Procedure for Criminal Trials

Every now and again, the trial of someone accused of a criminal offence attracts the public attention. It could be because of the person’s celebrity status, or because the victim was high-profile, or simply because the nature of the crime intrigues the morbid curiosity of human beings.

Often the public media reports on features of the trial such as bail; the investigating officer; the admissibility of evidence (meaning whether the evidence can be used in the trial to establish the accused’s guilt, or innocence); cross examination; and so forth.

Well, these – and many more aspects of a criminal trial – are all governed by a statute called the Criminal Procedure Act 1977. It contains a number of provisions creating criminal offences.

A. Collecting evidence and securing a person’s attendance in court

The police can obtain a search warrant, which enables them to enter and search premises, search any persons, seize items or articles they suspect of being used in the commission of an offence, and so forth.

  1. If a police official acts outside the authority granted by the search warrant, he himself commits a criminal offence.1
  2. Any police official who conducts any search, seizes any article or enters any premises without a warrant also commits an offence.2 (This does not apply if the official has reasonable grounds for believing that he would get a warrant, and the delay in obtaining the warrant would mean that the purpose of the exercise would be defeated. In this case he can act without a warrant or if the person concerned consents to the search, or if the search is of an arrested person.)3

  3. A police official must take fingerprints of anyone arrested on a charge, released on bail, or summoned for a serious offence.4 Sometimes the police will also take ‘body prints’ or photographic images. It is a criminal office if any person:5
    • uses such prints or images, or allows their use, for any purpose that is not related to:
      • the detection of crime;
      • the investigation of an offence;
      • the investigation of missing persons or human remains;
      • the conducting of a prosecution.
    • tampers with the prints or images;
    • manipulates the processing of the prints or images;
    • falsely claims that the prints or images were taken from a specific person, knowing that they were taken from another person.
  4. Where someone has been arrested in connection with any one of a wide variety of offences (listed in Schedule 8 to the Act) a member of the Independent Police Investigate Directorate (IPID) must take a ‘buccal‘ sample, which is a sample of cellular material taken from the inside of a person’s mouth; or he must see to it that a doctor or nurse takes an ‘intimate’ sample which is a sample of blood or pubic hair, or a sample taken from the genitals or anal orifice area of the person’s body.6 These samples may only be used:
    • to serve as a criminal investigative tool in the fight against crime;
    • to identify persons who might have been involved in the commission of offences;
    • to prove the innocence or guilt of an accused person;
    • to exonerate a person convicted of an offence; or
    • to assist with the identification of missing persons or unidentified human remains. It is a criminal offence to use these samples for any other purpose.7
  5. A peace officer (which includes a police official) has wide powers of arrest, and investigation. He can question any person who he reasonably suspects of having committed a crime; or who may be able to give evidence in regard to an offence; or who he has the power to arrest, for his name and address. If you are such a person, it is a criminal offence to refuse to give your name and address. It is also an offence to give an incorrect name and address.8

  6. A police official can also call upon any male person, aged 16–60, to assist in the arrest or detention of any person once arrested. It is a criminal offence to fail to assist, without good reason.9

  7. If you attempt to escape from custody after you have been arrested (even before you have been charged) it is a criminal offence.10 If someone else tries to free you from custody, or assists you in your attempt to do so, he too commits a crime.11

  8. If you are summoned as an accused, it is an offence if:
    • you fail to appear at the place, on the date and at the time stipulated;
    • if you appear at the place stipulated, but fail to remain in attendance throughout the proceedings.12
  9. The same applies to a written notice to appear in court. This replaces a summons, where the sentence (if you are convicted) will not be worse than a fine of R5 000.13 14

  10. An accused person who is warned by the court to appear, when proceedings are resumed after an adjournment, is guilty of an offence if he fails to appear.15

  11. Any person who is given written notice by a police official that he is required as a witness, must keep such official informed of the residential or other address where he may be found, and commits an offence if he does not do so.16

  12. Any potential witness who is arrested (because he is about to abscond) may be released after he has been given a warning by the court. If he fails to comply with the warning – i.e. that he must appear at the proceedings at a certain date, time and place - or fails to comply with any conditions for his release, it is a criminal offence.17

  13. It is an offence if you are subpoenaed to attend criminal proceedings as a witness; or, as a witness, you are warned by the court to remain in attendance at criminal proceedings, and you fail to do so, including in respect of any adjournments of the procedures.18

  14. A court can also sentence you to imprisonment if you are required to give evidence, and you refuse to be sworn in; or refuse to make an affirmation about the truth of your evidence; or you refuse to answer any questions unless you have a just excuse.19

  15. It is an offence if the accused is required to produce a certain document at the proceedings and fails to do so.20

  16. It is an offence for a witness who has not even taken the oath, or affirmed the truth of his evidence, knowingly to give false testimony. He is deemed to have committed perjury.21

B. Bail

  1. In an application for bail, the accused must inform the court whether he has previously been convicted of an offence, and whether there are any other charges pending against him and whether he has been released on bail in respect of those other charges. If he refuses or fails to do so, or if he gives false information, he becomes guilty of an offence.22

  2. Any person who is out on bail must:
    • appear at court on the date and time determined and remain in attendance;23
    • comply with any condition of bail. It is an offence not to do so without good reason.24
  3. The same applies to someone who is released on a warning to appear at court.25

C. Proceedings in camera and publication of information about criminal procedures

It is a basic principle of justice not only that it must be done, but also that it must be seen to be done. This is why, in days gone by, execution of condemned prisoners always took place in the town square. It is also one reason why trials are still conducted in ‘open court’.

However, circumstances may arise when the proceedings must be held behind closed doors – the legal expression is in camera, meaning ‘inside the room’ (chamber), in Latin. The reason might be the interests of State security, public morals, because children are involved, the safety of witnesses, and similar situations.

Then the court can order that the public, or any class of the public, shall not be present at such proceedings. It may then, also order that no information relating to the proceedings shall be published; or that (if appropriate) the identity of a witness shall not be revealed.26

  1. If the court makes an order, restricting attendance at the proceedings, it is a criminal offence to publish any information which might reveal the identity of the complainant in sexual offence or extortion (blackmail) cases.27

  2. If the court makes an order prohibiting the publication of any information relating to the procedures,or revealing the identity of a witness, it is a criminal offence to publish any information:28
    • except the name of the accused, the charge, the nature of the accused’s plea, the verdict and the sentence;29
    • that reveals the identity of the witness.30
  3. It is also an offence to publish any information which might reveal the identity of an accused or a witness who is under the age of 18 years.31

  4. It is a criminal offence to publish any information about a charge in a sexual offence or extortion case before the accused person has appeared in court and pleaded to the charge.32

  5. In the case of sexual offences, it is a criminal offence to publish any information which might reveal the identity of the complainant, as from the date of the alleged offence.33

D. Evidence

Sometimes, evidence is required which involves forensic examination, or scientific knowledge and skill – whether it be in mathematics, biology, physics, anatomy, ballistics, computer science, etc. Similarly, sometimes, evidence is required regarding the handling of certain evidence - for example, a blood sample.

This evidence can be proved by the person making an affidavit, or just giving a certificate.

  1. Perjury is the crime of giving false evidence whilst under oath or having made an affirmation. It is also a crime to state anything which is false in such a certificate, even if it is not under oath.34

  2. It is also a criminal offence to make any false endorsement on a syringe or container used for blood analysis.35

  3. Under certain circumstances the written statement of a witness can be used as evidence, instead of them having to testify in person. It is an offence for a person knowingly to state something false in such a statement, even if not under oath. They are deemed to have committed perjury.36

  4. In criminal proceedings an official document can be proved by way of a certified true copy. It is a criminal offence for an official falsely to certify a copy as true.37

  5. Similarly, it is a criminal offence for a registrar or clerk of the court falsely to certify a copy of the record of criminal proceedings as true.38

  6. It is an offence39 for a person to make a statement under oath (whether orally or in writing) which is in conflict with a statement made previously under oath by the same person.

Sometimes, certain facts are presumed in order to facilitate the administration of justice. For example, if you are charged with an offence and the fact that you did not pay tax is an element of this offence, the Act states that it is presumed that you did not pay the tax and it is up to you to prove that you did – in other words, as the lawyers say, discharge that presumption. The Act specifically states that where you are charged with an offence because you did something for which you needed a licence, authorization or permit, it is presumed that you did not have such a licence etc, and it is up to you to prove that you did.40

  1. If someone is in fact the holder of a licence, permit, etc, and is asked by a member of the SAPS or other authority to produce it, he commits a crime by failing to do so.41

E. Periodic imprisonment and community service

Many laws prescribe minimum sentences as punishment for the offences in question. If no minimum sentence is prescribed, the court has a discretion to sentence the person concerned to periodic imprisonment. In this case, a notice will be served on the person setting out the terms of such imprisonment. The court may also postpone the passing of sentence or suspend a sentence on condition the person performs community service or submits to correctional supervision.

  1. It is a criminal offence:
    • not to comply with any of the terms of the notice;42
    • to arrive for imprisonment whilst intoxicated by liquor or drugs;
    • to impersonate or pretend to be the person (i.e. someone else) who is obliged to arrive for imprisonment.
  2. It is also a criminal offence to:
    • report for community service whilst intoxicated by liquor or drugs; or
    • impersonate or pretend to be the person who is obliged to perform community service.43
  3. If a person is convicted of an offence, record is kept of the conviction. Under certain circumstances a person’s criminal record may be expunged (wiped clean). A person is guilty of an offence if, without the necessary authority, they intentionally or grossly negligently expunge a criminal record, or confirm that it is expunged.44

  4. If an offence is committed by a corporate body, any person who was a director or servant of the corporate body at the time of the commission of the offence, unless he can show that he did not take part in the commission of the offence and that he could not have prevented it.45

  5. Similarly, where an unincorporated association person commits an offence, a member (or the committee) of the association is deemed to have committed the offence.46
  1. Section 28(1)(a). 

  2. Section 28(1)(b). 

  3. Section 22 and section 23(1). 

  4. Section 36B. 

  5. Section 36(B)(d). 

  6. Section 36D(1). 

  7. Section 36D(7)(c), read with section 15F of the South African Police Service Act 1995. 

  8. Section 41(2). 

  9. Section 47(2). 

  10. Section 51(1). 

  11. Section 51(2). 

  12. Section 55(1). 

  13. A written notice may also be issued if an accused is required to appear in court again to be sentenced afresh after an appeal or review. 

  14. Section 56(5) and section 314(2). 

  15. Section 170. 

  16. Section 183(2). 

  17. Section 184(3). 

  18. Section 188(1). 

  19. Section 189(1). 

  20. Section 338. 

  21. Section 164(2). 

  22. Section 60(11B)(d). 

  23. Section 66 and section 67A. 

  24. Section 67A. 

  25. Section 72(2)(a). 

  26. Sections 153(1), 153(2), 154(1). 

  27. Sections 154(5) and 153(3). 

  28. Section 153(2)(b); section 154(1), read with section 154(5). 

  29. Section 154(1) read with section 154(5). 

  30. Section 153(2)(b) read with section 154(5). 

  31. Section 154(3) read with section 154(5). 

  32. Section 154(2)(b) read with section 154(5). 

  33. Section 335A(2). 

  34. Sections 212(4)(b) and 212(8)(b). 

  35. Section 212(11)(c). 

  36. Section 213(6). 

  37. Section 234(3). 

  38. Section 235(2). 

  39. Under section 319(3) of the Criminal Procedure Act 56 of 1955 (the only section of that Act not repealed by the current Criminal Procedure Act 1977). 

  40. Section 250(1). 

  41. Section 250(3). 

  42. Section 285(4). 

  43. Section 297 (8B). 

  44. Section 271D(3). 

  45. Section 332(5). 

  46. Section 332(7).