LCPR3705 Unit 3 The Prosecution of Crime

LCPR3705
2023
UNIT 3: THE
PROSECUTION
OF CRIME
Compiled by: Adv. Inez Bezuidenhout
UNIT 3: THE PROSECUTION OF CRIME
The purpose of this unit is to familiarise the student with the state’s responsibility to enforce criminal law. The
unit further aims to provide a basic understanding of the prosecutorial task; the prosecutorial structure in South
Africa and powers of the prosecutorial authority. The Unit builds of the previous unit as far as it explains the
enforcement of criminal prosecutions as opposed to civil actions. The student will also be introduced to the
concept of public prosecutions as opposed to private prosecutions. The legislative framework for public
prosecutions will be explained as it relates to the various structures of the prosecuting authority and the
functions of each of these structures. The scope and the adjacent duties of the prosecuting authority will be
contextualised, especially as far as the decisions of the prosecuting authority should be independent of the
judiciary. A basic distinction will be drawn between the withdrawal of a charge and the stopping of prosecution.
The student will be introduced to basic legal ethics as it applies to the prosecuting authority; the restrictions on
prosecutions; and diversion of criminal trials.
UNIT 3: THE PROSECUTION OF CRIME
On completion of this study unit you should be able to:

 Compare public prosecutions to private prosecutions.
 Discuss the independent role of the prosecuting authority.
 Understand the composition; hierarchy; appointment; the functions; duties and jurisdiction of the various
authority structures of the National Prosecuting authority.
 Understand and discuss the phrase ‘the prosecution as dominus litis.’
 Explain the discretion of the prosecuting authority to prosecute.
 The power of the judiciary to interfere with decisions made by the prosecuting authority.
 Differentiate between the withdrawal of a charge and stopping of the prosecution.
 Understand and discuss the diversion of criminal trials.
 Apply the theoretical knowledge of this unit to a set of facts.
Unit 3: The prosecution of crime..
Pre-trial procedures for adult offenders
Page 93 of the study guide
Trial procedures for adult offenders
Post-Trial procedures for adult offenders
APPEAL OR REVIEW BY ACCUSED APPEAL OR REVIEW BY STATE OTHER POST-TRIAL
1. Automatic review
from lower court
- Review in terms - Serving of
REVIEW to High Court of
of Superior Courts sentence
South Africa or
Act - Mercy, free
2. One of the other REVIEW - Review in terms pardon or
Irregularity of a procedure forms review in
of CPA indemnity by
or constitutional issues terms of the CPA,
- Review in terms President
the Constitution
of Constitution
or the Superior
Courts Act
1. Only with leave of State appeal limited to

APPEAL
the court a quo
2. Constitutional
direct appeal only - Sentence
- Merits with leave of APPEAL
- Questions of law
- Question of law Constitutional - Granting of bail
- Refusal of bail Court - Constitutional
- Constitutional
issues
issues
Pre-Trial procedures for child offenders
Unit 3: The prosecution of crime…
Diagram of the role players in court [Visser:2015]
Unit 3: The prosecution of
crime…
Introduction After studying this paragraph, you should be able to

Refer to page 52 to 54 of the textbook, under know and discuss:
paragraph 1.
 The factors that contributed to the development of
You need to study this paragraph for the need for ‘legality’ or ‘due process’.
assignment purposes.
We will discuss this paragraph in the lecture.
 Shorter questions from this paragraph
 Cases cited as authority (you do not need to read
the cases, merely know them as authority to
substantiate your answers).
Public and Private Prosecutions

Refer to page 54 of the textbook, under paragraph 2.
You do not need to study this paragraph for assignment purposes. It is merely for noting.
We will briefly discuss this paragraph in the lecture.
crime…
Criminal After studying this paragraph, you should be able to

know and discuss:
prosecutions and
 The option to proceed with a civil claim following
civil actions the reporting of a criminal case.
Refer to page 54 to 55 of the textbook, under  Shorter questions from this paragraph.
paragraph 3.
You need to study this paragraph for
assignment purposes. the cases, merely know them as authority to
substantiate your answers.
crime…
Public
Prosecutions
 Refer to page 55 to 59 of the textbook,
under paragraphs 4.1; 4.1.1; 4.1.2; 4.1.3;
and 4.1.4. You do not need to study this
paragraph for assignment purposes. We
will briefly discuss these paragraphs in
the lecture.
 Structure and composition of the single
national prosecuting authority – Refer to
paragraph 4.2 on page 59 of the textbook.
assignment purposes. We will discuss this
paragraph in the lecture.
crime…
Public
Prosecutions
 Investigating directorate: Refer to page
60 of the textbook, under paragraph 4.2.1.
assignment purposes. We will discuss this
paragraph in the lecture. – You should be
able to answer shorter questions from this
paragraph.
The following paragraphs are for noting and self-study:

 4.2.2 Appointment of special directors – page 61;
 4.3 The power to institute and conduct criminal proceedings (s20(1) of the Act 32 of 1998) –
page 61;
 4.4 The authority and hierarchy of power to institute criminal proceedings – page 61;
 4.5.1; 4.5.2; 4.5.3; 4.5.4; 4.5.5; 4.5.6; 4.5.7; 4.5.8; and 4.5.9: The national director of public
prosecutions (NDPP) and the deputy national directors of public prosecutions (DNDPPs)
page 61 to 68;
 4.6.1; and 4.6.2: The directors of public prosecutions (DPPs) page 68 to 69.
 4.7.1; and 4.7.2: Prosecutors, page 69 to 70.
These paragraphs are not for assignment purposes.
crime…
The prosecuting After studying this paragraph, you should be able to

know and discuss:
authority and the
 When can a court interfere with the discretion of
judiciary the prosecuting authority to prosecute?
Refer to page 70 to 71 of the textbook, under  Long and Shorter questions.
paragraph 4.8.
assignment purposes. the cases, merely know them as authority to
substantiate your answers.
The following paragraphs are for noting and self-study:

 4.9: Extraordinary powers of a DPP, page 71;
 4.10: Control over local prosecutors, page 71 to 72;
 4.11: The prosecution and the police, page 72 to 74;
 4.12: The prosecution, the police, the public and the reporting of crime, page 74 to 75.
These paragraphs are not for assignment purposes.
The prosecution as dominus litis The discretion to prosecute

 Study paragraph 4.13 on page 76 of the  Study paragraph 4.14.1 and 4.14.2 of the
textbook for assignment purposes. We textbook on pages 76 to 79 for
will discuss this paragraph in the lecture. assignment purposes. These paragraphs
You will need to be able to answer are for longer and shorter questions. The
shorter questions from this paragraph. case law in these paragraphs is merely
For example: Discuss practical examples for authority, in other words: you should
of the interpretation of the principles. be able to provide the case as
substantiation for your answers.
• EXAMPLE of a possible test question:

Briefly discuss the distinction between
withdrawal of a charge and stopping of
the prosecution.
Differentiate between withdrawal of a
charge and stopping of prosecution/
Discuss the distinction between
withdrawal of a charge and stopping of
the prosecution.
crime…
Prescription of the right

to prosecute
Refer to page 79 to 80 of the textbook, under paragraph
4.15.
You need to study this paragraph for assignment purposes.
After studying this paragraph, you should be able to know
and discuss:
Do crimes prescribe?
Shorter questions.
Cases cited as authority (You do not need to read the
cases, merely know them as authority to substantiate your
answers.)
The prosecution and legal ethics

 Refer to page 80 to 82 of the textbook, paragraph 4.16.
 You need to study this paragraph for assignment purposes.
 We will discuss this paragraph in the lecture.
 You should be able to answer shorter and longer questions pertaining to this paragraph.
 Emphasis is on: What are the ethical duties of a prosecutor towards an accused in a trial?
 Cases listed and discussed in this paragraph need to be studied as it is contained in the
paragraph. In other words: You do not need to study the detail of the cases, apart from the
information provided in the textbook.
You do not need to study paragraph 4.17 on page 82 to 83 of the textbook for assignment
purposes.
Diversion of the criminal trial
 Refer to paragraphs 4.18; 4.18.1; 4.18.2; 4.18.3; 4.18.4; 4.18.5 and 4.18.6 of the textbook,
page 83 to 90 of the textbook.
 You do need to study these paragraphs for assignment purposes.
 We will discuss these paragraphs in the lecture.
DIVERSION
[The following slides contain excerpts from the textbook: Child Offenders in South African Criminal Justice:
Concepts and Process by Karels, MG., Basdeo, V., Mokoena, MT., and Swanepoel, JP. 2015. Juta and Co (Pty)
Ltd. Cape Town.]
• These slides were compiled to assist you to better understand the role of the prosecuting authority in
specifically the child justice process. The slides further intend to assist you to better understand how diversion
applies to the child justice process.
 The PP has the role to channel the criminal process in a manner that is in the best interest of the child AND
Think back to Law of
the community. Thus: this does not necessarily mean prosecuting a child. Persons- s28(2) of the
Constitution
 The DPP has the discretion to decide whether a matter is referred for preliminary inquiry, or for diversion.
 The prosecuting authority uses the CJA, its regulations and the directives issued by the National Director (in
consultation with the Minister of Justice) to deal with the Child Justice process.
• The PP decide whether or not to prosecute the child. Example: theft
The options:
Option 1- State will be able to prove that the child has criminal capacity:
Divert case in terms of Chapter 6 of the CJA, if it is a schedule 1 offence
Example: arson
OR
Refer the case to a preliminary inquiry (for example Schedule 2 and 3 offences).
Option 2- State will not be able to prove that the child has criminal capacity: PP refer
Example:
child to the Probation Officer. murder
[Please remember when you study this part of the work – there are differences between diversion in terms of the stages of the
process (in other words WHEN can the case be diverted) and also the offences applicable]
• What is a preliminary inquiry (PI)?
 Preliminary inquiry = an informal pre-trial procedure before a magistrate that is inquisitorial in nature.
 Purpose of a PI = to gather as much information as possible to decide on how to deal with the case further.
 PI is the same as what can be regarded as the child’s first appearance in court.
 Procedure may not necessarily take place in court = can be done in chambers
 Since it is inquisitorial = magistrate has an active role to ensure a just outcome.
 Before the PI the PP needs an assessment report on the child. Report is compiled by the Probation Officer (PO).
 This report is relevant to decide on how the matter should be dealt with further.
Diversion in terms of the CJA
General purpose = to redirect the child, as far as possible, away from the ordinary criminal justice process.
Why= to protect the child from the harmful effects and consequences of the ordinary criminal justice process.
Main objectives of diversion:

 Deal with the child outside the formal criminal justice system
 Encourage the child to be accountable for the harm caused by him/her
 Meet the particular needs of the child
 Promote the reintegration of the child into his/her family and community
 Provide an opportunity to those affected by the harm to express their views on its impact on them
 Encourage the rendering to the victim of some symbolic benefit or the delivery of some object as compensation for the harm
 Promote reconciliation between the child and the person/ community affected by the harm caused by the child
 Prevent stigmatizing the child and prevent the adverse consequences flowing from being subject to the criminal justice system
 Reduce the potential for re-offending
 Prevent the child from having a criminal record
 Promote the dignity and wellbeing of the child, and the development of his/her sense of self-worth and the ability to
contribute to society.
The difference between offences are important for consideration of diversion:
 Schedule 1, 2 and 3 offences (see previous slides for examples)
• For all three schedules, the following applies:

 Section 52(1) of the CJA is applicable
 Diversion will be considered only if:
 The child acknowledges responsibility for the offence; AND
 The child has not been unduly influenced to acknowledge responsibility; AND
 There is a prima facie case against the child; AND
 The child consents to diversion; AND
 If available, the parent/ an appropriate adult/ guardian consents to diversion; AND
 PP indicates that the matter may be diverted in accordance with section 52(2) of the CJA, OR the DPP indicates
that the matter may be diverted in accordance with section 52(3) of the CJA.
• Diversion in respect of Schedule 1 offences:
• (Considered “Minor” offences)
• Refer to Schedule 1 at the back of the CJA for a better understanding.
• My summary:
• The requirements that must be met for diversion in respect of a Schedule 1 offence:
• [Refer to sections 41(1) and 41(2) of the CJA, with reference to section 52 of the CJA]
 Must take place before the PI

 Must take place with the express authority of the NDPP/ an official under his/her authority (such as a PP)
 Child between 10 and 14 years and
 State will be able to prove criminal capacity of the child
 The child must appear before a magistrate in chambers to have the diversion option made an order of court
 Child must be accompanied (where possible) by and his parent/an appropriate adult/ a guardian when
he/she appears in chambers
• What happens when a prosecutor decides not to divert a matter in terms of section 41?
- The PP must arrange for the child to appear at a PI as referred to in Chapter 7 of the CJA
Remember: If a PP is of the opinion that a child is in need of care and protection as regulated by section 150 of the
Children’s Act, 38 of 2005, the PP must not divert the matter. In this instance the PP must refer the matter to a PI. At
the PI it will be considered to refer the matter to a children’s court.
[Please take note the a Child Justice Court differs from a Children’s court – refer to section 1 of the CJA for the
difference]
Also remember: in terms of section 41(5) of the CJA, the child’s record of previous diversions must be considered
when the decision whether or not to divert is made.
• Diversion after the PI / during a trial
Apart from the factors which must be met in terms of section 52(1)(a) to (d) – {remember these factors also
apply to diversion before the PI as we discussed with reference to section 41 of the CJA}:
 Schedule 1 offences – the PP may still divert a child, but only after the PP consulted with the victim and the investigating officer.
And only if the matter has not already been diverted in terms of chapter 6 of the CJA. [please note the difference between a
probation officer and an investigating officer].
 Schedule 2 offences – PP indicates that the matter may be diverted (in other words the PP makes a recommendation) AND the
victim and/or the victim’s parent/ an appropriate adult/ guardian are consulted on whether to divert the matter or not to divert the
matter.
 Schedule 3 offences: Only when “exceptional circumstances” exist to justify diversion. The decision from the DPP to divert must
be in writing.
 Refer to your textbook for what is regarded as “exceptional circumstances”.
 DPP may not delegate his power to decide whether a matter may be diverted in terms of this provision.
 The written indication is handed to the presiding officer a the PI or the Child Justice Court and forms part of the record of the
proceedings.
 Consultation is necessary with the victim/ any person with a direct interest in the affairs of the victim and the IO.
 The latter consultation is meant to allow the individuals an opportunity to express a view on whether the matter should be diverted,
and if so, the nature and content of the diversion option, also on the condition of compensation/ special benefit or service.
• Diversion during the trial proceedings
• The court may order diversion any time before the conclusion of the case for the prosecution.
• Remember the PP may no longer request the court to make a diversion order once the state has closed its case.
Please consult your textbook for more on diversion.
• Legal consequences of diversion

Section 59 of the CJA
If the child has successfully complied with the diversion order, the PP may not institute prosecution on the same facts.
Remember: A diversion order does not amount to a previous conviction as referred to in the CPA
No private prosecution may be instituted against the child on the same facts.
Private Prosecutions
You do not need to study paragraphs 5.1; 5.2; 5.2.1; 5.2.2; 5.2.3; 5.2.4; 5.3.1; 5.3.2; 5.3.3;
5.3.4; 5.3.5; 5.3.6; 5.3.7; 5.3.8 or 5.3.9 for assignment purposes.
Thank you.

LCPR3705 Unit 3 The Prosecution of Crime

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LCPR3705

On completion of this study unit you should be able to:

APPEAL OR REVIEW BY ACCUSED APPEAL OR REVIEW BY STATE OTHER POST-TRIAL

1. Only with leave of State appeal limited to

Introduction After studying this paragraph, you should be able to

Public and Private Prosecutions

Criminal After studying this paragraph, you should be able to

The following paragraphs are for noting and self-study:

The prosecuting After studying this paragraph, you should be able to

The following paragraphs are for noting and self-study:

The prosecution as dominus litis The discretion to prosecute

• EXAMPLE of a possible test question:

Prescription of the right

The prosecution and legal ethics

Main objectives of diversion:

• For all three schedules, the following applies:

 Must take place before the PI

• Legal consequences of diversion

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