Question:1

Prosecutorial bail, provided under Section 59A of the Criminal Procedure Act 51 of
1977 (CPA), allows a prosecutor to authorize bail for certain less severe offenses. 1
However, D has been charged with murder, which is classified as a Schedule 6
offense under the CPA. For serious charges like murder, the accused must apply for
bail in court, as prosecutorial bail does not cover Schedule 6 offenses.2
In this case, D was arrested after being seen stabbing the deceased and fleeing the
scene, according to eyewitnesses. 3While at his home, D was subsequently arrested.
D might argue that his immediate departure from the scene was due to fear for his
own safety, not because of guilt. However, given the gravity of the charge, he would
need to prove "exceptional circumstances" to justify his release on bail.4
An example of such circumstances might be that D is the sole caregiver for his
elderly parents or that he has no prior convictions, demonstrating that he is unlikely
to flee or interfere with witnesses. Still, securing bail under these conditions is
challenging for murder charges.5

Question:2

Section 112 of the CPA requires the court to ensure that an accused person
pleading guilty fully understands the implications of the plea and admits to all
elements of the offense. If it becomes clear that the plea is incorrect or that a valid
defence exists, the plea can be withdrawn, and a new plea can be entered.6

In this scenario, Mr. Danny Cane, the defence lawyer, realizes that his client
mistakenly entered a plea of guilty to theft when in fact, the client believed that the
property was abandoned. 7This misunderstanding qualifies as a valid defence, as the
client did not have the intent to deprive the owner of their property, which is a
necessary element of theft.

Mr. Cane can file an application to correct the plea, arguing that his client believed
the property in question had been discarded, which would negate the intent to steal. 8
The client might also have had previous permission to use or possess similar items,
further complicating the issue. Correcting the plea in this instance prevents an unjust
conviction based on a misunderstanding.9

1
Criminal Procedure Act 51 of 1977.
2
Criminal Procedure Act 51 of 1977.
3
Maharaj, A. Confident Criminal Litigation (2010) Chapter 1: Arrest and Bail.
4
Marnewick, Litigation Skills for South African Lawyers (2010), p. 223.
5
Marnewick, Litigation Skills for South African Lawyers (2010), p. 223.
6
Criminal Procedure Act 51 of 1977.
7
Marnewick, Litigation Skills for South African Lawyers (2010), p. 466.
8
Maharaj A. Confident Criminal Litigation (2010) Chapter 1: The Trial
9
Marnewick, Litigation Skills for South African Lawyers (2010), p. 466.

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Question:3

Section 174 of the CPA allows the court to discharge an accused if, after the close of
the prosecution's case, there is no evidence on which a reasonable court could
convict.10 Witness credibility is a critical factor in this determination. If the only
evidence comes from witnesses whose testimony has been discredited, the court
may discharge the accused.11
For instance, in D's case, if the eyewitnesses had a prior personal conflict with D or if
they were found to have inconsistent accounts of the incident, their credibility could
be seriously questioned.12 If the only testimony implicating D comes from these
witnesses, the defence could apply for a Section 174 discharge, arguing that no
reasonable court could convict based on unreliable evidence.13
Additionally, if the witnesses provided contradictory statements to the police and
during trial, or if physical evidence contradicts their testimony, this could further
bolster the application for discharge.14

Question:4
The cautionary rule is applied to scrutinize evidence from witnesses who might be
unreliable, such as accomplices, children, or witnesses with a vested interest in the
outcome. 15In a criminal consultation, particularly when dealing with multiple defence
witnesses, care must be taken to avoid creating the impression that the testimony
has been coordinated.
During the consultation, the attorney may consult the client and witnesses
individually to prevent any suggestion that the testimonies have been rehearsed. 16
For example, if Assault Masina’s witnesses were present at the scene of the
altercation, the defence attorney must ensure that each witness provides an
independent account of the events. This minimizes the risk of their testimony being
questioned under the cautionary rule, which would occur if their stories appeared too
similar or rehearsed.17

10
Criminal Procedure Act 51 of 1977.
11
Marnewick, Litigation Skills for South African Lawyers (2010), p. 223.
12
Maharaj A. Confident Criminal Litigation (2010) Chapter 1: The Trial
13
Criminal Procedure Act 51 of 1977.
14
Marnewick, Litigation Skills for South African Lawyers (2010), p. 223.
15
Marnewick, Litigation Skills for South African Lawyers (2010), p. 31.
16
Marnewick, Litigation Skills for South African Lawyers (2010), p. 31.
17
Marnewick, Litigation Skills for South African Lawyers (2010), p. 31.

2
If the witnesses are related to the accused or have any personal interest in the
outcome, the court might apply the cautionary rule. 18The attorney could mitigate this
by ensuring the testimony is supported by independent evidence, such as medical
records or video footage.19

Question:5
IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF NORTH
GAUTENG

Case No: LKRJYZQ 132/2024

THE STATE
v.
ASSAULT MASINA (Accused)

PLEA IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT 51 OF

The accused pleads not guilty to the charge of assault with intent to do grievous
bodily harm.20
The accused admits that he was present near Mamelodi East, Pretoria, on 30 June
2024, at the time of the altercation with the complainant, Jules Kat.21
The accused denies striking the complainant with a knobkerrie or any other weapon
and denies any intention to cause grievous bodily harm.22
The accused contends that the complainant, who was intoxicated, approached him
in an aggressive manner and attempted to strike him with a broken bottle.23

18
Marnewick, Litigation Skills for South African Lawyers (2010), p. 31.
19
J Engelbrecht, Morris Technique in Litigation (2010) Chapter 19 Criminal cases.
20
Marnewick, Litigation Skills for South African Lawyers (2010), p. 147.
21
Marnewick, Litigation Skills for South African Lawyers (2010), p. 147.
22
Marnewick, Litigation Skills for South African Lawyers (2010), p. 147.
23
Marnewick, Litigation Skills for South African Lawyers (2010), p. 147.

3
The accused acted in self-defence, and during the altercation, the complainant fell
and sustained injuries.24 Any injuries suffered by the complainant were not caused by
the accused but were a result of the complainant’s own actions during the struggle.
The accused requests the State to prove all elements of the charge, including intent
to cause grievous bodily harm, beyond a reasonable doubt.25

Dated: 10 September 2024

24
Marnewick, Litigation Skills for South African Lawyers (2010), p. 147.
25
Marnewick, Litigation Skills for South African Lawyers (2010), p. 147.