About this module
Criminal Procedure teaches how the State moves from a suspected crime to a verdict and sentence: who decides to prosecute, how suspects are brought before court, when police may arrest and search, how bail works, what rights an accused has, and how a trial, sentencing and appeal run. Educational tool, not legal advice. All law is South African.
Level: usually second or third year (LLB). Prior knowledge: Module 5 (Criminal Law) and Module 6 (Constitutional Law). Module 12 (Law of Evidence) builds on this module: confessions, admissions and the exclusion of unconstitutionally obtained evidence (s 35(5)) are taught there.
How this guide teaches. Each chapter starts with a problem, gives the big picture, teaches the rules with case boxes (the legal issue, what the court held, and why it matters), lists common mistakes, sums up in short, and ends with practice questions, flashcards and a quiz. Cases are taught by the legal issue they decide, not by their facts.
Common cases and how they are checked
| Chapter | Case | Legal issue | Status (27 October 2026) |
|---|---|---|---|
| CP2 The prosecution | NDPP v Freedom Under Law [2014] ZASCA 58 | Can a decision to withdraw charges be reviewed, and on what grounds? | Read on the SA Law Library |
| CP3 Arrest | Minister of Safety and Security v Sekhoto [2010] ZASCA 141; 2011 (5) SA 367 (SCA) | What must be proved for a lawful arrest without a warrant, and how is the discretion to arrest controlled? | Read on SAFLII |
| CP4 Search and seizure | Thint (Pty) Ltd v NDPP [2008] ZACC 13; 2009 (1) SA 1 (CC) | What must exist before a search warrant is issued, and how clear must it be? | Read on SAFLII (to para 91) |
| CP4 Search and seizure | Minister of Police v Kunjana [2016] ZACC 21 | Are wide powers to search homes without a warrant constitutional? | Read on SAFLII |
| CP5 Rights of the accused | Thebus v S [2003] ZACC 12; 2003 (6) SA 505 (CC) | May a court draw an adverse inference from an accused's silence before trial? | Read on SAFLII |
| CP6 Bail | S v Dlamini; S v Dladla; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (4) SA 623 (CC) | Are the bail provisions of s 60, including "exceptional circumstances", constitutional? | Read on SAFLII |
| CP7 Disclosure | Shabalala v Attorney-General, Transvaal [1995] ZACC 12; 1996 (1) SA 725 (CC) | Is an accused entitled to the police docket and to consult State witnesses? | Read on SAFLII |
| CP7 Delay | Sanderson v Attorney-General, Eastern Cape [1997] ZACC 18; 1998 (2) SA 38 (CC) | When is a trial delay unreasonable, and when is a permanent stay the remedy? | Read on SAFLII |
| CP11 The trial | S v Lubaxa [2001] ZASCA 100; 2001 (4) SA 1251 (SCA) | When must an accused be discharged at the close of the State case (s 174)? | Read on SAFLII |
| CP12 Sentencing | S v Malgas [2001] ZASCA 30; 2001 (2) SA 1222 (SCA) | How do courts apply prescribed minimum sentences and "substantial and compelling circumstances"? | Read on SAFLII |
Module blueprint
| Chapter | Question it answers | Outcome |
|---|---|---|
| CP1 Framework and role players | What kind of system is this, and who does what? | LCP1 |
| CP2 The prosecution | Who decides to prosecute, and can that decision be challenged? | LCP2 |
| CP3 Securing attendance: arrest, summons and written notice | How is an accused brought before court? | LCP3 |
| CP4 Search and seizure | When may the police search and seize, with or without a warrant? | LCP4 |
| CP5 Rights of arrested, detained and accused persons | What does s 35 guarantee, and how does the right to silence work? | LCP5 |
| CP6 Bail | When must an accused be released on bail? | LCP6 |
| CP7 Disclosure and trial within a reasonable time | What must the State disclose, and what happens if the trial is delayed? | LCP7 |
| CP8 The charge | What must a charge contain, and how can it be fixed? | LCP8 |
| CP9 Pleading | What pleas may an accused enter, and what happens after each? | LCP9 |
| CP10 Plea and sentence agreements | How does a negotiated plea work? | LCP10 |
| CP11 The trial and discharge | How does a trial run, and when must the accused be discharged? | LCP11 |
| CP12 Sentencing | How do courts choose a sentence, including minimum sentences? | LCP12 |
| CP13 Appeals and review | How is a conviction or sentence challenged? | LCP13 |
| CP14 Child justice | How are children accused of crimes dealt with? | LCP14 |
CP1: Framework and role players
Problem. A first-year student says a criminal trial in South Africa is like a French trial: the judge investigates and questions everyone to find the truth. Is that right?
The big picture. South Africa has an accusatorial (adversarial) system: the State (prosecution) and the accused present their cases before an impartial presiding officer, who decides on the evidence placed before the court. The Criminal Procedure Act 51 of 1977 (CPA) is the main statute, and the Constitution, especially s 35, sets the minimum standards. Every rule in this module must be read with the right to a fair trial.
CP1.1 Key features
- Accusatorial, not inquisitorial: the parties lead evidence and cross-examine; the presiding officer remains impartial but may question witnesses to clarify, and must assist an unrepresented accused.
- Presumption of innocence: the State must prove guilt beyond reasonable doubt.
- Fair trial: s 35(3) lists specific trial rights, but the right to a fair trial is broader than that list.
CP1.2 The role players
- Police (SAPS): investigate crime, arrest suspects and compile the docket.
- National Prosecuting Authority (NPA): decides whether to prosecute and conducts prosecutions (Constitution s 179).
- Courts: magistrates' courts (district and regional) and the High Court try criminal cases; the SCA and Constitutional Court hear appeals.
- Defence: the accused, a privately instructed lawyer or Legal Aid South Africa.
- Correctional Services: carries out sentences of imprisonment.
Back to the problem. No. The South African system is accusatorial: the parties present their cases and the presiding officer decides impartially, though the court may ask questions and must help an unrepresented accused understand the process.
In short. Accusatorial system, CPA 51 of 1977, Constitution s 35 sets the standard, presumption of innocence, proof beyond reasonable doubt.
Flashcards
| Front | Back |
|---|---|
| Main statute | Criminal Procedure Act 51 of 1977 |
| Constitutional rights of arrested, detained and accused persons | Section 35 |
| South Africa's system | Accusatorial (adversarial) |
| Standard of proof in criminal cases | Beyond reasonable doubt |
| Who decides whether to prosecute? | The National Prosecuting Authority (Constitution s 179) |
| Presiding officer's duty to an unrepresented accused | To assist and explain the procedure and rights |
Quiz
- The South African criminal process is: (a) inquisitorial (b) accusatorial (c) purely written. Answer: (b).