Category Archive: Criminal law

Help! There’s an arrest warrant out for me

What to do if an arrest warrant is issued against you

If you are caught in the act of committing a crime, you will be arrested. At that point you need the services of a good bail lawyer. But what happens if an arrest warrant is issued against you? In this case you have not actually been arrested, but the threat of arrest hangs over you like the legendary sword of Damocles. What does this mean, and how can you go about having the threat, i.e. warrant, lifted?

What is an arrest warrant?

A warrant for your arrest is issued if you fail to appear in court when you have been subpoenaed and are in contempt of court, or if you are in breach of a court order, such as a protection (or restraining) order. You will either be arrested if you do nothing, i.e. fail to rectify the contempt of court, or if you do something you are not supposed to do, i.e. try to visit or telephone the person you are restrained from having contact with. In the latter case the warrant will apply as long as the protection order is in force, and there is nothing you can do about it. The good news is…as long as you comply with the terms of the court order, you need not worry.

But if a warrant is issued for your arrest on the basis of contempt of court, you need to take action. Let’s look at the different scenarios that might arise and what you should do.

You missed a court date

You may have received a summons to appear in court, either for something you did (traffic fines, etc., which we’ll come on to) or to provide information, perhaps as a witness. Even if you have not committed an offence, failing to appear in court is in itself an offence. But life happens, and dates get mixed up, children get sick, the car breaks down, etc. If you miss a court date and subsequently remember, don’t sit at home and wait for a second invitation. Go immediately to the court and speak to the clerk of the court. The clerk will find your details on the system and refer the matter to the magistrate. Depending on the circumstances, the magistrate may forgive the oversight and simply set a new date for your court appearance, or they may issue you with a fine. Whatever you do, don’t wait for the police to appear at your door and arrest you.

Two weeks’ grace

The court will generally hold over a warrant for arrest for non-appearance for two weeks, allowing you a grace period to remember and correct your mistake. It will then be sent to the police station local to your address; and it will be the responsibility of the local police to carry out the arrest. This usually takes place early in the morning, if you are lucky, or late in the evening – times when you are most likely to be at home. If it comes to this, you’d better hope the knock on the door comes pre-dawn, so you have all day to sort out your bail. Otherwise you won’t be sleeping in your own bed that night! Much better to avoid the situation altogether. Rectify your error as soon as you become aware of it.

You have overdue traffic fines

With the use of speed cameras becoming more and more common, it’s possible to amass multiple speeding fines on a single journey. Maybe you ignore these when they arrive in the post, or maybe you mean to pay them and then forget. The parking ticket left on your windscreen may suffer the same fate. If traffic fines mount up unpaid, or if you ignore a single summons to appear in court, which may be buried in the small print of the ticket, i.e. “if you fail to pay by [date], you may be liable to a court appearance” (or words to that effect), a warrant could be issued for your arrest. You may not know anything about this until you are stopped in a routine roadblock and the police officer runs your driving licence through the system. Or you may be on your way to your dream holiday and detained when you present your passport at the airport. If either of these scenarios occurs on a Friday night, you know where you’ll be spending your weekend, and it won’t be a on a beach somewhere.

Pay online

Historically, it was not possible to pay overdue fines in the usual manner – i.e. via the AARTO website. This has now changed. Perhaps due to the waste of resources spent bringing otherwise law-abiding citizens to court, in a country with a high crime rate and an overstretched law enforcement service, or perhaps in an effort to maximise revenue, AARTO now permits overdue traffic fines, along with the “admission of guilt” penalty, to be paid online. Note that this only applies to South African citizens and permanent residents with a South African ID number. If you are a foreign national, you must still pay offline. It’s not clear if overdue payments are accepted in the same way for non-South Africans.

Fortunately, you can also search for your fines on AARTO. Although there is some contention over the validity of a ticket sent by post, given our unreliable postal system and the lack of any proof of delivery or receipt, it’s not worth taking the chance. Being arrested, and needing the services of a bail attorney, will cause you far more grief and expense than paying your fines. After all, if you parked illegally or exceeded the speed limit, the fines are a reasonable penalty for breaking the law.

Breach of a court order

In this scenario you cannot act to remove the arrest warrant. The nature of a restraining or other court order is that you are allowed to move freely in society only so long as you observe the conditions of the order, which exist to protect an individual or the community against whatever threat you represent. Think of the court order as a suspended sentence. The arrest warrant will remain in place until the order is lifted or expires. But the solution to the arrest warrant is, in this situation, beautifully simple. Comply with the court order and you have nothing to worry about.

Don’t get yourself arrested!

There may be some scenarios in which an arrest warrant is issued against you, and you genuinely know nothing about it. You may have received a summons that you honestly misplaced and forgot, perhaps during a period of upheaval in your life. If you do get that pre-dawn knock on the door, or are detained in a roadblock, call us immediately to help you. But in the vast majority of cases, you can resolve the matter before it results in your arrest. Check your fines on AARTO. If you have any reason to suspect there may be an arrest warrant in your name, you can visit your local police station and check the register. If you miss a court date, go straight away to the clerk of the court to sort things out. Don’t let fines mount up or assume that the magistrate will forget about you. Neither will happen, and you will only make your situation worse by ignoring it.

Know a good bail lawyer

If you are at all worried that there may be an arrest warrant pending against you, contact Simon on 086 099 5146 / 076 116 0623 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. Cape Town Attorneys SD Law and Associates are experienced criminal lawyers who are available 24/7, 365 days a year. We won’t let you down.

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Criminal record? Wipe it clean

Make a fresh start

Expungement of criminal record

If you have a criminal record, no matter how minor the offence, your chances of getting a job are slim. But there is good news. If it’s been 10 years or more since the conviction, you can apply to have your criminal record wiped clean. This is known as “expungement”.

What is expungement of a criminal record?

Expungement of a criminal record is a legal process through which you can apply to the Department of Justice to remove any record of previous minor criminal offences from the criminal record database of the South African Police Service (SAPS).

This process came into effect in 2009 as a result of changes to the Criminal Procedure Act, 1977 (Act 51 of 1997) which made it easier for people to clear their name of a minor offence so that the past was no longer an obstacle to future employment opportunities. The Act was also designed to assist anyone convicted of apartheid era crimes.

Note that expungement of criminal records differs from restorative justice.

Are you eligible to have your criminal record wiped clean?

According to Section 217B(1) of the Criminal Procedure Act, you can apply to have your criminal record expunged if:

  • It has been 10 years since the date of your conviction (if you were 18 or younger when you were convicted you can apply after five years).
  • It was a minor offence, such as petty theft or shoplifting.
  • You were not convicted of any other offence and were given the option of a fine rather than imprisonment.
  • You were told that by paying a fine you would not receive a criminal record and you’ve subsequently discovered that you indeed have a record.
  • You were fined less than R20 000.
  • You received a suspended sentence.
  • Your name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.

You do not qualify for expungement if:

  • It has not been 10 years since the conviction.
  • Your name is either listed in or has not been removed from the National Register for Sex Offenders or the National Child Protection Register.
  • You were sentenced to prison without the option of a fine.
  • You received a fine of more than R20 000.
  • You were convicted of a serious crime such as murder, rape other sexual offences, or violent crimes.

Getting the ball rolling – steps in the expungement process

  1. First obtain a clearance certificate from the Criminal Record Centre of the SAPS proving that 10 years has elapsed since your conviction. This certificate must be attached to your application.
  2. Complete the expungement application forms (Part II and Part III) and, together with the clearance certificate, post or hand deliver them to the Department of Justice and Constitutional Development in Pretoria.
  3. If you meet the requirements set out in section 271B(1) of the Act, you will be notified in writing that your application was successful and that your crime has been expunged. You will likewise receive written notification if your application is denied together with the reasons for this decision. The process usually takes about three months.

The employment landscape

One of the biggest challenges facing South Africa is high unemployment, coupled with widespread poverty, high inequality and poor economic growth. The country’s official unemployment rate for job-seekers is 27.2% (Stats SA), but if we accept the broad definition, which includes those who have given up trying to find a job, the true level of unemployment is probably closer to 50%.

Finding a job is hard enough without the added barrier of a criminal record. Since more and more employers are running background checks on potential employees and are entitled to refuse or terminate employment because of a previous crime, even a minor one, it makes sense to apply for expungement. Any future background checks will not reflect prior convictions.

Given the gloomy landscape, job seekers must be able to “put their best foot forward”. Don’t let a past mistake determine your future.

Let our law firm help you

Cape Town Attorneys, SD Law & Associates Inc. are criminal attorneys and bail lawyers. Speak to us to find out more about having your criminal record wiped clean or about any other aspect of criminal law. Call Cape Town Lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

 

Further reading:

 

 

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Restorative justice – the arguments

Reconciliation vs. retribution

Globally, conventional criminal justice systems, based on punishing people for their crimes through incarceration and instilling fear of imprisonment as a deterrent, seem to have limited success. Prisons are overcrowded and rehabilitation is largely failing. Instead, restorative justice methodology, with its focus on resolving crimes by holding offenders accountable for their actions, is gaining ground.

Restorative justice supporters claim that the promotion of healing, restitution and rehabilitation of offenders will prevent future offences. This is because revenge does not help victims make sense of or restore their losses. It doesn’t answer questions or provide closure. Restorative justice falls within the ambit of alternative dispute resolution (ADR) and is a process of mediated dialogues. The term was first coined by Albert Eglash, a psychologist working with prisoners in the 1960s.

Alternative Dispute Resolution is rooted in South African customary law

Restorative justice and ADR have always been an integral part of customary law in South Africa. The Truth and Reconciliation Commission (TRC) is a good example of restorative justice. The TRC was established to deal with apartheid crimes in a participative and reconciliatory manner to promote healing of families, communities and the country. The Commission for Conciliation, Mediation and Arbitration (CCMA), which tackles labour disputes, is another example.

ADR and restorative justice – is there a difference?

Although negotiation, mediation and arbitration are components of both ADR and restorative justice, there is an important distinction. ADR involves conflict resolution and compromise assessment with the help of an impartial mediator. In ADR the parties agree on the terms of the settlement themselves. By contrast, restorative justice sets out to address the harm done once an offender has admitted to a crime and is willing to take responsibility for it. It does not aim to resolve a dispute.

In each case both parties are directly involved and are engaged in decision making, compared with conventional criminal processes, which regard the victim and offender as passive opponents, with key decisions taken by judges and lawyers.

Young offenders (under 18) may be offered diversion rather than restorative justice.

Advantages and application of restorative justice

Restorative justice functions within the framework of the criminal justice system. It is often seen as a way to deal with petty or moderate crimes, but can be used in criminal cases, taking into account the severity of the offence.

ADR mechanisms have become increasingly popular in South Africa: ADR is cheaper, quicker, more efficient and less stressful than going to court. It is informal and voluntary and can happen at any stage before or during civil proceedings as long as judgement has not yet been passed. The process also gives victims and communities a voice and can therefore be a more empowering experience.

Let the punishment fit the crime

The State vs Shilubane, 2005 was a significant victory for the principles of restorative justice. The accused, a 35-year-old first-time offender, stole and cooked seven fowls worth R216.16. He pleaded guilty and despite showing “genuine remorse” was sentenced to nine months in prison. On review, the sentence was deemed “disturbingly inappropriate”with Judge Bosielo stating that the “punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy.”

Although it requires a significant mind shift on the part of the legal fraternity, victims and offenders, the positive outcomes of restorative justice are heartening, and the process has done much to build relationships in South Africa.

A key argument in favour of restorative justice is that participating offenders are less likely to commit further offences, compared with those who are subject to conventional justice interventions (see “Restorative Justice: The Evidence”, by Lawrence Sherman and Heather Strang).

The solution to prison overcrowding?

Retributive justice and harsh sentences are failing to stem the ever-growing crime rate in South Africa. Restorative justice, with its emphasis on reconciliation over retribution, has much to recommend it, beyond reducing the seemingly insurmountable backlog in the South African courts. This is not to suggest that serious crimes should go unpunished or untried. Clearly, the merits of ADR/restorative justice must be carefully considered on a case‑by‑case basis, but it may be a viable alternative to a custodial sentence for less serious crimes or where the offender does not pose a danger to society.

The punishment should still fit the crime.

We can help

Cape Town Bail Attorneys, SD Law & Associates Inc. is a Cape Town law firm of Cape Town Bail Attorneys. We’ll fight for you and protect your rights. If you need advice on alternative dispute resolution or independent mediation services or help with any aspect of criminal law or bail, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

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