Category: Criminal Law (page 1 of 2)

THE CONSEQUENCES OF DRINKING AND DRIVING

My Lawyer_Images_Template-02With the zero-tolerance approach the law has towards road users, it’s necessary to address the consequences of drinking and driving. Unfortunately, holidays and weekends often bring devastating road accidents, with families being injured and losing members due to drunk-driving related incidents.

What does the law say? 

According to the Road Traffic Act 93/96, which has been in effect since March 1998, no person shall on a public road:

  • Drive a vehicle; or
  • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.
  1. No person shall on a public road:
  • Drive a vehicle; or
  • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while the concentration of alcohol in any specimen of blood taken part of his or her body is not less than 0,05 grams per 100 millilitres.
  1. If, in any prosecution for a contravention of the provisions of subsection (2), it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned was not less than 0,05 grams per 100 millilitres at any time within two hours after the alleged offence, it shall be presumed, until the contrary is proved, that such concentration was not less than 0,05 grams per 100 millilitres of blood at the time of the alleged offence.

What happens if you are caught?

  1. You will be arrested for being over the limit: If you are suspected of driving over the limit, you will be Breathalysed.
  2. Your blood will be taken: If the Breathalyser tests positive, you will be taken into custody and sent for further testing at an alcohol testing centre.
  3. You will be detained: Once you have been arrested you will be taken to a police station, where you will be detained in the holding cells for at least four hours to sober up.

After your release, a docket will be opened and you will be allocated an investigating officer who will follow up your blood test results.

Conclusion

Getting behind the wheel after drinking alcohol should not be an option. People should always use an alternative option, such as getting a lift with someone else, Uber, or using a taxi. Besides the fact that drinking and driving could cost you or someone else their life, it also has severe legal consequences.

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)

References:

https://www.arrivealive.co.za/Alcohol-and-Legal-Implications-of-Drunk-Driving

WHAT IS RESTORATIVE JUSTICE?

My Lawyer_Images-03Concerns about the effectiveness of traditional criminal justice systems have given rise to new approaches to criminal justice. One such approach is Restorative Justice, a theory that focuses on reconciling and reintegrating offenders into society rather than on retribution. This theory and its practical applications are explained briefly in this article.

What are the values and principles of Restorative Justice?

  1. Restorative Justice processes must comply with the rule of law, human rights principles and the rights provided in the South African Constitution.
  2. Restorative Justice must promote the dignity of victims and offenders, and ensure that there is no domination or discrimination.
  3. All parties must be provided with complete information as to the purpose of the process, their rights within the process and the possible outcomes of the process.
  4. Parties should clearly understand that they may withdraw from the process at any time.
  5. Parties must be given a reasonable amount of time to consider their options, when a restorative justice option is proposed.
  6. Referral to restorative justice processes is possible at any stage of the criminal justice system, with particular emphasis on pre-trial diversion, plea and sentence agreements, pre-sentence process, as part of the sentence, and part of the reintegration process, including parole.
  7. Participation in restorative justice processes must be voluntary for all parties, including victims.
  8. Victims and offenders should be allowed to bring support persons to the encounter provided that this does not compromise the rights and safety of any other party.

Although formal ‘restorative justice programmes’ were first introduced in countries such as Australia and New Zealand, restorative justice concepts are certainly not new to South Africa. In many South African communities, the way of dealing with children has traditionally included mechanisms that encourage children to take responsibility for their actions. This includes outcomes such as an apology, restitution and reparation, and restoring relationships between offender and victim.

When can it be applied?

Restorative Justice can be applied at any stage in the Criminal Justice System such as:

  1. Pre-charge (before a charge is laid).
  2. Pre-trial (after a charge is laid and before accused appears in Court).
  3. Post-charge (after charge, but before plea in court).
  4. After conviction, but before sentence.
  5. Post-sentence (for parole and re-integration purposes).

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)

References:

http://www.justice.gov.za/rj/rj.html

https://www.westerncape.gov.za/general-publication/what-restorative-justice

WHEN CAN SOMEONE BE RELEASED ON BAIL?

b4People are often outraged when they hear of accused persons who have been released on bail. There are several factors to be considered when deciding whether someone should be let out on bail or not.

Who is allowed bail?

According to section 35(1)(f) of the Constitution[1] 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. This provision sets out that the law cannot take away an innocent person’s freedom arbitrarily, but recognises that in certain circumstances it may be in the interests of justice to take away or limit this freedom.[2]

When can bail be refused?

The next question that arises is how we know when the refusal to grant bail is in the interests of justice. According to section 60(4) of the Criminal Procedure Act[3] (CPA), the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

  1. Where there is the likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit certain offences;
  2. Where there is the likelihood that the accused, if released on bail, will attempt to evade trial;
  3. Where there is the likelihood that the accused, if released on bail, will attempt to influence, intimidate or conceal witnesses or destroy evidence;
  4. Where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
  5. Where there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.[4]

In considering whether the grounds in (a) to (e) above have been established, various factors, which are set out in Sections 5 – 9 of the CPA, may be taken into consideration, these include the following:

  1. The degree of violence towards others implicit in the charge;
  2. The accused’s ties to the place at which he or she is to be tried;
  3. Assets and travel documents held by the accused;
  4. The accused’s relationship with the witnesses and the extent to which they could be influenced;
  5. Whether the accused supplied false information during his or her arrest or bail proceedings;
  6. Any previous failure to comply with bail conditions or indications that he or she will not comply with any bail condition;
  7. Whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community; and
  8. Whether the shock or outrage of the community might lead to public disorder if the accused is released.[5]

The court decides whether the accused should be let out on bail by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, and must take into account, inter alia, the period for which the accused has been in custody; the probable period of detention until the end of the trial if bail is not granted; the reason for any delay in the trial and any fault on the part of the accused; any impediment to the preparation of the accused’s defence due to the detention of the accused, and the accused’s state of health.[6]

When dealing with Schedule 5 and 6 offences the accused will be detained in custody unless the accused can show the court that it is in the interests of justice or that exceptional circumstances exist which permit his or her release, respectively. [7]

Conclusion

It’s clear that the court must weigh up many factors against each other and although we do not always understand why accused persons are released on bail, anyone would want a fair bail application if they found themselves in a similar position.

References:

  • The Constitution of the Republic of South Africa, 1996
  • J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86
  • The Criminal Procedure Act 51 of 1977

[1] The Constitution of the Republic of South Africa, 1996.

[2] J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86.

[3] Section 60(4) of the Criminal Procedure Act 51 of 1977.

[4] Section 60(4) of the Criminal Procedure Act 51 of 1977.

[5] Section 60(5-9) of the Criminal Procedure Act 51 of 1977.

[6] Section 60(10) of the Criminal Procedure Act 51 of 1977.

[7] Section 60(11-12) of the Criminal Procedure Act 51 of 1977.

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)

BAIL IN SOUTH AFRICA

my-lawyer_images_oct-04In any court case when a person is arrested, the accused person remains to be presumed not guilty until the court finds such person guilty.  In our law no one may be detained without trial. If an accused is arrested, he or she is normally kept in prison or the police cells till the trial is finalised to ensure the presence of the accused at court.

If the person wishes not to be imprisoned pending the finalisation of the trial, he or she may apply to the court to be released on warning or on warning with some conditions attached or on bail (with or without conditions).  Bail is the sum of money paid to the court or to the police. Bail is granted more readily when the accused is not a flight risk and can easily be found by law enforcement agencies. There is usually bail conditions set by the presiding officer that the accused must comply with.

What information should be obtained from the accused once s/he has been arrested?

  • When was the accused arrested?
  • What was the accused arrested for?
  • Where is the accused being detained?
  • What is the case number?
  • Who is the investigating officer?
  • What is the personal information of the accused, such as his/her name, surname, residential address, identity number, place of work, marital status, number of children, and next of kin?

Where can a person apply for bail?
The accused or his/her legal representative can apply for bail at the police station before the accused’s first court appearance, or at court.

What should a person do if bail is granted at the police station?

  • The amount set by the police official should be paid and the accused will be released from custody.
  • The police official will give a receipt and notice indicating the alleged criminal offence together with the date and time the accused should appear at court.

If the prosecution does not oppose the granting of bail, it does not automatically mean the court will grant bail. The court still has a duty to weigh up the personal interests of the accused against the interests of justice.

It is important to note that any person who has been released on bail and who does not, without good cause, appear at court on the due date, remain in attendance until the proceedings are complete, or who fails to comply with bail requirements, is guilty of an offence and will be liable to a fine or to a term of imprisonment not exceeding one year.

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)

Reference:

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5462201

https://www.legalwise.co.za/help-yourself/quicklaw-guides/bail/

http://www.justice.gov.za/faq/faq-bail.html

Right to a fair trial

A4_BAfter the Oscar Pistorius saga everyone is wondering about the procedures of a murder trial. In this article we will discuss the right to a fair trial.

In the case of Zanner v Director of Public Prosecutions, Johannesburg (107/05) [2006] ZASCA 56, 2002 (2) SACR 45 (SCA); [2006] 2 All SA 588 (SCA), the factory worker threw a tool at a colleague, which ended fatally. In the statement of the accused he alleged that the tool had slipped from his oily hands when he slung his shoulders in a gesture of irritation. The matter could at first not proceed with trial as the witness was missing. Once she had been found, the trial was set down to be heard. However, the charge was withdrawn as representations had been made on behalf of the accused.

After ten years the case had been reopened as the accused had been charged for killing his wife, which was a direct relation to his previous conviction. The accused relied on Section 35 (3) (d) of the Constitution which states that “every accused person has the right to a fair trial, which include the right to have their trial begin without unreasonable delay”.

In this matter the accused believed that his case would suffer prejudice due to the previous murder trial of ten years ago. Furthermore, Section 38 of the Constitution grants a relevant party the right to approach a competent court on the ground that a right in the Bill of Rights has been infringed or threatened and, depending on the circumstances of each particular case, the court may grant appropriate relief, including a declaration of rights. Trial related prejudice refers to prejudice suffered by an accused mainly because of witnesses becoming unavailable and memories fading as a result of the delay, in consequence whereof such accused may be prejudiced in the conduct of his or her trial[1].

Counsel agreed that the delay in prosecution had to be calculated from the date when the accused was first charged with the offence. The judge did not find in favour of the accused; however, he noted that each case is different and the lengthy delay cannot always be seen as an infringement on a right. The circumstances of the unreasonable delay needed to be investigated.

In this matter the accused’s previous conviction trial had been delayed because the witness was missing, the original docket papers were missing and the representations had been made on behalf of the accused. No issues of restricted freedom, stress, anxiety or social ostracism arose. The judge therefore found that the accused was not denied a right and the appeal was dismissed with costs.

[1] S v Dzukudu and others; S v Tshilo 2000 (2) SACR 443 (CC)

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)

A dent on your record?

A2_BAngela, a normal middle-aged woman with a basic salary has just landed herself in a load of trouble, which could possibly cause her not to go on holiday to Mauritius with her family in December. Angela went to the shop to buy bread before fetching her teenage son from school.

As she opened the car door the typical Cape Town wind slammed the door into the passenger door of the car parked next to her, leaving a big dent.What to do? Can she just ignore the incident and park her car in another spot? Isn’t that what most people would do?

In the case of S v Mpho Vincent Mutobvu 2013 (2) SACR 366 (GNP), Mr Mutobvu reversed his motor vehicle from a parking bay when he scratched another parked vehicle. He thought the other vehicle was not damaged and therefore drove home. Unbeknown to him, a security guard observed the incident and took down his car’s registration number. The complainant tracked Mr Mutobvu through his registration number and contacted him. She informed him that she had already reported the matter to her local police station. He inspected her vehicle, and conceded that he was responsible for the damage and paid R6 000 for her car to be repaired. She then went with him to get the charge withdrawn. They were told that he had to pay R500 before the charge could be withdrawn, which he accepted to be his “fine”. Mr Mutobvu was under the impression that this was the end of the matter.

Shortly after the incident Mr Mutobvu had an interview for a new job at a mining company. It was then that he was informed that he could not get the job on account of his criminal record. What criminal record? He went to the Criminal Records Centre in Pretoria and was informed that what he had thought was a R500 fine, was actually an admission of guilt in terms of Section 57 of the Criminal Procedure Act 51 of 1977. Mr Mutobvu had admitted to the contravention of Section 61 (1) (a) of the National Traffic and Motor Vehicle Safety Act 93 of 1966 – failure to stop after an accident. His criminal record would only be expunged after 10 years. Mr Mutobvu then applied for a special review as he knew he did not deserve this 10-year criminal record.

In S v Cedras 1992 (2) SACR 530 C at 531j – 532b the following was held regarding a court’s approach to a review:

“In such cases the question must always be whether there are considerations of equity and fair dealing which compel the court to intervene to prevent a probable failure of justice. There must be evidence before the court showing the likelihood of such inequity, should it not intervene. A court must be satisfied that the admission of guilt was probably mistaken or incorrect and the accused or other person deposing on oath on his behalf must give a satisfactory explanation as to how the admission of guilt came to be mistakenly or erroneously made. Good cause must be established for condoning the error or mistake in making the admission of guilt. It must be established that, were the charge to go to trial, the accused would have a probable or arguable defence to the charge and that his deemed conviction or sentence is, accordingly, probably not in accordance with justice.”

Mr Mutobvu stated that he did not have any legal representation when he unknowingly admitted to the guilt charge which resulted in the criminal record. He also stated that he had paid the damages and that the complainant had accepted that the charge be removed. The court stated that “in all circumstances, I would set aside the payment of the admission of guilt fine and subsequent conviction and sentence and order that the fine paid be refunded to the accused”. Mr Mutobvu’s criminal record was erased and the R500 that he had to pay was refunded.

A criminal record is not something that people should take lightly. The first charge may not land you in jail, but it puts you in many other awkward situations. If Angela decides to drive away from her accident, she could also have a criminal record and that means no Mauritius holiday for her. Anyone with a criminal record will not be able to leave the country as they are seen as a danger, and it is almost impossible to find suitable employment. Something as simple as a car dent could change your entire life. My advice to Angela would be to wait for the owner of the vehicle or leave a note with her insurance details. Her situation is like a television license: pay it, it’s the right thing to do!

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)

To prosecute or not

A3_BAn action may be a crime or a delict but where your actions were trivial, a court may decide not to prosecute you or a judge will not entertain a claim against you due to the de minimis non curat lex rule.

If you find yourself charged with a minor crime such as theft for taking one small sweet from a store then the de minimis non curat lex rule (de minimis), which means “the law does not concern itself with trifles”, may come in handy for you.

De minimis is a decision of a court to allow unlawful conduct to go unpunished due to its triviality. An example of such a decision is where the Appellate Division in S v Kgogong[1] refused to convict a person of theft because the accused stole a worthless piece of paper. Another example would be from the case of S v Dane[2] where a person accused of malicious damage to property was acquitted because all he had done was to cut a small portion of another person’s hedge.

The application of the de minimis maxim is very limited in regard to statutory offences. This was discussed in the case of DPP (EC) v Klue[3] in which the High Court overturned the Magistrate’s decision that the offence of driving a vehicle on a public road with a blood alcohol concentration exceeding the prescribed minimum was de minimis.

The High Court held in the abovementioned case that the aims and objectives of the legislation containing the offence are important and that the Road Traffic Act,[4] in particular the provision offended, is aimed at reducing road accidents. The High Court also held that there was no room for the Magistrate to apply the de minimis maxim because the minimum amounts had already been determined after careful consideration by the Legislature.

The de minimis maxim also applies to criminal assault charges and delictual claims. In regard to delictual claims, when a person’s bodily integrity has been wrongfully and intentionally infringed, he or she can claim satisfaction with the actio iniurarum unless the de minimis rule applies to his or her claim. In regard to criminal assault charges trivial assaults, such as a slap on the back or a shove in a crowd may be disregarded in terms of the de minimis rule. This would have to be seen in context of the nature of the act, especially where one is dealing with sexual assault, as a mere touch could be very serious and in these circumstances the de minimis rule would not come into play.

The purpose of the de minimis rule is to avoid the burdening of the courts with minimal complaints which would result in wasted costs, resources and time. It is further to avoid the situation where more serious crimes and delictual claims take even longer to be dealt with due to these trivial issues taking up the court’s time. This will result in the criminal justice system and the court system being brought into disrepute for not being able to deal with serious matters efficiently.

Bibliography

  •  Burchell J: Principles of Criminal Law 2006 (3rd ed) 355 – 356
  • S v Kgogong 1980 (3) SA 600 (A)
  • S v Dane 1957 (2) SA 472 (N)
  • DPP (EC) v Klue 2003 (1) SACR 389 (E)
  •  Road Traffic Act 93 of 1996

[1] 1980 (3) SA 600 (A)

[2] 1957 (2) SA 472 (N)

[3] 2003 (1) SACR 389 (E)

[4] 93 of 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)

Steps of the criminal procedure

A3_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.

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)

Reference list:

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

Public nuisances: Legal rights in terms of legislation

A2_BPersons who commit disruptive acts of unacceptable behaviour in public places may be warned, arrested and subsequently prosecuted by the authorities. The offender shall be liable for a fine, imprisonment or both upon conviction. How is this enforcement of our rights achieved by an ordinary citizen?

 

A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience or welfare of a community.[1]

Legislation offers relief in this respect, in specific by-laws of local Municipalities. A by-law is a law that is passed by the Council of a municipality to regulate the affairs and the services it provides within its area of jurisdiction[2]. A municipality derives the powers to pass a by-law from the Constitution of the Republic of South Africa.

With regards to Public Nuisances one would look to By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007[3]. The main body of this by-law lists certain acts that are deemed prohibited behaviour and are therewith criminalised. Various acts including begging, using abusive or threatening language, being under the influence of drugs or alcohol and causing a disturbance by shouting, screaming or making any other loud or persistent noise or sound, including amplified noise or sound are listed therein.[4]

Should anyone and his conduct fall within this definition and perform any or multiple prohibited acts of public nuisance, the authorities are to be alerted immediately. The authorities have the power to instruct the offender to immediately cease the offending behaviour, failing which he will be guilty of an offence.

Section 23 states that any person who contravenes or fails to comply with any provision of this by-law or disobeys any instruction by the authorities enforcing this by-law, shall be guilty of an offence. This offender shall be liable to a fine or imprisonment for a period not exceeding six months, or to both a fine and such imprisonment.

It is therefore evident that by identifying certain acts of unacceptable, aggressive, threatening, abusive or obstructive behaviour of persons in public the offender may be ordered to immediately cease such offending conduct or be arrested for not complying with any order to do so.

This article is a general information sheet and should not be used or relied on as 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) 

Reference List:

  1. http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/
  2. http://legal-dictionary.thefreedictionary.com/Public+Nuisance
  3. http://openbylaws.org.za/
  4. https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx

[1] http://legal-dictionary.thefreedictionary.com/Public+Nuisance

[2] https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx

[3] http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/

[4] Section 2 By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007

To prosecute or not

A2BAn action may be a crime or a delict but where your actions were trivial, a court may decide not to prosecute you or a judge will not entertain a claim against you due to the de minimis non curat lex rule.

If you find yourself charged with a minor crime such as theft for taking one small sweet from a store then the de minimis non curat lex rule (de minimis), which means “the law does not concern itself with trifles”, may come in handy for you.

De minimis is a decision of a court to allow unlawful conduct to go unpunished due to its triviality. An example of such a decision is where the Appellate Division in S v Kgogong[1] refused to convict a person of theft because the accused stole a worthless piece of paper. Another example would be from the case of S v Dane[2] where a person accused of malicious damage to property was acquitted because all he had done was to cut a small portion of another person’s hedge.

The application of the de minimis maxim is very limited in regard to statutory offences. This was discussed in the case of DPP (EC) v Klue[3] in which the High Court overturned the Magistrate’s decision that the offence of driving a vehicle on a public road with a blood alcohol concentration exceeding the prescribed minimum was de minimis.

The High Court held in the abovementioned case that the aims and objectives of the legislation containing the offence are important and that the Road Traffic Act,[4] in particular the provision offended, is aimed at reducing road accidents. The High Court also held that there was no room for the Magistrate to apply the de minimis maxim because the minimum amounts had already been determined after careful consideration by the Legislature.

The de minimis maxim also applies to criminal assault charges and delictual claims. In regard to delictual claims, when a person’s bodily integrity has been wrongfully and intentionally infringed, he or she can claim satisfaction with the actio iniurarum unless the de minimis rule applies to his or her claim. In regard to criminal assault charges trivial assaults, such as a slap on the back or a shove in a crowd may be disregarded in terms of the de minimis rule. This would have to be seen in context of the nature of the act, especially where one is dealing with sexual assault, as a mere touch could be very serious and in these circumstances the de minimis rule would not come into play.

The purpose of the de minimis rule is to avoid the burdening of the courts with minimal complaints which would result in wasted costs, resources and time. It is further to avoid the situation where more serious crimes and delictual claims take even longer to be dealt with due to these trivial issues taking up the court’s time. This will result in the criminal justice system and the court system being brought into disrepute for not being able to deal with serious matters efficiently. 

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.

Bibliography

  • Burchell J: Principles of Criminal Law 2006 (3rd ed) 355 – 356
  • S v Kgogong 1980 (3) SA 600 (A)
  • S v Dane 1957 (2) SA 472 (N)
  • DPP (EC) v Klue 2003 (1) SACR 389 (E)
  • Road Traffic Act 93 of 1996

[1] 1980 (3) SA 600 (A)

[2] 1957 (2) SA 472 (N)

[3] 2003 (1) SACR 389 (E)

[4] 93 of 1996

Older posts

© 2017

Theme by Anders NorenUp ↑