CPR3701 MCQ 46664
CPR3701 MCQ 46664
Hlonie @ vaal.
Green true
1. The notion of “open justice” establishes a protective function in respect of the fair-trial
rights of the accused.
2. Open justice can be limited in cases where the accused is in danger of being exposed
as a state informant.
3. The accused can testify by way of closed-circuit television in cases where an open
trial may cause him or her emotional or physical harm.
4. Witnesses are protected in cases of sexual assault and extortion by way of the court’s
discretion to “close the court”.
5. Irrespective of the charge, if a matter relates to an adult accused and complainant, the
court cannot exclude the public from the trial in the interests of justice.
6. The court, the prosecutor and the accused all have the power to subpoena witnesses.
7. The advantage of a joint trial is that it saves the state resources and time.
8. Joinder is permissive and not imperative.
9. The decision to separate a trial is at the discretion of the presiding officer.
CPR3701/101
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10. Cross-examination of a witness by the court is permissible within the bounds of
reasonableness.
11. The principle of equality of arms can be related to the competence of both the
prosecutor and the representative for the defence.
12. An ex-tempore judgment does not infringe on the right of the accused to a speedy
trial.
13. An improper delay in delivering judgment undermines public confidence in the
judicial system.
14. Community service as a condition of a suspended sentence is not considered a
punishment.
15. Most statutory offences are enacted with an attendant penalty clause.
16. Tradition seems to indicate that the state and the accused must supply the
information required by the court during trial on sentencing.
17. Compensation and restitution are forms of restorative sentences.
18. Review is not solely the domain of the CPA.
19. The Superior Courts Act does not provide for review in criminal proceedings.
20. Judicial review has a common-law origin.
21. Any conviction, sentence, or order of a lower court, and even a discharge after
conviction, are subject to leave to appeal.
22. An appeal on the facts relates to the merits of the matter in the trial court.
23. If the appellant files a notice of appeal after the prescribed period, he or she can
apply for condonation, although the court is not obliged to grant it.
24. Expungement takes place in one of three ways: automatically, on application or
when a certain period has lapsed.
25. The President is empowered to remit any fine, penalty or forfeiture within the
confines of the Constitution.
1. Open justice can be equated with the concept that justice must be “seen to be done”.
2. Open justice is protected by the right to a fair trial and is an absolute right.
3. The court cannot exclude any member of the public from the trial of an adult accused.
4. In cases where a witness for the state is about to abscond, the prosecutor may apply
for a warrant of arrest and have the said witness detained pending the trial.
5. Co-accused are ordered numerically.
6. The prosecution decides the numerical order of co-accused at a trial.
7. The court can of its own accord raise the issue of separation.
8. The principle of legality is constitutionally entrenched.
9. The principle of equality of arms is founded on equal opportunities being available to
both the state and the defence to prove their respective cases.
10. The merits of a case are the cardinal point of the court’s considerations when
determining whether to convict or acquit.
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11. Where required, the entire judgment of the court must be translated into a language
that the accused understands.
12. In cases where the charge pertains to multiple acts or omissions, the court must
deliver judgment separately on each individual charge.
5. Sentence is any measure which is applied by the court to the person convicted of a
crime, and which finalises the case.
6. Minimum In order to be fair, punishment must only suit society.
7. Minimum sentences are applicable to all crimes.
8. In general, youth is regarded as an aggravating factor in sentencing.
9. The term ‘forms of imprisonment’ essentially depicts separate kinds of imprisonment
rather than the description of terms of imprisonment.
10. The court must make enquiries into the means of the offender to pay the fine.
11. Both reviews and appeals are fundamentally aimed at setting aside convictions and
sentences.
12. Automatic review is of English law origin.
13. Extraordinary review proceedings apply in respect of criminal proceedings which are
not ordinarily subject to automatic review.
14. Criminal proceedings may not be reviewed after conviction but before sentencing.
15. Review may not be instituted at the instance of the prosecution.
16. The high court should, generally use its inherent review powers to interfere in lower
courts in respect of unterminated criminal proceedings against.
17. A declaratory order should only be granted in respect of a dispute between parties.
18. Appeal may be noted before the finalisation of the criminal trial, in order to right
patent wrongs in the proceedings.
19. A court of appeal does not possess the inherent power to correct the sentences of
lower courts.
20. In an appeal on a question of law the question is not whether the court of appeal
could have made the same finding but whether the trial court would have made such a
finding.
21. The Criminal Procedure Act does not, in general, allow the prosecution to appeal
against a decision on the merits or facts of a case.
22. The State President’s power to pardon offenders is Constitutionally mandated.
23. Expungement takes place in one of three ways: automatically, on application or
when a certain period has lapsed.
24. Presidential clemency is never subject to judicial review.
25. The essence of Presidential clemency and parole is that both processes are
restorative in nature.
1. The prosecutor is entitled to address the court at the opening of the State’s case.
2. The procedure in terms of which the prosecution asks questions to its own witnesses
is called cross-examination.
3. The procedure in terms of which the defence asks questions to the state witnesses is
called examination-in-chief.
4. The prosecutor must close his or her case after all the evidence of the prosecution
has been disposed of.
5. The test for a discharge is based on the question whether there is sufficient evidence
upon which a reasonable man might convict.
6. The court is not required to give reasons for its judgment.
7. Common assault is a competent verdict to a charge of murder.
8. A caution amounts to a sentence.
9. A minimum sentence may be imposed in respect of any offence with which the
accused has been convicted.
10. After convicting the accused, the court must forthwith sentence him or her without
hearing further evidence.
11. Previous convictions are regarded as a mitigating factor in sentencing proceedings.
12. Life imprisonment is a determinate form of sentence in the sense that the accused is
effectively incarcerated for the entirety of his or her lifetime.
13. The amount of the fine to be paid by the accused is left to the discretion of the
prosecutor.
14. An appeal is concerned with the substantive correctness of the decision based on
the facts or merits of the case on the record and the law relevant to such facts.
15. A review is concerned with the validity of the proceedings.
16. No review may be instituted at the instance of the prosecution.
17. The high court may order the proceedings of a lower court to start afresh upon
making a finding of procedural irregularity.
18. A declaratory order can only be granted where there is a dispute between parties.
19. The right of appeal is not Constitutionally mandated.
20. A member of the public is permitted to approach the Constitutional Court directly.
21. An appeal court has the general discretion to correct a sentence.
22. An appeal court is in a better position to make reliable findings of credibility.
23. In an appeal on a question of fact, it is the duty of the court of appeal to retry or
rehear the case on the record before the court together with any other evidential
material.
24. There is, in principle, no right to be pardoned.
25. The accused does not have further recourse beyond the process of appeal.
1. A criminal trial commences once an accused has pleaded in a court which has the
required jurisdiction to hear evidence.
2. The phrase “in the course of a criminal trial” refers to all procedures which may or
must be followed from the time the accused has pleaded until a verdict on the merits.
4. The seven fundamental principles which govern a criminal trial are trial fairness,
legality, judicial impartiality, equality of arms, judicial control, orality and finality.
5. At the end of a criminal trial, the court must consider and deliver its verdict based on
the state’s ability to satisfy its burden of proof. .
6. An extempore judgment is one in which the court postpones its judgment owing to the
complexity of the merits.
7. It is generally impossible for the accused to be convicted on another charge where the
prosecutor manages to prove the elements of that crime as opposed to the crime as
charged at the trial.
8. In cases where the accused is not legally represented, the court will be slow to
conclude that the absence of a warning concerning the applicability of competent
verdicts renders the trial unfair.
9. A sentence is any measure applied by a court to the person convicted of a crime and
which finalises the case, except where specific provision is made for reconsideration of
that measure.
10. All penalty clauses providing for the imposition of a fine must be read together with
Act 105 of 1997.
11. In practice, after conviction, the accused indicates his or her previous convictions.
12. Tradition dictates that the accused provides the information required by the court
during the trial for the purpose of sentencing.
13. The law is a precise instrument and therefore any consideration of what is deemed
cruel, inhumane and degrading conduct is based on the certainty of doctrinal law.
14. Declaration as a dangerous criminal is a sui generis sentence which negates the
traditional jurisdiction of the district court.
15. An habitual criminal is one considered by society to be potentially harmful.
16. Periodical imprisonment is a form of imprisonment where the convict serves periods
of his or her sentence on an outpatient basis at a psychiatric institute.
17. An accused who is dissatisfied with the decision of a lower court on fact or law may
bring the matter before a division of a higher court by way of appeal or review.
18. Judicial review is a process which allows a court to set aside a statute or provision
on the grounds of unconstitutionality.
21. The criteria for an acceptable limitation of rights are prescribed by section 39 of the
Constitution.
22. If an adult accused wishes to appeal the decision of a lower court, no leave to
appeal is required.
23. When it is alleged in a lower court that a law is constitutionally invalid, the decision
as to invalidity rests with the lower court, subject to review by a higher court on the basis
of section 171 of the Magistrates’ Courts Act.
24. Owing to the supreme nature of the Constitution, direct access to the Constitutional
Court is permitted regarding any issue relating to a procedural irregularity.
Question 1
a) Where a charge is defective for want of an averment which is an essential ingredient
of the relevant offence, the defect can be cured by evidence at the trial proving the
matter which should have been averred.
b) Section 86 makes provision for amendment of the charge and requires that the
proposed amendment must differ to such an extent from the original charge that it is in
essence another charge.
c) When the accused is called upon to plead to a charge and it appears uncertain
whether he or she is capable of understanding the proceedings at the trial so as to be
able to make a proper defence, an enquiry into his or her mental state must be made by
the court, with the assistance of a general medical practitioner.
d) Where an accused at a summary trial pleads not guilty, the presiding officer must
inform the accused that he or she is not obliged to answer any questions.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statements (c) and (d) are incorrect.
(4) Only statements (a) and (d) are correct.
(5) Only statements (a) and (d) are incorrect.
HINT FOR QUESTION 1: The accused is not compelled to make a statement in terms of
section 115 of the CPA and can put the state to the proof of all elements where he or
she chooses not to make any admissions. CMP3701/101
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question 2 +
a) An accused, or his or her counsel on behalf of the accused, may admit any fact
placed in issue.
b) Open justice can be limited where a witness is in danger of being exposed as a state
informant.
c) The notion of open justice establishes a protective function in respect of the fair-trial
rights of the accused.
d) In general, the accused is entitled to access exculpatory documentation in the docket.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statement (c) is incorrect.
(4) Only statement (d) is incorrect.
(5) Only statements (a) and (d) are incorrect.
HINT FOR QUESTION 2: Open justice is a form of openness as guaranteed by the
founding provisions of the Constitution, 1996.
Question 3
a) Where the legal adviser replies in writing or orally to any question by the court in
terms of section 115(3), the accused must also confirm this, but the court may not
require the accused to answer the questions personally.
b) At the trial in the regional court of an accused on a charge of murder, the judicial
officer must summon two assessors to assist him or her, unless the accused requests
that the trial proceed without assessors.
c) Section 112 can be used when an accused pleads guilty to a serious or less serious
offence.
d) It is possible for the accused to issue a written statement in terms of section 112.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statements (c) and (d) are incorrect.
(4) Only statement (b) is incorrect.
(5) Only statement (a) is incorrect.
HINT FOR QUESTION 3: An accused is entitled to legal representation at the trial, and
the legal representative acts as a shield between the accused and the court. The
representative is entitled to answer on behalf of a client, but the court has a duty to
ensure that the information put before the court is correct. 30
Question 4
a) Only the accused person appears in the dock.
b) Where persons are jointly charged, the mere possibility of prejudice is not sufficient to
justify an order for separation of trials in such a case.
c) Persons charged with separate offences alleged to have been committed at the same
time and place, or at the same place and about the same time, may be tried jointly
where the prosecutor informs the court that evidence admissible at the trial of one
person will also be admissible as evidence at the trial of another person or persons.
d) Generally, where no preparatory examination has been held, the indictment must be
accompanied by a summary of the salient facts of the case in order to inform the
accused of the allegations against him or her.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statements (c) and (d) are incorrect.
(4) Only statement (a) is correct.
(5) Only statements (a) and (d) are incorrect.
HINT FOR QUESTION 4: Every general rule has an exception that is applicable in
certain circumstances. The exception does not, however, completely exclude the
operation of the general rule in ordinary circumstances.
Question 5
a) If the accused’s refusal to plead is accompanied by such improper behaviour that it
obstructs the conduct of the proceedings of the court, the court may order his or her
removal and direct that the trial proceed in his or her absence.
b) When the accused is called upon to plead to a charge, and it appears uncertain
whether he or she is capable of understanding the proceedings at trial so as to be able
to put forward a proper defence, an enquiry into his or her mental state should be made.
c) Statutory plea bargaining in terms of section 105A of the Criminal Procedure Act
means that the prosecutor can now reach an agreement with the defence on the
sentence to be imposed.
d) The indictment must be served on the accused in accordance with the rules of court.
Service is complete the moment that the indictment is posted to the accused and
received by him or her.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statements (c) and (d) are incorrect.
(4) Only statement (d) is incorrect.
(5) Only statements (a) and (d) are incorrect.
HINT FOR QUESTION 5: The meaning of “return of service” is relevant when an
accused is served with a summons to appear at the trial. CMP3701/101
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Question 6
a) A charge sheet containing the following averments complies with all necessary
requirements in terms of section 84(1) of the Criminal Procedure Act 51 of 1977: “That
the accused is guilty of unlawfully and intentionally killing Joey Smith, an adult female on
the 21st of January 2001 at Groenkloof in the district of Pretoria.”
b) Where an accused is convicted of both driving under the influence of liquor and
reckless driving, and both counts are based on the same facts, this would not constitute
an incorrect duplication of convictions.
c) If assessors abscond during the trial without good reason and the magistrate
continues with the trial without them, this amounts to a fatal irregularity which vitiates the
proceedings.
d) Generally, where an accused is caught selling dagga, he or she may be convicted
only of selling and not also of possession of the rest of the unsold dagga.
Question 1
a) The Constitution entrenches the right to a public trial.
b) The right to a public trial can be validly limited where necessary.
c) In terms of the CJA, open justice is generally limited.
d) Open justice can be limited when the complainant is under the age of 18 years.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statements (c) and (d) are incorrect.
(4) Only statement (a) is correct.
(5) Only statements (a) and (d) are incorrect.
HINT FOR QUESTION 1: In terms of section 63(5) of the CJA, the presiding officer has
discretion to grant access to those whom the court considers necessary for the purpose
of a trial.
Question 2
a) In principle, an accused is entitled to access exculpatory documents in the docket.
b) Where an accused is charged with a common law offence, the only requirement is
that it be named in order for the charge sheet to be valid.
c) Sections 86 and 88 of the CPA make provision for the same action in respect of the
correction of a defect in the charge sheet.
d) Provided that the accused is not prejudiced, section 86 can be used to replace a
charge with another in the same matter.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statement (d) is incorrect.
(4) Only statement (a) is correct.
(5) Only statements (a) and (d) are correct.
HINT FOR QUESTION 2: Remember that section 88 is called the “silent cure”, whereas
you can consider section 86 as an “active cure”. CMP3701/101
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Question 3
a) Circuit courts deviate jurisdictionally from the fixed division or seat of court.
b) A child justice court is any court established in terms of the Children’s Act 38 of 2005.
c) A child justice court can simultaneously serve as a children’s court where a child
accused is affected by social or welfare issues.
d) During arraignment of an accused, assessors take an oath to deliver a true judgment
based on the merits of the case.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statements (c) and (d) are incorrect.
(4) Only statement (a) is correct.
(5) Only statements (a) and (d) are incorrect.
HINTS FOR QUESTION 3: A circuit court is a court that sits (i.e. hears a case) at a
venue other than the high court prescribed for a certain jurisdictional area. Do not apply
the principles of CIVIL PROCEDURE to this question, because the rules are different in
criminal cases. With regard to child offenders, and the powers of the child justice court,
make sure you consult section 50 of the CJA. Remember that a child justice court is a
criminal court, even though it must make decisions using a restorative-justice framework
and thereby ensure that the best interests of the child are served.
Question 4
a) Where the plea of an accused is ambiguous, the court must enter a plea of not guilty
and question the accused in terms of section 115 of the CPA.
b) Truth and public benefit constitute a valid plea in terms of section 106 of the CPA.
c) An accused cannot object to the information in a charge sheet or indictment, but can
object to the fact that such charge sheet or indictment discloses insufficient detail.
d) In traditional plea bargaining, the parties bind the court to a certain sentence in return
for a guilty plea.
(1) All of the statements are incorrect.
(2) All of the statements are correct.
(3) Only statements (c) and (d) are incorrect.
(4) Only statement (a) is correct.
(5) Only statements (a) and (d) are incorrect.
HINT FOR QUESTION 4: We no longer use the phrase “excepting to a charge” in South
African criminal courts. 20
Question 5
a) A charge sheet (or indictment) does not necessarily have to disclose an offence in
order to be valid.
b) An indictment must be served on the accused at most 14 days before the trial.
c) It is mandatory for the prosecution to attach a list of witnesses to the charge sheet.
d) The prosecution cannot deviate from the information in a charge sheet or indictment.
1. The notion of “open justice” establishes a protective function in respect of the fair-trial
rights of the accused.
2. Open justice can be limited in cases where the accused is in danger of being exposed
as a state informant.
3. The accused can testify by way of closed-circuit television in cases where an open
trial may cause him or her emotional or physical harm.
4. Witnesses are protected in cases of sexual assault and extortion by way of the court’s
discretion to “close the court”.
5. Irrespective of the charge, if a matter relates to an adult accused and complainant, the
court cannot exclude the public from the trial in the interests of justice.
6. The court, the prosecutor and the accused all have the power to subpoena witnesses.
7. The advantage of a joint trial is that it saves the state resources and time.
8. Joinder is permissive and not imperative.
9. The decision to separate a trial is at the discretion of the presiding officer.
1. Open justice can be equated with the concept that justice must be “seen to be done”.
2. Open justice is protected by the right to a fair trial and is an absolute right.
3. The court cannot exclude any member of the public from the trial of an adult accused.
4. In cases where a witness for the state is about to abscond, the prosecutor may apply
for a warrant of arrest and have the said witness detained pending the trial.
5. Co-accused are ordered numerically.
6. The prosecution decides the numerical order of co-accused at a trial.
7. The court can of its own accord raise the issue of separation.
8. The principle of legality is constitutionally entrenched.
9. The principle of equality of arms is founded on equal opportunities being available to
both the state and the defence to prove their respective cases.
10. The merits of a case are the cardinal point of the court’s considerations when
determining whether to convict or acquit.
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11. Where required, the entire judgment of the court must be translated into a language
that the accused understands.
12. In cases where the charge pertains to multiple acts or omissions, the court must
deliver judgment separately on each individual charge.
13. Some sentences do not constitute punishments.
14. In Rabie 1975 (4) SA 855 (A) 862G, the court summarised the general principles of
sentencing.
15. Imprisonment, committal to a treatment centre, a fine and correctional supervision
are the only sentences that can be imposed by a court.
16. Periodical imprisonment is a form of short-term imprisonment and is also informally
known as “weekend imprisonment”.
17. The Constitution secures a general right of review.
18. Fairness no longer entails enquiring whether there was a failure of justice, but
whether the trial was fair.
19. Review is more appropriate than appeal in cases where the accused is dissatisfied
with the procedures during the trial.
20. There is a general right of appeal in South Africa.
21. The right of appeal is justifiably limited by section 36 of the Constitution.
22. A person can appeal against the sentence imposed or the conviction – not both.
23. The Constitution empowers the President to pardon or reprieve offenders in certain
circumstances.
24. The President is empowered to remit any fine, penalty or forfeiture within the
confines of the Constitution.
25. The Department of Justice and Constitutional Development has the sole
responsibility to expunge records on application by the accused.
1. The right to a fair trial includes the right to a prosecutor who acts without fear, favour
or prejudice.
2. Section 186 of the Criminal Procedure Act empowers the court to recall witnesses
who have previously testified at the trial so that they can be examined by the court.
3. In terms of section 63(4) of the Child Justice Act, the court may not interfere in the
cross-examination of a child.
4. The court must control and manage the proceedings within the bounds of the law and
without sacrificing its impartiality.
5. The presiding officer must make sure that the accused understands the language
used by a witness.
6. The principle of finality demands that the state and the accused have an opportunity
to reopen their cases where they previously failed to examine evidence introduced in the
main trial.
7. Cross-examination partly by the accused and partly by his or her legal representative
must be avoided.
8. Section 174 (CPA) provides that, if there is no chance that the accused will
incriminate himself or herself during his or her defence, he or she must be discharged
from prosecution.
9. The so-called “Shuping test” is the constitutional test for section 174 (CPA).
10. An accused may not be discharged at the end of the state’s case if there is a
possibility that he or she will incriminate himself or herself during his or her defence.
11. The constitutional right of the public to justice demands that an application in terms
of section 174 (CPA) be denied if there is a reasonable possibility that the accused will
discharge the burden of proof in his or her defence.
12. In order to definitively prove the innocence of the accused, the defence may proceed
with its case even where the court has granted a section 174 (CPA) discharge.
13. The accused must be informed of the charge against him or her in sufficient detail to
answer it.
14. If there is no proof that the accused was a perpetrator or co-perpetrator or
accomplice in the crime charged, he or she may be convicted as an accessory after the
fact to the crime charged should there indeed be proof that he or she acted in such
capacity.
15. The court is functus officio after delivery of judgment.
16. Section 176 is primarily aimed at a situation where a court inadvertently sentences
the accused to punishment which, on further consideration, is too harsh.
17. A court has a wide-ranging sentencing discretion.
18. Rabie 1975 (4) SA 855 emphasised the role of the criminal, the crime and society in
the implementation of punishment.
19. If a court is satisfied that substantial and compelling circumstances exist which justify
a lesser sentence, it must deviate from the sentence prescribed.
20. After previous convictions have been proven, the accused is entitled to lead
evidence in aggravation of sentence.
21. As a general principle, young offenders are sentenced more leniently than adults.
22. A person convicted time and again for similar offences will progressively be punished
more severely.
23. One of the first decisions of a sentencing court is whether to remove the offender
from society or to punish him or her within the community.
24. Ordinary imprisonment for a term determined by the court is the most common form
of imprisonment.
25. Life imprisonment can only be imposed by a division of the high court, unless the
Criminal Law Amendment Act 105 of 1997 allows a regional court to impose
imprisonment for life.
26. The Criminal Procedure Act provides that any reference in a statute to a minimum
period of imprisonment of more than three months must be construed as a reference to
a period of exactly three months.
27. Courts do not have a wide discretion with regard to the imposition of a fine as a form
of sentence.
28. Sections 287(2), 288 and 289 of the Criminal Procedure Act provide the means by
which fines may be recovered.
29. In terms of section 172 of the Constitution, the Supreme Court of Appeal is a
competent court as a court of first instance on a constitutional matter.
30. In terms of section 172 of the Constitution, an association acting in the interests of its
members lacks locus standi in the Constitutional Court. 31. Any person may, by way of
the action procedure, approach any court to confirm an order of constitutional invalidity.
32. Access to courts competent to hear constitutional matters may be gained by way of
leave to appeal.
33. There is a vast difference between appeal and review proceedings, since only one
aims at setting aside a conviction or sentence.
34. A review may be brought against the finding of a lower court on any point of law
and/or fact, whereas an appeal may only be brought on the ground of a specific
procedural irregularity.
35. In an appeal, the parties are confined to what appears on the record, but, in a
review, it is permissible to prove any of the grounds for review.
36. A review is generally not permissible on a finding of fact, unless the finding is so
unreasonable that it constitutes an irregularity.
37. After the decision in Ntuli 1997 (2) SACR 19 (CC), all convicted persons had an
absolute or unlimited right of appeal.
38. Evidence of certain formal matters may be given by way of affidavit but is subject to
the right of the opposing party to object to such evidence.
39. Where a magistrate has made a mistake in the recording of the evidence, he/she
cannot correct the mistake after sentence as he/she is then functus officio.
40. It is accepted practice that the prosecutor in a superior court trial is obliged to call all
the witnesses who made depositions at the preparatory examination.
41. Where an accused has more than one legal representative, only one of the
representatives is permitted to cross-examine any particular state witness.
42. If an accused’s application for discharge at the end of the state’s case is successful,
the director of public prosecutions (or public prosecutor) may appeal in terms of section .
43. The legislature did not specially provide for an “accessory before the fact” as a
competent verdict on a charge of having committed an offence. However, such a person
can be charged and punished as a principal offender.
44. All sentences should take into account only the (so-called) main purposes of
punishment, namely retribution, deterrence, prevention and rehabilitation.
45. In the United States of America, the death penalty itself has not been held to be
unconstitutional.
46. In terms of the Constitution, the Constitutional Court found the death penalty not to
be cruel, inhuman and degrading.
47. Life imprisonment is an indeterminate sentence, because, when it is imposed, it is
unknown for how long the offender will be imprisoned.
48. A court may discharge an offender with a mere caution and, although the discharge
has the effect of an acquittal, the conviction is still recorded and counts as a previous
conviction.
49. A full court is a court of appeal and not a court of first instance, and, consequently, a
criminal trial cannot be conducted before such a court.
50. A child justice court is any court properly constituted in terms of the Children’s Act 38
of 2005.
Question 1
(a) A charge sheet containing the following averments complies with all necessary
requirements in terms of section 84(1) of the Criminal Procedure Act 51 of 1977: “That
the accused is guilty of unlawfully and intentionally killing Joey Smith, an adult female on
the 21st of January 2001 at Groenkloof in the district of Pretoria.”
(b) Where an accused is convicted of both driving under the influence of liquor and
reckless driving, and both counts are based on the same facts, this would not constitute
an incorrect duplication of convictions.
(c) If assessors abscond during the trial without good reason and the magistrate
continues with the trial without them, this amounts to a fatal irregularity which vitiates the
proceedings.
(d) Generally, where an accused is caught selling dagga, he or she may be convicted
only of selling and not also of possession of the rest of the unsold dagga.
1. A criminal trial commences once an accused has pleaded in a court which has the
required jurisdiction to hear evidence.
2. The phrase “in the course of a criminal trial” refers to all procedures which may or
must be followed from the time the accused has pleaded until a verdict on the merits.
3. A criminal trial can be broadly described as a state-sponsored, public, judicial and
primarily oral hearing.
4. The seven fundamental principles which govern a criminal trial are trial fairness,
legality, judicial impartiality, equality of arms, judicial control, orality, and finality.
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5. At the end of a criminal trial, the court must consider and deliver its verdict based on
the state’s ability to satisfy its burden of proof.
6. An extempore judgment is one in which the court postpones its judgment owing to the
complexity of the merits.
7. It is generally impossible for the accused to be convicted on another charge where the
prosecutor manages to prove the elements of that crime as opposed to the crime as
charged at the trial.
8. In cases where the accused is not legally represented, the court will be slow to
conclude that the absence of a warning concerning the applicability of competent
verdicts renders the trial unfair.
9. A sentence is any measure applied by a court to the person convicted of a crime and
which finalises the case, except where specific provision is made for reconsideration of
that measure.
10. All penalty clauses providing for the imposition of a fine must be read together with
Act 105 of 1997.
11. In practice, after conviction, the accused indicates his or her previous convictions.
12. Tradition dictates that the accused provides the information required by the court
during the trial for the purpose of sentencing.
13. The law is a precise instrument and therefore any consideration of what is deemed
cruel, inhumane and degrading conduct is based on the certainty of doctrinal law.
14. Declaration as a dangerous criminal is a sui generis sentence which negates the
traditional jurisdiction of the district court.
15. An habitual criminal is one considered by society to be potentially harmful.
16. Periodical imprisonment is a form of imprisonment where the convict serves periods
of his or her sentence on an outpatient basis at a psychiatric institute.
17. An accused who is dissatisfied with the decision of a lower court on fact or law may
bring the matter before a division of a higher court by way of appeal or review.
18. Judicial review is a process which allows a court to set aside a statute or provision
on the grounds of unconstitutionality.
19. No right, whether entrenched or not, is absolute.
20. Constitutional matters include issues of interpretation, protection or enforcement of
the Constitution.
21. The criteria for an acceptable limitation of rights are prescribed by section 39 of the
22. If an adult accused wishes to appeal the decision of a lower court, no leave to
appeal is required.
23. When it is alleged in a lower court that a law is constitutionally invalid, the decision
as to invalidity rests with the lower court, subject to review by a higher court on the basis
of section 171 of the Magistrates’ Courts Act.
24. Owing to the supreme nature of the Constitution, direct access to the Constitutional
Court is permitted regarding any issue relating to a procedural irregularity.
25. It is a general rule that there is no appeal before conviction.
26. A court of appeal can only interfere with the sentence of a lower court where that
court (the lower court) failed to exercise its discretion judicially in a proper and
reasonable manner.
27. An appeal court is ordinarily loath to interfere with the findings of a trial court on
questions of fact.
28. If an appellant who has noted and prosecuted his or her appeal fails to appear, the
court may summarily dismiss the appeal as a consequence of non-appearance.
29. A court of appeal can hold an inspection in loco.
30. For purposes of appeal, it is important to have a reliable record of the proceedings of
the trial court.
31. A division of the high court has jurisdiction over all persons who reside or are present
within its area of jurisdiction, and it has the power to hear and determine appeals from all
lower courts within its area of jurisdiction and to review the proceedings of all such
courts.
32. A fugitive convicted person may not appeal.
33. Where the grounds of appeal contain several issues and conflicts of fact, it is
important for the magistrate to know what the issues are in order for him or her to deal
with them in the reasons for judgment.
34. Where an appeal is not noted within the time periods indicated by the Criminal
Procedure Act and the Magistrates’ Courts Act, the court can condone the lateness and
allow the appeal to proceed.
35. An appeal brought under section 327 (CPA) must be disposed of by a division of the
high court with appeal jurisdiction after each party is afforded the opportunity to present
oral argument in open court.
36. The prosecution, in line with the English approach, may prosecute an appeal on the
facts.
37. The Constitution empowers the President to pardon or reprieve offenders.
38. The Indemnity Act 35 of 1990 and the Further Indemnity Act 124 of 1992
empowered the President to grant any person either temporary amnesty or immunity.
39. In the case of an adult offender, it is possible for his or her record to be expunged
automatically, on application or after a fixed period.
40. In the case of a child offender, his or her record is expunged automatically at the age
of 18.
41. When an accused person challenges the correctness of his/her conviction and/or
sentence by a lower court, the correct procedure to be followed is that of review.
42. In order to reconstruct a lost record, the recalling of witnesses who gave evidence
during the trial would be irregular.
43. When a review judge directs a query to the magistrate who presided over the
criminal case under review, the latter may at any time when it suits him/her and in any
manner respond to such a query.
44. All courts have the power to exclude improperly obtained evidence and this power
does not fall exclusively within the jurisdiction of courts of review and appeal.
45. If the magistrate, in a procedurally correct manner, performs his/her functions in a
proper and regular way but comes to a wrong conclusion on the merits, no application
may be made to the court of appeal before conviction.
46. A question of law arises only when the facts upon which the trial court based its
judgment could have a legal consequence other than that which the trial court found.
Accordingly, whether the trial court’s factual findings are right or wrong is the only
relevant factor in order to determine whether the court erred in law.
47. A third party who has an interest in a verdict of guilty or in a subsequent order has
locus standi in iudicio to appeal.
48. Leave to appeal is not required where the convicted person was, at the time of the
commission of the offence, at least 14 years of age but below the age of 21 years, was
not assisted by a legal representative at the time of conviction in a regional court, and
was sentenced to any form of imprisonment as contemplated in section 276(1) that was
not wholly suspended.
49. Before any evidence is led, the prosecutor is entitled to address the court for the
purpose of explaining the charge and opening the evidence intended to be adduced for
the prosecution, but without comment thereon.
50. In a criminal trial, an accused may decide to present his/her evidence either viva
voce or by means of a written statement.
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Question 1
(a) A charge sheet (or indictment) does not necessarily have to disclose an offence in
order to be valid.
(b) An indictment must be served on the accused at most 14 days before the trial.
(c) It is mandatory for the prosecution to attach a list of witnesses to the charge sheet.
(d) The prosecution cannot deviate from the information in a charge sheet or indictment.