Criminal procedure in South Africa refers to the adjudication process of that country's criminal law. It forms part of procedural or adjectival law, and describes the means by which its substantive counterpart, South African criminal law, is applied. It has its basis mainly in English law.
History When the British occupied the Cape permanently in 1806, they retained the Roman-Dutch legal system. They concluded, however, that the criminal justice system was archaic, and so introduced one based on their own in 1828. It has been developed over the years to suit local conditions.
The South African system today is basically accusatorial: that is, the state accuses and the accused defends. The accusation and its proof are state-driven, with a state-appointed prosecuting authority.
Sources The sources of South African criminal procedure lie in the Constitution, the Criminal Procedure Act, 1977 (CPA), other statute law (for example, the Magistrates' Courts Act, 1944, the Supreme Court Act, 1959 and the Drugs and Drug Trafficking Act, 1992) and the common law. Criminal procedure overlaps with other branches of the law, like the law of evidenceSee Chapter 24 of the Criminal Procedure Act. and the substantive law.See, for example, the Criminal Procedure Act, s 49.
Stages Criminal procedure can be divided into three stages or phases, namely pre-trial, trial and post-trial. These divisions are not absolutely watertight.
Child Justice Act The Child Justice Act, 2008,Act 75 of 2008 in operation since April 2010, has introduced numerous changes to criminal procedure insofar as it affects minors (persons under the age of eighteen). It involves a two-stage trial procedure in a special child justice court.
Methods of getting an accused to court The Criminal Procedure Act, 1977 lists four methods of securing the attendance of an accused person in court.s 38. These bear an important relationship to the constitutional rights of freedom and security of the person,s 12. of freedom of movement and residence,s 21. of access to the courtss 34. and of "arrested, detained and accused persons."s 35. The methods are as follows:
arrest; summons (for lower courts only); written notice in terms of section 56 of the CPA (for magistrates' courts only); and indictment (for the High Court only).
The basic principle of South African criminal procedure is that of access to courts, in accordance with section 34 of the Constitution. There is no general provision for trial in absentia.
Arrest The manner in which arrests are to be carried out is dealt with in section 39(1) of the Act, which provides that arrests may be effected with or without warrant, and which envisages three scenarios:
that the arrestee will submit to custody; that he must have his body touched by the arrestor; or that, if need be, his body must be forcibly confined.
He is then to be informed of the cause of the arrest or, in case of an arrest with a warrant, to be given on demand a copy of the warrant.s 39(2). The effect of the arrest is that the arrestee is in lawful custody.s 39(3).
It is very important that the arrest be effected lawfully. If the arrest is not lawful, resistance or escape by the arrestee will not be unlawful, and the arrestor will have committed an assault.S v Reabow 2007 (2) SACR 292 (E).Sydney v Minister of Safety & Security ECG (CA 115/2009) (Judgment 19 March 2009). Furthermore, subsequent detention would also be unlawful, with the possibility of civil damages.Minister of Law and Order, Kwandebele v Mathebe 1990 (1) SA 114 (A) 122D. The ensuing trial, however, would not automatically be invalid.National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC).R v Jones 1952 (1) SA 327 (E).
Male inhabitants of South Africa, between the ages of sixteen and sixty, are obliged to assist with the arrest if called upon to do so by a police official.s 47. Failure to comply with such a request without lawful cause attracts criminal liability.
Anyone who may lawfully arrest a person and who knows or reasonably suspects that person to be on certain premises may, after audibly demanding access, giving reasons, if necessary break open and enter to search and arrest the suspect.s 48.
Warrant
Without warrant Peace officers—that is to say, police officials and other empowered officials—may arrest without a warrant in the circumstances set out in section 40. The most important of these circumstances are:
when any person commits or attempts to commit an offence in the presence of that peace officer; when the peace officer reasonably suspects any person of having committed a Schedule 1 offence (other than the offence of escaping from lawful custody); when any person has escaped or attempts to escape from lawful custody.
As to "reasonable suspicion," the most important case is Duncan v Minister of Law and Order,1984 (3) SA 460 (T). along with Ralekwa v Minister of Safety and Security,2004 (1) SACR 131 (T). S v Reabow2007 (2) SACR 292 (E). and, more generally, Ramphal v Minister of Safety and Security.2009 (1) SACR 211 (E).
The peace officer may call on the person whom he has the power to arrest, or whom he reasonably suspects of having committed or attempted to commit any offence, or whom, in the opinion of the peace officer, may be able to give evidence of the offence or suspected offence, to furnish his full name and address.s 41(1). Failure to comply with such a request constitutes an offence.s 41(2).
Private persons may arrest without warrant in the circumstances set out in section 42. The following are the most important of those types of person whom private persons may arrest without a warrant:
any person who commits or attempts to commit a Schedule 1 offence in his presence, or whom he reasonably suspects of having committed a Schedule 1 offence;s 42(1)(a). any person whom he reasonably believes to have committed any offence; to be escaping from a person whom he reasonably believes to have the authority to arrest that person for that offence; and to be freshly pursued by that person;s 42(1)(b). and any person found committing an offence on property owned or lawfully occupied by the private person.s 42(3).
As to the question of whether a person who is otherwise entitled to arrest without warrant is obliged to consider whether a less invasive method would suffice to secure the attendance of the accused before court, previously the Appellate Division held that such a person could do so even if there was available a satisfactory but less invasive method of securing attendance. In S v Tsotsi,2004 (2) SACR 273 (E). the court held that such an arrest is unlawful if its objective is to frighten and harass the arrested person to stop a particular conduct rather to bring him to court for trial.
It was recently held that this is no longer the position, and that now the potential arrestor must also consider whether arresting the suspect would be reasonable in the circumstances,Louw v Minister of Safety and Security 2006 (2) SACR 178 (T).Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W).Charles v Minister of Safety and Security 2007 (2) SACR 137 (W).Olivier v Minister of Safety and Security 2008 (2) SACR 387 (W). but the Supreme Court of Appeal (SCA) has since differed from this line of case law, effectively reinstating Tsotsi.
With warrant A magistrate or justice of peace may issue a warrant of arrest on written application of the Director of Public Prosecutions (DPP), a public prosecutor or a commissioned police officer (from the rank of captain upwards).s 43(1). The application must
set out the alleged offence;s 43(1)(a). allege either that the offence was committed within the area of jurisdiction of the magistrate or justice of the peace, or that the person to be arrested is known or reasonably believed to be within that area of jurisdiction;s 43(1)(b). and state that, from information on oath, there is a reasonable suspicion that the person sought has committed the alleged offence.s 43(1)(c).
Warrants are executed by peace officers.s 44. Telegraphic or similar written or printed communication from the magistrate or justice of peace, stating that the warrant has been issued, is sufficient to authorise the peace officer to effect the arrest.s 45.
After arrest After arrest, the arrestee is to be brought to the police station.s 50(1)(a). As soon as possible thereafter, the arrestee must be informed of his right to institute bail proceedings.s 50(1)(b). If an arrestee is not released, he must be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest. The period of 48 hours may be extended in the following circumstances:s 50(1)(d).
If it expires after normal court hours, or on a day which is not an ordinary court day, the period expires at 16:00 on the next court day thereafter. If the arrestee's physical condition does not permit a court appearance, the court may, on application of the prosecutor, supported by a medical certificate, authorise detention of the arrestee at a specified place (such as a hospital) for the purpose of recuperation. If an arrestee is in transit to the court from an area outside the court's jurisdiction, the period expires at 16:00 on the day following that on which he is brought within the court's area of jurisdiction.
The Constitution enshrines this principle.s 35(1)(d).
The term "normal court day" does not cover the situation of periodical courts, which do not sit daily. Authorities are not entitled to keep the arrestee in custody pending the next sitting of a periodical court, if that would mean a longer delay than that permitted in the case of ordinary courts sitting each weekday.Sias v Minister of Law and Order 1991 (1) SACR 420 (E). In such a case, the police would have to take the arrestee to the main court of the district for his first court appearance.
If officials detain a person without lawful authority, the detainee, or someone on his behalf, may bring an interdictum de homine libero exhibendo application, which is a special type of mandamus, to compel his release. In England, this is referred to as a habeas corpus application; that term, indeed, is sometimes used in South African law.Ganyile v Minister of Justice 1962 (1) SA 647 (E).
Bail The purpose of bail is to minimise the impact on an accused's freedom at a stage when he has not yet been convicted.Minister van Wet en Orde en ander v Dipper 1993 (3) SA 591 (A). Bail is governed by Chapter 9, a "complex and interlocking mechanism,"S v Dlamini; S v Diadla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC). of the Criminal Procedure Act, 1977.
As to the question of whether a High Court has inherent power to grant bail, or whether bail release powers are only to be found explicitly in statute, earlier cases inclined to the view that a High Court did not have inherent power to release on bail if a statute law did not give it express power.S v Kaplan 1967 (1) SA 634 (T).Chunilall v Attorney-General, Natal 1979 (1) SA 236 (D). More recently the courts have inclined to the view that they do have an inherent, common-law power to release a person on bail even if there is no statutory provision permitting it.S v Hlongwane 1989 (4) SA 79 (T).S v Hattingh 1992 (2) SACR 466 (N).S v Malcolm 1999 (1) SACR 49 (SEC).S v Tsotsi.