1997AnnSurvSAfricanL629

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Citation: 1997 Ann. Surv. S. African L. 629 1997

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CRIMINAL PROCEDURE

ANDREW SKEEN*

LEGISLATION

ABOLITION OF CORPORAL PUNISHMENT AcT 33 OF 1997

The Act provides that any law which authorizes corporal punish-ment by a court of law, including a court of traditional leaders, isrepealed to the extent that it authorizes such punishment. Th eimpetus to this legislation was no doubt given by the finding ofthe Constitutional Court in S v Williams 1995 (3) SA 632 (CC); 1995(2) SACR 251 (see 1995 Annual Survey 606) that juvenile corporalpunishment was contrary to the interim Constitution. The legisla-tion, it should be noted, applies to corporal punishment in respectof both adults and juveniles.

CRIMINAL PROCEDURE AMENDMENT Acr 76 OF 1997

The Amendment Act repeals s 305 of the Criminal ProcedureAct 51 of 1977. Section 305 provided that no person who wasconvicted by a law court an d serving a term of imprisonment wouldbe entitled to prosecute an appeal in person unless a judge had

certified that there were reasonable grounds for review. This repealfollowed the ruling of the Constitutional Court in S v Ntuli 1996 (1)SA 1207 (CC); 1996 (1) SACR 94; 1996 (1) BCLR 141 (see 1996Annual Survey 732-3) that s 305 was unconstitutional. Parliamentwas given until April 1997 to remedy the defects in the section.Parliament did not act timeously and the government asked theConstitutional Court for an extension which was refused.

Section 309 of the Criminal Procedure Act was amended by theaddition of subsec (3A) which allows for an appeal from a lowercourt to be disposed of by a High Court in chambers on the written

argument of the parties or their legal representatives, if the partiesagree thereto an d the Judge President so directs.

Section 309B was added and requires an accused who wishes toappeal against an order or decision of a law court to apply within 14days or such extended period as may be allowed to that court forleave to appeal. Procedural details are provided for. An accused maynow orally apply for leave to appeal immediately after the makingof the decision or order an d must state the grounds on which the

* BA (Hons) (Rhodes) BL (Hons) LLB (Rhodesia) M Phil (Cantab), Legal

Practitioner, Zimbabwe, Professor of Law in the University of the Witwatersrand,Johannesburg.

HeinOnline -- 1997 Ann. Surv. S. African L. 623 1997


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630 ANNUAL SURVEY OF SA LAW

appeal is based. Such ground must be taken down in writing andform part of the record.

Where it is shown by affidavit (a) that further evidence whichwould presumably be accepted as true is available, (b) that if acceptedcould reasonably lead to a different decision or order, and (c) savein exceptional cases, that there is a reasonably acceptable explana-tion for the failure to produce the evidence before the close of thetrial, the court hearing the application for leave to appeal mayreceive that evidence and further evidence rendered necessarythereby, including evidence called in rebuttal by the prosecutor andevidence called by the court. Such evidence will be deemed to havebeen given at the trial.

Section 309C has been added to the principal Act and providesfor a petition procedure if leave to appeal under s 309B has beenrefused. The petition must be addressed to the Judge President ofthe High Court havingjurisdiction. The petition must be consideredby two judges in chambers. Provision is made for the situation wherethere is a difference of opinion between the two judges.

Section 309D, also a new addition to the principal Act, requiresa court to advise an unrepresented accused, who has been convictedand sentenced, of his or her rights in respect of appeal and legalrepresentation. The court must also advise as to the correct proce-

dures to give effect to these rights. Likewise the court must in-form an unrepresented accused whose application in terms ofs 309B has been refused of his or her rights in respect of s 309Cproceedings.

CRIMINAL PROCEDURE SECOND AMENDMENT ACT 85 Or 1997

The Criminal Procedure Act 51 of 1977 was further amended bythe Criminal Procedure Second Amendment Act. Section 50 of theprincipal Act, which deals with the procedure after arrest, wasamended to refine the provisions requiring appearance of an arrestedperson in court within 48 hours: ordinary court hours are definedto mean the hours from 09h00 to 16h00 on a court day. A substitutedsubsec (6) provides that an arrested person is not entitled to bebrought to court outside ordinary court hours for an application tobe released on bail. Bail applications in respect of Schedule 6 offencesmay only be considered by a regional court. Schedule 6 offences includethe following. First, murder when planned or premeditated andwhere the victim was a law-enforcement officer (whether on duty ornot, so long as he or she was performing his or her functions as such,or who was killed by virtue of his or her holding such a position) ora person who had given or was likely to give evidence in respect of



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a Schedule 1 offence. Also included in this first category of offenceis the situation where the death of the victim occurred during, afteror during an attempt to commit, rape or robbery with aggravatingcircumstances; and where the offence was committed by a person,group or syndicate in the execution or furtherance of a commonpurpose or conspiracy. Second, rape in circumstances where (i) thevictim was raped more than once, (ii) by more than one personwhere common purpose existed, (iii) the accused is charged withcommitting two or more rapes, or (iv) the accused knew he hadAIDS or HIV. Rape is also a Schedule 6 offence where the victim wasunder 16 years of age, or was physically disabled or mentally ill, orwhere grievous bodily harm was inflicted. Third, robbery involvingthe use of a firearm, the infliction of grievous bodily harm or thetaking of a motor vehicle. Fourth, indecent assault on a child underthe age of 16 years involving the infliction of grievous bodily harm.Fifth, any Schedule 5 offence where the accused has previously beenconvicted of a Schedule 5 or a Schedule 6 offence or which wasallegedly committed whilst the the accused was released on bail inrespect of a Schedule 5 or 6 offence.

It is provided that an attorney-general or a duly authorizedprosecutor may, where the regional court is not, due to exceptionalcircumstances, available, direct that the bail hearing be held by someother available lower court within the area of jurisdiction of theregional court concerned.

Section 59A has been inserted and allows an attorney-general ora prosecutor authorized by him or her to authorize release on bail inrespect of Schedule 7 offences after consultation with the investigat-ing officer. Schedule 7 contains most common-law offences notreferred to in Schedule 6 with, in some cases, a monetary limit ofthe amount involved in the case.

Section 60 (11) has been substituted and now requires that wherean accused is charged with a Schedule 6 offence, the court must

order that the accused be detained in custody unless the accused,having been given a reasonable opportunity to do so , adducesevidence which satisfies the court that exceptional circumstancesexist which in the interests of justice permit his or her release. Incases where the offence is mentioned in Schedule 5 but not inSchedule 6 (as there may well be an overlap), the court must alsoorder that the accused be detained in custody, unless the accused,having been given a reasonable opportunity to do so, adducesevidence which satisfies the court that the interests ofjustice permithis or her release.

Schedule 5 has been widened to alter the value of items involved,and to add attempted murder involving grievous bodily harm,



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indecent assault on a child under 16 years of age, and any offencerelating to exchange control, corruption, extortion, fraud, forgery,uttering or theft if it is alleged that the offence was committed byany law-enforcement officer as a member of a group of persons,syndicate or any enterprise carried out with common purpose or ifthe offence involves an amount of more than RIO 000.

Section 60(11A) has been inserted into the principal Act to allowan attorney-general to issue a written confirmation that the offencewith which the accused is charged is a Schedule 5 or 6 offence. Suchnotification shall be prima facie proof of the charge(s) to be broughtagainst the accused.

Section 60(llB), a new addition, compels an accused or his orher legal adviser to inform the court at a bail hearing whether theaccused has previously been convicted of any offence, whetherthere are any charges pending against him or her, and whether he orshe has been released on bail in respect of those charges. A w ilfulfailure to comply or the furnishing of false information is made anoffence which may be punished by a fine or imprisonment for aperiod not exceeding two years. The record of bail proceedings,except the provisions relating to disclosure of previous convictions,will form part of the trial record. It is further provided that shouldthe accused testify at bail proceedings the court must inform the

accused that his or her evidence may be used at subsequent proceed-ings. This provision confirms the decision of the Appellate Divisionin S v Nomzaza 1996 (2) SACR 14 (A) where it was held that theevidence of an accused in a bail application, if it is otherwiseadmissible, can be admitted against him or her at a subsequent trialin terms of s 235 of the Criminal Procedure Act.

Section 60(14) has been added and reinstates the prosecutorialprivilege in respect of police dockets and supporting documents.This applies only to bail proceedings and it is provided that thesubsection shall not be construed as denying an accused access to

any information, record or document to which he or she may beentitled for the purposes of trial. This upholds the general abolitionof docket privilege as a result of the judgment of the ConstitutionalCourt in Shabalala v Attorney-General of Transvaal 1995 (2) SACR 761(CC). (See the chapter on the Law of Evidence.)

Minor changeshave been made to ss 68 and 72Awhich provide for thecancellation of bail and cancellation of release on warning respectively.

Finally, s 75(3) was added to the principal Act to provide that thecourt before whom an accused appears for the purpose of a bailapplication shall, at the conclusion of the bail proceedings or at any

later stage, but before the accused has pleaded, refer the accused toa court designated by the prosecutor for purposes of trial.



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CRIMINAL PROCEDURE

PAROLE AND CORRECTIONAL SUPERVISION AMENDMENT ACT 87 OF

1997

Section 276B has been added to the Criminal Procedure Act bythe Parole and Correctional Supervision Amendment Act. Thissection allows a court to fix a non-parole period in respect of anysentence of imprisonment of two years or longer. Such period maynot exceed two-thirds of the term of imprisonment or 25 years,whichever is the shorter. Where a person is sentenced to two or moreperiods of imprisonment and the court orders that these periodsshall run concurrently, the court must fix the non-parole period inrespect of the effective period of imprisonment.

CRIMINAL LAW AMENDMENT ACT 10 5 OF 1997

The Act repealed various sections of a number of Acts relating tocapital punishment and sets alternative punishments. The Act alsomakes provision for the substitution of death sentences an d theimposition of alternative punishments.

It also amends the Criminal Procedure Act in certain respects.Section 18 has been amended to provide that the right to institutea prosecution shall, unless some other period is expressly providedby law, lapse after 20 years from the time the offence was committed.

However, the right will never prescribe in respect of murder, treasoncommitted when the Republic is in a state of war, robbery if aggra-vating circumstances are present, kidnapping, child-stealing or rape(all offences for which the death penalty was competent). Thesection is deemed to have come into force on 27 April 1994. Thisdeeming provision is necessary to cover the situation that occurredin S vDeFreitas 1997 (1) SACR 180 (C) which is discussed under thesection 'Prosecution: Prescription' in the review of case law below.

Section 51 of the Criminal Law Amendment Act provides forminimum sentences for certain serious offences.

The High Court shall sentence a person who is convicted of anoffence referred to in Part I of Schedule 2 to life imprisonment. Thepart in the schedule refers to murder an d rape committed in certaincircumstances. The circumstances are the same as those listed inSchedule 6 of the Criminal Procedure Act discussed above in respectof bail under the Criminal Procedure Second Amendment Act.

The court, if satisfied that substantial an d compelling circum-stances exist which justify the imposition of a lesser sentence thanthat prescribed, shall enter those circumstances on the record andthen impose a lesser sentence.

A regional court or High Court must sentence a person who hasbeen convicted of an offence in Part II of Schedule 2 to minimum



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t 3 4 ANNUAL SURVEY OF SA LAW

periods of imprisonment depending on whether the accused is afirst, second, third or subsequent offender. The categories of of-fences are similar to those included in Schedule 5 to the CriminalProcedure Act (discussed above under the 'Criminal ProcedureSecond Amendment Act'). Minimum sentences are also prescribedfor rape, indecent assault on a child under 16 years involving theinfliction of bodily harm, assault with intent to do grievous bodilyharm on a child under the age of 16 years, and possession of morethan 1 000 rounds of ammunition.

If a court decides to impose a minimum sentence on a childbetween 16 and 18 years of age it must enter its reasons on therecord. The above provisions do not apply to a child under 16 years

of age.Section 52 of Act 105 of 1997 provides that if a regional court,after it has convicted an accused of an offence mentioned inSchedule 2 of the Act but before sentence, is of the opinion that theoffence in respect of which the accused has been convicted meritspunishment in excess of itsjurisdiction, it shall stop the proceedingsand commit the accused for sentence by a High Court havingjurisdiction. Provision is made for the High Court before which thematter comes to alter the plea to one of not guilty if certain factorsare found to exist.

The above provisions relating to minimum sentences will onlyendure for two years but may be extended by the President, with theconcurrence of Parliament, for one year at a time.

CASE LAW

PROSECUTION

Prescription

Until the passage of Act 105 of 1997 (see 'Legislation' above) theright to institute a prosecution lapsed after 20 years except foroffences for which the death penalty could be imposed, in respectof which the right to prosecute was not barred by the lapse of time.S v DeFreitas 1997 (1) SACR 180 (C) concerned a case where theaccused was charged with two counts of rape committed between1970 and 1974. The accused was summoned to court in 1995. Rape wasa capital offence until the court decided in S v Makwanyane 1995 (3)SA391 (CC); 1995 (2) SACR 1 that the interim Constitution had madethe death penalty unconstitutional and in Ferreira Levin NO; Vryen-hoek v PowellNO 1996 (1) 984 (CC) that such invalidity took effecton 27 April 1994. Consequently, in DeFreitas he court held that asthe death penalty was no longer competent for rape, the accused



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CRIMINAL PROCEDURE

could no longer be prosecuted as the right to prosecute had lapsed.In terms of Act 105 of 1997 rape is, inter alia, an offence in respectof which the right to prosecute will never prescribe.

BAIL AN D RELEASE ON WARNING

Principles Relating to the Grant of Bail

In S v Letaoana 1997 (11) BCLR 1581 (W ) the basic principlesrelating to the grant of bail were reiterated by Marcus AJ, whoindicated that these principles must be considered in the light oftwo important legal developments. The first concerns legislativeamendments in 1995 to the Criminal Procedure Act provisions

dealing with bail and thesecond is the effect of the interim and the

final Constitutions on bail. These provisions gave an accused personthe right to be released from detention if the interests of justicepermit, subject to reasonable conditions. Marcus AJ indicated thatthere had been a number of decisions dealing with the impact ofthe interim Constitution on the grant of bail; most have related tothe question of onus and are not harmonious. (See the 1994 AnnualSurvey 584-6 and the 1996 Annual Survey 720-2). Marcus AJ pointedout that the interim Constitution required courts, when interpretingany legislation and when developing the common law or customary

law, to have due regard to the spirit, purport and objects of the Billof Rights, whereas the 1996 Constitution substitutes the words 'mustpromote' for the words 'to have due regard to'. Although thejudgment in this case did not necessitate further development ofthe principles governing the grant of bail, it was emphasized thatevery judge is required to take account of the requirements of theConstitution.

Onus

Section 60 (11) of the Criminal Procedure Act places an onus onan applicant for bail in respect of certain offences to show that it isin the interests ofjustice that he or she be released on bail. The caseof S v Stanfield 1997 (1) SACR 221 (C) is one in which the appellantwas found to have discharged the onus.

Appeal Against Refusal

The court in Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1)SACR 127 (0); 1996 (11) BCLR 1514 said that all appeals againstthe refusal to grant release on bail are per se urgent. Where theappellant is in custody because of the refusal the matter mustbe heard as soon as reasonably possible. Section 65 of the Criminal



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Procedure Act 51 of 1977 demonstrates this by providing that a bailappeal may be heard by a singlejudge. This case is discussed furtherin the 1996 Annual Survey 721, where the question of onus and therole of the judicial officer in bail applications is discussed.

See generally S v Dhlamini 1997 (1) SACR 54 (W).

Bail Pending Appeal

Where an appeal is struck off the roll, bail which is grantedpending appeal lapses and during an application for the reinstate-ment of bail the court has to exercise its discretion afresh as towhether to reinstate bail or not: S v Ramakolo 1997 (2) SACR 749 (T).

Releaseon Warning

In S v Tokota 1997 (2) SACR 369 (E) it was held that a juvenile,who has been released into the care of a parent, is also liable fornon-attendance in terms of s 170 of Act 51 of 1977. In terms ofs 72(1) (a) of this Act the accused is not only released from custody,but is also warned to appear. The warning to the juvenile is co-extensive with the warning given to the parent.

THE CHARGE

Amendment

In S v Mahlangu 1997 (1) SACR 338 (T) the accused was convictedof bribery in the magistrate's court. As the common-law offence ofbribery was abolished by Act 94 of 1992, the issue on review waswhether the conviction could be amended to one of contravenings 1(1)(a)(i) of Act 94 of 1992, which is for all practical purposesequivalent to the common-law offence of bribery.

The test applied on review was whether the amendment wouldhave prejudiced the accused in his defence. All that was needed wasthat the citation of the charge should be amended. The allegationswould essentially have to be the same and the defence would nothave been materially affected or presented differently. The well-known test enunciated in S v Kruger 1989 (1) SA 785 (A) was applied.This test requires the court to determine whether the proposedamendment changes the charge to such an extent as to be in essencea new charge. In such a case substitution rather than amendmentwould occur. In this case it was decided that the proposed amend-ment did not amount to a substitution and it was duly effected.



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Inferring of Essential Allegation

In S v Sithole1997 (2) SACR 306 (ZS) it was held that a charge of

fraud would not be fatally defective if the allegation of prejudice wasnot expressly mentioned but could be inferred from the factualallegations set out in the charge sheet. This case is also discussed inthe chapter on Criminal Law.

Splitting of Charges

In S v Labuschagne 1997 (2) SACR 6 (NC) the appellant had beenconvicted, inter alia, of three counts of theft. She admitted removingthree different amounts of cash on the same day from the company

by whom she was employed. It was held that the three convictionsamounted to a duplication of charges as the offences were commit-ted at the same time and place, and from the same complainant.The charges were accordingly consolidated into one charge of theft.See also the chapters on the Law of Negotiable Instruments andCriminal Law.

THE PLEA

AutrefoisAcquit

In S v McIntyre1997 (2) SACR 333 (T) it was held that the test wasto ascertain whether the evidence necessary to support the secondindictment could have been sufficient to prove a conviction on thefirst indictment. The emphasis lay in the criminal act and not somuch in the description of the charge. Section 35(3) (m) of the finalConstitution provides that a person may not be tried for an offencein respect of which that person has previously been either acquittedor convicted. In this case the appellants had been previously acquit-ted of assault with intent to do grievous bodily harm and were latercharged with murder. The murder arose out of the same incidentand the deceased died on the day of the assault. The charges wereheld to be substantially similar and the plea was sustained on review.

Plea of Guilty

In S v Damons & others 1997 (2) SACR 218 (W) the accused wereindicted to stand trial in the Witwatersrand Local Division oncharges of murder, rape and robbery. During the trial the statesought to introduce in evidence the record of the plea proceedingswhich took place before a magistrate in terms of s 119 of theCriminal Procedure Act. Counsel for some of the accused objectedto certain admissions made in terms of s 119. The first ground of



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objection was that the accused had not been advised of their rightto legal representation before they had made the admissions. It washeld that the objection was not well-founded.

The second ground of objection was based on s 25(3) (c) of theinterim Constitution, which gave an accused person the right toremain silent during plea proceedings at trial. The objection wasthat the magistrate had not advised the accused of their right tosilence. Section 119 of the Criminal Procedure Act requires thatwhen the charge is put to an accused he or she 'shall... be required... to plead thereto forthwith'. Nugent J cited with approval thedictum in S v Mabaso 1990 (3) SA 185 (A) in which it was said thatthere is no room whatever in the pleading stage for the privilegeagainst self-incrimination. Any attempt to impart it would representa complete stultification of the requirement to plead.

NugentJ was faced with a decision by Borchers AJ in S v Maseko1996 (2) SACR 91 (W), where it was held that even where an accusedpleads guilty under s 119 proceedings he or she must be warned ofthe right to remain silent under s 25(3) (c) of the interim Constitu-tion, and that a failure to do so means that the record of theproceedings are not subsequently admissible in evidence.Borchers AJ said that even before the enactment of the Constitutionit was settled law that if an accused is questioned in terms ofs 112(1) (b) of the Criminal Procedure Act he or she has the rightto remain silent. (Where an accused pleads guilty in s 119 proceed-ings, s 121 requires that the provisions of s 112(1) (b) relating to theguilty plea procedure should be applied.) Borchers AJ reachedthis conclusion by relying on a dictum in a minority judgmentof Milne JA in S v Mabaso supra. Nugent J indicated that anobiter dictum in a minority judgment cannot be regarded as settledlaw.

In view of the fact that Borchers AJ was clearly wrong in conclud-ing that the matter was settled, NugentJ did not consider himself

bound by her decision. He held that a person cannot plead guiltywithout at the same time accepting the obligation to answer ques-tions. A right to silence is inherently incompatible with a plea ofguilty. An accused has no right to refrain from answering questionsin relation to a plea of guilty; if he or she wishes to preserve the rightto silence, his or her course is to plead not guilty. The evidence wasruled to be admissible.

This decision accords with common sense. Any contrary viewwould render s 112(1) (b) proceedings and allied proceedings un-der ss 119 and 121 a dead letter. The court is obliged to test the

validity of the plea of guilty by ensuring that the accused hascorrectly admitted the essential elements of the charge. The right



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to silence is surrendered vis-A-vis questioning to test a plea of guiltyonce an accused tenders such a plea.

Where this may be an anomaly is in the instance where an accusedpleads guilty but the court later corrects the plea to one of not guiltyunder s 113 of the Criminal Procedure Act. Section 113 providesthat any allegation that had been admitted by the accused prior tothe change of plea, save that effected by the change of plea, shallstand as proof in any court of that allegation. Under s 115 of the Act,which regulates the procedure relating to pleas of not guilty, anaccused must be warned that he need make no admissions orstatement. (See S v Daniels 1983 (3) SA 275 (A).) A failure to warnan accused may lead to the evidence being inadmissible. No such

judicially sanctioned requirement seems to exist under s 113. There-fore if an accused who pleads guilty is correctly required to answerquestions by the court, surely if the plea is changed in terms of s 113,the accused should be asked whether he or she consents to theadmissions, which are not affected by the plea change, standing. Itis in these circumstances that a right of silence could be invoked.

Changeof Plea

A change of plea under s 113 of the Criminal Procedure Act mayonly occur when s 112 proceedings are in progress and beforesentence is passed. Where an accused has pleaded guilty and theplea is subsequently altered to one of not guilty, and the accused isultimately found guilty, s 113 cannot be used again prior to sentenceif it transpires that the accused could raise the plea of autrefoisacquit. The matter can only be dealt with under s 304A of the Act:S vJasson 1997 (1) SA 469 (N).

THE TRIL

Addressing the Court

In S v Vermaas 1997 (2) SACR 454 (T) it was held that, in termsof s 175 of Act 51 of 1977, the accused and the prosecutor were notobliged to address the court. Where the right is declined, it is eitherabandoned or lost.

Assessors

In S v Gambushe 1997 (1) SACR 638 (N) it was stated that whereassessors are appointed in cases in the magistrates' courts thejudgment should reflect whether the acceptance of each materialaspect of the evidence was the unanimous view of the membersof the court. Reasons for dissent should be recorded. Where an



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assessor has special knowledge of a custom or habit peculiar to acommunity from which the accused or victim comes, and suchknowledge has affected the assessor's conclusion as to the facts, heor she ought to inform the court so that the existence or otherwiseof the custom may be properly aired in evidence and form part ofthe record.

Assessors appointed in terms of s 93ter of the Magistrates' CourtsAct 32 of 1944 must be appointed before any evidence is led.Answers to questions where the accused pleads guilty in terms ofs 112 of Act 51 of 1977 are not to be regarded as evidence for the pur-pose of s 93ter of Act 32 of 1944: S vJacobus 1997 (2) SACR 83 (E).

In S v Van derMerwe 1997 (2) SACR 230 (T) a trial commencedbefore a magistrate and two assessors. After an adjournment theassessors were not present and the court, with the consent ofthe prosecutor and accused, decided to continue without them. Itwas held on review that there was no indication that the assessorsbecame unavailable or untraceable. All the state evidence had beenled but the accused had not yet closed his case. The conviction wasset aside as the court had not been properly constituted because itwas held, following R v Price 1955 (1) SA 219 (A), that prima faciewhen a decision is entrusted to a tribunal consisting of more thanone person, every member of that tribunal should take part in the

consideration of that decision. Likewise in S v Williams 1997 (2)SACR 299 (E) one of two assessors had left the district while thematter was partly heard. It was held that an assessor can only bereleased from duty if he or she becomes unfit to complete the taskat hand. See also SvK1997 (1) SACR 106 (C). In SvDaniels 1997(2) SACR 531 (C) an assessor became unavailable during the courseof the trial, which continued without the assessor. The accusedconsented to this procedure. The magistrate indicated that it couldnot be established when the assessor would next be available. It wasconceded that the assessor was not 'unable to act' in terms of s 147

of Act 51 of 1977. It had been contended that the accused was notprejudiced as there was only one assessor originally and the magis-trate's finding of fact would prevail. FarlamJ said that this approachoverlooked the fact that the assessor, if he or she disagreed with themagistrate, might have been able to persuade the magistrate thathis or her view was correct. The conviction and sentence were setaside.

Assistance by Court

A court should assist an undefended accused in formulatingquestions, clarifying the issues and properly putting the defence



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version to state witnesses: S v Simxadi 1997 (1) SACR 169 (C). In S vMoilwa 1997 (1) SACR 188 (NC) the court refused to assist theaccused in leading the evidence of a witness. The court was no tmindful of the provisions of ss 167 and 186 of Act 51 of 1977 andneglected to ask the necessary questions. The result was that theaccused did no t have a fair trial. The conviction and sentence wereset aside.

Assistance by Guardian or Parent

Non-compliance with ss 73 and 74 of the Criminal Procedure Act(concerning the advising of parents of a juvenile to be present atcourt and the right of a juvenile to be assisted by a parent orguardian) does not per se constitute a fatal irregularity unless thereis proof of substantial prejudice to the accused or a miscarriage ofjustice. The accused is entitled to a fair trial, prejudice being thedetermining factor in such inquiry: S v N1997 (1) SACR84 (TkSC).

Curial Courtesy

In S v Philemon 1997 (2) SACR 651 (W ) the magistrate addressedthe appellant in a discourteous manner an d his behaviour was crass,impolite an d impartial. It was held that such conduct did serious

damage to the administration of justice, thus bringing the legalprocess into disrepute with the public. As the magistrate had be-haved in the same manner in another case the matter was referredto the Magistrates' Commission.

Legal Representation

In S v Maduna 1997 (1) SACR 646 (T) it was held that when anaccused requests legal representation it necessarily implies an ad-journment of the case. If this is denied without a proper reason it

would result in an irregularity and if the accused were prejudiced inthat justice was no t done the conviction an d sentence would be setaside. The reasons for the refusal of the application should beconsidered first and if it appears that the court has no t exercised itsdiscretion judiciously then the further conduct of the trial has to beconsidered to determine whether justice was done.

In S v Harris 1997 (1) SACR 618 (C) the accused's legal repre-sentative withdrew because of non-payment of fees. The accusedasked for a postponement in order to raise funds. The postpone-ment was refused. Although the appellant had been remiss in not

arranging finances timeously, it was held that the court should havequestioned the accused further as to when he proposed to raise the



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funds or the case should have been referred to the legal aid office.It was held that the court had not executed its discretion properly,especially as the defence needed a measure of forensic skill. Factorssuch as the disruption of the court roll and prejudice to the admini-stration of justice should not have been given undue weight. Theconviction and sentence were set aside and a trial de novo ordered.See also S v Philemon 1997 (2) SACR 651 (W ) where a refusal toadjourn a matter because of the absence of the accused's attorneyled to the setting aside of the conviction and sentence. It was heldthat the court was not entitled without inquiry to infer that theabsence of the attorney was due to a negligent omission by theaccused, or that instructions two days before the trial was not properinstruction.

In Mgcina v RegionalMagistrate, Lenasia 1997 (2) SACR 711 (W ) itwas held that the appellant's constitutional rights had been breachedin that his right to legal representation had not been explained tohim. This led to his failure to pursue applications to the Legal AidBoard. His constitutional rights had also been breached throughthe failure of the trial court to consider whether substantial injusticewould occur if legal representation was not provided at state expense.It was also held that nothing is to be gained by examining the evidenceled during the trial in order to evaluate its cogency as it is impossible

to say what effect a properly conducted defence would have had onthe ultimate result (see S v Shabangu 1976 (3) SA 555 (A)).Stegmann J held that the words in s 25(3) (e) of the interim

Constitution which entitled an accused to be provided with legalrepresentation at state expense 'where substantial injustice wouldotherwise result' did not have, as a minimum content, the practicalmeaning that if any indigent person were to be tried without legalrepresentation, he or she could not be sentenced to imprisonmentwithout substantial injustice resulting. The court held that if theframers of the Constitution had intended such a simple and straight-

forward rule, they could and presumably would have enshrined itin the Constitution (at 739d-f).See also S v D 1997 (2) SACR 671 (C) where a failure by the court

to advise juvenile accused of their right to legal representationresulted in material injustice.

Also of relevance here are LegalAid Board v Msila 1997 (2) BCLR229 (E) and Klink v GovernmentoftheRepublic of SouthAfrica1997 (10)BCLR 1453 (E).

An accused is not entitled to have his legal representative presentat a photographic identification parade as such a right does notextend to every investigative procedure. The right only extends topre-trial procedures where the accused is present and where the



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CRIMINAL PROCEDURE 64:3

state seeks the co-operation of the accused: S v Hlalikaya 1997 (1)SACR 613 (SE). See further the chapter on the Law of Evidence.

The right to be represented by a legal practitioner does no tembrace the right to have a trial postponed repeatedly because afirst-choice representative is unavailable. Moreover, the practitionerinstructed is under a duty to see that the defence is ready or to makeother arrangements for the accused to be represented: S v Molenbeek1997 (12) BCLR 1779 (0).

Lost and Incomplete Records

A magistrate does no t have the power to recall witnesses for thepurposes of reconstructing lost records of proceedings. The primarysource for the reconstruction of a record is the magistrate's notes.Thereafter, the clerk of the court has to reconstruct the record bythe most fair an d reliable means, that is, affidavits from witnessesand assessors as to whether they agree with the reconstruction ornot: S v Biyana 1997 (1) SACR 332 (T). See also S v Gumbi 1997 (1)SACR 273 (W); S v Ntantiso 1997 (2 ) SACR 302 (E); S v Three 1997(2) SACR 534 (E).

Recall of Witness

In S v Bulala 1997 (2) SACR 267 (V) the magistrate recalled awitness who had incriminated the accused and thereafter failed toadvise the accused of his right to re-open his case. This was heldto be a fatal irregularity which vitiated the proceedings.

Recusal of Assessors

In S v Kroon 1997 (1) SACR 525 (SCA) an application was madeafter conviction for the recusal of one of the assessors on the groundthat three years earlier he had gone on early retirement because ofmedical unfitness. The appellant was of the considered opinion thatthe medical condition was permanent an d that the assessor was no tcompetent to fulfil his duties. It was not argued that the assessor wasin fact incompetent or unfit.

The assessor withdrew in the interests of the administration ofjustice after the judge had ruled against recusal. This all happenedafter the conviction of the accused. As assessors legally have nofurther duties to fulfil after conviction, the withdrawal per se hadno effect on the proceedings that followed. The matter was, how-ever, considered as an exception and in the interests ofjustice. Thecourt decided that the reasonable perception or suspicion test didno t apply here an d that the competence or lack of it could be



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established objectively. It was never argued that the assessor wasmentally incompetent, nor that the appellant's perception, no matterhow reasonable, could be used to challenge the legality of hisparticipation in the trial.

Separation of Trials

In deciding whether to order a separation of trials the primaryquestion to be determined is that of prejudice in the sense that amiscarriage ofjustice occurred or would occur: S v Plaatjies 1997 (2)SACR 280 (0).

SpecialEntry

A special entry in terms of s 317 of the Criminal Procedure Actmust be formulated in the form of a factual finding supported byan allegation that it resulted in an irregularity that preventedjusticefrom being done: S v Kroon 1997 (1) SACR 525 (SCA).

Trial Within a Reasonable Time

Since the coming into force of the interim Constitution an issuethat has come before the courts on several occasions is whether a

delay in bringing a matter to trial violates the fair-trial provisions.During the year under review the following cases on this issuewere reported: Sanderson v Attorney-General,Eastern Cape 1997 (1)SACR 462 (SE); Wild v Hoffert NO 1997 (2) SACR 233 (N); Du Preezv Attorny-General, Eastern Cape 1997 (2) SACR 375 (E); Coetzee vAttorney-General:KwaZulu/Natal [1997] 3 All SA 241 (D). In thosecases the principles set out in the decision of the United StatesSupreme Court in Barkerv Wingo (1972) 407 US 514 were approvedof and adopted. The principles are the consideration of (i) thelength of delay, (ii) the reasons for the delay, (iii) the assertion by

the accused of his rights to have a speedy trial and (iv) the prejudiceto the accused.

In Sanderson vAttorney-General,Eastern Cape 1997 (12) BCLR 1675(CC) the Constitutional Court, in discussing the Barkercase, repeateda warning that comparative research is generally valuable but requirescircumspection and acknowledgment that transplants require care-ful management. The 'assertion of right' requirement in Barkershould not be adopted without making due allowance for the factthat the vast majority of South African accused persons are unrep-resented and have no conception of a right to a speedy trial. To denythem relief because they did not assert their rights would be to strikea pen through the right as far as the most vulnerable members of



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CRIMINAL PROCEDURE

society are concerned. It would be equally unrealistic not to recog-nize that the administration of the whole criminal justice system isunder severe stress at present (para 26).

KrieglerJ also indicated that'[t]ime does not only condition the relevant considerations, such asprejudice, it is also conditioned by them. The factors generally reliedupon by the state- waiver of time periods, the time requirementsinherent in the case, and systemic reasons for delay - all seek to dimin-ish the impact ofelapsed time' (para 29).In S v Pennington 1997 (4) SA 1076 (CC) it was held that although

delays in the hearing of an appeal might extend the period ofanxiety which appellants undergo before finality, appellate delaysare materially different from trial delays. There can be no questionof prejudice for the appeal is decided on the trial record and theoutcome cannot be affected by delay.

These cases are discussed also in the chapters on ConstitutionalJurisprudence and Civil and ConstitutionalJurisdiction and Procedure.

Verdict

In S v Tshoweu 1997 (2) SACR 226 (T) the magistrate gave judg-ment without consulting the assessors. After the verdict the magis-trate asked both assessors whether they confirmed the prima faciefactual finding which had been made earlier by the three but beforethe addresses on verdict. Both assessors agreed with the verdict. Itwas held that such procedure was in order and that no miscarriageofjustice had occurred.

It is competent on charges of housebreaking with intent to stealand theft to find an accused guilty of housebreaking with intent tocontravene s 1 (1) (a) of the Trespass Act 6 of 1959 and the contra-vention thereof rather than housebreaking with intent to trespass:S vJasat 1997 (1) SACR 489 (SCA).

THE SENTENCE

General Principles

In S v Mhlakaza 1997 (1) SACR 515 (SCA) the appropriateness ofprison sentences cumulatively in excess of 25 years was considered.The Supreme Court of Appeal per Harms JA said that the notionthat sentences in excess of 25 years were only exceptionally imposedought to be guarded against as it put an unacceptable restriction onthe discretion to impose a reasonable and fair sentence. It was

indicated that since the abolition of the death penalty longerperiods of imprisonment would become more common. Lengthier



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sentences could well be justified by the heightened incidence ofviolence. But whether or not such sentences fall within the limits ofwhat may be considered proper or appropriate will inevitablydepend on the facts of each particular case. See also S v Qamata 1997(1) SACR 479 (E).

HarmsJA indicated that, given the current levels of violence andserious crimes, it seems proper that the emphasis should be onretribution and deterrence. The effectiveness of general deterrenceis unclear but, according to judicial precedent, remains an impor-tant consideration. As far as individual deterrence is concerned itshould be borne in mind that there is no reason to believe that thedeterrent effect of a prison sentence is always proportionate to its

length. See also the discussion of retribution and deterrence inS v

De Kock 1997 (2) SACR 171 (T).In S v Mazibuko 1997 (1) SACR 255 (W ) the accused was convicted

of robbery, hijacking of a vehicle, two counts of attempted murder,unlawful possession of an AK47 assault rifle and unlawful possessionof ammunition. The attempted murders occurred in the course ofa shootout with the police. The accused was 19 years old when theoffences were committed and was rendered quadriplegic duringthe shootout. This state would be permanent. The court, afterrejecting the suggestion of a totally suspended sentence, held that

the accused was to be treated more leniently because his physicalcondition placed him in a 'prison far more harsh than any built ofbricks and mortar' (at 269e-f). The accused was sentenced to aneffective 10 years' imprisonment with a recommendation that heshould be considered for parole on medical grounds in terms of s 69of the Correctional Services Act 8 of 1959.

In S v Mokoena 1997 (2) SACR 502 (0) the accused was sentencedto five years' imprisonment for contravening s 5 (b) of the Drugs andDrug Trafficking Act 140 of 1992. It was ordered in terms of s 287 (4)of Act 51 of 1977 that the accused should not be considered forparole or correctional supervision. On review, it was held thats 287(4) could not be applied as the accused had been sentencedto imprisonment without the option of a fine. Thus the court hadno power to order that the accused could not be considered forparole or that he did not qualify to have his sentence converted intocorrectional supervision.

Imprisonment

In general a sentence of suspended imprisonment should not beimposed unless the court is satisfied, at the time when the sentenceis imposed, that the accused should be imprisoned in the event of a



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CRIMINAL PROCEDURE

further conviction. A court has a discretion whether or not to bringa suspended sentence into operation: S v Peskin 1997 (2) SACR 460(C).

It is trite that, except in very serious cases, a first offender(particularly a young one) ought not to be sentenced to a period ofunsuspended imprisonment. In view of the critical overcrowdingof prisons, the appalling conditions and the unavailability of analternative form of punishment, suspended sentences of imprison-ment should be imposed: S v Standaard 1997 (2) SACR 668 (C).

Fine

Where a court imposes a fine and the accused is unable to pay itimmediately, the court shall mero motu institute an inquiry in termsof s 297(5) (b) of Act 51 of 1977. The court must explain theoption of payment by instalments. If the accused is imprisonedbecause of non-payment of a fine, the prison authorities shouldinvestigate whether there was a reasonable possibility that the finecould be paid in instalments. If so , immediate arrangements shouldbe made for the accused to be brought before a court for an enquiryin terms of s 297(6) (a): S v Zwane 1997 (1) SACR 326 (W).

In S v Motsamai 1997 (2) SACR 521 (0) it was indicated that therelationship of fines to alternative periods of imprisonment had notkept in touch with the devaluation of money.

Compensation

In S v Lombaard 1997 (1) SACR 80 (T) a compensation order interms of s 300 of the Criminal Procedure Act was refused as it washeld that it was a complicated civil matter which could only bedecided if all the points in issue were defined in pleadings andfurther evidence led thereon.

A compensating order cannot be combined with a sentence ofcorrectional supervision: S v Medell 1997 (1) SACR 682 (C).

CorrectionalSupervision

Where imprisonment without the option of a fine is prescribedas a sentence for an offence, correctional supervision is not acompetent sentence as it does not constitute 'a sentence': S v Lowis1997 (1) SACR 235 (T).

There is no anomaly in delineating a sentence properly and alsogiving the Commission of Correctional Services the right to mitigatethe conditions of a sentence, as reducing a sentence for goodbehaviour is a cornerstone of the penal system. It was held that there



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could be no objection to a court alleviating the conditions of asentence of correctional supervision and amending the conditionsto take account of altered circumstances: S v Sekoboane 1997 (2)SACR 32 (T).

The powers of the Commissioner of Correctional Services to re-imprison a probationer are considered in Roman v WilliamsNO 1997(2) SACR 754 (C). Section 84B of the Correctional Services Act 8of 1959 is not unconstitutional. Such a decision by the Commis-sioner of Correctional Supervision is a reviewable administrative ac tin terms of subsecs (1) and (2) of s 33 of the Constitution of theRepublic of South Africa (Act 108 of 1996). Roman is discussed alsoin the chapter on Constitutional Jurisprudence.

Specific Offences

Murder

In S v Qamata 1997 (1) SACR 479 (E) it was said byJonesJ thatthe killing of elderly persons living alone in remote farmhouses inorder to rob them is so heinous an offence that it frequently callsfor the most extreme sentence - that of life imprisonment. Nowthat the death penalty no longer exists the practice of not imposingsentences exceeding 25 years should be revised.

Whether belief in witchcraft can be a mitigating circumstancewhere an accused is convicted of murder is again revisited in S vPhama 1997 (1) SACR 485 (E). In this case it was not held to be.

In Sv Van Wyk 1997 (1) SACR 345 (T) the accused was convicted,inter alia, of three counts of murder committed in a cold-blooded,gruesome and brutal manner. The appellant was a member of anextreme right-wing gang. The murder was committed to further theobjects of this group. Life imprisonment was considered to be anappropriate sentence.

In respect of life imprisonment see further S v Stonga 1997 (2)SACR 497 (0) and S v Moses1997 (2) SACR 322 (NmS).

Rape

In S v Chapman 1997 (2) SACR 3 (SCA) the Supreme Court ofAppeal indicated that rape is a very serious crime which is humiliat-ing, degrading and a brutal invasion of the privacy, dignity andperson of the victim. Women are entitled to protection of theserights which are basic to the ethos of the Constitution. Women havea legitimate claim to walk peacefully on the streets, to enjoytheir shop.ping and their entertainment, to go and come from work,and to enjoy the tranquility of their homes without the fear, the



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CRIMINAL PROCEDURE

apprehension and the insecurity which constantly diminishes thequality and enjoyment of their lives. The court was under a duty tosend a clear message to the accused in the present case, to otherpotential rapists and to the community that courts are determinedto protect the equality, dignity and freedom of all women and willshow no mercy to those who seek to invade these rights.

Bravo! one can only say. But do deterrent sentences work? Some-times, with some persons and in respect of certain offences. How-ever, before there is any hope of this happening, there must beconsistent publicity of sentences passed and a marked increase inthe rate of convictions.

In S v M 1997 (1) SACR 276 (W), a case of housebreaking withintent to commit rape, attempted rape and attempted murder,Wunsh J said in respect of the attempted rape that the callousconduct of the appellant and the obvious shock suffered by thecomplainant should, despite the absence of physical injury as aresult of the rape attempt, not lead to a reduction of what was anappropriate sentence.

In Attorney-General,Eastern Cape v D 1997 (1) SACR 473 (E) theaccused had gagged and then raped an 11-year-old virgin in herhome. He had been sentenced to six years' imprisonment totallysuspended on conditions. An appeal was prosecuted by the Attorney-

General in terms of s 310A of Act 51 of 1977. The court held thatthe elements of retribution and deferrence rather than the interestsof the criminal himself came to the fore. A sentence of 10 years'imprisonment was substituted.

In S v T 1997 (1) SACR 496 (SCA) the 23-year-old appellant hadsavagely raped and sodomized a 15-year-old virgin over a period offive hours. The appellant was diagnosed as having a mixed person-ality disorder. The trial judge placed decisive emphasis on evidencethat there was little prospect of his being cured and that on releasefrom prison he would be a danger to the public. A sentence of life

imprisonment was imposed. On appeal, by a majority, the sentencewas set aside and the matter remitted to the trial court to consideracting in terms of s 286A of the Criminal Procedure Act (declaringan offender to be a dangerous criminal). The grounds for so doingwere that the trial court had not exercised a proper discretion as ithad failed to consider the possibility of utilizing s 286A.

Robbery

In S v Belelie1997 (2) SACR 79 (W ) the accused was convicted onthree counts of robbery and one count of attempted murder whichwas committed on one of the robbery victims immediately after the



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robbery. As regards the third robbery and the attempted murder,the sentences were five years' an d ten years' imprisonment respec-tively. It was held that this was a duplication of punishment an d itwas ordered that the sentences should run concurrently.

Theft

Fo r factors to be taken into account in stock-theft cases in theNorthern Cape, see S v Tyers 1997 (1) SACR 261 (NC); see also SvMolenbeek 1997 (2) SACR 346 (0). In S v Baartman 1997 (1) SACR304 (E), a sentence of nine months' imprisonment for a thirdoffence of shoplifting was replaced by a sentence of six months ofwhich three months were suspended on conditions.JonesJ said thatthe punishment must fit the crime and there is a limit beyond whicha sentence is no longer proportionate. For petty theft the limit isprobably between four an d six months' imprisonment (at 305f-g).

Fraud

In S v Nagrani 1997 (2) SACR98 (W ) the appellant was convictedof 21 counts of fraud involving several million rand which was owingas value-added tax (VAT). He was sentenced to eight years' impris-onment of which two years' imprisonment was suspended on condi-tions. On appeal it was held that correctional supervision in termsof ss 276(1) (h) an d 276(1) (i) of Act 51 of 1977 was ruled ou t as theperiod of imprisonment exceeded five years. Th e sentence wasconfirmed on appeal with the following aggravating factors beingtaken into account: the seriousness and prevalence of the offence,the amount of money involved and that the appellant was in aposition of trust in respect of the operation of the VAT system.

Drug Offences

In S v Markus 1997 (2) SACR 538 (C ) the accused, a 42-year-oldfirst offender in respect of possession of drugs, was convicted ofpossessing six mandrax tablets. He earned R350 per month andsupported four children. The accused was fined R2 000 or, in defaultof payment, 18 months' imprisonment. He had been in prison forfive months awaiting trial. The offence could no t be likened to drugsmuggling and the sentence was held to be unduly harsh. A sentenceof R500 or , in default of payment, four months' imprisonment wasimposed.

In S v Masia 1997 (2) SACR 687 (0) the accused was convicted

of the possession of eight kilogrammes of dagga and he was sen-tenced to a fine of R3 000 or 18 months' imprisonment. He was an



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CRIMINAL PROCEDURE

unemployed 39-year-old first offender with three dependants. Hehad pleaded guilty. As the accused was not in a position to pay thefine and was effectively sentenced to imprisonment, it was held thatthe sentence was unduly harsh. It was substituted by a sentence ofR800 or, in default of payment, four months' imprisonment.

REVIEW

For a change of plea under s 113 of Act 51 of 1977 and reviewunder s 304A, see S vJasson 1997 (1) SA 469 (N), discussed under'Change of Plea' above.

A court is entitled to make exceptions to the general rule that amatter should not be reviewed piecemeal: S v McIntyre 1997 (2)

SACR 333 (T).

APPEAL

Reported in 1997 (2) SACR 1 (SCA) are practice directions inrespect of the Supreme Court of Appeal which were issued by theChief Justice. First, the registrar must be informed immediately itbecomes known that an appeal is to be postponed or has beensettled. Secondly, the heads of argument of each party must beaccompanied by a brief typed note that indicates, inter alia, the

issues on appeal succinctly stated (for example, negligence in MVAcases); an estimate of the duration of argument; if more than oneday is required for argument, the reasons for such request; if theappeal is urgent or is entitled to some precedence on the roll,the reasons therefor; a list reflecting the parts of the record that arenot relevant for the determination of the appeal; a summary of theargument not exceeding two folios; and an indication of the authori-ties to which particular reference will be made during the course ofargument.

Where a notice of appeal which has not been amended is silent

on the question of sentence, a court of appeal is unable to hear theappellant on the question of sentence: S v Notoane 1997 (2) SACR448 (T).

Although sentencing is pre-eminently a matter falling within thediscretion of the trial court, it is permissible to interfere with asentence where there is a striking difference between the sentenceimposed and the sentence which the court of appeal, sitting as acourt of first instance, would have imposed: S v Manonela 1997 (2)SACR 690 (0).

Section 310A of the Criminal Procedure Act was intended towiden the powers of the attorney-general in connection with the in-crease of sentences on appeal and not to restrict such powers. The



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section is clearly aimed at cases where the accused does not appeal-when the accused appeals the state does not require a right toappeal: S v Kellerman 1997 (1) SACR 1 (A). It was also confirmedthat the rule of practice which provides that an accused is notentitled to withdraw his appeal once notice has been given that anincrease of sentence on appeal will be sought was not affected bythe introduction of s 310A.

In S v Lapi 1997 (2) SACR 272 (0) the appeal was not notedtimeously and the grounds of appeal did not comply with the Rulesof Court. It was also averred that the grounds of appeal in theheads of argument were not contained in the notice of appeal.The court, however, heard the appeal on the basis that the point ofdispute between the appellant and the state was simple and the statehad not been caught unawares by the shortcomings of the notice ofappeal.

It is a well-established principle governing the hearing of appealsagainst findings of fact that, in the absence of demonstrable andmaterial misdirection by the trial court, its findings of fact will bepresumed to be correct and will only be disregarded if the recordedevidence shows them to be clearly wrong: S v Hadebe 1997 (2) SACR641 (SCA).

Access an d Referral to Constitutional Court

For circumstances in which a case may be referred to the Constitu-tional Court see S v Bequinot 1997 (1) SACR 369 (CC), where thecircumstances of referral of issues and direct access under the interimConstitution are set out. See also S v Pennington 1997 (4) SA 1076(CC); Attorney-General, Eastern Cape v D 1997 (1) SACR 473 (E);Harksen v President of the Republic of South Africa 1997 (2) SACR 139(C); S v Ntsele 1997 (2) SACR 740 (CC).

Remittal to Trial CourtThere is no express or implied provision in s 316(3) of Act 51 of

1977 which prevents the state from filing opposing affidavits in anapplication for the remittal of a matter for the hearing of furtherevidence: S v Ngavonduueza 1997 (1) SACR 203 (NmHC).

JURISDICrION

In S v Heugh 1997 (2) SACR 291 (E) the charge sheet mentionedthe place of the alleged offence but not the district in which it wascommitted. The accused pleaded guilty but the s 112 questioning interms of the Criminal Procedure Act did not ascertain whether the



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CRIMINAL PROCEDURE 653

offence was committed within the jurisdiction of the court. It washeld that despite the omission there was nothing to suggest that theproceedings were no t in accordance with justice n o r was it inthe accused's interest to have the convictions an d sentences set asidefor the purpose of correcting this defect.

In S vDersley 1997 (2) SACR 253 (Ck) an interesting discussion ofjurisdiction is to be found. After discussing a number of authoritiesWhite J concluded that there was authority in our law for holdingthat if a person, who is domiciled within a court's area ofjurisdiction,commences an offence within bu t completes it outside that area,especially if it is completed within South Africa, the court will have

jurisdiction to try the offence. The judge also concluded that courtspossess jurisdiction where an offence is commenced outside andcompleted within their area ofjurisdiction.

EXTRADITION

There is no extradition treaty in force between Germany andSouth Africa and the President of the Republic of South Africa isentitled to proceed in terms of s 3(2) of the Extradition Act 67 of1962 for the extradition of German citizens. The Extradition Treatyof 1872 between the United Kingdom an d Germany is not in forcein South Africa: Harksen v President of the Republic of South Africa1997 (2 ) SACR 139 (C). It was also decided that s 3(2) of theExtradition Act is no t unconstitutional as it did no t lead to proce-dural unfairness.

MISCELLANEOUS

Precedent

Where a magistrate is faced with divergent decisions from variousProvincial Divisions, he or she is bound by the decisions of theHigh Court to which appeals are noted against his or herjudgments.This rule is in the interests of legal certainty: S v Sekoboane 1997 (2)SACR 32 (T).

LITERATURE

Commentary on the Criminal ProcedureAct. Revised ed. By Etienne du Toit SC ,FrederickJ dejager, Andrew Paizes, Andrew St Quintin Skeen & Stephvan der Merwe. Cape Town:Juta & Co Ltd. 1997.

Cross-examinationin South African Law. By J P Pretorius. Durban: Butter-worths. 1997.

Die Strafproseswet51 van 1977 (soos Gewysig). 9 ed. Compiled and edited byOwen Barrow. Cape Town:Juta & Co Ltd. 1997.



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Law of Criminal Procedureand EvidenceCasebook/Strafprosesen BewysregVonnis-bundel. By A M Sorgdrager. 2 ed. Durban: Butterworths. 1997.

The CriminalProcedureAct 1 of,1977 (asAmended). 9 ed. Compiled and editedby Owen Barrow. Cape Town:Juta & Co Ltd. 1997.

'Admissibility of Confessions in Criminal Trials in Botswana.' By E K Quansah.(1997) 30 CILSA 325.

'Warrantless Search and Seizure in Criminal Procedure: A ConstitutionalChallenge.' ByJ P Swanepoel. (1997) 30 CILSA 340.

'Disclosure of Confidential News Sources.' By Sanette Nel. (1997) 38 (1)Codicillus 9.

' In Regs-kriminologiese Ondersoek na die Bestaanbaarheid van Vergeld-ing as Strafoogmerk in die Suid-Afrikaanse Strafregsisteem.' By J FLourens. (1997) 38 (2) Codicillus35 .

'Aanhouding voor Verhoor, Onregmatige Regspraak en Deliktuele Aan-spreeklikheid van die Staat vir Vryheidsontneming.' By J M TLabuschagne. (1997) 30 DeJure 164.

'The Right to Legal Counsel and the Constitution.' By Peet M Bekker.(1997) 30 DeJure 213.

'Casenote: S v DeFreitas 1997 (2) SA 204 (K) - Artikel 18 Wet 51 van 1977- Verjaring van Reg om Vervolging in te Stel.' By R Cloete & DJ L Kotz&(1997) 30 DeJure 406.

'Towards a Better CriminalJustice System.' By Seth Nthai. 1997 De Rebus 639.'What Is Truth? Pontius Pilate, 0 J Simpson and Proving Guilt under a

Supreme Bill of Rights.' By Andrew Henderson. 1997 De Rebus 701.'Menslike Begrensing va n die Staat se Diskresie om te Vervolg.' ByJ M T

Labuschagne. (1997) 18 Obiter I.

'Remission of Sentence and the Right to Equality.' By P H G Vrancken.(1997) 18 Obiter31.

'The Use of the Trap in the Detection and Elimination of Corruption andOrganised Crime.' By P Hogg. 1997 Responsa Meridiana 59 .

' In Les uit Eden: Onbillike Lokvalle en Strafregtelike Skuld.' By Wessel leRoux. (1997) 10 SACJ3.

'Justice in Whose Interests? A Proposal for Institutionalized Mediation in

the CriminalJustice System.' By R Palmer. (1997) 10 SACJ33.'In Verkenning van die Plaaslike Residivismeverskynsel en die GeregtelikeHantering daarvan.' ByJ H Prinsloo. (1997) 10 SACJ46.

'The Draft National Prosecuting Authority Bill 1997: A Critique.' ByjeremySarkin & Susie Cowan. (1997) 10 SACJ64.

'A Privilege for Members of the Clergy: Smit v Van Niekerk Reconsidered.'By Warren Freedman. (1997) 10 SACJ74.

'Casenote: S v Manguanyana 1996 (2) SACR 283 (E) - Die Beperking vanRegsverteenwoordiging- 'n Hersenskim.' By E J S Steyn. (1997) 10SA CJ 94.

'Casenote: R v Bartle (1995) 92 CCC 3d 289 (SCC) - Ingeligtheid asVoorwaarde vir 'n Effektiewe Reg op Regsverteenwoordiging.' ByJ M TLabuschagne. (1997) 10 SACJ98.



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CRIMINAL PROCEDURE 655

'The Attorney-General Responds.' By T P McNally SC . (1997) 10 SACJ162.'Wat Gemaak met Kindermisdadigers?' By Stefan Terblanche &Johan van

Vuuren. (1997) 10 SACJ170.

'Act 85 of 1996: Legislative Regulation of Evidence Obtained by PoliceTraps.' By Ronald Louw. (1997) 10 SACJ186.

'New Technology Benefits Community Corrections.' By W F M Luyt. (1997)10 SACJ198.

'The Right to Address the Court at the Close of a Criminal Trial.' By M GCowling. (1997) 10 SACJ203.

'Implications of Suspects' and Other Detainees' Rights to Legal AssistanceBefore the First Appearance in Court in South Africa.' By CharlesGoredema. (1997) 10 SACJ237.

'Die Grondwetlike Passiewe Verdedigingsreg Versus die Bewysregtelike

Gevolgevan Swye aan die Einde van die Staatsaak.' By S Eva n der Merwe.(1997) 10 SACJ263.

'Victim Rights in Anglo-American and Continental European Countries:What Can South Africa Learn?' By CJ Moolman. (1997) 10 SACJ273.

'Compensation for Victims of Sexual Crimes.' By Neil van Dokkum. (1997)10 SACJ283.

'Presumption as to Illegal Importation of Ivory Set Aside.' By Michael Kidd.(1997) 4 SAjournal of Environmental Law & Policy 331.

'Incompatibility of the Death Penalty and the Bill of Rights - Casenote:Guerra v Baptiste [1995] 3 WLR 891 (PC), [1995] 1 LRC 407.' By

Lovemore Madhuku. (1997) 13SAJ-R

151.'The Exclusion of Evidence in the Absence of an Appropriate Warning.' ByP J Schwikkard. (1997) 13 SAJHR 446.

'The Right to Legal Representation in Criminal Proceedings in Botswana.'By Baatlhodi Molatlhegi. (1997) 13 SAJHR458.

'Unconstitutionally Obtained Evidence: A Study of Entrapment.' By Victo-ria Bronstein. (199) 114 SALJ 108.

'"A Prosecutor Is a Person Who Cuts Off Your Head": Children's Percep-tions of the Legal Process.' By Karen Mfiller & Mark Tait. (1997) 114SALJ593.

'Nog Meer Maatrefls om Geweld en Misdaad te Bekamp.' By Willemien duPlessis, Nic Olivier &Juanita Pienaar. (1997) 12 SA Public Law 233.

'The Attorney-General in Zimbabwe and South Africa: Whose Weapon?Whose Shield?' By Charles Goredema. (1997) 8 StellenboschLaw Review45.

'"The Law Is Fraught with Racism": Report on Interview Research intoPerceptions of Bias in the Criminal Justice System.' By Raymond Koen& Debbie Budlender. (1997) 8 StellenboschLaw Review 80 .

'Regterlike Inkorting van Kruisondervraging: 'n Gemeenregtelike,Statutfre en Grondwetlike Perspektief.' By S E van der Merwe. (1997) 8StellenboschLaw Review 348.

'Oorbevolking van Gevangenisse.' By Stefan Terblanche & Bobby Naud6.(1997) 60 THRHR 8.



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'Seksuele Misbruik van Kinders en die Vraagstuk van Verjaring van Mis-dade.' ByJ M T Labuschagne. (1997) 22 Tydskrifvir Regswetenskap98.

'Geloof in Toorkuns as Versagtende Omstandigheid - Casenote: S v

Phokela A & another 1995 (1) PH H22.' ByJ WJonck. (1997) 22 Tydskrifvir Regswetenskap 202.

'Die Rol van die Vermoede van Onskuld by Oorweging van Ontslag naStaatsaak.' By Murdoch Watney. 1997 TSAR 326.

'The Child Witness and the Accused's Right to Cross-examination.' ByKaren Miller & Mark Tait. 1997 TSAR 519.

'Dra die Keiser Klere? Diskresie en Wetteloosheid in Strafregpleging: QuoVadis Suid-Afrika?' By D S de Villiers. 1997 TSAR 615.

Documents

1997AnnSurvSAfricanL629