S35 of the Bill of Rights (Rights of Criminal Suspects)
(1) Everyone who is arrested for allegedly committing an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be
used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later
than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the
48 hours expire outside ordinary court hours or on a day which is not
an ordinary court day;
CPA Section 50(1) (d) – three
exceptions:
The court may, on application, authorize
that the arrested person be further
detained at a place specified by the
court and for such period as the court
may deem necessary.
• If the period of 48-hours expires
outside ordinary court hours or on a
day that is not an ordinary court day
• If the arrested person is ill
• If the arrested person is outside the
jurisdiction of the lower court
(e) at the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to
reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the right (a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of
this right promptly;
(c) to have a legal practitioner assigned to the detained person by the state
and at state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before a court and, if
the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including
at least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment; and
(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
Every accused person has the right to a fair trial, which includes the right a) To be informed of the charge with sufficient detail to answer it:
b) To have adequate time and facilities to prepare a defence
c) To a public trial before an ordinary court
d) To have their trial begin and conclude without a reasonable delay
e) To be present when being tried
f) To choose, and be represented by a legal practitioner and to be informed of
this right promptly
g) To have a legal practitioner assigned to the accussed person by the state and
at state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly
h) To be presumed innocent, to remain silent and not to testify during the
proceedings
i) To adduce and challenge evidence
j) Not to be compelled to give self-incriminating evidence
k) To be tried in a language that the accused understands, or if that is not
practicable, to have the proceedings interpreted in that language
l) Not to be convicted for an act/omission that was not an offense under national
or international law at the time it was committed or omitted
m) Not to be tried for an offense in respect of an act/omission for which that
person has previously been either acquitted/convicted
n) To the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the time
that the offence was committed and time of sentencing
o) Of appeal to, or review by a higher court
p) Whenever this section requires information to be given to a person, that
information must be given in a language the person understands
q) Evidence obtained in a manner that violated any right in the BoR must be
excluded if the admission of that evidence would render the trial unfair or
otherwise be detrimental to the administrative justice
Stages of the Criminal justice process
SAPS – responsible for investigating, preventing criminal acts and arresting
suspects.
NPA – focuses on the prosecution of suspects
DCS – incarcerates sentenced offenders in correctional centres and aims towards
the rehabilitation of inmates
Functioning of CJS:
docket sent to the
court (prosecution
decides if more info is
needed)
crime is reported to
the police station
police open docket
and investigate the
crime
NPA decides whether
or not to prosecute
may decide not to prosecute = not
enough evidence OR prosecutor may
deicde to divert the matter for
alternative resolution
NPA decides to prosecute
- case goes to court for
the charge to be
formalised
In Court - the accussed
may apply to be released
on bail (while waiting for
trial) - followed by
hearing
accused or their lawyer
may then also call
withness to present
evidence
after both sides have
been heard, the preciding
officer decides
guilty/non-guilty
Prosecutor will be the
first to call witnesses to
give evidence to prove
accused as guilty
Pre-trial release of accused
•
Prosecution may not be ready to proceed with the trial of the accused person
when he appears in court at his first appearance.
•
Police will need time to investigate the matter = postponement adjournment of
the case for further investigation.
•
Accused cannot be held in custody until the matter is ripe for trial
•
Guaranteed the right to be presumed innocent until proven otherwise.
Right to be release of Bail:
Constitution: S35(1)(f) Everyone who is arrested for allegedly committing an offense
has the right – (f) to be released from detention if the interest of justice permit, subject
to reasonable conditions
CPA S50(1)(a) Any person who is arrested with or without warrant for allegedly
committing an offense, or for any other reason, shall as soon as possible be brought
to a police station or, in the case of an arrest by warrant, to any other place which is
expressly mentioned in the warrant
(b) A person who is in detention as contemplated in paragraph (a) shall, as soon
as reasonably possible, be informed of his/her right to institute bail proceedings
Police bail •
Bail may be granted at a police station, before the first appearance of the
accused in court.
•
In such instances, bail is granted by the police.
•
Bail may be granted provided that the accused is not in custody for an offence
listed in part II or III of Schedule 2 of the CPA.
•
The police who determine police bail is statutorily required to consult with the
investigating officer who is likely to have information that could influence the
decision as to whether it is advisable to grant bail, before granting bail to the
suspect (Section 59(1)(a) of the CPA.
•
Police bail – may be granted in respect of offences like common assault,
drunken driving, negligent driving, being under the influence of
intoxicating liquor in a public place, crimen injuria, using foul language in
public, theft, fraud or uttering where the amount involved is less than
R5000.
•
Police bail is limited to the period before the accused’s first appearance in a
lower court and is only payable in cash.
•
The suspect shall, on payment of the determined sum, be furnished with a
receipt setting out the place, date and time on which the suspect is supposed
to appear in court.
Schedule 7 of CPA crimes:
• Public violence
• Culpable homicide
• Bestiality
• Assault, involving the infliction of grievous bodily harm
• Arson
• Housebreaking, whether under the common law or statutory provision, with the
intent to commit an offence
• Malicious injury to property
• Robbery, other than robbery with aggravating circumstances, if the amount
involved in the offence does not exceed R20 000.
• Theft and any offence referred to in section 264(1)(a), (b), and (c), if the amount
involved in the offence does not exceed R20 000
• Any offence relating to extortion, fraud, forgery, or uttering if the amount or value
involved in the offence des not exceed R20 000
• Any conspiracy, incitement or attempt to commit any offence referred to in this
schedule.
Section 60 (4) of the CPA
 Five grounds upon which, “if established, the interests of justice do not permit
the release of the accused from detention”
• The likelihood that the accused might endanger the public safety or commit
a schedule 1 offence if released on bail;
• The likelihood that the accused might attempt to evade trial;
• The likelihood that the accused might attempt to interfere with the state
witnesses or evidence;
• The likelihood that the accused might undermine the criminal justice system
• Where in exceptional circumstances there is the likelihood that the release
of the accused will disturb the public order or undermine the public peace
or security.
Bail conditions:
That the accused must report in
person to a specified person or
authority, at a certain time and
place;
That all documents pertaining to
the case must be served at a
certain place;
That the accused is forbidden to
go to certain places;
That the accused is forbidden to
communicate with certain
persons;
That the accused be placed
under the supervision of a
probation officer or a
correctional official;
If the accused is minor, that he
or she be released into the
custody of his or her guardian,
who must accompany the
accused to court every court
date the matter will be
postponed to.