Criminal Procedure Paper 6 September 2019

Question 1

1.1 When does the right to institute action prescribe for the offence of theft?

Section 18 (1) provides that the right to institute a prosecution for any offence, shall,
unless some other period is expressly provided by law, lapse after the expiration of a
period of twenty years from the time when the offence was committed.

1.2 When a person resists entry or search, what is a police officer entitled to
do?

 As per section 27 (1) a police official who may lawfully search any person or
any premises or who may enter any premises under section 26, may use such
force as may be reasonably necessary to overcome any resistance against
such search or against entry of the premises, including the breaking of any
door or window of such premises: provided that such police official shall first
audibly demand admission to the premises and notify the purpose for which
he seeks to enter such premises.
 Subsection (1) shall not apply where the police official concerned is on
reasonable grounds of the opinion that any article which is the subject of the
search may be destroyed or disposed of if the provisions of the said proviso
are first complied with.

1.3 Who are the persons in respect of whom a police official may take
fingerprints, palm prints or foot prints?

Section 37 (1) states Any police official may:

(a) take the finger-prints, palm-prints or foot-prints or may cause any such prints to
be taken

 (i) of any person arrested upon any charge;

  (ii) of any such person released on bail or on warning under section 721;
 (iii) of any person arrested in respect of any matter referred to in paragraph
(n), (o) or (p) of section 40(1)2;
 (iv) of any person upon whom a summons has been served in respect of
any offence referred to in Schedule l or any offence with reference to which
the suspension, cancellation or endorsement of any licence or permit or the
disqualification in respect of any licence or permit is permissible or
prescribed; or
 (v) of any person convicted by a court or deemed under section 57 (6) to
have been convicted in respect of any offence.

1.4 Name three methods of securing a witness

 Subpoena3
 Warning by the presiding officer4
 Arrest, when witness fails to attend on the date after being warned or
subpoenaed5

1.5 When can a private person affect an arrest without a warrant?

Section 42 (1) provides that any private person may without warrant arrest any
person

 who commits or attempts to commit in his presence or whom he reasonably

suspects of having committed an offence referred to in Schedule I;
 whom he reasonably believes to have committed any offence and to be
escaping from and to be freshly pursued by a person whom such private
person reasonably believes to have authority to arrest that person for that

1
Accused released on warning in lieu of bail
2
(n) who is reasonably suspected of having failed to observe any condition imposed in postponing the passing
of sentence or in suspending the operation of any sentence under this Act; (o) who is reasonably suspected of
having failed to pay any fine or part thereof on the date fixed by order of court under this Act; (p) who fails to
surrender himself in order that he may undergo periodical imprisonment when and where he is required to do
so under an order of court or any law relating to prisons.
3
Section 179 (1) (b)
4
Section 188
5
Section 188
 offence; (e.g. if you see a man running with a handbag being chased by a
woman screaming “thief”)
 whom he is by any law authorized to arrest without warrant in respect of any
offence specified in that law;
 whom he sees engaged in an affray/ a fight.
 The owner, lawful occupier or person in charge of property on or in respect of
which any person is found committing any offence

1.6 When can a person be granted bail before first appearance in court

Section 59 (1) (a) states that an accused who is in custody in respect of any
offence, other than an offence referred to in Part II, Part III or Part IV of Schedule 2
may, before his or her first appearance in a lower court, be released on bail in
respect of such offence by any police official of or above the rank of non-
commissioned officer, if the accused deposits at a police station the sum of
money determined by such police official.

1.7 In respect of formal bail application discuss the following principles:

 Abscondment6: A ground that the court must consider is the likelihood of the
accused attempting to evade his trial if released on bail. In considering this
ground the court may, where applicable, take into account the following
factors:
a) the emotional, family, community or occupational ties of the accused to
the place at which he is to be tried;
b) the assets held by the accused and where such assets are situated.
c) the means, and travel documents held by the accused, which may
enable him or her to leave the country
d) the extent, if any, to which the accused can afford to forfeit the amount
of bail which may be set

6
All discussed in the case of S v Acheson
 e) the question whether the extradition of the accused could readily be
effected should he or she flee across the borders of the Republic in an
attempt to evade his or her trial
f) the nature and the gravity of the charge on which the accused is to be
tried.
g) how strong the case against him was and how much inducement there
would be for him to avoid standing trial;
h) how severe the punishment was likely to be if he were found guilty; and
i) how stringent the conditions of his bail were and how difficult it would
be for him to evade effective policing of his movements.
 Propensity to commit crime: Bail can properly be refused if the court is
satisfied that an accused has a propensity to commit the crime with which he
is charged and that he might continue to perpetrate such crimes if released on
bail as discussed in S v Patel. The purpose of granting bail to an accused is
to minimise interference in his lawful activities and, accordingly, if there is a
risk of a repetition of the same criminal conduct if the accused were released
on bail, the ‘interests of society outweigh the rights of the lawless individual’.
 Incomplete investigations: Where it is feared that the accused will interfere
with police investigations and/or attempt to influence State witnesses, the
court can properly refuse bail. These attempts can be gauged from the
conduct of the accused while he has been in custody or can be factored in
with other grounds, e.g. where the accused lives with the complainant, etc.
Tjizu v S
 Bail amount: Where a presiding officer in a bail hearing fixes bail in an amount
that the accused cannot afford, it is tantamount to a refusal of bail. Bail must
be fixed in an amount which the accused can afford, or which he can raise,
and must not be an exorbitant or unrealistic amount (S v Fhetani)

In S v Mohamed 1977 (2) SA 531 (A) Trollip JA said (at 544H):

‘The means and resources of an accused are therefore an important, although
not the sole, criterion in fixing the amount of bail .... Hence, speaking very
generally, I think that if a court is minded in all the circumstances to release
 an accused on bail, it should not fix an amount that is quite beyond his means
and resources, otherwise that would nullify its decision to release him.’

1.8 What orders shall the court make if an accused, who is on bail, fails to
appear such day in court?
Section 67 provides that if an accused fails to attend or fails to remain in
attendance, the court will provisionally cancel bail, provisionally forfeit the
bail money to the state and issue a warrant of arrest in respect of the
accused.

1.9 May a third party pay bail for an accused?

Yes, as per section 69.

1.10 When may a legal practitioner withdraw from an accused?

Legal practitioner may withdraw from an accused when
a) The accused has not placed the attorney in funds (i.e. when he hasn’t paid
lawyer)
b) The accused gives conflicting instructions
c) When accused wishes to seek alternative legal representation (e.g. where
he can no longer afford a private lawyer and accused wishes to apply for
Legal Aid).
d) Where a conflict of interest arises (i.e. where lawyer is acting on behalf of
two accused)

1.11 What is the resultant order if an accused is found not guilty by reasons
of mental illness?
Section 78 (6) If the court finds that the accused committed the act in question
and that he at the time of such commission was by reason of mental illness or
mental defect not criminally responsible for such act, the court shall find the
accused not guilty by reason of mental illness or mental defect, as the case may
 be, and direct that the accused be detained in a mental hospital or a correctional
facility pending the signification of the decision of the State President.

1.12 Name the panel of persons for purpose of enquiry in terms of section 79
(b) of the CPA
(a) the medical superintendent of a mental hospital designated by the court, or
by a psychiatrist appointed by such medical superintendent at the request
of the court;
(b) a psychiatrist appointed by the court and who is not in the full-time service
of the State; and
(c) a psychiatrist appointed by the accused if he so wishes.

1.13 What is the effect of stopping of prosecution?

The accused shall be acquitted as per section 6(b). Accused cannot be charged
with the same offence using the same facts.

Question 2

2.1 When can an accused examine the charge against him?

Section 80: An accused may examine the charge at any stage of the relevant
criminal proceedings.

2.2 When can a number of charges be joined in the same proceedings against
an accused?

Section 81(1): Any number of charges may be joined in the same proceedings
against an accused at any time before any evidence has been led in respect of any
particular charge, and where several charges are so joined, each charge shall be
numbered consecutively.
2.3 When may the Court order that a charge be amended?

Section 86 (1) a charge may be amended by the order of the court at any time before
judgement, provided that such amendment does not prejudice the accused or his
defence.

2.4 What must the court consider before ordering an amendment of the
charge?

Whether the amendment will prejudice either the accused or his defence, as per
section 86(1).

2.5 In the event that a court does not amend the charge, what right(s) does the
State have and why?

The State has the right to lead evidence that may cure the defective charge, as per
section 88 of the CPA, which reads:

“Where a charge is defective for the want of an averment which is an essential

ingredient of the relevant offence, the defect shall, unless brought to the notice of the
court before judgment, be cured by evidence at the trial proving the matter which
should have been averred.”

E.g. where the charge reads that the accused stole N$ 500-00 whereas witness
testimony is lead that the complainant was robbed of N$ 1 000-00 the amount in the
charge falls away and the accused will be considered to have stolen N$ 1 000-00.

2.6 In the event that a court does amend a charge what right(s) does the
accused have?

Accused may request for further particulars as per section 87 (1) at no charge to
him, before any evidence has been led in respect of the charge.
2.7 When may an accused request for further particulars and how must it be
done?

Section 87 (1): An accused may at any stage before any evidence in respect of
any particular charge has been led, in writing request the prosecution to furnish
particulars or further particulars of any matter alleged in that charge, and the court
before which a charge is pending may at any time before any evidence in respect of
that charge has been led, direct that particulars or further particulars be delivered to
the accused of any matter alleged in the charge, and may, if necessary, adjourn the
proceedings in order that such particulars may be delivered.

2.8 When may an accused person’s previous convictions be alleged?

Section 271 (1) The prosecution may, after an accused has been convicted but
before sentence has been imposed upon him, produce to the court for admission or
denial by the accused a record of previous convictions alleged against the accused.

2.9 When will a charge not be defective?

92. (1) A charge shall not be held defective –

(1) for want of the averment of any matter which need not be proved (e.g the charge
need not identify the accused by name);

(2) any person mentioned in the charge is designated by a name of office or other
descriptive appellation instead of by his proper name( e.g. “the criminal procedure
lecturer” instead of “Boris Isaacks”);

(3) because of an omission, in any case where time is not of the essence of the
offence, to state the time at which the offence was committed (where the time the
offence took place is unspecified);

(4) the offence is stated to have been committed on a day subsequent to the laying
of the complaint or the service of the charge or on an impossible day or on a day that
never happened(e.g. the charge reads 30th February);

(5) for want of, or imperfection in, the addition of any accused or any other
person(e.g. where the name of a co-accused is not placed in the charge or such
person is unknown to the prosecutor or has not yet been charged);
(6) for want of the statement of the value or price of any matter or thing, or the
amount of damage, injury or spoil in any case where the value or price or the amount
of damage, injury or spoil is not of the essence of the offence(e.g. on a charge of
malicious damage to property, the damage need not be specified by value).

2.10 What pleas may an accused plea to a charge?

Section 106 (1) When an accused pleads to a charge he may plead –

(a) that he is guilty of the offence charged or of any offence of which he may be
convicted on the charge; or

(b) that he is not guilty; or

(c) that he has already been convicted of the offence with which he is charged; or

(d) that he has already been acquitted of the offence with which he is charged; or

(e) that he has received a free pardon under section 327(6) from the State President
for the offence charged; or

(f) that the court has no jurisdiction to try the offence; or

(g) that he has been discharged under the provisions of section 204 from
prosecution for the offence charged; or

(h) that the prosecutor has no title to prosecute. Choose 6

2.11 What is the difference between section 112 plea and section 220
admissions?

When an accused makes a formal admission of a alleged fact – the prosecutor

alleging that fact no longer has to adduce evidence to prove it i.e. it has been
admitted and is therefore no longer in dispute.

Once a guilty plea has been given, section 220 of the CPA no longer applies i.e. a
guilty plea is a formal admission of all the material facts alleged in the charge.
However, section 112 (1) (b) allows for the magistrate to question the accused to
determine whether he indeed admits all the material facts. And in terms of section
113, if the magistrate is not satisfied that all the material facts have been admitted a
plea of not guilty is entered.

2.12 When and why may the court invoke section 113 of the CPA?

A court may correct a plea of guilty, if:

1. at any stage of the proceedings under section 112

2. before sentence is passed is in doubt whether the accused is in law guilty of
the offence to which he has pleaded guilty
3. is satisfied that the accused does not admit an allegation in the charge
4. that the accused has incorrectly admitted any such allegation
5. that the accused has a valid defence to the charge

2.13 Under what sections may an accused be referred to a superior court?

Under section 119 and section 75

2.14 When may an accused apply for a discharge in terms of section 174?

At the close of the State’s case (i.e. at the close of the case for the prosecution).

2.15 On what basis may a court, on application under section 174, return a
verdict of not guilty?

If, at the close of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused committed the offence
referred to in the charge or any offence of which he may be convicted on the
charge, it may return a verdict of not guilty

Criminal Procedure Exam November 2019

Question 1
1.1 Who may institute or conduct a private prosecution after the PG declined to
prosecute?
As per section 7 (1):
1. any private person who proves some substantial and peculiar interest in
the issue of the trial arising out of some injury which he individually
suffered in consequence of the commission of the said offence.
2. A husband if the offence was committed in respect of his wife.
3. The wife or child or next of kin of any deceased person if the death of
such person is alleged to have been caused by the said offence.
4. The legal guardian or curator of a minor or lunatic if the offence is
committed against his ward.

1.2 Indicate the circumstances in which an article may be seized without a

search warrant
Section 22: A police official may without a search warrant search any person or
container or premises for the purpose of seizing any article referred to in section
20 –
(a) if the person concerned consents to the search for and the seizure of the
article in question, or if the person who may consent to the search of the
container or premises consents to such search and the seizure of the article in
question; or
(b) if he on reasonable grounds believes –
(i) that a search warrant will be issued to him under paragraph (a) of section 21
(1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the search.

1.3 Explain the procedure after an arrest has been made

Section 50 (1) A person arrested with or without warrant shall as soon as
possible be brought to a police station or, in the case of an arrest by warrant, to
any other place which is expressly mentioned in the warrant, and, if not released
by reason that no charge is to be brought against him, be detained for a period
not exceeding forty-eight hours unless he is brought before a lower court
and his further detention, for the purposes of his trial, is ordered by the court
 upon a charge of any offence or, if such person was not arrested in respect of an
offence, for the purpose of adjudication upon the cause for his arrest: Provided
that if the period of forty-eight hours expires –
(a) on a day which is not a court day or on any court day after four o’clock in the
afternoon, the said period shall be deemed to expire at four o’clock in the
afternoon of the court day next succeeding;

(b) on any court day before four o’clock in the afternoon, the said period shall be
deemed to expire at four o’clock in the afternoon of such court day;

(c) at a time when the arrested person is outside the area of jurisdiction of the
lower court to which he is being brought for the purposes of further detention and
he is at such time in transit from a police station or other place of detention to
such court. the said period shall be deemed to expire at four o’clock in the
afternoon of the court day next succeeding the day on which such arrested
person is brought within the area of jurisdiction of such court.

(d) or will expire at, or if the time at which such period is deemed to expire under
paragraph (a), (b) or (c) is or will be, a time when the arrested person cannot,
because of his physical illness or other physical condition, be brought before a
lower court for the purposes of an order for his further detention, the court before
which he would, but for the illness or other condition, have been brought for the
purposes of such an order, may, upon the application of the prosecutor, which, if
not made before the expiration of the period of forty-eight hours, may be made at
any time before, or on, the next succeeding court day, and in which the
circumstances relating to the illness or other condition are set out, supported by a
certificate of a medical practitioner, order that the arrested person be detained at
a place specified by the court and for such period as the court may deem
necessary so that he may recuperate and be brought before the court for the
purpose of an order for his further detention for the purposes of his trial.

1.4 What orders may the High Court make sitting as an appeal court?
 Affirm the decision of the trial court, in which case the verdict at trial stands.
  Reverse the decision to the trial court, in which case a new trial may be
ordered, or accused is acquitted.
 Remand the case to the trial court to correct any errors/irregularities from the
first trial i.r.o. conviction or sentence.

1.5 What is the legal effect of a withdrawal of a charge before the accused
pleaded to the charge?
Section 6 (a) states that the accused shall be released but shall not be entitled to
an acquittal in respect of the charge.

1.6 For which offences may an arrested person be granted bail before his/her
first appearance in a lower court?
Section 59 (1) (a) An accused who is in custody in respect of any offence, other
than an offence referred to in Part II 7, Part III8 or Part IV9 of Schedule 2 may,
before his or her first appearance in a lower court, be released on bail in respect
of such offence by any police official of or above the rank of non-commissioned
officer, if the accused deposits at a police station the sum of money determined
by such police official.

Question 2

2.1 What is the procedure in the event that the prosecutor applies to lead
evidence than an accused had failed to observe his/her bail conditions if:

7
Treason. Sedition. Murder. Rape. Robbery. Arson. Breaking or entering any premises, whether under the
common law or a statutory provision, with intent to commit an offence. Theft, whether under the common law
or a statutory provision, receiving stolen property knowing it to have been stolen, fraud, forgery or uttering a
forged document knowing it to have been forged, in each case if the amount or value involved in the offence
exceeds R600. Any offence under any law relating to the illicit dealing in or possession of precious metals or
precious stones in each case if the value involved in the offence exceeds R600. Any offence under any law
relating to the illicit conveyance or supply of dependence-producing drugs. Any offence relating to the coinage.
Any conspiracy, incitement or attempt to commit any offence referred to in this Part.
8
Arson. Murder. Kidnapping. Childstealing. Robbery. Housebreaking, whether under the common law or a
statutory provision, with intent to commit an offence. Any conspiracy, incitement or attempt to commit any
offence referred to in this Part.
9
Treason. Sedition. Murder. Kidnapping. Childstealing. Rape. Robbery. Arson. Public violence. Bribery.
Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
Breaking or entering any premises, whether under the common law or a statutory provision, with intent to
commit an offence.
2.2.1 accused is present at the time of such application and denies having
breached any condition or that the breach was not due to his fault?

Section 66 (1) states that the court will hear from both the prosecution and the
accused in respect of the condition allegedly breached, and reach a conclusion
as to whether a condition was wilfully breached. If no breach or no wilfull breach
has occurred, the accused persons bail is extended. (i.e. the bail conditions
before the hearing will be upheld).

Section 66 (3) if a wilful breach is found or the accused has admitted to breaching
the condition, bail is cancelled, the accused is remanded in custody and the bail
money is forfeited to the State.

2.2.2 Accused is absent at the time of such application?

Section 66 (2): when an accused is absent when an application concerning the

breach of bail conditions is made, the court will issue a warrant of arrest. When
the accused is brought before the court the accused will be provided an
opportunity to either admit or deny the breach. Should he deny the breach he
and the prosecution must place evidence before the court whether the breach was
wilful or whether it was not due to a fault of his.

If no breach or no wilful breach has occurred, the accused persons bail is

extended. (I.e. the bail conditions before the hearing will be upheld).

Section 66 (3) if a wilful breach is found or the accused has admitted to breaching
the condition, bail is cancelled, the accused is remanded in custody and the bail
money is forfeited to the State.

2.2 What orders shall the court make if an accused fails to appear in court on a
date and time set for hi/her trial or next appearance?

Section 67 provides that if an accused fails to attend or fails to remain in

attendance, the court will provisionally cancel bail, provisionally forfeit the
bail money to the state and issue a warrant of arrest in respect of the
accused.
2.3 Name the triad when it comes to sentencing

As per the case of S v Zinn:

1) the gravity of the offense,

2) the circumstances of the offender,
3) and public interest.

2.4 What powers does a court have if an accused refuses to plea and what is
the effect of it?

Section 109: Where an accused in criminal proceedings refuses to plead to any

charge, the court shall record a plea of not guilty on behalf of the accused, and a
plea so recorded shall have the same effect as if it had been actually pleaded.

2.5 Previous convictions may not be alleged in a charge, name the exception
to this rule

Section 89: Except where the fact of a previous conviction is an element of any
offence with which an accused is charged, it shall not in any charge be alleged that
the accused has a previous conviction of any offence, whether in the Republic or
elsewhere. (I think this would be the case in cases of fraud, for example where
a former banker could not by virtue of the conviction continue to be a banker,
but continues to practice as such. I speak under correction!!)

Question 3

3.1 What is the evidential value of facts stated in a section 119 plea and
section 220 admissions

Section 119 deals with a plea taken by a lower court on a charge that may only be
tried in a higher or superior court. Facts stated under a section 119 plea are
considered to be informal admissions and are not binding at the commencement of
the accused persons trial in the superior court.
Section 220 admissions are regarded as formal admissions, and any fact admitted
by the accused under this section need not be proven by the State at the trial. This
shortens the trial and reduces the evidentiary burden on the State.

3.2 When must the court order that an enquiry must be held and reported in
terms of section 79?

Section 77 (1) If it appears to the court at any stage of criminal proceedings that the
accused is by reason of mental illness or mental defect not capable of
understanding the proceedings so as to make a proper defence, the court shall
direct that the matter be enquired into and be reported on in accordance with the
provisions of section 79.

Section 78 (2) If it is alleged at criminal proceedings that the accused is by reason of

mental illness or mental defect not criminally responsible for the offence charged, or
if it appears to the court at criminal proceedings that the accused might for such a
reason not be so responsible, the court shall direct that the matter be enquired into
and be reported on in accordance with the provisions of section 79.

3.3 Name any competent verdicts of murder or attempted murder.

Section 258

a) culpable homicide;

(b) assault with intent to do grievous bodily harm;

(c) robbery;

(d) in a case relating to a child, the offence of exposing an infant,

(e) common assault;

(f) public violence; or

(g) pointing a fire-arm, air-gun or air-pistol in contravention of any law,

the accused may be found guilty of the offence so proved.

3.4 When can a police officer use force to effect an arrest?

Section 49 (1) states force may be used when:

 Suspect resists the attempt and cannot be arrested without the use of force;
 Suspect flees when it is clear that an attempt to arrest him is being made, or
resists such attempt and flees, force reasonably necessary to overcome the
resistance or to prevent the .
 49 (2) Where the suspect is to be arrested for an offence in Schedule 1 and
the officer cannot arrest him or prevent him from fleeing by other means than
by killing him, the killing shall be deemed to be justifiable homicide.

3.5 When will an accused be discharged after an application in terms of

section 174 was brought?

If, the court is of the opinion that there is no evidence that the accused committed
the offence referred to in the charge or any offence of which he may be convicted on
the charge.

3.6 What verdict may the court give upon a successful application in terms of
section 174 of the Act?

Not guilty.

Question 4

4.1 Name the persons that must enquire and report in terms of section 79 (b)

(a) the medical superintendent of a mental hospital designated by the court, or

by a psychiatrist appointed by such medical superintendent at the request
of the court;
(b) a psychiatrist appointed by the court and who is not in the full-time service
of the State; and
(c) a psychiatrist appointed by the accused if he so wishes.

4.2 What objections may an accused raise against a charge?

Section 85 (1) An accused may, before pleading to the charge under section 106,
object to the charge on the ground –

(a) that the charge does not comply with the provisions of this Act relating to the
essentials of a charge;

(b) that the charge does not set out an essential element of the relevant offence; (c)
that the charge does not disclose an offence;

(d) that the charge does not contain sufficient particulars of any matter alleged in the
charge; or

(e) that the accused is not correctly named or described in the charge.

4.3 Explain section 61, as amended, in respect of bail

Before section 61 was amended, the grounds of “interests of society” and

“administration of justice” were not recognised grounds for the refusal of bail. This
position changed after the case of S v Acheson.

Following this amendment to the CPA, there was now a greater discretion given to
the presiding officer to regard the convictions of society when granting or
refusing bail. He also appoints out that there is no definition provided either by the
legislature or by any judgement of what constitutes “public interest” or “the
administration of justice”.

It has become practice that the conditions under which an accused is granted bail
have become more stringent. Not only do the courts consider the “traditional”
grounds of objecting to bail, but now the collective weight of the principles of
“administration of justice” and “public interest” become hurdles in bail applications as
well. The onus of the accused to prove that (s)he is a worthy candidate for bail has
become more cumbersome, however, a presiding officer must decide every case
on its individual merits.

4.4 When will a confession be admissible against an accused?

Section 217 (1)

  freely and voluntarily
 made by such person in his sound and sober senses and without having been
unduly influenced ,
 that a confession made to a peace officer, other than a magistrate or
justice, or, in the case of a peace officer must be confirmed and reduced to
writing in the presence of a magistrate or justice
 where the confession is made to a magistrate and reduced to writing by him,
or is confirmed and reduced to writing in the presence of a magistrate, that
the confession was made by a person whose name corresponds to that of
such person
 where confession is made through an interpreter, a certificate by the
interpreter appears that he interpreted truly and correctly and to the best of
his ability with regard to the contents of the confession and any question
put to such person by the magistrate.

Question 5

5.1 When may an accused request for further particulars?

Section 87 (1): An accused may at any stage before any evidence in
respect of any particular charge has been led, in writing request the
prosecution to furnish particulars or further particulars of any matter alleged
in that charge, and the court before which a charge is pending may at any
time before any evidence in respect of that charge has been led, direct that
particulars or further particulars be delivered to the accused of any matter
alleged in the charge, and may, if necessary, adjourn the proceedings in
order that such particulars may be delivered.

5.2 How must the request be made?

Request must be made in writing.

5.3 Under what circumstances may a court correct a plea of guilty?

A court may correct a plea of guilty, if:
1. at any stage of the proceedings under section 112
2. before sentence is passed is in doubt whether the accused is in law guilty of
the offence to which he has pleaded guilty
3. is satisfied that the accused does not admit an allegation in the charge
4. that the accused has incorrectly admitted any such allegation
5. that the accused has a valid defence to the charge

5.4 When may an accused apply for a discharge in terms of section 174?
At the close of the State’s case (i.e. at the close of the case for the
prosecution).

5.5 When may a court subpoena a witness and for what reason(s)?
Section 186: The court may at any stage of criminal proceedings subpoena
or cause to be subpoenaed any person as a witness at such proceedings,
and the court shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such witness appears to the court essential to
the just decision of the case.
Section 179 (2) Where an accused desires to have any witness
subpoenaed, a sum of money sufficient to cover the costs of serving the
subpoena shall be deposited with the prescribed officer of the court.
Section 179 (3) (a) Where an accused desires to have any witness
subpoenaed and he satisfies the prescribed officer of the court
(i) that he is unable to pay the necessary costs and fees; and
(ii) that such witness is necessary and material for his defence, such
officer shall subpoena such witness.

5.6 When will a husband or wife be competent and compellable witness for
the prosecution?
Section 195 (1) The wife or husband of an accused...shall be competent and
compellable to give evidence for the prosecution at such proceedings where
the accused is charged with:
(a) any offence committed against the person of either of them or of a child of
either of them;
 (b) any offence under Chapter III of the Children’s Act, 1960 (Act 33 of
1960), committed in respect of any child of either of them;
(c) any contravention of any provision of Part VIII of the Maintenance Act,
2003, or of such provision as applied by any other law;
(d) bigamy
(e) incest;
(f) abduction;
(g) any contravention of any provision of section 2, 8, 9, 10, 11, 12, 12A, 13,
17 or 20 of the Immorality Act, 1957 (Act 23 of 1957), or, in the case of the
territory, of any provision of section 3 or 4 of the Girls’ and Mentally Defective
Women’s Protection Proclamation, 1921 (Proclamation 28 of 1921), or of
section 3 of the Immorality Proclamation, 1934 (Proclamation 19 of 1934);
(h) perjury committed in connection with or for the purpose of any judicial
proceedings instituted or to be instituted or contemplated by the one of them
against the other, or in connection with or for the purpose of criminal
proceedings in respect of any offence included in this subsection;
(i) the statutory offence of making a false statement in any affidavit or any
affirmed, solemn or attested declaration if it is made in connection with or for
the purpose of any such proceedings as are mentioned in paragraph (h),
Choose 5
5.7 Name any mitigating factor that can be advanced prior to being
sentenced after conviction.
a) Remorse
b) Personal circumstances
c) First time offender
d) Time spent in custody
e) Youthfulness
f) Provocation (Choose one)

5.8 Name any ground upon which a legal practitioner may withdraw as
legal practitioner of record

Legal practitioner may withdraw from an accused when

a) The accused has not placed the attorney in funds (i.e. when he hasn’t paid
lawyer)
b) The accused gives conflicting instructions
c) When accused wishes to seek alternative legal representation (e.g. where
he can no longer afford a private lawyer and accused wishes to apply for
Legal Aid).
d) Where a conflict of interest arises (i.e. where lawyer is acting on behalf of
two accused)
e) Choose one