Summary of the Criminal Procedure Act, no. 51 of 1977 (With Amendments)

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The purpose of the Criminal Procedure Act is to regulate procedures and related matters in criminal proceedings. In other words, the Act governs how criminal cases are handled in courts of law.

Contents

[edit] Prosecuting authority

The Criminal Procedure Act assigns the prosecuting authority in any criminal case certain legal powers, but also defines how and when such powers can be used. The most important legal powers in this regard are the following:

  • Power to withdraw a charge or stop prosecution: An attorney-general or any prosecuting authority may withdraw a charge before the accused pleads to that charge. A prosecution may also be stopped after the accused has pleaded, but before conviction.
  • Private prosecution: In any case in which an attorney-general decides not to prosecute an alleged offence, any private person may initiate criminal proceedings in a competent court.
  • Private prosecution under statutory right: Any person or body which has the right to prosecute an offence, may carry out such a prosecution in a competent court of law, but only on condition that the attorney-general has agreed to withdraw his right of prosecution in respect of the specified offence.
  • Security by private prosecutor: A private prosecutor who wishes to carry out private prosecution is required to pay an amount to the relevant magistrate’s court as security that he will prosecute the charge without delay and carry the case to its conclusion. Any failure to do so will result in the amount being forfeited to the State.
  • Private prosecution in name of private prosecutor: A private prosecution will be carried in the name of a private prosecutor. The indictment, charge-sheet or summons will therefore be signed by the private prosecutor concerned or his legal representative.
  • Failure to appear: If the private prosecutor does not appear on the day set aside for the appearance or trial of the accused, the charge will be dropped unless the court has reason to believe that the prosecutor was prevented from appearing by circumstances beyond his control.
  • Mode of conducting private prosecution: A private prosecution will on the whole be conducted in the same manner as a state prosecution.
  • Intervention by attorney-general: The attorney-general has the power to intervene in a private prosecution by applying to the court that the proceedings be stopped so that it may be taken up by the State.
  • Costs of private prosecution: The costs and expenses of a private prosecutor will be paid by the private prosecutor himself, except in cases where the court convicts the defendant and orders that they pay such costs.
  • Prescription of right to prosecute: The right to prosecute an offence falls away 20 years after the offence was committed unless the offence is any of the following: murder, treason during wartime, robbery with aggravating circumstances, kidnapping, child-stealing, rape, genocide or crimes against humanity.

[edit] Search warrants, seizing, forfeiting and disposing of property

The State may seize anything which is on reasonable grounds believed to be involved in a criminal offence, or intended to be used in a criminal offence, or which provides evidence that a criminal offence has occurred.

A search warrant is required from a magistrate or justice, or a judge or judicial officer standing in a criminal case, in order for an article to be seized. The following regulations apply to the use of such a search warrant:

  • The search warrant gives a police officer the power to seize the article in question. The police officer also has the power to search the person identified in the warrant, or to enter and search any premises identified in the warrant, if this is needed to seize the article.
  • The search authorised by a search warrant will be carried out by day, unless a night search is authorised by the person issuing the warrant.
  • A search warrant may be issued on any day, and will valid unitl the search is carried out or unitl it is cancelled by the person who issued it.
  • A police officer carrying out the search must hand a copy of the warrant to any person affected by the search.

A police officer without a search warrant may search any person or container in order to seize an article if:

  • The person concerned agrees to such a search and seizure
  • The police officer has reasonable grounds to believe that a search warrant will be issued to him in the circumstances, but that any delay in waiting for the warrant would defeat the object of the search.

[edit] Arrest of a person

Any police or peace officer making an arrest may seize any article carried or owned by the person being arrested. A peace officer in such circumstance must hand the article over to a police officer.

[edit] Entering a location

If a magistrate or justice has reasonable grounds to believe that activities in a particular location are linked to an offence which has occurred or which is about to occur, then he may issue a warrant permitting a police officer to enter and search the location in question and to seize any article found at that location.

A police officer may also enter a location in order to question any person who he suspects can provide information about an offence committed at the location. The police officer may do so without a warrant, except where the location is a private residence.

Police officers may use force if their efforts to enter and search a location are met with resistance. The police officer however must first demand entry to the location and announce why he wishes to enter the location.

[edit] Wrongful search

Any police officer who acts outside the authority of a search warrant or who carries out unauthorised actions while attempting to enter and search a person or location, or seize an article, is guilty of an offence and is liable to a fine of no more than R600 or to imprisonment for no longer than 6 months.

[edit] Disposal of article

If no criminal proceedings are carried out in connection with an article that has been seized, and the article is not needed as evidence in any court, then the article will be returned to the person from whom it was seized. If no such person is available, then the article will be handed over to the State.

In cases where criminal proceedings are carried out in connection with a seized article, the article may be returned to the person from whom it was seized, if the accused has admitted his guilt.

[edit] Forfeiting an article to the State

A court which convicts an accused of any offence may, without notice, order any weapon or object to be handed over to the State. A court may apply the same order to any vehicle or container used in the transport o stolen property. This order can be overturned, however, if any person, other than the accused, proves that the article lawfully belongs to him or her, or that he sold the article to the accused but is still awaiting payment for the transaction. Such a person may reclaim ownership of the article, or claim compensation if the State has already disposed f the article.

Whether or not the accused is convicted of an offence, any articles seized from him which are found to be forged or counterfeit, will be forfeited to the State.

[edit] Offences committed outside South Africa

Where an article is seized in connection with an offence committed outside South Africa, the magistrate concerned hand over the article to the police force of a foreign country, if there are reasonable grounds for believing that it will serve as evidence in the prosecution of a criminal offence which is punishable by death or by imprisonment for a minimum of one year or by a fine of at least five hundred rand.

[edit] Recording the physical features of the accused

Any police officer may:

  • Take the finger-prints, palm-prints or foot-prints of any person arrested on a charge, released on bail, or has had a summons served on them
  • Change the condition, position or dress of the person for the sake of identification
  • Examine the body of such a person for any distinguishing mark or feature. No police official may take a blood sample, however. Furthermore, if the person being examined is a female, only a female officer may carry out the examination.
  • Take a photograph of the person.

Any medical officer of any prison or any district surgeon may, at the request of a police officer, take a blood sample in order to help with the identification of a person. Any registered medical practitioner may also take a blood sample of any person, if they believe that doing so will help later criminal proceedings.

If the accused is found not guilty, or is discharged, then all finger-prints, palm-prints, foot-prints and photographs relating to that person will be destroyed.

[edit] How may the attendance of the accused in court be ensured?

The attendance of the accused in court may be secured through:

[edit] Admission of guilt fine

In certain instances, the accused may admit his guilt and pay the required fine either to the clerk of the relevant magistrate’s court or to the specified local authority, without having to appear in court. This may occur if a summons has been issued against the accused and there are reasonable grounds for believing that a fine no greater than the stipulated amount (as defined by the Minister) will be imposed on the accused if he is convicted; or if a written notice has been served by a peace officer and this officer believes that such an option should be available.

The accused will have to pay the fine by a certain date, usually the date contained in the summons or written notice. The accused will also have to hand in the summons or written notice, when paying the fine, unless the original document has been lost and a copy of it is available.

Once an admission of guilt fine has been paid, the summons or written notice will be forwarded to the clerk of the relevant magistrate’s court, and a record will be made of the case. The judicial officer from the court in question may examine the record and if it appears to him that the sentence is not adequate, he may set aside the conviction and sentence and order that the accused be prosecuted in the ordinary manner.

In certain instances, an admission of guilt and payment of the fine may be made after the accused has appeared in court. This may occur if the accused is in custody awaiting trial, or has been released on bail, or has been released on a warning, and the public prosecutor believes that, if the accused is convicted, the fine imposed would be no greater than the amount stipulated by the Minister.

[edit] Bail

When the accused pays bail, they pay an amount of money determined by the court as a guarantee that they will appear at the place and time set aside for their trial. Having paid the bail, the accused is released from custody. In the case of certain minor offences, an accused may pay bail to any police official of or above the rank of non-commissioned officer before appearing in a lower court. A record of the terms and conditions of the bail must be made by the police official and forwarded to a clerk of the court.

In certain cases, an attorney-general may authorise the release of an accused on bail, setting the amount and the conditions of the bail, and deciding on the time and place for the appearance of the accused in court.

[edit] Release on warning

In certain cases, the accused may be released on warning, instead of on bail. This may occur if the accused is in custody in connection with an offence that is not contained in Part II or Part III of Schedule 2, and qualifies for bail. The accused may be released from custody and warned to appear before a specific court at a specific time and on a specific date. When released, the accused must receive a written notice containing a description of the offence and the terms and conditions of the warning.

An accused who fails to obey the conditions of the warning is guilty of an offence. A court may issue a warrant for the arrest of the accused, and unless he can prove that his failure was not due to any fault of his own, sentence him to a fine no greater than R300 or to imprisonment for no longer than three months.

Release on warning may be cancelled for the same reasons that release on bail may be cancelled (see section on cancellation of bail above).

[edit] Assistance to the accused

An accused who is arrested, with or without a warrant, has a right to be assisted by his legal advisor from the time of his arrest. An accused also has the right to be represented by his legal advisor at criminal proceedings.

Every accused must be informed of his right to legal representation or to apply for legal aid:

  • at the time of his arrest
  • when she is served with a summons
  • when a written notice is handed to him
  • when an indictment is served on her
  • at his first appearance in court

If the accused refuses or fails to appoint a legal advisor within a reasonable time, and if he is responsible for this failure, then the court may order that the trial continues without legal representation. If the court decides that doing so would be unjust, then it may order that a legal advisor be assigned to the accused at the expense of the State.

[edit] When may a parent or guardian attend court proceedings?

If an accused is under the age of eighteen years, a parent or guardian will be asked to attend the criminal proceedings. Whether the accused is arrested, receives a summons or is handed a written notice, a parent or guardian must be informed of the place, date and time of criminal proceedings without delay.

A parent or guardian may apply to any magistrate of the court in question to be exempted from appearing at the criminal proceedings. If a parent or guardian is not exempted, they have an obligation to attend criminal proceedings until such proceedings are finished or until they are excused by the court. Any parent or guardian who fails to meet this obligation is guilty of an offence. The court may issue a warrant for the arrest of the parent or guardian, and if they are to blame for their failure, sentence them to a fine no greater than R300 or to imprisonment for no longer than three months.

[edit] Summary trial

When an accused is to be tried for an offence, he will be tried at a summary trial in a court which has jurisdiction over the case.

If an accused has not been summoned to appear before the court, the proceedings at a summary trial in a lower court will begin by submitting a charge-sheet to the clerk of the court. In the case of a superior court, proceedings will begin by serving an indictment on the accused. The court will keep a record of the proceedings, including a copy of the charge-sheet.

[edit] Mental illness and criminal responsibility

If it appears to the court at any stage of a trial that the accused is unable to make a proper defence or to understand the proceedings because of mental illness or mental defect, then the court may order that the matter be enquired into.

If the accused is charged with murder or culpable homicide or rape or any charge involving serious violence, then the enquiry requires reports from:

  • the medical superintendent of a psychiatric hospital, or a psychiatrist appointed by the medical superintendent
  • a psychiatrist appointed by the court who is not in the full-time service of the State
  • a psychiatrist appointed for the accused by the court
  • a clinical psychologist if required by the court.

If the accused is charged with an offence other than those mentioned above, then all that is needed is a report from the medical superintendent of a psychiatric hospital, or a psychiatrist appointed by such a medical superintendent.

For the purposes of the enquiry, the accused may be committed to a psychiatric hospital for periods no longer than 30 days at a time.

If it is found that the accused is capable of understanding the proceedings and to make a proper defence, then the trial will continue in the ordinary way.

If it is found that the accused is unable to understand the proceedings due to mental illness, and the charge is one of murder, culpable homicide, rape, or one involving serious violence, the court may commit the accused, once convicted, to a psychiatric hospital or prison, until a decision is reached by a judge of the chambers.

If it is found that the accused is unable to understand the proceedings due to mental illness, and the offence is one not mentioned above, or it has been found that no offence has been committed, then the court may order the accused to be detained and treated in a relevant institution, and to be treated as an outpatient.

If the court makes its finding after the accused has been convicted but before sentence has been passed, the conviction will set aside. In such instances, if the accused has pleaded guilty, then it will be assumed that he has pleaded not guilty.

If it is found at a later stage that the accused is capable of understanding the proceedings so as to make a proper defence, then the accused may be prosecuted and tried for the offence in question.

[edit] How does mental illness affect criminal responsibility?

A person who commits an offence while suffering from a mental illness or defect which makes him incapable of understanding the wrongfulness of his actions shall not be criminally responsible for such an offence.

The effect of the mental illness cannot be assumed; it must be proven, and the burden of proof is on the party who raises the issue in the proceedings. Once the proof is accepted by the court, the accused shall be found not guilty. If the court reaches its conclusion after the accused has been convicted but before the sentence is passed, then the conviction will be set aside and the accused will be found not guilty. Nevertheless, if the charge involves murder, rape or any offence involving serious violence, the court may consider it necessary to detain the accused in a psychiatric hospital or prison, where they will receive treatment. If the accused has committed a less serious offence, then the court may decide to admit him to a mental health institution as an outpatient.

If the court finds that the accused was criminally responsible for the offence, but that at the time of committing it, he was unable to recognise the wrongfulness of his actions, then it will take into account such diminished responsibility when passing its sentence.

The accused has the right to appeal against any decision made by the court with regard to the mental capacity of the accused.

[edit] The Charge

The accused may examine the charge at any stage of the criminal proceedings.

If the accused is facing several charges, these charges may be joined in the criminal proceedings. If however the court thinks it is in the interests of justice to do so, the accused may be tried separately for each charge.

Generally, the charge itself must describe the offence, including the time and place at which it is alleged to have occurred, and the person against whom, or property against which, the offence is alleged to have been committed. In certain cases, the person or owner of the property against whom the offence was committed need not be identified – for example, cases involving fraud, public property, or vandalism of gravesites. The charge, however, need not describe the manner in which, or the means by which, an offence was committed. If the charge is not complete in its detail, the accused may object to it before pleading to the charge. If the court accepts this objection, it may order that the charge be changed, or that additional information be included in it.

Before any evidence has been heard in court, the accused may ask the prosecution to provide particulars relating to the charge. These particulars must be delivered to the accused without charge, and will be entered in the record.

If the accused has been previously convicted for an offence, the charge will not refer to this fact, unless a previous conviction is an element of the offence in question.

[edit] What if the time of the offence as stated in the charge is incorrect?

If the charge alleges an offence to have been committed on a particular day or a during a particular period, and it is subsequently shown that the offence was in fact committed at some other time, the evidence is still admissible provided that the offence was committed not more than three months before or after the date mentioned in the charge, and the accused is not prejudiced in any way by the evidence.

[edit] The Plea

Before the trial begins, the charge will be stated to the accused, who will then have to respond with a plea.

[edit] Plea and sentence agreements

A prosecutor and the accused may negotiate and reach an agreement before the accused pleads to a charge. The agreement may involve a plea of guilty on the part of the accused, and the passing of a just sentence by the court, or the postponement of the passing of the sentence.

Before entering into the agreement, the prosecutor must take into account any relevant factors, such as the nature of the offence, previous convictions of the accused, and the interests of the community. The prosecutor must also consult with the person responsible for investigating the case. The agreement itself must be stated in writing, must contain all relevant facts, and must be signed by the prosecutor, the accused and his legal representative.

The court is not compelled to accept the plea agreement. It may reject the agreement if it is not satisfied that the accused is guilty of the offence, or if it appears that the accused has incorrectly admitted an allegation in the charge. If this is the case, the court will enter a plea of not guilty and the trial will start afresh with a different presiding officer.

If the court is satisfied that the accused is guilty of the offence, then it will accept the plea agreement and then consider the sentence agreement. If the court considers the sentence agreement to be just, it may pass the sentence that has been agreed upon. If it considers the sentence agreement to be unjust, the court may revise the sentence. At this point, the prosecutor and accused have the choice to accept the revised sentence, or to withdraw from the agreement. If either party withdraws from the agreement, then the trial will start afresh with a different presiding officer. In the new trial, the previous agreement is completely ignored and no mention is made of it, unless the accused agrees to it.

[edit] Pleas

When an accused pleads to a charge, he may plead that:

  • he is guilty of the offence charged
  • he is not guilty
  • he has already been convicted of the offence
  • he has already been acquitted of the offence
  • he has received a free pardon from the State President
  • the court has no authority to try the offence
  • he has been discharged from prosecution for the offence
  • the prosecutor has no authority to prosecute
  • the prosecution may not be carried out because of a court order.

If the accused wishes to make any plea other than guilty or not guilty, he must notify the prosecutor in advance. If the accused refuses to plead to any charge, the court will automatically record a plea of not guilty.

[edit] Jurisdiction

If the accused does not plead that the court has no jurisdiction, but makes some other plea, and the court is subsequently found not to have jurisdiction over the case, it will assumed that it does in fact have jurisdiction to try the case. If the accused pleads that the court does not have jurisdiction, and this plea is upheld, then the case will transferred to a court that does have jurisdiction.

[edit] Plea of guilty at summary trial

If the accused pleads guilty to the offence charged, the judge or magistrate may respond in a number of ways:

  • if the judge believes that the offence does not merit punishment or imprisonment without the option of a fine, he may impose any sentence, other than any form of detention without the option of a fine
  • if the judge believes that the offence merits punishment or imprisonment without the option of a fine, and is convinced of the guilt of the accused, he may impose an appropriate sentence.

[edit] May a plea of guilty be changed?

If the court has any reason to believe that the plea of guilty made by the accused should not stand, it may change the plea to not guilty and proceed with the prosecution, and may do so at any stage of proceedings before the sentence is passed.

[edit] When may sentencing be referred to the regional court?

In certain cases, a magistrate’s court may convict the accused following a plea of guilty, but may feel that the offence demands a punishment that exceeds the authority of a magistrate’s court. If this is the case, the magistrate’s court may stop proceedings and refer the accused to a regional court for sentencing. The regional court will accept the record of the proceedings, including the plea made by the accused, unless it finds reason to believe that it is incorrect.

[edit] Plea of not guilty at summary trial

An accused at a summary trial has the right to plead not guilty to the charge. If he does so, the judge may ask him questions in order to confirm the plea. The judge must also clarify which parts of the charge the plea of not guilty applies. If the accused pleads not guilty only to parts of the charge, then it will be assumed that he pleads guilty to those parts not mentioned, unless otherwise indicated. This must be made clear to the accused.

[edit] When may sentencing be referred to the regional court?

In certain cases, a magistrate’s court may convict the accused following a plea of not guilty, but may feel that the offence demands a punishment that exceeds the authority of a magistrate’s court. If this is the case, the magistrate’s court may stop proceedings and refer the accused to a regional court for sentencing. The regional court will accept the record of the proceedings, including the plea made by the accused, unless it finds reason to believe that it is incorrect. It may also overrule the original conviction if it believes that it was unjust, or if it believes that the proceedings themselves were not in accordance with justice. In such instances, the case will be postponed to some future date.

[edit] Plea in Magistrate’s Court on a charge applicable to Superior Court

Certain offences are so serious that they need to be prosecuted by a superior court, rather than a magistrate’s court. Nevertheless, the attorney-general may authorise a magistrate’s court to prosecute such offences.

If the accused pleads guilty to the offence, the magistrate will question the accused to confirm the plea, and then stop proceedings. The attorney-general may then order that the accused be sentenced either by a superior court or the magistrate’s court. If the accused pleads not guilty, then the magistrate will cross-examine the accused to confirm the plea, before referring the matter to the attorney-general. The attorney-general may then either bring the accused before a superior court for trial, or begin a preparatory examination of the accused.

A magistrate may also refer a case to a regional court, if he believes that an offence is beyond the jurisdiction of a magistrate’s court to prosecute.

[edit] Preparatory examination

An attorney-general may call for a preparatory examination of the accused if he believes that it is in the interests of justice to do so. This examination is carried out before the trial of the accused, although in certain cases a trial can be converted into a preparatory examination. The attorney-general may determine the location for the preparatory examination.

[edit] May witnesses be recalled?

Generally, there is no need to recall witnesses for a preparatory examination, because any recorded testimony can be used as evidence in the examination. Even so, witnesses may be recalled if it is in the interests of justice to do so. The prosecutor is permitted to call any witnesses in support of the prosecution, just as the accused is allowed to call competent witnesses for the defence.

[edit] What procedure is followed at the examination?

After the prosecution has presented its case, the accused will be asked to plead to the charge. The procedure to be followed at this point is the same as that followed in a summary trial. If the examination shows that the evidence is insufficient to put the accused on trial, then the accused will be discharged. After considering the results of the examination, the attorney-general may summon the accused for sentencing, order that the accused stand trial, or decide not to prosecute the accused. If the attorney-general decides not to go ahead with the prosecution, then the accused will be released from custody.

If the accused has been summoned for sentencing or trial, he may look at the record of the preparatory examination before being brought before the court.

[edit] Trial before superior court

When an attorney-general summons the accused to be sentenced or to stand trial before a superior court, the charge is contained in a document called an indictment. The indictment also includes the name, address and description of the accused. If the accused is to stand trial before a superior court, the indictment is accompanied by a summary of the details of the case, unless such a summary is considered prejudicial to the case of the accused.

The indictment must be served on the accused at least 10 days (excluding Sundays and public holidays) before the date set for the trial.

The presiding judge at the trial may summon not more than two assessors to help him at the trial.

[edit] What is the role of an assessor?

An assessor is a person who has experience and skill in matters of justice and who may be of help to the judge presiding at the trial. An assessor must take an oath to be truthful in his assessment of the evidence before hearing any such evidence. An assessor serves in a consultancy capacity, and the judge is therefore not compelled to accept the opinion of an assessor. Whether or not the judge makes use of assessors, he must give reasons for any decision he makes regarding a question of law or a question of fact.

[edit] What happens if an assessor dies?

If an assessor dies or is no longer able to act as an assessor during a trial, then the judge may either order the trial to continue before the remaining members of the court, or direct that the trial start anew with a replacement assessor.

[edit] Conduct of proceedings

Criminal proceedings in any court will take place in an open court unless indicated otherwise by this Act or any other law.

[edit] When shall criminal proceedings not take place in an open court?

Criminal proceedings shall not take place in an open court if:

  • doing so will undermine the security of the State or public morals
  • it appears that doing so might result in harm to any person other than the accused. In such cases, the court may order that such a person testify behind closed doors, and that the identity o the person not be revealed.
  • The charge involves any indecent act or extortion, and the victim wishes their identity to remain unknown.
  • If the accused is under the age of eighteen years. In such cases, no person other than the accused, his legal representative and parent or guardian shall be present at such proceedings, unless the presence of another person is necessary.

[edit] When may the publication of certain information relating to criminal proceedings be forbidden?

If a criminal case does not take place before an open court, the court may rule that no information relating to the proceedings shall be published in any shape or form. The court may make some information available for publication, such as the name and particulars of the accused, or the nature of the charge, and so forth, but only on condition that doing so does not obstruct justice. Furthermore, no person is permitted to reveal the identity of an accused who is under the age of eighteen years, or of a witness who is under the age of eighteen years, unless authorised to do so by the presiding judge.

[edit] What is the punishment for illegally publishing information about a criminal case?

Any person who publishes forbidden information relating to a criminal case is guilty of an offence and is liable to a fine of not more than R1 500 or to imprisonment for no longer than one year, or to both a fine and imprisonment.

[edit] When can more than one person stand trial at the same time?

If a number of individuals are involved in illegally publishing such information, they may be tried together for the offence. Furthermore, if a person has received information through an offence committed by another, they will be considered a participant in the offence.

At any point during a joint trial, and if the prosecutor or the accused request it, the court may order that the trial of one or more of the accused be held separately.

[edit] Must the accused be present at the trial?

Generally, all criminal proceedings must take place in the presence of the accused. If the accused agrees to it, the accused may give evidence by way of closed circuit television.

There are however certain instances in which criminal proceedings may take place in the absence of the accused. This may occur if:

  • the accused behaves in such a disruptive way that the court orders him to be removed from the court
  • two or more accused stand trial jointly and
    • the physical condition of the accused makes it impossible for him to attend the trial; or
    • the accused is unable to attend the trial due to illness or death in the family
  • the accused is in custody but cannot be brought before the court because of his physical condition. In such cases, the prosecutor may apply to have the period of custody extended so that the accused may recover and be brought before the court.

[edit] What procedure is followed if the accused is absent?

If an accused who was absent returns to the trial, he may, unless he was legally represented during his absence, examine any witness who testified during his absence, and inspect the record of the proceedings.

If there is a joint trial of more than one accused, evidence will be heard on behalf of all those accused who are present. Proceedings will then be postponed until any accused who are absent are in attendance. This effectively means that the court may separate a joint trial if the presence of one or more of the accused cannot be secured.

[edit] What is the procedure for witnesses?

A witness at a trial must give direct spoken evidence. No witness may be examined unless he is under oath. This oath must take the following form: “I swear that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.”

If a witness objects to the standard oath because of personal beliefs or conscience, he may take a modified oath as follows: “I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth”.

[edit] When does a witness not have to take an oath?

If a person is unable to understand the meaning and significance of the oath because they are too young or uneducated to do so, they may give evidence at a trial without taking the oath. The judge however must warn them to tell the truth and nothing but the truth. Even though their evidence is unsworn, they still have a duty to be truthful in their testimony. If they give false evidence, they will be guilty of perjury and punished for the offence.

[edit] Cross-examination of witnesses

An accused may cross-examine any witness called on behalf of the prosecution; in the same way, the prosecutor may cross-examine any witness, including the accused, called on behalf of the defence. If the cross-examination appears too long or directionless, the court may ask the cross-examiner to explain the relevance of the line of questioning.

The court may at any stage of the trial examine any person who has been subpoenaed (insert definition: A subpoena is a written order commanding a person to attend a court of justice. A subpoenaed person is therefore someone who has received such an order.) to attend the trial or is attending the trial.

[edit] May criminal proceedings be adjourned?

A court may adjourn criminal proceedings at any point to any date it considers proper. Proceedings may also be adjourned to any place within the court’s area of jurisdiction.

If proceedings have been adjourned and the accused fails to appear at the specified place and on the specified date, and if the accused is not in custody and has not been released on bail at the time, then the accused is guilty of an offence and a warrant will be issued for his arrest. If the accused cannot prove that his failure to appear was due to no fault of his own, the court will sentence him to a fine of no more than R300 or to imprisonment of no longer than three months.

[edit] Evidence through intermediaries

If a court believes that criminal proceedings will expose any witness under the age of eighteen years to unnecessary mental stress or suffering, it may appoint a competent person to act as an intermediary. This means that the witness does not have to testify directly, but can give evidence through the intermediary. All subsequent examination and cross-examination of the witness will take place through the intermediary.

If it is found that an unqualified person was appointed as an intermediary, then the court will have to decide whether the oath taken by the intermediary is valid and the evidence provided by the intermediary is admissible. It will have to take into account a number of factors, including the reason why the intermediary is not qualified and the stress experienced by the witness if the evidence has to be presented a second time.

[edit] Evidence on commission

In certain instances, the examination of a witness is necessary in the interests of justice, but the attendance of the witness in court will result in undue delay, expense or inconvenience. In such cases, the court may issue a commission to any magistrate to examine the witness, who will not then have to attend proceedings. The witness will be summoned before the magistrate to present evidence which is then recorded. Either party involved in the trial, may question such a witness, either in writing or in person.

[edit] Other provisions

If at the close of the case for the prosecution, the court believes that there is no evidence that the accused committed the offence, it may return a verdict of not guilty and the accused may be released.

After the evidence has been presented, the prosecutor may address the court. Thereafter, the accused may address the court, at which point the prosecutor may reply.

The court may postpone its decision on any question raised during proceedings.

If any person, other than the accused, disturbs the peace or order of the court, the court may order that person to be removed from the court and kept in custody until the session has ended.

[edit] Witnesses

[edit] What is the process for securing the attendance of a witness?

The prosecutor or the accused may compel a witness to attend proceedings in order to give evidence or to produce any book, paper or document.

If an accused wants to have a witness subpoenaed, the costs of the subpoena will have to be paid and deposited with the presiding officer of the court. If the accused is unable to pay the costs of the subpoena, but proves that the witness is necessary for his defence, the presiding officer will subpoena the witness.

If the witness lives outside the magisterial district from which the subpoena was issued, travelling expenses can be pre-paid to the witness when the subpoena is served.

A witness who is in prison can only be subpoenaed if the court authorises it and is convinced that the evidence provided by the witness is necessary and that the presence of the witness will not endanger the court.

Any person who has been subpoenaed to appear as a witness must keep police officials informed of his full residential address or any other address where he may be found. Failure to do so is an offence and can result in a fine of no more than R300 or imprisonment for no longer than three months.

[edit] What happens if a witness tries to avoid the summons to appear?

If a person flees in order to avoid being summoned to appear as a witness in court, a warrant may be issued for their arrest. Once arrested, they will receive a warning to appear at the criminal proceedings in question. If they then ignore the warning, they will receive a fine of no more than R300 or be imprisoned for a period no longer than three months.

[edit] When may a witness be detained?

Whenever a person is likely to give evidence on behalf of the State at criminal proceedings, the attorney-general may apply to have this person detained if:

  • the personal safety of the person is in danger
  • there is a chance that the person might flee
  • there is a danger that he may be intimidated
  • it is in the interests of justice to do so.

The person detained must be released when criminal proceedings have ended, unless there is good reason to do otherwise.

[edit] What happens if a witness fails to attend or to remain in attendance?

Any person who is subpoenaed to attend court proceedings must do so, and must remain in attendance until excused by the court. Failure to do so is an offence and will result in a fine of no more than R300 or imprisonment for a period no longer than three months.

[edit] How should the court deal with uncooperative witnesses?

Any witness who refuses to be sworn as a witness, or who refuses to give evidence or to answer questions, without giving a reason for his refusal, is guilty of an offence, and may be sentenced to imprisonment for a period no longer than two years. If the proceedings in question relate to a more serious offence, then the term of imprisonment may be extended to five years.

[edit] Payment of expenses of witness

Any person who attends criminal proceedings as a witness of the State is entitled to an allowance covering expenses such as travelling costs.

[edit] Competency of witnesses

No person who suffers from a mental illness or is under the influence of drugs, and who is not of sound mind, shall be considered competent to give evidence. The court itself will decide on the competency of its witnesses.

[edit] Evidence for prosecution by husband or wife of the accused

A wife or husband of the accused may give evidence for the prosecution if they are competent to do so. They are, however, not compelled to give such evidence, except where the accused is charged with:

  • any offence committed against either of them or against a child of either of them
  • any offence under Chapter 8 of the Child Care Act committed against any child of either of them
  • any violation of section 31 of the Maintenance Act.
  • bigamy
  • incest
  • abduction
  • any violation of sections 2, 8, 9, 10, 11, 12, 12A, 13, 17 or 20 of the Sexual Offences Act.
  • perjury
  • making a false statement in any affidavit or sworn declaration.

[edit] Evidence for the accused by husband or wife

An accused and the husband or wife of the accused are regarded as competent witnesses for the defence at every stage of criminal proceedings, whether or not the accused is jointly charged with another person. Even so, the accused will not be called as a witness unless he wishes it. Furthermore, the wife or husband of an accused is not compelled to be a witness where a co-accused calls that wife or husband as a witness for the defence.

[edit] What are the privileges of the accused when giving evidence?

Generally, an accused who gives evidence will not be asked to answer any question which might show that he has been convicted or charged with any previous offence, or that shows him to be of bad character. He may be asked such a question however if:

  • his own legal team bases its defence on the character of the complainant or any other witness for the prosecution
  • he gives evidence against any other person charged with the same offence
  • proof of his guilt in a previous offence is admissible evidence to show that he is guilty of the present offence.

[edit] What other marital privileges exist?

Neither a husband nor a wife is compelled to reveal any communication made by their spouse during marriage. Furthermore, no person is compelled to answer any question or give evidence, if under the circumstances, their spouse may lawfully refuse to do so.

[edit] What other privileges exist?

  • No legal practitioner may give evidence against any person by whom he is professionally employed or consulted, unless the legal practitioner found out about the offence before he was professionally employed by the accused.
  • In certain cases, a witness is not compelled to give evidence, if that evidence should not be revealed on the grounds of public policy or public interest.
  • No witness is compelled to answer any question if doing so may expose him to a criminal charge.

[edit] What happens if a witness for the prosecution is called to give evidence that incriminates himself?

In such a case, the witness will be told by the court that he has an obligation to answer the questions of the prosecution, even though answering them might incriminate him. If the witness answers the questions honestly, he will be discharged from prosecution. In other words, he will not be prosecuted for any offence he might reveal in his answers.

[edit] Evidence

An accused may be convicted on any offence on the evidence of a single witness. Conviction may also follow a confession by the accused that he committed the offence in question. In order to be admissible, evidence must be relevant, serving to prove or disprove a point at issue in criminal proceedings. Furthermore, previous convictions cannot be used as evidence against the accused unless a previous conviction forms part of the offence for which the accused is standing trial.

[edit] When must certain facts be proven by affidavit or certificate?

In the following cases, an affidavit or certificate is needed to prove certain facts or to resolve an issue in court:

  • Whenever it is unclear whether any particular act, transaction or occurrence took place in any department or sub-department of the State
  • Whenever it is unclear whether a particular person provided an officer of the State with any particular information or document.
  • Whenever it is unclear whether any matter has been registered under any law
  • Whenever a fact needs to be established in a specialist field, such as anatomy, ballistics or biochemistry.
  • Whenever there is a question relating to the existence and nature of a precious metal or any precious stone.
  • Whenever there is an unresolved issue relating to any particular finger-print or palm-print.
  • In any case where the physical condition or identity of a deceased person is relevant
  • In any case where the use of finger-prints or palm-prints is relevant.
  • In any case where it is relevant to prove the transport and delivery of goods to the Railways Administration
  • Where proof of certain facts is required from a person in a foreign country

In any case involving the use of an affidavit or certificate, the court may summon the person who made the affidavit or certificate to appear in court to give oral evidence.

[edit] What happens if certain facts do not need to be proven?

If the public prosecutor believes that certain facts contained in the charge against the accused do not need to be proven, he may send a notice to the accused and his legal advisor explaining why this is the case. This notice must be sent at least 14 days before the criminal proceedings begin. If the accused and his legal advisor wish to dispute any fact contained in the notice, they must indicate so in writing to the registrar or clerk of the court at least five days before proceedings begin.

[edit] May a written statement be used as evidence?

In criminal proceedings, a written statement by any person other than the accused is admissible as evidence. The written statement must be signed by the person who made it and must include a declaration that the statement is true. Any person who provides false information in their written statement is guilty of perjury and will be punished accordingly.

A copy of the statement must be sent to both parties involved in proceedings. If either party objects to the use of the statement as evidence, they must indicate so at least two days before proceedings begin. A witness who has provided written evidence may still be subpoenaed to provide oral evidence.

[edit] When may evidence recorded at a preparatory examination be used in a trial?

The evidence of any witness recorded at a preparatory examination is admissible in a trial if it is proved that:

  • the witness is dead
  • the witness is incapable of giving evidence
  • the witness is too ill to attend the trial
  • the witness is in some way being kept away from the trial by the accused
  • the evidence provided is the evidence recorded before the magistrate.

It should be remembered that the evidence of a witness given at a previous trial may be used as evidence at any later trial of the same person facing the same charge.

[edit] When is a confession by the accused admissible?

Evidence of a confession of the accused is admissible if such a confession is proved to be freely and voluntarily made by the person while in control of his reason. Such a confession, however, must be made to a magistrate or confirmed in the presence of a magistrate.

[edit] Admissions

An accused or his legal advisor or the prosecutor may in criminal proceedings admit any fact at issue during such proceedings. Such an admission is considered sufficient proof for the fact.

[edit] When are trade and business records admissible as evidence?

Trade and business records may be used as evidence if they are compiled by someone who has personal knowledge of the matters dealt with in the record, and if the person supplying the information is for some reason unable to attend the trial.

[edit] Evidence on charge of bigamy

A duplicate original or copy of the marriage register which has been certified will be regarded as proof of a legally binding marriage in cases involving charges of bigamy. Such evidence may in other words prove that a lawful marriage already existed at he time that an alleged bigamous marriage took place.

[edit] Evidence on charge of incest

In cases involving a charge of incest, proof is needed that the woman or girl involved is a direct blood relative or stepmother or stepdaughter of the accused. It will be assumed that the accused had knowledge of this relationship at the time of the alleged offence, unless proved otherwise.

[edit] Evidence on charge of receiving stolen property

Evidence in such cases is needed to prove that the accused was in possession of stolen property, while knowing that it was stolen, within a period of twelve months of his first appearance in the magistrate’s court in connection with the offence. If the accused received the property from a person under the age of eighteen years, it will be assumed that the accused knew it was stolen unless it is proven that he was at the time under the age of twenty-one years, or that he had good reason to believe that the property was legally owned by the person who gave it to him.

[edit] When can a lack of authority be presumed?

In certain cases, it is considered an offence to perform a certain act, or to possess a certain article, or to be present in a particular place, without the relevant authority or permission. In proceedings, the accused in such cases will be assumed not to have had the relevant authority, unless the opposite is proven. Any peace officer may demand a person to show proof of their authority to behave in such a manner. If the person disobeys such a request, he is guilty of an offence and is liable to a fine of no more than R300 or to imprisonment for no longer than three months.

[edit] Is evidence admissible if it has been gained from a trap or an undercover operation?

Such evidence is admissible if the operation does not go beyond providing an opportunity to commit an offence. In other words, the operation must be carried out in such a way that the accused is not actively induced or encouraged to commit an offence. In deciding whether this has occurred, a number of factors are taken into account. These include the nature of the offence, how an average person would have reacted to the situation, the willingness of the accused to commit the offence, the type of inducement used by the operation, any threats used by the investigators, and whether any vulnerability had been exploited by the investigators.

If any question is raised during criminal proceedings about the admissibility of evidence gained from a trap or undercover operation, the prosecution will have to prove that such evidence is indeed admissible.

[edit] Other provisions

  • Evidence relating to finger-prints, palm-prints or foot-prints is admissible if needed, whether or not such prints were taken against the wishes of the accused.
  • In order to prove that a child of a woman is not the offspring of her husband, the woman or husband or both of them may give evidence that they had no sexual intercourse during the period when the child was conceived.
  • Evidence relating to the character of the accused or the character of any woman against whom he is alleged to have committed an indecent act, is admissible in court. The woman in such cases may only be questioned about the sexual experience if such questioning is considered relevant by the court.
  • The authenticity of writing may be determined by a comparison between the writing in question and any writing proved to be genuine by a witness.
  • Any document which bears the signature of any person holding public office, and which bears the seal or stamp of the department, office or institution to which the person is attached, shall be regarded as proof that the person signed the document.
  • A photograph of an article may be used in court as admissible evidence, in place of the article itself.
  • A copy or extract of any book or document admissible as evidence may be used in criminal proceedings provided that the copy or extract is signed and certified by the officer who is safeguarding the original.
  • If a copy or extract of an official document is to be admissible in court, it must be certified by the head of department concerned or by any State official authorised to certify it.
  • A copy of the record of judicial proceedings may also be used in court in place of the original if such a copy is certified by the registrar or clerk of the court where the proceedings took place.
  • Entries in the accounting records of a bank may be admissible if accompanied by an affidavit by any person who is employed by the bank in question and who is able to confirm the accuracy of the entries. No bank is compelled to produce any such records at criminal proceedings unless the court orders that such a record be provided. The same requirements apply to records from banks in countries outside South Africa. Furthermore, the affidavit must be ordered by a competent court or on the authority of a competent government institution of the state or country concerned.
  • In charges involving infanticide (the killing of a baby), a child will be considered to have been born alive if there is proof that it breathed, It is not necessary to prove that the child, at the time of its death, was entirely separated from its mother.
  • If the accused is charged with theft of money or property while employed by the State, or while acting as a clerk, servant, or agent for his employer, an entry in any book of account kept by the accused may be used as proof that the accused the money or property in question.
  • If the accused is charged with false representation, and it has been proven that the accused made the false representation, it will be assumed that he knew the representation to be false, unless it proven otherwise.
  • If an act is regarded as offence only when committed by someone who holds a particular authority or qualification, the accused charged with such an offence will be assumed to have held such authority or qualification, unless he denies it or it is proven otherwise.
  • If the accused is charged with failure to pay tax or to provide tax documents, his failure to do so will be assumed unless he proves otherwise.

[edit] Conversion of trial into enquiry

[edit] When may a juvenile be referred to a children’s court?

If an accused is under eighteen years of age and is a child referred to in section 14 of the Child Care Act, the court may stop the trial and order that the accused be brought before a children’s court. If this order is made after the verdict, then the verdict will be overturned by it.

[edit] When may the court order an enquiry under the Prevention and Treatment of Drug Dependency Act?

If the accused appears to the judge to be a person described in section 21 of the Prevention and Treatment of Drug Dependency Act, the court may, with the permission of the prosecutor, stop the trial and order that an inquiry be held in terms of section 22 of the above Act.

If the order is made in the course of the trial, and a magistrate orders the accused to be detained in a treatment centre, the proceedings at the trial will be declared invalid.

[edit] Competent verdicts

The following acts may result in competent verdicts. This means that even if the accused is not found guilty of any of the original charges, he/she can still be found guilty for similar, sometimes lesser, criminal deeds. (Click on each category for more information.)

[edit] Previous convictions

After an accused has been convicted but before he is sentenced, the prosecution may bring before the court a record of previous convictions against the accused. The accused will then be asked whether he admits or denies any of the previous convictions. If he denies them, the prosecution may offer evidence to prove such convictions. Official finger-print records may be used as evidence in such cases. If the accused admits the convictions, they will influence the sentence imposed by the court.

[edit] When may previous convictions fall away?

A previous conviction may fall away after 10 years if the court convicted a person of:

  • an offence for which the punishment may be a period of imprisonment longer than six months without the option of a fine, and the court has discharged that person without passing sentence
  • an offence for which punishment is anything other than imprisonment for longer than six months without the option of a fine.

[edit] Sentence

A court may hear any evidence it thinks is necessary before passing sentence. The accused may address the court on any such evidence, after which the prosecution may also address the court.

[edit] When may a judge pass sentence other than the judge who made the conviction?

If for some reason a sentence needs to be reviewed or changed, this sentence may be passed by any judicial officer of the court concerned in the absence of the judge who made the conviction.

[edit] What punishments may be imposed?

The following sentences may be passed to punish a person convicted of an offence:

  • imprisonment, including life imprisonment
  • imprisonment for a period
  • declaring the accused to be a habitual criminal
  • committal to any institution
  • a fine
  • correctional supervision
  • imprisonment from which a person may be placed under correctional supervision

The punishment of imprisonment with correctional supervision may only be imposed after a report from a probation officer or correctional official has been brought before the court, and for a fixed period of no longer than 3 years.

The punishment of correctional supervision can only be imposed if the court thinks it is justified, with or without the option of a fine, and for a fixed period of no longer than 5 years.

If a person has been sentenced to imprisonment for no longer than 5 years, or for longer than 5 years but is due for release within 5 years, the Commissioner may apply to have the person subjected to correctional supervision.

A court which is reconsidering a sentence has the power to confirm or change the original sentence. It may however not impose imprisonment for longer than the period of the imprisonment which has still to be served from the original sentence.

[edit] What happens if a person is convicted of two or more offences?

In such cases, the court has the option of imposing either separate punishments for each offence or a single punishment for the multiple offences. In the case of imprisonment, the court may order that the terms of imprisonment follow one after the other, or that they run concurrently.

[edit] Interpreting imprisonment and fines

If the law states that a punishment is:

  • imprisonment with or without labour, this will be interpreted as imprisonment only
  • imprisonment for less than three months, this will be interpreted as imprisonment for a period of three months
  • a fine of less than fifty rand, this will be interpreted as a fine of fifty rand.

[edit] What happens if the accused has already served time before a new sentence is imposed?

If the accused is imprisoned while his sentence is being reviewed, the period for which he is imprisoned before the new sentence is passed will be taken into account. In other words, the accused will be considered to have already served part of the new sentence. This is called antedating a sentence of imprisonment.

[edit] Must a court impose the maximum punishment?

If a person is liable to a sentence of imprisonment for life or for any period, a court may sentence him to imprisonment for a shorter period. If a person is liable to a sentence of a fine of any amount, a court may sentence him to a fine of a lesser amount.

[edit] What is the minimum period of imprisonment?

No person shall be sentenced by any court to imprisonment for a period of less than four days, unless it is for the purpose of detaining that person during proceedings.

[edit] When may periodic imprisonment be imposed?

A person convicted for an offence may be sentenced to periodic imprisonment for no less than one hundred hours and no more than two thousand hours instead of any other punishment they might have received.

Any court that imposes a sentence of periodic imprisonment must inform the convicted person in writing of the sentence and the time and date from which it begins. Any person who disobeys such a notice, or is intoxicated when surrendering himself for imprisonment, or falsely represents himself when doing so, is guilty of an offence and liable to imprisonment for no longer than three months.

[edit] When may a person be declared an habitual criminal?

When a superior or regional court convicts a person of one or more offences, it may declare that person to be an habitual criminal, if it is satisfied that the person commits offences regularly and that the community needs to be protected against him. This declaration replaces any other punishment for the offence.

No person shall be declared an habitual criminal if he is under the age of eighteen years, or if his offence warrants a punishment of imprisonment for longer than 15 years.

[edit] When may a person be declared a dangerous criminal?

If a court convicts a person and considers him to be a danger to the physical or mental well-being of others and believes that the community needs to be protected against him, it may declare that person to be a dangerous criminal.

In order to reach its decision, the court may call for an enquiry into the psychological condition of the accused, submitting him for examination in a psychiatric hospital for no longer than 30 days at a time. The resulting report may then be used as evidence in the trial; however, a statement made by the accused during the enquiry is not admissible as evidence, unless the statement is directly relevant to the issue of whether or not the accused is a dangerous criminal.

[edit] When may a person be imprisoned for an indefinite period?

If a court declares a person to be a dangerous criminal, it will sentence such a person to be imprisoned for an indefinite period. Once a predetermined period has passed, the convicted person will be brought before the court that sentenced him, or one of equal authority, where his sentence will be reconsidered. At this point, the court may confirm the original sentence of imprisonment for an indefinite period, change the sentence to one of correctional supervision, or release the person conditionally or unconditionally.

[edit] When may imprisonment be an alternative to a fine?

Whenever a court convicts a person of any offence punishable by a fine, it may impose a period of imprisonment as an alternative punishment to the fine.

If the court imposes a fine without the alternative of imprisonment, and the convicted person does not pay the fine in full, the court may issue a warrant for that person’s arrest and sentence him to a term of imprisonment that would have been an alternative to the original fine.

[edit] How may a fine be recovered?

Whenever a person is sentenced to pay a fine, the court may instruct the sheriff of the court to raise the amount by the sale of any movable property belonging to the person, should that person fail to pay the fine. This still applies even if the sentence orders that the person will face imprisonment if they choose not to pay the fine. The amount raised will cover the fine and the costs of the warrant and the sale of the property.

[edit] May a court enforce the payment of a fine?

When a person is sentenced to pay a fine, whether or not they have the alternative of imprisonment, the court may enforce the payment of the fine by:

  • seizing the money from the person in question
  • ordering the employer of the person to deduct a specified amount from his wages and to pay it to the clerk of the court.

[edit] How should convicted juveniles be dealt with?

Any court which convicts a person under the age of eighteen years may, instead of imposing a punishment for the offence, order that he be:

  • placed under the supervision of a probation officer
  • placed in the custody of any suitable person
  • sent to a reform school.

If the convicted person is over eighteen but under twenty-one years of age, the court may order that he be placed under the supervision of a probation officer or a correctional official, or that he be sent to a reform school.

Any such order imposed on a juvenile will lapse after two years, or sooner if the court wishes it. The order may then be extended for another two years, but cannot extend beyond the time that the juvenile turns eighteen. The exception is that a juvenile can be ordered to remain in a reform school up until they reach the age of twenty-one years.

[edit] When may a person be committed to a treatment centre?

A court convicting any person of any offence may order that person to be detained at a treatment centre. This order may be in addition to, or in place of, any punishment imposed on the convicted person.

[edit] When may a sentence be postponed or suspended?

If a court convicts a person of any offence for which a minimum sentence is not enforced by law, it may decide to:

  • postpone the sentence for no longer than five years, either with or without conditions, such as: community service, correctional supervision, treatment, good behaviour.
  • pass sentence but suspend the sentence either fully or partially for a period no longer than five years.
  • release the person with a caution or reprimand, while still recording the conviction as a previous conviction.

If the person is unable to meet any of the conditions attached to the postponement or suspension of his sentence through no fault of their own, the court may further postpone or suspend the sentence and attach further conditions.

A condition of community service may only be imposed if the person in question is 15 years or older and must call for at least 50 hours of service. Those who have had their sentences postponed or suspended, and who are doing community service or under the supervision of a probation officer or at a reform school, will have their cases constantly reviewed. At any point, the conditions imposed on them may be changed, or the suspension or postponement of their sentence cancelled.

If a court imposes a fine, it may suspend the payment of the fine for a period no longer than five years, or it may order that the fine be paid in instalments over a period no longer than five years.

If a court has sentenced a person to imprisonment as an alternative to a fine, it may suspend the sentence and release that person from imprisonment on condition that they pay the fine or a portion of it in instalments. Any such order to suspend a sentence can be overturned and the original sentence once again imposed.

Any person who reports for community service or for treatment at a centre, and is intoxicated or misrepresents himself while doing so, is guilty of an offence and is liable to imprisonment for no longer than three months.

If a person who has had their sentence postponed or suspended, violates or ignores any of the conditions imposed on them, they will be summoned before a court and a sentence will be imposed on them.

[edit] Can patrimonial loss be reclaimed from the State?

Patrimonial loss can be reclaimed from the State as a result of injuries sustained during community service performed on behalf of the State.

[edit] Compensation and restitution

If a superior, regional or magistrate’s court convicts a person for an offence that has caused damage or loss of property, including money, to another person, the court may award the injured person compensation for such damage or loss. The amount awarded will be determined by the evidence and the proceedings at the trial, but cannot exceed an amount stipulated by the Minister in the Gazette from time to time.

The compensation money may be taken from any money belonging to the convicted person that was taken from him when he was arrested. If the person who has been awarded compensation wishes to forfeit it, they must write to the registrar or clerk of the court within sixty days after the award was made in order to renounce it.

If a person purchased stolen or illegally possessed property from another person, while not knowing that it was stolen or illegally possessed, and this property is given back to its lawful owner after the trial, they may receive compensation for such property. This compensation may be taken from any money confiscated from the convicted person when he was arrested.

[edit] Reviews and appeals in lower courts

Any sentence imposed by a magistrate’s court which:

  • in the case of imprisonment, is greater than three months and has been passed by a judge who has not held the rank of magistrate or higher for longer than seven years
  • in the case of imprisonment, is greater than six months and has been imposed by a judge who has held the rank of magistrate or higher for longer than seven years
  • in the case of a fine, is greater than the amount determined by the Minister and published in the Gazette shall be subject to review by a judge at provincial or local level.

Such review will not be carried out however if an accused has appealed against a conviction or sentence and has not given up on the appeal. The review only applies to cases where the accused was not helped by a legal adviser during proceedings.

[edit] What procedure is followed on review?

Drawing on the record of proceedings and any further evidence he might require, the judge carrying out the review will decide whether or not proceedings at the trial were fair and just.

If it appears that they were not fair and just, he will request from the presiding judge at the trial an explanation for the conviction and sentence imposed on the accused. The case is then brought before the court of the local or provincial division which acts as a court of appeal. Having examined the case and heard any further evidence necessary, the court may then decide to confirm, change or overturn the original conviction or sentence.

[edit] May a review take place before sentence is passed?

In some cases, a magistrate or regional magistrate may come to the conclusion that proceedings are unjust after an accused has been convicted but before he has been sentenced. The judge in question must then record his reasons for holding this opinion, and submit them together with a record of proceedings to the registrar of the provincial court. This court will then conduct a review of the case.

[edit] Accused may set down case for argument

If a magistrate’s court has passed a sentence which is subject for review, it must hand over a copy of the record of proceedings to the convicted person. The convicted person then has one week in which to examine the record and to put down an argument for why the sentence should be changed or overturned before the record is submitted to the provincial or local division.

Whether the sentence is confirmed, changed or overturned, neither the person convicted nor the prosecution will have to pay the expenses of the review process.

[edit] Must a person whose sentence has been suspended be granted bail?

Yes, no sentence can be suspended after being reviewed unless the court which imposed the sentence released the convicted person on bail. Accordingly, the convicted person will temporarily give the State a predetermined sum of money as a guarantee that he will appear before the court at a specified time and place in order to receive sentence.

The convicted person in such cases must be given written notice of his obligations. If notice is not served within 14 days because the convicted person cannot be found, the bail will be provisionally cancelled, the bail money will be forfeited, and a warrant issued for the arrest of the convicted person.

In granting bail, the court may attach any condition such as forbidding the convicted person from entering a location, or ordering that he report to a certain person at a certain time.

If a person has been sentenced to correctional supervision, their sentence cannot be suspended unless they have been released either on bail or on a warning.

[edit] Appeal against a sentence or conviction made by a lower court

Any person convicted of any offence in a lower court may appeal against such a conviction to the local or provincial division with jurisdiction. This division has the authority both to hear the appeal and to reverse the conviction or to increase the sentence or impose any other form of sentence if it sees fit to do so.

[edit] Appeal against conviction and sentence of chiefs and headmen

In appeals against the convictions and sentences imposed by chiefs and headmen, the magistrate concerned will hear any relevant evidence and:

  • confirm or change the sentence
  • set aside the sentence imposed by the chief or headman
  • impose a sentence of imprisonment for a period no longer than three months
  • set aside the sentence imposed by the chief or headman and instead impose a sentence of imprisonment for a period no longer than three months without the option of a fine.
  • Uphold the appeal and set aside the conviction and sentence.

[edit] What procedure must be followed when making an appeal?

An accused who wishes to appeal against any decision of a lower court must apply to do so within 14 days, or longer if an extension has been granted. Notice of the hearing must be given to the attorney-general and the accused.

The application to appeal must clearly state the grounds on which the appeal is being made. In considering the application, the court may examine any new evidence that has come to light since the original trial, whether this evidence is presented by the defence or prosecution.

[edit] What if the leave to appeal is rejected?

If an application to appeal is rejected, the accused may within 21 days (or longer if an extension has been granted) send a petition to the Judge President of the division of the High Court with jurisdiction to reconsider the application.

The petition is then assessed by two judges appointed by the Judge President. If they do not agree in their assessment, a third judge will be asked to consider the case. The judges considering the petition may:

  • call for any further information from the magistrate who heard the application for appeal
  • order that the case be argued before them
  • grant leave to appeal while ordering that an application must be submitted within a period decided by them
  • refuse the appeal or request further evidence
  • refer the matter to the court of appeal

[edit] Explanation of rights to the accused

If an accused is not represented at the time that he is convicted and sentenced, the presiding officer must inform him of his rights with regard to appeal and legal representation, and of the correct procedure to follow in each case.

[edit] Appeal from lower court by prosecutor

When a lower court gives a decision in favour of the accused on any question of the law, the prosecutor in the case may ask the judge in question to submit the case to the local or provincial division having jurisdiction, explaining his decision. Once the case has been submitted, the prosecutor may then appeal against the decision. If it allows the appeal, the local or provincial division may then impose a sentence or make an order which confirms or overrules the decision made by the lower court.

[edit] Appeal by attorney-general against sentence of lower court

The attorney-general may appeal against a sentence imposed by a lower court to the local or provincial division having jurisdiction, provided that an application to appeal has been granted. A written notice of such an application must be handed to the registrar of the local or provincial division within 30 days of the passing of the sentence, or longer if an extension has been granted.

The notice must present the grounds for the appeal. A copy of it must be served on the accused at least 14 days before the application is to be heard, together with an explanation of his rights. An accused may within 10 days of receiving the notice, hand a written submission to the registrar concerned, who will then send a copy of it to the attorney-general.

The judge or court may rule that the State should pay the costs, or part of the costs, incurred by the accused in opposing the application or appeal.

[edit] Appeal to Appellate Division

If, at an appeal hearing, the local or provincial division gives a decision in favour of the convicted person on a question of law, the attorney-general or prosecutor may appeal against the decision to the Appellate Division of the Supreme Court. The Appellate Division may then overturn, change or upheld the decision against which the appeal is being made.

If the appeal is dismissed, the court may order that the party making the appeal pay costs to the responding party to cover the expenses of opposing the appeal.

[edit] Appeals in cases of criminal proceedings in Superior Courts

Any appeals against decisions made by a local or provincial division will be made to the Appellate Division of the Supreme Court.

If the case in dispute is being heard by a single judge, the Supreme Court can rule that the appeal be heard by a full court of the provincial division. The Appellate Division may set aside any decision made by a local or provincial division on appeal, if the appeal is made within 21 days, or longer if an extension has been granted.

[edit] Applications for leave to appeal and to present further evidence

An accused convicted of any offence before a superior court may apply to appeal against his conviction and sentence within 14 days of the passing of the sentence. If he wants longer period in which to submit his application, he must apply for an extension (in legal terms, this is called a “condonation”)

An appeal cannot be made against a decision of a full court, unless special permission to do so has been given by the Appellate Division. An application to the Appellate Division must be made by petition within 21 days or longer if an extension has been granted. The party making the application must give written notice to the registrar of the court against whose decision the appeal is being made.

Every application for permission to appeal must clearly state the grounds for the appeal. In considering the application, the court may hear further evidence in favour of the appeal as well as counter-evidence presented by the prosecution. If an application for permission to appeal or to call for further evidence is refused, the accused may, within twenty-one days of the refusal, or longer if permitted, appeal to the Appellate Division. This appeal will be heard by two judges appointed by the Chief Justice. If they cannot agree, a third judge will be asked to consider the case. These judges may call for further evidence or may request that the case be argued in their presence. Their decision to grant permission to appeal or to reject it, is considered final. If the judges grant permission to appeal, they will inform the attorney-general and the accused of their decision, and fix a date for the appeal.

[edit] Applying for special entry

If an accused thinks that any of the proceedings during his trial before a superior court re irregular or not in keeping with the law, he may, either during his trial or within fourteen days after his conviction, or longer if permitted, apply to present his objection. This is called an application for special entry. If the application is refused, the accused may, within twenty-one days of the refusal, or longer if permitted, appeal to the Appellate Division against the decision.

If a special entry is recorded during a trial, the accused may appeal against his conviction to the Appellate Division on the grounds of irregularity. This appeal must be made within twenty-one days after the entry has been made, or longer if permitted.

[edit] What happens if a legal question is unresolved?

If a question of law arises during a trial in a superior court, the court may itself decide, or the accused or prosecutor may make a request, to submit the question to the Appellate Division where it will be resolved.

[edit] When may a sentence be suspended?

The sentence of a superior court cannot be suspended because of an appeal unless the superior court itself agrees to release the accused on bail or to treat him as an unconvicted prisoner until the appeal has been heard. If the accused is eventually sentenced to imprisonment, the time he was released on bail will be excluded from the term of imprisonment, while the time he spent in prison as an unconvicted prison will be taken into account when calculating the term of imprisonment.

[edit] What are the powers of a court of appeal?

In the case of an appeal against a conviction or of any unresolved question of law, the court of appeal may:

  • allow the appeal if it feels that there was a wrong decision or a failure of justice
  • give the judgement that should have been given at the trial and impose the appropriate punishment
  • make any other order in the interests of justice.

In certain instances, a court of appeal may set aside a conviction or sentence, especially if a failure of justice has occurred. By the same measure, a court of appeal may impose an even heavier sentence than that originally imposed by the lower court.

[edit] What happens when a conviction is set aside on appeal?

Whenever a conviction and sentence are set aside by a court of appeal because:

  • the court making the conviction was not competent
  • the indictment was invalid or defective
  • there was some irregularity or defect in the procedure

proceedings may begin anew with regard to the original charge. In such cases, however, no judge who participated in the original trial may take part in the new proceedings.

[edit] Mercy and free pardon

Nothing stated in the Criminal Procedure Act has any effect on the power of the State President to extend mercy to any person.

If any convicted person has unsuccessfully tried all legal options to appeal or review their conviction, and further evidence has been brought forward which might affect the verdict, they may send a petition to the Minister, who may then consider the evidence and refer the matter to the court in which the conviction took place.

The court will then assess the evidence and inform the President of whether the new evidence affects the conviction in question. The State President, taking the court’s findings into account, may then overturn the conviction and pardon the convicted person, or replace the conviction with one that is less severe.

[edit] General provisions

  • Any warrant, subpoena and summons has authority throughout South Africa.
  • Any police official is qualified to serve a subpoena or summons
  • Any person who unknowingly acts under a warrant or process which is legally invalid, will not be held accountable for their actions.
  • Any act performed on the instructions, or with the permission, of a director or servant of a company or corporate body, will be regarded as having been performed by the company or corporate body itself.
  • In any prosecution against a corporate body, a director or servant of that body can be treated as the offender in the same way as if he were accused of committing the offence.
  • In proceedings against a corporate body, any record which was made or kept by a director, servant or agent of the corporate body as part of his professional duties can be used as evidence against him, unless it is proved that he had no part in drawing up the record.
  • When a corporate body is to be prosecuted for an offence, a director or servant of that body will also be considered guilty of the offence, unless it is proved that he did not take part in the offence or that he could not have prevented it.
  • Whenever the Minister has any doubt about the correctness of any decision given in a superior court which relates to a question of law, he may submit the decision to the Appellate Division for review.
  • The Minister may declare certain persons peace officers for any specific reason and within a specified area. This announcement will be made in the Gazette.
  • Whenever a person has made a statement to a peace officer in writing and that person subsequently stands trial for an offence, a copy of that statement must be given to the person who made it.
  • If it appears that a minor is the victim of an indecent or violent act and needs to be medically examined, but the parents or legal guardians of the child are unable or refuse to agree to the examination, or are suspects themselves, a magistrate may give permission for the examination to go ahead.
  • When a person has committed an offence under two laws, the guilty person is not liable to more than one punishment.
  • If in a trial the age of a person is relevant but not known, the judge may estimate their age. This estimated age will then be considered the real age of the person unless evidence later proves it to be incorrect and the accused could not lawfully have been convicted if the correct age had been proved.
  • If the law requires a person to produce a document at a trial and he fails to do so and is fully responsible for such failure, he is guilty of an offence and liable to a fine no greater than R300 or to imprisonment for no longer than three months.
  • Whenever an accused needs to be moved from one prison to another in order to attend his trial, the magistrate of the district will issue a warrant for his transferral to the new prison.
  • Every head of a prison within the area for which a session of a superior court is held for the trial of criminal cases, must give the court a list of unsentenced prisoners who have been detained for ninety days or longer and witnesses who are being detained in the prison.
  • If a person receives a written notification from a peace officer alleging that a person committed an offence and indicating the probable fine, the person charged can avoid prosecution if they submit the notification and pay the fine to the magistrate of the district within thirty days of receiving it. If the amount paid is greater than the fine imposed, the difference will be refunded to the person who had been charged.
  • A conviction or an acquittal does not prevent a civil action for damages on behalf of a person who has suffered some loss because of the offence in question.
  • A court will investigate any delay in the proceedings which seems to be unreasonable and which might harm the case of the prosecution, the accused, the State or a witness. When deciding whether a delay is unreasonable, the court must take into account a number of factors, such as the length of the delay, the reasons for the delay and the seriousness of the charges. If the court finds that the delay is unreasonable, it may order the delay to be removed. If the delay has been caused by an officer employed by the State, the court may order the State tom pay any costs suffered by the accused as a result of the delay. If the accused and his legal advisor are responsible for the delay, the court may likewise order them to pay costs to the State. Both the accused and the attorney-general have a right to appeal against such an order.
  • If a law has been repealed while a trial is in progress, the trial will continue to be conducted according to the old version of the law.


















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