Criminal Procedure B

ASSIGNMENT 1

NAME: ENHLE

SURNAME: LANGA

QUESTION 1:

Introduction:

In the intricate world of criminal law, defence attorneys play a critical role in ensuring the fair
and just treatment of individuals accused of various offences in the complex domain of
criminal law. One of their key responsibilities is negotiating plea deals with prosecutors in
order to obtain beneficial outcomes for their clients. (Nations, 1990)Culpable homicide is one
of the most serious allegations a defence attorney may face. It refers to a wide spectrum of
instances involving the unlawful, negligent, or unintentional taking of another person's life.

One of the key roles of a defence attorney, as mentioned above, is to negotiate plea deals
with prosecutors. In the case of Kerr v R 1907 ECD 324, they described an arraignment as
the bringing of the accused to court, informing him of the offence with which he is charged,
calling upon the accused for his plea and entering it constitute the arraignment of the
accused and when his plea has been recorded, he is said to stand arraigned. An
arraignment is a critical phase in the legal proceedings; therefore, it must be in line with
section 35(3) of the Constitution. (Joubert, 2020)

If the defendant admits to the charges, they can enter a "guilty" plea, or a "not guilty" plea if
they dispute the claims. The defendant's plea sets the tone for the ensuing legal
proceedings, determining whether or not a trial will be held. If a defendant pleads guilty, the
court may continue to sentence, but a plea of not guilty results in the scheduling of a trial
during which both the prosecution and the defence will submit evidence and arguments.
(Plea.org, n.d.) This essay seeks to describe the types of pleas expressed in section 112(2)
and section 115 of the Criminal Procedure Act 57 of 1977, give advice to Jennifer on the best
plea she may enter and draft a document which will accompany her plea.

Body:

There are a variety of pleas that an accused may enter into. In particular there is a guilty
plea in terms of section 112, and a not guilty plea in terms of section 115 of the Criminal
Procedure Act. In accordance with section 112(1)(a)-(b) of the Criminal Procedure Act, the
presiding judge, or magistrate in charge of the case has additional sequential options when
an accused person enters a guilty plea to the charge brought against them and the
prosecuting authority accepts this plea. In particular, these judicial authorities have the
discretion to convict the accused based solely on their admission of guilt if they believe that
the nature of the offence is not severe enough to warrant imprisonment or any form of
detention without the option of a fine, or a fine exceeding a predetermined threshold set by
the relevant government minister.. But if the judge, or magistrate determines that the offence
justifies incarceration, detention without the option of a fine, or a fine that exceeds the set
limit, or if the prosecutor seeks it, they are required to look into the case further. In order to
determine whether the accused admits to the claims made in the charge they have pled
guilty to, this entails questioning the accused regarding the alleged facts of the case. The
presiding authority may proceed to condemn the accused based on their guilty plea and then
administer a suitable penalty if it is determined via examination that they are indeed guilty of
the offence they admitted to. Alternatively, in accordance with section 112(2), the court may
choose to rely on a written statement from the accused or their legal representative that
contains all of the case's accepted facts instead of questioning the defendant. However, the
court retains the right to ask further questions, if necessary, throughout this procedure. With
the help of this legal process, it is made sure that guilty pleas are treated carefully and that
appropriate punishments are decided in accordance with the seriousness of the offence.
(Section 112, CPA)
 In accordance with section 115 of the Criminal Procedure Act, the presiding judge, regional
magistrate, or magistrate in charge of the case has the right to ask an accused person who
enters a plea of not guilty if they would like to make a statement outlining their defence. If the
accused decides to do so, they are free to go into further detail about why they disagree with
the accusations. However, the court has the option to question the accused further if the
accused either refuses to speak or if their testimony is insufficiently specific about how much
they deny the allegations. The precise charges in the charge that are in dispute need to be
ascertained through this questioning. The accused may be asked extra questions by the
court in order to clarify any points brought up in their statement or throughout the
interrogation procedure. The accused must also be willing to acknowledge to any charges
that are not refuted by their plea of not guilty, according to the court's mandate. If the
defendant agrees to such an admission, it will be recorded and regarded as one. In addition,
the court must ask the accused to confirm whether they agree with or disagree with the legal
advisor's response whenever the advisor responds to any of the court's questions, whether
in writing or orally. (Section 115, CPA)

Conclusion:

Given the discussion of the pleas above, pursuant to section 112(2), Ms Jennifer Daniels
wishes to enter a plea of guilty to the competent verdict of Assault with the intention to
commit grievous bodily harm (assault GBH); common assault; public violence and
harassment. She maintains that she did not intend to cause the death of Ms Jacky Walker
but acknowledges her involvement in the altercation and accepts responsibility for causing
injuries to Ms Jacky Walker.

Plea Document:

IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF EHLANZENI DISTRICT

HELD AT EHLANZENI CASE NUMBER: 4/34XX/23.
In the matter between

THE STATE
V
JENNIFER DANIELS

STATEMENT IN TERMS OF SECTION 112(2)

I the undersigned,
Jennifer Daniels
do hereby state:
1. I am the accused herein.
2. I admit that I am guilty of the offence of Assault with the intention to commit grievous bodily
 QUESTION 2:

Introduction:

Presidential Clemency, a pillar of South Africa’s criminal justice system, is critical to attaining
justice, reconciliation, and the equitable administration of the law. It is based on section 84(2)
(j) of the South African constitution of 1996, which gives the President the sole authority of
issuing pardons, reprieves, and remissions to those entangled in the web of criminal
convictions and punishments. This authority, cloaked in secrecy and laden with significant
implications, acts as a light of hope for individuals seeking forgiveness as well as a means
for rectifying historical injustices that have scarred South Africa’s past.

The constitutional tension between the separation of powers, judicial review, and the
exercise of executive authority is at the heart of the debate over presidential clemency. The
outlines of this sensitive issue have been shaped by major cases such as the President of
the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) and S v Makwanyane
1995 (3) SA 391 (CC). The Constitutional Court debated whether the President’s clemency
powers may be exposed to judicial examination in the Hugo case. The majority judgement
upheld these powers as non-justiciable, emphasising the President’s discretion in clemency
matters, whereas the minority advocated for limited judicial review, arguing that it should be
used only in cases of constitutional violations or capricious decisions.

Furthermore, the indelible influence of S v Makwanyane, a pivotal case that declared the
death penalty unconstitutional, echoes across clemency deliberations. Though unrelated, it
represented a larger cultural trend towards a more humanitarian and progressive criminal
justice system, influencing how clemency decisions are seen and evaluated.

In a country coping with its turbulent past, presidential clemency exemplifies the delicate
interaction of justice, reconciliation, and executive authority. This essay seeks to investigate
the nature of presidential clemency, the President’s powers to pardon convicts, and the
shifting legal environment that governs this critical aspect of South Africa’s legal system.
This essay will delve into the complexities of presidential clemency in South Africa,
examining the historical context, constitutional underpinnings, and jurisprudential
developments that characterise this critical executive authority. Furthermore, it will examine
the impact of relevant and pivotal judicial decisions on, such as the President of the Republic
of South Africa and Another v Hugo 1997(4) SA 1(CC) and S v Makwanyane 1995 (3) SA
391 (CC).

Body:
Clemency is the process by which a governor, president, or administrative board may
decrease or give a pardon to a criminal. Clemencies in death penalty cases have been
awarded for a variety of grounds, including a person's right to life. (Center, 2023) The
Republic of South Africa's Constitution of 1996, section 84(2)(j), grants the President of the
Republic the authority to pardon or reprieve offenders and to waive any fines, penalties, or
forfeitures, subject to and in accordance with the Constitution.

Despite being governed by statute, these abilities still have the reputation of presidential
privileges because they historically come from the royal authority of the President's former
forerunner, the British monarch. Our criminal justice system includes provisions for reprieve
and mercy as a fundamental component and constitutional safeguard against injustices and
blunders. Although there is no right to be pardoned, the President's decision-making
authority under Section 84 includes the right to a pardon application that is thoughtfully
evaluated, in good faith, in accordance with the legality principle, attentively considered, and
decided upon without delay. The President alone has the authority under the Constitution to
make the final determination. (Joubert, 2020)

Nothing in the Act shall impact the President's authority to show mercy to anyone, according
to Section 325 of the Criminal Procedure Act, which affirms the President's privilege out of
an abundance of caution. It is apparent that the President has a lot of discretion when using
these powers because neither the Constitution nor the Criminal Procedure Act specify any
particular guidelines for how these privileges are to be used. This is in keeping with
international custom. The President's inability to act in a manner that violates the
Constitution is the sole obvious restriction. Before the Hugo case, the presidential power was
unrestricted. Nothing stops the President from doing something voluntarily without being told
or influenced by someone else, but the President must first receive a petition for compassion
from the individual who was convicted or from a representative of that person. Prior to the
Constitutional Court ruling that the death penalty was unconstitutional in 1995, the Criminal
Procedure Act stated that the Minister of Justice could submit a petition for mercy on behalf
of those who had been convicted and were serving a death sentence even if they had not
asked for or desired clemency. (Joubert, 2020)

According to Rapholo v. State President 1993 (1) SACR 421 (T), convicted individuals have
no legal claim to a pardon, reprieve, or hearing on the matter. Instead, they can only rely on
the President's indulgence. Therefore, the President has the authority to commute any
sentence. In reality, though, the President won't use his power to show mercy without first
taking into account a report from the Minister of Justice that includes the suggestions of the
state law advisers, the trial court's chief justice, and the director of public prosecutions. This
does not change the reality that it is still an executive act and should be transparent and
accountable without interference from the judiciary. Judicial scrutiny of the President's
actions while acting under Section 84 of the Constitution is still pending. However, the
Constitutional Court must uphold any judgement of a court finding that the President's
actions violate the Constitution. (Joubert, 2020)

The courts are unlikely to intervene when the President commutes the sentences of a group
of prisoners unless they are persuaded that the decision was made in bad faith or was so
illogical that no reasonable executive authority could have come to that conclusion as
mentioned in Kruger v. Minister of Correctional Services 1995 (1) SACR 375 (T); or that the
President's discretionary use of his or her powers was improper because it violated the
Constitution. (Joubert, 2020)

In the case of Masemola v Special Pensions Appeal Board and Another (CCT260/18) [2019]
ZACC, This Court determined that, as of July 21, 2011, the petitioner was to be treated
legally as if he had not been convicted of the crime due to the specific phrasing of the
presidential pardon that he had received. As a result, the applicant was no longer subject to
any legal restrictions that resulted from his conviction as of the date of the pardon. The
Court additionally held that section 6A was added to address issues with new claim
verification and prevent false claims. The Court acknowledged that section 6A's effects
caused several Act provisions to expire and meant that any new applications received after
December 31, 2006, would not be taken into consideration. The petitioner, the Court
determined, did not fall under section 6A (1), as the facts supporting his initial claim had
already been confirmed when he applied for and was granted the special pension. The Court
determined that the applicant's special pension was reinstated as a result of legal processes.
His right to receive the special pension was reinstated by the pardon. According to the Court,
there is a remedy, and this is in accordance with a right. Without the mutual power to
enforce payment, the applicant cannot use their right to a special pension. As a result, the
appeal was upheld and leave to appeal was granted. The Constitutional Court issued a
declaratory ruling stating that the applicant's special pension was reinstated as of July 21,
2011, the date he got his presidential pardon, and that the Board was required to pay it to
him. (Africa, 2019)

In the case of President of RSA v. Hugo (1997) 4 SA 1 (CC), Goldstone J. wrote the majority
judgement and found that Section 8(2) of the Interim Constitution did not apply to the
Presidential Act, which granted pardons to certain categories of prisoners, including mothers
with young children. Although the Act appeared to discriminate on the basis of gender,
Goldstone J. reasoned that it was driven by concern for children's welfare and the historically
present gender disparity in child-rearing tasks. The majority reasoned that because the Act
only temporarily denied fathers of an early release to which they were not entitled, it did not
have an adverse effect on mothers who had previously suffered prejudice. Given the
considerable gender difference in the prison population, the Act was also considered as an
essential step to address the practical difficulties of releasing a large number of convicts.

Didcott J. and Kriegler J. spoke for the minority judgements, which opposed the reasoning of
the majority. Didcott J. disagreed with Goldstone J.'s suggestion to replace the presidential
decree with a statement of validity, claiming that the issue had become academic as it no
longer had legal effect. The majority's reliance on gender stereotypes was criticised by
Kriegler J., who also rejected the idea that the presidential pardon served a noble social
purpose. According to him, the discrimination violated Section 8(2) of the Civil Rights Act,
and the court should have reconsidered it rather than approving it. Despite agreeing with the
majority that it is important to outlaw unfair discrimination, Mokgoro J. disapproved of how
these principles were applied, contending that the Act did indeed entail unfair discrimination
but was justified by Section 33(1) of the Interim Constitution. Overall, the case illustrates a
difficult legal controversy over whether gender-based discrimination is fair and justifiable in
the context of a presidential pardon. (University of Cape Town, 2023)

Clemency in South Africa has been significantly impacted by the case of S v. Makwanyane,
1995 (3) SA 391 (CC). The death penalty was deemed illegal in this case by the South
African Constitutional Court, which ruled that it went against the rights to life and dignity
guaranteed by the Constitution. The death sentence was no longer an option for punishment
in South Africa as a result of this decision's impact on clemency. Prior to this decision,
people facing the death penalty frequently requested clemency in an effort to have their
sentences commuted or reduced. Clemency is no longer appropriate in the context of capital
punishment due to the Makwanyane case, nevertheless. The court's ruling in Makwanyane
opened the door to alternate types of punishment, such life in prison, for major offences
rather than clemency. As a result, those found guilty of capital crimes are no longer subject
to the death penalty but rather are condemned to life in prison without the chance of parole.
In conclusion, as the death penalty was ruled to be illegal, the S v. Makwanyane decision
had no bearing on clemency in South Africa's context of capital punishment. (Kenny, 2023)

The Constitutional Court ruled in Sibiya v. Director of Public Prosecutions, Johannesburg

Hich Count 2005 (5) SA 315 (CC) on the constitutionality of statutory provisions (ss 1–5 of
the Criminal Law Amendment Act 105 of 1997) that specified how a death sentence that had
been imposed prior to the Makwanyane decision had to be replaced by an alternative
suitable sentence. (Around 300 to 400 prisoners were on death row at the time of this ruling.)
The rules, which were passed following the Makwanyane ruling, essentially gave the South
African president the authority to impose new sentences on death-row inmates in situations
where all other appeals options had been exhausted. The law was declared unconstitutional
by the Gauteng High Court in Johannesburg because the accused did not receive a fair trial
in regard to the new sentence. The Constitutional Court ruled that the law was legitimate
despite the exceptional circumstances. Since the individuals in question had already
undergone a fair trial in which they were tried, found guilty, punished, and given the
opportunity to appeal, there was no need to uphold their right to a fair trial as guaranteed by
the Constitution. Yacoob, I believed that the replacement of the sentences had to be done
fairly, which it did. He further maintained that there was nothing improper about a judge
deciding the appropriate penalty or about the President afterwards formally changing the
sentence. (Joubert, 2020)

Conclusion:

Parole contrasts from presidential clemency, which includes free pardon, reprieve, and
sentence reduction. It is governed by the Constitution and an ex abundanti cautela clause in
the Criminal Procedure Act, as was previously mentioned. The President has the authority to
grant clemency, and the court may evaluate how he chooses to wield it. No one has a right
to clemency, but they do have a right to have their case taken into consideration. The result
of presidential pardon is the eradication of a conviction or sentence, which leaves the
offender with a clean record as far as the specific conviction and sentence are concerned.
With the aforementioned discussion in the cases of President of RSA v Hugo and S v
Makwanyane, we can evaluate that presidential clemency is not a topic that is not faced
without scrutiny. Although it has been questioned by many, it is deemed constitutional as one
of the rights the President holds.
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