Chapter 5 - COURTS AND COURT 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.
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
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 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:
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.
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.
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.
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.
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.
After your arrest you can be released in the following ways before the court case is over:
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 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:
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.
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:
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 (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.
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:
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
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 will plead 'not guilty' if:
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'.
If you plead 'not guilty' the magistrate must ask you more questions. This is to find out what your defence is.
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
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.
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.
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.
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:
Sentence is given
The magistrate or judge will now say what your punishment will be. This is called your sentence. It can be:
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.
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.
If you are found guilty the court might sentence you to a fine OR imprisonment. So sentences can be given 'in the alternative'.
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.
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.
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:
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:
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.
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:
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:
The role of the magistrate who presides over a case involving a child is:
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.
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:
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.
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.
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:
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.
Powers of the police to arrest
The law says that the police can only arrest you if:
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:
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:
Making a lawful arrest
There are three things the police must do to make an arrest lawful:
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.
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.
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.
Here are some examples of unlawful arrest:
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]).
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 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:
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:
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:
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:
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.
What to do if you are arrested
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:
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:
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:
Each provincial office is headed by a provincial head who has the following functions:
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:
An investigator can:
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:
The IPID can investigate matters relating to corruption involving the police.
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:
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.
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.
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:
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.
The role of community police forums
A CPF should play the following roles:
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.
A CPF may be consulted on the following aspects of the day to day running of the police station:
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:
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.
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.
There are two main types of civil cases:
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.
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.
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:
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:
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:
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'.
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:
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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:
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:
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
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.
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.
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:
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?
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
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.
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".
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.
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.
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.
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:
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.
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?
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.
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:
As an individual, you will have to ask a lawyer to help you get 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.
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.
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.
Strict legal rules for bringing an interdict
There are some very strict rules for bringing 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.