ASSIGNMENT 2

TLI4801

UNQIUE CODE 183504

QUESTION 1

a) (1)(a) an accused who us custody in respect of an offence shall, subject to the provisions of
section 50(6), be entitle to release be bail at any stage preceding his or her conviction in respect
of such an offence, if the court is satisfied that the interests of justice so permit.(b)Subject to the
provisions of section 50 (6)(c). section 59A of the act Provided that a prosecutor may instruct
the release of an accused before his first appearance for any offence listed in Schedule 7 of the
act this type of bail can only be done after consultation with the investigative officer
Arson refers to the unlawful and negligent setting of fire to property resulting in the destruction
of said property. A Director of Public Prosecutions (DPP) or a prosecutor authorized in writing by
a DPP may in respect of offences referred to in Schedule 7 and in consultation with the police
investigating officer, authorize the release of an accused on bail in terms of section 59A(1) of the
Criminal Procedure Act 51 of 1977 (CPA”). Section 59A (1) of the CPA allows the prosecutor to
authorize the release of an accused person on bail for any of the following offences listed in
Schedule 7 of the Act:
 Public violence
 Culpable homicide
 Bestiality
 Assault involving the infliction of grievous bodily harm
 Arson
 Housebreaking, whether under the common law or a statutory provision, with intent to
commit an offence
 Malicious injury to property
 Robbery, other than a robbery with aggravating circumstances, if the amount involved in the
offence does not exceed R20 000,00
 Theft and any other offence referred to in section 264(1)(a),(b) and (c), if the amount involved
does not exceed R20 000,00
 Any offence in terms of any law relating to the illicit possession of dependence producing
drugs
 Any offence relating to extortion, fraud, forgery or uttering if the amount involved in the
offence does not exceed R20 000
 Any conspiracy, incitement or attempt to commit any offence listed in this Schedule However,
prosecutorial bails are not granted in respect of infrastructure-related offences
 59A. Attorney-general or a prosecutor authorised thereto in writing by the attorney – general
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.
For the purpose of excersing the functions contemplated in subsection (1) and(3) an attorney
general after consultation with the Minister issue directives.

Prosecutorial bail may be applied for the release of the accused F, as the charge of arson does
fall within the list of offences listed in Schedule 7 of the CPA, which provides for prosecutorial
bail. Therefore, prosecutorial bail can be applied for in F case.. This rule is met with exception of
section 60 of the CPA because an offence in schedule 7 is slight more serious in which police
may fix under section 59.
b) The granting of bail is in nature of a contract in which the state commits itself to the accused ‘s
continued interim freedom once a court the court has authorised his release which the accused
commits himself to stand trial it infact apparent that the contracting parties are the state and
the accused ,although the discretion to grant bail vests in the court

The effect of a bail hearing is that a person who in custody is released and payment of the
amount set as bail. When attorney applies for bail which is not opposed and doesn’t relate to
schedule 5 or 6 offence, he/she may address the court from the side bar without the client
giving evidence.
The attorney or is obligated to inform the court of his/her clients previous convictions or any
pending cases the client might have whether the client has been released in bail in such charges
see section 60(11B)(a)(i)(ii) of the CPA Bail is regarded as a compromise or striking a balance
between the interests of society and the liberty of an accused.
The court may consider the strength of the state’s case against the accused, when deciding if
the accused would evade trial, be a fugitive from justice or tamper with evidence if released.
The accused’s attorney must persuade the court that the release of the accused will not be
detrimental to the interests of justice. It involves a value judgment of what is fair and equitable
having regard to all circumstances. Whether an accused is a flight risk the accused needs to
show that infact he has assets situated in the jurisdiction of the court concerned he or she has a
family or community or occupational ties within the court’s jurisdiction and doesn’t posses any
travel document.
The CPA mentions various factors that a court may take into account to determine whether bail
should be granted or not. Thus, s 60 (4) (a) – (e) lists factors that a court may consider when the
interests of justice do not permit such release on bail. The interests of justice do not permit
release in the following circumstances/on the following grounds
a) where there is the likelihood that the accused if released on bail, will endanger the safety of
the public or any particular person or will commit a Schedule 1 offence or
b) Where there is the likelihood that the accused, if released on bail, will attempt to evade his or
her trial
 c) Where there is the likelihood that the accused, if released on bail, will attempt to influence or
intimidate witnesses or to conceal or destroy evidence; or whether the accused will not
interfere with state witnesses or
d) where there is the likelihood that the accused, if released on bail, will undermine or
jeopardize the objectives or the proper functioning of the criminal justice system, including the
bail system; or
e) Where in exceptional circumstances there is the likelihood that the release of an accused will
disturb the public order or undermine the public peace or security. The focus at the bail stage is
to decide whether the interests of justice permit the release of the applicant pending trial,
which entails, in the main, protecting the investigation and prosecution of the case against any
hindrance.
Lastly personal factors of accused may lay a crucial role in the court granting bail. Person factors
such as the fact that the accused is particularly young the fact that the accused has dependants
to support, and the financial position of the accused.
There are various factors that are taken into account by our courts when deciding whether to
grant bail or refuse but most importantly, the presumption of innocence plays an imperative
role in formal bail application.

QUESTION 2

A plea and sentence agreement, also known as a plea bargain agreement, is an agreement between an
accused and the state represented by the prosecutor, in terms of which an accused agrees to plea in
return for lenient or a reduced sentence.

These agreements are common in South Africa criminal justice system and are often initiated by the
accused person who is desirous of having lesser sentences imposed on term. Prosecutors are also often
inclined to initiated by accused persons who are desirous of having lesser sentence negotiations to avoid
going through a protract and arduous trail, by agreeing to plead guilty to the offence which they have
been charged an accused person waives their rights to a fair trial, which is entrenched in s 35(3)of the
constitution. These agreement however, are an important part of our criminal justice systems.

Section 105A (1)(a) provides that a prosecutor who is authorised thereto in writing by the National
Director of Public Prosecution and an accused who is legally represented may plea of guilty by the
accused the accused to the offence of which they may be convicted on the charge and, if the accused is
convicted of the offence to which they have agreed to plead guilty, a just sentence can be imposed by
court.

Section 105 A of the Criminal Procedure Act, 1977 allows prosecutors to negotiate and enter into a plea
and sentence agreement with the defense. Many parties are involved in this process, namely, the
prosecutor, accused and legal representative, investigating officer, complainant and presiding officer. It
should be noted that the prosecutor can only conclude the plea and sentence agreement once he or she
is authorized to do so by the National Director of Public Prosecutions (s 105 A (1)(a)
.The agreement must be negotiated and entered into before an accused has pleaded to the charge. The
contents of the sentence agreement are:

 The accused must plead guilty to the charge and be convicted

 It must include the sentence to be imposed

 It must state the substantial facts of the matter

 It must cover all legal elements of the offence (fact probanda)

The prosecutor has to consult the investigating officer and afford the complainant and his or her
representative an opportunity to make representation to the prosecutor regarding the contents of the
agreement and the inclusion of any conditions included in the plea section 105A(1)(a) requires to have
written authority by the NDPP to negotiate and enter into a plea. In practice: the defence attorney
approaches the prosecutor with the proposal that a sentence agreement be entered into and a
suggestion as to what constitutes a just and proper sentence. If the court does not confirm the
agreement, the defence must withdraw from the agreement and the trial starts de novo before another
court. Any information contained in the agreement may not be used in the subsequent trial. The
defence also has the choice not to withdraw from the agreement and to proceed with the sentencing
process. In S v Knights 20017(2) SACR 583 (GP)the appellant was sentenced to life in prison in terms of
the plea and sentence agreement. One of the grounds of appeal was that there was noncompliance with
the provision of 105A (1)(a).

Question 3

As the general rule an accused person cannot be demand that he be tried with anyone else. It is for the
prosecutor to decide whether or not to try persons jointly or separately. While it is in the interest of
society as well as justice of society as well as justice that the perpetrators of the same crime should be
tried jointly, this does not mean that a trial is unfair because other possible perpetrators are not charged
together with an accused. The ultimate question is whether a particular trial was unfair.

Where two or more persons are jointly charged, the court may at any time during their trial direct that
the trial of one or more of them should be held separately from that of the other or others. The court
may make such an order on the application of the prosecutor or the accused, but cannot do so mero
motu.if the court orders a separation , the case subsequently proceeded with must begin afresh.

It is well established that a trails should be separated where one of the accused pleads guilty but the
other I not granted in such a case there is danger that one of the accused will be prejudice by evidence
given by the others, whether under cross examination or otherwise. Where possible the same judicial
officer should try the various cases.

Section 157(2) of the Criminal Procedure Act, 1977 grants judicial authority for separation of trials. An
application for separation of trials can be made in the following circumstances:
 If your client’s co-accused has become problematic or is creating difficulty for your client, then you
may make such an application;

 If your client’s co-accused is an existing or potential threat, you should consider an application for
separation of trials;

 The mere fact that a co-accused made a confession implicating your client would not automatically
provide a ground for a separation of trials (S v Mabeka and Another 2003 (2) SACR 128 (SCA)

 The view has been expressed that whenever a co-accused has made a confession or admission or
where there is a possibility of prejudice to your client for any other reason, you should apply for a
separation of trials The applicant must show that he will suffer substantial prejudice before making such
an application.

If an accused person wish to call a co accused to give evidence in his defence, and the co-accused
refuses to testify, refusal to order limit the accused in his defence any may result in his conviction being
set aside on appeal or review.

QUESTION 4

IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT JOHANNESBURG

In the matter between:

THE STATE

And

Anger Jude (THE ACCUSED)

Case no: 23/164/2021

PLEA IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 (AS
AMENDED)

1. I confirm that I am the accused in this matter, and that I have read the charge sheet and I understand
the charge that has been preferred against me.

2. I plead guilty to the charge of assault with intent to do grievous bodily harm freely and voluntarily
and without any undue influence.

3. The facts which I plead guilty are as follows:

On 23 March 2021, I was on my way to the local mall Midlands Mall 5km away from my house in Mose
Mabhida Street Protea Glen Johannesburg. I had my cellphone in hand and an amount of R500 in my
pocket to purchase my groceries which included soap, eggs, oil and Rice at the checker hype. I selected
the items and placed them in my basket. As I was approaching the mall, I was accosted by one Victim
Patrick Sangweni who was wielding a large wooden stick which looked to me as a knobkerrie, and he
appeared to be high or intoxicated. As he approach on my path he then blocked my way vigorously and
request that I hand over my cellphone and empty my pockets which I did, I then proceeded to give the
money he demand more in that case I didn’t have, he accused me of lying. A physical confrontation
ensued. Victim used his knobkerrie to attack me. I picked up a metal object on the side of the road. I
stabbed Victim with the metal object on his arm and legs and he fell to the ground bleeding profusely.
He was taken to the local hospital where he was treated for the stab wounds.

I than ran away in panic The police arrested me at my house in 338,Robert Sebuko Street, Proten Glen
after the incident. They charged me with assault with intent to do grievous bodily harm and took me to
the local police station where I was detained.

4. I know that my actions were unlawful and wrong. I had no intention of causing injury to Victim
Patrick. I was trying to defend myself against his attack with the knobkerrie. I accept that my actions
caused him grievous bodily harm.

Signature of accused; A. Jude

Full names Anger; Jude

Place; Protea Glen Magistrate Court

Date 24/03/2021

Signature of legal representative; P Mgingqizana

Full names; Phatheka Mgingqizana

Place Protea Glen Magistrate Court

Date 24/03/2021

Signature of Senior Prosecutor; N. Zondi

Full names; Nkosinathi Zondi

Place; Protea Glen Magistrate Court

Date; 24/03/2021
Bibliography
BOOKS

1. Maharaj, A Confident Criminal Litigation (LexisNexis: 2010) Chapter Title: Arrest and Bail: 1-6.
2. Engelbrecht, Morris Technique in Litigation (2010) Chapter 19.
DECLARATION OF AUTHENTICITY AND ACCURACY

I,… (Full name/s and surname) Phatheka Mgingqizana Student number: 55802206 declare that I
am the author of this examination in TLI4801. I further declare that the entire examination is my
own, original, correct work and that where I used other information and resources, I did so in a
responsible manner.

I did not plagiarize in any way and I have referenced and acknowledged any legal resources that I
have consulted and used to complete this examination. By signing this declaration, I acknowledge
that I am aware of what plagiarism is, and the consequences thereof. Furthermore, I acknowledge
that I am aware of UNISA’s policy on plagiarism and understand that if there is evidence of
plagiarism within this document; UNISA may take the necessary action.

Place: UMzimkhulu

Signature: P Mgingqizana

Date: 05/09/2022