CRIMINAL LAW

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  This will result in the criminal charges being withdrawn against the accused, and will not result in a criminal record.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.​

© 2020 Anton Swart Attorneys Inc

Block 15 D, Central Office Park

257 Jean Avenue,

Centurion, Pretoria

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