by slamatattorneys | May 22, 2021 | Criminal Law
Criminal Law Scheduled Offences in South Africa
Criminal Law – Extract of scheduled Criminal law offences in South Africa
NO MORE TATTOED TEARDROPS™
BAILME DEFENDME SAVEME™
Schedule 1 offences include:
- Arson,
- Fraud,
- Forgery,
- Treason,
- Sedition
- Public violence,
- Murder,
- Culpable homicide,
- Robbery,
- Kidnapping,
- Child stealing,
- Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
Schedule 5 offences include murder, attempted murder, indecent assault, rape, drug-related crimes, especially where the drugs are found to be worth R50 000 or more, corruption, extortion, fraud, forgery or theft to the value of R500 000, the illegal dealing in or smuggling of firearms.
Schedule 6 offences include murder when it was planned or premeditated and rape when committed in circumstances where the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice.
A Schedule 7 offence is generally more serious than that for which the police may fix bail. eg. culpable homicide (manslaughter), assault, assault with intent to do grievous bodily harm, robbery, theft and fraud (where the amount involved does not exceed R20,000) and possession of drugs.
www.slamatlaw.co.za
by slamatattorneys | May 20, 2021 | Criminal Law
BAIL APPLICATIONS
BAILME DEFENDME SAVEME™ NO MORE TATTOED TEARDROPS™
We receive numerous calls daily in regard to bail applications services, thus we furnish this brief article to assist the public in understanding the basic principles of bail applications following arrest.
The Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”) provides, inter alia, that arrested persons have a right to be presumed innocent and a right to a fair trial and a right to remain silent. These rights are fundamental in the protection of citizens against false charges and abuse of State power over its citizens.
In terms of the Criminal Procedure Act 51 of 1977 (“CPA”) which came into law on 22 July 1977, an accused may obtain bail after arrest in certain prescribed circumstances. Over the years various common law principles have become applicable to the granting of bail by the courts. In 1998, when the CPA was amended to incorporate the bail legislation applicable to the Schedule 5 and 6 offences/crimes, the principles pertaining to these particular offences/crimes are regulated by the CPA and the courts decisions which have amplified the law in that regard.
Covid-19 lockdown implications
In terms of the Directive issued on 2 June 2020, an accused person arrested for a “petty offence” during the declaration of a National State of Disaster must be released and warned to appear in court on a future date, unless the matter can be finalised at the first appearance. The government’s intention was to limit the number of people in holding cells at police stations and in prisons – in an attempt to combat the spread of the virus and adhere to social distancing measures currently in place. However, the SAPS still have 48 hours to charge any individual and an arrested person may still be required to spend up to 48 hours in a holding cell.
Police Bail at police stations
Police Bail is a form of custodial release by the police in prescribed circumstances which are generally applicable to misdemeanours or petty offences. This form of bail is also applicable to certain offences pertaining to The Road Traffic Act and AARTO.
Police Bail is usually set at a monetary value payable in cash only at the police station and persons paying the bail must keep the bail receipt and details of the police officer who processed the bail payment. An arrested person is permitted to have a reasonable opportunity to communicate with a legal representative in order to obtain the amount required for police bail.
Prosecutorial Bail
State Prosecutorial Bail is generally available for more serious offences which are prescribed and for which an arrested person cannot obtain police bail. The difficulty with this kind of bail is in the availability and inclination of prosecutors, especially on Fridays and weekends, to consider and determine the bail in consultation with the arresting police officer.
Court applications for Bail
Bail applications in court are an entirely different kettle of fish. Only the presiding Judge or magistrate can grant the bail application or dismiss it.
If bail is granted, the cash amount of the bail must be paid at the cashier’s office at the court and the receipt must be retained to obtain refunding of the bail amount at a later stage. Only the actual person who pays in the bail amount and who signs the bail receipt is entitled to obtain the refund at a later stage.
An arrested person is entitled to make application for bail upon the first appearance or arraignment or at any time thereafter before conviction and sentencing, if the interests of justice so permit.
Depending on the charge(s), an arrested person who appears in court after arrest, is entitled to apply for bail in terms of the CPA. For schedule 5 and 6 offences, in layman’s terms the onus is on the accused to demonstrate to the court that the accused should obtain bail.
Very particular legal principles apply to schedule 5 and 6 offences because these are in regard to serious, gross and violent offences.
A formal bail application is required which must be delivered to the State Prosecutor and the State may oppose the bail application. If bail is denied, the accused may appeal to the High Court. Invariably, schedule 5 and 6 bail applications can endure for a week or longer depending on the circumstances of arrest and/or the accused persons circumstances and availability of the SAPS and the State Prosecutors to attend to the bail application.
Generally, in consideration of a bail application before the Court, the interests of justice will most likely not be in favour of an arrested person’s release on bail, should the following circumstances exist, namely, that if released on bail, the arrested person will engage in conduct likely to:
- endanger the safety of the public or any particular person; or
- attempt to evade his/her trial; or
- attempt to influence or intimidate witnesses or conceal or destroy evidence; or
- undermine or jeopardise the operation of the criminal justice system; or
- disturb public order or undermine public peace or security.
If a person is charged with an offence listed in Schedule 5 or 6, the bail application must set out reasons as to why granting the bail would be in the interests of justice, as well as establishing that exceptional circumstances (Schedule 6) of the accused warrant bail being granted. These provisions are very onerous and require the services of expert criminal defence attorneys.
It is imperative that an arrested or accused person obtains legal representation from an experienced criminal defence attorney at all times to ensure that protection of their constitutional, statutory and common law rights no matter what the charges are against such person.
www.slamatlaw.co.za
20 May 2021
by slamatattorneys | Apr 18, 2021 | Contract Law
Suretyship contracts – requirements and consequences
We are receiving numerous calls for assistance with suretyship contracts. This trend may be in light of the Covid-19 times and the recent up-trend for businesses and individuals seeking to operate their businesses and finance opportunities by utilising credit instruments.
However, it is imperative that one seeks sound legal advice when considering to enter into a contract of suretyship simply because the legal phenomenon of suretyship is one which many still struggle to fully understand. Invariably, sureties end up in court when being sued for performance as a surety and/or co-principal debtor.
In layman’s terms, suretyship occurs when one person agrees to stand good for the debt(s) of another person. This practice has occurred for centuries in business and personal relationships and caused serious hardships to many who insensibly agreed to be sureties.
In law – what is a contract of suretyship?
A contract of suretyship is one in terms of which one person (the surety) undertakes to the creditor of another person to perform the latter’s obligation owed to the former when the debtor fails to perform. Typically, the performance by the surety is of a financial nature (eg. payment of a debt). However, the contract of suretyship is accessory in nature which means it cannot and does not ever exist on its own.
Suretyship is one of the most complicated credit instruments. The law pertaining to suretyship agreements was codified in South African law in 1956 (in terms of the General Law Amendment Act 50 of 1956) owing to numerous disputes and court cases in regard to suretyship agreements and the enforcement thereof.
Requirements for the valid contract of suretyship
Section 6 of the General Law Amendment Act 50 of 1956[1] prescribes the legal requirements for a valid contract of suretyship, namely, that the terms of a suretyship agreement must be contained in a written document signed by or on behalf of the surety.
The existence of a principal obligation is a common law pre-requisite for a valid surety agreement due to the fact that suretyship is accessory in nature. This underlying obligation is typically one in terms of a loan or credit facility granted by a bank to a client (the debtor).
The Appellate Division held in 1978[2] that the “terms” of the contract of suretyship referred to in Section 6 supra are:
- The identities of the creditor, the debtor and the surety(ies);
- The nature and amount of the principal debt.
A number of subsequent cases have amplified the above requirements which have resulted in the clarification in many respects of the ‘terms’ which must be embodied in the contract of suretyship for it to be valid and binding in law.
Furthermore, oral variations of a contract of suretyship are void as these do not comply with Section 6 supra.
Some of the salient rights available to sureties include the following[3]:
The Benefit of excussion means the creditor is obliged to first claim and recover from the principal debtor before turning to the surety for payment of the debt or the part of the debt that remains unpaid.
The Benefit of Division amongst co-sureties which provides for the instance where there is more than one surety and where the creditor claims payment of the whole amount or more than a surety’s agreed share. Then the surety can demand that the debt be divided between all the co-sureties so that each of them ends up paying only their allotted portion.
The Surety’s Right of Recourse where a surety has paid the debt of the principal debtor to the creditor, the surety is entitled to claim payment from the principal debtor of the amount that he/she has paid to the creditor.
The Right to Contribution by Co-sureties where a co-surety, who has paid the debt, is by law entitled to recover from each of the other co-sureties contributions of their agreed portions of the debt.
Effect of the National Credit Act 34 of 2005, as amended (“the NCA”) on Contracts of Suretyship?
A contract of suretyship is one of the important instruments which credit providers make use of in mitigating their risks of granting credit.
Therefore, it is crucial to establish whether a suretyship contract is a credit agreement in terms of the National Credit Act. The determining question is: whether or not suretyship contracts will fall within the scope of the NCA depends on whether or not the underlying/principal agreement is regulated by the NCA.
In the High Court case of First Rand Bank Ltd v Carl Beck Estates (Pty) Ltd ZAGPHC 423 the high court, in granting summary judgment in favour of the bank, made an obiter remark that the NCA applies to suretyship contracts and that it clearly falls within the definition of a “credit guarantee” as set out in section 8(5) of the NCA.
Warning – do not contract with the devil or you may have to pay your pound of flesh
It is imperative that one considers the terms of any contract of suretyship very carefully when contemplating taking responsibility for the payment of the debts of another person.
Truly and invariably, the scales are tipped immensely in favour of the credit grantor in the negotiation of the underlying obligation particularly when seeking finance through credit instruments. The credit worthiness of the debtor is of critical importance and ‘family- relationed’ contracts of suretyship should be avoided at all costs.
Once you have signed as surety it is virtually impossible to escape liability on the basis that you were not aware of the suretyship clause in the agreement or that the suretyship contract is ‘unfair’.
Case law confirms that a person who is a signatory to any agreement is obliged to familiarise himself with the content of a document which he signs. Ignorance of the law is no excuse.
This confirms the Roman law principle of caveat subscriptor which means that a signatory must be aware of what he is signing. This however applies to anyone who enters into a contract, and not only to contracts of suretyship.
Make sure that to protect yourself and your assets, you should consult with an attorney before you take on the responsibility for someone else’s debts.
www.slamatlaw.co.za
12 April 2021
[1] Amended by s34 of the General Law Amendment Act 80 of 1964.
[2] Sapirstein & others v Anglo African Shipping Co(SA) Ltd 1987 (4) SA 1 at 12B-D.
[3] The ejection of the exception doli generalis from SA law in the matter of Bank of Lisbon & South Africa Ltd v De Ornelas and another 1988 (3) SA 580 (A) has resulted in sureties raising the defence of public policy when the creditor seeks to rely upon a clause in the contract of suretyship which is perceived to be harsh and unconscionable by the surety. However, the courts have made it clear since 1990 that public policy does not offer a ‘free pardon to recalcitrant debtors’ – per Kriegler J in Donelly v Barclays 1990 (1) SA 375 (W). Most public policy challenges have consequently failed dismally.
