Part One

Question 1

In understanding and assessing the per trial investigative procedure what sections of the Constitution must you refer to?
-8 sections

Answer 1

Section 10- human dignity,
Section 12 (1)(a-e)- right to freedom and security of persons
(2)(a-c)- bodily and psych. Integrity
Section 14- privacy
Section 21- freedom of movement and residence
Section 25- property rights
Section 35(1)(a)- right to remain silent
Section 35(3)(h)- to be presumed innocent, to remain silent, and not to testify during the proceedings;

Question 2

What is the importance of per trial investigative procedures?

Answer 2

They inform the extent to which the state may have grounds to proceed with criminal prosecution. They also determine the extent to which the state is entitled to encroach upon fundamental rights of freedom and security of person and property and the right o a fair trial. The state tests its strengths and weaknesses.

Question 3

How is official public governmental power lawfully exercised?

Answer 3

It must be done in accordance with a derivative source. This source is usually in the form of an act of parliament. On the other hand, a fundamental contained in the BOR, such as right to privacy (s14) can be limited in terms of s36 of the Constitution, a person is permitted to do so on the basis that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Question 4

What happens when individuals act outside of limitations in accordance with s36 of Constitution?

Answer 4

Individuals acting outside such limitations act unlawfully resulting in unlawful conduct with the following consequences:

1) Victim of unlawful arrest or search and seizure may institute civil proceedings against the state official.
2) A criminal charge can be laid for unlawful conduct; and
3) S35(5) of the Constitution provides that evidence obtained in a manner that violates a fundamental right of the Constitution must be excluded if the admission thereof would render the trial unfair.

Question 5

With reference to s 49 of the CPA, an arrestor may use force if there are reasonable grounds to do so. What must be present for something to be reasonable?

Answer 5

1. A suspicion based on reasonable grounds
2. Reasonable grounds forming the basis of a belief or suspicion must be grounded upon:
   2.1) what the person ACTUALLY believes or suspects
   2.2) the belief or suspicion is based on certain(objective)
   grounds; and
   2.3) if in the circumstances, any reasonable person would
   Would’ve also entertained such beliefs.

Question 6

Why should the force that is reasonably necessary to overcome a person resisting arrest or preventing a person from fleeing, be narrowly interpreted in a constitutional democracy?

Answer 6

For the simple reason that it gives the arrestor a degree of discretion to invade another’s fundamental right of freedom, privacy or property.
Whether a person exceeds the bounds of what is reasonable should be adjudicated in terms of the principle of legality.

Question 7

What source of authority provides for the securing of the presence of the accused at trial, and what are the methods that may be used to do so?

Answer 7

The CPA is the source that provides for the securing of presence of the accused at trial, and s38 provides the following four methods to be used:

1. Arrest,
2. Summons,
3. Written notice,
4. Indictment

Question 8

In what instance is a summons used to secure an accused’s attendance at trial?

Answer 8

This takes place for purposes of trials in a lower court where the accused has not been placed under arrest, neither is there any likelihood of the accused absconding or interfering with the course of the police investigation.

Question 9

What is the procedure that must be followed when a summons is used to secure attendance of an accused?

Answer 9

The procedure is as follows:

• after the prosecutor has perused the docket, he will draw up a charge sheet consistent with the docket;
• The charge sheet, containing all the particulars of the accused, is given to the clerk of the court, who then issues a summons containing the charge. The summons informs the accused of the time, date and place when he is to appear in court;
• The clerk of the court hands the summons to someone who is authorized to serve same, usually a police official; and
• Service of the summons is by way of delivery to the person named therein, i.e. personally at their place of residence or workplace or handing it to someone apparently over the age of 16 residing or employed thereat.

Question 10

What is a significant feature of a summons?

Answer 10

• It is valid throughout RSA and may be served anywhere within the borders of the RSA;
• It may be transmitted by telegraph and service of a copy thereof has the same effect; and
• Service is to take place at least 14 days before trial.

Question 11

What happens to a person who fails to appear at the hearing pursuant to a return of service reflecting valid service?

Answer 11

Such a person is guilty of an offence and liable to a fine or imprisonment not exceeding 3 months. In addition, the court can issue a warrant in which its stated that the accused can choose between paying an admission of guilt charge in respect to the offence stipulated in the charge and the fine as stipulated in the summons without having to appear in court.

Question 12

When is a Written Notice used to secure appearance of an accused in court?

Answer 12

This takes place where a peace officer on reasonable grounds believes a magistrate’s court upon conviction of an accused, whether accused is in custody or not, will not impose a fine exceeding the sum of R2500 , he may hand the accused a written notice.

Question 13

What is contained in a Written Notice?

Answer 13

• Personal details of the accused;
• Calling on the accused to appear in court on certain date, place and time to answer a certain charge;
• An endorsement in terms of s57 to the effect that the accused may admit guilt in respect of the offence and pay a stipulated fine without appearing; and
• A certificate signed by a peace officer that he has handed the original notice to the accused and explained the content and import to him.

Question 14

What will happen to an accused who fails to respond to such a notice?

Answer 14

An accused who fails to respond to such a notice will have imposed on him the consequences of s55 with regard to the summons set out above (s56(5)).

Question 15

What is an indictment?

Answer 15

The noun ‘indictment’ is just another term referring to a formal written document containing a criminal charge against someone. The term refers to the document drawn up in criminal proceedings in a superior court containing all the necessary info of the personal details of the accused and the charge.

Question 16

When and how must an indictment be served on the accused?

Answer 16

The indictment must be served on the accused at least 10 court days before the trial hearing, save where the accused agrees to a shorter period. An indictment is handed to the accused in the same way as a summons or by a magistrate committing (transferring) the matter for hearing to the High Court.

Question 17

An arrest is potentially the most invasive form of any human being’s fundamental rights. Accordingly, what are the principles that have been conceived and confirmed as jurisdictional prerequisites for a lawful arrest in terms of Minister of Safety and Security v Sekhoto? - 5 things

Answer 17

1. An arrest must have been properly authorised;
2. The arrestor must have proper physical control over the arrestee;
3. The arrestee is to be informed of the reason for arrest (s35(2)(a)) of the Constitution;
4. Where a child is arrested the arresting officer must inform the parent or legal guardian or appropriate adult of the child in terms of the Child Justice Act 75 of 2008;
5. The arrestee must as soon as possible after the arrest be take to the appropriate authorities.

Question 18

What requirements have evolved justifying the employment of force in a arresting a person? - 8 requirements

Answer 18

1. Suspect must have committed an offence or arrest ore must have a reasonable suspicion that and offence has been committed- suspicion will be assessed objectively;
2. Arrestor must be lawfully entitled to effect the arrest;
3. An attempt must first be made to arrest the suspect;
4. Force must be used with the intent of bringing the offender to justice and not merely mete out punishment;
5. The must be an attempt on the part of the suspect to escape or flee;
6. Suspect must be aware of the fact that there is an attempt being made to arrest him and in the face of such attempt attempts to flee;
7. No other means must be available to effect the arrest other than the force that has been used; and
8. Degree of force must be reasonably necessary and proportionate in all circumstances.

Question 19

When will an arrest Warrant be used to secure the appearance of the accused?

Answer 19

Upon written application of a prosecutor, the DPP, or police officer, a magistrate or justice of the peace may issue a warrant of arrest for a person.

Question 20

What must an application for an arrest Warrant include?

Answer 20

It must:

• Set out the offence alleged to have been committed;
• Allege the offence took place within area of jurisdiction of the magistrate. Or in the case of a justice of the peace, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where the offence is not committed in the jurisdiction, that the suspect is reasonably suspected of being in such.

Question 21

Who may execute a warrant of arrest?

Answer 21

1. A peace officer (incl. Magistrate, justice of peace, police official, member of correctional services.) ;
2. Police officials not wearing uniforms provided that the warrant was shown and explained to the arrestee and that the arrestee knew that he was being arrested by the SAPS;

• the person affecting the arrest must upon demand from the arrestee hand her a copy of the warrant in terms of s39(2)

Question 22

When does a peace officer have the power to arrest without a warrant?

Answer 22

Section 40 of the CPA empowers a peace officer to arrest any person in any one of the following circumstances:
1. A person who commits or attempts to commit a crime in his presence;
2. Any person whom he reasonably suspects of having committed a schedule 1 offence, other than escaping from lawful custody.
(Check schedule 1 offences)

Question 23

What happens when a person who has been placed under arrest refuses to provide his full names and address, or is reasonably suspected by the peace officer to have given false info.?

Answer 23

The person may be lawfully detained for a period not exceeding 12 hours for purposes of the info to be verified (s41(1)). Failure to provide full names and an address, or false info, can incur a penalty of imprisonment (not exceeding 3 months s41(2) CPA) without the option of a fine.

Question 24

Following an arrest, what must take place? - 3 things

Answer 24

1. The arrested person is to be taken to a police station ASAP and to be detained for not longer than 48 hours (s50);
2. Where no charges are or can be brought against him within the aforesaid period he must be released;
3. It’s is during this 48 hr period where the accused has his ‘first appearance’ in court where either a charge is put to the accused, but where in practice the accused is usually informed in general terms of the reason for the detention and the matter is remanded for further investigation or for plea and trial. Alternatively accused is granted bail or released on warning pending the trial.

Question 25

What fundamental right is impeded on in search an seizure processes?

Answer 25

It interferes with a person’s s14 right to privacy. Yet in balancing the interests of protecting the community against combat of crime, these rights can sometimes be limited in terms of s36 limitation clause in the constitution.

Question 26

What articles may be seized?

Answer 26

The law doesn’t countenance arbitrary searches. Articles susceptible to search and seizure in terms of s20 of CPA are those:

1. Used in or reasonably believed to have been used in a commission of a crime;
2. That may afford evidence of the commission of a crime;
3. Intended to, or reasonably believed to be intended to be used in commission of a crime.

Question 27

What articles are exempt from seizure?

Answer 27

Articles that are privileged and which in respect the holder has not waived or relinquished her privilege are exempt from seizure, such as a letter between an attorney and client. This privilege does not, however, protect communications of an unlawful nature.

Question 28

Who may issue a search warrant?

Answer 28

Section 21 governs the procedures relating to the granting of search warrants, and provides that search warrants may only be issued by:

1. A magistrate or justice of the peace in whose jurisdiction the article or person is believed to be;
2. At judge or judicial officer in criminal proceedings, if the article is required as evidence at such proceedings.

Question 29

What must the warrant include?

Answer 29

The warrant need not identify the exact nature of the offence, however must identify the purpose of the search and the articles to be seized. A warrant may be executed anywhere within RSA and at any time. Due to the extent to which it violates the fundamental rights of individuals, it will always be restrictively interpreted.

Question 30

When may a search take place without a warrant?

Answer 30

1. If the person consents thereto;
2. If the police official reasonably believes that if he were to apply for a warrant it would be issued to him, but the delay would defeat the object of the search. Such belief must be objectively justified.
3. At a roadblock or checkpoint where the National or Provincial Commissioner of the SAPS may, in terms of s13(8) of the SAPS act, in writing authorise a member under his command to set up a road block on a public road in a certain area.