Guide to being tried for murder in South Africa

Are all murder trials in South Africa decided by a judge and two assessors?

No, not all murder trials; but usually. In South Africa, juries were abolished in 1969. Instead, in criminal trials, the presiding judge is allowed to invite one or two legally qualified assessors to help with the factual findings. In important trials, assessors are almost always included on the Bench. The judge alone decides questions of law. If the assessors agree on a fact, and the judge disagrees, the assessors can overrule the judge.

The law allows both magistrates and High Court judges to ask a maximum of two assessors to help them in any criminal trial. In Magistrates’ Courts, assessors must be appointed if it is a murder trial unless the accused requests otherwise.

High Court judges have a choice: they can appoint up to two assessors in any criminal trial, but don’t have to. Especially during apartheid, many commentators urged parliament to make assessors compulsory in murder trials. But the appointment of assessors remains the choice of the judge in the High Court.

Because of the seriousness of the charge, it is unusual for there to be no assessor in a murder trial.

When the judge reaches her judgment, must the assessors agree? Must a judgment be unanimous?

Questions of fact (for example, did the accused have a gun?) are decided by a majority of the whole court, meaning the judge and the assessors. So, even if the judge thinks the accused did not have a gun, she has to yield to the assessors’ opinion if they both disagree with her.

Questions of law (for example, did the accused have a valid gun license?) are decided by the judge alone. On these questions the judge’s opinion prevails, even if both assessors disagree with her.

Who decides whether a question is one of fact or law? The judge does and she has the final say.

So a judgment never has to be unanimous. Questions of fact are decided by a majority. Questions of law are decided by the judge alone.

What is reasonable doubt? Is it precisely defined?

A court may only convict the accused if it is convinced “beyond reasonable doubt” that she is guilty. Courts have sometimes said they must be “morally certain” of the accused’s guilt or that the accused must be acquitted if her version is “reasonably possibly true”. But this is vague.

The point is that proving a criminal case is much harder than a civil case. There, the plaintiff has to convince the court only that her version is more probable than the defendant’s. In a criminal trial, the state, by contrast, can’t just prove that the accused probably committed the crime. The state must exclude all reasonable doubt that she did.

This means that the judge and assessors must be satisfied that there is no reasonable possibility that the accused is innocent. Not any possibility – but only reasonable possibilities count in favour of the accused.

The rationale for the higher test is that everyone’s freedom is fundamental; that a criminal penalty is a very grave harm to impose; and that it is better to let the guilty go free than to punish the innocent. Requiring proof “beyond reasonable doubt” means that criminal punishment is imposed only when the court is very sure of the accused’s guilt. It is hard to give any definition more precise than that.

Must the judge write the judgment, or can it be delivered orally?

Usually judgment in a criminal matter is delivered orally. But the judge normally reads out what she has written. There is no requirement that the judgment is written. It may be delivered orally from the bench without a written judgment. However, in important or difficult cases, where the judge’s reasoning will be closely scrutinised, the judgment will almost certainly be written.

Must the judge provide reasons for his or her decision?

Yes. This is a fundamental duty of any judge deciding any matter. .

After the prosecution has presented its case, can the defence ask the judge to dismiss the case immediately for lack of evidence?

Yes.

The court can dismiss the case against the accused at the close of the state case. This is only when the prosecution has not provided enough evidence on which a reasonable person may convict the accused. Then the accused is not even called on to conduct a defence.

If a person is found not guilty, can the victim’s family still sue him or her in a civil court?

Yes. The outcome of a criminal trial does not in any way bind a civil court.

Even if an accused is acquitted, the family or survivors can sue the accused. They will have to prove their case only on a balance of probabilities. That is what happened with the American accused, OJ Simpson. The jury acquitted him. But his dead wife’s family proved in a civil court that he was the killer, and got a very large damages award against him.

So there is a lower standard of proof in civil proceedings. There may not be enough evidence to convict the accused beyond a reasonable doubt (so the accused succeeds in the criminal trial), even though it is more probable that his version is false (so he fails in the civil trial).

Another reason is simply that crimes and civil wrongs are different. So, for example, it is not a crime if I unintentionally but negligently hit a cricket ball into your face; but it is a civil wrong for which you could sue me.

Conversely, murder is a crime but not, without more, a civil wrong. The obvious victim of the wrong – the murdered person – is of course dead and incapable of suing anyone. And the family members of a murdered person do not ordinarily have a civil claim against the killer, unless they have suffered a financial loss because of the deceased’s death. This happens only where the family member was a dependant of the murdered person (in other words, they were financially supported by the deceased) – and that is usually true only of the deceased’s spouse and children.

I’ve been charged with murder. Is my defence going to be costly?

Probably.

Typically you might be represented by an advocate who is briefed by an attorney. The advocate might charge about R15,000 per day in court (but often much more) and the attorney about R8,000. A full day in court in which both your advocate and attorney are working would therefore set you back about R23,000. The SJC has raised over R1 million to cover the cost of Angy Peter’s defence.

If you can’t afford to pay for a lawyer and your after tax monthly income is less than R5,500 you might qualify for aid from Legal Aid South Africa in which case you will not have to fund your defence. You don’t have to be a citizen to qualify for legal aid.

If you don’t qualify for legal aid but you can’t afford a lawyer, a situation many working people would find themselves in, then, it’s not clear what your options are. It might help you that the Constitution guarantees everyone the right to a “legal practitioner” at the state’s expense “if substantial injustice would otherwise result”.

Is there a limit on how long a prosecutor or defence attorney can question someone?

The right to cross-examine witnesses is vitally important and is constitutionally protected. The prosecution and the defence are given the chance to control the cross-examination and to decide what questions to put to witnesses. But the presiding judge can curtail excessive or deliberate time-wasting.

Can either side stall by calling a long list of witnesses?

Lawyers often try stalling tactics. But in a criminal trial, this tactic is unlikely to work. It may just backfire.

Presiding judges can curtail the questioning of each witness. In addition, if a witness does not appear of their own free will, the court can compel them to testify only if the evidence is essential.

So trying to stall by calling irrelevant witnesses is subject to some judicial control, and is likely anyhow not to work: if a witness has nothing to contribute, the judge can cut short her testimony.

What alternative is there for a witness who is an atheist or does not wish to take an oath to God before taking the stand?

South Africa’s criminal procedure caters for atheists, as well as for religious witnesses who don’t want to swear oaths. The witness may, if he or she so wishes, take a non-religious “affirmation” of truthfulness. She will simply say:

I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.

The usual “… so help me God” is omitted.

Does an accused have to take the stand?

No.

The right against self-incrimination is fundamental to our criminal law. The accused cannot be forced to testify by the prosecution; she can be called only if she wants to testify.

Of course, if the prosecution has made a strong case a prudent accused will choose to testify, to give her own version.

Do all witnesses have to be identified to both the prosecution and defence at the beginning of the trial?

The prosecution must compile a list of witnesses so that the accused can know who it is planning to call. But the prosecution may call a surprise witness with the judge’s permission if there is good reason.

The defence doesn’t have to tell the prosecution who it plans to call.

Can a witness refuse to answer questions?

A witness can refuse to answer a question only if he has a “just excuse”. If not, the court can punish him by sending him to jail for up to five years. “Just excuses” are very few. For example, a witness can refuse to incriminate himself or his spouse, and a police witness can refuse to reveal the identity of an informer. An accused’s lawyer must refuse to give any answer which may incriminate his client.

Can a witness refuse to take the stand?

Any witness who is served with a subpoena must arrive at court, and must take the stand when required to do so.

Every person can be called as a witness unless the law expressly excludes her from giving evidence. Again, the number of exclusions is small. One has already been mentioned: the accused cannot be forced to testify by the prosecution. Other examples are persons who have serious mental illness or are mute.

What restrictions is a witness under once she is on the stand?

A witness is not supposed to discuss his evidence with other people. And while being cross-examined, the witness may not speak to her own side’s lawyers about the questions she is being asked.

What are the different types of killing you can be tried for in South Africa?

In South Africa there are only two types: murder (the intentional, unlawful killing of a human being) and culpable homicide (the negligent, unlawful killing of a human being, which is similar to the crime some countries call “manslaughter”).

The laws of some countries recognise more types of killing because they draw finer distinctions: the United States, for example, distinguishes between first-, second- and third-degree murder, and between voluntary and involuntary manslaughter.

It is true that in South Africa we speak of “premeditated murder” (planned in advance), which attracts a harsher sentence than murder that is intentional but not premeditated (section 51 of the Criminal Law Amendment Act, 1997). But that does not make it a separate crime, distinct from “normal” murder. It is simply murder – though the legislature has said that when a murder was premeditated it should be particularly severely punished.

If the prosecution makes the case for murder but the judge decides murder has not been proven, can she find the accused guilty of a different crime?

Yes, the judge can find the accused guilty of a range of lesser crimes, for example culpable homicide.

If an accused is found guilty, is there a separate part of the trial for sentencing?

Yes. The main part of the trial is to decide whether the accused is guilty. The shorter, second phase, if the accused is convicted, is to decide the appropriate sentence.

Usually the sentence and conviction stages are part of the same continuous trial. Even then, the sentencing stage is noticeably different: it is relatively informal, with less rigid court processes, easier rules of evidence, and a generally more open-ended, discretionary enquiry by the court. Both the accused and the prosecution are entitled to make representations to the court on what sentence is fair and appropriate.

Can an accused be called back to the stand during the sentencing part of the trial?

The prosecution cannot compel the accused to testify at any stage of the trial. But the accused may elect to testify again, for example if she wants to express remorse, which is an important consideration in sentencing.

What is the typical length of a sentence for murder in South Africa?

Typically someone convicted of murder will be sentenced to a very long term of imprisonment, though not necessarily life.

What is the maximum sentence? Is there a “life” sentence and is it really for life?

Life imprisonment – which is indeed a real sentence and does mean the whole of the offender’s life – is the longest sentence a court can impose.

Technically a High Court can impose life imprisonment for any crime, unless the legislature specifically provides otherwise – which the legislature usually does, setting a lower maximum suitable for that specific crime.

But in the case of particularly serious forms of murder, like premeditated murder and the murder of a police officer or state witnesses, as well as aggravated rape, terrorism and crimes against humanity, the legislature has made life imprisonment the minimum sentence. This was widely seen as too harsh and wrong because it takes away judges’ discretion to craft a sentence appropriate to the particular offender and her circumstances. But judges do retain some discretion: they can depart from the minimum sentence of life imprisonment if they are satisfied that there are “substantial and compelling circumstances” that justify the imposition of a lesser sentence.

The mandatory minimum sentence for “normal” murder is 15 years – except for repeat offenders, where the minimum is longer. No minimum sentence is prescribed for culpable homicide – the sentencing judge has a very wide discretion to decide how “culpable” (blameworthy) the offender’s negligent killing was.

After how long can a person serving a sentence apply for parole?

The parole board has a wide discretion to grant parole, although the law puts limits in the case of more serious offences. Offenders sentenced to life imprisonment must serve 25 years before being eligible for parole, and even if they are released will remain on parole until they die. Offenders sentenced to more than two years (but less than life) in prison must serve half their sentence before being eligible for parole.

If someone is found guilty can he or she always appeal?

Yes, any convicted person always has a right to appeal. The Constitution guarantees this. The right to appeal doesn’t always mean a full appeal. It means simply that you are entitled to ask another court to look at your case after you have been convicted. The higher court can refuse you leave to appeal after considering your application.

Which courts can be appealed to and who grants leave to appeal?

Where the accused has been convicted by a single judge of the High Court, she may seek leave to appeal against her conviction or sentence (or both) by applying to the same judge who convicted her. That judge must decide whether there is a reasonable prospect that an appeal court would reach a different finding. If the judge decides the appeal does have reasonable prospects of success, she can grant leave to appeal either to a full court (three judges) of the High Court or, if the matter is difficult, straight to the Supreme Court of Appeal.

If the single High Court judge refuses leave to appeal, that decision is itself appealable: the accused may petition the Supreme Court of Appeal, asking it to overturn the single judge’s refusal and grant leave to appeal.

The Constitutional Court is the highest court. It decides who can bring appeals to it. Normally it gives leave to appeal to it only in constitutional cases, but it can also decide a case if it involves an arguable point of law of general public importance.

If someone is sentenced to prison but appeals, does he or she still go to prison while the appeal is being heard?

It depends. Much like when the accused is first arrested and charged, the state may imprison her pending the outcome of proceedings, but she is entitled to apply for bail.

The basic rule is that the conviction and sentence are not suspended pending the appeal, so the appellant must go to prison in the meantime. But the court that convicted the appellant may, upon application and if it deems it appropriate, release the accused on bail.

On appeal, can witnesses be called again?

No.

An appeal court studies the record of the trial proceedings and hears oral argument from each side’s lawyers. It usually does not hear any new evidence. The purpose of the appeal is to decide whether the trial court reached the right conclusion on the evidence before it – not to conduct a re-trial. But in very rare cases, an appeal court can allow new evidence in.

On appeal, are the facts of the case carefully looked at again or only the interpretation of the law?

Both the law and the facts are reconsidered. But in South African law, appeal courts pay very great respect to the trial court’s factual and credibility findings. This means these are not easily overturned. An appeal court is not strictly confined to the legal issues, but its power to overturn the trial court’s factual findings is limited. It will show deference to the court that saw first-hand the witness testimony, physical evidence, and so on, and may depart from the trial court’s factual findings only if the inference it drew from the evidence before it was clearly wrong.

Leo Boonzaier assisted enormously with this article. GroundUp takes full responsibility for any errors.