Criminal Procedure: Securing Court Attendance

• Securing an accused's attendance at trial is achieved through summons, written notice, indictment, or arrest, according to section 38 of the Criminal Procedure Act 51 of 1977.
• Other methods of ensuring appearance in court include warning the accused and extradition.

Summons

• A summons is used for summary trials in lower courts when the accused is not in custody or about to be arrested.
• Securing attendance via summons is preferred if there is no reason to believe the accused will abscond or tamper with the investigation.
• Arrest after a summons can occur if the accused attempts to obstruct justice.

Procedure for Summons

• The prosecutor drafts a charge and hands the document to the clerk of the court.
• The clerk prepares a summons with the charge and specific information for the accused's court appearance.
• The Clerk of the court then hands the summons to a person empowered to serve it, like a police official or sheriff
• The summons is delivered to the accused at their residence, employment, or business. If the accused cannot be located, delivery to someone over 16 years at the address is acceptable.
• Enforceability extends throughout South Africa. Telegraphic copies have equal validity as originals.
• Service must be at least 14 days before the trial, excluding Sundays and public holidays.
• The official delivering the summons provides a return of service confirming the summons was issued according to procedure.
• Per Section 54(2)(a), of a person summoned may, upon failure to attend the proceedings, be handed in at the trial as prima facie proof of service under section 54(2)(b)
• Per section 55(1) of the Criminal procedure act, subject to s4(2) of the Child Justice Act 75 of 2008, Failure to attend at the place and time specified results in an offence punishable by a fine or imprisonment up to three months.

Warrant for Arrest after Failure to Appear

• If the court is satisfied the summons was served and the accused did not appear or remain in attendance, a warrant for arrest can be issued.
• Section 55(2A) mandates the warrant to allow the accused to admit guilt and pay the specified fine without a court appearance. Endorsement can include admitting guilt for failure to attend.
• The amount stipulated shall not exceed the amount of the admission of guilt fine that could have been imposed for such an offence
• According to S55(2) if an accused fails to pay the admission of guilt as stipulated on the warrant and appears in court on the due date, the court may summarily enquire into his or her failure to appear
• An exception would be applied in the following, where the accused need not be arrested in terms of the warrant:
  • The accused received the summons and will appear in court according to another warning.
  • The accused did not receive the summons, has paid an admission of guilt fine, or the failure to appear was not their fault.

Child Justice Act

• The Child Justice Act provides a summons will be served on a child alleged to have committed an offence with the presence of his or her parent, guardian or an appropriate adult .
  • Both child and guardian must acknowledge receipt
  • In exceptional circumstances, the summons can be served on the child, with a copy served to the guardian as soon as possible and all parties must acknowledge receipt
  • The police official must in the prescribed manner, when serving a summons on the child, parent, appropriate adult or guardian, inform them of the nature of the allegation against the child and the child's rights, explain to them the immediate procedure to be followed in terms of this Act, warn the child to appear at the preliminary inquiry on the date and at the time and place specified in the summons, and to remain in attendance, and warn the parent, appropriate adult or guardian to bring or cause the child to be brought to the preliminary inquiry on the date and at the time and place specified in the summons and to remain in attendance
• Immediately after serving the summons to the child, notify the probation officer within 24 hours.

Written Notice to Appear

• A peace officer can issue a written notice if they believe a magistrate's court will not impose a fine exceeding R5000.
• The notice must include the accused's details, the charge, an endorsement of guilt admission (s57), and officer's certificate of explanation.(s56(1))
• An accused person's failure to respond to the written notice allows the provisions of S55 to then apply.

Differences from Summons

• Written notice is prepared and issued directly by a peace officer. A summons is prepared by the prosecutor, issued by the clerk of the court and served by a messenger of the court or a police official.
• Written notice offers the option to pay an admission of guilt fine to avoid court. A summons may not include this option so it is important to expedite the course of justice in minor offences.
• Child Justice Act: A written notice may be handed to a child alleged to have committed an offence noted in Schedule 1.

Procedures

• The person the notice will be hand delivered to the child in the presence of his or her parent, guardian or an appropriate adult and the child and his or her parent, guardian or an appropriate adult must acknowledge receipt by means of a signature or mark
  • If those terms cannot be met due to exceptional circumstances, the notice must be handed over to the child and a copy must be given as soon as circumstances permit to a parent, guardian, or an appropriate adult, and both parties must acknowledge receipt.
  • The police official must in the prescribed manner, when handing a written notice to the child, parent, appropriate adult or guardian inform them of the nature of the allegation against the child, the child's rights, explain to them the immediate procedure to be followed in terms of this Act, warn the child to appear at the preliminary inquiry on the date and at the time and place specified in the written notice and to remain in attendance, and warn the par- ent, appropriate adult or guardian to bring or cause the child to be brought to the preliminary inquiry on the date and at the time and place specified in the writ- ten notice and to remain in attendance.
  • Notify the probation officer concerned not later than 24 hours after handling the written notice to the child.

Indictment

• In the High Court, charges that are drawn up must be in the official capacity of the director of public prosecutions.
• Includes the charge, accused's details, a summary of facts, and a list of state witnesses according to sections 144(1-3).
• Service must occur at least 10 days before the trial, barring Sundays and public holidays, unless agreed otherwise or handed to the accused by a magistrate.
• Failure to appear carries the same implications as in section 55(1) and (2). (Failure to attend can result in an issuance of arrest)

Arrest

• Arrest is a significant infringement of personal rights, including freedom from arbitrary deprivation of freedom and freedom of movement, as per sections 12(1)(a) and 21(1) of the Constitution.
• Arrest warrants are preferred over warrantless arrests.
• Warrantless arrests are only authorized in exceptional cases for private individuals or police officials.
• Unlawful arrests that are not specifically authorized by the law could be subject to legal issues.
• Proper care must be taken in executing an arrest warrant, with potential liability for wrongful arrest if negligence occurs.
• The prosecutor (arrester) has the burden of proving an arrest's lawfulness if it is challenged.

Requirements for a Lawful Arrest

• Lawful arrest and continuing detention depends on four "pillars".