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Criminal Procedure - Chapter 3 - Coggle Diagram
Criminal Procedure - Chapter 3
Criminal prosecution and civil actions
Personal damages?
S342 of the CPA - claim for damages after conviction or acquittal - Rule in Hollington. The primary duty is on the state to prosecute crime however you can claim delictual damages for yourself. Damages can be claimed regardless of the outcome of the criminal trial as a different onus of proof is required. This is an action between two individuals
Primary duty of state
S300 of the CPA - damage / loss of property: compensation order by criminal court after conviction (apart from punishment). This is a rare occurrence.
General principle: crime = violation of public interest
S301 of the CPA - Stolen goods
Distinction between public and private prosecution
Phillips v Botha
Hendricks v Asmal
Bothma v Els
Private prosecution
If state uses bona fide discretion to not prosecute, one can prosecute somebody in private capacity
Aggrieved individuals may proceed in personal capacity against the perpetrator to prove guilt beyond a reasonable doubt
South African Criminal Procedure Act makes provision for private prosecution in certain instances
Public prosecution
Individuals relinquish the right to private vengeance on the assumption that the state will dutifully prosecute, but prosecuting authorities have the discretion to prosecute
However, in order to curb the urge for self-help private individuals can institute private prosecution in terms of the aggrieved individual proceeds in his personal capacity against the alleged perpetrator
Duty of the state to prosecute criminals
Prosecuting authority
S179 of the Constitution
Provincial director of public prosecutors
Single national prosecuting authority
Prosecutors
National direction of public prosecutions
Duty to prosecute
Prima facie cases
The allegations as supported by statements and real and documentary evidence available to the prosecution, are of such a nature that if proved in a court of law by the prosecution on the basis of admissible evidence, the court should convict
Paragraph 4(c) of the NDPP prosecution policy
Reasonable prospect of success
In the public interest not to prosecute
No general duty to prosecute all incidents of crime
Male fide prosection?
Freedom under law v national director of public prosecutions
National director of public prosecutions v Zuma
Exceptions of duty to prosecute
Age
Tragic personal circumstances
Triviality
Plea bargain
Distinction
Withdrawal of charges
Before pleading; withdrawal of charges; not acquittal
May be prosecuted again not he same charges
S6(a) of the CPA
Freedom Under Law v NDPP - charges based upon formidable evidence can only e withdrawn on the basis of compelling reasons
Stopping of prosecution
S6(b) of the CPA
After pleading; before conviction or acquittal ; stopping = acquittal; DPP's consent
Not the same as temporarily removing case from the role
Cannot reinstitute charges
Permanent stary of prosecution
Application in High Court
Before commencement of trial
Drastic remedy
Not in terms of S342A of the CPA - this section concerns delays during the trial
S35 of the Constitution
Bothma v Els
The delay of a case has lead to unreasonable prejudice so that the accused can get an order from the HC to permanently stay the prosecution
Prescription of crime
After 20 years (from the moment of the commission of the crime - S18
Exceptions
Murder; treason in time of war; robbery with aggravating circumstances; kidnapping; child-stealing; rape; war crimes; crimes against humanity; genocide; torture
S18(1) of the CPA - any sexual offences in terms of common law or statute don't prescribe anymore
S18 of the CPA
Bothma v Els
39 years after alleged offence
Private prosecution / permanent stay of the prosecution?
Aspects of the NDPP directives
Diversion
Point of departure
Chapter 6 - minor offences: before preliminary inquiry
Art 1 - diversion - means diversion of a matter involving a child away from the formal court procedures in a criminal matter by means of the procedures established by Chapter 6 and Chapter 8 of the CPA
Level one diversions - S53
A family time order
A supervision and guidance order
Written / oral apology
A compulsory school attendance order
Referral to counselling / therapy
Some basic principles of child justice
Prosecutor - stablish whether child has previously been diverted
When child has complied with a diversion order prosecutor must receive a compliance report
In cases of family group conference or victim offender mediation - victim must consent
Non compliance with diversion - prosecutor can decide to prosecute - must take advice of probation offer into account
Prosecutor does not have to provide reasons for decision not to divert
Diversion must be made an order of the court
Factors to decide to prosecute
Prospects of establishing criminal capacity
Cognitive abilities
Nature of the offence; impact on victim; interests of the community
Age and maturity
Educational level
Privae prosecution
S8 of the CPA
NSPCA v Minister of Justice and Constitutional Development
Private prosecution: certain statutory bodies; prosecutions still under final direction of DPP; thus: quasi-private prosecution; limited application
E.g., by the SPCA or under Fidelity Fund of Legal Practitioners' board
S7 of the CPA
Statement / affidavit
Refusal to prosecute
DPP sign
Fair trial rights - Hendricks v Asmal
Certificate nolle presequi - issued by the DPP indicating and signing that they will not prosecute this matter and that he / she has examined the statements / affidavits on which the charge is based. The certificate shall lapse unless proceedings in respect of the offence in question are instituted by the issue of the required process within 3 months of the date of the certificate
Same as public prosecution
NSPCA v Minister of Justice and Constitutional Development
Private prosecutor needs to deposit the sum of R2 500 with the magistrate's court in whose area of jurisdiction the offence was committed
S7: Locus Standi
Husband; wife child; next of kin - Hendricks v Asmal
Legal guardian or curator - minor or mentally ill
Substantial and peculiar interest arising from injury due to commission of offence - Phillips v Botha
Locus standi in dispute - onus on private prosecutor - Singh v Minister of Justice and Constitutional Development
S7: Prosecution
Costs and security
Intervention by State
Juristic persons - not locus standi - NSPCA v Minister of Justice and Constitutional Development
Sentencing - Hendricks v Asmal
Prescription - in principle 3 months after certificate nolle prosequi was issued
S7: private prosecutions: technical aspects
Process documents
Indictment / summons
Name and reporting - Hendricks v Asmal
Consider with regards to prosecuting children
Child headed household
Conduct making them unsuitable for diversion
Victim of child labour
Risk upon returning to the custody of the caregiver
Any other circumstances detrimental to physical, emotional or social well being
Exploitation of the child or circumstances causing them to be exposed to the exploitation of others
Any dependence on substances
The child is homeless and works on the streets
The child shows behaviour which cannot be controlled by the parent or caregiver
If the child is orphaned or abandoned and is without visible means of support