CRIMINAL LAW

There are three types of bail and Chininga Attorneys will assist you to apply for either of the three depending on the offense you are charged with.

Police Bail / after hour bail application

In terms section 59 of the Criminal Procedure Act an arrested person can apply for bail at the police station before the expiration of 48 hours and before if the offense for which the accused is in custody for does not fall under Part II or Part III of a Schedule 2 offense. Such offense is not seen as one of a serious nature for example offenses such as theft under R2500, common assault or possession of dagga less than 115 grams, exceeding the speed limit.

Prosecutor Bail:

In terms of section 59A, the DPP, or a prosecutor authorized by the DPP, may authorize the release of an accused on bail before their first court appearance if the accused is in custody on a Schedule 7 offense. A Schedule 7 offense is slightly more serious than that for which police may fix bail under section 59. For example, culpable homicide, assault, grievous bodily harm, robbery, theft and fraud (where the amount involved does not exceed R20,000) and possession of drugs. Other serious offenses the Court on a formal application will then determine whether to grant bail or not. The accused will need to be brought to court within 48 hours of being arrested if bail has not been granted by the prosecutor or police.

Bail Applications in Court:

The last form of bail can be applied for is at the first court appearance in terms of section 60 of the Criminal Procedure Act.

At the bail hearing the accused must inform the court of any other charges or convictions and if there is any pending criminal charges against them. The prosecutor may state on record why bail should not be granted if they feel the need to oppose the bail. The court will take all this information into account before making a decision. The court will various factors into account before granting the bail. The court may postpone the application, but not for longer than 7 days.

Should the accused be granted bail the accused will have to follow certain bail conditions and will need to ensure that they are present at each court appearance or their bail will be revoked.

You do not have to stay in prison until brought to court for a first appearance. Your right to an attorney and the right not to be deprived of your freedom without just cause are protected by both the Criminal Procedure Act 51 of 1957 (CPA) and the Constitution.  Also bear in mind that according to the Constitution you are presumed innocent until proven guilty.  You have thus the right to apply for bail pending the finalization of your case if interests of justice permit your release.

Expungement is a process by which a criminal record of a convicted offender is removed from the criminal record database of the Criminal Record Centre of the South African Police Service.  In terms of Section 271B of the Criminal Procedure  this can only be done after a period of ten years have passed after the date of the conviction for that conviction and that there has been no conviction and sentences during those ten years.

It is difficult to find your desired employment opportunities if you have a criminal record. South African firms frequently request criminal record checks.

A person will not qualify for expungement if he or she was convicted of a sexual offence against a child or a person who is mentally disabled or of an offence, where he or she was found to be unsuitable to work with children. His or her name is included in the National Register for Sex Offenders or the National Child Protection Register but may qualify if his or her name has been removed from the National Register for Sex Offenders or the National Child Protection Register.

There are certain standards to be met in order to qualify for the expungement in South Africa.  Listed below are a few qualifying factors:

• The existence of the record has been for at least ten years and no subsequent convictions were recorded.
• The offence must have been of a trivial nature, such as shoplifting, petty theft, etc.  Convictions of crimes of a serious nature, such as rape, murder and other sexual offences do not qualify for criminal record expungement.
• You were given the option of paying a fine.
• You were advised that paying a fine would not result in a criminal record, but found subsequently that the criminal record does exist.

Chininga Attorneys Inc. will  assist you with compiling and submitting an application to the Director-General. If the Director-general is satisfied with the requirements, a certificate of expungement will be issued by the Director-General to the Criminal Record Centre of the South African Police Service. The Head of the Criminal Record Centre will inform the applicant in writing that his convictions and sentences have been expunged. Please note this process usually takes about 20 – 28 weeks.

The possession of drugs or dealing in drugs are considered serious crimes in South Africa. Should the police find you in possession of illegal drugs, the court is unlikely to show you much mercy. If you are arrested, the investigating officer will take you into custody and you will be held in the police cells until you are charged or until you are granted bail.

If a group of people are found in possession of drugs, a charge of ‘joint possession’ could be made and all people in the group would face criminal charges.

If the quantity of drugs found in your possession is over a certain threshold, you could also face a charge of drug dealing, which carries an even higher penalty. The type and quantity of drugs found in your possession will determine what type of conviction you will face. Unfortunately the offender may end up with a criminal record and may be sentenced to imprisonment. This is very traumatic for both the offender and his/her family.

There is currently a lot of confusion regarding the offence of possession vs dealing in cannabis. On September 18 2018, the Constitutional Court ruled in favour of cannabis use by South Africans by declaring that section 4(b) and 5(b) of the Drugs and Drug Trafficking Act (Drugs Act), as well as section 22A (9) (a)(i) of the Medicines and Related Substances Act (the Medicines Act), is constitutionally invalid as it is inconsistent with a person’s fundamental right to privacy.

The court ruled that it was not a criminal offence for an adult to use, possess or grow cannabis in private for personal consumption.  When this ruling was made it was founded on the right to privacy. We must ensure that we understand that the ruling did not decriminalize or legalize cannabis use. It merely allowed for the defence of privacy if charged with possession in your own home.  As soon as you step out of your home with cannabis in your possession you are subject to the full force of the law.

Negligent driving occurs when drivers fail to use reasonable care while operating a motor vehicle, which conduct can lead to personal injuries to other people and/or damage to one or more motor vehicles.

Due to the high number of deaths as a result of reckless and negligent driving in South Africa, the public and authorities have called on the National Prosecuting Authority (NPA) to impose harsher sentences on reckless drivers.

Breaking road traffic laws is a serious affair and the nonsense of believing that they may do so, as long as they pay a fine for the privilege, should be abandoned.

A driver can be arrested on the spot  for contravening the following offences:

• Exceeding the speed limit by more than 30 km/h in an urban area;
• Exceeding the speed limit by more than 40 km/h outside an urban area or on a freeway;
• Reckless or Negligent Driving;
• Driving under the influence of alcohol or a drug having a narcotic effect;
• Excessive overloading;
• Fraudulent licence, licence disk or number plates;
• Absence of number plates.

Previous convictions handed down for speeding that made headlines include the following:

• In January 2014, Bronkhorstspruit Regional Court convicted Steve Hofmeyr for speeding. His fine was R10 000 but the “option” of a term of imprisonment, as well as the mandatory suspension of his driving licence was avoided by a plea agreement.
• In December 2016, Hibberdene Magistrate’s Court convicted Sthembiso Xolani Ntombela for speeding. His fine was R40 000 and his driving licence was suspended for twelve months..
• In February 2017, a taxi driver was convicted for reckless or negligent driving in the Bishop Lavis Magistrates’ Court, Cape Town. He was sentenced to a R10 000 fine or 200 days in prison plus R1000 for being an unlicensed driver.
• In July 2017, The Cullinan Magistrate court sentenced Olayori Abdul Bakare to two years imprisonment or accept a fine of R10 000. His driver’s licence was suspended for a period of five years.

It is very important to remember that in the case of speeding, as listed above, you will be arrested. A criminal trial will follow, meaning that if you are found guilty of the offence, you will get a permanent criminal record. In addition, the Act furthermore stipulates that your driving license will be suspended for a certain period if you are convicted

If you face a charge of reckless or negligent driving, you need to speak to one of our experienced criminal defence attorneys at Chininga Attorneys in East London