Criminal Procedure - Chapter 2
Aspects of jurisdiction
Definition of jurisdiction
Fictional jurisdiction
Substantive vs procedural
Jurisdiction is the authority of a court to hear and decide a dispute or matter
Personal (also: nationality) - impact of immunities (S110A CPA) - limited active personality principle - R v Holm; R v Pienaar
Territoriality - extraterritoriality - e.g., the Rome Statute of the International Criminal Court; Corruption - S v Kruger
Substantive vs procedural
Universal - certain crimes - e.g., torture as crime against humanity - National Commissioner of the South African Police v Southern African Litigation Centre
Substantive
District courts
Procedural
Enforcement of the law = Formal requirement of jurisdiction
Regional Courts
High Courts
Types of crimes
E.g., impact of immunities (e.g., diplomatic) - S110A of the CPA
Sentencing
This article grants territorial jurisdiction to a court which otherwise does not have territorial jurisdiction over the matter
Not substantive jurisdiction
Accused before court which has no jurisdiction
Court is deemed to have jurisdiction when accused pleads to a charge and does not plead that court has no jurisdiction
S110 CPA
Diplomatic immunity
Foreign country unable to prosecute
SA court will have jurisdiction if crime took place in its jurisdiction
For example: SA diplomat in Canada
Must be crime in terms of SA law
Diplomat committed offence in other country
NDPP instructs prosecution takes place
S110A of the CPA
Personal jurisdiction
Age
R v Holm; R v Pienaar
Natural vs legal persons
Territoriality
International borders - S v Kruger
Internal borders
International jurisdiction
Extraterritorial jurisdiction - e.g., certain types of offences committed by SA citizens or residents in foreign country - e.g., S15 Terrorism Act
Universal jurisdiction - crimes like war crimes; genocide - legal basis? - National Commissioner of SAPS v SALC
Principle of sovereignty
Male captus bene detentus
S v Ebrahim
Competence of court
Substantive jurisdiction
Nature of the offence
S v Kruger
Human Rights on extradition
Mohamed v President of the RSA
Minister of Home Affairs v Tsebe
Can a specific court deal with a specific type of crime
Does the court have the ability to enforce the law
Two principles
Active personality - a South African citizen committing a crime overseas
Passive personality - a South African against whom a crime was committed while overseas
Old Act
Amendment Act
10 - 14 => rebuttable presumption of innocence
12 - 14 => rebuttable presumption of innocence
14+ => no presumption
0 - 10 => irrebuttable presumption of innocence
14+ => no presumption
0 - 12 => irrebuttable presumption of innocence
Exceptions to the general rule that one must exercise jurisdiction only within SA borders - high treason, theft if continuing to appropriate stole objects....
Extra-territorial jurisdiction - although the crime didn't take place in our borders / jurisdiction, certain crimes can be prosecuted if committed by a SA citizen in a foreign country
Subjective territoriality - refers to where a crime commenced in a specific state A but was completed in another state B. State A has jurisdiction according to subjective territoriality
Objective territoriality - crime commenced in State A and was completed in State B. State B has jurisdiction
Universal
Territoriality can be expanded in terms of certain crimes, these being such as crimes against humanity and torture, genocide, war crimes
If a country is a part of the statute of Rome then you can prosecute these international crimes
Delivery of an accused or a convicted person to a foreign state where he or she is sought in connection with a crime or has been convicted of committing a crime on whose territory he / she resides
Wrongly captured, rightly detained - basis for jurisdiction
If a person is captured wrongly, a court will have no jurisdiction to enforce the law
Courts have authority to impose sentences however they must remain in the guidelines set out in the CPA and CJA