Tutorial Letter 201/3/2021
Criminal Procedure
CPR3701
Super Semesters 2021
Department of Criminal and Procedural Law
2
Dear Student
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... [Show More] COMPULSORY ASSIGNMENTS- SECOND SEMESTER
This tutorial letter contains feedback for the compulsory assignments set for the Super
Semester of 2021. All reference to the Handbook are to the prescribed textbook, CRIMINAL
PROCEDURE HANDBOOK 13TH EDITION (2020) by Joubert JJ (ed) (hereinafter, the
Handbook).
MEMO: TUTORIAL LETTER 001 (CPR3701)
ASSIGNMENT 01
Question 1
Discuss the jurisdiction in respect of offences, of the following courts:
1 The Supreme Court of Appeal
2 Provincial and local divisions of the High Court
3 The district courts or magistrates’ courts
4 The regional courts (15)
Answer
1 The Supreme Court of Appeal (See p. 34 – 35 (par. 2.2) of the Handbook
The Supreme Court of Appeal (SCA) is essentially a court of appeal. Thus, the SCA
operates, for all intents and purposes primarily as a court of appeal only and not a court
of first instance. The SCA does not have original sentencing jurisdiction, but may correct
incorrect sentences in accordance with the sentencing jurisdiction of the trial court as a
court of first instance.
In terms of s 172 of the Constitution, the court has inherent power to protect and regulate
its own procedures. The court has the power, like other superior courts, to order the
removal of any person interrupting the proceedings or influencing or insulting any
member of the court—s 41 of Act 10 of 2013.
The SCA has the authority to hear an appeal against any order or judgment of the High
Court and to decide such appeal. Persons who have been found guilty by a division of
the High Court may not automatically appeal to the SCA. The general principle in this
regard is that leave to appeal must first to be sought from the High Court before an
appeal can be made to the SCA.
In terms of s333 of the CPA whenever the Minister of Justice has any doubt as to the
correctness of any decision given by any division of the High Court in any criminal case
on a question of law, or whenever a decision in any criminal case on a question of law is
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CPR3701/201/3/2021
given by any division of the High Court which is in conflict with a decision in any criminal
case on a question of law given by any other division of the High Court, the Minister may
submit that decision or, as the case may be, such conflicting decisions to the SCA, and
cause the matter to be argued before it, in order that it may determine the said question
for the future guidance of all courts.
The SCA may decide any matter on appeal and may enquire into and rule on the
constitutionality of any legislation or any conduct of the President—s 170 of the
Constitution. The SCA may also make an order concerning the constitutionality of an Act
of Parliament, a provincial Act or any conduct of the President, but such an order must be
confirmed by the Constitutional Court—s 172 of the Constitution.
2 Provincial and local divisions of the High Court (See p. 37 (par. 2.3.3) of the
Handbook
Provincial and local divisions have original jurisdiction (in other words the ability to act as
the court of first instance) in respect of all offences.
The divisions of the High Court of South Africa have appeal and review jurisdiction in
respect of criminal proceedings emanating from lower courts. Furthermore, all the main
divisions of the High Court and the Gauteng Division of the High Court, Johannesburg,
when sitting as a ‘full court’ (ie sitting with three judges), have appellate jurisdiction to
hear an appeal in a criminal case decided by a single judge if the questions of law and of
fact and other considerations involved in the appeal are of such a nature that the appeal
does not require the attention of the Supreme Court of Appeal.
3 District courts (See p. 39 (par. 4.1) of the Handbook
A district court has jurisdiction to try all crimes except treason, murder and rape. A district
court may even try some serious offences against the State.
4 Regional courts (See p. 39 (par. 4.1) of the Handbook
A regional court may try all crimes except treason. A regional court may thus try murder
and rape.
Question 2 (See p. 76 (par. 4.13) of the Handbook
In the criminal justice system, the prosecution can do what is legally permissible to set criminal
proceedings in motion, such as determining the charges and the date and venue of the trial.
Discuss the phrase ‘the prosecution as dominus litis’. (15)
Answer
The prosecution can be described as dominus litis (‘master of the case’) [see Zuma 2006 (2)
SACR 257 (W)]. It merely means that the prosecution can do what is legally permissible to set
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criminal proceedings in motion, such as determining the charges and the date and venue of the
trial. An element of residual control by the courts over decisions taken by the prosecution as
dominus litis, remains essential. Fairness to the accused is an important guideline in exercising
this control. The following examples illustrate this point:
In Khoza 1989 (3) SA 60 (T) it was held that the prosecution, precisely because it is dominus
litis, should formulate and consolidate all its charges, in relation to a particular set of facts, to be
tried in a single case.
Similarly, although the prosecution can as dominus litis determine the numerical order in which
several accused are named in the charge or indictment, the court may, in the interests of justice
and fairness, order that the sequence in which the accused present their evidence be varied –
Swanepoel 1980 (2) SA 81 (NC) at 84D.
A presiding judicial officer in a criminal case does not have the authority to close the State’s
case if the prosecutor is unwilling to do so. But if the prosecutor, after an application by him for
the postponement of the trial has rightfully been rejected by the court, refuses to adduce
evidence or to close the State’s case, the judicial officer will continue with the proceedings as if
the prosecutor had indeed closed the State’s case – Magoda 1984 (4) SA 462 (C).
Question 3 (See p. 120 (par. 1) of the Handbook
It is a basic principle of the law of criminal procedure in almost every civilised community that
the trial of an accused must take place in his presence and that the verdict of the court and the
sentence that it imposes must be pronounced in his presence. Critically evaluate this position in
light of the Constitution and judicial interpretation. (20)
Answer
The general rule as to presence at trial was written into s 34 and 35(3)(c) and (e) of the
Constitution, safeguarding access to courts and including (as part of the right to a fair trial) the
right to a public trial (in the case of adult offenders) before an ordinary court of law. The
principle is also contained in s 158(1) of the CPA and is scrupulously upheld by the superior
courts. The following judicial interpretation serves as example of the application of the principles
of presence at trial:
In Seedat 1971 (1) SA 789 (N) the accused was convicted of an offence in terms of the
Insolvency Act. Prior to sentencing the accused, the magistrate called a certain C as an expert
witness in regard to certain bookkeeping matters. This step the magistrate took as a result of a
discussion which he had with the prosecutor in the absence of the accused and his legal
representative. This procedure; it was held upon appeal, amounted to a serious irregularity,
offending against the aforementioned basic principle of presence. The court of appeal
disregarded C’s evidence altogether for purposes of imposing a proper sentence.
In Radebe 1973 (4) SA 244 (O) the magistrate altered the suspension order on the accused’s
driver’s licence in his absence. On review it was held that the magistrate acted irregularly.
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