1

CRIMINAL COURT PRACTICE

Summary of Exams supplemented by course packs

The right to be brought before a court within 48 hours

S50 of the CPA must be read with s35(1)(d) of the Constitution. s50 contains fundamental right that are
entitled to freedom from arrest. It provides that if you are arrested with or without a warrant the
person must be brought as soon as possible to a police station or to any other place mentioned in the
warrant and there detained for a maximum period of 48 hours unless brought before lower court and
further detention is authorized by the court.

Must appear on court day when 48 hour period expires provided it is within court hours. If expires on
public holiday or weekend the must appear before end of next court day before 4 o’clock.

Powers of police to search, seize, arrest, to obtain evidence

Searches

Without warrant

The police official in terms of Section 22 of the Criminal Procedure Act of 1977 may without a search
warrant search any premises FOR THE PURPOSE OF SEIZING ANY ARTICLE referred to in Section 20 (i.e.
concerned in the commission or suspected commission of an offence, may afford evidence thereof, or
to be used in the commission of an offence) IF:

1. The person who may consent to the search of the premises consents to search and
seizure of the article in question

OR

2. (a) If he believes that on reasonable grounds a search warrant will be issued to him under
paragraph 21(l)(a) if he applies for such warrant

AND

(b) The delay in obtaining such warrant would defeat the object of the search.

Entering a premises for purposes for interrogating and obtaining a statement

Without a warrant

S26 empowers a police official in the investigation of an offence or alleged offence where he or she
reasonably suspects that a person who may furnish info with regard to such an offence is on any
premises. Such police official may without a warrant enter such premises for interrogating such a
 2
person and obtaining a statement from him provided that police officer shall not enter any private
dwelling without the consent of the occupier.

A person is entitled to refuse a police official access to the premises in these circumstances in terms of
Section 26. Although he is entitled without a warrant to enter premises in the course of investigation of
an offence and if he suspects a person on the premises may furnish him with information regarding the
offence, he may only interrogate and obtain a statement from such person (Namely James) if the
occupier of the private dwelling (namely Mrs M) consents to his entering the premises for this purpose.
S27(1) deals with resistance against entry and search. It provides that the police official who is lawfully
entitled to search any person or premises may use such force as may reasonably be necessary to
overcome any resistance. They may break any door or window of such premises. Before officials may
use such techniques they must audibly demand admission to the premises and notify the purpose for
which they seek to enter the premises.

S27(2) provides that police officers are not required to audibly demand admission where the police
officer concerned is on reasonable grounds of the opinion that any article which is the subject of the
search may be destroyed or disposed of if the provisions of s27(1) are complied with e.g. with drugs.
This is known as the ‘no knock’ clause.

Ito s28(1) an unlawful search by a police official constitutes an offence and a compensation order may
be made against him.

Questioning of the accused

The accused is not obliged to answer questions. Suspects and accused have a fundamental right to
remain silent (Section 35 (1)(a) and Section 35 (3)(h) of the Constitution). He cannot however refuse to
be questioned but can only refuse to answer the questions.

His refusal to answer questions cannot be held against him at a later trial as his right to remain silent is
enshrined in the Constitution and the accused need not assist the State in any manner whatsoever to
prove his guilt.

The only information which he is obliged to give to the investigating officer is his name and address -
Section 41 of the CPA.

When will one advise a client to make a statement?

Under certain circumstances it is indeed advisable to make a statement, particularly when your client
intends pleading not guilty and has a feasible defence. It could be in his interest to place same on record
as soon as possible to exclude the subsequent argument of the Prosecutor of same being a recent
fabrication. Having a statement on record could also dissuade the prosecutor from proceeding with the
prosecution when he is obliged to weigh up the probabilities of a conviction.

Example: Jack Jones has the right to remain silent. He should advise the police-investigating officer that
he has consulted with his attorney and that he prefers not to make a statement at this stage. He should
further inform the officer that he elects to make a statement either to his attorney or if so advised, only
at trial. Also client should be advised that if he makes a statement, it could be used against him at trial.
 3
Securing the release of the accused and the necessary instructions required

Information to be obtained in initial telephone conversation

Usually from a relative

-Obtain information as to when the accused was arrested?

-Obtain information as to the name and telephone number of the investigating officer who had arrested
the accused,
-The name of the unit to which the investigating officer is attached,
-The name of the police station or prison whereat the accused is detained,
-The facts and circumstances of the alleged offence,
-The personal particulars of the accused, including details as to his residential address, the duration of
his habitation thereat, details as to his employment, income, assets, previous criminal convictions,
evidence of good character, details of probability of conviction.
-Further information regarding his medical condition and information as to the amount of bail the family
would be able to raise.

From the investigating officer

-In which court will the accused appear or has he already appeared.
-Whether there will be an objection to any proposed bail application.

BAIL

After-hours bail

S50(6)(b) provides that there is no more after hours bail subject to two exceptions.

o S59(1)(a) It is only for certain minor offences that can get police bail (from a high ranking
officer)
 Police bail is for any offence that is not in Part II or II of Schedule 2 e.g. theft under
R2500, common assault, <115g of Dagga

o For more serious offences can get prosecutor bail.

 S59A deals with prosecutor bail
 It authorizes the DPP to authorize a prosecutor to release an accused on bail. There
are two important points.
 Only a prosecutor authorized by DPP, which in practice is all of them, can release an
accused. (prosecutor is often at police station)
 The prosecutor can only release after consultation with the investigating officer.

 Prosecutor bail is for Schedule 7 offences e.g. public violence, CH, Assault GBBH,
bestiality
 Call the charge office and speak to the investigating officer. Ask whether there is
any objection to bail. Then contact the prosecutor. Inform him that you want to
bring a bail application after hours and tellhim about the attitude of the
investigating officer. Find out what time the magistrate will be available to hear
 4
the application. Inform the investigating officer. Go to court and bring the
application.

o There are three new schedules i.e. 5,6,7

 Schedule 5 offences are more serious e.g. attempted murder, drugs > 50000,
syndicate fraud, murder, rape. For such offences there is no after hours bail.
 Schedule 6 is the most serious. It consists of aggravate versions of sch5 offences
e.g. murder of a cop, murder of witness testifying against you, gang rape, rape of
a minor or retarded person. For such offences there is no after hours bail.
o Summary
 Schedule 2 (not parts I and II) – police bail
 Schedule 5 – no after hours bail
 Schedule 6 – no after hours bail
 Schedule 7 – prosecutor bail.

The prosecutor and police bail stands until the first court day and a court is empowered to either extend
bail, or if it deems it inappropriate to do so, to consider the application for bail by the accused.

Onus

Although the decisions of the WLD in Attorney-General (WLD) v Van Heerden & Another 1994 (2) SACR
469 (W) and Ellish & Another v Attorney-General (WLD) 1994 (2) SACR 579 (W) are to the effect that no
onus properly so called, saddles either the State or the accused in a bail application, Section 60(11) of
the Criminal Procedure Act no 51 of 1977 (as amended), has imposed an onus in certain cases. If the
accused is charged with an offence referred to in Schedule 5 there is an onus on the accused to satisfy
the Court that the interests of justice do not require his detention in custody. For schedule 6 offences
the accused must satisfy the court that exceptional circumstance exist which permit his or her release.
These applications must also be heard by a regional court.

Schedule 5 includes the offence of murder involving the use of a dangerous weapon or firearm.
Assuming that the accused is charged with murder involving the use of a dangerous weapon or firearm,
he will indeed bear the onus to prove that he will appear at Court at the trial. If such is not the case
then, in terms of the aforementioned decisions, no onus will be placed on either the State or on the
accused.

Where the state does not opposed bail for a schedule 5 or 6 offence the prosecutor ito s60(2)(d) is
obliged to explain why not.

Facts of importance in a bail application

1. That the accused has a fixed residential address.

2. That the accused has a fixed residential address.
3. That the accused has fixed employment and the time period he has been employed
4. The character of the accused.
5. The nature of the crime.
6. The seriousness of the sentence which may be passed.
7. The probability of conviction – strength of state’s case
8. Accused’s ability to travel and to settle in a foreign country.
9. The time period the accused will spend in custody awaiting finalisation of his trial.
 5
10. Evidence that he will not communication with state witnesses or is not able to do.
11. His or her financial status and the amount of bail which he will be able to pay.
12. Will release disturb public order or security or will safety of the accused be jeopardised.

Appeal against refusal to grant bail

Section 65(2) of the Criminal Procedure Act reads as follows:

"An Appeal shall not lie in respect of new facts which arise or are discovered after the decision against
which the appeal is brought, unless such new facts are first placed be fore the Magistrate or regional
Magistrate against whose decision the appeal is brought and such Magistrate or regional Magistrate
gives a decision against the accused on such new facts."

As the Attorney I will first on my own evaluate if the new facts have any relevance to the application for
bail and if I am not satisfied I will proceed with the appeal on the recorded facts.

If the new facts are relevant and have a bearing on the application for bail I will not proceed with the
appeal but will request that the new facts be placed before the same Magistrate who heard the original
bail application for him or her to consider first and then give a ruling thereon. Only after he/she shall
have given a negative ruling on the new facts can I then proceed with the appeal

If do appeal it lies to a single judge of HC – can be a local division.

Procedure

1. Draft a notice of appeal

2. Draft a power of attorney and arrange for the accused to sign and initial every page thereof
3. Notice of appeal should be served on the clerk of the court, the DPP and the magistrate.
4. Obtain reasons from the magistrate
5. Obtain a copy of the court proceedings from the clerk of the court or from transcriber
6. brief counsel furnishing him/her with a copy of the court record, the magistrate reasons and
the notice of appeal.
7. As soon as heads received from counsel the case record should be compiled and indexed,
after which it should be served on DPP and the registrar of HC.
8. A notice of set down will be received from registrar. Inform counsel and attend court at
hearing.

Grounds to justify cancelling bail

In terms of section 68 of the CPA any court before which a charge is pending in respect of which an
accused has been released on bail may order that bail be cancelled, upon information on oath that:
(a) the accused is about to evade justice or is about to abscond in order to evade justice; or that
(b) the accused interferes or threatens or attempts or has interfered or threatened or attempted to
interfere with witnesses; or that
(c) the accused defeats or has defeated or attempted to defeat the end of justice; or that
(d) he or she poses a threat to the safety of the public or of a particular person; or that
(e) the accused has not disclosed or has not correctly disclosed all his/her previous convictions in the
bail proceedings or where his/her true list of previous convictions has come to light after his/her
release on bail;
 6
(f) further evidence has since become available or facts 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 public interest/interest of justice to do so.

Handing the police docket to the presiding officer during a bail application

The role of the court during a bail application is inquisitory and there should be no objection if he
peruses the docket. It should also be kept in mind that the magistrate who hears the bail application,
may in any case not preside in the trial of that case.

METHODS OF DISPOSING OF A CASE / KEEPING IT OUT OF COURT

Strategy to keep matter out of court

Make representations to the Senior Public Prosecutor or Attorney General either to withdraw the
charge if your client has already been charged, or not to institute criminal proceedings against him.

A well motivated representation is required, preferably in writing. If necessary a request for a personal
consultation can be made to either of the above authorities. In practice, a personal discussion or
consultation may suffice.

Example 1:

Factors in favour of client

(1) The personal interests of the accused, that is humanitarian grounds: medical practitioner for 15
years, unblemished record, marrued with three children. financial ruin, etc. If matterr proceeds to Court
even if found not guilty., Medical Council proceedings to follow. e;c., etc.

(2) Interest of the community – not in the interest of the community to lose a medical practitioner,
occurred over a period of 4 years and a relatively amount of money is involved. Only 5 occasions
whereas he must have seen hundreds of patients during the time. Monies have been repaid, etc. etc.

iii) On the Law: the possibility of an acquittal is very real as the legal position is not clear and it can be
argued that he did not have the necessary intention etc.
1. Representations to the SP and DPP

Example 2:

Points to be brought to attention of DPP re drunken driving case

The attorney would point out to the prosecutor that client was stopped at a roadblock and there is no
evidence of drunken driving;
That the alcohol content in his blood was low; and
That the district surgeon found him to be lightly under the influence of liquor at the time when the
blood was drawn.
 7
2. Indemnities

3. Admission of guilt fine

PREPARATION FOR TRIAL

The Charge Sheet

The charge is the point of departure in respect of a trial. The charge against the accused is a written
formulation of the offence concerned. The charge must inform the accused of the case which the state
is bringing against him. (Hugo)

The charge sheet can be obtained by writing a formal letter to control prosecutor or prosecutor in
charge of the case. The letter must set out the case name, and case number (if have), court date, and
remand date.

The charge sheet must be analysed to ascertain

definitions of words;
meanings given to words and concepts in practise as laid down in Case Law;
presumptions applicable;
competent verdicts;
investigate onus of proof;

This is in order to establish the nature and scope of the charge.

Section 85 (objection to charge sheet)

The attorney would object to the charge sheet by giving the prosecution reasonable notice of the
intention to object to the charge and stating the ground upon which the objection is based.

In this instance the objection will be based on the fact that the State does not disclose the identity of
the complainant. Reasonable notice may be waived by the Prosecutor and the Court may, on good
cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.

Access to police docket

An accused is entitled to access to the docket after a trial date has been arranged. This includes access
to the statements of witnesses. The state is entitled to resist a claim by the accused for access to any
particular document in the docket on the grounds that such access is not justified for the purposes of a
fair trial or that there is reasonable risk that access would lead to the disclosure of the identity of an
informer or state secrets or that the disclosure may lead to the intimidation of witnesses or otherwise
prejudice the proper ends of justice.

If the state refuses access to the docket then can apply to the court on the basis of Shabalala and the
state will be obliged to set out the grounds for non-disclosure.
 8
Documents in the police docket required for preparation of trial: Statements of witnesses, SAP diary in
docket, medical report/s

Conflict of interest

You will, as a consequence of there being a conflict of interest between the two accused, not be able to
act on behalf of either of them. The information which you have received from both parties is directly in
conflict with that of the other and, besides being privileged, one would not be able to cross-examine
either of the parties because of this clash of interests. Furthermore a statement made by one accused
can not be used against another accused. You will accordingly be obliged to withdraw from acting on
behalf of both parties.

PLEA

 S106 sets out the type of pleas that are available to an accused who is sane and willing to plead.

1. Guilty (s112)
2. Not Guilty (s115)
3. Autrefois Convict
4. Autrefois Acquit
5. That he has received the state presidents pardon - s84(2)(j) of Constitution.
6. That the court has no jurisdiction because the offence took place outside its jurisdiction.
(O’Carrol)
7. That he has been discharged from prosecution ito s204 relating to immunity granted to state
witnesses.
8. That the prosecutor has no title to prosecute. (private prosecutions)
9. Prosecution may not be resumed or instituted owing to an order by a court under s342A(3)(c)
relating to where there have been unreasonable delays in completion of proceedings such that
court has ordered that the case be struck off the roll.

 S106(2) provides that two or more pleas may be pleaded together except that the plea of guilty may
not be pleaded with any other plea to the same charge.
 S106(3) provides that where an accused pleads other than a plea of guilty or not guilty he must give
reasonable notice to prosecutor but this can be waived. This is so the prosecutor can prepare.
 S106(4) provides that an accused who pleads to a charge, other than a plea that the court has no
jurisdiction to try the offence, or an accused on behalf of whom a plea of not guilty is entered by the
court shall be entitled to demand that he be acquitted or be convicted

Plea of Guilty

 There are two separate procedures, one for serious and one for less serious offences.

Less serious offences

S112(1)(a) provides that an accused person may be convicted solely on a plea of guilty.
 9
This happens where the presiding officer is of the opinion that the offence does not merit imprisonment
or any other detention without the option of a fine or that it will result in a fine of less that R1500.
(Addabba 1992 T)

More Serious Offences

S112(b) – accused not legally represented s112(2) – legally represented

S112(1)(b) deals with the situation where a sentence of imprisonment or any other form of detention
without the option of a fine is likely to be imposed or a fine in excess of R1500.

In such situations the accused will not be convicted on the plea alone. The presiding officer will engage
in an inquisitorial process. The presiding officer must question the accused with reference to the
alleged facts of the case to ascertain whether he admits to allegations in the charge to which he has
plead guilty. If the presiding officer is satisfied that the accused is guilty of the offence to which he has
pleaded, he may convict and sentence him.

The questioning must cover all the elements of the alleged offence ie with theft did he intend to deprive
the person of his ownership permanently. The accused must also be whether he understands the
nature of the charge against him.

Written statement

The court may instead of questioning the accused convict the accused on the basis of the statement ito
s212(2) provided that the court is satisfied that the accused is indeed guilty of the offence to which he
has entered into a guilty plea.

S112(2) covers the situation where the accused or his legal advisor hands a written statement into court
where he or she sets out the facts which are admitted and on which the plea of guilty is based. (B 1991
N) The court has the right to ask further questions if they are necessary to gain further clarity on any
issue in the statement.

A mere repetition of the elements is not satisfactory. It must be made in a first person by accused.
Paragraphs and chronological order is important. Must admit knowledge of wrongfulness during
commission of the crime.

Plea of not guilty

Not Guilty (s115)

If an accused person enters of plea of not guilty the presiding officer may ask him if he wishes to make a
statement indicating the basis of his defence (s115(1))

Where the accused does not make a statement or makes one and it is not clear from the statement to
what extent he denies or admits the issues raised by the plea, the court has a right to ask questions in
order to narrow the issues so that they know what issues are being placed in dispute. (s115(2)(a)) If
accused make certain admissions the prosecution will not have to prove them.
 10
What is contemplated is an objective attempt at determining the facts which are really in dispute, with if
necessary questions for clarification. (Seleke 1980 A)

The state is required to prove an admission made by the accused in his s115 statement unless the
admitted on questioning by the magistrate and recorded ito s220.

Change of Plea

Application to set aside a conviction ito s113: Change of plea from guilty to not guilty

S113 allows the correction of a plea of guilty (ito s112(1),(a) s112(b), s112(2) to not guilty where the
guilty plea was tendered incorrectly i.e if the court is

a. in doubt whether the accused is in law guilty of the offence to which he or she has
pleaded guilty
b. if it is alleged or appears to the court that the accused does not admit an allegation in
the charge
c. that the accused has incorrectly admitted any such allegation or
d. that the accused has a valid defence to the charge or
e. if the court is of the opinion for any other reason that the accused's plea of guilty should
not stand.

This can take place at any stage of the trial before sentence is given.

Example:

The client must be advised that he erroneously pleaded guilty and has a valid defence to the charge and
that you intend to make application to Court in terms or Section 113to have the conviction set aside and
in terms of the common law he also has such right (see Botha vs Attorney General Transvaal).

Procedure

At the next hearing the Court will be advised by the attorney that the accused intends
bringing an application in terms of Section 113 to correct the Plea of Guilty to one of not guilty. The
accused will have to give evidence under oath giving a reasonable explanation as to why he pleaded
guilty and indicating his misunderstanding and mistake in doing so. The Prosecutor will be afforded an
opportunity of cross-examining him. The Magistrate is also entitled to question the
accused. Any other evidence may be led by the defence in support of the Application - After closing his
"case" the Court will be addressed by firstly the defence in support of the s113 application (on the
merits) and then the State whereafter the Magistrate will make a finding.

If the application is successful, the court proceedings will continue as is normal where a plea of not
guilty was tendered at inception. However, the Prosecutor may agree with the facts admitted by the
Accused and close his case, whereafter you may do the same. This will be the case where in the s113
application the accused admits guilt for another offence. The matter will then proceed to sentence.

If the application of the defence was unsuccessful, the matter would then immediately proceed to
sentence.
 11
The accused wishing to withdraw his Plea of Guilty roust give a reasonable explanation as to why he had
pleaded guilty and now wishes to change his Plea. A reasonable explanation could be, for example, that
the pica was induced by fear, fraud, duress, misunderstanding or mistake. The mistake could be simply
that he did not understand the legal process and/or his rights. If he fails to give an explanation the
Court would be entitled to hold him to his Plea of Guilty, If he does give an explanation there is no onus
upon him to convince the Court of the truth of his explanation. Even though his explanation be
improbable the Court is not entitled to refuse the Application, unless it is satisfied not only that the
explanation is Improbable, but that beyond reasonable doubt it is false If there is any reasonable
possibility of his explanation being true, then he should be allowed to withdraw his Plea of Guilty.

Change of plea to guilty

The accused is entitled to change his plea from not guilty to guilty at any stage during the trial and
before judgment is given. By offering a plea of not guilty, the accused may make formal admissions ito
s220 and then change his plea from not guilty to guilty. The plea can only be changed with the approval
of the court and PP cannot accept on behalf of the court. Permission for such a change of plea will
normally only be granted if the accused or his rep succeeds in convincing the court that his original plea
was based on some kind of misunderstanding.

If state proves a prima facie case against your client.

Change of plea to guilty is one way of attempting to prevent the state form leading evidence which
could be detrimental to the accused and which may influence sentencing. If satisfied that the State will
succeed to prove its case, the Accused should be advised to change his plea to one of guilty or close his
case and if he refuses to do so and insists on giving evidence denying his involvement in the offence, the
attorney would be obliged to withdraw as his Attorney of Record.

Before evidence is led

Before evidence is led, the Court is bound by the prosecutor's acceptance of a plea of guilty to a lesser
offence and, providing that all the requisite admissions in respect of such lesser offence are made, the
Court is bound to convict on such lesser offence (S v Ngubane 1985 (3) SA 677 (A) at 683).

If the Magistrate is of the view that the offence falls within the purview of Section 112(1)(a), he would
be entitled to convict client of assault common on the basis of his plea of guilty alone. Alternatively, the
Magistrate might convict the accused on the strength of a written statement tendered by the legal
representative on behalf of the accused. Such statement must contain the facts underlying the plea, as
opposed to the exposition of legal conclusions and must not be a mere regurgitation of the averments in
the charge sheet.

The Magistrate may also, in his discretion put any question to the accused in order to clarify any matter
raised in the statement aforesaid. After conviction the prosecutor would be entitled to address the
Court -in respect of sentence and prove the accused's list of previous convictions, if any. The defence
will also be entitled to address the Magistrate on sentence, or to lead evidence in mitigation. Thereafter
sentence will be passed.
 12
The plea of not guilty who admits in his instructions to advisor that he is guilty

Defending the guilty client

It will be ethical for you to act on his behalf should he plead not guilty. You have a duty to assist client to
the best of your ability.

One however, must ensure that the Court is not misled and no questions may be put to a witness to the
effect that the accused did not commit the offence. One is however entitled to question witnesses on
the identity of the assailant and circumstances under which observations were made, the circumstances
under which the offence was committed and the credibility of the witnesses

When asked for s115 explanation

One would have to exercise the accused's right to remain silent and advise the Court that the accused is
not prepared to make a statement in terms of Section 115 disclosing his defence.

Client admits the crime but believes witness will not be able to identify but after evidence the witness
does manage to do so

A plea of not guilty will be tendered on behalf of client. In terms of Section 115 the court will be advised
either in writing or verbally that the Accused does not wish to divulge his defence. As soon as the
Accused is positively identified the Attorney may cross-exam the witnesses on the reliability of their
identification. It may not be put to the witnesses that the Accused was not present or that he was not
the person involved. An Attorney should encourage his client, if the evidence stands, to change-his plea.
If client does not accept this advice his case will have to be closed immediately after the State's case.

Plea bargaining process – s105A

A prosecutor who is authorised thereto and an accused who is legally represented may enter into a plea
and/or sentence agreement. Before doing so the prosecutor must consider

1. The nature of the offence

2. The personal circs of the accused
3. Previous convictions
4. Interests of the community.

The prosecutor must also consult with the investigating officer and the complainant.

The agreement should be in writing setting out the accused’s rights and the full terms of the agreement
incl substantive facts. It shall be signed by the prosecutor, the accused and his legal rep.

The prosecutor must inform the court of the agreement and the court will confirm with the accused that
there was such an agreement and that it complies with the above prerequisites. The court shall require
that the accused plea to the charge and that the contents of the agreement be disclosed to the court.
The court will confirm with the accused that he admits the contents of the agreement.

If the court is not satisfied with the agreement or that anything has been omitted the court will enter in
a plea of not guilty and order the trial start de novo before a new magistrate.
 13

If the court is satisfied the court may convict the accused and proceed with sentencing.

If the court is satisfied that the sentence is just then the court will impose the sentence. If the court
believes that the sentence is not just then the court will inform the state to that extent. If they agree he
can impose another sentence that he thinks is just. If they don’t that he will enter a plea of not guilty
and refer it to trial de novo.

The section can only be used once per matter.

Section 77, 78 or 79

Section 77-79 provide for those instances where an accused person suffers from a mental illness or
defect.

Section 77 provides for a procedure in terms of which the court may at any stage of the proceedings,
order that the matter be inquired into and be reported in accordance with the procedure set out in s79.
Ito Section 77 the onus is on the state to prove that the accused can understand the proceedings.

Section 78 refers to an inquiry as to whether the accused was criminally responsible at the time of the
commission of the offence.

If your client is potentially insane then you should immediately be alert to the fact that section 77, 78,79
will apply. You will have to enlighten the court as to the position and if necessary obtain medical
evidence eg through the district surgeon and request the court to direct that the matter be enquired
into and be reported on in accordance with the provisions of Sec 79.

REQUEST FOR AN ADJORNMENT OR POSTPONEMENT

The party requesting an adjournment must not be negligent. The three relevant principles are:

1. That it is in the interests of society that someone who is guilty be duly found guilty and should not
escape due to a mistake which could have been prevented had the case been postponed.
2. That the accused is deemed to be not guilty and entitled, when charged, to be tried speedily.
3. That the postponement or adjournment must be necessary of practicable in respect of the specific
case.

Submissions opposing granting of a further postponement

Example 1:

Once indicted an accused person has always been entitled, in terms of the common law, to be tried with
expedition; (S v Geritis 1966 (1) SA 753 (W)). The right to a speedy trial has now been constitutionally
enshrined, in terms of Section 25(3)(a) of the Constitution Act no 200 of 1993. A delay of eight months
occasioned by the complainant's absence from the country, would offend against the accused's right to
a speedy trial. The charge is of a serious nature and ought not to be left hanging over the head of the
accused for such a lengthy period, given his rights as hereintofore mentioned.
 14
1. I would advise the Court that the accused is entitled to a speedy finalization of his trial;
2. The matter has been postponed on a number of occasions as a consequence of the State witnesses
not being present and once again they have failed to attend Court;
3. The accused is being prejudiced in that this is.the fifth occasion on which he has appeared in Court;
4. The accused has already been in custody for 7 months and will be severely prejudiced by a further
postponement of three months;
5. Other personal circumstances of the accused can be placed on record - eg. his inability to work,
support his family, legal costs etc.
6. It is highly unlikely that after this period of time the State will be in a position to locate their
witnesses. It also indicates a lack of interest on the witnesses side relating to this matter.

Example 2

1. The State had sufficient time and opportunity to obtain the presence of the further witnesses at
Court.
2. The witnesses had been subpoenaed and no satisfactory explanation has been offered for their
non-attendance.
3. The Accused is entitled to a speedy trial.
4. The Accused has been prejudiced by not only having to take off time from work, but also to pay for
his additional legal expenses and travelling expenses toand from Court.
5. You therefore oppose the State's application for a postponement as it would be contrary to the
interests of justice for the Accused to be again required to attend Court, as having pleaded he is entitled
to the finalisation of the trial soonest.

COURSE OF CRIMINAL TRIAL

Steps to be followed from arrival at court assuming client wishes to plead guilty

Example:

The attorney will have to firstly introduce himself to the Magistrate prior to the commencement of
court.

The matter is called by the Public Prosecutor and the charge put to the accused. You will either plead on
behalf of your client which he will confirm or alternatively the Accused will plead and you will confirm-
that same is in keeping with your instructions.

The Attorney will then hand in the Section 112 statement, the Accused will be asked if he confirms the
contents thereof. The Attorney will invariably be asked if there is anything further to say on the merits
and the Accused will be convicted.

The Prosecutor will then proceed to prove previous convictions or alternatively advise the court that the
Accused has no previous convictions. If the convictions are proved the Accused will be requested to
admit same.

The Magistrate will then invite the Attorney to address him on sentence and this may be done by either
the Attorney addressing the court from the side-bar, by means of evidence by the Accused under oath
 15
and/or means of evidence from other persons. Thereafter the State will be invited to address the court
on sentence and may also call evidence to place aggravating factors on record.

Prior to sentence a Probation Officer's report may be requested and the matter postponed and made
available to the court.

Once this procedure has been finalized the Magistrate will sentence the Accused.

Course of a crimnal trial where the accused pleads not guilty

1. The name of the accused is called out by the prosecutor.

2. The accused takes up position in the dock.
3. The prosecutor puts the charge to the accused.
4. The magistrate ask the accused if he understands the charge.
5. The magistrate asks the accused if he wishes to plead.
6. The accused pleads “not guilty”.
a. The attorneys stands and confirm the plea.
b. The accused gives his plea explanation either orally or in writing.
c. The accused is asked whether he wishes to make any admissions
d. The admissions are confirmed by the accused.

States Case

7. The prosecutor may address the court ito s150

8. The prosecutor calls his first witness.
a. The attorney should ask for permission to sit
9. The witness is sworn in.
10. The prosecutor leads his first witness(es).
11. The attorney cross-examines
12. The prosecutor re-examines
13. The court can pose questions and if it does, grant the prosecutor and the defence the opportunity to
pose questions flowing from the questions by the court.
14. The state closes its case

Defence Case

15. The attorney can now

a. ask for discharge of the accused
b. close the case for defence without calling witnesses and without letting the accused testify.
c. let only the accused testify.
d. let only witnesses testify.
e. let the accused and witnesses testify in which case the accused should usually testify first.
f. Change plea
16. If the defence intends to lead evidence the attorney may address the court ito s151, whereafter the
procedure in 8-13 above is followed.
17. The defence then closes its case
 16
Closing Arguments

These take place irrespective of whether the accused has testified.

18. The prosecutor addresses the court

19. The attorney presents his argument
20. The prosecutor replies (usually only in respect of matters of law)

Judgment

21. The court may now

a. Find the accused not guilty and discharge him
b. Convict the accused

Sentencing

22. The state proves previous convictions is applicable

23. The accused may present evidence in mitigation and the state may present evidence in aggravation.
This evidence is subject to cross-examination by the prosecutor or attorney respectively.
24. The attorney and thereafter the prosecutor addresses the court on sentence
25. The court may call for any further evidence in order to determine a proper sentence. (s112(3) and
s274 of the CPA)
26. The court then sentences the accused.

Options open to defence after state has closed its case

1. Change of Plea.
An attorney will advise his client to consider changing his Plea from Not Guilty to that of Guilty if it
appears that the State has built up a strong case against his client and that his client will not be able to
anything that could possibly refute the State's case. The advantage is that the Court may take this into
account when considering an appropriate sentence.

2. Apply for the discharge of thee accused in terms of Section 174

if you are of the opinion that insufficient evidence has been placed on record to allow a reasonable man
to convict the accused. The credibility of witnesses does not come into consideration at this stage. Such
an application can always be launched in order to establish the Magistrate's attitude towards the
evidence which has been placed before him at that point in time.

3. Close the case for the defence.

This step should be taken with caution and only when a practitioner is convinced that there is no prima
facie case on record at that point in time. Should the defence not give evidence to rebut that which has
been placed on record by the State, the Magistrate will be entitled to accept the State evidence. This
step should only be taken once you have discussed it with your client, pointed out the pros and cons and
received his instructions to act accordingly.

The question which arises in these circumstances is whether the State succeeded in establishing a prim a
facie case in the sense of a case requiring an answer, failing which such prim a facie case might become
conclusive against the accused. Having regard to the fact that the accused's version amounts to a
 17
confession of theft, he cannot enter the witness box because he is bound to be convicted on his own
version if he does so.

Should it appear during the consultation with client that he is clearly, lying and is obviously guilty it may
be required to close the defence's case in order not to mislead the Court. This step may also be taken if
you are convinced that there is insufficient evidence on record to convict your client. One may also be
obliged to take this step if the evidence against your client is so damning that it is unlikely that any good
will come from the accused placing his version before the court.

4. Lead evidence by the accused or on behalf of the accused

Evidence will have to be led if there is a prima facie case on record and it is necessary for your client to
answer the various allegations made by the state against him. The accused and any other witnesses who
can support his case may be called.

What if state refuses to close their case after not being given a postponement

You address the Magistrate and request that in the light of the State Prosecutor refusing to close the
State's case that the Court deems the State's case closed. Once the State's case has been deemed to be
closed you may apply in terms of Section 174 for a discharge of your client on the basis that no case has
been made against him upon which a reasonable man may convict as there was no evidence tendered
to implicate your client in the commission of the offence / or close defence case and ask for the
acquittal of your client

What if state after plea of not guilty cannot adduce any evidence

As the accused has already pleaded to the charge the Prosecutor can no longer withdraw same. The
State will accordingly have to lead evidence and close the case thereafter. If no witnesses are available it
will most probably occur that the State will close their case whereafter an application for the discharge
of the accused can be brought or one can close the case on behalf of the accused.

Assuming client had plead not guilty but now wished to plead to a lesser charge

Once an accused has pleaded, he becomes entitled to a conviction or an acquittal. This means that the
state may not decide to withdraw the case against the accused if it, for instance experiences difficulty in
finding witnesses.

Example:

Client should be advised that, in view of the fact that he has already pleaded not guilty, he is entitled, in
terms of Section 106(4) and Section 108 of the Criminal Procedure Act no 51 of 1977, to demand that
the issues raised by his plea of not guilty be tried and that he be acquitted or be convicted in terms of
such plea.

Example:

The only evidence, save for the evidence of the complainant, is that contained in the medical report.
This will not be sufficient for a conviction on the charge or any competent verdict thereon. Accordingly
the State has insufficient cognisable evidence to present in order to secure the conviction of client and
the Magistrate would, under these circumstances, be bound to acquit him in terms of his plea of not
 18
guilty. Client should thus be advised not to tender a plea of guilty to assault common, and to demand
that the issues raised by his plea of not guilty be tried forthwith.

EVIDENCE

Leading questions

During the leading of a witness in chief, leading questions are permissible to establish introductory facts
and facts which are not materially in issue. During cross-examination, the cross-examiner is entitled to
put leading questions to the witness. During re-examination the general prohibition against leading
questions applies.

Examples

That his name is W; that he is 70 years of age; that he is unemployed; that on the date alleged he was
present at the Rialto Cafe, Cape Town.

Cross-examination of state witness

What is your duty in respect pf the version of your client in so far as it differs from the witness? –
It is the duty of an attorney to ensure that the version of the accused is put to a witness particularly
where same differs from the witness's version of events. Each and every difference should be put to the
witness. Should you fail to do so the Magistrate will be entitled to accept the version of the witness as
being correct.

What if the witness is not cross-examined at all? - Should the witness not be cross-examined his
evidence can be accepted in its entirety.

What if during lunch the prosecutor, witness under CE, and the complainant are discussing evidence in
the prosecutor’s office? - the conduct of the Prosecutor is indeed an irregularity as nobody is entitled to
discuss evidence with a witness once he/she is under oath. At that point the witness belongs to the
Court.

When the matter resumes the practitioner will question the witness as to whether such a discussion in
fact took place. If he confirms then the practitioner will be entitled to question as to the contents of the
discussion e.g. who said what and what was discussed. If the witness denies the discussion having taken
place the attorney will be able to put it to him that he overheard such a discussion but will not be able
to take the matter very much further.

In the event of the witness confirming the discussion it could very well affect his credibility as a witness
and the value that the magistrate will attach to his evidence. It could in due course found a ground for
appeal/review.
 19
Admissions

Informal v Formal Admissions

The formal admission is the confirmation of an unfavourable fact which is done during the case and
which is intended to place that fact beyond dispute. This differs from an informal admission which can
also be made during legal proceedings, but usually takes place outside the court and does not place the
fact which is admitted beyond dispute. The formal admission, just as judicial notice and presumptions,
provide proof without evidence having been presented. The informal admission on the other hand must
be proved in court and it therefore constitutes evidence regarding the fact which is being admitted.

Formal Admissions

Section 220

Section 220 of the CPA makes provision for formal admissions in criminal cases. It provides that an
accused or his legal adviser may in criminal proceedings admit any fact placed in issue at such
proceedings and any such admission shall be sufficient proof of such fact.

Example:

The written report confirming any injuries to the Complainant may be handed in by consent between
the parties as admissions in terms of Section 220.

HOWEVER it is imperative prior to making the admissions that client fully agrees with the content of the
document and instructs that he has no objections thereto. Only if client has no objections may you
agree to the State Prosecutor handing up the J88 form to me Court as an exhibit whereafter you will
confirm same is handed up by consent and admit the content in terms of Section 220. The Court will
confirm with client that the said admissions are made with his consent. Thereafter the State will be
entitled to close its case.

Informal Admissions

There are no formalities that need to be complied with in respect of informal admissions. It must only
be proved that the admission was made voluntarily in the sense that there was no promise or threat
which led to the admission being made.

s219A repeats the CL requirement that admission must have been made voluntarily and lessens the
burden when the admission was made or confirmed to a magistrate and reduced to writing.

Confessions

A confession is an unqualified admission of guilt, which if it were made in court would have amounted
to a plea of guilty.
 20
The requirements for admissibility of a confession are contained in s 217(1). The state must prove that
the confession is admissible.

NB: If it is an admission the provisions relating to confessions are simply not applicable.

If the prosecutor wishes to submit as evidence a written statement made by your client to prove that
your client confessed to the crime then you must determine whether the statement complies with s217
and 219A.

In terms of Section 217 and 219 A the statement:

1. Must be shown to have been made freely and voluntarily.

2. The accused must have been at the time in his sober senses.
3. There must have been no undue influence exercised on him to induce him to make such a
statement.
4. The accused must have been informed of his constitutional right to remain silent.
5. The accused must have been informed of his constitutional right to require that his legal
representative be present when the statement is taken.
6. The statement must have been made before a Magistrate or a Peace Officer - Even if all of the
requirements are satisfied the confession will still be inadmissible if it was made to a peace
officer other than a peace officer who is a magistrate or justice of the peace unless subsequently
confirmed and reduced to writing before a magistrate or justice of the peace. If it was made to a
non-commissioned officer then it is inadmissible. There is an assumption that it made and
reduced to writing before
7. The accused must have been informed that the statement will be used in evidence against him.

NOTE: Non-commissioned - (sergeant, inspector, constable) Commissioned captains, superintendent,

directors, commissioner.

Cautionary Rules

These are not provisions of law but rather rules of practice which have been created by the judiciary to
serve as an aid in the evaluating of certain classes of evidence, namely that which is regard in legal
practice as potentially unreliable due to either the subject or the type of witness concerned. They have
the compelling character of legal provisions in the sense that non-compliance therewith will normally
lead to the setting aside of the courts finding.

4.4.1 Single Witness - A cautionary rule applies in the case of a single witness namely that the evidence
must be satisfactory in each material respect, unless there is corrobo ration. A court can convict on such
evidence.

4.4.2 Police trap - A cautionary rule exists as invariably the trap has a financial interest in the form of a
reward from the Police. Bear in mind State vs Cronje - where it was held that dishonesty and fraud in the
use of the trap will nullify the

4.4.3 Accomplices - Their evidence should be treated with caution as the possibility exists that the
witness is trying to pass his share in the offence onto the Accused.
 21
4.4 A child witness in a sexual offence - Two cautionary rules will apply, namely, the witness being a
child and the court must establish whether imagination has not played a part and, secondly, as the
offence is one of a sexual nature where various motives can be present in the mind of the witness.

Admissibility of Evidence

Pointings out: Even if a statement by the Accused is inadmissible, evidence that he pointed out certain
things or places will be admissible even if they result from such inadmissible statement (Section 218(1)
of the CPA) The value of the evidence of what has been pointed out lies in the deduction that the
Accused has knowledge of such an item or place. The evidence which is found is admissible.

This could be subject of constitutional decision in due course. There is legal opinion to the effect that an
accused should be warned in terms of judges rules and furthermore advised that he is entitled to have
an attorney present on each and every occasion that he is requested to point out objects/places.

Photographs: A photograph is sometimes regarded as real evidence. Section 232 of the CPA provides
that a party may, with the leave of the court, produce a photograph of an object instead of producing
the object itself in evidence. One must attempt to ascertain which supporting evidence is required in
each specific case to prove the photograph concerned. Usually there will have to be evidence which
shows where and by whom the photograph was taken and the contents (persons and/or objects) will
have to be identified. In criminal matters the State normally produces a photograph album with the
various photographs and a key thereto and a Police photographer will give evidence that he attended on
the scene of the alleged offence and took the photographs in the album.

Hearsay evidence - Hearsay is evidence is admissible during a bail application. It is also admissible if it is
not offered as the truth. Admissible if the person who uttered the hearsay will in any case be called by
the State.

Opinion Evidence – The evidence is generally inadmissible as witnesses are there to provide facts unless
the witnesses opinion may be of material interest to court because the witness is better qualified or in a
better position to from an opinion then the ordinary judicial officer. Reqs: 1. The witness must be
competent to give an opinion regarding the subject. 2. The ground for the opinion must be set out 3.
The court must not subject itself to the opinion of the witness. The court itself must make a finding on
the ultimate issue.

Expert Evidence – The opinions of an expert will be relevant more often that of a layperson as an expert
is specifically qualified to form an opinion. Reqs: 1. The expert must be sufficiently qualified. 2. The facts
upon which the opinion of the expert must normally be stated. 3. The court is not obliged to accept the
opinion of a witness as final, in general also applies in respect of experts.

Compellable witnesses

It is presumed that every person is a competent and compellable witness.

1. Spouse - In terms of Section 196(1)(b) the wife is competent and compellable witness for the defence.
It is not effected where wife where complainant is child born from their marriage – However, – she is
not a compellable witness for a co-accused. She is competent but not compellable for the state except
for the offences listed in s195(1) where the aim is the protection of the family.
 22
2. Accused – can testify in his own case but can not be compelled by the state, court or co-accused.

3. Co-accused – can testify in his own defence but cant be compelled by his co-accused. This is not
affected if the co-accused are spouses. A co-accused can only be called by the state:
 if the charge is withdrawn,
 if he has pleaded not guilty and been formally acquitted and released
 co-accused pleads guilty (usually trials will be separated), if convicted but not sentenced is
compellable but desirable that wait until passing of sentence.
 separation of trial – can be done where both have pleaded not guilty.

4. Mental illness – not competent

5. Deaf mutes – competent

6. Children – not prohibited but practice that not competent

7. Officers of the court – judges not but theoretically attorneys, advocates are although not encouraged.

General

Onus of Proof

The ground rule is that he who avers must prove. Therefore the state bears the onus of proof in a
criminal case, and the state must prove beyond a reasonable doubt all the elements of the offence –
action, the causal link, unlawfulness, mens rea.

Assault v Assault GBH

It is highly likely that your client will be convicted of assault with intent as two blows were struck whilst
he was enraged and this resulted in a serious injury, namely a fracture of the jaw. Even although a
weapon was not used the State could quite easily argue that in the light of the aforegoing intention to
inflict grievous bodily harm is clear. In order to avoid such a charge I would however consult with the
Public Prosecutor and attempt to persuade him to accept a Plea of Guilty to common assault arguing
that a weapon was not used and the possibility exists that your client did not realise that such a serious
injury could have followed.

Informing the state of prior convictions

If prosecutor has SAP 69 which indicates that client has no previous convictions yet you are aware that
your client has previous convictions for a similar offence then the attorney is under no obligation to
inform the court about previous convictions of the accused if the State does not prove it. It is the State's
duty to prove and establish previous convictions. I the circumstances it is advisable in one's address not
to mention the record of the accused in any manner -at best one could state: "the State has not proved
previous convictions". You may not in your address refer to previous convictions of the accused and
then state pertinently that he has no previous convictions. This is because you may not mislead the
court.
 23

Effect of a theft conviction

A conviction of theft could prejudice Mr Scott in one or more or all of the following respects:

-He could be precluded from being a director a company or a member of a close corporation
-He cannot assume any office of trust
-He would have to disclose it in any application for a job which would have detrimental effect on its
outcome. It could effect him should he wish to emigrate.
- He may be denied credit
-He could go to jail for 12 months should he be convicted of any offence involving dishonesty over the
next five years.
-It could effect partnership prospects
-Reputable business houses would be reluctant to support his repairs business, ETC

Section 35(4)(a) – Forfeiture Order

The Court which makes an Order declaring an article forfeited to the State, within a three year period
from the date of the Forfeiture Order and on the application of any person other than the accused who
claims a right in terms of sub-paragraph (i) or (ii), inquire into and determine any such right and grant
relief in terms of this Section.

Section 31

In terms of Section 31:

(a) If no criminal proceedings are instituted in connection with the item seized, the item seized be
returned to the person from whom it was seized PROVIDED Mrs M may lawfully possess the same as
confirmed by her authentic documentation;
(b) If the person may not lawfuly possess the item sezied due to falsified documentation the item
seized shall then be forfeited to the State.

SENTENCING

Types of sentences

S276 lists permissible sentences –

1. Imprisonment
2. Committal to a treatment clinic
3. A fine
4. Correctional Supervision - What is correctional supervision? It is set out in s276(1)(h)&(r). It is
essentially house arrest. It will also often involve house arrest, monitoring and community
service. It is where you need a heavy sentence but prison would be too disruptive. A court can
order a maximum of 3 years. You can go to work from 7AM to 7PM but you are confined to your
house from 7PM to &AM and on weekends. It is a revolutionary sentence.

S v Omar 1993 – correctional supervision is an excellent alternative to prison.

 24
S v R 1993 A – correctional supervision is not a soft option and it is a jail sentence. The
magistrate must specify in detail the specifics of correctional supervision.

These sentences can be modified by being

1. Suspended on various conditions
2. Conditional or unconditional postponement.
3. Caution or discharge

 A suspended sentence is an effective sentence suspended for a period (max 5 years) on the
condition that should the convictee not be found guilty of a similar crime within that period, the
execution of the sentence is suspended. Other positive or negative conditions can be imposed. If
you break the condition then you receive the punishment. The condition must be certain and
unambiguous and must relate to the crime that the accused was charged with i.e. not theft and
drunken driving. It hangs over his head like a sword. (Allart 1984 T)
 A postponed sentence is when the sentencing is postponed for 5 years. The accused may be
ordered to appear at court at a later date before the expiry of the period. If the offender is not
called to court, or if the court finds that the conditions have been met, no sentence is imposed and
for record purposes the result of the trial is a caution.
 S297(1)(c) allows a court to discharge any offender with a mere caution. The discharge has the
effect of an acquittal, but the conviction is still recorded and counts as a previous conviction.

S300 – Compensation Order

Section 300: Where a person is convicted of an offence which has caused damage to or loss of property
belonging to some other person the Court may, upon the Application of the injured person or of the
prosecutor acting on the instructions of the injured person, forthwith award the injured person
compensation for such damage or loss. In order to prove damages the Court may refer to the evidence
and proceedings at the trial and may hear further evidence either under oath or by way of affidavit.

An award made under this Section has the effect of a civil judgement in the Magistrate's or Supreme
Court (whichever is applicable). The usual civil steps to obtain satisfaction of the judgement are
available to your client. The amount is limited to 300000 in RC and 60000 in DC

The reqs are:

1. the offence of which the person has been convicted must have caused damaged to the property of
another. No claim for potential loss.
2. the compensation award can only be applied for after conviction.
3. the aggrieved party himself or prosecutor on his instructions must apply that a certain amount must
of compensation must be awarded to him.
4. A separate investigation of a civil nature is determined as in case of civil claims.

Example:

You as attorney, will advise your client that the accused will first have to be convicted and that
thereafter an application can be made, either by himself personally, or you as the attorney acting on his
behalf, or the prosecutor requesting the court to award compensation for the damage or loss.
 25
Your client will have to place you in possession of the quotation relating to the repairs and you will have
to be prepared either to prove same by way of an affidavit or by leading an expert witness (being the
person who prepared the quotation) in court in order to satisfy the court as to quantum.
The effect of such order is the same as a civil judgement of that court.

Competent Verdicts

Culpable Homicide

Competent verdicts on a charge of Culpable Homicide are the following:

1. The offence of assault with intent of do grievous bodily harm.

2. The offence of robbery.
3. In a case relating to a child the offence of exposing an infant whether under a statute or at
Common Law, or the offence of disposing of the body of a child in contravention of Section 113
of the General Law Amendment Act 1935, concealing the fact of its birth.
4. The offence of common assault.
5. The offence of public violence.
6. The offence of pointing a firearm, air gun or air pistol in contravention of any law.

Murder

Competent verdicts on a charge of murder are the following:

1. Murder
2. Culpable manslaughter
3. Assault with the intent to do grievous bodily harm.
4. Common assault.
5. Public Violence.
6. Pointing of a firearm.
7. Exposing an infant with intent to conceal the fact of its birth.
8. Disposing of the body of a child with intent to conceal the fact of its birth.

FACTORS IN MITIGATION OF SENTENCE

The court will take into account the 3 factors known as the triad of sentencing. 1. Personal
circumstances of the accused. 2. Seriousness of the offence. 3. Interests of society.

1. Remorse:

1. Client pleaded guilty;

2. Client co-operated with SAPS etc;
3. Client made a confession/incriminating statement;

2. Personal Circumstances:

1. His age;
2. Dependents; Married-family
 26
3. Income;
4. Education
5. Employment
6. First Offender
7. Clean driver's licence

3. Other "Penalty"

1. Client caused death of child or family member in case of Culpable

2. Homicide
3. Client loses his employment, promotion, increase, status, spouse;
4. Disciplinary investigation by employer;
5. Property (for example firearm) forfeited

4. Repayment of aggrieved party (Section 300):

1. Civil claim instituted insurance paid out

2. Insurance paid out
3. Stolen goods returned
4. Damages compensated

5. No previous convictions

6. Drunkenness

7. Provocation.

8. Influenced by others

9. Various sentences that may be imposed

10. Details of the offence

1. Circumstances under which he drove;

2. Damages minor;
3. Damages repaired, etc.

Placing evidence before the court

The evidence in mitigation can be led:

1. By means of a statement from the bar.

2. By means of evidence by the accused under oath.
3. By means of evidence of other persons.
 27
Address Regarding Sentence

Must bear in mind the triad of sentencing:

1. The interest of society – disapproval and protection of the community

2. The offence – nature and seriousness
3. The accused – his personal circumstances

 -Ideally court should try to find a balance between these three factors. What sentence would society
expect when balancing the Accused's personal circumstances with the offence? Must note Objects
of sentence: Retribution or prevention, deterrence and rehabilitation (Accused hardly likely to
repeat).
 -Court should strive for consistency but not at the expense of individualisation.
 -Admit the interest of society but state client still deserves special consideration.
 -Give resume of evidence in mitigation stressing its quality.
 -Refer to aspects which may affect discretion of the court – principles set out by writers.
 -Suggest a sentence which you believe would be appropriate.

PRECEDENTS

Representations to avoid suspended sentence being implemented

You would set out:

1. The full personal circumstances-of he-Accused.

2. The fact that 2 years have elapsed since his last previous conviction.
3. The quantity of dagga was small - only one "pill".
4. If the Court viewed the matter so severely in this present instance, the Court would not have
imposed merely a fine with ALTERNATIVE of imprisonment, but direct imprisonment without
the option of a fine.-
5. The Court imposed a sentence having the effect of keeping him out of prison so it would defeat
the object of the sentence of a fine to now bring into operation the suspended sentence.
6. If now imprisoned Accused will lose his job and all the disastrous effects thereof will follow.

Representations re sentences other than direct imprisonment

Example 1

THUS: Ask for fine/suspended sentence.

AND: ARGUE ACCUSED NEEDS DRIVER'S LICENCE FOR WORK / NO SUSPENSION OF DRIVER'S LICENCE
NECESSARY / ADVERSE EFFECT OF SUSPENSION OF DRIVER'S LICENCE ON EMPLOYMENT, ETC.
 28
Example 2

The following sentences may be applicable:

a) A fine which can be coupled with suspended imprisonment.

This will have the effect of keeping the accused out of jail. It can be argued that should he be imprisoned
he will lose his job and will accordingly not be in a position to compensate the complainant. A fine will
also have a deterrent effect and also serve as punishment.

(b) A period of imprisonment suspended in its entirety for a period of time.

This can be made subject to certain conditions eg. that the accused repay the complainant within a
certain period of time.

(c) Periodical imprisonment.

Although this is not quite in keeping with the accused's desire to remain out of jail, it is an alternative in
the event of the Court feeling that imprisonment is the only option. It would at least have the effect of
the accused being able to keep his employment and repay the complainant.

(d) Correctional supervision in terms of Section 276(l)(h).

Such a sentence would allow him to continue with his employment, repay the complainant and will also
take into consideration the general rule that first offenders as far as possible are kept out of prison. It
has also been held that correctional supervision is a severe punishment

Representations in order to avoid imprisonment where client cannot pay the sentence

The attorney can make application to the court to suspend the payment of the fine:

 until the expiration of a period not exceeding five years; or

 on condition that the fine is paid over a period not exceeding five years in instalments and at
intervals determined by the court.

This request will only be considered favourably if the accused is able to provide the court with
information which will convince it that, although the accusedjs unable to pay the fine at that stage, he
will be able to pay it if he is allowed to pay it off over a period or before a specific date in future.

Strategy to reduce sentences (pleaded guilty)

Once your client has decided to plea guilty it is your obligation to do everything in your power to obtain
the lightest possible sentence for your client. This is usually done by speaking to the prosecutor
involved.

Married man who cannot afford to go to prison or give up his drivers licence

All attempts would be made to keep your client out of jail. You would accordingly suggest that the court
impose a heavier fine than the one before as well as a lengthier period of suspended imprisonment.
 29

This is however highly unlikely and you may have to resort to requesting the court to consider
correctional supervision in terms of section 276(l)(h). This would have the effect of allowing your client
to continue with his employment.

One may furthermore be obliged to request the court to consider a suspended term of imprisonment
subject to strict conditions eg your client having to undergo certain forms of treatment. You may
furthermore request the court to commit your client to an institution in order to receive the required
treatment.

As far as his driver's licence is concerned a request will be made that same not be suspended or
cancelled but endorsed.

Collision

The accused is a responsible and respected member of society who makes a valuable contribution to
society in general and his ,family in particular. To such a person direct imprisonment would amount to a
very drastic punishment not commensurate with the gravity of the offence in the circumstances. The
gravity of the offence is determined primarily by the moral blameworthiness of the accused, and the
consequences of the offence are not necessarily decisive in this regard. What is of primary importance
as far as the accused's moral blameworthiness is concerned, is the reason for the collision and the
extent of the accused's negligence causally related thereto. The accused's admission regarding the
drinks he had had before the collision is a neutral factor which does not affect his moral
blameworthiness at all. This is so because it has not been shown that his drinking had any effect on his
driving or in any other way contributed to the collision. Furthermore, the accused ought not to be
punished for something which is either not a crime at all or, if it is, for which he has not been charged.
Direct imprisonment will have a drastic effect, not only on the accused, but also on his family, in view of
the accused's income a sentence other than direct imprisonment, such as a substantial fine, will provide
for all the objectives of punishment so that, direct imprisonment is not the only appropriate punishment
under the circumstances.

Collision killing a pedestrian

The following should be placed before the Court in mitigation of sentence:

Personal circumstances of the accused:

Age, family connections (dependants), his income, his type of work and for how long he has been in
employment, any organisations to which he belongs, his status in life etc.

Remorse:

He has pleaded guilty

He made a statement to the Police from the outset-cooperation.
He has contacted the family of the deceased and made financial arrangements for burying
the deceased etc
 30
Penalty:

 He has suffered damage to his own vehicle and a possible civil claim will be instituted against
him by the family of the deceased and he will lose his insurance cover as a consequence of the
conviction.
 He himself was injured
 A passenger in his vehicle was injured
 His licence will no doubt be endorsed with this conviction which will affect his employability
(eg. If he wants to obtain a Public Drivers Permit)
 He now has a previous conviction relating to a serious offence
 Accused has suffered trauma and is now receiving psychiatric treatment.
 No previous conviction - remind court of basic principle that first offenders should be kept out of jail
if possible.

The following aggravating circumstances will have to be countered:

 The prosecutor may wish to argue that alcohol played a role in this offence - client has not been
convicted of drunken driving and it is a known fact that sober drivers also commit this offence
namely culpable homicide with a motor vehicle
 Prosecutor may argue that a motor vehicle is a dangerous instrument that is to be driven with
utmost care - whilst this is so, a small degree of negligence can have consequences which far
outweigh the degree of negligence.
 Prosecutor may bring to the Court's attention the high rate of deaths involving pedestrians - this
should not be overemphasised by the Court as there is invariably contributory negligence on the
part of pedestrians
 Prosecutor may argue that collision happened at a pedestrian crossing - while this is so there is also
a duty upon a pedestrian to exercise care while crossing at a pedestrian crossing.
 Prosecutor may remind Court of media campaign - drive alive - this should also not be over-
emphasised as the degree of negligence in this particular matter was slight.
 Prosecutor may also state that collisions cost the country excessive amounts of money e.g. Traffic
Officials being obliged to man the country's roads on a 24 hour basis - this will have to be done in
any event, (etc, etc, etc)

APPEAL V REVIEW

Appeal

Against conviction

In order to decide whether to appeal must:

1. look at whether the court erred in drawing inferences from the evidence and/or in finding with
regard to the legal position.
2. Whether , it the conviction were to be set aside, it would not be replaced by a conviction on
another lesser offence.

The court will only interfere with the finding of the lower court on the facts if it is convinced that the
finding is wrong. Doubt is not enough.
 31

Against sentence

Must be approached with great caution as sentencing is something which falls exclusively in the
discretion of the court and the court of appeal will not easily interfere. The basis question is not
whether the sentence is wrong but whether the trial court exercised its discretion duly and judicially.
The sentence must be such that it is ” shockingly inappropriate” or causes a feeling of shock.

Review

 S24 sets out the grounds on which the High Court can review proceedings. The fact that the grounds
are set out means that they are circumscribed
 They are:
a. Absence of jurisdiction.
b. Interest in the cause, bias, malice or corruption on the part of the presiding officer – lack
of good faith or ulterior motive
c. Gross irregularity.
d. Admission of inadmissible or incompetent evidence or rejection of admissible or
competent evidence.

Look out for: excluding of admissible evidence, using inadmissible evidence, refusal to recuse, curtailing
of cross-examination.

Example:

Mr Scott has a right of appeal against the conviction and sentence. The basis being that the State did not
discharge the onus upon it. ie. no evidence that the video machine on Mr Scott's premises was in fact
the one stolen from Mr Abel's residence.

Alternatively Mr Scott can also have the conviction set aside through review proceedings as the
magistrate misdirected himself in several respects.

Procedure

Review (check)

1. Affidavit by accused setting out the irregularity in connection with the proceedings so that the
grounds, facts and circumstances are indicated which form the basis of the setting aside of the
findings.
2. Draw the notice of motion citing the presiding officer concerned as a respondent and issue at the
registrar of Supreme Court.
3. Serve the notice of motion and supporting affidavit on all interested parties.
4. The respondents are obliged to file the record and any opposing affidavits within 15 days of
receipt thereof, whereafter the applicant may supplement its founding affidavit within 10 days.
 32
Appeal

1. Complete power of attorney and have it signed by the accused

2. Prepare notice of appeal
3. File the power of attorney and notice of appeal with clerk of the (criminal) court within 14
days of conviction and sentence. ( The clerk of the court will furnish a copy to the presiding
magistrate.)
4. Apply for bail pending the Appeal (Where applicable)
5. Should the Magistrate file further reasons for sentence, amend the Notice of Appeal, if necessary
and serve timeously on the magistrate.
6. Apply for copy of record of proceedings and peruse court file to ensure record is correct and
Court file paginated.
7. Await notification of Set Down of Appeal from Attorney-Generals office
8. Advise Client of date of hearing
9. Where the attorney does not intend to appear himself brief counsel with copy
of record to peruse same and instruct Counsel to prepare Heads of Argument and argue appeal.
10. Serve 2 copies of Heads of Argument timeously on Registrar and Attorney General.
11. Attend Court on argument of Appeal.
12. If client not at Court, advise client fully of outcome thereafter.

If fail to comply with the time period in 3 above then an application for condonation for the late filing of
the Notice of appeal will have to be brought. An Affidavit drawn by the accused and supported by his
attorney if necessary and vice versa must be utilized in support thereof.

PRECEDENT –

NOTICE OF APPEAL

1. You are still in the court a quo ie mag court and therefore same case number.
2. You can appeal against either conviction and sentence or just sentence. (Read the question carefull)

SENTENCE

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF CAPE TOWN HELD AT CAPE TOWN

CASE NO:
In the matter between:

C Appellant

and

THE STATE Respondent

 33

NOTICE OF APPEAL

KINDLY TAKE NOTICE that the abovementioned Appellant hereby notes an appeal to the Supreme Court
of South Africa (Cape of Good Hope Provincial Division against the sentence on a charge of culpable
homicide by the learned Magistrate Mr ..

in the District/Regional Court of Cape Town held on ............ on the following grounds:

1. The learned Magistrate over-emphasised the seriousness of the offence and the interests of society.
2. The learned Magistrate erred in finding that the interests of society can only be addressed by direct
imprisonment in the circumstances of this case.
3. The learned Magistrate erred in finding that motor vehicle accidents cause severe harm to the
economy without any admissible evidence to support such finding.
4. The learned Magistrate erred and misdirected himself in imposing direct imprisonment on the basis
that the death of a person cannot be determined in money and, in so doing, over-emphasised the
object of retribution in punishment.
6. The learned Magistrate erred and misdirected himself in finding that the Appellant showed no
remorse on the basis of the fact that he changed his plea to one of guilty only after the State's case
was closed.
7. The learned Magistrate erred and misdirected himself in finding that people such as the Appellant
ought to be removed from society and, in so doing, under-emphasised the Appellant's personal
circumstances.
8. The learned Magistrate erred and misdirected himself in failing to pay any heed, alternatively
sufficient heed, to the consequences of direct imprisonment upon the Appellant, including the fact
that the Appellant and his family would lose their home, under circumstances where the learned
Magistrate ought to have had regard to such factor as one of the unavoidable consequences of the
punishment imposed.
9. The sentence of five years' imprisonment is so excessive that it induces a sense of shock.

DATED ON THIS THE 5TH DAY OF JANUARY 1996 AT CAPE TOWN

JOE BLOCK
Attorney for the Appellant

TO:
THE CLERK OF THE COURT MAGISTRATE'S COURT CAPE TOWN
 34
IN THE REGIONAL COURT OF THE REGIONAL DIVISION NORTHERN TRANSVAAL HELD AT PRETORIA

In the matter between:

JOHN SMITH APPELLANT

and

THE STATE RESPONDENT

NOTICE OF APPEAL

Please take notice herewith that the abovementioned appellant intends to appeal to the High Court,
Transvaal Provincial Division, against the judgment and sentence brought against him on 6 August 1997
in the Regional Court for Northern Transvaal, held at Pretoria and on the following grounds:

1. The honourable regional magistrate erred in finding the appellant guilty on the charge of
rage.
2. The honourable regional magistrate erred in accepting the evidence of the complainant
regarding the identity of the appellant under circumstances which made this difficult.
3. The honourable regional magistrate erred in accepting the evidence of the complainant in
general in view of the fact that she contradicted herself on a number of occasions
regarding material aspects.
4. The honourable regional magistrate erred by not accepting the appellants^ version as
reasonably true.
5. The Sentence causes a feeling of shock.
6. The honourable regional magistrate erred by sentencing the accused to a period of 12
years imprisonment and thereby exceeding the jurisdiction of 10 years.

IN THE REGIONAL COURT FOR THE DISTRICT OF PORT ELIZABETH

HELD AT PORT ELIZABETH
Case Number: rcl/145/98

In the matter between:

C APPELLANT

and

STATE RESPONDENT

NOTICE OF APPEAL
 35
BE PLEASED TO TAKE NOTICE that the abovementioned appellant hereby notes an appeal to the Eastern
Cape Division of the High Court of South Africa against his conviction and sentence in the Regional court
at Port Elizabeth on the 2nd day of April 1998 on a charge of armed robbery.

The Appeal is noted on the following grounds:

Ad Conviction:

1. The Magistrate erred in admitting the confession made by the appellant as evidence and should
have held that the confession was not freely and voluntarily made by reason of the fact that the
evidence disclosed that same was extracted by way of an assault.

2. The Magistrate, by his remark during the appellant's evidence in chief "only an idiot would believe
this" had prior to the conclusion of all evidence already made up his mind to disbelieve the
appellant. This was grossly irregular.

3. The Magistrate erred in accepting the identification of the Appellant by the witness Slabbert that
the Appellant was the person who left the bank in haste and accordingly was the robber.

4. The Magistrate erred in holding that the identification parade at which the witness Slabbert
identified the appellant was properly constituted and held and should have found that as Slabbert
had advised the investigating officer that he had seen a photograph of C in the paper prior
thereto, same should not have been held. The Magistrate further erred in finding Slabbert's
identification of appellant to be reliable.

5. The Magistrate erred in rejecting the evidence of the accused substantiated by his witness D as
being false when he has insufficient grounds to do so.

Ad Sentence:

The Magistrate, in sentencing the appellant to ten years imprisonment:

1. Failed to take into account the personal circumstances, including the age, of the appellant, the fact
that the appellant was a first offender and that the appellant had led an exemplary life until the
time of the offence.
2. Imposed a sentence that induces a sense of shock.

DATED AT PORT ELIZABETH ON THIS THE 18TH DAY OF JULY 1998

XYZ Per:
Appellant's Attorneys 10 Cherry Street
Port Elizabeth

NOTE: The refusal of a witness to take the oath is not a ground of appeal
 36
PRECEDENT – S115 STATEMENT

IN THE REGIONAL COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA

Case No: RC1/15/99

In the matter between:

THE STATE

and

GEORGE JACOBS

STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT, 1977

I,
GEORGE JACOBS,

do hereby declare that:

1. I am the accused in this matter and I understand the nature of the charge against me.
2. I hereby plead not guilty to the charge.
3. I admit that:
a) On the 21 st of July 19991 was at a tavern in Proes Street, Pretoria.
b) I admit that I struck the deceased one blow on the head with an iron bar.
c) I admit that I struck the blow subsequent to the deceased having stabbed me with a kni fe
and acted in self defence.
4. I admit that the blow to the head of the deceased caused his death and admit the contents of
the post-mortem report ofDr Strauss, dated the 22nd of July 1999 as being true and correct.
5. I furthermore admit the contents of the police photo album as correctly depicting the scene of
the incident as on the day in question.

IN THE REGIONAL COURT FOR THE DISTRICT OF PORT ELIZABETH HELD AT PORT ELIZABETH CASE NO: 123/00

IN THE MATTER BETWEEN

The State

and

Mr A

STATEMENT IN TERMS OF SECTION 115

 37

I,
Mr A,

do hereby declare that

1. I am the accused in this matter and understand the nature of the charge against me.
2. I hereby plead not guilty to the charge.
3. I admit that:
4. On the 1st of February 2000 and at the Pub and Grub, Port Elizabeth, I struck the deceased one
blow in the face with a fist.
5. I struck the said blow whilst I was involved in a fight with the deceased and in self defence.
6. I admit that the deceased is Mr X.
7. I admit that he died at Port Elizabeth on 1 February 2000.
8. I admit that the cause of death was a brain haemorrhage caused when the deceased struck his
head against a rock when he fell.
9. I admit that the deceased sustained no further injuries from the time that he was taken from
the scene of the incident until such time as he died at the hospital.
10. I admit as being correct the contents of the medico-legal report of Dr Angev that is dated at
Port Elizabeth on this the 2nd of February 2000.

___________________
MR A

_________________________________________________________________________

I,

A,

do hereby declare that:

1. I am the accused in this matter and I understand the nature of the charge against me.
2. I plead not guilty.
3. I admit that on the 24th day of December 1993 I stabbed the complainant once in the chest with
a knife, causing an open wound
4. I aver that I stabbed him in self-defence during the course of a fight when the complainant was
armed with a knife.
5. I confirm that the admissions may be recorded as such in terms of s220

STATEMENT IN TERMS OF SECTION 115 of ACT 51 of 1977

1. I, JOHN DLEPU, hereby plead not guilty to the charge as set forth in the charge sheet.
2. I admit that I entered the premises of XYZ Stores on the 1st of April 1997.
3. I admit that an electric razor was found in a kitbag in my possession outside of the store and
that the said razor was the property of the Complainant store. I deny that I had the intention to
 38
steal the razor and aver that same must have found its way into the kitbag by an error on my
part. (Any reasonable explanation can be accepted)

DATED AT PORT ELIZABETH ON THIS THE 4th DAY OF JULY 1997

JOHN DLEPU

IN THE REGIONAL COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA

Case No: RC1/15/99

In the matter between:

THE STATE

and

GEORGE JACOBS

STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT, 1977

I,

GEORGE JACOBS,

do hereby declare that:

1. I am the accused in this matter and I understand the nature of the charge against me.

2. I hereby plead not guilty to the charge.

3. I admit that:

a) On the 21 st of July 1991 was at a tavern in Proes Street, Pretoria.

b) I struck the deceased one blow on the head with an iron bar.
c) I I struck the blow subsequent to the deceased having stabbed me with a knife and acted in
self defence.

4. I admit that the blow to the head of the deceased caused his death and admit the contents of the
post-mortem report of Dr Strauss, dated the 22nd of July 1999 as being true and correct.

5. I furthermore admit the contents of the police photo album as correctly depicting the scene of the
incident as on the day in question.
 39
6. I furthermore admit as being true and correct the report, dated the 24th of July 1998, of
S.Pathologist, relating to the blood of the deceased being found on the iron bar.

7. I furthermore admit the fingerprint report of Sergeant Thyus, of the South African Police Service,
as being true and correct.

The admissions referred to hereinbefore can be formally recorded as being admissions in terms of
Section 220 of the Criminal Procedure Act

DATED at PRETORIA on this the 31st day AUGUST 1999.

GEORGE JACOBS
__________________________________________________________________

PRECEDENT - S112(2) STATEMENT

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF PIETERMAR1TZBURG HELD AT

PIETERMARITZBURG. (OR MOOI RIVER)
Case No 123/99

In the matter between

THE STATE

and

MR NAIDOO

STATEMENT IN TERMS OF SECTION 112 (2) OF THE CRIMINAL PROCEDURE ACT, 1977

I,

Mr Naidoo

do herby declare that:

1. I am the accused in this matter and I understand the nature of the charge against me.
2. I admit that on the 23rd of March 1998 I was the driver of motor vehicle ND 345 and I was driving
same on the road between Pietermaritzburg and Mooi River, a public road within the area or
jurisdiction of the above Honourable Court.
3. I furthermore admit that the said vehicle was bought to a halt by myself at a road block and that
within 2 hours of driving the said vehicle a blood sample was drawn from my body and was
correctly analyzed.
4. The alcohol content of the said blood sample, expressed in grams per 100ml of blood, was, 11%.
5. I admit that at the time of driving and at all relevant, times hereto I was aware of the fact that it is
an offence to drive a motor vehicle whilst the alcohol contents of ones blood exceeds ,08 per cent.
6. I accordingly plead guilty to the charge.
 40
DATED at PIETERMARITZBURG on this the 10th of June 1998.
MR NAIDOO (8)

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF JOHANNESBURG HELD AT JOHANNESBURG

Case Number 5/95

In the matter between:

Slate

and

STATEMENT IN TERMS OF SECTION 112(2)

do hereby declare that:

1. I am the accused in this matter arid I understand the nature of the charge
against me
2. I plead guilty to one count of fraud as set forth in the Charge sheet, relating to the offence
committed on 25/12/1993
3. I admit that on the 25th of December 1993 I received a telephone call from one Sgt E who stated
that he was on duty and was suffering from a severe bout of influenza and could not consult with
me at that point in time. He described the symptoms and I was satisfied that he was indeed
suffering from influenza and I accordingly believed that medication was required in the
circumstances. I thereafter telephonically issued a prescription to a local pharmacist who I
understand provided the relevant medication to Sgt E.
4. I admit that I thereafter submitted an account in respect of the telephone call to the S A Police
Services Medical Aid Fund and I received the sum of R35-00 from the said fund in respect of the
said conversation.
5. I admit that at all times relevant hereto I was aware of the fact that I was not entitled to payment
of the said monies as I did not consult personally with the said police official and that I was
furthermore aware of the fact that a telephone call does constitute a consultation.
6. I knowingly admit that the relevant Medical Aid Fund was prejudiced in paying me the sum of
R35-00 to which sum I was not entitled.
7. I admit that my actions were wrongful and unlawful and that 1 intended to defraud the Medical
Aid Fund of the sum of R35-00.
8. I accordingly plead guilty to the charge.
 41
DATED AT JOHANNESBURG THIS THE 17TH DAY OF JANUARY 1994

THE PROSECUTOR ACCEPTS A PLEA OF GUILTY IN RESPECT OF COMMON ASSAULT AND THE SECTION
112(2) STATEMENT CAN READ AS FOLLOWS:

I,

A Student,

do hereby declare that:

1. I am the accused in this matter and I understand the nature of the charge against me.
2. I plead guilty to common assault.
3. I admit that on the third day of March 1996 I struck the complainant, Another Student two blows
with my fist.
4. I admit that my actions were wrongful, inlawful and intentional and I accordingly plead guilty to
common assault.

DATED AT CAPE TOWN THIS THE 15TH DAY OF SEPTEMBER 1996.

SIGNATURE OF ACCUSED

_________________________________________________________________________

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF PORT ELIZABETH HELD AT PORT ELIZABETH

CASE NUMBER:
In the matter between :

THE STATE

and

JOHN DLEPU

STATEMENT IN TERMS OF SECTION 112(2) of ACT 51 of 1977

I,

JOHN DLEPU,

do hereby declare that:

1. I am the Accused in this matter and understand the nature of the charge against me.
2. I admit that on the 1st of April 19971 entered the premises of XYZ Stores with the intention of
effecting certain purchases.
 42
3. I removed an electric razor from a shelf and thereafter placed same in a kitbag. I then passed
through the pay-point without paying for the razor and was arrested in the parking lot.
4. I admit that I did not intend paying for same and that I had the intention to steal the razor.
5. I accordingly admit that my actions were wrongful, unlawful and intentional and I plead guilty to
the charge of theft.

DATED AT PORT ELIZABETH ON THIS THE 4th DAY OF JULY 1997

JOHN DLEPU

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF PORT ELIZABETH HELD AT PORT ELIZABETH

CASE NO: 15/123/97

In the matter between:

THE STATE

and

B JOHN

STATEMENT IN TERMS OF SECTION 112(2)

I,

B JOHN

declare that:

1. I am the accused in this matter and I understand the nature of the charge against me.
2. I admit that on the 12th January 19971 was the driver of a motor vehicle with registration letters
and number CB 123 which motor vehicle I was driving on Cape Road, a public road within the area
of jurisdiction of the above Honourable Court.
3. I admit that whilst driving the said vehicle the alcohol content of my blood, expressed in grams per
millilitres of blood was 0,12 grams.
4. I admit that I was at the time of driving aware of the fact that it is a criminal offence to drive a
motor vehicle whilst the alcohol contents of one's blood exceeds ,08 percent, and I accordingly
admit that my actions were wrongful and unlawful.
5. I furthermore confirm that a blood sample was drawn from my body within two hours 1?'f driving
of the said vehicle and that same was correctly analysed
6. I accordingly plead guilty to the charge

DATED AT PORT ELIZABETH THIS 20TH DAY OF NOVEMBER 1997

…………..
BJOHN
 43

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF WYNBERG HELD AT WYNBERG

CASE NO: 2/545/97

In the matter between

THE STATE

versus

MR X

STATEMENT AND ADMISSIONS IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE

ACT 51 OF 1977

I the undersigned,

MR X,

do hereby declare that:

1. I am the Accused in the abovementioned matter and I fully understand the nature of the charge
against me.
2. I plead guilty to a contravention of Section 122(l)(a) of Act 29 of 1989 i.e. driving a motor vehicle
whilst under the influence of intoxicating liquor.
3. I hereby make the following formal admissions in amplification of my plea aforesaid:
(i) On the 30th of June 1997 I was the driver of motor vehicle CA 257 on Main Road,
Wynberg, a public road in the district of Wynberg.
(ii) Prior to driving my motor vehicle I had consumed intoxicating liquor to wit 10 double
brandies.
(iii) At the time of driving my motor vehicle my faculties were impaired by the consumption
of the intoxicating liquor to such an extent that I could not drive my motor vehicle with
the same skill and safety, as I would have been able to if I was sober, and my driving
ability was impaired.
(iv) I know that it is wrong to drive a motor vehicle whilst being under the influence of
intoxicating liquor.
(v) I was involved in an accident at the time of the incident.
(vi) I thus committed the offence to which I am today pleading guilty.

DATED AT WYNBERG ON THIS 14TH DAY OF JULY 1997.

SIGNATURE OF ACCUSED
 44

Basic shoplifting

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF JOHANNESBURG

HELD AT JOHANNESBURG
CASENO:A3019/98

In the matter between:

THE STATE

and

JANET JACKSON

STATEMENT IN TERMS OF SECTION 112(2) OF ACT 51 OF 1977

I, the undersigned,

JANET JACKSON,

do hereby declare that:

1. I am the accused in the abovementioned matter and fully understand the nature of the charge
preferred against me.
2. I hereby voluntarily and without any undue influence plead guilty to the said charge.
3. I hereby make the following formal admissions herein:

(i) On the 30 June 1998,I was at Edgars Stores, Eloff Street, Johannesburg, within the
jurisdiction of the above Honourable court, where I usually shop to pay my account and to
make further purchases.
(ii) Whilst browsing around the shop after paying my account, I removed 3x gold
necklacesfrom the display shelf and held same in my hand until I went to try on a jacket.
(iii) When doing so, I put the 3x gold necklaces in my jeans pocket.
(iv) Thereafter I put the jacket back on the shelf and proceeded to leave the shop fully
awarethat I still had the necklaces in my jeans pocket.
(v) I knew that the necklaces with a value ofR300,00 belonged to Edgars Stores and that I had
no right or permission to remove same from the store without paying therefor.
(vii) I accordingly admit that my actions were wrongful and unlawful.
(viii) I further admit that I knew that I was committing the offence to which I am today pleading
guilty.
(ix) I knew that my actions were punishable by law.

DATED AT JOHANNESBURG THIS 27 DAY OF MARCH 1998.

ACCUSED
 45

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF GERMISTON HELD AT GERMISTON

Case no 123/98
In the matter between:

THE STATE

and

CLIENT

STATEMENT IN TERMS OF SECTION 112(2) OF ACT 51 OF 1977

I, the undersigned,

CLIENT,

do hereby declare as follows:

COUNT 1

1. I am the accused in this matter and I understand the nature of the charge against me. I voluntarily
plead guilty to a charge of culpable homicide.

2. I admit that on the day mentioned in the charge sheet I was the driver of motor vehicle XYZ234GP
on Rissik Street, a public road within the magisterial district of Germiston
3. I admit that whilst driving the said vehicle I failed to stop at a pedestrian crossing and thereby
collided with Mr X, a pedestrian, who at the time was crossing the road.

4. As a consequence of the said collision Mr Rissik sustained bodily injuries which caused his death.

5. The deceased sustained no further injuries from the scene of the collision to the state-mortuary
where a post-mortem was carried out by the forensic pathologist.

6. I furthermore confirm the contents of the post-mortem report of the said pathologist which
indicates that the deceased died as a consequence of multiple injuries which I admit he sustained
in the said collision.

7. I furthermore confirm that the collision was occasioned by the negligence of myself in that I failed
to keep a proper lookout and should have seen the deceased whilst he was crossing the road and
should have taken adequate steps to avoid the said collision with him.
 46
COUNT 2

I the undersigned,

CLIENT,

do hereby declare as follows:

1. that I refer to the contents of sub paragraph (b) herein before and confirm the contents thereof

2. I admit that at the time of driving the aforesaid motor vehicle the alcohol content of my blood,
expressed in grams per 100ml blood was more than 0.08 gms per 100ml being 0.12gms per 100ml.
3. I admit that a blood sample was drawn from my body within two hours of driving the said vehicle,
the blood sample was correctly drawn and thereafter correctly analysed.

4. I admit that at the time of driving I knew that it is an offence to drive a motor vehicle on a public
road whilst the alcohol contents of one's blood exceeds 0.08 gm per 100ml of blood and I
accordingly confirm that my actions were wrongful and unlawful

DATED at GERMISTON this the 27th day of July 1998.

CLIENT