What is criminal litigation
Criminal Litigation involves a criminal matter and the process of proceeding to trial in a criminal court to either prosecute or defend oneself. Being charged with a criminal offense is a serious matter and carries with it a possible term of imprisonment, criminal fines, a criminal record and/or public stigma.
The difference between criminal litigation and civil litigation.
Civil litigation involves two private individuals, seeking to enforce certain rights i.e. The enforcement of rights and or obligations arising from a contractual agreement. In civil litigation, the burden to prove one’s case rests on the party who institutes proceedings (the plaintiff), to prove their case on a balance of probabilities. The determination to be made by the presiding officer is which of the versions provided by the respective parties is most probable.
Criminal proceedings are commenced at the State’s instance. If one is arrested for a criminal offence, they are brought before court in order to answer to said allegations. In criminal litigation, the burden of proof lies not on the accused to prove his innocence but on the State to prove the guilt of the accused beyond a reasonable double. The test for determining guilt, is a ‘reasonable man’ test. The question that must be answered is, would a reasonable person having heard the evidence against the accused person, believe in his guilt or innocence.
Procedural aspects of criminal litigation
Once a case is opened against the accused, he will be brought before court by way of summons or arrest. If one is arrested, they are to be brought before the court within 48 hours of being arrested. Failure to do so amounts to a procedural irregularity which may result in the matter being struck off the court roll.
Depending on the nature of the offence, the accused person may be granted bail on their first appearance before court. However, if the matter is of a more serious nature, if the accused has previous related convictions or if the court is not satisfied that it has the necessary information to make a determination regarding bail, the matter may be postponed for the State to prepare to oppose the bail application or for the court to have further information.
It is however important to remember that every arrested individual is entitled to bring a bail application.
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Procedural aspects of criminal litigation
Section 35 of the Constitution of the Republic provides for the rights of an accused person. These rights include but are not limited to the right to remain silent, the right against self-incrimination, the right to a fair trial and the right to legal representation.
What to do when you are arrested?
Call your legal representative – After you are arrested, you need to obtain legal representation. If you or your family are not able to secure such by your first court appearance (within 48 hours of arrest), the court will allow an opportunity for the legal representative to be before court on the next occasion.
Do not make any statements or answer any questions without your appointed legal representative being present. Your right to silence and that against self-incrimination entitle you to refuse to answer any questions you may be asked by the police regarding the merits of the matter for which you have been arrested. This right does not extend to questions that pertain to the police ascertaining your personal information. Do not answer questions that pertain to the matter as they may later be used against you as evidence in criminal proceedings.
An arrested party is deemed innocent until proven guilty, and thus the choice to refrain from answering questions has no implication on the guilt or innocence of the accused person. The burden rests upon the State to prove its case beyond a reasonable doubt and thus there is no duty on the accused to prove his innocence by way of a police statement or otherwise.
It would be advisable to consult a legal representative before having made any statements so as to not compromise your defense later in a hearing.