South Africa

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LEGAL RESOURCES FOR SOUTH AFRICA

LEGAL TRAINING RESOURCE CENTER

Background

The Republic of South Africa, located on the most southern tip of the continent of Africa, is a democratic republic divided into nine provinces, with the nation’s capital city located in Pretoria. Its first settlers were the San people, followed by the Khoikhoi, and then the Bantu people who migrated from central Africa by the 14th century. South Africa’s European colonial history began in 1488 when the Portuguese arrived at the Cape of Good Hope. Permanent European settlement did not occur until 1652 when Dutch settlers established the city of Cape Town as a key stopover point in their spice route to the Far East . The settlers, known as Boers or Afrikaners, tried to establish an independent republic as early as 1795. After the discovery of gold and diamonds in the late 19th century, more European settlers arrived ultimately leading to the notoriously brutal Anglo-Boer Wars won by the British in 1806. South Africa did not gain independence from the British Empire until 1910. The winning of elections by the National Party in 1948 marked the start of a series of oppressive laws forming a policy of extreme racial separation know as ‘apartheid’ . Only when the African National Congress (ANC) came to power in 1994 did this system end and the nation celebrated its first ever majority rule . Today, the ANC still rules in a country that struggles with high poverty levels, economic inequality, poor education, and the world’s highest HIV/AIDS death rate . The ANC itself experiences increasingly high levels of infighting which threaten to disturb the general peace that the country has finally achieved. South Africa has nevertheless asserted its role as an emerging economic power landing it a place amongst the powerful BRICS nations. South Africa is currently one of the most economically prosperous countries in Africa due to its plethora of natural resources and important agricultural industry . Despite South Africa’s economic and social progress, human rights concerns have been expressed by the United States with regards to the use of force by law enforcement, legal proceedings, and discrimination in South Africa .

[1]

Type of Judicial System

The legal system in South Africa is a hybrid model comprised of constitutional provisions, national statutes, common law rules, and case law. Above all, the Constitution of South Africa is the supreme law, and no other laws may compromise any rights awarded in the Bill of Rights. [2] The most important criminal trial courts are the District Magistrates’ Courts, the Regional Magistrates’ Courts, and the High Court. Trial procedures in the lower and higher courts are exactly the same, save for a few minor exceptions. [3]

Source of Defendants' Rights

The Constitution of the Republic of South Africa was written in 1996 and came into effect in 1997. The South African Constitution is the supreme law of South Africa. No other laws may compromise any rights that are awarded to the defendant in the Bill of Rights, unless a court with the necessary power finds that there is a constitutionally permissible limitation. The current Constitution contains South Africa’s first Bill of Rights and represents a complete break from past apartheid-era policies. [4]

Pre-Trial Phase

Section 35 (1) (d) of the South African Constitution details the rights of the arrested, detained and accused and is drawn from local statutory and common law procedures as well as international conventions. This section states that everyone who is detained has the right to be informed of the reasons for being detained, must be brought before a court within 48 hours of the arrest, has the right to legal representation, and has the right to communicate with or be visited by family. [5] Section 12 Article 1 also states that everyone has the right to freedom and security of person, which includes the right to: not be detained without trial, not be tortured in any way, to be free from all forms of violence, not to be deprived of freedom arbitrarily, and not to be treated or punished in a cruel, inhuman, or degrading way. Arrests may be made with or without warrants. [6]

Court Procedures

In terms of pre-trial procedure, Section 35 (1) (e) of the Constitution states that at an arrested person’s first court appearance, the arrested must be either charged, released, or informed of the charges brought before them. [7] In South Africa, there is no such thing as prosecutorial investigation. This means that the investigation of the crime is carried out by the police who then submit the file to a prosecutor. The prosecutor does not directly participate in any investigative work, but merely oversees the investigation and decides whether there is a successful chance of prosecution. [8]

Pre-trial motions that are intended to exclude evidence on the basis of exclusionary rules are not prominent in the South African legal system. Instead, objections to the admissibility of statements such as confessions or admissions are dealt with at the trial stage in a procedure that is known as the “trial-within-a-trial” system. [9] The South African Constitutional Court has held that an accused person is constitutionally entitled to pre-trial discovery of all evidence in police files, unless said evidence compromises the identity of a witness/informer etc. [10]

South African trial proceedings are largely adversarial. According to the principle of the presumption of innocence, prosecutors are required to prove their case beyond a reasonable doubt. All trials are also public. [11] Additionally, Section 35 (3) (e) of the Constitution guarantees the accused the right to be present at their trial, unless that person continues to exhibit loud and disruptive behavior. [12] Finally, the Constitution ensures that the accused have the constitutional right to be protected from double jeopardy, meaning they cannot be punished twice for the same single offense. [13]

Section 35 (3) (g) of the South African Constitution guarantees the accused the right to legal representation. If the accused cannot afford legal representation, the state will assign that person a legal practitioner. [14] Both the prosecution and the defense have the right to call witnesses to the stand and said witness has the right to refuse to answer questions if those questions incriminate them. Both parties may similarly call expert witnesses. [15]

South African judges preside on the High Court, Supreme Court of Appeal, and Constitutional Court and are appointed by the President of South Africa. All judges must retire at age seventy. Additionally, South African magistrates are civil servants and can be either former prosecutors or lawyers. [16] South Africa does not currently have statute addressing the rights of victims of crime. Victims of crimes cannot request that prosecutors either withdraw or proceed with any case. [17]

Section 35 (3) (h) of the South African Constitution guarantees that an accused person has the right to appeal to a higher court. If an appeal is successful, the higher court may only set aside the previous conviction on the following grounds: that the trial court was not competent or that the indictment was invalid or there was some “technical irregularity or defect in the procedure”. The prosecution cannot appeal an acquittal of the accused (page 515). [18] South Africa has a system of automatic review in which the lower court sends the High Court a complete record of the case. A High Court judge must then confirm that the proceedings were “in accordance with justice”. [19]

References

  1. CIA World Factbook, available at <www.cia.gov/library/publications/the-world-factboook>
  2. Craig M. Bradley, Criminal Procedure A Worldwide Study 471 ( 2d ed., Carolina Academic Press 2007)
  3. Craig M. Bradley, Criminal Procedure A Worldwide Study 499 ( 2d ed., Carolina Academic Press 2007)
  4. Craig M. Bradley, Criminal Procedure A Worldwide Study 471 ( 2d ed., Carolina Academic Press 2007)
  5. Craig M. Bradley, Criminal Procedure A Worldwide Study 472-73 ( 2d ed., Carolina Academic Press 2007)
  6. Craig M. Bradley, Criminal Procedure A Worldwide Study 475 ( 2d ed., Carolina Academic Press 2007)
  7. Craig M. Bradley, Criminal Procedure A Worldwide Study 500 ( 2d ed., Carolina Academic Press 2007)
  8. Craig M. Bradley, Criminal Procedure A Worldwide Study 501 ( 2d ed., Carolina Academic Press 2007)
  9. Craig M. Bradley, Criminal Procedure A Worldwide Study 502 ( 2d ed., Carolina Academic Press 2007)
  10. Craig M. Bradley, Criminal Procedure A Worldwide Study 503 ( 2d ed., Carolina Academic Press 2007)
  11. Craig M. Bradley, Criminal Procedure A Worldwide Study 503 ( 2d ed., Carolina Academic Press 2007)
  12. Craig M. Bradley, Criminal Procedure A Worldwide Study 510 ( 2d ed., Carolina Academic Press 2007)
  13. Craig M. Bradley, Criminal Procedure A Worldwide Study 506 ( 2d ed., Carolina Academic Press 2007)
  14. Craig M. Bradley, Criminal Procedure A Worldwide Study 512 ( 2d ed., Carolina Academic Press 2007)
  15. Craig M. Bradley, Criminal Procedure A Worldwide Study 513 ( 2d ed., Carolina Academic Press 2007)
  16. Craig M. Bradley, Criminal Procedure A Worldwide Study 514 ( 2d ed., Carolina Academic Press 2007)
  17. Craig M. Bradley, Criminal Procedure A Worldwide Study 515 ( 2d ed., Carolina Academic Press 2007)
  18. Craig M. Bradley, Criminal Procedure A Worldwide Study 515 ( 2d ed., Carolina Academic Press 2007)
  19. Craig M. Bradley, Criminal Procedure A Worldwide Study 516 ( 2d ed., Carolina Academic Press 2007)

QUICK FACTS

  • South Africa has a total prison population of 160,026, with 319 per every 100,000 people in prison
  • Approximately 29% of the South African prison population is made up of pre-trial detainees and .6% is comprised of juvenile prisoners
  • South Africa currently has 239 prison institutions with an official prison capacity of 118,154. The current occupancy level for South African prisons is at 135.4%.
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