Hello Christmas. First, let me say that I'm sorry for your friend's
situation and the horrible thing she witnessed. As an American,
though, reassure her that the criminal justice system in South Africa
will seem quite familiar to her. It is based on the English system,
as ours is.
South Africa has the right to a fair trial enshrined in its Bill of
Rights, along with the right to counsel and the right to remain
silent. Theirs is an "adversarial" system, like ours, with an
attorney for the prosecution and an attorney for the defense, with an
However, they do not have jury trials. Trials are decided by judges
and ?assessors.? ?The system whereby judges have a choice of sitting
with or without assessors is well established in South Africa. Section
145 of the Criminal Procedure Act 51 of 1977 deals with this matter. A
judge may sit alone or may appoint one or at the most two assessors at
http://www.saflii.org/za/other/zalc/ip/6/6-CHAPTER-2.html#Heading192 (Chapter 3)
?South Africa follows the model that is accusatorial in nature with a
presiding officer, state prosecutor and defence counsel.
Occasionally, assessors sit with a presiding officer, but they do not
constitute a jury. Proceedings are held in open court where the
witnesses give evidence before the accused (subject to provisions of
the Criminal Procedure Act).?
?The right to legal representation has been recognised in South Africa
as a common law right and was entrenched by statute. [fn. omitted.]
However, before 1988, the right was expressed more as a privilege than
a right in that no obligation was placed upon judicial officers to
inform the unrepresented accused of their right to legal
representation or of the availability of legal aid. This, however,
changed after the decision in S v Radebe, S v Mbonani. The importance
of the right to legal representation was again emphasised in a number
of subsequent decisions?. The right to legal representation is now
entrenched in the Constitution.
http://www.saflii.org/za/other/zalc/ip/6/6-CHAPTER-2.html#Heading192 (Chapter 2)
The accused is entitled to be brought before the magistrate shortly
after arrest (usually within 48 hours). There he enters a plea,
guilty or not guilty, and is asked to explain his plea with a
statement. However, since the accused has the right to remain silent,
such explanatory statements are rare.
(scroll down to pp. 34-35)
This factsheet on the criminal justice system in S. Africa touches on
all the issues, from initial arrest and first appearance through trial
This one is even more thorough:
It points out that murder is a Schedule 6 offense, and very difficult
to get bail for. It?s likely that the witness is being called to the
plea/bail hearing in case they need to establish that a Schedule 6
offense (murder) was committed, and justify the no-bail decision.
South Africa has been in the grip of a wave of violent crime over the
last several years, so there is a significant backlog of criminal
cases. There's no way to tell, however, how long the delay will be
until the case is brought to trial.
I hope this is what you were looking for. If you need anything
further, please don't hesitate to ask for clarification or further
Clarification of Answer by
30 Jul 2005 05:58 PDT
Christmas, let me second pafalafa's wise advice to contact the
consulate. That said, I did see indications that a witness may be
held in custody, just as a witness can here, in order to ensure their
testimony. Here in the States, it's called a "material witness"
warrant, and it enables a prosecutor to hold an essential witness
without bail. I am absolutely confident that a prosecutor has the
same power in SA. The judge also has the power to order your friend
to surrender her passport in order to ensure her appearance.
Here, these measures are rarely used against innocent bystanders.
Usually they are employed against low-level co-conspirators, such as
in Mafia cases and drug cases. But SA has been in the grip of a crime
epidemic since the mid-90's, and they may be more stringent.
I'm going to do further research this afternoon, and see whether I can
discover if material witness warrants and the like are frequently used
in SA. In the meantime, I really do agree with pafalafa's advice to
get to the consulate.
Clarification of Answer by
30 Jul 2005 18:23 PDT
My initial assessment was correct: South African law does provide for
the arrest and detention of a witness, if necessary to compel their
Such detention requires a warrant issued by the Attorney General.
"The police require a warrant issued by the Attorney-General in order
to detain a person as a state witness in a trial relating to a serious
offense such as arson, murder and kidnapping and to detain a person as
a state witness in a political trial." The maximum period of
detention allowed is 6 months.
(scroll about halfway down)
However, just as in the United States and the UK, I believe such
detentions are uncommon. The most exhaustive review I could come up
with has not revealed any evidence that SA routinely detains or
otherwise mistreats innocent witnesses to crime in order to compel
their testimony. Neither the State Department, nor Amnesty
International, nor Human Rights Watch, nor a Google search using:
+"South Africa" +witness +compel testimony OR testify
+"South Africa" +witness +surrender +passport
+"South Africa" +witness detain OR detention
comes up with any incident of a witness being detained.
Moreover, the "legal culture" appears to weigh against the arbitrary
detention of witnesses. First, the Bill of Rights provides a host of
protections to detainees -- including those charged with crimes -- and
requires release, with or without bail, unless the interests of
justice require otherwise.
In addition, South Africa has recently commenced a whole new effort
toward witness PROTECTION and other services, such as counseling.
I truly believe your friend will be fine -- but pafalafa's advice was
excellent, and she should visit the American consulate right away. If
there's anything else I can provide, please don't hesitate to ask.
Best of luck.