These divisions are not absolutely watertight The Child Justice Act, 2008,[3] in operation since April 2010, has introduced numerous changes to criminal procedure insofar as it affects minors (persons under the age of eighteen).
It was recently held that this is no longer the position, and that now the potential arrestor must also consider whether arresting the suspect would be reasonable in the circumstances,[28][29][30][31] but the Supreme Court of Appeal (SCA) has since differed from this line of case law, effectively reinstating Tsotsi.
If officials detain a person without lawful authority, the detainee, or someone on his behalf, may bring an interdictum de homine libero exhibendo application, which is a special type of mandamus, to compel his release.
A Schedule 7 offence is generally slightly more serious than that for which police may fix bail under section 59: for example, culpable homicide, assault, grievous bodily harm, robbery, theft and fraud (where the amount involved does not exceed R20,000) and possession of drugs.
In considering whether or not there is a likelihood that the accused, if released, would endanger the safety of the public or an individual, or would commit a Schedule 1 offence,[69] the court takes the following into account: Certain of these grounds are part of the common law on bail.
In considering the likelihood that the accused will attempt to influence or intimidate witnesses, or conceal or destroy evidence,[78] court takes into account the following: Certain of these grounds are part of the common law.
[154][155][156] The types of situations described above frequently take the following forms in practice: Also noteworthy is the unusual case of Minister of Safety and Security v Gaqa, where the High Court granted the police an order permitting the surgical removal of a bullet from a suspect's leg to compare it with a firearm used on the scene of the crime.
[366] The court of appeal, in considering a review after receipt of the magistrate's reasons (or where this step is skipped), may have the case set down for argument by the Director of Public Prosecutions and counsel.
Among the implications of the above is that In NDPP v Zuma, the court held that the Attorney-General is required by convention to make prosecutorial decisions without regard to political considerations, and may not subject his discretionary authority to that of government.
The NPAA requires members of the prosecuting authority to serve impartially, and to exercise, carry out or perform their powers, duties and functions in good faith and without fear, favour or prejudice, subject only to the Constitution and the law.
The applicant in that case had been expelled from his post in the Directorate of Special Operations, and subsequently had been prosecuted for defeating the ends of justice on various counts arising from alleged offences committed in the course of his duties as an investigator.
The Crown's discretion was reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that it will impair the right of the accused to make full answer and defence.
The court noted that the State is entitled to resist a claim by the accused for access to any particular document in the police docket The appellant in S v Yengeni was initially charged with corruption and fraud.
The Court held that the practices of the past, whereby the State retained tight control of almost all available information relevant to a criminal prosecution, was inconsistent with modern values of openness and accountability in a democratically oriented administration.
He brought an appeal on several grounds, but the most important for present purposes is his contention that certain persons whose names were mentioned in the evidence as prostitutes who resorted to this place were not called as witnesses.
The matter was referred to the High Court on special review, on the basis that the prosecutor's actions amounted to a stopping of the prosecution, and that, in terms of section 6(b) of the Criminal Procedure Act, 1977, this could be done only with the consent of the DPP.
The court held that the provisions of section 18 of the Criminal Procedure Act, 1977 were clear and unambiguous, and provided for the lapsing of the right to prosecute after the expiration of a period of twenty years from the date of the offence in the case of every crime other than one in respect of which the death penalty may be imposed.
The amendments to the Criminal Procedure Act, 1977 came into operation in 1998, subsequent to the decision in S v De Freitas, and included the current list of exceptions to the twenty-year prescription period, which happen to be the same crimes as those for which the death sentence could have been imposed prior to 1994.
The crux of the appellant's case was that an unreasonable and inexcusable delay in the prosecution of this matter had resulted in a serious infringement of his right to a speedy trial as contained in s25(3)(a) of the interim Constitution.
The rights primarily protected were perceived to be The court noted that the very nature of the criminal justice system was aimed at punishing only those whose guilt had been established in a fair trial, prior to which the accused was presumed innocent.
In addition to forms of social prejudice, the accused was also subjected to invasions of liberty, ranging from incarceration, or onerous bail conditions, to repeated attendance at remote courts for formal postponements.
The areas of prejudice raised by the defence relating to finance, career advancement, widespread media coverage and social pressures on him and his family were not trial-related; they impacted on him personally, as they would on any accused involved in a high-profile trial.
It was averred that the unacceptable long delay in bringing the prosecution—the investigation was completed in 1997 and prosecution only lodged in 2004—and the loss of audit records impaired B's ability to prepare and mount a proper defence to the charges.
Chapter 2 of the Criminal Procedure Act, 1977 deals with the issue of search warrants, entering of premises, seizure, forfeiture and disposal of property connected with offences.
[452] Similar provisions apply to any vehicle, container or other article used for a crime relating to illicit drugs or liquor, precious metals or stones, housebreaking or theft.
In Mistry v Interim National Medical and Dental Council of South Africa, the Constitutional Court struck down a provision in other legislation giving sweeping powers to inspectors to search and seize without warrant.
In addition, a fair trial requires that any application for legal aid is carefully and completely noted in such a way that another court which is later burdened with the matter is properly apprised of that fact.
For an example of the application of the principle, see S v Whitehead, where the court ruled in the circumstances of the case that convictions of culpable homicide and public violence would constitute improper duplication.
The Preamble to Act refers to the rapid growth of organised crime, its threat to the economic stability of country, the inadequacy of the common law to deal with the problem and the failure to keep pace with international measures.
"Compelling reasons" include: Whatever method of securing attendance is adopted, there is an obligation to inform a probation officer of the fact of notice, summons or arrest, as the case may be, as soon as possible, but within a maximum period of 24 hours.