UNIVERSITY EXAMINATIONS
October/November 2022
CPR3701
Criminal Procedure
80 Marks
Duration: 4 Hours
First examiner: M T Mokoena
Second examiner: XK Koza
This paper consists of 12 pages.
INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS
PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE
EXAMINATION QUESTIONS.
1. The examination question paper counts 80 marks.
2. It consists of four (4) sections. Answer ALL the questions in each section.
3. The duration of the examination is 4 hours. Your answers must be submitted via the myExams
platform on 14 October 2022 (08h00 – 12h00, South African Standard Time).
4. In addition to the duration of the examination indicated on the timetable, you are given 30 minutes
to FINALISE the uploading of your exam file. Your exam file must be uploaded via the
myExams platform on 14 October 2022 BEFORE 12h30 (South African Standard Time).
5. This is an open-book examination. While the examination is in progress, you are not allowed
to consult another person or any source to assist you to answer any of the questions contained
in this question paper. While the examination is in progress, you may not assist, either directly or
indirectly, another student in answering any of the questions contained in this question paper.
You may also not seek answers, either directly or indirectly, from any other person, including
persons involved in writing the same examination.
6. This examination is proctored via The Invigilator app. You are required to activate the Invigilator
app between 07h45 and 08h30 (South African Standard Time).
The QR code is below:
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7. Your exam file must be uploaded on the myExams platform.
7.1 When ready to submit, open the Take-Home (Assignment) assessment again and click on the
Add Submission button. Note: You only get 15 minutes after the due time to submit your
script on the Invigilator App and 30 minutes on the myExams portal.
7.2. Note the file requirements such as:
a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.
7.3. Check the acknowledgment checkbox and upload your answers document and then click on
the Save changes button.
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7.4. Review your submission information regarding the status and click on your submission file
link to check if it's correct.
7.5. If you need to resubmit a file, you can click on the Edit Submission button. Note: You will need
to delete any existing files.
7.6 Use proper PDF conversion software to create the final file for upload. Free PDF conversion
software is available on the Internet.
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7.7 Add your student number and the module code in the file name. That will assist you to select
the correct document to upload during submission.
7.8 You are advised to preview your submission (answer script) to ensure legibility and that the
correct answer script file has been uploaded.
8. The cover page for your take-home exam must include your name, student number and the
module code.
9. It is preferred that your take-home exam is typed. However, handwritten submissions will also
be accepted. If the take-home exam is typed, the maximum length is eight (8) pages (which
includes the cover page). If the take-home exam is handwritten, the maximum length is twelve
(12) pages (which includes the cover page).
10. Whether your answers are typed or handwritten, your submission on the myExams platform
on Moodle must be made in the form of one PDF document. Only the last file uploaded and
submitted will be marked.
10.1 The exam answer file that you submit must not be password protected or uploaded as a “read
only” file.
10.2 Your examination answer file will not be marked if:
10.2.1 you send your examination answer file via email.
10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.
10.2.6 you submit your examination answer file late
10.2.7 you submit your answer file from a registered student account that is not your own.
10.3 The mark awarded for an illegible examination answer file submission will be your final mark.
You will not be allowed to resubmit after the scheduled closing date and time of the exam.
11. When answering the take-home exam questions, remember that an open-book exam is a test
at a higher level than the usual type of exam, where memory is tested as much as insight. In
an open-book exam, you need not memorise any information. You are expected to prove that
you can use information, rather than merely repeat it. In brief, what is being tested is factual
knowledge, understanding and the correct application thereof, not memory skills. For this
reason, you do not earn marks by merely detailing a list of all the information that you think
might be relevant to a particular question. This gives no indication that you know what statutory
or other provisions are applicable in a specific context. You are expected to identify precisely
what information applies, and then explain why you think so.
11.1 Also, because you have the guide available when answering questions, we do not give marks
for direct quotations from the guide. You are therefore assessed on your level of understanding
of the legal principles by looking at how well you applied the principles to the questions.
11.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY
OTHER SOURCE).
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12. The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. Use the time given wisely.
12.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL
of the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text
or in your footnotes.
12.2 You are required to have read and summarised the prescribed cases yourself. The summaries
in the Study Guide are not sufficient for this exam. When using case law to support your answer,
please include complete references to the relevant cases in your footnotes. This means that
you must not only include the name of the case but also the exact page and section and/or
paragraph where the information can be found. The same applies to articles and books used.
12.3 Students sometimes lose marks because they do not approach problem-type questions
correctly. When answering such questions, it is important to first clarify for yourself the area of
work where the answer must be sought. Once you have done this, set out the relevant legal
principles. Deal only with those principles that relate to the given facts. Next, apply these
principles to the facts. This is where most of the students lose marks - they set out the law in
some detail, but then do not illustrate how it applies to the factual situation they have been
asked to solve. Finally, state your conclusion.
13. You must complete the online declaration of own work when submitting.
13.1 By ticking the Honesty Declaration, you confirm that you have read (i) the University’s Policy
on Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both
available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student
values and plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-
Unisa/Student-values-and-rules.
13.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with other students, or request
assistance from other students during examinations. Plagiarism is a violation of academic
integrity, and students who do plagiarise or copy verbatim from published work will be in
violation of the Policy on Academic Integrity and the Student Disciplinary Code and may be
referred to disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any other
forms of academic dishonesty.
13.3 Unless a student is exempted because of disability or incarceration, students who have not
utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s examination
rules and will have their marks withheld.
If you experience challenges with the Invigilator app, please WhatsApp the technical helpdesk on 073
505 8273. Do not contact the lecturers.
For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
[email protected] or refer to Get-Help for the list of additional contact numbers.
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IMPORTANT NOTICE
All four (4) sections of this paper are compulsory and must be completed on one
examination script.
SECTION 1
1.1 X and Y are charged with the offence of high treason. The allegations by the
prosecution are that the two accused ‘sold information crucial to the security of the
Republic to an agent representing the country of Zamunda’ before escaping to Silo,
a country in the East African region.
1.1.1 The National Director of Public Prosecutions (NDPP) Nono Dodo, is of the firm view
that the charges against the accused should, when they are arrested, be tried in the
regional court ‘due to the nature and seriousness of the offence’. Briefly confirm the
correctness or otherwise of this decision. (2)
1.1.2 Name the process to be used or applied by the NDPP to bring X and Y from Silo to
the Republic of South Africa to stand trial. (1)
1.1.3 Captain C is tasked with investigating the charges against X and Y. After their arrest,
he sets out to ask questions to X and Y regarding what they know about said offence.
Name the process used by C to ask questions. (1)
1.1.4 During the questioning process referred to in 1.1.3 above, both X and Y refuse to
answer any questions, arguing that “Constitutionally, C does not have the authority
question them if they do not feel like answering”. Briefly confirm the correctness or
otherwise of this assertion. (2)
1.1.5 The Director of Public Prosecutions (DPP), Dippy Pee, declines to prosecute the
accused. She thereupon completes and signs a document in which she confirms,
first, that she has examined the statements or affidavits on which the charge is
based and, secondly, that she declines to prosecute at the instance of the state.
Name said document. (1)
1.2 A and B allegedly commit the offence of rape. After arrest, they decide to bring a
bail application before the regional court.
1.2.1 Identify the party who bears the burden (onus) of proof in such proceedings;
(1)
1.2.2 Briefly elaborate on the threshold (not the standard of proof! In other words, what
the applicant needs to prove to the court to be released on bail) in respect of the
offence set out in 1.2, above. (2)
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SECTION 2
2.1 During an altercation with his neighbour, Feisty Belligerent in the year 2000, Ed
Crook allegedly ‘slapped the complainant across the face with an open hand’, and
also ‘urinated on his lawn’. Feisty subsequently laid charges of assault and malicious
damage to property. Feisty did not suffer any physical injuries.
2.1.1 Briefly discuss, in the context of section 18 of the Criminal Procedure Act 51 of 1977
(CPA), whether the right to prosecute Ed has prescribed if he is only arrested in
2022. (5)
Hints:
i. The answer to the question must be sought from p. 79, par, 4.15
ii. Your answer must only be restricted to
(a) The general applicable principle as set out in s 18 of the Criminal Procedure
Act 51 of 1977 - in other words, the circumstances under which the prescription
of offences in respect of prosecution, applies; and
(b) The point whether the offences mentioned in 2.1 above, conform to the legal
provision mentioned above.
NB: All other information is irrelevant, and will not be credited.
2.2 On the same facts mentioned in 2.1 above, Ed is arrested two days after the
commission of the alleged offences. Feisty is adamant that Ed should be
‘prosecuted to the fullest extent of the law’. However, Ed’s attorney, Clever Trevor,
makes representations to the prosecutor to withdraw the charges against his client.
The request is made after Ed has pleaded ‘not guilty’ to the charges, and Feisty has
already testified.
Discuss the workability of a withdrawal in the circumstances sketched above.
(10)
Hints: your answer must;
i. First set out the requirements for a withdrawal as set out in chapter 3 of the
Handbook;
ii. Secondly, discuss whether the matter against Ed can, realistically, be withdrawn,
based on the requirements set out in hint (i), above; and
iii. Thirdly, provide most plausible legal application or alternative (i.e a possible
conclusion) if withdrawal is not the most workable solution.
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NB:
i. repeating information from the Handbook without applying the above
hints will not be credited with full marks; and
ii. including irrelevant information will not be credited.
2.3 Sergeants Skop Madonoro and Trigger Happy are conducting patrols along the
Steelpoort Railway Station one evening when they notice a group of males stripping
copper cables from the building of one of the offices. Upon the arrival of the two
police officers, the group runs away in different directions, but the two officers
manage to arrest one suspect, X, in possession of newly-stripped copper cables.
The stealing of copper cables is classified as an ‘essential infrastructure-related
offence’. Happy Trigger thereupon informs X that he is ‘under arrest for stealing
copper cables’. X is put inside the police van, and the two officers proceed to drive
to the police station.
2.3.1 Discuss whether the arrest conforms to the requirements of s 39 of the Criminal
Procedure Act 51 of 1977. (10)
Hints:
i. Only the main principles (as set out on p. 152 – 153 of the Handbook) must be
discussed in conjunction with the facts. All other information is irrelevant.
ii. Each requirement must be discussed in the context of the facts set out in 2.3, above;
and
iii. Your answer must make conclusions in respect of each of the principles set out on
p. 152 – 153 of the Handbook.
2.3.2 Discuss whether X may be released on police bail after the case was postponed a
few after the first appearance. (5)
Hints:
i. The answer must be sourced from p. 213, par. 2.3 of the Handbook;
ii. Your answer must be restricted to
(a) the timing during which police bail may be granted; and
(b) whether the offence mentioned in the facts above falls within the ambit of release
on police bail.
NB: All other information in the Handbook is irrelevant, and will not be credited
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SECTION 3
3.1 A works for the Department of Social Welfare as an accounting officer, where she
allegedly siphons R3-million into the secret bank accounts of six accomplices. A is
charged in the regional court with 50 charges of fraud. After obtaining instructions
from A, D, A’s attorney approaches the prosecutor, P, with a ‘plea bargain’ offer,
and suggests that the arrangement be concluded ‘in the traditional sense’ of plea
bargaining. In terms of this arrangement, A agrees to plead ‘guilty’ to 25 instead of
50 charges, and also insists that the plea bargain agreement must include a formal
agreement on sentence.
Discuss the workability of the arrangement according to D’s suggestions. (8)
Hints:
Your answer must be sought from p. 310 – 311, par. 3 of the Handbook, and must also be
limited to:
i. The main object’ of plea-bargaining as discussed in p. 310 par. 3. Please do not
include any other information beyond the ‘main object’ in this paragraph;
ii. Whether the facts set out above conform to any of the examples applicable to plea
bargains as set out in p. 310, par. 3.1;
iii. Whether traditional plea bargain is, indeed, possible as per D’s insistence
3.2 After the first state witness gives evidence-in-chief, the magistrate, M requests the
for the witness to be to cross-examined. P who led the evidence-in-chief of the same
witness, stands up to start cross-examination. Provide a brief explanation of the
process of cross-examination with specific reference to
i. the party who can/ must conduct cross-examination
ii. the purpose of cross-examination; and
iii. whether, in the facts set out above, cross-examination by P is, indeed, possible and/
or permissible. (5)
Hint: the information to this question should be sourced from p. 376, par. 2.6.4 of the
Handbook
3.3 At the close of the defence case, the magistrate, M, convicts A on multiple charges
of fraud, and proceeds to the sentencing phase without giving the reasons for
arriving at the verdicts. When called upon by the defence to proffer such reasons,
M merely repeats the evidence presented by the prosecution, and insinuates that
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‘the accused was found guilty on the basis of proven evidence which is already on
record’ without necessarily advancing his own submissions for the conclusions.
3.3.1 Discuss, M conduct, in light of the Supreme Court of Appeal’s judgment in National
Director of Public Prosecutions v Naidoo 2011 (1) SACR 336 (SCA), where the court
concluded, inter alia, that:
“The importance of furnishing reasons for a judgment is a salutary practice…
ensuring public confidence in the administration of justice”. (12)
Hints: your answer must:
i. Be sought from p. 388, par. 3 of the Handbook;
ii. not include the judgment cited above; and
iii. contain a conclusion regarding the correctness or otherwise of M’s conduct.
[25]
SECTION 4
4.1 The magistrate, M, convicts the accused, X, of malicious damage to property, and
postpones the case for sentencing. M subsequently dies of Covid-19 complications
before delivering sentence on the sentencing date. A, X’s attorney, insists on the
trial starting de novo (from the beginning), asserting that the proceedings essentially
‘died with M’.
Briefly discuss X’s argument, in the context of section 275 of the CPA. (5)
Hints: the answer to this question must be sought from chapter 19 of the Handbook.
4.2 After conviction and sentence in the district court, X decides to lodge an appeal on
both the conviction and the sentence. A, his attorney, advises X that they need to
approach the regional court, which has higher jurisdiction than the district court, to
hear their appeal.
Briefly discuss the workability of A’s strategy. (5)
Hints: the answer must be sought from p. 38 par. 3.1.2 of the Handbook, and must discuss
the following aspects, namely,
i. jurisdiction in respect of appeal from lower to higher courts;
ii. the procedure to be followed before approaching a higher court (in terms of
‘permission’); and
iii. your conclusion in respect of A’s strategy.
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4.3 After his conviction and sentence, A lodges successive appeals to the courts, ending
with the Supreme Court of Appeal (SCA). In the meantime, new evidence has come
to light which may exonerate him.
4.3.1 Briefly discuss the executive action, in terms of s 327 of the CPA, which may be
taken by the State President after the court has evaluated the accused’s petition,
and the (procedural) consequences of the State President’s decision. (5)
Hints: the content of the answer must be limited to
i. information contained on p. 555, par. 3 of the Handbook;
ii. the actions of the State President, and not those of any other functionary; and
iii. any other procedural remedies (or lack thereof) which may be applied after the
action by the State President.
NB: Please include only aspects relevant to the question asked, as contained in p.
555 par. 3 of the Handbook. All other information is irrelevant, and will not be credited.
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Unisa 2022
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