Securing Attendance at Trial - Criminal Procedure Act

Securing the Attendance of the Accused at Trial

• Methods to Secure Attendance: Various methods exist to ensure the accused's presence at trial, outlined in Section 38 of the Criminal Procedure Act (CPA). These include arrest, summons, written notice and indictment, extradition, and warning to appear.

• Summons: A summons is typically used in summary trials in lower courts, where the accused is not in custody, no warrant for their arrest exists, and there’s no reason to believe they will abscond or obstruct justice. The prosecutor drafts the charge, and the clerk of the court:

  • Prepares the summons with the charge, accused's details, and appearance date and time.
  • Delivers the summons to a court messenger for service.
  • Requires service at the accused's residence, workplace, or place of business.

• Serving the Summons: The summons must be served upon the named individual. If the accused cannot be located, it is served at their residence or workplace to someone over 16 years old.

• Summons Service Requirements:

  • The summons must be served at least 14 days (excluding Sundays and public holidays) before the trial commences.
  • It is enforceable throughout South Africa and can be served anywhere within the Republic.
  • Summons can be transmitted by telegraph, and the telegraphic copy serves the same purpose as the original.

• Failure to Appear on Summons:

  • Non-appearance is an offense subject to punishment.
  • If service was proper, a warrant of arrest may be issued.
  • The accused can be convicted if their absence isn't due to fault, resulting in a maximum fine of R300 or 3 months imprisonment.

• Release on Warning:

  • If the accused fails to attend trial after a summons and a warrant of arrest is issued, they may be released on warning if they will attend or have valid reasons for non-appearance.
  • Section 55(2)(a) allows discretion in releasing the accused, while Section 55(2)(b) mandates release on warning.

• Admission of Guilt Fine:

  • Section 55(2A) of the CPA allows the endorsement of a warrant of arrest permitting the accused to admit guilt and pay the stipulated fine without appearing in court.
  • The warrant can also be endorsed to allow the accused to admit their guilt for failing to appear and pay the amount stated.

• Minors:

  • A child can be summoned to a preliminary hearing for a committed offense, with the summons served in a parent/guardian's presence.
  • The parent/guardian must acknowledge receipt through signature or a mark.
  • Service without a parent/guardian is allowed in exceptional circumstances, but a copy must be served later with their acknowledgement.
  • The police officer must explain the allegations, the child's rights, and procedures.
  • The probation officer must be notified of the service within 24 hours.

• Written Notice to Appear:

  • A police officer may issue a written notice to the accused if they believe a magistrate's court would impose a fine no greater than R5000 upon conviction.
  • The notice contains:
    • Accused's name, residence, and occupation.
    • A summons to appear in court at a specified time and place.
    • An endorsement allowing the accused to admit guilt and pay the stipulated fine without appearing.
    • A certificate confirming the delivery and explanation of the notice.

• Written Notice and Summons Differences:

  • The peace officer directly prepares, issues, and hands the written notice to the accused.
  • The prosecutor prepares the summons, issued by the clerk of the court and served by messengers or police officers.

• Incorrect Details:

  • If a police officer suspects the accused provided false details, they can be arrested and detained for up to 12 hours for verification.
  • Failing to provide proper information can result in a fine of R300 or 3 months imprisonment.

• Private Person Arrest Without Warrant:

  • A private person can arrest someone who:
    • Commits a schedule 1 offense in their presence or is reasonably suspected of doing so.
    • They reasonably believe committed an offense and are escaping, being freshly pursued by someone with arrest authority.
    • The law authorizes them to arrest without a warrant for a specific offense.
    • They are engaged in affray.

• Neighbourhood Watch Arrest:

  • Neighborhood Watches (NW) do not have a general duty to arrest others, unless they are the owner or lawful occupant of the property where an offense is committed.
  • NW members can use force to arrest, must inform the suspect of the reason, and deliver them to the police asap.
  • NW members may trespass on property to pursue an escaping suspect, and they may break or enter premises (announcing their presence) to arrest a suspect.

• After Arrest:

  • The arrested individual must be taken to a police station or a place specified in the warrant.
  • The court in Ex Parte: Minister of Safety and Security: Re Walters case outlined the legal framework for the use of force:
    • The purpose of arrest is to bring a suspect before court, not to punish.
    • Arrest isn't always the best means.
    • Force can only be used as a last resort, minimally and proportionally to the threat posed and the circumstances.

• Use of Force Requirements:

  • The person must have committed an offense (reasonable suspicion is acceptable),
  • The arrestor must be lawfully authorized,
  • There must be an attempt to arrest,
  • The intention must be to arrest, not punish,
  • The suspect must attempt to escape or resist,
  • The suspect must be aware of the arrest and continue trying to escape,
  • There must be no other reasonable means,
  • Force must be directed towards the suspect,
  • Force must be proportional and necessary.

This quiz covers methods to ensure the attendance of the accused at trial as described in Section 38 of the Criminal Procedure Act. It includes the process of serving summonses and the circumstances under which they are issued. Test your knowledge of legal protocols regarding the accused's presence in court.