CRIMINAL COURT PRACTICE QUESTIONS AND ANSWERS

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a) Complete the pyramid below to show that you understand the sources of criminal process in South Africa.
Constitution
Other Statutes
- Criminal Procedure Act 51 of 1977 as amended -> Criminal Law Amendment Act 105 of 1997 as amended, The Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007 and the Child Justice Act 75 of 2008 -> Law of Evidence Amendment Act 45 of 1988
Common Law
Textbooks
Articles and other sources

b) Identify the key role-players in the criminal process. (5)

1. The police or other law enforcement agencies
2. The Prosecuting Authority
3. Witnesses
- State Witnesses
- Defence witnesses
4. Correctional services
5. The client and the defence legal practitioner

c) Briefly explain how the police acquires knowledge that an offence has been committed. (5)
They may:
• be present during the commission of the offence and witness the commission thereof;
• receive a complaint from the victim or his representative or a witness of an alleged offence;
• receive information from an informer or an interested party that an offence has allegedly been committed or that an offence may possibly be
committed; or
• receive a request from the prosecuting authority to investigate an offence that was allegedly committed.
d) True or false: Once the DPP receives the case docket from the police they immediately institute criminal proceedings. Explain your answer.
False. Once a case docket is received from the police, the DPP (or senior prosecutor in the case of a lower court) normally appoints a prosecutor from
his staff to peruse it and advise him on whether or not to institute a prosecution.

e) True or false: In the Shabalala case the court held that every accused has the automatic and unqualified right to consult with the state witnesses
after an accused has been charged. Explain your answer. (10)
In Shabalala and Five Others v Attorney-General of the Transvaal and Another 1996 (1) SA 725 (CC) it was held that this rule must be qualified in light
of section 25(3) of the Interim Constitution. Section 25(3) of the Interim Constitution provides that every accused has a right to a fair trial. According to
the Constitutional Court this right requires that an accused be given the opportunity to prepare his defence.
According to the court, this implies that the accused must be allowed to consult with state witnesses after the accused has been charged and the
indictment or charge sheet has been served upon him. The court held that the DPP or his representative must still be approached for permission to
consult with state witnesses. The State may only refuse such permission if there are reasonable grounds to believe that such a consultation might lead
to the intimidation of the witness, tampering with his evidence, disclosure of state secrets or the identity of informers or that it might otherwise prejudice
the proper ends of justice.
The court stated that it is a precondition that the witness agrees to be interviewed. Furthermore, the DPP/prosecutor is entitled to be present during the
interview and may record what transpires during the interview. If the DPP or his representative refuses permission for the interview to take place, the
court may exercise its discretion to order that the defence be allowed to interview the witness despite such refusal.
Where the prosecuting authority refuses to allow the defence to consult with a State witness(es) the defence may consider applying to court for an
order to consult with the witness(es).
What the court will decide is the following: whether the accused will be prejudice in his defence if such consultation is not allowed.
f) Legal Practitioner X is approached by 2 accused, Y and Z, to represent them. During the consultation it emerges that there is a conflict of interest.
What can X do?(5)
the practitioner may not act on behalf of all of them. In fact, once the legal practitioner establishes that there are conflicting interests, he will have to
consider carefully whether to act on behalf of any of the accused. It is important to consult individually with accused persons and to establish potential
conflicts with co-accused, failing which you may find yourself not being able to act for any of the accused persons.

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a) Imagine that you are a newly admitted legal practitioner. Create a comprehensive checklist that you would use in criminal matters to establish
exactly what your clients want and whether you can act on their behalf. (15)
 Who approached me
- If you are approached by the very person who seeks the legal assistance, you may skip this part. However, if you are approached by a
member of his family or by a friend, you first have to determine why the prospective client did not approach you himself. Is he perhaps in
custody, or is he hiding from the police?
 What type of assistance is requested
 Are you legally and ethically entitled to render the said assistance?
 Fees and alternatives

b) X is accused of committing an offence. He approaches you for legal assistance, but tells you that he cannot afford to pay your legal fees. Critically
discuss whether you can refuse to represent him, and if so, what alternatives you can suggest in such a case. (10)
Yes
- Legal Aid South Africa
- University Law clinics
- Legal resources Centers
- Section 35 of Const - If person detained or charged, entitled to be provided with legal representation at state expense “where substantial injustice
would otherwise result”
- Sections 80 to 83 in Chapter 1 of the Child Justice Act 75 of 2008 provide several provisions relating to legal representation of children in general
and in the Child Justice Courts

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a) List the core rights that a detained, arrested and accused person has in terms of section 35 of the Constitution. (5)
 Right to remain silent
 an accused is entitled to a copy of a written statement made by himself to a peace officer concerning any matter in connection with which
criminal proceedings are instituted against him.
 Access to prosecutor’s police docket
 Right to legal representation
 Right to the presence of a legal representative at pre-trial procedures
 The right to be brought before a court within 48 hours
 The right to a speedy trial

b) Your client is arrested on a charge of robbery with aggravating circumstances and is held in custody. He calls you to tell you that the police are
forcing him to make a statement. Identify the right that is being infringed and explain the preconstitutional and post-constitutional position of this right to
your client. In your answer you must mention at least 3 reasons why this right is very important. (15)
The right to remain silent
Before the commencement date of the Constitution, “exclusionary” rules did not apply in South Africa. All relevant evidence was admissible, although
there were indications that a court could exercise a discretion to exclude evidence which had been obtained in a grossly irregular manner – See Dladla
1975 (1) SA
Section 35(5) of our Constitution expressly provides for the exclusion of evidence obtained in a manner which infringed on another’s fundamental
rights.
Section 35(5) should, however, not be interpreted as a total exclusionary rule. The section clearly provides for a discretion to be applied by the Court to
first ascertain whether the admission of such evidence would render the trial unfair and/or whether it would prejudice the administration of justice.
3 reasons why this right is very important:
 A concern for reliability (by deterring improper investigation) which relates directly to the truth-seeking function of the court;
 A belief that individuals have a right to privacy and dignity which, whilst not absolute, may not be lightly eroded;
 The right to remain silent is necessary to give effect to the privilege against self-incrimination and the presumption of innocence.
c) X is arrested on a charge of assault with intent to do grievous bodily harm and is released on bail. He wants to prepare for his defense but does not
know exactly what charges have been brought against him nor does he have any statements that were taken by the police. Explain to X his right to
have access to the content of the police docket versus the State’s rights in this regard. (10)
  In terms of section 335, an accused is entitled to a copy of a written statement made by himself to a peace officer concerning any matter in
connection with which criminal proceedings are instituted against him.
 __________________________________________

d) Answer true or false. If false, provide a reason for your answer. (10)
(i) The best way to determine the admissibility of an identity parade is by way of a trial within a trial process.
True

(ii) A statement made by an accused is not automatically inadmissible because he was not informed of his right to a legal representative.
False. The fact that an accused is not informed of his right to legal representation at the time of his arrest usually renders a statement made by the
accused inadmissible.

(iii) A statement made by an accused in the absence of a legal representative can sometimes lead to the crime not being prosecuted.
True. If the client does in fact make a statement at this stage, the statement will form part of the police docket and will come to the attention of the
prosecutor/DPP when it is considered whether or not to prosecute. This will enable the prosecutor to see what the defense of the accused is against
the charge and it may persuade him to decide that it is not worthwhile to prosecute. In this way the trial can be avoided completely

(iv) A speedy trial cannot lead to the setting aside of a conviction.

False. A speedy trial can lead to the setting aside of a conviction if an accused is tried so hastily that he is not granted an opportunity to prepare for his
trial

(v) The interdictum de homine libero is an English principle which says that only the affected person can apply to be released if he believes that he is
being unlawfully detained.
False. It’s the remedy which is applicable if an interested party is of the opinion that someone is being detained unlawfully.
Page 54
a) Read the following set of facts and answer the questions that follow: (15)
Mr. X is your client. On 20 October 2020 the police entered his premises and seized certain documents which they allege were used to commit fraud.
Mr. X examined the search warrant and is concerned about its validity and suspects that a number of items that were not mentioned in the warrant
were also removed from his premises. Advise him on the following:
(i) Who is authorised to issue a warrant to search and seize?
the warrant must be issued by a magistrate or justice of the peace on information under oath, from which it appears that reasonable grounds exist to
form the opinion that such an object is under the control of a person, or on his premises;
 the warrant may be issued by a judge or judicial officer who presides at criminal proceedings if it appears to such a person that such object is in
the possession or under the control of a person, or on his premises and is required as evidence at the said proceedings

(ii) What test is used to establish whether an object may be seized?

The test is an objective question of whether the objects are, or are reasonably suspected to be, involved in the commission or suspected commission
of an offence, either within the Republic or elsewhere.

(iii) Whether the seizure of unidentified items is lawful or unlawful?

Unlawful. Warrants are strictly interpreted and only those items identified in the warrant may be seized

(iv) Whether the search warrant must describe the exact premises that must be searched?
the warrant must be sufficiently clear as to the object to be searched for, the premises to be searched, who will take charge of the search and what
offence or offences have allegedly been committed.

b) List the 2 instances when a police officer may search your premises without a warrant. (4)
 if the person concerned consents to the search and seizure of the article concerned; or
 if the police official on reasonable grounds believes that a search warrant in accordance with section 21(1) will be issued to him if he applies for such
a warrant and the delay in obtaining such a warrant would defeat the object of the search.

c) Relate section 25 of the CPA in your own words. (10)

If it appears to a magistrate or a justice of the peace from information under oath that there are reasonable grounds to believe:
 that the internal security of the Republic or the maintenance of law and order is likely to be endangered by, or in consequence of any meeting which
is being held, or is to be held in or upon any premises within his area of jurisdiction; or
 that an offence has been, or is being, or is likely to be committed, or that preparations or arrangements for the commission of any offence are being
or are likely to be made in, or upon any premises within his area of jurisdiction; he may issue a warrant authorizing a police official to enter the
premises in question at any reasonable time for the purpose of carrying out such investigations and taking such steps as such police official may
consider necessary for the preservation of the internal security for the Republic, or for the maintenance of law and order, or for the prevention of any
offence;
 that there is a need to search the premises or any person in or upon the premises, for any article referred to in section 20 which such police official
on reasonable grounds suspects to be in, or upon, or at the premises, or upon such person; and
 that there is a need for the seizing of any such articles;
he may authorize and issue a warrant for the police to enter the premises.

d) True or false: The subjective opinion of the magistrate or justice of the peace who issues a warrant is subject to an objective test. Explain your
answer. (5)
true. The judicial officer responsible for issuing the warrant must determine independently whether the object may be seized as provided for in section
20 and whether the intrusion will be justified (Magajane v Chairperson, North West Gambling Board 2006 (2) SACR 447 (CC)). In that case the Court
held that the conduct of the police in executing the warrant, will be restricted to the time, place and scope of the search. The test is an objective one.
The suspicion of the applicant is not sufficient. It must be based on concrete grounds which would have moved the reasonable man to issue the
warrant.

e) X is arrested on an allegation of rape. His version is that whilst he was walking down Smith Street, he was accosted by a person known as Y who hit
him with what looked like a police baton. Y did not identify himself, nor indicate that he was a peace officer, nor did he ask X to stop. X is quite upset
and wants to know if the police can use force to restrain someone without just cause. Explain to X what the old and revised section 49 stipulates. (5)
 According to the pre-revised section 49(2), where the person concerned was to be arrested for an offence referred to in Schedule 1, or was to be
arrested on the grounds that he was reasonably suspected of having committed such an offence, and the person authorized under this Act to
arrest could not arrest him or prevent him from fleeing by other means than by killing him, the killing should have been deemed to be justifiable
homicide.
 The new section 49 no longer distinguishes between offences. This essentially means that to kill a suspect during the arresting process is not
allowed unless lives are endangered. What should be borne in mind is that the force used in either overcoming the resistance of an arrestee or
preventing his escape, must be ‘reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect
from fleeing’.

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a) Mention who the key role players are, and what their core function is within the criminal justice system. (14)
Investigating officer/station commander - normally appointed to investigate an offence.
Prosecutor - the prosecutor is dominus litis. He is the one who will finally decide whether or not to prosecute your client. He will be the one who will
draft the charge sheet, decide whether or not an admission of guilt may be paid and determine the amount thereof. He is also the one who will decide
what evidence to use against your client, who to call as state witnesses and in what order. He also has the power to order the police to conduct further
investigations where he deems this necessary.
Directors Of Public Prosecutions (DPP) -
Clerk of the Court - The duties of the Clerk of the Court are usually administrative in nature. A suspect or accused who wishes to pay bail which was
set by the magistrate in court, pays it at the Clerk of the Court who has to provide him with a receipt. If a person is sentenced to pay a fine, it may be
paid at the Clerk of the Court. If the accused cannot afford to pay the whole amount of a fine, then he may informally apply for a deferred fine at the
Clerk of the Court (known as the “prisoners’ friend”). The Clerk of the Court then verifies the information given by the accused and only after that may
the accused lodge his formal application for a deferred fine with the magistrate in court. The Clerk of the Court is responsible for all the charge sheets
at court. All charge sheets are kept with the Clerk of the Court and he must see to it that the charge sheets are provided to the prosecutor on the day it
is required at court. The Clerk of the Court is also in control of all criminal record books.
Department of Correctional Services - responsible for the safekeeping of prisoners
Interpreter - to interpret the different languages in order to ensure that the accused, magistrate, prosecutor, witnesses and legal representative
understand each other.
Court Orderly - main function is to control the awaiting-trial prisoners who are supposed to appear in court.
 - to see to the orderly functioning of events in court. The court orderly will call the magistrate as soon as the prosecutor is ready to proceed
and will also see to it that no one offends the court during a session.
- exhibits are handed to him in order to show it to the witness who is supposed to comment on such exhibit or to show it to the magistrate,
depending on the circumstances.

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a) What are the 4 most important methods used to bring an accused to court? (8)
• Arrest/custody;
• Summons;
• Written notice;
• Warning

b) Draft the application which the DPP, Prosecutor or Police Officer will present to the court for the purpose of issuing a warrant. (10)
J50 form
The application must comply with the following. It must:
 Mention the offence which has allegedly been committed;
 State that a reasonable suspicion exists based upon information obtained under oath that the person in respect of whom the warrant is requested,
has committed the alleged offence;
 Be alleged that the offence has been committed within the area of jurisdiction of the magistrate concerned or, in case of a justice of the peace, within
the area of jurisdiction of the magistrate in whose area the application is made. Where the offence has not been committed in such an area of
jurisdiction, it must be alleged that it is known, or that it is suspected on reasonable grounds that the person in respect of whom the application is
made, is in such an area of jurisdiction.
c) Assume that you are arrested on suspicion that you hold key information re the commission of an offence. What details are you obliged to give to
the officer and what happens if you fail to do so? (4)
Full name and address. A refusal or the furnishing of a false name or address constitutes an offence and is punishable in terms of Section 41(2)

d) Critically discuss whether the police can use excessive force to prevent a suspect from fleeing. (10)
 According to the pre-revised section 49(2), where the person concerned was to be arrested for an offence referred to in Schedule 1, or was to be
arrested on the grounds that he was reasonably suspected of having committed such an offence, and the person authorized under this Act to
arrest could not arrest him or prevent him from fleeing by other means than by killing him, the killing should have been deemed to be justifiable
homicide.
 The new section 49 no longer distinguishes between offences. This essentially means that to kill a suspect during the arresting process is not
allowed unless lives are endangered. What should be borne in mind is that the force used in either overcoming the resistance of an arrestee or
preventing his escape, must be ‘reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect
from fleeing’.

e) Analyse the following set of facts and answer the questions that follow: (15) Imagine that you are the prosecutor in a criminal matter and you believe
that the accused is not at risk of fleeing.
(i) Which method would you use to ensure that he appears in court? Summons
(ii) When is such a process usually used? In cases where there is no reason to assume that the accused would flee or interfere with state witnesses.
Tsose v Minister of Justice and Others 1951 (3) SA 10 (A) where Schreiner JA held: “where there is no urgency and the person to be charged has a
fixed and known address
(iii) What process is used to implement the method identified in (i) above?
The prosecutor prepares the charge and hands it together with information regarding the name, residential address and occupation or status of the
accused, to the Clerk of the Court. The Clerk of the Court then issues a summons containing the charge and the said information as well as the place,
date and time of the appearance of the accused in court (section 54(1)). The summons, together with so many copies thereof as there are accused to
be summoned, is handed to the person who is authorized to serve summonses
(iv) What happens if the accused fails to attend court despite the proper procedure being followed?
If a summoned person fails to appear in court on the appointed date and time or fails to remain present, he is guilty of an offence (section 55(1)). If the
court is satisfied from the return that the summons has been properly served and the accused failed to appear or to remain present, the court may
issue a warrant for his arrest. I

f) Under what conditions will a written notice to appear be used instead of any of the other methods to ensure that the accused attends court? (8)
section 56 of the CPA. If a peace officer on reasonable grounds thinks that a Magistrate’s court will, upon convicting a person of an offence, impose a
fine not exceeding R 5000,
_____________________________________

g) Briefly discuss Section 72 of the CPA. (5)

If an accused is in custody in respect of an offence and can be released by a police official or court on bail in terms of section 59 or 60, the police
official or court can, instead of granting bail, release the accused in the case of certain offences (section 72(1)) and warn him to appear on a specified
date and time before a specific court. If the accused is under the age of 18, he is placed in the care of his guardian and such person is warned to bring
the accused to court at the appointed time and place. Where a police official releases an accused in terms of this section, he must hand a written
notice to the accused in which the place and time upon which the accused must appear are filled in.

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a) Create a checklist that you could use to ensure that you collect all the relevant data to secure the accused’s release from custody. (15)
 When was the Accused arrested?
o enables the legal practitioner to ascertain when the accused may be expected to appear in court. As it is necessary for the accused to
be brought before the court no later than 48 hours after his arrest (not including Saturdays, Sundays or public holidays)
 Where was the accused arrested and at which police station or prison is he being detained?
o The place of arrest is important as it may assist the legal practitioner in ascertaining in which court the accused is likely to appear and
which police station is in control of the matter.
 What crime is the accused alleged to have committed?
o relevant as certain crimes are dealt with only by particular branches of the South African Police Services
 Who is the investigating officer?
 o important to obtain, as it is necessary to communicate with the investigating officer in order to ascertain further information with regard
to the charge and his attitude towards a bail application
 In which court will the accused appear or has he already appeared?
 Particulars of the accused
o The full names of the accused, his residential address and the time he has resided there, family ties, place of employment, financial
circumstances and assets, amount of money for bail, personal details including evidence of good character, previous convictions and
outstanding cases, details of the accused being a flight risk i.e., travel documents, and probability of a conviction are all particulars
crucial to a bail application. This information is necessary for the practitioner’s representations to the investigating officer and the
senior prosecutor and, should bail not be granted by agreement, it will be necessary to furnish this information to the court

b) X is charged with the commission of an offence and is taken into custody at the Kempton Park Police Station. His father Y would like to know if he
can go to the police station to request that X be released into his custody. Advise him on whether X can get police bail and if so, what steps must be
taken for this purpose. (5)
_______________________________________

c) List the 5 factors mentioned in section 60(4) of the Criminal Procedure Act 51 of 1977 which will be considered by a court in a bail application. (10)
 The likelihood that the accused, if he is released on bail, will endanger the safety of the public or any particular person or will commit a schedule I
offence; or
 The likelihood that the accused, if he is released on bail, will attempt to evade his trial; or
 The likelihood that the accused, if he is released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
 The likelihood that the accused, if he is released on bail, will undermine or jeopardize the objectives or the proper functioning of the criminal justice
system, including the bail system;
 In exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or
security

d) Your client, X, consults with you and informs you that he was involved in a motor vehicle accident and that the investigating officer, Sergeant. Y,
informed your client that he is going to be arrested for culpable homicide. You consult with your client before you take him to the investigating officer.
Name 10 important facts that you will ascertain from your client to enable you to compile his affidavit for an opposed bail application. (10)
 The personal particulars of the accused inter alia, his marriage status and whether he has a fixed residential address;  That the accused has fixed
employment and the time period he has been employed;  Whether he has fixed property and how long he has had the property;  The character of the
accused (if it is in your favor);  The nature of the crime the accused is suspected of committing;  Determine previous convictions and outstanding
cases;  The seriousness of the sentence which may be passed;  The probability of conviction - the strength of the state’s case is applicable;  The
probability of an acquittal – the weakness of the State’s case is applicable;  The accused’s ability to travel and to settle himself in a foreign country; 
The time period the accused will spend in custody awaiting finalization of his trial;  The conditions in prison, in particular the over crowdedness that
violates the dignity of an applicant for bail;  Evidence that he will not communicate with state witnesses or is not able to do so;  is financial status and
the amount of bail he will be able to pay;  Suggest conditions of bail when necessary;  The law applicable to every aspect of bail; and  Any other
factor relevant i.e., illness etc.

e) Can an investigating officer grant bail under certain circumstances? Yes/No (1) yes
f) Can a prosecutor grant bail under certain circumstances, without a court having to decide over bail? Yes/No (1) Yes
g) You have presented your case in a bail application matter. List the powers that the court has, after hearing this application. (4)
____________________________

h) X is charged with assault with intent to do grievous bodily harm. He is upset because the magistrate refused his application for bail. Advise X on the
steps that he can take to address this matter and highlight the procedure that must be followed to take the next step. (15)
Section 65 (1) (a) of the CPA provides that the accused who feels aggrieved by the refusal of a lower court to release him on bail, or by the imposition
of any bail conditions, may appeal against such refusal.
The procedure to be followed in an appeal to the local division is as follows:
 Draft a notice of appeal;
 Draft a power of attorney and arrange for the accused to sign and initial every page thereof;
 The notice of appeal should be served on the Clerk of the Court, the DPP and the magistrate;
 Obtain the reasons from the magistrate;
 Obtain a copy of the court proceedings from the Clerk of the Court, or if mechanically recorded, from the company responsible for transcribing the
mechanically recorded proceedings (usually the Clerk of the Court will require payment of a deposit pending the services that are to be rendered);
 Brief counsel (or do it yourself if you have right of appearance in the High Court) furnishing him with a copy of the court record, the magistrate’s
reasons and the notice of appeal in order for him to prepare his heads of argument;
 As soon as the heads of argument are finalised, the case record should be compiled and indexed, after which it should be served on the DPP and
Registrar of the High Court;
 A notice of set down will be received from the Registrar;
 The legal practitioner must inform counsel accordingly and attend court at the hearing.

i) Briefly discuss section 62 of the CPA. (14)

Section 62 of CPA provides that any court before which a charge is pending in respect of which bail has been granted may at any stage, whether the
bail has been granted by that court or by any other court, on application by the prosecutor, add any further condition of bail which shall include:  The
accused reporting in person at any specified time and place to any specified person or authority;
 Any place to which the accused is forbidden to go;
 The prohibition of, or control over communication by the accused with witnesses for the prosecution;
 The place at which any document may be served on him under the Act;
 Conditions which in the opinion of the court will ensure that the proper administration of justice is not placed in jeopardy by the release of the
accused;
 Conditions which provide that the accused be placed under the supervision of a probation officer or a correctional official.

j) True or false: Hearsay or opinion evidence can never be heard at a bail application hearing. (2) _False
k) Briefly discuss the pre- and post-constitutional position regarding who bears the onus of proof in bail application matters.
 Prior to the commencement date of the Interim Constitution in 1994, the burden of proof in all bail applications was on the accused to show on
a balance of probabilities that the application should be granted see Hudson 1980 (4) SA 145 (N).
 In terms of section 35(1) ( f) of the 1996 Constitution an accused (detained person) has the right to be released from detention if the interests of
justice permit, subject to reasonable conditions.
 In fact, in Prokureur-Generaal van die Witwatersrand Plaaslike Afdeling v Van Heerden en Andere 1994 (2) SACR 469 (W) and Ellish en
Andere v Prokureur-Generaal WPA 1994 (2) SACR 577 (WLD) it was held that there should not be any onus in bail applications. The only
purpose of a burden is to enable the court to make a finding at the end of the hearing as to whether the accused should be released or not.
  In 1995, section 60(11) re-introduced an onus on an accused in certain circumstances, namely when he was either charged with a Schedule 5
offence or when he was charged with having committed a Schedule 1 offence whilst on bail for a Schedule 1 offence.
_____________________________________

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a) The charge sheet against X reads as follows (Regional Court, Pretoria):
CHARGE SHEET: ACCUSED NUMBER TWO
The accused, X, is guilty of the crime ROBBERY WITH AGGRAVATING CIRCUMSTANCES (as defined in s1 of the Criminal Procedure Act 51 of
1977), in that on 10 June 2020 and at or near Brooklyn in the district of Pretoria, he, together with accused number one, Y, unlawfully and intentionally
and with the use of force, took the property of Brooklyn Allnite Chemist, being a total of R25 000 in cash, with the intention of permanently depriving
the said Allnite Chemist of this money.
i) In order to consult properly with X in preparation for this trial, list what documents and statements you will obtain. Also explain on what legal basis
you will rely, in order to obtain these documents and statements. (5)
 Admissions
 Oral statements
 Written statements - The legal practitioner must, however, go further and immediately request a copy in writing from the prosecutor of any statement in
his possession which has been made by the accused (see in this regard section 335 of the CPA). The legal practitioner in any event has an immediate right to
his client’s statement even at the initial bail proceedings.
 Pointing out which result from statements
 Relevant documentary evidence
 Audio recordings and video recordings
 Oral evidence

The presentation of a document or paper is obtained by summoning a person with a subpoena duces tecum with the request to bring the documents concerned
with him

In terms of section 335 of the CPA an accused can obtain a copy of a statement made to a peace officer if criminal proceedings are instituted thereafter.
ii) Prior to the trial, X consults with you and denies the accusation that he was involved in the robbery. X says that he was merely driving the car, and
thought that Y had gone into the chemist to buy ordinary medicines for personal use, and only realised something was wrong when they were arrested
at the roadblock. Draft a Section 115 (not-guilty) plea statement on behalf of X. Include all headings and endings. (5)
Example of Section 115 plea
* 7. These admissions can be noted in terms of Section 220 of the criminal procedure act.

DATED AT PRETORIA ON THE 14TH DAY OF JULY 2014.

______________

XOLANI MSUTU

b) Briefly explain why it is important for a legal representative to familiarise himself with the scene of a crime. (5)
________________________________

c) True or false: An exhibit such as the object that was used in the commission of an offence is important only in exceptional cases. Explain your
answer fully. (5)
False. ___________________________

d) True or false: A normal subpoena is used to summon a witness to bring certain documents that are in his possession to court. (2) False
e) Critically discuss whether a plea-bargaining agreement offers a better solution to an accused person in circumstances where it finds application.
(10)
f) Your client informs you that he wants to plead guilty to the charge of theft. Draft a Section 112 (guilty) plea statement on his behalf. Include all
headings and endings. (10)
Example of section 115 plea:

STATEMENT IN TERMS OF SECTION 112(2)

1. I, the undersigned, Yaya Eto, plead guilty to the charge (or offence) of assault (or the candidate can state plead guilty to the charges against me).

2. I am of sober mind and plead guilty voluntarily and without duress or undue influence.

3. I admit that on the 11 July 2014 and in the cafeteria on the premises of the University of Western Cape, Bellville, I assaulted Conrad Coetzee by hitting him twice
in his face, with a clenched fist thereby fracturing his jaw.
4. I aver that I was severely provoked by the complainant immediately prior to hitting him, by his stating that I was unlawfully in SA without authorisation, was an
illegal immigrant and that I was depriving South Africans of the opportunity to study. This was stated loudly, repeatedly in the cafeteria before many
fellowstudents. Despite the aforegoing I admit I had no lawful reason to strike him.

5. I know and understand that my action was wrongful and unlawful and that I can be punished. I accordingly plead guilty to assaulting the complainant as set out in
the charge sheet.

g) True or false: A Magistrate’s Court can test the validity of a statutory provision. (2)
h) Tabulate the types of punishment that a district and regional court may impose in a criminal matter.
i) List the 4 categories of witnesses that a defense practitioner may encounter in a criminal matter. (8)
j) Briefly explain the 3 principles which will influence a court in exercising its discretion to adjourn proceedings. (6)

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a) Draw a schematic illustration of what course a criminal trial takes where an accused pleads not guilty. (20)
b) You are a newly appointed candidate legal practitioner. Your principal instructs you to attend your first criminal trial. Briefly explain how you will
conduct yourself when you get to court. (10)
c) In a simulated set of facts, set up a court room and allocate different roles to the key actors in a criminal matter. Take 30 minutes to prepare and
then act out the process that takes place in a criminal trial, bearing in mind how you would address the different role players. (10)
d) Legal Practitioner X uses abusive language against the witnesses produced by the state. Can the court reprimand him in any way? Explain. (5)

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a) True or false: Failure to order a separation of trial is automatically irregular. (2)
b) In deciding whether an accused may be charged with multiple charges it is important to prevent frivolous charges being brought against an accused
especially when there are no prospects of him being convicted on some of them.
The courts have developed a number of tests to help prevent duplication of convictions. Briefly complete the table below to show your understanding
of some of the tests that are applied.
c) True or false: An accused is deemed to be convicted on a main charge if the court fails to draw a distinction between the main and alternative
charge. (2)
d) Briefly discuss, with reference to relevant case law, whether a trial must start de novo when joinder of an accused takes place. (8)
e) Conduct a simulated exercise in which you object to a charge against an accused in a court setting

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a) X is charged with committing rape. He wants to know whether he is compelled to plead guilty to the charge or whether there are alternatives
available to him. List and explain the other eight pleas that he may raise in this matter. (16)
b) Mention the elements that must be satisfied before a court will convict an accused on a plea of guilty without any evidence being led. (6)
c) X was charged with committing murder. She pleaded guilty to the charge and the presiding officer accepted her plea as is. Critically evaluate
whether the presiding officer’s conduct was in line with section 112(1) (b) of the CPA. (10)
d) X is charged with committing murder. The charge sheet reads as follows: On or about November 2020 the accused unlawfully murdered the
deceased by shooting him with a gun. Critically evaluate whether the charge sheet fulfills the provisions of section 85 of the CPA and advise X on any
steps, if any, he can take to address this matter. (10)
e) Briefly explain whether a defective charge sheet can be amended by evidence and what test the court would use to accept the amendment. Mention
case law in your answer. (10)
f) List the two instances when it would be appropriate for a court to order a separation of trials. (4)
g) Briefly discuss section 113 of the CPA. (5)
h) Explain to X what steps must take place when a plea of not guilty is tendered. (22)
i) List the two ways in which a plea statement may be presented to court. (4)
j) True or false: a plea may only be changed after conviction. Explain your answer in full.

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a) Your client is charged with having shot and killed a man. The State calls an eye witness who claims that your client fired the gun when she was
standing to the right of the deceased. The State then calls the district surgeon to the stand. Prepare questions that you will use in cross-examination to
challenge the version of the eye witness. (10)
b) Critically evaluate whether repetitive cross-examination is permissible. Refer to relevant case law in your answer. (10)
c) Discuss Section 167 of the CPA. (10)

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a) On a charge of reckless and negligent driving where your client denies having been the driver, the prosecutor calls a witness who testifies to
having seen your client’s motor car being driven recklessly. Thereafter the State closes its case. What advice would you give to your client
regarding the step that should be taken next? (10)

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a) On a charge of reckless and negligent driving where your client denies having been the driver, the prosecutor calls a witness who testifies to having
seen your client driving the motor vehicle when your client says otherwise. Would you continue to act for this client knowing that he is lying to you?
Discuss. (8)
b) What is the simple rule of thumb when it comes to dealing with witnesses. (2)
c) Discuss the two exceptions to the rule that all witnesses must remain out of court until called to testify. (4)
d) Bearing in mind the facts in (a) above, assume that your client is not lying and draft the questions that you would use to conduct examination in chief
of the accused and/or any witnesses that you may want to present in favor of your client’s version. (10)

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a) True or false: The onus of proof in criminal matters rests at all times on the State. Discuss your answer fully. (4)
b) Distinguish between admissibility and evidentiary value. (4)
c) What is the meaning of ‘cautionary rule’ and how did it develop? (4)
d) Briefly discuss the importance of the cautionary rules in criminal matters. (8)
e) List the recognised rebuttable presumptions in law. (10)
f) Explain the phrase ‘res ipsa loquitur’ with examples. (6)
g) Distinguish between an admission and a confession. (4)
h) X was charged with murder. X pleaded guilty after he was subjected to 72 hours non-stop interrogation and was denied access to food and proper
sanitation. During the course of the interrogation, he mentioned that he suspected that the deceased was buried in a specific area as he passed this
place often and it seemed that the soil had been recently tampered with. Upon investigating, the police found the body of the deceased victim. The
police claimed that X’s statement was a confession. X wants to know whether his statement constituted a confession and whether the fact discovered
as a result of this allege unlawful confession is admissible in law. Advise him fully. (10)
i) Describe the instances where the State may call the co-accused as a witness for the prosecution. (4)
j) List the persons who may hand in a document as evidence in criminal matters. (5)
k) List the instances when a party need not prove the authenticity of a private document. (5)
l) Complete the table below to show that you understand who competent witnesses are: (10)
m) Complete the table below to show that you understand the principles relating to the different kinds of evidentiary material. (8)

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a) X is convicted of culpable homicide.
(i) Explain the test that the court will apply in deciding on a suitable sentence.
(ii) Briefly outline your argument on sentence on X’s behalf.
(iii) Conclude your argument with your suggestion of a suitable sentence. (10)
b) You represent an accused on a charge of driving whilst under the influence of alcohol. The blood alcohol analysis report reveals that the alcohol
level in his blood was 0,05g/100ml. He is employed as a driver; earns R15 000 per month; is 50 years old; is married to a woman who is disabled and
unemployed; has 3 minor children; has no previous convictions, nor any pending charges. List in full the factors you will present to the court in
mitigation of sentence. (10)
c) Section 276 of the CPA sets out the types of sentences that may be imposed by a court. List them. (10)
d) Briefly discuss the aggravating factors which would influence the sentence that may be imposed on an accused. (10)
e) Mention the different ways in which evidence in mitigation may be placed before the court. (6)
f) Bearing in mind the facts in (b) draft a statement regarding sentencing that you would present to the court
g) Taking the facts in (b), further assume that the accused drove into a building thereby damaging it to the extent of R500 000. Advise the owner of the
building whether the accused can be ordered to pay for these damages and the requirements that must be met before he can succeed with his claim
for damages. Refer to the relevant section of the CPA. (10)