UNIVERSITY EXAMINATIONS

October/November 2023

CPR3701

Criminal Procedure

80 Marks
Duration: 4 Hours

First examiner: M T Mokoena

Second examiner: XK Koza
This paper consists of 12 pages.

INSTRUCTIONS FOR A TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING

THE EXAMINATION QUESTIONS.

1. The examination question paper counts 80 (eighty) marks.

2. The question paper consists of 4 sections, each with its own questions. Answer ALL
of the questions.

3. The duration of the examination on the timetable is 4 (four) hours.

4. In addition to the duration of the examination indicated on the timetable, you are given 30
minutes to FINALISE the uploading of your exam file. Your exam file must be uploaded
via the myExams platform on 19 October 2023 BEFORE 12h30 (South African
Standard Time).

5. This is an open-book examination. While the examination is in progress, you are not
allowed to consult another person or any source to assist you to answer any of the
questions contained in this question paper. While the examination is in progress, you may
not assist, either directly or indirectly, another student in answering any of the questions
contained in this question paper. You may also not seek answers, either directly or
indirectly, from any other person, including persons involved in writing the same
examination.

6. This examination is proctored via the Invigilator App. You are required to activate (or log
in to) the Invigilator app between 07h45 and 08h30 (South African Standard Time).
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6.1 Please note: If a student is found to have been outside the invigilator app for a total of 10
minutes during their examination session, they will be considered to have violated Unisa's
examination rules and their marks will be withheld.

6.2 You only have 10 minutes after the scheduled (timetabled) exam time to submit your
script on the Invigilator App.

6.3 You will have 48 hours from the date of their examination to upload their invigilator
results from the Invigilator App. Failure to do so will result in students deemed not to
have utilised the invigilation or proctoring tools.

7. The uploading of your exam file on the myExams platform must be finalised within 30
minutes of the scheduled (timetabled) end of the exam.

7.1 When ready to submit, open the Take-Home (Assignment) assessment again and click
on the Add Submission button.

7.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.

7.3. Check the acknowledgment checkbox and upload your answers document and then
click on the Save changes button.
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7.4. Review your submission information regarding the status and click on your submission
file link to check if it's correct.

7.5. If you need to resubmit a file, you can click on the Edit Submission button. Do not click
on the Remove submission button. Note: You will need to delete any existing files by
clicking on the file and then on delete.
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7.6 Use proper PDF conversion software to create the final file for upload. Free PDF
conversion software is available on the Internet.

7.7 Add your student number and the module code in the file name. That will assist you to
select the correct document to upload during submission.

7.8 You are advised to preview your submission (answer script) to ensure legibility and that
the correct answer script file has been uploaded.

8. The cover page for your take-home exam must include your name, student number and
the module code.

9. It is preferred that your take-home exam is typed. However, handwritten submissions will
also be accepted. If the take-home exam is typed, the maximum length 3 - 4 pages (which
includes the cover page, BUT NOT a bibliography and/ or footnotes). If the take-home
exam is handwritten, the maximum length is 5 - 6 pages (which includes the cover page,
BUT NOT a bibliography and/ or footnotes).

10. Whether your answers are typed or handwritten, your submission on the myExams
platform on Moodle must be made in the form of one PDF document. Only the last file
uploaded and submitted will be marked.
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10.1 The exam answer file that you submit must not be password protected or uploaded as a
“read only” file.

10.2 Your examination answer file will not be marked if:

10.2.1 you send your examination answer file via email.

10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.
10.2.6 you submit your examination answer file late.
10.2.7 you submit your answer file from a registered student account that is not your own.

10.3 The mark awarded for an illegible examination answer file submission will be your final
mark. You will not be allowed to resubmit after the scheduled closing date and time of the
exam.

10.4 Listening to audio (music) and utilising audio-to-text software has been strictly prohibited
during your examination session, unless use of the software is related to a
student’s assistive device which has been declared. Listening to music, utilising such
software and/or failing to declare the software is a transgression of Unisa’s examination
rules and the student's marks will be withheld.

11. If your answers are typed, ensure that the following requirements are adhered to. Items
11.3-11.6 applies to written assignments as well.

11.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph,
and double line spacing after the paragraph.

11.2 The text must be justified.

11.3 All of the pages must be numbered in the right hand corner at the bottom of the page.

11.4 All margins must be 2.5cm, but the left margin must be 3cm.

11.5 South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.

11.6 Do not use abbreviations or SMS language.

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11.7 All quotes that are two lines long (or less), must form part of the main text, be written in
italics, and be bracketed by quotation marks. Where a quotation is longer than two lines,
it must be typed in a separate paragraph in italics in size 11 font and must be indented by
1 cm. No quotation marks are required when the quotations stand alone. Use quotations
very sparingly. In this take-home exam, a maximum of 5% of the text may be quoted.

12. When answering the take-home exam questions, remember that an open-book exam is a
test at a higher level than the usual type of exam, where memory is tested as much as
insight. In an open-book exam, you need not memorise any information. You are expected
to prove that you can use information, rather than merely repeat it. In brief, what is being
tested is factual knowledge, understanding and the correct application thereof, not
memory skills. For this reason, you do not earn marks by merely detailing a list of all the
information that you think might be relevant to a particular question. This gives no
indication that you know what statutory or other provisions are applicable in a specific
context. You are expected to identify precisely what information applies, and then explain
why you think so.

12.1 Also, because you have the guide available when answering questions, we do not give
marks for direct quotations from the guide. You are therefore assessed on your level of
understanding of the legal principles by looking at how well you applied the principles to
the questions.

12.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY
OTHER SOURCE).

13. The arguments that you make must be logical, well-structured and substantiated by all of
the relevant legal principles. Use the time given wisely.

13.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to
ALL of the relevant authorities, e.g. sections from relevant legislation and/or court cases
in the text or in your footnotes.

13.2 You are required to have read and summarised the prescribed cases yourself. The
summaries in the Study Guide are not sufficient for this exam. When using case law to
support your answer, please include complete references to the relevant cases in your
footnotes. This means that you must not only include the name of the case but also the
exact page and section and/or paragraph where the information can be found. The same
applies to articles and books used.
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13.3 A number of students lose marks because they do not approach problem-type questions
correctly. When answering such questions, it is important to first clarify for yourself the
area of work where the answer must be sought. Once you have done this, set out the
relevant legal principles. Deal only with those principles that relate to the given facts. Next,
apply these principles to the facts. This is where most of the students lose marks - they
set out the law in some detail, but then do not illustrate how it applies to the factual situation
they have been asked to solve. Finally, state your conclusion.

14. You must complete the online declaration of own work when submitting.

14.1 By ticking the Honesty Declaration, you confirm that you have read (i) the
University’s Policy on Copyright Infringement and Plagiarism and the Student Disciplinary
Code, which are both available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the
information relating to student values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-rules.

14.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with any other person or request
assistance from any other person during their examinations. The use of Telegram,
WhatsApp or any other instant messaging services with any other person (except when
asking for technical assistance via official channels of the SCSC or the Invigilator
WhatsApp line) are strictly prohibited. Plagiarism is a violation of academic integrity and
students who plagiarise, copy from published works or use Artificial Intelligence Software
(eg ChatGPT) or online sources (eg course material) will be in violation of the Policy on
Academic Integrity and the Student Disciplinary Code and may be referred to a disciplinary
hearing. Unisa has a zero tolerance for plagiarism and/or any other forms of academic
dishonesty.

14.3 Unless a student is exempted because of disability or incarceration, students who have
not utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s
examination rules and will have their marks withheld.

PLEASE NOTE:

If you experience challenges with the Invigilator app, please send a WhatsApp message to the
technical helpdesk on 073 505 8273. Do not contact the lecturers.

For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
[email protected] or refer to Get-Help for the list of additional contact numbers.
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IMPORTANT NOTICE

All four (4) sections of this paper are compulsory and must be completed on one
examination script.

A, B, C and D allegedly rob a Town Bank, which is located in the city of Cape Town. Members
of the South African Police Services (SAPS) are called to the scene of the crime, during which
a shoot-out ensues between police and the robbers. Two of the robbers, A and B manage to
escape with an undisclosed amount of the loot. C who is holed up inside the bank, is arrested
by Sgt. F, whilst trying to walk out through the main door of the bank. D (who is unarmed) is
ordered by Capt. G to surrender. D declines the order, and instead runs away in the opposite
direction. H, a client of the bank (and, a civilian), who just happened to be present on the
scene, produces his licenced firearm and fires a shot into D’s back, critically wounding him.
H arrests D and hands him over to G for detention. An R4 Rifle which was allegedly used by
the assailants is found abandoned on the floor of the bank.

Section 1

1.1 Name the part of law which determines the procedure to be followed when effecting
the arrest of C and D. (1)

1.2 Name the part of the law which determines the elements of the crimes with which C
and D are subsequently charged. (1)

1.3 Name the document which is an indispensable pre-requisite for conducting a private
prosecution, if the prosecution declines to prosecute C and D. (1)

1.4 Briefly indicate (in two short sentences, at the most) whether H had the authority (in
law) to arrest D in the manner that he did. (2)

1.5 C and D are subsequently charged with robbery with aggravating circumstances. V,
the investigating officer, reckons that he is qualified to grant bail to C and D. Briefly
explain (in two short sentences, at the most), whether V’s assumptions are, indeed,
correct. (2)

1.6 Name the measure of punishment which will be applied by the court to C and D, in
finalizing the case if they are subsequently convicted. (1)

1.7 Name the term which describes the “putting forward” to the next date of the case
against C and D, before the trial starts. (1)

1.8 Name the procedure which may be used to challenge some of the irregularities which
occurred during the trial if C and D are subsequently convicted. (1)
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[10]

Section 2

2.1 In the course of the investigations, Sergeant V sets out to interrogate C, in order to
obtain more information regarding the crime committed. However, C asserts his “right
to remain silent”, and also insists that as a “free citizen”, V does not have the right to
question him (C).

Discuss whether C’s assertions are correct. (10)

2.2 After arrest, but before his first court appearance, C requests to be afforded the
opportunity to be represented by an attorney, but is informed by Sergent V that the
right to legal representation “strictly speaking …only applies during actual court
proceedings”.
Fully discuss the accuracy and implications of V’s assertion. (10)
[20]
Section 3
3.1 During the subsequent trial, M, the presiding officer, informs the prosecution and the
defence that she is, in fact, dominis litis in the case, and that she will “control the
proceedings, as mandated by law”.

Discuss M’s assertions in the light of the following aspects:

(a) The name/ designation of the court regime which is followed in South African
legal practice as it relates to the role of the parties to the proceedings; and (1)

(b) The role of the presiding officer in South African criminal justice proceedings as
opposed to that of the presiding officer in the European or Continental System.
(12)

3.2 “In terms of s 35(1)(d)(i), everyone who is arrested for allegedly committing an offence
has the right to be brought before a court as soon as reasonably possible, but not later
than 48 hours after the arrest”. D, who was shot and injured by H during the robbery
is, in the meantime in hospital under police guard. He is made to appear in court ten
weeks after the robbery. Upon his first appearance in court, D instructs his attorney L,
to apply for the case to be ‘struck of the roll’ on the grounds that his Constitutional
right to appear before court within 48 hours has been violated.

Discuss the merits of D’s contention. (12)

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3.3 A and B are subsequently arrested a few weeks after the robbery. A, B, C and D apply
for bail. The prosecutor, Ms. PP, argues, during the bail proceedings, that the accused
will be charged, in the subsequent criminal trial, with robbery with aggravating
circumstances. The accused contend, on the other hand, that the State does not have
a strong case against them, and that “the interests of justice” justify their release on
bail. During the bail application, Ms.PP, is adamant that the accused must not be
granted bail. She further contends before court, that

(a) the crime of robbery with aggravating circumstances is classified under Schedule
5 of the Criminal Procedure Act; and (1)

(b) the prosecution must discharge its onus beyond any reasonable doubt; (2)

(c) in terms of section 60(11)(a) the prosecution bears the onus to prove to the court
beyond any reasonable doubt that “substantial and compelling” circumstances
exist which justify release on bail (2)

Discuss the accuracy or otherwise dynamics of the aspects referred to in (a), (b) and
(c).

[30]

Section 4
4.1 The subsequent trial is heard before regional court magistrate M, who sits with an
assessor, Q, for the duration of the proceedings. It comes to the attention of L, A, B,
C and D’s attorney, that Q is, in fact, a shareholder of City Bank, which was allegedly
robbed by the accused.

Discuss the process and the circumstances under which the recusal of Q as assessor
may be embarked upon to ensure the fairness of the trial. (10)

4.2 During the subsequent trial E, who is testifying for the prosecution, refuses, upon
being requested to do so by the court, to take the prescribed oath “because the taking
of an oath is not in agreement with her intellectual beliefs”.

(a) Briefly discuss whether E’s objection can be upheld by the court, and/ or whether
any alternatives can be pursued to accommodate her objections. (6)

(b) One of the eyewitnesses to the robbery, F was previously diagnosed with
cerebral palsy. L, the accused’s attorney, is the view that such a witness is not
competent to testify before a court because of her “apparent mental deficiency”.
Briefly discuss the weight or otherwise of L’s argument. (4)
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[20]

[TOTAL: 80]
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