Category Archives: Crime

Steps of the criminal procedure

A1_bThe purpose of criminal procedure is to ensure the security and safety of the public through effective investigation of crimes so that criminals can be identified and brought to justice.

First the crime is reported to the police station. Thereafter the police opens a docket and the crime is investigated by the investigating officer. Next the docket is sent to Court and the prosecutor must make a decision as to whether further investigation is necessary. The National Prosecuting Authority (NPA) decides whether to prosecute or not. If the NPA decides not to prosecute, it is most likely because the case is not strong enough, for example if there is too little evidence available. If the NPA decides that the accused will be prosecuted, the case is sent to Court for indictment.

The prosecutor may decide on diversion of the case as an alternative decision. Diversion is a system for first time offenders charged with petty crimes. They are given a chance to do community service, pay for damages resulting from the crime, undergo treatment for alcohol or drug problems, and/or counselling for antisocial or mentally unstable behaviour. When the case is heard in Court, the accused may apply to be released on bail. The effect of bail is that an accused who is in custody is released from custody upon payment of the amount of money determined for his or her bail, or the furnishing of a guarantee to pay it. He/she must then appear at the place and on the date and at the stipulated time determined for his or her trial, or to which the proceedings relating to the offense of which the accused is released on bail. The Constitution provides for the following: “Everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions.”

At the start of a trial, the prosecutor states the charges laid against the accused. The accused then pleads to the charge, which might be guilty or not guilty. If the accused pleads not guilty, the case must proceed to trial. The matter may be postponed to obtain further evidence or to get a lawyer for the accused.

On the day of the trial the prosecutor will first call witnesses to testify so that it can be proved that the accused is guilty beyond reasonable doubt. Thereafter the accused or his/her attorney will also call witnesses to testify or produce evidence. After both sides have been heard, the presiding officer must make a decision as to whether the accused is guilty or not. If the accused is found guilty, the accused will be sentenced by the presiding officer. The Court may consider other sentencing options besides imprisonment or fines. If sentenced to prison, the accused may be released on parole under certain circumstances.

Reference list:

  • Joubert, 2001, Criminal ProcedureHandbook.
  • TheNationalProsecuting Authority ofSouthAfrica, 2008, Understanding theCriminal Justice System.
  • The ConstitutionofSouthAfrica, 1996.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Succeed with Self-defence…

A5_BIn South Africa violent crime has become a massive concern for many who call this wonderful place home, but what can we do about it? In our law we are entitled to protect our own interest and those of others, but unfortunately many citizens do not know the ambit of these defences.

A person acts in private or self-defence, and his act is therefore lawful, if he uses force to repel an unlawful attack which has commenced, or is imminently threatening upon his life, bodily integrity, property or other interest which deserves to be protected, provided that the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack.

The requirements to succeed with this defence are as follows:

  1. The attack must be unlawful (without legal justification). An example of a lawful attack will be if the parties consented to the attack, like in sport, for example a boxing match. The list of situations where an attack will be lawful is unfortunately not a closed list and public policy will determine if the attack was justifiable; and
  2. The attack must be directed at an interest which legally deserves to be protected; and
  3. The attack must be imminent but not yet completed; and
  4. Private defence must be directed at the attacker; and
  5. The defensive act must be necessary in order to protect the interest threatened (it must be the only way in which the attacked party can avert the threat to his rights or interests); and
  6. There must be a reasonable link between the attack and the defensive act.

The last two requirements listed as “e” and “f” will in most cases be the two problematic requirements. To decide if the defensive act was necessary in the circumstances will be determined after the fact (post facto). This, off course, makes it very difficult for a person to determine in the heat of the moment if the act will be necessary. The court will take all the facts of the matter into consideration and then decide if the person’s actions were necessary to protect his interest.

The next problematic requirement is that there must be a reasonable link between the attack and the defensive act. Here the same difficulties will arise as above, because the courts will determine the reasonability of the defence in relation to the attack after the fact. It stands to reason that there ought to be a certain balance between the attack and the defence. After all, you may not shoot and kill another person who strikes you with a fly-swatter. If the ambit of self-defence is therefore understood properly and used correctly, we as South Africans will, to a certain extent, be able to protect ourselves better.

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.