South Africa: Consolidated Acts

[Last checked: 22 November 2024.*]

*The last time this Act was reviewed for updates.

 

CRIMINAL PROCEDURE ACT 51 OF 1977

[Updated to 14 May 2024.**]

**Date of last changes incorporated into this Act.

_________________________________

Afrikaans text signed by the President

Assented to 21 April 1977

________________________________

Published: G. 5532 of 6 May 1977

Commencement: 22 July 1977– ProcR 148, G. 5654 of 15 July 1977

 

Amended by

Criminal Procedure Matters Amendment Act 79 of 1978 (G. 6041, with effect from 2 June 1978)

Criminal Procedure Amendment Act 56 of 1979 (G. 6476, with effect from 1 June 1979)

Criminal Procedure Amendment Act 64 of 1982 (G. 8161, with effect from 21 April 1982)

Appeals Amendment Act 105 of 1982 (G. 8295, with effect from 1 April 1983 [ProcR 36, G. 8617])

Criminal Law Amendment Act 59 of 1983 (G. 8702, commencement of ss 12 to 23: 11 May 1983,
 1 November 1983 [ProcR 163, G. 8937])

Criminal Procedure Matters Amendment Act 109 of 1984 (G. 9359, with effect from 1 September 1984 [ProcR 151, G. 9401])

Immorality and Prohibition of Mixed Marriages Amendment Act 72 of 1985 (G. 9804, with effect from 19 June 1985)

Criminal Procedure Amendment Act 33 of 1986 (G. 10180, with effect from 4 April 1986 and1 September 1987 [Proc 126, G. 10898])

Criminal Procedure Amendment Act 33 of 1986 (G. 10180, with effect from 1 February 1989 [ProcR 2,
G. 11684])

Special Courts for Blacks Abolition Act 34 of 1986 (G. 10196, with effect from 1 August 1986 [ProcR 138,
G. 10376])

Transfer of Powers and Duties of the State President Act 97 of 1986 (G. 10438, with effect from 3 October 1986 [Proc 185, G. 10475])

Criminal Procedure Amendment Act 26 of 1987 (G. 10797, with effect from 24 June 1987; 26 February 1988 [Proc 22, G. 11151])

Law of Evidence and the Criminal Procedure Amendment Act 103 of 1987 (G. 11010, with effect from
23 October 1987)

Law of Evidence Amendment Act 45 of 1988 (G. 11274, with effect from 3 October 1988 [Proc 171,
G. 11519])

Criminal Procedure Amendment Act 8 of 1989 (G. 11742, with effect from 1 August 1989 [Proc 142,
G. 12030])

Criminal Law and the Criminal Procedure Amendment Act 39 of 1989 (G. 11805, with effect from 1 August 1989 [ProcR 137, G. 12024])

Judicial Matters Amendment Act 77 of 1989 (G. 11931, with effect from 31 July 1989 [Proc 143, G. 12030])

Criminal Law Amendment Act 107 of 1990 (G. 12644, with effect from 27 July 1990; 1 August 1990 [ProcR 128, G. 12678])

Criminal Procedure Amendment Act 5 of 1991 (G. 13110, with effect from 23 December 1991; 1 May 1992 [ProcR 121, G. 13669; ProcR 41, G. 13966])

Transfer of Powers and Duties of the State President Act 51 of 1991 (G. 13205, with effect from 29 April 1991 [Proc 41, G. 13208])

Correctional Services and Supervision Matters Amendment Act 122 of 1991 (G. 13367, commencement of ss 35, 37 and 40 and ss 38, 39, and 41 to 47 in respect of certain Magisterial Districts as indicated: 15 August 1991 [Proc 78, G. 13469])

(Commencement of ss 38, 39, and 41 to 47 in respect of certain Magisterial Districts as indicated: 20 March 1992 [ProcR 20, G. 13881]

Commencement of s 41(a) in so far as it inserts paragraph (i) in section 276(1) in respect of certain Magisterial Districts as indicated; section 42 in so far as it inserts section 276A(2) to (4) and section 43:
1 April 1992 [Proc 32, G. 13904]

Commencement of s 41(a) in so far as it adds paragraph (i) to s 276(1) in respect of certain Magisterial Districts as indicated: 8 May 1992 [ProcR 40, G. 13986])

Commencement of s 41(a) in so far as it adds paragraph (i) to s 276(1) in respect of certain Magisterial Districts as indicated: 1 June 1992 [ProcR 48, G. 14007]

Commencement of s 38, 41(b) and 47, 41(a) in so far as it adds paragraph (h) to s 276(1), 41(a) in so far as it adds paragraph (i) to s 276(1), s 42 in so far as it inserts s 276A(1), and s 46 in respect of certain Magisterial Districts as indicated: 1 August 1992 [ProcR 86, G. 14204]

Commencement of s 41(a) in so far as it adds paragraph (i) to s 276(1) in respect of certain Magisterial Districts as indicated: 1 September 1992 [ProcR 99, G. 14260]

Commencement of s 38, 41(b), 45 and 47, 41(a) in so far as it adds paragraph (h) to s 276(1), s 42 in so far as it inserts s 276A(1) and s 41(a) in so far as it adds paragraph (i) to s 276(1) in respect of certain Magisterial Districts as indicated: 1 October 1992 [ProcR 115, G. 14313]

Commencement of s 38, 41(b), 45 and 47, 41(a) in so far as it adds paragraph (h) to s 276(1), s 42 in so far as it inserts s 276A(1) and s 41(a) in so far as it adds paragraph (i) to s 276(1) in respect of certain Magisterial Districts as indicated: 1 November 1992 [ProcR 121 G. 14385]

Commencement of s 38, 41(b), 45 and 47, 41(a) in so far as it adds paragraph (h) to section 276(1), section 42 in so far as it inserts section 276A(1) and section 41(a) in so far as it adds paragraph (i) to section 276(1) in respect of certain Magisterial Districts as indicated: 1 December 1992 [ProcR 133 G. 14444]

Commencement of ss 38, 39, 41(a) in so far as it adds paragraph (h) to section 276(1), 41(a) in so far as it adds paragraph (i) to section 276(1), 41(b), 42 in so far as it inserts section 276A(1), 44, 45 and 47 in respect of certain Magisterial Districts as indicated: 1 February 1993 [ProcR 4, G. 14563]

Commencement of s 41(a) in so far as it adds paragraph (i) to section 276(1) in respect of certain Magisterial Districts as indicated: 1 March 1993 [ProcR 10, G. 14616]

Commencement of ss 38, 41(a) in so far as it adds paragraph (h) to section 276(1), 41(a) in so far as it adds paragraph (i) to section 276(1), 41(b), 42 in so far as it inserts section 276A(1), 45 and 47 in respect of certain Magisterial Districts as indicated: 1 April 1993 [ProcR 24, G. 14694, dated 1 April 1993]

Commencement of ss 38, 41(a) in so far as it adds paragraph (h) to section 276(1), 41(b), 42 in so far as it inserts section 276A(1), 45 and 47 in respect of certain Magisterial Districts as indicated: 1 May 1993 [ProcR 37, G. 14766, dated 1 May 1993])

 

Criminal Law Amendment Act 135 of 1991 (G. 13411, with effect from 31 July 1992 [ProcR 85, G. 14196];
30 July 1993 [ProcR 64, G. 15024])

Criminal Law Amendment Act 4 of 1992 (G. 13818, with effect from 11 March 1992)

Prevention and Treatment of Drug Dependency Act 20 of 1992 (G. 13837, commencement ss 50 and 51:
30 April 1993 [ProcR 35, G. 14759])

Attorney-General Act 92 of 1992 (G. 14086, with effect from 31 December 1992 [ProcR 137, G. 14458])

Criminal Law Second Amendment Act 126 of 1992 (G. 14130, with effect from 31 July 1992 [ProcR 80,
G. 14185, dated 27 July 1992]),

General Law Amendment Act 139 of 1992 (G. 14142, with effect from 15 August 1991; 7 August 1992 [ProcR 89, G. 14218])

Criminal Matters Amendment Act 116 of 1993 (G. 14982 with effect from 1 November 1993 [ProcR 104,
G. 15234]),

General Law Third Amendment Act 129 of 1993 (G. 14995, with effect from 1 September 1993 [ProcR 81,
G. 15102]; 1 December 1993 [ProcR 126, G. 15308])

General Law Fifth Amendment Act 157 of 1993 (G. 15178, with effect from 1 December 1993 [ProcR 125,
G. 15308]),

General Law Sixth Amendment Act 204 of 1993 (G. 15445, with effect from 1 March 1994 [ProcR 34,
G. 15527])

Criminal Procedure Second Amendment Act 75 of 1995 (G. 16696, with effect from 21 September 1995)

Justice Laws Rationalisation Act 18 of 1996 (G. 17129, with effect from 1 April 1997 [ProcR 23, G. 17849])

General Law Amendment Act 49 of 1996 (G. 17477, with effect from 4 October 1996)

International Co-operation in Criminal Matters Act 75 of 1996 (G. 17587, with effect from 1 January 1998. [ProcR 88, G. 18556])

Criminal Procedure Second Amendment Act 85 of 1996 (G. 17646, with effect from 29 November 1996)

Criminal Procedure Amendment Act 86 of 1996 (G. 17596, with effect from 1 September 1997 [ProcR 49,
G. 18231]; 28 June 2002 [ProcR 35, G. 23384])

Abolition of Restrictions on the Jurisdiction of Courts Act 88 of 1996 (G. 17599, with effect from
22 November 1996)

Abolition of Corporal Punishment Act 33 of 1997 (G. 18256, with effect from 5 September 1997)

Criminal Procedure Amendment Act 76 of 1997 (G. 18492, with effect from 28 May 1999 [ProcR 50,
G. 20036])

Criminal Procedure Second Amendment Act 85 of 1997 (G. 18501, with effect from 1 August 1998 [ProcR 76, G. 19101])

Parole and Correctional Supervision Amendment Act 87 of 1997 (G. 18503, with effect from 1 October 2004. [Proc 45, G. 26808])

Criminal Law Amendment Act 105 of 1997 (G. 18519, with effect from 13 November 1998 [ProcR 116,
G. 19475])

National Prosecuting Authority Act 32 of 1998 (G. 19021, with effect from 16 October 1998. [ProcR 103,
G. 19372])

Judicial Matters Amendment Act 34 of 1998 (G. 19022, with effect from 1 August 1998); 15 January 1999 [ProcR 4, G. 19691])

Criminal Matters Amendment Act 68 of 1998 (G. 19324, with effect from 28 February 2002 [ProcR 15,
G. 23149])

Maintenance Act 99 of 1998 (G. 19513, with effect from 26 November 1999 [ProcR 116, G. 20627])

Correctional Services Act 111 of 1998 (G. 19522, with effect from 1 October 2004. [ProcR 38, G. 26626])

Witness Protection Act 112 of 1998 (G. 19523, with effect from 31 March 2000 [ProcR 16, G. 21039])

Domestic Violence Act 116 of 1998 (G. 19537, with effect from 15 December 1999 [ProcR 97, G. 20469])

 

Judicial Matters Second Amendment Act 122 of 1998 (G. 19590, with effect from 18 July 2003. [ProcR 54, G. 25206])

Judicial Matters Amendment Act 62 of 2000 (G. 21883, with effect from 23 March 2001 [ProcR 21,
G. 22159])

Criminal Procedure Amendment Act 17 of 2001 (G. 22483, with effect from 20 July 2001)

Judicial Matters Amendment Act 42 of 2001 (G. 22912, with effect from 7 December 2001; 28 February 2002)

Judicial Matters Amendment Act 62 of 2001 (G. 22933, with effect from 14 December 2001)

Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (G. 23642, with effect from 16 August 2002 [ProcR 67, G. 23761])

Judicial Matters Amendment Act 55 of 2002 (G. 24277, with effect from 18 February 2005. [ProcR 9,
G. 27288])

Regulation of Interception of Communications and Provision of Communication-Related Information
Act 70 of 2002 (G. 24286, with effect from 30 September 2005. [ProcR 55, G. 28075])

Criminal Procedure Amendment Act 42 of 2003 (G. 25862, with effect from 1 January 2004)

Judicial Matters Second Amendment Act 55 of 2003 (G. 26206, with effect from 31 March 2005 [ProcR 13, G. 27406])

Prevention and Combating of Corrupt Activities Act 12 of 2004 (G. 26311, with effect from 27 April 2004)

Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 (G. 27266, with effect from 20 May 2005 [ProcR 18, G. 27502])

Judicial Matters Amendment Act 22 of 2005 (G. 28391, with effect from 11 January 2006)

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (G. 30599, with effect from 16 December 2007)

Criminal Law (Sentencing) Amendment Act 38 of 2007 (G. 30638, with effect from 31 December 2007)

Criminal Procedure Amendment Act 65 of 2008 (G. 31911, with effect from 6 May 2009 [ProcR 36,
G. 32205]

Commencement of s 1 in certain magisterial districts as indicated: 1 October 2010 [ProcR 57, G. 33605];
15 February 2011 [ProcR 5, G. 34000]; 31 October 2011 [ProcR 59, G. 34713]; 11 November 2011 [Proc 62, G. 34744]; 30 September 2014 [Proc 65, G. 38020]; 1 December 2014 [Proc 78, G. 38273]; 31 January 2017 [Proc Nos R 4, R 5 and R 7, G. 40578 of 27 January 2017]; 24 February 2017 [ProcR 6, G. 40578 of
27 January 2017]

Judicial Matters Amendment Act 66 of 2008 (G. 31908, ss 4, 9, 11 and 12 with effect from
17 February 2009); ss 10, 13, 14, 15 and 16 with effect from 10 September 2010 [ProcR 45, G. 33550])

Child Justice Act 75 of 2008 (G. 32225, with effect from 1 April 2010)

Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 (G. 33607, with effect from 18 January 2013 [Proc 2, G. 36080])

Criminal Procedure Amendment Act 9 of 2012 (G. 35714, with effect from 25 September 2012)

Prevention and Combatting of Trafficking in Persons Act 7 of 2013 (G. 36715, with effect from 9 August 2015 [ProcR 32, G. 39078])

Criminal Procedure Amendment Act 8 of 2013 (G. 36691, dated 22 July 2013. with effect from 10 September 2010)

Prevention and Combating of Torture of Persons Act 13 of 2013 (G. 36716, with effect from 29 July 2013)

Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (G. 37268, with effect from 31 January 2015, [Proc 89, G. 38376]; 31 January 2022, [Proc 48, G. 45739)

Judicial Matters Amendment Act 42 of 2013 (G. 37254, with effect from 22 January 2014)

Legal Aid South Africa Act 39 of 2014 (G. 38315, with effect from 1 March 2015 [ProcR 7, G. 38512])

Criminal Matters Amendment Act 18 of 2015 (G. 39522, with effect from 1 June 2016 [ProcR 33, G. 40010])

Criminal Procedure Amendment Act 4 of 2017 (G. 40946, with effect from 29 June 2017)

Judicial Matters Amendment Act 8 of 2017 (G. 41018, with effect from 2 August 2017)

Child Justice Amendment Act 28 of 2019 (G. 46752, with effect from 19 August 2022 [Proc 2400, G. 46752])

Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of 2020 (G. 44034, with effect from 23 December 2020)

Cybercrimes Act 19 of 2020 (G. 44651, with effect from 1 December 2021 [ProcR 42, G. 45562])

Criminal and Related Matters Amendment Act 12 of 2021 (G. 45822, with effect from 5 August 2022 [ProcR 75, G. 47198])

Domestic Violence Amendment Act 14 of 2021 (G. 45824, with effect from 14 April 2023 [ProcR 117,
G. 48419])

Criminal Procedure Amendment Act 16 of 2021 (G. 45893, with effect from 9 February 2022)

Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Act 23 of 2022 (G. 47803, with effect from 4 January 2023 [Proc, 110, G. 47820])

Judicial Matters Amendment Act 15 of 2023 (G. 50430, with effect from 3 April 2024)

 

Uncommenced Amendments

Correctional Services and Supervision Matters Amendment Act 122 of 1991

Criminal Procedure Amendment Act 86 of 1996

Judicial Matters Amendment Act 66 of 2008

Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023 (G. 50652 of 14 May 2024, with effect from date to be proclaimed)

 

ACT

 

To make provision for procedures and related matters in criminal proceedings.

 

BE IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:—

ARRANGEMENT OF SECTIONS

 

DEFINITIONS

 

1.       Definitions

 

CHAPTER 1

PROSECUTING AUTHORITY

 

2.       …

3.       …

4.       …

5.       …

6.       Power to withdraw charge or stop prosecution

7.       Private prosecution on certificate nolle prosequi

8.       Private prosecution under statutory right

9.       Security by private prosecutor

10.     Private prosecution in name of private prosecutor

11.     Failure of private prosecutor to appear

12.     Mode of conducting private prosecution

13.     Attorney–general may intervene in private prosecution

14.     Costs in respect of process

15.     Costs of private prosecution

16.     Costs of accused in private prosecution

17.     Taxation of costs

18.     Prescription of right to institute prosecution

 

CHAPTER 2

SEARCH WARRANTS, ENTERING OF PREMISES, SEIZURE, FORFEITURE AND DISPOSAL OF PROPERTY CONNECTED WITH OFFENCES

 

19.     Saving as to certain powers conferred by other laws

20.     State may seize certain articles

21.     Article to be seized under search warrant.

22.     Circumstances in which article may be seized without search warrant

23.     Search of arrested person and seizure of article

24.     Search of premises

25.     Power of police to enter premises in connection with State security or any offence

26.     Entering of premises for purposes of obtaining evidence

27.     Resistance against entry or search

28.     Wrongful search an offence, and award of damages

29.     Search to be conducted in decent and orderly manner

30.     Disposal by police official of article after seizure

31.     Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings

32.     Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid

33.     Article to be transferred to court for purposes of trial

34.     Disposal of article after commencement of criminal proceedings

35.     Forfeiture of article to State

36.     Disposal of article concerned in an offence committed outside Republic

 

CHAPTER 3

ASCERTAINMENT OF BODILY FEATURES OF PERSON

 

36A.  Interpretation of Chapter 3

36B.  Powers in respect of fingerprints of accused and convicted persons

36C.  Fingerprints and body-prints for investigation purposes

36D.  Powers in respect of buccal samples, bodily samples and crime scene samples

36E.  Samples for investigation purposes

37.     Powers in respect of body-prints and bodily appearance of accused and convicted persons

 

CHAPTER 4

METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT

 

38.     Methods of securing attendance of accused in court

 

CHAPTER 5

ARREST

 

39.     Manner and effect of arrest

40.     Arrest by peace officer without warrant

41.     Name and address of certain persons and power of arrest by peace officer without warrant

42.     Arrest by private person without warrant

43.     Warrant of arrest may be issued by magistrate or justice

44.     Execution of warrants

45.     Arrest on telegraphic authority

46.     Non-liability for wrongful arrest

47.     Private persons to assist in arrest when called upon

48.     Breaking open premises for purpose of arrest

49.     Use of force in effecting arrest

50.     Procedure after arrest

51.     Escaping and aiding escaping before incarceration, and penalties therefor

52.     Saving of other powers of arrest

53.     Saving of civil law rights and liability

 

CHAPTER 6

SUMMONS

 

54.     Summons as method of securing attendance of accused in magistrate’s court

55.     Failure of accused to appear on summons

 

CHAPTER 7

WRITTEN NOTICE TO APPEAR IN COURT

 

56.     Written notice as method of securing attendance of accused in magistrate’s court

 

CHAPTER 8

ADMISSION OF GUILT FINE

 

57.     Admission of guilt and payment of fine without appearance in court

57A.  Admission of guilt and payment of fine after appearing in court

57B.  Payment of admission of guilt fine without appearance in court and previous conviction

57C.  Expungement of criminal records of persons whose name appears in records of Criminal Record

57D.  Convictions and sentences in respect of admission of guilt fines relating to offences in terms of regulations made in terms of section 27(2) of Disaster Management Act, 2002

 

CHAPTER 9

BAIL

 

58.     Effect of bail

59.     Bail before first appearance of accused in lower court

59A.  Director of Public Prosecutions may authorise release on bail

60.     Bail application of accused in court

61.     …

62.     Court may add further conditions of bail

63.     Amendment of conditions of bail

63A.  Release or amendment of bail conditions of accused on account of prison conditions

64.     Proceedings with regard-to bail and conditions to be recorded in full

65.     Appeal to superior court with regard to bail

65A.  Appeal by Attorney-General against decision of court to release accused on bail

66.     Failure by accused to observe condition of bail

67.     Failure of accused on bail to appear

67A.  Criminal liability of a person who is on bail on the ground of failure to appear or to comply with a condition of bail

68.     Cancellation of bail

68A.  Cancellation of bail at request of accused

69.     Payment of bail money by third person

70.     Remission of bail money

71.     …

 

CHAPTER 10

RELEASE ON WARNING

 

72.     Accused may be released on warning in lieu of bail

72A.  Cancellation of release on warning

 

CHAPTER 11

ASSISTANCE TO ACCUSED

 

73.     Accused entitled to assistance after arrest and at criminal proceedings

74.     …

 

CHAPTER 12

SUMMARY TRIAL

 

75.     Summary trial and court of trial

76.     Charge-sheet and proof of record of criminal case

 

CHAPTER 13

ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS: MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY

 

77.     Capacity of accused to understand proceedings

78.     Mental illness or intellectual disability and criminal responsibility

79.     Panel for purposes of enquiry and report under sections 77 and 78

 

CHAPTER 14

THE CHARGE

 

80.     Accused may examine charge

81.     Joinder of charges

82.     Several charges to be disposed of by same court

83.     Charge where it is doubtful what offence committed

84.     Essentials of charge

85.     Objection to charge

86.     Court may order that charge be amended

87.     Court may order delivery of particulars

88.     Defect in charge cured by evidence

89.     Previous conviction not to be alleged in charge

90.     Charge need not specify or negative exception, exemption, proviso, excuse or qualification

91.     Charge need not state manner or means of act

92.     Certain omissions or imperfections not to invalidate charge

93.     Alibi and date of act or offence

94.     Charge may allege commission of offence on divers occasions

95.     Rules applicable to particular charges

96.     Naming of company, firm or partnership in charge

97.     Naming of joint owners of property in charge

98.     Charge of murder or culpable homicide sufficient if it alleges fact of killing

99.     Charge relating to document sufficient if it refers to document by name

101.   Charge relating to false evidence

102.   Charge relating to insolvency

103.   Charge alleging intent to defraud need not allege or prove such intent in respect of particular person or mention owner of property or set forth details of deceit

104.   Reference in charge to objectionable matter not necessary

 

CHAPTER 15

THE PLEA

 

105.   Accused to plead to charge

105A. Plea and sentence agreements

106.   Pleas

107.   Truth and publication for public benefit of defamatory matter to be specially pleaded

108.   Issues raised by plea to be tried

109.   Accused refusing to plead

 

CHAPTER 16

JURISDICTION

 

110.   Accused brought before court which has no jurisdiction

110A. Jurisdiction in respect of offences committed by certain persons outside Republic

111.   Minister may remove trial to jurisdiction of another Attorney-General

 

CHAPTER 17

PLEA OF GUILTY AT SUMMARY TRIAL

 

112.   Plea of guilty

113.   Correction of plea of guilty

114.   Committal by magistrate’s court of accused for sentence by regional court after plea of guilty

 

CHAPTER 18

PLEA OF NOT GUILTY AT SUMMARY TRIAL

 

115.   Plea of not guilty and procedure with regard to issues

115A. Committal of accused for trial by regional court

116.   Committal of accused for sentence by regional court after trial in magistrate’s court

117.   Committal to superior court in special case

118.   Non-availability of judicial officer after plea of not guilty

 

CHAPTER 19

PLEA IN MAGISTRATE’S COURT ON CHARGE JUSTICIABLE IN SUPERIOR COURT

 

119.   Accused to plead in magistrate’s court on instructions of Attorney-General

120.   Charge-sheet and proof of record

121.   Plea of guilty

122.   Plea of not guilty

 

CHAPTER 19A

PLEA IN MAGISTRATE’S COURT ON CHARGE TO BE ADJUDICATED IN REGIONAL COURT

 

122A. Accused to plead in magistrate’s court on charge to be tried in regional court

122B. Charge-sheet and proof of record

122C. Plea of guilty

122D. Plea of not guilty

 

CHAPTER 20

PREPARATORY EXAMINATION

 

123.   Attorney-General may instruct that preparatory examination be held

124.   Proceedings preceding holding of preparatory examination to form part of preparatory examination record

125.   Attorney-General may direct that preparatory examination be conducted at a specified place

126.   Procedure to be followed by magistrate at preparatory examination

127.   Recalling of witnesses after conversion of trial into preparatory examination

128.   Examination of prosecution witnesses at preparatory examination

129.   Recording of evidence at preparatory examination and proof of record

130.   Charge to be put at conclusion of evidence for prosecution

131.   Accused to plead to charge

132.   Procedure after plea

133.   Accused may testify at preparatory examination

134.   Accused may call witnesses at preparatory examination

135.   Discharge of accused at conclusion of preparatory examination

136.   Procedure with regard to exhibits at preparatory examination

137.   Magistrate to transmit record of preparatory examination to Attorney-General

138.   Preparatory examination may be continued before different judicial officer

139.   Attorney-General may arraign accused for sentence or trial

140.   Procedure where accused arraigned for sentence

141.   Procedure where accused arraigned for trial

142.   Procedure where Attorney-General declines to prosecute

143.   Accused may inspect preparatory examination record and is entitled to copy thereof

 

CHAPTER 21

TRIAL BEFORE SUPERIOR COURT

 

144.   Charge in superior court to be laid in an indictment

145.   Trial in superior court by judge sitting with or without assessors

146.   Reasons for decision by superior court in criminal trial

147.   Death or incapacity of assessor

148.   …

149.   Change of venue in superior court after indictment has been lodged.

 

CHAPTER 22

CONDUCT OF PROCEEDINGS

 

150.   Prosecutor may address court and adduce evidence

151.   Accused may address court and adduce evidence

152.   Criminal proceedings to be conducted in open court

153.   Circumstances in which criminal proceedings shall not take place in open court

154.   Prohibition of publication of certain information relating to criminal proceedings

155.   Persons implicated in same offence may be tried together

156.   Persons committing separate offences at same time and place may be tried together

157.   Joinder of accused and separation of trials

158.   Criminal proceedings to take place in presence of accused

159.   Circumstances in which criminal proceedings may take place in absence of accused

159A. Postponement of certain criminal proceedings through audiovisual link

159B. Requirements for audiovisual appearance by accused person

159C. Technical requirements for use of audiovisual link

159D. Protection of communication between accused person and legal representative

160.   Procedure at criminal proceedings where accused is absent

161.   Witness to testify viva voce

162.   Witness to be examined under oath

163.   Affirmation in lieu of oath

164.   When unsworn or unaffirmed evidence admissible

165.   Oath, affirmation or admonition may be administered by or through an interpreter or intermediary

166.   Cross-examination and re-examination of witnesses

167.   Court may examine witness or person in attendance.

168.   Court may adjourn proceedings to any date

169.   Court may adjourn proceedings to any place

170.   Failure of accused to appear after adjournment or to remain in attendance

170A. Evidence through intermediaries

171.   Evidence on commission

172.   Parties may examine witness

173.   Evidence on commission part of court record

174.   Accused may be discharged at close of case for prosecution

175.   Prosecution and defence may address court at conclusion of evidence

176.   Judgment may be corrected

177.   Court may defer final decision

178.   Arrest of person committing offence in court and removal from court of person disturbing proceedings

 

CHAPTER 23

WITNESSES

 

179.   Process for securing attendance of witness

180.   Service of subpoena

181.   Pre-payment of witness expenses

182.   Witness from prison

183.   Witness to keep police informed of whereabouts

184.   Witness about to abscond and witness evading service of summons

185.   Detention of witness

185A. …

186.   Court may subpoena witness

187.   Witness to attend proceedings and to remain in attendance

188.   Failure by witness to attend or to remain in attendance

189.   Powers of court with regard to recalcitrant witness

190.   Impeachment or support of credibility of witness

191.   Payment of expenses of witness

191A. Witness services

192.   Every witness competent and compellable unless expressly excluded

193.   Court to decide upon competency of witness

194.   Incompetency due to state of mind

194A. Evaluation of competency of witnesses due to state of mind

195.   Evidence for prosecution by husband or wife of accused

196.   Evidence of accused and husband or wife on behalf of accused

197.   Privileges of accused when giving evidence

198.   Privilege arising out of marital state

199.   No witness compelled to answer question which the witness’s husband or wife may decline

200.   Witness not excused from answer establishing civil liability on his part

201.   Privilege of legal practitioner

202.   Privilege from disclosure on ground of public policy or public interest

203.   Witness excused from answering incriminating question

204.   Incriminating evidence by witness for prosecution

205.   Judge, regional court magistrate or magistrate may take evidence as to alleged offence

206.   The law in cases not provided for

207.   Saving of special provisions in other laws

 

CHAPTER 24

EVIDENCE

 

208.   Conviction may follow on evidence of single witness

209.   Conviction may follow on confession by accused

210.   Irrelevant evidence inadmissible

211.   Evidence during criminal proceedings of previous convictions

212.   Proof of certain facts by affidavit or certificate

212A. Proof of certain facts by affidavit from person in foreign country

212B. Proof of undisputed facts

213.   Proof of written statement by consent

214.   Evidence recorded at preparatory examination admissible at trial in certain circumstances

215.   Evidence recorded at former trial admissible at later trial in certain circumstances

216.   …

217.   Admissibility of confession by accused

218.   Admissibility of facts discovered by means of inadmissible confession

219.   Confession not admissible against another

219A. Admissibility of admission by accused

220.   Admissions

221.   Admissibility of certain trade· or business records

222.   Application to criminal proceedings of certain provisions of Civil Proceedings Evidence Act, 1965, relating to documentary evidence

223.   …

224.   Judicial notice of laws and other published matter

225.   Evidence of prints, bodily samples or bodily appearance of accused

226.   Evidence of no sexual intercourse between spouses admissible

227.   Evidence of character and previous sexual experience

228.   Evidence of disputed writing

229.   Evidence of times of sunrise and sunset

230.   Evidence and sufficiency of evidence of appointment to public office

231.   Evidence of signature of public officer

232.   Article may be proved in evidence by means of photograph thereof

233.   Proof of public documents

234.   Proof of official documents

235.   Proof of judicial proceedings

236.   Proof of entries in accounting records and documentation of banks

236A. Proof of entries in accounting records and documentation of banks in countries outside Republic

237.   Evidence on charge of bigamy

238.   Evidence of relationship on charge of incest

239.   Evidence on charge of infanticide or concealment of birth

240.   Evidence on charge of receiving stolen property

241.   Evidence of previous conviction on charge of receiving stolen property

242.   Evidence on charge of defamation

243.   Evidence of receipt of money or property and general deficiency on charge of theft

244.   Evidence on charge relating to seals and stamps

245.   Evidence on charge of which false representation is element

246.   Presumptions relating to certain documents

247.   Presumptions relating to absence from Republic of certain persons

248.   Presumption that accused possessed particular qualification or acted in particular capacity

249.   Presumption of failure to pay tax or to furnish information relating to tax

250.   Presumption of lack of authority

251.   Unstamped instrument admissible in criminal proceedings

252.   The law in cases not provided for

252A. Authority to make use of traps and undercover operations and admissibility of evidence so obtained

253.   Saving of special provisions in other laws

 

CHAPTER 25

CONVERSION OF TRIAL INTO ENQUIRY

 

254.   …

255.   Court may order enquiry under Prevention and Treatment of Drug Dependency Act, 1992

 

CHAPTER 26

COMPETENT VERDICTS

 

256.   Attempt

257.   Accessory after the fact

258.   Murder and attempted murder

259.   Culpable homicide

260.   Robbery

261.   Rape, compelled rape, sexual assault, compelled sexual assault and compelled self-sexual assault

261A. Trafficking in persons

262.   Housebreaking with intent to commit an offence

263.   Statutory offence of breaking and entering or of entering premises

264.   Theft

265.   Receiving stolen property knowing it to have been stolen

266.   Assault with intent to do grievous bodily harm

267.   Common assault

268.   Statutory unlawful carnal intercourse

269.   …

269A.

270.      Offences not specified in this Chapter

271.      Previous convictions may be proved

271A.    Certain convictions fall away as previous convictions after expiration of 10 years

271B.    Expungement of certain criminal records

271C.   Expungement of certain criminal records under legislation enacted before the Constitution of the Republic of South Africa, 1993, took effect

271D.   Expungement of certain criminal records by Criminal Record Centre

271DA. Revoking of certificate of expungement erroneously issued

271DB. Delegation of powers and assignment of duties by Director-General

271E.    Regulations

272.      Finger-print record prima facie evidence of conviction

273.      Evidence of further particulars relating to previous conviction

 

CHAPTER 28

SENTENCE

 

274.   Evidence on sentence

275.   Sentence by judicial officer or judge other than judicial officer or judge who convicted accused

276.   Nature of punishments

276A. Imposition of correctional supervision, and conversion of imprisonment into correctional supervision and vice versa

276B. Fixing of non-parole-period

277.   …

278.   …

279.   …

280.   Cumulative or concurrent sentences

281.   Interpretation of certain provisions in laws relating to imprisonment and fines

282.   Antedating sentence of imprisonment

283.   Discretion of court as to punishment

284.   Minimum period of imprisonment four days

285.   Periodical imprisonment

286.   Declaration of certain persons as habitual criminals

286A. Declaration of certain persons as dangerous criminals

286B. Imprisonment for indefinite period

287.   Imprisonment in default of payment of fine

288.   Recovery of fine

289.   Court may enforce payment of fine

290.   …

291.   …

292.   …

293.   …

294.   …

295.   …

296.   Committal to treatment centre

297.   Conditional or unconditional postponement or suspension of sentence, and caution or reprimand

297A. Liability for patrimonial loss arising from performance of community service

297B. Agreement on operation of suspended sentences

298.   Sentence may be corrected

299.   Warrant for the execution of sentence

299A. Right of complainant to make representations in certain matters with regard to placement on parole, on day parole, or under correctional supervision

 

CHAPTER 29

COMPENSATION AND RESTITUTION

 

300.   Court may award compensation where offence causes damage to or loss of property

301.   Compensation to innocent purchaser of property unlawfully obtained

 

CHAPTER 30

REVIEWS AND APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN LOWER COURTS

 

302.   Sentences subject to review in the ordinary course

303.   Transmission of record

304.   Procedure on review

304A. Review of proceedings before sentence

305.   …

306.   Accused may set down case for argument

307.   Execution of sentence not suspended unless bail granted

308.   …

308A. Correctional supervision not suspended unless bail granted

309.   Appeal from lower court by person convicted

309A. Appeal against conviction and sentence of chiefs, headmen and chiefs’ deputies

309B. Application for leave to appeal

309C. Petition procedure

309D. Explanation of certain rights to unrepresented and certain other accused

310.   Appeal from lower court by prosecutor

310A. Appeal by Attorney-General against sentence of lower court

311.   Appeal to Appellate Division

312.   Review or appeal and failure to comply with subsection (1)(b) or (2) of section 112

313.   Institution of proceedings de novo when conviction set aside on appeal or review

314.   Obtaining presence of convicted person in lower court after setting aside of sentence or order

 

CHAPTER 31

APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN SUPERIOR COURTS

 

315.   Court of appeal in respect of superior court judgments

316.   Applications for condonation, leave to appeal and further evidence

316A. …

316B. Appeal by Attorney-General against sentence of superior court

317.   Special entry of irregularity or illegality

318.   Appeal on special entry under section 317

319.   Reservation of question of law

320.   Report of trial judge to be furnished on appeal

321.   When execution of sentence may be suspended

322.   Powers of court of appeal

323.   …

324.   Institution of proceedings de novo when conviction set aside on appeal

325.   Saving of power of State President to extend mercy

325A. …

326.   …

327.   Further evidence and free pardon or substitution of verdict by State President

 

CHAPTER 33

GENERAL PROVISIONS

 

328.   Force of process

329.   Court process may be served or executed by police official

330.   Transmission of court process by telegraph or similar communication

331.   Irregular warrant or process

332.   Prosecution of corporations and members of associations

333.   Minister may invoke decision of Appellate Division on question of law

334.   Minister may declare certain persons peace officers for specific purposes and liability for damages

335.   Person who makes statement entitled to copy thereof

335A. Prohibition of publication of identity of persons towards or in connection with whom certain offences have been committed

335B. Medical examination of minors towards or in connection with whom certain offences have been committed

336.   Act or omission constituting offence under two or more laws

337.   Estimating age of person

338.   Production of document by accused in criminal proceedings

339.   Removal of accused from one prison to another for purpose of attending at criminal proceedings

340.   Prison list of unsentenced prisoners and witnesses detained

341.   Compounding of certain minor offences

342.   Conviction or acquittal no bar to civil action for damages

342A. Unreasonable delays in trials

343.   …

344.   Repeal of laws

345.   Short title

Schedule 1

Schedule 2

Schedule 3

Schedule 4

Schedule 5

Schedule 6

Schedule 7

Schedule 8

 

DEFINITIONS

 

1.       Definitions

 

(1)     In this Act, unless the context otherwise indicates—

 

“aggravating circumstances”, in relation to—

 

(a)     …

[Para (a) of “aggravating circumstances” repealed by s 1 of Act 107 of 1990.]

 

(b)     robbery or attempted robbery, means

 

(i)      the wielding of a fire-arm or any other dangerous weapon;

 

(ii)      the infliction of grievous bodily harm; or

 

(iii)     a threat to inflict grievous bodily harm,

 

by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence;

 

“bank” means a bank as defined in section 1 of the Banks Act, 1990 (Act 94 of 1990), and includes the Land and Agricultural Bank of South Africa referred to in section 3 of the Land Bank Act, 1944 (Act 13 of 1944), and a mutual building society as defined in section 1 of the Mutual Building Societies Act, 1965 (Act 24 of 1965);

[“bank” substituted by s 1(a) of Act 5 of 1991, s 38 of Act 129 of 1993.]

 

“charge” includes an indictment and a summons;

 

“Commissioner”, means the Commissioner of Correctional Services as defined in section 138 of the Correctional Services Act, 1998, or a person authorised by him or her;

[“Commissioner” inserted by s 35 of Act 122 of 1991; substituted by s 137 of Act 111 of 1998.]

 

“correctional official” means a correctional official as defined in section 1 of the Correctional Services Act, 1998;

[“correctional official” inserted by s 35 of Act 122 of 1991; substituted by s 137 of Act 111 of 1998.]

 

“correctional supervision” means a community based sentence to which a person is subject in accordance with Chapter V and VI of the Correctional Service Act, 1998, and the regulations made under that Act if—

 

(a)     he has been placed under that section 6(1)(c);

 

(b)     it has been imposed on him under section 276(1)(h) or (i) and he, in the latter case, has been placed under that;

 

(c)      his sentence has been converted into that under section 276A(3)(e)(ii), 286B(4)(b)(ii) or 287(4)(b) or he has been placed under that section 286B(5)(iii) or 287(4)(a);

 

(d)     it is a condition on which the passing of his sentence has been postponed and he has been released under section 297(1)(a)(i)(ccA); or

 

(e)     it is a condition on which the operation of—

 

(i)      the whole or any part; or

 

(ii)      any part,

 

of his sentence has been suspended under section 297(1)(b) or (4), respectively;

[“correctional supervision” inserted by s 35 of Act 122 of 1991; amended by s 16 of Act 116 of 1993; substituted by s 137 of Act 111 of 1998.]

 

“criminal proceedings” includes a preparatory examination under Chapter 20;

 

“day” means the space of time between sunrise and sunset;

 

“justice” means a person who is a justice of the peace under the provisions of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);

 

“law” ...

[“law” repealed by s 1 of Act 49 of 1996.]

 

“local division” means a local division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959);

 

“lower court” means any court established under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944);

 

“magistrate” includes an additional magistrate and an assistant magistrate but not a regional magistrate;

 

“magistrate’s court” means a court established for any district under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), and includes any other court established under such provisions, other than a court for a regional division;

 

“Minister” means the Minister of Justice;

 

“night” means the space of time between sunset and sunrise;

 

“offence” means an act or omission punishable by law;

 

“peace officer” includes any magistrate, justice, police official, correctional official as defined in section 1 of the Correctional Services Act, 1959, and, in relation to any area, offence, class of offence or power referred to in a notice issued under section 334(1), any person who is a peace officer under that section;

[“peace officer” amended by s 4 of Act 18 of 1996.]

 

“police official” means any member of the Force as defined in section 1 of the Police Act, 1958 (Act 7 of 1958), and “police” has a corresponding meaning;

[“police official” substituted by s 1(b) of Act 5 of 1991.]

 

“premises” includes land, any building or structure, or any vehicle, conveyance, ship, boat or aircraft;

 

“province” ...

[“province” repealed by s 1 of Act 49 of 1996.]

 

“provincial administration” ...

[“provincial administration” repealed by s 1 of Act 49 of 1996.]

 

“provincial division” means a provincial division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959);

 

“regional court” means a court established for a regional division under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944);

 

“regional magistrate” means a magistrate appointed under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), to the court for a regional division.

 

“Republic” ...

[“Republic” repealed by s 1 of Act 49 of 1996.]

 

“rules of court” cans the rules made under section 43 of the Supreme Court Act, 1959 (Act 59 of 1959), or under section 6 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985);

[“rules of court” substituted by s 1(c) of Act 5 of 1991.]

 

“special superior court” ...

[“special superior court” repealed by s 7 of Act 62 of 2000.]

 

“State”...

[“State” repealed by s 1 of Act 49 of 1996.]

 

“superior court” means a provincial or local division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959);

 

“supreme court” means the Supreme Court of South Africa established under the Supreme Court Act, 1959 (Act 59 of 1959);

 

“territory” ...

[“territory” repealed by s 1 of Act 49 of 1996.]

 

“this Act” includes the rules of court and any regulations made under this Act.

 

(2)     Any reference in any law to an inferior court shall, unless the context of such law indicates otherwise, be construed as a reference to a lower court as defined in subsection (1).

 

CHAPTER 1

PROSECUTING AUTHORITY

 

2.       ...

[S 2 repealed by s 44 of Act 32 of 1998.]

 

3.       …

[S 3 amended by s 11 of Act 59 of 1983 with effect from 1 November 1983; repealed by s 8 of Act 92 of 1992.]

 

4.       ...

[S 4 repealed by s 8 of Act 92 of 1992.]

 

5.       ...

[S 5 repealed by s 44 of Act 32 of 1998.]

 

6.       Power to withdraw charge or stop prosecution

 

An Attorney-General or any person conducting a prosecution at the instance of the State or any body or person conducting a prosecution under section 8, may—

 

(a)     before an accused pleads to a charge, withdraw that charge, in which event the accused shall not be entitled to a verdict of acquittal in respect of that charge;

 

(b)     at any time after an accused has pleaded, but before conviction, stop the prosecution in respect of that charge, in which event the court trying the accused shall acquit the accused in respect of that charge: Provided that where a prosecution is conducted by a person other than an Attorney-General or a body or person referred to in section 8, the prosecution shall not be stopped unless the Attorney-General or any person authorised thereto by the Attorney-General, whether in general or in any particular case, has consented thereto.

 

Uncommenced amendment: (c)      at an time before judgment whether or not an accused has already pleaded to a charge, reconsider the case and upon receipt of a written admission made by the accused in respect of the charge brought against him or a lesser charge, suspend the court proceedings and place such person, with his concurrence, under correctional supervision on such conditions and for such period as may be agreed upon: Provided that— (i)      where a probation officer or a correctional official is readily available in the court's area of jurisdiction, the powers under this paragraph may only be exercised after a report of such a probation officer or correctional official has been submitted for consideration to the prosecutor concerned; (ii)      the powers under this paragraph may only be exercised after consultation with the Commissioner and the police official charged with the investigation of the case and with due regard to the circumstances of the offence, the accused and the interests of the community; (iii)     where a prosecution has been instituted under section 8, the suspension of the court proceedings shall be authorized beforehand by the attorney-general; (iv)     the provisions of section 106(4) shall not be applicable where such an accused has already pleaded to the charge. [S 6(c) to be added by s 36 of Act 122 of 1991 with effect from a date to be proclaimed.] (2)     If the court proceedings which have been suspended under subsection (1)(c) are proceeded with later— (a)     and the trial has already commenced, the plea which has already been recorded shall stand and the proceedings shall— (i)      if the court is similarly constituted, be resumed from where they were suspended; or (ii)      if the court is differently constituted, be proceeded with de novo; (b)     the written admission referred to in subsection (1)(c) may not be used against such an accused during the prosecution. [S 6(2) added by s 36 of Act 122 of 1991 with effect from a date to be proclaimed.]

 

7.       Private prosecution on certificate nolle prosequi

 

(1)     In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence—

 

(a)     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;

 

(b)     a husband, if the said offence was committed in respect of his wife;

 

(c)      the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or

 

(d)     the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward,

 

may, subject to the provisions of section 9 and section 59(2) of the Child Justice Act, 2008, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.

[S 7(1) substituted by s 99(1) of Act 75 of 2008.]

 

(2)

(a)     No private prosecutor under this section shall obtain the process of any court for summoning any person to answer any charge unless such private prosecutor produces to the officer authorised by law to issue such process a certificate signed by the Attorney-General that he has seen the statements or affidavits on which the charge is based and that he declines to prosecute at the instance of the State.

 

(b)     The Attorney-General shall, in any case in which he declines to prosecute, at the request of the person intending to prosecute, grant the certificate referred to in paragraph (a).

 

(c)      A certificate issued under this subsection shall lapse unless proceedings in respect of the offence in question are instituted by the issue of the process referred to in paragraph (a) within three months of the date of the certificate.

 

(d)     The provisions of paragraph (c) shall apply also with reference to a certificate granted before the commencement of this Act under the provisions of any law repealed by this Act, and the date of such certificate shall, for the purposes of this paragraph, be deemed to be the date of commencement of this Act.

 

8.       Private prosecution under statutory right

 

(1)     Any body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.

 

(2)     A body which or a person who intends exercising a right of prosecution under subsection (1), shall exercise such right only after consultation with the Attorney-General concerned and after the Attorney‑General has withdrawn his right of prosecution in respect of any specified offence or any specified class or category of offences with reference to which such body or person may by law exercise such right of prosecution.

 

(3)     An Attorney-General may, under subsection (2), withdraw his right of prosecution on such conditions as he may deem fit, including a condition that the appointment by such body or person of a prosecutor to conduct the prosecution in question shall be subject to the approval of the Attorney-General, and that the Attorney-General may at any time exercise with reference to any such prosecution any power which he might have exercised if he had not withdrawn his right of prosecution.

 

9.       Security by private prosecutor

 

(1)     No private prosecutor referred to in section 7 shall take out or issue any process commencing the private prosecution unless he deposits with the magistrate’s court in whose area of jurisdiction the offence was committed—

 

(a)     the amount the Minister may from time to time determine by notice in the Gazette as security that he will prosecute the charge against the accused to a conclusion without undue delay; and

[S 9(1)(a) substituted by s 39 of Act 129 of 1993.]

 

(b)     the amount such court may determine as security for the costs which may be incurred in respect of the accused’s defence to the charge.

[S 9(1)(b) substituted by s 39 of Act 129 of 1993.]

 

(2)     The accused may, when he is called upon to plead to the charge, apply to the court hearing the charge to review the amount determined under subsection (1)(b), whereupon the court may, before the accused pleads—

 

(a)     require the private prosecutor to deposit such additional amount as the court may determine with the magistrate’s court in which the said amount was deposited; or

 

(b)     direct that the private prosecutor enter into a recognisance, with or without sureties, in such additional amount as the court may determine.

 

(3)     Where a private prosecutor fails to prosecute a charge against an accused to a conclusion without undue delay or where a charge is dismissed under section 11, the amount referred to in subsection (1)(a) shall be forfeited to the State.

 

10.     Private prosecution in name of private prosecutor

 

(1)     A private prosecution shall be instituted and conducted and all process in connection therewith issued in the name of the private prosecutor.

 

(2)     The indictment, charge-sheet or summons, as the case may be, shall describe the private prosecutor with certainty and precision and shall, except in the case of a body referred to in section 8, be signed by such prosecutor or his legal representative.

 

(3)     Two or more persons shall not prosecute in the same charge except where two or more persons have been injured by the same offence.

 

11.     Failure of private prosecutor to appear

 

(1)     If the private prosecutor does not appear on the day set down for the appearance of the accused in the magistrate’s court or for the trial of the accused, the charge against the accused shall be dismissed unless the court has reason to believe that the private prosecutor was prevented from being present by circumstances beyond his control, in which event the court may adjourn the case to a later date.

 

(2)     Where the charge is so dismissed, the accused shall forthwith be discharged from custody and may not in respect of that charge be prosecuted privately again but the Attorney-General or a public prosecutor with the consent of the Attorney-General may at the instance of the State prosecute the accused in respect of that charge.

 

12.     Mode of conducting private prosecution

 

(1)     A private prosecution shall, subject to the provisions of this Act, be proceeded with in the same manner as if it were a prosecution at the instance of the State: Provided that the person in respect of whom the private prosecution is instituted shall be brought before the court only by way of summons in the case of a lower court, or an indictment in the case of a superior court, except where he is under arrest in respect of an offence with regard to which a right of private prosecution is vested in any body or person under section 8.

 

(2)     Where the prosecution is instituted under section 7(1) and the accused pleads guilty to the charge, the prosecution shall be continued at the instance of the State.

 

13.     Attorney–general may intervene in private prosecution

 

An Attorney-General or a local public prosecutor acting on the instructions of the Attorney-General, may in respect of any private prosecution apply by motion to the court before which the private prosecution is pending to stop all further proceedings in the case in order that a prosecution for the offence in question may be instituted or, as the case may be, continued at the instance of the State, and the court shall make such an order.

 

14.     Costs in respect of process

 

A private prosecutor, other than a prosecutor contemplated in section 8, shall in respect of any process relating to the private prosecution, pay to the clerk or, as the case may be, the registrar of the court in question, the fees prescribed under the rules of court for the service or execution of such process.

 

15.     Costs of private prosecution

 

(1)     The costs and expenses of a private prosecutor shall, subject to the provisions of subsection (2), be paid by the private prosecutor.

 

(2)     The court may order a person convicted upon a private prosecution to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence: Provided that the provisions of this subsection shall not apply with reference to any prosecution instituted and conducted under section 8: Provided further that where a private prosecution is instituted after the grant of a certificate by an Attorney-General that he declines to prosecute and the accused is convicted, the court may order the costs and expenses of the private prosecution, including the costs of an appeal arising from such prosecution, to be paid by the State.

[S 15(2) amended by s 1 of Act 26 of 1987.]

 

16.     Costs of accused in private prosecution

 

(1)     Where in a private prosecution, other than a prosecution contemplated in section 8, the charge against the accused is dismissed or the accused is acquitted or a decision in favour of the accused is given on appeal, the court dismissing the charge or acquitting the accused or deciding in favour of the accused on appeal, may order the private prosecutor to pay to such accused the whole or any part of the costs and expenses incurred in connection with the prosecution or, as the case may be, the appeal.

 

(2)     Where the court is of the opinion that a private prosecution was unfounded and vexatious, it shall award to the accused at his request such costs and expenses incurred in connection with the prosecution, as it may deem fit.

[S 16 substituted by s 40 of Act 129 of 1993.]

 

17.     Taxation of costs

 

(1)     The provisions of section 300(3) shall apply with reference to any order or award made under section 15 or 16 in connection with costs and expenses.

 

(2)     Costs awarded under section 15 or 16 shall be taxed according to the scale, in civil cases, of the court which makes the award or, if the award is made by a regional court, according to the scale, in civil cases, of a magistrate’s court, or, where there is more than one such scale, according to the scale determined by the court making the award.

 

18.     Prescription of right to institute prosecution

 

The right to institute a prosecution for any offence, other than—

 

(a)     murder;

 

Uncommenced amendment (a)     murder, including murder which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; [S 18(a) substituted by s 11 of Act 16 of 2023 with effect from date to be proclaimed.]

 

(b)     treason committed when the Republic is in a state of war;

 

(c)      robbery, if aggravating circumstances were present;

 

Uncommenced amendment (c)      robbery, if aggravating circumstances were present or if the victim of the robbery was also a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; [S 18(c) substituted by s 11 of Act 16 of 2023 with effect from date to be proclaimed.]

 

(d)     kidnapping;

 

(e)     child-stealing;

 

(eA)   the—

 

(i)      common law offence of bribery;

 

(ii)      offence referred to in section 1 of the Corruption Act, 1994 (Act 92 of 1994); or

 

(iii)     offences referred to in Parts 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act 12 of 2004);

 

(f)      any sexual offence in terms of the common law or statute;

 

Uncommenced amendment (f)      any sexual offence in terms of the common law or statute including any such offence which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; [S 18(f) substituted by s 11 of Act 16 of 2023 with effect from date to be proclaimed.]

 

(fA)    a Convention offence as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act 33 of 2004), the offence of terrorism referred to in section 2 of the said Act and an offence associated or connected with terrorist activities referred to in sections 3, 13 or 14 of the said Act.

[S 18(1)(fA) inserted by s 24 of Act 23 of 2022 with effect from 4 January 2023.]

 

(g)     genocide, crimes against humanity and war crimes, as contemplated in section 4 of the Implementation of the Rome Statute of the International Criminal Court Act, 2002;

 

(h)     any contravention of section 4, 5 or 7 and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act 7 of 2013); or

 

(i)       …

 

(j)       torture as contemplated in section 4 (1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013 (Act 13 of 2013),

 

shall, unless some other period is expressly provided for by law, lapse after the expiration of a period of 20 years from the time when the offence was committed.

[S 18 substituted by s 27 of Act 105 of 1997 with effect from 27 April 1994; amended by s 39 of Act 27 of 2002; substituted by s 68 of Act 32 of 2007, amended by S 18 of Act 8 of 2017, substituted by s 3 of Act 15 of 2020 with effect from 23 December 2020.]

 

CHAPTER 2

SEARCH WARRANTS, ENTERING OF PREMISES, SEIZURE, FORFEITURE AND DISPOSAL OF PROPERTY CONNECTED WITH OFFENCES

 

19.     Saving as to certain powers conferred by other laws

 

The provisions of this Chapter shall not derogate from any power conferred by any other law to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter.

 

20.     State may seize certain articles

 

The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)—

 

(a)     which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

 

(b)     which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or

 

(c)      which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

 

21.     Article to be seized under search warrant.

 

(1)     Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued—

 

(a)     by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or

 

(b)     by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings.

 

(1A)   Notwithstanding any other law, an application for a warrant under this section may be made to any magistrate or justice, irrespective of whether or not the place of execution of the warrant or the place where the alleged crime has been committed falls within the jurisdiction of such magistrate or justice, in respect of the following offences under the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act 33 of 2004)—

 

         (a)      the offence of terrorism referred to in section 2 of the said Act;

 

          (b)     an offence associated or connected with terrorist activities referred to in section 3 of the said      Act;

 

          (c)      a Convention offence as defined in section 1 of the said Act; or (d) an offence referred to in section 13 or 14 of the said Act (in so far as it relates to the aforementioned sections).

[S 21(1A) inserted by s 24 of Act 23 of 2022 with effect from 4 January 2023.]

 

(2)     A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorise such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

 

(3)    

(a)     A search warrant shall be executed by day, unless the person issuing the warrant in writing authorises the execution thereof by night.

 

(b)     A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

 

(4)     A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.

 

22.     Circumstances in which article may be seized without search warrant

 

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.

 

23.     Search of arrested person and seizure of article

 

(1)     On the arrest of any person, the person making the arrest may—

 

(a)     if he is a peace officer, search the person arrested and seize any article referred to in section 20 which is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a police official, he shall forthwith deliver any such article to a police official; or

 

(b)     if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.

[S 23 renumbered as 23(1) by s 1 of Act 33 of 1986.]

 

(2)     On the arrest of any person, the person making the arrest may place in safe custody any object found on the person arrested and which may be used to cause bodily harm to himself or others.

[S 23(2) inserted by s 1 of Act 33 of 1986.]

 

24.     Search of premises

 

Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official.

[S 24 substituted by s 12 of Act 59 of 1983.]

 

25.     Power of police to enter premises in connection with State security or any offence

 

(1)     If it appears to a magistrate or justice from information on oath that there are reasonable grounds for believing—

 

(a)     that the internal security of the Republic or the maintenance of law and order is likely to be endangered by or in consequence of any meeting which is being held or is to be held in or upon any premises within his area of jurisdiction; or

 

(b)     that an offence has been or is being or is likely to be committed or that preparations or arrangements for the commission of any offence are being or are likely to be made in or upon any premises within his area of jurisdiction,

 

he may issue a warrant authorising a police official to enter the premises in question at any reasonable time for the purpose—

 

(i)       of carrying out such investigations and of taking such steps as such police official may consider necessary for the preservation of the internal security of the Republic or for the maintenance of law and order or for the prevention of any offence;

 

(ii)      of searching the premises or any person in or upon the premises for any article referred to in section 20 which such police official on reasonable grounds suspects to be in or upon or at the premises or upon such person; and

 

(iii)     of seizing any such article.

 

(1A)   Notwithstanding any other law, an application for a warrant under this section in respect of the offences listed in section 21(1A)(a) to (d) may be made to any magistrate or justice, irrespective of whether or not the place of execution of the warrant, or the place where the alleged crime has been committed falls within the jurisdiction of such magistrate or justice.

[S 25(1A) inserted by s 24 of Act 23 of 2022 with effect from 4 January 2023.]

 

(2)     A warrant under subsection (1) may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

 

(3)     A police official may without warrant act under subparagraphs (i), (ii) and (iii) of subsection (1) if he on reasonable grounds believes—

 

(a)     that a warrant will be issued to him under paragraph (a) or (b) of subsection (1) if he applies for such warrant; and

 

(b)     that the delay in obtaining such warrant would defeat the object thereof.

 

26.     Entering of premises for purposes of obtaining evidence

 

Where a police official in the investigation of an offence or alleged offence reasonably suspects that a person who may furnish information with reference to any such offence is on any premises, such police official may without warrant enter such premises for the purpose of interrogating such person and obtaining a statement from him: Provided that such police official shall not enter any private dwelling without the consent of the occupier thereof.

 

27.     Resistance against entry or search

 

(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.

 

(2)     The proviso to 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.

 

28.     Wrongful search an offence, and award of damages

 

(1)     A police official—

 

(a)     who acts contrary to the authority of a search warrant issued under section 21 or a warrant issued under section 25(1); or

 

(b)     who, without being authorised thereto under this Chapter—

 

(i)      searches any person or container or premises or seizes or detains any article; or

 

(ii)      performs any act contemplated in subparagraph (i), (ii) or (iii) of section 25(1),

 

shall be guilty of an offence and liable on conviction to a fine not exceeding R600 or to imprisonment for a period not exceeding six months, and shall in addition be subject to an award under subsection (2).

[Words following s 28(1)(b)(ii) substituted by s 2 of Act 33 of 1986.]

 

(2)     Where any person falsely gives information on oath under section 21(1) or 25(1) and a search warrant or, as the case may be, a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury, the court convicting such person may, upon the application of any person who has suffered damage in consequence of the unlawful entry, search or seizure, as the case may be, or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 shall mutatis mutandis apply with reference to such award.

 

29.     Search to be conducted in decent and orderly manner

 

A search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for the purpose by a police official.

 

30.     Disposal by police official of article after seizure

 

A police official who seizes any article referred to in section 20 or to whom any such article is under the provisions of this Chapter delivered—

 

(a)     may, if the article is perishable, with due regard to the interests of the persons concerned, dispose of the article in such manner as the circumstances may require; or

 

(b)     may, if the article is stolen property or property suspected to be stolen, with the consent of the person from whom it was seized, deliver the article to the person from whom, in the opinion of such police official, such article was stolen, and shall warn such person to hold such article available for production at any resultant criminal proceedings, if required to do so; or

 

(c)      shall, if the article is not disposed of or delivered under the provisions of paragraph (a) or (b), give it a distinctive identification mark and retain it in police custody or make such other arrangements with regard to the custody thereof as the circumstances may require.

 

31.     Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings

 

(1)

(a)     If no criminal proceedings are instituted in connection with any article referred to in section 30(c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it.

 

(b)     If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State.

[S 31(1)(b) substituted by s 2 of Act 5 of 1991.]

 

(2)     The person who may lawfully possess the article in question shall be notified by registered post at his last-known address that he may take possession of the article and if such person fails to take delivery of the article within 30 days from the date of such notification, the article shall be forfeited to the State.

 

32.     Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid

 

(1)     If criminal proceedings are instituted in connection with any article referred to in section 30(c) and the accused admits his guilt in accordance with the provisions of section 57, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it, whereupon the provisions of section 31(2) shall apply with reference to any such person.

 

(2)     If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State.

[S 32(2) substituted by s 3 of Act 5 of 1991.]

 

33.     Article to be transferred to court for purposes of trial

 

(1)     If criminal proceedings are instituted in connection with any article referred to in section 30(c) and such article is required at the trial for the purposes of evidence or for the purposes of an order of court, the police official charged with the investigation shall, subject to the provisions of subsection (2) of this section, deliver such article to the clerk of the court where such criminal proceedings are instituted.

[S 33(1) substituted by s 4 of Act 5 of 1991.]

 

(2)     If it is by reason of the nature, bulk or value of the article in question impracticable or undesirable that the article should be delivered to the clerk of the court in terms of subsection (1), the clerk of the court may require the police official in charge of the investigation to retain the article in police custody or in such other custody as may be determined in terms of section 30(c).

[S 33(2) substituted by s 4 of Act 5 of 1991.]

 

(3)

(a)     The clerk of the court shall place any article received under subsection (1) in safe custody, which may include the deposit of money in an official banking account if such money is not required at the trial for the purposes of evidence.

 

(b)     Where the trial in question is to be conducted in a court other than a court of which such clerk is the clerk of the court, such clerk of the court shall—

 

(i)      transfer any article received under subsection (1), other than money deposited in a banking account under paragraph (a) of this subsection, to the clerk of the court or, as the case may be, the registrar of the court in which the trial is to be conducted, and such clerk or registrar of the court shall place such article in safe custody;

 

(ii)      in the case of any article retained in police custody or in some other custody in accordance with the provisions of subsection (2) or in the case of any money deposited in a banking account under paragraph (a) of this subsection, advise the clerk or registrar of such other court of the fact of such custody or such deposit, as the case may be.

 

34.     Disposal of article after commencement of criminal proceedings

 

(1)     The judge or judicial officer presiding at criminal proceedings shall at the conclusion of such proceedings, but subject to the provisions of this Act or any other law under which any matter shall or may be forfeited, make an order that any article referred to in section 33—

 

(a)     be returned to the person from whom it was seized, if such person may lawfully possess such article; or

 

(b)     if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or

 

(c)      if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

 

(2)     The court may, for the purpose of any order under subsection (1), hear such additional evidence, whether by affidavit or orally, as it may deem fit.

 

(3)     If the judge or judicial officer concerned does not, at the conclusion of the relevant proceedings, make an order under subsection (1), such judge or judicial officer or, if he is not available, any other judge or judicial officer of the court in question, may at any time after the conclusion of the proceedings make any such order, and for that purpose hear such additional evidence, whether by affidavit or orally, as he may deem fit.

 

(4)     Any order made under subsection (1) or (3) may be suspended pending any appeal or review.

 

(5)     Where the court makes an order under paragraph (a) or (b) of subsection (1), the provisions of section 31(2) shall mutatis mutandis apply with reference to the person in favour of whom such order is made.

 

(6)     If the circumstances so require or if the criminal proceedings in question cannot for any reason be disposed of, the judge or judicial officer concerned may make any order referred to in paragraph (a), (b) or (c) of subsection (1) at any stage of the proceedings.

 

35.     Forfeiture of article to State

 

(1)     A court which convicts an accused of any offence may, without notice to any person, declare—

 

(a)     any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the commission of such offence; or

 

(b)     if the conviction is in respect of an offence referred to in Part I of Schedule 2, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property,

 

and which was seized under the provisions of this Act, forfeited to the State: Provided that such forfeiture shall not affect any right referred to in subparagraph (i) or (ii) of subsection (4)(a) if it is proved that the person who claims such right did not know that such weapon, instrument, vehicle, container or other article was being used or would be used for the purpose of or in connection with the commission of the offence in question or, as the case may be, for the conveyance or removal of the stolen property in question, or that he could not prevent such use, and that he may lawfully possess such weapon, instrument, vehicle, container or other article, as the case may be.

 

(2)     A court which convicts an accused or which finds an accused not guilty of any offence, shall declare forfeited to the State any article seized under the provisions of this Act which is forged or counterfeit or which cannot lawfully be possessed by any person.

 

(3)     Any weapon, instrument, vehicle, container or other article declared forfeited under the provisions of subsection (1), shall be kept for a period of 30 days with effect from the date of declaration of forfeiture or, if an application is within that period received from any person for the determination of any right referred to in subparagraph (i) or (ii) of subsection (4)(a), until a final decision in respect of any such application has been given.

 

(4)

(a)     The court in question or, if the judge or judicial officer concerned is not available, any judge or judicial officer of the court in question, may at any time within a period of three years with effect from the date of declaration of forfeiture, upon the application of any person, other than the accused, who claims that any right referred to in subparagraph (i) or (ii) of this paragraph is vested in him, inquire into and determine any such right, and if the court finds that the weapon, instrument, vehicle, container or other article in question—

 

(i)      is the property of any such person, the court shall set aside the declaration of forfeiture and direct that the weapon, instrument, vehicle, container or other article, as the case may be, be returned to such person, or, if the State has disposed of the weapon, instrument, vehicle, container or other article in question, direct that such person be compensated by the State to the extent to which the State has been enriched by such disposal;

 

(ii)      was sold to the accused in pursuance of a contract under which he becomes the owner of such weapon, instrument, vehicle, container or other article, as the case may be, upon the payment of a stipulated price, whether by instalments or otherwise, and under which the seller becomes entitled to the return of such weapon, instrument, vehicle, container or other article upon default of payment of the stipulated price or any part thereof—

 

(aa)   the court shall direct that the weapon, instrument, vehicle, container or other article in question be sold by public auction and that the said seller be paid out of the proceeds of the sale an amount equal to the value of his rights under the contract to the weapon, instrument, vehicle, container or other article, but not exceeding the proceeds of the sale; or

 

(bb)   if the State has disposed of the weapon, instrument, vehicle, container or other article in question, the court shall direct that the said seller be likewise compensated.

 

(b)     If a determination by the court under paragraph (a) is adverse to the applicant, he may appeal therefrom as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against the conviction as a result whereof the declaration of forfeiture was made, or against a sentence imposed as a result of such conviction.

 

(c)      When determining any rights under this subsection, the record of the criminal proceedings in which the declaration of forfeiture was made, shall form part of the relevant proceedings, and the court making the determination may hear such additional evidence, whether by affidavit or orally, as it may deem fit.

 

36.     Disposal of article concerned in an offence committed outside Republic

 

(1)     Where an article is seized in connection with which—

 

(a)     an offence was committed or is on reasonable grounds suspected to have been committed in a country outside the Republic;

 

(b)     there are reasonable grounds for believing that it will afford evidence as to the commission in a country outside the Republic of any offence or that it was used for the purpose of or in connection with such commission of any offence,

 

the magistrate within whose area of jurisdiction the article was seized may, on application and if satisfied that such offence is punishable in such country by death or by imprisonment for a period of 12 months or more or by a fine of five hundred rand or more, order such article to be delivered to a member of a police force established in such country who may thereupon remove it from the Republic.

 

(2)     Whenever the article so removed from the Republic is returned to the magistrate, or whenever the magistrate refuses to order that the article be delivered as aforesaid, the article shall be returned to the person from whose possession it was taken, unless the magistrate is authorised or required by law to dispose of it otherwise.

 

CHAPTER 3

ASCERTAINMENT OF BODILY FEATURES OF PERSON

[Chapter 3 heading substituted by s 1 of Act 9 of 2012.]

 

36A.  Interpretation of Chapter 3

 

(1)     For the purposes of this Chapter, unless the context indicates otherwise—

 

(a)     “appropriate person” means any adult member of a child’s family, or a care-giver of the child, which includes any person other than a parent or guardian who factually cares for a child, including—

 

(i)      a foster parent;

 

(ii)      a person who cares for a child with the implied or express consent of a parent or guardian of the child;

 

(iii)     a person who cares for a child whilst the child is in temporary safe care;

 

(iv)     the person at the head of a child and youth care centre where a child has been placed;

 

(v)      the person at the head of a shelter;

 

(vi)     a child and youth care worker, who cares for a child who is without appropriate family care in the community; and

 

(vii)    a child at the head of a child-headed household, if such a child is 16 years or older;

 

(aA)   “authorised officer” means the police officer commanding the Division responsible for forensic services within the South African Police Service, or his or her delegate;

[S 36A(1)(aA) inserted by s 1(a) of Act 37 of 2013.]

 

(b)     “authorised person” means—

 

(i)      with reference to photographic images, fingerprints or body-prints, any police official or a member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, in the performance of his or her official duties;

 

(ii)      with reference to buccal samples, any police official or member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, who is not the crime scene examiner of the particular case, but has successfully undergone the training prescribed by the Minister of Health under the National Health Act, in respect of the taking of a buccal sample;

[S 36A(1)(b) substituted by s 1(b) of Act 37 of 2013.]

 

(c)      “body-prints” means prints other than fingerprints, taken from a person and which are related to a crime scene, but excludes prints of the genitalia, buttocks or breasts of a person;

 

(cA)   “bodily sample” means intimate or buccal samples taken from a person;

[S 36A(1)(cA) inserted by s 1(c) of Act 37 of 2013.]

 

(cB)   “buccal sample” means a sample of cellular material taken from the inside of a person’s mouth;

[S 36A(1)(cB) inserted by s 1(c) of Act 37 of 2013.]

 

(d)     “child” means a person under the age of 18 years;

 

(e)     “Child Justice Act” means the Child Justice Act, 2008 (Act 75 of 2008);

 

(f)      “comparative search” means the comparing by the authorised officer of—

 

(i)      fingerprints, body-prints or photographic images, taken under any power conferred by this Chapter, against any database referred to in Chapter 5A of the South African Police Service Act; and

 

(ii)      forensic DNA profiles derived from bodily samples, taken under any power conferred by this Chapter, against forensic DNA profiles contained in the different indices of the NFDD referred to in Chapter 5B of the South African Police Service Act;

[S 36A(1)(f) substituted by s 1(d) of Act 37 of 2013.]

 

(fA)    “crime scene sample” means physical evidence which is retrieved from the crime scene or any other place where evidence of the crime may be found, and may include physical evidence collected from the body of a person, including a sample taken from a nail or from under the nail of a person;

[S 36A(1)(fA) inserted by s 1(e) of Act 37 of 2013.]

 

(fB)    “DNA” means deoxyribonucleic acid which is a bio-chemical molecule found in the cells and that makes each species unique;

[S 36A(1)(fB) inserted by s 1(e) of Act 37 of 2013.]

 

(fC)    “forensic DNA analysis” means the analysis of sections of the DNA of a bodily sample or crime scene sample to determine the forensic DNA profile: Provided that this does not relate to any analysis pertaining to medical tests or for health purposes or mental characteristic of a person or to determine any physical information of the person other than the sex of that person;

[S 36A(1)(fC) inserted by s 1(e) of Act 37 of 2013.]

 

(fD)    “forensic DNA profile” means the results obtained from forensic DNA analysis of bodily samples taken from a person or samples taken from a crime scene, providing a unique string of alpha numeric characters to provide identity reference: Provided this does not contain any information on the health or medical condition or mental characteristic of a person or the predisposition or physical information of the person other than the sex of that person;

[S 36A(1)(fD) inserted by s 1(e) of Act 37 of 2013.]

 

(fE)    “Independent Police Investigative Directorate Act” means the Independent Police Investigative Directorate Act, 2011 (Act 1 of 2011);

[S 36A(1)(fE) inserted by s 1(e) of Act 37 of 2013.]

 

(fF)    “intimate sample” means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person, excluding a buccal sample;

[S 36A(1)(fF) inserted by s 1(e) of Act 37 of 2013.]

 

(fG)    “National Health Act” means the National Health Act, 2003 (Act 61 of 2003);

[S 36A(1)(fG) inserted by s 1(e) of Act 37 of 2013.]

 

(fH)    “FDD” means the National Forensic DNA Database of South Africa, established in terms of section 15G of the South African Police Service Act;

[S 36A(1)(fH) inserted by s 1(e) of Act 37 of 2013.]

 

(g)     “South African Police Service Act” means the South African Police Service Act, 1995 (Act 68 of 1995).

 

(2)     Any police official who, in terms of this Act or any other law takes the fingerprints, a body-print or buccal sample or ascertains any bodily feature of a child must—

[Words preceding s 36A(2)(a) substituted by s 1(f) of Act 37 of 2013.]

 

(a)     have due regard to the personal rights relating to privacy, dignity and bodily integrity of the child;

 

(b)     do so in a private area, not in view of the public;

 

(c)      ensure the presence of a parent or guardian of the child, a social worker or an appropriate person; and

 

(d)     treat and address the child in a manner that takes into account his or her gender and age.

 

(3)     Buccal samples must be taken by an authorised person who is of the same gender as the person from whom such sample is required with strict regard to decency and order.

[S 36A(3) inserted by s 1(g) of Act 37 of 2013.]

 

(4)     Notwithstanding any other law, an authorised person may take a buccal sample or cause the taking of any other bodily sample with the consent of the person whose sample is required or if authorised under—

 

(a)     section 36D; or

 

(b)     section 36E.

[S 36A(4) inserted by s 1(g) of Act 37 of 2013.]

 

(5)     Any authorised person who, in terms of this Chapter or in terms of any other law takes a buccal sample from any person, must do so—

 

(a)     in accordance with the requirements of any regulation made by the Minister of Police; and

 

(b)     in a designated area deemed suitable for such purposes by the Departmental Heads: Police, Justice and Constitutional Development or Correctional Services in their area of responsibility.

[S 36A inserted by s 2 of Act 6 of 2010; s 36A(5) inserted by s 1(g) of Act 37 of 2013.]

 

36B.  Powers in respect of fingerprints of accused and convicted persons

 

(1)     A police official must take the fingerprints or must cause such prints to be taken of any—

 

(a)     person arrested upon any charge related to an offence referred to in Schedule 1;

 

(b)     person released on bail if such person’s fingerprints were not taken upon arrest;

 

(c)      person upon whom a summons has been served in respect of any offence referred to in Schedule 1;

 

(d)     person convicted by a court and sentenced to a term of imprisonment without the option of a fine, whether suspended or not, if the fingerprints were not taken upon arrest;

 

(e)     person convicted by a court in respect of any offence, which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subsection.

 

(2)     A police official may take or cause—

 

(a)     fingerprints to be taken of any person arrested upon any charge; or

 

(b)     fingerprints to be taken of a person deemed under section 57(6) to have been convicted in respect of any offence, which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subsection.

 

(3)     The fingerprints taken in terms of this section must be stored on the fingerprint database maintained by the National Commissioner, as provided for in Chapter 5A of the South African Police Service Act.

 

(4)     A police official may again take the fingerprints of any person referred to in subsection (1), if—

 

(a)     the fingerprints taken on the previous occasion do not constitute a complete set of his or her fingerprints;

 

(b)     some or all of the fingerprints taken on the previous occasion are not of sufficient quality to allow satisfactory analysis, comparison or matching; or

 

(c)      the fingerprints taken were lost, misfiled or not stored on the database.

 

(5)     The fingerprints taken under any power conferred by this section, may be the subject of a comparative search.

 

(6)

(a)     Subject to paragraph (c), any fingerprints, taken under any power conferred by this section—

 

(i)      must upon the conviction of an adult person be retained on a database referred to in Chapter 5A of the South African Police Service Act;

 

(ii)      must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act; and

 

(iii)     in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceedings with reference to such fingerprints or body-prints were instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the Division responsible for criminal records referred to in Chapter 5A of the South African Police Service Act has been notified.

 

(b)     Fingerprints retained in terms of this section, may only be used for purposes related to the detection of crime, the investigation of an offence, the identification of missing persons, the identification of unidentified human remains or the conducting of a prosecution.

 

(c)      Subparagraphs (a)(i) and (ii) do not prohibit the use of any fingerprints taken under any powers conferred by this section, for the purposes of establishing if a person has been convicted of an offence.

 

(d)     Any person who, with regard to any fingerprints, body-prints or photographic images referred to in this Chapter—

 

(i)      uses or allows the use of those fingerprints, body-prints or photographic images for any purpose that is not related to the detection of crime, the investigation of an offence, the identification of missing persons, the identification of unidentified human remains or the conducting of a prosecution; or

 

(ii)      tampers with or manipulates the process or the fingerprints, body-prints or images in question; or

 

(iii)     falsely claims such fingerprints, body-prints or images to have been taken from a specific person whilst knowing them to have been taken from another person or source,

 

is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.

 

(7)     The National Commissioner must destroy the fingerprints of a child upon receipt of a Certificate of Expungement in terms of section 87(4) of the Child Justice Act.

 

(8)     Subsection (1)(d) applies to any person convicted of any crime, irrespective of the sentence, including—

 

(a)     any person serving such a sentence at the time of the commencement of this section; and

 

(b)     where applicable, any person released on parole in respect of such a sentence, irrespective of the fact that such a person was convicted of the offence in question, prior to the commencement of this section.

[S 36B inserted by s 2 of Act 6 of 2010.]

 

36C.  Fingerprints and body-prints for investigation purposes

 

(1)     Any police official may without warrant take fingerprints or body-prints of a person or a group of persons, if there are reasonable grounds to—

 

(a)     suspect that the person or that one or more of the persons in that group has committed an offence referred to in Schedule 1; and

 

(b)     believe that the prints or the results of an examination thereof, will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence.

 

(2)     Prints taken in terms of this section may—

 

(a)     be examined for the purposes of the investigation of the relevant offence or caused to be so examined; and

 

(b)     be subjected to a comparative search.

 

(3)

(a)     Subject to paragraph (c), any fingerprints or body-prints, taken under any power conferred by this section—

 

(i)      must upon the conviction of an adult person be retained on a database referred to in Chapter 5A of the South African Police Service Act;

 

(ii)      must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act; and

 

(iii)     in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceeding with reference to such fingerprints or body-prints were instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the Division responsible for criminal records referred to in Chapter 5A of the South African Police Service Act has been notified of such event as referred to in this paragraph.

 

(b)     Fingerprints or body-prints which may be retained in terms of this section, may only be used for purposes related to the detection of crime, the investigation of an offence, the identification of missing persons, the identification of unidentified human remains or the conducting of a prosecution.

 

(c)      Subparagraphs (a)(i) and (ii), does not prohibit the use of any fingerprints or body-prints taken under any powers conferred by this section, for the purposes of establishing if a person has been convicted of an offence.

 

(d)     The fingerprints or body-prints referred to in paragraph (a) must be stored on the database maintained by the National Commissioner, as provided for in Chapter 5A of the South African Police Service Act.

 

(e)     The National Commissioner must destroy the fingerprints of a child upon receipt of a Certificate of Expungement in terms of section 87(4) of the Child Justice Act.

[S 36C inserted by s 2 of Act 6 of 2010.]

 

36D.  Powers in respect of buccal samples, bodily samples and crime scene samples

 

(1)     Subject to section 36A(5), an authorised person must—

 

(a)     take a buccal sample; or

 

(b)     cause the taking of any other bodily sample by a registered medical practitioner or registered nurse defined in the National Health Act,

 

of any person—

 

(i)       after arrest but before appearance in court to be formally charged for any offence referred to in Schedule 8;

 

(ii)      released on bail in respect of any offence referred to in Schedule 8, if a buccal sample or a bodily sample of that person was not taken upon his or her arrest;

 

(iii)     upon whom a summons has been served in respect of any offence referred to in Schedule 8;

 

(iv)     whose name appears on the National Register for Sex Offenders; or

 

(v)      charged or convicted by a court in respect of any offence, which the Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection.

[Commencement date of s 36D(1): 31 January 2022.]

 

(2)     Subject to section 36A(5), an authorised person may—

 

(a)     take a buccal sample; or

 

(b)     cause the taking of any other bodily sample by a registered medical practitioner or registered nurse,

 

of any person—

 

(i)       after arrest but before appearance in court to be formally charged in respect of any offence;

 

(ii)      released on bail in respect of any offence, if a buccal sample or bodily sample was not taken upon his or her arrest;

 

(iii)     upon whom a summons has been served in respect of any offence;

 

(iv)     whose name appears on the National Register for Sex Offenders; or

 

(v)      charged or convicted by a court in respect of any offence, which the Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection.

 

(3)     The authorised person must supervise the taking of a buccal sample from a person referred to in subsection (1) or (2) who is required to submit such sample and who requests to take it himself or herself.

 

(4)     The Station Commander or other relevant commander must within 30 days furnish every bodily sample taken under subsection (1) or (2) to the authorised officer, who must carry out a forensic DNA analysis on every such sample in terms of Chapter 5B of the South African Police Service Act.

 

(5)     Subject to section 36A(5), nothing in this Chapter prohibits—

 

(a)     an authorised person from re-taking or supervising the re-taking of a buccal sample from any person referred to in subsection (1), (2) or (3), if the buccal sample taken from him or her was either not suitable or insufficient for forensic DNA analysis; or

 

(b)     a registered medical practitioner or registered nurse from re-taking a bodily sample taken from any person referred to in subsection (1) or (2), if the bodily sample taken from him or her was either not suitable or insufficient for forensic DNA analysis.

 

(6)     The forensic DNA profile derived from bodily samples, taken under any power conferred by this section, may be used to conduct a comparative search.

 

(7)

(a)     Any forensic DNA profile derived from such sample, taken under any power conferred by this section must only be used for the purposes referred to in section 15F of the South African Police Service Act.

 

(b)     The forensic DNA profile derived from bodily samples, taken under any power conferred by this section must be retained on, or removed from, the NFDD in accordance with the provisions of Chapter 5B of the South African Police Service Act.

 

(c)      Any person who uses or allows the use of a bodily sample, crime scene sample or any forensic DNA profile derived from such sample for any purpose other than as contemplated in paragraph (a), is guilty of an offence and liable in the case of a natural person, to imprisonment for a period not exceeding 15 years, and in the case of a juristic person, to a fine.

 

(d)     Intimate samples may only be taken—

 

(i)      by a registered medical practitioner or registered nurse; and

 

(ii)      in accordance with strict regard to decency and order.

[S 36D inserted by s 2 of Act 37 of 2013.]

 

36E.  Samples for investigation purposes

 

(1)     Subject to subsection (2) and section 36A(5), an authorised person may take a buccal sample of a person or a group of persons, or supervise the taking of a buccal sample from a person who is required to submit such sample and who requests to do so himself or herself if there are reasonable grounds to—

 

(a)     suspect that the person or that one or more of the persons in that group has committed an offence referred to in Schedule 8; and

 

(b)     believe that the buccal sample or the results of the forensic DNA analysis thereof, will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence.

 

(2)     If a person does not consent to the taking of a buccal sample under this section, a warrant may be issued by a judge or a magistrate if it appears from written information given by the authorised person on oath or affirmation that there are reasonable grounds for believing that—

 

(a)     any person from whom a buccal sample is required has committed an offence listed in Schedule 8; and

 

(b)     the sample or the results of an examination thereof, will be of value in the investigation by excluding or including that person as a possible perpetrator of the offence.

 

(3)     The provisions of section 36D(4), (5)(a), (6) and (7) apply with the necessary changes, to a sample or forensic DNA profile derived therefrom as contemplated in subsection (1).

[S 36E inserted by s 2 of Act 37 of 2013.]

 

37.     Powers in respect of body-prints and bodily appearance of accused and convicted persons

 

(1)     Any police official may—

 

(a)     take the body-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;

 

(iii)     of any person arrested in respect of any matter referred to in paragraph (n), (o) or (p) of section 40(1);

 

(iv)     of any person upon whom a summons has been served in respect of any offence referred to in Schedule 1 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

 

(vi)     of any person deemed under section 57(6) to have been convicted in respect of any offence which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subparagraph;

 

(b)     make a person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1) available or cause such person to be made available for identification in such condition, position or apparel as the police official may determine;

 

(c)      take such steps as he or she may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance: Provided that a police official may not—

 

(i)      take a blood sample of any person; or

 

(ii)      examine the body of a person who is of a different gender to the police official;

 

(d)     take a photographic image or may cause a photographic image to be taken of a person referred to in paragraph (a)(i) or (ii) or paragraph (a) or (b) of section 36B(1).

 

(2)

(a)     Any medical officer of any prison or, if requested thereto by any police official, any registered medical practitioner or registered nurse may take such steps, including the taking of a blood sample, as may be deemed necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) of subsection (1) or paragraph (a) or (b) of section 36B(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance.

 

(b)     If any registered medical practitioner attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such sample to be taken.

 

(3)     Any court before which criminal proceedings are pending may—

 

(a)     in any case in which a police official is not empowered under subsection (1) or section 36B(1) to take fingerprints or body-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such proceedings or that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance;

 

(b)     order that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain the state of health of any accused at such proceedings.

 

(4)     Any court which has convicted any person of any offence or which has concluded a preparatory examination against any person on any charge, or any magistrate, may order that the fingerprints, body-prints or a photographic image of the person concerned be taken.

 

(5)     Any fingerprints, body-prints or photographic images taken under any power conferred by this section, may be the subject of a comparative search.

 

(6)

(a)     Subject to subsection (7), the body-prints or photographic images, taken under any power conferred by this section, and the record of steps taken under this section—

 

(i)      must upon the conviction of an adult person be retained on a database provided for in section 5A of the South African Police Service Act;

 

(ii)      must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act; and

 

(iii)     in a case where a decision was made not to prosecute a person, if the person is found not guilty at his or her trial, or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceeding with reference to such body-prints or photographic images was instituted against the person concerned in any court or if the prosecution declines to prosecute, must be destroyed within 30 days after the officer commanding the Division responsible for criminal records referred to in Chapter 5A of the South African Police Service Act has been notified.

 

(b)     Body-prints or photographic images which may be retained in terms of this section, may only be used for purposes related to the detection of crime, the investigation of an offence, the identification of a missing person, the identification of unidentified human remains or the conducting of a prosecution.

 

(c)      The body-prints or photographic images referred to in paragraph (a)(i) and (ii), must be stored on the database established by the National Commissioner, as provided for in Chapter 5A of the South African Police Service Act.

 

(7)     Subsection (6) does not prohibit the use of any body-prints or photographic image taken under any powers conferred by this section, for the purposes of establishing if a person has been convicted of an offence.

[S 37 amended by s 1 of Act 64 of 1982; substituted by s 3 of Act 6 of 2010.]

 

CHAPTER 4

METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT

 

38.     Methods of securing attendance of accused in court

 

(1)     Subject to section 4(2) of the Child Justice Act, 2008 (Act 75 of 2008), the methods of securing the attendance of an accused who is 18 years or older in court for the purposes of his or her trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act.

[S 38(1) substituted by s 4 of Act 42 of 2013.]

 

(2)     The methods of securing the attendance of an accused who is under the age of 18 years at a preliminary inquiry or child justice court are those contemplated in section 17 of the Child Justice Act, 2008.

[S 38 substituted by s 99(1) of Act 75 of 2008.]

 

CHAPTER 5

ARREST

 

39.     Manner and effect of arrest

 

(1)     An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body.

 

(2)     The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.

 

(3)     The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.

 

40.     Arrest by peace officer without warrant

 

(1)     A peace officer may without warrant arrest any person—

 

(a)     who commits or attempts to commit any offence in his presence;

 

(b)     whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

 

(c)      who has escaped or who attempts to escape from lawful custody;

 

(d)     who has in his possession any implement of housebreaking or carbreaking as contemplated in section 82 of the General Law Third Amendment Act, 1993, and who is unable to account for such possession to the satisfaction of the peace officer;

[S 40(1)(d) substituted by s 41 of Act 129 of 1993.]

 

(e)     who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing;

 

(f)      who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence;

 

(g)     who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce;

 

(h)     who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition;

 

(i)       who is found in any gambling house or at any gambling table in contravention of any law relating to the prevention or suppression of gambling or games of chance;

 

(j)       who wilfully obstructs him in the execution of his duty;

 

(k)      who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic;

 

(l)       who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic;

 

(m)     who is reasonably suspected of being a deserter from the South African National Defence Force;

[S 40(1)(m) amended by s 4 of Act 18 of 1996.]

 

(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.

 

(q)     who is reasonably suspected of having committed an act of domestic violence as contemplated in section (1) of the Domestic Violence Act, 1998, and which constitutes an offence in terms of any law.

[S 40(1)(q) inserted by s 20 of Act 116 of 1998 and substituted by s 28(1) of Act 14 of 2021 with effect from 14 April 2023.]

 

(2)     If a person may be arrested under any law without warrant and subject to conditions or the existence of circumstances set out in that law, any peace officer may without warrant arrest such person subject to such conditions or circumstances.

 

41.     Name and address of certain persons and power of arrest by peace officer without warrant

 

(1)     A peace officer may call upon any person—

 

(a)     whom he has power to arrest;

 

(b)     who is reasonably suspected of having committed or of having attempted to commit an offence;

 

(c)      who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence,

 

to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding 12 hours until such name or address has been verified.

 

(2)     Any person who, when called upon under the provisions of subsection (1) to furnish his name and address, fails to do so or furnishes a false or incorrect name and address, shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

[S 41(2) substituted by s 3 of Act 33 of 1986.]

 

42.     Arrest by private person without warrant

 

(1)     Any private person may without warrant arrest any person—

 

(a)     who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1;

 

(b)     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 offence;

 

(c)      whom he is by any law authorised to arrest without warrant in respect of any offence specified in that law;

 

(d)     whom he sees engaged in an affray.

 

(2)     Any private person who may without warrant arrest any person under subsection (1)(a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein.

 

(3)     The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorised thereto by such owner, occupier or person in charge, may without warrant arrest the person so found.

[S 42(3) substituted by s 13 of Act 59 of 1983.]

 

43.     Warrant of arrest may be issued by magistrate or justice

 

(1)     Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an Attorney-General, a public prosecutor or a commissioned officer of police—

 

(a)     which sets out the offence alleged to have been committed;

 

(b)     which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and

 

(c)      which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.

 

(1A)   Notwithstanding any other law, an application for a warrant under this section in respect of the offences listed in section 21(1A)(a) to (d) may be made to any magistrate or justice, irrespective of whether or not the place of execution of the warrant, or the place where the alleged crime has been committed falls within the jurisdiction of such magistrate or justice.

[S 43(1A) inserted by s 24 of Act 23 of 2022 with effect from 4 January 2023.]

 

(2)     A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50.

 

(3)     A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.

 

44.     Execution of warrants

 

A warrant of arrest issued under any provision of this Act may be executed by a peace officer, and the peace officer executing such warrant shall do so in accordance with the terms thereof.

 

45.     Arrest on telegraphic authority

 

(1)     A telegraphic or similar written or printed communication from any magistrate, justice or peace officer stating that a warrant has been issued for the arrest of any person, shall be sufficient authority to any peace officer for the arrest and detention of that person.

 

(2)     The provisions of section 50 shall apply with reference to an arrest effected in accordance with subsection (1).

 

46.     Non-liability for wrongful arrest

 

(1)     Any person who is authorised to arrest another under a warrant of arrest or a communication under section 45 and who in the reasonable belief that he is arresting such person arrests another, shall be exempt from liability in respect of such wrongful arrest

 

(2)     Any person who is called upon to assist in making an arrest as contemplated in subsection (1) or who is required to detain a person so arrested, and who reasonably believes that the said person is the person whose arrest has been authorised by the warrant of arrest or the communication, shall likewise be exempt from liability in respect of such assistance or detention.

 

47.     Private persons to assist in arrest when called upon

 

(1)     Every male inhabitant of the Republic of an age not below 16 and not exceeding 60 years shall, when called upon by any police official to do so, assist such police official—

 

(a)     in arresting any person;

 

(b)     in detaining any person so arrested.

 

(2)     Any person who, without sufficient cause, fails to assist a police official as provided in subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

[S 47(2) substituted by s 4 of Act 33 of 1986.]

 

48.     Breaking open premises for purpose of arrest

 

Any person who may lawfully arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may, if he first audibly demands entry into such premises and notifies the purpose for which he seeks entry and fails to gain entry, break open, enter and search such premises for the purpose of effecting the arrest.

 

49.     Use of force in effecting arrest

 

(1)     For the purposes of this section—

 

(a)     “arrestor” means any person authorised under this Act to arrest or to assist in arresting a suspect;

 

(b)     “suspect” means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and

 

(c)      “deadly force” means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.

 

(2)     If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if—

 

(a)     the suspect poses a threat of serious violence to the arrestor or any other person; or

 

(b)     the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.

[S 49 substituted by s 7 of Act 122 of 1998, s 1 of Act 9 of 2012.]

 

50.     Procedure after arrest

 

(1)

(a)     Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, 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.

 

(b)     A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.

 

(c)      Subject to paragraph (d), if such an arrested person is not released by reason that—

 

(i)      no charge is to be brought against him or her; or

 

(ii)      bail is not granted to him or her in terms of section 59 or 59A,

 

he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

 

(d)     If the period of 48 hours expires—

 

(i)      outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day;

 

(ii)      or will expire at, or if the time at which such period is deemed to expire under subparagraph (i) or (iii) is or will be, a time when the arrested person cannot, because of his or her physical illness or other physical condition, be brought before a lower court, the court before which he or she would, but for the illness or other condition, have been brought, may on the application of the prosecutor, which, if not made before the expiration of the period of 48 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, authorise 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 or she may recuperate and be brought before the court: Provided that the court may, on an application as aforesaid, authorise that the arrested person be further detained at a place specified by the court and for such period as the court may deem necessary; or

[S 50(1)(d)(ii) substituted by s 3(a) of Act 34 of 1998.]

 

(iii)     at a time when the arrested person is outside the area of jurisdiction of the lower court to which he or she is being brought for the purposes of further detention and he or she 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 the end of the court day next succeeding the day on which such arrested person is brought within the area of jurisdiction of such court.

[S 50(1) amended by s 1 of Act 56 of 1979; substituted by s 1(a) of Act 85 of 1997.]

 

(2)     For purposes of this section—

 

(a)     “a court day” means a day on which the court in question normally sits as a court and “ordinary court day” has a corresponding meaning; and

 

(b)     “ordinary court hours” means the hours from 9:00 until 16:00 on a court day.

[S 50(2) substituted by s 1(a) of Act 85 of 1997.]

 

(3)     Subject to the provisions of subsection (6), nothing in this section shall be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court.

[S 50(3) substituted by s 1(a) of Act 75 of 1995, s 8(a) of Act 62 of 2000.]

 

(4)     ...

[S 50(4) inserted by s 37 of Act 122 of 1991; repealed by s 99(1) of Act 75 of 2008.]

 

(5)     ...

[S 50(5) inserted by s 37 of Act 122 of 1991; repealed by s 99(1) of Act 75 of 2008.]

 

(6)

(a)     At his or her first appearance in court a person contemplated in subsection (1)(a) who—

 

(i)      was arrested for allegedly committing an offence shall, subject to this subsection and section 60—

 

(aa)   be informed by the court of the reason for his or her further detention; or

[S 50(6)(a)(i)(aa) substituted by s 3(b) of Act 34 of 1998.]

 

(bb)   be charged and be entitled to apply to be released on bail,

 

and if the accused is not so charged or informed of the reason for his or her further detention, he or she shall be released; or

 

(ii)      was not arrested in respect of an offence, shall be entitled to adjudication upon the cause for his or her arrest.

 

(b)     An arrested person contemplated in paragraph (a)(i) is not entitled to be brought to court outside ordinary court hours.

 

(c)      The bail application of a person who is charged with an offence referred to in Schedule 6 must be considered by a magistrate’s court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or her may, if he or she deems it expedient or necessary for the administration of justice in a particular case, direct in writing that the application must be considered by a regional court.

[S 50(6)(c) substituted by s 8(b) of Act 62 of 2000.]

 

(d)     The lower court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or court, for a period not exceeding seven days at a time, on the terms which the court may deem proper and which are not inconsistent with any provision of this Act, if—

 

(i)      the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail application;

 

(ii)      the prosecutor informs the court that the matter has been or is going to be referred to an Attorney-General for the issuing of a written confirmation referred to in section 60(11A);

 

(iii)     …

[S 50(6)(d)(iii) repealed by s 8(c) of Act 62 of 2000.]

 

(iv)     it appears to the court that it is necessary to provide the State with a reasonable opportunity to—

 

(aa)   procure material evidence that may be lost if bail is granted; or

 

(bb)   perform the functions referred to in section 37; or

 

(v)      it appears to the court that it is necessary in the interests of justice to do so.

[S 50(6) inserted by s 1(b) of Act 75 of 1995; substituted by s 1(b) of Act 85 of 1997.]

 

(7)     ...

[S 50(7) inserted by s 1(b) of Act 75 of 1995; repealed by s 1(c) of Act 85 of 1997.]

 

51.     Escaping and aiding escaping before incarceration, and penalties therefor

 

(1)     Any person who escapes or attempts to escape from custody after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 117 of the Correctional Services Act, 1998 (Act 111 of 1998).

[S 51(1) substituted by s 4 of Act 66 of 2008.]

 

(2)     Any person who rescues or attempts to rescue from custody any person after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock‑up, or who aids the person to escape or to attempt to escape from custody, or who harbours or conceals or assists in harbouring or concealing any person who escapes from custody after he or she has been lawfully arrested and before he or she has been lodged in any correctional facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 117 of the said Correctional Services Act, 1998.

[S 51(2) substituted by s 4 of Act 66 of 2008.]

 

(3)     Notwithstanding anything to the contrary in any law contained, a lower court shall have jurisdiction to try any offence under this section and to impose any penalty prescribed in respect thereof.

 

52.     Saving of other powers of arrest

 

No provision of this Chapter relating to arrest shall be construed as removing or diminishing any authority expressly conferred by any other law to arrest, detain or put any restraint upon any person.

 

53.     Saving of civil law rights and liability

 

Subject to the provisions of sections 46 and 331, no provision of this Chapter relating to arrest shall be construed as removing or diminishing any civil right or liability of any person in respect of a wrongful or malicious arrest.

 

CHAPTER 6

SUMMONS

 

54.     Summons as method of securing attendance of accused in magistrate’s court

 

(1)     Where the prosecution intends prosecuting an accused in respect of any offence and the accused is not in custody in respect of that offence and no warrant has been or is to be issued for the arrest of the accused for that offence, the prosecutor may secure the attendance of the accused for a summary trial in a lower court having jurisdiction by drawing up the relevant charge and handing such charge, together with information relating to the name and, where known and where applicable, the residential address and occupation or status of the accused, to the clerk of the court who shall—

 

(a)     issue a summons containing the charge and the information handed to him by the prosecutor, and specifying the place, date and time for the appearance of the accused in court on such charge; and

 

(b)     deliver such summons, together with so many copies thereof as there are accused to be summoned, to a person empowered to serve a summons in criminal proceedings.

 

(2)

(a)     Except where otherwise expressly provided by any law, the summons shall be served by a person referred to in subsection (1)(b) by delivering it to the person named therein or, if he cannot be found, by delivering it at his residence or place of employment or business to a person apparently over the age of 16 years and apparently residing or employed there.

 

(b)     A return by the person who served the summons that the service thereof has been effected in terms of paragraph (a), may, upon the failure of the person concerned to attend the relevant proceedings, be handed in at such proceedings and shall be prima facie proof of such service.

 

(3)     A summons under this section shall be served on an accused so that he is in possession thereof at least 14 days (Sundays and public holidays excluded) before the date appointed for the trial.

 

55.     Failure of accused to appear on summons

 

(1)     Subject to section 4(2) of the Child Justice Act, 2008, an accused who is 18 years or older and who is summoned under section 54 to appear at criminal proceedings and who fails to appear at the place and on the date and at the time specified in the summons or who fails to remain in attendance at such proceedings, shall be guilty of an offence and liable to the punishment prescribed under subsection (2).

[S 55(1) substituted by s 99(1) of Act 75 of 2008.]

 

(1A)   The provisions of section 46 of the Child Justice Act, 2008, apply to an accused who is under the age of 18 years and who fails to appear at a preliminary inquiry in terms of a summons issued under that Act.

[S 55(1A) inserted by s 99(1) of Act 75 of 2008.]

 

(2)     The court may, if satisfied from the return of service referred to in paragraph (b) of section 54(2) that the summons was served on the accused in terms of paragraph (a) of that section and that the accused has failed to appear at the place and on the date and at the time specified in the summons, or if satisfied that the accused has failed to remain in attendance at the proceedings in question, issue a warrant for his arrest and, when he is brought before the court, in a summary manner enquire into his failure so to appear or so to remain in attendance and unless the accused satisfies the court that his failure was not due to any fault on his part, convict him of the offence referred to in subsection (1) and sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months:

[Words preceding proviso to s 55(2) substituted by s 5(a) of Act 33 of 1986.]

 

Provided that where a warrant is issued for the arrest of an accused who has failed to appear in answer to the summons, the person executing the warrant—

 

(a)     may, where it appears to him that the accused received the summons in question and that the accused will appear in court in accordance with a warning under section 72; or

 

(b)     shall, where it appears to him that the accused did not receive the summons in question or that the accused has paid an admission of guilt fine in terms of section 57 or that there are other grounds on which it appears that the failure of the accused to appear on the summons was not due to any fault on the part of the accused, for which purpose he may require the accused to furnish an affidavit or affirmation,

 

release the accused on warning under section 72 in respect of the offence of failing to appear in answer to the summons, whereupon the provisions of that section shall mutatis mutandis apply with reference to the said offence.

 

(2A)  

(a)     If the court issues a warrant of arrest in terms of subsection (2) in respect of a summons which is endorsed in accordance with section 57(1)(a)—

 

(i)      an endorsement to the same effect shall be made on the warrant in question;

 

(ii)      the court may make a further endorsement on the warrant to the effect that the accused may admit his guilt in respect of the failure to appear in answer to the summons or to remain in attendance at the criminal proceedings, and that he may upon arrest pay to a clerk of the court or at a police station a fine stipulated on the warrant in respect of such failure, which fine shall not exceed the amount to be imposed in terms of subsection (2), without appearing in court.

Uncommenced amendment: (a)     If the court issues a warrant of arrest in terms of subsection (2) in respect of a summons which is endorsed in accordance with section 57(3)(a)— (i)      an endorsement to the same effect shall be made on the warrant in question; (ii)      the court may make a further endorsement on the warrant to the effect that the accused may admit his or her guilt in respect of the failure to appear in answer to the summons or to remain in attendance at the criminal proceedings, and that he or she may upon arrest pay to a clerk of the court or at a police station a fine stipulated on the warrant in respect of that failure, which fine shall not exceed the amount to be imposed in terms of subsection (2), without appearing in court. [S 55(2A)(a) substituted by s 5 of Act 66 of 2008 with effect from a date to be proclaimed.]

 

(b)     The fine paid in terms of paragraph (a) at a police station or to a clerk of a magistrate’s court other than the magistrate’s court which issued the warrant of arrest, shall, as soon as is expedient, together with the warrant of arrest in question, be forwarded to the clerk of the court which issued that warrant, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such admission of guilt in the criminal record book for admission of guilt, whereupon the accused concerned shall be deemed to have been convicted by the court in respect of the offence in question.

[S 55(2A) inserted by s 5(b) of Act 33 of 1986; substituted by s 3 of Act 4 of 1992.]

 

(3)

(a)     If, in any case in which a warrant of arrest is issued, it was permissible for the accused in terms of section 57 to admit his guilt in respect of the summons on which he failed to appear and to pay a fine in respect thereof without appearing in court, and the accused is arrested under such warrant in the area of jurisdiction of a magistrate’s court other than the magistrate’s court which issued the warrant of arrest such other magistrate’s court may, notwithstanding any provision of this Act or any other law to the contrary, and if satisfied that the accused has, since the date on which he failed to appear on the summons in question, admitted his guilt in respect of that summons and has paid a fine in respect thereof without appearing in court, in a summary manner enquire into his failure to appear on such summons and, unless the accused satisfies the court that his failure was not due to any fault on his part, convict him of the offence referred to in subsection (1) and sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

[S 55(3)(a) substituted by s 14 of Act 59 of 1983, s 5(c) of Act 33 of 1986.]

 

(b)     In proceedings under paragraph (a) before such other magistrate’s court, it shall be presumed, upon production in such court of the relevant warrant of arrest, that the accused failed to appear on the summons in question, unless the contrary is proved.

 

CHAPTER 7

WRITTEN NOTICE TO APPEAR IN COURT

 

56.     Written notice as method of securing attendance of accused in magistrate’s court

 

(1)     If an accused is alleged to have committed an offence and a peace officer on reasonable grounds believes that a magistrate’s court, on convicting such accused of that offence, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, such peace officer may, whether or not the accused is in custody, hand to the accused a written notice which shall—

[Words preceding s 56(1)(a) substituted by s 2 of Act 109 of 1984, s 5 of Act 5 of 1991.]

 

(a)     specify the name, the residential address and the occupation or status of the accused;

 

(b)     call upon the accused to appear at a place and on a date and at a time specified in the written notice to answer a charge of having committed the offence in question;

 

(c)      contain an endorsement in terms of section 57 that the accused may admit his guilt in respect of the offence in question and that he may pay a stipulated fine in respect thereof without appearing in court; and

 

(d)     contain a certificate under the hand of the peace officer that he has handed the original of such written notice to the accused and that he has explained to the accused the import thereof.

 

Uncommenced amendment: (1)     If an accused is alleged to have committed an offence referred to in section 57(2)(a), a peace officer may, whether or not the accused is in custody, hand to the accused a written notice which shall— (a)     specify the name, residential address and the occupation or status of the accused; (b)     call upon the accused to appear at a place and on a date at a time specified in the written notice to answer a charge of having committed the offence in question; (c)      contain an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay the stipulated fine as determined by the Minister in terms of section 57(2)(b) in respect thereof without appearing in court; and (d)     contain a certificate under the hand of the peace officer that he or she has handed the original of that written notice to the accused and that he or she has explained to the accused the import thereof. [S 56(1) substituted by s 6(1) of Act 66 of 2008 with effect from a date to be proclaimed.]

 

(2)     If the accused is in custody, the effect of a written notice handed to him under subsection (1) shall be that he be released forthwith from custody.

 

Uncommenced amendment: (2)     If the accused is in custody, the effect of a written notice handed to him or her under subsection (1) shall be that he or she be released forthwith from custody. [S 56(2) substituted by s 6(1) of Act 66 of 2008 with effect from a date to be proclaimed.]

 

(3)     The peace officer shall forthwith forward a duplicate original of the written notice to the clerk of the court which has jurisdiction.

 

(4)     The mere production to the court of the duplicate original referred to in subsection (3) shall be prima facie proof of the issue of the original thereof to the accused and that such original was handed to the accused.

 

(5)     The provisions of section 55 shall mutatis mutandis apply with reference to a written notice handed to an accused under subsection (1).

 

CHAPTER 8

ADMISSION OF GUILT FINE

 

57.     Admission of guilt and payment of fine without appearance in court

 

(1)     Where—

 

(a)     a summons is issued against an accused under section 54 (in this section referred to as the summons) and the public prosecutor or the clerk of the court concerned on reasonable grounds believes that a magistrate’s court, on convicting the accused of the offence in question, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, and such public prosecutor or clerk of the court endorses the summons to the effect that the accused may admit his guilt in respect of the offence in question and that he may pay a fine stipulated on the summons in respect of such offence without appearing in court; or

[S 57(1)(a) substituted by s 3(a) of Act 109 of 1984, s 6(a) of Act 5 of 1991.]

 

(b)     a written notice under section 56 (in this section referred to as the written notice) is handed to the accused and the endorsement in terms of paragraph (c) of subsection (1) of that section purports to have been made by a peace officer,

 

the accused may, without appearing in court, admit his guilt in respect of the offence in question by paying the fine stipulated (in this section referred to as the admission of guilt fine) either to the clerk of the magistrate’s court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the fine may be paid at a specified local authority, at such local authority.

 

(2)

(a)     The summons or the written notice may stipulate that the admission of guilt fine shall be paid before a date specified in the summons or written notice, as the case may be.

 

(b)     An admission of guilt fine may be accepted by the clerk of the court concerned notwithstanding that the date referred to in paragraph (a) or the date on which the accused should have appeared in court has expired.

 

(3)    

(a)    

(i)      Subject to the provisions of subparagraphs (ii) and (iii), an accused who intends to pay an admission of guilt fine in terms of subsection (1), shall surrender the summons or the written notice, as the case may be, at the time of the payment of the fine.

 

(ii)      If the summons or written notice, as the case may be, is lost or is not available and the copy thereof known as the control document—

 

(aa)   is not available at the place of payment referred to in subsection (1), the accused shall surrender a copy of the summons or written notice, as the case may be, at the time of the payment of the fine; or

 

(bb)   is available at the place of payment referred to in subsection (1), the admission of guilt fine may be accepted without the surrender of a copy of the summons or written notice, as the case may be.

 

(iii)     If an accused in respect of whom a warrant has been endorsed in terms of section 55(2A) intends to pay the relevant admission of guilt fine, the clerk of the court may, after he has satisfied himself that the warrant is so endorsed, accept the admission of guilt fine without the surrender of the summons, written notice or copy thereof, as the case may be.

[S 57(3)(a) substituted by s 2(a) of Act 26 of 1987.]

 

(b)     A copy referred to in paragraph (a)(ii) may be obtained by the accused at the magistrate’s court, police station or local authority where the copy of the summons or written notice in question known as the control document is filed.

 

(c)      Notwithstanding the provisions of subsection (1), an accused referred to in paragraph (a)(iii) may pay the admission of guilt fine in question to the clerk of the court where he appears in consequence of such warrant, and if the said clerk of the court is not the clerk of the magistrate’s court referred to in subsection (1), he shall transfer such admission of guilt fine to the latter clerk of the magistrate’s court,

[S 57(3) substituted by s 6 of Act 33 of 1986 with effect from 1 September 1986; s 57(3)(c) substituted by s 2(b) of Act 26 of 1987.]

 

(4)     No provision of this section shall be construed as preventing a public prosecutor attached to the court concerned from reducing an admission of guilt fine on good cause shown.

 

(5)

(a)     An admission of guilt fine stipulated in respect of a summons or a written notice shall be in accordance with a determination which the magistrate of the district or area in question may from time to time make in respect of any offence or, if the magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of such magistrate or a police official of or above the rank of non-commissioned officer attached to a police station within the magisterial district or area in question or, in the absence of such a police official at any such police station, by the senior police official then in charge at such police station.

 

(b)     An admission of guilt fine determined under paragraph (a) shall not exceed the maximum of the fine prescribed in respect of the offence in question or the amount determined by the Minister from time to time by notice in the Gazette, whichever is the lesser.

[S 57(5)(b) substituted by s 3(b) of Act 109 of 1984, s 6(b) of Act 5 of 1991.]

 

(6)     An admission of guilt fine paid at a police station or a local authority in terms of subsection (1) and the summons or, as the case may be, the written notice surrendered under subsection (3), shall, as soon as is expedient, be forwarded to the clerk of the magistrate’s court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions of guilt, whereupon the accused concerned shall, subject to the provisions of subsection (7), be deemed to have been convicted and sentenced by the court in respect of the offence in question.

 

(7)     The judicial officer presiding at the court in question shall examine the documents and if it appears to him that a conviction or sentence under subsection (6) is not in accordance with justice or that any such sentence, except as provided in subsection (4), is not in accordance with a determination made by the magistrate under subsection (5) or, where the determination under that subsection has not been made by the magistrate, that the sentence is not adequate, such judicial officer may set aside the conviction and sentence and direct that the accused be prosecuted in the ordinary course, whereupon the accused may be summoned to answer such charge as the public prosecutor may deem fit to prefer: Provided that where the admission of guilt fine which has been paid exceeds the amount determined by the magistrate under subsection (5), the said judicial officer may, in lieu of setting aside the conviction and sentence in question, direct that the amount by which the said admission of guilt fine exceeds the said determination be refunded to the accused concerned.

 

Uncommenced amendment: 57.     Admission of guilt and payment of fine without appearance in court (1)     An admission of guilt fine referred to in this section may only be imposed and paid in respect of an offence which the Minister determines, as provided for in subsection (2). (2)     For purposes of this section, the Minister may, from time to time, by notice in the Gazette, and after consultation with the Chief Justice, the National Director of Public Prosecutions and the Minister for Safety and Security, determine— (a)     the offences in respect of which an admission of guilt fine may be imposed and paid; and (b)     the amount of an admission of guilt fine which can be stipulated in a summons under section 54 (in this section referred to as the summons) or a written notice under section 56 (in this section referred to as the written notice), in respect of each offence. (3) Where— (a)     a summons is issued against an accused under section 54 and the public prosecutor of the court concerned, in accordance with the directives issued by the National Director of Public Prosecutions provided for in subsection (11), endorses the summons to the effect that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay a fine stipulated on the summons in respect of that offence without appearing in court; or (b)     a written notice under section 56 is handed to the accused and the endorsement in terms of subsection (1)(c) of that section purports to have been made by a peace officer, the accused may, without appearing in court, admit his or her guilt in respect of the offence in question by paying the fine stipulated (in this section referred to as the admission of guilt fine) either to the clerk of the magistrate’s court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the fine may be paid at a specified local authority, at that local authority. (4) (a)     The summons or the written notice may stipulate that the admission of guilt fine shall be paid before a date specified in the summons or written notice, as the case may be. (b)     An admission of guilt fine may be accepted by the clerk of the court concerned notwithstanding that the date referred to in paragraph (a) or the date on which the accused should have appeared in court has expired. (5) (a) (i)      Subject to the provisions of subparagraphs (ii) and (iii), an accused who intends to pay an admission of guilt fine in terms of subsection (1), shall surrender the summons or the written notice, as the case may be, at the time of the payment of the fine. (ii)      If the summons or written notice, as the case may be, is lost or is not available and the copy thereof known as the control document— (aa)   is not available at the place of payment referred to in subsection (3), the accused shall surrender a copy of the summons or written notice, as the case may be, at the time of the payment of the fine; or (bb)   is available at the place of payment referred to in subsection (3), the admission of guilt fine may be accepted without the surrender of a copy of the summons or written notice, as the case may be. (iii)     If an accused in respect of whom a warrant has been endorsed in terms of section 55(2A) intends to pay the relevant admission of guilt fine, the clerk of the court may, after he or she has satisfied himself or herself that the warrant is so endorsed, accept the admission of guilt fine without the surrender of the summons, written notice or copy thereof, as the case may be. (b)     A copy referred to in paragraph (a)(ii) may be obtained by the accused at the magistrate’s court, police station or local authority where the copy of the summons or written notice in question known as the control document is filed. (c)      Notwithstanding the provisions of subsection (3), an accused referred to in paragraph (a)(iii) may pay the admission of guilt fine in question to the clerk of the court where he or she appears in consequence of that warrant, and if that clerk of the court is not the clerk of the magistrate’s court referred to in subsection (3), he or she shall transfer that admission of guilt fine to the latter clerk of the magistrate’s court. (6)     No provision of this section shall be construed as preventing a public prosecutor attached to the court concerned from reducing an admission of guilt fine on good cause shown in writing. (7)     An admission of guilt fine stipulated in respect of a summons or a written notice shall be in accordance with the determination made by the Minister from time to time in respect of the offence in question, as provided  for in subsection (2). (8)     An admission of guilt fine paid at a police station or a local authority in terms of subsection (3) and the summons or, as the case may be, the written notice surrendered under subsection (5), shall, as soon as is expedient, be forwarded to the clerk of the magistrate’s court which has jurisdiction, and that clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of that summons or, as the case may be, that written notice and of any summons or written notice surrendered to the clerk of the court under subsection (5), in the criminal record book for admissions of guilt, whereupon the accused concerned shall, subject to the provisions of subsection (9), be deemed to have been convicted and sentenced by the court in respect of the offence in question. (9)     The judicial officer presiding at the court in question shall examine the documents and if it appears to him or her that a conviction or sentence under subsection (8) is not in accordance with justice or, except as provided in subsection (6), is not in accordance with a determination made by the Minister under subsection (2) or does not comply with a directive issued by the National Director of Public Prosecutions as provided for in subsection (11) that judicial officer may set aside the conviction and sentence and direct that the accused be prosecuted in the ordinary course, whereupon the accused may be summoned to answer that charge as the public prosecutor may deem fit to prefer: Provided that where the admission of guilt fine which has been paid exceeds the amount determined by the Minister under subsection (2), the judicial officer may, in lieu of setting aside the conviction and sentence in question, direct that the amount by which the admission of guilt fine exceeds the said determination be refunded to the accused concerned. (10)   Any determination made by the Minister under this section must be tabled in Parliament for approval. (11) (a)     The National Director of Public Prosecutions must issue directives regarding the cases and circumstances in which a prosecutor may issue a summons referred to in subsection (3)(a) or a written notice referred to in section 57A(1) in which an admission of guilt fine may be imposed in respect of the offences which the Minister determines under subsection (2) and any directive so issued must be observed in the application of this section. (b)     The directives referred to in paragraph (a) must ensure that adequate disciplinary steps will be taken against a prosecutor who fails to comply with any directive. (c)      The Minister must submit any directives issued under this subsection to Parliament before those directives take effect, and the first directives so issued, must be submitted to Parliament within four months of the commencement of this section. (d)     Any directive issued under this subsection may be amended or withdrawn in like manner. [S 57 substituted by s 7 of Act 66 of 2008 with effect from a date to be proclaimed.] [

 

57A.  Admission of guilt and payment of fine after appearing in court

 

(1)     If an accused who is alleged to have committed an offence has appeared in court and is—

 

(a)     in custody awaiting trial on that charge and not on another more serious charge;

 

(b)     released on bail under section 59 or 60; or

 

(c)      released on warning under section 72,

 

the public prosecutor may, before the accused has entered a plea and if he or she on reasonable grounds believes that a magistrate’s court, on convicting such accused of that offence, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, hand to the accused a written notice, or cause such notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay a stipulated fine in respect thereof without appearing in court again.

 

Uncommenced amendment: (1)     If an accused who is alleged to have committed an offence, as provided for in section 57(2)(a), has appeared in court and is— (a)     in custody awaiting trial on that charge and not on another more serious charge; (b)     released on bail under section 59 or 60; or (c)      released on warning under section 72, the public prosecutor may, before the accused has entered a plea and in accordance with the directives issued by the National Director of Public Prosecutions under section 57(11), hand to the accused a written notice, or cause the notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay the stipulated fine in respect of that offence, as determined by the Minister in terms of section 57(2)(b), without appearing in court again. [S 57A(1) substituted by s 8(a) of Act 66 of 2008 with effect from a date to be proclaimed.]

 

(2)     Such notice shall contain—

 

(a)     the case number;

 

(b)     a certificate under the hand of the prosecutor or peace officer affirming that he or she handed or delivered, as the case may be, the original of such notice to the accused and that he or she explained to the accused the import thereof; and

 

(c)      the particulars and instructions contemplated in paragraphs (a) and (b) of section 56(1).

 

(3)     The public prosecutor shall endorse the charge-sheet to the effect that a notice contemplated in this section has been issued and he or she or the peace officer, as the case may be, shall forthwith forward a duplicate original of the notice to the clerk of the court which has jurisdiction.

 

(4)     The provisions of sections 55, 56(2) and (4) and 57(2) to (7), inclusive, shall apply mutatis mutandis to the relevant written notice handed or delivered to an accused under subsection (1) as if, in respect of section 57, such notice were the written notice contemplated in that section and as if the fine stipulated in such written notice were also the admission of guilt fine contemplated in that section.

 

Uncommenced amendment: (4)     The provisions of sections 55, 56(2) and (4) and 57(1), (2), (4) to (9), inclusive, shall apply mutatis mutandis to the relevant written notice handed or delivered to an accused under subsection (1) as if, in respect of section 57, the notice were the written notice referred to in that section and as if the fine stipulated in the written notice were also the admission of guilt fine referred to in that section. [S 57A(4) substituted by s 8(b) of Act 66 of 2008 with effect from a date to be proclaimed.]

 

[S 57A inserted by s 1 of Act 86 of 1996.]

 

57B.  Payment of admission of guilt fine without appearance in court and previous conviction

 

(1)     The Minister may, in consultation with the National Director of Public Prosecutions and after consultation with the Cabinet member responsible for police and subject to subsection (2), by notice in the Gazette, declare any offence, category or class of offences, or offence committed in specified circumstances, in respect of which—

 

(a)     an accused may pay a fine without appearing in court; and

 

(b)     which fine is not recorded in the criminal record book for admission of guilt fines,

 

as an offence or offences, as the case may be, that does not result in a previous conviction of an accused.

 

(2)     For purposes of subsection (1), the following grounds and criteria must be considered to determine whether or not an offence may be declared as contemplated in subsection (1):

 

(a)     The offence must be a statutory offence punishable with a fine, without or with an alternative sentence of imprisonment not exceeding six months in default of payment of such a fine;

 

(b)     the offence must not—

 

(i)      contain an element of violence;

 

(ii)      involve the infliction of mental, psychological or physical harm on another person;

 

(iii)     involve damage to property;

 

(iv)     involve an element of dishonesty;

 

(v)      involve cruelty to animals;

 

(vi)     be an offence against the administration of justice; or

 

(vii)    cause pecuniary or economic loss to another person; and

 

(c)      a criminal record in respect of the offence in question cannot be regarded as an appropriate mechanism to encourage compliance with the law.

[S 57B added by s 10 of Act 15 of 2023 with effect from 3 April 2024.]

 

57C.  Expungement of criminal records of persons whose name appears in records of Criminal Record

 

Centre of South African Police Service after having paid an admission of guilt fine for offences determined in terms of section 57B(1)

 

(1)     Where a person obtained a criminal record which appears in the database of the Criminal Record Centre of the South African Police Service (‘CRC’) after having paid an admission of guilt fine for an offence determined in terms of section 57B(1), the criminal record containing the conviction and sentence in question, of that person in respect of that offence must be expunged automatically by the CRC.

 

(2)     Where the criminal record of a person referred to in subsection (1) has not been expunged automatically as provided for in that subsection, the criminal record of that person must, on his or her written application to the Director-General of the Department of Justice and Constitutional Development, be expunged in terms of the provisions of this Act.

[S 57C added by s 10 of Act 15 of 2023 with effect from 3 April 2024.]

 

57D.  Convictions and sentences in respect of admission of guilt fines relating to offences in terms of regulations made in terms of section 27(2) of Disaster Management Act, 2002

 

(1)     From the date of commencement of this section, the criminal record of a person which contain the conviction and sentence of a person who—

 

(a)     is deemed to have been convicted and sentenced by a court as contemplated in section 57(6) of this Act, in respect of a specified offence; or

 

(b)     appeared in court in terms of a summons or written notice referred to in section 57(1) of this Act, in respect of a specified offence where it was permissible for that person to admit his or her guilt and who has been convicted and sentenced by the court in respect of the specified offence in question,

 

is hereby expunged, determined from the date of payment of the admission of guilt fine referred to in paragraph (a), or the sentence referred to in paragraph (b).

 

(2)     Where the criminal record of a person referred to in subsection (1) has not been expunged automatically as provided for in that subsection, the criminal record of that person must, on his or her written application to the Director-General, in the prescribed form and manner, be expunged.

 

(3)     The Director-General must, on receipt of the written application of an applicant referred to in subsection (2), issue a prescribed certificate of expungement, directing that the conviction and sentence of the person be expunged, if the Director-General is satisfied that the person complies with the criteria envisaged in subsection (1).

 

(4)     An applicant to whom a certificate of expungement has been issued as provided in subsection (3) must, in the prescribed manner, submit the certificate to the head of the CRC, to be dealt with in accordance with subsection (5).

 

(5)

(a)     The head of the CRC or a senior person or person of the rank of Director or above, employed at the CRC, who has or have been authorised, in writing, by the head of the CRC to do so, must expunge the criminal record of a person if he or she is furnished by the applicant, with a certificate of expungement as provided for in subsection (3).

 

(b)     The head of the CRC must, on the written request of an applicant, in writing, confirm that the criminal record of the person has been expunged.

 

(6)     Where the Director-General, in terms of subsection (3), has issued a certificate of expungement, and it subsequently appears that the applicant does not meet the requirements for the expungement of his or her criminal record, the Director-General must—

 

(a)     inform the applicant in writing of the information that has come to his or her attention and that he or she intends to revoke the certificate of expungement;

 

(b)     afford the applicant an opportunity to furnish compelling written reasons to the Director-General within 90 working days after he or she is informed of the intention to revoke, why his or her record should remain expunged;

 

(c)      inform the applicant in writing within 30 working days after a decision is made of—

 

(i)      his or her decision; and

 

(ii)      the reasons for revoking the certificate of expungement; and

 

(d)     inform the head of the CRC, in writing, within 14 working days after the decision was made, to revoke the certificate of expungement and to reinstate the convictions and sentences in question.

 

(7)     If the applicant fails to furnish compelling reasons as contemplated in subsection (6)(b), the Director-General may, subject to the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), revoke the certificate of expungement.

 

(8)

(a)     The Director-General may delegate any power or assign any duty conferred upon or assigned to him or her in terms of subsection (3) or (6) to an appropriately qualified official in the employ of the Department of Justice and Constitutional Development of the rank of Deputy Director-General.

 

(b)     A delegation or assignment in terms of paragraph (a)—

 

(i)      is subject to any limitation, condition and direction which the Director-General may impose;

 

(ii)      must be in writing; and

 

(iii)     does not divest the Director-General of the responsibility concerning the exercise of the power or the performance of the duty.

 

(c)     The Director-General may—

 

(i)      confirm, vary or revoke any decision taken in consequence of a delegation or assignment in terms of this subsection, subject to any rights that may have accrued to a person as a result of the decision; and

 

(ii)      at any time withdraw a delegation or assignment.

 

(9)     For purposes of this section a "specified offence" means any offence contemplated in any regulations that have been made in terms of section 27(2) of the Disaster Management Act, 2002 (Act No. 57 of 2002), in respect of the declaration of the national state of disaster in terms of section 27(1) of that Act, as published in terms of Government Gazette No. 43096 on 15 March 2020 and extended from time to time.

[S 57D added by s 10 of Act 15 of 2023 with effect from 3 April 2024.]

 

CHAPTER 9

BAIL

 

58.     Effect of bail

 

The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody shall be released from custody upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his bail, and that he shall appear at the place and on the date and at the time appointed for his trial or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned, and that the release shall, unless sooner terminated under the said provisions, endure until a verdict is given by a court in respect of the charge to which the offence in question relates, or, where sentence is not imposed forthwith after verdict and the court in question extends bail, until sentence is imposed: Provided that where a court convicts an accused of an offence contemplated in Schedule 5 or 6, the court shall, in considering the question whether the accused’s bail should be extended, apply the provisions of section 60(11)(a) or (b), as the case may be, and the court shall take into account—

 

(a)     the fact that the accused has been convicted of that offence; and

 

(b)     the likely sentence which the court might impose.

[S 58 amended by s 2 of Act 85 of 1997.]

 

59.     Bail before first appearance of accused in lower court

 

(1)

(a)     An accused who is in custody in respect of any offence, other than an offence—

 

(i)      referred to in Part II or Part III of Schedule 2;

 

(ii)      against a person in a domestic relationship, as defined in section 1 of the Domestic          Violence Act, 1998 (Act 116 of 1998); or

 

(iii)     referred to in—

 

         (aa)   section 17 (1) (a) of the Domestic Violence Act, 1998;

 

(bb)   section 18 (1) (a) of the Protection from Harassment Act, 2011 (Act 17 of 2011); or

 

(cc)    any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused,

 

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, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.

[S 59(1)(a) substituted by s 3 of Act 26 of 1987, s 1 of Act 126 of 1992, s 2 of Act 75 of 1995, by s 2 of Act 12 of 2021 with effect from 5 August 2022.]

 

(b)     The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognisance on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered.

 

(c)      The said police official shall forthwith forward a duplicate original of such recognisance to the clerk of the court which has jurisdiction.

 

(2)     Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court, but subject to the provisions of section 62, remain in force after such appearance in the same manner as bail granted by the court under section 60 at the time of such first appearance.

 

59A.  Director of Public Prosecutions may authorise release on bail

[S 59A heading substituted by s 3(a) of Act 12 of 2021 with effect from 5 August 2022.]

 

(1)     A Director of Public Prosecutions having jurisdiction, or a prosecutor authorised thereto in writing by the Director of Public Prosecutions concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail: Provided that a person accused of any offence contemplated in section 59 (1) (a) (ii) or (iii) may not be released on bail in accordance with the provisions of this section.

[S 59A(1) substituted by s 3(b) of Act 12 of 2021 with effect from 5 August 2022.]

 

(2)     For the purposes of exercising the functions contemplated in subsections (1) and (3) the National Director of Public Prosecutions may, after consultation with the Minister, issue directives.

[S 59A(2) substituted by s 3(b) of Act 12 of 2021 with effect from 5 August 2022.]

 

(3)     The effect of bail granted in terms of this section is that the person who is in custody shall be released from custody—

 

(a)     upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his or her bail at his or her place of detention contemplated in section 50(1)(a);

 

(b)     subject to reasonable conditions imposed by the Director of Public Prosecutions or prosecutor concerned; or

 

(c)      the payment of such sum of money or the furnishing of such guarantee to pay and the imposition of such conditions.

[S 59A(3) substituted by s 3(b) of Act 12 of 2021 with effect from 5 August 2022.]

 

(4)     An accused released in terms of subsection (3) shall appear on the first court day at the court and at the time determined by the Director of Public Prosecutions or prosecutor concerned and the release shall endure until he or she so appears before the court on the first court day.

[S 59A(4) substituted by s 3(b) of Act 12 of 2021 with effect from 5 August 2022.]

 

(5)     The court before which a person appears in terms of subsection (4)—

 

(a)     may extend the bail on the same conditions or amend such conditions or add further conditions as contemplated in section 62; or

 

(b)     shall, if the court does not deem it appropriate to exercise the powers contemplated in paragraph (a), consider the bail application and, in considering such application, the court has the jurisdiction relating to the powers, functions and duties in respect of bail proceedings in terms of section 60.

 

(6)     The provisions of section 64 with regard to the recording of bail proceedings by a court apply, with the necessary changes, in respect of bail granted in terms of this section.

 

(7)     For all purposes of this Act, but subject to the provisions of this section, bail granted in terms of this section shall be regarded as bail granted by a court in terms of section 60.

[S 59A inserted by s 3 of Act 85 of 1997.]

 

60.     Bail application of accused in court

 

(1)

(a)     An accused who is in custody in respect of an offence shall, subject to the provisions of section 50(6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.

[S 60(1)(a) substituted by s 9(a) of Act 62 of 2000.]

 

(b)     Subject to the provisions of section 50(6)(c), the court referring an accused to any other court for trial or sentencing retains jurisdiction relating to the powers, functions and duties in respect of bail in terms of this Act until the accused appears in such other court for the first time.

[S 60(1)(b) substituted by s 4(a) of Act 85 of 1997, s 5(a) of Act 34 of 1998.]

 

(c)      If the question of the possible release of the accused on bail is not raised by the accused or the prosecutor, the court shall ascertain from the accused whether he or she wishes that question to be considered by the court.

 

(2)     In bail proceedings the court—

 

(a)     may postpone any such proceedings as contemplated in section 50(6);

 

(b)     may, in respect of matters that are not in dispute between the accused and the prosecutor, acquire in an informal manner the information that is needed for its decision or order regarding bail;

 

(c)      may, in respect of matters that are in dispute between the accused and the prosecutor, require of the prosecutor or the accused, as the case may be, that evidence be adduced;

 

(d)     shall, where the prosecutor does not oppose bail in respect of matters referred to in subsection (11) (a), (b) and (c), require of the prosecutor to place on record the reasons for not opposing the bail application.

[S 60(2)(d) substituted by s 4(a) of Act 12 of 2021 with effect from 5 August 2022.]

[S 60(2) substituted by s 4(b) of Act 85 of 1997.]

 

(2A)   The court must, before reaching a decision on the bail application, take into consideration—

 

(a)     any pre-trial services report regarding the desirability of releasing an accused on bail, if such a report is available; and

 

(b)     the view of any person against whom the offence in question was allegedly committed,     regarding his or her safety.

[S 60(2A) inserted by s 4 of Act 55 of 2003, substituted by s 4(b) of Act 12 of 2021 with effect from 5 August 2022.]

 

(2B)

(a)     If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), and if the payment of a sum of money is to be considered as a condition of bail, the court must hold a separate inquiry into the ability of the accused to pay the sum of money being considered or any other appropriate sum.

 

(b)     If, after an inquiry referred to in paragraph (a), it is found that the accused is—

 

(i)      unable to pay any sum of money, the court must consider setting appropriate conditions that do not include an amount of money for the release of the accused on bail or must consider the release of the accused in terms of a guarantee as provided for in subsection (13)(b); or

 

(ii)      able to pay a sum of money, the court must consider setting conditions for the release of the accused on bail and a sum of money which is appropriate in the circumstances.

[S 60(2B) inserted by s 9(a) of Act 66 of 2008.]

 

(3)     If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision on the bail application, the presiding officer shall order that such information or evidence be placed before the court.

 

(4)     The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established—

[Words preceding s 60(4)(a) substituted by s 9(b) of Act 62 of 2000.]

 

(a)     Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed, or any other particular person or will commit a Schedule 1 offence;

[S 60(4)(a) substituted by s 4(c) of Act 85 of 1997, by s 4(c) of Act 12 of 2021 with effect from 5 August 2022.]

 

(b)     where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or

 

(c)      where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

 

(d)     where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system.

 

(e)     where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security; or

[S 60(4)(e) inserted by s 4(d) of Act 85 of 1997.]

 

(5)     In considering whether the ground in subsection (4)(a) has been established, the court may, where applicable, take into account the following factors, namely—

 

(a)     the degree of violence towards others implicit in the charge against the accused;

 

(b)     any threat of violence which the accused may have made to a person against whom the offence in question was allegedly committed or any other person;

 

(c)      any resentment the accused is alleged to harbour against a person against whom the offence in question was allegedly committed or any other person;

 

(d)     any disposition to violence on the part of the accused, as is evident from his or her past conduct;

 

(e)     any disposition of the accused to commit—

 

(i)      offences referred to in Schedule 1;

 

(ii)      an offence against any person in a domestic relationship, as defined in section 1 of the     Domestic Violence Act, 1998; or

 

(iii)     an offence referred to in—

 

(aa)   section 17 (1) (a) of the Domestic Violence Act, 1998;

 

(bb)   section 18 (1) (a) of the Protection from Harassment Act, 2011; or

 

(cc)    any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence        in question was allegedly committed, from the accused,

 

          as is evident from his or her past conduct;

 

(f)      the prevalence of a particular type of offence;

 

(g)     any evidence that the accused previously committed an offence—

 

(i)      referred to in Schedule 1;

 

(ii)      against any person in a domestic relationship, as defined in section 1 of the Domestic       Violence Act, 1998; or

 

(iii)     referred to in—

 

(aa)   section 17 (1) (a) of the Domestic Violence Act, 1998;

 

(bb)   section 18 (1) (a) of the Protection from Harassment Act, 2011; or

 

(cc)    any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence        in question was allegedly committed, from the accused,

 

         while released on bail or placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998; or

 

(h)     any other factor which in the opinion of the court should be taken into account.

[S 60(5) substituted by s 4(d) of Act 12 of 2021 with effect from 5 August 2022.]

 

(6)     In considering whether the ground in subsection (4)(b) has been established, the court may, where applicable, take into account the following factors, namely—

 

(a)     the emotional, family, community or occupational ties of the accused to the place at which he or she 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;

 

(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)     the strength of the case against the accused and the incentive that he or she may in consequence have to attempt to evade his or her trial;

 

(h)     the nature and gravity of the punishment which is likely to be imposed should the accused be convicted of the charges against him or her;

 

(i)       the binding effect and enforceability of bail conditions which may be imposed and the ease with which such conditions could be breached; or

 

(j)       any other factor which in the opinion of the court should be taken into account.

 

(7)     In considering whether the ground in subsection (4)(c) has been established, the court may, where applicable, take into account the following factors, namely—

 

(a)     the fact that the accused is familiar with the identity of witnesses and with the evidence which they may bring against him or her;

 

(b)     whether the witnesses have already made statements and agreed to testify;

 

(c)      whether the investigation against the accused has already been completed;

 

(d)     the relationship of the accused with the various witnesses and the extent to which they could be influenced or intimidated;

 

(e)     how effective and enforceable bail conditions prohibiting communication between the accused and witnesses are likely to be;

 

(f)      whether the accused has access to evidentiary material which is to be presented at his or her trial;

 

(g)     the ease with which evidentiary material could be concealed or destroyed; or

 

(h)     any other factor which in the opinion of the court should be taken into account.

 

(8)     In considering whether the ground in subsection (4)(d) has been established, the court may, where applicable, take into account the following factors, namely—

 

(a)     the fact that the accused, knowing it to be false, supplied false information at the time of his or her arrest or during the bail proceedings;

 

(b)     whether the accused is in custody on another charge or whether the accused is on parole;

 

(c)      any previous failure on the part of the accused to comply with bail conditions or any indication that he or she will not comply with any bail conditions; or

 

(d)     any other factor which in the opinion of the court should be taken into account.

 

(8A)   In considering whether the ground in subsection (4)(e) has been established, the court may, where applicable, take into account the following factors, namely—

 

(a)     whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed;

 

(b)     whether the shock or outrage of the community might lead to public disorder if the accused is released;

 

(c)      whether the safety of the accused might be jeopardised by his or her release;

 

(d)     whether the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused;

 

(e)     whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system; or

 

(f)      any other factor which in the opinion of the court should be taken into account.

[S 60(8A) inserted by s 4(e) of Act 85 of 1997.]

 

(9)     In considering the question in subsection (4) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely—

 

(a)     the period for which the accused has already been in custody since his or her arrest;

 

(b)     the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;

 

(c)      the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay;

 

(d)     any financial loss which the accused may suffer owing to his or her detention;

 

(e)     any impediment to the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused;

 

(f)      the state of health of the accused; or

 

(g)     any other factor which in the opinion of the court should be taken into account.

 

(10)   Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the personal interests of the accused against the interests of justice: Provided that the interests of justice should be interpreted to include, but not be limited to, the safety of any person against whom the offence in question has allegedly been committed.

[S 60(10) substituted by s 4(e) of Act 12 of 2021 with effect from 5 August 2022.]

 

(11)   Notwithstanding any provision of this Act, where an accused is charged with an offence —

 

(a)     referred to in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, 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;

 

(b)     referred to in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release; or

 

(c)      contemplated in section 59 (1) (a) (ii) or (iii), the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release.

[S 60(11) substituted by s 4(f) of Act 85 of 1997, by s 4(f) of Act 12 of 2021 with effect from 5 August 2022.]

 

(11A)

(a)     If the Director of Public Prosecutions having jurisdiction intends charging any person with an offence referred to in Schedule 5 or 6, the Director of Public Prosecutions may, irrespective of what charge is noted on the charge sheet, at any time before such person pleads to the charge, issue a written confirmation to the effect that he or she intends to charge the accused with an offence referred to in Schedule 5 or 6.

 

(b)     The written confirmation shall be handed in at the court in question by the prosecutor as soon as possible after the issuing thereof and forms part of the record of that court.

 

(c)      Whenever the question arises in a bail application or during bail proceedings whether any person is charged or is to be charged with an offence referred to in Schedule 5 or 6, a written confirmation issued by a Director of Public Prosecutions under paragraph (a) shall, upon its mere production at such application or proceedings, be prima facie proof of the charge to be brought against that person.

[S 60(11A) inserted by s 4(g) of Act 85 of 1997, substituted by s 4(g) of Act 12 of 2021 with effect from 5 August 2022.]

 

(11B)

(a)     In bail proceedings, the accused, or his or her legal adviser, is compelled to inform the court whether—

 

(i)      the accused has previously been convicted of any offence;

 

(ii)      there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges;

 

(iii)     an order contemplated in section 5 or 6 of the Domestic Violence Act, 1998, section 3 or 9 of the Protection from Harassment Act, 2011, or any similar order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, and whether such an order is still of force; and

 

(iv)     the accused is, or was at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998.

[S 60(11B)(a) substituted by s 4(h) of Act 12 of 2021 with effect from 5 August 2022.]

 

(b)     Where the legal adviser of an accused on behalf of the accused submits the information contemplated in paragraph (a), whether in writing or orally, the accused shall be required by the court to declare whether he or she confirms such information or not.

 

(c)      The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.

 

(d)     An accused who wilfully—

 

(i)      fails or refuses to comply with the provisions of paragraph (a); or

 

(ii)      furnishes the court with false information required in terms of paragraph (a),

 

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

[S 60(11B) inserted by s 4(g) of Act 85 of 1997.]

 

(12)  

(a)     The court may make the release of an accused on bail subject to conditions which, in the court's          opinion, are in the interests of justice: Provided that the interests of justice should be interpreted         to include, but not be limited to, the safety of any person against whom the offence in question   has allegedly been committed.

 

          (b)     If the court is satisfied that the interests of justice permit the release of an accused on bail as     provided for in subsection (1), in respect of an offence that was allegedly committed by the       accused against any person in a domestic relationship, as defined in section 1 of the Domestic          Violence Act, 1998, with the accused, and a protection order as contemplated in that Act has     not been issued against the accused, the court must, after holding an enquiry, issue a protection order referred to in section 6 of that Act against the accused, where after the    provisions of that Act shall apply.

[S 60(12) substituted by s 4(i) of Act 12 of 2021 with effect from 5 August 2022.]

 

(13)   The court releasing an accused on bail in terms of this section, may order that the accused—

 

(a)     deposit with the clerk of any magistrate’s court or the registrar of any High Court, as the case may be, or with a correctional official at the prison where the accused is in custody or with a police official at the place where the accused is in custody, the sum of money determined by the court in question; or

 

(b)     shall furnish a guarantee, with or without sureties, that he or she will pay and forfeit to the State the amount that has been set as bail, or that has been increased or reduced in terms of section 63(1), in circumstances in which the amount would, had it been deposited, have been forfeited to the State.

[S 60(13) substituted by s 9(b) of Act 66 of 2008.]

 

(14)   Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in or forms part of a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided that this 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 purposes of his or her trial.

[S 60 amended by s 2 of Act 56 of 1979, s 2 of Act 64 of 1982; substituted by s 3 of Act 75 of 1995; s 60(14) inserted by s 4(h) of Act 85 of 1997; amended by s 5(b) of Act 34 of 1998.]

 

61.     ...

[S 61 repealed by s 4 of Act 75 of 1995.]

 

62.     Court may add further conditions of bail

 

Any court before which a charge is pending in respect of which bail has been granted, may at any stage, whether the bail was granted by that court or any other court, on application by the prosecutor, add any further condition of bail—

 

(a)     with regard to the reporting in person by the accused at any specified time and place to any specified person or authority;

 

(b)     with regard to any place to which the accused is forbidden to go;

 

(c)      with regard to the prohibition of or control over communication by the accused with witnesses for the prosecution;

 

(d)     with regard to the place at which any document may be served on him under this Act;

 

(e)     which, in the opinion of the court, will ensure that the proper administration of justice is not placed in jeopardy by the release of the accused.

 

(f)      which provides that the accused shall be placed under the supervision of a probation officer or a correctional official.

[S 62(f) inserted by s 38 of Act 122 of 1991 with effect from 15 August 1991 in the Magisterial Districts of Pretoria and Wonderboom; with effect from 20 March 1992 in the Magisterial Districts of Bellville, Brits, Bronkhorstspruit, Cullinan, Goodwood, The Cape, Kuils River, Mitchells Plain, Simon’s Town, Soshanguve, Warmbaths and Wynberg; with effect from 1 August 1992 in the Magisterial Districts of Adelaide, Albany, Alexandria, Barkly West, Bathurst, Bedford, Bloemfontein, Boshof, Bothaville, Botshabelo, Brandfort, Caledon, Calitzdorp, Camperdown, Ceres, Chatsworth, Durban, East London, Fort Beaufort, George, Groblersdal, Hankey, Hennenman, Herbert, Humansdorp, Inanda, Jacobsdal, Kimberley, King William’s Town, Kirkwood, Klerksdorp, Knysna, Komga, Koppies, Kroonstad, Ladismith (C), Laingsburg, Lindley, Lydenburg, Malmesbury, Middelburg (T), Montagu, Mossel Bay, Moutse, Nelspruit, Oberholzer, Odendaalsrus, Oudtshoorn, Paarl, Parys, Pilgrim’s Rest, Petrusburg, Pietermaritzburg, Pinetown, Port Elizabeth, Potchefstroom, Robertson, Somerset West, Stellenbosch, Strand, Sutherland, Tulbagh, Uitenhage, Uniondale, Vanderbijlpark, Ventersdorp, Vereeniging, Viljoenskroon, Vredefort, Warrenton, Welkom, Wellington, Witbank, White River and Worcester; with effect from 1 October 1992 in the Magisterial Districts of Alberton, Barberton, Belfast, Benoni, Bergville, Bethal, Bethlehem, Bloemhof, Boksburg, Brakpan, Carolina, Coligny, Cradock, Delmas, Dundee, Eshowe, Estcourt, Frankfort, Germiston, Glencoe, Gordonia, Graaff­Reinet, Harrismith, Heidelberg (T), Heilbron, Highveld Ridge, Hofmeyr, Hoopstad, Jansenville, Johannesburg, Kempton Park, Klip River, Koster, Kranskop, Kriel, Krugersdorp, Letaba, Lichtenburg, Lions River, Lower Tugela, Lower Umfolozi, Marico, Mooi River, Mtonjaneni, Mtunzini, New Hanover, Nigel, Pearston, Pietersburg, Randburg, Roodepoort, Rustenburg, Sasolburg, Senekal, Somerset East, Springs, Steytlerville, Swartruggens, Umvoti, Ventersburg and Wolmaransstad; with effect from 1 November 1992 in the Magisterial Districts of Aberdeen, Clanwilliam, Ellisras, Fouriesburg, Messina, Namakwaland, Potgietersrus, Schweizer-Reneke, Soutpansberg, Standerton, Thabazimbi, Virginia, Vredenburg, Vredendal, Walvis Bay, Waterberg, Waterval-Boven and Wesselsbron; with effect from 1 December 1992 in the Magisterial Districts of Aliwal North, Beaufort West, Cathcart, Clocolan, Edenburg, Ermelo, Ficksburg, Fraserburg, Ladybrand, Port Shepstone, Queenstown, Reddersburg. Reitz, Smithfield, Sterkstroom, Stutterheim, Tarkastad, Umzinto, Wepener, Winburg and Zastron; with effect from 1 February 1993 in the Magisterial Districts of Amersfoort, Barkly East, Bethulie, Britstown, Carnarvon, Colesberg, De Aar, Delareyville, Elliot, Fauresmith, Hanover, Hopetown, Indwe, Kenhardt, Koffiefontein, Kuruman, Maclear, Phalaborwa, Philipstown, Postmasburg, Prieska, Prince Albert, Randfontein, Richmond (C), Trompsburg, Victoria West, Vryburg, Westonaria and Wodehouse; with effect from 1 April 1993 in the Magisterial Districts of Balfour, Ixopo, Joubertina, Mount Currie, Piet Retief, Richmond (N), Wakkerstroom and Willowmore and with effect from 1 May 1993 in the Magisterial Districts of Bredasdorp, Heidelberg (C), Hermanus, Middelburg (C), Molteno, Newcastle, Paulpietersburg, Riversdale, Steynsburg, Swellendam, Utrecht, Volksrust and Vryheid.]

 

63.     Amendment of conditions of bail

 

(1)     Any court before which a charge is pending in respect of which bail has been granted may, upon the application of the prosecutor or the accused, increase or reduce the amount of bail determined under section 59 or 60 or amend or supplement any condition imposed under section 60 or 62, whether imposed by that court or any other court, and may, where the application is made by the prosecutor and the accused is not present when the application is made, issue a warrant for the arrest of the accused and, when the accused is present in court, determine the application.

[S 63(1) substituted by s 5 of Act 75 of 1995.]

 

(2)     If the court referred to in subsection (1) is a superior court, an application under that subsection may be made to any judge of that court if the court is not sitting at the time of the application.

 

63A.  Release or amendment of bail conditions of accused on account of prison conditions

 

(1)     If a Head of Prison contemplated in the Correctional 2 Services Act, 1998 (Act 111 of 1998), is satisfied that the prison population of a particular prison is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused—

 

(a)     who is charged with an offence falling within the category of offences—

 

(i)      for which a police official may grant bail in terms of section 59; or

 

(ii)      referred to in Schedule 7;

 

(b)     who has been granted bail by any lower court in respect of that offence, but is unable to pay the amount of bail concerned; and

 

(c)      who is not also in detention in respect of any other offence falling outside the category of offences referred to in paragraph (a),

 

that Head of Prison may apply to the said court for the—

 

(aa)    release of the accused on warning in lieu of bail; or

 

(bb)    amendment of the bail conditions imposed by that court on the accused.

 

(2)

(a)     An application contemplated in subsection (1) must be lodged in writing with the clerk of the court, and must—

 

(i)      contain an affidavit or affirmation by the Head of Prison to the effect that he or she is satisfied that the prison population of the prison concerned is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of the accused concerned; and

 

(ii)      contain a written certificate by the Director of Public Prosecutions concerned, or a prosecutor authorised thereto by him or her in writing, to the effect that the prosecuting authority does not oppose the application.

 

(b)     The accused and his or her legal representative, if any, must be notified of an application referred to in subsection (1).

 

(c)      The clerk of the court must, without delay, cause the application to be placed before any magistrate or regional magistrate, as the case may be, who may consider the application in chambers.

 

(d)     The application may be considered in the presence of the accused if the magistrate or regional magistrate deems it necessary.

 

(3)

(a)     If the magistrate or regional magistrate is satisfied that the application complies with the requirements set out in subsection (2)(a), he or she may—

 

(i)      order the release of the accused from custody and, if the accused is present, warn him or her to appear before a specified court at a specified time on a specified date in connection with such offence or, as the case may be, to remain in attendance at the proceedings relating to the offence in question, and the court may, at the time of such order or at any time thereafter, impose any condition referred to in section 62 in connection with such release; or

 

(ii)      reduce the amount of bail determined under section 60 and, if deemed appropriate, amend or supplement any condition imposed under section 60 or 62.

 

(b)     If the accused is absent when an order referred to in paragraph (a)(i) is made or when bail conditions are amended in terms of paragraph (a)(ii), a correctional official duly authorised by the Head of the prison where the accused is in custody must—

 

(i)      hand to the accused a certified copy of the said order or of the bail conditions as amended and explain to the accused the import thereof; and

 

(ii)      return to the clerk of the court a certificate under the hand of that official and signed by the accused, that he or she has handed the certified copy of such order or conditions to the accused and that he or she has explained to the accused the import thereof,

 

and the mere production to the court of the said certificate shall be prima facie proof that the said certified copy was handed and explained to the accused.

 

(c)      The provisions of section 72(2)(a) apply, with the necessary changes, in respect of an accused released in terms of paragraph (a)(i).

 

(4)

(a)     The National Director of Public Prosecutions may, in consultation with the Commissioner of Correctional Services, issue directives regarding—

 

(i)      the establishment of monitoring and consultative mechanisms for bringing an application contemplated in subsection (1); and

 

(ii)      the procedure to be followed by a Head of Prison and a Director of Public Prosecutions whenever it appears that it is necessary to bring an application contemplated in subsection (1).

 

(b)     Any directives issued in terms of paragraph (a) must be submitted to Parliament before they take effect.

[S 63A inserted by s 6 of Act 42 of 2001.]

 

64.     Proceedings with regard-to bail and conditions to be recorded in full

 

The court dealing with bail proceedings as contemplated in section 50(6) or which considers bail under section 60 or which imposes any further condition under section 62 or which, under section 63 or 63A, amends the amount of bail or amends or supplements any condition or refuses to do so, shall record the relevant proceedings in full, including the conditions imposed and any amendment or supplementation thereof, or shall cause such proceedings to be recorded in full, and where such court is a magistrate’s court or a regional court, any document purporting to be an extract from the record of proceedings of that court and purporting to be certified as correct by the clerk of the court, and which sets out the conditions of bail and any amendment or supplementation thereof, shall, on its mere production in any court in which the relevant charge is pending, be prima facie proof of such conditions or any amendment or supplementation thereof.

[S 64 substituted by s 6 of Act 75 of 1995, s 5 of Act 85 of 1997, s 7 of Act 42 of 2001.]

 

65.     Appeal to superior court with regard to bail

 

(1)

(a)     An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the imposition by such court of a condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to the superior court having jurisdiction or to any judge of that court if the court is not then sitting.

 

(b)     The appeal may be heard by a single judge.

 

(c)      A local division of the Supreme Court shall have jurisdiction to hear an appeal under paragraph (a) if the area of jurisdiction of the lower court in question or any part thereof falls within the area of jurisdiction of such local division.

 

(2)     An appeal shall not lie in respect of new facts which arise or are discovered after the decision against which the appeal is brought, unless such new facts are first placed before the magistrate or regional magistrate against whose decision the appeal is brought and such magistrate or regional magistrate gives a decision against the accused on such new facts.

 

(3)     The accused shall serve a copy of the notice of appeal on the Attorney-General and on the magistrate or, as the case may be, the regional magistrate, and the magistrate or regional magistrate shall forthwith furnish the reasons for his decision to the court or judge, as the case may be.

 

(4)     The court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court or judge is satisfied that the decision was wrong, in which event the court or judge shall give the decision which in its or his opinion the lower court should have given.

 

65A.  Appeal by Attorney-General against decision of court to release accused on bail

 

(1)

(a)     The Attorney-General may appeal to the superior court having jurisdiction, against the decision of’ a lower court to release an accused on bail or against the imposition of a condition of bail as contemplated in section 65(1)(a).

 

(b)     The provisions of section 310A in respect of an application or appeal referred to in that section by an Attorney-General, and the provisions of section 65(1)(b) and (c) and (2), (3) and (4) in respect of an appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the Attorney-General appeals in terms of paragraph (a) of this subsection.

 

(2)

(a)     The Attorney-General may appeal to the Appellate Division against a decision of a superior court to release an accused on bail.

 

(b)     The provisions of section 316 in respect of an application or appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the Attorney‑General appeals in terms of paragraph (a) of this subsection.

 

(c)      Upon an appeal in terms of paragraph (a) or an application referred to in paragraph (b) brought by an Attorney-General, the court may order that the State pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of that court.

 

(3)     If the appeal of the Attorney-General in terms of subsection (1)(a) or (2)(a) is successful, the court hearing the appeal shall issue a warrant for the arrest of the accused.

[S 65A inserted by s 7 of Act 75 of 1995.]

 

66.     Failure by accused to observe condition of bail

 

(1)     If an accused is released on bail subject to any condition imposed under section 60 or 62, including any amendment or supplementation under section 63 of a condition of bail, and the prosecutor applies to the court before which the charge with regard to which the accused has been released on bail is pending, to lead evidence to prove that the accused has failed to comply with such condition, the court shall, if the accused is present and denies that he or she failed to comply with such condition or that his or her failure to comply with such condition was due to fault on his or her part, proceed to hear such evidence as the prosecutor and the accused may place before it.

[S 66(1) substituted by s 8 of Act 75 of 1995.]

 

(2)     If the accused is not present when the prosecutor applies to the court under subsection (1), the court may issue a warrant for the arrest of the accused, and shall, when the accused appears before the court and denies that he failed to comply with the condition in question or that his failure to comply with such condition was due to fault on his part, proceed to hear such evidence as the prosecutor and the accused may place before it.

 

(3)     If the accused admits that he failed to comply with the condition in question or if the court finds that he failed to comply with such condition, the court may, if it finds that the failure by the accused was due to fault on his part, cancel the bail and declare the bail money forfeited to the State.

 

(4)     The proceedings and the evidence under this section shall be recorded.

 

67.     Failure of accused on bail to appear

 

(1)     If an accused who is released on bail—

 

(a)     fails to appear at the place and on the date and at the time—

 

(i)      appointed for his trial; or

 

(ii)      to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned; or

 

(b)     fails to remain in attendance at such trial or at such proceedings,

 

the court before which the matter is pending shall declare the bail provisionally cancelled and the bail money provisionally forfeited to the State, and issue a warrant for the arrest of the accused.

 

(2)

(a)     If the accused appears before court within 14 days of the issue under subsection (1) of the warrant of arrest, the court shall confirm the provisional cancellation of the bail and the provisional forfeiture of the bail money, unless the accused satisfies the court that his failure under subsection (1) to appear or to remain in attendance was not due to fault on his part.

 

(b)     If the accused satisfies the court that his failure was not due to fault on his part, the provisional cancellation of the bail and the provisional forfeiture of the bail money shall lapse.

 

(c)      If the accused does not appear before court within 14 days of the issue under subsection (1) of the warrant of arrest or within such extended period as the court may on good cause determine, the provisional cancellation of the bail and the provisional forfeiture of the bail money shall become final.

 

(3)     The court may receive such evidence as it may consider necessary to satisfy itself that the accused has under subsection (1) failed to appear or failed to remain in attendance, and such evidence shall be recorded.

 

67A.  Criminal liability of a person who is on bail on the ground of failure to appear or to comply with a condition of bail

 

Any person who has been released on bail and who fails, without good cause to appear on the date and at the place determined for his or her appearance, or to remain in attendance until the proceeding in which he or she must appear have been disposed of, or who fails without good cause to comply with a condition of bail imposed by the court in terms of section 60 or 62, including an amendment or supplementation thereof in terms of section 63, shall be guilty of an offence and shall on conviction be liable to a fine or to imprisonment not exceeding one year.

[S 67A inserted by s 9 of Act 75 of 1995.]

 

68.     Cancellation of bail

 

(1)     Any court before which a charge is pending in respect of which bail has been granted may, whether     the accused has been released or not, upon information on oath that—

 

(a)     the accused is about to evade justice or is about to abscond in order to evade justice;

 

(b)     the accused has interfered or threatened or attempted to interfere with witnesses;

 

(c)      the accused has defeated or attempted to defeat the ends of justice;

 

(cA)   the accused has contravened any prohibition, condition, obligation or order imposed in terms     of—

 

(i)      section 7 of the Domestic Violence Act, 1998;

 

(ii)      section 10 (1) and (2) of the Protection from Harassment Act, 2011; or

 

(iii)     an order in terms of any other law,

 

that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused;

 

(d)     the accused poses a threat to the safety of the public, a person against whom the offence in question was allegedly committed, or any other particular person;

 

(e)     the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail proceedings or where his or her true list of previous convictions has come to light after his or her release on bail;

 

(eA)   the accused has not disclosed that—

 

(i)      a protection order as contemplated in section 5 or 6 of the Domestic Violence Act, 1998;

 

(ii)      a protection order as contemplated in section 3 or 9 of the Protection from Harassment Act,       2011; or

 

(iii)     an order in terms of any other law,

 

was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused and whether such an order is still of force;

 

(eB)   the accused has not disclosed or correctly disclosed that he or she is or was, at the time of the alleged commission of the offence, a sentenced offender who has been placed under   correctional supervision, day parole, parole or medical parole as contemplated in section 73 of   the Correctional Services Act, 1998;

 

(f)      further evidence has since become available or factors have arisen, including the fact that the    accused has furnished false information in the bail proceedings, which might have affected the decision to grant bail; or

 

          (g)     it is in the interests of justice to do so,

 

issue a warrant for the arrest of the accused and make such order as it may deem proper, including an order that the bail be cancelled and that the accused be committed to prison until the conclusion of the relevant criminal proceedings.

 

(2)     Any magistrate may, in circumstances in which it is not practicable to obtain a warrant of arrest under subsection (1), upon the application of any peace officer and upon a written statement on oath by such officer that—

 

(a)     he or she has reason to believe that—

 

(i)      an accused who has been released on bail is about to evade justice or is about to abscond in order to evade justice;

 

(ii)      the accused has interfered or threatened or attempted to interfere with witnesses;

 

(iii)     the accused has defeated or attempted to defeat the ends of justice; or

 

(iv)     the accused poses a threat to the safety of the public, any person against whom the offence in question was allegedly committed, or any other particular person;

 

(b)     the accused has not disclosed or has not correctly disclosed all his or her previous convictions   in the bail proceedings or where his or her true list of previous convictions has come to light      after his or her release on bail;

 

(c)      further evidence has since become available or factors have arisen, including the fact that the    accused has furnished false information in the bail proceedings, which might have affected the decision to release the accused on bail;

 

          (d)     the accused has contravened any prohibition, condition, obligation or order imposed in terms     of—

 

(i)      section 7 of the Domestic Violence Act, 1998;

 

(ii)      section 10 (1) and (2) of the Protection from Harassment Act, 2011; or

 

(iii)     an order in terms of any other law,

 

that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused;

 

(e)     the accused has not disclosed or correctly disclosed that he or she is or was at the time of the    alleged commission of the offence, a sentenced offender who has been placed under   correctional supervision, day parole, parole or medical parole as contemplated in section 73 of   the Correctional Services Act, 1998;

 

(f)      the accused has not disclosed that—

 

(i)      a protection order as contemplated in section 5 or 6 of the Domestic Violence Act, 1998;

 

(ii)      a protection order as contemplated in section 3 or 9 of the Protection from Harassment     Act, 2011; or

 

(iii)     an order in terms of any other law,

 

was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused and whether such an order is still of force; or

 

(g)     it is in the interests of justice to do so,

 

issue a warrant for the arrest of the accused, and may, if satisfied that the ends of justice may be defeated if the accused is not placed in custody, cancel the bail and commit the accused to prison, which committal shall remain of force until the conclusion of the relevant criminal proceedings unless the court before which the proceedings are pending sooner reinstates the bail.

[S 68 substituted by s 10 of Act 75 of 1995, s 6 of Act 85 of 1997, s 5 of Act 12 of 2021 with effect from 5 August 2022.]

 

68A.  Cancellation of bail at request of accused

 

Any court before which a charge is pending in respect of which the accused has been released on bail may, upon application by the accused, cancel the bail and refund the bail money if the accused is in custody on any other charge or is serving a sentence.

[S 68A inserted by s 15 of Act 59 of 1983.]

 

69.     Payment of bail money by third person

 

(1)     No provision of section 59 or 60 shall prevent the payment by any person, other than the accused, of bail money for the benefit of the accused

 

(2)     Bail money, whether deposited by an accused or any other person for the benefit of the accused, shall, notwithstanding that such bail money or any part thereof may have been ceded to any person, be refunded only to the accused or the depositor, as the case may be.

 

(3)     No person shall be allowed to deposit for the benefit of an accused any bail money in terms of this section if the official concerned has reason to believe that such person, at any time before or after depositing such bail money, has been indemnified or will be indemnified by any person in any manner against loss of such bail money or that he has received or will receive any financial benefit in connection with the deposit of such bail money.

 

70.     Remission of bail money

 

The Minister or any officer acting under his or her authority or the court concerned may remit the whole or any part of any bail money forfeited under section 66 or 67.

[S 70 substituted by s 11 of Act 75 of 1995.]

 

71.     ...

[S 71 substituted by s 4 of Act 26 of 1987, s 39 of Act 122 of 1991 with effect from 15 August 1991 in the Magisterial Districts of Pretoria and Wonderboom; with effect from 20 March 1992 in the Magisterial Districts of Bellville, Brits, Bronkhorstspruit, Cullinan, Goodwood, The Cape, Kuils River, Mitchells Plain, Simon’s Town, Soshanguve, Warmbaths and Wynberg and with effect from 1 February 1993 in respect of the remainder of the Magisterial Districts; repealed by s 99(1) of Act 75 of 2008.]

 

CHAPTER 10

RELEASE ON WARNING

 

72.     Accused may be released on warning in lieu of bail

 

(1)     Subject to section 4(2) of the Child Justice Act, 2008, if an accused who is 18 years or older is in custody in respect of any offence and a police official or a court may in respect of such offence release the accused on bail under section 59 or 60, as the case may be, such police official or such court, as the case may be, may, in lieu of bail and if the offence is not, in the case of such police official, an offence referred to in Part II or Part III of Schedule 2—

[Words preceding s 72(1)(a) substituted by s 5 of Act 26 of 1987, s 2 of Act 126 of 1992, s 99(1) of Act 75 of 2008.]

 

(a)     release the accused from custody and warn him to appear before a specified court at a specified time on a specified date in connection with such offence or, as the case may be, to remain in attendance at the proceedings relating to the offence in question, and the said court may, at the time of such release or at any time thereafter, impose any condition referred to in section 62 in connection with such release;

[S 72(1)(a) substituted by s 7(a) of Act 33 of 1986.]

 

(b)     ...

[S 72(1)(b) substituted by s 7(b) of Act 33 of 1986; repealed by s 99(1) of Act 75 of 2008.]

 

 

(2)

(a)     An accused who is released under subsection (1)(a) and who fails to appear or, as the case may be, to remain in attendance at the proceedings in accordance with a warning under that paragraph, or who fails to comply with a condition imposed under subsection (1)(a), shall be guilty of an offence and liable to the punishment prescribed under subsection (4).

 

(b)     ...

[S 72(2) substituted by s 7(c) of Act 33 of 1986; s 72(2)(b) repealed by s 99(1) of Act 75 of 2008.]

 

 

(3)

(a)     A police official who releases an accused under subsection (1)(a) shall, at the time of releasing the accused, complete and hand to the accused and, in the case of subsection (1)(b), to the person in whose custody the accused is, a written notice on which shall be entered the offence in respect of which the accused is being released and the court before which and the time at which and the date on which the accused shall appear.

 

(b)     A court which releases an accused under subsection (1) shall, at the time of releasing the accused, record or cause the relevant proceedings to be recorded in full, and where such court is a magistrate’s court or a regional court, any document purporting to be an extract from the record of proceedings of that court and purporting to be certified as correct by the clerk of the court which sets out the warning relating to the court before which, the time at which and the date on which the accused is to appear, or the conditions on which he was released, shall, on its mere production in any court in which the relevant charge is pending be prima facie proof of such warning.

[S 72(3)(b) substituted by s 7(d) of Act 33 of 1986.]

 

(4)     The court may, if satisfied that an accused referred to in subsection (2)(a) or a person referred to in subsection (2)(b), was duly warned in terms of paragraph (a) or, as the case may be, paragraph (b) of subsection (1), and that such accused or such person has failed to comply with such warning or to comply with a condition imposed, issue a warrant for his arrest, and may, when he is brought before the court, in a summary manner enquire into his failure and, unless such accused or such person satisfies the court that his failure was not due to fault on his part, sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months

[S 72(4) substituted by s 7(e) of Act 33 of 1986.]

 

S 72(4) Declaration of Unconstitutionality S v Singo (CCT49/01) [2002] ZACC 10; 2002 (4) SA 858; 2002 (8) BCLR 793   On 12 June 2002  the Constitutional Court ordered that the omission from section 72(4) of the Criminal Procedure Act 51 of 1977, between the words “that” and “his failure” of the words “there is a reasonable possibility that”, is declared to be inconsistent with the Constitution.   Section 72(4) of the Criminal Procedure Act 51 of 1977, is to be read as though the words “there is a reasonable possibility that” appear therein between words “that” and “his failure”.

 

72A.  Cancellation of release on warning

 

Notwithstanding the provisions of section 72(4), the provisions of section 68(1) and (2) in respect of an accused who has been granted bail, are, with the necessary changes, applicable in respect of an accused who has been released on warning.

[S 72A inserted by s 7 of Act 85 of 1997.]

 

CHAPTER 11

ASSISTANCE TO ACCUSED

 

73.     Accused entitled to assistance after arrest and at criminal proceedings

 

(1)     An accused who is arrested, whether with or without warrant, shall, subject to any law relating to the management of prisons, be entitled to the assistance of his legal adviser as from the time of his arrest.

 

(2)     An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in question.

 

(2A)   Every accused shall—

 

(a)     at the time of his or her arrest;

 

(b)     when he or she is served with a summons in terms of section 54;

 

(c)      when a written notice is handed to him or her in terms of section 56;

 

(d)     when an indictment is served on him or her in terms of section 144(4)(a);

 

(e)     at his or her first appearance in court,

 

be informed of his or her right to be represented at his or her own expense by a legal adviser of his or her own choice and if he or she cannot afford legal representation, that he or she may apply for legal aid and of the institutions which he or she may approach for legal assistance.

[S 73(2A) inserted by s 2 of Act 86 of 1996.]

 

(2B)   Every accused shall be given a reasonable opportunity to obtain legal assistance.

[S 73(2B) inserted by s 2 of Act 86 of 1996.]

 

(2C)   If an accused refuses or fails to appoint a legal adviser of his or her own choice within a reasonable time and his or her failure to do so is due to his or her own fault, the court may, in addition to any order which it may make in terms of section 342A, order that the trial proceed without legal representation unless the court is of the opinion that that would result in substantial injustice, in which event the court may, subject to the Legal Aid South Africa Act, 2014, order that a legal adviser be assigned to 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: Provided further that the accused shall not be compelled to appoint a legal adviser if he or she prefers to conduct his or her own defence.

[S 73(2C) inserted by s 2 of Act 86 of 1996; amended by s 25 of Act 39 of 2014.]

 

(3)     In addition to the provisions of sections 3 (g), 38 (2), 44 (1) (b) and 65 of the Child Justice Act, 2008 (Act 75 of 2008), relating to the assistance of an accused who is under the age of eighteen years by his or her parent, an appropriate person or a guardian at criminal proceedings, any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.

[S 73(3) substituted by s 99(1) of Act 75 of 2008, s 5 of Act 42 of 2013, amended by s 26 of Act 28 of 2019 with effect from 19 August 2022.]

 

74.     ...

[S 74 amended by s 8 of Act 33 of 1986; repealed by s 99(1) of Act 75 of 2008.]

 

CHAPTER 12

SUMMARY TRIAL

 

75.     Summary trial and court of trial

 

(1)     When an accused is to be tried in a court in respect of an offence, he shall, subject to the provisions of sections 119, 122A and 123, be tried at a summary trial in—

 

(a)     a court which has jurisdiction and in which he appeared for the first time in respect of such offence in accordance with any method referred to in section 38;

 

(b)     a court which has jurisdiction and to which he was referred to under subsection (2); or

 

(c)      any other court which has jurisdiction and which has been designated by the Attorney-General or any person authorised thereto by the Attorney-General, whether in general or in any particular case, for the purpose of such summary trial.

[S 75(1)(c) substituted by s 9 of Act 33 of 1986.]

 

(2)    

(a)     If an accused appears in a court which does not have jurisdiction to try the case, the accused shall at the request of the prosecutor be referred to a court having jurisdiction.

[S 75(2) renumbered as 75(2)(a) by s 3 of Act 86 of 1996.]

 

(b)     If an accused appears in a magistrate’s court and the prosecutor informs the court that he or she is of the opinion that the alleged offence is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court but not of the jurisdiction of a regional court, the court shall if so requested by the prosecutor refer the accused to the regional court for summary trial without the accused having to plead to the relevant charge.

[S 75(2)(b) inserted by s 3 of Act 86 of 1996.]

 

(3)     The court before whom an accused appears for the purposes of a bail application shall, at the conclusion of the bail proceedings or at any stage thereafter, but before the accused has pleaded, refer such accused to a court designated by the prosecutor for purposes of trial.

[S 75 substituted by s 3 of Act 56 of 1979; s 75(3) inserted by s 7 of Act 85 of 1997.]

 

76.     Charge-sheet and proof of record of criminal case

 

(1)     Unless an accused has been summoned to appear before the court, the proceedings at a summary trial in a lower court shall be commenced by lodging a charge-sheet with the clerk of the court, and, in the case of a superior court, by serving an indictment referred to in section 144 on the accused and the lodging thereof with the registrar of the court concerned.

 

(2)     The charge-sheet shall in addition to the charge against the accused include the name and, where known and where applicable, the address and description of the accused with regard to sex, nationality and age.

[S 76(2) substituted by s 13 of Act 139 of 1992.]

 

(3)

(a)     The court shall keep a record of the proceedings, whether in writing or mechanical, or shall cause such record to be kept, and the charge-sheet, summons or indictment shall form part thereof.

 

(b)     Such record may be proved in a court by the mere production thereof or of a copy thereof in terms of section 235.

 

(c)      Where the correctness of any such record is challenged, the court in which the record is challenged may, in order to satisfy itself whether any matter was correctly recorded or not, either orally or on affidavit hear such evidence as it may deem necessary.

 

CHAPTER 13

ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS: MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY

 

77.     Capacity of accused to understand proceedings

 

(1)     If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or intellectual disability 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.

[S 77(1) substituted by s 1(a) of Act 4 of 2017.]

 

(1A)   At proceedings in terms of sections 77(1) and 78(2) the court may, if it is of the opinion that substantial injustice would otherwise result, order that the accused be provided with the services of a legal practitioner in terms of section 22 of the Legal Aid South Africa Act, 2014.

[S 77(1A) inserted by s 3(a) of Act 68 of 1998; amended by s 25 of Act 39 of 2014.]

 

(2)     If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the mental condition of the accused and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence.

 

(3)     If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused.

 

(4)     Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 has enquired into the mental condition of the accused.

 

(5)     If the court finds that the accused is capable of understanding the proceedings so as to make a proper defence, the proceedings shall be continued in the ordinary way.

 

(6)    

(a)     If the court which has jurisdiction in terms of section 75 to try the case, finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court may, if it is of the opinion that it is in the interests of the accused, taking into account the nature of the accused’s incapacity contemplated in subsection (1), and unless it can be proved on a balance of probabilities that, on the limited evidence available the accused committed the act in question, order that such information or evidence be placed before the court as it deems fit so as to determine whether the accused has committed the act in question and the court may direct that the accused—

 

(i)      in the case of a charge of murder or culpable homicide or rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or a charge involving serious violence or if the court considers it to be necessary in the public interest, where the court finds that the accused has committed the act in question, or any other offence involving serious violence, be—

 

(aa)   detained in a psychiatric hospital;

 

(bb)   temporarily detained in a correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital and be transferred where a bed becomes available, if the court is of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to himself or herself or to members of the public,

 

pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002; or

 

(cc)    admitted to and detained in a designated health establishment stated in the order as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002;

 

(dd)   released subject to such conditions as the court considers appropriate; or

 

(ee)   referred to a Children's Court as contemplated in section 64 of the Child Justice Act, 2008 (Act 75 of 2008), and pending such referral be placed in the care of a parent, guardian or other appropriate person or, failing that, placed in temporary safe care as defined in section 1 of the Children's Act, 2005 (Act 38 of 2005); or

[S 77(6)(a)(i)(ee) amended by s 26 of Act 28 of 2019 with effect from 19 August 2022.]

 

(ii)      in the case where the court finds that the accused has committed an offence other than one contemplated in subparagraph (i) or that he or she has not committed any offence be—

 

(aa)   admitted to and detained in a designated health establishment stated in the order as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002;

 

(bb)   released subject to such conditions as the court considers appropriate;

 

(cc)    released unconditionally; or

 

(dd)   referred to a Children's Court as contemplated in section 64 of the Child Justice Act, 2008, and pending such referral be placed in the care of a parent, guardian or other appropriate person or, failing that, placed in temporary safe care as defined in section 1 of the Children's Act, 2005,

[S 77(6)(a)(ii)(dd) amended by s 26 of Act 28 of 2019 with effect from 19 August 2022.]

 

and if the court so directs after the accused has pleaded to the charge, the accused shall not be entitled under section 106(4) to be acquitted or to be convicted in respect of the charge in question.

 

(b)     If the court makes a finding in terms of paragraph (a) after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside, and if the accused has pleaded guilty it shall be deemed that he or she has pleaded not guilty.

[S 77(6) substituted by s 10 of Act 33 of 1986; amended by s 9 of Act 51 of 1991, s 42(a) of Act 129 of 1993, s 3(b) of Act 68 of 1998, s 12 of Act 55 of 2002; substituted by s 68 of Act 32 of 2007, s 1(b) of Act 4 of 2017.]

 

(7)     Where a direction is issued in terms of subsection (6) or (9), the accused may at any time thereafter, when he is capable of understanding the proceedings so as to make a proper defence, be prosecuted and tried for the offence in question.

[S 77(7) amended by s 9 of Act 51 of 1991; substituted by s 42(b) of Act 129 of 1993, s 3(c) of Act 68 of 1998.]

 

(8)

(a)     An accused against whom a finding is made—

 

(i)      under subsection (5) and who is convicted;

 

(ii)      under subsection (6) and against whom the finding is not made in consequence of an allegation by the accused under subsection (1),

 

may appeal against such finding.

 

(b)     Such an appeal shall be made in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence.

 

(9)     Where an appeal against a finding in terms of subsection (5) is allowed, the court of appeal shall set aside the conviction and sentence and remit the case to the court which made the finding, whereupon that court must deal with the person concerned in accordance with the provisions of subsection (6).

[S 77(9) amended by s 9 of Act 51 of 1991; substituted by s 42(c) of Act 129 of 1993, s 3(d) of Act 68 of 1998, s 1(c) of Act 4 of 2017.]

 

(10)   Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the direction issued under that subsection and remit the case to the court which made the finding, whereupon the relevant proceedings shall be continued in the ordinary way

 

78.     Mental illness or intellectual disability and criminal responsibility

[S 78 heading substituted by s 2(a) of Act 4 of 2017.]

 

(1)     A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or intellectual disability which makes him or her incapable—

[Words preceding s 78(1)(a) substituted by s 2(b) of Act 4 of 2017.]

 

(a)     of appreciating the wrongfulness of his or her act or omission; or

 

(b)     of acting in accordance with an appreciation of the wrongfulness of his or her act or omission,

 

shall not be criminally responsible for such act or omission.

[S 78(1) substituted by s 5(a) of Act 68 of 1998, s 2(b) of Act 4 of 2017.]

 

(1A)   Every person is presumed not to suffer from a mental illness or intellectual disability so as not to be criminally responsible in terms of section 78(1), until the contrary is proved on a balance of probabilities.

[S 78(1A) inserted by s 5(b) of Act 68 of 1998, s 2(c) of Act 4 of 2017.]

 

(1B)   Whenever the criminal responsibility of an accused with reference to the commission of an act or an omission which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue.

[S 78(1B) inserted by s 5(b) of Act 68 of 1998.]

 

(2)     If it is alleged at criminal proceedings that the accused is by reason of mental illness or intellectual disability or for any other reason 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 in the case of an allegation or appearance of mental illness or intellectual disability, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.

[S 78(2) substituted by s 5(c) of Act 68 of 1998, s 2(d) of Act 4 of 2017.]

 

(3)     If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence.

 

(4)     If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused.

 

(5)     Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 enquired into the mental condition of the accused.

 

(6)     If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or intellectual disability not criminally responsible for such act—

 

(a)     the court shall find the accused not guilty, or

 

(b)     if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty,

 

by reason of mental illness or intellectual disability, as the case may be, and direct—

 

(i)       in a case where the accused is charged with murder or culpable homicide or rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be—

 

(aa)   detained in a psychiatric hospital;

 

(bb)   temporarily detained in a correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital and be transferred where a bed becomes available, if the court is of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to himself or herself or to members of the public,

 

pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002;

 

(cc)    admitted to and detained in a designated health establishment stated in the order and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002;

 

(dd)   released subject to such conditions as the court considers appropriate;

 

(ee)   released unconditionally; or

 

(ff)     referred to a Children's Court as contemplated in section 64 of the Child Justice Act, 2008, and pending such referral be placed in the care of a parent, guardian or other appropriate person or, failing that, placed in temporary safe care as defined in section 1 of the Children's Act, 2005; or

[S 78(6)(b)(i)(ff) amended by s 26 of Act 28 of 2019 with effect from 19 August 2022.]

 

(ii)      in any other case than a case contemplated in subparagraph (i), that the accused be—

 

(aa)   admitted to and detained in a designated health establishment stated in the order and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002;

 

(bb)   …

 

(cc)    released subject to such conditions as the court considers appropriate; or

 

(dd)   be released unconditionally; or

 

(ee)   referred to a Children's Court as contemplated in section 64 of the Child Justice Act, 2008, and pending such referral be placed in the care of a parent, guardian or other appropriate person or, failing that, placed in temporary safe care as defined in section 1 of the Children's Act, 2005.

[S 78(6)(b)(ii)(ee) amended by s 26 of Act 28 of 2019 with effect from 19 August 2022.]

 

[S 78(6) substituted by s 11 of Act 33 of 1986; amended by s 9 of Act 51 of 1991, s 43 of Act 129 of 1993; substituted by s 5(d) of Act 68 of 1998, s 13 of Act 55 of 2002, s 68 of Act 32 of 2007, s 2(e) of Act 4 of 2017.]

 

(7)     If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or intellectual disability, the court may take the fact of such diminished responsibility into account when sentencing the accused.

[S 78(7) substituted by s 2(f) of Act 4 of 2017.]

 

(8)

(a)     An accused against whom a finding is made under subsection (6) may appeal against such finding if the finding is not made in consequence of an allegation by the accused under subsection (2).

 

(b)     Such an appeal shall be made in the same manner and subject to the same conditions as an· appeal against a conviction by \he court for an offence.

 

(9)     Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the finding and the direction under that subsection and remit the case to the court which made the finding, whereupon the relevant proceedings shall be continued in the ordinary course.

 

79.     Panel for purposes of enquiry and report under sections 77 and 78

 

(1)     Where a court issues a direction under section 77(1) or 78(2), the relevant enquiry shall be conducted and be reported on—

 

(a)     where the accused is charged with an offence other than one referred to in paragraph (b), by the head of the designated health establishment designated by the court, or by another psychiatrist delegated by the head concerned; or

 

(b)     where the accused is charged with murder or culpable homicide or rape or compelled rape as provided for in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or another charge involving serious violence, or if the court considers it to be necessary in the public interest, or where the court in any particular case so directs—

 

(i)      by the head of the designated health establishment, or by another psychiatrist delegated by the head concerned;

 

(ii)      by a psychiatrist appointed by the court;

 

(iii)     by a psychiatrist appointed by the court, upon application and on good cause shown by the accused for such appointment; and

 

(iv)     by a clinical psychologist where the court so directs.

[S 79(1) amended by s 44 of Act 129 of 1993, s 28 of Act 105 of 1997; substituted by s 6(a) of Act 68 of 1998, s 68 of Act 32 of 2007, s 10(a) of Act 66 of 2008, s 3(a) of Act 4 of 2017.]

 

(1A)   The prosecutor undertaking the prosecution of the accused or any other prosecutor attached to the same court shall provide the persons who, in terms of subsection (1), have to conduct the enquiry and report on the accused’s mental condition or mental capacity with a report in which the following are stated, namely—

[Words preceding s 79(1A) substituted by s 3(b) of Act 4 of 2017.]

 

(a)     whether the referral is taking place in terms of section 77 or 78;

 

(b)     at whose request or on whose initiative the referral is taking place;

 

(c)      the nature of the charge against the accused;

 

(d)     the stage of the proceedings at which the referral took place;

 

(e)     the purport of any statement made by the accused before or during the court proceedings that is relevant with regard to his or her mental condition or mental capacity;

 

(f)      the purport of evidence that has been given that is relevant to the accused’s mental condition or mental capacity;

 

(g)     in so far as it is within the knowledge of the prosecutor, the accused’s social background and family composition and the names and addresses of his or her near relatives; and

 

(h)     any other fact that may in the opinion of the prosecutor be relevant in the evaluation of the accused’s mental condition or mental capacity.

[S 79(1A) inserted by s 6(b) of Act 68 of 1998.]

 

(2)    

(a)     The court may for the purposes of the relevant enquiry commit the accused to a psychiatric hospital or to any other place designated by the court, for such periods, not exceeding 30 days at a time, as the court may from time to time determine, and where an accused is in custody when he is so committed, he shall, while he is so committed, be deemed to be in the lawful custody of the person or the authority in whose custody he was at the time of such committal.

[S 79(2) renumbered as 79(2)(a) by s 4 of Act 4 of 1992.]

 

(b)     When the period of committal is for the first time extended under paragraph (a), such extension may be granted in the absence of the accused unless the accused or his legal representative requests otherwise.

[S 79(2)(b) inserted by s 4 of Act 4 of 1992.]

 

(c)      The court may make the following orders after the enquiry referred to in subsection (1) has been conducted—

(i)      postpone the case for such periods referred to in paragraph (a), as the court may from time to time determine;

 

(ii)      refer the accused at the request of the prosecutor to the court referred to in section 77(6) which has jurisdiction to try the case;

 

(iii)     make any other order it deems fit regarding the custody of the accused; or

 

(iv)     any other order.

[S 79(2) amended by s 44 of Act 129 of 1993; s 79(2)(c) inserted by s 6(c) of Act 68 of 1998.]

 

(3)     The relevant report shall be in writing and shall be submitted in triplicate to the registrar or, as the case may be, the clerk of the court in question, who shall make a copy thereof available to the prosecutor and the accused.

 

(4)     The report shall—

 

(a)     include a description of the nature of the enquiry; and

 

(b)     include a diagnosis of the mental condition of the accused; and

 

(c)      if the enquiry is under section 77(1), include a finding as to whether the accused is capable of understanding the proceedings in question so as to make a proper defence; or

 

(d)     if the enquiry is in terms of section 78(2), include a finding as to the extent to which the capacity of the accused to appreciate the wrongfulness of the act in question or to act in accordance with an appreciation of the wrongfulness of that act was, at the time of the commission thereof, affected by mental illness or intellectual disability or by any other cause.

[S 79(4)(d) substituted by s 6(d) of Act 68 of 1998, s 3(c) of Act 4 of 2017.]

 

(5)     If the persons conducting the relevant enquiry are not unanimous in their finding under paragraph (c) or (d) of subsection (4), such fact shall be mentioned in the report and each of such persons shall give his finding on the matter in question.

 

(6)     Subject to the provisions of subsection (7), the contents of the report shall be admissible in evidence at criminal proceedings.

 

(7)     A statement made by an accused at the relevant enquiry shall not be admissible in evidence against the accused at criminal proceedings, except to the extent to which it may be relevant to the determination of the mental condition of the accused, in which event such statement shall be admissible notwithstanding that it may otherwise be inadmissible.

 

(8)     A psychiatrist and a clinical psychologist appointed under subsection (1), other than a psychiatrist and a clinical psychologist appointed for the accused, shall, subject to the provisions of subsection (10), be appointed from the list of psychiatrists and clinical psychologists referred to in subsection (9)(a).

[S 79(8) substituted by s 8(a) of Act 42 of 2001.]

 

(9)     The Director-General: Health shall compile and keep a list of—

 

(a)     psychiatrists and clinical psychologists who are prepared to conduct any enquiry under this section; and

 

(b)     psychiatrists who are prepared to conduct any enquiry under section 286A(3),

 

and shall provide the registrars of the High Courts and all clerks of magistrates’ courts with a copy thereof.

[S 79(9) substituted by s 17 of Act 116 of 1993, s 8(b) of Act 42 of 2001.]

 

(10)   Where the list compiled and kept under subsection (9)(a) does not include a sufficient number of psychiatrists and clinical psychologists who may conveniently be appointed for any enquiry under this section, a psychiatrist and clinical psychologist may be appointed for the purposes of such enquiry notwithstanding that his or her name does not appear on such list.

[S 79(10) substituted by s 8(c) of Act 42 of 2001.]

 

(11)

(a)     A psychiatrist or clinical psychologist designated or appointed under subsection (1) by or at the request of the court to enquire into the mental condition of an accused and who is not in the full‑time service of the State, shall be compensated for his or her services in connection with the enquiry from public funds in accordance with a tariff determined by the Minister in consultation with the Minister of Finance.

 

(b)     A psychiatrist appointed under subsection (1)(b)(iii) for the accused to enquire into the mental condition of the accused and who is not in the full-time service of the State, shall be compensated for his or her services from public funds in the circumstances and in accordance with a tariff determined by the Minister in consultation with the Minister of Finance.

[S 79(11) substituted by s 8(d) of Act 42 of 2001.]

 

(12)   For the purposes of this section a psychiatrist or a clinical psychologist means a person registered as a psychiatrist or a clinical psychologist under the Health Professions Act, 1974 (Act 56 of 1974).

[S 79(12) substituted by s 8(e) of Act 42 of 2001.]

 

(13)   …

[S 79(13) inserted by s 10(b) of Act 66 of 2008; repealed by s 3(d) of Act 4 of 2017.]

 

CHAPTER 14

THE CHARGE

 

80.     Accused may examine charge

 

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

 

81.     Joinder of charges

 

(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)

(a)     The court may, if in its opinion it will be in the interests of justice to do so, direct that an accused be tried separately in respect of any charge joined with any other charge.

 

(b)     An order under paragraph (a) may be made before or during a trial, and the effect thereof shall be that the charge in respect of which an accused is not then tried, shall be proceeded with in all respects as if the accused had in respect thereof been charged separately.

 

82.     Several charges to be disposed of by same court

 

Where an accused is in the same proceedings charged with more than one offence, and anyone charge is for any reason to be disposed of by a regional court or a superior court, all the charges shall be disposed of by the same court in the same proceedings.

 

83.     Charge where it is doubtful what offence committed

 

If by reason of any uncertainty as to the facts which can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences.

 

84.     Essentials of charge

 

(1)     Subject to the provisions of this Act and of any other law relating to any particular offence, a charge shall set forth the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.

 

(2)     Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it shall be sufficient to state that fact in the charge.

 

(3)     In criminal proceedings the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient.

 

85.     Objection to charge

 

(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: Provided that such an objection may not be raised to a charge when he is required in terms of section 119 or 122A to plead thereto in the magistrate’s court; or

[S 85(1)(d) amended by s 14 of Act 139 of 1992.]

 

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

 

Provided that the accused shall give reasonable notice to the prosecution of his intention to object to the charge and shall state the ground upon which he bases his objection: Provided further that the requirement of such notice may be waived by the Attorney-General or the prosecutor, as the case may be, and the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.

 

(2)

(a)     If the court decides that an objection under subsection (1) is well-founded, the court shall make such order relating to the amendment of the charge or the delivery of particulars as it may deem fit.

 

(b)     Where the prosecution fails to comply with an order under paragraph (a), the court may quash the charge.

 

86.     Court may order that charge be amended

 

(1)     Where a charge is defective for the want of any essential averment therein, or where there appears to be any variance between any averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.

 

(2)     The amendment may be made on such terms as to an adjournment of the proceedings as the court may deem fit.

 

(3)     Upon the amendment of the charge in accordance with the order of the court, the trial shall proceed at the appointed time upon the amended charge in the same manner and with the same consequences as if it had been originally in its amended form.

 

(4)     The fact that a charge is not amended as provided in this section, shall not, unless the court refuses to allow the amendment, affect the validity of the proceedings thereunder.

 

87.     Court may order delivery of particulars

 

(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: Provided that the provisions of this subsection shall not apply at the stage when an accused is required in terms of section 119 or 122A to plead to a charge in the magistrate’s court;

[S 87(1) amended by s 15 of Act 139 of 1992.]

 

(2)     The particulars shall be delivered to the accused without charge and shall be entered in the record, and the trial shall proceed as if the charge had been amended in conformity with such particulars.

 

(3)     In determining whether a particular is required or whether a defect in the indictment before a superior court is material to the substantial justice of the case, the court may have regard to the summary of the substantial facts under paragraph (a) of section 144(3) or, as the case may be the record of the preparatory examination.

 

88.     Defect in charge cured by evidence

 

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.

 

89.     Previous conviction not to be alleged in charge

 

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 an accused has previously been convicted of any offence, whether in the Republic or elsewhere.

 

90.     Charge need not specify or negative exception, exemption, proviso, excuse or qualification

 

In criminal proceedings any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence, may be proved by the accused but need not be specified or negatived in the charge and, if so specified or negatived, need not be proved by the prosecution.

 

91.     Charge need not state manner or means of act

 

A charge need not set out the manner in which or the means or instrument by which any act was done, unless the manner, means or instrument is an essential element of the relevant offence.

 

92.     Certain omissions or imperfections not to invalidate charge

 

(1)     A charge shall not be held defective—

 

(a)     for want of the averment of any matter which need not be proved;

 

(b)     because any person mentioned in the charge is designated by a name of office or other descriptive appellation instead of by his proper name;

 

(c)      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;

 

(d)     because 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)     for want of, or imperfection in, the addition of any accused or any other person;

 

(f)      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.

 

(2)     If any particular day or period is alleged in any charge to be the day on which or the period during which any act or offence was committed, proof that such act or offence was committed on any other day or during any other period not more than three months before or after the day or period alleged therein shall be taken to support such allegation if time is not of the essence of the offence: Provided that—

 

(a)     proof may be given that the act or offence in question was committed on a day or during a period more than three months before or after the day or period stated in the charge unless it is made to appear to the court before which the proceedings are pending that the accused is likely to be prejudiced thereby in his defence on the merits;

 

(b)     if the court considers that the accused is likely to be prejudiced thereby in his defence on the merits, it shall reject such proof, and the accused shall be deemed not to have pleaded to the charge.

 

93.     Alibi and date of act or offence

 

If the defence of an accused is an alibi and the court before which the proceedings are pending is of the opinion that the accused may be prejudiced in making such defence if proof is admitted that the act or offence in question was committed on a day or at a time other than the day or time stated in the charge, the court shall reject such proof notwithstanding that the day or time in question is within a period of three months before or after the day or time stated in the charge, whereupon the same consequences shall follow as are mentioned in proviso (b) of section 92(2).

 

94.     Charge may allege commission of offence on divers occasions

 

Where it is alleged that an accused on divers occasions during any period committed an offence in respect of any particular person, the accused may be charged in one charge with the commission of that offence on divers occasions during a stated period.

 

95.     Rules applicable to particular charges

 

(1)     A charge relating to a testamentary instrument need not allege that the instrument is the property of any person.

 

(2)     A charge relating to anything fixed in a square, street or open place or in a place dedicated to public use or ornament, or relating to anything in a public place or office or taken therefrom, need not allege that the thing in question is the property of any person.

 

(3)     A charge relating to a document which is the evidence of title to land or of an interest in land may describe the document as being the evidence of the title of the person or of one of the persons having an interest in the land to which the document relates, and shall describe the land or any relevant part thereof in a manner sufficient to identify it.

 

(4)     A charge relating to the theft of anything leased to the accused may describe the thing in question as the property of the person who leased it to the accused.

 

(5)     A charge against a person in the public service for an offence committed in connection with anything which came into his possession by virtue of his employment may describe the thing in question as the property of the State.

 

(6)     A charge relating to anything in the possession or under the control of any public officer may describe the thing in question as being in the lawful possession or under the lawful control of such officer without referring to him by name.

 

(7)     A charge relating to movable or immovable property whereof any body corporate has by law the management, control or custody, may describe the property in question as being under the lawful management or control or in the lawful custody of the body corporate in question.

 

(8)     If it is uncertain to which of two or more persons property in connection with which an offence has been committed belonged at the time when the offence was committed, the relevant charge may describe the property as the property of one or other of those persons, naming each of them but without specifying which of them, and it shall be sufficient at the trial to prove that at the time when the offence was committed the property belonged to one or other of those persons without proving which of them.

 

(9)     If property alleged to have been stolen was not in the physical possession of the owner thereof at the time when the theft was committed but in the physical possession of another person who had the custody thereof on behalf of the owner, it shall be sufficient to allege in a charge for the theft of that property that it was in the lawful custody or under the lawful control of that other person.

 

(10)   A charge relating to theft from any grave need not allege that anything in the grave is the property of any person.

 

(11)   In a charge in which any trade mark or forged trade mark is proposed to be mentioned, it shall be sufficient, without further description and without any copy or facsimile, to state that such trade mark or forged trade mark is a trade mark or forged trade mark.

 

(12)   A charge relating to housebreaking or the entering of any house or premises with intent to commit an offence, whether the charge is brought under the common law or any statute, may state either that the accused intended to commit a specified offence or that the accused intended to commit an offence to the prosecutor unknown.

 

96.     Naming of company, firm or partnership in charge

 

A reference in a charge to a company, firm or partnership shall be sufficient if the reference is to the name of the company, firm or partnership.

 

97.     Naming of joint owners of property in charge

 

A reference in a charge to joint owners of property shall be sufficient if the reference is to one specific owner and another owner or, as the case may be, other owners.

 

98.     Charge of murder or culpable homicide sufficient if it alleges fact of killing

 

It shall be sufficient in a charge of murder to allege that the accused unlawfully and intentionally killed the deceased, and it shall be sufficient in a charge of culpable homicide to allege that the accused unlawfully killed the deceased.

 

99.     Charge relating to document sufficient if it refers to document by name

 

(1)     In any charge relating to the forging, uttering, stealing, destroying or concealing of, or to some other unlawful dealing with any document, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing it or stating its value.

 

(2)     Whenever it is necessary in any case not referred to in subsection (1) to make any allegation in any charge in relation to any document, whether it consists wholly or in part of writing, print or figures, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof, unless the wording of the document is an element of the offence.

 

101.   Charge relating to false evidence

 

(1)     A charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement or the procuring of false evidence or a false statement—

 

(a)     need not set forth the words of the oath or the affirmation or the evidence or the statement, if it sets forth so much of the purport thereof as is material;

 

(b)     need not allege, nor need it be established at the trial, that the false evidence or statement was material to any issue at the relevant proceedings or that it was to the prejudice of any person.

 

(2)     A charge relating to the giving or the procuring or attempted procuring of false evidence need not allege the jurisdiction or state the nature of the authority of the court or tribunal before which or the officer before whom the false evidence was given or was intended or proposed to be given.

 

102.   Charge relating to insolvency

 

A charge relating to insolvency need not set forth any debt, act of insolvency or adjudication or any other proceeding in any court, or any order made or any warrant or document issued by or under the authority of any court.

 

103.   Charge alleging intent to defraud need not allege or prove such intent in respect of particular person or mention owner of property or set forth details of deceit

 

In any charge in which it is necessary to allege that the accused performed an act with an intent to defraud, it shall be sufficient to allege and to prove that the accused performed the act with intent to defraud without alleging and proving that it was the intention of the accused to defraud any particular person, and such a charge need not mention the owner of any property involved or set forth the details of any deceit.

 

104.   Reference in charge to objectionable matter not necessary

 

A charge of printing, publishing, manufacturing, making, or producing blasphemous, seditious, obscene or defamatory matter, or of distributing, displaying, exhibiting, selling or offering or keeping for sale any obscene book, pamphlet, newspaper or other printed or written matter, shall not be open to objection or be deemed insufficient on the ground that it does not set out the words thereof: Provided that the court may order that particulars shall be furnished by the prosecution stating what passages in such book, pamphlet, newspaper, printing or writing are relied upon in support of the charge.

 

CHAPTER 15

THE PLEA

 

105.   Accused to plead to charge

 

The charge shall be put to the accused by the prosecutor before the trial of the accused is commenced, and the accused shall, subject to the provisions of sections 77, 85 and 105A, be required by the court forthwith to plead thereto in accordance with section 106.

[S 105 substituted by s 1 of Act 62 of 2001.]

 

105A. Plea and sentence agreements

 

(1)

(a)     A prosecutor authorised thereto in writing by the National Director of Public Prosecutions and an accused who is legally represented may, before the accused pleads to the charge brought against him or her, negotiate and enter into an agreement in respect of—

 

(i)      a plea of guilty by the accused to the offence charged or to an offence of which he or she may be convicted on the charge; and

 

(ii)      if the accused is convicted of the offence to which he or she has agreed to plead guilty—

 

(aa)   a just sentence to be imposed by the court; or

 

(bb)   the postponement of the passing of sentence in terms of section 297(1)(a); or

 

(cc)    a just sentence to be imposed by the court, of which the operation of the whole or any part thereof is to be suspended in terms of section 297(1)(b); and

 

(dd)   if applicable, an award for compensation as contemplated in section 300.

 

(b)     The prosecutor may enter into an agreement contemplated in paragraph (a)—

 

(i)      after consultation with the person charged with the investigation of the case;

 

(ii)      with due regard to, at least, the—

 

(aa)   nature of and circumstances relating to the offence;

 

(bb)   personal circumstances of the accused;

 

(cc)    previous convictions of the accused, if any; and

 

(dd)   interests of the community, and

 

(iii)     after affording the complainant or his or her representative, where it is reasonable to do so and taking into account the nature of and circumstances relating to the offence and the interests of the complainant, the opportunity to make representations to the prosecutor regarding—

 

(aa)   the contents of the agreement; and

 

(bb)   the inclusion in the agreement of a condition relating to compensation or the rendering to the complainant of some specific benefit or service in lieu of compensation for damage or pecuniary loss.

 

(c)      The requirements of paragraph (b)(i) may be dispensed with if the prosecutor is satisfied that consultation with the person charged with the investigation of the case will delay the proceedings to such an extent that it could—

 

(i)      cause substantial prejudice to the prosecution, the accused, the complainant or his or her representative; and

 

(ii)      affect the administration of justice adversely.

 

(2)     An agreement contemplated in subsection (1) shall be in writing and shall at least—

 

(a)     state that the accused, before entering into the agreement, has been informed that he or she has the right—

 

(i)      to be presumed innocent until proved guilty beyond reasonable doubt;

 

(ii)      to remain silent and not to testify during the proceedings; and

 

(iii)     not to be compelled to give self-incriminating evidence;

 

(b)     state fully the terms of the agreement, the substantial facts of the matter, all other facts relevant to the sentence agreement and any admissions made by the accused;

 

(c)      be signed by the prosecutor, the accused and his or her legal representative; and

 

(d)     if the accused has negotiated with the prosecutor through an interpreter, contain a certificate by the interpreter to the effect that he or she interpreted accurately during the negotiations and in respect of the contents of the agreement.

 

(3)     The court shall not participate in the negotiations contemplated in subsection (1).

 

(4)

(a)     The prosecutor shall, before the accused is required to plead, inform the court that an agreement contemplated in subsection (1) has been entered into and the court shall then—

 

(i)      require the accused to confirm that such an agreement has been entered into; and

 

(ii)      satisfy itself that the requirements of subsection (1)(b)(i) and (iii) have been complied with.

 

(b)     If the court is not satisfied that the agreement complies with the requirements of subsection (1)(b)(i) and (iii), the court shall—

 

(i)      inform the prosecutor and the accused of the reasons for noncompliance; and

 

(ii)      afford the prosecutor and the accused the opportunity to comply with the requirements concerned.

 

(5)     If the court is satisfied that the agreement complies with the requirements of subsection (1)(b)(i) and (iii), the court shall require the accused to plead to the charge and order that the contents of the agreement be disclosed in court.

 

(6)

(a)     After the contents of the agreement have been disclosed, the court shall question the accused to ascertain whether—

 

(i)      he or she confirms the terms of the agreement and the admissions made by him or her in the agreement;

 

(ii)      with reference to the alleged facts of the case, he or she admits the allegations in the charge to which he or she has agreed to plead guilty; and

 

(iii)     the agreement was entered into freely and voluntarily in his or her sound and sober senses and without having been unduly influenced.

 

(b)     After an inquiry has been conducted in terms of paragraph (a), the court shall, if—

 

(i)      the court is not satisfied that the accused is guilty of the offence in respect of which the agreement was entered into; or

 

(ii)      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

 

(iii)     for any other reason, the court is of the opinion that the plea of guilty by the accused should not stand,

 

record a plea of not guilty and inform the prosecutor and the accused of the reasons therefor.

 

(c)      If the court has recorded a plea of not guilty, the trial shall start de novo before another presiding officer: Provided that the accused may waive his or her right to be tried before another presiding officer.

 

(7)

(a)     If the court is satisfied that the accused admits the allegations in the charge and that he or she is guilty of the offence in respect of which the agreement was entered into, the court shall proceed to consider the sentence agreement.

 

(b)     For purposes of paragraph (a), the court—

 

(i)      may—

 

(aa)   direct relevant questions, including questions about the previous convictions of the accused, to the prosecutor and the accused; and

 

(bb)   hear evidence, including evidence or a statement by or on behalf of the accused or the complainant; and

 

(ii)      must, if the offence concerned is an offence—

 

(aa)   referred to in the Schedule to the Criminal Law Amendment Act, 1997 (Act 105 of 1997); or

 

(bb)   for which a minimum penalty is prescribed in the law creating the offence,

 

have due regard to the provisions of that Act or law.

 

(8)     If the court is satisfied that the sentence agreement is just, the court shall inform the prosecutor and the accused that the court is so satisfied, whereupon the court shall convict the accused of the offence charged and sentence the accused in accordance with the sentence agreement.

 

(9)

(a)     If the court is of the opinion that the sentence agreement is unjust, the court shall inform the prosecutor and the accused of the sentence which it considers just.

 

(b)     Upon being informed of the sentence which the court considers just, the prosecutor and the accused may—

 

(i)      abide by the agreement with reference to the charge and inform the court that, subject to the right to lead evidence and to present argument relevant to sentencing, the court may proceed with the imposition of sentence; or

 

(ii)      withdraw from the agreement.

 

(c)      If the prosecutor and the accused abide by the agreement as contemplated in paragraph (b)(i), the court shall convict the accused of the offence charged and impose the sentence which it considers just.

 

(d)     If the prosecutor or the accused withdraws from the agreement as contemplated in paragraph (b)(ii), the trial shall start de novo before another presiding officer: Provided that the accused may waive his or her right to be tried before another presiding officer.

 

(10)   Where a trial starts de novo as contemplated in subsection (6)(c) or (9)(d)—

 

(a)     the agreement shall be null and void and no regard shall be had or reference made to—

 

(i)      any negotiations which preceded the entering into the agreement;

 

(ii)      the agreement; or

 

(iii)     any record of the agreement in any proceedings relating thereto,

 

unless the accused consents to the recording of all or certain admissions made by him or her in the agreement or during any proceedings relating thereto and any admission so recorded shall stand as proof of such admission;

 

(b)     the prosecutor and the accused may not enter into a plea and sentence agreement in respect of a charge arising out of the same facts; and

 

(c)      the prosecutor may proceed on any charge.

 

(11)

(a)     The National Director of Public Prosecutions, in consultation with the Minister, shall issue directives regarding all matters which are reasonably necessary or expedient to be prescribed in order to achieve the objects of this section and any directive so issued shall be observed in the application of this section.

 

(b)     The directives contemplated in paragraph (a)—

 

(i)      must prescribe the procedures to be followed in the application of this section relating to—

 

(aa)   any offence referred to in the Schedule to the Criminal Law Amendment Act, 1997, or any other offence for which a minimum penalty is prescribed in the law creating the offence;

 

(bb)   any offence in respect of which a court has the power or is required to conduct a specific enquiry, whether before or after convicting or sentencing the accused; and

 

(cc)    any offence in respect of which a court has the power or is required to make a specific order upon conviction of the accused;

 

(ii)      may prescribe the procedures to be followed in the application of this section relating to any other offence in respect of which the National Director of Public Prosecutions deems it necessary or expedient to prescribe specific procedures;

 

(iii)     must ensure that adequate disciplinary steps shall be taken against a prosecutor who fails to comply with any directive; and

 

(iv)     must ensure that comprehensive records and statistics relating to the implementation and application of this section are kept by the prosecuting authority.

 

(c)      The National Director of Public Prosecutions shall submit directives issued under this subsection to Parliament before those directives take effect, and the first directives so issued, must be submitted to Parliament within four months of the commencement of this section.

 

(d)     Any directive issued under this subsection may be amended or withdrawn in like manner.

 

(12)   The National Director of Public Prosecutions shall at least once every year submit the records and statistics referred to in subsection (11)(b)(iv) to Parliament.

 

(13)   In this section “sentence agreement” means an agreement contemplated in subsection (1)(a)(ii).

[S 105A inserted by s 2 of Act 62 of 2001.]

 

106.   Pleas

 

(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.

 

(i)       that the prosecution may not be resumed or instituted owing to an order by a court under section 342A(3)(c).

[S 106(1)(i) inserted by s 4 of Act 86 of 1996.]

 

(2)     Two or more pleas may be pleaded together except that a plea of guilty may not be pleaded with any other plea to the same charge.

 

(3)     An accused shall give reasonable notice to the prosecution of his intention to plead a plea other than the plea of guilty or not guilty, and shall in such notice state the ground on which he bases his plea: Provided that the requirement of such notice may be waived by the Attorney-General or the prosecutor, as the case may be, and the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.

 

(4)     An accused who pleads to a charge, other than a plea that the court has no jurisdiction to try the offence, or an accused on behalf of whom a plea of not guilty is entered by the court, shall, save as is otherwise expressly provided by this Act or any other law, be entitled to demand that he be acquitted or be convicted.

 

107.   Truth and publication for public benefit of defamatory matter to be specially pleaded

 

A person charged with the unlawful publication of defamatory matter, who sets up as a defence that the defamatory matter is true and that it was for the public benefit that the matter should be published, shall plead such defence specially, and may plead it with any other plea except the plea of guilty.

 

108.   Issues raised by plea to be tried

 

If an accused pleads a plea other than a plea of guilty, he shall, subject to the provisions of sections 115, 122 and 141(3), by such plea be deemed to demand that the issues raised by the plea be tried.

 

109.   Accused refusing to plead

 

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.

 

CHAPTER 16

JURISDICTION

 

110.   Accused brought before court which has no jurisdiction

 

(1)     Where an accused does not plead that the court has no jurisdiction and it at any stage—

 

(a)     after the accused has pleaded a plea of guilty or of not guilty; or

 

(b)     where the accused has pleaded any other plea and the court has determined such plea against the accused,

 

appears that the court in question does not have jurisdiction, the court shall for the purposes of this Act be deemed to have jurisdiction in respect of the offence in question.

 

(2)     Where an accused pleads that the court in question has no jurisdiction and the plea is upheld, the court shall adjourn the case to the court having jurisdiction.

 

110A. Jurisdiction in respect of offences committed by certain persons outside Republic

 

(1)     Notwithstanding any other law, any South African citizen who commits an offence outside the area of jurisdiction of the courts of the Republic and who cannot be prosecuted by the courts of the country in which the offence was committed, due to the fact that the person is immune from prosecution as a result of the operation of the provisions of—

 

(a)     the Convention on the Privileges and Immunities of the United Nations, 1946;

 

(b)     the Convention on the Privileges and Immunities of the Specialised Agencies, 1947;

 

(c)      the Vienna Convention on Diplomatic Relations, 1961;

 

(d)     the Vienna Convention on Consular Relations, 1963; or

 

(e)     any other international convention, treaty or any agreement between the Republic and any other country or international organisation,

 

and that person is found within the area of jurisdiction of any court in the Republic which would have had jurisdiction to try the offence if it had been committed within its area of jurisdiction, that court shall, subject to subsection (2), have jurisdiction to try that offence.

 

(2)     No prosecution may be instituted against a person under subsection (1), unless—

 

(a)     the offence is an offence under the laws of the Republic; and

 

(b)     the National Director of Public Prosecutions instructs that a prosecution be instituted against the person.

 

(3)     At the conclusion of the trial against a person under this section, a copy of the proceedings, certified by the clerk of the court or registrar, together with any remarks as the prosecutor may wish to append thereto, must be submitted to the Minister of Foreign Affairs.

[S 110A inserted by s 11 of Act 66 of 2008.]

 

111.   Minister may remove trial to jurisdiction of another Attorney-General

 

(1)     ...

[S 111(1) substituted by s 6(a) of Act 26 of 1987; repealed by s 44 of Act 32 of 1998.]

 

(1)

(a)     The direction of the National Director of Public Prosecutions contemplated in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), shall state the name of the accused, the relevant offence, the place at which (if known) and the Director in whose area of jurisdiction the relevant investigation and criminal proceedings shall be conducted and commenced.

 

(b)     A copy of the direction shall be served on the accused, and the original thereof shall, save as is provided in subsection (3) be handed in at the court in which the proceedings are to commence.

[S 111(2) amended by s 6(b) of Act 26 of 1987; renumbered as 111(1) and substituted by s 44 of Act 32 of 1998.]

 

(2)     The court in which the proceedings commence shall have jurisdiction to act with regard to the offence in question as if the offence had been committed within the area of jurisdiction of such court.

[S 111(3) renumbered as 111(2) and substituted by s 44 of Act 32 of 1998.]

 

(3)     Where the National Director issues a direction contemplated in subsection (1) after an accused has already appeared in a court, the original of such direction shall be handed in at the relevant proceedings and attached to the record of the proceedings, and the court in question shall—

 

(a)     cause the accused to be brought before it, and when the accused is before it, adjourn the proceedings to a time and a date and to the court designated by the Director in whose area of jurisdiction the said criminal proceedings shall commence, whereupon such time and date and court shall be deemed to be the time and date and court appointed for the trial of the accused or to which the proceedings pending against the accused are adjourned;

 

(b)     forward a copy of the record of the proceedings to the court in which the accused is to appear, and that court shall receive such copy and continue with the proceedings against the accused as if such proceedings had commenced before it.

[S 111(4) amended by s 6(c) of Act 26 of 1987; renumbered to 111(3) and substituted by s 44 of Act 32 of 1998.]

 

(5)     ...

[S 111(5) repealed by s 68 of Act 88 of 1996.]

 

CHAPTER 17

PLEA OF GUILTY AT SUMMARY TRIAL

 

112.   Plea of guilty

 

(1)     Where an accused at a summary trial in any court pleads guilty to the offence charged, or to an offence of which he may be convicted on the charge and the prosecutor accepts that plea—

 

(a)     the presiding judge, regional magistrate or magistrate may, if he or she is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, convict the accused in respect of the offence to which he or she has pleaded guilty on his or her plea of guilty only and—

 

(i)      impose any competent sentence, other than imprisonment or any other form of detention without the option of a fine or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette; or

 

(ii)      deal with the accused otherwise in accordance with law;

[S 112(1)(a) substituted by s 4(a) of Act 109 of 1984, s 7 of Act 5 of 1991, s 2 of Act 33 of 1997.]

 

(b)     the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that the offence merits punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.

[S 112(1)(b) substituted by s 4(b) of Act 109 of 1984, s 7 of Act 5 of 1991, s 2 of Act 33 of 1997.]

 

(2)     If an accused or his legal adviser hands a written statement by the accused into court, in which the accused sets out the facts which he admits and on which he has pleaded guilty, the court may, in lieu of questioning the accused under subsection (1)(b), convict the accused on the strength of such statement and sentence him as provided in the said subsection if the court is satisfied that the accused is guilty of the offence to which he has pleaded guilty: Provided that the court may in its discretion put any question to the accused in order to clarify any matter raised in the statement.

 

(3)     Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

 

113.   Correction of plea of guilty

 

(1)     If the court at any stage of the proceedings under section 112(1)(a) or (b) or 112(2) and before sentence is passed is in doubt whether the accused is in law guilty of the offence to which he or she has pleaded guilty or if it is alleged or 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 of the opinion for any other reason that the accused’s plea of guilty should not stand, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution: Provided that any allegation, other than an 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.

[S 113 renumbered as 113(1) by s 8 of Act 5 of 1991; amended by s 5 of Act 86 of 1996.]

 

(2)     If the court records a plea of not guilty under subsection (1) before any evidence has been led, the prosecution shall proceed on the original charge laid against the accused, unless the prosecutor explicitly indicates otherwise.

[S 113(2) inserted by s 8 of Act 5 of 1991.]

 

114.   Committal by magistrate’s court of accused for sentence by regional court after plea of guilty

 

(1)     If a magistrate’s court, after conviction following on a plea of guilty but before sentence, is of the opinion—

 

(a)     that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court;

[S 114(1)(a) amended by s 18(a) of Act 116 of 1993.]

 

(b)     that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a magistrate’s court; or

[S 114(1)(b) amended by s 18(b) of Act 116 of 1993.]

 

(c)      that the accused is a person referred to in section 286A(1),

[S 114(1)(c) inserted by s 18(b) of Act 116 of 1993.]

 

the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.

 

(2)     Where an accused is committed under subsection (1) for sentence by a regional court, the record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court, and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

 

(3)

(a)     Unless the regional court concerned—

 

(i)      is satisfied that a plea of guilty or an admission by the accused which is material to his guilt was incorrectly recorded; or

 

(ii)      is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence,

 

the court shall make a formal finding of guilty and sentence the accused.

 

(b)     If the court is satisfied that a plea of guilty or any admission by the accused which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence or that he has no valid defence to the charge, the court shall enter a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that any admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.

 

(4)     The provisions of section 112(3) shall apply with reference to the proceedings under this section.

 

CHAPTER 18

PLEA OF NOT GUILTY AT SUMMARY TRIAL

 

115.   Plea of not guilty and procedure with regard to issues

 

(1)     Where an accused at a summary trial pleads not guilty to the offence charged, the presiding judge, regional magistrate or magistrate, as the case may be, may ask him whether he wishes to make a statement indicating the basis of his defence.

 

(2)

(a)     Where the accused does not make a statement under subsection (1) or does so and it is not clear from the statement to what extent he denies or admits the issues raised by the plea, the court may question the accused in order to establish which allegations in the charge are in dispute.

 

(b)     The court may in its discretion put any question to the accused in order to clarify any matter raised under subsection (1) or this subsection, and shall enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an admission under section 220.

 

(3)     Where the legal adviser of an accused on behalf of the accused replies, whether in writing or orally, to any question by the court under this section, the accused shall be required by the court to declare whether he confirms such reply or not.

 

115A. Committal of accused for trial by regional court

 

(1)     Where an accused pleads not guilty in a magistrate’s court, the court shall, subject to the provisions of section 115, at the request of the prosecutor made before any evidence is tendered, refer the accused for trial to a regional court having jurisdiction.

 

(2)     The record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court.

[S 115A inserted by s 4 of Act 56 of 1979.]

 

116.   Committal of accused for sentence by regional court after trial in magistrate’s court

 

(1)     If a magistrate’s court, after conviction following on a plea of not guilty but before sentence, is of the opinion—

 

(a)     that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court;

[S 116(1)(a) amended by s 19(a) of Act 116 of 1993.]

 

(b)     that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a magistrate’s court; or

[S 116(1)(b) amended by s 19(b) of Act 116 of 1993.]

 

(c)      that the accused is a person referred to in section 286A(1),

[S 116(1)(c) inserted by s 19(b) of Act 116 of 1993.]

 

the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.

 

(2)     The record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court.

 

(3)

(a)     The regional court shall, after considering the record of the proceedings in the magistrate’s court, sentence the accused, and the judgment of the magistrate’s court shall stand for this purpose and be sufficient for the regional court to pass any competent sentence: Provided that if the regional magistrate is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice he or she may request the presiding officer in the magistrate’s court to provide him or her with the reasons for the conviction and if, after considering such reasons, the regional magistrate is satisfied that the proceedings are in accordance with justice he or she may sentence the accused, but if he or she remains of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice he or she shall, without sentencing the accused, record the reasons for his or her opinion and transmit such reasons and the reasons of the presiding officer of the magistrate’s court, together with the record of the proceedings in the magistrate’s court, to the registrar of the provincial division having jurisdiction, and such registrar shall, as soon as possible, lay the same in chambers before a judge who shall have the same powers in respect of such proceedings as if the record thereof had been laid before him or her under section 303.

[S 116(3)(a) amended by s 6 of Act 86 of 1996.]

 

(b)     If a regional magistrate acts under the proviso to paragraph (a), he shall inform the accused accordingly and postpone the case to some future date pending the outcome of the review proceedings, and, if the accused is in custody, the regional magistrate may make such order with regard to the detention or release of the accused as he may deem fit.

 

117.   Committal to superior court in special case

 

Where an accused in a lower court pleads not guilty to the offence charged against him and a ground of his defence is the alleged invalidity of a provincial ordinance or a proclamation of the State President on which the charge against him is founded and upon the validity of which a magistrate’s court is in terms of section 110 of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), not competent to pronounce, the accused shall be committed for a summary trial before a superior court having jurisdiction.

[S 117 amended by s 1 of Act 49 of 1996.]

 

118.   Non-availability of judicial officer after plea of not guilty

 

If the judge, regional magistrate or magistrate before whom an accused at a summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced yet, the trial may be continued before any other judge, regional magistrate or magistrate of the same court.

 

CHAPTER 19

PLEA IN MAGISTRATE’S COURT ON CHARGE JUSTICIABLE IN SUPERIOR COURT

 

119.   Accused to plead in magistrate’s court on instructions of Attorney-General

 

When an accused appears in a magistrate’s court and the alleged offence may be tried by a superior court only or is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court, the prosecutor may, notwithstanding the provisions of section 75, on the instructions of the Attorney-General, whether in general or in any particular case, put the charge, as well as any other charge which shall, in terms of section 82, be disposed of in a superior court, to the accused in the magistrate’s court, and the accused shall, subject to the provisions of sections 77 and 85, be required by the magistrate to plead thereto forthwith.

[S 119 substituted by s 5 of Act 56 of 1979, s 3 of Act 64 of 1982, s 16 of Act 59 of 1983.]

 

120.   Charge-sheet and proof of record

 

The proceedings shall be commenced by the lodging of a charge-sheet with the clerk of the court in question and the provisions of subsections (2) and (3) of section 76 shall mutatis mutandis apply with reference to the charge-sheet and the record of the proceedings.

 

121.   Plea of guilty

 

(1)     Where an accused under section 119 pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b) of section 112(1).

 

(2)

(a)     If the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall stop the proceedings.

 

(b)     If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122 (1): Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation.

 

(3)     If the magistrate is satisfied as provided in subsection (2)(a), he shall adjourn the proceedings pending the decision of the Attorney-General who may—

 

(a)     arraign the accused for sentence before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were stopped under subsection (2)(a).

 

(b)     decline to arraign the accused for sentence before any court but arraign him for trial on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were stopped under subsection 2(a);

 

(c)      institute a preparatory examination against the accused.

[S 121(3) substituted by s 6 of Act 56 of 1979.]

 

(4)     The magistrate or any other magistrate of the magistrate’s court concerned shall advise the accused of the decision of the Attorney-General and, if the decision is that the accused be arraigned for sentence—

 

(a)     in the magistrate’s court concerned, dispose of the case on the charge on which the accused is arraigned; or

 

(b)     in a regional court or superior court, adjourn the case for sentence by the regional court or superior court concerned.

 

(5)

(a)     The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused or, if the accused is arraigned in the magistrate’s court in which the proceedings were stopped under subsection (2)(a), the record of such proceedings shall stand as the record of that court, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

 

(aA)   The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such admission was incorrectly recorded.

[S 121(5)(aA) inserted by s 17 of Act 59 of 1983.]

 

(b)     Unless the accused satisfies the court that a plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty and impose any competent sentence.

[S 121(5)(b) amended by s 29 of Act 105 of 1997.]

 

(6)     If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.

 

(7)     Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

 

122.   Plea of not guilty

 

(1)     Where an accused under section 119 pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied with, the magistrate shall stop the proceedings and adjourn the case pending the decision of the Attorney-General.

 

(2)     Where the proceedings have been adjourned under subsection (1), the Attorney-General may—

 

(i)       arraign the accused on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were adjourned under subsection (1); or

 

(ii)      institute a preparatory examination against the accused,

 

and the Attorney-General shall advise the magistrate’s court concerned of his decision.

 

(3)     The magistrate, who need not be the magistrate before whom the proceedings under section 119 or 122(1) were conducted, shall advise the accused of the decision of the Attorney-General, and if the decision is that the accused be arraigned—

 

(a)     in the magistrate’s court concerned, require the accused to plead to that charge, and, if the plea to that charge is one of guilty or the plea in respect of an offence of which the accused may on such charge be convicted is one of guilty and the prosecutor accepts such plea, deal with the matter in accordance with the provisions of section 112, in which event the provisions of section 114(1) shall not apply, or, if the plea is one of not guilty, deal with the matter in accordance with the provisions of section 115 and proceed with the trial;

[S 122(3)(a) substituted by s 16 of Act 139 of 1992.]

 

(b)     in a regional court or a superior court, commit the accused for a summary trial before the court concerned.

 

(4)     The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such an admission.

 

CHAPTER 19A

PLEA IN MAGISTRATE’S COURT ON CHARGE TO BE ADJUDICATED IN REGIONAL COURT

 

122A. Accused to plead in magistrate’s court on charge to be tried in regional court

 

When an accused appears in a magistrate’s court and the alleged offence may be tried by a regional court but not by a magistrate’s court or the prosecutor informs the court that he is of the opinion that the alleged offence is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court but not of the jurisdiction of a regional court, the prosecutor may, notwithstanding the provisions of section 75, put the relevant charge, as well as any other charge which shall, in terms of section 82, be disposed of by a regional court, to the accused, who shall, subject to the provisions of sections 77 and 85, be required by the magistrate to plead thereto forthwith.

[S 122A inserted by s 7 of Act 56 of 1979; substituted by s 18 of Act 59 of 1983.]

 

122B. Charge-sheet and proof of record

 

The provisions of section 120 shall mutatis mutandis apply with reference to the proceedings under section 122A and the record of the proceedings.

[S 122B inserted by s 7 of Act 56 of 1979.]

 

122C. Plea of guilty

 

(1)     Where an accused under section 122A pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b) of section 112(1).

 

(2)

(a)     If the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall adjourn the case for sentence by the regional court concerned.

 

(b)     If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122D(1): Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation.

(3)

(a)     The record of the proceedings in the magistrate’s court shall, upon proof thereof in the regional court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

 

(b)     Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty, and impose any competent sentence.

 

(4)     If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.

 

(5)     Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purpose of determining an appropriate sentence.

[S 122C inserted by s 7 of Act 56 of 1979.]

 

122D. Plea of not guilty

 

(1)     Where an accused under section 122A pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied with, the magistrate shall commit the accused for a summary trial in the regional court concerned on the charge to which he has pleaded not guilty or on the charge in respect of which a plea of not guilty has been entered under section 122C(2)(b).

 

(2)     The regional court may try the accused on the charge in respect of which he has been committed for a summary trial under subsection (1) or on any other or further charge which the prosecutor may prefer against the accused and which the court is competent to try.

 

(3)     The record of proceedings in the magistrate’s court shall, upon proof thereof in the regional court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such an admission.

[Chapter 19A inserted by s 7 of Act 56 of 1979; s 122D inserted by s 7 of Act 56 of 1979.]

 

 

CHAPTER 20

PREPARATORY EXAMINATION

 

123.   Attorney-General may instruct that preparatory examination be held

 

If an Attorney-General is of the opinion that it is necessary for the more effective administration of justice—

 

(a)     that a trial in a superior court be preceded by a preparatory examination in a magistrate’s court into the allegations against the accused, he may, where he does not follow the procedure under section 119, or, where he does follow it and the proceedings are adjourned under section 121(3) or 122(1) pending the decision of the Attorney-General, instruct that a preparatory examination be instituted against the accused;

[S 123(a) amended by s 8 of Act 56 of 1979.]

 

(b)     that a trial in a magistrate’s court or a regional court be converted into a preparatory examination, he may at any stage of the proceedings, but before sentence is passed, instruct that the trial be converted into a preparatory examination.

 

124.   Proceedings preceding holding of preparatory examination to form part of preparatory examination record

 

Where an Attorney-General acts under paragraph (a) or (b) of section 123—

 

(a)     the record of any proceedings under section 121(1) or 122(1), or of any proceedings in the magistrate’s court or regional court before the trial was converted into a preparatory examination, shall form part of the preparatory examination record;

[S 124(a) amended by s 9 of Act 56 of 1979.]

 

(b)     and the accused has pleaded to a charge, the preparatory examination shall continue on the charge to which the accused has pleaded: Provided that where evidence is led at such preparatory examination which relates to an offence, other than the offence contained in the charge to which the accused has pleaded, allegedly committed by the accused, such evidence shall not be excluded on the ground only that the evidence does not relate to the offence to which the accused has pleaded.

 

125.   Attorney-General may direct that preparatory examination be conducted at a specified place

 

(1)     Where an Attorney-General instructs that a preparatory examination be instituted or that a trial be converted into a preparatory examination, he may, if it appears to him expedient on account of the number of accused involved or of excessive inconvenience or of possible disturbance of the public order, that the preparatory examination be held within his area of jurisdiction in a court other than the court in which the relevant proceedings were commenced, direct that the preparatory examination be instituted in such other court or, where a trial has been converted into a preparatory examination, be continued in such other court.

 

(2)     The magistrate or regional magistrate shall, after advice of the decision of the Attorney-General, advise the accused of· the decision of the Attorney-General and adjourn the proceedings to such other court, and thereafter forward a copy of the record of the proceedings, certified as correct by the clerk of the court, to the court to which the proceedings have been adjourned.

 

(3)     The court to which the proceedings are adjourned under subsection (2), shall receive the copy of the record referred to in that subsection, which shall then form part of the proceedings of that court, and shall proceed to conduct the preparatory examination as if it were a preparatory examination instituted in that court.

 

126.   Procedure to be followed by magistrate at preparatory examination

 

Where an Attorney-General instructs that a preparatory examination be held against an accused, the magistrate or regional magistrate shall, after advice of the decision of the Attorney-General, advise the accused of the decision of the Attorney-General and proceed in the manner hereinafter described to enquire into the charge against the accused.

 

127.   Recalling of witnesses after conversion of trial into preparatory examination

 

Where an Attorney-General instructs that a trial be converted into a preparatory examination, it shall not be necessary for the magistrate or regional magistrate to recall any witness who has already given evidence at the trial, but the record of the evidence thus given, certified as correct by the magistrate or regional magistrate, as the case may be, or, if such evidence was recorded in shorthand or by mechanical means, any document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed it, shall have the same legal force and effect and shall be admissible in evidence in the same circumstances as the evidence given in the course of a preparatory examination: Provided that if it appears to the, magistrate or regional magistrate concerned that it may be in the interests of justice to have a witness already examined recalled for further examination, then such witness shall be recalled and further examined and the evidence given by him shall be recorded in the same manner as other evidence given at a preparatory examination.

 

128.   Examination of prosecution witnesses at preparatory examination

 

The prosecutor may, at a preparatory examination, call any witness in support of the charge to which the accused has pleaded or to testify in relation to any other offence allegedly committed by the accused.

 

129.   Recording of evidence at preparatory examination and proof of record

 

(1)     The evidence given at a preparatory examination shall be recorded, and if such evidence is recorded in shorthand or by mechanical means, a document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed such evidence, shall have the same legal force and effect as such original record.

 

(2)     The record of a preparatory examination may be proved in a court by the mere production thereof or of a copy thereof in terms of section 235.

 

130.   Charge to be put at conclusion of evidence for prosecution

 

The prosecutor shall, at the conclusion of the evidence in support of the charge, put to the accused such charge or charges as may arise from the evidence and which the prosecutor may prefer against the accused.

 

131.   Accused to plead to charge

 

The magistrate or regional magistrate, as the case may be, shall, subject to the provisions of sections 77 and 85, require an accused to whom a charge is put under section 130 forthwith to plead to the charge.

 

132.   Procedure after plea

 

(1)

(a)     Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads guilty to the offence charged, the presiding judicial officer shall question him in accordance with the provisions of paragraph (b) of section 112(1).

 

(b)     If the presiding judicial officer is not satisfied that the accused admits all the allegations in the charge, he shall record in what respect he is not so satisfied and enter a plea of not guilty: Provided that an allegation with reference to which the said judicial officer is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation.

 

(2)     Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads not guilty to the offence charged, the presiding judicial officer shall act in accordance with the provisions of section 115.

 

133.   Accused may testify at preparatory examination

 

An accused may, after the provisions of section 132 have been complied with but subject to the provisions of section 151(1)(b) which shall mutatis mutandis apply, give evidence or make an unsworn statement in relation to a charge put to him under section 130, and the record of such evidence or statement shall be received in evidence before any court in criminal proceedings against the accused upon its mere production without further proof.

 

134.   Accused may call witnesses at preparatory examination

 

An accused may call any competent witness on behalf of the defence.

 

135.   Discharge of accused at conclusion of preparatory examination

 

As soon as a preparatory examination is concluded and the magistrate or regional magistrate, as the case may be, is upon the whole of the evidence of the opinion that no sufficient case has been made out to put the accused on trial upon any charge put to the accused under section 130 or upon any charge in respect of an offence of which the accused may on such charge be convicted, he may discharge the accused in respect of such charge.

 

136.   Procedure with regard to exhibits at preparatory examination

 

The magistrate or regional magistrate, as the case may be, shall cause every document and every article produced or identified as an exhibit by any witness at a preparatory examination to be inventoried and labelled or otherwise marked, and shall cause such documents and articles to be kept in safe custody pending any trial following upon such preparatory examination.

 

137.   Magistrate to transmit record of preparatory examination to Attorney-General

 

The magistrate or regional magistrate, as the case may be; shall, at the conclusion of a preparatory examination and whether or not the accused is under section 135 discharged in respect of any charge, send a copy of the record of the preparatory examination to the Attorney-General and, where the accused is not discharged in respect of all the charges put to him under section 130, adjourn the proceedings pending the decision of the Attorney-General

 

138.   Preparatory examination may be continued before different judicial officer

 

A preparatory examination may at any stage be continued by a judicial officer other than the judicial officer before whom the proceedings were commenced, and, if necessary, again be continued by the judicial officer before whom the proceedings were commenced.

 

139.   Attorney-General may arraign accused for sentence or trial

 

After considering the record of a preparatory examination transmitted to him under section 137, the Attorney-General may—

 

(a)     in respect of any charge to which the accused has under section 131 pleaded guilty, arraign the accused for sentence before any court having jurisdiction;

 

(b)     arraign the accused for trial before any court having jurisdiction, whether the accused has under section 131 pleaded guilty or not guilty to any charge and whether or not he has been discharged under section 135;

 

(c)      decline to prosecute the accused,

 

and the Attorney-General shall advise the lower court concerned of his decision.

 

140.   Procedure where accused arraigned for sentence

 

(1)     Where an accused is under section 139(a) arraigned for sentence, any magistrate or regional magistrate of the court in which the preparatory examination was held shall advise the accused of the decision of the Attorney-General and, if the decision is that the accused be arraigned—

 

(a)     in the court concerned, dispose of the case on the charge on which the accused is arraigned; or

 

(b)     in a court other than the court concerned, adjourn the case for sentence by such other court.

 

(2)

(a)     The record of the preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused or, if the accused is arraigned in the court in which the preparatory examination was held, the record of the preparatory examination shall stand as the record of that court, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

 

(b)     Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty and impose any competent sentence.

[S 140(2)(b) amended by s 30 of Act 105 of 1997.]

 

(3)     If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.

 

(4)     Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

 

141.   Procedure where accused arraigned for trial

 

(1)     Where an accused is under section 139(b) arraigned for trial, a magistrate or regional magistrate of the court in which the preparatory examination was held shall advise the accused of the decision of the Attorney-General and, if the accused is to be arraigned in a court other than the court concerned, commit the accused for trial by such other court.

 

(2)     Where an accused is arraigned for trial after a preparatory examination, the case shall be dealt with in all respects as with a summary trial.

 

(3)     The record of the preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such admission: Provided that the evidence adduced at such preparatory examination shall not form part of the record of the trial of the accused unless—

 

(a)     the accused pleads guilty at his trial to the offence charged, or to an offence of which he may be convicted on the charge and the prosecutor accepts that plea; or

 

(b)     the parties to the proceedings agree that any part of such evidence be admitted at the proceedings.

 

(4)

(a)     Where an accused who has been discharged under section 135 is arraigned for trial under section 139b), the clerk of the court where the preparatory examination was held shall issue to him a written notice to that effect and stating the place, date and time for the appearance of the accused in that court for committal for trial, or, if he is to be arraigned in that court, to plead to the charge on which he is to be arraigned.

 

(b)     The notice referred to in paragraph (a) shall be served on the accused in the manner provided for in sections 54(2) and (3) for the service of a summons in a lower court and the provisions of sections 55(1) and (2) shall mutatis mutandis apply with reference to such a notice.

 

(c)      If the accused is committed for trial by another court, the court committing the accused may direct that he be detained in custody, whereupon the provisions of Chapter 9 shall apply with reference to the release of the accused on bail.

 

142.   Procedure where Attorney-General declines to prosecute

 

Where an Attorney-General under section 139(c) declines to prosecute an accused, he shall advise the magistrate of the district in which the preparatory examination was held of his decision, and such magistrate shall forthwith have the accused released from custody or, if the accused is not in custody, advise the accused in writing of the decision of the Attorney-General, whereupon no criminal proceedings shall again be instituted against the accused in respect of the charge in question.

 

143.   Accused may inspect preparatory examination record and is entitled to copy thereof

 

(1)     An accused who is arraigned for sentence or for trial under section 139 may, without payment, inspect the record of the preparatory examination at the time of his arraignment before the court.

 

(2)

(a)     An accused who is arraigned for sentence or for trial under section 139 shall be entitled to a copy of the record of the preparatory examination upon payment, except where a legal practitioner under the Legal Aid South Africa Act, 2014, or pro Deo counsel is appointed to defend the accused or where the accused is not legally represented, of a reasonable amount not exceeding 25 cents for each folio of 72 words or part thereof.

[S 143(2)(a) amended by s 25 of Act 39 of 2014.]

 

(b)     The clerk of the court shall as soon as possible provide the accused or his legal adviser with a copy of the preparatory examination record in accordance with the provisions of paragraph (a).

 

CHAPTER 21

TRIAL BEFORE SUPERIOR COURT

 

144.   Charge in superior court to be laid in an indictment

 

(1)     Where an Attorney-General arraigns an accused for sentence or trial by a superior court, the charge shall be contained in a document called an indictment, which shall be framed in the name of the Attorney-General.

[S 144(1) substituted by s 10(a) of Act 56 of 1979.]

 

(2)     The indictment shall, in addition to the charge against the accused, include the name and, where known and where applicable, the address and a description of the accused with regard to sex, nationality and age.

[S 144(2) substituted by s 17 of Act 139 of 1992.]

 

(3)

(a)     Where an Attorney-General under section 75, 121(3)(b) or 122(2)(i) arraigns an accused for a summary trial in a superior court, the indictment shall be accompanied by a summary of the substantial facts of the case that, in the opinion of the Attorney-General, are necessary to inform the accused of the allegations against him and that will not be prejudicial to the administration of justice or the security of the State, as well as a list of the names and addresses of the witnesses the Attorney-General intends calling at the summary trial on behalf of the State—

 

Provided that—

 

(i)      this provision shall not be so construed that the State shall be bound by the contents of the summary;

 

(ii)      the Attorney-General may withhold the name and address of a witness if he is of the opinion that such witness may be tampered with or be intimidated or that it would be in the interest of the security of the State that the name and address of such witness be withheld;

 

(iii)     the omission of the name or address of a witness from such list shall in no way affect the validity of the trial.

[S 144(3)(a) amended by s 10(b) of Act 56 of 1979.]

 

(b)     Where the evidence for the State at the trial of the accused differs in a material respect from the summary referred to in paragraph (a), the trial court may, at the request of the accused and if it appears to the court that the accused might be prejudiced in his defence by reason of such difference, adjourn the trial for such period as to the court may seem adequate.

 

(4)

(a)     An indictment, together with a notice of trial referred to in the rules of court, shall, unless an accused agrees to a shorter period, be served on an accused at least 10 days (Sundays and public holidays excluded) before the date appointed for the trial—

 

(i)      in accordance with the procedure and manner laid down by the rules of court, by handing it to him personally, or, if he cannot be found, by delivering it at his place of residence or place of employment or business to a person apparently over the age of 16 years and apparently residing or employed there, or, if he has been released on bail, by leaving it at the place determined under section 62 for the service of any document on him; or

 

(ii)      by the magistrate or regional magistrate committing him to the superior court, by handing it to him.

 

(b)     A return of the mode of service by the person who served the indictment and the notice of trial, or, if the said documents were served in court on the accused by a magistrate or regional magistrate, an endorsement to that effect on the record of proceedings, may, upon the failure of the accused to attend the proceedings in the superior court, be handed in at the proceedings and shall be prima facie proof of the service.

 

(c)      The provisions of section 55(1) and (2) shall mutatis mutandis apply with reference to a notice of trial served on an accused in terms of this subsection.

 

145.   Trial in superior court by judge sitting with or without assessors

 

(1)

(a)     Except as provided in section 148, an accused arraigned before a superior court shall be tried by a judge of that court sitting with or without assessors in accordance with the provisions set out hereunder.

 

(b)     An assessor for the purposes of this section means a person who, in the opinion of the judge who presides at a trial, has experience in the administration of justice or skill in any matter which may be considered at the trial.

 

(2)     Where an Attorney-General arraigns an accused before a superior court—

 

(a)     for trial and the accused pleads not guilty; or

 

(b)     for sentence, or for trial and the accused pleads guilty, and a plea of not guilty is entered at the direction of the presiding judge,

 

the presiding judge may summon not more than two assessors to assist him at the trial.

[S 145(2) amended by s 2 of Act 107 of 1990, s 31 of Act 105 of 1997.]

 

(3)     No assessor shall hear any evidence unless he first takes an oath or, as the case may be, makes an affirmation, administered by the presiding judge, that he will, on the evidence placed before him, give a true verdict upon the issues to be tried.

 

(4)     An assessor who takes an oath or makes an affirmation under subsection (3) shall be a member of the court: Provided that—

 

(a)     subject to the provisions of paragraphs (b) and (c) of this proviso and of section 217(3)(b), the decision or finding of the majority of the members of the court upon any question of fact or upon the question referred to in the said paragraph (b) shall be the decision or finding of the court, except when the presiding judge sits with only one assessor, in which case the decision or finding of the judge shall, in the case of a difference of opinion, be the decision or finding of the court;

 

(b)     if the presiding judge is of the opinion that it would be in the interests of the administration of justice that the assessor or the assessors assisting him do not take part in any decision upon the question whether evidence of any confession or other statement made by an accused is admissible as evidence against him, the judge alone shall decide upon such question, and he may for this purpose sit alone;

 

(c)      the presiding judge alone shall decide upon any other question of law or upon any question whether any matter constitutes a question of law or a question of fact, and he may for this purpose sit alone.

[S 145(4) substituted by s 4 of Act 64 of 1982.]

 

(5)     If an assessor is not in the full-time employment of the State, he shall be entitled to such compensation as the Minister, in consultation with the Minister of Finance, may determine in respect of· expenses incurred by him in connection with his attendance at the trial, and in respect of his services as assessor.

 

146.   Reasons for decision by superior court in criminal trial

 

A judge presiding at a criminal trial in a superior court shall—

 

(a)     where he decides any question of law, including any question under paragraph (c) of the proviso to section 145(4) whether any matter constitutes a question of law or a question of fact, give the reasons for his decision;

 

(b)     whether he sits with or without assessors, give the reasons for the decision or finding of the court upon any question of fact;

 

(c)      where he sits with assessors, give the reasons for the decision or finding of the court upon the question referred to in paragraph (b) of the proviso to section 145(4);

 

(d)     where he sits with assessors and there is a difference of opinion upon any question of fact or upon the question referred to in paragraph (b) of the proviso to section 145(4), give the reasons for the decision or finding of the member of the court who is in the minority or, where the presiding judge sits with only one assessor, of such an assessor.

[S 146 substituted by s 5 of Act 64 of 1982.]

 

147.   Death or incapacity of assessor

 

(1)     If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as assessor at any time during a trial, the presiding judge may direct—

 

(a)     that the trial proceed before the remaining member or members of the court; or

 

(b)     that the trial start de novo, and for that purpose summon an assessor in the place of the assessor who has died or has become unable to act as assessor.

 

(2)     Where the presiding judge acts under subsection (1)(b), the plea already recorded shall stand.

 

148.   ...

[S 148 repealed by s 10 of Act 62 of 2000.]

 

149.   Change of venue in superior court after indictment has been lodged.

 

(1)     A superior court may, at any time after an indictment has been lodged with the registrar of that court and before the date of trial, upon application by the prosecution and after notice to the accused, or upon application by the accused after notice to the prosecution, order that the trial be held at a place within the area of jurisdiction of such court, other than the place determined for the trial, and that it be held on a date and at a time, other than the date and time determined for the trial.

 

(2)     If the accused is not present or represented at such an application by the prosecution or if the prosecution is not represented at such an application by the accused, the court shall direct that a copy of the order be served on the accused or, as the case may be, on the prosecution, and upon service thereof, the venue and date and time as changed shall be deemed to be the venue and date and time respectively that were originally appointed for the trial.

 

CHAPTER 22

CONDUCT OF PROCEEDINGS

 

150.   Prosecutor may address court and adduce evidence

 

(1)     The prosecutor may at any trial, before any evidence is adduced, address the court for the purpose of explaining the charge and indicating, without comment, to the court what evidence he intends adducing in support of the charge.

 

(2)

(a)     The prosecutor may then examine the witnesses for the prosecution and adduce such evidence as may be admissible to prove that the accused committed the offence referred to in the charge or that he committed an offence of which he may be convicted on the charge.

 

(b)     Where any document may be received in evidence before any court upon its mere production, the prosecutor shall read out such document in court unless the accused is in possession of a copy of such document or dispenses with the reading out thereof.

 

151.   Accused may address court and adduce evidence

 

(1)

(a)     If an accused is not under section 174 discharged at the close of the case for the prosecution, the court shall ask him whether he intends adducing any evidence on behalf of the defence, and if he answers in the affirmative, he may address the court for the purpose of indicating to the court, without comment, what evidence he intends adducing on behalf of the defence.

 

(b)     The court shall also ask the accused whether he himself intends giving evidence on behalf of the defence, and—

 

(i)      if the accused answers in the affirmative, he shall, except where the court on good cause shown allows otherwise, be called as a witness before any other witness for the defence; or

 

(ii)      if the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused’s conduct as may be reasonable in the circumstances.

 

(2)

(a)     The accused may then examine any other witness for the defence and adduce such other evidence on behalf of the defence as may be admissible.

 

(b)     Where any document may be received in evidence before any court upon its mere production and the accused wishes to place such evidence before the court, he shall read out the relevant document in court unless the prosecutor is in possession of a copy of such document or dispenses with the reading out thereof.

 

152.   Criminal proceedings to be conducted in open court

 

Except where otherwise expressly provided by this Act or any other law, criminal proceedings in any court shall take place in open court, and may take place on any day.

 

153.   Circumstances in which criminal proceedings shall not take place in open court

 

(1)     In addition to the provisions of section 63(5) of the Child Justice Act, 2008, if it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.

[S 153(1) substituted by s 99(1) of Act 75 of 2008.]

 

(2)     If it appears to any court at criminal proceedings that there is a likelihood that harm might result to any person, other than an accused, if he testifies at such proceedings, the court may direct—

 

(a)     that such person shall testify behind closed doors and that no person shall be present when such evidence is given unless his presence is necessary in connection with such proceedings or is authorised by the court;

 

(b)     that the identity of such person shall not be revealed or that it shall not be revealed for a period specified by the court.

 

(3)     In criminal proceedings relating to a charge that the accused committed or attempted to commit—

 

(a)     any sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person;

 

(b)     any act for the purpose of furthering the commission of a sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person; or

 

(c)      extortion or any statutory offence of demanding from any other person some advantage which was not due and, by inspiring fear in the mind of such other person, compelling him to render such advantage,

 

the court before which such proceedings are pending may, at the request of such other person or, if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings or any person or class of persons mentioned in the request, shall not be present at the proceedings: Provided that judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be revealed thereby.

[S 153(3) substituted by s 68 of Act 32 of 2007.]

 

(3A)   Any person whose presence is not necessary at criminal proceedings referred to in paragraphs (a) and (b) of subsection (3), shall not be admitted at such proceedings while the other person referred to in those paragraphs is giving evidence, unless such other person or, if he is a minor, his parent or guardian or a person in loco parentis, requests otherwise.

[S 153(3A) inserted by s 2 of Act 103 of 1987.]

 

(4)     ...

[S 153(4) repealed by s 99(1) of Act 75 of 2008.]

 

(5)     Where a witness at criminal proceedings before any court is under the age of 18 years, the court may direct that no person, other than such witness and his parent or guardian or a person in loco parentis, shall be present at such proceedings, unless such person’s presence is necessary in connection with such proceedings or is authorised by the court.

 

(6)     The court may direct that no person under the age of 18 years shall be present at criminal proceedings before the court, unless he is a witness referred to in subsection (5) and is actually giving evidence at such proceedings or his presence is authorised by the court.

 

154.   Prohibition of publication of certain information relating to criminal proceedings

 

(1)     Where a court under section 153(1) on any of the grounds referred to in that subsection directs that the public or any class thereof shall not be present at any proceedings or part thereof, the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever: Provided that a direction by the court shall not prevent the publication of information relating to the name and personal particulars of the accused, the charge against him, the plea, the verdict and the sentence, unless the court is of the opinion that the publication of any part of such information might defeat the object of its direction under section 153(1), in which event the court may direct that such part shall not be published.

 

(2)

(a)     Where a court under section 153(3) directs that any person or class of persons shall not be present at criminal proceedings or where any person is in terms of section 153(3A) not admitted at criminal proceedings, no person shall publish in any manner whatever any information which might reveal the identity of any complainant in the proceedings: Provided that the presiding judge or judicial officer may authorise the publication of such information if he is of the opinion that such publication would be just and equitable.

[S 154(2)(a) substituted by s 3 of Act 103 of 1987.]

 

(b)     No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153(3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.

 

(3)    

(a)     No person shall before, during or at any stage after the conclusion of criminal proceedings, in     any manner, including on any social media or electronic platform publish any information which    reveals or may reveal the identity of—

 

(i)      an accused who is or was under the age of 18 years at the time of the alleged commission of an offence;

 

(ii)      a witness who is or was under the age of 18 years at the time of the alleged commission of an offence; or

 

(iii)     a person against whom an offence has allegedly been committed who is or was under the age of 18 years at the time of the alleged commission of the offence, unless the publication of such information is authorised in terms of subsection (3B).

 

          (b)     Subject to paragraph (a), the presiding judge or judicial officer at such criminal proceedings,       may authorise the publication of as much of any information relating to the proceedings as he or         she may deem fit, if the publication thereof would in his or her opinion be just and equitable and    in the interest of any particular person.

[S 154(3) substituted by s 1(a) of Act 16 of 2021 with effect from 9 February 2022.]

 

(3A)   Notwithstanding subsection (3) (a), and in the event where substantial injustice would result and no other means are available, information may be published by a police official or by any other person, who is authorised by the National Commissioner of the South African Police Service or a person delegated by him or her—

 

(a)     which reveals or may reveal the identity of an accused under the age of 18 years, if—

 

(i)

(aa)   there are reasonable grounds to suspect that the accused committed an offence listed in Schedule 3 to the Child Justice Act, 2008 (Act 75 of 2008), or an offence which, if committed by an adult, would have justified a term of imprisonment exceeding 10 years; or

 

(bb)   the accused escaped from lawful custody or any other place of detention or was released on bail or a warning and failed to appear or remain in attendance at the proceedings, as contemplated in section 67 (1);

 

(ii)      the South African Police Service has been unsuccessful in locating the whereabouts of the accused;

 

(iii)     the information so published does not reveal the age of the accused or the fact that the    accused is involved in the commission of the offence; and

 

(iv)     it is necessary as a measure to locate the whereabouts of the accused;

 

(b)     which reveals or may reveal the identity of a witness under the age of 18 years, if—

 

(i)      it is necessary as a measure to locate the whereabouts of the witness to obtain a    statement from him or her concerning the commission of any alleged offence, or to testify in criminal proceedings; and

 

(ii)      the information so published does not reveal the age of the person or the fact the he or she may be a witness at criminal proceedings;

 

(c)      which reveals or may reveal the identity of a person under the age of 18 years against whom an          offence has allegedly been committed, if—

 

(i)      it is necessary to locate the whereabouts of the person to prevent harm to such a    person; and

 

(ii)      the information so published is reasonably necessary in the circumstances to identify the person, or any other person who may have relevant information about the alleged offence or whereabouts of the person; or

 

(d)     which reveals or may reveal the identity of a person under the age of 18 years, whether or not    an offence has allegedly been committed against the person, if—

 

(i)      it is necessary to locate the whereabouts of the person to prevent harm to such a person;          and

 

(ii)      the information so published is reasonably necessary in the circumstances to identify the person, or any other person who may have relevant information about—

 

(aa)   an alleged offence which may have been committed against the person; or

 

(bb)   the whereabouts of the person.

[S 154(3A) inserted by s 1 (b) of Act 16 of 2021 with effect from 9 February 2022.]

 

(3B)  

(a)     The court before which criminal proceedings contemplated in subsection (3) have been concluded may, on application of an accused, a witness or a person contemplated in subsection (3)(a) who has attained the age of 18 years and where the court has granted an order that extends into adulthood, grant an order authorising the publication of information which reveals he identity of the applicant, if the court is satisfied that the applicant understands the nature and effect of a court order in terms of this subsection.

 

          (b)     The High Court before which, or in whose area of jurisdiction, the criminal proceedings     contemplated in subsection (3) have been concluded may, on the application of an interested person, grant an order authorising the publication of information which may reveal the identity of          a person contemplated in subsection (3) (a).

 

          (c)      In determining whether an order may be granted, a court referred to in paragraph (a) or (b) must          take into account all relevant factors, including—

 

(i)      the nature of the charges against the accused;

 

(ii)      the age of the persons referred to in subsection (3) (a);

 

(iii)     the period which has elapsed since completion of the criminal proceedings and the application;

 

(iv)     the interest of the public or any person or category of persons in the publication of such information;

 

(v)      the interest of society to encourage the reporting of offences and the participation of         witnesses and victims of offences in criminal justice processes;

 

(vi)     the likelihood that the publication of such information, which reveals the identity of a person contemplated in subsection (3) (a), will also reveal the identity of any other person contemplated in subsection (1), (2), (3) (a) or (5);

 

(vii)    the nature and extent of any hardship that a person contemplated in subsection (3) (a) or any person related to such person may suffer if such information is published; and

 

(viii)   the effect of the order on—

 

(aa)   a person's freedom of expression; and

 

(bb)   the dignity, security and privacy of a person referred to in subsection (3) (a) or any person related to such person.

 

(d)     A court may, if it deems it in the interest of the administration of justice, hold a hearing to determine whether an order should be granted.

 

(e)     A hearing contemplated in paragraph (d) must take place behind closed doors and no person shall be present at such hearing, unless his or her presence is necessary in connection with such hearing or is authorised by the court.

 

          (f)      The verdict of the court must be delivered in open court: Provided that the court may decline to state in open court all or any of the facts, reasons or other considerations that it has taken into        account in reaching its verdict, if it is of the opinion that the identity of a person contemplated in     subsection (3) (a) may be revealed thereby.

 

          (g)     No person shall in any manner disclose—

 

(i)      the contents of an application;

 

(ii)      any evidence taken, information provided or submissions made at the hearing; or

 

(iii)     any other information that may reveal the identity of a person contemplated in subsection (3) (a),

 

unless it is authorised by the court or required in the course of further legal proceedings relating to the hearing or in the course of the administration of justice.

[S 154(3B) inserted by s 1 (b) of Act 16 of 2021 with effect from 9 February 2022.]

 

(4)     No prohibition or direction under this section shall apply with reference to the publication in the form of a bona fide law report of—

 

(a)     information for the purpose of reporting any question of law relating to the proceedings in question; or

 

(b)     any decision or ruling given by any court on such question,

 

if such report does not mention the name of the person charged or of the person against whom or in connection with whom the offence in question was alleged to have been committed or of any witness at such proceedings, and does not mention the place where the offence in question was alleged to have been committed.

 

(5)     Any person who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatever reveals the identity of a witness in contravention of a direction under section 153(2), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment if the person in respect of whom the publication or revelation of identity was done, is over the age of 18 years, and if such person is under the age of 18 years, to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

[S 154(5) substituted by s 12 of Act 33 of 1986, s 68 of Act 32 of 2007.]

 

(6)     The provisions of section 300 are applicable, with the changes required by the context, upon the conviction of a person in terms of subsection (5) and if—

 

(a)     the criminal proceedings that gave rise to the publication of information or the revelation of identity as contemplated in that subsection related to a charge that an accused person committed or attempted to commit any sexual act as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person or any act for the purpose of procuring or furthering the commission of a sexual act, as contemplated in that Act, towards or in connection with any other person; and

 

(b)     the other person referred to in paragraph (a) suffered any physical, psychological or other injury or loss of income or support.

[S 154(6) inserted by s 68 of Act 32 of 2007.]

 

155.   Persons implicated in same offence may be tried together

 

(1)     Any number of participants in the same offence may be tried together and any number of accessories after the same fact may be tried together or any number of participants in the same offence and any number of accessories after that fact may be tried together, and each such participant and each such accessory may be charged at such trial with the relevant substantive offence alleged against him.

 

(2)     A receiver of property obtained by means of an offence shall for purposes of this section be deemed to be a participant in the offence in question.

 

156.   Persons committing separate offences at same time and place may be tried together

 

Any number of persons charged in respect of separate offences committed at the same place and at the same time or at about the same time, may be charged and tried together in respect of such offences if the prosecutor informs the court that evidence admissible at the trial of one of such persons will, in his opinion, also be admissible as evidence at the trial of any other such person or such persons.

 

157.   Joinder of accused and separation of trials

 

(1)     An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question.

 

(2)     Where two or more persons are charged jointly, whether with the same offence or with different offences, the court may at any time during the trial, upon the application of the prosecutor or of any of the accused, direct that the trial of anyone or more of the accused shall be held separately from the trial of the other accused, and the court may abstain from giving judgment in respect of any of such accused.

 

158.   Criminal proceedings to take place in presence of accused

 

(1)     Except as otherwise expressly provided by this Act or any other law, all criminal proceedings in any court shall take place in the presence of the accused.

 

(2)

(a)     A court may, subject to section 153, on its own initiative or on application by the public prosecutor, order that a witness, irrespective of whether the witness is in or outside the Republic, or an accused, if the witness or accused consents thereto, may give evidence by means of closed circuit television or similar electronic media.

[S 158(2)(a) substituted by s 6(a) of Act 12 of 2021 with effect from 5 August 2022.]

 

(b)     A court may make a similar order on the application of an accused or a witness.

 

(3)     A court may make an order contemplated in subsection (2) only if facilities therefor are readily available or obtainable and if it appears to the court that to do so would—

 

(a)     prevent unreasonable delay;

 

(b)     save costs;

 

(c)      be convenient;

 

(d)     be in the interest of the security of the State or of public safety or in the interests of justice or the public; or

 

(e)     prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings.

 

(4)     The court may, in order to ensure a fair and just trial, make the giving of evidence in terms of subsection (2) subject to such conditions as it may deem necessary: Provided that the prosecutor and the accused have the right, by means of that procedure, to question a witness and to observe the reaction of that witness.

 

(5)     The court shall provide reasons for refusing any application by the public prosecutor for the giving of evidence by a child complainant below the age of 14 years by means of closed circuit television or similar electronic media, immediately upon refusal and such reasons shall be entered into the record of the proceedings.

[S158(5) inserted by s 68 of Act 32 of 2007.]

 

(6)     For purposes of this section, a witness who is outside the Republic and who gives evidence by means of closed circuit television or similar electronic media, is regarded as a witness who was subpoenaed     to give evidence in the court in question.

[S 158(6) inserted by s 6(b) of Act 12 of 2021 with effect from 5 August 2022.]

[S 158 substituted by s 7 of Act 86 of 1996.]

 

159.   Circumstances in which criminal proceedings may take place in absence of accused

 

(1)     If an accused at criminal proceedings conducts himself in a manner which makes the continuance of the proceedings in his presence impracticable, the court may direct that he be removed and that the proceedings continue in his absence.

 

(2)     If two or more accused appear jointly at criminal proceedings and—

 

(a)     the court is at any time after the commencement of the proceedings satisfied, upon application made to it by any accused in person or by his representative—

 

(i)      that the physical condition of that accused is such that he is unable to attend the proceedings or that it is undesirable that he should attend the proceedings; or

 

(ii)      that circumstances relating to the illness or death of a member of the family of that accused make his absence from the proceedings necessary; or

 

(b)     any of the accused is absent from the proceedings, whether under the provisions of subsection (1) or without leave of the court,

 

the court, if it is of the opinion that the proceedings cannot be postponed without undue prejudice, embarrassment or inconvenience to the prosecution or any co-accused or any witness in attendance or subpoenaed to attend, may—

 

(aa)    in the case of paragraph (a), authorise the absence of the accused concerned from the proceedings for a period determined by the court and on the conditions which the court may deem fit to impose; and

 

(bb)    direct that the proceedings be proceeded with in the absence of the accused concerned.

 

(3)     Where an accused becomes absent from the proceedings in the circumstances referred to in subsection (2), the court may, in lieu of directing that the proceedings be proceeded with in the absence of the accused concerned, upon the application of the prosecution direct that the proceedings in respect of the absent accused be separated from the proceedings in respect of the accused who are present, and thereafter, when such accused is again in attendance, the proceedings against him shall continue from the stage at which he became absent, and the court shall not be required to be differently constituted merely by reason of such separation.

 

(4)     If an accused who is in custody in terms of an order of court cannot, by reason of his physical indisposition or other physical condition, be brought before a court for the purposes of obtaining an order for his further detention, the court before which the accused would have been brought for purposes of such an order if it were not for the indisposition or other condition, may, upon application made by the prosecution at any time prior to the expiry of the order for his detention wherein the circumstances surrounding the indisposition or other condition are set out, supported by a certificate from a medical practitioner, order, in the absence of such an accused, that he be detained at a place indicated by the court and for the period which the court deems necessary in order that he can recover and be brought before the court so that an order for his further detention for the purposes of his trial can be obtained.

[S 159(4) inserted by s 9 of Act 5 of 1991.]

 

159A. Postponement of certain criminal proceedings through audiovisual link

 

(1)     For purposes of this section and sections 159B, 159C and 159D, unless the context indicates otherwise—

 

(a)     “appropriate person” means any court official or any other person at the court point and remote point who is required to be, or may be, present at the proceedings, including the presiding officer, the prosecutor, the accused person’s legal representative, any technical assistant, the clerk of the court, any witnesses, and members of the public who are entitled to be present;

 

(b)     “audio link” means a live telephone link between the court point and the remote point which are both equipped with facilities which will enable audio communication between all appropriate persons at the court point and the remote point;

 

(c)      “audiovisual link” means a live television link between the court point and the remote point which are both equipped with facilities which will enable all appropriate persons at the court point and the remote point to follow the proceedings and see and hear all the appropriate persons;

 

(d)     “court point” means the courtroom or other place where the court having jurisdiction is sitting;

 

(e)     “correctional facility” means a correctional facility as defined in the Correctional Services Act, 1998 (Act 111 of 1998), but does not include a police cell or lock-up; and

 

(f)      “remote point” means the room or place at the designated correctional facility where the accused person appearing through audiovisual link is located.

 

(2)     An accused person—

 

(a)     who is over the age of 18 years;

 

(b)     who is in custody in a correctional facility in respect of an offence;

 

(c)      who has already appeared before a court;

 

(d)     whose case has been postponed and who is in custody pending his or her trial; and

 

(e)     who is required to appear or to be brought before a court in any subsequent proceedings (whether before, during or after the trial or conviction and sentence) for the purpose of—

 

(i)      a further postponement of the case; or

 

(ii)      consideration of release on bail in terms of section 60, 63, 63A, 307, 308A or 321, where the granting of bail is not opposed by the prosecutor or where the granting of bail does not require the leading of evidence,

 

is not required to appear or to be brought physically before the court but may, subject to the provisions of this section, sections 159B, 159C and 159D, appear before court by audiovisual link and is deemed to be physically before court, unless the court directs, in the interests of justice, that he or she appears or be brought physically before it.

 

(3)     Any proceedings in terms of subsection (2) shall be regarded as having been held in the presence of the accused person if, during the proceedings, that person—

 

(a)     is held in custody in a correctional facility; and

 

(b)     is able to follow the court proceedings and the court is able to see and hear the accused person by means of audiovisual link.

 

(4)     The remote point shall be regarded as being a part of the court.

[S 159A inserted by s 1 of Act 65 of 2008 with effect from 1 October 2010 in respect of the magisterial districts of Bellville, Bloemfontein, Cape, Durban, Khayelitsha, Kroonstad, Kimberley, Klip River, Kuils River, Mitchells Plain, Nelspruit, Paarl, Pinetown, Port Elizabeth, Pretoria, Thohoyandou and Wynberg, with effect from 15 February 2011 in respect of the magisterial district of Pietermaritzburg, with effect from 31 October 2011 in respect of the magisterial district of Highveld Ridge, with effect from 11 November 2011 in respect of the magisterial districts of Alberton, Benoni, Boksburg, East London, Germiston, Inanda, Johannesburg, Kempton Park, Krugersdorp, Mdantsane, Moretele, Mthata, Odi, Pietermaritzburg, Randburg, Roodepoort, Uitenhage, Umlazi, Vanderbijlpark, Vereeniging and Wonderboom, with effect from 30 September 2014 in respect of the magisterial districts of Phuthadithjaba and Witbank, with effect from 1 December 2014 in respect of the subdistrict of Tembisa, with effect from 31 January 2017 in respect of subdistrict of Ga Rankuwa: see ProcR 4 of 2017, with effect from 31 January 2017 in respect of subdistrict of Sebokeng: see ProcR 5 of 2017, with effect from 31 January 2017 in respect of subdistrict of Soweto: see ProcR 7 of 2017, with effect from 24 February 2017 in respect of the magisterial districts of Gordonia and Namaqualand: see ProcR 6 of 2017.]

 

159B. Requirements for audiovisual appearance by accused person

 

(1)     An accused person appearing before a court by audiovisual link must do so from a place at which the requirements referred to in subsections (2) and (3) and section 159C are complied with.

 

(2)     The Minister may, subject to the provisions of this section, designate any correctional facility which has been suitably equipped as a place where proceedings in terms of section 159A can be held.

 

(3)     Both the court point and the remote point in the correctional facility designated in terms of subsection (2) must be equipped with facilities that, in accordance with any requirements prescribed by regulations and any directions of the court referred to in section 159C, allow—

 

(a)     private communication to take place between the accused person and any legal practitioner representing that person in the proceedings at the court point; and

 

(b)     documents to be transmitted between both points by the persons referred to in paragraph (a)—

 

(i)      at any time during the proceedings;

 

(ii)      during any adjournment of the hearing in the proceedings referred to in paragraph (a); or

 

(iii)     at any time on the day of a hearing, shortly before or after the hearing.

 

(4)     The court must, at every appearance of an accused person in terms of section 159A, inquire into the physical and mental well-being of the accused person and for that purpose may, where necessary, direct that the facilities referred to in section 159C be used in such a manner which will enable the presiding officer to satisfy himself or herself as to the accused person’s well-being as that presiding officer would be able to do if the accused person were physically before the court.

[S 159B inserted by s 1 of Act 65 of 2008 with effect from 1 October 2010 in respect of the magisterial districts of Bellville, Bloemfontein, Cape, Durban, Khayelitsha, Kroonstad, Kimberley, Klip River, Kuils River, Mitchells Plain, Nelspruit, Paarl, Pinetown, Port Elizabeth, Pretoria, Thohoyandou and Wynberg, with effect from 15 February 2011 in respect of the magisterial district of Pietermaritzburg, with effect from 31 October 2011 in respect of the magisterial district of Highveld Ridge, with effect from 11 November 2011 in respect of the magisterial districts of Alberton, Benoni, Boksburg, East London, Germiston, Inanda, Johannesburg, Kempton Park, Krugersdorp, Mdantsane, Moretele, Mthata, Odi, Pietermaritzburg, Randburg, Roodepoort, Uitenhage, Umlazi, Vanderbijlpark, Vereeniging and Wonderboom, with effect from 30 September 2014 in respect of the magisterial districts of Phuthadithjaba and Witbank, with effect from 1 December 2014 in respect of the subdistrict of Tembisa, with effect from 31 January 2017 in respect of subdistrict of Ga Rankuwa: see ProcR 4 of 2017, with effect from 31 January 2017 in respect of subdistrict of Sebokeng: see ProcR 5 of 2017, with effect from 31 January 2017 in respect of subdistrict of Soweto: see ProcR 7 of 2017, with effect from 24 February 2017 in respect of the magisterial districts of Gordonia and Namaqualand: see ProcR 6 of 2017.]

 

159C. Technical requirements for use of audiovisual link

 

(1)     For the purposes of proceedings in terms of section 159A, both the court point and the remote point must be equipped with facilities that enable all appropriate persons—

 

(a)     at the court point to see and hear a person appearing before the court or making a submission or any other appropriate person at the remote point and to follow the proceedings; and

 

(b)     at the remote point to see and hear all appropriate persons at the court point and to follow the proceedings.

 

(2)

(a)     In the event of—

 

(i)      an interruption of an audiovisual link;

 

(ii)      an audiovisual link being of a poor quality which, in the opinion of the court, is not in the interests of justice to continue the proceedings by way of audiovisual link; or

 

(iii)     any of the facilities referred to in subsection (1) malfunctioning,

 

the court must, subject to paragraph (b), direct that the matter stand down and cause the accused person to be brought physically before the court on the day in question.

 

(b)     If it is not reasonably practicable to bring the accused person to court on the day, as provided for in paragraph (a), the court must, prior to the expiry of the existing court order for the accused person’s detention, postpone the proceedings in the absence of the accused person, to the next court day.

 

(3)     The Minister may make any regulations necessary to give effect to the technical requirements referred to in subsection (1).

 

(4)     A court may, in order to ensure a fair trial, give any directions in any case as it may deem necessary, which may not be inconsistent with any provision of this Act or any regulation made thereunder.

[S 159C inserted by s 1 of Act 65 of 2008 with effect from 1 October 2010 in respect of the magisterial districts of Bellville, Bloemfontein, Cape, Durban, Khayelitsha, Kroonstad, Kimberley, Klip River, Kuils River, Mitchells Plain, Nelspruit, Paarl, Pinetown, Port Elizabeth, Pretoria, Thohoyandou and Wynberg, with effect from 15 February 2011 in respect of the magisterial district of Pietermaritzburg, with effect from 31 October 2011 in respect of the magisterial district of Highveld Ridge, with effect from 11 November 2011 in respect of the magisterial districts of Alberton, Benoni, Boksburg, East London, Germiston, Inanda, Johannesburg, Kempton Park, Krugersdorp, Mdantsane, Moretele, Mthata, Odi, Pietermaritzburg, Randburg, Roodepoort, Uitenhage, Umlazi, Vanderbijlpark, Vereeniging and Wonderboom, with effect from 30 September 2014 in respect of the magisterial districts of Phuthadithjaba and Witbank, with effect from 1 December 2014 in respect of the subdistrict of Tembisa, with effect from 31 January 2017 in respect of subdistrict of Ga Rankuwa: see ProcR 4 of 2017, with effect from 31 January 2017 in respect of subdistrict of Sebokeng: see ProcR 5 of 2017, with effect from 31 January 2017 in respect of subdistrict of Soweto: see ProcR 7 of 2017, with effect from 24 February 2017 in respect of the magisterial districts of Gordonia and Namaqualand: see ProcR 6 of 2017.]

 

159D. Protection of communication between accused person and legal representative

 

Without limiting any other protection applying to it, a communication by audio link or audiovisual link, or a document transmitted between an accused person and his or her legal representative as provided for in section 159B(3), is confidential and inadmissible in any proceedings as if the communication took place or the document was produced while they were in the presence of each other.

[S 159D inserted by s 1 of Act 65 of 2008 with effect from 1 October 2010 in respect of the magisterial districts of Bellville, Bloemfontein, Cape, Durban, Khayelitsha, Kroonstad, Kimberley, Klip River, Kuils River, Mitchells Plain, Nelspruit, Paarl, Pinetown, Port Elizabeth, Pretoria, Thohoyandou and Wynberg, with effect from 15 February 2011 in respect of the magisterial district of Pietermaritzburg, with effect from 31 October 2011 in respect of the magisterial district of Highveld Ridge, with effect from 11 November 2011 in respect of the magisterial districts of Alberton, Benoni, Boksburg, East London, Germiston, Inanda, Johannesburg, Kempton Park, Krugersdorp, Mdantsane, Moretele, Mthata, Odi, Pietermaritzburg, Randburg, Roodepoort, Uitenhage, Umlazi, Vanderbijlpark, Vereeniging and Wonderboom, with effect from 30 September 2014 in respect of the magisterial districts of Phuthadithjaba and Witbank, with effect from 1 December 2014 in respect of the subdistrict of Tembisa, with effect from 31 January 2017 in respect of subdistrict of Ga Rankuwa: see ProcR 4 of 2017, with effect from 31 January 2017 in respect of subdistrict of Sebokeng: see ProcR 5 of 2017, with effect from 31 January 2017 in respect of subdistrict of Soweto: see ProcR 7 of 2017, with effect from 24 February 2017 in respect of the magisterial districts of Gordonia and Namaqualand: see ProcR 6 of 2017.]

 

160.   Procedure at criminal proceedings where accused is absent

 

(1)     If an accused referred to in section 159(1) or (2) again attends the proceedings in question, he may, unless he was legally represented during his absence, examine any witness who testified during his absence, and inspect the record of the proceedings or require the court to have such record read over to him.

 

(2)     If the examination of a witness under subsection (1) takes place after the evidence on behalf of the prosecution or any co-accused has been concluded, the prosecution or such co-accused may in respect of any issue raised by the examination, lead evidence in rebuttal of evidence relating to the issue so raised.

 

(3)

(a)     When the evidence on behalf of all the accused, other than an accused who is absent from the proceedings, is concluded, the court shall, subject to the provisions of paragraph (b), postpone the proceedings until such absent accused is in attendance and, if necessary, further postpone the proceedings until the evidence, if any, on behalf of that accused has been led.

 

(b)     If it appears to the court that the presence of an absent accused cannot reasonably be obtained, the court may direct that the proceedings in respect of the accused who are present be concluded as if such proceedings had been separated from the proceedings at the stage at which the accused concerned became absent from the proceedings, and when such absent accused is again in attendance, the proceedings against him shall continue from the stage at which he became absent, and the court shall not be required to be differently constituted merely by reason of such separation.

 

(c)      When, in the case of a trial, the evidence on behalf of all the accused has been concluded and any accused is absent when the verdict is to be delivered, the verdict may be delivered in respect of all the accused or be withheld until all the accused are present or be delivered in respect of any accused present and withheld in respect of the absent accused until he is again in attendance.

 

161.   Witness to testify viva voce

 

(1)     A witness at criminal proceedings shall, except where this Act or any other law expressly provides otherwise, give his evidence viva voce.

 

(2)     In this section the expression “viva voce” shall—

 

(a)     in the case of a witness lacking the sense of hearing or the ability to speak, be deemed to          include gesture-language; and

 

(b)     in the case of a witness under the age of eighteen years or a witness who suffers from a   physical, psychological, mental or emotional condition, which inhibits the ability of that witness         to give his or her evidence viva voce,

 

be deemed to include demonstrations, gestures or any other form of non-verbal expression.

[S 161(2) substituted by s 1 of Act 135 of 1991, s 7 of Act 12 of 2021 with effect from 5 August 2022.]

 

162.   Witness to be examined under oath

 

(1)     Subject to the provisions of sections 163 and 164, no person shall be examined as a witness in criminal proceedings unless he is under oath, which shall be administered by the presiding judicial officer or, in the case of a superior court, by the presiding judge or the registrar of the court, and which shall be in the following form—

 

“I swear that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.”.

 

(2)     If any person to whom the oath is administered wishes to take the oath with uplifted hand, he shall be permitted to do so.

 

163.   Affirmation in lieu of oath

 

(1)     Any person who is or may be required to take the oath and—

 

(a)     who objects to taking the oath;

 

(b)     who objects to taking the oath in the prescribed form;

 

(c)      who does not consider the oath in the prescribed form to be binding on his conscience; or

 

(d)     who informs the presiding judge or, as the case may be, the presiding judicial officer, that he has no religious belief or that the taking of the oath is contrary to his religious belief,

 

shall make an affirmation in the following words in lieu of the oath and at the direction of the presiding judicial officer or, in the case of a superior court, the presiding judge or the registrar of the court—

 

“I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.”.

 

(2)     Such affirmation shall have the same legal force and effect as if the person making it had taken the oath.

 

(3)     The validity of an oath duly taken by a witness shall not be affected if such witness does not on any of the grounds referred to in subsection (1) decline to take the oath.

 

164.   When unsworn or unaffirmed evidence admissible

 

(1)     Any person, who is found not to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation: Provided that such person shall, in lieu of the oath or affirmation, be admonished by the presiding judge or judicial officer to speak the truth.

[S 164(1) substituted by s 68 of Act 32 of 2007.]

 

(2)     If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.

 

165.   Oath, affirmation or admonition may be administered by or through an interpreter or intermediary

 

Where the person concerned is to give his evidence through an interpreter or an intermediary appointed under section 170A(1), the oath, affirmation or admonition under section 162, 163 or 164 shall be administered by the presiding judge or judicial officer or the registrar of the court, as the case may be, through the interpreter or intermediary or by the interpreter or intermediary in the presence or under the eyes of the presiding judge or judicial officer, as the case may be.

[S 165 substituted by s 2 of Act 135 of 1991.]

 

166.   Cross-examination and re-examination of witnesses

 

(1)     An accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings or any co-accused who testifies at criminal proceedings or any witness called on behalf of such co-accused at criminal proceedings, and the prosecutor may cross-examine any witness, including an accused, called on behalf of the defence at criminal proceedings, and a witness called at such proceedings on behalf of the prosecution may be re-examined by the prosecutor on any matter raised during the cross-examination of that witness, and a witness called on behalf of the defence at such proceedings may likewise be re-examined by the accused.

 

(2)     The prosecutor and the accused may, with leave of the court, examine or cross-examine any witness called by the court at criminal proceedings.

 

(3)

(a)     If it appears to a court that any cross-examination contemplated in this section is being protracted unreasonably and thereby 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 the length thereof or regarding 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.

[S 166(3) inserted by s 8 of Act 86 of 1996.]

 

167.   Court may examine witness or person in attendance.

 

The court may at any stage of criminal proceedings examine any person, other than an accused, who has been subpoenaed to attend such proceedings or who is in attendance at such proceedings, and may recall and re-examine any person, including an accused, already examined at the proceedings, and the court shall examine, or recall and re-examine, the person concerned if his evidence appears to the court essential to the just decision of the case.

 

168.   Court may adjourn proceedings to any date

 

A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient, adjourn the proceedings to any date on the terms which to the court may seem proper and which are not inconsistent with any provision of this Act.

 

169.   Court may adjourn proceedings to any place

 

A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient that the proceedings be continued at any place within its area of jurisdiction other than the one where the court is sitting, adjourn the proceedings to such other place, or, if the court with reference to any circumstance relevant to the proceedings deems it necessary or expedient that the proceedings be adjourned to a place other than the place at which the court is sitting, adjourn the proceedings, on the terms which to the court may seem proper, to any such place, whether within or outside the area of jurisdiction of such court, for the purpose of performing at such place any function of the court relevant to such circumstance.

[S 169 substituted by s 19 of Act 59 of 1983.]

 

170.   Failure of accused to appear after adjournment or to remain in attendance

 

(1)     An accused at criminal proceedings who is not in custody and who has not been released on bail, and who fails to appear at the place and on the date and at the time to which such proceedings may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment prescribed under subsection (2).

 

(2)     The court may, if satisfied that an accused referred to in subsection (1) has failed to appear at the place and on the date and at the time to which the proceedings in question were adjourned or has failed to remain in attendance at such proceedings as so adjourned, issue a warrant for his arrest and, when he is brought before the court, in a summary manner enquire into his failure so to appear or so to remain in attendance and, unless the accused satisfies the court that his failure was not due to fault on his part, convict him of the offence referred to in subsection (1) and sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

[S 170 amended by s 11 of Act 56 of 1979; substituted by s 5 of Act 109 of 1984; s 170(2) substituted by s 13 of Act 33 of 1986.]

 

170A. Evidence through intermediaries

 

(1)     Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness—

 

(a)     under the biological or mental age of eighteen years;

 

(b)     who suffers from a physical, psychological, mental or emotional condition; or

 

(c)      who is an older person as defined in section 1 of the Older Persons Act, 2006 (Act 13 of 2006),

 

to undue psychological, mental or emotional stress, trauma or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.

[S 170A(1) substituted by s 68 of Act 32 of 2007, s 8(a) of Act 12 of 2021 with effect from 5 August 2022.]

 

(2)    

(a)     No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary, except examination by the court, may take place in any manner other than through that intermediary.

[S 170A(2)(a) substituted by s 8(b) of Act 12 of 2021 with effect from 5 August 2022.]

 

(b)     The said intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness.

 

(3)     If a court appoints an intermediary under subsection (1), the court may direct that the relevant witness shall give his or her evidence at any place—

 

(a)     which is informally arranged to set that witness at ease;

 

(b)     which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and

 

(c)      which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary as well as that witness during his or her testimony.

 

(4)

(a)     The Minister may by notice in the Gazette determine the persons or the category or class of persons who are competent to be appointed as intermediaries.

 

(b)     An intermediary who is not in the full-time employment of the State shall be paid such travelling and subsistence and other allowances in respect of the services rendered by him or her as the Minister, with the concurrence of the Minister of Finance, may determine.

 

(5)

(a)     No oath, affirmation or admonition which has been administered through an intermediary in terms of section 165 shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary in terms of a regulation referred to in subsection (4)(a), at the time when such oath, affirmation or admonition was administered or such evidence was presented.

 

(b)     If in any proceedings it appears to a court that an oath, affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary in terms of a regulation referred to in subsection (4)(a), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to—

 

(i)      the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason concerned will affect the reliability of the evidence so presented adversely;

 

(ii)      the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and

 

(iii)     the likelihood that real and substantial justice will be impaired if that evidence is admitted.

 

(6)

(a)     Subsection (5) does not prevent the prosecution from presenting anew any evidence which was presented through an intermediary referred to in that subsection.

 

(b)     The provisions of subsection (5) shall also be applicable in respect of all cases where an intermediary referred to in that subsection has been appointed, and in respect of which, at the time of the commencement of that subsection—

 

(i)      the trial court; or

 

(ii)      the court considering an appeal or review, has not delivered judgment.

 

(7)

(a)     The court must provide reasons for refusing any application or request by the public prosecutor or a witness referred to in subsection (1), for the appointment of an intermediary, immediately          upon refusal, which reasons must be entered into the record of the proceedings.

 

          (b)     A court may, on application by the public prosecutor and if it is satisfied that there is a material   change in respect of any fact or circumstance that influenced the refusal contemplated in    paragraph (a), review its decision.

[S 170A(7) inserted by s 68 of Act 32 of 2007, s 8(c) of Act 12 of 2021 with effect from 5 August 2022.]

 

(8)     An intermediary referred to in subsection (1) shall be summoned to appear in court on a specified date and at a specified place and time to act as an intermediary.

[S 170A(8) inserted by s 68 of Act 32 of 2007.]

 

(9)     If, at the commencement of or at any stage before the completion of the proceedings concerned, an intermediary appointed by the court—

 

(a)     is for any reason absent;

 

(b)     becomes unable to act as an intermediary in the opinion of the court; or

 

(c)      dies,

 

the court may, in the interests of justice and after due consideration of the arguments put forward by the accused person and the prosecutor—

 

(i)       postpone the proceedings in order to obtain the intermediary’s presence;

 

(ii)      summons the intermediary to appear before the court to advance reasons for being absent;

 

(iii)     direct that the appointment of the intermediary be revoked and appoint another intermediary; or

 

(iv)     direct that the appointment of the intermediary be revoked and that the proceedings continue in the absence of an intermediary.

[S 170A(9) inserted by s 68 of Act 32 of 2007.]

 

(10)   The court shall immediately give reasons for any direction or order referred to in subsection (9)(iv), which reasons shall be entered into the record of the proceedings.

[S 170A(10) inserted by s 68 of Act 32 of 2007.]

 

(11)   Subject to subsection (13), any person who is competent to be appointed as an intermediary in terms of subsection (4) (a) must, before commencing with his or her functions in terms of this section, take an oath or make an affirmation subscribed by him or her, in the form set out below before the judicial officer presiding over the proceedings:

 

“I, ....................... do hereby swear/truly affirm that, whenever I may be called upon to perform the functions of an intermediary, I shall, truly and correctly to the best of my knowledge and ability—

 

(a)     perform my functions as an intermediary; and

 

(b)     convey properly and accurately all questions put to witnesses and, where necessary, convey the general purport of any question to the witness, unless directed otherwise by the court”.

[S 170A(11) inserted by s 8(d) of Act 12 of 2021 with effect from 5 August 2022.]

 

(12)

(a)     Subject to subsection (13), before a person is appointed to perform the functions of an      intermediary—

 

(i)      in a magistrate's court for any district or for any regional division, the magistrate presiding          over the proceedings; or

 

(ii)      in a Superior Court, the judicial officer presiding over the proceedings,

 

must enquire into the competence of the person to be appointed as an intermediary.

 

          (b)     The enquiry contemplated in paragraph (a) must include, but is not limited to, the person's—

 

(i)      fitness as a person to be an intermediary;

 

(ii)      experience which has a bearing on the role and functions of an intermediary;

 

(iii)     qualifications;

 

(iv)     knowledge which has a bearing on the role and functions of an intermediary;

 

(v)      language and communication proficiency; and

 

(vi)     ability to interact with a witness under the biological or mental age of eighteen years or a witness who suffers from a physical, psychological, mental or emotional condition, or a      witness who is an older person as defined in section 1 of the Older Persons Act, 2006.

[S 170A(12) inserted by s 8(d) of Act 12 of 2021 with effect from 5 August 2022.]

 

(13)  

(a)     The head of a court may, at his or her discretion and after holding an enquiry contemplated in    subsection (12), issue a certificate in the form prescribed by the Minister by notice in the     Gazette, to a person whom he or she has found to be competent to appear as an intermediary in the court concerned.

 

          (b)     Before the head of a court issues the certificate referred to in paragraph (a), he or she must       cause the person who has been found competent to be appointed as an intermediary to take      the oath or make the affirmation referred to in subsection (11) and must endorse the certificate     with a statement of the fact that it was taken or made before him or her and of the date on which          it was so taken or made and append his or her signature thereto.

 

          (c)      A certificate contemplated in paragraph (a) may be accepted as proof—

 

(i)      of the competency of a person to be appointed as an intermediary in the court concerned; and

 

(ii)      of the fact that the person has taken the oath or made the affirmation contemplated in      subsection (11),

 

for purposes of this section, in any subsequent proceedings in terms of this Act, before the court concerned in respect of which a certificate contemplated in paragraph (a) was issued by the head of a court and it is not necessary for the magistrate or the judicial officer presiding over the proceedings of the court in question to administer the oath or affirmation or to hold an enquiry into the competence of the person to be appointed as an intermediary.

 

          (d)     Paragraph (c) must not be construed as prohibiting a magistrate or a judicial officer presiding over proceedings from holding an enquiry, at any stage of the proceedings, regarding the        competence of a person to act as an intermediary.

 

          (e)     For the purposes of this section, 'head of a court' means the most senior judicial officer of that court.

[S 170A(13) inserted by s 8(d) of Act 12 of 2021 with effect from 5 August 2022.]

[S 170A inserted by s 3 of Act 135 of 1991; substituted by s 1 of Act 17 of 2001.]

 

171.   Evidence on commission

 

(1)

(a)     Whenever criminal proceedings are pending before any court and it appears to such court on application made to it that the examination of any witness who is resident in the Republic is necessary in the interests of justice and that the attendance of such witness cannot be obtained without undue delay, expense or inconvenience the court may dispense with such attendance and issue a commission to any magistrate.

[S 171(1)(a) substituted by s 36 of Act 75 of 1996.]

 

(b)     The specific matter with regard to which the evidence of the witness is required, shall be set out in the relevant application, and the court may confine the examination of the witness to such matter.

 

(c)      Where the application is made by the State, the court may, as a condition of the commission, direct that the costs of legal representation for the accused at the examination be paid by the State.

 

(2)

(a)     The magistrate to whom the commission is issued, shall proceed to the place where the witness is or shall summon the witness before him or her, and take down the evidence in the manner set out in paragraph (b).

[S 171(2)(a) substituted by s 36 of Act 75 of 1996.]

 

(b)     The witness shall give his or her evidence upon oath or by affirmation, and such evidence shall be recorded and read over to the witness, and if he or she adheres thereto, be subscribed by him or her and the magistrate concerned.

[S 171(2)(b) substituted by s 36 of Act 75 of 1996.]

 

(c)      …

[S 171(2)(c) repealed by s 36 of Act 75 of 1996.]

 

172.   Parties may examine witness

 

Any party to proceedings in which a commission is issued under section 171, may—

 

(a)     transmit interrogatories in writing which the court issuing the commission may think relevant to the issue, and the magistrate to whom the commission is issued, shall examine the witness upon such interrogatories; or

 

(b)     appear before such magistrate, either by a legal representative or, in the case of an accused who is not in custody or in the case of a private prosecutor, in person, and examine the witness.

[S 172 substituted by s 36 of Act 75 of 1996.]

 

173.   Evidence on commission part of court record

 

The magistrate shall return the evidence in question to the court which issued the commission, and such evidence shall be open to the inspection of the parties to the proceedings and shall, in so far as it is admissible as evidence in such proceedings, form part of the record of such court.

[S 173 substituted by s 36 of Act 75 of 1996.]

 

174.   Accused may be discharged at close of case for prosecution

 

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.

 

175.   Prosecution and defence may address court at conclusion of evidence

 

(1)     After all the evidence has been adduced, the prosecutor may address the court, and thereafter the accused may address the court.

 

(2)     The prosecutor may reply on any matter of law raised by the accused in his address, and may, with leave of the court, reply on any matter of fact raised by the accused in his address.

 

176.   Judgment may be corrected

 

When by mistake a wrong judgment is delivered, the court may, before or immediately after it is recorded, amend the judgment.

 

177.   Court may defer final decision

 

The court may at criminal proceedings defer its reasons for any decision on any question raised at such proceedings, and the reasons so deferred shall, when given, be deemed to have been given at the time of the proceedings.

 

178.   Arrest of person committing offence in court and removal from court of person disturbing proceedings

 

(1)     Where an offence is committed in the presence of the court, the presiding judge or judicial officer may order the arrest of the offender.

 

(2)     If any person, other than an accused, who is present at criminal proceedings, disturbs the peace or order of the court, the court may order that such person be removed from the court and that he be detained in custody until the rising of the court.

 

CHAPTER 23

WITNESSES

 

179.   Process for securing attendance of witness

 

(1)

(a)     The prosecutor or an accused may compel the attendance of any person to give evidence or to produce any book, paper or document in criminal proceedings by taking out of the office prescribed by the rules of court the process of court for that purpose.

 

(b)     If any police official has reasonable grounds for believing that the attendance of any person is or will be necessary to give evidence or to produce any book, paper or document in criminal proceedings in a lower court, and hands to such person a written notice calling upon him to attend such criminal proceedings on the date and at the time and place specified in the notice, to give evidence or to produce any book, paper or document, likewise specified, such person shall, for the purposes of this Act, be deemed to have been duly subpoenaed so to attend such criminal proceedings.

 

(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.

 

(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.

 

(b)     In any case where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the relevant application to the judge or judicial officer presiding over the court, who may grant or refuse the application or defer his decision until he has heard other evidence in the case.

 

(4)     For the purposes of this section “prescribed officer of the court” means the registrar, assistant registrar, clerk of the court or any officer prescribed by the rules of court.

 

180.   Service of subpoena

 

(1)     A subpoena in criminal proceedings shall be served in the manner provided by the rules of court by a person empowered to serve a subpoena in criminal proceedings.

 

(2)     A return by the person empowered to serve a subpoena in criminal proceedings, that the service thereof has been duly effected, may, upon the failure of a witness to attend the relevant proceedings, be handed in at such proceedings and shall be prima facie proof of such service.

 

181.   Pre-payment of witness expenses

 

Where a subpoena is served on a witness at a place outside the magisterial district from which the subpoena is issued, or, in the case of a superior court, at a place outside the magisterial district in which the proceedings at which the witness is to appear are to take place, and the witness is required to travel from such place to the court in question, the necessary expenses to travel to and from such court and of sojourn at the court in question, shall on demand be paid to such witness at the time of service of the subpoena.

 

182.   Witness from prison

 

A prisoner who is in a prison shall be subpoenaed as a witness on behalf of the defence or a private prosecutor only if the court before which the prisoner is to appear as a witness authorises that the prisoner be subpoenaed as a witness, and the court shall give such authority only if it is satisfied that the evidence in question is necessary and material for the defence or the private prosecutor, as the case may be, and that the public safety or order will not be endangered by the calling of the witness.

 

183.   Witness to keep police informed of whereabouts

 

(1)     Any person who is advised in writing by any police official that he will be required as a witness in criminal proceedings, shall, until such criminal proceedings have been finally disposed of or until he is officially advised that he will no longer be required as a witness, keep such police official informed at all times of his full residential address or any other address where he may conveniently be found.

 

(2)     Any person who fails to comply with the provisions of subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

[S 183(2) substituted by s 14 of Act 33 of 1986.]

 

184.   Witness about to abscond and witness evading service of summons

 

(1)     Whenever any person is likely to give material evidence in criminal proceedings, any magistrate, regional magistrate or judge of the court before which the relevant proceedings are pending may, upon information in writing and on oath that such person is about to abscond, issue a warrant for his or her arrest.

[S 184(1) substituted by s 3 of Act 126 of 1992, s 9 of Act 8 of 2017.]

 

(2)     If a person referred to in subsection (1) is arrested, the magistrate, regional magistrate or judge, as the case may be, may warn him to appear at the proceedings in question at a stated place and at a stated time and on a stated date and release him on any condition referred to in paragraph (a), (b) or (e) of section 62, in which event the provisions of subsections (1), (3) and (4) of section 66 shall mutatis mutandis apply with reference to any such condition.

 

(3)

(a)     A person who fails to comply with a warning under subsection (2) shall be guilty of an offence and liable to the punishment contemplated in paragraph (b) of this subsection.

 

(b)     The provisions of section 170(2) shall mutatis mutandis apply with reference to any person who is guilty of an offence under paragraph (a) of this subsection.

 

(4)     Whenever any person is likely to give material evidence in criminal proceedings, any magistrate, regional magistrate or judge of the court before which the relevant proceedings are pending may, upon information in writing and on oath that such person is evading service of the relevant subpoena, issue a warrant for his arrest, whereupon the provisions of subsections (2) and (3) shall mutatis mutandis apply with reference to such person.

 

185.   Detention of witness

 

(1)

(a)     Whenever any person is with reference to any offence referred to in Part III of Schedule 2 in the opinion of the Attorney-General likely to give evidence on behalf of the State at criminal proceedings in any court, and the Attorney-General, from information placed before him—

 

(i)      is of the opinion that the personal safety of such person is in danger or that he may abscond· or that he may be tampered with or that he may be intimidated; or

 

(ii)      deems it to be in the interests of such person or of the administration of justice that he be detained in custody,

 

the Attorney-General may by way of affidavit place such information before a judge in chambers and apply to such judge for an order that the person concerned be detained pending the relevant proceedings.

 

(b)     The Attorney-General may in any case in which he is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not detained without delay, order that such person be detained forthwith but such order shall not endure for longer than 72 hours unless the Attorney-General within that time by way of affidavit places before a judge in chambers the information on which he ordered the detention of the person concerned and such further information as might become available to him, and applies to such judge for an order that the person concerned be detained pending the relevant proceedings.

 

(c)      The Attorney-General shall, as soon as he applies to a judge under paragraph (b) for an order of detention, ill writing advise the person in charge of the place where the person concerned is being detained, that he has so applied for an order, and shall, where a judge under subsection (2)(a) refuses to issue a warrant for the detention of the person concerned, forthwith advise the person so in charge of such refusal, whereupon the person so in charge shall without delay release the person detained.

 

(2)

(a)     The judge hearing the application under subsection (1) may, if it appears to him from the information placed before him by the Attorney-General—

 

(i)      that there is a danger that the personal safety of the person concerned may be threatened or that he may abscond or that he may be tampered with or that he may be intimidated; or

 

(ii)      that it would be in the interests of the person concerned or of the administration of justice that he be detained in custody,

 

issue a warrant for the detention of such person.

 

(b)     The decision of a judge under paragraph (a) shall be final: Provided that where a judge refuses an application and further information becomes available to the Attorney-General concerning the person in respect of whom the application was refused, the Attorney-General may again apply under subsection (1)(a) for the detention of that person.

 

(3)     A person in respect of whom a warrant is issued under subsection (2), shall be taken to the place mentioned in the warrant and, in accordance with regulations which the Minister is hereby authorised to make, be detained there or at any other place determined by any judge from time to time, or, where the person concerned is detained in terms of an order by the Attorney-General under subsection (1)(b), such person shall, pending the decision of the judge under subsection (2)(a), be taken to a place determined by the Attorney-General and detained there in accordance with the said regulations.

 

(4)     Any person detained under a warrant in terms of subsection (2) shall be detained for the period terminating on the day on which the criminal proceedings concerned are concluded, unless—

 

(a)     the Attorney-General orders that he be released earlier; or

 

(b)     such proceedings have not commenced within six months from the date on which he is so detained, in which case he shall be released after the expiration of such period.

[S 185(4) substituted by s 2 of Act 79 of 1978.]

 

(5)     No person, other than an officer in the service of the State acting in the performance of his official duties, shall have access to a person detained under subsection (2), except with the consent of and subject to the conditions determined by the Attorney-General or an officer in the service of the State delegated by him.

 

(6)     Any person detained under subsection (2) shall be visited in private at least once during each week by a magistrate of the district or area in which he is detained.

 

(7)     For the purposes of section 191 any person detained under subsection (2) of this section shall be deemed to have attended the criminal proceedings in question as a witness for the State during the whole of the period of his detention.

 

(8)     ...

[S 185(8) repealed by s 68 of Act 88 of 1996.]

 

(9)

(a)     In this section the expression “judge in chambers” means a judge sitting behind closed doors when hearing the relevant application.

 

(b)     No information relating to the proceedings under subsection (1) or (2) shall be published or be made public in any manner whatever.

 

185A. ...

[S 185A inserted by s 4 of Act 135 of 1991; repealed by s 24 of Act 112 of 1998.]

 

186.   Court may subpoena witness

 

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.

 

187.   Witness to attend proceedings and to remain in attendance

 

A witness who is subpoenaed to attend criminal proceedings, shall attend the proceedings and remain in attendance at the proceedings, and a person who is in attendance at criminal proceedings, though not subpoenaed as a witness, and who is warned by the court to remain in attendance at the proceedings, shall remain in attendance at the proceedings, unless such witness or such person is excused by the court: Provided that the court may, at any time during the proceedings in question, order that any person, other than the accused, who is to be called as a witness, shall leave the court and remain absent from the proceedings until he is called, and that he shall remain in court after he has given evidence.

 

188.   Failure by witness to attend or to remain in attendance

 

(1)     Any person who is subpoenaed to attend criminal proceedings and who fails to attend or to remain in attendance at such proceedings, and any person who is warned by the court to remain in attendance at criminal proceedings and who fails to remain in attendance at such proceedings, and any person so subpoenaed or so warned who fails to appear at the place and on the date and at the time to which the proceedings in question may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment contemplated in subsection (2).

[S 188(1) substituted by s 6 of Act 109 of 1984.]

 

(2)     The provisions of section 170(2) shall mutatis mutandis apply with reference to any person referred to in subsection (1).

 

189.   Powers of court with regard to recalcitrant witness

 

(1)     If any person present at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a witness, or, having been sworn or having made an affirmation as a witness, refuses to answer any question put to him or refuses or fails to produce any book, paper or document required to be produced by him, the court may in a summary manner enquire into such refusal or failure and, unless the person so refusing or failing has a just excuse for his refusal or failure, sentence him to imprisonment for a period not exceeding two years or, where the criminal proceedings in question relate to an offence referred to in Part III of Schedule 2, to imprisonment for a period not exceeding five years.

[S 189(1) substituted by s 20 of Act 59 of 1983, s 4 of Act 126 of 1992.]

 

(2)     After the expiration of any sentence imposed under subsection (1), the person concerned may from time to time again be dealt with under that subsection with regard to any further refusal or failure.

 

(3)     A court may at any time on good cause shown remit any punishment or part thereof imposed by it under subsection (1).

 

(4)     Any sentence imposed by any court under subsection (1) shall be executed and be subject to appeal in the same manner as a sentence imposed in any criminal case by such court, and shall be served before any other sentence of imprisonment imposed on the person concerned.

 

(5)     The court may, notwithstanding any action taken under this section, at any time conclude the criminal proceedings referred to in subsection (1).

 

(6)     No person shall be bound to produce any book, paper or document not specified in any subpoena served upon him, unless he has such book, paper or document in court.

 

(7)     Any lower court shall have jurisdiction to sentence any person to the maximum period of imprisonment prescribed by this section.

 

190.   Impeachment or support of credibility of witness

 

(1)     Any party may in criminal proceedings impeach or support the credibility of any witness called against or on behalf of such party in any manner in which and by any evidence by which the credibility of such witness might on the thirtieth day of May, 1961, have been impeached or supported by such party.

 

(2)     Any such party who has called a witness who has given evidence in any such proceedings (whether that witness is or is not, in the opinion of the court, adverse to the party calling him), may, after such party or the court has asked the witness whether he did or did not previously make a statement with which his evidence in the said proceedings is inconsistent, and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been given to the witness, prove that he previously made a statement with which such evidence is inconsistent.

 

191.   Payment of expenses of witness

 

(1)     Any person who attends criminal proceedings as a witness for the State shall be entitled to such allowance as may be prescribed under subsection (3): Provided that the judicial officer or the judge presiding at such proceedings may, if he thinks fit, direct that no such allowance or that only a part of such allowance shall be paid to any such witness.

 

(2)     Subject to any regulation made under subsection (3), the judicial officer or the judge presiding at criminal proceedings may, if he thinks fit, direct that any person who has attended such proceedings as a witness for the accused, shall be paid such allowance as may be prescribed by such regulation, or such lesser allowance as such judicial officer or such judge may determine.

 

(3)     The Minister may, in consultation with the Minister of Finance, by regulation prescribe a tariff of allowances which may be paid out of public moneys to witnesses in criminal proceedings, and may by regulation prescribe different tariffs for witnesses according to their several callings, occupations or stations in life, and according also to the distances to be travelled by such witnesses to reach the place where the proceedings in question are to take place, and may by regulation further prescribe the circumstances in which such allowances may be paid to any witness for an accused.

 

(4)     The Minister may under subsection (3) empower any officer in the service of the State to authorise, in any case in which the payment of an allowance in accordance with the tariff prescribed may cause undue hardship or in the case of any person resident outside the Republic, the payment of an allowance in accordance with a higher tariff than the tariff prescribed.

 

(5)     For the purposes of this section “witness” shall include any person necessarily required to accompany any witness on account of his youth, old age or infirmity.

 

191A. Witness services

 

(1)     The Minister has the power to determine services to be provided to a witness who is required to give evidence in any court of law.

 

(2)     The Minister may make regulations relating to—

 

(a)     the assistance of, and support to, witnesses at courts;

 

(b)     the establishment of reception centres for witnesses at courts;

 

(c)      the counselling of witnesses; and

 

(d)     any other matter which the Minister deems expedient to prescribe in order to provide services to witnesses at courts.

 

(3)     Any regulation made under this section which may result in financial expenditure for the State must be made in consultation with the Minister of Finance.

 

(4)     Any regulation made under this section may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding three years.

 

(5)     Any regulation made under this section must, before publication thereof in the Gazette, be submitted to Parliament.

[S 191A inserted by s 25 of Act 112 of 1998.]

 

192.   Every witness competent and compellable unless expressly excluded

 

Every person not expressly excluded by this Act from giving evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence in criminal proceedings.

 

193.   Court to decide upon competency of witness

 

The court in which criminal proceedings are conducted shall decide any question concerning the competency or compellability of any witness to give evidence.

 

194.   Incompetency due to state of mind

 

No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or disabled.

 

194A. Evaluation of competency of witnesses due to state of mind

 

(1)        For purposes of section 193, whenever a court is required to decide on the competency of a witness due to his or her state of mind, as contemplated in section 194, the court may, when it deems it necessary in the interests of justice and with due consideration to the circumstances of the witness, and on such terms and conditions as the court may decide, order that the witness be examined by a medical practitioner, a psychiatrist or clinical psychologist designated by the court, who must furnish the court with a report on the competency of the witness to give evidence.

 

(2)     A medical practitioner, psychiatrist or clinical psychologist designated by the court in terms of subsection (1) who is not in the full-time service of the State, must be compensated for his or her services in connection with the enquiry from public funds in accordance with a tariff determined by the Minister in consultation with the Cabinet member responsible for national financial matters.

 

(3)     If the contents of a report contemplated in subsection (1) are not disputed, the report is admissible as evidence on its production.

[S 194A inserted by s 10 of Act 8 of 2017.]

 

195.   Evidence for prosecution by husband or wife of accused

 

(1)     The wife or husband of an accused shall be competent, but not compellable, to give evidence for the prosecution in criminal proceedings, but 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 or of a child that is in the care of either of them;

 

(b)     any offence under Chapter 8 of the Child Care Act, 1983 (Act 74 of 1983), committed in respect of any child of either of them;

 

(c)      any contravention of any provision of section 31(1) of the Maintenance Act, 1998, or of such provision as applied by any other law;

 

(d)     bigamy;

 

(e)     incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007;

 

(f)      abduction;

 

(g)     any contravention of any provision of section 2, 8, 10, 12, 12A, 17 or 20 of the Sexual Offences Act, 1957 (Act 23 of 1957);

 

(gA)   any contravention of any provision of section 17 or 23 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007;

 

(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).

[S 195(1) amended by s 5 of Act 72 of 1985, s 7 of Act 26 of 1987; substituted by s 6 of Act 45 of 1988; amended by s 1 of Act 49 of 1996, s 4 of Act 18 of 1996, s 45 of Act 99 of 1998; substituted by s 68 of Act 32 of 2007.]

 

(2)     For the purposes of the law of evidence in criminal proceedings, ‘marriage’ shall include a customary marriage or customary union concluded under the indigenous law and custom of any of the indigenous peoples of the Republic of South Africa or any marriage concluded under any system of religious law.

[S 195(2) substituted by s 4 of Act 18 of 1996.]

 

196.   Evidence of accused and husband or wife on behalf of accused

 

(1)     An accused and the wife or husband of an accused shall be a competent witness for the defence at every stage of criminal proceedings, whether or not the accused is charged jointly with any other person: Provided that—

 

(a)     an accused shall not be called as a witness except upon his own application;

 

(b)     the wife or husband of an accused shall not be a compellable witness where a co-accused calls that wife or husband as a witness for the defence.

[S 196(1)(b) substituted by s 7 of Act 45 of 1988.]

 

(2)     The evidence which an accused may, upon his own application, give in his own defence at joint criminal proceedings, shall not be inadmissible against a co-accused at such proceedings by reason only that such accused is for any reason not a competent witness for the prosecution against such co‑accused.

 

(3)     An accused may not make an unsworn statement at his trial in lieu of evidence but shall, if he wishes to give evidence, do so on oath or, as the case may be, by affirmation.

 

197.   Privileges of accused when giving evidence

 

An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless—

 

(a)     he or his legal representative asks any question of any witness with a view to establishing his own good character or he himself gives evidence of his own good character, or the nature or conduct of the defence is such as to involve imputation of the character of the complainant or any other witness for the prosecution;

 

(b)     he gives evidence against any other person charged with the same offence or an offence in respect of the same facts;

 

(c)      the proceedings against him are such as are described in section 240 or 241 and the notice under those sections has been given to him; or

 

(d)     the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged.

 

198.   Privilege arising out of marital state

 

(1)     A husband shall not at criminal proceedings be compelled to disclose any communication which his wife made to him during the marriage, and a wife shall not at criminal proceedings be compelled to· disclose any communication which her husband made to her during the marriage.

 

(2)     Subsection (1) shall also apply to a communication made during the subsistence of a marriage or a putative marriage which has been dissolved or annulled by a competent court.

[S 198(2) substituted by s 8 of Act 45 of 1988.]

 

199.   No witness compelled to answer question which the witness’s husband or wife may decline

 

No person shall at criminal proceedings be compelled to answer any question or to give any evidence, if the question or evidence is such that under the circumstances the husband or wife of such person, if under examination as a witness, may lawfully refuse and cannot be compelled to answer or to give it.

 

200.   Witness not excused from answer establishing civil liability on his part

 

A witness in criminal proceedings may not refuse to answer any question relevant to the issue by reason only that the answer establishes or may establish a civil liability on his part.

 

201.   Privilege of legal practitioner

 

No legal practitioner qualified to practise in any court, whether within the Republic or elsewhere, shall be competent, without the consent of the person concerned, to give evidence at criminal proceedings against any person by whom he is professionally employed or consulted as to any fact, matter or thing with regard to which such practitioner would not on the thirtieth day of May, 1961, by reason of such employment or consultation, have been competent to give evidence without such consent: Provided that such legal practitioner shall be competent and compellable to give evidence as to any fact, matter or thing which relates to or is connected with the commission of any offence with which the person by whom such legal practitioner is professionally employed or consulted, is charged, if such fact, matter or thing came to the knowledge of such legal practitioner before he was professionally employed or consulted with reference to the defence of the person concerned.

 

202.   Privilege from disclosure on ground of public policy or public interest

 

Except as is in this Act provided and subject to the provisions of any other law, no witness in criminal proceedings shall be compellable or permitted to give evidence as to any fact, matter or thing or as to any communication made to or by such witness, if such witness would on the thirtieth day of May, 1961, not have been compellable or permitted to give evidence with regard to such fact, matter or thing or communication by reason that it should not, on the grounds of public policy or from regard to public interest, be disclosed, and that it is privileged from disclosure: Provided that any person may in criminal proceedings adduce evidence of any communication alleging the commission of an offence, if the making of that communication prima facie constitutes an offence, and the judge or judicial officer presiding at such proceedings may determine whether the making of such communication prima facie does or does not constitute an offence, and such determination shall, for the purpose of such proceedings, be final.

 

203.   Witness excused from answering incriminating question

 

No witness in criminal proceedings shall, except as provided by this Act or any other law, be compelled to answer any question which he would not on the thirtieth day of May, 1961, have been compelled to answer by reason that the answer may expose him to a criminal charge.

 

204.   Incriminating evidence by witness for prosecution

 

(1)     Whenever the prosecutor at criminal proceedings informs the court that any person called as a witness on behalf of the prosecution will be required by the prosecution to answer questions which may incriminate such witness with regard to an offence specified by the prosecutor—

 

(a)     the court, if satisfied that such witness is otherwise a competent witness for the prosecution, shall inform such witness—

 

(i)      that he is obliged to give evidence at the proceedings in question;

 

(ii)      that questions may be put to him which may incriminate him with regard to the offence specified by the prosecutor;

 

(iii)     that he will be obliged to answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the answer may incriminate him with regard to the offence so specified or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified;

 

(iv)     that if he answers frankly and honestly all questions put to him, he shall be discharged from prosecution with regard to the offence so specified and with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and

 

(b)     such witness shall thereupon give evidence and answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the reply thereto may incriminate him with regard to the offence so specified by the prosecutor or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified.

 

(2)     If a witness referred to in subsection (1), in the opinion of the court, answers frankly and honestly all questions put to him—

 

(a)     such witness shall, subject to the provisions of subsection (3), be discharged from prosecution for the offence so specified by the prosecutor and for any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and

 

(b)     the court shall cause such discharge to be entered on the record of the proceedings in question.

 

(3)     The discharge referred to in subsection (2) shall be of no legal force or effect if it is given at preparatory examination proceedings and the witness concerned does not at any trial arising out of such preparatory examination, answer, in the opinion of the court, frankly and honestly all questions put to him at such trial, whether by the prosecution, the accused or the court.

 

(4)

(a)     Where a witness gives evidence under this section and is not discharged from prosecution in respect of the offence in question, such evidence shall not be admissible in evidence against him at any trial in respect of such offence or any offence in respect of which a verdict of guilty is competent upon a charge relating to such offence.

 

(b)     The provisions of this subsection shall not apply with reference to a witness who is prosecuted for perjury arising from the giving of the evidence in question, or for a contravention of section 319(3) of the Criminal Procedure Act, 1955 (Act 56 of 1955).

[S 204(4)(b) amended by s 1 of Act 49 of 1996.]

 

205.   Judge, regional court magistrate or magistrate may take evidence as to alleged offence

 

(1)     A judge of a High Court, a regional court magistrate or a magistrate may, subject to the provisions of subsection (4) and section 15 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, upon the request of a Director of Public Prosecutions or a public prosecutor authorised thereto in writing by the Director of Public Prosecutions, require the attendance before him or her or any other judge, regional court magistrate or magistrate, for examination by the Director of Public Prosecutions or the public prosecutor authorised thereto in writing by the Director of Public Prosecutions, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to the satisfaction of the Director of Public Prosecutions or public prosecutor concerned prior to the date on which he or she is required to appear before a judge, regional court magistrate or magistrate, he or she shall be under no further obligation to appear before a judge, regional court magistrate or magistrate.

[S 205(1) substituted by s 59 of Act 70 of 2002.]

 

(2)     The provisions of sections 162 to 165 inclusive, 179 to 181 inclusive, 187 to 189 inclusive, 191 and 204 shall mutatis mutandis apply with reference to the proceedings under subsection (1).

 

(3)     The examination of any person under subsection (1) may be conducted in private at any place designated by the judge, regional court magistrate or magistrate.

 

(4)     A person required in terms of subsection (1) to appear before a judge, a regional court magistrate or a magistrate for examination, and who refuses or fails to give the information contemplated in subsection (1), shall not be sentenced to imprisonment as contemplated in section 189 unless the judge, regional court magistrate or magistrate concerned, as the case may be, is also of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law and order.

[S 205 substituted by s 11 of Act 204 of 1993.]

 

206.   The law in cases not provided for

 

The law as to the competency, compellability or privilege of witnesses which was in force in respect of criminal proceedings on the thirtieth day of May, 1961, shall apply in any case not expressly provided for by this Act or any other law.

 

207.   Saving of special provisions in other laws

 

No provision of this Chapter· shall be construed as modifying any provision of any other law whereby in any criminal proceedings referred to in such law a person is deemed a competent witness.

 

CHAPTER 24

EVIDENCE

 

208.   Conviction may follow on evidence of single witness

 

An accused may be convicted of any offence on the single evidence of any competent witness.

 

209.   Conviction may follow on confession by accused

 

An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed.

 

210.   Irrelevant evidence inadmissible

 

No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and which cannot conduce to prove or disprove any point or fact at issue in criminal proceedings.

 

211.   Evidence during criminal proceedings of previous convictions

 

Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously-been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he or she has been so convicted.

[S 211 substituted by s 99(1) of Act 75 of 2008.]

 

212.   Proof of certain facts by affidavit or certificate

 

(1)     Whenever in criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place in any particular department or subdepartment of the State or of a provincial administration or in any branch or office of such department or subdepartment or in any particular court of law or in any particular bank, or the question arises in such proceedings whether any particular functionary in any such department, subdepartment, branch or office did or did not perform any particular act or did or did not take part in any particular transaction, a document purporting to be an affidavit made by a person who in