QUESTION TWO

Question

Inspector Campbell receives information that could lead to securing material evidence in a murder case. The information entails that a motor vehicle with the specific registration number and description left the scene in a rush after the shooting incident that caused the death of Lolo Jem. The driver of the vehicle could be a material witness for the state. Inspector Campbell decides to follow up on the information received and visits Zilver Ferris, the vehicle's registered owner. Zilver Ferris admits that he was parked next to the shop where the murder occurred on the specific day but refuses to provide further cooperation since he does not want to "get involved" in the matter. He also refuses to give a statement. Inspector Campbell is convinced that Zilver Ferris has material information that might assist the investigation. Advice Inspector Campbell, with reference to the provisions of the Criminal Procedure Act, 51 of 1977, what steps he can take to obtain the information from Zilver; and how the procedure is applied, with reference to case law. [5]
QUESTION THREE
Provide a short summary of the procedure after arrest, substantiated with reference to legislation and case law. You need to discuss what happens to the accused after arrest until the point where the accused is released on bail in the magistrates' court. [5]
QUESTION FOUR
This question is a reflection question, meaning you will be asked to answer the question using your own experience as a guide. Therefore, your experience will not be assessed in terms of correct or incorrect, but the reference to the applicable theory will be evaluated in context.
Identify an issue and describe the challenges you foresee if you had to represent an accused in a bail application where the accused is charged with murder.
Marks for this section will be awarded as follows:
Is the issue clearly identified?
Why is the issue reasonably to be expected from a legal practitioner and justifiably relevant to specifically the bail application of an accused?
A brief description of a plausible way to proceed to address the issue, or prepare for the issue, or to deal with the issue (whichever finds application to your example).
[5]
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Answer 1

QUESTION TWO:
Inspector Campbell can take the following steps to obtain the information from Zilver Ferris:
1. Request a search warrant: Inspector Campbell can apply for a search warrant from a magistrate, allowing him to search Zilver Ferris's premises for any evidence related to the murder case. The search warrant should specify the items or documents to be seized.
2. Apply for a subpoena: Inspector Campbell can apply to a magistrate for a subpoena, compelling Zilver Ferris to appear in court and give evidence. If Zilver Ferris still refuses to cooperate, he may be held in contempt of court.
3. Conduct further investigations: Inspector Campbell can interview other witnesses or gather additional evidence to corroborate the information received about the motor vehicle. This may include reviewing CCTV footage, obtaining witness statements, or conducting forensic analysis.
4. Consider the use of informants: Inspector Campbell can try to gather information from other sources, such as confidential informants, who may have knowledge about Zilver Ferris's involvement or the motor vehicle in question. This should be done within the limits of the law and with proper authorization.

The procedure for obtaining information from Zilver Ferris should follow the provisions of the Criminal Procedure Act, 51 of 1977. Specifically, Section 205 of the Act allows for the issuance of search warrants, and Section 208 allows for the issuance of subpoenas. These sections provide the legal framework for obtaining evidence and cooperation from individuals during an investigation.

In terms of case law, the case of S v Phokolosi and Another (2003) is relevant. In this case, the Supreme Court of Appeal held that a search warrant obtained without valid grounds violates the accused’s right to privacy, as enshrined in the Constitution. Therefore, Inspector Campbell must ensure that he has sufficient grounds to obtain a search warrant and follow the proper procedure to avoid any potential violation of Zilver Ferris's rights.

QUESTION THREE:
After arrest, the procedure for the accused can be summarized as follows:

1. Arrest: The accused is apprehended by the police or law enforcement authorities based on reasonable suspicion or a warrant. The accused is informed of their rights and the reason for their arrest.
2. Detention: The accused is taken into custody and brought to a police station or holding facility. They may be searched, fingerprinted, and photographed. The accused may be questioned by the police, but they have the right to remain silent and the right to legal representation.
3. First court appearance: The accused is brought before a magistrate or judge as soon as possible, but no later than 48 hours after their arrest. The purpose of this appearance is to inform the accused of the charges against them and to consider bail.
4. Bail application: The accused has the right to apply for bail. The bail application is heard in a magistrates' court, where the court considers various factors, such as the seriousness of the offense, the likelihood of the accused fleeing, and the risk of the accused interfering with witnesses or the investigation. The court may grant bail, impose conditions for bail, or deny bail.
5. Remand: If bail is denied, or if the accused is unable to pay the bail amount, they will be remanded in custody until the next court appearance or the conclusion of the trial.

The procedure described above is based on the Criminal Procedure Act, 51 of 1977. Sections 35-43 of the Act set out the procedural rights of the accused after arrest, including the right to legal representation, the right to be informed of the charges, and the right to apply for bail. Section 59 of the Act deals specifically with bail applications in magistrates' courts.

Case law relevant to this procedure includes S v Dlamini (1999), where the Constitutional Court held that the right to a fair trial includes the right to reasonable bail. This means that the court must balance the interests of the accused and the interests of society when considering bail applications. The court must also consider the presumption of innocence and the principle that pretrial detention should be an exception rather than the rule.

QUESTION FOUR:
Issue: The issue is the presumption of innocence and the potential prejudice it may cause in a bail application for an accused charged with murder.

• Why is the issue reasonably to be expected from a legal practitioner and justifiably relevant to specifically the bail application of an accused?
This issue is reasonably to be expected from a legal practitioner as the presumption of innocence is a fundamental principle in criminal law. It ensures that an accused is not prejudiced before their guilt is proven beyond a reasonable doubt. In a bail application for an accused charged with murder, the seriousness of the offense may lead to concerns by the court that the accused may pose a flight risk or a danger to the community. Balancing these concerns with the presumption of innocence can be challenging for a legal practitioner.

• A brief description of a plausible way to proceed to address the issue, or prepare for the issue, or to deal with the issue (whichever finds application to your example).
To address this issue, a legal practitioner representing an accused charged with murder in a bail application can present evidence and arguments to demonstrate that the accused is not a flight risk or a danger to the community. This may include presenting evidence of strong community ties, employment stability, or family support. The legal practitioner can also argue that the strength of the prosecution's case has not been proven yet, and therefore, the presumption of innocence should weigh heavily in favor of granting bail. Additionally, the legal practitioner can propose stringent bail conditions, such as electronic monitoring or regular reporting to the police, to address any concerns the court may have about the accused's potential danger to the community.

By addressing these factors, a legal practitioner can mitigate the potential challenges posed by the presumption of innocence in a bail application for an accused charged with murder.