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Chapter 5 - COURTS AND COURT CASES

The criminal courts and criminal cases

Criminal cases must follow certain laws and rules. These are referred to as criminal laws and procedures. They define what must happen before a case gets to court, the role and powers of the police in this process, what happens in court and what happens at the end of the court case.

See Polices

Criminal Charges

What is a criminal charge?

A criminal case can be brought against anyone who has broken the law. This includes a member of the police (SAPS), or soldiers in the defence force (SANDF). If you are unlawfully assaulted by a member of these security services, you can lay a criminal charge against the person. If you have laid a charge against a member of the police, they are sometimes reluctant to take the complaint or investigate the case. Likewise with cases which they don’t think are very important, they may refuse to take the complaint or the police investigation is stopped without a proper explanation. The police cannot refuse to take a statement from a person who wishes to lay a complaint. In the event that a police officer refuses to assist you with a charge, you can ask to speak to the Station Commander or lay a charge at a different police station. Pressure from attorneys or the community can help to get the police to take an investigation more seriously. You can also get your Community Police Forum to take up the issue or you can refer the complaint to the Independent Complaints Directorate

See Community Police Forums.

See Reporting a case of police misconduct to the Independent Complaints Directorate.

In a case where you have been assaulted or raped, you must be able to identify the person who assaulted or raped you.  If you do not know the name but you remember the face, you must be prepared to point the person out at an identity parade. Even if you cannot identify the person by appearance or name, you must still lay a charge because there are other ways to positively link a person to crimes of rape and assault, such as DNA testing or other forensic evidence available to the police. Immediately after the rape, go to a police station and get a J88 form. Do not wash or change your clothing, go straight to a doctor for an examination.

Remember that if you have laid a charge against someone and the person is charged, you will have to give evidence in court. You must be very sure of the facts that you give to the police in your statement because the defence will cross-examine you and try to catch you out.

Only the courts can decide if you or anyone else has committed a crime or not. If the court finds you guilty of committing a crime, then you have to pay a fine, or go to jail or get a suspended jail sentence.

The National Prosecuting Authority

The National Prosecution Authority (NPA) is responsible for instituting criminal proceedings against a person on behalf of the State.  It is the NPA that decides whether a case against a person is strong enough to go ahead in a criminal court or not.

The Office of the National Director of Public Prosecutions, includes the National Director, who is the head of the Office and manages the Office, Directors of Public Prosecutions,  Investigating Directors and Special Directors.

There are 7 units that fall under the NPA:

  • National Prosecution Services (NPS)
  • Asset Forfeiture Unit (AFU)
  • Sexual Offences and Community Affairs (SOCA)
  • Specialised Commercial Crime Unit (SCCU)
  • Witness Protection Unit (WPU)
  • Priority Crimes Litigation Unit (PCLU)
  • Intetgrity Managegment Unit (IMU)
  • Corporate Services (CS)

What are your rights if you are criminally prosecuted?

  • You must be told what the charge is against you.
  • You have the right to a quick and public trial. You must be charged and taken to court within 48 hours after your arrest.
  • You have the right to a trial by an unbiased court, usually in the area where the crime was committed.
  • At the trial you have the right to question any witnesses and the evidence used against you.
  • You have the right to ask for a lawyer. If you cannot afford a lawyer, the state must help you to apply for Legal Aid to pay for a lawyer. You have a right to Legal Aid if you face a serious charge.

Many people are still sentenced to go to prison without being defended by lawyers. Make sure you ask the court for a lawyer or Legal Aid.

If you are denied any of these rights, you may be able to take the Court's decision on review.

See Applying for Legal Aid.

Laying a criminal charge against another person

Steps in laying a criminal charge against someone else

1. Go to a doctor. 

If you were injured in any way, go to a doctor for a medical check-up. You may need medical treatment, plus it will be good for your case to have medical records to prove your injuries. It is important to go as soon as possible, because the marks from the injuries may go away after a few days. Go to your own doctor or to a government doctor (called a district surgeon).

2. Report at the charge office

Go to the charge-office at the nearest police station to make a complaint. You may want to go with a friend or someone like a priest, teacher or social worker to help you.

3. Make a statement to the police.

The police will take a statement from you. You must be very careful what you say because you have to swear under oath that you are speaking the truth. Do not sign your statement if you are not happy with the way the police wrote it down. Ask to change it before you sign.

It is not up to the police in the charge office to decide whether a complaint is serious enough to be investigated. They MUST take a statement from anyone who comes into the police station to make a complaint.

4. Ask for a copy of the statement.

After you have made your statement, ask for a copy of it before you leave the charge-office. You have the right to get a copy.

5. Get the police case reference number.

Ask for the police reference number. This is the police register number where they are supposed to keep a record of all complaints made at the charge office. This is your proof that you reported the crime to the police. The reference number is also called an OB number (Occurrence Book number) or VB-nommer (Voorvalleboeknommer).

6. Get a medical report.

If you are injured and you need medical treatment, the police will ask you to get a medical report form filled in. This form is called a J88 medical report.

You can go to your own doctor or to a government doctor (called a district surgeon) to get this form filled in. Then you must take the filled-in form back to the police in the charge office. If you can, it is a good idea to make a copy of the filled-in form and keep this copy for yourself.

7. A case docket is opened.

After you make a statement to the police, they must open a case docket, and investigate a criminal charge against the person or people who committed a crime against you.

8. Check on progress.

You should check up a week or two after you made the statement to see what is happening with your case. Ask for the name of the investigating officer and then speak to that person. Ask the investigating officer for the case docket number. This is called a CR number (Criminal Register number) or MR nommer (Misdaadregisternommer).

Keep phoning the police to find out whether any progress has been made with the case. Whenever you phone to check up, you should give the CR/MR reference number.

If there is no progress with a serious case, and you are not satisfied that the police are doing everything they are supposed to, you might want to ask a paralegal or attorney to phone on your behalf. If you believe the police are deliberately not investigating a case, for example of police corruption or assault by a police officer, you can make a complaint to the Independent Complaints Directorate.

See Reporting a case of police misconduct to the Independent Complaints Directorate.

What happens if someone lays a criminal charge against you?

The investigation

If someone makes a charge against you, or if the police suspect that you committed a crime, then they will investigate. Usually this means that they ask questions, visit places, search for things, and so on.

Charge and arrest

When the police have enough reasons to think that you committed the crime, then they will charge you. The charge is what they say you have done.

The police may arrest you when they charge you. Sometimes they may even arrest you before they charge you.

If you are arrested but not immediately charged, the law says you must be brought before a Magistrate's Court within 48 hours of being arrested.

You can immediately ask to contact a lawyer. If you appear before a Magistrate you may ask for Legal Aid to get a lawyer.

Prisoner's Friend

If you do not have a lawyer then you can ask for the Prisoner's Friend as soon as you get to the court. Every Magistrate's Court has a Prisoner's Friend. This person is employed by the state to help people with telephone calls, organising bail money, organising witnesses, and so on. At smaller Magistrate's Courts, a court official called the Clerk of the Court may also be the Prisoner's Friend.

Statements

When you are charged with a crime, the police usually try to take a statement from you. But you only need to give your name and address. You do not have to give any other information to the police if you do not want to. If you make a statement, try not to say things that you may regret later. Your statement can be used against you in court. The police may not put pressure on you to make a statement. The police may not assault or torture you to get a statement.

See Rights of arrested people.

Bail

After your arrest you can be released in the following ways before the court case is over:

  • you can be released into the care of your parents or guardian, if you are under 18 years old OR
  • you can be released with a warning to appear in court on a certain date or
  • you can be released on BAIL

Bail is money paid to the court or to the police. If you pay this money you can go home until the date of your court case.

When your court case is over, you get the bail money back, even if you are found guilty. But you will not get your bail money back:

  • if you do not come to court on the day of your court case
  • if you interfere with any witnesses
  • if you break any of the conditions of bail

If you are released on bail, then you will get a written notice. This notice will tell you where the court is. It will show the day and the time that you must be in that court. And it will also show any conditions, for example, that you must report every week to the police station.

There are three kinds of bail:

  • police bail
  • bail by certain prosecutors
  • court bail

Police bail

You can ask the police for bail as soon as you have been arrested and taken to the police station. If they agree, they will decide how much bail you must pay. You must pay the money in cash. You must get a receipt saying how much you paid and when you must appear in court. When you have paid the bail the police must release you.

If the police will not agree to police bail, you must wait for the court hearing. In court you can ask for court bail.

The police cannot grant bail if you were arrested for a serious crime, for example rape, murder, armed robbery, housebreaking, etc.

Bail by certain prosecutors

For some of the serious crimes, a prosecutor can agree to bail. You must ask the police to contact the duty prosecutor to check whether you can get bail.

Court bail

When you are brought to court, the court case usually does not finish on the same day. You have a right to ask the court to be released on bail until the case finishes. You can ask for bail at any time on or after the first day in court.

When you ask for bail you must convince the judge or magistrate that:

  • you will not run away
  • you are not a danger to other people
  • you will not commit further crimes
  • you will not intimidate any witness in the case
  • you have a permanent address

If you ask for bail you (or your attorney) must give the court details such as where you live, your employment situation, if you have a family to support, how much money you earn and so on.

Any person can pay the bail money. It can be a husband or a wife, a relative, a friend or an organisation.

When you pay the bail you must get a receipt. Only the person with a receipt for the bail will get the money back after the trial.

The Criminal Procedures Second Amendment Act

The Criminal Procedures Second Amendment Act (also known as the Bail Law) includes a number of strict measures regarding bail for people accused of serious offences. The Act lists very serious offences (schedule 6 offences) which include murder, rape, armed robbery and vehicle hijacking, and makes it very difficult for people who are accused of these offences to get bail. The accused will have to prove that exceptional circumstances exist before bail is granted. For Schedule 5 offences, like robbery with aggravating circumstances, drug-dealing, arms-dealing, corruption, fraud, theft or forgery of large amounts of money, the onus will be on the accused to prove that he/she should get bail. If an accused is charged with a Schedule 5 offence, and has been previously convicted of a schedule 5 or 6 offence, bail will not normally be granted.

This is done in a bail hearing at court, where the accused will bring evidence to show why he should get bail, and the prosecutor will ask the investigating officer to provide reasons why the accused should not get bail, for example, that the accused will intimidate witnesses.

According to this law, bail applications for Schedule 5 or 6 crimes will now only be heard in Regional Courts. These cases can also not be heard outside of court hours (in other words, there is no night court). Bail can also be refused when an offence has caused community outrage although this can only happen in exceptional circumstances. Finally, a person accused of a Schedule 5 or 6 crime must disclose all previous convictions and outstanding charges against them at the bail application and they will not have the right to have access to the police docket during the bail hearing. This will help to stop the intimidation and victimisation of witnesses in court cases.

CHART: Steps in a criminal court case

The first day

Before the criminal trial begins, you must appear in court and the prosecutor tells you what the charges are. The Magistrate will then ask, if you understand the charges, and whether or not you would like an attorney or if you would like Legal Aid to assist you. If you need an attorney you should ask for a postponement to enable you to get someone to represent you and prepare your case. The court should always ask you whether you want an attorney. You or the prosecutor can ask for a postponement if there are good reasons, for example:

  • to have time to find an attorney
  • to prepare the case
  • to contact witnesses

So, on the first day in court you can ask for bail if you are under arrest and you can ask for a postponement of the case. You should also tell the magistrate if you were assaulted by the police or if the police put any pressure on you to make a statement

The plea

Before the trial begins the Magistrate asks you to PLEAD. This means that he or she asks you to say whether you are 'guilty' or 'not guilty'. Do not plead 'guilty' unless you are sure that:

  • you did what the prosecutor says you have done AND
  • you did not have a good reason to do what you have done.

You will plead 'not guilty' if:

  • you did not commit the crime OR
  • you did what people said you have done, BUT you had a good reason for doing it. This reason will then be used in your defence.

If you can prove a defence, the court may decide that you are not guilty of the crime you are charged with or that you are guilty, but that your reasons show you should get less punishment. These reasons are then called 'mitigating factors'.

If you plead 'guilty' the magistrate will ask you some questions to be sure that you understand the charge. If your answers make the magistrate think that you have a defence, then the magistrate must change your plea to 'not guilty'. If the magistrate accepts your plea of guilty, then she or he will decide that you are 'guilty as charged'. There is no need for the trial to continue. Your next step will be 'plea in mitigation'.

See Evidence in mitigation.

If you plead 'not guilty' the magistrate must ask you more questions. This is to find out what your defence is.

The trial

If you plead 'not guilty' or the magistrate changes your plea to 'not guilty', then the trial must go ahead. The prosecutor presents the state's case to try to show that you are guilty.

The state presents its case

The state prosecutor presents the state’s case to try to show that you are guilty. The prosecutor calls witnesses for the state to give evidence against you. You or your attorney and the magistrate can also question each state witness. This is called cross-examination. The prosecutor can then question the witnesses again. This is called re-examination.

After the prosecutor has called all the state witnesses he or she closes the case.

Now it is your turn (the accused) to present your case

Discharge

If there is not enough evidence to show that you committed the crime you are accused of, then you can ask for a discharge. This means you ask the court to set you free. If the magistrate agrees that there is no case against you, then a discharge will be given. But if the discharge is not given, then the case will go on.

The case in your defence

The magistrate or judge will ask you or your attorney if you want to give evidence, and if you want to call witnesses. Sometimes it is not necessary for you to give evidence yourself but if you decide not to, the judge or magistrate might think that you are trying to hide something. All evidence is given under oath. After you have given evidence (if you choose to), you or your attorney can now call your own witnesses. Your witnesses are people who can give the court information to show that you are not guilty. The prosecutor and magistrate can then cross-examine each witness. You (or your attorney) can then re-examine each witness. After you or your attorney have called all the defence witnesses you 'close the case' for the defence.

Argument

The prosecutor then sums up the state's case and gives reasons why you should be found guilty.

You or your attorney go over the main points of your defence, and summarise why the court must find you not guilty.

Judgment

After listening to both arguments, the magistrate or judge will say if the court finds you guilty or not guilty. The court may postpone the case to give the judge or magistrate time to think about the judgment.

You can only be found guilty of a crime if the state proves that you are guilty 'BEYOND A REASONABLE DOUBT'. This means that there must be NO DOUBT in the court's mind that you are guilty.

If the court finds you 'not guilty', then you are acquitted. This means you are free to go. If you paid any bail money, you can now ask to get it back.

Evidence in mitigation

If the court finds you 'guilty', then you get a chance to ask the court for your punishment to be lighter. This is called 'evidence in mitigation'.

These are things that can help you to get a lighter sentence:

  • if you are very sorry
  • if you did something to correct the wrong, for example, if you gave back something you stole
  • if you are younger than 18
  • if it is your first offence
  • if many people depend on you for support
  • if you have other responsibilities, for example, a job
  • if it can have a bad effect on you to be in prison, or to have a very heavy punishment, for example if you have health problems

Case study
The court case of Sergeant Mandisi Mpengesi was heard in the Cape High Court. Sergeant Mpengesi was charged with the murder of his six year old daughter's alleged rapist. He pleaded in mitigation that he had always been very committed to his work which involved helping people whose children had been molested and raped. He said he only took the man's life because of what this man had done to his daughter, and that he had only acted in a way any parent who loved his child would have done.

Sergeant Mpengesi was sentenced to 9 years imprisonment. There was an outcry from the public who thought that there were strong mitigating factors which should have helped him get a lighter sentence.

Sentence is given

The magistrate or judge will now say what your punishment will be. This is called your sentence. It can be:

  • a prison term
  • a fine
  • a community service order
  • any of these together
  • a caution and discharge
  • for children under 18, the sentence can be admittance to a reformatory; or the passing of sentence can be postponed until the person turns 18
  • correctional supervision: this means serving your sentence outside prison under the supervision of a 'correctional official'

Minimum sentences

The Criminal Law Amendment Act lays down harsh, and minimum, sentences for people who would previously have received the death sentence. The court has to give you at least the sentence laid out in the Act for the specified offences.

Maximum sentences

If a law says that the maximum punishment for a particular crime is 6 months or R600, the court does not have to sentence you to these maximum amounts. The sentence can be anything up to these maximum amounts.

Alternative sentences

If you are found guilty the court might sentence you to a fine OR imprisonment. So sentences can be given 'in the alternative'.

Suspended sentences

The court may sentence you to a period in prison but suspend all or part of the sentence. This means that the court says that you will not be punished on condition that you do not commit a similar crime over a certain period of time. The court gives you a chance to show that you will not do the same thing again.

For example, the court may sentence you to 1 year in prison but suspend this sentence for 3 years. This means that you do not have to go to prison now, but if you are found guilty of committing the same or a similar crime in the next 3 years then you will have to go to prison to serve your sentence of 1 year. You will also get an additional sentence for the new crime you committed.

Example
You are found guilty of ordinary assault and sentenced to 3 years in prison. Two of these years are suspended for 5 years. So you serve 1 year in prison. After that you are released. Your sentence is suspended for the next 4 years.

If you are charged and found guilty of assault in the next 4 years then you will have to go to prison to serve out the rest of the first sentence which is another 2 years. This will be in addition to the new sentence you might get for the second assault.

Review or appeal against a sentence

You can ask for permission to appeal against the decision of the judge or magistrate if you don't agree with the judgment. You can also ask for a review if you think there were any irregularities during the trial.

See Trials, appeals and reviews.

Parole

If you have served more than half your sentence and have behaved well in prison, you may be released on parole. Parole means you can be released from prison before you have completed your sentence, on condition that you do not misbehave when you are out of prison. Your sentence still runs, but you do not have to stay inside prison as long as your behaviour is good. If your behaviour outside prison is not good, you go back to prison for the rest of your sentence.

The Parole and Correctional Supervision Amendment Act extends the powers of the courts to make sure that a prisoner serves a compulsory period of his/her sentence before they can be considered for parole. It provides for Parole Boards to be established which will be made up of members of the community and representatives from all stakeholders in the criminal justice system. Parole Boards have the authority to control the release of prisoners on parole.

Having a criminal record

If the court finds you guilty, you will have a criminal record for the rest of your life. If you are ever charged again for anything else, the state will check your criminal record. Sometimes, if you are looking for a job, people will also check if you have a criminal record.

If you are not guilty of the crime that you have been charged with, you must enter a plea of ‘not guilty’ and not be intimidated into agreeing that you will plead guilty in exchange for a very light sentence.

Dealing with organised crime – the Prevention of Organised Crime Act

The Prevention of Organised Crime Act (No 121 of 1998) contains far-reaching measures to deal with the problem of organised crime in South Africa.  This is a summary of the main sections of the Act.

It is a crime to manage any organisation whose members are committing serious crimes.

This section is aimed at people like gang bosses who are in a position of authority over those who are committing the crimes. This can lead to a sentence of up to 30 years. It is not necessary to prove that they were directly involved in committing a specific crime.

Any person who receives or owns property from illegal activities will be guilty of an offence. The state only has to prove that they 'ought reasonably to have known' that the property comes from an illegal activity.

The state can seize any asset (material thing that belongs to you) that has been used to commit a crime or that has been obtained through crime.

This section allows the state to seize criminal assets without first having to find the owner guilty beyond a reasonable doubt (the normal test in a criminal case). For example, where the state believes that drugs are being sold from a particular house, the state only has to prove that there is a 51% chance that the house is used to sell drugs. No one has to be convicted (found guilty) of drug dealing before confiscating the house. It is not necessary to prove that the owner of the house was involved in the crime or even knew about the drug dealings.

The state can confiscate assets that:

  • have been used to commit a crime, for example, a car used to transport stolen goods, a house from which drugs are sold, or a bank account used to hide dirty money
  • have been gained from the unlawful activity

The Asset Forfeiture Unit is responsible for carrying out the work involving seizure of assets under the Act. The Asset Forfeiture Unit works from the office of the National Director of Public Prosecutions.

The Act makes it a crime to recruit members to a gang or participate in criminal gang activity.

The Act sets penalties for people like gang bosses with sentences of up to 30 years in prison or fines of R10 million rand, in addition to losing property that they have gained through gang-related activities.

Any person who promotes or helps in criminal gang activity will be liable for a sentence of up to 3 years and any person recruiting, advising or helping someone to join a gang can go to prison for 2 years.

The Child Justice system

The Child Justice Act 75 of 2008  is part of a process of reforming the youth justice system in South Africa to deal in a more complete way with children accused of committing offences. The Act  covers the procedures that people in authority must follow from the time the child is arrested until the moment when the sentence is passed, and aims to protect children's rights. The Act  also follows the restorative justice approach towards children accused of committing crimes. This approach means 'to promote reconciliation, restitution and responsibility through the involvement of a child, the child's parent, family members, victims and communities'. Reconciliation means bringing the parties together to resolve the matter and reach agreement on how the child should be punished. Restitution means putting the child back into his/her own environment.

How the child justice system will work according to the Child Justice Act

This is a short summary of the most important parts of the Bill.

The Child Justice Act: How the Child Justice system will work

Age and criminal capacity

The Act says that:

  • the minimum age of prosecution should be 14 years
  • children below the age of 10 cannot be prosecuted

Children between the ages of 10 and 14 are presumed not to have the capacity to understand the difference between right and wrong, and to act according to this understanding. But, if it can be proved that the child did understand the difference then he or she can be presumed to have had the capacity.

Using diversion

Diversion means finding an alternative way for criminal offenders to 'pay' for their crimes, so that they don't have to follow the normal court procedures and end up in prison and with a criminal record. Diversion focuses on rehabilitating people back into their communities, and so diverting them away from the formal court procedures. Types of diversion programmes include attending a life-skills course, doing unpaid work in the community, or paying back the victim of a crime.

The new child justice system promotes the use of diversion of cases away from the formal court procedures. The Child Justice Act says:

  • there must be an assessment by the probation officer of the child within 48 hours of the child's arrest
  • there must be a preliminary inquiry held by a district magistrate within 48 hours of the child's arrest and before his/her plea

The Act sets out three levels of diversion which cover different types of diversion programmes. The probation officer can make recommendations about which diversion programme a child should be sent on.

Establishing One-stop Child Justice Centres

The Act says a One-stop Child Justice Centre can be situated anywhere but not in a court or police station. These centres provide:

  • offices for police and probation officers, attorneys representing children, people providing diversion and prevention services, people who trace families of children
  • temporary accommodation for children who are waiting for the outcome of the preliminary inquiry
  • a Children's Court to hear children's court inquiries
  • a Regional Court

The role of the magistrate who presides over a case involving a child is:

  • to make sure the compulsory assessment has been completed
  • to make a decision about whether the matter should be diverted, or transferred to a Children's Court for an inquiry, or prosecuted

The magistrate has to decide where to place a child. Magistrates can only make informed decisions about children if they work closely with their families, NGOs, welfare agencies, community members and others during the preliminary inquiry.


Police

Powers of the police to question

If you are driving a car, motorcycle or other vehicle the police can ask you to stop at any time, give your name and address and show your driver's licence.

If you refuse to do any of these things, you can be charged.

The police can ask you to produce your ID book at any time and you must do this. They can question anyone without arresting them. But whether a person has to answer the police's questions depends on the circumstances.

The police may ask you to give your full name and address if they:

  • suspect you of committing a crime
  • suspect you of trying to commit a crime
  • think that you might be able to give them some information about a crime

But you can ask the police officer for his or her identity document. If the police officer refuses, you need not give your name and address. If the police officer produces his or her ID then you must give your name and address. It is a crime not to give your name and address. You can get a fine of R2 500 or 3 months in prison if you refuse.

See Problem 7: Refusing to give your name or address to the police

If the police officer asks you any other questions it is your right not to answer these questions. It is also your right to say that you will only answer other questions if your attorney is present. The police might ask you to go to a police station to make a statement. You have the right to refuse to go. But the police may then decide to arrest you. You must then go to the police station with them, but you still have the right to refuse to make a statement, even if you are under arrest.

See Powers of the police to arrest

Powers of the police to search and seize

You have a right to keep your body and property private. But sometimes the police need to collect evidence against criminals. So the police are allowed to search you in some cases. They can take things away which is called seizing.

There are two ways of searching and seizing property. These are:

Search with a search warrant

The police must get legal permission for a search. A search warrant is the legal permission for a search. It is usually signed by a magistrate. It must describe the person or the place to be searched and the things which the police will seize.

The police must carry out the search by day unless the warrant says they can search at night.

The police can only search the people and property mentioned in the warrant and they can only seize the things mentioned in the warrant.

If the police are about to search you or seize your property, you can demand to see the search warrant.

A special type of search warrant can be issued allowing the police to enter any place or premises if they think that a meeting held on the premises threatens state security, or if they think that any offence was committed or planned on the premises.

Search without a search warrant

The police do not need a search warrant to search if:

  • you agree to let them search you
  • the police have reasonable grounds for thinking that a magistrate would issue a warrant, but that the delay in getting the warrant would give you time to get rid of the evidence
  • you are arrested
  • the search is at a roadblock "but they must still have reasonable grounds for thinking that a magistrate would issue warrant’
  • the police suspect that you have drugs or dagga, illegal liquor, guns or ammunition or stolen crops or animals with you
  • the police reasonably suspect you have information that can help an investigation Then they can enter your property to question you, but they must always first ask for your consent to search or enter your property.

The police can use force to enter premises if you refuse to allow them in and they asked you if they could enter.

A policeman can only search men NOT women. Women can only be searched by policewomen or any other woman that the police ask to do the searching.

If your premises is unlawfully searched or if you are abused during a search, you can sue the government. You can also sue the government, if the police damaged any of your property unnecessarily.

If the police get evidence against you by going against any of your rights, the court may refuse to hear that evidence.

See Problem 10: Police misconduct

Powers of the police to arrest

The law says that the police can only arrest you if:

  • they want to charge you and take you to court or
  • if you are a suspect in a police investigation

An arrest for any other reason is unlawful. For example, if the police arrest you just to scare you, this is unlawful. An arrest is also unlawful if the police do not obey the rules about arrest.

If the police arrest you, you can usually pay bail money to the police or the court, and go home until the date of your court case.

Arrest: general rules

There are two ways in which the police can arrest you:

  • with a warrant of arrest
  • without a warrant of arrest

Arrest with a warrant

A warrant of arrest is a piece of paper that says the police have the power to arrest you and take you to court.

Usually a magistrate signs the warrant. But a police officer of the rank of lieutenant or higher can also sign an arrest warrant.

The police must show you the warrant if you ask to see it. And they must give you a copy of the warrant if you ask for a copy.

Arrest without a warrant

Sometimes the police can arrest you without a warrant. Here are some examples of when this can happen:

  • if you escape, or try to escape, after the police arrested you earlier
  • if the police catch you while you are committing a crime
  • if the police think you committed a serious crime like murder, rape, serious assault, housebreaking, and so on
  • if the police think you committed a drug or liquor offence
  • if the police find you at night, doing something that makes them think that you are about to commit a crime or have already committed a crime
  • if the police think you have not paid a fine which a court ordered you to pay
  • if you try to stop the police from doing their duty
  • if the police think you have guns or ammunition without a licence
  • if you are carrying any other dangerous weapon and you can't give a good reason to the police
  • if the court said you must go to prison for certain periods, for example every weekend, and you do not go
  • if the police think you broke the conditions of a suspended sentence

Making a lawful arrest

There are three things the police must do to make an arrest lawful:

  • The police must tell you that you are under arrest.

Sometimes the police ask you to go with them to the police station without saying that they are arresting you. If you go with them voluntarily, then they do not have to arrest you. It is your right not to go with them unless they arrest you.

  • The police must have physical control over you when they arrest you.

This means the police must make sure you can't get away. If you do not try to run away, the police do not have to use force to control you. But if you do try to run away, the police can use reasonable force to keep control of you, in other words only as much force as is necessary.

  • The police officer must tell you why you are under arrest.

This means the police must tell you what offence they think you have committed.

But if the police catch you while you are committing an offence, then they do not have to give you details about why they are arresting you, because you already know why.

Unlawful arrest

Here are some examples of unlawful arrest:

  • if there was no good reason to suspect that you committed an offence
  • if the purpose of the arrest was not to charge you but just to scare you
  • if the police officer did not tell you that you were under arrest, and you were not caught while committing an offence

Using force to make an arrest or to stop you escaping from arrest

The law says that when the police make a lawful arrest, they can use force if you try to fight or run away. The law says that the amount of force must be just enough to stop you fighting or running away.

The Criminal Procedure Act includes the right for police (or someone entitled to make an arrest) to ‘shoot to kill’ in certain situations. Section 49(1) of the Act deals with the use of force to carry out an arrest.

Section 49(2) says that ‘deadly force’ may be used in certain circumstances to carry out an arrest. The ‘shoot to kill’ clause was challenged in the Constitutional Court because it was held to go against a person’s right to life [section 11 of the Bill of Rights] (as well as their right to human dignity [section 10] and bodily integrity [section 12 of the Bill of Rights]).

See Problem 8: Police shoot and injure while making an arrest

In the case of S v Walters (May 2002) Mr Walters and his son had been charged with murder after they shot a suspect running away from their bakery one night in Umtata. The state (the prosecution) said Mr Walters had no right to kill a suspect in the process of carrying out the arrest.

The Constitutional Court analysed the right to use force, including the use of a firearm, given by section 49 to people making an arrest. The judges of the court had to look at balancing peoples’ right to life, dignity and bodily integrity and the interests of a just criminal system.

The Court found that section 49(1) must be interpreted to exclude the use of a firearm unless:

  • the suspect is threatening to harm the person arresting him or her or someone else, or
  • the suspect is suspected of having committed a serious crime involving or threatening harm to a person.

The Court found that the provisions in section 49(2) allowing the use of ‘deadly force’ for arrests were too wide and were therefore unconstitutional. For example, using ‘deadly force’ in the case of a person caught shoplifting would not be justifiable.

The court summarised the main points regarding the use of force to make arrests under this section:

  • force can only be used where it is necessary in order to carry out the arrest
  • where force is necessary, then the least amount of force to carry out the arrest must be used
  • when deciding what degree of force is reasonable and necessary, all the circumstances must be taken into account including:
  • the threat of violence from the suspect to the arrestor or someone else, and
  • the nature and circumstances of the offence committed by the suspect (the force must be proportional to the offence)
  • Shooting a suspect for the sole purpose of making an arrest is only possible in limited circumstances, for example when
    • there is a threat of violence from the suspect to the arrestor or someone else
    • the suspect is suspected of having caused someone serious harm
    • there is no other reasonable way of carrying out the arrest, at that time or later
    • the arrestor is acting in self-defence or in defence of any other person

In April 2011 police allegedly used excessive force when they beat and shot dead Andries Thatane who was participating in a peaceful service delivery demonstration in Ficksburg. The police who used rubber bullets were said to be acting on instructions from the Commander. Eight police officers have been arrested, two of them on murder charges. The case is still under investigation.

Unlawful use of force

Here are some examples of unlawful use of force:

  • if the arrest itself is unlawful, any force that the police use is unlawful
  • if you did not try to fight or run away, and the police used force in making the arrest
  • if the police used more force than necessary

Arrest by an ordinary person

This is also called a citizen's arrest. Any ordinary person, for example, a farmer, can arrest you, without a warrant of arrest, in these cases:

  • if you committed a serious offence, or the person suspects that you committed a serious offence
  • if the person is reasonably sure that you committed an offence and you try to run away when he or she tries to arrest you
  • if you are fighting
  • if the person thinks you went into any fenced land, or a kraal shed or stable, intending to steal crops or animals
  • if the person finds you with some animals or crops which he or she suspects that you stole, and you can't explain why you have them
  • if the person is in charge of premises, or is the owner, he or she can arrest anyone who commits an offence on the premises

You are also an 'ordinary person'. You can arrest other people in the above cases too. For example, someone snatches your bag in the street. You chase after them and catch them. You can lawfully arrest the person.

Rights of arrested people

If you are arrested, Section 35 of the Constitution lists your  rights which are:

  • From the time of arrest, you have a right to see your lawyer. The police sometimes tell you that you can only see your lawyer after you have been charged, but this is not what the law says.
  • The police officer must take you to a police station as soon as possible, unless the warrant of arrest says they must take you to some other place.
  • You do not have to answer any questions, except you must give your name and address. It is best not to say anything else to the police until you speak to your lawyer.
  • While you are locked up in a cell, you have the rights to:
    • have family visits
    • see a minister of religion (usually this is a minister working for the government)
    • see a doctor (usually this is a government doctor, the district surgeon or a prison doctor)
    • wear your own clothes
    • exercise for at least one hour a day in the open air
    • write and receive letters
    • get enough properly prepared food and drink
  • The police must take you to court within 48 hours after your arrest.

If the 48 hours ends after 4 pm on a weekday, then they must take you to court on the next day, before 4 pm. If the 48 hours ends on a weekend or a public holiday, then they must take you to court on the first court day, before 4 pm. This is usually the next Monday, unless the Monday is a public holiday. If this does not happen, then it is unlawful for the police to keep you in prison. You can sue the police.
If the police get evidence against you by going against any of your rights, this evidence will not be allowed in court.

What to do if you are arrested

  • Do not struggle with, or swear at, the police - even if the police made a mistake.
  • Give the police your name and address - otherwise keep quiet. You must also show your identity book if they ask for it. Do not discuss your case with anyone and do not sign any statements about your case. If the police officers insist that you sign a statement, ask them to let you read it, if it is written in a different language, ask them to interpret it for you. Ask them for a copy of the statement.
  • As soon as possible after you arrive at the police station, say that you would like to see a lawyer. If you do not know a lawyer, then ask to see your family. Ask them to get you a lawyer. If you cannot afford a lawyer, ask your family to apply for Legal Aid for you.
  • If you are released on police bail, ask for your bail receipt and find out when you are due in court. Never be late for, or miss, a court hearing. If you do not arrive in time, a warrant for your arrest may be issued. You may also lose your bail money if you do not go to court on the day of the court hearing.
  • Do not talk about your case to anyone except your lawyer - if you have one. Ask for your lawyer to be present if you are questioned or told to attend an identity parade.

An identity parade is when you and some other people are called to parade in front of a witness, who is asked to identify the person who committed the crime against them.

Reporting a case of police misconduct

The Independent Police Investigative Directorate Act, No 1 of 2011

The Act provides for the establishment of an Independent Police Investigative Directorate (IPID) which is an independent police complaints body that must investigate any alleged complaint of misconduct or offence commited by a member of the police service. The IPID  must be established at national and provincial levels. The IPID was established in terms of Section 206 (6) of the Constitution.

Apart from setting up the IPID, the object of the Act is as follows:

  • to provide an independent oversight of the South African Police Service SAPS) and Municipal Police Services (MPS),
  •  to provide an independent and unbaised investigation of criminal offences allegedly committed by SAPS and MPS,
  •  to make recommendations with regard to any findings under an investigation and how people should be disciplined
  •  to make SAPS and MPS more accountable and transparent as required by the Constitution.

Structure of the IPID offices

The IPID will be established at national and provincial levels. The Executive Director is the head of the IPID and this person is nominated by the Minister of Police. The relevant parliamentary committee must confirm or reject the appointment. The Executive Director is appointed for 5 years and the appointment can be renewed for only one additional term.  

The Executive Director appoints heads of each province.

Functions of the Executive Director   

The Executive Director must:

  • give guidelines for the investigation and management of cases by officials in provincial offices
  • refer criminal offences that are found after investigation, to the National Prosecuting Authority for criminal prosecution and must inform the Minister of Police about this
  • ensure that complaints regarding disciplinary matters are referred to the National Police Commissioner and the Provincial Commissioner (if this is relevant
  • submit a monthly summary of the disciplinary matters to the Minister of Police
  • refer any recommendations that do not relate to criminal or disciplinary matters, to the Minister of Police
  • ask for complaints relating to any offence committed by a member of the SAPS or MPS to be investigated, and if necessary refer this to the National or Provincial Commissioner
  • refer any criminal matters which fall ouside the scope of the  IPID, to the appropriate authority for investigation in terms of the law
  • report on the activities of the IPID to the Minister or Parliament when asked to do so   

Functions of the national office

The national office oversees and monitors the performance of provincial offices. It alsogathers and stores information relating to investigations, develops public awareness of the IPID, makes recommendations to the SAPS and MPS resulting from investigations done by the IPID, and reports twice a year to Parliament on the number and type of cases investigated, the recommendations and the outcome of these recommendations.

The Management Committee

The Management Committee consists of the Executive Director and; the provincial head for each province. The functions of the Management Committee are to:

  • ensure there is coordination in each province and alignment with national objectives
  • identify any matters of strategic importance to the functioning of the IPID
  • ensure there is regular reporting on matters linked to the provincial directorates.

Provincial offices

Each provincial office is headed by a provincial head who has the following functions:

  • to facilitate investigations of cases
  • to control and monitor cases
  • to refer matters investigated by the provincial office to the National or relevant provincial prosecuting authority for criminal prosecution
  • to report to the Executive Director on recommendations and finalisation of cases
  • to report to the MEC on matters referred to the Provincial Head by the MEC
  • to ensure that proper guidelines are followed for investigations

Powers of investigators

An investigator has the the same powers as a police officer in terms of the Criminal Procedure Act, 1977 in respect of:

  • investigation of offences
  • entry and search of premises
  • seizure and disposal of articles
  • arrest
  • execution of warrants
  • attendance of an accused person in court

An investigator can:

  • ask any person to submit an affidavit if it has to do with an investation, or to appear before him /her, or to give evidence or to produce any document in that person’s possession or under his/ her control;
  • ask for an explanation from someone if he/she believes this has something to do with a matter being investigated.

The person who has been investigated can refuse to answer any questions if this will incriminate him or her.  The investigator must inform anyone that they question of this right. If an investigator does get information in this way, it cannot be used as evidence against that person in a court.

Types of matters that can be investigated

The IPID must investigate the following types of cases:

  • deaths in police custody
  • deaths as a result of police actions
  • any complaint relating to a police officer using an official firearm
  • rape by a police officer (whether the officer is on or off duty)
  • any conplaint of torture or assault while the police officer is on duty
  • corruption matters in the police, whether this is raised by the Executive Director, or a complaint is made by a member of the public.

The IPID can investigate matters relating to corruption involving the police.

Reporting matters

The Station Commander or any member of the SAPS or MPS must notify the IPID of any cases referred to it and within 24 hours submit a written report to the IPID using the correct form and procedure.

The SAPS or MPS must cooperate with the IPID in the following ways:

  • by arranging an identification parade within 48 hours of the request made by the Directorate
  • by making members available to provide affidavits or to give evidence or produce any document that he/she has

Recommendations on discipline

If recommendations on disciplinary matters have been referred to the National Commissioner or Provincial Commissioner, then the relevant Commissioner must start disciplinary proceedings within 30 days of receiving the recommendations. The Minister of Police must be informed and the Executive Director of the IPID must be sent a copy.

The Commissioners must submit a written report every quarter to the Minister of Police on the progress regarding disciplinary matters.

As soon as a disciplinary matter is finalised, the Commissioner must inform the Minister of Police in writing of the outcome, and send a copy to the Executive Director.


Community Police Forums (CPFs)

The South African Police Service (SAPS) has adopted 'community policing' as its basic philosophy for dealing with crime in communities. Community policing aims to bring the police and community together to solve problems of crime. The definition of community policing is: 'a philosophy that guides police management styles and operational strategies, and emphasises the establishment of police-community partnerships and a problem-solving approach in response to the needs of the community'.  By working together the SAPS hopes to make communities safer places to live in. This forms part of the National Crime Prevention Strategy, which has meant a shift from crime control to crime prevention. It also emphasizes crime as a social problem rather than a security issue. The National Crime Prevention Strategy provides for a number of preventative programmes and underlying these is the basic policy of community policing.

Community policing requires the SAPS to focus on giving a good service, working in a partnership with the community through the Community Police Forums and being accountable to the community.

Forming Community Police Forums (CPFs)

The CPF is a forum for organisations and groups in the community to work with the police around issues of safety and security. Local government should also be represented on the CPF. Funding for the CPFs is made available from the Provincial Secretariat of Safety and Security.

The objectives of CPFs are to:

  • promote communication and co-operation between the SAPS and the community
  • improve the police services to the community
  • improve the transparency and accountability of the SAPS to the community
  • help with joint identification of problems and how to solve these

Area Community Police Boards are made up of representatives of CPFs in each local government area, while Provincial Community Police Boards must include representatives of all Area Community Police Boards in the province.

Elements for effective community policing

The kinds of changes that are necessary in the SAPS
to make a difference to community policing

The role of community police forums

A CPF should play the following roles:

  • To make sure that local police are able to explain to people what they are doing about crime in the area
  • To check on how well the police are using their resources in dealing with crime in the community
  • To monitor how well the police are doing their work in the community, for example, is it easy to find a police officer when you need one, are there always plenty of police visible at rallies and other mass events, do police patrol the streets, do police respond quickly when a crime has been reported, and so on
  • To enquire into local policing matters, for example, what are the main problems with crime in the community, are the police dealing with these issues effectively and are the police using their resources most effectively

The CPF Constitution

The CPF should have a constitution which contains the standard elements of a constituition, including the mission of the CPF, its aims and functions, how decisions are taken, voting for office bearers, meeting procedures and financial procedures.

Partnerships between the community and the police

CPFs represent a partnership between the community and the police.

These are the roles of each partner.

  • The Police run the police station although some Forum members may be trained to help with administration work.
  • The community advises and helps the police and monitors their performance.

A CPF may be consulted on the following aspects of the day to day running of the police station:

  • new appointments to the station
  • changes from foot patrols, to bicycles or cars
  • changes in how the police operate
  • changes to the police station, including where new police stations should be built

Local governments and CPFs

Local government should work with CPFs and Area Community Police Boards to set priorities and objectives for the forum.

CPFs should work with local government by:

  • setting crime prevention strategies together and agreeing on how these will be carried out
  • assisting with developing targeted social crime prevention programmes
  • identifying flashpoints and crime patterns, and communicating these to local government and the SAPS, and participating in problem solving
  • mobilising and organising community-based campaigns and activities, and the resources that are needed to keep them going
  • facilitating regular attendance by local elected representatives at CPFs

The diagram below shows the relationship between local government, community police forums and the SAPS. Relationships also need to be built with various other government departments for example the various provincial social welfare departments.


Relationship between local government, community police forums and the police

Funding CPFs

Funding in part for the CPFs is made available from the Provincial Secretariat of Safety and Security. However the majority of the funds has to be raised by the forum from local business or through holding fund-raising ventures. CPF’s need money for various aspects of its work. For example, it may need money to hire transport to bring people to workshops or to hire consultants to train members of the forum in how to mediate disputes.

CPFs are required to set up a Funding Foundation to manage the funds. The Funding Foundation is a section 21 (not-for-profit) company which raises money for projects and manages the income and expenses of the forum. The Funding Foundation should have a separate board of trustees. The trustees can be chosen from community-based organisations, private business, religious groups, and so on. The CPF should appoint a professional auditor to audit the financial records every year.


The civil courts and civil cases

There are two main types of civil cases:

  • CIVIL CLAIMS
  • INTERDICTS

Civil claims

In civil claims it is not the state that prosecutes. In a civil claim, you bring a case against a person or a company or other organisation. You can claim for money that is owed to you or you can claim compensation for mental and physical harm that was done to you. This compensation is called DAMAGES. In a civil claim the state can also be like a 'private person' if it is suing somebody else or if it is being sued for a wrongful act.

See Civil law.

Examples of problems where you can start civil claims include assault, eviction, divorce, defamation, injury because of negligent driving, breaking a contract and if someone owes you money. Civil claims can be brought in various civil courts including, the High Courts, District magistrate’s courts, Small Claims Courts, Family Courts, Equality Courts and Chiefs and Headmen Courts. Each court has its own area of jurisdiction which is defined by law. This means the law says what kinds of cases the courts can hear and what kinds of sentencing can take place in each court.  

The two sides in a civil claim are called the 'parties'. The person who complains is called the plaintiff. The person being sued is called the defendant. Civil cases heard in the magistrate’s court will require an attorney to draw up papers for either of the parties. However, in the Small Claims Court you will not be allowed to use an attorney.

Prescription periods

All claims fall away (prescribe) after a certain period of time. In other words, you will lose your right to claim against another person if you wait too long to make the claim.

Examples of prescription periods:

  • A motor vehicle insurance claim form must be sent in within two years from the date of the accident.
  • If someone has been unfairly dismissed and wishes to apply for reinstatement, the application for reinstatement must be referred to the Commission for Conciliation, Mediation and Arbitration within 30 days of the unfair dismissal.
  • There are very strict rules for applications for Unemployment Insurance Fund Benefits.

The Institution of Legal proceedings against certain Organs of state Act (No 40 of 2002) has changed the prescription periods for claims against government bodies.

In terms of section 3  of this Act you must do the following:

  • Give notice in writing of your intention to institute legal action against a government body within 6 months of the claim arising. The notice must be served on the person by hand or by electronic mail or fax.
  • Make a claim against the relevant body within 3 years of the claim arising.

If you don’t give the required 6 months notice and you have good reasons for not giving proper notice, you can apply to the court for condonation. This means you ask the court to allow you to continue with the claim even though it has officially prescribed because you had good reasons for failing to give notice.

Many state departments are covered by similar prescription periods.

Preparing for a civil claim

Before the steps in a civil claim can begin, this is what you must do:

  • Draw up a statement - Make a statement about what happened to you.
  • Collect evidence to support your case, for example, photographs of injuries, a medical certificate from a doctor who treated you, names, addresses and statements of witnesses who saw the incident.
  • See an attorney (if this is appropriate) – Take your statement to an attorney who will check it and make it into a sworn statement called an AFFIDAVIT. You must then swear that what you say in your affidavit is the truth.
  • Make a criminal claim at the same time - Remember that if the act against you is a criminal act, then you can make a civil claim and a criminal case at the same time. It is not one or the other. For example, if someone assaults you, you can make a criminal charge against that person, because it is a crime to assault someone. You can also bring a civil claim against that person for damages, for example for your pain and suffering, loss of wages, medical costs and so on.

Steps in a civil claim

The aim in a civil claim is for the plaintiff to prove to the court that his or her case is better than the case of the defendant. In the court they say this must be proved on a 'balance of probabilities'. This means the plaintiff must prove that his or her story is more likely than the story of the other person. This is different from the criminal case, where the state has to prove that the accused committed the crime 'beyond all reasonable doubt'.


SUMMARY OF THE STEPS IN A CIVIL CLAIM

Letter of demand

The plaintiff's lawyer writes a letter to the defendant. This letter says what the plaintiff wants, and gives the defendant a certain number of days to do it. It is a warning that you plan to take the other person to court, for example, the plaintiff requests R1000 that you owe him and he demands that you pay within 10 days. If the defendant fails to pay within the prescribed period as set out in the letter of demand, then the plaintiff will issue a summons.

Issuing a summons

If there is no reply to the letter of demand, the lawyer draws up and sends a summons. The summons is a document stamped by the court, setting out the details of the plaintiff's claim. It also tells the defendant to tell the court within 5 days whether the case will be defended. This means that if you are the defendant, then you must answer the summons immediately. You can answer the summons in one of these ways:

  • You can admit that you owe the money and pay immediately.
    or
  • You can try to reach an agreement with the other side after discussing it with the plaintiff's lawyer. This is called settling the case.
    or
  • You can defend the claim. If you want to do this you must complete a form called a Notice of Intention to Defend which is at the back of the summons.

If you can afford a lawyer you should see one immediately.

If the defendant doesn't tell the court that the case will be defended, in other words if the defendant does nothing about the summons, then judgment will be given in favour of the plaintiff. This type of judgment is called a default judgment.

Default judgment

If the defendant does nothing about the summons, the plaintiff may apply for a default judgment against the defendant. If the court gives the default judgment, the plaintiff can claim against the defendant's property with a Warrant of Execution. The court will take some of the defendant's possessions and sell them to get money to pay the plaintiff.

The defence

If the defendant wants to defend the case in court, then he or she must fill in a form called a Notice of Intention to Defend. This form is at the back of the summons. It gives the reasons why the defendant does not want to pay what the plaintiff claims in the summons. The form must be stamped at the court. Then a copy is given to the plaintiff's lawyer.

Pleadings

The legal documents in a civil claim are called pleadings. These pleadings are difficult to understand, so it is a good idea to get an attorney to defend a civil claim. The attorneys from both sides set out the legal facts in the pleadings. Pleadings are drafted according to the rules of the court. The attorneys send all the information to each other.

At any time during the pleadings (or even during the court case), the plaintiff and defendant can decide to settle the case. In other words, they can reach an agreement on their own, without the magistrate or judge having to decide the case. The aim of settling a case is usually to save both sides time and money. If the case is not settled this way, then it will go to court.

The trial

At the trial the plaintiff's attorney and the defendant's attorney each present their side of the case. This is done by giving evidence, and calling witnesses. As in criminal cases, witnesses can be cross-examined and re-examined.

When the attorneys decide they have led enough evidence, they will close their client's cases. Each attorney tries to persuade the court that his or her client should win.

Judgment

The magistrate or judge decides which side is right and gives a judgment in favour of that side.

Review or appeal

The plaintiff or defendant can apply for an appeal or a review, if he or she is not satisfied with the outcome of the case.

See Trials, appeals and reviews.

Costs

Usually the loser must pay his or her own legal costs, and most of the legal costs of the other side. The costs of civil cases are usually very high. You face the risk of paying lots of legal costs if you lose the case.

Enforcing a civil judgment

Enforcing a judgment means making sure that the party that lost the case pays up. It is usually necessary to use an attorney to enforce a judgment. There are different ways to enforce a judgement, including paying instalments and getting a warrant of execution.

Paying in instalments

If the plaintiff wins the case and the defend ant cannot pay the sum of money all at once, the defendant can offer to pay in instalments.

Warrant of Execution

If the defendant still does not pay after the judgment has been given, the plaintiff can ask the court to issue a Warrant of Execution. This is a document which says the Sheriff of the Court (a court official) can go to the defendant's home and write down the property in the home. This is called attaching the property. The Sheriff of the Court can also attach the whole house if necessary.

The court attaches the defendant's property because this is the only way it can force the defendant to pay the judgment costs and any other amounts the defendant owes, for example, the Sheriff of the Court's fees and the plaintiff's legal costs.

The Sheriff of the Court then takes the attached property and sells it. The Sheriff usually attaches property such as a television set, fridge, radio, motor car, and so on. The amount of the judgment plus legal costs is then paid to the plaintiff from what is made at the sale. If anything is left over, it will be paid back to the defendant.

If the defendant does not have enough property which can be sold to pay off the plaintiff's claim, the plaintiff can ask the court to look into the defendant's financial position. The court can then order the defendant to pay a certain amount each month, or have a certain amount taken off from his or her salary each month by the employer and sent to the plaintiff; this is called a garnishee order. If the defendant refuses to obey this court order, she or he can be arrested for contempt of court.

Problems with civil claims

Time-limits - There is often a time-limit on when you can bring your claim. These time-limits are called PRESCRIPTION PERIODS. If you bring your claim too late the court will not accept it.

See Prescription periods.

Long time to come to court - Civil claims often take a long time to get to court and to be settled.

Collecting good evidence - You need very good evidence to win a civil claim.

Cost of the civil claim - Civil claims cost a lot of money to bring. If you win your case, then the other side will usually have to pay your legal costs. If you lose your case, you will usually have to pay the other side's costs.

Small Claims Court (SCC)

The SCC is a civil court but the procedures involved are much simpler and you can only use it for certain 'small' civil claims. A 'small' claim is a claim with a value of up to R12 000. If your claim is for more than R12 000, you either have to use the ordinary magistrate’s court or you can give up part of your claim so that it reduces to R12 000.

Certain claims cannot be heard in the SCC even if their value is R12 000 or less. Examples of these claims are:

  • divorce
  • matters concerning a will
  • malicious prosecution
  • wrongful imprisonment
  • seduction
  • breach of promise to marry

The SCC will also not hear cases which the Commissioner thinks involve difficult questions of law and so should be heard by a Magistrate's Court. The state may not use the SCC, and you may not use it against the state, for example, to make a case against the police.  You can use the SCC to claim from an organisation, a town council or a company. But an organisation, town council or a company may not use this court to claim against you.

The SCC will also not hear cases which the Commissioner thinks involve difficult questions of law and so should be heard by a Magistrate's Court. The state may not use the SCC, and you may not use it against the state, for example, to make a case against the police.  You can use the SCC to claim from an organisation, a town council or a company. But an organisation, town council or a company may not use this court to claim against you.

Examples of cases you can take to the SCC include:

  • You work as a domestic worker and have not been paid for three months. You want to claim wages from your employer.
  • You bought a second-hand tape player which stops working after the first month. You can claim against the seller.
  • You are assaulted and have to have treatment for your wounds. You can claim against the person who assaulted you for pain and suffering, lost wages, medical fees, and so on.
  • Someone negligently drives into your car causing R1 800 worth of damage. You can sue the driver of the other car for this amount.
  • You paid someone to do work for you and they did not do it properly. You can claim some of your money back.

Neither you nor your opponent can use an attorney in the SCC.

Which Small Claims Court must you use to make a claim?

Your claim will be heard in the Small Claims Court  in the area where the defendant lives, or where the “cause of action” arose – you can choose either of these two options. The legal term “cause of action” means the reason for your claim (or what caused your claim). For example, if you park your car outside your home, and Fabio smashes into it, the cause of action will be the collision that was caused by Fabio.  However, Fabio lives in Pretoria, and you live in Johannesburg. Which Small Claims Court should you take the case to? You can choose to take the claim to the Pretoria Small Claims Court (where the defendant, Fabio, lives) or to the Johannesburg Small Claims Court (where the cause of action arose).

If the Magistrate’s Court for the area where you live has a Small Claims Court, phone and ask the Clerk of the Small Claims Court for help. If the Magistrates Court for your area does not have a Small Claims Court, the Clerk of the Civil Court will advise you where to take your claim.

Summary of the steps in a Small Claims Court

 

STEPS IN A SMALL CLAIMS COURT


Letter of demand

If you want to use the SCC, you must send an official Small Claims Court letter of demand to the defendant. You can get a form for the letter of demand at the SCC. The Clerk of the Small Claims Court will complete the Letter of Demand for you

Include in your letter of demand a full description of your claim.

See Model letter of demand before referring a case to the SCC.

The defendant is given 14 working days to pay your claim. The 14 days start from the first working day after the defendant has received your letter. If the defendant does not reply within 14 days you can take the next step which is issuing a summons.The Letter of demand must be in duplicate.

There are three ways to deliver the letter:

1. Send it by registered post. Keep the registration slip and contact the post office by phoning the toll-free number on the registration slip. If the defendant receives the letter, the post office will inform you of the date of receipt, and you calculate the 14 working days, starting from the first working day after receipt of the letter.

If the defendant does not collect your letter, the letter will be returned to you by the post office unclaimed after a full month. You may also collect the unclaimed letter at the post office after a full month.

2. Hand-deliver the original copy of the letter to the defendant yourself. If you hand deliver the letter, the defendant must sign your copy of it as acknowledgment of receipt. Keep this signed copy in a safe place.

If the defendant refuses to sign your copy, or refuses delivery, go to the nearest police station to sign an affidavit  stating that you delivered the letter to the defendant but he or she refused to sign acknowledgment or refused delivery.

3. Take the letter to the sheriff serving the area where the defendant lives, for hand-delivery. This will cost you a small fee.

Issuing the summons

If the defendant receives your letter, but fails to pay after 14 days, you should return to the Clerk of the Small Claims Court with your registration slip and your copy of your letter.

The clerk will then issue you with a summons, which will have a court date on it. You must immediately take the summons to the sheriff to serve on the defendant. You can claim this cost back from the defendant, in addition to your claim.

The sheriff will inform you by means of the “Sheriff’s Return of Service” whether or not he or she was able to serve the summons. If the sheriff is unable to serve the summons, for example, if the defendant has moved to another address, then the sheriff will inform you of the reason. The clerk of the court will tell you what steps to take after this.

The summons gives the defendant 10 days to pay your claim. It also gives  a date after the 10 days when she or he must appear in the SCC if the claim is not settled. You will also have to appear in court on the day referred to on the summons.

The trial

At the trial, the Small Claims Commissioner (who is usually an attorney) presides over the case. The Commissioner explains the court procedure to both sides and asks all the questions. You can only ask your opponent questions when the Commissioner says that you can. If you do not understand English or Afrikaans, you can ask for an interpreter, but you must ask for this before the day of the case.

Both you and your opponent can call any witnesses to support your cases. The Commissioner will question the witnesses. The parties should also bring any documents involved in the case, for example, an invoice, receipt, photographs, statements by other people, and so on which could be used as proof.

Changing the claim

At any time before the case, you can ask the Small Claims Commissioner to change some of the details in any of the documents. Or you can ask the court to stop the claim altogether. The Commissioner will allow any changes which he or she decides are reasonable.

The Commissioner gives judgment

When the Commissioner has heard all the evidence, he or she will decide on a 'balance of probabilities' which party is right. This is the same as in other civil cases. The Commissioner does not have to listen to all the witnesses if he or she thinks it is not necessary.

There are three possible judgements that the Commissioner can give:

  • Judgement in favour of the claimant (also called the Plaintiff):
    The loser cannot appeal and has 10 working days to pay the claim, which includes the refund of the sheriff's fees to the claimant.
  • Judgement in favour of the Defendant :
    This means the claimant has lost his or her case. The claimant may not appeal against this judgement.
  • Absolution from the Instance:

This ruling is given if the Commissioner cannot decide which side to believe. It means neither side has won.  If this judgement is given the claimant can, at a later stage, make a claim in the small claims court. For example, the claimant might find proof of his claim after the court hearing which would help him win his claim next time.

What happens if the defendant does not appear in court?

Default Judgment
If the defendant is absent and the claimant is present at court, the court will first ensure that the claim is valid, then it will give the claimant a "Default Judgment" against the defendant. The term "default" means the defendant failed to attend the proceedings.

The defendant now has 10 working days to pay, starting from the day after the defendant is informed of the Default Judgment. A letter will be sent by the small claims court to the defendant notifying him or her of the default judgment.

Rescinding (setting aside) a Default Judgment
If the defendant has a legally valid defence to the claim, AND a valid reason for failing to appear in court (he has to have both) he can ask the court to "rescind" (or cancel) the default judgment.
He does this by immediately lodging a Rescission Application with the small claims court once he becomes aware of the default judgment.

NOTE: Lack of money is not a valid defence to a claim. ‘Forgetting the court date’, personal commitments, or business pressures are also not valid reasons for failing to attend a court hearing. 

If the court grants a rescission application, the claim starts from the beginning, and the claimant and defendant both have to appear in court.

See The trial.

What happens if the claimant does not appear in court?

If a claimant fails to appear in court, for whatever reason, the Commissioner writes on the file, "removed from roll".
This means the claimant has to start his case all over again by issuing a fresh summons, and paying the sheriff's fee a second time.

Steps following judgment

The judgment of the court is final, unless there are grounds for review. Whoever has judgement given against them must do what the court says.

Taking a judgement on review

The Commissioner's decision or judgment cannot be taken on appeal. However, the Commissioner's judgment can be taken on review to the High Court on three grounds.

  • If the court did not have jurisdiction. In other words the case should not have been heard in that court.
  • If the Commissioner was biased or corrupt.
  • If the proper procedure was not followed in the Court. This is also called a gross irregularity. For example, if the Commissioner did not allow one of the sides to tell their story, this is not proper procedure, because each side must get a fair hearing.

See What is a review?

Enforcing a Small Claims Court judgment

If the defendant fails to pay the claim in terms of the court order, you will have to transfer your claim to the ordinary civil courts.

You can get a document called a Writ of Execution against Moveable Property at a stationary shop. The clerk of the Small Claims Court Administration may help you to complete the document. You must then take this document to the Sheriff (as you did with the summons).

The Writ gives the sheriff the right to seize any attachable property belonging to the defendant. The sheriff will charge a fee for doing this.

Note: It is expensive to try and enforce the small-claims judgment in the ordinary civil courts (especially if the defendant has disappeared, or does not own any property that can be attached) You need to decide whether it is worth your time, money and effort to continue trying to enforce the judgement in the civil courts.

Equality courts

These are courts set up in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). Anyone can take a case to the Equality Court if they feel they have been discriminated against on any of the grounds for non-discrimination listed in the Constitution. In addition to a listed ground, the Equality Act also prohibits any discrimination of any other ground where the discrimination:

  • Causes or encourages systemic disadvantage;
  • Undermines human dignity;
  • Seriously impacts on the  equal enjoyment of a person’s rights and freedoms that is equivalent to  discrimination on a ground listed in the Constitution.  

You can also take a case for hate speech or harassment to the Equality Court. You may not take a case that involves discrimination in the workplace, this falls under the Employment Equity Act 55 of 1998.

See Equality courts.

When you lodge a case with the Equality Court, it is up to the other party, the person who has been accused of discrimination, to prove to the Court that they did not unfairly discriminate against you.

The Equality Court will be especially likely to hold that the following grounds are tantamount to the listed grounds:

Referring a case to the Equality Court

If you have any questions on whether you should lodge a case, how a case is progressing, or what you would like to ask the Court to do, you can ask the Equality clerk at the Court.

It does not cost anything to bring a case to the Equality court unless you fail to attend a court date without good reason, then the court might make you pay the costs of the side that did attend. The Equality Clerk or the South African Human Rights Commission can advise you on getting legal assistance. The Act says that the Court staff must help people find legal assistance if they ask for it. However, legal assistance does not necessarily refer to a qualified attorney. Legal assistance can be given by a member of staff from a Non-profit organisation (NPO), someone from an Advice Office, a paralegal or senior law student, or anyone who understands the subject and how the court will operate.

If a complaint involves special knowledge of a particular cultural community, the presiding officer can appoint up to two recognised experts in this area, called "assessors," to help the Court understand the case more clearly.

If you do not speak the main language used by the Equality Court, you have the right to be helped by an interpreter.

Steps to take in referring a case to the Equality Court

Step 1: Contact your local Magistrates' Court and ask if it is an  Equality Court. If it is  not, ask where the closest one is. All High courts and most Magistrate’s Courts have an Equality Court.

Step 2: Go to the Equality Court and lodge your Complaint with the Equality Clerk. The Clerk will help you to complete the relevant form.  

Step 3: The Equality Clerk must, within 7 days, notify the other party called the respondent, that you have lodged a complaint. The respondent will be given a form by the Clerk if they deny the allegation and want to give their side to the incident. They must return the form to the Equality Clerk within 10 days of receiving it.

The Equality Clerk must also pass details of the complaint to the Presiding Officer within 3 days of you lodging it.

Step 4: The Presiding Officer must decide within 7 days if the case should be heard by the Equality Court, or whether another forum, for example, the CCMA, would be more appropriate to deal with it. If the Presiding officer decides to refer the matter to another forum, the clerk must notify the parties of the referral. The alternate forum must deal with the matter as fast as possible. If the alternate forum does not resolve the matter, it must refer the matter back to the Equality court with a report. The Equality Court will then have 7 days within which to give instructions as to how the matter should be dealt with.   

Step 5: If the Presiding Officer agrees this is a case for the Equality Court, then the Equality Clerk must set the first court date, which is called a Directions Hearing. At this Hearing, the Presiding Officer will sort out issues such as: when can the parties come to trial, does anyone need an interpreter or should assessors be used.

Step 6: The Equality Clerk must then legally serve notice of the hearing on the parties. If either of the parties cannot afford to pay for the notice to be served, the Equality Clerk can decide that the State must pay for this. 

Step 7: The parties must then appear in the Equality Court on the date set by the Court.

What order can the Equality Court make?

  • It is the duty of the Equality Court to decide whether unfair discrimination, hate speech or harassment, as the case may be, has taken place as alleged in the complaint. After holding the enquiry, the court will decide what order to make. The order could be:
    • a settlement between the parties;
    • payment of damages;
    • requiring the unfair discriminatory practices to stop or that specific steps must be taken to stop the unfair discrimination, hate speech or harassment;
    • making available specific opportunities and/or privileges that have been unfairly denied to the complainant;
    • implementing special measures to address the unfair discrimination, hate speech or harassment;
  • directing the respondent to accommodate the needs of a group or class of people;
  • an unconditional apology;
  • making the respondent go through an audit of specific policies or practices that the court decides;
  • directing the clerk of the Equality Court to submit the matter to the Director of Public Prosecutions for the possible institution of criminal proceedings.

Right of appeal and review in the Equality Court

Any person who is dissatisfied by an order made by the Equality Court may appeal against the order to either the High Court or the Supreme Court of Appeal. An appeal can also be made directly to the Constitutional Court.

If a presiding officer in a Magistrate’s Court rules on a ground of discrimination not listed by the Act, the decision must be submitted to the relevant High Court for review, once the proceedings have been finalized.

Interdicts

What is an interdict?

An interdict is another type of civil case.

An interdict is the name for a special kind of court order which tells someone to do something, or not to do something.

For example, you can ask the court to make a court order to stop a landlord if he tries to evict tenants in an illegal way.

You can apply for an interdict in the High Court and in the Magistrate's Court.

Who can bring an interdict?

You can bring an interdict in 3 ways:

  • By an individual representing him/herself or their family
  • as an organisation or church representing the members of an organisation or congregation
  • as a community leader, organisation or church representing a community

As an individual, you will have to ask a lawyer to help you get an interdict.

Steps in getting an interdict

Draw up statements – The person (or people) wanting to get an interdict must draw up statements of what has happened and why they want the interdict.

See Taking a statement.

Contact an attorney - Contact an attorney and hand over the statement(s). The attorney will meet the person who wants to get the interdict as well as any witnesses. The attorney will check on the information and may want to take further statements.

Make affidavits – The attorney will draw affidavits for people to sign.

See Affidavits.

Get an interim interdict - The attorney approaches the High Court to ask for a temporary interdict. A temporary interdict is also called an interim interdict. If you get an interim interdict, this means that the court gives you the interdict but only for a short time. In other words, the court says that you are protected but only until a certain date. In the meantime, the other side gets a chance to answer the affidavit/s and defend themselves.  The interim interdict lasts until the case comes back to the court at the set date.

Get a final interdict - If the other side decide to fight the case, a date will be set for the High Court to decide whether you should get a permanent interdict. Then the judge will look at the story from both sides and make a FINAL decision. If the judge decides that you are right, then the interim order is made permanent. This is also called a FINAL interdict.

Problems with interdicts

Strict legal rules for bringing an interdict

There are some very strict rules for bringing an interdict.

  • You must show the court that the case is VERY URGENT. You must show that there is a very real threat if you don't get the interdict.
  • You must have VERY GOOD EVIDENCE of the threat. In other words, you must have many statements supporting your claim, witnesses, medical certificates, photographs, and so on.
  • You must show that NO OTHER LEGAL ACTION WOULD PROTECT you enough. For example, you must show that using the ordinary criminal courts will not help because they are too slow or that they have not helped protect you in the past.

See Problem 3: How urgent is the need for an interdict?

Ignoring the interdict

Sometimes you get an interdict but the other party just ignores it. Then you can take further legal action against the other side. You can get your attorney to go back to court and ask the court to lock up the other party for refusing to obey the interdict. The other party is in contempt of court.

Limited effect of interdicts

Interdicts are not necessarily a lasting solution to a problem. For example, a farmworker may get an interdict to prevent a farmer from unlawfully evicting him or her, but the farmer can then just get a court order, allowing him or her to evict the farmworker lawfully.

But interdicts can be useful by publicly exposing unlawful actions by people.

Interdicts also give you some time in which to decide what you are going to do. In this time you might be able to negotiate with the other side about a settlement that will suit both sides.

Cost of getting an interdict

Interdicts cost a lot of money to bring to court. If you lose the case you might have to pay for the other side's costs.

Special kinds of interdicts

A Protection Order, is a special kind of interdict that you can get under the Domestic Violence Act to stop any person abusing you in the home. A Protection Order is an order from the court telling an abuser to stop abusing someone.

See Problem 8: Getting a Protection Order.

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