Discussion Class (3) Prep

1. X, who was involved in the crime with Y and Z, is arrested a week after the
commission of the offence. X, Y and Z are subsequently charged in the Pretoria
regional court. The charge sheet compiled by P, the prosecutor, reads as follows:
Count 1:
The accused X, Y and Z are guilty of the offence of housebreaking with the intent to
steal and theft in that upon or about 14 March 2021 the accused did unlawfully and
intentionally break open the door of house no. 499 Ingwe Street, Pretoria, and did
thereupon steal the following items, namely,
i. 1 x Samsung 54-inch television set;
ii. 1 x Finch double side toaster; and
iii. 1 x JVC mini hi-fi set.
Court 2:
The accused, Z is guilty of the offence of the unlawful possession of a firearm, in that
at or near Pretoria in the Regional Division of North Gauteng the accused did
unlawfully have in his possession the following firearm(s), to wit a 9mm parabellum
pistol, without holding a licence, permit or authorization issued in terms of the Act to
possess that firearm(s).
Briefly discuss whether the charge sheet conforms to the requirements set out in
section 84(1) of the Criminal Procedure Act 51 of 1977. (10)
The right to a fair trial, which is enshrined in the Bill of Rights (s 35(1)(a) requires for
the accused to be “informed of the charge with sufficient detail to answer it”. Equally,
section 84(1) of the Criminal Procedure Act 51 of 1977 requires that the offence which
is contained in the charge sheet should be set forth in a manner that the accused is
sufficiently informed of the nature of the charge brought against him or her.
In summary s 84(1) envisages the charge sheet to set out the following aspects
namely,
i. the name of the offence for which the accused is indicted (murder);
ii. all the elements of the crime murder (intention, unlawfulness, killing of another
human being);
iii. the date on which and place where the offence was allegedly committed; and
iv. the person against whom the offence was allegedly committed.
Model Answer:
Count 1:
i. the charge sheet must set out the name of the offence. the name of the charge is
clearly set out. Count 1, therefore, conforms to this requirement;
ii. all the elements of the offence must be mentioned in the charge sheet. all the
elements of the offence, namely, that the accused
(a) broke open the door,
(b) stole a list of items
(c) acted unlawfully and intentionally
are mentioned in the charge sheet. The charge sheet complies with the requirements
of section 84(1) in this regard;
iii. the charge sheet must mention the date on which the offence was committed. the
date on which the offence was committed is spelt out in the charge sheet, which
conforms with the requirements of s 84(1);
iv. the charge sheet must mention the place where the offence was committed. the
place where the offence was committed essentially translates to the physical address.
the place where the offence was committed is fully set out in the charge sheet. This
aspect complies fully with the requirements of section 84(1);
v. the charge sheet must mention the name of the victim/ complainant. the charge
sheet does not, however, set out the name of the complainant, although his address
is mentioned. How is this defect to be mitigated in practice? (PLEASE NOTE THAT
THE FOLLOWING EXPLANATION IS MERELY PROFFERED FOR THE SAKE OF
COMPLETENESS, AND NOT NECESSARILY AS PRT OF THE MODEL ANSWER) It
is submitted that the anomaly can be remedied through either the application of section
86(1) or 88 of the Criminal Procedure Act 51 of 1977. In terms of the latter, the defect
may be cured through evidence, whereas the latter allows the prosecution to apply for
the correction of the defect. In the case of section 88, when the complainant eventually
testifies, the prosecutor will direct the witness towards evidence regarding his/ her
physical address. Usually, one of the questions posed to the complainant/ victim is:
“Do you reside at no. 499 Ingwe Street, Pretoria…”.

Count 2:
i. the name of the offence must be mentioned in the charge sheet. the name of the
charge is clearly set out in count 2 above. Count 2, therefore, conforms to the
requirements set out in section 84(1) in this regard;
ii. all the elements of the offence must be mentioned in the charge sheet. not all the
elements of the offence are mentioned in Count 2, above. Whilst the charge sheet
mentions the fact that the offence was committed unlawfully, the mens rea (whether
intent or negligence) in respect of which the offence was committed is not mentioned
expressly, as required by section 84(1). In addition, the lawful possession of firearms
in South Africa is regulated by legislation, namely, the Firearms Control Act 60, 2000.
However, the charge sheet omits to refer to the legislation (and the specific provision)
which was violated. In this regard, the offence does not conform to the requirements
set out in s 84(1);
iii. the date on which the offence was allegedly committed must be mentioned in the
charge sheet. the date on which the offence was allegedly committed is not mentioned
in the charge sheet. In this regard the charge sheet does not conform with the
requirements of section 84(1);
iv. the place where the crime was committed must be mentioned in the charge sheet.
the place where the offence was committed is not mentioned in full.
iv. the rule regarding the mention of the (victim/ complainant) party against whom the
offence was committed essentially depends on the type of offence committed.
Offences which are the source of legislation are usually committed against “the State”.
Some of these are defined as “victimless” offences, in spite of the fact that their impact
is felt by the wider society rather than by an individual. The issue of the victim would
necessarily have found its place in the aspects addressed in (ii), above.

2. M, the magistrate, decides, for the purposes of the trial proceedings, not to sit with
assessors. Briefly evaluate the plausibility of M’s standpoint in the context of prevailing
South African law. (6)
Model Answer:
In the lower courts, namely, the district or regional court, the magistrate may, if he or
she deems it expedient for the administration of justice, sit with one or two assessors
to assist him or her at the proceedings. The compulsion to sit with assessors is only
applicable whether the court adjudicates over a charge of murder (that is, in the
regional court). M is, therefore, not compelled to sit with assessors in respect of the
charges set out above.

3. During the ensuing trial Z refuses, upon being prompted by the court, to plead to
the charges on the ground that he “does not recognise the authority of this court”.
Evaluate Z’s course of action, and also explain the action which is required by the
court in this regard. (5)
Model Answer:
South African law makes provision for instances where a plea may be dispensed with
or “done away with”. Thus, a plea may be dispensed with where the accused refuses
to plead to the charge. A refusal to plead directly to the charge attracts the presumption
of a refusal to plead. Under these circumstances section 109 of the Criminal Procedure
Act 51 of 1977 allows the court to register a plea of “not guilty” against the accused.
Z’s refusal to “recognise the court” may objectively be interpreted as an implicit refusal
to plead to the charges. The court would, therefore, be well within its rights to record
a plea of “not guilty”, and for the trial to proceed accordingly.