NAME: MBONISI MYENI

STUDENT: 62672118
MODULE: CRIMINAL PROCEDURE
EXAMINATION
MODULE CODE: CPR3701

DEPARMENT OF CRIMINAL AND PROCEDURAL LAW

QUESTION 01

1.1 The part of the facts that constitutes substantive law is the description of the alleged
conduct and its classification as a crime. Specifically, the statement:
“Ed Crooke and two accomplices, Adam Swindler and Petty Thief allegedly committed the
crimes of robbery with aggravating circumstances, in the Republic of Zamunda, where they
were visitors.”
This statement describes the conduct (robbery with aggravating circumstances) and
identifies it as a crime. Substantive law defines what constitutes a crime and the potential
punishment for it. In this case, the substantive law would be the law of the Republic of
Zamunda that defines robbery with aggravating circumstances as a crime. The rest of the
facts pertain to procedural law (such as the arrest in South Africa) and other details (like
Ed’s age at the time of arrest).

1.2 The part of the scenario that deals with Procedural/Adjectival Law is the statement:
“Ed is subsequently arrested by the police in the Republic of South Africa in 2010.”
This statement pertains to the procedures followed in the enforcement of substantive law,
specifically the process of arrest. Procedural law, also known as adjectival law, sets out
the methods and means by which substantive laws are applied and enforced. In this case,
the procedural law would be the laws and regulations governing how arrests are
conducted in the Republic of South Africa. The rest of the facts pertain to the substantive
law (the description and classification of the crime) and other details (like Ed’s age at the
time of arrest).

1.3 Whether a charge of robbery with aggravating circumstances can be tried in a district
court depends on the jurisdiction and the specific laws of that jurisdiction.
In many jurisdictions, serious crimes such as robbery with aggravating circumstances are
typically tried in higher courts, such as a regional or high court. This is due to the severity of
the crime and the potential for a significant sentence if the defendant is found guilty.
However, in some jurisdictions, a district court may have jurisdiction over certain serious
crimes, depending on factors such as the specifics of the crime, the potential sentence,
and the laws governing court jurisdiction.
In this case, whether Cruella Persecutor can try the case in a district court would depend
on the laws of the Republic of South Africa, where Ed was arrested, and potentially the
laws of the Republic of Zamunda, where the crime was allegedly committed.

1.4 The alleged crimes were committed in 1988, and Ed was arrested in 2010.
In terms of Section 18 of the Criminal Procedure Act 51 of 1977 of South Africa, the right to
prosecute offences by the State lapses after a period of 20 years from the time when the
offence was originally committed. This is known as the statute of limitations. Given that Ed
was arrested 22 years after the alleged crimes were committed, the right to prosecute may
have lapsed according to South African law, if the crimes fall under the offenses
mentioned in Section 18.

1.5 Yes, the State may withdraw the case at this stage of the proceedings, even after Ed
and his accomplices have pleaded not guilty. This is generally at the prosecutor's
discretion.
The reasons for withdrawal could vary. For instance, the prosecutor might decide to
withdraw the case if they believe there is insufficient evidence to secure a conviction, or if
key witnesses are unavailable or unwilling to testify. Another reason could be if the
prosecutor believes it is not in the public interest to proceed with the case. This could be
due to a variety of factors, such as the age and health of the defendant, the nature of the
crime, and the likely penalty if a conviction is secured. However, the withdrawal of charges
does not necessarily mean the end of legal proceedings. The prosecutor may decide to
reinstate the charges later if new evidence comes to light.

1.6 “Reasonable grounds” for an arrest typically refers to the existence of information that
would lead a reasonable person to believe that a crime has been committed and that the
person to be arrested has committed it. Here are two instances where a police officer
might have “reasonable grounds” to arrest Ed and his accomplices:
(a) Evidence linking the suspects to the crime: If there is physical evidence (such as
fingerprints, DNA, or surveillance footage) or testimonial evidence (such as witness
statements or confessions) that links Ed and his accomplices to the robbery, this could
provide reasonable grounds for their arrest.
(b) Information from a credible source: If a credible source, such as a reliable informant or
another law enforcement agency, provides information indicating that Ed and his
accomplices committed the robbery, this could also provide reasonable grounds for their
arrest.

QUESTION 02

2.1 Section 49(2) of the Criminal Procedure Act 51 of 1977 of South Africa provides a
framework for the use of force during arrests. It states that if a suspect resists arrest or
attempts to flee, the arresting officer may use such force as may be reasonably necessary
to overcome the resistance or prevent the person from fleeing.
Captain Trigga Happi used force to affect the arrest of Ed. He fired two warning shots in the
air and instructed Ed to stop. When Ed ignored the instructions and continued to try to
escape, Captain Trigga Happi fired a shot at Ed, hitting him on the left leg, which resulted in
Ed’s arrest.
The critical question here is whether the force used by Captain Trigga Happi was
“reasonably necessary” under the circumstances. This would depend on several factors,
including the alleged crime, the threat posed by Ed, and the risk of Ed escaping. Given that
Ed was known to “carry heavy artillery” and was attempting to escape, it could be argued
that the use of force was reasonably necessary. However, the use of force must be
proportionate to the threat posed by the suspect and the seriousness of the crime. The fact
that Captain Trigga Happi shot Ed in the leg, rather than using lethal force, could be seen
as an attempt to use proportionate force.

2.2 In the context of South African law, both the investigating officer (Warrant Officer Truth
Seeker) and the suspect (Ed) have certain rights and duties during an interrogation.
Rights and Duties of Truth Seeker (Investigating Officer):

Truth Seeker has the right to ask questions to ascertain information related to the alleged
crime.
The officer does not need any special power to interrogate. The special power arises when
a person refuses to grant police access to someone they wish to interrogate, refuses to
respond to questions, or answers but refuses to give their name and address to be
subpoenaed to testify in court. However, the officer must respect the rights of the suspect
during the interrogation process, including the suspect’s right to remain silent.
Rights and Duties of Ed (Suspect):
Ed has the right to remain silent and must be informed promptly of such a right and the
consequences of not remaining silent. Any information uttered or willingly given to an
officer may be used against him in court. While there is generally no legal duty to furnish
information to the police concerning the commission of a crime, there are exceptions for
certain offenses.

1.3 Section 50(1) of the Criminal Procedure Act 51 of 1977 of South Africa stipulates that
an arrested person should be brought before a lower court as soon as reasonably possible,
but not later than 48 hours (about 2 days) after the arrest.
In Ed’s case, he was brought to court two weeks after the arrest due to the injury he
sustained during the arrest. The lawfulness of this delay would depend on the specific
circumstances and interpretations of the law. Generally, the 48-hour rule is strictly
adhered to protect the arrested person's rights and prevent unlawful detention. However,
there may be exceptions in extraordinary circumstances, such as when the health and
safety of the arrested person are at risk.
If Ed’s injury was severe and required immediate and ongoing medical attention, it could
be argued that it was not “reasonably possible” to bring him before a court within 48 hours
(about 2 days). In such a case, the delay might be considered lawful.

QUESTION 03

3.1.1 Standard of Proof in Bail Applications in General: the standard of proof that must be
discharged in bail applications in South Africa is based on the “balance of probabilities”.
This means that the party bearing the burden of proof (either the prosecution or the
defense, depending on the circumstances) must convince the court that their version of
events is more likely true than not.
For most offenses, it is the duty of the state to prove that it is not in the interests of justice
that the accused be released on bail. The state therefore leads the evidence.

3.1.2 Onus in Respect of Schedule 6 Offences: In the case of Schedule 6 offenses, like
robbery with aggravating circumstances, the burden of proof shifts to the accused. The
accused must prove that exceptional circumstances exist which permit his or her release
on bail. This is often referred to as a "reverse onus"

3.2.1 Jurisdiction of South African Court Over the Accused: South African courts can have
jurisdiction over crimes committed outside the Republic under certain circumstances. The
Implementation Act of the Rome Statute of the International Criminal Court Act 27 of 2002
grants South African court's jurisdiction over a person who commits a crime outside the
Republic when that person is later found on South African territory, without regard to that
person’s nationality or the nationality of the victims. This is known as universal jurisdiction.
However, this typically applies to international crimes. Whether it applies to the crime of
robbery with aggravating circumstances committed in Zamunda would depend on the
specifics of South African and international law.

3.2.2 Compliance with Section 84(1) of the Criminal Procedure Act 51 of 1977: Section
84(1) of the Criminal Procedure Act 51 of 1977 requires that the indictment or charge sheet
be compiled in sufficient detail for the accused to be able to answer it. The charge sheet
should provide enough information about the nature of the offense, the place, and the time
it was committed to allow the accused to prepare a defense.

In this case, the charge sheet states that Ed Crooke, Adam Swindler, and Petty Thief are
charged with the crime of robbery with aggravating circumstances of an amount of $1
million, which took place in Pretoria in 1988. However, the crime was allegedly committed
in Zamunda, not Pretoria. This discrepancy could be a significant issue and potentially
render the charge sheet non-compliant with Section 84(1), as it may not provide the
accused with sufficient information to prepare a defense.

3.3 The strategy of the accused, Ed Crooke, Adam Swindler, and Petty Thief, to not answer
the State’s case and close their case without testifying or leading any defense witnesses, is
a risky one and its efficacy would depend on the strength of the prosecution’s case and the
specifics of the charges against them.
In South African law, the accused have the right to remain silent and not incriminate
themselves. They are not obligated to testify or present any defense witnesses. However,
the court will make its decision based on the evidence presented, and if the prosecution’s
case is strong, choosing not to present a defense could be detrimental to the accused.
Moreover, the failure to bring a witness to testify will amount to hearsay evidence and will
bring very little to zero support to their case at the CCMA or Bargaining Council. If the
accused believes that the State’s case is weak, they might be relying on the principle that
the burden of proof lies with the prosecution and that they must prove the accused’s guilt
beyond a reasonable doubt.
However, this strategy is risky. If the prosecution has presented a prima facie case (a case
that is sufficient to call for an answer from the defense), then the accused’s failure to
present any evidence or testimony could lead to their conviction if the court finds the
prosecution’s evidence to be credible and sufficient to meet the standard of proof.

QUESTION 04

4.1.1 The competent verdicts in general;

In criminal law, competent verdicts allow for alternative convictions when the evidence
does not fully support the original charge but does establish guilt for a related offence. For
instance, if an accused is charged with murder but the evidence only proves culpable
homicide, a competent verdict allows convictions for the lesser offence. The key is that the
alternative verdict must not prejudice the accused’s defense.

4.1.2 Applicable Competent Verdict(s) for Robbery;

In the context of robbery charges, competent verdicts could include related offenses such
as theft or attempted robbery. If the evidence supports elements of these related crimes,
the court may consider them as competent verdicts in place of the original charge of
robbery.
Robbery Competent Verdicts:
Theft: If the evidence supports elements of theft (taking someone else’s property
unlawfully), the court may consider it as a competent verdict in place of the original charge
of robbery.
Assault with Intent to Do Grievous Bodily Harm: Similarly, if the evidence establishes
assault with intent to cause serious harm, it can serve as another competent verdict
alongside robbery.
Common Assault: In some cases, common assault may also be considered a competent
verdict for robbery.
4.2 Mitigating Factors:
Lack of a Criminal Record: Ed’s age (72) and lack of prior convictions can be considered a
mitigating factor. A clean record suggests he is less likely to reoffend.
Personal Circumstances: Ed’s age and any other relevant personal factors (health, family
situation, etc.) may also mitigate his culpability.

Aggravating Factors:
Previous Convictions, the prosecutor’s presentation of Ed’s two prior theft convictions
exacerbates his current offense. Repeat offenses often lead to harsher sentences.
Pattern of Criminal Behavior, the fact that these convictions occurred within the past few
years indicates a pattern which could be seen as an aggravating factor.

PLAGIARISM DECLARATION

Student name: MBONISI MYENI

Student number: 62672118
Course code: CPR3701

I know that plagiarism is to use another’s work and pass it off as one’s own work.
I know that plagiarism is wrong.
I confirm that this portfolio is my own work.
I have acknowledged all sources that I have used.
I have not directly copied anything from the internet or from any other source.
I have indicated every quotation and citation in a footnote or bracket linked to that
quotation.
I have not allowed anyone else to copy my work to pass it off as their work.
I understand that if any unacknowledged copying appears in my portfolio, I will receive 0%
off the portfolio.
I am aware of the UNISA policy on plagiarism and understand that disciplinary proceedings
can be instituted against me by UNISA if I contravene this policy.

Signed by: MBONISI MYENI

Date: 18/05/2024