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CRIMINAL LAW - FAQ's             Back to home page

 

Criminal Defence Lawyers / Attorneys represent clients who have been accused of committing a crime,and defend their rights at each stage of the case. When it comes to criminal law cases, an experienced and effective criminal defence lawyer can mean the difference between a prison sentence and reduced or dismissed charges.

Even in less serious cases, a good criminal defence lawyer can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process.

For these and other reasons, it is vital that those accused of a crime select a competent, experienced and effective criminal defence lawyer.

 

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  1. When do I need to contact a Criminal Defence Lawyer?
  2. What must I do if I am arrested?
  3. I have heard that a relative of mine has been arrested. How can I confirm this?
  4. Will a lawyer be able to get him/her released on bail after hours, weekends, or Public Holidays?
  5. What if I can't afford the services of a lawyer?
  6. How much will a lawyer charge to handle my case, and how can I reduce my legal fees and expenses?
  7. Can I be arrested at a roadblock for outstanding traffic fines?
  8. What are my legal rights when I am stopped at a road block? Can I be compelled to submit to a breathalyser or have blood drawn?
  9. May the Police search my person, vehicle, or house without a warrant or my consent?
  10. If the Police have a warrant to search my house, can they search elsewhere?
  11. Can the Police break down my door to enter my home?
  12. Do the Police need a Warrant to arrest me?
  13. If the Police don't read me my rights, can my case be dismissed?
  14. What is mens rea and why is it important?
  15. Murder and culpable homicide: What is the difference?
  16. Robbery, theft and fraud: what is the difference?
  17. How soon must I be brought to Court after my arrest?
  18. What are the different categories of crime?
  19. What is meant by criminal procedure and why is it important?
  20. I have a criminal record. Can my lawyer have it expunged?
  21. I have been convicted of a crime. Can I appeal against my conviction?
  22. What are some of the valid defences in law that an accused who has been charged with a criminal offence can raise?
  23. In what way are minors treated differently to adults by the criminal justice system in South Africa?
  24. How do I protect myself, my legal rights and my property, and avoid being arrested if I have not received my 'new' papers regarding my firearm licence or permit?
  25. What is the purpose of sentencing and what are some of the factors that the Court considers when imposing sentence?
  26. What are some of the different and maximum sentences that the Courts can impose?
  27. What is some of the most important legislation governing Criminal law?

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1. When do I need to contact a criminal defence lawyer?

 

You need to urgently contact a lawyer when you have been accused or charged with committing a crime. Also contact a lawyer when the Police request to question you, as it is often better to be accompanied by a lawyer. You must also urgently contact a lawyer should members of the SAPS conduct themselves in an irregular or unlawful manner. Complaints against police for misconduct are investigated by IPID, who are governed by the Independant Directorate Investigation Act, 2011

You also have the right to defend yourself without a lawyer, but this is not advisable.

If you have been charged with a crime, a lawyer can:

  • Attempt to secure your release from custody as soon as possible;
  • Work to get the charges against you dropped or lowered;
  • Interview police, interested parties, and any possible witnesses to expose any lies or exaggeration;.
  • Make sure no evidence was obtained against you illegally;
  • Attend an identity-parade to ensure the correctness thereof;
  • Conduct a thorough pre-trial investigation;
  • Employ a private investigator, ballistics expert or any other experts that may be able to help strengthen your defence;
  • Appear on your behalf at trial or instruct an advocate to appear on your behalf at trial;
  • Take all the necessary steps to make sure you face the minimum possible penalties.

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2. What must I do if I am arrested?

 

Any arrested person has the right to remain silent and not to implicate himself. In most cases, it is not advisable to say anything to the police. If a statement to the police can resolve any misunderstanding or show your innocence, a lawyer should make those representations on your behalf.

It is not advisable to sign anything except your written explanation of rights normally presented to all arrested persons.

When arrested, the police are entitled to:

  • take your finger-prints, palm-prints or foot-prints or may cause any such prints to be taken;
  • arrange an identity parade- you must insist on the presence of a legal representative;
  • take such steps in order to ascertain whether your body has any mark, characteristic or distinguishing feature or show any condition or appearance;
  • take a photograph of you;
  • take you to a doctor to have your blood drawn.  

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3. I have heard that a relative of mine has been arrested. How can I confirm this?

 

The best is to check with the local Police Stations. HERE is a link to the SAPS website, listing the contact details of the country’s Police Stations. (Note: you will be leaving the criminal lawyers website, as the SAPS website doesn’t allow the reproduction of the list) 

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4. Will a lawyer be able to get him/her released on bail after hours, weekends or public holidays?

 

A lawyer can arrange with the investigating officer for an arrested person, charged with any offence such as those listed below, to be released on bail by the police at any time before his or her first appearance in court.

Police can set bail for the following crimes:

  • Common assault Theft (such as shoplifting) with a value below R2500
  • Crimen iniuria (criminal defamation)
  • Possession of a small amount of dagga
  • Drunken driving
  • Reckless or negligent driving.

The police needs the permission of a Public Prosecutor to release an accused when charged with the following crimes:

  • Public violence.
  • Culpable homicide.
  • Bestiality
  • Assault, involving the infliction of grievous bodily harm
  • Arson
  • Housebreaking, with intent to commit an offence.
  • Malicious injury to property.
  • Robbery without a weapon, if the items involved in the offence is less than R20 000
  • Theft, if the amount involved in the offence does not exceed R20 000
  • Illegal possession of dependence-producing drugs.
  • Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000

Only a court, after hearing a bail application during normal court hours, can fix bail for the following crimes:

  • Murder
  • Rape
  • Any sexual offence against a child or a person who is mentally disabled
  • Trafficking in persons for sexual purposes
  • Armed Robbery
  • Breaking or entering any premises
  • Theft, receiving stolen property knowing it to have been stolen,
  • Fraud, forgery if the amount or value involved in the offence exceeds R20 000
  • Illegal dealing in or possession of precious metals or stones
  • Kidnapping
  • Child stealing
  • Intimidation  

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5. What if I can't afford the services of a lawyer?

 

Your first option is to conduct your own defence. This is not recommended. A person not legally trained will not know how criminal procedure works. He will not know, for example, how to cross-examine, object to inadmissible evidence tendered by the state or how to present his own evidence.

If you can’t afford the services of a lawyer, you can approach The Legal Aid Board for assistance. There is a Legal Aid officer in most criminal courts, that will assist you in applying for legal aid. In smaller towns and rural areas, where The Legal Aid Board may not have offices, they will appoint a lawyer in private practice to act on your behalf.

You will be asked to explain your financial position, in what is called the ‘means test.’ In the event that you pass the ‘means test’, they will appoint a lawyer to represent you for your entire case.

In the event that a person does not qualify in terms of the 'means test', he/she can appeal the refusal of Legal Aid by providing reasons why the refusal will lead to “a substantial injustice.”

Lawyers from the Legal Aid Board will not undertake after-hour work on behalf of an accused, such as after-hour bail applications. For that you will require the services of a privately hired criminal defence lawyer.

The full details of procedures and requirements for Legal Aid can be found in the Legal Aid Guide.

In addition to the Right to a Lawyer, the accused has further rights. These rights are extremely important and should always be invoked. They include:

  • The Right to a Fair, Public and Speedy trial.
  • The Right to be presumed innocent unless proven guilty beyond reasonable doubt by the court.
  • The Right against Self- Incrimination. This means he is entitled to remain silent and not to provide evidence that can be used against him. An accused may, however, testify on his own behalf.
  • The Right to Confront Witnesses. An individual has the right to question and cross-examine every witness that testifies against him in trial.
  • The Right to Adduce Evidence. An accused may present his/her evidence to the court or to call forth all witnesses and evidence that could favourably determine the outcome of the case.

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6. How much will a lawyer charge to handle my case, and how can I reduce my legal fees & expenses?

Every lawyer decides on how much his/her fees will be for particular types of work. It is important to come to an agreement about the fees before the lawyer starts the work. Most lawyers require a deposit prior to doing any legal work on your behalf.

There are a number of ways lawyers structure their fees for representing you in a criminal case:

  • Hourly Fee
    The lawyer charges per hour, regardless of what work was done. Your lawyer must disclose to you upfront what his hourly fee is.
  • Day Fee
    The lawyer may quote a specific fee for every time the matter is postponed, and another fee for each day of your trial or bail application, irrespective of the number of hours spend waiting at court for your case to be heard.
  • Global Fee
    The lawyer may give you an option of quoting you a single fee for finalizing the entire case on your behalf. This could exclude, for example, a bail application and the possible appeal process that may follow. The above will normally exclude other costs and provisional payments (for example, for obtaining a copy of the police docket) that your lawyer may make on your behalf. Lawyers' fees are obviously higher, and carry a surcharge, for doing work outside of normal court hours or on weekends and public holidays.

Reducing Your Legal Costs and Expenses

If you have discussed the basis and nature of legal fees and costs with your lawyer, you have taken the necessary first step to control your legal expenses. There are, however, a few things you can do during the course of the matter to help you manage the overall fees and costs:

  • Get Organized. During your initial interview, bring as much information as you can and share it with your lawyer. If you have already appeared in court, make sure you know your case number and the dates of your previous and next appearances in court. Write down the questions that you want your lawyer to answer. This could help cut down the time that the lawyer will spend investigating the case and gathering information.
  • Be Thorough. Tell your lawyer all the facts. Do not assume that your lawyer knows them all. In order to present your case efficiently, it will help your lawyer to know as much as possible about your case. All your information ought to be kept in confidence.
  • Be Efficient. Try to be as concise as possible.
  • Communicate. You need to discuss the case with your lawyer and prepare for meetings. You are probably the primary source of information about your case. If something new happens, you should inform your lawyer. It may change the approach the lawyer takes with the case, saving you and your lawyer time and money.
  • Examine your Bill. Make sure that your bill does not contain costs or expenses beyond those you agreed to pay.

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7. Can I be arrested at a road block for outstanding traffic fines?

 

No. You can only be arrested if you have ignored a summons to appear in court, and as a result a warrant had been issued by a magistrate for your arrest. You cannot be arrested simply because you have “unpaid tickets.”

A notification that was sent to you through the post is not a legally served summons. For a summons to be properly served, it will must been signed for by the accused or a person over 16 years of age at his or her home or place of work.This summons must indicate a specific court and a date on which one is to appear. Take note that a fine issued to you in person by a traffic official usually already indicates the date you must appear in court, and is a legally served summons.

You are entitled to ask for a copy of the warrant of arrest or written authorisation by a magistrate or peace officer.If the traffic official making an arrest refuses or cannot provide you with a copy of the summons immediately, the arrest and subsequent detention is unlawful, even if there turns out to be a valid warrant.

The unlawfulness of the arrest and detention of the arrestee will not necessarily affect the liability of the accused for the relevant traffic violation or failure to appear in court. When any person had been unlawfully arrested and detained, they may have a claim for compensation against the state for damages suffered.

Persons arrested by traffic officers should be taken immediately to a South African Police Service station or the court that issued the warrant. Traffic departments are not allowed to lock a person up at the roadside while they carry on with their roadblock,4 and they may not take a person to a bank teller to draw cash to pay the “fines”. The only purpose of an arrest is to bring a person before a court for that person to be prosecuted. It is not to be used as a method to harass or frighten members of the public for them to pay their traffic fines.5

      1. Sec 54(2)(a) of CPA
      2. Sec 39(2) of CPA
      3. Minster van Veiligheid en Sekuritiet V Rautenbach 1996 (1) SA 720 (A)
      4. Mahlongwana v Kwatinidubu Town Council 1991 (1) SACR 669 E
      5. Duncan v Minister of Law and Order 1984 (3) SA 460 (T)

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8. What are my legal rights when I am stopped at a road block?

 

The National or Provincial Police Commissioner may, where it is reasonable in the circumstances, in writing authorise the setting up of a roadblock on any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area.1 The written authorisation referred to in paragraph must specify the date, approximate duration, place and object of the proposed action. Only in circumstances where obtaining authorization would take too long and defeat the object of the roadblock, can a it be set up without authorisation. A police official may search any person or vehicle at a roadblock without a search warrant. You are entitled to ask for a copy of the written authorisation to set up the roadblock, or if no authorisation was obtained because of time, the reasons why the roadblock was set up.

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8. Can I be compelled to submit a breathalyser or have blood drawn?

 

The National Road Traffic Act1 provides that no person shall refuse that a specimen of blood or a specimen of breath be taken of him or her. Refusal is a statutory criminal offence, bearing a maximum sentence equal to that prescribed for the offence of driving with a blood alcohol level which is above the legal limit. The Criminal Procedure Act stipulates that police officers must take an arrested person to a registered medical practitioner for blood to be drawn.2 The police may even apply necessary force to compel an unwilling person to comply with such a lawful request.3

      1. Sec 69(9)
      2. Sec 37
      3. S v Binta 1993 (2) SACR 553 (C)

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9. May the Police search my person, vehicle or house with a warrant or my consent?

Every person‘s right to privacy is protected by the Constitution. This is not an absolute right, and can be limited in some circumstances.

As a general rule, a person (this includes his house or car) may only be searched when a warrant had been issued granting a police official the authority to do so. Such a warrant may be issued by a officer of the peace (such as a magistrate) when it has been shown under oath that good grounds exists to suspect that an illegal object will be found on a person or premises.

A police official may search a person or premises without a warrant if he is of the opinion that in any specific instance he would be able to obtain a warrant, but because of the circumstances there is not enough time to obtain one.

It is important to note that when a woman’s person is a searched, the search must be conducted by a female police officer, or if unavailable another woman requested by the police.

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10. If the Police have a warrant to search my house, can they search elsewhere?

 

No. Because a search of a person’s property is an invasion of privacy, the police may in normal circumstances only act in accordance with the authorisation granted by a search warrant. A valid search warrant must be detailed with regards to:

  1. Who may execute the warrant;
  2. Where may be searched;
  3. What articles may be seized.

The validity of a search warrant must be examined keeping in mind the high value placed on the subject's right to privacy and property. The terms of a search warrant are to be construed with reasonable strictness, and it should ordinarily be read on the terms in which it is expressed.1

A police official executing a search warrant must, after such execution, upon demand of any affected person, hand to him a copy of the warrant.

In the event that a person is charged on the strength of evidence illegally found without a warrant or with a faulty warrant, a court has a discretion to still allow the evidence to be used if it is in the interest of justice. Normally a court will not exclude evidence merely because of a formal defect on a warrant.

It is also important to note that a search warrant may only be executed during the day, unless night execution is expressly authorised on the warrant.2

      1. Toich v The Magistrate, Riversdale & others 2007 (2) SACR 235 (C)
      2. Sec 21(3) CPA

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11.Can the Police break down the door to enter my home?

 

A police official, who may lawfully search any person or any premises, may use force as may be reasonably necessary to overcome any resistance, provided that he must first audibly demand entry to the premises and declare the purpose for which he seeks to enter such premises. The force that may be used includes the breaking of any door or window of such premises.1

The police official does not have to first demand entry and give the reason therefore if he reasonably believes that an article which is the subject of the search may be destroyed or disposed of if he complies with those requirements.

A search of any person or premises must be conducted with strict regard to decency and order.2 A police must perform his duty in a manner that is reasonable in the circumstances.3 Where the police official is authorised by law to use force, he or she may use only the minimum force which is reasonable in the circumstances.

      1. Sec 27 CPA
      2. Sec 29 CPA
      3. Sec 13(8)(3)(a) of South African Police Services Act 68 of 1995

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12. Do the Police need  a warrant to arrest me?

 

Arrest, by definition, constitutes a serious restriction of the individual's freedom of movement, and can also affect his dignity and privacy. Because an accused person, before conviction, ought to be treated as far as possible as being innocent, arrest should be effected only where it is likely that a summons or written notice to appear would be ineffective.1 The law must protect suspects as much as possible against unlawful arrest, while not hampering the effective investigation and prevention of crime.

Normally, the police needs a warrant to arrest a person. Listed here are some of the circumstances where an arrest may be effected without a warrant:2

  1. When a person commits or attempts to commit a crime in the police official’s presence;
  2. Where the police official entertains a reasonable suspicion that the person he is arresting has committed one of a list of more serious offences. Amongst these offences are murder, public violence, robbery, rape, housebreaking and arson;
  3. Any person who wilfully obstructs a police official in the execution of his duty;
  4. When a police official is convinced the person has escaped or attempted to escape from lawful custody;
  5. When a person found in possession of property reasonably suspected to have been stolen or acquired by dishonest means.

Where an arrest without warrant is effected by a police officer and is not permissible, the arrestee might lawfully resist or flee. Moreover, such arrest might form the basis of a civil action for damages.

      1. S v More 1993 (2) SACR 606 (W) 608
      2. Sec 40 CPA

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13. If the Police don't read me my rights, can my case be dismissed?

 

The mere fact that a person’s rights were not brought to his attention, does not automatically result in the dismissal of the charges. If the fact that an accused does not know his rights renders his trial unfair or negatively impacts on the administration of justice, he can be acquitted at trial.

Here follows some examples where courts have ruled a trial to be unfair:

  • Where a suspect was not informed of his right to remain silent and not to incriminate himself, and he points out to the police where he hid stolen goods, he may be acquitted at trial because he has a right not to incriminate himself.1
  • Where an accused was not informed of his right to legal representation and right to apply for legal aid, and was subsequently convicted after conducting his own defence.2
      1. S v Soci 1998 (2) SACR 275 (E)
      2. MOETJIE v THE STATE AND ANOTHER 2009 (1) SACR 95 (T)

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14. What is  MENS REA and why is it important?

 

In criminal law, mens rea – the Latin term for "guilty mind" – is usually one of the necessary elements of a crime the state needs to prove to secure a conviction. The test of criminal liability is usually expressed in the Latin phrase actus non facit reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also guilty". The concept is often also simply expressed as “Fault”.

The state must prove, amongst other things, the unlawful conduct of the accused accompanied by some level of mens rea to secure a conviction. Criminal law does not usually apply to a person who has acted with the absence of mental fault; this is a general rule.

There are different types of mens rea, organised into two categories:

  • Intention (dolus)

An accused is at fault where he intentionally commits unlawful conduct knowing it to be unlawful. It does not matter whether it was his direct intention. Even if his main objective was something else, while he knew that the unlawful consequence would follow, he possesses the necessary intention. It is also enough where the accused foresees the possibility of the unlawful consequence, but still recklessly continues with his conduct. What is required is a purposefully chosen course of action. It has to do with the accused’s state of mind.

  • Negligence (culpa)

Simply put, when a person does not act like the reasonable person would have in the same circumstances, he was negligent.

The test can be summarised as follows:

  • Would the reasonable person, in the same circumstances as the accused, have foreseen the reasonable possibility of the occurrence of the consequence?
  • Would the reasonable person have taken steps to guard against that possibility?
  • Did the accused fail to take steps to guard against it?

If all the above questions were answered yes, the accused was negligent.

Which one of these (intention or negligence) needs to be proved by the state, depends on the specific crime. Murder is a crime of intention, where culpable homicide is a crime of negligence. Let’s say, for example, a person is the driver of a car which collides with a pedestrian, thereby killing the pedestrian. If the court finds that the accused intended to kill the pedestrian, the accused would be convicted of murder. If, on the other hand, the court finds that the accused wasn’t paying enough attention to the road and the reasonable person would have avoided the collision (thereby being negligent), he would be convicted of culpable homicide. The sentence for culpable homicide would be considerably lighter than that imposed for murder.

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15.Murder and culpable homicide: What is the difference?

 

A person is guilty of murder when he intentionally and wrongfully causes of the death of another person. Where the death of another person was wrongfully caused by someone acting negligently, he is guilty of culpable homicide. See the answer on this site which relates to mens rea for an example.

 

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16. Robbery, theft and fraud: What is the difference?

 

Theft

A person commits theft if he unlawfully and intentionally takes property from the owner or lawful possessor with the intention to permanently deprive that person of his rights thereto.

Examples:

  • X walks into his neighbour’s garden and, without his permission, takes the neighbour’s lawnmower with the intention of never returning it. (If his intention was to return the lawnmower at some stage, it is not theft.)
  • X enters a shop, puts a chocolate in his pocket and walks out without paying.

Robbery

Robbery consists of theft of property by intentionally using violence or threats of violence to force the owner or lawful possessor into submission. Robbery is sometimes referred to as "theft by violence"

Examples:

  • X approaches someone on the street, threatens the person with a firearm or physically assaults him to make him hand over his valuables, and runs off with his wallet.
  • Hijackings

Fraud

Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.

When an accused makes a representation about the existence of a fact, which in reality does not exist, and thereby causes or could potentially cause the person to act in a way that is prejudicial to himself, fraud has been committed. The misrepresentation can be a positive act or an omission. It is very important that the fact or facts

SNYMAN, Criminal Law 3RD Edition(1995)

on which the misrepresentation is based, must be ascertainable at the moment when the representation is made.

Examples

  • X completes and signs another person’s cheque without his permission, and presents it for payment.
  • X buys clothing on credit, but never intends to repay the account. Where a person buys on credit, he makes an implied representation that he is willing to pay, that he intends to pay in the future and that he will have enough money to pay.

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17.How soon must I be brought to court after my arrest?

 

Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, must as soon as possible be brought to a police station. As soon thereafter as reasonably possible, he must be informed of his right to apply for bail.1

The arrested person must be brought before a lower court within 48 hours after arrest. If the period of 48 hours expires outside ordinary court hours or on a day the court does not sit, the arrested person must be brought before a lower court not later than the end of the next court day.2

Although an arrested person may not be detained for more than forty-eight hours, the police are not obliged to detain him for the full 48 hours. A detainee is entitled to, even before the expiration of the 48 hour period, arrange a first court appearance in order to bring a bail application. The police, being part of the state machinery, are obliged to assist in making it possible for a court to hear such an application.3

  1. 50(1)(a) and (b) CPA
  2. 50(1)(d) CPA
  3. 50(6)(a)(i); S v Du Preez 1991 (2) SACR 372 (Ck)

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18. What are the different categories of crime?

 

There are a few different ways to categorise crimes.

1. Origin of the crime:

  • Crimes can be created by acts of parliament by passing laws (also called statutes). An example of such a crime is Drunken Driving, which is officially called “Contravention of sec 65(1) (read with section 89(1)) of the National Traffic Act 93 of 1996."
  • Crimes also originate from the common law. The common law is part of our law which originates mostly from Holland and is continuously developed by our courts. Murder, for example, originates from the common law. There is no act or statute which creates the crime of murder.

2. Nature of the crime

  • Some crimes have violence as an element: murder, robbery, assault, rape.
  • Crimes of dishonesty: theft, robbery, fraud, forgery.
  • Crimes of a sexual nature: rape, statutory rape, indecent assault
  • Traffic offences: speeding, drunken driving, parking violations.

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19. What is meant by criminal procedure and why is it important?

 

The criminal procedure is a body of rules and prescribed procedures which governs the enforcement of the country’s laws in prosecuting criminals in criminal courts. It regulates, amongst other things, arrest, bail, the trial, sentencing and procedures of appeal.

Criminal Procedure in South African law is largely contained in the Criminal Procedure Act (“CPA”). The Constitution is also an important source of criminal procedure, as it contains the Bill of Rights. The Bill of Rights entrenches every accused person’s right to a fair trial.

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20. I have a criminal record. Can my lawyer have it expunged?

 

From 6 May 2009 a person may apply, in writing, to the Director-General of Justice and Constitutional Development for the removal of certain entries on his criminal record after 10 years have elapsed since the conviction for that offence and he has in that time not been sentenced to imprisonment without the option of a fine.

The following sentences can be removed:

  1. a postponed sentence;
  2. where the person was cautioned and discharged;
  3. a sentence in the form of a fine only, not exceeding R20 000;
  4. a sentence of corporal punishment before corporal punishment;
  5. any sentence of imprisonment with the option of a fine, not exceeding R20 000;
  6. any sentence of imprisonment which was suspended wholly;
  7. a sentence of correctional supervision, referred to in section 276 (1) (h) or (i); or
  8. a sentence of periodical imprisonment, referred to in section 276 (1) (c).

But not a person whose name has been included in the National Register for Sex Offenders or National Child Protection Register.

All the entries that relates to offences committed in contravention of specified legislation enacted during apartheid and which created offences that were based on race are automatically expunged from a person’s criminal record. Unspecified offences which created offences that were based on race or which created offences, which would not have been considered to be offences in an open and democratic society, based on human dignity, equality and freedom, under the constitutional dispensation after 27 April 1994, the criminal record, containing the conviction and sentence in question, of that person must, on the person's written application, also be expunged.

Nevetec is a Co that specializes in expunging criminal records or obtaining SAPS clearance certificates, and you can read an overview of their services here.

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 21. I have been convicted of a crime. Can I appeal against my conviction?

 

In criminal cases one can appeal against either the conviction or the sentence or both. In most cases, a convicted person must first apply, to the same court that convicted him, for leave to appeal.1 A judge or magistrate must grant leave to appeal if there is a possibility that another court may reach a different conclusion.2

The Criminal Procedure Act prescribes that this application must be brought within 14 days of the finalisation of the case. If such leave is denied, one can apply for leave to appeal by addressing a letter called a “petition”3 to the Judge President of the court to which one wishes to appeal. The petition must be filed within 21 days of the date in which leave to appeal was denied. A court hearing either the leave to appeal application or the petition can do so even if the prescribed time periods were not adhered to if good reasons for the late filing can be given.

A convicted person has an automatic right to appeal only in the following circumstances4:

  • If that person was sentenced to imprisonment which was not suspended, and at the time of the commission of the offence was:
    1. below the age of 16 years; or
    2. between 16 and 18 years of age and was not assisted by a legal representative at the time of conviction in a regional court.
  • If a person was sentenced to life imprisonment by a regional court.
  1. 1Sec 209B of CPA
  2. Shinga v The State & another (Society of Advocates (Pietermaritzburg Bar) intervening as Amicus Curiae ); S v O'Connell & others 2007 (2) SACR 28 (CC)
  3. Sec 309C of CPA
  4. Sec 309(1)(a) of CPA

 

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22. What are some of the valid defences in law that an accused who has been charged with a criminal offence can raise?

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Private Defence (or Self-defence)

A person who is the victim of an unlawful attack upon his person or property may resort to force to repel the attack. Any harm inflicted upon an aggressor in such circumstances is not unlawful. The defence can only succeed if the court finds that the action taken was reasonable in the circumstances.
Requirements:

  • The attack must have already started or must be imminent;
  • The attack must be unlawful. Private defence will succeed against lawful arrest or justifiable punishment;
  • A person may only protect life and limb, property, personal freedom, dignity and sexual integrity;
  • The act of defence must have been necessary to avert the attack;
  • It must be directed at the attacker;
  • The act of defence must be reasonable in the circumstances. It would probably be unreasonable to shoot someone who pulls your hair.

Necessity

This defence arises when a person is confronted with a choice between suffering an injustice and breaking the law. It is regularly used to justify actions in emergencies. One would, for instance, be able to rely on necessity against a charge of speeding when driving a person requiring urgent medical care to hospital.
Requirements:

  • The threat must have already started or must be imminent;
  • A legal interest(not mere financial) must be endangered;
  • The threat must not be caused by the accused ;
  • It must be necessary for the accused to avert the danger in the particular way. One cannot rely on this defence if the threat could have been averted in a less intrusive way;
  • The action must have been reasonable in the circumstances. The accused must do no more harm than what is necessary to protect the interest. There must be proportionality. One cannot, for example, destroy someone else’s car in order to save your own bicycle.

Alibi

An alibi defence is simply the denial of the allegation that it was the accused who committed the crime. This is achieved by calling a witness who states that the accused was somewhere else at the time the crime was committed.

Impossibility

This defence is relevant where it is impossible for the accused to comply with a positive duty placed upon him by law. One may be able to use this defence when you cannot timeously submit your tax return because a disgruntled employee destroyed all your financial records.
Requirements:

  • There must be a positive obligation upon the accused imposed by law;
  • It is physically impossible for any person to comply in the accused’s circumstances, not merely very difficult or burdensome;
  • The impossibility may not be the accused’s fault.

Superior Orders

This defence usually arises in the context of obedience to military or police commands.
Requirements:

  • The orders must come from a person lawfully placed in authority over the subordinate;
  • The subordinate must be under a duty to obey the order;
  • He must have done no more than what was required to carry out the order;
  • The defence is only available when the orders were not manifestly and obviously unlawful. A soldier or policeman can never carry out an order to rape.

Consent

In some circumstances, a victim to what is normally a crime, may consent to such an act, thereby excusing the accused from liability. An obvious example is where an accused is charged with rape, consent by the victim is a defence (provided, the victim is of consenting age, i.e. 12 years old).
Requirements:

  • The consent is recognised by law. A boxer can consent to an opponent assaulting him, even to the point of dying. The defence may also applicable where a doctor cuts the skin of a patient while performing an operation (and strictly speaking assaults the patient). In such circumstances a doctor may rely on the patient’s prior consent. It is interesting to note that South African law does not recognise a victim’s consent to be killed in an act of euthanasia;
  • The consent must be informed and voluntary;
  • The person must be capable of giving the consent. The person must be at least 7 years old, not suffer from mental defect or intoxication.

De Minimus Non Curat Lex

The de minimus rule simply means “the law does not concern itself with trivial matters”. Clearly this defence is not applicable to more serious offences. A court has, for example, acquitted a person who stole a worthless piece of paper. It is also conceivable that a slap on the back would not be seen as assault.

Negotorium Gestio

This occurs where person voluntarily performs an act in the interest of another with the intention of benefiting that other, but without his knowledge or consent. If, for instance, person sees his neighbour’s house burning, he may break the door of the house down in order to save some of the neighbour’s property.

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23. In what ways are minors treated differently to adults by the Criminal Justice System in South Africa?

 

In terms of the Constitution, every child (under 18 years) has, amongst others, the right:

  • to family care or parental care, or to appropriate alternative care when removed from the family environment;
  • to basic nutrition, shelter, basic health care services and social services;
  • to be protected from maltreatment, neglect, abuse or degradation;
  • not to be detained except as a measure of last resort, in which case;
  • to be detained only for the shortest appropriate period of time;
  • to be kept separately from detained persons over the age of 18 years;
  • to be treated in a manner, and kept in conditions, that take account of the child’s age;
  • to have a legal practitioner assigned to the child by the state, and at state expense;
  • A child’s best interests are of paramount importance in every matter concerning the child.

Arrest and Detention Awaiting Trial.
Because an accused person, before conviction, ought to be treated as far as possible as being innocent, arrest should be effected only where it is likely that a summons or written notice to appear would be ineffective. In most cases children are not arrested in the normal sense of the word. The investigating officer in a matter would often arrange with a child’s parent or guardian to bring the child to the police station. If the need arises, however, a child will be arrested like any other suspect.

Any arrested child must, before he is released, be assessed by a probation officer as soon as reasonably possible, but before his or her first appearance in court.

Sec 28 0f Act 108 0f 1996 S v More 1993 (2) SACR 606 (W) 608.

A probation officer is normally a trained social worker in the employ of the state. The probation officer must make a recommendation to the court as to whether the child should be placed in the care of his parent, or be detained in custody. In most cases a child would be kept in a special detention facility known as a “place of safety”. A Child would only be detained in prison in extreme cases.

Trial
Children, especially first offenders, are often not prosecuted for less serious offences. Before commencement of the trial the children can be enrolled in a juvenile diversion programme like one offered by NICRO. An accused who had successfully completed the program would have the charges withdrawn against him.

The general principle is that criminal trials are to be open to the public. When a child is the accused, only the court officials and the child’s parents or guardians may be present at the proceedings. The rest of a criminal trial of a juvenile is the same as for an adult.

Sentencing
The objective of sentencing of juvenile offenders is the desirability of ‘promoting the child’s reintegration and assuming a constructive role in society’.

As a rule of practice, a court must obtain a pre-sentence report from a probation officer or a correctional officer. Such a report is necessary where the accused has committed a serious offence, or where he has previous convictions.

Sec 4B Probation Services Act 16 of 1991

Sec 153(4) Criminal Procedure Act 51 of 1977

Article 40(1) and 40(4) of the Convention on the Rights of the Child The court must exercise its wide discretion sympathetically and imaginatively, to determine a sentence which is suited to the accused, in the light of his personal circumstances and of the crime of which he stands convicted. This entails, firstly, the determination of the most appropriate form of punishment and, secondly, the adaptation of that punishment to suite the needs of the particular accused.

The courts normally adopt as its point of departure the principle that, where possible, a sentence of imprisonment should be avoided.

Child Justice Act 2009
It is expected that the new act will take effect on 10 April 2010. The act aims to establish specialised child justice courts to ensure an appropriate environment for child offenders. New Child Justice Centres will be opened as a “One Stop Shop” for dealing with all phases of a child’s dealing with the criminal justice system. The act regulates the entire process from arrest to appeals. (Click here)

S v Z 1999(1) SACR 427 (E)

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24. How do I protect myself, my legal rights and my property, and avoid being arrested if I have not received my 'new' papers regarding my firearm licence or permit?

 

All law- abiding gun owners must be aware that after midnight on 30 June 2009, all firearm licences, permits or other authorizations ( including storage permits) issued under the 'old' Arms and Ammunition Act ( No 75 of 1969) will be invalid.

From 1 July 2009 therefore, anyone in possession of a firearm without 'new' papers opens himself to being charged with various offences under the 'new' Firearms Control Act, No 60 of 2000. Indeed the SAPS have gone so far as to threaten disciplinary action should their members fail to ( very!) strictly implement the provisions of the Act.

The SA Gunowners' Association has issued guidelines on what law abiding citizens can do, and can be read in full HERE on their website.

 

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25. What is the purpose of sentencing and what are some of the factors that the court considers when inposing sentence?

 

It is quite clear that those convicted of crimes must be dealt with in such a way as to keep public order. There must always be a balance achieved between the interests of the criminal on the one hand, and the interests of the community on the other. The different purposes (or theories) of punishment include the following:

  • Retribution: This is the oldest punishment theory. According to it, the commission of the crime disturbs the balance in the legal order of society and when the offender is punished, balance is restored.
  • Prevention: The purpose of the Prevention Theory in punishment is to prevent crimes being committed. Examples of this theory are life imprisonment, declaration as a habitual criminal, declaration as a dangerous criminal, the deportation of alien citizens to their land of birth and the forfeiture of drivers' licences.
  • Deterrence: According to this theory society is in general deterred by the threat of possible imprisonment. This theory rests on the viewpoint that people choose a trouble-free, rather than a troublesome life and weigh up the advantages and disadvantages associated with every course of action against one another before acting.
  • Reformation: According to this theory the purpose of punishment is to reform the offender so that he may become a normal law-abiding citizen and once again take his place in society. Emphasis is placed on the person and his personal circumstances.

In deciding on an appropriate sentence, our courts make use of the so-called Zinn-triad of factors, which are weighed up against each other. These three factors will be discussed below.

The Personal Circumstances of the Accused

It has been said that the sentence must not only fit the crime, but also the criminal. It is always important to consider the accused’s age, education, previous convictions, domestic circumstances (including dependants) and employment. The fact that an accused shows remorse for his crime (like pleading guilty or co-operating with the police) is in most cases a strong mitigating factor. Someone who, for example, is a young first offender, and is the sole breadwinner for a large family will likely receive a lesser sentence than a person who has many previous convictions and does not contribute to society.

The Nature of the Crime

It is elementary that the more serious the crime, the greater the sentence should be. The “seriousness” of a crime is judged by the outlook of the community. For this reason Parliament expressed its views by prescribing certain minimum sentences which should normally be imposed for certain serious crimes.

Factors like whether the accused was provoked, the absence of serious injuries to the victim, small value of stolen goods, or a good motive (like euthanasia) may serve to lessen the sentence imposed on accused.

Where the crime was committed against vulnerable persons such as women, children or the elderly, such a fact often acts as an aggravating circumstance. So too, where a crime was pre-meditated or particularly brutal.

The Interests of the Community

It is self apparent that the interests of the community should be protected by the imposition of appropriate sentences. The feelings and requirements of the community, the protection of society against the accused and other potential offenders must be considered, as well as the maintenance of peace and tranquillity in the land needs to be taken into account.

 

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26. What are some of the different and maximum sentences that the courts can impose?

 

Section 276 of the Criminal Procedure Act largely codifies the sentencing options available to the courts. A court may generally impose any one or a combination of the following sentences, and wholly or partially suspend the sentence for a certain period, on condition that the offender do not re-offend within the time of suspension.

Imprisonment

This is the most well known form of punishment. A district court can generally impose a sentence of up to 3 years imprisonment, except where a statute provides for a higher jurisdiction. The Drugs and Drug Trafficking Act , for example, empowers a district court to impose up to 25 years. A regional and a high court can sentence an accused to life imprisonment.

Generally, a court may impose any term of imprisonment up to the maximum prescribed by law. In terms of the Criminal Law Amendment Act 105 of 1997, courts are compelled to impose minimum sentences for certain specific crimes, unless it is found that there exist substantial and compelling circumstances which justify the imposition of a lesser sentence.
Examples:

        Life sentence

  • premeditated murder;
  • murder of a law enforcement officer;
  • rape, while inflicting serious injuries;

51 of 1977

92(1)(a) of the Magistrates' Court Act 32 of 1944

Act 140 of 1992

Section 13(f) read with section 17(e)

Sec 51 Criminal Law Amendment Act 105 of 1997

Sec 51(3)(a)

  • rape of a person younger than 16;
  • rape by a person knowing he has HIV/AIDS;
  • rape by a group of persons;

        At least 15 years

  • murder, when not premeditated;
  • robbery with the use of a weapon;
  • hijacking of a motor vehicle;
  • the possession of an automatic or semi-automatic firearm;
  • theft, fraud or forgery involving amounts of more than R500 000,00.

        At least 5 years

  • an offence involving an assault, when a dangerous wound is inflicted with a firearm;
  • housebreaking while in possession of a firearm.

A prisoner may, before his term expires, be released on parole by the Correctional Supervision and Parole Board. A prisoner may only be considered for parole after serving half his sentence, but only after 25 years in the case of a life sentence.

Fines

The Criminal Procedure Act authorises a court, in terms of subsection 276 (1)(f), to impose a fine upon a convicted person.

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27. What is some of the most important legislation governing Criminal law?

The Criminal Procedure Act, Prevention and combating of corrupt activities Act, Prevention of Organized Crime Act, Regulation of Interception of Communications etc Act, Witness Protection Act 1989, Protection of Constitutional Democracy etc act, SA Police Service Act, 1995,  Independant Police Investigative Directorate Act, FICA Act

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