offence on the single evidence of any competent witness.

This section allows the court to convict an accused on the evidence of a single witness. This means that if the court is satisfied with the evidence of a witness, a conviction may follow even though the evidence is not corroborated by any other witness or any other evidence.

The courts have however, recognized the dangers which will be present in accepting the uncorroborated evidence of a single witness and to minimize the risk, the Cautionary Rule was formulated.

In R v Mokoena 1932 O.P.D 79 the court said that the provision of s208 should only be applied when the single witness is clear and satisfactory in every material respect, has no interest or prejudice against the accused, did not contradict him or herself, has not made a previous inconsistent statement, had proper opportunity for observation, etcetera

More recently the rule was explained in S v Sauls and Others - (3) S.A (A):

The absence of the word "credible" in s 208 of the Criminal Procedure Act 51 of 1977, which provides that "an accused may be convicted on the single evidence of any competent witness", is of no significance; the single witness must still be credible, but there are, as Wigmore on Evidence volume 3 para 2034 at 262 points out, "indefinite degrees in this character we call credibility". There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to in R v Mokoena 1932 O.P.D 79 at 80 may be a guide to a right decision but it does not mean "that the appeal must succeed if any criticism, however slender, of the witnesses' evidence were well founded". It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.

Many subsequent judgements have confirmed and applied this approach – including Rugnanan v S zasca: “The cautionary rule does not require that the evidence of a single witness must be free of all conceivable criticism. The requirement is merely that it should be substantially satisfactory in relation to material aspects or be corroborated. As mentioned above, the magistrate's judgment demonstrated that the complainant's evidence was evaluated with caution. She was found to be a straightforward witness whose version remained constant notwithstanding protracted cross-examination."

209 Conviction may follow on confession by accused

An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed.

this Section does not Deal with the admissibility of A Confession – See Section 217

This section is not applicable to the circumstances where the accused enters a plea of guilty in terms of s112 of the C.P.A.

The section is relevant in the circumstances where the only evidence presented is the confession of the accused made prior to the trial.

It requires one of two things to be present in addition to a confession before the court can convict on the basis of that confession, namely:

1. confirmation of the confession in a material respect:

examples of such confirmation –

R v Blyth 1940 A.D 355 Mrs Blyth sent a note reading as follows to the police: “This is a confession to the fact that I murdered my husband Lindsay Harry Blyth on 2 January 1939 by arsenical poisoning”.

Thereafter, arsenic was found in the body of her deceased husband.

R v Mata un g (2) S.A (O) a confession to stock theft and proof that stock was missing were sufficient for a conviction.

S v Mjoli and Another (3) S.A (A) in which the majority held that confirmation in a material respect can also be found in the statement and answers an accused gives in terms of section 115. Confirmation can even be found in informal admissions, in other words admissions which are not noted in terms of section 115(2)(b). The inference here is that other informal admissions made outside court can also materially confirm evidence.

2. proof by means of evidence other than the confession that the offence was in fact committed

This requirement is met but evidence which proves that the crime did in fact occur and must be presented through evidence not emanating for the accused.

Admissions made by the accused is insufficient to satisfy this requirement.

Note: Confirmation of the Confession – means that the contents of the confession is confirmed by other evidence.

Proof of the Offence by Other Means – refers to evidence not contained in the confession such as objective facts.

210 Irrelevant evidence inadmissible

Code summary: This legal rule establishes a standard for the admissibility of evidence in criminal proceedings, mandating that any fact, matter, or thing be excluded if it is irrelevant, immaterial, or unable to prove or disprove a point at issue.

Relevance is decided in the factual complex of each particular case.

In principle the relevance of a fact is determined by the probative value it has regarding the facts in dispute; and the relevance of a fact determines the admissibility of evidence regarding that fact.

But relevant evidence can also be disallowed where the evidential value thereof is overshadowed by the danger of (a) unfair prejudice caused thereby, (b) confusion of points in issue and (c) excessive delay, waste of time or unnecessary duplication of evidence.

It is possible to classify facts which create questions of relevance/admissibility into four main groups:

(i) facts of little evidential value;

(2) facts which are not in dispute but are similar to those in dispute;

(3) facts which only apply to the credibility of the witness

(4) previous consistent statements.

The question of relevance and admissibility commonly arise in the following categories:

(i) facts of little evidential value;

Evidence which seeks to establish character or motive can be seen as irrelevant however in certain circumstances it can be admissible – see: (R v Matthews and Others 1960 (1) S.A 752 (A)) The accused were members of a gang who were charged with the murder of a member of a competing gang. The activities of both gangs were admitted to prove how strong the motive of the accused was to murder a member of the other gang. Evidence of the motive raised the probability that the accused had deemed it necessary to murder a member of another gang in order to terrorise the public more effectively and to establish dominance over the other gang. In order to prove the motive to establish such dominance, the leading of evidence of the actions of the other gang members who were not before the court was also relevant.

(2) facts which are not in dispute but are similar to those in dispute;

The general rule is that evidence which prove facts which are similar to facts in issue and do not prove the issues which are in dispute, are inadmissible.

However, the Doctrine of Similar Facts makes provision for certain similar fact evidence to be admissible in certain circumstances.

Similar fact evidence is allowed when it discloses such a general system or modus operandi of the perpetrator that it can be inferred logically that the same individual was responsible for both sets of facts.

In S v Banana (2) saker (Z) Gubbay C.J said: “Thus the test in every case must be not whether the events sought to be proved by the prosecution are strikingly similar to the offence charged, but whether their probative contribution is such as to outweigh the prejudice to the accused”.

The court assesses prejudice to the accused with reference to inter alia whether the evidence merely shows a tendency rather than having a direct link to the offence.

Rebuttal of alibi or denial—In R v Dhlamini (1) S.A (N) the charge was that the accused had stabbed a woman to death. He alleged that at the time of the offence he was at a dance party ten miles away. However, proof was admitted that he had stabbed another woman with a knife in the vicinity of the murder ten minutes before the alleged time of offence.

(3) facts which only apply to the credibility of a witness;

While credibility is not a side issue, facts which are used merely to test credibility are secondary matters which have nothing to do with the points in issue.

Generally a witness's reply under cross examination on a collateral matter is final in the sense that the crossexaminer may not adduce evidence to contradict such reply.

General evidence of bad character may not be adduced in terms of section 227

(4) {previous consistent statements}

As a general rule – previous consistent statements are inadmissible. Self corroboration has no evidential value. However there are exceptions:

1. To rebut an allegation of recent fabrication – the previous consistent statement will only rebut the suggestion of fabrication and does not serve as proof of the content or as corroboration of the similar version on the witness stand. S v Winnaar (2) saker (O)

2. The charge in sexual cases – the Sexual Offences and Related Matters Amendment Act, 32 of 2007 provides specifically that evidence of a previous consistent statement will be admissible in a criminal case involving a sexual offence and that the court cannot draw a negative inference in circumstances where there is no such previous consistent statement.

(The specific requirements for admissibility will not be discussed in this guide)

3. Earlier identification of a person who is pointed out in court— the pointing out or identification of the accused before court as the perpetrator of the offence has very little and often no evidential value because it is found that the mere presence of the accused in the accused dock is highly suggestive that s/he is the perpetrator. Therefore the fact that the witness identified the accused at some other place without the suggestion of his/her involvement in the offence will be admissible. It is on this basis that evidence of identification parades is admitted.

211 Evidence during criminal proceedings of previous convictions

Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he has been so convicted.

The provisions of this section clearly state that the evidence of previous convictions of the accused is inadmissible unless it is relevant to the elements of an offence for which the accused is currently charged.

However, if the accused tenders evidence of his/her previous convictions, the evidence will be admissible.

When is evidence of previous convictions relevant:

1. Proof of previous convictions for receiving stolen property, or for an offence involving fraud or dishonesty, is admissible in order to counter timeously an allegation that the accused did not know that the goods were stolen.

2. Proof of previous convictions for the purpose of establishing similar facts will be admissible when relevant. (Note the Doctrine of Similar Fact)

3. After conviction, the proof of previous convictions are relevant for the court to determine an appropriate sentence.

4. During Bail Application, the proof of previous convictions is necessary to assist the court to evaluate and apply the provisions of Section 60.

Note for Practice:

Bail Applications are not a purely criminal matter.

Previous convictions are relevant during bail applications. The previous convictions impact on the schedule of the offence and the onus or burden of proof of the parties.

The accused is compelled to disclose his/her previous convictions.

Failure to disclose the previous convictions can lead to further criminal prosecution.

212 Proof of certain facts by affidavit or certificate

(1) Whenever in criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place in any particular department or subdepartment of the State or of a provincial administration or in any branch or office of such department of subdepartment or in any particular court of law or in any particular bank, or the question arises in such proceedings whether any particular functionary in any such department, subdepartment, branch of office did or did not perform any particular act or did or did not take part in any particular transaction, a document purporting to be an affidavit made by a person who in that affidavit alleges—

(a) that he is in the service of the State or a provincial administration or of the bank in question, and that he is employed in the particular department or subdepartment or the particular branch or office thereof or in the particular court or bank;

(b) that—

(i) if the act, transaction or occurrence in question had taken place in such department, subdepartment, branch or office or in such court or bank;

(2) if such functionary had performed such particular act or had taken part in such particular transaction, it would in the ordinary course of events have come to his, the deponent's, knowledge and a record thereof, available to him, would have been kept; and

(c) that it has not come to his knowledge—

(i) that such act, transaction or occurrence took place; or

(2) that such functionary performed such an act or took part in such transaction, and that there is no record thereof, shall, upon its mere production at such proceedings, be prima facie proof that the act, transaction or occurrence in question did not take place, or as the case may be, that the functionary concerned did not perform the act in question or did not take part in the transaction in question.

(2) Whenever in criminal proceedings the question arises whether any person bearing a particular name did or did not furnish any particular officer in the service of the State or of a provincial administration with any particular information or document, a document purporting to be an affidavit made by a person who in that affidavit alleges that he is the said officer and that no person bearing the said name furnished him with such information or document, shall, upon its mere production at such proceedings, be prima facie proof that the said person did not furnish the said officer with any such information or document.

(3) Whenever in criminal proceedings the question arises whether any matter has been registered under any law or whether any fact or transaction has been recorded thereunder or whether anything connected therewith has been done thereunder, a document purporting to be an affidavit made by a person who in that affidavit alleges that he is the person upon whom the law in question confers the power or imposes the duty to register such matter or to record such fact or transaction or to do such thing connected therewith and that he has registered the matter in question or that he has recorded the fact or transaction in question or that he has done the thing connected therewith or that he has satisfied himself that the matter in question was registered or that the fact or transaction in question was recorded or that the thing connected therewith was done, shall, upon its mere production at such proceedings, be prima facie proof that such matter was registered or, as the case may be, that such fact or transaction was recorded or that the thing connected therewith was done.

(4) (a) Whenever any fact established by any examination or process requiring any skill—

(i) in biology, chemistry, physics, astronomy, geography or geology;

(2) in mathematics, applied mathematics or mathematical statistics or in the analysis of statistics:

(6) in ballistics, in the identification of fingerprints or bodyprints or in the examination of disputed documents,

is or may become relevant to the issue at criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State or of a provincial administration or any university in the Republic or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and that he or she has established such fact by means of such an examination or process, shall, upon its mere production at such proceedings be prima facie proof of such fact:

Provided that the person who may make such affidavit may, in any case in which skill is required in chemistry, anatomy or pathology, issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate.

(b) Any person who issues a certificate under paragraph (a) and who in such certificate wilfully states anything which is false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury.

(5) Whenever the question as to the existence and nature of a precious metal or any precious stone is or may become relevant to the issue in criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he is an appraiser of precious metals or precious stones, that he is in the service of the State, that such precious metal or such precious stone is indeed a precious metal or a precious stone, as the case may be, that it is a precious metal or a precious stone of a particular kind and appearance and that the mass or value of such precious metal or such precious stone is as specified in that affidavit, shall, upon its mere production at such proceedings, be prima facie proof that it is a precious metal or a precious stone of a particular kind and appearance and the mass or value of such precious metal or such precious stone is as so specified.

(6) In criminal proceedings in which the finding of or action taken in connection with any particular fingerprint, bodyprint, bodily sample or crime scene sample is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State and that he or she is in the performance of his or her official duties—

(a) found such fingerprint, bodyprint, bodily sample or crime scene sample at or in the place or on or in the article or in the position or circumstances stated in the affidavit; or

(b) dealt with such fingerprint, bodyprint, bodily sample or crime scene sample in the manner stated in the affidavit, shall, upon the mere production thereof at such proceedings, be prima facie proof that such fingerprint, bodyprint, bodily sample or crime scene sample, was so found or, as the case may be, was so dealt with.

(7) In criminal proceedings in which the physical condition or the identity, in or at any hospital, nursing home, ambulance or mortuary, of any deceased person or of any dead body is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges—

(a) that he is employed at or in connection with the hospital, nursing home, ambulance or mortuary in question; and

(b) that he during the performance of his official duties observed the physical characteristics or condition of the deceased person or of the dead body in question; and

(c) that while the deceased person or the dead body in question was under his care, such deceased person or such dead body had or sustained the injuries or wounds described in the affidavit, or sustained no injuries or wounds; or

(d) that he pointed out or handed over the deceased person or the dead body in question to a specified person or that he left the deceased person or the dead body in question in the care of a specified person or that the deceased person or the dead body in question was pointed out or handed over to him or left in his care by a specified person,

shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged.

(8) (a) In criminal proceedings in which the collection, receipt, custody, packing, marking, delivery or despatch of any fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue (as defined in section 1 of the National Health Act), or any object of whatever nature is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges —

(i) that he or she is in the service of the State or of a provincial administration, any university in the Republic or anybody designated by the Minister under subsection (4);

(2) that he or she in the performance of his or her official duties—

(aa) received from any person, institute, state department or body specified in the affidavit, a fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed or marked in the manner described in the affidavit;

(bb) delivered or dispatched to any person, institute, state department or body specified in the affidavit, a fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed or marked in the manner described in the affidavit;

(cc) during a period specified in the affidavit, had a fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit in his or her custody in the manner described in the affidavit, which was packed or marked in the manner described in the affidavit, shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged: Provided that the person who may make such affidavit in any case relating to any article of clothing, specimen, bodily sample, crime scene sample or tissue, may issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate.

(b) Any person who issues a certificate under paragraph (a) and who in such

certificate wilfully states anything which is false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury.

(9) In criminal proceedings in which it is relevant to prove—

(a) the details of any consignment of goods delivered to the Railways Administration for conveyance to a specified consignee, a document purporting to be an affidavit made by a person who in that affidavit alleges—

(i) that he consigned the goods set out in the affidavit to a consignee specified in the affidavit;

(2) that, on a date specified in the affidavit, he delivered such goods or caused such goods to be delivered to the Railways Administration for conveyance to such consignee, and that the consignment note referred to in such affidavit relates to such goods, shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged; or

(b) that the goods referred to in paragraph (a) were received by the Railways Administration for conveyance to a specified consignee or that such goods were handled or transshipped en route by the Railways Administration, a document purporting to be an affidavit made by a person who in that affidavit alleges—

(i) that he at all relevant times was in the service of the Railways Administration in a stated capacity;

(2) that he in the performance of his official duties received or, as the case may be, handled or transshipped the goods referred to in the consignment note referred to in paragraph (a), shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged.

(10) (a) The Minister may in respect of any measuring instrument as defined in section 1 of the Trade Metrology Act, 1973, by notice in the Gazette prescribe the conditions and requirements which shall be complied with before any reading by such measuring instrument may be accepted in criminal proceedings as proof of the fact which it purports to prove, and if the Minister has so prescribed such conditions and requirements and upon proof that such conditions and requirements have been complied with in respect of any particular measuring instrument, the measuring instrument in question shall, for the purposes of proving the fact which it purports to prove, be accepted at criminal proceedings as proving the fact recorded by it, unless the contrary is proved.

(b) An affidavit in which the deponent declares that the conditions and requirements referred to in paragraph (a) have been complied with in respect of the measuring instrument in question shall, upon the mere production thereof at the criminal proceedings in question, be prima facie proof that such conditions and requirements have been complied with.

(11) (a) The Minister may with reference to any syringe intended for the drawing of blood or any receptacle intended for the storing of blood, by notice in the Gazette prescribe the conditions and requirements relating to the cleanliness and sealing or manner of sealing thereof which shall be complied with before any such syringe or receptacle may be used in connection with the analysing of the blood of any person for the purposes of criminal proceedings, and if—

(i) any such syringe or receptacle is immediately before being used for the said purpose, in a sealed condition, or contained in a holder which is sealed with a seal or in a manner prescribed by the Minister; and

(2) any such syringe, receptacle or holder bears an endorsement that the conditions and requirements prescribed by the Minister have been complied with in respect of such syringe or receptacle, proof at criminal proceedings that the seal, as thus prescribed, of such syringe or receptacle was immediately before the use of such syringe or receptacle for the said purpose intact, shall be deemed to constitute prima facie proof that the syringe or the receptacle in question was then free from any substance or contamination which could materially affect the result of the analysis in question.

(b) An affidavit in which the deponent declares that he had satisfied himself before using the syringe or receptacle in question—

(i) that the syringe or receptacle was sealed as provided in paragraph (a)

(i) and that the seal was intact immediately before the syringe or receptacle was used for the said purpose; and

(2) that the syringe, receptacle or, as the case may be, the holder contained the endorsement referred to in paragraph (a) (2), shall, upon the mere production thereof at the proceedings in question, be prima facie proof that the syringe or receptacle was so sealed, that the seal was so intact and that the syringe, receptacle or holder, as the case may be, was so endorsed.

(c) Any person who for the purposes of this subsection makes or causes to be made a false endorsement on any syringe, receptacle or holder, knowing it to be false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury.

(12) The court before which an affidavit or certificate is under any of the preceding provisions of this section produced as prima facie proof of the relevant contents thereof, may in its discretion cause the person who made the affidavit or issued the certificate to be subpoenaed to give oral evidence in the proceedings in question, or may cause written interrogatories to be submitted to such person for reply, and such interrogatories and any reply thereto purporting to be a reply from such person, shall likewise be admissible in evidence at such proceedings.

(13) No provision of this section shall affect any other law under which any certificate or other document is admissible in evidence, and the provisions of this section shall be deemed to be additional to and not in substitution of any such law.

This section is intended to allow the State to prove certain types of evidence by way of an affidavit. The subsections create certain circumstances in which such affidavits may be adduced as evidence. The subsections also provide specific requirements for the affidavits to become admissible.

The affidavits which comply with the requirement of the specific subsection will become prima facie proof of the facts contained in the affidavit. This means that unless evidence is adduced to rebut the contents of the affidavit – the contents will be accepted by the court.

An affidavit that meets the requirements of s 212 of the C.P.A will constitute prima facie proof of the matters stated in it.

Section 212 may be utilised by both the prosecution and the defence.

State departments, provincial administrations, courts of law, and banks

Section 212(1) of the C.P.A provides that the fact that an act, transaction or occurrence took place in any state department, provincial administration, court of law or bank, or that a functionary in any one of these departments performed or did not perform a particular act or transaction, may be proved by affidavit.

The affidavit will constitute prima facie proof provided the following requirements are met:

(a) the maker of the affidavit is in the service of the State and employed by one of the institutions referred to in the subsection;

(b) the act, transaction or occurrence would in the ordinary course of event have come to the deponent's knowledge and a record of it would have been kept, alternatively

(c) it has not come to the deponent's knowledge that the act, transaction or occurrence took place and there is no record of such act, etcetera

Denial of information furnished

If the issue in criminal proceedings is whether a particular person furnished a specified officer of the state or provincial administration with certain information, in terms of § 212(2) of the C.P.A, a denial by the officer in question in the form of an affidavit will constitute prima facie proof that the person did not furnish the officer with any such information or document.

Official acts

In terms of s 212(3) of the C.P.A where a person is authorised by law to register or record something, proof of the registration, recording and anything connected with the registration or recording may be provided by an affidavit deposed to by the person authorised in law to perform the act of registering or recording.

Facts requiring specialised skills

Section 212(4) of the C.P.A, although more detailed, contains similar provisions to those contained in s 22(1) of the C.P.E.A.

Section 212(4) provides for evidence of fact by an examination or process requiring the following skills:

(i) in biology, chemistry, physics, astronomy, geography or geology;

(2) in mathematics, applied mathematics or mathematical statistics or in the analysis of statistics;

(6) in ballistics, in the identification of finger prints or palm-prints or in the examination of disputed documents

The document provided by the witness must:

1. Be an affidavit 2. Allege that the deponent is in the service of the State or of a provincial administration or is in the service of or is attached to the South African Institute for Medical Research or any university in the Republic or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and 3. Allege that he or she has established such fact by means of such an examination or process

The person who may make such affidavit may, in any case in which skill is required in chemistry, anatomy or pathology, may issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate.

Any person who issues a certificate under paragraph (a) and who in such certificate will willfully states anything which is false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury.

Prosecutors frequently rely on this section to submit into evidence Forensic Reports, such as D.N.A Analysis; Chemical analysis of narcotic substances; ballistic analysis; post mortem reports; etcetera

The court requires strict compliance with the provisions of the section. See S v Kwezi (2) S.A.C R (E): the court held that medical evidence had not been properly admitted in terms of s 212(4) where the affidavit did not specify that the deponent was in the service of the state. The court found that the presiding officer, in light of the unrepresented accused's objections, had erred in taking judicial notice of the fact that district surgeons are in the service of the state.

Diamini (1) saker N.C: the deponent stated that she had conducted an examination requiring skills in genetics. Genetics is not one of the fields mentioned in subsections (1) to (4) of section 212(4)(a) nor was there any information to justify an inference that it forms part of one of the sciences that are mentioned in those provisions. The conviction was set aside on review.

Precious metal and stones

The existence and nature of a precious metal or stone may, in terms of s 212(5) of the C.P.A be proved by affidavit deposed to by an appraiser in the service of the State.

Fingerprints, body-prints, bodily samples and crime scene samples

Prosecutors will rely on this section to tender evidence of the police official who attended a crime scene and collected evidence. (usually an official employed at the Local Criminal Records Center – L.C.R.C

The police official will compile an affidavit in terms of s 212(6) which will indicate:

1. He/she is in the service of the state

2. He/she collected specific exhibits at the specific scene

3. The exhibits were marked with certain identifying tags or numbers

4. The place and conditions under which the exhibits be stored.

Dead bodies

Prosecutors rely on section 212(7) to tender evidence of the “body chain” – the movement of the deceased body after a person is declared dead until the post mortem examination is conducted by the pathologist.

Requirements:

1. An affidavit which states that –

2. He/she is employed or in connection with the hospital, nursing home, ambulance or mortuary;

3. He/she has observed the conditions and characteristics of the body during the performance of her official duties;

4. any injuries received whilst the body was in the care of the deponent must be recorded and

5. He/she must state from whom she received the body and in whose care she left the body.

Chain of custody

Section 212(8) makes provision for receipt, custody, packing, marking, delivery or dispatch of any object.

Prosecutors will rely on this section to tender the evidence concerning the “chain of custody” of an exhibit such as a firearm/knife; drugs; money; bullets or cartridges; etcetera

The affidavit of the witness will usually refer to s 212(6) – collection of the exhibit and s 212(8) – the movement of the exhibit.

Requirements:

1. an affidavit

2. deposed to by a person in the service of the State or the South African Institute of Medical Research, any university in the Republic or any body designated by the Minister under sub-s (4).

Prosecutors must be careful when simply handing in medical reports. In certain circumstances, even though the affidavit / certificate may meet the requirements of the section, it may be necessary to present the oral evidence of the doctor.

Note the comments of the court in S v M.M (2) saker S.C.A at 15 As appears to be an increasing feature of cases such as these the doctor's report was simply handed in by consent and the doctor was not called to give evidence. That practice is generally speaking to be deprecated. It means that there is no opportunity for the doctor to explain the frequently subtle complexities and nuances of the report; to clarify points of uncertainty and to amplify upon its implications and the reasons for any opinions expressed in the report. That may make the difference between a conviction and an acquittal or perhaps a conviction on a lesser charge.

Depending on the areas where there is a lack of clarity, the lack of clarification may either benefit or prejudice an accused. Neither result is desirable. Magistrates and judges who are confronted with these reports without explanation do not have the requisite medical knowledge to flesh out their full implications. Unless therefore there can be no confusion, for example in a case where the fact of rape is admitted and the only issue is one of identification of the perpetrator, it will generally be desirable for the doctor to give evidence in support of his or her report. In this case it was undoubtedly necessary and the fact that the doctor was not called has rendered the consideration of this appeal far more complicated than it should have been."

Measuring instruments

Section 212(10) of the C.P.A makes provision for the Minister to give notice of the conditions and requirements that need to be complied with in order for measurements recorded by specified measuring instruments to constitute rebuttable proof of facts recorded by such instruments.

A question that arose in S v Eke (1) saker E.C.G was whether the state could prove the accuracy of a gas chromatograph, used to measure the blood alcohol levels of the accused, by way of a certificate issued in terms of s 212(4) or whether an affidavit in terms of s 212(10) was required. On this issue the court considered two conflicting decisions: S v Ross (1) saker W.C.C and S v Van der Sandt (2) saker (W), discussed in the notes to s 210(4). It preferred the latter decision which was to the effect that a certificate could be used for this purpose.}}

The court concluded that the state had failed to submit a s 212(10) affidavit because it erroneously and inexplicably believed it did not have to. The court's insistence on strict compliance with procedures was underpinned by an appreciation of the fact that s 212 significantly lightened “the burden of the state in proving facts relating to forensic questions”.

Discretion to call for oral evidence

Section 212(12) provides a discretion on presiding officers to subpoena deponents to give oral evidence or to require them to submit to interrogatories.

The scope of s 212

It is made explicit in s 212(13) of the C.P.A that s 212 should not be interpreted as affecting the admissibility of otherwise admissible evidence and that it must “be deemed to be additional and not in substitution” to any other law.

Table summary: Legal practice guidelines regarding affidavits and certificates. If such documents comply with requirements and are submitted to court, they constitute prima facie proof of the established facts. The use of the word shall indicates that the court is compelled to accept this evidence without discretion. While prima facie proof can be challenged with credible rebutting evidence, it becomes conclusive proof in the absence of such evidence. This is supported by Veldhuizen 1982 (3) SA 413 (A), which emphasizes the judicial officer's obligation to accept the proof, and Trust Bank of Africa Ltd v Senekal 1977 (2) SA 587 (T), which notes that a defendant cannot overturn this proof with mere suspicion or theories, but must provide a substantial foundation of fact.

The mere fact that the defence indicate that they do not accept the contents of the affidavit/certificate, does not affect the value of the prima facie proof at all. They must submit substantial admissible evidential material to rebut the contents of the document. If not, the prima facie proof will become conclusive.

It often happens that legal representatives request the court to instruct the prosecutor to present a voice evidence in lieu of the 212(4) statement. Their request is based on the argument that the accused has the right to subject witnesses to cross examination and if the State does not call the deponent it infringes upon the rights of the accused-so is alleged.

In Britz supra the court held in this regard as follows: “I should point out that before the coming into operation of the present Criminal Procedure Act of 1977, affidavits of the type under discussion would only have been admissible if there was no objection. That was under s 229[sic] of the previous Act. The present Act does not render such absence of objection as a condition for the handing up of an affidavit such as that under discussion.”

See also Tshabalala 1999(1) saker (C).

Abel (2) saker (C):"In terms of these sections the certificate is prima facie proof of its contents, provided, of course, it complies with the requirements of the sections. It follows that in the absence of other credible evidence, the prima facie proof will become conclusive proof".

Britz (2) saker (W): “The fact that an accused places the correctness of the certificate in issue, as did the appellant in the Farenden case and the appellant in the present case, is not sufficient to affect the prima facie value of the certificate. The appellant has to adduce evidence to counter the prima facie value of the certificate. That follows from decisions such as R v Chizah (1) S.A (A).

A document drawn up in terms of the relevant sub – section of 212 becomes prima facie proof upon its submission to court. The admissibility of the statement is not dependent on consent from the magistrate and it is admissible evidential material irrespective of whether the accused or his legal representative admits or objects thereto provided it complies with the requirements of the section!

Section 35(3)(i) of the Constitution of South Africa Act 106 of 1996 - does not give an accused a right to cross examination. Challenging evidence is not synonymous to cross examination. See in this regard Ndhlovu (2) saker S.C.A where the court (with reference to the submission of hearsay evidence) makes the following ruling in paragraph [24]:

“It has correctly been observed that the admission of hearsay evidence 'by definition denies an accused the right to cross-examine', since the declarant is not in court and cannot be cross-examined. I cannot accept, however, that 'use of hearsay evidence by the State violates the accused's right to challenge evidence by cross-examination', if it is meant that the inability to cross-examine the source of a statement in itself violates the right to 'challenge' evidence. The Bill of Rights does not guarantee an entitlement to subject all evidence to cross-examination. What it contains is the right (subject to limitation in terms of s 36) to 'challenge evidence'. Where that evidence is hearsay, the right entails that the accused is entitled to resist its admission and to scrutinise its probative value, including its reliability.

The provisions enshrine these entitlements. But where the interests of justice, constitutionally measured, require that hearsay evidence be admitted, no constitutional right is infringed. Put differently, where the interests of justice require that the hearsay statement be admitted, the right to 'challenge evidence' does not encompass the right to cross-examine the original declarant.” (Compare Section 166(1) of the C.P.A – Accused is Entitled to cross examine A Witness Called by the state

212 A Proof of certain facts by affidavit from person in foreign country

(1) Whenever in criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place—

(a) in any particular department or subdepartment of a state or territory outside the Republic;

(b) in any particular department or subdepartment of an administration in such state or territory which is similar to a provincial administration in the Republic;

(c) in any branch or office of a department or subdepartment contemplated in paragraph (a) or (b);

(d) in any particular court of law in such state or territory; or

(e) in any particular institution in such state or territory which is similar to a bank in the Republic, or whenever the question arises in such proceedings whether any particular functionary in any such department, subdepartment, branch, office, court or institution did or did not perform any particular act or did or did not take part in any particular transaction, the provisions of subsections (1), (2) and (3) of section 212 shall mutatis mutandis apply: Provided that for the purposes of this section a document purporting to be an affidavit shall have no effect unless—

(a) it is obtained in terms of an order of a competent court or on the authority of a competent government institution of the state or territory concerned, as the case may be;

(b) it is authenticated in the manner prescribed in the rules of court for the authentication of documents executed outside the Republic; or

(c) it is authenticated by a person, and in the manner, contemplated in section 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963.

(2) The admissibility and evidentiary value of an affidavit contemplated in subsection (1) shall not be affected by the fact that the form of the oath, confirmation or attestation thereof differs from the form of the oath, confirmation or attestation prescribed in the Republic.

(3) A court before which an affidavit contemplated in subsection (1) is placed, may, in order to clarify obscurities in the said affidavit, at the request of a party to the proceedings order that a supplementary affidavit be submitted or that oral evidence be heard: Provided that oral evidence shall only be heard if the court is of the opinion that it is in the interests of the administration of justice and that a party to the proceedings would be materially prejudiced should oral evidence not be heard.

This section, similar to s212 provides a mechanism for the admissibility of evidence by way of affidavit, which seeks to prove that an act, transaction or occurrence did or did not take place in a:

1. department, 2. subdepartment 3. provincial administration (similar to that of South Africa).

4. court of law or v. bank.

The difference here is that the act, transaction or occurrence must have or have not took place in a State or territory outside the Republic of South Africa.

The requirements for the admissibility of the affidavit as set out in s 212(1), (2) & (3) will apply, with the necessary changes.

212 B Proof of undisputed facts

(1) If an accused has appointed a legal adviser and, at any stage during the proceedings, it appears to a public prosecutor that a particular fact or facts which must be proved in a charge against an accused is or are not in issue or will not be placed in issue in criminal proceedings against the accused, he or she may, notwithstanding section 220, forward or hand a notice to the accused or his or her legal adviser setting out that fact or those facts and stating that such fact or facts shall be deemed to have been proved at the proceedings unless notice is given that any such fact will be placed in issue.

(2) The first mentioned notice contemplated in subsection (1) shall be sent by certified mail or handed to the accused or his or her legal adviser personally at least 14 days before the commencement of the criminal proceedings or the date set for the continuation of the proceedings or within such shorter period as may be condoned by the court or agreed upon by the accused or his or her legal adviser and the prosecutor.

(3) If any fact mentioned in such notice is intended to be placed in issue at the proceedings, the accused or his or her legal representative shall at least five days before the commencement or the date set for the continuation of the proceedings or within such shorter period as may be condoned by the court or agreed upon with the prosecutor deliver a notice in writing to that effect to the registrar or the clerk of the court, as the case may be, or orally notify the registrar or the clerk of the court to that effect in which case the registrar or the clerk of the court shall record such notice.

(4) If, after receipt of the first mentioned notice contemplated in subsection (1), any fact mentioned in that notice is not placed in issue as contemplated in subsection (3), the court may deem such fact or facts, subject to the provisions of subsections (5) and (6), to have been sufficiently proved at the proceedings concerned.

(5) If a notice was forwarded or handed over by a prosecutor as contemplated in subsection (1), the prosecutor shall notify the court at the commencement of the proceedings of such fact and of the reaction thereto, if any, and the court shall thereupon institute an investigation into such of the facts which are not disputed and enquire from the accused whether he or she confirms the information given by the prosecutor and whether he or she understands his or her rights and the implications of the procedure and where the legal adviser of the accused replies to any question by the court under this section, the accused shall be required by the court to declare whether he or she confirms such reply or not.

(6) The court may on its own initiative or at the request of the accused order oral evidence to be adduced regarding any fact contemplated in subsection (4).

The section provides the prosecution with a tool to formally eliminate issues which do not appear to be in issue.

1. The prosecution delivers in writing a notice of facts which in the circumstances of the particular case, do not appear to be in issue.

2. The notice must be delivered 14 days prior to the hearing of the matter (unless other period agreed by the parties)

3. The defense must file a notice with the clerk of court or deliver to the prosecutor a notice which specifies which facts will be placed in dispute.

4. If the defense does not file the notice which describes the disputed facts, the court will accept that the facts are undisputed.

Note: this section only applies to matters where the accused is legally represented.

213 Proof of written statement by consent

(1) In criminal proceedings a written statement by any person, other than an accused at such proceedings, shall, subject to the provisions of subsection (2), be admissible as evidence to the same extent as oral evidence to the same effect by such person.

(2) (a) The statement shall purport to be signed by the person who made it, and shall contain a declaration by such person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he willfully stated in it anything which he knew to be false or which he did not believe to be true.

(b) If the person who makes the statement cannot read it, it shall be read to him before he signs it, and an endorsement shall be made thereon by the person who so read the statement to the effect that it was so read.

(c) A copy of the statement, together with a copy of any document referred to in the statement as an exhibit, or with such information as may be necessary in order to enable the party on whom it is served to inspect such document or a copy thereof, shall, before the date on which the document is to be tendered in evidence, be served on each of the other parties to the proceedings, and any such party may, at least two days before the commencement of the proceedings, object to the statement being tendered in evidence under this section.

(d) If a party objects under paragraph (c) that the statement in question be tendered in evidence, the statement shall not, but subject to the provisions of paragraph (e), be admissible as evidence under this section.

(e) If a party does not object under paragraph (c) or if the parties agree before or during the proceedings in question that the statement may be so tendered, the statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings.

(f) When the documents referred to in paragraph (c) are served on an accused, the documents shall be accompanied by a written notification in which the accused is informed that the statement in question will be tendered in evidence at his trial in lieu of the State calling as a witness the person who made the statement but that such statement shall not be without the consent of the accused be so tendered in evidence if he notifies the prosecutor concerned, at least two days before the commencement of the proceedings, that he objects to the statement so being tendered in evidence.

(3) The parties to criminal proceedings may, before or during such proceedings, agree that any written statement referred to in subsections (2) (a) and (b) which has not been served in terms of subsection (2) (c) be tendered in evidence at such proceedings, whereupon such statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings.

(4) Notwithstanding that a written statement made by any person may be admissible as evidence under this section—

(a) a party by whom or on whose behalf a copy of the statement was served, may call such person to give oral evidence;

(b) the court may, of its own motion, and shall, upon the application of any party to the proceedings in question, cause such person to be subpoenaed to give oral evidence before the court or the court may, where the person concerned is resident outside the Republic, issue a commission in respect of such person in terms of section 171.

(5) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section, shall be treated as if it had been produced as an exhibit and identified in court by the person who made the statement.

(6) Any person who makes a statement which is admitted as evidence under this section and who in such statement wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury, shall be deemed to have committed the offence of perjury and shall, upon conviction, be liable to the punishment prescribed for the offence of perjury.

This section provides for evidence to be tendered to the court, without oral testimony.

It is also notable that the section referred to a “written statement” – which means that it does not have to be an affidavit.

The requirements:

1. The document must be signed by the person who made it and must declare that the facts are true to the best of his/her knowledge.

2. Must further declare that he/she is aware that the statement will be tendered as evidence and that making a false statement, knowing it to be false may cause him/her to be liable to criminal prosecution.

3. A copy of the written statement must be provided to the defense prior to the date on which the document is to be tendered as evidence.

4. No time period is specified however, a reasonable period is required.

5. The defense must, at least two (2) days prior date of evidence being tendered, object to the statement being tendered as evidence.

6. An agreement with regard to the admissibility of the document must be reached before the commencement of the proceedings.

7. If no objection is submitted or if the parties agree to the admissibility – the document will be on mere production be admitted as evidence.

8. The party tendering the document / statement can still call the witness to present oral evidence. In that circumstance the stamen can no longer be used in terms of s213.

214 Evidence recorded at preparatory examination admissible at trial in certain circumstances

The evidence of any witness recorded at a preparatory examination

(a) shall be admissible in evidence on the trial of the accused following upon such preparatory examination, if it is proved to the satisfaction of the court-

(i) that the witness is dead;

(2) that the witness is incapable of giving evidence;

(3) that the witness is too ill to attend the trial; or

(4) that the witness is being kept away from the trial by the means and contrivance of the accused; and

(v) that the evidence tendered is the evidence recorded before the magistrate or, as the case may be, the regional magistrate, and if it appears from the preparatory examination record or it is proved to the satisfaction of the court that the accused or, as the case may be, the State had a full opportunity of cross-examining such witness;

(b) may, if such witness cannot, after a diligent search, be found for purposes of the trial of the accused following upon such preparatory examination, or cannot be compelled to attend such trial, in the discretion of the court, but subject to the provisions of subparagraph (v) of paragraph (a), be read as evidence at such trial, if it appears from the preparatory examination record or it is proved to the satisfaction of the court that the accused or, as the case may be, the State had a full opportunity of cross-examining such witness.

Prepatory examination was a common procedure used to establish whether there was sufficient evidence available before a matter was set down for trial in the High Court.

Since the introduction of the Regional Courts, the procedure is very rarely used.

The mechanisms provided in this section are very similar to those available in Section 222 of this act and s3 of the Law of Evidence Amendment Act 45 of 1988 – see discussion under s216 & s222

215 Evidence recorded at former trial admissible at later trial in certain circumstances

The evidence of a witness given at a former trial may, in the circumstances referred to in section 214, mutatis mutandis be admitted in evidence at any later trial of the same person upon the same charge.

It must immediately be noted that the provisions of the section do not make the record of a former trial automatically admissible. The proviso “in certain circumstances” ensures that there must be satisfactory reasons provided for the previous record to be admitted in the latter proceedings.

Further, the requirements for admissibility set out in s214 must be met before the evidence is deemed admissible.

The following requirements must be satisfied:

1. The court must be satisfied that the unavailable witness is dead, incapable of giving evidence, too ill to attend the trial or is being kept away from the trial by the accused.

2. The evidence must have been recorded in either a magistrates' or regional court and the accused or state (as the case may be) must have had the opportunity of cross-examining the witness. 3. The court has a discretion in terms of s 214(b) to admit evidence from preparatory examination (or former trial) if the witness cannot be found after a diligent search or cannot be compelled to attend the trial, provided once again that the evidence has been recorded in the magistrates' or regional court and the accused or state had an opportunity to cross-examine the witness.

The original record of judicial proceedings may be proved in terms of s 235 by a certified copy which “shall be prima facie proof that any matter purporting to be recorded thereon was correctly recorded”.

216 .....

Section 216, which specifically dealt with hearsay evidence, was repealed by section 9 of the Law of Evidence Amendment Act 45 of 1988. The former section in principle applied the admissibility of hearsay evidence in accordance with the English common law as at 30 May 1961.

Section 3 of Act 45 of 1988 reads as follows:

“3 Hearsay evidence.— (1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless—

(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or

(c) the court, having regard to—

(i) the nature of the proceedings;

(2) the nature of the evidence;

(3) the purpose for which the evidence is tendered;

(4) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(6) any prejudice to a party which the admission of such evidence might entail; and

(7) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.

(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.

(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings:

Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.

(4) For the purposes of this section—

'hearsay evidence' means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence;

Definition of hearsay

For the purposes of s 3, 'hearsay evidence' is defined as 'evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence'.

Admissibility

Section 3(1) provides that, subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence unless the requirements set out in para (a), (b) or (c) are satisfied.

Section 3(2) provides that' [t] he provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence'.

The purpose of this provision is to preserve intact the other exclusionary rules such as those relating to opinion, character and relevance.

Note:

It is important to distinguish between admissibility and weight. In S v Rautenbach at [25] – [26], Spilg J observed,

'Weighing evidence does not determine admissibility whereas determining the reliability of a hearsay statement acts as one of the gatekeepers to its reception into the pool of evidence which a court is obliged to consider. . . . To conflate the two would result in the exclusion of hearsay statements which have probative value that may, for instance, explain conduct or put events that unfold into perspective'.

Admissible by Consent - Section 3(1)(a) of Act 45 of 1988

Hearsay evidence will be admissible if 'each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings'.

Consent can be expressly given or inferend:

1. The failure to object to the admission of hearsay evidence may be regarded as consent.

2. Consent will also be inferred where a party deliberately elicits hearsay evidence from her opponent in cross-examination.

3. However, the courts will be slow to infer informed consent where a party is unrepresented

In S v Flobela where the court made it clear that the accused must make a fully informed decision before it can be accepted that he/she agreed to have the hearsay evidence presented into evidence. The court said especially the unrepresented accused must be informed of the nature and the implications of such evidence being admitted. In fact, said Henney J, the court should go even further.

It should make an assessment of the facts the accused places in issue; consider the hearsay evidence the State wishes to present against the accused; and consider further whether that evidence would serve to prove those facts which the accused places in issue and which the State bears the onus of proving. The court should then 'explain to the accused . . . the nature of the hearsay evidence, the purpose for which the prosecutor wants to tender such evidence and the prejudice and consequences that might flow from the admission of such evidence'. It must then 'inform the accused that there is no obligation upon him or her to agree or to admit such evidence, because the onus rests on the State to prove such evidence beyond reasonable doubt'.

Care must be exercised when relying on s 3(1)(a) to receive hearsay against an accused in sentence proceedings. In S v N & another (unreported, W.C.C case no she 59/14, 9 January 2015) the trial court, it was held, had wrongly applied that section. The magistrate had not asked the accused's legal representative whether the accused were willing to admit the adverse versions of the facts contained in the probation officer's reports, and there was nothing in what the defence attorney said in his address in mitigation to infer that there was agreement that the hearsay evidence adverse to the accused and inconsistent with their plea statements might be admitted against them. There should, the court warned, be an'unequivocal admission of the hearsay facts'.

The Provisional Admission of Hearsay - Section 3(1)(b)

Hearsay evidence may be provisionally admitted where the court is informed that the person upon whose credibility the probative value of the evidence depends is going to testify at some future time in the proceedings.

This section is usually applicable in the circumstance where, a witness while giving evidence will refer to information received by another person – the prosecutor will then inform the court that the person from whom the information was received is a witness which the State intends to call and the State will request in terms of s 3(1)(b) that the hearsay evidence be provisionally allowed.

Note:

Section 3(3) provides that if the relevant person does not testify, the hearsay evidence will not be taken into account unless it is admitted by consent in terms of s 3(1)(a) of the Act or is admitted by the court in the interests of justice as provided for in s 3(1)(c) of the Act.

In S v Ndhlovu and Others 2002 (2) S.A.C R 325 S.C.A

The Supreme Court of Appeal rejected the literal interpretation adopted by Goldstein J and referred to s 3(3) to ascertain the purpose of s 3(1)(b). Section 3(3) permits the provisional admission of hearsay “if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings". Cameron J.A identified the rationale of the subsection as follows:"Before the Act, a witness w hose narrative was conjoined with that of a later witness could not refer at all to the latter's hearsay statements. This could render the delivery of evidence fragmentary and even incoherent. Any allusion to hearsay would be met with justified objection, and the court would have to wait for the later witness to be called for coherence to emerge. In these circumstances the provision permits the first witness to testify fully and without objection, provided the court is informed that the declarant will in due course be called. If the declarant is not called the hearsay is'left out of account' unless the opposing party agrees to its admission or the interests of justice require its admission under s 3(1)(c)."

Discretion of the court – Section 3(1)(c)

Section 3(1)(c), which confers a judicial discretion on presiding officers to admit hearsay evidence if the admission of the evidence would be in the interests of justice.

In exercising this discretion the court must consider six specified factors as well as “any other factor which should in the opinion of the court be taken into account”.

1. The nature of the proceedings: s 3(1)(c)(i)

The nature of the proceedings considers whether it is a criminal or civil matter; whether it is an application or a trial. Criminal proceedings usually have severe consequences for the accused and the State – the right to a fair trial is paramount. This factor must be considered with those consequences in mind.

It has been suggested that hearsay will be more readily admitted in application proceedings than at trial. Since bail proceedings are regarded as neither civil nor criminal proceedings, the rules of evidence are not strictly adhered to and consequently hearsay evidence is generally admissible at bail proceedings although the hearsay nature of the evidence will affect its weight.

It is important to note that the mere fact that the court is dealing with a criminal matter, will not render the evidence inadmissible – this is only one of the factors which the court must consider.

S v Shaik & others (1) S.A S.C.A, court stated:'sight should not be lost of the true test for the evidence to be admitted, and that is whether the interest of justice demands its reception'.

S v Van Willing & another [2015] zasca, where the court followed what had been said in Shaik and admitted hearsay under s 3(1)(c)'notwithstanding the fact that its admission was sought in criminal proceedings and such evidence was of importance to the State's case' because of its high probative value, reliability and the fact that the risk of causing prejudice to the appellants by its admission was slim.

Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security (2) S.A S.C.A:'The section requires that the court should have regard to the collective and interrelated effect of all the considerations in paras (1) – (4) of the section and any other factor that should, in the opinion of the court, be taken into account. The section thus introduces a high degree of flexibility to the admission of hearsay evidence with the ultimate goal of doing what the interests of justice require.

Note:

Section 2(2) of the Prevention of Organised Crime Act 121 of 1998 provides as follows with regard to prosecutions for racketeering offences as identified in s 2(1) of the Act: “The court may hear evidence, including evidence with regard to hearsay... notwithstanding that such evidence might otherwise be inadmissible, provided that such evidence would not render a trial unfair.”

2. The nature of the evidence: s 3(1)(c)(ii)

This factor seems to investigate relevance and reliability. The court may also consider probative value.

It must be borne in mind that the factors listed in s 3(1)(c) cannot be viewed in isolation and will be weighed collectively in determining whether it is in the interests of justice to admit the evidence.

Re sincerity: whether the evidence is assertive or non-assertive; whether it was against the interest of the absent actor or declarant; whether it was voluntarily or spontaneously made; whether there is any indication that someone else may have prompted the declarant to speak or communicate.

In S v Makhaye (1) saker (N): the contested evidence was a statement made by the deceased shortly after she had been stabbed. The manager of a hotel testified that he had been called by a cleaner who had told him that a woman had been stabbed and, on investigating, found the woman who told him that she had problems with her boyfriend who had already left the room. This evidence was received, since there was nothing to suggest that the deceased had any motive to lie about the identity of her attacker or that she could have been mistaken as to his identity.

In S v Van Willing & another [2015] zasca the reliability of a statement by the deceased in which he identified his two attackers was enhanced by reliable corroborating identification evidence by an eyewitness who saw the two appellants outside the house in question talking to the deceased immediately before the shots rang out.

In S v Sigcawu (1) saker W.C.C the court admitted the dying declaration of the victim of a shooting in a murder case. The evidence was received in terms of s 3(1)(a), but the court went on to consider too the applicability of s 3(1)(c) and concluded that the evidence would probably have been admitted under that section as it was in the interests of justice to do so. The victim was obviously'a witness to his own killing' and there was'no cogent reason why the deceased would specifically implicate the appellant as his assailant and state this to three people'. The three witnesses were, moreover, reliable and wholly independent of each other; the utterances of the deceased were'made spontaneously and unsolicited'; and the evidence was strengthened by strong surrounding evidence.

In Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security (2) S.A S.C.A it was argued that the statements of the absent declarants had no probative value as they were joint wrongdoers in an alleged casino robbery with high motivation to blame others and deflect blame from themselves. It was held that this was valid up to a point but did not render the statements devoid of any probative value. While the declarants denyed their own complicity, why would they falsely implicate three policemen?

Further, in respect of two who were admitted robbers, how could they minimise their role in the robbery by alleging that the police had taken away the spoils? There were, moreover, significant indicia that supported the reliability of their statements: there was no real benefit for the declarants in antagonising the three policemen implicated in their statements, all of which were 'known not to be averse to violence'; the three policemen were shown to have lived 'way beyond their means', thus suggesting they enriched themselves from the proceeds of the huge robbery of the casino that formed the focus of proceedings; the policemen had been prepared to threaten the investigating officer, who was a very senior police officer, with harm and even death if he continued with his investigation; and the statements were found (in the respondent's own department) to be of enough weight and force to form the basis of an application under poka and of criminal charges against the three policemen.

Re memory: the extent of the reliance placed on the actor's/declarant's memory; the importance of the matter to the maker of the act or statement; whether the act or statement concerned the maker's own affairs or the affairs of another; the length of time that elapsed between the act or statement of the maker and the event it ostensibly describes; whether the evidence is first-or second-hand hearsay; and the degree of detail which the evidence contains.

In S v Montgomery, the communication had been made fairly recently, the information was not unduly complicated, it was highly dramatic and unusual and not likely to be forgotten, and the witness was himself involved in some of the events. All these factors were held to enhance the reliability of the hearsay evidence. The evidence accorded, moreover, with all the circumstantial evidence adduced by the State.

Re perception: whether the maker had a proper opportunity to perceive the facts which his act or statement is offered to show; whether the facts were within his personal knowledge; whether the evidence is first-or second-hand hearsay; and whether there is any reason to doubt the maker's ability to perceive properly the facts in issue (such as poor eyesight or hearing).

The Supreme Court of Appeal warned, in Mamushe v S All S.A S.C.A, of the dangers of honest mistakes when it came to identification. It expressed the view that'hearsay evidence of identification can only be admitted if the possibility of mistake can be safely excluded in some other way, eg with reference to objectively established facts'. The court refused to admit the evidence in that case under s 3(1)(c) because there was, in its view, no way to test the accuracy of the declarant's observations and because her testimony in court indicated that it would, as a result of physical obstructions impeding her view, have been virtually impossible for her to have made those observations from where she stood in her garden.

Re narrative capacity: the manner in which the absent actor or declarant conveyed the material information to the witness (writing is obviously clearer than oral communication which, in turn, may be less equivocal than non-verbal conduct); whether there is anything to suggest that the maker's act or statement could have been motivated by a belief or fact other than the one it is sought to establish; the simplicity or complexity of the act or statement; whether the evidence is first-or second-hand hearsay; and the court's impressions of the ability of the witness to convey accurately the act or statement of the maker in the light of the peculiar susceptibilities of hearsay to erroneous transmission

In Mnyama v Gxalaba & another 1990 (1) S.A (C) Conradie J alluded to the dangers involved in adequately recalling and reproducing oral statements:'The smallest change of inflection or nuance could change their meaning and words uttered in casual conversation are particularly vulnerable to these defects."Talk is cheap" is an old adage which, I think, is as apt to hearsay evidence as it is to unkept promises.' The danger of misreporting oral statements is ordinarily high because a witness's recounting skills may be inadequate to convey the true import of what the declarant was saying or because the nuances may have been understood either at the time the statement was made or later. These dangers are, however, even greater when the evidence is on affidavit, since one is then'really looking at the draftsman's interpretation of the interpretation which the witness put upon the words of the person whose speech she is reporting'.

3. The purpose for which the evidence is tendered: s 3(1)(c)(iii)

The State may seek to tender hearsay evidence to establish any number of issues. The court will consider whether the hearsay evidence is tendered to prove an element of the offence or to confirm evidence already tendered through some other means or as support for an inference which the State seeks to that the court should draw; etcetera There is no closed list. The purposes are best described in the following cases:

In Mamushe v S All S.A S.C.A the Supreme Court of Appeal warned against receiving hearsay evidence in a criminal trial on so crucial a matter as identification without confirmatory evidence on that issue in the form of objectively established facts (see para [18]).

In S v Makhakha such facts were found to exist. The court received the report of an anonymous person, probably the person who rescued the victim of a sexual attack, who elected to remain anonymous, in which he identified the accused as the assailant. The court held that the'mosaic of the hearsay evidence... completed the State's evidence and could in the circumstances not be ignored'. The interests of justice demanded its admission: it provided independent corroboration of the complainant's version; it connected with the circumstantial evidence in that it provided the initial link which led to the arrest of the accused; and it had high probative value. It was reliable in that the contents of the report turned out to be true in respect of the accused's name, identity and clothes worn by him at the time.

In S v Van Willing & another [2015] zasca the fact that the evidence was tendered to corroborate the evidence of the identifying witness contributed to its admissibility.

In S v Nene, where the hearsay was received in circumstances where its purpose was to corroborate a first report in a rape case and where it 'carrie[d] the hallmark of truthfulness and reliability in that it accorded in all the material respects with all the other evidence led by the State'.

In Hlongwane's (3) S.A (D), the fact that the hearsay evidence was tendered to establish a fundamental issue as opposed to a subordinate issue or side-issue was considered to be a factor militating against its admissibility.

In S v Rautenbach (1) S.A.C R G.S.J the court held hearsay would be more readily admitted where its purpose was to exonerate the accused.

4. The probative value of the evidence: s 3(1)(c)(iv)

The probative value of the hearsay evidence must be established in order to determine admissibility. In ascertaining whether evidence is sufficiently relevant a court will weigh the probative value of the evidence against the potential prejudice to the party against whom it is admitted.

Whether evidence is sufficiently probative to be worth receiving in view of its prejudicial features. Hearsay, of course has several prejudicial features. These features are, however, peculiar to that kind of evidence, and the law of evidence has seen fit to accommodate them within a separate framework.

Since the enactment of s 3, Subparas (4) and (6) of s 3(1)(c) enjoin a court to take into account both the probative value and the prejudicial effect of an item of hearsay evidence in determining its admissibility. This is a realistic acknowledgement of the fact that although the rules regarding relevance and hearsay may be severed for the purpose of analysis, they are co-determinants of the same practical inquiry—that of admissibility

In S v Ndhlovu and Others (2) S.A.C R S.C.A the court usefully spelt out the contents of this leg of the inquiry as follows: “'Probative value' means value for purposes of proof. This means not only, 'what will the hearsay evidence prove if admitted?' but will it do so reliably?”

In C v C & others zasca, the court observed that these two factors, which often weigh crucially in an analysis involving s 3(1)(c),'are usually considered together'. An item of evidence may, for instance, be worth receiving in view of its non-hearsay prejudicial features but not when these features are taken together with the dangers of hearsay. Conversely a court may be satisfied that the hearsay dangers are not sufficient alone to warrant the exclusion of an item of evidence yet conclude that the aggregate of these and the non-hearsay disadvantages is sufficient to outweigh the probative value of the evidence.

The court in S v Rautenbach (2) saker G.J considered the nature of the relationship between reliability, relevance and weigh. Spilg J warned, in particular, against isolating pieces of evidence to determine their probative value or relevance since they'may turn out to be rationally connected to a broader set of dynamics with which the case is concerned and against which a court is required to test the soundness of inferential reasoning during the fact-finding process'. He warned too that the admissibility of a hearsay statement was distinct from determining its weight. (emphasis added)

5. The reason why the evidence is not given by the person upon whose credibility the probative value depends: s 3(1)(c)(v)

The inherently prejudicial nature of hearsay evidence requires a party to establish the necessity of leading such evidence.

The inquiry focuses on the need to receive the evidence—with all its dangers and prejudicial qualities—in view of its probative value and any acceptable explanation for the absence of the out-of-court actor or declarant.

A court would be free to consider reasons for his non-availability, reasons such as those specified in s 34(1)(b) of the Civil Proceedings Evidence Act 25 of 1965 (which applies to criminal proceedings by virtue of s 222): the fact that such a person is deceased; is'unfit by reason of his bodily or mental condition to attend as a witness', or is'outside the Republic', or that'it is not reasonably practicable to secure his attendance' or that'all reasonable efforts to find him have been made without success'.

The reception of the hearsay evidence in Hlongwane's case (supra) was due largely to the fact that the persons on whose credibility the probative value of the evidence depended were justifiably afraid that violent reprisals would ensue in the event of their testifying.

In S v Ghumman, the declarant denyed that he had made the previous statements and reneged on his written statements, and was not called because the prosecutor'had no faith in the witness'.

In S v Saat (1) saker (W), the court accepted that the presence of the eyewitnesses, who were Mozambican policemen, could not be secured in South Africa and that reasonable attempts to bring them into the country, including efforts made by the South African branch of Interpol, had been unsuccessful.

In C v C & others zasca, the supreme court of appeal accepted that the fact that the witness is incapacitated or fears reprisal if she testifies may, in conjunction with other factors, weigh in favour of admitting the evidence. In that case, however, the excuse that the witness was'too anxious to testify' against her husband, whom she had accused of being responsible for a brutal assault on her, failed in the circumstances: it was,'obviously used to bolster the speculative inference that [she] honestly believed that [he] was responsible for the attack on her'.

The declarant in S v Shaik & others (1) S.A S.C.A refused to come to South Africa to testify. It was clear, further, that he would deny that the fax in question (of which he was the author) correctly reflected his understanding of the events it described. It was clear, the court found, that he was a dishonest person—a fact that did not necessarily mean that the fax was false—and the State could not have been expected to call him as a witness or to apply for his evidence to have been taken on commission—an avenue that would have been open to the appellants had they believed that his evidence might advance their case.

It should be stressed that even the death of the declarant is not, by itself, a sufficient ground for receiving an item of hearsay evidence. A court is required, in addition, to consider the other factors listed in para (c) and to satisfy itself that it is in the interests of justice that the evidence be admitted.

6. Prejudice to opponents: s 3(1)(c)(vi)

This factor is crucial to any approach that perceives the hearsay rule as being in any way a product of the adversarial mode of trial procedure. All evidence, of course, is potentially dangerous, since any witness may lie or be mistaken. To guard against these dangers, the adversary trial has developed certain techniques for detecting honest error and for exposing and discouraging dishonest error. What distinguishes hearsay from other evidence is not so much the extent of its inherent dangers as the extent to which these dangers may be detected and evaluated.

The adversarial techniques designed for this purpose can only properly be employed if directed at the person upon whose credibility the probative value of the evidence depends. The hearsay actor or declarant thus escapes the full force of their effective deployment. He does not testify in open court subject to the careful scrutiny of judge, triers of fact, adversary, counsel and spectators; he does not take the oath or its equivalent; he is not required to build up to the germane part of his testimony by establishing first a set of facts from which one may infer both a capacity and an opportunity for accurate perception; he does not speak in response to questions which shape the body of his ideas and set them in an appropriate and helpful context; and he is not subjected to cross-examination at the hands of the adversary or his legal representation.

To view this from a different perspective, the adversary is denyed the opportunity of subjecting this person to these procedures and is thereby prejudiced. And this prejudice is exacerbated where the subject matter of the hearsay evidence is complex, such as an opinion that requires the assessment of experts who are specialists in the field.

In C v C & others zasca, the court found that the plaintiff, having'had to endure the false allegation that he had sexually assaulted his erstwhile wife in the most brutal manner,... was denyed the opportunity to cross-examine her state of mind when these events were alleged to have unfolded'. She would, said Cachalia J.A, have had to answer many questions had he in fact had such an opportunity. These included: a material time discrepancy of some eight hours in her two reports of the alleged assault; how she could have made a mistaken identification of her attacker, whom she had observed closely during the attack; why she had averred that her husband had sexually abused her during the marriage, contrary to evidence she had given in domestic violence proceedings; and why she had not mentioned the attack to a medical consultant during a consultation two weeks after the alleged incident when she had made similar false allegations regarding previous abuse. The fact that the plaintiff had'dealt with the evidence' by responding to the allegations against him—a fact that influenced the High Court in its decision to admit her hearsay statement in terms of s 3(1)(c) —was correctly dismissed by Cachalia J.A since it was'no answer to the prejudice he suffered by not being able to test [her] version' (at [58]). This was especially true because her evidence was not corroborated in any material respect by the testimony of the police officers who had investigated the matter.

It will depend on the degree of the prejudice caused to the accused, even in a serious criminal case such as rape.

In S v Nene, for instance, the hearsay evidence of the absent declarant, who was the complainant's sister to whom the complainant had made a first report of the alleged rape, was held to be admissible. The degree of prejudice had to be considered to see if an injustice would be done to the other party. This was a matter of fact to be determined in the circumstances of each case. In Nene the prejudice was 'minimal at best' because, first, the evidence only corroborated the fact that the complainant had reported the rape to her sister on the day it allegedly occurred and, second, there was a 'warrant of reliability to be found in the probabilities, particularly the fact that the statement accord[ed] with all of the other evidence led by the State'.

In S v Mabilu & others, the question was the identity of the person who had incited a mob to burn the houses of the complainants. A State witness testified that he had been told by a boy who witnessed the events that the mob had been led by a person other than the accused. This evidence was obviously hearsay, but the court admitted it because, first, it would have led to a'travesty of justice' to exclude it, in that the nature of the evidence was'such that if ignored it might lead to [the] wrong people being convicted'; and, second, the State (whose witness had disclosed the hearsay communication) would not suffer any prejudice if the evidence was received'since it emanate [d] from the State's version, and they had the opportunity to investigate its veracity but had failed to do so'. It was in the interests of justice to receive the hearsay evidence.

In a criminal case – the rights of the accused in terms of section 35(3) of the Constitution must be considered. The trial must be fair – National Director of Public Prosecutions v King zasca"Fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment but also requires fairness to the public as represented by the state. This does not mean that the accused's right should be subordinated to the public's interest in the protection and suppression of crime; however, the purpose of the fair trial provision is not to make it impracticable to conduct a prosecution."

In South Africa the courts would have to create a coherent theory out of the following ingredients: s 35(3)(i), the limitation section (s 36(1)) and the (fortunately) flexible provisions of s 3(1) of the Law of Evidence Amendment Act of 1988. And in S v Ndhlovu & others (2) saker S.C.A the Supreme Court of Appeal has responded to these challenges by holding that s 3 does no violence to s 35(3)(i) since the right to'challenge evidence' does not, where the interests of justice require the admission of an item of hearsay evidence, encompass the right to cross-examine the original declarant. The court in that case rejected the argument that the strengthening of the State case by the hearsay evidence could be considered as constituting'prejudice' for the purpose of s 3(1)(c)(vi): as Cameron J.A put it, a'just verdict, based on evidence admitted because the interests of justice require it, cannot constitute"prejudice". There was, however, some prejudice where the original declarant testified but disavowed his previous statement, since the benefits of cross-examination are largely negated.

7. Any other factor which in the opinion of the court should be taken into account: s3(1)(c)(vii)

Although the common-law exceptions to the hearsay rule are obsolete, they are not irrelevant. The common-law exceptions are factors that a court may take into account in exercising its discretion to admit the evidence in the interests of justice.

There is no list of factors which the court may take into consideration. Any factor that is relevant to the just administration of justice may be considered.

217 Admissibility of confession by accused

(1) Evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence: Provided-

(a) that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in section 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; and

(b) that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question-

(i) be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such documents to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such person by the magistrate; and

(2) be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto.

(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under proviso (b) to subsection (1).

(3) Any confession which is under subsection (1) inadmissible in evidence against the person who made it, shall become admissible against him-

(a) if he adduces in the relevant proceedings any evidence, either directly or in cross-examining any witness, of any oral or written statement made by him either as part of or in connection with such confession; and

(b) if such evidence is, in the opinion of the judge or the judicial officer presiding at such proceedings, favourable to such person.

It is important to distinguish between a confession and an admission – the requirements for admissibility are different.

Therefore, a prosecutor must first identify whether the statement is a confession or and admission and then determine whether Section 217 or Section 219 A will be applicable.

What is a confession?

No statutory definition of a confession is provided. It is therefore necessary to look at the common law. In R v Becker 1929 A.D at 171 De Villiers A.C.J concluded that a confession could only mean 'an unequivocal acknowledgement of guilt, the equivalent of a plea of guilty before a court of law'. It is therefore an extra-curial admission of all the elements of the offence charged.

The unequivocal admission of all the elements of the offence must not contain a description of any possible defence.

In S v Mudau zasca it was held that the statement of the first appellant had been wrongly classified as a confession. He claimed that he had acted under the coercion of the second appellant, with the result that he was contesting the element of wrongfulness, so that the statement did not constitute an unequivocal admission of every element of the offence.

In S v Molimi (2) saker C.C – the statement of the accused admitted that he was involved and played a role in the planning of the robbery. However, he stated that he did not participate in the execution of the robbery.

The state relied on the Doctrine of common purpose.

This statement was regarded as an admission that fell short of constituting a confession. The Constitutional Court reasoned that the statement showed 'that [the] accused . . . did not play any active part in the robbery' and that it was, further, 'still open to [the] accused . . . to raise a defence of dissociation from the common design to rob'. What was critical, in her assessment, was that the accused asserted that he left the scene after an assurance by one of the others that everything was still fine, and before the robbery took place. The statement, coupled with the accused's sudden departure, could not be said to 'amount to an unequivocal acknowledgement that accused 3 participated in the robbery under a common purpose with those who actually committed the robbery'.

Requirements for admissibility

S 217(1) prescribes the requirements for the admissibility of a confess:

1. it must be shown that the confession was made by the acci

2. freely and voluntarily.

3. while he was in his sober senses, and

4. without having been unduly influenced thereto

5. Must be made to a magistrate or justice (justice of the peace)

6. Apart from s 217(1), however, it has become increasingly apparent that the question of the admissibility of admissions and confessions has significant constitutional implications, the most notable being the duty to inform the accused of various important constitutional (and, possibly, other) rights.

This means that two separate by related inquiries will be required to establish whether the confession will be admissible:

a. The requirements set out in Section 217 and b. The requirement that the accused receives a fair trial.

S v Gcam-Gcam (2) saker S.C.A, where this proposition was expressly approved by the Supreme Court of Appeal.

In S v Magwaza (1) saker S.C.A the importance of considering the constitutional requirements in addition to the provisions of s 217 is brought into sharp relief by what was said by the Supreme Court of Appeal, where the trial court and the full court focussed solely on the voluntariness of the pointing out and confession. Both were criticised for not touching'even tangentially, on the Constitution's exclusionary provision—s 35(5)' when there was certainly reason to do so.

In S v Bantom & others, where the court ruled inadmissible a confession made by a juvenile suspect in these circumstances: the juvenile accused did not have a parent or guardian present; he expressly sought legal representation, but his request was ignored; he made the statement after the detectives had told him he could get 25 years' imprisonment if he did not tell the truth; and he was making the statement because he was'expecting to be released from police custody'. The statement would, fall foul of the requirements of s 35(3)(f) and (g) of the Constitution (the right to legal representation) as well as s 35(3)(h) (the right to silence), and its reception would render the trial unfair or would otherwise be detrimental to the administration of justice as contemplated by s 35(5). But it is clear that the provisions of s 217 of the Criminal Procedure Act relating to voluntariness could also have been invoked with the same result.

Constitutional implications: The requirement that the accused be warned of and allowed to exercise certain rights

There are several provisions of the Constitution that relate in one way or another to the question of the admissibility of an admission or a confession in criminal proceedings.

Section 35(1)(c) provides that every person who is arrested for allegedly committing an offence has the right'not to be compelled to make any confession or admission that could be used against that person'.

Section 35(1)(a) and (b) Such a person is also given the right to remain silent as well as to be informed promptly of that right and of the consequences of not remaining silent.

Section 35(4) this in a language that the person understands.

Section 35(2) the right that detained persons have'to choose, and to consult with, a legal practitioner, and to be informed of this right promptly', again in a language that he or she understands.

Section 35(3) the right that every accused person has to a fair trial, which includes (but is not limited to) the right to be presumed innocent and the right not to be compelled to give self-incriminating evidence.

It should be noted that the Supreme Court of Appeal has held, in S v Mabuza & others (2) saker S.C.A, that while the failure to inform an accused person of his rights might render a trial unfair, the failure to record such a warning cannot, by itself, render the trial unfair.

In S v Ntuli (1) S.A C.C which required criminal trials to be conducted according to the notions of basic fairness and justice. The court went on to say that it was not every breach of the provisions of the interim Constitution that led automatically to the trial being unfair, since fairness was, as the Constitutional Court emphasised in Key v Attorney-General, Cape Provincial Division & another (2) saker C.C, 1996 (4) S.A C.C, an issue that had to be determined on the facts of each case.

The Constitutional Court in S v Zuma and Others (1) S.A.C R C.C: found that the presumption in s 217(1)(b)(ii) placed on the accused the burden of proving that the confession was not made freely and voluntarily and required him to discharge the onus on a balance of probabilities. The court held that the common-law rule placing the burden of proof on the state to prove that a confession was made voluntarily was integral and essential to: the right to remain silent after arrest; the right not be compelled to make a confession; and the right not to be a compelling witness against oneself. The court held that by reversing the burden of proof all these rights would be seriously compromised and undermined. The Constitutional Court found that the right to a fair trial conferred by s 25(3) of the Interim Constitution was broader than the list of specific rights listed in that section. It held that the right to a fair trial embraces a concept of substantive fairness and consequently the common-law rule on the burden of proof was inherent in the rights specifically mentioned in s 25(2) and 25(3). The court concluded that s 217(1)(b)(ii) violated the provisions of the Interim Constitution and was invalid.

218 Admissibility of facts discovered by means of inadmissible confession

(1) Evidence may be admitted at criminal proceedings of any fact otherwise in evidence, notwithstanding that the witness who gives evidence of such fact, discovered such fact or obtained knowledge of such fact only in consequence of information given by an accused appearing at such proceedings in any confession or statement which by law is not admissible in evidence against such accused at such proceedings, and notwithstanding that the fact was discovered or came to the knowledge of such witness against the wish or will of such accused.

(2) Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by such accused, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against such accused at such proceedings.

Duty of the prosecutor to warn the court—It is the duty of the prosecutor who wants to present an admission of the accused, and who has information that there is a possibility that such admission forms part of an inadmissible confession, to investigate the surrounding circumstances and to determine whether the admission may be proved. If the admission is doubtful, the presiding officer must be warned. When an admission is proved without further ado, the court must accept that the admission is not connected to an inadmissible confession. The prosecutor must not leave it to the court to open the investigation to determine whether the admission forms part of an inadmissible confession. Nevertheless it remains the overriding duty of the presiding officer to ensure that an admission is properly admissible before it is accepted as part of the evidentiary material

Subsection (1) is concerned with the proof of facts which are discovered or determined as a result of inadmissible information which comes from the accused – in other words, what was found or discovered.

If as a result of the accused's inadmissible or even forced confession, a murder weapon or bloodstained clothing is found (which could possibly be connected with the accused by means of other evidence), evidence that such objects were found is admissible. Irrespective of how it was obtained, the information itself is not excluded. In Samhando the court also, because of the so called"theory of confirmation by subsequently discovered facts", held that, if something is discovered as a result of the inadmissible confession, it can then also be proved that the discovery was made because of information the accused provided.

Section 218(2) - In terms of this subsection evidence that the accused pointed out anything may be admitted as well as evidence that any fact or thing was discovered in consequence of information given by the accused, even though the pointing out or information forms part of an inadmissible confession or statement.

A pointing out has been defined as “an overt act whereby the accused indicates physically to the inquisitor the presence or location of some thing or some place actually visible to the inquisitor”. Evidence of a pointing out will be admissible even if no concrete facts are discovered as a result of the pointing out. It is only necessary to show that the accused knew of a fact relevant to his guilt.

In R v Tebetha (2) S.A (A) the accused was arrested and interrogated in connection with a robbery. The police, prior to arresting the accused, had already found the van and empty tins used to carry money. The court held that the fact that the accused later pointed out the place where the van and tins had been found was admissible in evidence notwithstanding that the pointing out was conducted as a consequence of an inadmissible statement.

This subsection does not permit statements accompanying the pointing out to be admitted into evidence and the courts have held a confession in the guise of a pointing out will not be admissible.

Requirements for admissibility

In Sheehama the court noted that the reliability argument was dependent on an element of discovery and was therefore not applicable where the pointing out simply confirmed already known facts.

This approach has led the courts to express disapproval of police practices that might compromise the discovery element in a pointing out. The courts have found the following practices to be undesirable:

1. a member of the investigating unit being involved in the pointing out:

2. the involvement of any person in conducting the pointing out who has prior knowledge of the relevant places or objects;

3. using an interpreter, during the course of the pointing out, who is attached to the investigating unit.

However, such practices will not automatically render the evidence of the pointing out inadmissible.

In each case the court will determine whether the accused acted freely and voluntarily while in sound and sober senses.

219 Confession not admissible against another

No confession made by any person shall be admissible as evidence against another person.

The section is clear – a confession is only admissible against the accused making that confession.

Previously, admissions were not included in this section, and in terms of s 3(1)(c) of the Law of Evidence Act, the State could apply that the contents of the admissions made by one accused be used against another accused.

However, in Litako and Others v S (3) S.A S.C.A The State's case rested upon eyewitness evidence, ballistics evidence and the extra-curial statement of the first appellant. The eyewitness and ballistics evidence in and of themselves were inadequate to found a conviction on any of the charges preferred against the appellants. The State's case therefore hinged on the extra-curial statement of the first appellant.

The trial court referred to the judgment of S.C.A in S v Ndhlovu & others (2) saker S.C.A and the judgment of the Constitutional Court in S v Molimi zack (2) saker C.C as authority for admitting the statement by the first appellant as evidence against the others in terms of the provisions of s 3(1)(c) the Act.

The S.C.A stated: “The prohibition against the confession of one accused being used against another is captured in s 219 of the Criminal Procedure Act 51 of 1977 (the C.P.A). Admissions are regulated by s 219 A of the C.P.A. It provides that evidence of an admission made extracurially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings in relation to that offence. It does not contemplate such an admission being tendered as evidence against anyone else.”

The S.C.A stated further:"As best as we can discern, the first reported case in which the State appears to have invoked the Act in application to the admissions of one accused being tendered against his co-accused was S v Ndhlovu (1) saker (W) (per Goldstein J) (Ndhlovu in the high court). On appeal to this court, Cameron J.A identified'the main question in the appeal' as'whether an accused's out-of-court statements incriminating a co-accused, if disavowed at the trial, can nevertheless be used in evidence against the latter'.

That question, as a perusal of the judgment reveals, was answered, with reference to the Act, in the affirmative. It thus represented a seismic shift in our law."

The S.C.A found that: “In my view, Ndhlovu (supra) too readily dismissed concerns expressed in S v Ramavhale (1) saker (A), which cautioned (at 649 C D that a court should hesitate long in admitting hearsay evidence that plays a decisive or even a significant part in convicting an accused person. Ndhlovu (supra) makes no attempt to reconcile the incongruity between the bar created by section 219 of the Criminal Procedure Act 51 of 1977 and its application of section 3 of the Law of Evidence Amendment Act 45 of 1988. Moreover, in dealing with the constituent parts of section 3, Ndhlovu offers no guidance as to how the receipt of the extra-curial admissions which it allows under that section, should be approached given the rationale at common-law for their exclusion or what role, if any, the various common-law safeguards should play. In effect it is as if a pen has been struck through those well recognised common-law safeguards and they have been summarily jettisoned.”

The S.C.A reaffirmed the view that hearsay evidence in terms of s3 of the Law of Evidence amendment act, is admissible where having due regard to the subsections of the constitution, it is in the interests of justice to admit such evidence but stated clearly that the evidence of a confession or admission made by one accused can not be admissible against the co-accused/s.

219 A Admissibility of admission by accused

(1) Evidence of any admission made extrajudicially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings relating to that offence: Provided that where the admission is made to a magistrate and reduced to writing by him or is confirmed and reduced to writing in the presence of a magistrate, the admission shall, upon the mere production at the proceedings in question of the document in which the admission is contained—

(a) be admissible in evidence against such person if it appears from such document that the admission was made by a person whose name corresponds to that of such person and, in the case of an admission made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the admission and any question put to such person by the magistrate; and

(b) be presumed, unless the contrary is proved, to have been voluntarily made by such person if it appears from the document in which the admission is contained that the admission was made voluntarily by such person.

(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under subsection (1).

The requirements for admissibility

1. At common law an extra-judicial statement made by an accused may not be admitted into evidence unless it is proved to have been made freely and voluntarily. The term “freely and voluntarily” means that the statement must have been made by the accused without promise, threat, coercion or undue influence.

2. The admission can be made to any person. The State will need to prove that the statement was given freely and voluntarily.

3. However, if it is made to a magistrate, and reduced to writing, it is admissible on mere production thereof.

4. If an interpreter is used for communication between the accused and the magistrate, then a certificate from the interpreter must be provided to prove that the contents of the communication was true and correctly conveyed to the best ability of the interpreter.

5. Section 1 b provides that, if the statement is made to the magistrate, it will be presumed that the statement was given freely and voluntarily – and the accused will need to prove that it was not given freely and voluntarily.

In S v Zuma and Others (supra) the Constitutional Court found a similar presumption contained in s 217(1)(b)(ii) of the C.P.A, pertaining to confessions, to be unconstitutional in that by placing the burden of proving the absence of voluntariness on the accused it violated the presumption of innocence.

The provisions of section 219 A (1) (b) has not been evaluated by the constitutional court, but the consensus among scholars and authors is that it is doubtful that the presumption will pass constitutional muster and will likely be ruled unconstitutional.

In addition to the above requirements, the rights enshrined in Section 35 of the Constitution must also be considered to determine whether the accused would receive a fair trial in the circumstances, if the statement is admitted into evidence. (see discussion under s217 above)

Note: the National Instructions for admissions made by children: Paragraph 22 of'National Instruction 2 of 2010: Children in Conflict with the Law' (published under G.N 759 in G.G 33508 of 2 September 2010 and issued by the Minister of Police in terms of s 97(5) of the Child Justice Act 75 of 2008) – not discussed in this guide

220 Admissions

An accused or his or her legal adviser or the prosecutor may in criminal proceedings admit any fact placed in issue at such proceedings and any such admission shall be sufficient proof of such fact.

Purpose of the section

This section originally intended to relieve the State of the necessity of proving allegations admitted by the accused. It now covers admissions made by the prosecution as well, so it may be seen more generally as a provision that allows for the proof of facts that are not in dispute.

Any fact that is admitted in terms of s220, relieves the other party of the burden of presenting evidence to prove such fact.

Who may make a formal admission

Admissions are usually made by the legal representative on behalf of the accused. The court will confirm from the accused whether such admissions are in accordance with the instructions given to the legal representative.

The prosecutor on behalf of the state is also entitled to make admissions in terms of this section.

What may be admitted

Only facts alleged by the State may be admitted by the accused in terms of s 220. The section concerns the acceptance of facts alleged by the opposite side and not by the accused himself.

It was held in S v Mazina [2017] zasca 22 (unreported, S.C.A case no 494/2016, 24 March 2017) that '[a] formal admission can only be made in respect of unfavourable facts and must be an admission, properly so called'. The fact that the appellant had said, in his statement made under s 115, that he stabbed the deceased in self-defence because he feared for his life could not, then, be used to create reasonable doubt as to his guilt. Where, however, the State elects to accept an admission such an admission constitutes sufficient proof of every fact that it covers. If explanations or statements appear with the admitted fact the court may take notice of them subject to further evidence that may be adduced, but it is only the 'pure fact' that was put in issue and admitted that is regarded as furnishing sufficient proof.

Note for Practice:

Be careful when accepting s220 admissions.

If the accused admits a certain fact but gives an explanation or a mitigation for the that conduct – you will be bound by the contents of the admission which was accepted. Section 220 admissions must describe admissions of the facts in issue – you are cautioned – do not Accept Section 220 Admissions which contain explanations and mitigations

An accused may only admit facts, not evidence of those facts.

Care should therefore be taken in regard to the form in which the admissions are made. If the accused consents to the reception of the evidence it becomes admissible in terms of s 141(3)(b). It does not, however, constitute'sufficient proof' of the facts alleged unless the accused formally admits those facts in terms of s 220.

Effect of formal admissions in other proceedings

A formal admission only binds a party in the proceedings at which it is made. It may, however, be proved against him at other proceedings in the same way that any informal admission may be proved. It would, at those proceedings, not constitute 'sufficient proof' of the facts to which it relates; it could thus be explained away by the accused and its weight and cogency would fall to be assessed in the same way as any other evidence adduced at those proceedings.

Effect vis-à-vis a co-accused

An admission which one accused makes in terms of s 220 cannot relieve the State of its burden of proving such fact with regard to the complicity or guilt of a co-accused who has placed this fact in issue: S v Long (1) S.A N.C

The effect of formal admissions is drastic in that they dispense with the need for proof and result in the shortening of the criminal trial. Because of the drastic effect of this section, the courts have been at pains to insist on various measures to protect the accused.

In S v Mavundla (4) S.A (N) the court set out the duty of a judicial officer in respect of an unrepresented accused as follows: he must satisfy himself that the accused's decision to make the admission has been taken with full understanding of its meaning and effect, that he is not under a misapprehension that he is obliged or expected to supply the State or the court with it, and that it appears to be truly voluntary in all other respects. This duty, the learned judge added, is especially important when the fact that the accused proposes to admit is beyond the range of his personal knowledge, such as the cause of death of a person who died of multiple injuries. It is also the duty of the judicial officer to ensure that an undefended accused cannot be misled to his prejudice by the prosecutor's failure to make any comment on admissions made by the accused to the extent that they are to his advantage in the further handling of his defence.

The courts further require that the admission be made in a formal manner and that it be fully and accurately recorded.

: Image summary: A text document outlining section 221 regarding the admissibility of certain trade or business records. It specifies the conditions under which documents compiled in the course of business are admissible as evidence, particularly when the original informant is unavailable, and describes how courts should determine the weight and admissibility of such statements. The purpose of the text is to establish the legal criteria for using business records as evidence in criminal proceedings.

(1) In criminal proceedings in which direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, upon production of the document, be admissible as evidence of that fact if—

(a) the document is or forms part of a record relating to any trade or business and has been compiled in the course of that trade or business, from information supplied, directly or indirectly, by persons who have or may reasonably be supposed to have personal knowledge of the matters dealt with in the information they supply; and

(b) the person who supplied the information recorded in the statement in question is dead or is outside the Republic or is unfit by reason of his physical or mental condition to attend as a witness or cannot with reasonable diligence be identified or found or cannot reasonably be expected, having regard to the time which has elapsed since he supplied the information as well as all the circumstances, to have any recollection of the matters dealt with in the information he supplied.

(2) For the purpose of deciding whether or not a statement is admissible as evidence under this section, the court may draw any reasonable inference from the form or content of the document in which the statement is contained, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be a certificate of a registered medical practitioner.

(3) In estimating the weight to be attached to a statement admissible as evidence under this section, regard shall be had to all the circumstances from which any inference may reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular, to the question whether or not the person who supplied the information recorded in the statement, did so contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not that person or any person concerned with making or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts.

(4) No provision of this section shall prejudice the admissibility of any evidence which would be admissible apart from the provisions of this section.

“business” includes any public transport, public utility or similar undertaking carried on by a local authority, and the activities of the Post Office and the Railway Administration;

“statement” includes any representation of fact, whether made in words or otherwise.

Section 221 allows a statement contained in a document to be received as evidence of the fact it tends to establish upon the mere production of the document, provided:

(a) the document is or forms part of a record relating to any trade or business and has been compiled in the course of that trade or business from information supplied directly or indirectly by persons who have or may reasonably be supposed to have personal knowledge of the matters dealt with; and

(b) the person who supplied the information is unable, for one of the reasons mentioned in s 221(1)(b), to testify to that fact.

(There is a substantial overlap between this section and s 222 (which incorporates Part 6 of the Civil Proceedings Evidence Act 25 of 1965).

Requirements for admissibility

1. Direct oral evidence admissible

- The statement in the document will not be admissible as evidence of the fact that it tends to establish if direct oral evidence of that fact would not be admissible. Thus if direct oral evidence of that fact is legally irrelevant (see s 210) or is hit by any of the exclusionary rules the documentary evidence will be excluded.

2. 'Statement'

- A'statement' is defined in sub-s (5) to include'any representation of fact, whether made in words or otherwise'. This would seem to include opinion and implied assertions.

3. 'Document'

- A'document' is defined in sub-s (5) as including'any device by means of which information is recorded or stored'. As Van Wyk points out, however, the meaning of the term'document' is further restricted by s 221(1)(a) which stipulates that the document must be or form part of a record relating to any trade or business. A'record' is not defined in the Act and it may lead to problems of interpretation. The document need not, however, form part of a continuous record as required by s 222.

4. A 'trade or business'

- A'business' is defined as including'any public transport, public utility or similar undertaking carried on by a local authority, and the activities of the Post Office and the Railways Administration'. It is submitted that the terms'trade' and'business' will probably be given a wide interpretation and will include, for instance, a bank. It is essential, however, that the document be compiled in the course of the trade or business.

5. 'Personal knowledge'

- Section 221 does not require that the maker have personal knowledge of the facts described in the document. It suffices for the purpose of this section that the document was compiled from information supplied directly or indirectly by persons who have or may reasonably be supposed to have personal knowledge of the matters dealt with in the information supplied.

6. Supplier of information unable to testify to the fact in issue

- It is further required that the person who supplied the information recorded in the statement either

(i) is dead; or

(2) is outside the Republic; or

(3) is unfit by reason of his physical or mental condition to attend as a witness; or

(4) cannot with reasonable diligence be identified or found; or

(v) cannot reasonably be expected, having regard to the time which has elapsed since he supplied the information as well as all the circumstances, to have any recollection of the matters dealt with in the information he supplied

Code summary: This provision extends the application of sections 33 through 38 of the Civil Proceedings Evidence Act, 1965, to criminal proceedings, ensuring that the rules governing evidence in those specific civil sections are applied to criminal cases with the necessary adjustments.

Code summary: Section 223, Admissibility of dying declaration, is a repealed legal provision. It previously governed the admissibility of dying declarations but was removed by section 9 of the Law of Evidence Amendment Act 45 of 1988.

Judicial notice may be taken of public Acts of Parliament, the courts do not at common law take judicial notice of delegated legislation.

Section 224, however, requires judicial notice to be taken of any law or other matter published in the Gazette or Provincial Gazette. No judicial notice is, however, taken of the validity of such delegated legislation, which may be contested on grounds of unreasonableness or vagueness or on the ground that it was ultra vires. Nor is notice taken of subordinate legislation that is published elsewhere than in an official Gazette.

A court is entitled to take judicial cognisance of the contents of these Gazettes without their formal production in evidence.

Paragraph (b) makes it clear that judicial notice may be taken of legislation published by someone other than the Government Printer.

Algorithm 222 summary: 222 Application to criminal proceedings of certain provisions of Civil Proceedings Evidence Act, 1965, relating to documentary evidence, extends specific rules regarding the admissibility and handling of documentary evidence from civil proceedings to criminal proceedings.

Algorithm 224 summary: 224 Judicial notice of laws and other published matter establishes the legal standard for which materials are automatically recognized by a court in criminal proceedings without requiring formal proof. It mandates that judicial notice be taken of any law, any matter published in a provincial Gazette or Official Gazette, and any law published under the authority of the Government Printer.

225 Evidence of prints, bodily samples or bodily appearance of accused

(1) Whenever it is relevant at criminal proceedings to ascertain whether—

(a) any fingerprint, bodyprint or bodily sample, as defined under Chapter 3, or the information derived from such prints or samples, of an accused at such proceedings corresponds to any other fingerprint, bodyprint, bodily sample, crime scene sample or the information derived from such samples; or

(b) the body of such an accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, evidence of the fingerprints or bodyprints of the accused or that the body of the accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, including evidence of the result of any blood test of the accused, shall be admissible at such proceedings.

(2) Such evidence shall not be inadmissible by reason only thereof that the fingerprint, bodyprint, or bodily sample as defined in Chapter 3, in question was not taken or that the mark, characteristic, feature, condition or appearance in question was not ascertained in accordance with the provisions of sections 36A, 36B, 36C, 36D, 36 E or 37, or that it was taken or ascertained against the wish or the will of the accused concerned.

Subsection (1) provides for the admissibility of evidence of fingerprints or body-prints of the accused or'bodily sample' as defined in Chapter 3 of the Act whenever the correspondence between such evidence and other evidence is relevant, and for the admissibility of evidence of bodily marks, characteristics, distinguishing features or the condition or physical appearance of the accused whenever the existence of such marks, features, etcetera is relevant.

Subsection (2) provides that such evidence will not be inadmissible solely because it was procured contrary to the provisions of s 36A, 36B, 36C, 36D, 36 E, or 37, or against the wish or will of the accused.

The relevance of the evidence

Such evidence may only be received when it is relevant to consider whether the prints of the accused or the sample in question corresponded with any other prints or sample, or whether the body of the accused showed any marks, characteristics, features, etcetera

Section 225(2)

At common law no man may be compelled to supply evidence that incriminates him, either before or during the trial: R v Camane & others A.D Innes C.J (575) cited with approval the view of Wigmore that it is not merely compulsion but'testimonial compulsion' that forms the kernel of this rule. Thus a man may be compelled to furnish what Wigmore calls'autoptic' evidence, where he is really passive and is required to show his complexion, stature, marks or features. He cannot, however, be asked to go further and to give evidence against himself, whether by words, writing or conduct.

It was held in S v Skhosana (2) saker G.J that a photograph taken of the appellant and his co-accused by a security officer on his cell phone after the alleged commission of an offence was admissible even though the applicant's rights in terms of s 35 of the Constitution had not been explained to him prior to the taking of the photograph. The court relied on s 37(1)(d) of the Act, which provides that any police officer may'take a photographic image or may cause a photographic image to be taken' of any arrested person, and did not regard the fact that the photograph was taken by a security officer, and not a police officer, as significant.

Does the taking of an accused's fingerprints or other bodily prints against his wish or will do violence to the Constitution?

The courts have found that this section does not offend against the rights gaunenteered in the constitution.

In S v Huma & another (2) (2) saker (W) - the court considered whether constitutional rights had been infringed: his right to dignity contained in ss 10 and 11 (see, now, ss 10 and 12 of the 1996 Constitution) and his right to remain silent and not to be a compelling witness against himself contained in s 25(3)(c) and (d) (see, now, s 35(3)(h) and (j) of the 1996 Constitution).

The court held: As for dignity, the taking of fingerprints did not constitute inhuman or degrading treatment but that, even if it did, it constituted a reasonable and necessary limitation of the right since it was necessary to enable the administration of justice to run its proper course. As far as self-incrimination was concerned, he concluded that s 25(3)(d) of the Constitution was'merely a codification of the common-law principle against self-incrimination and [did] not take the common-law principle any further'. It was clear that the principle'nemo tenetur se ipsum accusare' related, at common law,'only to oral or documentary testimonials by an accused person'.

The court referred to the decision of the United States Supreme Court in Schmerber v State of California U.S (1966), where it was held (albeit by a majority of only one) that the taking of a blood sample from a motorist against his will in order to determine whether he was under the influence of liquor did not violate his protection under the Fifth Amendment to the United States Constitution (which was similar to that contained in s 25(3)(d) of the interim Constitution). Brennan J held in that case that the privilege was'a bar against compelling “communications” or “testimony”, but that compulsion which [made] a suspect or accused the source of “real or physical evidence” [did] not violate it'.

The court agreed with this proposition and held that the position with regard to fingerprints was an 'a fortiori case' compared to that of taking blood samples.

A similar conclusion was reached in S v Maphumulo (2) saker (N), where the court held that the taking of an accused's fingerprints under compulsion did not violate his rights as contained in ss 10, 25(2)(c) or 25(3)(d) of the interim Constitution.

The approach of the courts in respect of fingerprints has been followed, too, in the context of voice samples: see Levack & others v Regional Magistrate, Wynberg & another 2003 (1) saker S.C.A. Such evidence, too, is autoptic, and the compulsion of an accused to furnish a voice sample does not, of itself, constitute a violation of the right against self-incrimination or the right to a fair trial.

Many questions regarding handwriting samples remain to be resolved. Does the taking of such samples involuntarily or in circumstances where no legal representation was afforded an accused person or his rights to silence or to legal representation were not explained to him, mean that the evidence was improperly obtained within the meaning of s 35(5) of the Constitution? If so, would the admission of the evidence render the trial unfair or be detrimental to the administration of justice? Can such evidence be viewed as 'autoptic', 'testimonial' or 'communicative'? It is not autoptic in the sense that Wigmore used that term, since the person is not passive in the same way that a person who has fingerprints taken is; as we submitted above, handwriting requires a co-operative, volitional act and a sample cannot be acquired through observation or, even, the use of superior force in the case of a reluctant accused. Is it, then, either 'testimonial' or 'communicative'?

Everything, it seems, depends on the circumstances. If an accused who is forced to render a handwriting sample realises that he will, by so doing, communicate to the authorities the notion that he is the author of the sample that incriminates him, then it will be an assertive self-incriminatory act expressing his subjective intention to communicate, albeit involuntarily, a thought to another. It differs from admissions and confessions in that it is objectively verifiable by expert evidence and is not overtly 'testimonial' in the sense that an admission or a confession is. But whether this is enough to save such evidence from inadmissibility remains to be seen.

In South Africa, many issues relating to the taking of bodily samples and the creation of a National Forensic D.N.A Database are now regulated by statute. The Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 did not introduce any procedure specifically related to D.N.A, since it was decided that D.N.A procedures would be dealt with in separate legislation which would, as with Act 6 of 2010, amend the Criminal Procedure Act. The result was the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 which, except for s 2, came into effect on 31 January 2015. This Act contains detailed provisions governing many aspects of D.N.A evidence.

226 Evidence of no sexual intercourse between spouses admissible

For the purposes of rebutting the presumption that a child to whom a married woman has given birth is the offspring of her husband, such woman or her husband or both of them may in criminal proceedings give evidence that they had no sexual intercourse with one another during the period when the child was conceived.

227 Evidence of character

Evidence of character and previous sexual experience (1) Evidence as to the character of an accused or as to the character of any person against or in connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, is alleged to have been committed, shall, subject to the provisions of subsection (2), be admissible or inadmissible if such evidence would have been admissible or inadmissible on the 30th day of May, 1961.

(2) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom a sexual offence is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no evidence or question in cross examination regarding such sexual experience or conduct, shall be put to such person, the accused or any other witness at the proceedings pending before the court unless—

(a) the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such question; or

(b) such evidence has been introduced by the prosecution.

Code summary: This legal procedure outlines the criteria for granting an application to introduce specific evidence or questioning in court. The process begins with the court's authority to exclude unnecessary persons from the hearing. The court then evaluates the relevance of the requested evidence, balancing the interests of justice and the accused's right to a fair trial against the complainant's dignity and privacy. Key considerations include whether the evidence is fundamental to the defense, rebuts prosecution evidence, or explains physical evidence like pregnancy or injury. Crucially, the court is prohibited from granting the application if the evidence is intended to suggest that a complainant's sexual history makes them more likely to have consented or less believable. The procedure concludes with a requirement for the court to provide and record the reasons for its decision.

The general rule is that the accused may adduce evidence of his own good character, but the prosecution is prohibited from adducing evidence of his bad character, subject to specified exceptions.

The reason for permitting evidence of the accused's good character is to be found in the dictum of Willes J in R v Rowton, in which the court held that "such evidence is admissible because it renders it less probable that what the prosecution has averred is true. It is strictly relevant to the issue." Evidence of the accused's bad character is excluded in English law because it might "have a disproportionately prejudicial effect upon the jury" and because it is generally considered to be irrelevant.

There are a number of ways in which an accused may try and establish her good character: by the accused giving evidence herself, by calling witnesses to testify on her behalf, or by cross-examining prosecution witnesses. However, once the accused herself, or through calling witnesses, adduces evidence as to her good character the prosecution can respond by introducing evidence of bad character.

The accused may also render herself liable to cross-examination as to bad character in terms of s 197 of the C.P.A.

Evidence of the accused's bad character

Once the accused has adduced evidence as to her own good character the prosecution may respond in three different ways: (1) adducing evidence of bad reputation; (2) cross-examining character witnesses; and (3) cross-examining the accused. 13

If the accused attacks the character of prosecution witnesses but does not adduce evidence as to her own good character, the prosecution may not adduce evidence of the accused's bad character.

In these circumstances the prosecution will be limited to cross-examining the accused as to character in terms of s 197(a) of the C.P.A.

Section 197

Section 197 protects the accused against cross-examination that is directed at showing bad character or his previous criminal record. However, the accused will lose this protection (or "shield") by: adducing evidence as to his own good character; attacking the character of a prosecution witness; or by testifying "against any other person charged with the same offence or an offence in respect of the same facts".

Character of the complainant

In all criminal cases where the complainant testifies he or she may be cross-examined, and the cross-examiner may ask questions that are pertinent to exposing the witness's credibility or lack thereof.

However, the point of departure is that the character or disposition of the complainant is not relevant to credibility. Consequently, evidence which is solely directed at establishing that the complainant has a bad character is prohibited, as is evidence of good character.

Sexual Offences

There is a common-law rule that in a case involving a charge of rape or indecent assault the accused may adduce evidence as to the complainant's bad reputation for lack of chastity.

In terms of the common law the defence may question the complainant as to her previous sexual relations with the accused. The accused is prohibited from leading evidence of the complainant's sexual relations with other men. However, the complainant may be questioned on this aspect of her private life in cross-examination as it is considered relevant to credibility. Evidence to contradict any denials may be led only if such evidence is relevant to consent.

The common-law provisions have been criticised on a number of grounds:

(a) whilst cross-examination concerning prior sexual history traumatises and humiliates the victim, the evidence it elicits is irrelevant and at most establishes a general propensity to have sexual intercourse;

(b) evidence of this nature is held to be inadmissible in other cases and there are no grounds for admitting it where the case is of a sexual nature;

(c) the possibility of such cross-examination deters victims from reporting the offence. The Legislature was therefore amended to respond to these criticisms by amending s 227 in 2007.

Section 227(1) of the Criminal Procedure Act retains the common law but is now gender neutral and subject to sub-s (2).

Section 227(2) prior sexual history evidence “other than evidence relating to sexual experience or conduct in respect of the offence which is being tried” may not be led or raised in cross-examination except with the leave of the court or unless prior sexual history evidence has been introduced by the prosecution.

The exception that is created by the introduction of prior sexual history by the prosecution is consistent with the approach taken by the court in S v Zuma (2) saker (W).

In Zuma, it was the State that made application to ask the complainant (its own witness), how long before the incident in question she had last had intercourse. Permission was granted, and the complainant replied by giving a specific date. Thereafter the defence made application in terms of the then-existing s 227, to both cross-examine and lead evidence on her prior sexual history. The court granted the application.

It should be noted that in Zuma the permission granted to the defence was also based on relevance in the sense that what was sought to be introduced was fundamental to the accused's defence: "In my judgment the purpose of the cross-examination and the evidence the defence wanted to lead concerning the complainant's behaviour in the past was not to show that she misbehaved with other men. In fact it was aimed at showing misconduct in the sense of falsely accusing men in the past. The cross-examination and evidence are relevant to the issue of consent in the present matter, the question of motive and indeed credibility as well. It was not aimed at showing that the complainant was a woman of questionable morals. It was aimed at the investigation of the real issues in this matter and was fundamental to the accused's defence."

The wording of s 227(2) makes it clear that as far as “the offence which is being tried” is concerned, no application is necessary. But the fact that no prior application is required does not relieve the court of its common-law and statutory duty to ensure that evidence and questioning do not go beyond what is relevant

Section 227(4) – leave to lead evidence of prior sexual history will only be granted if the court is satisfied that such evidence is relevant.

Section 227(5), specifies the factors that the court must take into account when deciding whether to grant leave to lead evidence of prior sexual history.

Section 227(6) directs the court to refuse leave if the purpose of adducing the evidence or questioning the complainant is to support an inference that the complainant is more likely to have consented or is untruthful.

Section 227(7) requires a court to provide reasons for refusing or allowing an application to lead prior sexual history evidence.

228 Evidence of disputed writing

Comparison at criminal proceedings of a disputed writing with any writing proved to be genuine, may be made by a witness, and such writings and the evidence of any witness with respect thereto, may be submitted as proof of the genuineness or otherwise of the writing in dispute.

Section 228 provides that comparison of a disputed writing with any writing proved to be genuine may be made by witnesses, and such writings and the evidence of any witness with respect thereto may be submitted as evidence of the genuineness or otherwise of the writing in dispute.

On the basis of the provision as well as common-law principles, a lay witness is permitted to identify handwriting.

An expert may also express an opinion on handwriting.

The fact that an accused who has furnished samples of his handwriting to the police could have made some intentional distortions affects the weight and not the admissibility of the opinion.

Opinion evidence of handwriting must be approached with caution. A court is also entitled to make its own comparison, but should do so with caution.

229 Evidence of times of sunrise and sunset

(1) The Minister may from time to time by notice in the Gazette approve of tables prepared at any official observatory in the Republic of the times of sunrise and sunset on particular days at particular places in the Republic or any portion thereof, and appearing in any publication specified in the notice, and thereupon such tables shall, until the notice is withdrawn, on the mere production thereof in criminal proceedings be admissible as proof of such times.

(2) Tables in force immediately prior to the commencement of this Act by virtue of the provisions of section 26 of the General Law Amendment Act, 1952, shall be deemed to be tables approved under subsection (1) of this section.

230 Evidence and sufficiency of evidence of appointment to public office

Any evidence which, on the thirtieth day of May, 1961—

(a) would have been admissible as proof of the appointment of any person to any public office or the authority of any person to act as a public officer, shall be admissible in evidence in criminal proceedings;

(b) would have been deemed sufficient proof of the appointment of any person to any public office or of the authority of any person to act as a public officer, shall in criminal proceedings be deemed to be sufficient proof of such appointment or authority.

231 Evidence of signature of public officer

Any document—

(a) which purports to bear the signature of any person holding a public office; and

(b) which bears a seal or stamp purporting to be a seal or stamp of the department, office or institution to which such person is attached, shall, upon the mere production thereof at criminal proceedings, be prima facie proof that such person signed such document.

232 Article may be proved in evidence by means of photograph thereof

(1) Any court may in respect of any article, other than a document, which any party to criminal proceedings may wish to produce to the court as admissible evidence at such proceedings, permit such party to produce as evidence, in lieu of such article, any photograph thereof, notwithstanding that such article is available and can be produced in evidence.

(2) The court may, notwithstanding the admission under subsection (1) of the photograph of any article, on good cause require the production of the article in question.

This section allows for the production in evidence of a photograph of an article without requiring the production of the article itself, even if the article is available and can be so produced.

The section is particularly useful in respect of heavy objects which cannot easily be produced, but it should be noted that the court may on good cause always require the article to be produced.

The courts had previously allowed the production of such photographs as real evidence provided there was some evidence to identify the photograph as a true likeness of the article it purported to represent.

Evidence of identification may be given by someone other than the photographer.

Real Evidence

Although they fall outside the ambit of this section, the courts have received as real evidence photographs of material other than'articles', such as places and persons, the latter frequently in order to facilitate identification by witnesses; S v Skhosana (2) saker G.J).

In S v Fuhri (2) saker (A) the Appellate Division held that a photograph taken of a moving vehicle by a'speed camera' was admissible even in the absence of a witness to verify that it was a true image of what had passed in front of the lens of the camera, since the reliability of the camera and its ability to measure and record speed were not in issue and it was common cause that the camera had been correctly set up and operated.

Photographs in electronic form such as are found on modern cellular phones and similar devices present particular problems, and it may be inappropriate to regard them as real evidence: See S v Brown (1) saker W.C.C. Because the modern cellular phone is, in reality, a mini computer, the question is considered in the context of computer-generated images.

See, however, S v Skhosana (2) saker G.J, where a cell phone photograph and video footage were regarded as real evidence. Dosio A.J applied what was said by Milne J.P in S v Ramgobin & others (4) S.A (N) and set out these requirements for the admissibility of a cell phone photograph:

1. it must be relevant; it must be verified as a true image of what was captured;

2. it must be clear and not edited;

3. it must be presented to the court to be viewed; and 4. the device must be reliable.

The fact that a photograph constitutes real evidence does not mean that it will always be admissible. If it is tendered for a purpose that offends against the hearsay rule, for instance, some exception to the rule has to be found before it may be received.

The fact that the photograph is of poor quality will only affect the weight to be attached to the evidence, not its admissibility.

Audio and video tapes

There is some inconsistency in the manner in which the courts have dealt with video recordings

In S v Ramgobin and others (4) S.A (N), Milne J.P found himself'unable to see any difference, in principle, between the admissibility of an audio tape recording and a video tape recording'. For such tapes to be admissible against an accused person in criminal proceedings he found the State had to prove the following beyond reasonable doubt:

(a) that they were original;

(b) that they had not been interfered with;

(c) that they related to the occasion to which it was alleged they related;

(d) that they were faithful;

(e) that they proved the identity of the speakers; and

(f) that they were sufficiently intelligible to be placed before the trier or triers of fact.

In regard to the need for proof of accuracy, he added, there must be a witness to the event purportedly recorded who is able to testify that it accurately portrays that event. It need not be the person who made the recording but may be anyone who witnessed the event.

Ramgobin was followed in S v Sibiya & others at [26], where the six requirements laid down by Milne J.P were held to be satisfied beyond a reasonable doubt.

In S v Mdlongwa (2) saker S.C.A}} : There had been a bank robbery and one of the questions concerned the admissibility of certain video footage in which the appellant and his co-accused had been captured. The evidence was challenged on the ground that the video footage was not'original'. The court, however, accepted that each branch of the bank had its own hard drive, and that the video footage in this case had been downloaded from the hard drive of this particular branch. There could be'no question that the video footage was original and therefore constituted real evidence'. He cited with approval what had been said in Mpumlo, that a video film, like a tape recording, was real evidence, as distinct from documentary evidence, and that, provided it was relevant, it could be produced as admissible evidence, subject to any dispute that might arise either as to its authenticity or interpretation.

But he cited, too, and without disapproval, what had been said in Ramgobin: that, for video tape recordings to be admissible it must be proved that the exhibits are original recordings and that there exists no reasonable possibility of some interference with the recordings. In view of the circumstances surrounding the security of the footage, he concluded that he had 'no reason to reject the authenticity and the originality of the video footage downloaded by [X] from the surveillance cameras installed at the bank'.

One case where the video evidence clearly had been improperly dealt with was S v Kotze. In that case the magistrate viewed the video footage outside the courtroom; viewed it alone; made certain observations without inviting comments or conveying them to the parties (including the unrepresented accused) in order to give them the opportunity to challenge or agree with the observations; set out the observations only in the judgment; allowed them to form the basis of the judgment; and failed to assist the accused throughout the process. The magistrate identified the evidence as real evidence, and recognised a duty to record observations in regard to the video footage. The observations were not, however, reflected in the record itself before judgment.

There was a failure to observe the procedure described in Kruger v Ludick 3 S.A A: that such observations only became evidence if, after an invitation for comment by both sides, there was no objection from them. There was prejudice to the appellant sufficient to warrant the setting aside of his conviction.

Images on computer

One of the questions that fell to be decided in S v Brown (1) saker 206 W.C.C} was whether photographic images, downloaded from a cellular telephone, were to be treated as real or as documentary evidence. Bozalek J approved the views that electronic evidence such as graphics, audio and video material'now resemble documents more than the knife and bullet that are the traditional examples of real evidence'. They were, in data form,'susceptible to error and falsification' and their evidential value depended'on witnesses who can both interpret them and establish their relevance'.

He concluded, then, that given the 'potential mutability and tran-zee-unt nature of images . . . generated, stored and transmitted by an electronic device', it was more appropriate to deal with them as documentary rather than real evidence. It was, accordingly, necessary for the State to show both the originality and the authenticity of the images.

Authenticity had not been contested, but it was necessary to consider the effect of s 14 of the Electronic Communications and Transactions Act 25 of 2002 (ecta), which provides that a data message satisfies the requirements of'original form' if it meets the conditions set out in that section. These are that (a) the integrity of the information, from the time it was first generated in its final form as a data message, has passed assessment in terms of s 14(2); and (b) the information is capable of being displayed or produced to the person to whom it is to be presented. As to (a), s 14(2) gives pointers as to how'integrity' must be assessed. All relevant circumstances must be considered, but mention is made of 'whether the information has remained complete and unaltered' and 'the purpose for which the information was generated'.

In concluding that the requirement of'original form' had been satisfied, the court took into account these considerations: there had been no suggestion of tampering on the part of the police officer who had downloaded the images; the software programme he used excluded any possibility of tampering; the images had been transferred from phone to court exhibit in no more than just a minute or two; the phone had been in lay hands, after being found on the crime scene, for no more than four hours, making it improbable that any tampering had occurred then; and, significantly, the data had been transmitted to the phone two days before the shooting, when the phone was in the possession of its original possessor. In any event, said the learned judge, s 15(1)(b) of ecta provided exemption from the requirements of'original form' if a data message was'the best evidence that the person adducing it could reasonably be expected to obtain', a requirement satisfied on the facts in Brown's case.

233 Proof of public documents

Whenever any book or other document is of such a public nature as to be admissible in evidence upon its mere production from proper custody, any copy thereof or extract therefrom shall be admissible in evidence at criminal proceedings if it is proved to be an examined copy or extract, or if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.

Such officer shall furnish such certified copy or extract to any person applying therefor, upon payment of an amount in accordance with the tariff of fees prescribed by or under any law or, if no such tariff has been so prescribed, an amount in accordance with such tariff of fees as the Minister, in consultation with the Minister of Finance, may from time to time determine.

This section dispenses with the need to prove the authenticity of a copy of a public document provided such copy is 'examined' or 'signed and certified' in the manner prescribed in the section. The copy, however, will only be received if the original document is admissible.

Requirements:

(a) It must have been made by a public officer.

(b) It must have been made in the execution of a public duty.

(c) It must have been made for public use.

(d) The public must have a right of access to it.

As regards the admissibility of such documents, s 3 of the Law of Evidence Amendment Act liberates the courts from the tyranny of labels and mechanical rules. The fact that a document is a'public document' does not necessarily ensure its reception, although compliance with the above four requirements might go some way to satisfying a court that the interests of justice would be promoted by admitting it. Conversely, the fact that it does not comply with these requirements and is not a'public document' will not necessarily lead to its exclusion under s 3(1).

234 Proof of official documents

It shall, at criminal proceedings, be sufficient to prove an original official document which is in the custody or under the control of any State official by virtue of his office, if a copy thereof or an extract therefrom, certified as a true copy or extract by the head of the department concerned or by any State official authorized thereto by such head, is produced in evidence at such proceedings.

(a) An original official document referred to in subsection (1), other than the record of judicial proceedings, may be produced at criminal proceedings only upon the order of the attorney-general.

(b) It shall not be necessary for the head of the department concerned to appear in person to produce an original document under paragraph (a), but such document may be produced by any person authorized thereto by such head.

Any official who, under subsection (1), certifies any copy or extract as true knowing that such copy or extract is false, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding two years.

Where an original official document would be admissible a copy of it may be received provided it is certified as a true copy by the head of the department himself or a State official properly authorized by him.

If such copy is tendered to prove the truth of what it contains it is hearsay and thus inadmissible unless an appropriate exception to the rule is found to be applicable. In the absence of such an exception, however, the copy will only be received as proof of the existence of the original or for some other purpose which does not offend against the hearsay rule.

Meaning of 'official document'

An official document is one in the custody or under the control of a state official by virtue of his office.

It was argued in S v Chao (1) saker (C) that viva voce evidence was needed to introduce the document into evidence in terms of s 234(1). This argument was rejected. The court state that there is a natural difference between a requirement that evidence be'produced' (as this section does) and one that evidence be'adduced'. It was not necessary for the head of department to appear in person to'produce' a document, as the document may be'produced' by any person so authorised or even by the prosecutor himself or herself. It is further not required that there be a witness to hand up the document: the section explicitly identifies the role of State officials with regard to official documents in their custody, and it does not refer to the role of a witness in handing up an official document as proof of its authenticity. In Chao the section was successfully invoked to allow for the production of an authorisation by the N.D.P.P to charge an accused in terms of s 2(4) of the Prevention of Organised Crime Act 121 of 1998.

235 Proof of judicial proceedings

It shall, at criminal proceedings, be sufficient to prove the original record of judicial proceedings if a copy of such record, certified or purporting to be certified by the registrar or clerk of the court or other officer having the custody of the record of such judicial proceedings or by the deputy of such registrar, clerk or other officer or, in the case where judicial proceedings are taken down in shorthand or by mechanical means, by the person who transcribed such proceedings, as a true copy of such record, is produced in evidence at such criminal proceedings, and such copy shall be prima facie proof that any matter purporting to be recorded thereon was correctly recorded.

Any person who, under subsection (1), certifies any copy as true knowing that such copy is false, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding two years.

Judicial proceedings may be proved by producing a copy of the record of those proceedings properly certified in terms of the requirements set out in s 235(1).

Such copy shall be prima facie proof that any matter purporting to be recorded on the record was properly recorded. The record does not, however, constitute prima facie proof of any fact it contains.

The effect of s 235(1) is that it is not necessary to call officers of the court to testify in order to prove that judicial proceedings have been correctly recorded.

Admissions made by an accused in a statement during questioning of the accused in terms of s 115 in the course of plea proceedings before a magistrate under s 119 can be proved at the subsequent trial in the Supreme Court by handing in the record of the proceedings before the magistrate as an exhibit under s 122(4) read with s 235.

Record of Bail Application – Admissibility at Trial

In the pre-Constitutional era it had been held that the record of the evidence of a bail application brought by an accused, was, in terms of s 235, admissible against him at his subsequent trial and was not affected by the privilege against self-incrimination as contained in s 203.

S v Nomzaza (2) saker the court made the following important points: First, that the evidence given by the accused will only be admissible in terms of s 235 if it is otherwise admissible—if, that is, it is not hit by some other exclusionary principle; second, that each case must be handled on its own facts; and third, that, in the light of the Constitution, there may be cases where the accused will not receive a fair trial if the bail proceedings are received against him at his subsequent trial.

In S v Nyengane en andere (2) saker (E) the record of the bail application was held to be inadmissible at the subsequent trial. One of the reasons for this decision was that the magistrate at the bail proceedings had failed to warn the accused that they were not obliged to answer questions that might have been self-incriminating (see notes to s 203) and to inform them of the position regarding the burden of proof: (the accused had, in fact been represented, but it was held that the inexperience and ignorance of their legal representative should not count against them).

Section 60 11 B c of the C.P.A provides for the admissibility of evidence given by the accused in bail proceedings. The status of evidence received under this section was considered by the Supreme Court of Appeal in S v Machaba & another 2016 (1) saker S.C.A. Handing in a bail application in terms of s 60 11 B c, said the court,'is a shortcut to achieving the same object as provided for in s 235 of the C.P.A', and this'has the effect that the record is prima facie proof that any matter recorded on the record was properly recorded'. The record'does not, however, constitute prima facie proof of any fact it contains'. See, too, Director of Public Prosecutions, Transvaal v Viljoen (1) saker S.C.A, where Streicher J.A said that it did not follow from the fact that the record of bail proceedings forms part of the record of the trial that evidence adduced during those proceedings must be treated as if that evidence had been adduced and received at the trial. The record of the bail proceedings, he added,'remains what it is, namely a record of what transpired during the bail application'.

It was argued before the Constitutional Court in S v Diamini; S v Dladla & others; S v Joubert; S v Schietekat (2) saker C.C that s 60 11 B c infringed the right of an accused not to incriminate himself. The court held that although there was a certain tension between the right of an accused to make out a case for release on bail by adducing all the supporting evidence and the battery of rights under s 35(1) and (3) of the Constitution, that tension was not unique to applicants for bail, and its mere existence did not'sound constitutional alarm bells'. The court added that choices often had to be faced by people living in open and democratic societies, and such choices were often hard.

An accused had to take many key decisions as to whether to speak or to remain silent; but the choice remained that of the accused. Although the policy was that the prosecution had to prove its case without the accused being compelled to furnish supporting evidence, the right to silence was in no way impaired if the accused, acting freely and in the exercise of an informed choice, elected to testify in support of a bail application. Nor would it be impaired (retrospectively) if the testimony so given were subsequently held against the accused.

Provided trial courts remained alert to their duty to exclude evidence that would impair the fairness of the proceedings before them, there could be no risk that evidence unfairly elicited at bail hearings could be used to undermine the right to be tried fairly. The court held, therefore, that the court in Botha had gone unnecessarily far in creating a broad and radical remedy for an ill that could and should have been treated conservatively and selectively (as suggested in Nomzaza in respect of the pre-constitutional position). There is, thus, in short, no warrant for creating a general rule for excluding such evidence: it is for the trial court, rather, to decide whether a valid objection exists to its reception in a specific case.

It 'follows that there is no inevitable conflict between s 60 11 B c of the C.P.A and any provision of the Constitution'

In S v Porthen & others (2) saker (C) the court held that the probable effect of a failure to advise accused of the fact that their evidence at the bail hearing might be used against them at their trial was to render their evidence at the bail hearing inadmissible against them at the trial.

In S v Agliotti (1) saker G.S.J, the'warning in terms of s 60 11 B c is an important constitutional safeguard that impacts directly on whether an accused person receives a fair trial'.

Where it is the defence that introduces the contents of the bail proceedings into the trial, such as may happen when there is an admission made under s 220 or reference to or use of parts of the record of those proceedings during the cross-examination of a State witness, the accused may lose his shield in this regard: S v Balkwell & another 2006 (1) saker (N).

The Constitutional Court, in S v Basson (1) saker C.C, considered the role of an appeal court faced with a decision as to whether to interfere with a trial court's discretionary powers to exclude the bail record. In Basson the trial court had held that the admission of the bail record as evidence in the criminal trial would result in an unfair trial and excluded the evidence. It relied on a range of considerations, in particular the fact that the prosecutor had acted unfairly in the bail proceedings by preventing the accused from having access to documents in the State's possession and the fact that much of the questioning of the accused in the bail hearing was undertaken solely for the purpose of laying a foundation for cross-examination in the subsequent trial (since the accused had already conceded that the State had a prima facie case against him). The Constitutional Court dismissed an appeal against this decision.

Note for Practice:

Prosecutors should always ensure that the proceedings are fair – to the accused and the State.

Prosecutors should be aware that the record of the Bail Application may become admissible at trial and request that the court follow the correct procedure.

It is the duty of the magistrate to warn the accused of his rights and inform the accused that the record may be used at the subsequent trial – however, a diligent prosecutor must ensure that the magistrate duly warns the accused.

Further, a prosecutor should ensure that the cross examination at the stage of Bail Application is not directed at the purpose of gaining ammunition to be used at trial.

236 Proof of entries in accounting records and documentation of banks

(1) The entries in the accounting records of a bank, and any document which is in the possession of any bank and which refers to the said entries or to any business transaction of the bank, shall, upon the mere production at criminal proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges—

(a) that he is in the service of the bank in question;

(b) that such accounting records or document is or has been the ordinary records or document of such bank [sic];

(c) that the said entries have been made in the usual and ordinary course of the business of such bank or the said document has been compiled, printed or obtained in the usual and ordinary course of the business of such bank; and

(d) that such accounting records or document is in the custody or under the control of such bank [sic], be prima facie proof at such proceedings of the matters, transactions and accounts recorded in such accounting records or document.

(2) Any entry in any accounting record referred to in subsection (1) or any document referred to in subsection (1) may be proved at criminal proceedings upon the mere production at such proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges—

(a) that he is in the service of the bank in question;

(b) that he has examined the entry, accounting record or document in question; and

(c) that a copy of such entry or document set out in the affidavit or in an annexure thereto is a correct copy of such entry or document.

(3) Any party at the proceedings in question against whom evidence is adduced in terms of this section or against whom it is intended to adduce evidence in terms of this section, may, upon the order of the court before which the proceedings are pending, inspect the original of the document or entry in question and any accounting record in which such entry appears or of which such entry forms part, and such party may make copies of such document or entry, and the court shall, upon the application of the party concerned, adjourn the proceedings for the purpose of such inspection or the making of such copies.

(4) No bank shall be compelled to produce any accounting record referred to in subsection (1) at any criminal proceedings, unless the court concerned orders that any such record be produced.

(5) In this section— 'document' includes a recording or transcribed computer printout produced by any mechanical or electronic device and any device by means of which information is recorded or stored; and 'entry' includes any notation in the accounting records of a bank by any means whatsoever.

The effect of this section is that in criminal proceedings entries in accounting records and documentation of banks are prima facie proof of their contents upon the production of an affidavit that complies with the requirements as set out in s 1(a) to (d) and s 2(a) to (c).

Requirements

Accounting records and documents in the possession of a bank shall be admissible in evidence in terms of section 236 open parenthesis 1 close parenthesis of the C.P.A provided they are accompanied by an affidavit by a person stating that

(a) they are in the service of the bank;

(b) they are ordinary records and documents of the bank;

(c) the entries have been made and the documents compiled, printed or obtained in the usual and ordinary course of the business of the bank;

(d) the records or documents are in the custody or under the control of the bank.

An entry, record or documents will constitute proof of its contents if accompanied by an affidavit in which the deponent states that: she is in the service of the bank, that she has examined the entry or record and that the attached copy is a correct copy.

The person against whom such records and documents are admitted, may inspect the record or document.

A bank can only be compelled to produce such records and documents by an order of court.

236 A Proof of entries in accounting records and documentation of banks in countries outside Republic

(1) The entries in the accounting records of an institution in a state or territory outside the Republic which is similar to a bank in the Republic, and any document which is in the possession of such an institution and which refers to the said entries or to any business transaction of the institution, shall, upon the mere production at criminal proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges—

(a) that he is in the service of the institution in question;

(b) that such accounting records or document are or were the ordinary records or document of the institution;

(c) that the said entries have been made in the usual and ordinary course of the business of such institution; and

(d) that such accounting records are or document is in the custody or under the control of such institution.

be prima facie proof at such proceedings of the matters, transactions and accounts recorded in such accounting records or document.

(2) Any entry in any accounting record contemplated in subsection (1) or any document contemplated in subsection (1) may be proved at criminal proceedings upon the mere production at such proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges—

(a) that he is in the service of the institution in question;

(b) that he has examined the entry, accounting record or document in question; and

(c) that a copy of such entry or document set out in the affidavit or in an Oannexure thereto is a correct copy of such entry or document.

(3) A document purporting to be an affidavit shall for the purposes of this section have no effect unless—

(a) it is obtained in terms of an order of a competent court or on the authority of a competent government institution of the state or territory concerned, as the case may be;

(b) it is authenticated in the manner prescribed in the rules of court for the authentication of documents executed outside the Republic; or

(c) it is authenticated by a person, and in the manner, contemplated in section 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963.

(4) The admissibility and evidentiary value of an affidavit contemplated in subsections (1) and (2) shall not be affected by the fact that the form of the oath, confirmation or attestation thereof differs from the form of the oath, confirmation or attestation prescribed in the Republic.

(5) A court before which an affidavit contemplated in subsections (1) and (2) is placed may, in order to clarify obscurities in the said affidavit, on the request of a party to the proceedings order that a supplementary affidavit be submitted or that oral evidence be heard: Provided that oral evidence shall only be heard if the court is of the opinion that it is in the interests of the administration of justice and that a party to the proceedings would be materially prejudiced should oral evidence not be heard.

(6) In this section—

'document' includes a recording or transcribed computer printout produced by any mechanical or electronic device and any device by means of which information is recorded or stored; and

'entry' includes any notation, by any means whatsoever, in the accounting records of an institution contemplated in subsection (1).

Proof of entries in accounting records and documentation of banks in countries outside the Republic are regulated by s 236 A of the C.P.A.

The requirements as set out in s236 (above) are applicable

Sub-sections (3) (4) (5) are equivalents to the relevant sub-sections of section 212 A - the requirements set out in section 212 A are also applicable.

237 Evidence on charge of bigamy

(1) At criminal proceedings at which an accused is charged with bigamy, it shall, as soon as it is proved that a marriage ceremony, other than the ceremony relating to the alleged bigamous marriage, took place within the Republic between the accused and another person, be presumed, unless the contrary is proved, that the marriage was on the date of the solemnization thereof lawful and binding.

At criminal proceedings at which an accused is charged with bigamy, it shall be presumed, unless the contrary is proved, that at the time of the solemnization of the alleged bigamous marriage there subsisted between the accused and another person a lawful and binding marriage—

(a) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized within the Republic, an extract from the marriage register which purports—

(i) to be a duplicate original or a copy of the marriage register relating to such marriage; and

(2) to be certified as such a duplicate original or such a copy by the person having the custody of such marriage register or by a registrar of marriages;

(b) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized outside the Republic, a document which purports—

(i) to be an extract from a marriage register kept according to law in the country where the marriage is alleged to have been solemnized; and

(2) to be certified as such an extract by the person having the custody of such register, if the signature of such person on the certificate is authenticated in accordance with any law of the Republic governing the authentication of documents executed outside the Republic.

At criminal proceedings at which an accused is charged with bigamy, evidence—

(a) that shortly before the alleged bigamous marriage the accused had been cohabiting with the person to whom he is alleged to be lawfully married;

(b) that the accused had been treating and recognizing such person as a spouse; and

(c) of the performance of a marriage ceremony between the accused and such person.

shall, as soon as the alleged bigamous marriage, wherever solemnized, has been proved, be prima facie proof that there was a lawful and binding marriage subsisting between the accused and such person at the time of the solemnization of the alleged bigamous marriage.

This section creates three presumptions to assist the State on a charge of bigamy.

It must be emphasized at the outset, however, that the first and second of these presumptions (contained in subsections (1) and (2)) have the effect of placing an onus on the accused (the onus in its true and primary sense, that is). They are, therefore, unlikely to survive a constitutional challenge, since they fly in the face of the presumption of innocence set out in s 35(3)(h)

Section 237(1)

Once it is shown that a previous marriage ceremony took place within the Republic between the accused and another person it will be presumed that this previous marriage was lawful and binding on the date of its solemnization. There is no mention of the continuation of the marriage in this presumption, merely that it was lawful at the time it was solemnized. Before this presumption may be invoked it must at least be shown that the ceremony was solemnized by a competent marriage officer. The effect of the words'unless the contrary is proved' is that the accused bears the onus of proving that this previous marriage was not lawful and binding.

Section 237(2)

On the production of an extract from a marriage register which complies with the respective requirements of paragraphs (a) and (b) and which purports to record a marriage between the accused and another person it will be presumed unless the contrary is proved that those parties were lawfully married at the time the alleged bigamous marriage was solemnized. This subsection therefore creates a presumption of continuity and it places the onus on the accused to prove that the previous marriage has been terminated. The requirements relating to the extract from the marriage register are different according to whether the marriage is alleged to have been solemnized within the Republic (see para (a)) or outside the Republic (see para (b)).

Section 237(3)

This subsection also creates a presumption of continuity, but its effect differs from subsec (2) in that it places on the accused a duty to adduce evidence rather than the onus in its primary sense. This presumption will therefore usually be invoked where the certificate required under subsec (2) cannot be procured. In order to avail itself of this presumption the prosecution need only provide evidence—as opposed to proof—of the matters contained in paras (a), (b) and (c). Failure to furnish evidence on any one of these items is, however, fatal to the prosecution's cause. Furthermore, the presumption may only be invoked when such evidence is joined by proof of the alleged bigamous marriage.

238 Evidence of relationship on charge of incest

At criminal proceedings at which an accused is charged with incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007—

(a) it shall be sufficient to prove that the person against whom or by whom the offence is alleged to have been committed, is reputed to be the lineal ascendant or descendant or the sister, brother, stepmother, stepfather, stepdaughter or stepson of the other party to the incest;

(b) the accused shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.

Whenever the fact that any lawful and binding marriage was contracted is relevant to the issue at criminal proceedings at which an accused is charged with incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, such fact may be proved prima facie in the manner provided in section 237 for the proof of the existence of a lawful and binding marriage of a person charged with bigamy.

Incest is sexual intercourse between persons who are not allowed to be married to each other owing to their relationship.

Intent is required for conviction, which means that the accused must be aware of the relationship, although there is a rebuttable presumption in paragraph (b) that he or she was in fact aware.

If both parties were aware, they are accomplices.

Section 238 was amended by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 to include a reference to the definition of incest in section 12 of Act 32 of 2007, and to make it clear that incest can also be committed against a male.

Section 12 of Act 32 of 2007 - For the purposes of subsection (1)

(a) the prohibited degrees of consanguinity (blood relationship) are the following:

(i) Ascendants and descendants in the direct line; or

(2) collaterals, if either of them is related to their common ancestor in the first degree of descent;

(b) the prohibited degrees of affinity are relations by marriage in the ascending and descending line; and

(c) an adoptive relationship is the relationship of adoption as provided for in any other law.

Incest – Authorisation of the National Director of Public Prosecutions

It is important to note that in terms of s 12(3) of Act 32 of 2007 - The institution of a prosecution of a person who is a child at the time of the alleged commission of the offence of incest must be authorised in writing by the National Director of Public Prosecutions.

239 Evidence on charge of infanticide or concealment of birth

(1) At criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive if the child is proved to have breethd, whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother.

(2) At criminal proceedings at which an accused is charged with the concealment of the birth of a child, it shall not be necessary to prove whether the child died before or at or after birth.

Section 239(1): Infanticide

What is a'newly born child' for the purposes of s 239(1)? In R v Adams C.P.D a child between three and four weeks old was held not to be newly born for the purpose of s of Act of 1917 which empowered a judge to pass a sentence other than the death sentence upon a woman convicted of murdering her newly born child. In R v Belliana Mackinini W.L.D however, a ten-day-old child was held to be newly born for the purpose of that section.

Infanticide is a term which refers to the murder of a new born baby. The crime of murder requires proof that the accused killed a human being. A person must have been alive before a death can be caused.

A child which has allegedly been killed is deemed to have been born alive if it is proved that the child breethd. This can be proved by medical evidence

Section 239(2): Concealment of birth

Section 113(1) of the General Law Amendment Act 46 of 1935, as amended by the Judicial Matters Amendment Act 66 of 2008, provides that 'any person who without a lawful burial order, disposes of the body of any newly born child with the intention to conceal the fact of its birth, whether the child died before, during or after birth, shall be guilty of an offence'.

The elements of this offence are thus

(a) a disposal

(b) of the dead body

(c) of a newly born child

(d) with intent to conceal the fact of birth.

This section is concerned with the disposal of the body of the newly born child. It is not necessary to prove that the child was born alive or that the child was alive at any time before the body was disposed.

The disposal of a baby that was still-born is sufficient for this section to apply.

Concealment of Birth: D.P.P's Written Authorisation Required

It should be noted that a prosecution for contravention of s 113(1) must in terms of s 113(3) be authorised in writing by the Director of Public Prosecutions having jurisdiction.

240 Evidence on charge of receiving stolen property

(1) At criminal proceedings at which an accused is charged with receiving stolen property which he knew to be stolen property, evidence may be given at any stage of the proceedings that the accused was, within the period of twelve months immediately preceding the date on which he first appeared in a magistrate's court in respect of such charge, found in possession of other stolen property: Provided that no such evidence shall be given against the accused unless at least three days' notice in writing has been given to him that it is intended to adduce such evidence against him.

(2) The evidence referred to in subsection (1) may be taken into consideration for the purpose of proving that the accused knew that the property which forms the subject of the charge was stolen property.

(3) Where the accused is proved to have received the property which is the subject of the charge, from a person under the age of eighteen years, he shall be presumed to have known at the time when he received such property that it was stolen property, unless it is proved—

(a) that the accused was at that time under the age of twenty-one years; or

(b) that the accused had good cause, other than the mere statement of the person from whom he received such property, to believe, and that he did believe, that such person had the right to dispose of such property.

As a general rule evidence of an accused's prior misconduct is admissible in criminal proceedings.

As discussed in s227 – the bad character of the accused may not be used by the State.

Further, the prosecution is generally prohibited from disclosing the accused's previous convictions (see s 211)

The section assists the prosecution by permitting the reception of evidence which might otherwise be inadmissible and by creating a presumption as to the accused's guilty knowledge. The constitutional status of sub-s (3) has not yet been evaluated.

The provisions of this section were a response to the difficulty of proving the requisite mens rea on charges of receiving stolen property knowing it to be stolen. Further assistance to the prosecution is furnished by s 197(c) which provides that the accused may be required to answer questions relating to his bad character or previous convictions where the proceedings against him are such as are described in s 240 or 241 (see the notes to s 197).

Section 240(1)

The presumption of guilty knowledge created in this subsection may not be invoked where the accused proves

(a) that he was himself under twenty-one years of age at the relevant time or

(b) that he had good cause to believe and that he did believe that the person from whom he received the property had the right to dispose of it.

Section 240(1) and (2)

Where an accused is charged with receiving stolen property knowing it to be stolen the prosecution may lead evidence that he was within the twelve months prior to his first appearance on the charge in question found in possession of other stolen property. Such evidence may be used to prove that the accused knew that the property which forms the subject of the charge was stolen. Where the requirements of this section are not satisfied, for example where the State tenders evidence that the accused was found in possession of other stolen property fifteen months before he first appeared on the present charge, such evidence may nevertheless be admissible in terms of the similar fact rule. While these provisions assist the State in proving the accused's guilty knowledge it is clear that such knowledge may also be inferred from the circumstances.

241 Evidence of previous conviction on charge of receiving stolen property

If at criminal proceedings at which an accused is charged with receiving stolen property which he knew to be stolen property, it is proved that such property was found in the possession of the accused, evidence may at any stage of the proceedings be given that the accused was, within the five years immediately preceding the date on which he first appeared in a magistrate's court in respect of such charge, convicted of an offence involving fraud or dishonesty, and such evidence may be taken into consideration for the purpose of proving that the accused knew that the property found in his possession was stolen property: Provided that not less than three days' notice in writing shall be given to the accused that it is intended to adduce evidence of such previous conviction.

This section, similar to s240 provides the prosecution with the means to prove mens rea (guilty mind).

The two provisions differ, however, in the following respects:

(a) Only evidence of a conviction may be received in terms of s 241. Section 240(1), on the other hand, allows the prosecution to show that the accused was'found in possession of other stolen property'. The scope of the former provision is, however, broadened by allowing a conviction of any offence involving fraud or dishonesty to be proved.

(b) The reception of the evidence described in s 241 is conditional upon proof that the property which forms the subject of the charge was found in possession of the accused. Section 240(1) contains no such condition.

(c) A conviction may be proved in terms of s 241 if it fell within the period of five years immediately preceding the date on which the accused first appeared in a magistrate's court on the charge in question. The corresponding period in s 240(1) is only twelve months.

Section 241 only applies where an accused is charged with receiving stolen property knowing it to be stolen. It does not apply to a charge of theft or other related offences.

242 Evidence on charge of defamation

If at criminal proceedings at which an accused is charged with the unlawful publication of defamatory matter which is contained in a periodical, it is proved that such periodical or the part in which such defamatory matter is contained, was published by the accused, other writings or prints purporting to be other numbers or parts of the same periodical, previously or subsequently published, and containing a printed statement that they were published by or for the accused, shall be admissible in evidence without further proof of their publication.

243 Evidence of receipt of money or property and general deficiency on charge of theft

(1) At criminal proceedings at which an accused is charged with theft—

(a) while employed in any capacity in the service of the State, of money or of property which belonged to the State or which came into the possession of the accused by virtue of his employment;

(b) while a clerk, servant or agent, of money or of property which belonged to his employer or principal or which came into the possession of the accused on account of his employer or principal, an entry in any book of account kept by the accused or kept under or subject to his charge or supervision, and which purports to be an entry of the receipt of money or of property, shall be proof that such money or such property was received by the accused.

(2) It shall not be necessary at proceedings referred to in subsection (1) to prove the theft by the accused of a specific sum of money or of specific goods, if—

(a) on the examination of the books of account kept or the entries made by the accused or under or subject to his charge or supervision, there is proof of a general deficiency; and

(b) the court is satisfied that the accused stole the money or goods so deficient or any part thereof.

This section aims to overcome the difficulty of proving (a) the receipt in certain cases of allegedly stolen money or property by an accused person who is in the service of the State or who is a clerk, servant or agent of another and (b) the specific amount of money or the specific goods actually stolen where such money or goods were stolen over a period in different amounts or numbers.

The section facilitates the proof of such matters in the following ways:

(a) Subsection (1) provides that an entry in any book of account kept by or subject to the charge of such person and which purports to be an entry of the receipt of money or property shall be'proof' of the receipt of such money or property by the accused.

(b) Subsection (2) dispenses with the need to prove the specific sum of money or specific goods stolen if on an examination of the books of account there is proof of a general deficiency and it is proved that the accused stole the money or goods in question or any part thereof.

244 Evidence on charge relating to seals and stamps

At criminal proceedings at which an accused is charged with any offence relating to any seal or stamp used for the purposes of the public revenue or the post office in any foreign country, a despatch purporting to be from the officer administering the government of such country and transmitting to the State President any stamp, mark or impression and stating it to be a genuine stamp, mark or impression of a die-plate or other instrument provided or made or used by or under the direction of the proper authority of such country for the purpose of denoting stamp duty or postal charge, shall on its mere production at such proceedings be prima facie proof of the facts stated in the despatch.

245 Evidence on charge of which false representation is element

If at criminal proceedings at which an accused is charged with an offence of which a false representation is an element, it is proved that the false representation was made by the accused, he shall be deemed, unless the contrary is proved, to have made such representation knowing it to be false.

This section was held to be unconstitutional in S v Coetzee & others (1) saker C.C. The Constitutional Court held that, since the effect of the presumption was to oblige a court to convict an accused where the probabilities were evenly balanced and where there was a reasonable doubt as to whether the accused in fact had the requisite knowledge, the presumption fell into'the class of"reverse onus" provisions which have been held by this Court to infringe the right of an accused person to be presumed innocent as envisaged in s 25(3)(c) of the [interim] Constitution' (at para 6). The function and effect of the presumption was to relieve the prosecution of the burden of proving one of the essential elements of the offence—knowledge of the falseness of the representation. It was, therefore, in conflict with the long-established rule of the common law that it was for the prosecution to prove the guilt of the accused beyond a reasonable doubt, and it clearly infringed the constitutionally entrenched presumption of innocence.

246 Presumptions relating to certain documents

Any document, including any book, pamphlet, letter, circular letter, list, record, placard or poster, which was at any time on premises occupied by any association of persons, incorporated or unincorporated, or in the possession or under the control of any office-bearer, officer or member of such association, and—

(a) on the face whereof a person of a name corresponding to that of an accused person appears to be a member or an office-bearer of such association, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the accused is a member or an office-bearer of such association, as the case may be;

(b) on the face whereof a person of a name corresponding to that of an accused person who is or was a member of such association, appears to be the author of such document, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the accused is the author thereof;

(c) which on the face thereof appears to be the minutes or a copy of or an extract from the minutes of a meeting of such association or of any committee thereof, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof of the holding of such meeting and of the proceedings thereat;

(d) which on the face thereof discloses any object of such association, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the said object is an object of such association.

This section has not been a subject of a constitutional court decision (as yet), however, it is likely to be found to offend against the rights of the accused by placing a “reverse onus” of burden of proof. It is likely to be deemed unconstitutional – similar to s245.

247 Presumptions relating to absence from Republic of certain persons

- Any document, including any newspaper, periodical, book, pamphlet, letter, circular letter, list, record, placard or poster, on the face whereof it appears that a person of a name corresponding to that of an accused person has at any particular time been outside the Republic or has at any particular time made any statement outside the Republic, shall, upon the mere production thereof by the prosecution at criminal proceedings, be prima facie proof that the accused was outside the Republic at such time or, as the case may be, that the accused made such statement outside the Republic at such time, if such document is accompanied by a certificate, purporting to have been signed by the Secretary for Foreign Affairs, to the effect that he is satisfied that such document is of foreign origin.

This section creates another exception to the rule against hearsay (see the notes to s 216) in that a document which satisfied the requirements of the section constitutes prima facie proof that the accused was absent from the Republic or made a statement outside the Republic at the time indicated on the face of that document.

Once the document is received the accused bears the burden of adducing contrary evidence, but this does not affect the incidence of the primary onus. Whether this is enough to save the section from constitutional invalidity remains to be seen.

248 Presumption that accused possessed particular qualification or acted in particular capacity

(1) If an act or an omission constitutes an offence only when committed by a person possessing a particular qualification or quality, or vested with a particular authority or acting in a particular capacity, an accused charged with such an offence upon a charge alleging that he possessed such qualification or quality or was vested with such authority or was acting in such capacity, shall, at criminal proceedings, be deemed to have possessed such qualification or quality or to have been vested with such authority or to have been acting in such capacity at the time of the commission of the offence, unless such allegation is at any time during the criminal proceedings expressly denyed by the accused or is disproved.

(2) If such allegation is denyed or evidence is led to disprove it after the prosecution has closed its case, the prosecution may adduce any evidence and submit any argument in support of the allegation as if it had not closed its case.

This section creates a presumption that relieves the prosecution of the burden of adducing evidence as to the qualification, authority or capacity of the accused where this quality constitutes an essential element of the offence with which he is charged.

Once the allegation is denyed the presumption falls away and the State is obliged to adduce evidence to establish the requisite qualification, capacity or authority.

An unusual feature of this presumption is that it may be rebutted by a mere denial that the accused possessed the alleged qualification, authority or capacity as well as by the customary mode of furnishing proof to the contrary. Such a denial must, however, be expressly made.

This aspect of the 'reverse onus' may save the section from constitutional invalidity, although this cannot be regarded as certain.

249 Presumption of failure to pay tax or to furnish information relating to tax

When an accused is at criminal proceedings charged with any offence of which the failure to pay any tax or impost to the State, or of which the failure to furnish to any officer of the State any information relating to any tax or impost which is or may be due to the State is an element, the accused shall be deemed to have failed to pay such tax or impost or to furnish such information, unless the contrary is proved.

The presumption created by this section applies to any offence of which the failure to pay tax or the failure to furnish information to an officer of the state relating to tax is an element.

250 Presumption of lack of authority

(1) If a person would commit an offence if he—

(a) carried on any occupation or business;

(b) performed any act;

(c) owned or had in his possession or custody or used any article; or

(d) was present at or entered any place,

without being the holder of a licence, permit, permission or other authority or qualification (in this section referred to as the 'necessary authority'), an accused shall, at criminal proceedings upon a charge that he committed such an offence, be deemed not to have been the holder of the necessary authority, unless the contrary is proved.

(2) (a) Any peace officer and, where any fee payable for the necessary authority would accrue to the National Revenue Fund or the Railway and Harbour Fund or a provincial revenue fund, any person authorized thereto in writing by the head of the relevant department or sub-department or by the officer in charge of the relevant office, may demand the production from a person referred to in subsection (1) of the necessary authority which is appropriate.

(b) Any peace officer, other than a police official in uniform, and any person authorized under paragraph (a) shall, when demanding the necessary authority from any person, produce at the request of that person, his authority to make the demand.

(3) Any person who is the holder of the necessary authority and who fails without reasonable cause to produce forthwith such authority to the person making the demand under subsection (2) for the production thereof, or who fails without reasonable cause to submit such authority to a person and at a place and within such reasonable time as the person making the demand may specify, shall be guilty of an offence and liable on conviction to a fine not exceeding R.300 or to imprisonment for a period not exceeding three months.

That section relieves the State of the burden of having to specify, negative or prove 'any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence'

The section is applicable in circumstances where a person requires a licence or authority to perform a specific function or carry out a specific business. Eg driving a motor vehicle; possession of a firearm; or practicing as a medical practitioner, etcetera

The effect of subsection (1) is that if a person would commit an offence if he engaged in any of the activities specified in paras (a) – (d) without being the holder of the'necessary authority' (as defined) he will, if he is charged with the commission of that offence, be deemed not to have been the holder of such authority unless the contrary is proved. The onus thus rests on the accused to establish on a balance of probabilities that he was the holder of the necessary authority.

A constitutional challenge to the validity s 250(1) on the basis that the subsection violated the presumption of innocence by creating an unacceptable'reverse onus' failed in S v Fransman 1 saker W for the following reasons:

(1) The presumption in s 250(1) does not place the entire onus on the accused;

(2) it is easy for an accused to discharge the onus, so that there is no chance of his being convicted if he is innocent;

(3) the question as to whether the accused has the requisite licence or authority is peculiarly within his knowledge

(4) the presumption is both rebuttable and reasonable in view of the ease with which a licence may be produced compared to the time and effort which the state would have to invest in order to prove its non-existence; and

(5) the fact that the presumption is justified by important legislative objectives such as controlling the possession of unlicensed firearms.

251 Unstamped instrument admissible in criminal proceedings

An instrument liable to stamp duty shall not be held inadmissible at criminal proceedings on the ground only that it is not stamped as required by law.

252 The law in cases not provided for

The law as to the admissibility of evidence which was in force in respect of criminal proceedings on the thirtieth day of May, 1961, shall apply in any case not expressly provided for by this Act or any other law.

252 A Authority to make use of traps and undercover operations and admissibility of evidence so obtained

Any law enforcement officer, official of the State or any other person authorised thereto for such purpose (hereinafter referred to in this section as an official or his or her agent) may make use of a trap or engage in an undercover operation in order to detect, investigate or uncover the commission of an offence, or to prevent the commission of any offence, and the evidence so obtained shall be admissible if that conduct does not go beyond providing an opportunity to commit an offence: Provided that where the conduct goes beyond providing an opportunity to commit an offence a court may admit evidence so obtained subject to subsection.

In considering the question whether the conduct goes beyond providing an opportunity to commit an offence, the court shall have regard to the following factors:

(a) Whether, prior to the setting of a trap or the use of an undercover operation, approval, if it was required, was obtained from the attorney-general to engage such investigation methods and the extent to which the instructions or guidelines issued by the attorney-general were adhered to;

(b) the nature of the offence under investigation, including—

(i) whether the security of the State, the safety of the public, the maintenance of public order or the national economy is seriously threatened thereby;

(2) the prevalence of the offence in the area concerned; and

(3) the seriousness of such offence;

(c) the availability of other techniques for the detection, investigation or uncovering of the commission of the offence or the prevention thereof in the particular circumstances of the case and in the area concerned;

(d) whether an average person who was in the position of the accused, would have been induced into the commission of an offence by the kind of conduct employed by the official or his or her agent concerned;

(e) the degree of persistence and number of attempts made by the official or his or her agent before the accused succumbed and committed the offence;

(f) the type of inducement used, including the degree of deceit, trickery, misrepresentation or reward;

(g) the timing of the conduct, in particular whether the official or his or her agent instigated the commission of the offence or became involved in an existing unlawful activity;

(h) whether the conduct involved an exploitation of human characteristics such as emotions, sympathy or friendship or an exploitation of the accused's personal, professional or economic circumstances in order to increase the probability of the commission of the offence;

(i) whether the official or his or her agent has exploited a particular vulnerability of the accused such as a mental handicap or a substance addiction;

(j) the proportionality between the involvement of the official or his or her agent as compared to that of the accused, including an assessment of the extent of the harm caused or risked by the official or his or her agent as compared to that of the accused, and the commission of any illegal acts by the official or his or her agent;

(k) any threats, implied or expressed, by the official or his or her agent against the accused;

(I) whether, before the trap was set or the undercover operation was used, there existed any suspicion, entertained upon reasonable grounds, that the accused had committed an offence similar to that to which the charge relates;

(m) whether the official of his or her agent acted in good or bad faith; or

(n) any other factor which in the opinion of the court has a bearing on the question.

(a) If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an undercover operation the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.

(b) When considering the admissibility of the evidence the court shall weigh up the public interest against the personal interest of the accused, having regard to the following factors, if applicable:

(i) The nature and seriousness of the offence, including—

(aa) whether it is of such a nature and of such an extent that the security of the State, the safety of the public the maintenance of public order or the national economy is seriously threatened thereby;

(bb) whether, in the absence of the use of a trap or an undercover operation, it would be difficult to detect, investigate, uncover or prevent its commission;

(cc) whether it is so frequently committed that special measures are required to detect, investigate or uncover it or to prevent its commission; or

(dd) whether it is so indecent or serious that the setting of a trap or the engaging of an undercover operation was justified;

(2) the extent of the effect of the trap or undercover operation upon the interests of the accused, if regard is had to—

(aa) the deliberate disregard, if at all, of the accused's rights or any applicable legal and statutory requirements;

(bb) the facility, or otherwise, with which such requirements could have been complied with, having regard to the circumstances in which the offence was committed; or

(cc) the prejudice to the accused resulting from any improper or unfair conduct;

(3) the nature and seriousness of any infringement of any fundamental right contained in the Constitution;

(4) whether in the setting of a trap or the engagement of an undercover operation the means used was proportional to the seriousness of the offence; and

(v) any other factor which in the opinion of the court ought to be taken into account.

An attorney-general may issue general or specific guidelines regarding the supervision and control of traps and undercover operations, and may require any official or his or her agent to obtain his or her written approval in order to set a trap or to engage in an undercover operation at any place within his or her area of jurisdiction, and in connection therewith to comply with his or her instructions, written or otherwise.

(a) An official or his or her agent who sets or participates in a trap or an undercover operation to detect, investigate or uncover or to obtain evidence of or to prevent the commission of an offence, shall not be criminally liable in respect of any act which constitutes an offence and which relates to the trap or undercover operation if it was performed in good faith.

(b) No prosecution for an offence contemplated in paragraph (a) shall be instituted against an official or his or her agent without the written authority of the attorney-general.

If at any stage of the proceedings the question is raised whether evidence should be excluded in terms of subsection the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest on the prosecution: Provided that the accused shall furnish the grounds on which the admissibility of the evidence is challenged: Provided further that if the accused is not represented the court shall raise the question of the admissibility of the evidence.

The question whether evidence should be excluded in terms of subsection may, on application by the accused or the prosecution, or by order of the court of its own accord be adjudicated as a separate issue in dispute.

This section regulates the procedure for engaging in traps or undercover operations.

S v Kotzé {2010 (1) saker 100 S.C.A} the court noted the the section applies:

a. only to those carried out by a 'law enforcement officer, official of the State or any other person authorised thereto for such purpose'; and,

b. only those carried out 'in order to detect, investigate or uncover the commission of an offence or to prevent the commission of any offence'

No substantive defence of entrapment was created by this section. However, following the general recommendations made by the South African Law Commission, the legislature opted for a qualified rule of exclusion.

Section 252 A (3) (a) — which must be read with section 252 A (1) and 252 A (2) — provides as follows:

“If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an undercover operation the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.”

To avoid the conviction of people who are victims of unfair or improper trapping or undercover operations the section creates, not a defence of entrapment, but an evidentiary rule that is predicated upon a distinction between two classes of conduct engaged in by traps or undercover operations: (a) conduct that'does not go beyond providing an opportunity to commit an offence'; and (b) conduct that does. Evidence obtained in the course of conduct of the which does not go beyond creating an opportunity to commit an offence'shall be admissible'; whereas the admissibility of evidence obtained in the course of conduct which does go beyond the creating an opportunity to commit an offence, is made the subject of a judicial discretion set out in sub-s (a), according to which a court'may' exclude such evidence'if the evidence was obtained in an improper or unfair manner and the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice'

Section (3) (b) stipulates that the court — when considering the admissibility of the evidence — “shall weigh up the public interest against the personal interest of the accused”. The same section also requires the court to have regard to several factors, if applicable. These factors are set out in section 3 b i to 252 A 3 b vi.

Section 3 b iii provides that one of the factors the court is required to consider, is "the nature and seriousness of any infringement of any fundamental right contained in the Constitution."

Section (6) provides that if the question is raised whether entrapment evidence should in terms of section 3 a be excluded, “the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest on the prosecution: Provided that the accused shall furnish the grounds on which the admissibility of the evidence is challenged: Provided further that if the accused is not represented the court shall raise the question of the admissibility of the evidence.”

S v Kotzé (1) saker S.C.A the court stressed that it was important for presiding officers faced with challenges to the admissibility of the evidence of a trap to be aware of and apply the requirement that the accused must furnish the grounds on which the admissibility of the evidence is challenged.

The question whether evidence should be excluded in terms of section 3 a, may — on application of the accused or the prosecution, or by order of the court mero motu — be adjudicated as a separate issue in dispute, that is, by having a trial within a trial.

It should be noted that the discretionary rule of exclusion created by section 3 a, remains subject to the provisions of section 35 paragraph 5 of the Constitution.

Evidence obtained as a result of a trap or undercover operation which went beyond creating an opportunity to commit an offence, may still in the discretion of the court be deemed admissible. However, where the entrapment evidence was unconstitutionally obtained, the provisions of section 35 paragraph 5 must prevail: the court must exclude the evidence if it is satisfied that admission would result in one of the consequences identified in section 35 paragraph 5.

Note: All traps and undercover operations must be authorized by the Director of Public Prosecutions in the specific division. Written authorisation must be granted by the D.P.P prior to commencement of the trap or undercover operation.

The are specific guidelines for the application and authorization of traps and undercover operations and prosecutors must ensure that the guidelines are followed.

253 Saving of special provisions in other laws

No provision of this Chapter shall be construed as modifying any provision of any other law whereby in any criminal proceedings referred to in such law certain specified facts and circumstances are deemed to be evidence or a particular fact or circumstance may be proved in a manner specified therein.

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The repeal of s 254 of the Act and the provisions of the Child Justice Act 75 of 2008

The repealed s 254 of the Act gave the court the power to refer a juvenile accused to a children's court in certain circumstances. With effect from 1 April 2010, the position is governed by sections 50 and 64 of the Child Justice Act 75 of 2008. Section 64 provides as follows:

'64 Referral of children in need of care and protection to children's court

If it appears to the presiding officer during the course of proceedings at a child justice court that a child is a child in need of care and protection referred to in section 50, the court must act in accordance with that section.

Section 50 of Act 75 of 2008 provides as follows:

'50 Referral of children in need of care and protection to children's court

If it appears to the inquiry magistrate during the course of a preliminary inquiry that—

(a) a child is in need of care and protection referred to in section 150(1) or of the Children's Act, and it is desirable to deal with the child in terms of sections and of that Act; or

(b) the child does not live at his or her family home or in appropriate alternative care; or

(c) the child is alleged to have committed a minor offence or offences aimed at meeting the child's basic need for food and warmth.

the inquiry magistrate may stop the proceedings and order that the child be brought before a children's court referred to in section 42 of that Act and that the child be dealt with under the said sections 155 and 156.

Image summary: A text document detailing section 255 of a legal code regarding court orders for enquiries into the Prevention and Treatment of Drug Dependency Act, 1992. It outlines the process for a judge to stop a trial and order an enquiry by a magistrate, the role of the prosecutor's consent, procedures for persons in or out of custody, and the legal status of trial proceedings if a treatment center is ordered. The point is to establish the legal mechanism for diverting individuals with drug dependencies from standard criminal trials to specialized treatment enquiries.

Section 255 of the Criminal Procedure Act must be read with s 37 of the Prevention of and Treatment for Substance Abuse Act 70 of 2008. Section 37 states as follows:

Section 37 Court may order enquiry in terms of this Act

Section of the Criminal Procedure Act, 1977, applies with the changes required by the context to an enquiry ordered by the court if, in any court during a trial of a person who is charged with an offence other than an offence referred to in section of the said Act, it appears to the officer presiding at the trial that such person is probably a person contemplated in section 33(1).

The following sections in Act 70 of 2008 are of special importance in the application of s 255 of the Criminal Procedure Act:

- s 33 (admission of involuntary service user to treatment centre):

- s 34 (admission and transfer of children):

- s 35 (committal to treatment after enquiry); s 36 (committal to treatment after conviction)

Note:

1. in terms of subsection 1(a) the consent of the prosecutor is required before the trial can be converted into an enquiry

2. The prosecutor shall not give such consent, if the offence for which the accused is charged would attracted a custodial sentence. This is most relevant to offences which are stated in the Criminal Law Amendment Act 105 of 1997 – Minimum sentences.

3. The trial can not be converted into an enquiry where the accused is charged with offences mentioned in section 18 of C.P.A – offences not subject to prescription after 20 years.

Competent Verdicts (ss 256 to 270)

There is an instance where a competent verdict is regulated by a statutory provision falling outside ss 256 to 270 of the Act.

Eg. 'Conviction of "statutory intoxication" as a competent verdict on any charge: Section 1 of the Criminal Law Amendment Act 1 of 1988'.

The Cybercrimes Act 19 of 2020 also contains competent verdicts for some of the crimes created by the Act.

Competent verdicts are only possible when permitted by statutory provisions.

Competent verdicts: General rules and principles

The following general rules and principles are applicable to competent verdicts:

(a) If the main charge is proved, an accused should be convicted thereof and no resort may be taken to the provisions of ss 256 to 270.

(b) It is extremely desirable that an undefended accused should be informed timeously of the competent verdicts which may be returned against him, especially where these verdicts relate to offences which place an onus on the accused.

It is irregular for a trial court to warn an accused of the risks of being convicted of a competent verdict only after the court has noted the accused's admissions in regard to such competent verdict.

(c) It is not necessary that competent verdicts should formally be mentioned in the charge sheet or indictment. It is submitted that reference in a charge sheet to the possible application of a competent verdict can be useful and is advisable. But the competent verdicts must be explained to the accused before he pleads, as the accused will in this way 'know the case he has to meet in its entirety'.

S v Motsomi (unreported, T case no C726 04, 12 September 2005) the court stated:

'It is a fundamental and time-honoured principle of our criminal law that every accused must be fully and properly advised of the charge which he/she is facing with sufficient details to be able to answer thereto.. This hallowed principle is intended to avoid the possibility of “a trial by ambush”. This requires that where the State intends to rely on competent verdicts in terms of section 256 to 270 of the Code, that such an accused be informed of all relevant competent verdicts even before he pleads to the charge. Such a step will put such an accused in a position to know and make an informed decision inter alia as to how to plead, which facts to admit and how to conduct his defence. (See S v Velela (4) S.A (C)}} and S v Kester (1) saker (8)}} at 469i. Furthermore such an approach will avert any possible prejudice to such an accused, particularly if he is illiterate, unsophisticated and unrepresented.'

S v Mashinini & Another 2012 (1) saker 604 S.C.A at [11]

'Section 35(3)(a) of the Constitution provides that every accused person has a right to a fair trial which, inter alia, includes the right to be informed of the charge with sufficient detail to answer it. This section appears to me to be central to the notion of a fair trial. It requires in clear terms that, before a trial can start, every accused person must be fully and clearly informed of the specific charge (s) which he or she faces. Evidently, this would also include all competent verdicts. The clear objective is to ensure that the charge is sufficiently detailed and clear to an extent where an accused person is able to respond and, importantly, to defend himself or herself. In my view, this is intended to avoid trials by ambush.'

(d) The legality of competent verdicts in terms of ss 256 to 270, is subject to the principle that the accused should not have been prejudiced in the presentation of his case. An accused has a right to know the case he has to meet

(e) There can in principle be no prejudice if the accused had legal representation

In S v Hasane & others all the legal representatives of the accused formally informed the trial court at the plea stage of proceedings that'the competent verdicts applicable to their charges' had been explained to the accused. There is indeed considerable merit in this practice. It can prevent most of the difficulties that can be encountered should issues arise regarding competent verdicts during the trial itself or later in the course of post-trial proceedings.

(f) Conviction on a competent verdict must be regarded as an acquittal on the main count and does not debar an appeal on a question of law (see Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) saker 431 S.C.A at [7]–[9])).

(g) Presiding judicial officers have a responsibility to consider competent verdicts on a specific charge and should not leave it to prosecutors to alert them to such possible verdicts [6]). This, of course, does not mean that prosecutors should leave it to the bench to raise issues regarding competent verdicts.

Conviction of 'statutory intoxication' as a competent verdict on any charge: Section 1 of the Criminal Law Amendment Act 1 of 1988

Section 1(1) of the above Act provides that in certain defined circumstances a person who voluntarily consumes alcohol (or uses any drug) to the point where criminal non-responsibility sets in and who, whilst in this condition, commits a crime of which he would have been convicted but for the lack of criminal responsibility, is guilty of an offence. Competent verdicts in terms of the Cybercrimes Act 19 of 2020

Certain sections of the Cybercrimes Act 19 of 2020 came into effect on 1 December 2021.

Part 4 introduced a detailed and lengthy exposition of possible competent verdicts. For example: s 18(2) provides that when the evidence on a charge of contravening s 3(1) (unlawful interception of data) does not prove the offence itself or an attempt, conspiracy, incitement or instruction to commit that offence, but proves the contravention of one of a range of other listed offences created in the Act, the accused may be convicted of the offence so proved. The list of offences that serve as competent verdicts to s 3(1) is:

- unlawful access to computer systems of computer data storage 2(1) and (2));

- unlawful possession of data with the knowledge or suspicion that it has been unlawfully intercepted; and

- the use or possession of a software or hardware tool, for purposes of unlawful interception of data 4(1)).

Section 18(10) provides for situations when there is insufficient proof of any of the preceding offences related to unlawful data access and interception, or cyber fraud and forgery or any competent verdict thereof. A conviction is then permitted of an offence which is proved because its essential elements are included in the offence so charged.

Note: this is not a complete list of competent verdicts in terms of the Cybercrimes Act. See further s 18(3) –, for the complete exposition of competent verdicts to all the newly created cybercrimes.

Regarding the three malicious communication offences.

256 Attempt

If the evidence in criminal proceedings does not prove the commission of the offence charged but proves an attempt to commit the offence or an attempt to commit any other offence of which an accused may be convicted on the offence charged, the accused may be found guilty of an attempt to commit that offence or, as the case may be, such other offence.

In terms of the general principles of our common law, attempts to commit common-law and statutory crimes are punishable.

Section 18(1) of the Riotous Assemblies Act 17 of 1956 provides that any person who attempts to commit an offence against a statute or statutory regulation shall be guilty of an offence.

Section 17 of the Cybercrimes Act 19 of 2020 provides specifically for the option to convict an accused of an attempt to commit one of the offences in Part 1 or two (cybercrimes (ss 2 to 12) or malicious communications (ss 14 to 16)).

While s 17 creates the offence of attempt, s 18(1)(a) makes it a competent verdict in respect of the relevant offence charged in terms of the Cybercrimes Act 19 of 2020.

It goes further to allow a conviction on an attempt in respect'of any other offence of which an accused may be convicted on the offence charged', in other words of a competent verdict.

257 Accessory after the fact

If the evidence in criminal proceedings does not prove the commission of the offence charged but proves that the accused is guilty as an accessory after that offence or any other offence of which he may be convicted on the offence charged, the accused may be found guilty as an accessory after that offence or, as the case may be, such other offence, and shall, in the absence of any punishment expressly provided by law, be liable to punishment at the discretion of the court: Provided that such punishment shall not exceed the punishment which may be imposed in respect of the offence with reference to which the accused is convicted as an accessory.

Definition

An accessory after the fact is someone who after the completion of the crime unlawfully and intentionally associates himself or herself with the commission of the crime by helping the perpetrator or accomplice to evade justice.

In terms of this definition, there is no distinction between accessory-after-the-fact liability and the crime of defeating or obstructing the course of justice (or attempting to do so).

A typical example of an accessory after the fact is someone who does not play a part in the killing of another, but who intervenes after the victim's death has resulted and assists the perpetrator by disposing of the corpse, or helping the perpetrator to evade justice in some other way.

However, where the accused renders assistance after the completion of the crime, and such assistance was, in fact, promised before the crime was complete, then, of course, the accused can be an accomplice.

Furthermore, since theft is a 'continuing crime' in the sense that it continues to be committed as long as the thief, his agent or a party to the theft is in possession of the stolen property, one who assists such a person after the original taking, but while the theft 'continues', could be either a perpetrator or an accomplice.

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