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Criminal Procedure In The Courts

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Criminal Procedure In The Courts

Reporting of the offence:

A crime has been defined as an unlawful, blameworthy act or omission. This definition is similar to that of a delict which has been described is an unlawful, blameworthy act or omission resulting in damage to another.

A Crime is part of Public Interest; therefore, it forms part of the Public Law whereby the State prosecutes a person for their actions.

In most scenarios, should an Offence have been committed by a perpetrator, the person who believes that they have had their rights violated (also called a Complainant) will notify the Police and open a case against the perpetrator.

The Complainant will then hand in their statements and any further Evidence for the case (also known as a Police Docket). A file is then opened and a case Number will be allocated.

The file is then sent to an Investigating Officer for further investigations.

Once their investigations are complete, they will then send it to the National Prosecuting Authority (NPA). The Prosecutors will then decide whether or not to proceed with a Warrant of Arrest, a Summons or alternatively not to proceed with the charge.

Summons/ Warrant

After a Summons has been issued, the Police will then Serve same on the person for him or her to appear at the specific Court on a specific day to begin the procedure of Pre-Trial and Post Trial.

The Summons will have the Charge for which a person will have been summonsed as well as at which Court to appear.

A warrant of Arrest is when the Police come to a person and arrest said person, for this person to then appear in court on account of that charge..

First appearance

As an accused person, you will appear at the Court for your first appearance to see what are the Charges and where the State is with its investigations. This is also where you will know more about the Charges against you, what schedule the Offences are and what type of bail will be needed (please refer to the bail article on the types of bail applications).

After determining the success of your bail, the case will then be postponed for further investigations or (if the latter is completed) disclosure. Disclosure is where the Prosecution hands over copies of all the documents and evidence collected which will be used in Court against the Accused. Usually once this has happened it will be agreed for postponement in order for the Accused to peruse and consider the evidence.

Once the Accused has perused the evidence, the Accused may decide whether or not it would be best to submit Representations to the State. This is a Letter to the Prosecutor motivating the grounds upon which the State has little or no case and there are no merits to prosecute. Alternatively, you may agree that you committed the Offence however seek to avoid having a criminal record and you would like to refer the matter for diversion.

Diversion is a system for first-time offenders charged with small crimes. They are given a chance to do community service, pay for damages resulting from the crime, undergo treatment for alcohol or drug problems, and/or counselling for antisocial or mentally unstable behaviour, etcetera. If the State accepts diversion as a route, it does amount to an admission by the Accused for which the punishment would then be anyone of the above acts.

Should the Representations fail, the matter will proceed to Plea and Trial and court dates will be allocated.

This is where the Accused will plead to the Charges before the Court. The general pleas are Guilty or Not Guilty, however, there are several type of pleas. Some of them are the following:

• Guilty – whereby you confess to all the elements of a Crime/Offence;

• Not Guilty – this is whereby you deny the allegations and the state must prove  their case beyond a reasonable doubt;

• Autrefois Convict – you have already been convicted of the same crime based on the same facts;

• Autrefois acquit – you have already been acquitted for the crime based on the same facts;

• Received a free pardon from the President;

• The Court has no Jurisdiction;

• You have been discharged from prosecution in terms of Section 204 of the Criminal Procedure Act after given satisfactory evidence; and

• The Prosecutor has no title to prosecute.


If the Accused pleads Guilty in terms of the Act, the Presiding Officer will question the Accused to ensure that this was made freely and voluntary, under no duress or undue influence. Should he/she be satisfied, the Prescribed Officer will charge and sentence the Accused. If the Prescribed Officer is not satisfied, then the Accused’s Plea will be changed by the Court to Not Guilty.

If the Accused chooses Not Guilty, the State will then begin their case against the Accused.

The State has to prove a case beyond a reasonable doubt in order to succeed on a charge (this is the Constitutional right in terms of Section 35 the Right to a fair trial and the right to be presumed innocent until proven guilty).


The State will begin with their case against the Accused.

They will call up its witnesses, including the Complainant if necessary, to give oral evidence to the Court on the incident. Once the State has finished questioning the witnesses, a chance is then given to the Accused (or his attorney) to cross-question or cross examine the witness. After cross-questioning, the State may re-examine to clarify. This procedure is repeated for each witness and is done individually.

Once the State closes its case, the Accused may apply for full discharge should the Accused feel that the State has not proven its case beyond a reasonable doubt. If this is not done, or if this request is denied by the Court, the Accused must then lead evidence as it his/her defence.

At the end of the Accused’s defence, the Presiding Officer with weigh up the evidence presented by both the State and the Accused. The Presiding Officer will then give its Judgment on the facts relating to the charge. If the Accused is convicted, then the second part of the trial (the sentencing) will proceed.


Bradley Cullingworth

Candidate Attorney

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