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Criminal Matter




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Criminal Matter
  • Criminal Law

      • Criminal law focuses on the principles of law according to which criminal liability (guilt or innocence) is determined.

        Requirements for criminal liability:

        • Wrongful/unlawful conduct – the ultimate test of unlawfulness is the legal convictions of the community, as informed by the values
        of the Constitution. The unlawfulness requirement is excluded when someone is justified in their conduct. The most well-known
        justification is self-defence;

        • Voluntariness – the conduct by the accused person must be voluntary. Conduct is regarded as voluntary when it is controlled
        by an accused’s will;

        • Causation – the conduct which is prohibited is the causing of some prohibited consequence. For instance, murder, the
        prohibited conduct is the causing of the death of another human being.

        • Capacity – this is the ability to appreciate the wrongfulness of one’s conduct and to act in accordance therewith.

        • Fault – fault may take the form of either intention or negligence. Intention is required for all common law crimes except culpable
        homicide. Intention in South African criminal law is widely defined to include dolus eventualis (constructive intention), which exists
        when an accused foresees that his/her conduct poses a risk that the prohibited consequence could occur and reconciles
        himself/herself to the risk and persists.

        Negligence is judged by the reasonable person test – an accused is negligent if his/her conduct deviates from the standard conduct
        of a hypothetical reasonable person in the circumstances of the accused.
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  • Civil vs Criminal Matters

    • • Civil cases generally involve private disputes between persons or organizations, whereas criminal cases involve an action that is
      considered to be harmful to society as a whole.

      • The parties in a civil dispute are known as the plaintiff/applicant and the defendant/respondent. In a criminal matter the parties are the accused and the state.

      • The burden of proof in a civil matter falls on the plaintiff to provide evidence against the defendant on a balance of probabilities. In a
      criminal matter the burden of proof is on the state to prove the guilt of the accused beyond reasonable doubt.

      • Civil litigation usually involves some type of compensation for injuries or damages. In a criminal matter the convicted party is punished by either imprisonment or a fine or both.

  • Judicare Progress Report

    • Judicare serves to supplement Legal Aid South Africa’s capacity to provide services through its Justice Centres in a mix of delivery
      mechanisms, as decided by Legal Aid from time to time. A legal practitioner is required to provide Legal Aid with progress on a matter. In a criminal matter progress must be provided after every
      court appearance, and in a civil matter every three months. This is known as a judicare progress report.


  • Criminal Matter Process:

    • 1. The process begins with a pre-trial criminal procedure. This involves the following:

      • exercise of powers and the vindication of individual rights – there needs to be a balance between society’s demands in bringing the
      offender to justice, and to uphold the personality and property rights of the individual (the right to dignity, privacy and freedom).
      The law lays down strict rules with regard to the circumstances in which a limitation of these rights will be permissible to investigate crime or to bring offenders to justice;

      • securing the attendance of the accused at the trial – by way of summons/written notice to appear/an indictment/the arrest of the accused;

      • interrogation, interception and establishing the bodily features of a person;

      • search and seizure – the Criminal Procedure Act makes provision for when it is permissible to search and seize property;

      • bail and other forms of release – when bail is granted an accused who is in custody shall be released upon payment of, or the furnishing of a guarantee to pay;

      • pre-trial examinations – if the decision has been taken to charge the accused in the regional court or to indict him before the High
      Court, the accused is to be brought before a magistrate’s court and required to plead to the charges, or that a preparatory examination be held;

      2. the trial:
      • indictments and charge sheets – everyone has the right of access to any information held by the state and any other information that
      is held by another person and that is required for the exercise of protection of any rights;

      • arraignment and plea of an accused – the calling upon the accused to appear, informing him of the crime charged against
      him, demanding whether he is guilty or not guilty, and the entering of his plea;

      3. the sentence:
      Determining a suitable sentence is one of the most difficult tasks a judicial officer has to face. The judicial officer has to make a value
      judgment and determine how much weight every fact and factor should be afforded.

      4. Post-verdict and post-sentence remedies:
      • Appeal;
      • Review;
      • Mercy, indemnity and free pardon.


  • Bail Application:

    • There are three different forms of bail:

      1. Police bail – this enables an arrested person to apply for bail at the police station before the expiration of 48 hours and before the first
      appearance in court. Police bail is granted by any police official of the rank of inspector and above and is for minor offences such as
      theft under R2 500, common assault or possession of dagga less than 115 grams.

      2. Prosecutor bail – this can be applied for before the arrested person has to make his/her first appearance in court. This type of bail can
      also be applied for while the arrested person is at the police station but to a prosecutor who has been authorised by the Director of
      Public Prosecutions to grant bail for more serious offences. Prosecutor bail is mainly for offences listed in schedule 7 of the Criminal Procedure Act.

      3. Bail applications in court – this form of bail can be applied for at the first court appearance or at any time before the accused is
      convicted, if the interests of justice permit.


  • The bail application process:

    • • when an accused is arrested he/she is informed of his/her rights by the law enforcement officer;

      • the police will give the accused the opportunity to call someone;

      • the accused should call a criminal defence bail attorney who will initiate and manage the bail application procedure;

      • the criminal defence attorney negotiates the bail price.

      When considering a bail application the court will need to determine whether the accused is a danger to the public, is likely to attempt to flee, will intimate witnesses or jeopardize the trial.

      If the accused is released on bail he/she will receive a written notice that will inform him/her where the court is, the date and time to
      appear in court, and the conditions of the bail. Upon payment of the set bail amount the accused will be given a receipt which will be
      needed after the trial to get a refund of the money depending on the outcome of the trial.



    • ___________________________________________________________
      Hi, I’m Kailash Pillay, an attorney from the city of Johannesburg. My passion for the law
      stems from a desire to improve upon the lives of the vulnerable who fall prey to a
      corrupt system.
      I studied at the University of Johannesburg where I obtained my Bachelor of Laws
      degree, the starting point to the long journey of becoming a legal practitioner.
      This profession has taught me to persevere through the complexities of the law and to
      continually develop my skills as a legal professional.