Criminal Law

Criminal Law

Criminal procedure is a vast area of law which regulates various aspects of the criminal justice system. For instance, it encompasses the manner in which an individual may be charged, the manner in which evidence may be obtained and stored pending the trial of an Accused person and the requirements for an Accused person to be released on bail pending the finalisation of their trial. Within this page, we shall focus specifically on the journey of an Accused person from the point of being charged with a criminal offence, up until the finalisation of their trail. Each aspect of the criminal proceedings shall be briefly explained in order to highlight the importance of securing the services of a criminal defence attorney.

Reference shall be made to the Criminal Procedure Act 51 of 1977, subsequently referred to as the CPA herein. This page focuses mainly on Criminal matters that are enrolled at District Court level that proceed to trial.

The Charge

The process typically begins with the complainant laying a charge. Any individual who believes they have been a victim of a crime may visit their local police station and depose to an Affidavit detailing the events in relation thereto. A police docket is then opened with this Affidavit being attached. Thereafter the case is given a CAS number and assigned to an investigating officer who examines the statement and conducts an investigation. Evidence is gathered in the form of exhibits and witness statements. At any stage during this investigation the investigating officer may question certain suspects in relation to the evidence obtained. When the investigating officer finds that he has gathered sufficient evidence, he will charge a suspect – who thereafter is referred to as an Accused- and secure his or her attendance at Court.
Section 80 of The CPA clearly indicates that the Accused has the right to examine the charge at any stage of the criminal proceedings. The Accused signs a warning statement within which he or she may choose to make a statement.
It is highly recommended that a Suspect/ witness obtain legal representation at the time he or she is being questioned by Police officials. This precaution safeguards the Constitutional rights of this individual. For instance, he or she may make incriminating statements to Police Officials, or fail to divulge relevant information that may be exculpatory or greatly assist in the defence of this individual should he or she be subsequently charged. It may be noted further that any statements made extra-judicially in relation to the commission of the offence is admissible at Court provided the requirements of Section 219 of the CPA are met. Therefore, accused persons are advised to avoid speaking to other individuals about the offence unless this is done after seeking the advice of a criminal defence attorney.

Appearance at Court

Section 39 of the CPA clearly indicates the methods used in order to secure an Accused’s attendance at Court. An Accused may be warned, summoned or simply arrested in order to secure his or her attendance at Court. Note that an Accused under the age of 18 years of age cannot be brought before Court without a preliminary enquiry being held. It is important for a criminal defence attorney to be present at this enquiry to ensure that the rights of the minor are protected. Failure to abide by this procedure will result in the case being struck off the Court roll. Any conviction that follows without this procedure being adhered to will result in the case being submitted for review.

Bail

Should an Accused be arrested in terms of the CPA, and he or she remain in Custody, he or she is entitled to be released on bail. The Accused must be brought before Court within 48 hours of their arrest. Bail must be applied for in accordance with the provisions of the CPA. In terms of Section 59 of the CPA a Police Official, upon consulting the investigating officer may release the Accused on bail provided that the offence the Accused is charged with does not fall those listed under Schedule 2 Part II or III to the CPA. In terms of Section 60 (11) of the CPA if an Accused is charged with an offence listed under Schedule 5 or 6 to the CPA, the Accused will remain in custody until a formal bail application is brought before the Court. It is highly recommended in this event to engage the services of a criminal defence attorney in order to conduct the formal bail application.

Pre-Trial

Pre-trial procedures are just as important as the trial itself. Many matters may be resolved out of Court through various ways during this stage. With the assistance of a criminal defence attorney- depending on the offence the Accused is charged with- a matter may be resolved through Alternative Dispute Resolution (‘ADR’), diverted to an adult diversion program, or formal representations may be made to either the public prosecutor or Senior public prosecutor to have the matter withdrawn, either with or without conditions.
Admission of guilt fines may be paid by an Accused charged with a certain offence, provided they have no previous convictions. A document referred to as an ‘SAP 69’ is produced by the investigating officer as prima facie proof of previous convictions. The Accused is often told by Court or the prosecution that once this fine is paid, the matter will be taken off the role. The Accused- usually preoccupied with resolving the matter as quickly as possible- at times may ignore the important warning that should be given by both the prosecution and the Presiding Officer prior to payment, that once you pay an Admission of guilt fine, he or she will be CONVICTED off the offence. That means the offence will then count as a previous conviction and the Accused will no longer be a first offender should he or she find him or herself before Court in future.
Some of the questions the Presiding officer may ask the Accused upon his or her first appearance at Court include:
1. Have you appeared before Court before?
2. Do you have previous convictions?
3. Do you have other criminal matters pending against you? If so, are you released on bail or warning in those matters?
4. How do you intend pleading? Or, how do you plead?

Please note that you are not obliged to disclose your intended plea before your trial begins. It is highly recommended that a criminal defence attorney is consulted before you intend to disclose your intended plea. Note further that at the pre-trial stage, you are only obliged to disclose previous convictions and pending matters for the purposes of a formal bail application. Failure to do so in this context is an offence which is punishable with a fine or 2 years’ imprisonment. Refer to Section 11B of the CPA which explains this aspect clearly. An Accused is not obliged, and further strongly urged to avoid discussing the merits of the matter or other irrelevant information with either the public prosecutor or Presiding officer.
A criminal matter may be postponed at Court multiple times for further investigation before finally being set down for trial. Note that the Docket Contents- which include copies of all original statements and information on exhibits to be used at trial- will only be provided to an Accused in order to properly prepare his or her defence once the matter is fully investigated and ready for trial.

Obtaining the services of a criminal defence attorney ensures:
a) that the matter is not postponed at Court multiple times unnecessarily (ensuring the Accused a speedy trial),
b) that the rights of the Accused are fully protected whilst the matter is being investigated further,
c) that the Docket Contents are provided to the Accused prior to the matter being set down for trial,
d) that a request for further particulars is forwarded to the prosecutor -where necessary- in order to obtain additional information for purposes of preparing his or her defence.

Trial

At the trial stage, all parties are present and placed on record. All witnesses for the prosecution and the defence are told to wait outside the Court room in order to protect the veracity of their evidence. The charge is read (or put) to the Accused by the Prosecutor. The Magistrate then ascertains from the Accused as to whether he or she understands the charge/s, and in addition how does he or she intend pleading. The Accused enters a plea of either guilty, or not guilty on record. If the Accused is represented, the criminal defence attorney confirms the plea on record and may place a statement on record outlining the defence of the Accused. Evidence is then lead by the Prosecution in the form of witnesses and exhibits. Each Witness is first lead in evidence by the Prosecution, then cross examined by the Defence, and finally re-examined by the Prosecution. This procedure reverses when the Defence begins to lead evidence. After the Prosecution leads evidence, their case is closed.
Upon closure of the State’s Case the criminal defence attorney on record for the Accused may apply for the Accused to be discharged in terms of Section 174 of the CPA, or proceed to open the Defence case. Evidence is led by the defence. The defence case then closes once all evidence is led and final arguments are heard from the Prosecution and the Defence. The Court will deliver Judgment where the Accused could be found either guilty or not guilty. Should the Accused be found guilty the matter proceeds to Sentencing Stage. At this stage, the parties may simply address the Court, or evidence may be led by either, or both parties. The Presiding Officer then gives judgment on sentencing.
It is highly recommended that an Accused obtain the services of a criminal defence attorney for the purposes of representing them at trial as it is not possible for the Presiding officer to educate the Accused on rules of evidence or the manner in which to conduct his or her defence, notwithstanding the substantive law in relation to the offence the Accused is charged with. If an Accused has the intention of pleading guilty to the charge, it is still advisable to obtain the services of a criminal defence attorney as he or she can ascertain whether the plea is a proper one in relation to the evidence obtained. Further, there are many possible outcomes in sentencing. A criminal defence attorney can heavily mitigate on behalf of the Accused at sentencing, or even arrange a possible sentence with the public prosecutor and Presiding Officer on behalf of the Accused to greatly reduce the impact of sentencing on the Accused.

Appeal

Upon hearing the Judgment of the Presiding Officer the Accused may- after Sentencing- either verbally or in writing, apply for leave to Appeal from the Court within 14 days (Court days) of Judgment being delivered. Within 10 days of an appeal being noted the Presiding Officer may deliver judgment on the application. Should the application for leave to appeal be refused by the Presiding officer, the Accused may petition to a higher court for leave to appeal to be granted within 21 days of such leave being refused. An appeal may be noted on the Merits alone, on Sentencing alone, or both.

Conclusion

To conclude I wish to highlight that at each and every stage of criminal proceedings, there are various dangers to be associated with failing to obtain legal representation. Criminal proceedings involve a vast area of law that requires expertise in both the procedural and substantive aspects of criminal law. It is highly recommended that the services of a criminal defence attorney is engaged in order to protect the rights of an individual at all stages of criminal proceedings.

Should you or any one you know get arrested, the best option for you is to find yourself a criminal defence attorney, who will assist in such bail applications, for your immediate release.
Contact us on 031-7011477 for assistance with bail applications.