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ANNEXURE A

RECOMMENDATIONS CONTAINED IN THE INTERIM REPORT ON THE SIMPLIFICATION OF CRIMINAL PROCEDURE

SUMMARY OF RECOMMENDATIONS

LACK OF ADMINISTRATIVE CONTROL OVER THE PROCESS AND DELAYS ARISING FROM THE ACTION OF THOSE WHO ADMINISTER THE PROCESS

(Paragraphs 3.1 to 3.34)

The Commission has investigated the lack of administrative control over the process and delays in the completion of criminal trials. The Commission has concluded that the solution to the problem of numerous postponements and delays is not necessarily to be found in the elimination of shortcomings in the system, but rather in the people who apply the system. It is imperative that the administration of the process be improved and the problems relating to the persons who apply the process be addressed.

RECOMMENDATION

The Commission recommends that the problems relating to the administration should be addressed as follows:

(a) The Department of Justice should issue administrative prescriptions which fully address the administration of the process.

(b) An umbrella body which is representative of all the interested parties should be established for every court or district to improve the administra tion of the courts. If necessary court administrators should be appointed. This body should have the power to issue imperative prescriptions to all parties concerned.

(c) This body should, as soon as possible and after consultation with all inter ested parties, draw up a court delay reduction plan to speed up the comple tion of cases in every court or area where required.

(d) The areas of concern to all interested parties should be considered and the delay reduction plan must be reduced to writing as soon as it has been finalised and then be made available to all parties concerned.

(e) The umbrella body should consult on a permanent basis in order to address new problem areas and to effect amendments to the plan when necessary.

(f) Standards and time schedules for the completion of cases should be estab lished and firm guide-lines and principles for the completion of cases (similar to those in the USA) should be included in the programme.

(g) Prescriptions to all interested parties should be issued in consultation with the relevant principals or organizations in control.

(h) The Department of Justice should take the initiative in this regard and legislation should be adopted if necessary to ensure the involvement of all interested parties.

(i) The completion of cases should be monitored on a continuous basis and statistics should be kept on all relevant aspects.

(j) There should be an exchange of information between the courts on all the measures taken and on the success thereof.

(k) The success or otherwise of the measures should be made available to the Head Office of the Department of Justice for further action if necessary.

UNREASONABLE DELAYS ARISING FROM ABUSE OF THE PROCESS BY THE PERSONS WHO APPLY IT

(Paragraphs 4.1 to 4.134 and section 342 A of the proposed Draft Bill in Annexure B)

In the South African criminal process there are various procedures which render the system open to abuse by those who apply it (prosecutors, legal representatives and police officers as well as accused persons and witnesses) while the power of the courts to counteract the resulting delays in the completion of trials, is limited. The Commission has come to the conclusion that there is a need for a statutory provision which will extend the court's power to eliminate delays resulting from abuse and give effect to the right to trial within a reasonable time.

RECOMMENDATION

The Commission recommends that legislation be introduced to make provision for the following:

(a) criminal proceedings pending before a court must be completed within a reasonable time;

(b) a court before which criminal proceedings are pending must be competent and obliged to investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the accused or to his or her legal representative or to the State or a witness;

(c) if the presiding judicial officer has reason to suspect that the proceedings are being delayed unreasonably, he may summarily investigate the circumstances and hear such evidence as he deems necessary;

(d) in considering the question whether any delay is unreasonable as contemplated in paragraph (b), the court should consider the following factors:

(i) the duration of the delay;

(ii) the reasons advanced for the delay;

(iii) the blame which attaches to any person regarding the cause of the delay;

(iv) the effect of the delay on the personal circumstances of the accused and witnesses;

(v) the seriousness, extent or complexity of the charge(s);

(vi) actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost;

(vii) the effect of the delay on the image of the administration of justice;

(viii) any other factor which in the opinion of the court ought to be considered.

(e) if a court before which criminal proceedings are pending, finds that the completion of the proceedings is being delayed unreasonably, the court may issue the order it deems fit in order to eliminate the delay and any prejudice arising from it, including an order-

(i) refusing further postponement of the proceedings or granting a postponement subject to conditions imposed by the court;

(ii) that the prosecution be stopped and -

(aa)where the accused has not yet pleaded, that the case be struck off the roll and the prosecution not be resumed or instituted de novo without the written consent of the attorney-general; or

(bb)where the accused has pleaded, that the proceedings be continued and disposed of as if the case for the prosecution or the defence, as the case may be, has been closed;

(iii) that any costs caused by unreasonable delay on the part of an officer employed by the State or the accused or his legal representative, be paid by the State or the accused or the legal representative concerned, as the case may be;

(iv) that an administrative investigation with a view to disciplinary action be instituted regarding the responsibility of any person in respect of the delay;

(f) the power contemplated in paragraph (e) (ii) (aa) should not be exercised by a lower court other than the lower court seized with the adjudication of the proceedings concerned;

(g) if, on notice of motion, it appears to a superior court that the institution or continuance of criminal proceedings is being delayed unreasonably in any court, that superior court may, in regard to such proceedings, institute an investigation contemplated in paragraphs (c) and (d) and issue any order contemplated in paragraph (e).

THE RIGHT TO LEGAL REPRESENTATION AND DELAYS RESULTING FROM THEAPPLICATION OF THE PROVISIONS OF THE CRIMINAL PROCEDURE ACT ANDTHE GUIDE-LINES LAID DOWN BY THE COURTS

(Paragraphs 5.1 to 5.38 and sections 73 and 342A of the proposed Draft Bill in Annex ure B)

The conduct of legal representatives frequently results in delays in disposing of trials. Since the denial of a legal representative may result in the setting aside of a conviction and in the light of the constitutional provisions on the right to legal representation, there is a need for a statutory provision which will, on the one hand, address delays arising from the conduct of legal representatives and, on the other hand, be compatible with the constitutional provisions regarding legal representation.

RECOMMENDATION

The Commission recommends that legislation be introduced to make provision for the following:

(a) every unrepresented accused must at the time of his arrest or when he is served with a summons in terms of section 54(1) and (2) or when a written notice is handed to him in terms of section 56 or when an indictment is served on him in terms of section 144(4)(a) or at his first appearance in court, as the case may be, be informed of his right to be represented at his own expense by a legal representative of his own choice and if he cannot afford legal representation, that he may apply for legal aid and of the possible institutions which he may approach for legal assistance;

(b) every accused person must be given a reasonable opportunity to obtain legal assistance;

(c) if an accused person fails to appoint a legal representative of his own choice within a reasonable time and the proceedings are consequently delayed unreasonably, the court may apart from any order which it may make in terms of Section 342A-

(i) order that the trial proceed without legal representation for the accused if the court is of the opinion that this would not result in substantial injustice; or

(ii) appoint a legal representative for the accused at the expense of the State: Provided that the court may order that the costs of such representation be recovered from the accused.

ABUSE OF CROSS-EXAMINATION

(Paragraphs 6.1 to 6.36 and sections 342A and 166 of the proposed Draft Bill Annexure B)

Cross-examination is regarded as an indispensable method to ensure a fair trial while it is also criticised as an important source of delays in criminal trials. There is a need to address this problem by a statutory amendment.

RECOMMENDATION

The Commission recommends that legislation be introduced to make provision that:

(a) if it appears to a court that the cross-examination of a witness is being protracted unreasonably causing the proceedings to be delayed unreasonably, the court may request the cross-examiner to disclose the relevancy of any particular line of examination and may impose reasonable limits on the examination regarding its duration or any particular line of examination;

(b) the court may order that any submission regarding the relevancy of the cross-examination be heard in the absence of the witness.

ABUSE ARISING FROM OBJECTIONS TO CHARGE SHEETS OR INDICTMENTS,

FURTHER PARTICULARS AND JURISDICTION

(Paragraphs 7.1 to 7.31 and section 342 A of the Draft Bill in Annexure B)

The Commission considered submissions that the above-mentioned aspects contribute to delays.

RECOMMENDATION

Except for the proposed provision on the elimination of delays the Commission does not recommend any further changes. The Commission also holds the view that the guide- lines laid down by the courts in this regard are sufficient.

PARTICULAR PROVISIONS OF THE CRIMINAL PROCEDURE ACT THAT

LEAD TO DELAYS

(a) THE PROVISIONS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT

(Paragraphs 8.1 to 8.42)

The view is held that the provisions of section 115 do not satisfy the aims for which it was intended. It is argued that delays in trials would be eliminated if the issues in dispute are determined timeously and the Commission considered proposals that an accused should be obliged to disclose the basis of his defence or that a prejudicial inference should be drawn from silence during plea proceedings.

RECOMMENDATION

Section 25 (3)(c) of the Constitution provides that every accused shall have the right to a fair trial which shall include the right be to presumed innocent and to remain silent during plea proceedings or the trial and not to testify during trial. Consequently the Commission is of the opinion that the proposals in the working paper are in conflict with this section and the proposals will also not be justifiable limitations in terms of section 33 of the Constitution. Therefore the Commission recommends that the provisions of section 115 be retained unchanged.

(b) MISUSE OF THE PROVISIONS OF THE CRIMINAL PROCEDURE ACT IN PLEA PROCEEDINGS - SECTIONS 115(3), 115 (2) (b) AND 113

(Paragraphs 8.44 to 8.47)

The Commission considered whether the provisions of sections 115(3), 115(2)(b) and 113 should not be amended in order to eliminate unnecessary delays and duplication.

(i) SECTION 115(3) OF THE CRIMINAL PROCEDURE ACT

RECOMMENDATION

The Commission recommends no amendments.

(ii) CONSENT OF ADMISSIONS IN TERMS OF SECTION 115(2)(b)

OF THE CRIMINAL PROCEDURE ACT

(Paragraphs 8.49 to 8.55 )

RECOMMENDATION

The Commission recommends no amendments.

(iii) SECTION 113 OF THE CRIMINAL PROCEDURE ACT

(Paragraphs 8.57 to 8.66 and section 113 of the proposed Draft Bill in Annexure B)

RECOMMENDATION

The Commission recommends that subsection (1) of section 113 be replaced by the following subsection:

"(1) If the court at any stage of the proceedings under section 112(1)(a) or (b) and before sentence is passed, is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty or if it is claimed or it appears to the court that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge or if the court is for any other reason of the opinion that the accused's plea of guilty should not be maintained, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution: Provided that any allegation, other than the allegation referred to above, admitted by the accused up to the stage at which the court records a plea of not guilty, shall stand as proof in any court of such allegation.".

(c) SECTION 116 OF THE CRIMINAL PROCEDURE ACT

(Paragraphs 8.68 to 8.71 and section 116 of the proposed Draft Bill in Annexure)

The fact that a regional court magistrate charged with the imposition of sentence in respect of cases tried in the district court cannot request the trial magistrate to give reasons for the conviction, is often cited as a reason for delays in criminal trials. A legislative amendment which will address this problem appears to be necessary.

RECOMMENDATION

The Commission recommends that section 116(3)(a) be amended to provide that a regional court magistrate may request the trial magistrate in the district court to provide him with reasons for the conviction.

(d) JURISDICTION OF MAGISTRATES' COURTS

(Paragraph 8.73)

It is argued that the completion of cases would be expedited if the jurisdiction of magistrates' courts is extended.

RECOMMENDATION

In view of the recent amendments to the law in this regard the Commission makes no further recommendations.

(e) SECTION 220 OF THE CRIMINAL PROCEDURE ACT

(Paragraphs 8.74 to 8.78 and section 220 of the proposed Draft Bill in Annexure B)

The Commission considered an amendment to section 220 in an attempt to expedite the proceedings.

RECOMMENDATION

The Commission proposes that section 220 be amended so as to enable the State also to make admissions which will promote the case of the accused.

(f) SECTION 212(4) OF THE CRIMINAL PROCEDURE ACT.

(Paragraphs 8.80 to 8.89 and section 212(4) of the proposed Draft Bill in Annexure B)

One of the problems in our criminal procedure is that too much reliance is placed upon viva voce evidence. The Commission considered a proposal that the proof of facts by means of affidavits should be extended. In order to address this problem the Commission recommends amendments to sections 212(4)(a) and 158 as well as the introduction of a new section to provide for the proof of undisputed facts by means of affidavits.

RECOMMENDATION

The Commission recommends that section 212(4)(a) be amended as follows:

"(4)(a) Whenever any fact established by any examination or process requiring any skill in biology, chemistry, physics, astronomy, geography, anatomy,human behavioural sciences, any branch of pathology or in toxicology or in the identification of finger-prints, or palm-prints, is or may become relevant to the issue at criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he is in the service of the State or of a provincial administration or is in the service of or is attached to the South African Institute for Medical Research or any university in the Republic or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and that he has established such fact by means of such an examination or process, shall, upon its mere production at such proceedings be prima facie proof of such fact: Provided that the person who may make such an affidavit may, in any case in which skill is required in chemistry, anatomy or pathology, issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate: Provided further that if an affidavit or certificate contains an opinion, such opinion shall be prima facie proof of that opinion if-

(i) the expertise of the witness can be determined from the affidavit; and

(ii) the grounds on which the opinion is based are explained."

(g) THE PROVISIONS OF SECTION 213

(Paragraphs 8.91 to 8.122 and section 212 B of the proposed Draft Bill in Annexure B)

RECOMMENDATION

The Commission recommends:

(a) that the provisions of section 213 be retained unchanged;

(b) that a new section be introduced to provide for the proof of undisputed facts by means of an affidavit; and

(c) that the section be worded as follows:

(1) If it appears to a prosecutor that a certain fact or facts to be proved in a charge against an accused are not or are not likely to be placed in issue in criminal proceedings against the accused, he may send or hand a notice to the accused, and his legal representative if he has one, setting out that fact or those facts and stating that such fact or facts will be accepted as proved at the proceedings unless written or oral notice is given in the prescribed manner that such fact or facts will be placed in issue.

(2) The notice contemplated in subsection (1) shall be sent by certified mail or handed to the accused and his legal representative personally at least 14 days before criminal proceedings commence against the accused: Provided that the said period may be reduced by agreement between the accused or his legal representative and the prosecutor.

(3) If any fact mentioned in a notice contemplated in subsection (1) is intended to be placed in issue at the proceedings, the accused or his legal representative shall within five days before the commencement of the proceedings or within such shorter period as agreed upon with the prosecutor deliver a notice in writing to that effect or give notice orally to the registrar or the clerk of the court, as the case may be, in which case the registrar or the clerk of the court shall record such notice.

(4) If, after receipt of a notice contemplated in subsection (1), any fact mentioned in that notice is not placed in issue as contemplated in subsection (3), the court may deem such fact or facts, subject to the provisions of subsection (6), to have been conclusively proved at the proceedings concerned.

(5) If a notice is sent or handed over by a prosecutor as contemplated in subsection (1), the prosecutor shall notify the court at the commencement of the proceedings of such fact and of any reaction thereto and the court shall thereupon institute an investigation into the facts which are not disputed: Provided that the implications of subsection (4) shall be explained to an undefended accused.

(6) The court may mero motu or at the request of the accused order oral evidence to be adduced regarding any fact contemplated in subsection (4).

(h) THE PROVISIONS OF SECTION 158

(Paragraphs 8.124 to 8.133 and section 158 of the proposed Draft Bill in Annexure B)

RECOMMENDATION

The Commission recommends that section 158 of the Criminal Procedure Act be amended by the insertion of the following subsections:

(2) If in any criminal proceedings it appears to a court that to do so would prevent unreasonable delay or save costs or that it would be convenient, the court may, if the facilities therefore are readily available or obtainable, on its own initiative or on application by the prosecutor or the accused, order that a witness or an accused, if he consents thereto, may give evidence by means of closed circuit television or similar electronic media: Provided that the court shall not issue such an order unless it is satisfied that the accused's right to question the witness and to observe the witness's reaction or to a fair trial will not be prejudiced.

(3) The court may make the giving of evidence in terms of subsection (2) subject to such conditions as it may deem necessary in order to ensure a fair and just trial.

CUMBROUS PROCEDURES

(a) DELAYS ARISING FROM THE DETERMINATION OF THE FORUM

FOR THE TRIAL

(Paragraphs 9.1 to 9.33 and section 75 of the proposed Draft Bill in Annexure B)

The Commission considered the problems arising from the transfer of cases to the court having jurisdiction and is of the opinion that a statutory amendment is necessary to speed up such transfers.

RECOMMENDATION

The Commission recommends:

(a) that section 75 of the Criminal Procedure Act be amended to provide, in addition to the transfer of cases to the regional court in terms of sections 122 A to D, for an alternative procedure of transfer at the mere request of the prosecutor and without an accused being required to plead; and

(b that the existing provisions of section 122A to D and 119 also remain un changed.

(b) THE PROVISIONS OF SECTION 217- CONFESSIONS

(Paragraphs 9.35 to 9.67 and section 217 of the proposed Draft Bill in Annexure B)

The Commission considered the admissibility of confessions made to police officers and delays arising from it. The Commission concluded that too much time is wasted in the courts in an attempt to prove such confessions admissible. At the same time the criticism voiced against such confessions discredits police officers and it brings the image of the administration of justice into disrepute.

RECOMMENDATION

The Commission recommends that the Criminal Procedure Act be amended to make provision for confessions made to police officers who are justices of the peace to be inadmis sible unless it is confirmed before a magistrate and reduced to writing. The Commission does not recommend any other changes.

(c) ADMISSIONS OF GUILT AND SUMMONSING AS A MEANS OF BRINGING ACCUSED PERSONS TO COURT

(Paragraphs 9.69 to 9.84 and section 57 (1) of the proposed Draft Bill in Annexure B)

Too many accused persons are summarily arrested in cases where the issuing of summonses would appear to be more appropriate. This practice unnecessarily burdens court rolls which are already overloaded. Better use of admissions of guilt can contribute to fewer cases being set for trial.

RECOMMENDATION

The Commission recommends that:

(a) the Department of Justice promote the implementation of the better use of admissions of guilt in terms of section 57 by means of an appropriate circular to all magistrates' offices;

(b) greater utilization of summonses instead of arrests in appropriate cases be promoted by means of circulars by the Department of Justice in co-operation within the SA Police Services;

(c) section 57(1) of the Criminal Procedure Act be amended to provide for the payment of admission of guilt fines also after arrest or warning or release on bail at any stage before an accused has pleaded; and

(d) summonses be redesigned to provide or an annexure to the summons be designed which provides for the following information:

(i) A notice concerning the trial date which provides for the following alternatives where applicable:

*that the case will not be tried on the day in question;

*that the accused is entitled to legal representation and that he should make arrangements in this regard in good time and that a trial date will be determined on that day in consultation with his legal representative;

*that the case has been set for trial and that the accused should be ready to proceed with the trial;

(ii) a list of witnesses whom the State intends to call;

(iii) particulars of the charge and copies of the statements which the State intends to use and to which the accused is entitled; and

(iv) copies of documentary evidence which the State intends to use.

ALTERNATIVE PROCEDURES TO SPEED UP TRIALS

(a) PRE-TRIAL CONFERENCES

(Paragraphs 10.1 to 10.20)

Long protracted trials can be reduced if the issues in dispute are determined in good time during the pre-trial phase. In this regard the Commission considered whether the holding of compulsory pre-trial conferences should not be given statutory recognition. Nothing precludes informal discussions between the State and the defence. There are, however, valid objections to the introduction of rigid rules in this regard.

RECOMMENDATION

The Commission recommends against statutory provision for pre-trial conferences.

(b) PLEA AGREEMENTS

(Paragraphs 10.22 to 10.84 and section 106 A of the proposed Draft Bill in Annexure B)

The Commission considered the question whether plea discussions and plea agreements should not be provided for in legislation in an attempt to reduce the number of cases which have to go to trial. The Commission came to the conclusion that the number of trial cases could indeed be reduced were plea discussions and the conclusion of plea agreements to be provided for in legislation.

RECOMMENDATION

The Commission recommends that legislation be adopoted by means of the addition of the Criminal Procedure Act of a new section 106A as follows:

"106A. Plea discussions and plea agreements. - (1) The prosecutor and the accused or his legal representative may hold discussions with a view to reaching an agreement acceptable to both parties in respect of plea proceedings and the disposal of the case.

(2) Any agreement reached between the parties shall be reduced to writing and shall state fully the terms of the agreement and any admissions made and shall be signed by the prosecutor, the accused, the legal representative and the interpreter, as the case may be.

(3) The contents of such an agreement shall be proved by the mere produc tion thereof by both parties: Provided that in the case of an agreement concluded with an accused who is not legally represented the court shall satisfy itself that the accused fully understands the contents thereof and entered into the agreement volun tarily and without improper influence.

(4) The judicial officer before whom criminal proceedings are pending shall not participate in the discussions contemplated in subsection (1): Provided that he may, before an agreement is reached, be approached by the parties in open court or in chambers regarding the contents of such discussions and he may inform the parties in general terms of the possible advantages of discussions, possible sentencing options or the acceptability of a proposed agreement.

(5) The judicial officer shall, before the accused is required to plead in open court or, if he has already pleaded, before judgment is given, be informed that plea discussions are being conducted or are to be conducted or that the parties have reached a plea agreement as contemplated in subsection (1).

(6) If after discussions the parties have concluded a plea agreement and the court has been informed as contemplated in subsection (3), the court shall enter such fact upon the record and order that the contents of the agreement be disclosed in open court: Provided that if the court is for any reason of the opinion that the accused cannot be convicted of the offence with which he is charged or of the offence in respect of which an agreement was reached and to which he pleaded guilty or that the agreement is in conflict with the provisions of section 25 of the Constitution of the Republic of South Africa or with justice, the court shall record a plea of not guilty in respect of such a charge and order that the trial proceed.

(7) No evidence of a plea agreement or of admissions contained therein or of statements relating to such agreement shall be admissible as proof of guilt or credibility in subsequent criminal proceedings."