Crime is a constant and increasing stain on the landscape of the relatively new South African democracy. It affects all sectors of society and does not discriminate on grounds of race, gender, religion, political affiliation or economic status. Anyone who lives in South Africa has a fairly reasonable chance of having to interact, at some time, with the Criminal Justice System, either as a victim or witness, or maybe even as an accused person. 

Criminal law is a set of rules and procedures that the State sets down to regulate our behaviour. Criminal law allows the State to punish us or to threaten to punish us for not obeying these rules and procedures. The threat of punishment is also used to prevent behaviour that society does not want to happen. Our criminal law comes from common law and from statute law. Our statute law is always changing as new crimes are created and as old Acts are repealed (scrapped). But our common law has been largely unchanged over the centuries. All law must now follow the Constitution, and most of our criminal laws are in line with the Bill of Rights.

How does the State charge a person with a crime?

In criminal law, the State prosecutes (charges) a person for performing an illegal act. To prosecute a person, the State must show that there is a law that a person has broken:

  • A statute law, eg the Sexual Offences Act, or
  • A common law, eg theft, murder, rape
The State must also use the general principles of criminal law to show that the accused person is guilty of committing the crime they are charged for. If the State proves that a person committed the crime ‘beyond a reasonable doubt’, then a judge or magistrate can send that person to prison or give the person a fine. 

Example, The law says you may not remove property without the owner’s permission. If you take your neighbour’s television, the State can prosecute you for theft. If you are convicted, the magistrate or judge can make you pay for the cost of the television and make you spend time in jail.

The rights of accused people
People who are accused of a crime have rights. These are explained in the Bill of Rights of the new Constitution and in other laws, eg the Criminal Procedure Act. The State cannot punish people just because somebody has claimed that they are criminals. In South Africa, any person charged with a crime has the right to be presumed innocent. That person remains innocent until proved to be guilty ‘beyond a reasonable doubt’ – in other words, an accused person must be treated as if they are innocent.

Can an accused person apply for bail?
All accused people have the right to apply for bail, and most accused people will be granted bail. But new criminal laws say that in some very serious crimes, it is hard to get bail. For example, the Criminal Procedure Second Amendment Act says that where an accused is charged with rape and the accused rapist knew that he was HIV positive or had AIDS at the time of the rape, it is more difficult to get bail. In this case, the accused rapist must show good reasons why it is in the interests of justice that he is given bail. If he cannot show this, he will not be given bail.

Sentencing and the rights of guilty people
If a person has been found guilty in a criminal trial, the judge or magistrate decides what punishment that person should get. This is called ‘sentencing’. In deciding on a sentence, a judge or magistrate must look at possible mitigating or aggravating circumstances, that will affect the harshness of the sentence.
A mitigating factor is something that a guilty person can show to help explain his/her actions and ask for a lesser sentence.
An aggravating factor is something the State shows that makes the guilty person’s crime even more serious and is used to argue for a harsher sentence. 

If you are struggling with a criminal law issue, there is no reason to handle the matter on your own. An experienced attorney can explain how the law applies to your situation and suggest a course of action designed to protect your legal rights.

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