The criminal justice process begins when a crime is committed and is either discovered by the police, or a charge is laid by a complainant. Becoming the victim of a crime can be a very traumatic experience. Having to then deal with the system can also be a troublesome and frustrating task and having some knowledge of what to expect we hope will greatly alleviate additional trauma.

With this in mind we will deal with it under three headings, The Complainant, The Witness and The Accused

THE COMPLAINANT

The first thing a victim of crime (called a complainant by the legal system) needs to do if a crime has been committed against them is to contact the police. This can be done in one of two ways, either by the complainant going to the police station or meeting the police at the scene of crime. An example of the police attending would be when there has been a burglary (housebreaking), a car accident or an incident of violence and the police have been called to the scene either by the complainant or some other party.

If the complainant is injured, not sober or in a state of shock (or all of these!) then the complainant’s condition should be attended to before any legal steps (as detailed below) will be undertaken.

While a crime can be reported at any police station, it is advisable to go to the station in the area where the crime was committed, as that station that will be tasked to investigate the case.

The first step that is taken in opening any case is for a statement to be taken by the police. This statement is a very important part of the process as it may influence the process later on. The complainant should not make any statement unless he/she is fit and ready to do so. This is especially so for the situations described in the above paragraph. If the complainant has gone to the police station to open a case they should make sure they are well prepared by having all possible documents or evidence relevant to the crime available.

It would be advisable at this point for the complainant to obtain a file, or large envelope, and keep all documents relating to the complaint in one place, and in date order.

Once at the police station, the statement will probably be taken by a police officer who will ask the complainant to relate his story, or version of events, to him. The complainant should keep a record of the name of the police officer who takes the initial statement. The complainant is entitled to the services of an interpreter if he is not fully comfortable in English and the police should source not only local language interpreters but also foreign languages if needed.

It is important to give all details relevant to what happened to the police officer, and to listen carefully to questions being asked by the officer. Once the officer has finished writing the statement, he will administer an oath to the complainant confirming that the truth has been told and accurately recorded. After that the complainant will be asked to sign the statement. It is most important for the complainant to read the statement carefully or have it read (and translated) back so that he fully understands and accepts what has been written down before signing the document. If something is not correct it should be rectified before signing. The complainant will be held to this statement and it will be the basis of possible future court proceedings. It is for these reasons that great care should be taken in the process of statement taking. The complainant is entitled to have his statement taken by his own legal representative or even private investigator beforehand but this will involve personal cost to the complainant.

From this point onwards the situation is handled by the South African Police Force, who will open a docket. The docket is basically a file in which all the evidence gathered, including the complainant’s statement. This file is prepared for onward submission to the prosecutor. This docket will be assigned to a specific Investigating Officer (I/O) from the detective branch and will be allocated a specific reference number called a CAS number. This is not to be confused with a case number which is allocated by the court when the case is enrolled there.

It is important for the complainant to carefully retain this CAS number in his own file and it is usually sent to the complainant’s cell phone by sms. It is vitally important to keep this number as it is this number which the police will use to track and trace the docket on its journey through the system. It will also be important to keep the Investigating Officer’s (I/O) name and contact number as well as this will be the complainant’s contact person until the case gets to court.

The I/O’s function from here is to collect the necessary and available evidence for the prosecutor. The I/O may ask the complainant’s assistance here for names of other witnesses, whereabouts of evidence and again the complainant should keep a record of all information supplied in their own file.

Prosecuting the Case

The prosecutor becomes involved in a case when presented with a crime docket by the SAPF. By this time the police should have investigated the crime sufficiently to link a suspect to the offence. Once the suspect has been arrested and is in custody, the SAPF has a legal obligation to take the accused to a court within 48 hours of the arrest.

The accused will often be released on bail and be told to appear in court on a certain day and at a certain time.

The complainant is usually not involved or consulted in this process at all. However whatever the result, it should be communicated to the complainant by the I/O and this is another good reason to keep in regular contact with the I/O.

The prosecutor is a public official and so the complainant should have access to him. The complainant has a right to information and reasons for decisions made regarding the case and may approach the prosecutor for such information. If the complainant does not know which prosecutor is dealing with his case then he should approach the Control Prosecutor or Senior Public Prosecutor for assistance. In seeking such assistance, as much information as possible relating to the case should be provided to the prosecutor, especially the CAS number and name of I/O.

If the prosecutor is satisfied that there is sufficient evidence to prosecute then the case is put down for trial and a court date is scheduled on the court roll.

This section deals with witnesses who may have some evidence to provide. Bear in mind that the complainant may also be a witness.

If you are called as a witness the first thing that will happen is that you will receive a subpoena which will give you the date and time of the trial and the whereabouts of the trial. Should a witness have any problems with attendance or any queries about the trial he should contact the prosecutor named on the subpoena.

Witnesses are entitled to be compensated for any travelling costs incurred beyond a certain distance from the court. On the trial date the witness should approach the prosecutor of the case by no later than 08h30 that morning. Court is supposed to start at 09h00 and the prosecutor may need some time to discuss the case with his witnesses. Before the trial starts the witness will be entitled to consult with the prosecutor about the evidence and to read his police statement to refresh his memory. Once the trial starts the witness will not be able to discuss the case with the prosecutor so all queries regarding the case and the trial should be dealt with at this consultation and before the trial.

During the trial the witness will be called into court to testify and this may happen over several different trial dates. If the witness does not fully understand the language of the court he will be entitled to the services of an interpreter. Foreign interpreters will have to be arranged beforehand as they will not be readily available on every day at court. The witness should listen carefully to all questions asked of him in court and answer all to the best of his ability. He should at all times try to remain calm and respectful. A magistrate is addressed as ‘Your Worship’ and a judge as ‘My Lord/Lady’. But ‘Sir’ or ‘Madam’ is quite acceptable if these terms cannot be remembered. The witness will also be cross examined by the defence counsel and, because our system is adversarial, it can be expected that there will be an effort to test the testimony of the witness under cross examination. Once the witness has finished testifying he will be excused and may leave the court. However if he wishes to hear the rest of the trial he may do so from the public gallery. Once all the evidence has been heard and the evidence is completed the magistrate or judge will make a finding as to whether the accused is guilty or not of the charges laid against him by the prosecutor. If the accused is found guilty then the court will pass sentence on him.

If you are the accused in a criminal case, you must remember that the South African system presumes every accused person innocent until proven guilty. It is this core value that underpins our South African Justice system. It is for this reason that our Constitution seeks to protect those who find themselves on the wrong side of the law and to protect them against any abuse of power vested in those agencies that seek to uphold the law.

However that certainly does not mean that guilty persons should walk free or that there should be a soft approach when a crime has been committed. A balance between the rights of society to punish those who transgress the law, and the rights of those who are deemed to have broken society’s laws, has to be maintained. An accused person will either be brought before a criminal court after being arrested by the police or by being issued with a summons to appear by the Clerk of Court. A summons is an official document containing information about the time, date and venue where the accused must appear as well as the charge and police CAS reference. A summons must be personally delivered to the physical address of the accused and someone will be required to sign for it. Failure to comply with a duly served summons will result in a warrant of arrest being issued by the court and the accused may then be brought before court in custody.

However if an accused person is in custody he may only be detained for a maximum of 48 hours before being brought before a court. If a weekend or public holiday falls in that period then he must appear on the court day immediately following. Once the accused appears before court the magistrate will explain his Constitutional Rights which, at that point, will include his right to have a legal representative as well as his right to apply for bail.

As far as legal representation goes the accused may choose his own attorney or, if his income is below a certain bracket, he may qualify for Legal Aid and the State will provide him with an attorney. He may also decline to have any legal representative and speak for himself. Whilst the magistrate or judge will assist him in all the legal proceedings if he has no attorney, it is risky to have no legal representative and is not advised.

Although the prosecutor is an adversary or opponent to the accused, the accused nevertheless also enjoys access to him in the sense that he would be entitled to ask for copies of the evidence in order to discuss the case and he can also make representations. An example of this would be where the prosecution and defence team engage in a pre-trial conference where issues of the trial are discussed.

In exercising his Constitutional rights the accused is entitled to know what evidence the prosecution will be presenting against him in the trial. This is usually done by the prosecution handing him copies of the statements in the police docket. He is also entitled to a copy of the charge sheet so that he knows what charges he is facing.

The accused must carefully consider whether to plead “guilty” or “not guilty”. Pleading guilty brings with it its own benefits in that the court will probably pass a more lenient sentence if genuine remorse is shown. It will also cut down the delay in finalising the case, thus saving the accused both time and money. The accused is also entitled to plea bargain with the prosecution and this brings more benefit to the accused as he will be able to negotiate with the prosecutor and will have a clearer picture of the outcome.

However the accused is entitled to dispute any, or all, of the charges the prosecution levy against him. There are a number of rights that protect his interests during the trial, including his right to remain silent, to present and challenge evidence and to a public trial. If the accused informs the court that he intends to plead “not guilty” the matter will then be set down for trial where both parties will be afforded the opportunity to present evidence in their case. The complexity of the case and the backlog in that particular court will determine the remand date for that trial. The length of delay can be anywhere from one to 15 months (or more) depending on various factors.

It should be noted that foreigners are entitled to the same minimum legal rights as other detained persons (including arrested persons) as guaranteed by Section 35 of the Constitution.

The NPA has a target of six months for the finalisation of a case in the district court and nine months for a case in the regional court. However many cases take much longer than the target times and cases can be postponed for a number of reasons but ultimately a date will have to be set for trial. The accused may also elect to plead guilty and the case is often then disposed of without any involvement or consultation with the complainant (unless he is present on his own accord or has been requested to be at court) If the accused is pleading not guilty and a trial date is set then all witnesses to the offence (including the complainant) will be issued with a subpoena to attend by the court. This subpoena is usually delivered by the I/O who will require the witness to sign for it.

It is important to note that this subpoena is a legally binding document and there are serious consequences for not complying with it. It also contains important information about the case including the date and venue of trial, the name of the accused, the name of the prosecutor and CAS number. The complainant should include these details in their file. The interests of the victim play an important role in the court and the court may well ask the victim to assist with extra evidence in order to increase the sentence. A victim who has suffered economic loss from the crime in question may also be ordered compensation as part of the evidence.

If the victim is dissatisfied with the outcome of the case he should discuss this with the prosecutor concerned. Sometimes the public do not understand legal issues and verdicts can be misunderstood. The prosecutor should explain these issues and advise on the prospects of appeal.

Another means of dealing with the case is by Alternate Dispute Resolution (ADR). This basically involves the accused and complainant deciding on a mutually acceptable outcome facilitated by a neutral party (usually the Prosecutor). The ADR process is usually reserved for less serious cases such as assault, malicious damage to property, negligent driving and less serious theft cases, although it has also been used for more serious cases.

The victim is not obliged to participate in the ADR process and can insist on the matter being dealt with by the Court. However the main advantage of the victim’s participation is that the case will be resolved quickly and the complainant will have a “say” (or more impact) in the outcome. Typical methods of resolving such cases can be a formal apology, compensation or community service. This is a more formal process, does not involve court and is usually done in private in the prosecutor’s office. If there is no mutual agreement then the case will go to trial in the ordinary way.

Bail is a very misunderstood concept. Bail does not mean the person has been let off; also it is not a sentence but rather a method of ensuring that person’s attendance at Court.

If an accused has been arrested for a crime he may be released on warning by the police before appearing in court but this is only possible for certain less serious offences. If this does not happen, bail proceedings take place at a hearing to decide whether or not bail is to be granted and to determine the conditions of bail. There are other categories of offence where the police can ask a prosecutor to consider bail after official court hours, and an accused person who has been arrested should ask the police to assist him with these queries. The mere fact that the accused is charged with a serious offence is not a reason in itself to refuse bail. In most offences, the prosecution will have to show to the court that there are valid grounds for the court to deny bail. These may include that the accused is a flight risk, will interfere with witnesses or destroy evidence or will become a danger to the public if released. Just like every application in Court the prosecution and the accused are entitled to present evidence, challenge evidence and argue for the granting, or refusal, of bail. In some categories of more serious offences, the law has placed an onus on the accused, making it more difficult to obtain bail. A person who is given bail is not “let off” as they will still be expected to appear before the court on the date set for trial. Bail applications are given priority by the Courts as they are of an urgent nature for the liberty of the accused will be at stake. If bail is refused, the accused will remain in custody until the completion of the case. If bail is granted then the accused will have to pay the stipulated bail money over to the Clerk of Court before he can be released. This money is held as security until the completion of the case when it is refunded to the accused. However if the accused fails to adhere to the conditions of bail then a warrant may be issued for his arrest, the bail cancelled and his bail money forfeited to the State and he will be held in detention until the end of the case.

The trial will begin by the prosecutor reading out the charges to the accused who will be required to plead to them. The accused is entitled at this stage to tell the court what the basis of his defence will be. After that the prosecution will present its case by calling its witnesses. Every witness called by the prosecutor is entitled to be cross-examined by the accused or his legal representative. Once the prosecutor has closed his case the accused can decide to give evidence himself, call witnesses in his defence or remain silent. Any witness called by the defence is also open to be cross-examined by the prosecutor. Once the defence has closed its case, then both the prosecutor and defence are entitled to present argument as to why the accused should, or shouldn't, be convicted. The Court (magistrate or judge) will then pass judgement, summarising and analysing the evidence and then finding the accused guilty or not guilty. If the accused has been found guilty then the court must consider an appropriate sentence. Again both parties are entitled to present argument or evidence in mitigation and / or aggravation of sentence. The court generally has a very broad discretion in what sentences to pass and can take into account a number of factors. Sentences can include imprisonment, a fine, a suspended sentence, correctional supervision, community service or a combination of sentences. If the accused is aware that a fine may be imposed, he would be advised to bring money to court because if the fine is not paid, then the accused will have to go to prison. However he will have his bail money refunded to him at this stage which can also be utilised to pay a fine or part of it.