Criminal Procedure B Outlined Notes

TOPIC 1-THE PROSECUTION OF CRIME
• Topic 1- The Prosecution of crime.
This is the structure of the National Prosecuting authority:
• National Director of Public Prosecutions ("the National Director"), who is the

head of the NPA;
• Directors of Public Prosecutions;
• Prosecutors.
In this Topic, we are concerned with Public and Private Prosecutions.
Public Prosecutions: prosecution initiated by a public prosecutor

representing the state.
 They are instituted by a public prosecutor who represents the state.
Private Prosecutions:
 They are instituted by an individual state citizen or private organization

instead of a public prosecutor who represents the state.
We start by discussing public prosecutions first-

why?
 Answer: Because it is only when the public prosecutor has declined to

prosecute can one institute a private prosecution.
But when would a public prosecutor decline to

prosecute?
 Answer: When there is no prima facie case and no compelling reason to

prosecute.
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When is case prima facie?
 Answer: When the allegations, as supported by statements and evidence

(J88 form) available to the prosecution are of such a nature that if they are
proved in a court of law by the prosecution on the basis of admissible
evidence, the court should convict the accused (Freedom under Law v
National Director of Public Prosecutions 2014 (1) SACR 111 (GNP)
NB: A failure to prosecute in the face of a prima facie case offends the rule
of law and section 179 of the Constitution. – Panday v National Director of
Public Prosecutions 2021 (1) SACR 18 (KZP).
• A comment on Mr Zuma and Mr Bulelani Ngcuka’s saga.
But why is s179 of the Constitution important?
• Because it is the Original Constitutional power to

prosecute crime.
 S179 (1) & (2): There is a single national prosecuting authority in the
Republic, structured in terms of an Act of Parliament. The Act referred to is
the National Prosecuting Authority Act 32 of 1998.
 (2) The prosecuting authority has the power to institute criminal

proceedings on behalf of the state, and to carry out any necessary
functions incidental to instituting criminal proceedings.– S v ……..
 S179 (4) read with s32 (1) (b) of the NPA Act: National legislation must
ensure that the prosecuting authority exercises its functions without fear,
favour or prejudice. S 32 (1) (B) of NPA Act : no organ of state and no
member or employee of an organ of state nor any other person shall
improperly interfere with, hinder or obstruct the prosecuting authority or
any member thereof in the exercise, carrying out or performance of its, his or
her powers, duties and functions.
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In other words, s179 has spoken and section 32 (1) (b) abides.
Reason why these two sections are NB: The independence of the NPA is the
foundation upon which a fair due process and legitimate system of criminal justice
is built.
NB: The prosecution is Dominus Litis:
Dominus Litis: The prosecutor is the master of the case, or the prosecutor is in
control of the prosecution - S v Zuma 2006 (2) SACR 257 (W).
This means that the prosecutor is under an obligation to:
• Determine which court has jurisdiction to hear matter.
• Determine witness list and order of testimony.
• Set date and venue of trial.
• At trial, decide when to close prosecution case.
• Cross- examine the accused and defence witnesses and generally challenge
the evidence of the defence.
• Determine the charge : “After the police have concluded their investigations,
the docket is given to the prosecutor. He or she gains access to all
documents and statements in the docket. Based on this, he or she decides
on which charge(s) to prefer against an accused person. The latter plays no
role in this critical choice by the prosecutor. It follows that any wrong
decision regarding the choice of an appropriate charge(s) cannot be put at
the accused person's door.” - S v Mashinini 2012 SACR (SCA) para 15.
NB: S42 of the NPA Act :
• “No person shall be liable in respect of anything done in good faith

under this Act”
• section 42 of the National Prosecuting Authority Act provides legal
protection to prosecutors acting in good faith.
• This means that a prosecutor who makes a decision based on the
available evidence and in line with their legal duties will not be held
liable for any consequences arising from that decision.
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(1) -if prosecutor can show that despite the wrongful consequences of his/her
conduct he or she acted in good faith, they are immune from civil or
criminal prosecution.
- A case where s42 did not protect a prosecutor: Minister of Justice and
Constitutional Development v X 2015 (1) SA 25 (SCA)
- the prosecutor in this case failed to provide all relevant information to
the magistrate, which resulted in the release of the perpetrator
identified as "S" from custody. Consequently, "S" had the opportunity to
abduct and rape the minor child. The prosecutor's negligent conduct in
not presenting crucial information before the magistrate was deemed
as a failure to exercise due care and take reasonable precautions to
avoid harm to others. This negligent action by the prosecutor ultimately
led to the perpetration of a serious crime against the minor child,
highlighting the significance of the prosecutor's role in the
administration of justice and the consequences of their actions or
inactions.
- The prosecutor was likely pleading Section 42 of the National
Prosecuting Authority Act (NPA Act) as a defense. Section 42 provides
immunity from liability for actions taken in good faith under the Act.
The prosecutor may have invoked this defense to argue that they acted
within the scope of their authority and in good faith when carrying out
their duties under the NPA Act.
- However, the court found that the prosecutor's actions did not meet the
requirements for immunity under Section 42. Despite possibly acting in
good faith, the prosecutor's failure to exercise due care and take
reasonable precautions resulted in harm to the respondent and her
daughter. Therefore, the court determined that the prosecutor's conduct
did not qualify for immunity under Section 42, and the defense based
on this section was not upheld.
- even if the defense had been properly pleaded, the court found
that the prosecutor's actions did not meet the criteria of good
faith and due care as required by section 42. The prosecutor's
negligent failure to provide all relevant information to the
magistrate, resulting in the release of the perpetrator and
subsequent harm to the victim, constituted a failure to exercise
due care and thus rendered the conduct unlawful.
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NB: The discretion to prosecute.
• Note: South Africa does not have a system of compulsory prosecutions.
• The discretion to prosecute is wide and is to be exercised objectively,

honestly and without undue influence from any party including victim,
complainant, executive or judiciary.
• The decision to prosecute is one of the core responsibilities of the

prosecution and has consequences:
Mahupelo v The Minister of Safety and Security (I 56/2014) [2017] NAHCMD

25 par 132:
• “The decision to prosecute or not to prosecute can have the most far-
reaching consequences for an individual.
• Even where an accused person is acquitted, the consequences resulting from
a prosecution can include:
• loss of reputation, disruption of personal relations, loss of employment and
financial expense, in addition to the anxiety and trauma caused by being
charged with a criminal offence. A wrong decision to prosecute or,
conversely, a wrong decision not to prosecute, both tend to undermine the
confidence of the community in the criminal justice system.” Continued
Mahupelo v The Minister of Safety and Security (I 56/2014) [2017] NAHCMD

25 par 136:
• “Prosecutors should thus not initiate or continue proceedings when an

impartial investigation shows the charge to be unfounded. When instituting
or maintaining criminal proceedings, the Prosecutor should proceed and
only when a case is well founded, upon evidence reasonably believed to be
reliable and admissible, and should not continue with such proceedings in
the absence of such evidence. This is to be recognised by the common law
principle that there should be “reasonable and probable cause to believe that
the accused is guilty of an offence before a prosecution is initiated (or
maintained) and the necessary constitutional protection afforded.”
Which is why the standard is a prima facie case.
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• Note: Firstly, the prosecution does not have to ascertain whether there is a
defence but whether there is a reasonable and probably cause for
prosecution.
• Secondly, the fact that a suspect raises a defence backed by his possible
witnesses does not mean that there is no reasonable or probable cause [for a
prosecution-my emphasis]. Mahupelo v The Minister of Safety and
Security (I 56/2014) [2017] NAHCMD 25 par 76.
• In other words, as per Minister of Safety and Security v Lincoln (682/19)
[2020] ZASCA 59: “Objectively reasonable and probable cause can only be
gleaned from an analysis of the contents of the dockets. It involved the
weighing up of the evidence favourable to the accused against evidence
incriminating him and testing the averments contained therein against the
objectively established facts and the real evidence contained in the docket”
Reference to a docket: When a crime is reported a police docket is opened

containing:
• Witness statements
• Documentary evidence (if any).
• Warning statement(s) of accused.
• List of accused’s previous convictions.
• Correspondence during investigations.
• Investigation diary.
Note: Sometimes there might be good reasons to refuse a prosecution despite

prima facie case:
• Triviality of offence
• Plea bargain concluded between prosecution and defence.
• Tragic personal circumstances of the accused
• The advanced or young age of accused.
• Etc…
NB: Section 6 –of CPA: The power to withdraw a charge and Stop a
prosecution.-Page 79 of Joubert
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NB: Withdrawing a charge or stopping a prosecution happen at different times
of the prosecutions case.
• Section 6(a): Withdrawal of a charge in terms of this section

occurs before an accused pleads to a charge.
• Section 6 (b): Occurs when the trial has begun i.e.: the accused
has pleaded but has not been convicted.
Why is this distinction NB: Consequences differ.
NB: Freedom Under Law v National Director of Public Prosecutions and Others 2014
(1) SACR 111 (GNP).
NB: Private prosecutions

• National Society for the Prevention of Cruelty to Animals v Minister of Justice
and Constitutional Development and Another 2017 (1) SACR 284 (CC): “Quite
apart from public prosecutions, there are two categories of prosecutions not
instituted on behalf of the state; both are legislatively titled “private
prosecutions”.
• The CPA governs prosecution on certificate (section 7) and by statutory right
(section 8). These sections constitute two “carve-outs” from the general
principle that criminal prosecutions are for the public interest and in the
name of the state.”
Section 7 of CPA:
In any case in which a Director of Public Prosecutions declines to prosecute for an

alleged offence:
(a) any private person who proves some substantial and peculiar interest in the
issue of the trial arising out of some injury which he individually suffered in
consequence of the commission of the said offence;
(b) a husband, if the said offence was committed in respect of his wife;
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(c) the wife or child or, if there is no wife or child, any of the next of kin of any
deceased person, if the death of such person is alleged to have been caused
by the said offence; or
(d) the legal guardian or curator of a minor or lunatic
• may, either in person or by a legal representative, institute and conduct a

prosecution.
• in respect of such offence in any court competent to try that offence.
• Section 7 of CPA tells us that the initiation of private prosecution is strictly

limited to natural persons whose personal legal interests are at stake.
NB: Differentiating section 7 (a) prosecutions from those in (b) – (d): Nundalal
v Director of Public Prosecutions, KZN2015 JDR 0876 (KZP) par 49.
• Section 7 (1) (a): Reference is made to “individually suffered.” This means

nothing less than having actually suffered an injury. And that there must be
a causal connection between the injury he suffered and the offence.-
Singh v Minister of Justice and Constitutional Development and Another
(5072/05) [2006] ZAKZHC 20 par 53.
A substantial interest in terms of section 7(1) (a): Nundalal v Director of Public

Prosecutions, KZN2015 JDR 0876 (KZP):
• “In the context of s 7 ‘substantial’ must refer to the interest being such as to
be capable of resulting in a conviction. A public prosecution will not
commence or continue unless a conviction is possible. There is no rational
basis for setting a different threshold for a private prosecution.
Note: Prima facie is not required for a private prosecution.
• “Intention by the legislature must have contemplated that private

prosecutors might in many cases have weak grounds for prosecution - a
decision by the [DPP] not to prosecute would indicate this - but to allow a
prosecution even in weak cases, in order to avoid the taking of the law by
the complainant into his own hands.”- Solomon v Magistrate, Pretoria 1950
(3) SA 603 (T) .
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Singh v Minister of Justice and Constitutional Development and Another
(5072/05) [2006] ZAKZHC 20:
• “The private prosecutor has to establish that he has some substantial and
peculiar interest in the issue of a trial which arises from an injury caused to
him by the commission of the offence.” – Failure to establish this means that
the prosecutor has no locus standi to approach the court.
Nundalal case: ”[48] [53] and [76]:
• If the private prosecutor fails to prove that he has a substantial interest,

then no private prosecution can ensue.
NB: The certificate of nolle prosequi- section 7(2)

• This is a certificate signed by the DPP confirming that (1) statements or
affidavits in the police docket on which the charge is based have been
carefully examined and assessed and
• (2) the DPP has declined to prosecute on behalf of the State.
The importance of the nolle prosequi certificate:
(1) ensures that the facts of the case have indeed been studied by the DPP
(2) Accords with the principle that it is desirable that where the facts allow
prosecutions are conducted by the state.
• S7(2)(b): DPP must grant certificate on request by private person in every

case in which NPA declines to prosecute.
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• S 7(2)(c): Certificate of nolle Prosequi lapses if after three months, no private
prosecution has commenced.
NB to note about private prosecutions:
• (1) Pursuance of a private prosecution does not bar Court from reviewing
decision of DPP to decline prosecution Freedom Under Law v National
Director of Public Prosecutions and Others 2014 (1) SACR 111 (GNP).
Crookes v Sibisi [2010] JOL 25407 (KZP):
• Like a public prosecutor, a private prosecutor is allowed to withdraw

and reinstate a charge against the accused in terms of section 6(a)
even though section 6(a) does not refer to private prosecutors.
Procedural issues
• s9: Private prosecutor must provide security for costs i.e. R2500 as a form of
security that private prosecutor will prosecute charge to its final conclusion
and without undue delay. The prosecutor will also need to deposit the cost
the accused will incur when defending the matter.
• s10: Private prosecution to be instituted in name of private prosecutor, not

the State.
• s12(1): Accused to be brought before lower court by way of summons only,

and before High Court by way of indictment only i.e. the accused cannot be
arrested as means of ensuring court attendance.
• s13: DPP may apply to court at any time to stop all further proceedings so
that State can institute prosecution (said to be a mechanism that prevents
abuse of the right to institute a private prosecution).
• Court may award costs to successful private prosecutor (s15) and against an
unsuccessful private prosecutor (s16)
• Court may award costs to successful private prosecutor (s15) and against an
unsuccessful private prosecutor (s16).
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Requirements for private prosecution (Singh v
Minister of Justice and Constitutional Development
and Another (5072/05) [2006] ZAKZHC 20 is the NB
case):
• DPP declines to prosecute.
• Private person who proves some substantial and peculiar interest in the
issue arising out of some injury personally suffered
. s1(b) – (d)
Prerequisite = certificate nolle prosequi by DPP- s7(2)(a)
• DPP has seen statements/affidavits on which the charge is based and

declines to prosecute at public instance
• DPP obliged to provide such a certificate when someone is considering

instituting a private prosecution.
Private prosecution by person/body with statutory right to

prosecute: s8
(1) Anybody upon which or person upon whom the right to prosecute in respect
of any offence is expressly conferred by law, may institute and conduct a
prosecution in respect of such offence in any court competent to try that
offence.
(2) A body which or a person who intends exercising a right of prosecution

under subsection (1), shall exercise such right only after consultation with
the attorney general concerned and after the attorney-general has withdrawn
his right of prosecution in respect of any specified offence or any specified
class or category of offences with reference to which such body or person
may by law exercise such right of prosecution.
(3) An attorney-general may, under subsection (2), withdraw his right of

prosecution on such conditions as he may deem fit, including a condition
that the appointment by such body or person of a prosecutor to conduct the
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prosecution in question shall be subject to the approval of the attorney-
general, and that the attorney-general may at any time exercise with
reference to any such prosecution any power which he might have exercised
if he had not withdrawn his right of prosecution.
• Section 8 permits the institution of a private prosecution by bodies or persons

expressly authorised by law to do so without nolle prosequi certificate or
providing security.
• The DPP must be consulted and the DPP must withdraw their right to
prosecute before the right to institute the prosecution is exercised- s8(2).
• This type of prosecution is subject to the control, and intervention of the

DPP (s 8(3)).
Some examples of statutorily defined body or person upon who such right expressly
conferred in law:
• s 63(1)(i) Legal practice Act- Chairperson of Board of Legal Practitioner's

Fidelity Fund may institute private prosecution for theft of property/trust
funds
• S 23 Extension of Security of Tenure Act- Unlawfully evicted occupier of

property may instate a private prosecution against alleged offender
• S 33 National Environment Management Act – body or person in the public

interest or in the interest of the environment to institute private prosecution
against any organ of state that is in breach of a public duty to protect the
environment.
• Any municipality has the right to conduct private prosecution for the
contravention of municipal Regulations (see Porrit v NDPP 2015 SCA para
15).
Note: section 7 prosecutions are more personal in nature versus the section 8
prosecutions.
Prescription: Prosecution of a crime must be within a reasonable time.
s18 CPA: All crimes prescribe after 20 years thus a prosecution can no longer be
instituted.
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• Exceptions: NB: Levenstein and Others v Estate of the Late Sidney
Lewis Frankel and Others 2018 ZACC 16.
a) Murder
b) Treason during time of war
c) Robbery with aggravating circumstances
d) Kidnapping
e) Child-stealing
f) Rape, compelled rape
g) the crime of genocide, crimes against humanity and war crimes
h) Trafficking in persons for sexual purposes
i) Using a child or person who is mentally disabled for pornographic

purposes
NB cases:
• S v De Freitas 1997 (1) SACR 180 (C): the general rule regarding
prosecutions.
• Crookes v Sibisi [2010] JOL 25407 (KZP): a private prosecutor is allowed to

withdraw and reinstate a charge.
• Freedom under Law v National Director of Public Prosecutions 2014 (1) SACR
111 (GNP): courts from scrutinising a public prosecutor's decision not to
prosecute and see slide 14.
• Singh v Minister of Justice 2009 (1) SACR 87 (N): see slide 21.
• Levenstein and Others v Estate of the Late Sidney Lewis Frankil and Others
2018 (2) SACR 283 (CC): Prescription of crimes.
Ask yourself:
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(4) what is a public prosecution?
(5) What principles applicable to public prosecutions?
(6) What is private prosecution?
(7) What principles applicable and how do we get to private prosecutions?
TOPIC 2: SEARCHES AND SEIZURE EXAM

• Topic 2- Searches and seizures
Section 20 – 36 covers searches and seizures and are NB provisions:
 They give the state officials, particularly police officers extensive

powers to conduct searches and seizures in specific circumstances.
• Entering premises, the search of a person and the seizure of property

are= serious violations of the rights contained in the BOR.
Section 14 of the Constitution (right to privacy):
Everyone has the right to privacy, which includes the right not to have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
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(d) the privacy of their communications infringed.
NOTE: Searches and seizure operations infringe the right to privacy in any of
these prohibited ways.
 In other words, there is a presumption of unlawfulness for these

infringements unless justified by law of general application.
 NB: s 20 to 22 of the CPA are laws of general application and =
reasonable and justifiable limitations on the right to privacy.
S20 of the CPA:

20 State may seize certain articles.
The State may, seize anything (in this Chapter referred to as an article)-
(a) which is concerned in or is on reasonable grounds believed to be concerned
in the commission or suspected commission of an offence, whether within
the Republic or elsewhere.
(b) which may afford evidence of the commission or suspected commission of
an offence, whether within the Republic or elsewhere; or
(c) which is intended to be used or is on reasonable grounds believed to be
intended to be used in the commission of an offence.
NB: What is seized are articles that are used as a basis to institute a
prosecution, or articles used for the consideration of institution a
prosecution.
NOTE: anything can be seized in terms of this section provided it falls under any of
these headings.
Section 21 of the CPA:
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S21 (1) (a): an article referred to in section 20 shall be seized only by virtue of a
search warrant issued –
(a) by a magistrate or justice, if it appears to such magistrate or justice from

information on oath that there are reasonable grounds for believing that any
such article is in the possession or under the control of or upon any person
or upon or at any premises within his area of jurisdiction.
 NB: “the default position is that the seizure of articles referred to in s 20

(which may conveniently be described as “incriminating articles”) must be
authorized in terms of a search warrant” - S v Murphy and Others 2024 (1)
SACR 138 (WCC).
 Note: the above section provides safeguards against an unjustified
interference with the right to privacy and other fundamental rights namely:
• Judicial authorisation
• Objective standard : reasonable grounds to believe based on information

obtained under oath that an offence has been or is likely to be committed;
that the articles sought or seized may provide evidence of the commission of
the offence; and that the articles seized are likely to be on the premises
/person to be searched.
• Note: Warrants are provided on the strength of “information on oath” -This

means that the magistrate or justice must duly apply his or
her mind to the “…information on oath…” and in doing so,
exercise the judicial discretion as to: (a) whether the warrant
should be issued or not, and (b) what the contents and terms
of the warrant should be. - Strauss v Minister of SAPS N.O and Others
UM34/2019) [2019] ZANWHC 23.
• Note: The information on which reasonable grounds are based, thus

authorising a constitutional search, may not itself have been obtained in
violation of section 14 (right to privacy).
• Hearsay evidence of informers and anonymous tips may be used, subject

however to the cautionary rule (a rule of practice that aims to assist judges
in assessing evidence. It requires judicial officers to exercise caution before
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adopting the evidence of certain witnesses on the ground that the evidence of
such witnesses is inherently potentially unreliable).
• The test adopted in Van der Merwe v Minister of Justice: the threshold
is too low if it consists only of the requirement that the police apply for a
warrant and state in their affidavit that the tendered hearsay evidence is
true or correct. While the identity of informers need not be disclosed,
information should be placed before an independent decision maker in terms
of which the reliability of such hearsay evidence can be assessed. The word
of the police cannot be a substitute for the decision of the issuing authority.
What is a search warrant?
• It is a legal instrument which protects the individual against state power.
• Warrant: ensures that police do not invade private homes and residences for
no reason or for purpose of terrorising members of the public.
• BUT How is the latter achieved?
Answer: By the warrant governing the time, place and scope of the search, limiting
the privacy intrusion, by guiding the state in the conduct of the inspection and
informing the subject of the legality and limits of the search.-NB: Magajane v
Chairperson, North West Gambling Board 2006 (10) BCLR 1133 (CC).
NB: If a warrant appears to define the articles that may be seized in ‘broad and
general terms’ the court will declare that the judicial officer did not apply their
mind properly to the question whether there had been sufficient reason to interfere
with the liberty of the individual - Smith, Tabata & Van Heerden v Minister of Law
and Order 1989 3 SA 627 (E).
NB: The requirements of a valid warrant: Minister of Safety and Security v Van der
Merwe and others 2011 (2) SACR 301 (CC):
statutory provision in terms of which it is issued.
identifies the searcher.
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identifies the person, container or premises to be searched.
describes the article to be searched for and seized.
specifies the offence which triggered the criminal investigation
Etc……
21(2): A search warrant shall require a police official to seize the article in question
and shall to that end authorize such police official to search any person identified
in the warrant, or to enter and search any premises identified in the warrant and to
search any person found on or at such premises.
Section 20 – 36 covers searches and seizures and are NB provisions: They give
the state officials, particularly police officers extensive powers to conduct searches
and seizures in specific circumstances.
• Entering premises, the search of a person and the seizure of property are=
serious violations of the rights contained in the BOR.
NOTE: Searches and seizure operations infringe the right to privacy in any of these
prohibited ways. In other words, there is a presumption of unlawfulness for these
infringements unless justified by law of general application
NB: s 20 to 22 of the CPA are laws of general application and = reasonable and
justifiable limitations on the right to privacy.
S20 of the CPA:
20 State may seize certain articles
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the Republic or elsewhere;
NB: What is seized are articles that are used as a basis to institute a prosecution,
or articles used for the consideration of institution a prosecution.
these headings.

NB: “the default position is that the seizure of articles referred to in s 20 (which
may conveniently be described as “incriminating articles”) must be authorized in
terms of a search warrant” - S v Murphy and Others 2024 (1) SACR 138 (WCC).
Note: the above section provides safeguards against an unjustified interference with
the right to privacy and other fundamental rights namely:

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UM34/2019) [2019] ZANWHC 23.
Note: The information on which reasonable grounds are based, thus authorising a
constitutional search, may not itself have been obtained in violation of section 14
(right to privacy).
Hearsay evidence of informers and anonymous tips may be used, subject however
to the cautionary rule (a rule of practice that aims to assist judges in assessing
evidence. It requires judicial officers to exercise caution before adopting the
evidence of certain witnesses on the ground that the evidence of such witnesses is
inherently potentially unreliable).
The test adopted in Van der Merwe v Minister of Justice: the threshold is too low if
it consists only of the requirement that the police apply for a warrant and state in
their affidavit that the tendered hearsay evidence is true or correct. While the
identity of informers need not be disclosed, information should be placed before an
independent decision maker in terms of which the reliability of such hearsay
evidence can be assessed. The word of the police cannot be a substitute for the
decision of the issuing authority.
It is a legal instrument which protects the individual against state power.
Warrant: ensures that police do not invade private homes and residences for no
reason or for purpose of terrorising members of the public. BUT How is the
latter achieved?
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and Order 1989 3 SA 627 (E).
Etc……
The validity of warrants in respect of disclosing offences:
Minister of Safety and Security v Van der Merwe and others 2011 (2) SACR 301
(CC):
The question is whether or not a search warrant that fails to disclose an offence
was valid?
The case introduces us to the intelligibility principle in relation to warrants.
Intelligibility relates to two principles:
1. warrant must convey intelligibly, to both the searcher and the searched
person, the ambit of the search it authorises.
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2. The warrant must be reasonably capable of being understood by a
reasonably well-informed person who understands the relevant empowering
legislation and the nature of the offences under investigation.
Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and
Another v National Director of Public Prosecutions and Others 2008 (2) SACR 421
(CC):
• Warrants issued in terms of s21 must specify the suspected offence that
were under investigation.
• A failure to specify the offence is fatal to the validity of the warrant even if
the scope of the warrant is defined but the offence is not specified.
• Offence specification is an important part of the intelligibility principle. (Van

der Merwe case)
Read : Goqwana v Minister of Safety NO & Others [2016] 1 All SA 629 (SCA)
Note: Search warrant usually applied for during investigations but could be applied
for during proceedings.
NB: Van Rooyen and Another v Minister of Police and Others:
“It cannot be expected when police, at the initial stages of an investigation to

include in a warrant when, where and how specific offences were committed”
• Warrants applied for during proceedings as for purposes of evidence.
S v Brown: the offence , which is statutory in nature, was vaguely defined and the
warrant did not even define the statute which was contravened i.e.: Prevention of
Organised Crime Act 121 of 1998 (“POCA”) and the Drugs and Drug Trafficking Act
140 of 1992 (“the Drugs Act”).
Technical detail:
There is no duty on police officials to provide technical detail about the articles they
are seeking to find. Types or classes of articles as long as these are reasonably and
clearly described, the warrant will suffice. The warrant authorised the search and
seizure of disks, hard drives, computers. - (Van Rooyen case)
Note: The magistrate issuing the warrant does not have to indicate in the warrant
which of the subsections in s20 he /she is relying on to issue the warrant if all
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three are applicable to the search that is authorised: Polonyfis v Minster of Police
and Others NNO 2012 (1) SACR 57 (SCA).
The execution of warrants:
S21 (3)(a): A search warrant shall be executed by day, unless the person issuing
the warrant in writing authorizes the execution thereof by night.
• The section is intended to prevent invasion of people's homes at

unreasonable hours.
• In Sithole v Minister of police and another the warrant read: “This warrant
is to authorise to search during day/night time”- Court found the warrant to
be defective ad it did not authorise search by night.
However, a search that commences during the day time does not become unlawful
because it carried on into the night. (Young v Minster of Safety and Security)
S21 (3)(b): A search warrant may be issued on any day and shall be of force until it
is executed or is cancelled by the person who issued it or, if such person is not
available, by a person with like authority (Another Magistrates/ Justice).
Section 20 – 36 covers searches and seizures and are NB provisions: They give
the state officials, particularly police officers extensive powers to conduct searches
and seizures in specific circumstances.
• Entering premises, the search of a person and the seizure of property are=
serious violations of the rights contained in the BOR.
23 | P a g e
NOTE: Searches and seizure operations infringe the right to privacy in any of these
prohibited ways. In other words, there is a presumption of unlawfulness for these
infringements unless justified by law of general application
NB: s 20 to 22 of the CPA are laws of general application and = reasonable and
justifiable limitations on the right to privacy.
S20 of the CPA:
NB: What is seized are articles that are used as a basis to institute a prosecution,
or articles used for the consideration of institution a prosecution.
these headings.

NB: “the default position is that the seizure of articles referred to in s 20 (which
may conveniently be described as “incriminating articles”) must be authorized in
terms of a search warrant” - S v Murphy and Others 2024 (1) SACR 138 (WCC).
24 | P a g e
Note: the above section provides safeguards against an unjustified interference with
the right to privacy and other fundamental rights namely:


UM34/2019) [2019] ZANWHC 23.
Note: The information on which reasonable grounds are based, thus authorising a
constitutional search, may not itself have been obtained in violation of section 14
(right to privacy).
Hearsay evidence of informers and anonymous tips may be used, subject however
to the cautionary rule (a rule of practice that aims to assist judges in assessing
evidence. It requires judicial officers to exercise caution before adopting the
evidence of certain witnesses on the ground that the evidence of such witnesses is
inherently potentially unreliable).
The test adopted in Van der Merwe v Minister of Justice: the threshold is too low if
it consists only of the requirement that the police apply for a warrant and state in
their affidavit that the tendered hearsay evidence is true or correct. While the
identity of informers need not be disclosed, information should be placed before an
independent decision maker in terms of which the reliability of such hearsay
evidence can be assessed. The word of the police cannot be a substitute for the
decision of the issuing authority.
25 | P a g e
Warrant: ensures that police do not invade private homes and residences for no
reason or for purpose of terrorising members of the public. BUT How is the
latter achieved?
and Order 1989 3 SA 627 (E).
Etc……
Minister of Safety and Security v Van der Merwe and others 2011 (2) SACR 301
(CC):
26 | P a g e
The question is whether or not a search warrant that fails to disclose an offence
was valid?
1. warrant must convey intelligibly, to both the searcher and the searched
person, the ambit of the search it authorises.

Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and
Another v National Director of Public Prosecutions and Others 2008 (2) SACR 421
(CC):
• Warrants issued in terms of s21 must specify the suspected offence that
were under investigation.
• A failure to specify the offence is fatal to the validity of the warrant even if
the scope of the warrant is defined but the offence is not specified.
• Offence specification is an important part of the intelligibility principle. (Van

der Merwe case)
Note: Search warrant usually applied for during investigations but could be applied
for during proceedings.

include in a warrant when, where and how specific offences were committed”
S v Brown: the offence , which is statutory in nature, was vaguely defined and the
warrant did not even define the statute which was contravened i.e.: Prevention of
Organised Crime Act 121 of 1998 (“POCA”) and the Drugs and Drug Trafficking Act
140 of 1992 (“the Drugs Act”).
Technical detail:
27 | P a g e
There is no duty on police officials to provide technical detail about the articles they
are seeking to find. Types or classes of articles as long as these are reasonably and
clearly described, the warrant will suffice. The warrant authorised the search and
seizure of disks, hard drives, computers. - (Van Rooyen case)
Note: The magistrate issuing the warrant does not have to indicate in the warrant
which of the subsections in s20 he /she is relying on to issue the warrant if all
three are applicable to the search that is authorised: Polonyfis v Minster of Police
and Others NNO 2012 (1) SACR 57 (SCA).
S21 (3)(a): A search warrant shall be executed by day, unless the person issuing
the warrant in writing authorizes the execution thereof by night.

unreasonable hours.
• In Sithole v Minister of police and another the warrant read: “This warrant
is to authorise to search during day/night time”- Court found the warrant to
be defective ad it did not authorise search by night.
However, a search that commences during the day time does not become unlawful
because it carried on into the night. (Young v Minster of Safety and Security)
S21 (3)(b): A search warrant may be issued on any day and shall be of force until it
is executed or is cancelled by the person who issued it or, if such person is not
available, by a person with like authority (Another Magistrates/ Justice).
Searches and Seizures without a warrant.
• Search and seizure in terms of the law must be conducted with a warrant.
• A warrant guarantees that the state must be able, prior to an intrusion, to

justify and support intrusions upon individuals' privacy under oath before a
judicial officer.
• A warrant balances the right to privacy of an individual with the State's

interest incompliance with law and order.
• The interests of justice in some situations necessitate the police to act swiftly
and without a warrant
28 | P a g e
• Section 39(3) of the Constitution states that "[t]he Bill of Rights does not
deny the existence of any other rights or freedoms that are recognised or
conferred by common law, customary law or legislation, to the extent that
they are consistent with the Bill.”
• “Legislation authorising a warrantless search ‘must provide constitutionally

adequate substitute for a warrant.”- Magajane v Chairperson, North West
Gambling Board 2006 (10) BCLR 1133 (CC).
NB: Section 22: Circumstances in which article may be seized without search
warrant:
A police official may without a search warrant search any person or container or
premises for the purpose of seizing any article referred to in section 20- (a) if the
person concerned consents to the search for and the seizure of the article in
question, or if the person who may consent to the search of the container or
premises consents to such search and the seizure of the article in question; or (b) if
he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph (a) of
section 21 (1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of
the search.
Consent in terms of s22 (a).
NB: Magobodi v Minister of Safety and Security and Another 2009 (1) sacr 355.
NB: S v Motloutsi (1996 (1) SACR 78 (C).
NB: S22 (b): Reasonable grounds for believing that both a search warrant will be
given and that a delay would defeat the object of the search.
• This is an objective question.
• The police officer will have to show that the reasonable grounds to believe
existed when he/she decided to act without a warrant.
There can be “reasonable grounds to believe” that a search warrant will be given
“When a police official goes from parked vehicle to parked vehicle asking for
permission to search but without having any knowledge or reasonable grounds to
29 | P a g e
believe that the vehicle in question had been concerned in the commission or
suspected commission of an offence or that it night afford evidence of the
commission or suspected commission of an offence or that it was intended to be
used in the commission of an offence.”
Whether a police officer acts on information received that he/she had no time to
investigate, such police official cannot be said to have had a reasonable suspicion
i.e.: there needs to be a confirmation of suspicion.
Where a police official has not formed a suspicion, the fact that there are other
officials who form the requisite suspicion does not undo the unlawful ness of the
officials search who first entered the premises. (Ndlovu and Others v S (541/2019)
[2020] ZAECGHC 131): Seized articles:
(a) A freshly removed rhino horn;
(b) A tranquiliser dart gun;
(c) Five tranquiliser darts;
(d) Etorphine (M99) tranquiliser;
(e) A yellow bow saw;
(f) Rounds of .22 blank ammunition;
(g) Two knives;
(h) Side cutter pliers;
(i) A cordless drill; and
(j) Six cellular phone handsets with sim cards and one loose sim card.
NB: A delay in acquiring a warrant will defeat the purpose of a search
National Director of Public Prosecutions v Starplex 47 CC; National Director of Public

Prosecutions v Mamadou 2009 1 SACR 68 (C):
• The initial basis of the search was a warrant based on information that a
group of foreign nationals were issuing fraudulent documents and permits.
• During the search operation it became apparent to SAPS members that

further offences were being committed on the premises, namely,
contraventions of the exchange control regulations.
30 | P a g e
• Had the police authorities, upon finding the currency in question, left the
premises in order to apply to a magistrate for a search warrant, there is
every chance that some or all of the currency would have disappeared by the
time that they returned.(Justified search and seizure in terms of s22 (b).
Note: I heard it through the grape vine : Warrantless searches based on information
provided by informers.
Where warrantless searches are effected based on information provided by a police

informer, the information must measure up to a certain standard in order to
comply with the “reasonable grounds” standard.
NB: Tinto v Minister of Police (EL18/2012, ECD 318/2012) [2013] ZAECELLC 8:
• Case relied on R v Debot (1986) 30 CCC (3d) 207 and R v Debot[1989] 2 SCR
1140
• Three concerns to be addressed in weighing evidence relied on by the

police to justify a warrantless search. First, was the information predicting
the commission of a criminal offence compelling? Secondly, was that
source credible? Finally, was the information corroborated by police
investigation prior to making the decision to conduct the search?
Mabona v Minister of Law and Order (1988 (2) SA 654 (SE)):
Information from an informer must be viewed with circumspect and subjected to

close and careful scrutiny” and corroboration before the information can be
trusted. Other safeguards are also missing, such as the fear of perjury when
testifying under oath (the credibility of which is closely monitored by the courts)
and the lack of a formal complaint or statement
Section 26: Entering of premises for purposes of obtaining evidence
Where a police official in the investigation of an offence or alleged offence

reasonably suspects that a person who may furnish information with reference to
any such offence is on any premises, such police official may without warrant enter
such premises for the purpose of interrogating such person and obtaining a
statement from him: Provided that such police official shall not enter any private
dwelling without the consent of the occupier thereof.
Section: 27 Resistance against entry or search.
31 | P a g e
• The section makes provision for reasonable force by a police official who is
entitled to search a person or premises.
• The force used is in the form of breaking a door or window provided that
he/she audibly demands admission on the premises and notifies of the
purpose for which he seeks to enter the premises.
Note: This section is applicable to both searches conducted with or without a

warrant. However, in instances where the search is conducted without a warrant,
the provisions of 22 (b) apply.
27(2): If the police official believes that the article will be destroyed or disposed of if
he audibly demands admission and notifies the person of the purpose of the
search, for which he seeks entry, he is not required to do so.
Section 29: Search to be conducted in decent and orderly manner
• Searches should be conducted with strict regard to decency and order.
• Males search males and females search females.
A comment on the nature of searches.
30 Disposal by police official of article after seizure
This section provides for the manner in which articles seized under 20 should be
dealt with.
Perishable goods: With due regards to the interest of persons concerned, must be
disposed of in a manner as the circumstances may require.
Stolen property/suspected of being stolen: Must be delivered to the person from

whom, in the opinion of the official, the article was stolen from. The person to
whom it is returned to must be warned to keep the article available for production
at any resultant criminal proceedings.
Uncertainty as to whom the identify of the person from whom the article was
stolen: The article should be dealt with under s30(c) i.e.: given an identification
mark and retain it in police custody or make some other arrangements necessary.
Section 31: Disposal of article where no criminal proceedings are instituted or

where it is not required for criminal proceedings.
32 | P a g e
If no criminal proceedings are instituted or the article is not necessary for the trial,
an article referred to in s30 (c) must be returned to the person from whom the
article was seized provided that such a person may lawfully possess it.
If nobody may lawfully possess it or the police official investigating doesn’t know
who may lawfully possess it, the article will be forfeited to the state.
Note: Buys and Another v Minister of Police and Another (2339/2016) [2017]
ZANCHC 45: the articles must be returned to the applicants where time taken to
investigate becomes so extended that it constitutes an act oppressive of the
applicants’ rights. There must also not be any real prospect of further advance by
the State in the investigation.
Eg: Petersen v Minister of Police and Another 2022 (1) SACR 333 (WCC)
NOTE: Onus is on the applicants to prove on a balance of probabilities that no

criminal proceedings has been instituted and that there is no reasonable likelihood
that such proceedings will be instituted in the future.
Listen to RECORDINGS
• Topic 2- Searches and seizures CONCLUSION
Section 20 – 36 covers searches and seizures and are NB provisions:

They give the state officials, particularly police officers extensive powers to
conduct searches and seizures in specific circumstances.
• Entering premises, the search of a person and the seizure of property

are= serious violations of the rights contained in the BOR.
33 | P a g e
NOTE: Searches and seizure operations infringe the right to privacy in any
of these prohibited ways. In other words, there is a presumption of
unlawfulness for these infringements unless justified by law of general
application
NB: s 20 to 22 of the CPA are laws of general application and = reasonable

and justifiable limitations on the right to privacy.
S20 of the CPA:
(a) which is concerned in or is on reasonable grounds believed to be

concerned
NB: What is seized are articles that are used as a basis to institute a
prosecution, or articles used for the consideration of institution a
prosecution.
NOTE: anything can be seized in terms of this section provided it falls

under any of these headings.
S21 (1) (a): an article referred to in section 20 shall be seized only by virtue
of a search warrant issued –
(a) by a magistrate or justice, if it appears to such magistrate or justice

from information on oath that there are reasonable grounds for
34 | P a g e
believing that any such article is in the possession or under the
control of or upon any person or upon or at any premises within his
area of jurisdiction.
NB: “the default position is that the seizure of articles referred to in s 20

(which may conveniently be described as “incriminating articles”) must be
authorized in terms of a search warrant” - S v Murphy and Others 2024 (1)
SACR 138 (WCC).
Note: the above section provides safeguards against an unjustified

interference with the right to privacy and other fundamental rights namely:
• Objective standard : reasonable grounds to believe based on

information obtained under oath that an offence has been or is likely
to be committed; that the articles sought or seized may provide
evidence of the commission of the offence; and that the articles seized
are likely to be on the premises /person to be searched.
• Note: Warrants are provided on the strength of “information on oath” -

This means that the magistrate or justice must duly apply
his or her mind to the “…information on oath…” and in
doing so, exercise the judicial discretion as to: (a) whether
the warrant should be issued or not, and (b) what the
contents and terms of the warrant should be. - Strauss v
Minister of SAPS N.O and Others UM34/2019) [2019] ZANWHC 23.
Note: The information on which reasonable grounds are based, thus

authorising a constitutional search, may not itself have been obtained in
violation of section 14 (right to privacy).
Hearsay evidence of informers and anonymous tips may be used, subject

however to the cautionary rule (a rule of practice that aims to assist judges
in assessing evidence. It requires judicial officers to exercise caution before
adopting the evidence of certain witnesses on the ground that the evidence
of such witnesses is inherently potentially unreliable).
35 | P a g e
The test adopted in Van der Merwe v Minister of Justice: the threshold is
too low if it consists only of the requirement that the police apply for a
warrant and state in their affidavit that the tendered hearsay evidence is
true or correct. While the identity of informers need not be disclosed,
information should be placed before an independent decision maker in
terms of which the reliability of such hearsay evidence can be assessed. The
word of the police cannot be a substitute for the decision of the issuing
authority.
Warrant: ensures that police do not invade private homes and residences
for no reason or for purpose of terrorising members of the public. BUT
How is the latter achieved?
Answer: By the warrant governing the time, place and scope of the search,
limiting the privacy intrusion, by guiding the state in the conduct of the
inspection and informing the subject of the legality and limits of the search.-
NB: Magajane v Chairperson, North West Gambling Board 2006 (10) BCLR
1133 (CC).
NB: If a warrant appears to define the articles that may be seized in ‘broad
and general terms’ the court will declare that the judicial officer did not
apply their mind properly to the question whether there had been sufficient
reason to interfere with the liberty of the individual - Smith, Tabata & Van
Heerden v Minister of Law and Order 1989 3 SA 627 (E).
NB: The requirements of a valid warrant: Minister of Safety and Security v

Van der Merwe and others 2011 (2) SACR 301 (CC):
36 | P a g e
Etc……
21(2): A search warrant shall require a police official to seize the article in
question and shall to that end authorize such police official to search any
person identified in the warrant, or to enter and search any premises
identified in the warrant and to search any person found on or at such
premises.
Minister of Safety and Security v Van der Merwe and others 2011 (2) SACR
301 (CC):
The question is whether or not a search warrant that fails to disclose an

offence was valid?
1. warrant must convey intelligibly, to both the searcher and the

searched person, the ambit of the search it authorises.

Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma
and Another v National Director of Public Prosecutions and Others 2008 (2)
SACR 421 (CC):
• Warrants issued in terms of s21 must specify the suspected offence

that were under investigation.
37 | P a g e
• A failure to specify the offence is fatal to the validity of the warrant
even if the scope of the warrant is defined but the offence is not
specified.
• Offence specification is an important part of the intelligibility

principle. (Van der Merwe case)
Note: Search warrant usually applied for during investigations but could be
applied for during proceedings.

include in a warrant when, where and how specific offences were
committed”
S v Brown: the offence , which is statutory in nature, was vaguely defined

and the warrant did not even define the statute which was contravened i.e.:
Prevention of Organised Crime Act 121 of 1998 (“POCA”) and the Drugs and
Drug Trafficking Act 140 of 1992 (“the Drugs Act”).
Technical detail:
There is no duty on police officials to provide technical detail about the

articles they are seeking to find. Types or classes of articles as long as these
are reasonably and clearly described, the warrant will suffice. The warrant
authorised the search and seizure of disks, hard drives, computers. - (Van
Rooyen case)
Note: The magistrate issuing the warrant does not have to indicate in the
warrant which of the subsections in s20 he /she is relying on to issue the
warrant if all three are applicable to the search that is authorised: Polonyfis
v Minster of Police and Others NNO 2012 (1) SACR 57 (SCA).
38 | P a g e
S21 (3)(a): A search warrant shall be executed by day, unless the person
issuing the warrant in writing authorizes the execution thereof by night.

unreasonable hours.
• In Sithole v Minister of police and another the warrant read: “This

warrant is to authorise to search during day/night time”- Court found
the warrant to be defective ad it did not authorise search by night.
However, a search that commences during the day time does not become
unlawful because it carried on into the night. (Young v Minster of Safety and
Security)
S21 (3)(b): A search warrant may be issued on any day and shall be of force
until it is executed or is cancelled by the person who issued it or, if such
person is not available, by a person with like authority (Another
Magistrates/ Justice).
Searches and Seizures without a warrant.
• Search and seizure in terms of the law must be conducted with a

warrant.
• A warrant guarantees that the state must be able, prior to an

intrusion, to justify and support intrusions upon individuals' privacy
under oath before a judicial officer.
• A warrant balances the right to privacy of an individual with the

State's interest incompliance with law and order.
• The interests of justice in some situations necessitate the police to act

swiftly and without a warrant
• Section 39(3) of the Constitution states that "[t]he Bill of Rights does
not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation,
to the extent that they are consistent with the Bill.”
39 | P a g e
• “Legislation authorising a warrantless search ‘must provide
constitutionally adequate substitute for a warrant.”- Magajane v
NB: Section 22: Circumstances in which article may be seized without

search warrant:
A police official may without a search warrant search any person or

container or premises for the purpose of seizing any article referred to in
section 20- (a) if the person concerned consents to the search for and the
seizure of the article in question, or if the person who may consent to the
search of the container or premises consents to such search and the seizure
of the article in question; or (b) if he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph (a) of
section 21 (1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of
the search.
Consent in terms of s22 (a).
NB: Magobodi v Minister of Safety and Security and Another 2009 (1) sacr
355.
NB: S v Motloutsi (1996 (1) SACR 78 (C).
NB: S22 (b): Reasonable grounds for believing that both a search warrant
will be given and that a delay would defeat the object of the search.
• This is an objective question.
• The police officer will have to show that the reasonable grounds to
believe existed when he/she decided to act without a warrant.
There can be “reasonable grounds to believe” that a search warrant will be

given “When a police official goes from parked vehicle to parked vehicle
asking for permission to search but without having any knowledge or
reasonable grounds to believe that the vehicle in question had been
40 | P a g e
concerned in the commission or suspected commission of an offence or that
it night afford evidence of the commission or suspected commission of an
offence or that it was intended to be used in the commission of an offence.”
Whether a police officer acts on information received that he/she had no

time to investigate, such police official cannot be said to have had a
reasonable suspicion i.e.: there needs to be a confirmation of suspicion.
Where a police official has not formed a suspicion, the fact that there are
other officials who form the requisite suspicion does not undo the unlawful
ness of the officials search who first entered the premises. (Ndlovu and
Others v S (541/2019) [2020] ZAECGHC 131): Seized articles:
(a) A freshly removed rhino horn;
(b) A tranquiliser dart gun;
(c) Five tranquiliser darts;
(d) Etorphine (M99) tranquiliser;
(e) A yellow bow saw;
(f) Rounds of .22 blank ammunition;
(g) Two knives;
(h) Side cutter pliers;
(i) A cordless drill; and
(j) Six cellular phone handsets with sim cards and one loose sim card.
NB: A delay in acquiring a warrant will defeat the purpose of a search
National Director of Public Prosecutions v Starplex 47 CC; National Director of

Public Prosecutions v Mamadou 2009 1 SACR 68 (C):
• The initial basis of the search was a warrant based on information

that a group of foreign nationals were issuing fraudulent documents
and permits.
41 | P a g e
• During the search operation it became apparent to SAPS members
that further offences were being committed on the premises, namely,
contraventions of the exchange control regulations.
• Had the police authorities, upon finding the currency in question, left
the premises in order to apply to a magistrate for a search warrant,
there is every chance that some or all of the currency would have
disappeared by the time that they returned.(Justified search and
seizure in terms of s22 (b).
Note: I heard it through the grape vine : Warrantless searches based on

information provided by informers.
Where warrantless searches are effected based on information provided by a

police informer, the information must measure up to a certain standard in
order to comply with the “reasonable grounds” standard.
NB: Tinto v Minister of Police (EL18/2012, ECD 318/2012) [2013] ZAECELLC

8:
• Case relied on R v Debot (1986) 30 CCC (3d) 207 and R v Debot[1989]

2 SCR 1140
• Three concerns to be addressed in weighing evidence relied on by

the police to justify a warrantless search. First, was the information
predicting the commission of a criminal offence compelling?
Secondly, was that source credible? Finally, was the
information corroborated by police investigation prior to making the
decision to conduct the search?
Mabona v Minister of Law and Order (1988 (2) SA 654 (SE)):
Information from an informer must be viewed with circumspect and

subjected to close and careful scrutiny” and corroboration before the
information can be trusted. Other safeguards are also missing, such as
the fear of perjury when testifying under oath (the credibility of which is
closely monitored by the courts) and the lack of a formal complaint
or statement
42 | P a g e
Section 26: Entering of premises for purposes of obtaining evidence
Where a police official in the investigation of an offence or alleged offence

reasonably suspects that a person who may furnish information with
reference to any such offence is on any premises, such police official may
without warrant enter such premises for the purpose of interrogating such
person and obtaining a statement from him: Provided that such police
official shall not enter any private dwelling without the consent of the
occupier thereof.
Section: 27 Resistance against entry or search.
• The section makes provision for reasonable force by a police official

who is entitled to search a person or premises.
• The force used is in the form of breaking a door or window provided

that he/she audibly demands admission on the premises and notifies
of the purpose for which he seeks to enter the premises.
Note: This section is applicable to both searches conducted with or without

a warrant. However, in instances where the search is conducted without a
warrant, the provisions of 22 (b) apply.
27(2): If the police official believes that the article will be destroyed or
disposed of if he audibly demands admission and notifies the person of the
purpose of the search, for which he seeks entry, he is not required to do so.
Section 29: Search to be conducted in decent and orderly manner
• Searches should be conducted with strict regard to decency and order.
• Males search males and females search females.
A comment on the nature of searches.
30 Disposal by police official of article after seizure
This section provides for the manner in which articles seized under 20
should be dealt with.
43 | P a g e
Perishable goods: With due regards to the interest of persons concerned,
must be disposed of in a manner as the circumstances may require.
Stolen property/suspected of being stolen: Must be delivered to the person

from whom, in the opinion of the official, the article was stolen from. The
person to whom it is returned to must be warned to keep the article
available for production at any resultant criminal proceedings.
If an article is not disposed (if perishable) of or delivered(if stolen) given an

identification mark and retain it in police custody or make some other
arrangements necessary.
Section 31: Disposal of article where no criminal proceedings are instituted

or where it is not required for criminal proceedings.
If no criminal proceedings are instituted or the article is not necessary for

the trial, an article referred to in s30 (c) must be returned to the person from
whom the article was seized provided that such a person may lawfully
possess it.
If nobody may lawfully possess it or the police official investigating doesn’t

know who may lawfully possess it, the article will be forfeited to the state.
Note: Buys and Another v Minister of Police and Another (2339/2016) [2017]
ZANCHC 45: the articles must be returned to the applicants where time
taken to investigate becomes so extended that it constitutes an act
oppressive of the applicants’ rights. There must also not be any real
prospect of further advance by the State in the investigation.
Eg: Petersen v Minister of Police and Another 2022 (1) SACR 333 (WCC)
• 21 months had passed since money was seized.
• Clear that no charge would eventuate, and the police had no right or
warrant to hold the money indefinitely.
NOTE: Onus is on the applicants to prove on a balance of probabilities that

no criminal proceedings has been instituted and that there is no reasonable
44 | P a g e
likelihood that such proceedings will be instituted in the future. (Venter v
Minster of Polisie)
NOTE: Minister of Police and v Stanfield (1328/2018) [2019] ZASCA 183:

Withdrawn charges.
Section 32: Disposal of article where criminal proceedings are instituted and
admission of guilt fine is paid:
If criminal proceedings are instituted in connection with any article referred

to in section 30 (c) and the accused admits his guilt in accordance with the
provisions of section 57, the article must be returned to the person who may
lawfully possess it.
If no person may lawfully possess such article, the article shall be forfeited
to the State.
Preservation orders
Preservation order: allows a trial court to decide whether or not to admit

unlawfully seized articles by way of s35(5) of the Constitution as illegally
obtained evidence.
Sections: s 38, 172(1)(a) and 172(1)(b): Where a constitutional right has

been infringed or threatened, the court ‘may grant appropriate relief’, ‘must
declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its invalidity’, and in addition ‘may make any order
that is just and equitable.
Just and equitable order: One that effectively vindicates

(maintains/upholds) the right in question - Fose v Minister of Safety and
Security [1997] ZACC 6.
When police officials seize items during an unlawful search, what order may
a court grant?
Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma
and Another v National Director of Public Prosecutions and Others 2008 (2)
SACR 421 (CC):
45 | P a g e
• The Court doubted the view that prompt return of all items seized is
the ‘default remedy for an unlawful search and seizure', observing
instead that preservation ‘will frequently be a just and equitable
remedy’.
• The need for immediate relief will be outweighed by other important

public purposes and constitutional rights, including the public
interest in prosecuting serious crime.
• Furthermore, South Africa has no strict exclusionary rule prohibiting

the admission of unlawfully obtained evidence. s35(5): Evidence
obtained in a manner that violates any right in the Bill of Rights must
be excluded if the admission of that evidence would render the trial
unfair or otherwise be detrimental to the administration of justice.
Damages
Minister of Safety and Security v Augustine (2017 (2) SACR 332 (SCA)
Shashape v Minister of Police (1566/2018) [2020] ZANWHC 26:
• The particulars of claim averred that a warrantless search and

seizure, effected by two police officers.
• This search and seizure was claimed to have been affected without her
consent, as would have been required under section 22(a) of the
CPA.
• It was further averred that the police officers did not have reasonable
grounds to believe that a warrant would have been granted to
them if they had applied (s 22(b) read with s 21(1)(a).
• The search had not been conducted in an orderly manner (s29

CPA).
• Consequently, the unlawful entrance and search of the residence of

the plaintiff constituted a violation of her constitutional rights to
dignity and privacy.
46 | P a g e
• The plaintiff, a gospel singer and cultural dancer, left her home along
with her group to record an album on 24 March 2018.
• In the kitchenware strips of beef hanging, "cut like biltong”.
• Plaintiff’s brother (who lived with his mother behind the plaintiff’s
residence) phoned the plaintiff and informed her of police officers
who had arrived at her house.
• The plaintiff requested to speak to one of the officers. Ms Shashape

instructed the latter not to enter the house until she arrived –
and he replied that he had already done so and had found meat in
her kitchen relating to livestock that had been slaughtered and
stolen at a nearby farm the previous evening.
• They had effected this warrantless search based on an

“anonymous tip”
• The plaintiff returned to her premises and found all the doors that
had been closed open. There was also “a large number of curious
onlookers in her premises”. Her home was in disarray and the
kitchen was being searched in a disorderly fashion
• After relaying the information regarding the alleged slaughter and

theft of the livestock and the anonymous tip, the plaintiff indicated
that she had no knowledge of this incident and the meat she
purchased was purchased from a slaughter house. abattoir. She could
not provide a receipt to the officers. The next day an officer from
the Stock Theft Unit seized a strip of beef so that it could be
compared to the heads of the stolen livestock.
• The plaintiff was never charged, arrested, or prosecuted relating

to the alleged stock theft and slaughter.
• S v Motloutsi 1996 (1) SACR 78 (C)- slide 16
• Magobodi v Minister of Safety and Security and Another 2009 (1) sacr
355.- slide 16.
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• Magajane v Chairperson, North West gambling board 2006 (2) SACR
447(CC)Slide 7 &15.
• Minister of safety and security v Van der Merwe and others 2011 (2)
SACR 301 (CC)- slide 6,8 &9
• Goqwana v Minister of Safety NO & Others [2016] 1 All SA 629 (SCA)-

slide 10.
• - Minister of Safety and Security v Augustine and Others 2017 (2)

SACR 332(SCA) (24 May 2017)- slide 28.
• - Van Rooyen and Another v Minister of Police and Others

(1314/2017) [2018] ZANCHC 74; 2019 (1) SACR 349 (NCK)- slide
11&12.
• The cases of Tinto and the case of Thint: Only as far as they appear on
the slides.
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LEGAL REPRESENTATION
TOPIC 3-LEGAL REPRESENATATION
• Attorneys and Advocates are often referred to as legal advisers, legal

practitioners, or legal representatives.
• s35(2)(b), (3)(f) s35(2)(c), (3)(g) of the Constitution refers to legal practitioner
• whereas the s73 of the CPA refers to legal adviser:
(2)(b) to choose, and to consult with, a legal practitioner, and to be informed of this
right promptly.
(2)(c)to have a legal practitioner assigned to the detained person by the state and at
state expense, if substantial injustice would otherwise result, and to be informed of
this right promptly;
(3)(f)to choose, and be represented by, a legal practitioner, and to be informed of

this right promptly
(3)(g)to have a legal practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would otherwise result, and to be informed of
this right promptly
S73 (1) of the CPA:

• An accused who is arrested, whether with or without warrant, shall, subject
to any law relating to the management of prisons, be entitled to the
assistance of his legal adviser as from the time of his arrest.
• An accused shall be entitled to be represented by his legal adviser at

criminal proceedings, if such legal adviser is not in terms of any law
prohibited from appearing at the proceedings in question.
• S v Sibeko and Others 201:7 (2) SACR 457 (FB): Courts usually use the
words “legal representative” when referring to the right of the accused to
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legal representation. A legal representative is a person who obtained the
necessary qualifications to appear in a Court of Law and to practise as such.
s73 (2A)(a)-(e): Statutory Duty

(2A) Every accused shall-
(a) at the time of his or her arrest.
(b) when he or she is served with a summons in terms of section 54.
(c) when a written notice is handed to him or her in terms of section 56.
(d) when an indictment is served on him or her in terms of section 144 (4) (a).
(e) at his or her first appearance in court,
• be informed of his or her right to be represented at his or her own

expense by a legal adviser of his or her own choice and if he or she
cannot afford legal representation, that he or she may apply for legal
aid and of the institutions which he or she may approach for legal
assistance.
S v Phala (20110161) [2011] ZAECGHC 74:
• highlights the importance of making sure that accused individuals are told
about their right to legal representation. Not only should the court inform them
of this right, but it should also keep a record of what was said to the accused
and how they responded. If the court fails to do this properly, it's considered a
mistake, and it could affect the fairness of the proceeding.
• It is clear from the reading of the section that it is peremptory that the
accused be apprised of this right and that the court should not only apprise
him/her but also to precisely record what was conveyed to the accused and
what his/her responses were. It leaves no doubt therefore that the failure by
the magistrate to give effect to the provisions of Section 73 (2A) (e) of the
Act constitutes an irregularity.
50 | P a g e
Example: S v Sibiya.
• NB: S v Lusu 2005 (2) SACR 538 (E): S73(2B) Every accused shall be given a
reasonable opportunity to obtain legal assistance.
• s73(2C) If an accused refuses or fails to appoint a legal adviser of his or her

own choice within a reasonable time and his or her failure to do so is due to
his or her own fault, the court may order that the trial proceed without legal
representation.
But
• If the court is of the opinion that the above would result in substantial
injustice, in which event the court may, order that a legal adviser be
assigned to the accused at the expense of the State……: Provided that the
accused shall not be compelled to appoint a legal adviser if he or she prefers
to conduct his or her own defence.
• S v Mofokeng 2013 (1) SACR 143 (FB): The judicial officer has a general
duty to ensure that unrepresented accused fully understand their rights and
the recognition that in the absence of such understanding a fair and just
trial may not take place.
• This includes the right to legal representation, especially where the charge is
serious. In such event the accused should be informed of the seriousness of
the charges and the possible consequences of a conviction. In cases where
the charges are extremely serious it may be appropriate to encourage the
accused to exercise his right to legal representation and the option to apply
for Legal Aid assistance. Section 35(3) of the Constitution also guarantees
these rights.
• NOTE: Despite the courts power to order that a legal adviser be assigned to
the accused at State expense, the accused will always retain the right to
refuse such representation (S v Tandwa and Others (538/06) [2007] ZASCA
34).
51 | P a g e
Wildridge v S 2019 (1) SACR 474 (ECG):
• ‘Court: The question is, do you have any objection for that acceptance of
this?
• Accused: Am I – if I – I do not understand the procedure.
• Court: That is why you need a lawyer. That is why you need an attorney. You
see now you are stuck and you do not understand what you have to do now.
• Accused: I can ask the . . . (intervention).
• Court: Because I have not to assist you how to conduct the proceedings.
• Accused: If I accept these plans does it mean I cannot challenge anything in

it? Because it shows me turning from within the road and I . . .
(intervention).
• Court: You see the lawyer was going to say we will provisionally accept this
and you are going to . . . (indistinct).
• Accused: I cannot hear you. Can I not come closer?
• Court: You must please get a Legal Aid attorney to assist you otherwise this
trial is not going to – I do not think it is in your best interest that you
conduct your own defence, you need somebody to assist you in the
proceedings. As I am looking at the things right now you will need somebody
to assist you, you have to go back to Legal Aid and make a re-application
otherwise we cannot proceed with you, I do not think it would be . . .
(intervention).
• Accused: May I ask one question, if I accept this plan can I not say it does
not show when I give my evidence . . . (intervention).
• Court: It is not the court procedure that you have to ask the Court and then
the Court has to answer you. That is why I am saying you need an
assistance of Legal Aid attorney.
• Accused: Your Worship, I am sorry I do not know the procedure, but I do

wish to defend myself. I wish to ask the witnesses questions myself.
• Court: It is difficult, now you are asking me questions of which you are not
supposed to do that.
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• Accused: I do not know the . . . (intervention).
• Court: That is the reason, if you do not know you need someone who is
legally trained to assist you, you are going to tell him the whole story, and
then he knows very well how to present the case before Court.
• Accused: Mr – Your Worship I did tell an attorney my case and he was

supposed to tell me the court date, he told me a wrong court day, he told me
a Saturday. I asked him to please let me know the correct date, I heard
nothing from him, I had to go myself to find the correct date.
• Court: That does not have any relevance to what we are dealing with right
now.
• Accused: No, it explains why I do not have – why I would rather defend
myself. All I am asking is for you or somebody to tell me the consequence of
admitting this document. Does it mean I cannot challenge it or does it mean
it is just like other evidence, it can be challenged, that is all I ask.
• Court: Mr Wildridge I think it is wise that you get a lawyer, otherwise we

cannot . . . (indistinct).
• Accused: Your Worship I truly believe that I can defend myself if I know the
consequence of admitting . . . (intervention).
• Court: Well, do not ask me questions please.
• Accused: I won’t ask you.
• Court: Don’t ask me anything what to do.
• Accused: No, I am sorry if I asked you questions when I should not have. I
do not understand . . . (intervention).
• Court: Do you have any objection for the acceptance of this document that
the State made an application for the handing in to court?
• Accused: I would like to object yes, Your Worship.’
When the appellant referred to the photograph in his evidence in chief and wanted
to hand it to the magistrate, the record proceeds as follows:
• ‘Court: It is not accepted, it is not complying with the requirements laid

down by the law for the acceptance of the photograph.
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• Accused: How do I – I do not understand, what must I do to have it accepted
Your Worship? I do not know. It is a photograph which I could show the
witnesses, can I not show you as well?
• Court: For acceptance, you see here are the key (?) I did not accept this as
evidence to stand because it does not comply with the requirements sought
by the Court.
• Accused: Well . . . (intervention).
• Court: So if you want that to be accepted by the Court you have to lay down
foundations which are required by the law of evidence for the acceptance of
those photographs.
• Accused: And I am afraid I don’t know what these requirements are, can you
tell me what they are?
• Court: Well I cannot be representing you as an attorney to tell what

requirements you should meet.
• Accused: Your Worship I understand in . . . (intervention).
• Court: And to convince the Court as to why those photographs to be

accepted.
• Accused: I understand from the Constitution Your Worship that I do have a

right to defend myself.
• Court: Yes you do have the right, but I am not – I cannot stand to represent
you.
• Accused: So I cannot find out how to have these photos submitted, that is it.
• Court: Mr Galt please let us not make a dialogue. You are leading evidence
and I am telling you I am not accepting it because it does not comply with
the requirements, you have to lay down the foundations for the Court to
accept the photographs in your hand.
• Accused: Then I will do it verbally Your Worship, if I may . . .’
• Finding: It is clear from the passages from the record that I have quoted that
the magistrate expressly disavowed his duty to assist the unrepresented
appellant and told him in no uncertain terms not to seek his assistance.
The record discloses a disturbing failure on the part of the magistrate to
54 | P a g e
comply with his enhanced duties to ensure a fair trial when an accused is
unrepresented. In the first place, he was pointedly hostile to the appellant
because he had opted to defend himself and used this fact as an excuse.
S73 (3):
• Any accused who, in the opinion of the court, requires the assistance of
another person at criminal proceedings, may, with the permission of the
court, be so assisted at such proceedings.
• Note: this section deals with representation by an individual who is not

legally qualified The accused in this instance should be asked whether he
wants such assistance and if the accused confirms, the accused should, at all
vital stages be informed by the presiding officer of his procedural rights. (S v

Masithlela).
Why legal representation is important?
• The right to legal representation is part and parcel to the right to a fair trial.
• No one should be punished without being given a guarantee of a fair trial.
• The NPA, being a state organ, has resources and a team of legal practitioners
at its disposal to advance the prosecution’s case.
• ‘Equality of arms’, a principle of fair trial, ensures that the accused is given
sufficient opportunity to defend their case. This principle underpins some
procedural guarantees that lie at the heart of the right to defence including
the legal representation.
• S v Owies - “[8] It can be stated that the exercise of a right to legal

representation is of critical importance in any trial as it is the only source
through which the other rights can be effectively exercised
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• S v Vermaas [1995] ZACC 5; S v Du Plessis 1995 (3) SA 292 (CC).
• S v Halgryn [2002] 4 All SA 157 (SCA)
• Section 35 of the Constitution-refers to legal adviser
• Section 73 of the CPA-refers to legal practioner.
• Section 73 (2A) statutory duty {Case discussion}
• Reasonable opportunity to obtain legal assistance-section 73 (2B) {Case

discussion}.
• Section 73 (2C)- accused refusal or failure to appointment legal adviser.
• Section 73 (3)-accused has the right to be advised by someone who is legally

qualified.
In this case, the central legal question revolves around whether the accused's right
to a fair trial was infringed due to the denial of their application for legal
representation at state expense. Here's a breakdown of the facts, arguments, and
the decision:
S V lusu
### Facts:
- The accused applied for a postponement at the commencement of the trial to allow them to
apply for state-funded legal representation through the Legal Aid Board.
- The magistrate refused the application, citing it as a delaying tactic and expressing doubt
about the accused's chances of securing legal aid.
- The accused refused to plead initially and later pleaded not guilty but reiterated the request
for legal representation.
- The trial was postponed three times for various reasons, including further investigation and
the accused's absence leading to a warrant for arrest being issued.
### Arguments:
- **Constitutional Right to Fair Trial (S35)**:
- The accused invokes Article 35 of the Constitution, which guarantees the right to a fair
trial, including the right to legal representation.
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- The accused argues that denial of legal representation at state expense, if substantial
injustice would result otherwise, violates this constitutional provision.
- **State's Obligations (S7(2))**:
- The accused contends that the state must refrain from actions that interfere with
fundamental rights as per Article 7(2) of the Constitution.
- Furthermore, the state is obligated to make available the means to exercise such rights,
such as providing legal representation.
### Legal Analysis:
- **Usurpation of Legal Aid Board's Function**:
- The magistrate's decision to assess the accused's eligibility for legal aid usurps the
function of the Legal Aid Board, as it is not within the magistrate's jurisdiction to make such
determinations.
- **Violation of Right to Fair Trial**:
- Denial of the accused's application for legal representation at state expense potentially
compromises their ability to effectively participate in the trial, as legal representation is
crucial for providing legal knowledge and courtroom skills.
- **Irregular Conviction**:
- The denial of the application for postponement and legal representation could have led to
an irregular conviction, as the accused's fundamental rights were not adequately
safeguarded during the trial proceedings.
### Decision:
- The court ultimately finds that the accused's fundamental rights were infringed due to the
dismissal of their application for postponement and legal representation.
- As a result, the conviction of the accused is set aside, presumably leading to a retrial where
the accused can exercise their right to legal representation at state expense.
This case underscores the importance of upholding the right to legal representation as a
fundamental aspect of ensuring fair trial proceedings in accordance with constitutional
principles.
57 | P a g e
1. Constitutional Provisions:
 Article 35(2)(b), (3)(f) of the Constitution refers to "legal practitioner."
2. Criminal Procedure Act (CPA):
 Section 73 (s73) refers to "legal adviser" and includes the following

provisions:
 (1): Entitlement to legal adviser from time of arrest.
 (2)(b): Right to choose and consult with a legal practitioner.
 (2)(c): Right to have a legal practitioner assigned by the state if

substantial injustice would result.
 (3)(f): Right to choose and be represented by a legal

practitioner.
 (3)(g): Right to have a legal practitioner assigned by the state if

substantial injustice would result.
 (2A): Statutory duty to inform accused of right to legal

representation at various stages.
 (2B): Right to a reasonable opportunity to obtain legal

assistance.
 (2C): Court's power to proceed without legal representation or

to assign a legal adviser at the expense of the state.
Cases:
1. S v Sibeko and Others 2017 (2) SACR 457 (FB):
 Courts use "legal representative" when referring to the accused's right

to legal representation.
2. S v Phala (20110161) [2011] ZAECGHC 74:
 Failure to inform accused of right to legal representation constitutes

an irregularity.
3. S v Lusu 2005 (2) SACR 538 (E):
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 Every accused must be given a reasonable opportunity to obtain legal
assistance.
4. S v Mofokeng 2013 (1) SACR 143 (FB):
 Judicial officer has a duty to ensure unrepresented accused

understand their rights.
5. Wildridge v S 2019 (1) SACR 474 (ECG):
 Magistrate's duty to assist unrepresented accused; failure to do so

constitutes a procedural irregularity.
6. S v Tandwa and Others (538/06) [2007] ZASCA 34:
 Accused retains the right to refuse state-assigned legal

representation.
7. S v Masithlela:
 Accused may be assisted by another person with court permission
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DISCLOSURE
LISTEN TO RECORDINGS
• Topic 4- Disclosure by the Prosecution
We are focused on the disclosure of the police docket by Prosecution.
Defining the Police Docket: A police docket is a file opened by an investigating

officer tasked with investigating a particular crime.
A police docket is divided into 3 parts:
Part A: Witnesses’ statements taken by an investigating officer; expert reports and

documentary exhibits.
Part B: internal reports and memoranda and letters.
Part C: the investigation diary which is a day-to-day account of the progress of the
investigation together with the names and addresses of potential witnesses and
police informers, descriptions of suspects and privileged communications between
investigating officer and the prosecution.
Disclosure
• To make sense of the strength and weaknesses of the accused’s case, the
defence attorney needs to access to all relevant real, documentary and
forensic evidence in possession of the prosecution.
• In South Africa, the pre-constitutional position was that the police docket
was privileged from disclosure to the defence team. The prosecution was
permitted to resist all reasonable attempts by the defence to access
documents in the police docket.
• R v Steyn, there was a "blanket docket privilege" which protected the

contents of a police docket from disclosure without the consent of the State
and that nothing in the Constitution impacted upon that privilege.
• In practice, the practical effect of the police docket privilege was interpreted
by prosecutors to mean that almost all the information contained in the
police docket was privileged.
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• Under the new constitutional dispensation in SA, the Constitutional Court has
taken a new direction to disclosure. NB: In Shabalala and Others v Attorney
General of the Transvaal and Another- The right to fair trial in the Constitution
interpreted to include giving accused reasonable access to most but not all of
the material evidence in possession of the prosecution in order to properly
prepare a defence at trial as mandated by section 35(3) of the Constitution.
See also Du Toit v The Magistrate and Others 2016 SCA paragraghs 8 & 35.
• Court held that in terms of s23 and s25(3) of the interim Constitution (now
s32 read with section 34 and 35 (3) of the Constitution), an accused has a
right to request any particular and relevant document in the police docket
which may assist the accused's defence (these are documents that are
exculpatory, incriminating or prima facie likely to be helpful to the defence).
• Development immediately after advent of constitutional era – towards due

regard to the rights guaranteed under the Constitution such as the right to
access to information etc- NB: Phato v Attorney-General, Eastern Cape &
Another; Commissioner of the South African Police Services v Attorney-
General, Eastern Cape & Others 1995 (1) SA 799 (E).
Application to access police docket
• Request for access to police docket usually made in the form of a written
letter to the prosecution properly dated and signed. Pre-trial disclosure must
be made before the beginning of trial.
• The prosecutor will obtain the docket from the Investigation detective and
copies of the requested documents will be handed to the accused’s attorney.
• The Prosecution may resist an accused’s access to any particular document

in Police Docket on grounds that:
1. Access is not justified for the purpose of enabling an accused to

properly exercise his right to a fair trial.
2. There is reasonable risk that access will lead to the disclosure

of identity of an informer or state secrets
3. There is a reasonable risk that such disclosure might lead to

the intimidation of witnesses or otherwise undermine the
proper ends of justice.
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• The defence attorney may approach the court if the prosecutor has refused
to grant access to the docket
• The court has the discretion to grant access to the docket or not. Such
discretion is exercised after the court inspects the docket, has assessed the
risk attached to disclosure and where necessary calls for oral evidence.
• NB. Access decided on a case by case basis.
• NB cases:
• R v Steyn (1954 1 SA 324 (A)
• Phato v Attorney-General, Eastern Cape & Another; Commissioner of the

South African Police Services v Attorney-General, Eastern Cape & Others
1995 (1) SA 799 (E).
• Shabalala & Others v Attorney-General of Transvaal & Another 1995 (2)

SACR 761 (CC); 1996 (1) SA 725 (CC).
• S v Shiburi 2004 (2) SACR 314 (W): duty to inform the unrepresented
accused of right of access to the police docket.
Exemptions & Presumptions (EXAMINABLE)
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Exemptions, exceptions, provisos, excuses or
qualifications in statutory offences: Presumption of lack
of authority.
Focus: s90 and s250 of the CPA.

 S 90 CPA- In criminal proceedings any exception, exemption, proviso,
excuse or qualification, whether it does or does not accompany in the
same section the description of the offence in the law creating the
offence, may be proved by the accused but need not be specified or
negatived in the charge and, if so specified or negatived, need not be
proved by the prosecution.
 When statutory offences are defined, the prohibited conduct is often

cast in the form of a general prohibition. The general prohibition is then
made subject to a series of exceptions.
 When the state make use of this section, the state need only allege and
prove the essential elements of the offence. An accused who alleges
that they are excluded from the operation of the particular provision will
have to prove same.
Example: section 10 of the Blacks Urban areas Consolidation Act
prohibited blacks from remaining in urban areas for more than 72 hours.
However,, the following categories of blacks were not affected by the
provision:
1) Those born and resident there
2) Those employed in an urban area by an employer for an
unbroken period of 10 years
3) Blacks who were the spouse, unmarried son or daughter of
person in category 1 and 2
4) Blacks who obtained permission from an authorised person
to reside there.
State would need to prove only the essential elements of the offence and
the accused would have to that he is protected by the exemption.
Effect of s90
• Special defence provided for in statute need not be alleged in
the charge.
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• Accused may prove the defence on a balance of probabilities
• State relieved of duty to prove – onus on the accused
S250 CPA: If a person would commit an offence if he
a) carried on any occupation or business;
b) performed any act;
c) owned or had in his possession or custody or used any article;
or
d) was present at or entered any place,
without being the holder of a licence, permit, or other authority or
qualification, an accused shall, at criminal proceedings upon a charge
that he committed such an offence, be deemed not to have been the
holder of the necessary authority, unless the contrary is proved.
Note: the accused is deemed to have committed the offence by merely
being charged.
 Effect of the section: If a person would commit an offence if he
engaged in any of the activities specified in (a-d) without being the
holder of the necessary authority, if charged, he or she will be
deemed to not have been the holder of the authority unless the
contrary of proven.
 Onus: On the accused on a Balance of probabilities to prove that
he or she is the holder of such authority.
 Note: this section refers to written authority. Thus, oral authority is
not covered by the section and consequently the presumption
does not avail to the prosecution. This means that the prosecution
would, in these instances bear the onus of proving the absence of
such authority.
 Is s250 constitutional in light of s s35(3)(h) to the effect that

accused is to be presumed innocent, to remain silent, and not to
testify during the proceedings?
 NB: S v Fransman
 NB: S v Zuma
Question 1
On Monday 23 March 2020, President Ramaphosa announced a 21-day lockdown of

South Africa, to contain the spread of the coronavirus.
Regulations 16(2)(b) and 28(4) of the Disaster Management Act 57 of 2002, passed
to cover the lockdown period, require that any person who leaves their place of
residence for the purposes of work has to be in possession of a permit.
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Zoey, who lives in Makhanda, wishes to visit Port Elizabeth to see her boyfriend. She
decides to travel at night in the hope that she will avoid detection. However, she
encounters a roadblock at Colchester on her way to Port Elizabeth. She is requested
to produce a permit, as per the regulations.
Zoey spends a few minutes looking inside her car for the permit. The police officer
gets annoyed as it appears to him that she is wasting his time, and he arrests her for
breaching lockdown regulations: that is, travelling without a permit.
In court the accused is called to produce the permit. Zoey objects to this and argues
that this demand infringes her section 35 constitutional rights. Zoey further states
that the onus is on the state to prove that she is not the owner of a valid permit.
Can her argument be sustained? Discuss the relevant legal principles fully.
[15]
Plea of autre fois
Topic 7: Plea of Pleas of autrefois acquit and autrefois

convict
 Section 35(3)(m) of the Constitution provides that every

accused has the right “not to be tried for an offence in
respect of an act or omission for which that person has
previously been either acquitted or convicted.”
 This is a constitutional entrenchment of the common law
principle anchored in the accusatorial justice system,
commonly referred to as the rule against double jeopardy –
meaning, an accused should not be tried/ punished twice
for the same offence. (The accused cannot be put in
jeopardy twice)
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 The right to a fair trial and the interest of justice require a
definite and guaranteed end to criminal proceedings.
 It is a key procedural component of the right to a fair trial.
 This plea also has its origin in the common law principle of
res judicata, which establishes that where a final judgment
has been given in a matter by a competent court, then
subsequent litigation between the same parties, the same
subject matter and based upon the same cause of action is
not permissible.
The Double jeopardy principle is applied through S106 CPA:
(1) When an accused pleads to a charge, he may plead –
a) That he is guilty of the offence charged or of any offence

which he may be convicted on the charge; or
b) That he is not guilty; or
c) That he has already been convicted of the offence with

which he is charged; or
d) That he has already been acquitted of the offence with

which he is charged; or
106 ( c): Autrefois acquit = previously acquitted
106 (d): Autrefois convict = previously convicted
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Note:
• The pleas may be raised at any time.
• The plea may be raised mero motu by the presiding officer

especially in instances of unrepresented accused.
• The accused shoulders the burden of establishing that they

were previously acquitted or convicted.
• Note s106 (3): If an accused is going to raise this plea, the

accused must give reasonable notice of this to the
prosecution.
The requirements of raising the plea of autrefois acquit/convict

are substantially the same:
The accused must have been convicted or acquitted before:
(1)A court of competent jurisdiction
(2)Of the same or substantially the same offence.
(3)Was acquitted or convicted on the merits.
( these pleas are discussed adequately in Joubert from page 329

to page 336 (4.4.4).
1. A Court with competent jurisdiction:
 The court the accused appeared before n the first trial must
have been properly composed and the court must have had
jurisdiction: The power to hear and determine a matter
thereby absolving of it.
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 This plea can be raised even if the accused was convicted or
acquitted by a competent court in foreign jurisdiction
(Nolubabalo example).
2. The same or substantially the same offence:
NB: S v Ndou 1971 (1) SA 668 (A).
 The test is not whether the accused is being charged with

the same offence in the second prosecution.
 The test is rather whether the evidence used in the second

trial would have been sufficient to secure a conviction in the
first trial.
 Examples: The accused is charged and convicted of Arson.

The accused is charged again with malicious damage to
property in the second prosecution.
3. On the Merits:
 The acquittal/conviction of the accused in the first trial

must have been based on all the relevant facts and the law.
 The means that the judicial officer's decision to

convict/acquittal the first trial must have been informed by
the merits that is , all the relevant facts in issue, all the
relevant evidence and a correct interpretation of all the
relevant legal principles. (Not procedural irregularities)
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Plea and sentence agreements (Plea
Bargaining)
Plea and sentence agreements (Plea bargaining).
 NB: read s105A of the CPA and Joubert- Chapter 14 page

281 to 284.
 NB: Read this article: Prerequisites for the conclusion of
valid plea and sentence agreements in terms of s 105A of
the CPA
 Note: This is a pre-trail procedure. It is thus a process that

takes place before any trial commences. The accused in this
process relinquishes the right to go to trial in exchange for a
reduction in sentence.
 S105A of CPA is titled Plea and sentence agreements. There

also exists what is termed: Common law/Traditional Plea
bargaining.
 Both the Plea and sentence agreement and common law

plea bargaining bypass the normal trial process, and, in
both instances, the accused relinquishes the right to go to
trial in exchange for a reduction in sentence.
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Principles applicable to common law plea bargaining
 Can be entered into directly between the prosecutor and the

accused.
 The accused can attempt to negotiate for a less serious
charge whilst the prosecutor saves time and a lengthy trial
by accepting a lesser charge (example murder and culpable
homicide , assault and assault GBH).
 The accused may also enter into such an agreement by
agreeing to plead guilty to an agreed upon specific charge in
return for a withdrawal by the prosecution of other charges
(example: Charges of Robbery, possession of a firearm
without the necessary licence, permit or authorisation and
Assault- Accused pleads guilty to an agreed upon charge
from the latter charges).
 Note: in both instances examples above, the plea bargain
will lead to a reduction in sentence as a result of the less
serious offence pleaded to ie: in the first instance, Culpable
homicide is less serious than murder. In the second
instance, being convicted of only one of the charges reduces
the sentence as opposed to being convicted of all of them.
 NB: Once an agreement is reached, it is binding
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Limitations of common law Plea bargaining:
 The agreement is only limited to the Plea and not the

sentence. The prosecutor cannot offer the accused a binding
plea on sentence (the prosecutor can merely propose a
sentence to the court). Court is not obliged to accept the
prosecutor's recommendation.
S105 A: Plea and sentence agreements
 Does not substitute for the common law informal plea

bargaining. It reduces uncertainties in the informal
bargaining process by providing the prosecution and the
accused with a clear set of rules in the negotiation of a plea
and sentence agreement.
Principles applicable to Plea and Sentence agreements:
 Plea and Sentence negotiations take place between the

authorised prosecutor and the accused legal representative
(The prosecutor cannot negotiate directly with the accused
as is the case with the common law process).
 The prosecutor is able to enter into negotiations not only as
it relates to the plea but also regarding sentence with
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accused legal representative (Hence lea and Sentence
agreement).
 This process allows for direct victim participation where
possible, whereas the same is not true for the informal
process.
 The contents of this agreement must be truly disclosed to
the judicial officer once the accused has agreed on the
charge.
 The informal common law process has no such requirement.
All that is required is the accused to plead guilty, no
explanation needed.
 The Judicial officer is generally bound to accept the
sentence negotiated in the Plea and Sentence agreement, if
it is Just (we will discuss what a JUSt sentence is).
 Therefore, the process results in fair and transparent
agreement that clearly sets out the terms agreed upon, the
substantial facts of the case and other facts relevant to the
agreed upon sentence and any admission that the accused
has agreed to.
 Note: the prosecutor and the accused's legal representative

must enter into the negotiations with the purpose of
reaching an agreement that has the prospect of passing
judicial scrutiny.
S105 A discussion:
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 This section contains strict procedures that the defence
and the prosecution have to follow before the submission of
a completed plea and sentence agreement.
 S105 A compulsory stages:

 Stage1: Preliminaries and entering into agreement.
 Stage 2: Court checks on procedural requirements
 Stage 3: Plea questioning and establishing guilt
 Stage 4: Court checks sentence agreement, then convicts
and sentences
 Stage 5: Procedure if agreement set aside.
 Stage 1: the Preliminary Stage.
 S105 (1)(a): A prosecutor authorised thereto in writing by
the National Director of Public Prosecutions and an accused
who is legally represented may, before the accused pleads to
the charge brought against him or her, negotiate and enter
into an agreement
 This section requires the written authority of NDPP

authorising the prosecutor to enter into a plea and sentence
agreement. Proof of prosecutor’s authority to negotiate may
be demanded by the accused’s legal representative. NB: S
v Knight 2017 (2) SACR 583 (GP)
 NB:S v Sassin & Others [2003] 4 All SA 506 (NC): In order

to comply with the requirements stipulated in s 105A(1)(a)
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the prosecutor must hand into court, at the commencement
of the hearing, a certificate indicating that he had been
authorised to negotiate and enter into a plea and sentence
agreement. What happens of there is a failure to apply with
this provision?
 Note: 105A(1)(a) is very clear that an unrepresented accused

cannot enter into a plea and sentence agreement:
 Reason: Power imbalances between the accused and the

prosecutor, to discourage accused from standing before court
without being legally presented.
• An accused may be coerced into waving their

constitutional rights in order to receive a lesser
sentence.
• There is also the risk that an innocent person may
plead guilty and accept a lesser sentence rather than
taking the risk of a harsher sentence if convicted
when defending the charges.
• The prospect of going to jail becomes so intimidating
that an accused will agree to almost anything if the
negotiated agreement guarantees that they will not
serve time in jail.
NB:S v Wessels (FB) (unreported case no 62/2019, 23-5-2019)
 Section 105 (1)(B)(i): Prosecutor must consult with
investigating officer:
 This is important so that members of the SAPS do
not the impression that their investigative efforts
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can somehow be ignored for the sole purpose of
avoiding a trial.
 Also, the prosecutor gains valuable perspective on
a case by having this pre-consultation with the
investigating officer so that an informed decision
can be reached for the desirability of pursuing and
reaching a plea and sentence agreement.
 In a way, this pre-agreement consultation is an
internal accountability when viewed in light of
paragraph 7 of the Prosecution policy issues in
terms of s21 (1)(a):
 The relationship between prosecutors and police
officials should- with regard to the investigation
and prosecution of crime-be one of “close co-
operation” with mutual respect for the distinct
functions and operational independence of each
profession” …..
Section 105 A (1) (b) (ii): The prosecutor is required to enter into the plea
and sentence agreement with due regard to, at least:
• The nature of and circumstances relating to the offence;
• personal circumstances of the accused;
• previous convictions of the accused, if any; and
• interests of the community
105 A (1) (c): Note however that: The requirements of consulting with the
investigating officer may be dispensed with if the prosecutor is satisfied
that consultation with the person charged with the investigation of the
case will delay the proceedings to such an extent that it could-
(i) cause substantial prejudice to the prosecution, the
accused, the complainant or his or her representative; and
(ii) affect the administration of justice adversely.
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Note: the section suggests that it the prosecutor alone who needs to be
satisfied that the consultation with the investigating officer would lead to
the consequences envisaged by 105 A (1) (c) (i) and (ii).
However (s105 A (4) (a)): “the court must satisfy itself that the
requirements of subsection (1) (b) (i) and (iii) have been complied with”-
 This means that the prosecutor would have to advance

grounds/reasons as to why he/she believed that the consequences
in s105 A (1) (c) would ensue if a consultation with the
investigating officer took place.
 In any event, in terms of s105(4)(b)(i) states that: if the
court is not satisfied that there has been compliance with
s105 A(1)(b)(i), the court must inform the prosecutor and
the accused of the reasons for non-compliance; and afford
the prosecutor and the accused the opportunity to comply
with the requirements concerned.
Section 105A(1)(b)(iii): The prosecutor is required to afford the

complainant, where it is reasonable to do so, the opportunity to
make representations regarding:
• the contents of the agreement;
and
• the inclusion in the agreement of a condition relating to
compensation or the rendering to the complainant of
some specific benefit or service in lieu of compensation
for damage or pecuniary loss (example: Paying hospital
expenses, any expense that may befall the victim as a
result of the crime).
• S105 A (2) (a): The agreement shall be in writing
and shall, at least contain that the accused has been
warned of his/her constitutional rights including the
right to remain silent, the right not to be compelled
to give self incriminatory evidence and that the
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plea and sentence agreement was not concluded at the
expense of these rights.
S105 A (2) (b)-(d): What should be in the plea and sentence
agreement:
• The terms of the agreement and the substantial facts of the
matter, all other facts relevant to the sentence agreement and
any admissions made by the accused.
• be signed by the prosecutor, the accused and his or her legal
representative; and
• if the accused has negotiated with the prosecutor through an
interpreter, contain a certificate by the interpreter to the effect
that he or she interpreted accurately during the negotiations
and in respect of the contents of the agreement.
(3) The court shall not participate in the negotiations.
Plea and sentence agreements (Plea Bargaining)

Plea and sentence agreements (Plea bargaining).
NB: read s105A of the CPA and Joubert- Chapter 14 page 281 to
284.
NB: Read this article: Prerequisites for the conclusion of valid plea
and sentence agreements in terms of s 105A of the CPA
Note:
• This is a pre-trail procedure. It is thus a process that takes place
before any trial commences. The accused in this process
relinquishes the right to go to trial in exchange for a reduction in
sentence.
• S105A of CPA is titled Plea and sentence agreements. There also
exists what is termed: Common law/Traditional Plea bargaining.
• Both the Plea and sentence agreement and common law plea
bargaining bypass the normal trial process, and, in both instances,
the accused relinquishes the right to go to trial in exchange for a
reduction in sentence.
Principles applicable to common law plea bargaining
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• Can be entered into directly between the prosecutor and the
accused.
• The accused can attempt to negotiate for a less serious charge
whilst the prosecutor saves time and a lengthy trial by accepting
a lesser charge (example murder and culpable homicide ,
assault and assault GBH).
• The accused may also enter into such an agreement by
agreeing to plead guilty to an agreed upon specific charge in
return for a withdrawal by the prosecution of other charges
(example: Charges of Robbery, possession of a firearm without
the necessary licence, permit or authorisation and Assault-
Accused pleads guilty to an agreed upon charge from the latter
charges).
• Note: in both instances examples above, the plea bargain will
lead to a reduction in sentence as a result of the less serious
offence pleaded to ie: in the first instance, Culpable homicide is
less serious than murder. In the second instance, being
convicted of only one of the charges reduces the sentence as
opposed to being convicted of all of them.
NB: Once an agreement is reached, it is binding
Limitations of common law Plea bargaining:
• The agreement is only limited to the Plea and not the sentence.
The prosecutor cannot offer the accused a binding plea on
sentence (the prosecutor can merely propose a sentence to the
court). Court is not obliged to accept the prosecutor's
recommendation.
S105 A: Plea and sentence agreements
Does not substitute for the common law informal plea bargaining. It
reduces uncertainties in the informal bargaining process by providing the
prosecution and the accused with a clear set of rules in the negotiation
of a plea and sentence agreement.
Principles applicable to Plea and Sentence agreements:
• Plea and Sentence negotiations take place between authorised
prosecutor and the accused legal representative (The
prosecutor cannot negotiate directly with the accused as is the
case with the common law process).
• The prosecutor is able to enter into negotiations not only as it
relates to the plea but also regarding sentence with accused
legal representative (Hence lea and Sentence agreement).
• This process allows for direct victim participation where
possible, whereas the same is not true for the informal process.
• The contents of this agreement must be truly disclosed to the
judicial officer once the accused has agreed on the charge. The
informal common law process has no such requirement. All that
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is required is the accused to plead guilty, no explanation
needed.
• The Judicial officer is generally bound to accept the sentence
negotiated in the Plea and Sentence agreement, if it is Just (we
will discuss what a JUSt sentence is).
• Therefore, the process results in fair and transparent agreement
that clearly sets out the terms agreed upon, the substantial facts of
the case and other facts relevant to the agreed upon sentence and
any admission that the accused has agreed to.
• Note: the prosecutor and the accused's legal representative must

enter into the negotiations with the purpose of reaching an
agreement that has the prospect of passing judicial scrutiny.
S105 A discussion:
• This section contains strict procedures that the defence and the
prosecution have to follow before the submission of a completed
plea and sentence agreement.
S105 A compulsory stages:
• Stage1:Preliminaries and entering into agreement
• Stage 2: Court checks on procedural requirements
• Stage 3: Plea questioning and establishing guilt
• Stage 4: Court checks sentence agreement, then convicts and
sentences
• Stage 5: Procedure if agreement set aside.
Stage 1: the Preliminary Stage.
S105 (1)(a): A prosecutor authorised thereto in writing by the National
Director of Public Prosecutions and an accused who is legally
represented may, before the accused pleads to the charge brought
against him or her, negotiate and enter into an agreement
This section requires the written authority of NDPP authorising the
prosecutor to enter into a plea and sentence agreement. Proof of
prosecutor’s authority to negotiate may be demanded by the accused’s
legal representative. NB: S v Knight 2017 (2) SACR 583 (GP)
NB:S v Sassin & Others [2003] 4 All SA 506 (NC): In order to comply
with the requirements stipulated in s 105A(1)(a) the prosecutor must
hand into court, at the commencement of the hearing, a certificate
indicating that he had been authorised to negotiate and enter into a plea
and sentence agreement. What happens of there is a failure to apply
with this provision?
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Note: 105A(1)(a) is very clear that an unrepresented accused cannot enter into
a plea and sentence agreement:
Reason:
• Power imbalances between the accused and the prosecutor.
• An accused may be coerced into waving their constitutional rights in
order to receive a lesser sentence.
• There is also the risk that an innocent person may plead guilty and
accept a lesser sentence rather than taking the risk of a harsher
sentence if convicted when defending the charges.
• The prospect of going to jail becomes so intimidating that an accused
will agree to almost anything if the negotiated agreement guarantees
that they will not serve time in jail.
NB:S v Wessels (FB) (unreported case no 62/2019, 23-5-2019)
Section 105 (1)(B)(i): Prosecutor must consult with investigating officer:
This is important so that members of the SAPS do not the impression that their
investigative efforts can somehow be ignored for the sole purpose of avoiding a
trial.
Also, the prosecutor gains valuable perspective on a case by having this pre-
consultation with the investigating officer so that an informed decision can be
reached for the desirability of pursuing and reaching a plea and sentence
agreement.
In a way, this pre agreement consultation is an internal accountability when
viewed in light of paragraph 7 of the Prosecution policy issues in terms of s21
(1)(a): The relationship between prosecutors and police officials should- with
regard to the investigation and prosecution of crime-be one of “close co-
operation” with mutual respect for the distinct functions and operational
independence of each profession”
Section 105 A (1) (b) (ii): The prosecutor is required to enter into the plea
and sentence agreement with due regard to, at least:
• The nature of and circumstances relating to the offence;
• personal circumstances of the accused;
• previous convictions of the accused, if any; and
• interests of the community
105 A (1) (c): Note however that: The requirements of consulting with the
investigating officer may be dispensed with if the prosecutor is satisfied
that consultation with the person charged with the investigation of the
case will delay the proceedings to such an extent that it could-
(i) cause substantial prejudice to the prosecution, the
accused, the complainant or his or her representative; and
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(ii) affect the administration of justice adversely.
Note: the section suggests that it the prosecutor alone who needs to be
satisfied that the consultation with the investigating officer would lead to
the consequences envisaged by 105 A (1) (c) (i) and (ii).
However (s105 A (4) (a)): “the court must satisfy itself that the
requirements of subsection (1) (b) (i) and (iii) have been complied with”-
This means that the prosecutor would have to advance grounds/reasons
as to why he/she believed that the consequences in s105 A (1) (c) would
ensue if a consultation with the investigating officer took place.
In any event, in terms of s105(4)(b)(i) states that: if the court is not
satisfied that there has been compliance with s105 A(1)(b)(i), the court
must inform the prosecutor and the accused of the reasons for non-
compliance; and afford the prosecutor and the accused the opportunity
to comply with the requirements concerned.
Section 105A(1)(b)(iii): The prosecutor is required to afford the

complainant, where it is reasonable to do so, the opportunity to make
representations regarding:
• the contents of the agreement;
and
• the inclusion in the agreement of a condition relating to
compensation or the rendering to the complainant of some
specific benefit or service in lieu of compensation for damage or
pecuniary loss (example: Paying hospital expenses, any
expense that may befall the victim as a result of the crime).
S105 A (2) (a): The agreement shall be in writing and shall, at least contain that
the accused has been warned of his/her constitutional rights including the right
to remain silent, the right not to be compelled to give self incriminatory
evidence and that the plea and sentence agreement was not concluded at the
expense of these rights.
S105 A (2) (b)-(d): What should be in the plea and sentence agreement:
• The terms of the agreement and the substantial facts of the matter,
all other facts relevant to the sentence agreement and any
admissions made by the accused.
• be signed by the prosecutor, the accused and his or her legal
representative; and
• if the accused has negotiated with the prosecutor through an
interpreter, contain a certificate by the interpreter to the effect that
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he or she interpreted accurately during the negotiations and in
respect of the contents of the agreement.
(3) The court shall not participate in the negotiations.
Stage 2: Procedures to be followed before the accused is required to
plead.
S105A (4):
• The Prosecutor informs court of the plea and sentence
agreement.
• Court gets confirmation from accused that agreement entered
into.
• Court satisfies itself on requirement of consultation with
investigating officer, and complainant's opportunity for
representations
• If the court not satisfied that the requirements of consulting the
Investigating officer and providing the complainant an
opportunity to make presentations on have been complied with:
• the prosecutor and the accused are informed of the reasons for
non-compliance
and
given an opportunity to correct.
s105A: if however, the court is satisfied that the agreement complies with
the requirements of consulting the Investigating officer and providing the
complainant an opportunity to make presentations, the accused will be
directed to plead to the charge and the contents of the agreement to be
disclosed to the court.
Stage3 :The accused’s guilt is established
S105A (6)and (7):
The court questions the accused regarding:
• whether he or she confirms the terms of the agreement and the
admissions made by him or her in the agreement
• Whether with reference to the alleged facts of the case, he or she
admits the allegations in the charge to which he or she has agreed to
plead guilty;
• Whether the agreement was entered into freely and voluntarily in his
or her sound and sober senses and without having been unduly
influence.
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If the court is not satisfied about the accused guilt, court enters plea of not
guilty (i.e. very much like the procedure for plea of guilty in s.112) : trial starts
before different judicial officer.
However, if the accused is satisfied of the accused’s guilt i.e.: the accused
admits the allegation in the charge, the court shall proceed to consider the
sentence agreement.
Stage 4: The court considers the sentence part if the agreement.
s105A (8):
• Court considers sentencing part of the agreement
• If the court satisfied that sentence agreement is just informs
prosecutor and accused representative accordingly and
convicts and sentences the accused as per the agreement.
NB: read S v Sassin & Others [2003] 4 All SA 506 (NC): What is a just
sentence.
What happens if the court considers the sentence unjust?
• The court Informs prosecutor and accused what it considers to
be a just sentence
• Prosecutor and accused can either:
1. Abide by the agreement on the charge and proceed
to sentence stage with court where they will lead
arguments relating to sentencing then the court can
proceed to impose a sentence thereafter
2. withdraw from agreement and have trial de novo
before different judicial officer.
Prosecution of corporations
NB: Look at the oxford criminal procedure textbook page 491 to 496.
NB: read section 332 of the CPA
How is a corporation held criminally liable?
1. Holding a corporation liable for the unlawful criminal acts or
omissions of its directors or servants.
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2. Holding a director or servant personally liable either jointly or
separately for the unlawful criminal acts or omissions of a
corporation in certain circumstances
3. Holding members personally liable either separately or jointly
for the unlawful criminal acts or omissions committed in
furthering the interests of an association in certain
circumstances.
Theories that explain the nature of liability between natural person

and corporation
• Vicarious liability –Vicarious liability justifies holding a corporation
liable for crimes committed by its directors, members and
employees as long as it can be shown that they committed these
crimes in the process of furthering the interests of the corporation.
• Identification theory – attributing the conduct and state of mind of
certain high ranking management officers to the corporate body
there by rendering corporate body directly liable.
• NB: the senior officials are regarded as “the mind of the
corporation”.
• The derivative approach: the wrongful acts of the directors and
employees of a corporation are regarded as the wrongful acts of
the corporation. Corporate criminal liability in South Africa is based
on the derivative approach.
• This approach appears similar to the vicarious liability approach
but for the fact that it goes further than that. Unlike vicarious under
the derivative approach the mens rea of an individual is imputed to
the corporation even in situations where the individual has acted
beyond the “course and scope of employment”
The rational behind corporate liability.
• Ability to defy law if no corporate liability
• There is a need to attend to the issue of corporations acting through
human agency, but cannot be reached through human agency:
• Ordinary measures and punishments would not always suffice, e.g.
imprisonment
• Traditionally only a natural person was held criminally responsible
for offences because a natural person has the physical ability to
perform an unlawful act and to have a blameworthy state of mind.
• However, Over the years, South African criminal law now allows a
juristic person to beheld criminally liable for offences committed in
its name, despite the juristic person’s inability to think and to act for
itself.
• Question: is it justifiable to hold a corporation criminally liable for
offences committed by those who act as its brains and hands?
• Two opposing views: The Clarkson view versus the Snyman view.
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South African law accommodates these two differing opinions by
providing for the prosecution of both the corporation and of the
individuals who commit the offence.( s332 of the CPA is the relevant
provision)
• The Meaning of ‘corporation’ and ‘corporate body’ not defined.
Therefore, the Ordinary meaning applies ie: any artificial body
having corporate personality.
S332 (1) can be summarised as follows:
(1) A corporate body will be held criminally liable where the
director or servant of the corporate body, in the exercise of
his or her powers in furthering or endeavouring to further
the intertest of the corporate body, by way of express or
implied permission or instruction, performs an act or
omission, with or without intent, which amounts to an
offence under any law or common law.
In other words: This section provides for the circumstances in which a
corporation will be held criminally liable for offences.
The question in s(1) is: Which acts and omissions of directors and
servants are criminally attributed to a corporate body?
Answer:
1. In exercise of powers or duties in the corporation;
OR
2.Acts or omissions performed in furthering or endeavouring to further
interests of corporate body.
• Ex Parte Minister van Justice: In Re S v Suid-Afrikaanse 1992- The
appellate Division (now SCA)held that the wording of section332(1):
was broad enough to include charging a corporation not only with
offences based on strict liability but also with offences based on
intention and negligence.
• 332 (2): In any prosecution against a corporate body, a director or
servant of that corporate body shall be cited, as representative of that
corporate body, as the offender, and thereupon the person so cited
may, as such representative, be dealt with as if he were the person
accused of having committed the offence in question. e.g.: there is a
deference between :
• “the accused is Siphuxolo Somandi of 20 High Street, , an adult male,
currently employed at ABC fisheries.”
• versus
• “the accused is Siphuxolo Somandi, in his representative capacity as
director of ABC Fisheries, an adult male, currently residing at 20 High
Street.”
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• S332(3) + (4): Subsection 3 provides that records that were made by or
kept by a director, servant or agent within the scope of duty may be
admissible as evidence in court against the corporation.
• S332 (5): (this is the directors personal lability) When an offence has
been committed, whether by the performance of any act or by the
failure to perform any act, for which any corporate body is or was liable
to prosecution, any person who was, at the time of the commission of
the offence, a director or servant of the corporate body shall be deemed
to be guilty of the said offence, and shall be liable to prosecution
therefor, either jointly with the corporate body or apart therefrom, and
shall on conviction be personally liable to punishment therefor.
Unless
• The director/servant/agent can prove that he did not take part in the
commission of the offence and that he could not have prevented it.
NB: The discussion of the constitutionality of s332 (5): S v Coetzee 1997 (3) SA
527 (CC).
• s332 (6) (a) + (b): any evidence admissible against the corporate body is
also admissible against the employee. In addition, document,
memorandum, book or record which was drawn up, entered up or kept
in the ordinary course of business of the corporation is prima facie proof
of its contents and admissible against the accused director unless he/she
can prove that at all material times he had no knowledge of the said
document and was in no way party to the drawing up of such document
or memorandum.
• Association: s332 (7) (8) and (9): regulate the criminal liability of
associations that lack juristic personality i.e.: Where the association was
governed by a committee or governing body, partnership.
• It provides that any person who was a member of an association of
persons at the time of the commission of an offence committed by the
“association”, will in the same manner as in section 332(5) be found
guilty of that offence unless
• Member is able to to prove that he did not take part in the commission
of the offence and that he could not have prevented it. Also, if that
member was not a member of that committee or governing body at the
time of the commission of the offence, he would escape liability.
NB: Procedures of bringing the corporate body before court
 By way of service of summons on corporate body
 Court will assume jurisdiction over a corporate body at its
place of domicile which is usually its registered place of
business or principal office.
86 | P a g e
 Summons shall be served on director, or servant or servant of
corporate body who shall be cited in his or her representative
capacity as the offender (s 332(12).
 The summons to be served in usual manner set out in in s
54(2) CPA, clearly citing name of director or servant acting in
rep capacity and not in name of corporate body itself. I.e.:
“the summons shall be served by a person referred to in subsection (1)
(b) by delivering it to the person named therein or, if he cannot be found,
by delivering it at his residence or place of employment or business to a
person apparently over the age of sixteen years and apparently residing
or employed there.”
“54 (b) :A return by the person who served the summons that the service
thereof has been effected in terms of paragraph (a), may, upon the
failure of the person concerned to attend the relevant proceedings, be
handed in at such proceedings and shall be prima facie proof of such
service”
• During hearing, director or servant to follow procedural
requirements in s 332(2) i.e. appear and remain in attendance
throughout hearing or trial. A warrant of arrest may be issued if
he/she doesn’t appear.
• A plea of guilty by director or servant only valid after corporate body
authorises it. Where the director or servant ceases to be director/unable
to attend or absconds he /she may be substituted with another director
or servant.
• On conviction, court may discretionally impose a fine. Payable by
corporate body and recovered from corporate body by attaching and sale
of corporate property (s332(2)(c)).
87 | P a g e

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TOPIC 1-THE PROSECUTION OF CRIME

• Topic 1- The Prosecution of crime.

This is the structure of the National Prosecuting authority:

• National Director of Public Prosecutions ("the National Director"), who is the

• Directors of Public Prosecutions;

In this Topic, we are concerned with Public and Private Prosecutions.

Public Prosecutions: prosecution initiated by a public prosecutor

 They are instituted by a public prosecutor who represents the state.

 They are instituted by an individual state citizen or private organization

We start by discussing public prosecutions first-

 Answer: Because it is only when the public prosecutor has declined to

But when would a public prosecutor decline to

 Answer: When there is no prima facie case and no compelling reason to

 Answer: When the allegations, as supported by statements and evidence

• A comment on Mr Zuma and Mr Bulelani Ngcuka’s saga.

But why is s179 of the Constitution important?

• Because it is the Original Constitutional power to

 (2) The prosecuting authority has the power to institute criminal

NB: The prosecution is Dominus Litis:

This means that the prosecutor is under an obligation to:

• Determine which court has jurisdiction to hear matter.

• Determine witness list and order of testimony.

• Set date and venue of trial.

• At trial, decide when to close prosecution case.

NB: S42 of the NPA Act :

• “No person shall be liable in respect of anything done in good faith

• Note: South Africa does not have a system of compulsory prosecutions.

• The discretion to prosecute is wide and is to be exercised objectively,

• The decision to prosecute is one of the core responsibilities of the

Mahupelo v The Minister of Safety and Security (I 56/2014) [2017] NAHCMD

Mahupelo v The Minister of Safety and Security (I 56/2014) [2017] NAHCMD

• “Prosecutors should thus not initiate or continue proceedings when an

Which is why the standard is a prima facie case.

Reference to a docket: When a crime is reported a police docket is opened

• Documentary evidence (if any).

• Warning statement(s) of accused.

• List of accused’s previous convictions.

• Correspondence during investigations.

Note: Sometimes there might be good reasons to refuse a prosecution despite

• Plea bargain concluded between prosecution and defence.

• Tragic personal circumstances of the accused

• The advanced or young age of accused.

• Section 6(a): Withdrawal of a charge in terms of this section

Why is this distinction NB: Consequences differ.

NB: Private prosecutions

In any case in which a Director of Public Prosecutions declines to prosecute for an

(d) the legal guardian or curator of a minor or lunatic

• may, either in person or by a legal representative, institute and conduct a

• Section 7 of CPA tells us that the initiation of private prosecution is strictly

• Section 7 (1) (a): Reference is made to “individually suffered.” This means

A substantial interest in terms of section 7(1) (a): Nundalal v Director of Public

Note: Prima facie is not required for a private prosecution.

• “Intention by the legislature must have contemplated that private

Nundalal case: ”[48] [53] and [76]:

• If the private prosecutor fails to prove that he has a substantial interest,

NB: The certificate of nolle prosequi- section 7(2)

• (2) the DPP has declined to prosecute on behalf of the State.

The importance of the nolle prosequi certificate:

• S7(2)(b): DPP must grant certificate on request by private person in every