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Legislation in South African Criminal Law

South African criminal law is founded on common law, case law, and legislation. Common law is the body of unwritten laws established over a period from old customs and court decisions. Case law consists of judgments of the courts when they are presented with novel questions of law. The outcomes of these cases become precedents for subsequent court cases. Legislation refers to Acts of Parliament (also called statutes) which are passed to govern various areas in the country. Acts of Parliament are the most potent form of law and can override both the common law and the decisions of the courts.

There are several main Acts which govern aspects of Criminal Law in South Africa. Let us have a brief look at a number of these.

The Criminal Procedure Act 51 of 1997

The Criminal Procedure Act governs criminal procedure in South Africa's Criminal Justice System. It sets out the procedure for the entire area of Criminal Law. As the name implies, this is not an Act which deals with specific crimes. It deals with procedural matters such as arrest, search and seizure, pressing charges, bail, proceedings in the criminal law process, sentencing, appeal, witnesses, and the rules of evidence. Many of the provisions of the Act relate to the Police and how they carry out their functions.

To view the Act: Criminal Procedure Act 51 of 1977

Criminal Law Amendment Act 105 of 1997

This Act makes provision for the setting aside of all death sentences in any part of the law. It also provides for minimum sentences in certain serious crimes.

To view the Act: Criminal Law Amendment Act 105 of 1997

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

This Act was passed to review and amend all aspects of the laws relating to sexual offences comprehensively and extensively. This Act repealed or amended many of the common law offences relating to sexual misconduct.

To view the Act: Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

The Rome Statute

The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). South Africa is a signatory to this Statute and therefore a member state of the ICC.

To view the Statute: Rome Statute

Conclusion

There are a few other statutes which impact on South African Criminal Law, including the Constitution itself. However, most of the Substantive Criminal Law, that is, the law defining the various crimes, is still dealt with by the common law.

Frequently Asked Questions about Criminal Law

What is Legal Expenses Insurance?

Legal Expenses Insurance, like other forms of insurance, comprises a monthly payment to an organisation ("the insurer") in exchange for certain benefits. Vehicle insurance is a good example: policyholders pay a monthly amount to the insurer; should the policy holder's vehicle get damaged; the insurance company pays for the damages. This is a benefit the policyholder is happy to pay for.

With Legal Expenses Insurance, the policyholder pays a modest monthly premium, in exchange for the benefit of having his legal fees paid should he require a lawyer under certain circumstances as set out in the policy.

It is well known that legal costs are excessive. For the average man in the street, they are unaffordable. Yet the possibility of needing legal assistance is ever-present and increasing. Legal Expenses Insurance comes to fill in this gap.

We are all happy to have medical insurance (if we can afford it) in case we fall ill and need medical treatment. Legal Expenses Insurance is no different; the benefit it provides is real and necessary.

Which crimes carry the highest sanctions?

Murder is regarded as the most serious crime. Other crimes involving bodily injury such as assault with intent to do grievous bodily harm are also dealt with harshly. Sexual crimes such as rape and indecent assault are also treated very seriously by the Court. Drug trafficking is another crime treated harshly by the courts.

Do I need an attorney if I am a victim of a crime?

Generally, you do not need to appoint your own legal representation when you report a matter to the South African Police Services. The accused is prosecuted by the state as he committed a crime in terms of South African law. Thus if the matter is prosecuted, the state will act as your representative in the matter.

What is the difference between Advocates and Attorneys?

Advocates are court specialists. Their primary function is going to Court and arguing cases. Another central role of an advocate is providing written opinions on the law for attorneys. While an attorney may appear in Court, this is not their primary function. An attorney drafts wills, agreements, contracts, court documents and letters to other attorneys. Attorneys are involved in litigation, but usually in support of the advocate. Contrary to popular belief, an advocate is not more qualified than an attorney. Both parties actively take part in the legal field but specialise in different things.

Does the Constitutional Court hear criminal law matters?

Yes, it can hear criminal cases. As with other cases, if there is an issue which a party alleges is against the Constitution, and which would change the outcome of the case, it may be heard in the Constitutional Court.

How does a judge decide what to sentence an accused person?

When sentencing a convicted criminal, the Judge must consider three factors: The seriousness of the offence; the personal circumstances of the criminal; and the public interest. The Judge must weigh up these three factors in coming to his decision regarding sentence.

Why is bail sometimes refused?

One of the essential factors considered by a judge in granting bail is whether the accused is a "flight risk". In determining whether an accused is a flight risk, the Judge will look at whether the accused has assets in the jurisdiction of the Court, and whether the accused has emotional, family, community or occupational ties. If the Judge believes the accused is a flight risk, he will not grant bail.

How does the Judge decide how much bail an accused must pay?

A judge decides on the amount of bail based on factors like the seriousness of the crime, the possibility that the accused will commit more crimes once released, the chances that the accused will flee, and the number of assets the accused owns. You may have noticed that when the accused is wealthy, the bail is often a significant amount.

Does one need to study specialised courses to become a criminal lawyer?

No, one does not have to study more to become a criminal lawyer. However, there are optional degrees and diplomas in criminal law that an attorney may study to deepen his knowledge.

What must be proved to find a person guilty of a crime?

The State must prove two things - that the accused performed the "actus reus" of the crime and had the requisite "mens rea". This means that the accused carried out the physical act of which he is accused, for example, he hit the victim with a vase. It must also be proved that the accused intended to commit the crime. In our example, the accused may argue that although he hit the victim with the vase, it was an accident and he had no intention to assault the victim.

Is criminal law the same in all countries?

In most legal fields, the law is quite different from country to country. For example, states may differ significantly in the way they interpret wills, or in their tax laws. However, in the field of criminal law, the substantive law is much the same worldwide. Criminal behaviour in one county or culture is generally criminal in most others. However, what does differ from country to country is criminal procedure. This includes arrest procedures, police rules and court procedures.

What happens if the State refuses to charge a person suspected of committing a crime?

It sometimes happens that the prosecuting authorities decide not to prosecute an alleged criminal. This may be because of a lack of evidence, or, some would argue, a lack of political will. In such a case a private citizen is entitled to institute a "private prosecution". To proceed with a private prosecution, the interested party must get a "certificate of non-prosecution" from the prosecuting authorities. This certifies that they do not intend to prosecute the alleged criminal. This is however very costly and time consuming but it has happened in various cases in South-African history.

Can a police officer arrest you if he suspects that you have committed a crime?

Yes, if the policeman reasonably suspects that you have committed a crime, he may arrest you without a warrant.

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