Criminal Court Practice Review

Sources of Criminal Court Practice

  • Constitutional Provisions:
    • Section 10: The right to human dignity.
    • Section 12: The right to freedom and security of the person.
    • Section 14: The right to privacy.
    • Section 35: Detailed rights of arrested, detained, and accused persons.
    • Section 36: The limitation clause, governing the extent to which rights can be restricted.
  • Statutory Framework:
    • Criminal Procedure Act (CPA).
    • Criminal Law Amendment Act.
    • Child Justice Act.
    • Law of Evidence Amendment Act.
    • National Prosecuting Authority Act.
  • Additional Sources:
    • Common law as reflected in Law Reports.
    • Academic textbooks.
    • Peer-reviewed articles.

Participants in the Criminal Justice System

  • The Complainant: The victim of the alleged crime; the defence attorney must have no contact with this individual.
  • Police and Law Enforcement:
    • Function: Established by Section 205 of the Constitution to maintain law and order, prevent crime, and investigate offences.
    • Duties: To receive complaints from victims, receive information from informers, and investigate based on requests from the prosecuting authority.
    • Powers: Right to enter property, seize objects, search persons, and witness the commission of offences. They must furnish full particulars to the National Prosecuting Authority via the case docket.
  • Prosecuting Authority:
    • Authority: The Director of Public Prosecutions (DPP) has authority to prosecute on behalf of the state under Section 179(2)179(2) of the Constitution.
    • Hierarchy: High Court (DPP) and Lower Courts (Prosecutors).
    • Functions: Deciding whether to prosecute based on the police docket or sending it back for further investigation. Powers include instituting and discontinuing proceedings.
  • Defence Attorney:
    • Considered the most important role player in protecting the rights of the accused.
    • Empowered by Section 73 of the CPA and the Bill of Rights.
  • Witnesses:
    • State Witnesses: Individuals providing information to the State. The defence may only consult with them if the DPP or representative grants permission (which can be refused for fear of tampering). The DPP is entitled to be present.
    • Defence Witnesses: Anyone not called by the prosecution. These include innocence witnesses and those providing evidence for mitigation of sentence. Attorneys must take written statements to prevent conflicting versions.
  • Correctional Services: Responsible for housing awaiting-trial persons and sentenced prisoners. Prisoners are classified and reclassified during their stay, which can lead to additional privileges.

The South African Court Structure

  • Higher Courts:
    • Constitutional Court: Headed by the Chief Justice and 1010 Justices appointed by the President on the recommendation of the JSC.
    • Supreme Court of Appeal: Headed by the President of the Supreme Court of Appeal.
    • High Court (Provincial/Local Divisions): Headed by a Judge President. Administrative duties are handled by a Registrar and Judges' Clerks.
  • Lower Courts:
    • Regional and District Courts: Led by a Head of the Magistrates' Office. Administration is handled by the Clerk of the Court.
    • Documentation: Proceedings are recorded mechanically by a stenographer. In rural areas, longhand notes may be kept.

Ethics and Conflict of Interest

  • Conflict Definition: A situation that adversely affects an attorney's judgment, loyalty, or prompts preference for one client's interests over another.
  • Representation of Multiple Accused:
    • Attorneys must establish if there are conflicting versions by consulting with co-accused individually.
    • If versions conflict, the attorney cannot represent any of the accused.
    • If conflict arises during trial, immediate withdrawal is mandatory.
  • Public Policy: Agreement to represent co-accused despite a clear conflict is against public policy.
  • Professional Privilege: Does not extend to advice on how to commit an offence. If a client intends to commit a crime, the attorney is not bound by privilege and may be compelled to testify.

Pre-Trial Consultations and Mandates

  • Preliminary Consultation: Establish why the client is seeking assistance. If approached by family instead of the client directly, investigate the reason (e.g., custody or hiding).
  • Accessory After the Fact: Being circumspect if a client is hiding from the police; helping a client hide may result in being charged as an accessory.
  • Termination of Mandate: An attorney may not act for a client currently represented by another until that mandate is formally terminated.
  • Capacity and Fees:
    • Establish time requirements and availability before accepting a brief. Accepting a matter without capacity is unethical.
    • Provide cost estimates. "Fleecing" (accepting a matter knowing you will withdraw due to funds later) is unethical.
    • Refer clients to Legal Aid or cheaper attorneys if they cannot afford fees.

Rights of the Accused

  • Right to Silence: Based on the presumption of innocence. The accused need not assist the State in proving guilt.
  • Questioning vs. Silence: The accused has a right to remain silent but not a right "not to be questioned." Questioning must be within reasonable limits and cannot be the exclusive purpose of taking someone into custody.
  • Judges' Rules: Guidelines for questioning. Though the accused can remain silent, they must furnish their full name and address without delay.
  • Fair Trial (Section 35(3)): Includes the right to a copy of the written statement made to a peace officer and access to the police docket (including the Occurrence Book, identity parade, and registers).
  • Inference of Silence: A negative inference may be drawn if the accused remains silent when there is a strong case to meet at trial.

Search and Seizure (Sections 20-27 CPA)

  • Items Susceptible to Seizure (Section 20):
    • Objects suspected to be involved in the commission of an offence (Objective Test).
    • Objects providing evidence of an offence.
    • Objects believed to be intended for use in an offence.
  • Search with a Warrant (Section 21):
    • Issued by a Magistrate or Justice of the Peace on information under oath.
    • Must be specific regarding the object, premises, and offence. Vague warrants can be set aside on review.
    • Must be executed during the day unless ordered otherwise.
  • Search without a Warrant (Section 22):
    • Permissible if the person consents.
    • Permissible if the officer reasonably believes a warrant would be issued but the delay would defeat the object of the search.
  • Use of Force (Section 48): Peace officers may enter premises forcibly to effect an arrest if they have reasonable grounds to suspect the person is there and permission to enter is refused.

Securing Attendance at Trial

  • Arrest: Should be a last resort. Requirements: physical control, informing of rights (silence and legal rep) in a language understood, and handed a copy of the warrant.
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