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Question 1 [+/- 46 minutes] [27]
X has been formally charged for the murder of Y. X was seen by two witnesses at the
scene of the crime, but there is no direct evidence linking him to the crime or the victim.
X was released on bail in anticipation of the trial. On the day of his trial, the prosecutor
reads the charges against X, the main charge being that of murder and in the
alternative, culpable homicide. You represent X as defence council.
Answer the following questions:
1.1. The charge has been put to the accused by the prosecutor in terms of section 105 of
the Criminal Procedure Act 51 of 1977 (CPA), the accused (X) is now required by the
court to plead thereto. As X’s defence council, identify the most appropriate plea
relevant to the stated facts? (2)
Plea of not guilty – sec 106(1)(b) (2)
1.2. In terms of the appropriate plea identified in question 1.1., briefly discuss the
questioning procedure that should follow such a plea and list the purposes of such
questioning. (10)
See pg 304-307
If the accused pleads not guilty, the procedure prescribed in s115 of the CPA must be
completed after plea and before the trial on merits stage commences. The legal
representative of the accused may choose to:
a) orally indicate the basis of the accused’s defence (for example by stating; ‘your
worship, the basis of the accused’s defence is self-defence’), or
b) read a section 115 not guilty plea explanation into the record, or
c) inform the court that the accused claims the right to remain silent, and the right not
to disclose the basis of his or her defence.
The presiding officer will then ask the accused to orally confirm the plea and the basis of
the defence as set out in the section 115 plea explanation. Should the accused refuse to plead
at all, a plea of not guilty will automatically be entered on his or her behalf by the presiding
officer.
The purpose of such questioning is fivefold: (i) it provides the accused with an
opportunity to explain his or her plea of not guilty to the presiding judicial officer before
the commencement of a trial, (ii) it allows the judicial officer to properly identify which
allegations of the charge are disputed by the accused, (iii) it is cost effective because it
shortens the length of the trial by ensuring that the prosecution adduces evidence only in
respect to the allegations in dispute, (iv) it allows the judicial officer to assist an
unrepresented accused by ensuring that the accused is properly prepared to put his or
her defence before State witnesses, and (v) a clear plea explanation may protect the
accused against the prosecution’s averment that he or she is fabricating a defence.
If the accused does not want to give an explanation, the court may question the accused in
order to establish which allegations in the charge are in dispute. However, the accused is
under no obligation to provide a plea explanationand may simply indicate this to the court
as he has the right to remain silent and thus does not wish to give such an explanation.
Furthermore, the accused has the right not to be compelled to give self-incriminating evidence
or to make an incriminating confession or admission that could be used in evidence. The court
has a duty to inform undefended accused persons that they do not have to disclose the
basis of their defence.
1.3. For purposes of this question, suppose that during the course of X’s criminal trial it
becomes clear that the evidence might fall short of proving the guilt of X for the crime
of murder, but the evidence nevertheless succeeds in proving, beyond reasonable
doubt, that X in actual fact committed a crime which has elements of a different crime
not specifically formulated as the main or alternative charge. Can X be found guilty of
such other (lesser) offences? Briefly discuss with reference to relevant legislative
provisions and also indicate the statutorily defined offences relevant to the main
charge against X in this case. (8)
The accused may not necessarily be found guilty of the offence(s) listed in the charge
sheet. Instead, a judicial officer may decide to find the accused guilty by way of a
competent verdict (on a lesser charge), provided the elements of such lesser charge is
proved by the evidence before the court.
Competent verdicts are only possible if permitted by statutory provisions and can only
follow where the crime charged has not been proven, but the commission of the implied
offence has been proven beyond reasonable doubt. This type of situation is governed
by the statutory rules pertaining to so-called competent verdicts, contained in ss 256 –
270 of the CPA
Sec 256, 257, 258 – Murder – culpable homicide – assault with GBH intent – common
assault – robbery – public violence – pointing a firearm – attempted murder…
Sec 35(3)(a) of the Constitution – accused has the right to be informed of the charges
against him/her with sufficient detail to answer it – by implication, this implies that an
accused must be informed of any possible competent verdict in relation to the charges
in the charge sheet.
1.4. For purposes of this question, suppose that X is found guilty on the main charge of
murder. Which sentencing option is the most appropriate option under the
circumstances? You must explain your answer with reference to relevant legislation.
(7)
The sentencing court has a wide discretion to impose a sentence, which sentencing
options are listed in sec 276 of the CPA, as well as the extent of such sentence. The
court is authorised in terms of sec 274 of the CPA to receive such evidence as it deems
relevant and necessary. The set of facts is silent about the accused’s previous
convictions and factors thatmay influence the sentence (S v Zinn) factors.
Therefore, the most important consideration in this case which guides or restricts the
court’s sentencing discretion in casu, is the minimum sentencing legislation as it
relates to the charge of murder.
Discretionaryminimum sentences for certain serious offences (including murder) are
provided for in terms of section 51of the Criminal Law Amendment Act 105 of 1997
(CLAA). In essence, s51 makes provision for the imposition of certain minimum sentences
for a wide range of more serious crimes that may be imposed by the regional magistrate’s
court or a high court.
In relation to the charge of murder, the s51(1) of the CLAA imposes a sentence of life
imprisonment.
When considering imprisonment, the courts are generally guided by the nature and
seriousness of the offence. This principle was confirmed by the Appeal court in S v Holder
[1979] 1 All SA 408 (A) wherein it was held that commission of a serious offence ordinarily
leads to the imposition of a sentence of imprisonment. This principle applies even when
the accused is a first offender. A serious offence includes but are not limited to murder,
aggravated armed robbery, fraud, housebreaking and theft, and rape.
In terms of the decision in S v Malgas 2001 (1) SACR 469 (SCA), a sentencing court may
deviate from the prescribed minimum sentence if there are substantial and compelling
circumstances. This approach was confirmed in Dodo 2001 (1) SACR 594 (CC) and S v
Vilakazi2009 (1) SACR 552 (SCA).
In S v Mthembu 2012(1) SACR 517 (SCA), the court clarified that substantial and
compelling circumstancesmay justify the imposition of a heavier/ higher sentenceif in
the cumulative circumstances it appears sufficiently just to do so.
IN CASU, there are no clear factors or circumstances that warrant a departure from the
prescribed minimum sentence, and therefore a sentence of life imprisonment seems to
be the most appropriate sentencing option in this case.
Question 2 [+/- 18 minutes] [15]
Identify and write down the relevant word/phrase missing from the diagram below
If, after the arraignment and plea phase, a plea of not guilty is recorded, the
(2.1.) merit stage (criminal trial stage) stage will usually involve the following practical
steps:
1) Step one: the State’s case
•The prosecution begins the trial in terms of its burden of proof by calling its first
witness from its list of witnesses.
oThe prosecutor leads evidence by questioning the witness during
(2.2.) examination-in-chief
oThe (2.3.) defencecounsel has a constitutional duty to (2.4.) cross-
examinesthe witness.
oThe (2.5.) prosecution (State) may re-examine the witness.
•At this point,the prosecution’s evidence against the accused must establish a
(2.6.) prima facie case. Where the prosecution fails to establish such a basis at
the close of its case, the defence may request for a (2.7.) discharge from
prosecution in terms of section 174.
2) Step two: the case of the defence (accused)
•If the prosecution successfully
established the required basis for its case, the
defence bears an evidentiary burden of (2.8.) rebuttaland must present its case.
•If the accused chooses to waive his/her right to silence and testifies in his/her own
defence, he/she will generally testify first.
•The (2.9.) judicial officer / presiding officer / judge / magistrate
questions where necessary (‘questions by the court’).
3) Step three: the (2.10.) close of arguments
4) Step four: the finding of the court (verdict)
•The court must be satisfied that, after mature consideration, the
(2.11.) prosecution (State)has proven the legal guilt of the accused
(2.12.) beyond reasonable doubt
•On this basis, the court renders its verdict by either:
oFinding the accused (2.13.) Acquitting the
accused (a finding of not
guilty)and ordering a discharge, or
oFinding the accused (2.14.) Convicting the accused (a finding of guilty),
in which case the (2.15.) sentencingstage must now follow.
.
Question 3 [+/- 12 minutes] [8]
The presiding officer must exercise his discretion when imposing a sentence. There are many
factors the court could take into account during sentencing to determine what an appropriate
sentence would be under the circumstances.
Sam is found guilty of premeditated murder of his siblings after he used an axe to
bludgeon them to death. Sam has no previous convictions and was 16 (sixteen)
years old at the time of the murder.
Taking only the abovementioned facts into consideration, identify four factors which the
court should take into consideration for purposes of sentencing Sam. For each of the
factors that you identify, you must also indicate whether such a factor will be considered
in mitigation or in aggravation of sentence. Answer the question in table format. Use only
the stated facts above, do notfabricate other facts. (8)
Nature and extent of the crime:
• Premeditated murder = aggravating
• Murderous attack upon a siblingsconstitutes a very serious crime = aggravating
• Multiple murders – Killed siblings (plural) = aggravating
• Using an axe – high level of innate cruelty = aggravating
Personal circumstances:
• No previous convictions = mitigating
•Age of 16= mitigating
Interests of the community
• Sam’s actions are very serious, and he is to be considered a serious risk to the
community, which must be protected = aggravating
Effect on the family members of the victims:
• Abuse of the relationship of trust between Sam and siblings = aggravating
(could also be categorised under ‘nature and extent of the crime’).
• Traumatic and devastating effect on the parents and other family members of
the victims and perpetrator = aggravating
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