Criminal Law

Bail

After your arrest you can be released in the following ways before the court case:
If you are under 18 years old, you can be released into the care of your parents or guardian
OR
you can be released with a warning to appear in court on a certain date
OR
you can be released on bail
What is Bail?
Bail is money paid to the court or to the police. Once paid, you can go home until the date of your court case.
When your court case ends, you are entitled to get the bail money back, even if you are found guilty.
When will you not get the bail money back?
 
You will not get your bail money back:
  • if you do not come to court on the day of your court case
  • if you interfere with any witnesses
  • if you break any of the conditions of bail
If you are released on bail, you will get a written notice.
 
This notice will inform you where the court is and the day and the time that you must be present at court.
It will also list conditions, for example, that you must report every week to the police station.
 
Types of bail
There are three kinds of bail:
1. Police bail
2. Bail by certain prosecutors
3. Court bail
Police bail
As soon you have been arrested and taken to the police station you can ask the police for bail.
If they approve, they will decide how much bail you must pay.
The amount must be paid in cash.
You must get a receipt saying how much you paid and when you must appear in court.
Once you have paid the bail the police must release you.
What if the police do not agree to grant bail?
If the police will not agree to grant you police bail, you must wait for the court hearing.
At 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 telephone the duty prosecutor to check whether you can get bail.
 
Court bail
When you are brought to court, the court case usually does not finish on the same day.
You have a right to ask the court to be released on bail until the case finishes.
You can ask for bail at any time on or after the first day in court.
When you ask for bail you must convince the judge or magistrate that:
  • You will not run away
  • You are not a danger to other people
  • You will not commit further crimes
  • You will not intimidate any witness in the case
  • You have a permanent address
If you ask for bail you (or your attorney) must give the court details of where you live, your employment situation, and reasons why the granting of bail is important for you.
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.
Note
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. This is done in a bail hearing at court, where the accused will bring evidence to show why he/she 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.
 
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.
 
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.
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.

Sexual Offences

What are sexual crimes (offences)?
The Sexual Offences Amendment Act (SOAA) protects any person who has experienced rape, sexual assault, sexual grooming, incest, child pornography or prostitution.
Rape occurs when a person forces another to have sexual intercourse without their consent. This is a crime and must be reported.
Sexual assault occurs when a person sexually violates another person without their consent. This is a crime and must be reported.
Sexual grooming occurs when a person educates/introduces or prepares a child to perform/witness any sexual act or became sexually ready. A child is usually unaware that the person is grooming him/her for sexual acts because this person is often nice to the child. This is a crime and must be reported. The same may also occur with persons living with mentally disabled persons.
 
Incest occurs when people who are related and are not allowed to marry each other engage in a sexual act with each other. Even if they both agreed to do so, it is illegal and should be reported.
Child pornography occurs when a person or company uses a child for a reward or money for the purpose of publishing pornographic material.
Child prostitution occurs when a person uses a child or any person living with mental disabilities to expose or display to prostitution or engaging him/her in sexual acts for a reward.
Who can be a victim of rape or sexual crimes? 
Anyone (women, men, children, babies), irrespective of gender, can be a victim of rape and it is not their fault that it happened.
The SOAA requires all criminal justice officials (Police, Prosecutors, Magistrates and Court Clerks) to deal with all reported sexual crimes without discriminating against victims due to race, nationality, sex, age, sexual orientation or any other reason.
The SOAA recognises that in our communities the majority of victims of sexual offences are children, women and persons living with mental disabilities. It further extends the responsibility to members of the public including government and private institutions to report any form of sexual violence against all vulnerable persons.
Some of the rights of victims of rape and related sexual crimes: 
You have the right to:
1. Dignity and Privacy – When you report cases to the police and at a public hospital or clinic. When you report to police, you will be taken to a separate room where you can speak in an office or environment that you are comfortable in.
2. Information – When you report to a public hospital, you will receive information on procedures required to have the alleged perpetrator be tested for his or her HIV status and your right to receive Post Exposure Prophylaxis (PEP).
3. Treatment – The courts will appoint a competent person to act as an intermediary in cases where a witness under the age of eighteen would suffer undue mental stress if he or she were to testify at such proceedings without the assistance of intermediary services.
Any referral made in respect of a person or child that is/was a victim of sexual violence, must be to an accredited centre or shelter.
For more information, contact: 
Chief-Directorate: Promotion of the Rights of Vulnerable Groups
Private Bag X81, Pretoria, 0001
Tel: 012 315 1808/1656
Fax: 086 653 3306

Information for individuals who are a witness in a trial

In a court proceeding, a witness may be called (requested to testify) by either the prosecution or the defence.

The side that calls the witness first asks questions in what is called direct examination. The opposing side may then ask their own questions in what is called cross-examination.

In some cases, redirect examination may be used by the side that called the witness but usually only to contradict specific testimony from the cross-examination.

Every witness is important

  • The court must return a fair verdict and witnesses are therefore essential.
  • By testifying, you enable the court to act reasonably and fairly.

What do you do on the fixed trial date and time?

  • You have to appear in court in person.
  • It is best to arrive at court half an hour before the proceedings start.
  • Immediately inform the attorney that you are present.
  • It often happens that witnesses have to wait before they are called to testify:
    • You are not allowed to attend the court case in which you will be testifying.
    • You have to wait outside.
    • You must be present until you are excused by the prosecutor, attorney or the Magistrate.
  • You should not discuss the case concerned with other witnesses.

In the court

  • Before you testify, you have to take an oath or solemnly affirm that your testimony will be truthful.
  • You will be questioned by the attorney or public prosecutor.
  • You may only address the court.
  • The correct form of address in a lower court (for example the Magistrate’s Court) is “Your Worship” and “My Lord” in higher courts (like the High Court).
  • You may only testify on facts that are within your knowledge. You will be guided by the legal practitioner.
  • Evidence told to you by someone else is inadmissible.
  • You may also be questioned by the opposing side. You must listen carefully and address your answers to the court. Stay calm and do not argue with the court, the lawyer or the prosecutor.
  • It is also possible that the court (Magistrate or Judge) may want to question you.
  • Speak clearly and audibly throughout.

Your protection

  • You need not be scared of testifying.
  • You can be protected against intimidation.
  • If you fear intimidation or are at any time threatened, you must report it to the public prosecutor or the investigating police officer.
  • In court, the presiding officer will ensure that you are not intimidated or questioned unreasonably.
  • If your testimony takes a long time and you become tired or indisposed, you have to inform the court.

Minor witnesses

  • If you are a minor, you may be assisted in court by a parent or guardian or another adult.

Witness fees

  • You are entitled to payment of a prescribed fee in certain instances.
  • This is not compensation for your testimony.
  • It is intended to limit the witness’s expenses due to court attendance and, in certain instances, loss of income.
  • If you believe that you qualify for such a payment, the public prosecutor must certify that you attended court, after which you have to report to the clerk of the court concerned to receive payment.

Witness friend

  • If you do not know where to go or have any queries, you may approach the witness friend.
  • If the witness friend is not present, you may approach the clerk of the court.
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