WHAT IS A CRIMINAL CHARGE?

A criminal case can be brought against anyone who has broken the law. This includes a member of the police (SAPS), or soldiers in the defence force (SANDF).
If you are unlawfully assaulted by a member of these security services, you can lay a criminal charge against the person. If you have laid a charge against a member of the police, they are sometimes reluctant to take the complaint or investigate the case. Likewise with cases that they don’t think are very important, they may refuse to take the complaint or the police investigation is stopped without a proper explanation.
The police cannot refuse to take a statement from a person who wishes to lay a complaint. If a police officer refuses to assist you with a charge, you can ask to speak to the Station Commander or lay a charge at a different police station.
Pressure from attorneys or the community can help to get the police to take an investigation more seriously. You can also get your Community Police Forum to take up the issue or you can refer the complaint to the Independent Police Investigative Directorate (IPID). (See Community Police Forums; See Reporting a case of police misconduct)

In a case where you have been assaulted or raped, you must be able to identify the person who assaulted or raped you. If you do not know the name but you remember the face, you must be prepared to point the person out at an identity parade. Even if you cannot identify the person by appearance or name, you must still lay a charge because there are other ways to positively link a person to crimes
of rape and assault, such as DNA testing or other forensic evidence available to the police. Immediately after the rape, go to a police station and get a J88 form. Do not wash or change your clothing, go straight to a doctor for an examination.

Remember that if you have laid a charge against someone and the person is charged, you will have to give evidence in court. You must be very sure of the facts that you give to the police in your statement because the defence will cross- examine you and try to catch you out.

Only the courts can decide if you have or anyone else has committed a crime or not. If the court finds you guilty of committing a crime, then you have to pay a fine, or go to jail or get a suspended jail sentence.

THE NATIONAL PROSECUTING AUTHORITY

The National Prosecution Prosecuting Authority (NPA) is responsible for instituting criminal proceedings against a person on behalf of the State. It is the NPA that decides whether a case against a person is strong enough to go ahead in a criminal court or not.

The Office of the National Director of Public Prosecutions includes the National Director, who is the head of the Office and manages the Office, Directors of Public Prosecutions, Investigating Directors and Special Directors.

There are 8 units that fall under the NPA:

• National Prosecution Prosecutions Services (NPS)
• Asset Forfeiture Unit (AFU)
• Sexual Offences and Community Affairs (SOCA)
• Specialised Commercial Crime Unit (SCCU)
• Witness Protection Unit (WPU)
• Priority Crimes Litigation Unit (PCLU)
• Integrity Management Unit (IMU)
• Corporate Services (CS)

The National Prosecutions Service, managed by a Deputy National Director and nine provincial Directors of Public Prosecutions (DPP), is responsible for prosecutions in both the high and lower courts of South Africa. The Constitution and the NPA Act provide the prosecuting authority with the power to institute criminal proceedings on behalf of the state and to do anything necessary related to this function which includes supporting the investigation of a case, or stopping criminal proceedings where necessary.

WHAT ARE YOUR RIGHTS IF YOU ARE CRIMINALLY PROSECUTED?

• You must be told what the charge is against you
• You have the right to a quick and public trial. You must be charged and taken to court within 48 hours after your arrest.
• You have the right to a trial by an unbiased court, usually in the area where the crime was committed
• At the trial, you have the right to question any witnesses and the evidence used against you (See Section 35 of the Bill of Rights: Arrested, Detained and Accused persons)
• You have the right to ask for an attorney. If you cannot afford an attorney, the state must help you to apply for legal aid to pay for an attorney. You have a right to legal aid if you face a serious charge. (See Applying for legal aid)

Many people are still sentenced to go to prison without being defended by attorneys. Make sure you ask the court for a lawyer or legal aid.

If you are denied any of these rights, you may be able to take the Court’s decision on review. (See Trials, appeals and review)

STEPS IN LAYING A CRIMINAL CHARGE AGAINST ANOTHER PERSON

1. If you have been injured in any way it is important to go to a doctor (or the state district surgeon) for a medical check-up as soon as possible.
2. Report your complaint at the charge office of the nearest police station.
3. Make a statement to the police. You must be very careful of what you say because you have to swear under oath that you are speaking the truth. Do not sign your statement if you are not happy with the way the police have recorded it. ASsk to change it before you sign. It is not up to the police in the charge office to decide whether a complaint is serious enough to be investigated. They MUST take a statement from anyone who some into the police station to make a complaint.
4. Ask for a copy of the statement before you leave the charge office. You have the right to get a copy.
5. Get the police reference number. This is the police register number of all complaints made at the charge office. This is your proof that you reported the crime to the police. The reference number is also called an OB number (Occurrence Book number) or VB-nOmber (Voorvalleboeknommer).
6. Get a medical report. If you are injured and you need medical treatment, the police will ask you to get a medical report form filled in. This form is called a J88 medical report. You can go to your own doctor or to the district surgeon to get this form filled in. Then you must take the completed form back to the police in the charge office. If you can, it is a good idea to make a copy of the form and keep this.
7. The police will open a case docket and investigate a criminal charge against the person or people whom you have laid a charge against. The case docket is given a number called a CR number (Criminal Register number) or MR nommer (Misdaadregisternommer).
8. Ask the investigating officer for the case docket number.
9. Check on progress by regularly contacting the investigating officer for your case. Whenever you phone you should quote the CR/MR reference number. If there is no progress with a serious case, and you are not satisfied that the police are doing everything they are supposed to, you might want to ask an attorney to phone on your behalf. If you believe the police are deliberately not investigating a case, for example of police corruption or assault by a police officer, you can make a complaint to the Independent Police Investigative Directorate (IPID). (See Reporting a case of police misconduct and See Problem 10: Police misconduct)

WHAT HAPPENS IF SOMEONE LAYS A CRIMINAL CHARGE AGAINST YOU?

THE INVESTIGATION

If someone makes a charge against you, or if the police suspect that you committed a crime, then they will investigate. Usually this means that they ask questions, visit places, search for things, and so on.

CHARGE AND ARREST

When the police have enough reasons to think that you committed the crime, then they will charge you. The charge is what they say you have done wrong. The police may arrest you when they charge you. Sometimes they may even arrest you before they charge you. If you are arrested but not immediately charged, the law says you must be brought before a Magistrate’s Court within 48 hours of being arrested.
You can immediately ask to contact an attorney. If you appear before a Magistrate you may ask for legal aid to get an attorney. (See Rights of arrested people) (See Applying for legal aid)

PRISONER’S FRIEND

If you do not have an attorney then you can ask for the Prisoner’s Friend as soon as you get to the court. Every Magistrate’s Court has a Prisoner’s Friend. This person is employed by the state to help people with telephone calls, organising bail money, organising witnesses, and so on. At smaller Magistrates’ courts, a court official called the Clerk of the Court may also be the Prisoner’s Friend.

STATEMENTS

When you are charged with a crime, the police usually try to take a statement from you. But you only need to give your name and address. You do not have to give any other information to the police if you do not want to. If you make a statement, try not to say things that you may regret later. Your statement can be used against you in court. The police may not put pressure on you to make a statement, neither may they assault or torture you to get a statement. (See Rights of arrested people)