CPR3701 - Second semester ASS 1,2,3 memo.docx - ASSIGNMENT 1 2ND SEMESTER MEMO Question 1(1 Substantive law comprises of a body of law determining the

CPR3701 - Second semester ASS 1,2,3 memo.docx - ASSIGNMENT...

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ASSIGNMENT 1: 2 ND SEMESTER MEMO Question 1: (1) Substantive law comprises of a body of law determining the rights and duties of individuals and the state which the courts are established to administer. Substantive criminal law, for instance, determines the prerequisites for criminal liability (like unlawfulness, fault) and prescribes the elements of various specific crimes (like theft, fraud or murder). It also attaches a sanction to breach of its prohibitions. But the mere threat of criminal sanctions would serve little purpose unless; Measures/rules are established to enforce the rules of substantive criminal law. These measures/rules are provided by adjectival law. Adjectival law is accessory in nature to substantive law and sets the rules to which substantive law is administered. The rules of criminal procedure form that part of adjectival law which provides a method for enforcing or maintaining rights or obtain redress for their intrusion. (2) Many rules of criminal procedure are double-functional in the sense that apart from regulating procedure, they also operate as grounds of justification in substantive law. Thus, if a police officer infringes a suspect’s interests in privacy by searching him in terms of the provisions of criminal procedure, the act of searching is both a regular procedural action and a lawful limitation of the suspect’s right to privacy. In terms of substantive law, the suspect can neither successfully charge the peace officer with an offence nor sue him in a delictual matter. If, on the other hand, the search was illegal (eg, in that it was not permitted by the law of criminal procedure), then, in terms of criminal procedure and the consequences of procedural actions, the evidence obtained is not be admissible; whereas substantive law consequences may be a criminal charge against the officer as well as an action for damages. Grounds of justification in substantive law may also be double-functional and may be used to great effect in criminal procedure. For instance, if a police officer may lawfully arrest a suspect and the latter attacks the officer, the officer may rely on the law of self-defence and defend himself. While self- defence as such is primarily a ground of justification in substantive criminal and private law (meaning that conduct which would otherwise be unlawful is rendered lawful in the circumstances), it here also empowers the officer to act in a criminal procedural sense. (3) In South Africa, in principle, does not follow a system of compulsory prosecution. A persecutor has a duty to prosecute if there is a prima facie case and if there is no compelling reason for a refusal to prosecute. ‘prima facie case’ would mean the following: The allegations, as supported by statements and real and documentary evidence available to the prosecution, are of
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such a nature that if proved in a court of law by the prosecution on the basis of admissible evidence, the court should convict.
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