Legal Articles

South Africa recently commemorated Human Rights Day on 21 March 2022. The regard for human rights is an important cornerstone of a healthy democracy. It puts paid therefore, that the Bill of Rights occupies a prominent place in our Constitution. As part of the commemoration, we shall briefly discuss the rights of accused persons in criminal litigation. 

It ought to be mentioned from the beginning that accused persons in criminal litigation have the full benefit of the law like anyone else in the republic. Of course, there are specific rights that are applicable in criminal litigation that are not necessarily applicable to a person who is not under the same circumstances. We shall briefly look at these.

Section 38 of the Criminal Procedure Act 51 of 1977 (CPA)

38.          The methods of securing the attendance of an accused in court for the purposes of his trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act.

The section above provides for the different methods of how a person accused of committing an offense can be arraigned before the Courts to answer to the allegations levelled against him/her. There being several methods to do so, it goes on a case by case basis as well as the interests of justice to determine which method to use under the circumstances. For instance, where the charges are serious and there is a high risk that the accused may turn fugitive upon learning that there are charges levelled against them in Court, then arrest may be deemed appropriate. The accused will then have to apply for bail, supported by sufficient evidence to show cause that they are not a flight risk and therefore a good candidate for release on bail. It must be noted that not being a flight risk is not the only reason why a Court may consider to release an accused on bail, there are other factors that come into play such as the safety of the accused from the community members, the potential of the accused interfering with witnesses and/or investigations, their ability to pay the bail amount, the accused being of fixed abode, the propensity to commit further offenses while out on bail etc.

An arrest is not a trivial affair and therefore, where the circumstances do not reasonably justify an arrest, a summons or written notice to appear ought to be considered.

Section 39 of the Criminal Procedure Act 51 of 1977

39.          (1)          ….

(2)          The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.

The above section provides for the right of the accused to be informed of the reason why they have been arrested and the authority (warrant) under which such arrest has been effected. Indeed, an arrest may be effected without a warrant but this is an exception rather than the norm. An arrest without a warrant may be effected where the circumstances are that by the time the warrant is sought the commission of the crime would be inconsequential, the suspects would have fled the scene or that had the warrant been applied for prior, it would have been granted. It therefore rests to the discretion of the peace officer on the scene, subject to the aforementioned considerations.

Section 35 of the Constitution of the Republic of South Africa Act 108 of 1996

35.          (1) Everyone who is arrested for allegedly committing an offence has the right—

(a) to remain silent;

(b) to be informed promptly—

(i) of the right to remain silent; and

(ii) of the consequences of not remaining silent;

(c) not to be compelled to make any confession or admission that could be used in evidence against that person;

(d) to be brought before a court as soon as reasonably possible, but not later than—

          (i) 48 hours after the arrest; or

Section 35 contains substantial provisions of the rights of accused persons in criminal proceedings. It provides for the right to remain silent and to be informed of such right, to a fair trial, to be given information in a language that they understand, to adduce and challenge evidence, adequate time to prepare for their defence, to have a public trial in an ordinary Court etc.

Stemming from Section 35 (3) (h) it ought to be remembered that accused persons are to be presumed innocent until proven guilty by a Court of law, and read together with 35 (3) which accords the right to a fair trial, it puts paid to the notion that the State and the community should not ill-treat nor be abusive towards accused persons. There have been reports in communities and in the media about police brutality towards accused persons in some instances, where assaults and abuse are alleged. IPID was set up to investigate complaints against members of the police and such incidences should be brought to the attention of IPID to investigate further.

Van Deventer and Van Deventer Incorporated assists with criminal litigation, human rights law, family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in general litigation, civil matters, labour, personal injury, company law and deceased estates amidst an array of others.

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