+(,121/,1(

Citation: 1997 Ann. Surv. S. African L. 629 1997 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Jun 13 09:44:45 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0376-4605

CRIMINAL PROCEDURE
ANDREW SKEEN*

LEGISLATION
ABOLITION

AcT 33 OF 1997 authorizes corporal punishwhich law any that The Act provides ment by a court of law, including a court of traditional leaders, is repealed to the extent that it authorizes such punishment. The impetus to this legislation was no doubt given by the finding of the Constitutional Court in S v Williams 1995 (3) SA 632 (CC); 1995 (2) SACR 251 (see 1995 Annual Survey 606) that juvenile corporal punishment was contrary to the interim Constitution. The legislation, it should be noted, applies to corporal punishment in respect of both adults and juveniles.
OF CORPORAL PUNISHMENT CRIMINAL PROCEDURE AMENDMENT

Acr 76 OF 1997

The Amendment Act repeals s 305 of the Criminal Procedure Act 51 of 1977. Section 305 provided that no person who was convicted by a law court and serving a term of imprisonment would be entitled to prosecute an appeal in person unless a judge had certified that there were reasonable grounds for review. This repeal followed the ruling of the Constitutional Court in S v Ntuli 1996 (1) SA 1207 (CC); 1996 (1) SACR 94; 1996 (1) BCLR 141 (see 1996 Annual Survey 732-3) that s 305 was unconstitutional. Parliament was given until April 1997 to remedy the defects in the section. Parliament did not act timeously and the government asked the Constitutional Court for an extension which was refused. Section 309 of the Criminal Procedure Act was amended by the addition of subsec (3A) which allows for an appeal from a lower court to be disposed of by a High Court in chambers on the written argument of the parties or their legal representatives, if the parties agree thereto and the Judge President so directs. Section 309B was added and requires an accused who wishes to appeal against an order or decision of a law court to apply within 14 days or such extended period as may be allowed to that court for leave to appeal. Procedural details are provided for. An accused may now orally apply for leave to appeal immediately after the making of the decision or order and 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

630

ANNUAL SURVEY OF SA LAW

appeal is based. Such ground must be taken down in writing and form part of the record. Where it is shown by affidavit (a) that further evidence which would presumably be accepted as true is available, (b) that if accepted could reasonably lead to a different decision or order, and (c) save in exceptional cases, that there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial, the court hearing the application for leave to appeal may receive that evidence and further evidence rendered necessary thereby, including evidence called in rebuttal by the prosecutor and evidence called by the court. Such evidence will be deemed to have been given at the trial. Section 309C has been added to the principal Act and provides for a petition procedure if leave to appeal under s 309B has been refused. The petition must be addressed to the Judge President of the High Court havingjurisdiction. The petition must be considered by two judges in chambers. Provision is made for the situation where there is a difference of opinion between the two judges. Section 309D, also a new addition to the principal Act, requires a court to advise an unrepresented accused, who has been convicted and sentenced, of his or her rights in respect of appeal and legal representation. The court must also advise as to the correct procedures to give effect to these rights. Likewise the court must inform an unrepresented accused whose application in terms of s 309B has been refused of his or her rights in respect of s 309C proceedings.
CRIMINAL PROCEDURE SECOND AMENDMENT

ACT 85 Or 1997

The Criminal Procedure Act 51 of 1977 was further amended by the Criminal Procedure Second Amendment Act. Section 50 of the principal Act, which deals with the procedure after arrest, was amended to refine the provisions requiring appearance of an arrested person in court within 48 hours: ordinary court hours are defined to mean the hours from 09h00 to 16h00 on a court day. A substituted subsec (6) provides that an arrested person is not entitled to be brought to court outside ordinary court hours for an application to be released on bail. Bail applications in respect of Schedule 6 offences may only be considered by a regional court. Schedule 6 offences include the following. First, murder when planned or premeditated and where the victim was a law-enforcement officer (whether on duty or not, 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) or a person who had given or was likely to give evidence in respect of

HeinOnline -- 1997 Ann. Surv. S. African L. 624 1997

CRIMINAL PROCEDURE

a Schedule 1 offence. Also included in this first category of offence is the situation where the death of the victim occurred during, after or during an attempt to commit, rape or robbery with aggravating circumstances; and where the offence was committed by a person, group or syndicate in the execution or furtherance of a common purpose or conspiracy. Second, rape in circumstances where (i) the victim was raped more than once, (ii) by more than one person where common purpose existed, (iii) the accused is charged with committing two or more rapes, or (iv) the accused knew he had AIDS or HIV. Rape is also a Schedule 6 offence where the victim was under 16 years of age, or was physically disabled or mentally ill, or where grievous bodily harm was inflicted. Third, robbery involving the use of a firearm, the infliction of grievous bodily harm or the taking of a motor vehicle. Fourth, indecent assault on a child under the age of 16 years involving the infliction of grievous bodily harm. Fifth, any Schedule 5 offence where the accused has previously been convicted of a Schedule 5 or a Schedule 6 offence or which was allegedly committed whilst the the accused was released on bail in respect of a Schedule 5 or 6 offence. It is provided that an attorney-general or a duly authorized prosecutor may, where the regional court is not, due to exceptional circumstances, available, direct that the bail hearing be held by some other available lower court within the area of jurisdiction of the regional court concerned. Section 59A has been inserted and allows an attorney-general or a prosecutor authorized by him or her to authorize release on bail in respect of Schedule 7 offences after consultation with the investigating officer. Schedule 7 contains most common-law offences not referred to in Schedule 6 with, in some cases, a monetary limit of the amount involved in the case. Section 60 (11) has been substituted and now requires that where an 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, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release. In cases where the offence is mentioned in Schedule 5 but not in Schedule 6 (as there may well be an overlap), the court must also order that the accused be detained in custody, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests ofjustice permit his or her release. Schedule 5 has been widened to alter the value of items involved, and to add attempted murder involving grievous bodily harm,

HeinOnline -- 1997 Ann. Surv. S. African L. 625 1997

ANNUAL SURVEY OF SA LAW

indecent assault on a child under 16 years of age, and any offence relating to exchange control, corruption, extortion, fraud, forgery, uttering or theft if it is alleged that the offence was committed by any law-enforcement officer as a member of a group of persons, syndicate or any enterprise carried out with common purpose or if the offence involves an amount of more than RIO 000. Section 60(11A) has been inserted into the principal Act to allow an attorney-general to issue a written confirmation that the offence with which the accused is charged is a Schedule 5 or 6 offence. Such notification shall be prima facie proof of the charge(s) to be brought against the accused. Section 60(llB), a new addition, compels an accused or his or her legal adviser to inform the court at a bail hearing whether the accused has previously been convicted of any offence, whether there are any charges pending against him or her, and whether he or she has been released on bail in respect of those charges. A wilful failure to comply or the furnishing of false information is made an offence which may be punished by a fine or imprisonment for a period 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 should the accused testify at bail proceedings the court must inform the accused that his or her evidence may be used at subsequent proceedings. This provision confirms the decision of the Appellate Division in S v Nomzaza 1996 (2) SACR 14 (A) where it was held that the evidence of an accused in a bail application, if it is otherwise admissible, can be admitted against him or her at a subsequent trial in terms of s 235 of the Criminal Procedure Act. Section 60(14) has been added and reinstates the prosecutorial privilege in respect of police dockets and supporting documents. This applies only to bail proceedings and it is provided that the subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for the purposes of trial. This upholds the general abolition of docket privilege as a result of the judgment of the Constitutional
Court in Shabalalav Attorney-General of Transvaal1995 (2) SACR 761

(CC). (See the chapter on the Law of Evidence.) Minor changes have been made to ss 68 and 72Awhich provide for the cancellation ofbail and cancellation of release on warning respectively. Finally, s 75(3) was added to the principal Act to provide that the court before whom an accused appears for the purpose of a bail application shall, at the conclusion of the bail proceedings or at any later stage, but before the accused has pleaded, refer the accused to a court designated by the prosecutor for purposes of trial.

HeinOnline -- 1997 Ann. Surv. S. African L. 626 1997

CRIMINAL PROCEDURE PAROLE AND CORRECTIONAL SUPERVISION AMENDMENT

ACT 87

OF

1997 Section 276B has been added to the Criminal Procedure Act by the Parole and Correctional Supervision Amendment Act. This section allows a court to fix a non-parole period in respect of any sentence of imprisonment of two years or longer. Such period may not exceed two-thirds of the term of imprisonment or 25 years, whichever is the shorter. Where a person is sentenced to two or more periods of imprisonment and the court orders that these periods shall run concurrently, the court must fix the non-parole period in respect of the effective period of imprisonment.
CRIMINAL LAW AMENDMENT

ACT 105 OF 1997

The Act repealed various sections of a number of Acts relating to capital punishment and sets alternative punishments. The Act also makes provision for the substitution of death sentences and the imposition of alternative punishments. It also amends the Criminal Procedure Act in certain respects. Section 18 has been amended to provide that the right to institute a prosecution shall, unless some other period is expressly provided by law, lapse after 20 years from the time the offence was committed. However, the right will never prescribe in respect of murder, treason committed when the Republic is in a state of war, robbery if aggravating circumstances are present, kidnapping, child-stealing or rape (all offences for which the death penalty was competent). The section is deemed to have come into force on 27 April 1994. This deeming provision is necessary to cover the situation that occurred in S vDeFreitas1997 (1) SACR 180 (C) which is discussed under the section 'Prosecution: Prescription' in the review of case law below. Section 51 of the Criminal Law Amendment Act provides for minimum sentences for certain serious offences. The High Court shall sentence a person who is convicted of an offence referred to in Part I of Schedule 2 to life imprisonment. The part in the schedule refers to murder and rape committed in certain circumstances. The circumstances are the same as those listed in Schedule 6 of the Criminal Procedure Act discussed above in respect of bail under the Criminal Procedure Second Amendment Act. The court, if satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than that prescribed, shall enter those circumstances on the record and then impose a lesser sentence. A regional court or High Court must sentence a person who has been convicted of an offence in Part II of Schedule 2 to minimum

HeinOnline -- 1997 Ann. Surv. S. African L. 627 1997

t34

ANNUAL SURVEY OF SA LAW

periods of imprisonment depending on whether the accused is a first, second, third or subsequent offender. The categories of offences are similar to those included in Schedule 5 to the Criminal Procedure Act (discussed above under the 'Criminal Procedure Second Amendment Act'). Minimum sentences are also prescribed for rape, indecent assault on a child under 16 years involving the infliction of bodily harm, assault with intent to do grievous bodily harm on a child under the age of 16 years, and possession of more than 1 000 rounds of ammunition. If a court decides to impose a minimum sentence on a child between 16 and 18 years of age it must enter its reasons on the record. 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 in Schedule 2 of the Act but before sentence, is of the opinion that the offence in respect of which the accused has been convicted merits punishment in excess of itsjurisdiction, it shall stop the proceedings and commit the accused for sentence by a High Court having jurisdiction. Provision is made for the High Court before which the matter comes to alter the plea to one of not guilty if certain factors are found to exist. The above provisions relating to minimum sentences will only endure for two years but may be extended by the President, with the concurrence of Parliament, for one year at a time. CASE LAW
PROSECUTION

Prescription Until the passage of Act 105 of 1997 (see 'Legislation' above) the right to institute a prosecution lapsed after 20 years except for offences for which the death penalty could be imposed, in respect of 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 the accused was charged with two counts of rape committed between 1970 and 1974. The accused was summoned to court in 1995. Rape was a capital offence until the court decided in S v Makwanyane 1995 (3) SA391 (CC); 1995 (2) SACR 1 that the interim Constitution had made the death penalty unconstitutional and in Ferreirav Levin NO; Vryenhoek v Powell NO 1996 (1) 984 (CC) that such invalidity took effect on 27 April 1994. Consequently, in DeFreitasthe court held that as the death penalty was no longer competent for rape, the accused

HeinOnline -- 1997 Ann. Surv. S. African L. 628 1997

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 respect of which the right to prosecute will never prescribe.
BAIL AND RELEASE ON WARNING

PrinciplesRelating to the Grant of Bail In S v Letaoana 1997 (11) BCLR 1581 (W) the basic principles relating to the grant of bail were reiterated by Marcus AJ, who indicated that these principles must be considered in the light of two important legal developments. The first concerns legislative amendments in 1995 to the Criminal Procedure Act provisions dealing with bail and the second is the effect of the interim and the final Constitutions on bail. These provisions gave an accused person the right to be released from detention if the interests of justice permit, subject to reasonable conditions. Marcus AJ indicated that there had been a number of decisions dealing with the impact of the interim Constitution on the grant of bail; most have related to the question of onus and are not harmonious. (See the 1994 Annual Survey 584-6 and the 1996 Annual Survey 720-2). Marcus AJ pointed out that the interim Constitution required courts, when interpreting any legislation and when developing the common law or customary law, to have due regard to the spirit, purport and objects of the Bill of Rights, whereas the 1996 Constitution substitutes the words 'must promote' for the words 'to have due regard to'. Although the judgment in this case did not necessitate further development of the principles governing the grant of bail, it was emphasized that every judge is required to take account of the requirements of the Constitution. Onus Section 60 (11) of the Criminal Procedure Act places an onus on an applicant for bail in respect of certain offences to show that it is in the interests ofjustice that he or she be released on bail. The case of S v Stanfield 1997 (1) SACR 221 (C) is one in which the appellant was 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 against the refusal to grant release on bail are per se urgent. Where the appellant is in custody because of the refusal the matter must be heard as soon as reasonably possible. Section 65 of the Criminal

HeinOnline -- 1997 Ann. Surv. S. African L. 629 1997

ANNUAL SURVEY OF SA LAW

Procedure Act 51 of 1977 demonstrates this by providing that a bail appeal may be heard by a singlejudge. This case is discussed further in the 1996 Annual Survey 721, where the question of onus and the role of the judicial officer in bail applications is discussed. See generally S v Dhlamini 1997 (1) SACR 54 (W). Bail PendingAppeal Where an appeal is struck off the roll, bail which is granted pending appeal lapses and during an application for the reinstatement of bail the court has to exercise its discretion afresh as to whether to reinstate bail or not: S v Ramakolo 1997 (2) SACR 749 (T). Release on 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 for non-attendance in terms of s 170 of Act 51 of 1977. In terms of s 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 coextensive with the warning given to the parent.
THE CHARGE

Amendment In S v Mahlangu 1997 (1) SACR 338 (T) the accused was convicted of bribery in the magistrate's court. As the common-law offence of bribery was abolished by Act 94 of 1992, the issue on review was whether the conviction could be amended to one of contravening s 1(1)(a)(i) of Act 94 of 1992, which is for all practical purposes equivalent to the common-law offence of bribery. The test applied on review was whether the amendment would have prejudiced the accused in his defence. All that was needed was that the citation of the charge should be amended. The allegations would essentially have to be the same and the defence would not have been materially affected or presented differently. The wellknown test enunciated in S v Kruger1989 (1) SA 785 (A) was applied. This test requires the court to determine whether the proposed amendment changes the charge to such an extent as to be in essence a new charge. In such a case substitution rather than amendment would occur. In this case it was decided that the proposed amendment did not amount to a substitution and it was duly effected.

HeinOnline -- 1997 Ann. Surv. S. African L. 630 1997

CRIMINAL PROCEDURE

Inferring ofEssential Allegation In S v Sithole 1997 (2) SACR 306 (ZS) it was held that a charge of fraud would not be fatally defective if the allegation of prejudice was not expressly mentioned but could be inferred from the factual allegations set out in the charge sheet. This case is also discussed in the chapter on Criminal Law. Splitting of Charges In S v Labuschagne 1997 (2) SACR 6 (NC) the appellant had been convicted, inter alia, of three counts of theft. She admitted removing three different amounts of cash on the same day from the company by whom she was employed. It was held that the three convictions amounted to a duplication of charges as the offences were committed 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 and Criminal Law.
THE PLEA

Autrefois Acquit In S v McIntyre 1997 (2) SACR 333 (T) it was held that the test was to ascertain whether the evidence necessary to support the second indictment could have been sufficient to prove a conviction on the first indictment. The emphasis lay in the criminal act and not so much in the description of the charge. Section 35(3) (m) of the final Constitution provides that a person may not be tried for an offence in respect of which that person has previously been either acquitted or convicted. In this case the appellants had been previously acquitted of assault with intent to do grievous bodily harm and were later charged with murder. The murder arose out of the same incident and the deceased died on the day of the assault. The charges were held 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 were indicted to stand trial in the Witwatersrand Local Division on charges of murder, rape and robbery. During the trial the state sought to introduce in evidence the record of the plea proceedings which took place before a magistrate in terms of s 119 of the Criminal Procedure Act. Counsel for some of the accused objected to certain admissions made in terms of s 119. The first ground of

HeinOnline -- 1997 Ann. Surv. S. African L. 631 1997

ANNUAL SURVEY OF SA LAW

objection was that the accused had not been advised of their right to legal representation before they had made the admissions. It was held that the objection was not well-founded. The second ground of objection was based on s 25(3) (c) of the interim Constitution, which gave an accused person the right to remain silent during plea proceedings at trial. The objection was that the magistrate had not advised the accused of their right to silence. Section 119 of the Criminal Procedure Act requires that when the charge is put to an accused he or she 'shall... be required ... to plead thereto forthwith'. Nugent J cited with approval the dictum in S v Mabaso 1990 (3) SA 185 (A) in which it was said that there is no room whatever in the pleading stage for the privilege against self-incrimination. Any attempt to impart it would represent a complete stultification of the requirement to plead. NugentJ was faced with a decision by Borchers AJ in S v Maseko 1996 (2) SACR 91 (W), where it was held that even where an accused pleads guilty under s 119 proceedings he or she must be warned of the right to remain silent under s 25(3) (c) of the interim Constitution, and that a failure to do so means that the record of the proceedings are not subsequently admissible in evidence. Borchers AJ said that even before the enactment of the Constitution it was settled law that if an accused is questioned in terms of s 112(1) (b) of the Criminal Procedure Act he or she has the right to remain silent. (Where an accused pleads guilty in s 119 proceedings, s 121 requires that the provisions of s 112(1) (b) relating to the guilty plea procedure should be applied.) Borchers AJ reached this conclusion by relying on a dictum in a minority judgment of Milne JA in S v Mabaso supra. Nugent J indicated that an obiter dictum in a minority judgment cannot be regarded as settled law. In view of the fact that Borchers AJ was clearly wrong in concluding that the matter was settled, NugentJ did not consider himself bound by her decision. He held that a person cannot plead guilty without at the same time accepting the obligation to answer questions. A right to silence is inherently incompatible with a plea of guilty. An accused has no right to refrain from answering questions in relation to a plea of guilty; if he or she wishes to preserve the right to silence, his or her course is to plead not guilty. The evidence was ruled to be admissible. This decision accords with common sense. Any contrary view would render s 112(1) (b) proceedings and allied proceedings under 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 has correctly admitted the essential elements of the charge. The right

HeinOnline -- 1997 Ann. Surv. S. African L. 632 1997

CRIMINAL PROCEDURE

to silence is surrendered vis-A-vis questioning to test a plea of guilty once an accused tenders such a plea. Where this may be an anomaly is in the instance where an accused pleads guilty but the court later corrects the plea to one of not guilty under s 113 of the Criminal Procedure Act. Section 113 provides that any allegation that had been admitted by the accused prior to the change of plea, save that effected by the change of plea, shall stand as proof in any court of that allegation. Under s 115 of the Act, which regulates the procedure relating to pleas of not guilty, an accused must be warned that he need make no admissions or statement. (See S v Daniels 1983 (3) SA 275 (A).) A failure to warn an accused may lead to the evidence being inadmissible. No such judicially sanctioned requirement seems to exist under s 113. Therefore if an accused who pleads guilty is correctly required to answer questions 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 the admissions, which are not affected by the plea change, standing. It is 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 may only occur when s 112 proceedings are in progress and before sentence is passed. Where an accused has pleaded guilty and the plea is subsequently altered to one of not guilty, and the accused is ultimately found guilty, s 113 cannot be used again prior to sentence if it transpires that the accused could raise the plea of autrefois acquit. 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 terms of s 175 of Act 51 of 1977, the accused and the prosecutor were not obliged to address the court. Where the right is declined, it is either abandoned or lost. Assessors In S v Gambushe 1997 (1) SACR 638 (N) it was stated that where assessors are appointed in cases in the magistrates' courts the judgment should reflect whether the acceptance of each material aspect of the evidence was the unanimous view of the members of the court. Reasons for dissent should be recorded. Where an

HeinOnline -- 1997 Ann. Surv. S. African L. 633 1997

ANNUAL SURVEY OF SA LAW

assessor has special knowledge of a custom or habit peculiar to a community from which the accused or victim comes, and such knowledge has affected the assessor's conclusion as to the facts, he or she ought to inform the court so that the existence or otherwise of the custom may be properly aired in evidence and form part of the record. Assessors appointed in terms of s 93ter of the Magistrates' Courts Act 32 of 1944 must be appointed before any evidence is led. Answers to questions where the accused pleads guilty in terms of s 112 of Act 51 of 1977 are not to be regarded as evidence for the purpose 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 commenced before a magistrate and two assessors. After an adjournment the assessors were not present and the court, with the consent of the prosecutor and accused, decided to continue without them. It was held on review that there was no indication that the assessors became unavailable or untraceable. All the state evidence had been led but the accused had not yet closed his case. The conviction was set aside as the court had not been properly constituted because it was held, following R v Price 1955 (1) SA 219 (A), that prima facie when a decision is entrusted to a tribunal consisting of more than one 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 the matter was partly heard. It was held that an assessor can only be released from duty if he or she becomes unfit to complete the task at hand. See also SvK1997 (1) SACR 106 (C). In SvDaniels 1997 (2) SACR 531 (C) an assessor became unavailable during the course of the trial, which continued without the assessor. The accused consented to this procedure. The magistrate indicated that it could not be established when the assessor would next be available. It was conceded 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 not prejudiced as there was only one assessor originally and the magistrate's finding of fact would prevail. FarlamJ said that this approach overlooked the fact that the assessor, if he or she disagreed with the magistrate, might have been able to persuade the magistrate that his or her view was correct. The conviction and sentence were set aside.
Assistance by Court

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

HeinOnline -- 1997 Ann. Surv. S. African L. 634 1997

CRIMINAL PROCEDURE

version to state witnesses: S v Simxadi 1997 (1) SACR 169 (C). In S v Moilwa 1997 (1) SACR 188 (NC) the court refused to assist the accused in leading the evidence of a witness. The court was not mindful of the provisions of ss 167 and 186 of Act 51 of 1977 and neglected to ask the necessary questions. The result was that the accused did not have a fair trial. The conviction and sentence were set aside. Assistance by Guardianor Parent Non-compliance with ss 73 and 74 of the Criminal Procedure Act (concerning the advising of parents of a juvenile to be present at court and the right of a juvenile to be assisted by a parent or guardian) does not per se constitute a fatal irregularity unless there is proof of substantial prejudice to the accused or a miscarriage of justice. The accused is entitled to a fair trial, prejudice being the determining factor in such inquiry: S v N1997 (1) SACR84 (TkSC). Curial Courtesy In S v Philemon 1997 (2) SACR 651 (W) the magistrate addressed the appellant in a discourteous manner and his behaviour was crass, impolite and impartial. It was held that such conduct did serious damage to the administration of justice, thus bringing the legal process into disrepute with the public. As the magistrate had behaved in the same manner in another case the matter was referred to the Magistrates' Commission. Legal Representation In S v Maduna 1997 (1) SACR 646 (T) it was held that when an accused requests legal representation it necessarily implies an adjournment of the case. If this is denied without a proper reason it would result in an irregularity and if the accused were prejudiced in that justice was not done the conviction and sentence would be set aside. The reasons for the refusal of the application should be considered first and if it appears that the court has not exercised its discretion judiciously then the further conduct of the trial has to be considered to determine whether justice was done. In S v Harris1997 (1) SACR 618 (C) the accused's legal representative withdrew because of non-payment of fees. The accused asked for a postponement in order to raise funds. The postponement was refused. Although the appellant had been remiss in not arranging finances timeously, it was held that the court should have questioned the accused further as to when he proposed to raise the

HeinOnline -- 1997 Ann. Surv. S. African L. 635 1997

ANNUAL SURVEY OF SA LAW

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. Factors such as the disruption of the court roll and prejudice to the administration of justice should not have been given undue weight. The conviction and sentence were set aside and a trial de novo ordered. See also S v Philemon 1997 (2) SACR 651 (W) where a refusal to adjourn a matter because of the absence of the accused's attorney led to the setting aside of the conviction and sentence. It was held that the court was not entitled without inquiry to infer that the absence of the attorney was due to a negligent omission by the accused, or that instructions two days before the trial was not proper instruction. In Mgcina v RegionalMagistrate,Lenasia1997 (2) SACR 711 (W) it was held that the appellant's constitutional rights had been breached in that his right to legal representation had not been explained to him. This led to his failure to pursue applications to the Legal Aid Board. His constitutional rights had also been breached through the failure of the trial court to consider whether substantial injustice would occur if legal representation was not provided at state expense. It was also held that nothing is to be gained by examining the evidence led during the trial in order to evaluate its cogency as it is impossible to say what effect a properly conducted defence would have had on the 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 legal representation at state expense 'where substantial injustice would otherwise result' did not have, as a minimum content, the practical meaning that if any indigent person were to be tried without legal representation, he or she could not be sentenced to imprisonment without substantial injustice resulting. The court held that if the framers of the Constitution had intended such a simple and straightforward rule, they could and presumably would have enshrined it in 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 representation resulted in material injustice. Also of relevance here are LegalAid Board v Msila 1997 (2) BCLR 229 (E) and Klink v Government oftheRepublic of South Africa 1997 (10) BCLR 1453 (E). An accused is not entitled to have his legal representative present at a photographic identification parade as such a right does not extend to every investigative procedure. The right only extends to pre-trial procedures where the accused is present and where the

HeinOnline -- 1997 Ann. Surv. S. African L. 636 1997

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 not embrace the right to have a trial postponed repeatedly because a first-choice representative is unavailable. Moreover, the practitioner instructed is under a duty to see that the defence is ready or to make other arrangements for the accused to be represented: S v Molenbeek 1997 (12) BCLR 1779 (0). Lost and Incomplete Records A magistrate does not have the power to recall witnesses for the purposes of reconstructing lost records of proceedings. The primary source for the reconstruction of a record is the magistrate's notes. Thereafter, the clerk of the court has to reconstruct the record by the most fair and reliable means, that is, affidavits from witnesses and assessors as to whether they agree with the reconstruction or not: 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 a witness who had incriminated the accused and thereafter failed to advise the accused of his right to re-open his case. This was held to be a fatal irregularity which vitiated the proceedings. Recusal ofAssessors In S v Kroon 1997 (1) SACR 525 (SCA) an application was made after conviction for the recusal of one of the assessors on the ground that three years earlier he had gone on early retirement because of medical unfitness. The appellant was of the considered opinion that the medical condition was permanent and that the assessor was not competent to fulfil his duties. It was not argued that the assessor was in fact incompetent or unfit. The assessor withdrew in the interests of the administration of justice after the judge had ruled against recusal. This all happened after the conviction of the accused. As assessors legally have no further duties to fulfil after conviction, the withdrawal per se had no effect on the proceedings that followed. The matter was, however, considered as an exception and in the interests ofjustice. The court decided that the reasonable perception or suspicion test did not apply here and that the competence or lack of it could be

HeinOnline -- 1997 Ann. Surv. S. African L. 637 1997

ANNUAL SURVEY OF SA LAW

established objectively. It was never argued that the assessor was mentally incompetent, nor that the appellant's perception, no matter how reasonable, could be used to challenge the legality of his participation in the trial. Separation of Trials In deciding whether to order a separation of trials the primary question to be determined is that of prejudice in the sense that a miscarriage ofjustice occurred or would occur: S v Plaatjies1997 (2) SACR 280 (0). Special Entry A special entry in terms of s 317 of the Criminal Procedure Act must be formulated in the form of a factual finding supported by an allegation that it resulted in an irregularity that preventedjustice from 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 issue that 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 issue were reported: Sanderson v Attorney-General, Eastern Cape 1997 (1) SACR 462 (SE); Wild v Hoffert NO 1997 (2) SACR 233 (N); Du Preez v Attorny-General, Eastern Cape 1997 (2) SACR 375 (E); Coetzee v Attorney-General: KwaZulu/Natal [1997] 3 All SA 241 (D). In those cases the principles set out in the decision of the United States Supreme Court in Barkerv Wingo (1972) 407 US 514 were approved of and adopted. The principles are the consideration of (i) the length 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 prejudice to the accused. In Sanderson vAttorney-General,Eastern Cape 1997 (12) BCLR 1675 (CC) the Constitutional Court, in discussing the Barkercase, repeated a warning that comparative research is generally valuable but requires circumspection and acknowledgment that transplants require careful management. The 'assertion of right' requirement in Barker should not be adopted without making due allowance for the fact that the vast majority of South African accused persons are unrepresented and have no conception of a right to a speedy trial. To deny them relief because they did not assert their rights would be to strike a pen through the right as far as the most vulnerable members of

HeinOnline -- 1997 Ann. Surv. S. African L. 638 1997

CRIMINAL PROCEDURE

society are concerned. It would be equally unrealistic not to recognize that the administration of the whole criminal justice system is under severe stress at present (para 26). KrieglerJ also indicated that '[t]ime does not only condition the relevant considerations, such as prejudice, it is also conditioned by them. The factors generally relied upon by the state- waiver of time periods, the time requirements inherent in the case, and systemic reasons for delay - all seek to diminish the impact of elapsed time' (para 29). In S v Pennington1997 (4) SA 1076 (CC) it was held that although delays in the hearing of an appeal might extend the period of anxiety which appellants undergo before finality, appellate delays are materially different from trial delays. There can be no question of prejudice for the appeal is decided on the trial record and the outcome cannot be affected by delay. These cases are discussed also in the chapters on Constitutional Jurisprudence and Civil and ConstitutionalJurisdiction and Procedure. Verdict In S v Tshoweu 1997 (2) SACR 226 (T) the magistrate gave judgment without consulting the assessors. After the verdict the magistrate asked both assessors whether they confirmed the prima facie factual finding which had been made earlier by the three but before the addresses on verdict. Both assessors agreed with the verdict. It was held that such procedure was in order and that no miscarriage ofjustice had occurred. It is competent on charges of housebreaking with intent to steal and theft to find an accused guilty of housebreaking with intent to contravene s 1 (1) (a) of the Trespass Act 6 of 1959 and the contravention thereof rather than housebreaking with intent to trespass: S vJasat 1997 (1) SACR 489 (SCA).
THE SENTENCE

GeneralPrinciples In S v Mhlakaza 1997 (1) SACR 515 (SCA) the appropriateness of prison sentences cumulatively in excess of 25 years was considered. The Supreme Court of Appeal per Harms JA said that the notion that sentences in excess of 25 years were only exceptionally imposed ought to be guarded against as it put an unacceptable restriction on the discretion to impose a reasonable and fair sentence. It was indicated that since the abolition of the death penalty longer periods of imprisonment would become more common. Lengthier

HeinOnline -- 1997 Ann. Surv. S. African L. 639 1997

ANNUAL SURVEY OF SA LAW

sentences could well be justified by the heightened incidence of violence. But whether or not such sentences fall within the limits of what may be considered proper or appropriate will inevitably depend on the facts of each particular case. See also S v Qamata1997 (1) SACR 479 (E). HarmsJA indicated that, given the current levels of violence and serious crimes, it seems proper that the emphasis should be on retribution and deterrence. The effectiveness of general deterrence is unclear but, according to judicial precedent, remains an important consideration. As far as individual deterrence is concerned it should be borne in mind that there is no reason to believe that the deterrent effect of a prison sentence is always proportionate to its length. See also the discussion of retribution and deterrence in S 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 possession of ammunition. The attempted murders occurred in the course of a shootout with the police. The accused was 19 years old when the offences were committed and was rendered quadriplegic during the shootout. This state would be permanent. The court, after rejecting the suggestion of a totally suspended sentence, held that the accused was to be treated more leniently because his physical condition placed him in a 'prison far more harsh than any built of bricks and mortar' (at 269e-f). The accused was sentenced to an effective 10 years' imprisonment with a recommendation that he should be considered for parole on medical grounds in terms of s 69 of the Correctional Services Act 8 of 1959. In S v Mokoena 1997 (2) SACR 502 (0) the accused was sentenced to five years' imprisonment for contravening s 5 (b) of the Drugs and Drug 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 for parole or correctional supervision. On review, it was held that s 287(4) could not be applied as the accused had been sentenced to imprisonment without the option of a fine. Thus the court had no power to order that the accused could not be considered for parole or that he did not qualify to have his sentence converted into correctional supervision.
Imprisonment

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

HeinOnline -- 1997 Ann. Surv. S. African L. 640 1997

CRIMINAL PROCEDURE

further conviction. A court has a discretion whether or not to bring a 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 of unsuspended imprisonment. In view of the critical overcrowding of prisons, the appalling conditions and the unavailability of an alternative form of punishment, suspended sentences of imprisonment should be imposed: S v Standaard1997 (2) SACR 668 (C). Fine Where a court imposes a fine and the accused is unable to pay it immediately, the court shall mero motu institute an inquiry in terms of s 297(5) (b) of Act 51 of 1977. The court must explain the option of payment by instalments. If the accused is imprisoned because of non-payment of a fine, the prison authorities should investigate whether there was a reasonable possibility that the fine could be paid in instalments. If so, immediate arrangements should be made for the accused to be brought before a court for an enquiry in 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 the relationship of fines to alternative periods of imprisonment had not kept in touch with the devaluation of money. Compensation In S v Lombaard 1997 (1) SACR 80 (T) a compensation order in terms of s 300 of the Criminal Procedure Act was refused as it was held that it was a complicated civil matter which could only be decided if all the points in issue were defined in pleadings and further evidence led thereon. A compensating order cannot be combined with a sentence of correctional supervision: S v Medell 1997 (1) SACR 682 (C). CorrectionalSupervision Where imprisonment without the option of a fine is prescribed as a sentence for an offence, correctional supervision is not a competent sentence as it does not constitute 'a sentence': S v Lowis 1997 (1) SACR 235 (T). There is no anomaly in delineating a sentence properly and also giving the Commission of Correctional Services the right to mitigate the conditions of a sentence, as reducing a sentence for good behaviour is a cornerstone of the penal system. It was held that there

HeinOnline -- 1997 Ann. Surv. S. African L. 641 1997

ANNUAL SURVEY OF SA LAW

could be no objection to a court alleviating the conditions of a sentence of correctional supervision and amending the conditions to take account of altered circumstances: S v Sekoboane 1997 (2) SACR 32 (T). The powers of the Commissioner of Correctional Services to reimprison a probationer are considered in Roman v Williams NO 1997 (2) SACR 754 (C). Section 84B of the Correctional Services Act 8 of 1959 is not unconstitutional. Such a decision by the Commissioner of Correctional Supervision is a reviewable administrative act in terms of subsecs (1) and (2) of s 33 of the Constitution of the Republic of South Africa (Act 108 of 1996). Roman is discussed also in the chapter on Constitutional Jurisprudence. Specific Offences Murder In S v Qamata 1997 (1) SACR 479 (E) it was said byJonesJ that the killing of elderly persons living alone in remote farmhouses in order to rob them is so heinous an offence that it frequently calls for the most extreme sentence - that of life imprisonment. Now that the death penalty no longer exists the practice of not imposing sentences exceeding 25 years should be revised. Whether belief in witchcraft can be a mitigating circumstance where an accused is convicted of murder is again revisited in S v Phama 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 an extreme right-wing gang. The murder was committed to further the objects of this group. Life imprisonment was considered to be an appropriate sentence. In respect of life imprisonment see further S v Stonga 1997 (2) SACR 497 (0) and S v Moses 1997 (2) SACR 322 (NmS). Rape In S v Chapman 1997 (2) SACR 3 (SCA) the Supreme Court of Appeal indicated that rape is a very serious crime which is humiliating, degrading and a brutal invasion of the privacy, dignity and person of the victim. Women are entitled to protection of these rights which are basic to the ethos of the Constitution. Women have a legitimate claim to walk peacefully on the streets, to enjoy their shop.ping and their entertainment, to go and come from work, and to enjoy the tranquility of their homes without the fear, the

HeinOnline -- 1997 Ann. Surv. S. African L. 642 1997

CRIMINAL PROCEDURE

apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives. The court was under a duty to send a clear message to the accused in the present case, to other potential rapists and to the community that courts are determined to protect the equality, dignity and freedom of all women and will show no mercy to those who seek to invade these rights. Bravo! one can only say. But do deterrent sentences work? Sometimes, with some persons and in respect of certain offences. However, before there is any hope of this happening, there must be consistent publicity of sentences passed and a marked increase in the rate of convictions. In S v M 1997 (1) SACR 276 (W), a case of housebreaking with intent to commit rape, attempted rape and attempted murder, Wunsh J said in respect of the attempted rape that the callous conduct of the appellant and the obvious shock suffered by the complainant should, despite the absence of physical injury as a result of the rape attempt, not lead to a reduction of what was an appropriate sentence. In Attorney-General,Eastern Cape v D 1997 (1) SACR 473 (E) the accused had gagged and then raped an 11-year-old virgin in her home. He had been sentenced to six years' imprisonment totally suspended on conditions. An appeal was prosecuted by the AttorneyGeneral in terms of s 310A of Act 51 of 1977. The court held that the elements of retribution and deferrence rather than the interests of 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 had savagely raped and sodomized a 15-year-old virgin over a period of five hours. The appellant was diagnosed as having a mixed personality disorder. The trial judge placed decisive emphasis on evidence that there was little prospect of his being cured and that on release from prison he would be a danger to the public. A sentence of life imprisonment was imposed. On appeal, by a majority, the sentence was set aside and the matter remitted to the trial court to consider acting in terms of s 286A of the Criminal Procedure Act (declaring an offender to be a dangerous criminal). The grounds for so doing were that the trial court had not exercised a proper discretion as it had failed to consider the possibility of utilizing s 286A. Robbery In S v Belelie 1997 (2) SACR 79 (W) the accused was convicted on three counts of robbery and one count of attempted murder which was committed on one of the robbery victims immediately after the

HeinOnline -- 1997 Ann. Surv. S. African L. 643 1997

650

ANNUAL SURVEY OF SA LAW

robbery. As regards the third robbery and the attempted murder, the sentences were five years' and ten years' imprisonment respectively. It was held that this was a duplication of punishment and it was ordered that the sentences should run concurrently.

Theft
For factors to be taken into account in stock-theft cases in the Northern Cape, see Sv Tyers 1997 (1) SACR 261 (NC); see also Sv Molenbeek 1997 (2) SACR 346 (0). In S v Baartman 1997 (1) SACR 304 (E), a sentence of nine months' imprisonment for a third offence of shoplifting was replaced by a sentence of six months of which three months were suspended on conditions.JonesJ said that the punishment must fit the crime and there is a limit beyond which a sentence is no longer proportionate. For petty theft the limit is probably between four and six months' imprisonment (at 305f-g). Fraud In S v Nagrani 1997 (2) SACR98 (W) the appellant was convicted of 21 counts of fraud involving several million rand which was owing as value-added tax (VAT). He was sentenced to eight years' imprisonment of which two years' imprisonment was suspended on conditions. On appeal it was held that correctional supervision in terms of ss 276(1) (h) and 276(1) (i) of Act 51 of 1977 was ruled out as the period of imprisonment exceeded five years. The sentence was confirmed on appeal with the following aggravating factors being taken into account: the seriousness and prevalence of the offence, the amount of money involved and that the appellant was in a position 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-old first offender in respect of possession of drugs, was convicted of possessing six mandrax tablets. He earned R350 per month and supported four children. The accused was fined R2 000 or, in default of payment, 18 months' imprisonment. He had been in prison for five months awaiting trial. The offence could not be likened to drug smuggling and the sentence was held to be unduly harsh. A sentence of R500 or, in default of payment, four months' imprisonment was imposed. In S v Masia 1997 (2) SACR 687 (0) the accused was convicted of the possession of eight kilogrammes of dagga and he was sentenced to a fine of R3 000 or 18 months' imprisonment. He was an

HeinOnline -- 1997 Ann. Surv. S. African L. 644 1997

CRIMINAL PROCEDURE

unemployed 39-year-old first offender with three dependants. He had pleaded guilty. As the accused was not in a position to pay the fine and was effectively sentenced to imprisonment, it was held that the sentence was unduly harsh. It was substituted by a sentence of R800 or, in default of payment, four months' imprisonment.
REVIEW

For a change of plea under s 113 of Act 51 of 1977 and review under 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 a matter should not be reviewed piecemeal: S v McIntyre 1997 (2) SACR 333 (T).
APPEAL

Reported in 1997 (2) SACR 1 (SCA) are practice directions in respect of the Supreme Court of Appeal which were issued by the Chief Justice. First, the registrar must be informed immediately it becomes known that an appeal is to be postponed or has been settled. Secondly, the heads of argument of each party must be accompanied by a brief typed note that indicates, inter alia, the issues on appeal succinctly stated (for example, negligence in MVA cases); an estimate of the duration of argument; if more than one day is required for argument, the reasons for such request; if the appeal is urgent or is entitled to some precedence on the roll, the reasons therefor; a list reflecting the parts of the record that are not relevant for the determination of the appeal; a summary of the argument not exceeding two folios; and an indication of the authorities to which particular reference will be made during the course of argument. 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 the appellant on the question of sentence: S v Notoane 1997 (2) SACR 448 (T). Although sentencing is pre-eminently a matter falling within the discretion of the trial court, it is permissible to interfere with a sentence where there is a striking difference between the sentence imposed and the sentence which the court of appeal, sitting as a court of first instance, would have imposed: S v Manonela 1997 (2) SACR 690 (0). Section 310A of the Criminal Procedure Act was intended to widen the powers of the attorney-general in connection with the increase of sentences on appeal and not to restrict such powers. The

HeinOnline -- 1997 Ann. Surv. S. African L. 645 1997

652

ANNUAL SURVEY OF SA LAW

section is clearly aimed at cases where the accused does not appeal -when the accused appeals the state does not require a right to appeal: S v Kellerman 1997 (1) SACR 1 (A). It was also confirmed that the rule of practice which provides that an accused is not entitled to withdraw his appeal once notice has been given that an increase of sentence on appeal will be sought was not affected by the introduction of s 310A. In S v Lapi 1997 (2) SACR 272 (0) the appeal was not noted timeously and the grounds of appeal did not comply with the Rules of Court. It was also averred that the grounds of appeal in the heads of argument were not contained in the notice of appeal. The court, however, heard the appeal on the basis that the point of dispute between the appellant and the state was simple and the state had not been caught unawares by the shortcomings of the notice of appeal. It is a well-established principle governing the hearing of appeals against findings of fact that, in the absence of demonstrable and material misdirection by the trial court, its findings of fact will be presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong: S v Hadebe 1997 (2) SACR 641 (SCA). Access and Referral to ConstitutionalCourt For circumstances in which a case may be referred to the Constitutional Court see S v Bequinot 1997 (1) SACR 369 (CC), where the circumstances of referral of issues and direct access under the interim Constitution 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 Court There is no express or implied provision in s 316(3) of Act 51 of 1977 which prevents the state from filing opposing affidavits in an application for the remittal of a matter for the hearing of further evidence: S v Ngavonduueza 1997 (1) SACR 203 (NmHC).
JURISDICrION

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

HeinOnline -- 1997 Ann. Surv. S. African L. 646 1997

CRIMINAL PROCEDURE

653

offence was committed within the jurisdiction of the court. It was held that despite the omission there was nothing to suggest that the proceedings were not in accordance with justice nor was it in the accused's interest to have the convictions and sentences set aside for the purpose of correcting this defect. In S vDersley 1997 (2) SACR 253 (Ck) an interesting discussion of jurisdiction is to be found. After discussing a number of authorities White J concluded that there was authority in our law for holding that if a person, who is domiciled within a court's area ofjurisdiction, commences an offence within but 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 courts possess jurisdiction where an offence is commenced outside and completed within their area ofjurisdiction.
EXTRADITION

There is no extradition treaty in force between Germany and South Africa and the President of the Republic of South Africa is entitled to proceed in terms of s 3(2) of the Extradition Act 67 of 1962 for the extradition of German citizens. The Extradition Treaty of 1872 between the United Kingdom and Germany is not in force in South Africa: Harksen v President of the Republic of South Africa 1997 (2) SACR 139 (C). It was also decided that s 3(2) of the Extradition Act is not unconstitutional as it did not lead to procedural unfairness.
MISCELLANEOUS

Precedent Where a magistrate is faced with divergent decisions from various Provincial Divisions, he or she is bound by the decisions of the High 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 CriminalProcedureAct. Revised ed. By Etienne du Toit SC, FrederickJ dejager, Andrew Paizes, Andrew St Quintin Skeen & Steph van der Merwe. Cape Town:Juta & Co Ltd. 1997. Cross-examinationin South African Law. By J P Pretorius. Durban: Butterworths. 1997. Die Strafproseswet 51 van 1977 (soos Gewysig). 9 ed. Compiled and edited by Owen Barrow. Cape Town:Juta & Co Ltd. 1997.

HeinOnline -- 1997 Ann. Surv. S. African L. 647 1997

ANNUAL SURVEY OF SA LAW

Law of CriminalProcedureandEvidence Casebook/Strafproses en Bewysreg Vonnisbundel. By A M Sorgdrager. 2 ed. Durban: Butterworths. 1997. The CriminalProcedureAct 51 of,1977 (asAmended). 9 ed. Compiled and edited by 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 Constitutional Challenge.' ByJ P Swanepoel. (1997) 30 CILSA 340. 'Disclosure of Confidential News Sources.' By Sanette Nel. (1997) 38 (1) Codicillus9. ' In Regs-kriminologiese Ondersoek na die Bestaanbaarheid van Vergelding as Strafoogmerk in die Suid-Afrikaanse Strafregsisteem.' By J F Lourens. (1997) 38 (2) Codicillus 35. 'Aanhouding voor Verhoor, Onregmatige Regspraak en Deliktuele Aanspreeklikheid van die Staat vir Vryheidsontneming.' By J M T Labuschagne. (1997) 30 DeJure 164. 'The Right to Legal Counsel and the Constitution.' By Peet M Bekker. (1997) 30 DeJure213. 'Casenote: S v DeFreitas1997 (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 DeJure406. '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 van 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 and Organised Crime.' By P Hogg. 1997 Responsa Meridiana59. ' In Les uit Eden: Onbillike Lokvalle en Strafregtelike Skuld.' By Wessel le Roux. (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 Geregtelike Hantering daarvan.' ByJ H Prinsloo. (1997) 10 SACJ46. 'The Draft National Prosecuting Authority Bill 1997: A Critique.' Byjeremy Sarkin & 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 Manguanyana1996 (2) SACR 283 (E) - Die Beperking van Regsverteenwoordiging- 'n Hersenskim.' By E J S Steyn. (1997) 10 SA CJ 94. 'Casenote: R v Bartle (1995) 92 CCC 3d 289 (SCC) - Ingeligtheid as Voorwaarde vir 'n Effektiewe Reg op Regsverteenwoordiging.' ByJ M T Labuschagne. (1997) 10 SACJ98.

HeinOnline -- 1997 Ann. Surv. S. African L. 648 1997

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 Police Traps.' 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 G Cowling. (1997) 10 SACJ203. 'Implications of Suspects' and Other Detainees' Rights to Legal Assistance Before the First Appearance in Court in South Africa.' By Charles Goredema. (1997) 10 SACJ237. 'Die Grondwetlike Passiewe Verdedigingsreg Versus die Bewysregtelike Gevolge van Swye aan die Einde van die Staatsaak.' By S E van 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 SA journalof 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) 13 SAJ-R 151. 'The Exclusion of Evidence in the Absence of an Appropriate Warning.' By P J Schwikkard. (1997) 13 SAJHR 446. 'The Right to Legal Representation in Criminal Proceedings in Botswana.' By Baatlhodi Molatlhegi. (1997) 13 SAJHR 458. 'Unconstitutionally Obtained Evidence: A Study of Entrapment.' By Victoria Bronstein. (199) 114 SALJ 108. '"A Prosecutor Is a Person Who Cuts Off Your Head": Children's Perceptions of the Legal Process.' By Karen Mfiller & Mark Tait. (1997) 114 SALJ593. 'Nog Meer Maatrefls om Geweld en Misdaad te Bekamp.' By Willemien du Plessis, 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 Stellenbosch Law Review 45. '"The Law Is Fraught with Racism": Report on Interview Research into Perceptions of Bias in the Criminal Justice System.' By Raymond Koen & Debbie Budlender. (1997) 8 Stellenbosch Law Review 80. 'Regterlike Inkorting van Kruisondervraging: 'n Gemeenregtelike, Statutfre en Grondwetlike Perspektief.' By S E van der Merwe. (1997) 8 Stellenbosch Law Review 348. 'Oorbevolking van Gevangenisse.' By Stefan Terblanche & Bobby Naud6. (1997) 60 THRHR 58.

HeinOnline -- 1997 Ann. Surv. S. African L. 649 1997

656

ANNUAL SURVEY OF SA LAW

'Seksuele Misbruik van Kinders en die Vraagstuk van Verjaring van Misdade.' ByJ M T Labuschagne. (1997) 22 Tydskrifvir Regswetenskap 98. 'Geloof in Toorkuns as Versagtende Omstandigheid - Casenote: S v Phokela A & another 1995 (1) PH H22.' ByJ WJonck. (1997) 22 Tydskrif vir Regswetenskap 202. 'Die Rol van die Vermoede van Onskuld by Oorweging van Ontslag na Staatsaak.' By Murdoch Watney. 1997 TSAR 326. 'The Child Witness and the Accused's Right to Cross-examination.' By
Karen Miller & Mark Tait. 1997 TSAR 519. 'Dra die Keiser Klere? Diskresie en Wetteloosheid in Strafregpleging: Quo Vadis Suid-Afrika?' By D S de Villiers. 1997 TSAR 615.

HeinOnline -- 1997 Ann. Surv. S. African L. 650 1997