, Table of Contents
Terminology .............................................................................................................. 4
Subject 1: Introduction to criminal procedure ....................................................... 6
1.1. Introduction ................................................................................................. 6
1.2. Overview of process in a criminal case .................................................... 8
Subject 2: The courts and prosecuting authority ................................................ 15
2.1. South African criminal courts .................................................................. 15
2.2. Prosecution ............................................................................................... 26
Subject 3: Pre-trial procedures for children ........................................................ 38
3.1. Objects and guiding principles of the Child Justice Act 75 of 2008 (S 2
& S 3) .................................................................................................................... 38
3.2. Application of the Child Justice Act 75 of 2008 (S 4) ............................. 40
3.3. Procedure to be followed where the child is younger than 10 years (S 5
& S 9) .................................................................................................................... 41
3.4. Procedure to be followed where the child is 10 years or older (S 5) .... 43
3.5. Assessment of the child ........................................................................... 45
3.6. Preliminary inquiry .................................................................................... 49
Subject 4: Attendance of the accused in court ................................................... 50
4.1. The accused: Their presence as a party ................................................. 51
4.2. Methods of securing court attendance (S 38 of the CPA); securing
attendance of the child at the preliminary enquiry (S 17 of the CJA) ............. 51
4.2.1. Summons (S 54 of the CPA); Child (S 19 of the CJA) ......................... 51
4.2.2. Written notice (S 56 of the CPA); Child (S 18 of the CJA) .................. 51
4.2.3. Admission of guilt fines (S 57 of the CPA); Child (S 18(2) of the CJA);
Compounding offences (S 341 of the CPA) ...................................................... 51
4.2.4. Arrest (S 39 to S 43 of the CPA); Child (S 43 read with S 20 of the
CJA) 51
4.3. Consequences of non-compliance or failing to adhere to a court date
after receiving a summons (S 55 of the CPA) ................................................... 51
4.4. Use of force (injury or justifiable homicide) during arrest (S 39; S 49(1);
S 49(2) of the CPA) .............................................................................................. 51
Page 3 of 52
,Terminology
1. ‘Suspect’ refers to a person who has not yet been charged i.e. An arrested
person who is being taken to the police station.
2. ‘Accused’ refers to a person who has been charged.
3. ‘Child’ means any person under age of 18 years and, in certain circumstances,
means a person who is 18 years or older but under the age of 21 years whose
matter is dealt with in terms of S 4(2) of the Child Justice Act.
4. ‘Child justice court’ means any court provided for in the Criminal Procedure
Act, dealing with the bail application, plea, trial or sentencing of a child. Note
that child justice courts are not separate criminal trial courts but function within
the ordinary criminal courts structure.
5. ‘Lower court’ means any court established under the provisions of the
Magistrates’ Courts Act 32 of 1944.
6. ‘Indictment’ refers to a formal charge or accusation of a serious crime in the
superior courts, which indicates that the Director of Public Prosecutions is
prosecuting on behalf of the State.
7. ‘Dominus litis’ refers to the master or controller of the litigation and in criminal
trials, the State is dominus litis.
S 35: Arrested, detained and accused persons
1. Everyone who is arrested for allegedly committing an offence has the right
a. To remain silent
b. To be informed promptly
i. Of the right to remain silent; and
ii. Of the consequences of not remaining silent;
c. Not to be compelled to make any confession or admission that could be
used in evidence against that person;
d. To be brought before a court as soon as reasonably possible, but not
later than
i. 48 hours after the arrest; or
ii. The end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court hours or on a day which
is not an ordinary court day;
e. At the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released;
and
f. To be released from detention if the interests of justice permit, subject to
reasonable conditions.
2. Everyone who is detained, including every sentenced prisoner, has the right
a. To be informed promptly of the reason for being detained;
b. To choose, and to consult with, a legal practitioner, and to be informed
of this right promptly;
c. To have a legal practitioner assigned to the detained person by the State
and at State expense, if substantial injustice would otherwise result, and
to be informed of this right promptly;
Page 4 of 52
, d. To challenge the lawfulness of the detention in person before a court
and, if the detention is unlawful, to be released;
e. To conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at State expense, of
adequate accommodation, nutrition, reading material and medical
treatment; and
f. To communicate with, and be visited by, that person’s
i. Spouse or partner;
ii. Next of kin;
iii. Chosen religious counsellor; and
iv. Chosen medical practitioner.
3. Every accused person has the right to a fair trial, which includes the right
a. To be informed of the charge with sufficient detail to answer it;
b. To have adequate time and facilities to prepare a defence;
c. To a public trial before an ordinary court;
d. To have their trial begin and conclude without unreasonable delay;
e. To be present when being tried;
f. To choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
g. To have a legal practitioner assigned to the accused person by the State
and at State expense, if substantial injustice would otherwise result, and
to be informed of this right promptly;
h. To be presumed innocent, to remain silent, and not to testify during the
proceedings;
i. To adduce and challenge evidence;
j. Not to be compelled to give self-incriminating evidence;
k. To be tried in a language that the accused person understands or, if that
is not practicable, to have the proceedings interpreted in that language;
l. Not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or
omitted;
m. Not to be tried for an offence in respect of an act or omission for which
that person has previously been either acquitted or convicted;
n. To the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing; and
o. Of appeal to, or review by, a higher court.
4. Whenever this section requires information to be given to a person, that
information must be given in a language that the person understands.
5. Evidence obtained in a manner that violates any right in the Bill of Rights must
be excluded if the admission of that evidence would render the trial unfair or
otherwise be detrimental to the administration of justice.
Page 5 of 52
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