Criminal
Criminal Procedure Act 51 of 1977, no death penalty, and prescribed minimum sentences
Substantive criminal law remains largely Roman-Dutch common law — murder, robbery, rape and fraud are common-law crimes — while procedure is codified in the Criminal Procedure Act 51 of 1977. Capital punishment was struck down as unconstitutional in S v Makwanyane in 1995. Sentencing is heavily shaped by the prescribed minimums in Act 105 of 1997, which a court may depart from only for substantial and compelling circumstances.
Key rules
- Jurisdiction — District and regional magistrates' courts try the bulk of matters; the High Court tries the most serious offences and hears appeals; the National Prosecuting Authority holds the prosecutorial discretion, with the Investigating Directorate handling state-capture matters.
- Deadline — First court appearance: within 48 hours of arrest, extended to the next court day if the period expires outside court hours
- Deadline — Schedule 5 and 6 offences: the onus is on the accused to show that release on bail is justified
- Deadline — Appeal or review to the High Court: leave to appeal applied for within 14 days of sentence
Governing law
- Criminal Procedure Act 51 of 1977 — arrest, bail, plea, trial and appeal
- Criminal Law Amendment Act 105 of 1997 — prescribed minimum sentences, including life for specified murders and rapes
- Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
- Prevention and Combating of Corrupt Activities Act 12 of 2004
- Prevention of Organised Crime Act 121 of 1998 — racketeering and civil asset forfeiture
In practice
Two features distinguish South African criminal justice. First, the Bill of Rights applies directly to the process: s 35 guarantees the presumption of innocence, the right to remain silent and a trial within a reasonable time, and evidence obtained unconstitutionally is excluded where admission would render the trial unfair or be detrimental to the administration of justice. Second, the minimum-sentence regime coexists with a strong appellate tradition of individualised sentencing, so the 'substantial and compelling circumstances' escape clause carries a large and still-developing body of case law.