[503] The skimpier the summary of substantial facts, the greater the need for particularity in the charge. Upon being satisfied, the court requires the accused to plead, and orders that the contents of the agreement be disclosed in court. [442] The offence being investigated must be properly specified.[443]. an amount determined by the Minister (R1,500 in terms of the. If a case goes to trial, prosecutors are not obliged to lead all the evidence in the docket. [471], Any weapon, instrument, vehicle, container or other article declared forfeited under section 35(1) shall be kept for thirty days from the date of forfeiture, or until a final decision, in terms of a section 35(4)(a) application, is made.[472]. The extensions of the 48-hour period that ordinarily apply under section 50 of the CPA apply here, too. What it probably means to refer to is a child under the age of ten who committed an act that would have amounted to a crime but for the fact that the child was under the age of criminal capacity. Special plea definition is - a plea (as of infancy, statute of limitations or of frauds, discharge in bankruptcy or release) alleging new and affirmative matter as a defense without denying any allegations of the opponent : a plea in bar or in avoidance of what opponent alleges. [584] Subsection 2 sets out the objectives of a preliminary inquiry, which are to "consider the assessment report of the probation officer, with particular reference to, Subsection (3)(a) provides that a preliminary inquiry must be held in every case involving a child, unless the prosecutor has diverted the case, or the child is under ten, or the case has been withdrawn.[585]. the crime of genocide, crimes against humanity and war crimes; trafficking in persons for sexual purposes; using a child or person who is mentally disabled for pornographic purposes. It is worth noting, however, the general reluctance of higher courts to get involved in uncompleted proceedings. Special pleas of prescription and a noncompliance with the - provisions of section 3 (2) of Act 40 of 2002 were raised. [482] In terms of sections 35(2)(b) and 35(3)(f) of the Constitution, the accused may choose his own lawyer, and is entitled to a lawyer, no matter how trivial the case against him. At best for the convicted person, whichever way the appeal goes, he will still end up serving a lengthy period of imprisonment. [48][49][50][51], Bail applications are always matters of urgency. [252] For an example of the application of the principle, see S v Groesbeek. Furthermore, section 73 of the CPA states that an accused is entitled to assistance after arrest and at criminal proceedings. In particular, section 20 provides that a child may not be arrested for a Schedule 1 offence (an offence that falls into the least serious category) unless there are compelling reasons. The relevant parts of POCA are Chapters 5 and 6. Note that the State not obliged to provide the lawyer of the accused's choice. The twenty-year period runs even if the prosecuting authorities are unaware of the crime. [465][466] If, for example, Xanadu steals Yeats's cellphone, Xanadu may lawfully possess the article, but is not entitled to it, since Yeats is the owner of the phone. It forms part of procedural or adjectival law, and describes the means by which its substantive counterpart, South African criminal law, is applied. The appellant in S v Yengeni was initially charged with corruption and fraud. Delay could not be allowed to debase the presumption of innocence and become in itself a form of extra-curial punishment. Section 21 makes it clear that, whenever possible, a child who has been arrested should be released. [90] The court hearing such a bail application, when the offence is a Schedule 5 or 6 offence, must conduct a careful enquiry before deciding to release the accused on bail. [148], If no prosecution is instituted, or if the prosecution has been instituted and the accused acquitted, the fingerprints, etc., are to be destroyed.[149]. One school of thought has is that the DPP is obliged to issue this certificate because it is not for him to go into the merits of whether the particular private person has the capacity to bring private prosecution. By that date, however, the application had been not completed, and therefore was postponed to 3 March 1995, but even by that date the application was no nearer resolution than it had been five months before; the matter was struck from the court roll. He was informally arrested and released on warning. The special plea is one of prescription, articulated as follows: "1.1 1.2 1.3 The alleged cause of action in this suit arose on or November 1991 to the time of the present application. There have been no cases yet in the Constitutional Court deciding the constitutionality of Chapter 2 of the CPA. The matter in question related to an action for damages against the Road Accident Fund in terms of the Road Accident Fund Act 56 of 1996 (as amended). The court may also hear any evidence, etc.,[377] although this rarely happens. The following are some further distinctions between appeals and reviews: Section 24 of the Supreme Court Act also makes provision for review of other tribunals, etc. In 1991, McCarthy was arrested on a third warrant. [372] On receipt of the record, the case is considered by single judge of the High Court. The sources of South African criminal procedure lie in the Constitution, the Criminal Procedure Act (CPA), other statute law (for example, the Magistrates' Courts Act, the Supreme Court Act and the Drugs and Drug Trafficking Act) and the common law. REPUBLIC OF SOUTH AFRICA THE SUPREME COURT OF APPEAL OF SOUTH AFRICA Case number: 332/04 Reportable In the matter between: ROAD ACCIDENT FUND APPELLANT and MXOLISI RICHARD MTATI obo ZUKHANYE MTATI RESPONDENT CORAM: MPATI DP, ZULMAN, FARLAM, VAN HEERDEN et JAFTA JJA HEARD: 17 MAY 2005 DELIVERED: 1 JUNE 2005 SUMMARY: Delict – pregnant woman … all medical, hospital and autopsy reports; summaries of other expert evidence to be tendered by the State; and. Broome brought an application for an order permanently staying the prosecution based on section 35(3)(d) of the Constitution. [540] If confirmed on review, such amounts to a finding of presumed death. Furthermore, even if he had known that closing the State case would inevitably lead to discharge, that was the route he had followed. [581] Section 35 sets out what the assessment should encompass. [527], As the court put it in Marais v Tiley, "An inquest is an official investigation into a death occurring otherwise than from natural causes, which has not been the subject of a criminal prosecution. [185], The judge, when granting an amendment, may grant adjournment to the accused if he thinks fit. the right to be informed of the right to legal representation at State expense in certain circumstances. It is not simply a matter of contrasting simple and complex cases. Sections 26 to 33 contain detailed provisions about where a child who is not to be released shall be detained. [288][289], The court may itself call witnesses[290][291] where this is necessary for a just decision of the case. An example of the new provisions in practice is to be found in S v Sassin & Others. Although the effect of section 18 seems clear, writes Roberts, the exact legal nature of the provision is more elusive: In South Africa, civil prescription affects remedies, not rights, and is therefore part of the law of procedure, not the substantive law. The key factor is whether or not the convicted person will report for sentence. A preliminary inquiry is considered to be a first appearance as under section 50 of the CPA. There have been two types of constitutional challenge to section 37 thus far: As to the first type of challenge, the courts have consistently held that the taking of such samples does not violate one's right not to incriminate oneself. In terms of section 68, bail may also be cancelled by the court in the following circumstances: The court may release the accused on warning instead of bail. [178] A court may amend the charge at any time before judgment, if there is no prejudice in doing so to the accused, on one or more of the following grounds: Amendment is possible even if the original charge discloses no offence. See S v Mpetha. his own emotional and personal reactions of anxiety and stress, which necessitated the use of medically prescribed tranquillisers and sleeping tablets, together with the great strain placed on his limited financial resources by the drawn-out proceedings. Section 71 provides that a pre-sentencing report must be obtained before a child is sentenced. The Constitutional Court, in S v Steyn,[334] has declared these new provisions to be unconstitutional. The request is to be in writing. There is to be no cross-examination of the accused. Chapters 5 and 6 are both aimed at preventing profit from crime. [111] If he is absent, the court will issue a warrant for his arrest, and then decide the issue when the accused is present. This is because the trial has not commenced yet. [564] The court makes an order if there are reasonable grounds for believing the property is, "Instrumentality of an offence" is defined in section 1 as any property which is concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere, at any time before or after the commencement of the Act.[566][567]. It may rely instead on section 75. If a child is fourteen or older, imprisonment may only be imposed as a last resort. The magistrate found the accused not guilty and discharged him. The court held, seeking to be sensitive to the multilingual nature of South Africa, made a sort of exception for Dangatye. In the course of the judgment, Sachs J seems to state obiter that Chapter 2 of the CPA appears to be in line with constitutional requirements. In the Cape, murder was excluded in 1828; this position was perpetuated throughout the Republic until 1971, when the new CPA, instead of excluding specific offences from the operation of prescription, provided that prescription would not bar prosecution for offences "in respect of which the sentence of death may be imposed." In S v Zuma, the accused stood trial on one count of rape. Searched persons are only entitled to a copy of the warrant after its execution, however. description of the accused with regard to sex, nationality and age. The summary of substantial facts should contain adequate information so as to inform the accused of the allegations. A careful reading of Chapter 2 shows throughout a balancing of the interests of the individual and of society. [519], In terms of section 105A(8), if the court is satisfied that the sentence agreement is just, it informs the prosecutor and the accused accordingly, and then convicts and sentences as per the agreement. Section 119 concerns the appearance of the accused in a magistrate's court on a charge requiring trial in High Court. The mere use of a venue is not sufficient to render it an "instrumentality."[568]. [369] Ten counts of theft with a R100 fine on each count would therefore not be automatically reviewable, even though the total sentence would exceed R6000. Section 58 provides that, if the magistrate receives information that the child is not complying with a diversion order, a warrant for arrest may be issued. [98] The prosecutor, however, may waive this provision. [404] This means that all process in connection therewith is also issued in his name. [449] Once consent is granted to search, it may not be withdrawn at the seizure stage. They can be divided into two main categories, forms of homicide and other violent crimes. This will also help the court and the defence to follow the evidence. In terms of section 59A, the DPP, or a prosecutor authorised by the DPP, may authorise the release of a person on bail before his first court appearance if the accused is in custody on a Schedule 7 offence. Between the ages of ten and fourteen, there is a presumption against criminal capacity, which the state may rebut by way of proof beyond reasonable doubt.[578]. For a full discussion of Chapter 5, see S v Shaik. In other legal systems, the expression "double jeopardy" is sometimes used. Laws governing criminal trials are applied, with necessary changes, to the summoning of witnesses and the giving of evidence. On receipt of the magistrate's reasons, the judge refers the case to a court of the Provincial or Local Division of the High Court to treat as an appeal. 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