RHODES UNIVERSITY

FACULTY OF LAW

EXAMINATIONS: JUNE 2017

CRIMINAL PROCEDURE B
(LLB)

External Examiner: Ms H McCallum Marks: 70

Internal Examiner: Ms B Padayachi Duration: 2 hours

GENERAL INSTRUCTIONS TO CANDIDATES

___________________________________________________________________

1. ANSWER ANY TWO QUESTIONS.

2. A planning document is available to you on the back of this cover sheet. You
are entitled to detach and to write on this planning document during reading
time, and during the examination.

3. Time management is very important. You should determine how much time to
dedicate to each question by determining how many minutes per mark for the
whole paper (eg 120 minutes for 70 marks) and then multiplying that figure by
the amount of marks for each question.

4. It is in your interest to write legibly.

5. The Oxford Concise English dictionary may be used during this examination for
the purpose of looking up words that are not legal terms relevant to the course
content. Invigilators may ask you which word you wish to look up, to determine
whether the use of the dictionary is appropriate.

6. It is in your interest to read the ENTIRE question carefully before attempting to

answer any of the questions.

7. At the end of the examination, place all extra answer books inside the first
book. Make sure that you have filled in all the required information on the front
cover. This includes how many books you have handed in, what questions you
have answered, and the order in which they have been answered.

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 PLANNING

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Question One

(a) The default position in the Child Justice Act 75 of 2008 is that proceedings
against children in conflict with the law are to be held in camera unless the
presiding officer grants permission for non-prescribed persons to be in court.

The Act further prescribes that no persons shall be present in court unless
their presence is necessary in court. This position is re-enforced in the
Criminal Procedure Act 51 of 1977 where the media in particular is not
allowed to be present or publish any story where the rights of certain
witnesses can be prejudiced.

Write an essay in which you discuss the challenges raised by interested

parties in balancing the different rights involved and how the courts have
attempted to address this issue.

Your answer should make reference to the policy issues, legislation, case law
and the views of academic writers on this topic.
(20)

(b) Jojo is convicted of rape in the High Court, and sentenced to 10 years’
imprisonment. Jojo wants to apply for leave to appeal against his conviction,
claiming that the evidence led was not strong enough to justify a conviction.
Jojo has also been approached by a witness (Bob), who was not available
during the trial, who tells Jojo that the complainant in the rape matter
confessed to Bob that she lied about Jojo being her rapist. Jojo wants this
evidence to be presented to the court on appeal.

(i) Explain fully to Jojo the process of obtaining leave to appeal from a conviction
in the High Court.
(10)

(ii) Explain to Jojo how to go about attempting to introduce new evidence at the
appeal stage, and what test the appeal court will adopt in deciding whether to
allow this new evidence on appeal.
(5)

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Question Two

(a) A house on a game farm was allegedly being used by a crime syndicate of
dealers and poachers to store and prepare rhino horns and elephant tusks for
export and local sales. The National Director of Public Prosecutions (NDPP)
applies for a forfeiture order of the farm and the house of the suspected
dealers in terms of s38 of the Prevention of Organised Crime Act 121 of 1998
(POCA).

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 (i) What would the NDPP have to prove to succeed in the application?
(10)

(ii) Discuss, with reference to case law, what difference it would make if
the house was also the respondent’s primary residence and/or the
accused were acquitted of the criminal charges related to the alleged
sale of rhino horns and tusks?
(5)

(b) You represent an estate agent charged with the theft of a substantial sum of
money, the proceeds from property sales and rentals held in trust on behalf of
clients. You reach an informal agreement with the prosecution that your client
will plead guilty provided the State agrees to a wholly suspended sentence of
imprisonment, coupled with a fine.

Your client is duly convicted but, notwithstanding the State’s submissions, he is

sentenced to a term of imprisonment, partially suspended, coupled with a fine.

(i) What would be the prospects of a successful appeal against sentence

based on the terms of the plea and sentence negotiations with the
State? Discuss, with reference to case law.
(8)

(ii) What would be the position if a formal plea and sentence agreement
had been concluded in terms of s105A of the Criminal Procedure Act
51 of 1977 and the trial court deviated from the sentence as agreed?
Discuss, with reference to case law.
(12)

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Question Three
(a) Christo is arrested in connection with recording child pornography and
trafficking charges and is to be prosecuted in the Magistrate’s Court.The
evidence is that he produced and tried to sell compact discs containing
pornographic images of children to a police trap. Christo is not sure of the
charges nor can he recall what he said or signed at the police station after his
arrest. You are instructed to make a bail application for his release and prepare
to defend him in court against the charges.
Explain to Christo his rights to have access to the content of the police docket
for both the bail application and for trial, as well as the rights of the prosecution
in this regard.
Your answer should include a full discussion of the legislation and case
authority.
(15)

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(b) Jimmy Jinx runs a local electrical repair shop. The police receive reliable
information that Jimmy’s repair shop contains electronic equipment and alarm
interceptors that he supplies to syndicates of housebreakers and burglars to
commit their crimes. The police are told that Jimmy is about to dispose of his
business and move to another city or emigrate to England. The police rush to
the repair shop and insist on searching the premises. Jimmy refuses
permission for the search, but the police conduct a search anyway, and
discover tools and equipment that later turn out to have been used in recent
burglaries. The police seize the equipment, alarms and tools.
Jimmy applies to court to have the search declared unlawful, and to have the
seized equipment returned to him. How should the court deal with the matter?
(10)

(c) Describe and discuss, with reference to relevant legislation and case authority,
the right of an accused to be prosecuted within a reasonable period.
(10)

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END OF THE EXAMINATION PAPER

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