1. SERVICES OFFERED

We offer a fully comprehensive service in terms of criminal litigation, and it includes the following:

1. Bail applications at police stations & Courts (24/7)

2. Representation at court, including the High Court;

3. Representation during appeals and reviews;

4. Watching Briefs with the prosecutor;

5. Representing complainant/victim's interest in trials;

6. Representation during parole hearings;

7. Representation at police stations during interviews;

8. Pursuing unlawful arrest and detainment claims;

9. Pursuing malicious prosecution claims;

10. Overturning Admission of Guilt Fines; 

11. Expunging Criminal Records; and

12 Various other misc. criminal law functions.

1.1. Introduction

Criminal Law is an especially complex and specialised area of law, which is governed by principles taken from the origins of our legal system that came from the Roman-Dutch Legal system, and then the influences that came from the English legal system.  This means that the principle of common law is applicable in South Africa, and that certain crimes, such as murder and theft, are common law crimes.

The South African legal system has also created various statutory offences throughout the years, which are specific crimes created by legislation, such as the contravention of the lockdown regulations, as introduced by the Disaster Management Act when South Africa went into lockdown.

The most often used legislation in South Africa when it comes to criminal law are:

 Criminal Procedure Act, No. 51 of 1977;

 Child Justice Act, No. 75 of 2008;

 General Law Amendment Act, No. 50 of 1956;

 Criminal Law Amendment Act, No. 105 of 1997;

 Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007.

 
 

2. ARREST

The South African Police Services are entitled to arrest a person when they become aware of a person contravening a law of the Republic.  This typically happens when someone (referred to as a complainant) opens a case against someone else (referred to as the accused), or when a Police officer sees someone contravening the law, such as witnessing someone speeding.

It is however a bit more nuanced than this, as the police services should not necessarily arrest for just any offence.  There are various different offences, such as common law offences (murder) and statutory offences (speeding).  The Criminal Procedure Act generally dictates when the police can arrest and the procedure the police must follow before, during and or after arrest.   Section 56 of the Criminal Procedure Act, read with the relevant proclamations from the Minister, provides that if it comes to arrest, and the police think that an accused, if found guilty, will not pay a fine of more than R 2,500.00, they should not arrest the accused, but should instead provide a written notice for the accused to appear in court.  So just because an offence was committed, does not necessarily mean that there MUST be an arrest.

The most often problem encountered in practice is that police officers do not properly identify themselves when asked, even though they MUST show their official identification when it is requested.  This is provided for by the section 334(2)(a) of the Criminal Procedure Act.

If the police fail to follow the correct procedures in an arrest, the arrest may amount to an unlawful arrest, and any detainment thereafter may be considered as unlawful.  This unlawfulness can go even so far as to translate to malicious prosecution if the National Prosecuting Authority (NPA) proceeds with the charges.

In some instances the police may require to take a blood test, a DNA sample or even require an identity parade to be held.  All of these aspects have strict procedures that need to be followed, even when it comes to their reason for doing so or the deadline that they have, such as with taking a blood test or DNA sample.  If the procedures are not followed correctly, and the chain of evidence is broken, it may lead to the evidence being declared wholly inadmissible.  In this regard, it is better to have an attorney there, someone who knows what to look for, while it is being done, as this will make it easier to have the evidence challenged at a later stage.

Irrespective, when a person is arrested, they must be taken to court within 48 hours for a bail application.  If this 48 hours expires on a public holiday or weekend, it will be the next court day thereafter.  This means that if a person is arrested on a Thursday or Friday, they can expect to only be taken to a court on the following Monday.  So if the police want to speak to you, it is advised that you request to speak with them on a Monday, Tuesday or Wednesday - to prevent from being kept in custody over a weekend.

It goes without saying however that it is strongly advised that, when arrested or questioned by the police, that a person should NOT MAKE ANY STATEMENT without first consulting an attorney.  The reason for this is very simply that you will not be told all the particulars of the charge against you, and you may then accidentally incriminate yourself by trying to "help" the police or yourself.

3. BAIL

When a person is arrested, the Constitution dictates that he or she is entitled to a bail application, irrespective of whether that person is a South African citizen, or whether they are in the country legally.

Whether an arrested person should get bail at a police station or a court is determined by the schedule of the offence the person is alleged to have committed.

In this regard, there are typically 5 schedules which need to be considered, and they are:

Schedule 1;

Schedule 2;

Schedule 5;

Schedule 6; and

Schedule 7.

For the purposes of bail applications, the merits, meaning whether the accused committed the offence or not, is largely irrelevant.  The police services do not have the authority to decide if someone committed an offence, only a court can.  However, the court is not entitled to decide if someone is guilty or not without a trial, which can only be held after all the evidence has been obtained, which usually takes several months, - or a guilty plea.  This is also usually when an unrepresented person may incriminate him or herself, or even plead guilty, when it isn't necessary, just to get out of custody. 

3.1. Police Bail (Schedule 2 & section 59 of the CPA)

The police are entitled to provide bail at a police station for very minor (or petty) offences.  If an offence is listed in schedule 2, Part II or III, bail cannot be obtained by a police station without the assistance of a prosecutor, provided that the offence is then listed in schedule 7.  This is to say that because driving under the influence and speeding is not listed in Part II or Part III, a police station can give bail for these offences - and because murder is listed, the police cannot give bail for this.

The offences for which the police can set bail are also generally offences that the police can accept an admission of guilt fine (AOG) on, which they are known to suggest.  If an admission of guilt is made, you pay a fine, and you are released immediately.  This is a very appetizing prospect.  The consequence of this however is that it will result in a criminal record, which is often understated at the police station.  There are various other legal methods of disposing of a criminal offence, even if guilty, which will not result in a criminal record - and it is for this reason that paying an admission of guilt fine without considering all the circumstances, should not be done.

3.2. Prosecutor Bail (schedule 7 & Section 59A of the CPA)

This bail is granted at a police station by way of a prosecutor.  In this bail application the prosecutor will consider the representations of a defense attorney and that of the investigating officer to determine if the accused should be released on bail.  If the prosecutor determines that it is not possible, the bail will need to be obtained at court.

3.3. Typical Court Bail Application (Schedule 1)

This type of bail application is the most common bail application.  The reason why this is the most common bail application is because the offences are usually quite prevalent.  

This bail application is not necessarily without peril, as the prosecution can decide to oppose the application, which will then result in a trial, similar to that of the more difficult Schedule 5 and 6 bail applications.

3.4. Court Bail Application: Interests of Justice (Schedule 5)

This can be a relatively difficult bail application.  This type of bail application is typically reserved for instances where the accused is a repeat offender of minor offences (multiple schedule 1 offences), or if the accused has been arrested for more serious offences, such as possession of a stolen vehicle (schedule 5 offences).

In this type of bail application the accused will need to prove that the interests of justice permit his or her release on bail, and that the public or the interests of justice will not be negatively impacted by bail being granted.

3.5. Court Bail Application: Exceptional Circumstances (Schedule 6)

This is the most difficult bail application that can be heard in a court, and is reserved for the most serious offences (schedule 6) or repeat offenders of more serious offences (multiple schedule 5 offences).   In this bail application the accused must show that there are exceptional circumstances that permit his release on bail.

The bail applications of Shabir Shake, Oscar Pistorius and the Dros Accused were schedule 6 bail applications, as well as the Boeremag members.

3.6. Miscellaneous bail information

It must be stated that schedule 5 and 6 bail applications will require evidence to be given under oath (by affidavit or verbal testimony), irrespective whether it is opposed or not.  The burden of proof is on the accused to prove that he or she must be released on bail.  If the prosecution wants to oppose the bail application, they are entitled to request a postponement of up to 7 days, but they will need to lead evidence as to why they are opposing the bail application, which is usually done with the testimony of the investigating officer.

If a bail application is unsuccessful, another bail application can only be made if there are new circumstances that arise, or it can alternatively be appealed.

What is stated during a bail application, especially related to the merits when attacking the state's case, should be done with caution, as any evidence tendered in a bail application can be used at trial, and it will be counter-productive to use information to obtain bail that will later result in a conviction.

3.7. Bail Conclusion

As can be seen above, bail applications can be relatively complex, as the schedules are not drafted in an order which follows or makes particular sense - which is why it is suggested that an attorney must be involved as soon as possible either after arrest, or if an arrest is suspected.

 

4. PLEA AND TRIAL

There are several options available to deal with a criminal charge against you.  It goes without saying that not every option can be used with every offence, and that attempting some when it is inappropriate can destroy all the good will with the prosecution.  That being said, the most common methods of finalising criminal charges are: 

4.1. Admission of Guilt Fine

An admission of guilt fine can be paid at a police station for certain offences, and at the court for others.  This is usually an inexpensive way of dealing with a matter.  The consequence of this however is that a person "admits" the elements of an offence, in that they intentionally broke the law, and that they do not have an excuse for doing so.  This will thus result in a criminal record, which means that if you pay an admission of guilt fine for something like theft or assault, your employment prospects drop dramatically, and it may even cause you to lose your employment if you are employed.

4.2. Mediation

This is a process whereby the accused and complainant can reconcile their differences.  If this process is successful, it is officially recorded on the Alternative Dispute Resolution (ADR) Register by the prosecution and the court.  This will result in the criminal charges being withdrawn against the accused, and will not result in a criminal record.  The charges will also not be able to come back.  The only way in which these charges can come back is if the accused contravenes the conditions of the agreement, if there were any.  There is however no absolute right to mediation.

The mediation also has to take place in controlled circumstances, meaning that the prosecution must be involved.  The reason for this comes down to bail conditions.  If an accused speaks directly with a complainant, even through a representative, and the discussion goes downhill, the accused's bail may be cancelled due to interfering or intimidating the complainant, being a state witness.

If the accused and the complainant reaches a settlement without the prosecution being a party, there could be a bit of risk for the accused, as there are then no guarantees that the complainant will not bring the charges back at a later date.

4.3. Diversion

Diversion is a process whereby, due to policy considerations by the prosecution, the prosecution decides to send the accused on a course or program to rehabilitate the accused, instead of penalising the accused by way of a fine or imprisonment.  This application usually has to be made formally and in writing, fully addressing all of the policy considerations.  If the prosecution accepts the application, and the accused completes the course or program, he or she will not have a criminal record.

4.4. Representations

Representations are usually done in writing, and given to the prosecution.  The representations can be used for various purposes.  The most often used purposes for representations are arguing why the charges against the accused should be withdrawn, implicating the real offender, making an application for diversion or mediation, or to request further investigations.  

4.5. Guilty Plea

This is a straightforward admission that the accused intentionally contravened the law, and committed the offence he or she is charged with.  This can sometimes be coupled with a plea bargain.  The plea bargain can reduce the charge to a lesser charge or there can be a pre-agreed sentence, which is often the case in fraud charges.

4.6. Not Guilty Plea

This plea will result in the matter going to trial.  The basics of a trial are that the state starts first.  The state will lead their evidence and call their witnesses, and will have to call the complainant as one of its witnesses.  The accused will however be entitled to cross-examine and or challenge any of the evidence the state presents.

Once the state has closed its case, it will then be the accused's turn to lead his or her evidence, call witnesses, and even have the option to testify him or herself.  Conversely however, the state will have the opportunity to cross-examine and or challenge any of the evidence the accused has led.

Once the trial has been concluded, and arguments have been made, the court will then deliver its judgment.

In terms of criminal matters, an accused can only be convicted if he committed the offence beyond a reasonable doubt, and not on the basis of probabilities.

 
 

5. SENTENCE

In criminal law, there are three different types of jurisdictions: District, Regional and the High Court.  The difference of these courts relates to their maximum sentence, and the type of legal representative that may appear there.  The practitioners at our firm can, and has, appeared in all of these courts.  In these three different jurisdictions, there are more specialised courts, such as the Specialised Commercial Crimes and Military Courts, which are Regional Court jurisdictions, and the Circuit Courts, which are High Court jurisdictions.

5.1. MINOR OFFENCES

These offences are typically prosecuted in a District Court (Magistrate's Court), where the maximum sentence is 3 years, with a few exceptions, notably being domestic violence, where the maximum sentence is 5 years.

Offences that are typically heard in the district court, which is not an exhaustive list, are:

 - Theft (shoplifting, cable theft, unauthorised use, etc.)

 - Assault (common and grievous bodily harm)

 - Contravention of a Protection Order

 - Fraud

 - Culpable Homicide

 - Reckless & Negligent Driving

 - Drunk Driving

 - Possession of undesirable substances (small quantities)

 - Possession of stolen property

 - Housebreaking with the intent to steal and theft

 - Being illegal in the country

 - Public Violence

 - Drinking in Public

 - Speeding

 - Inconsiderate Driving

 - Robbery

5.2. SERIOUS OFFENCES

These offences are typically prosecuted in a Regional Court (Magistrate's Court), where the average sentence the prosecution wants is 15 years imprisonment, or alternatively the High Court, where the average sentence the prosecution would want is life imprisonment.

Offences that are usually heard in these courts, which is not an exhaustive list, are:

 - Rape

 - Murder

 - Attempted Murder

 - Hijacking

 - Possession of a Stolen Vehicle

 - Housebreaking with the intent to rob and or assault

 - Assault on a minor

 - Armed Robbery

 - Treason

6. APPEAL & REVIEW

 6.1 APPEAL

There isn't an automatic right to an appeal in South Africa.  There is however an automatic right to APPLY for an appeal.  This can only be done after conviction AND sentence.  This should ideally be done within 14 days of sentence being passed.  It can be done after the 14 days as well, but then condonation will need to be requested, wherein reasons will need to be given why the appeal wasn't applied for 14 days after sentence was passed.

The appeal will need to be applied for in front of the magistrate and or judge that convicted the accused, and passed the sentence.  Should this magistrate or judge deny the application, the accused can then petition the High Court.  

An appeal can only be done on the facts that was presented to the court during the trial, and only on the basis of the court making a mistake in interpreting the evidence.  If the procedure of the trial is being challenged, that must be done via a review process.

That being said however, it isn't impossible to add new evidence in the appeal.  It can be done with the application to appeal, but very good reasons and or motivation needs to be provided as to why that evidence wasn't presented during the trial.

If the appeal to the High Court wasn't successful, you can then apply to the Supreme Court of Appeal, and thereafter the Constitutional Court.

 

© 2020 Anton Swart Attorneys Inc

Block 15 D, Central Office Park

257 Jean Avenue,

Centurion, Pretoria

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