Tag Archives: Court

What happens after someone is arrested for a crime?

Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is also the most drastic method. Section 38 of the Criminal Procedure Act states that methods of securing attendance of an accused person include:

  1. Arrest;
  2. Summons;
  3. written notice; and
  4. Indictment

The basic principle of South African criminal procedure is that of access to courts, in accordance with section 34 of the Constitution.

When can a person be arrested?

A person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime.

What rights does a person have when arrested?

If someone has, or is in the process of being arrested, they have the right to be informed of the charges on which they are being arrested. Most importantly, they have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against them in court.

  1. A person has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after being arrested.
  2. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.

After an arrest a person will, more often than not, be detained at a police station. In detention, you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search.

What rights does a person have when being detained?

When being detained, a person must be informed promptly of the reason.

  • The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.
  • Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights.
  • Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.
  • Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner.
  • Be presumed innocent until proven guilty.

Police bail and warning

For minor offences ’police bail’ can be granted or the police may release a detainee on a warning. In the case of police bail, the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail.

After payment of this amount the arrested person may be released from custody. There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail.

Reference

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).

Getting child contact for divorced parents

Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

  1. The best interests of the child.
  2. The nature of the personal relationship between the child and his/her parent/s.
  3. The degree of commitment the parent/s has shown towards the child.
  4. The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
  5. The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
  6. Any family violence involving the child or a family member of the child.
  7. The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
  8. The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
  9. Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

​There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

References:

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)

Steps of the criminal procedure

A4_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