Criminal Procedure

Criminal procedure is the mode, process, or method by which we deal with the regulation of criminal law, mainly through prescribed regulation as in the Criminal Procedure Act 51 of 1977. Whereas criminal law concerns itself with the substantive principles establishing criminal conduct and specific crimes, criminal procedure is the adjectival way in which a criminal justice system operates in dealing with matters relating to criminal law.

Criminal law and criminal procedure rely heavily, for the fulfilment of their respective goals, on the law of evidence. Criminal law, criminal procedure and the law of evidence have as their source various statutory laws, however, common, and constitutional law influences are highly relevant. The overarching and supreme law by which all the above-mentioned laws must conform is the Constitution of the Republic of South Africa.

The purpose of criminal procedure is to provide a procedural mechanism by which the goals of criminal law can be realised, resolve disputes in terms of the efficient allocation of scarce resources and distribution of power amongst state officials, and finally giving effect to the rule of law by preventing citizens from taking the law into their own hands and allowing the legitimisation of state control over the lives of citizens.

The Place of the Law of Evidence in the South African Legal System

The law of Evidence is a branch of Adjective Law (or Law of Procedure), as distinct from Substantive law. Substantive law describes rights, duties and liabilities, while Adjective (Formal) Law describes the procedure, pleading and proof by which Substantive Law is applied in practice.

The primary function of the Law of Evidence is to make provision in the determination of which evidence may be put before a court as to prove a fact, further to determine how evidence in dispute may be treated, who is premised to give evidence and/or what can be used as evidence.

Section 35(5) of the Constitution of the Republic of South Africa places a duty on our courts to exclude evidence that has been obtained in a manner that violates any constitutional right.