“SUBJECT” : LAW OF CRIMINAL PROCEDURE

”CODE : CRP 3241

“LECTURER” : CL VAN GRAAN

“NAMES” : MUNYAI FUNDANI

“STUDENT NO” : 22000025

“SUBMISSION DATE : 15 SEPTEMBER 2024

1.1 “I am the attorney, acting on behalf of my client Gideon who is charged with murder.
The application that must be submitted to court is an application in terms of section
342A of Criminal Procedure Act 51 of 1977, which entails that a court before which
criminal proceedings are pending shall investigate any delay in the completion of
proceedings which appears to court to be unreasonable and which could cause
substantial prejudice to the prosecution, the accused or his legal adviser 1. As the
attorney of the accused I assume that it is best to make this request to court
because my client has been getting many postponements regarding his case, which
turns out to be unreasonable. The aim of this application is to ask the court to reject
or deny a request for further postponement of the case and to keep the case on
schedule to prevent any further delays. Because myself and my client believe that
the other party is seeking postponement without a good cause or valid reason but to
delay justice.”

The“main purpose of this application is to argue against the delaying of the case
because I believe that postponing the proceedings would be unnecessary and unfair
to the interests of justice. Common grounds for this application include lack of
valid reason, as the prosecutor is using the same reason that he is ill, and the
matter should be postponed. Further delay would cause prejudice. As court have the
discretion to make appropriate orders to prevent further delays, I believe that the
court can prevent further postponement or strike the case off the roll which may
results in my client being discharged, depending on the circumstances of the case.”

Repeated “postponement and delays of the case violates Gideon’s right to speedy
trial as guaranteed by section 35(3)(d) of the South African constitution which
provides that every accused person has the right to a fair trial, which include the
right to have their trial begin and conclude without unreasonable delay. The section
guarantees the right to a speedy trial, ensuring that the legal process is not unduly
delayed. This right is crucial to the right to fair trial as delay can prejudice my client’s
1
Criminal Procedure Act 51 of 1977, s 342A.
 ability to defend” “himself, undermine public trust in the criminal justice system and
cause unnecessary stress and hardship for my client and his loved ones.”

In Sanderson v Attorney- General, Eastern Cape 1997(12) BCLR 1975 (CC) 2, “the
trial was delayed for several years due to postponements by both defense and
prosecution. Sanderson sought a permanent stay of prosecution, arguing that the delay
in his trial has infringed his constitutional right to a fair trial, particularly the right to have
his trial begin and conclude without unreasonable delay. The main issue regarding this
case was whether the delay in bringing the accused to trial was unreasonable and, if so,
should it result in a permanent stay of prosecution. The court developed criteria to
evaluate if the delay was unreasonable which include the length of the delay, reasons
for the delay and the prejudice suffered by the accused due to the delay. The case
established a crucial guideline on how court should assess delay in criminal trials and
their impact on the constitutional right to a fair trial.”

1.1 The “three options available when the state present evidence that does not prove
the offence against the accused include, Section 174 0f the Criminal Procedure Act
51 of 1977 which encompasses the right of the accused person to be discharged
from the offence he has committed if there is no evidence on which the court may
draw the accused to the charge. If at close of the case for the prosecution the court
is of the opinion that the evidence adduced does not prove any guilty of the accused
person beyond reasonable doubt or the prosecution has failed to prove a prima
facie case the court shall acquit the accused. According to section 174 of Criminal
Procedure Act 51 of 1977 the court is required to evaluate the prosecution’s
evidence and determine if the evidence proves the guilty beyond reasonable doubt.
This section ensures that the accused is not convicted without sufficient or enough
evidence while upholding the principles of innocent until proven guilty. The court
must consider evidence as whole and acquittal under section 174 is the final verdict
as the accused cannot be retried for the same offence.”

2
“ Sanderson v Attorney-General, Eastern Cape 1997 (12) BCLR 1995 (CC).”
 In S v Dewani (CC15/2014) [2014] ZAWCHC 1883, “the accused Shrien Dewani
was charged with orchestrating the murder of his wife Anni Dewani, during their
honeymoon in Cape Town. The defense applied for a discharged in terms of section
174 of Criminal Procedure Act, arguing that the prosecution evidence was
insufficient. The court found that the state evidence was poor and unreliable. The
court questioned the credibility of witnesses, therefore the court granted discharge
application and the accuse was acquitted of all charges. The case highlighted the
importance of credible evidence and reliable witnesses in securing convictions. It
also emphasized that the accused person has the right to be discharged if the
prosecution fails to present sufficient evidence to prove guilty beyond reasonable
doubt.”

As “an accused you can close the defense case to ensure that no further evidence
or witness will be presented by the defense. This simply means that the defense has
completed their portion of the trial. When you close the defense case, the defense
cannot present a new evidence or call additional witnesses The prosecution may
present rebuttal evidence to counter the defense’s case4. The trial the moves to the
closing arguments stage where the parties summarize the cases. The judge will
reach a verdict based on the evidence provided.”

The “other option is to open the defense case which marks the beginning of the
defense’s opportunity to present evidence and arguments in favor of the defendant.
The main aim of opening the defense case is to challenge the prosecution’s
evidence and witness. It can also be done to create a reasonable doubt about the
defendant’s guilt. The opening of the defense case is a crucial point in the trial
because the defense lays out its side of the story and attempts to challenge the
prosecution’s evidence.”

3
S v Dewani (CC15\2014) [2014] ZAWCHC 188.
4
D Ally, Criminal Procedure (13th edn,2020).
BIBLIOGRAPHY

LEGISLATION

Criminal Procedure Act 51 of 1977, s 342A.

CASE

Sanderson v Attorney-General, Eastern Cape 1997 (12) BCLR 1995 (CC).

S v Dewani (CC15\2014) [2014] ZAWCHC 188.

BOOK

D Ally, JJ Joubert, MT Mokoena, JP Swanepoel, SS Terblanche, and SE Van der