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Tag Archive: bail attorneys

Don’t get locked up during lockdown

Lockdown has led to high numbers of arrests. Here’s what to do if it happens to you.

Locked up during lockdown? know your rights

Locked up during lockdown? Lockdown has brought with it an increased number of arrests and incidents of police brutality. In the first three weeks of level 5 lockdown, more than 100 charges were laid against the police for abuses. Level 4 regulations are unclear and open to interpretation. For example, exercise is permitted but there are to be no “organised groups”. Among the cyclists we know, one interprets “organised group” to mean a club ride or organised event like a race. Another thinks any more than two cyclists constitutes a group. Who is right? No one knows, as our rules don’t define a group by numbers, such as five (Switzerland) or 10 (France). 

So it’s up to the police to decide who is breaking the law and who is not. In this climate of ambiguity, normally law-abiding citizens may find themselves on the wrong side of the law. What should you do if this happens to you and you are arrested? 

Lockdown lock-up – arrestees’ rights

Everyone arrested has certain rights guaranteed under the Constitution. Whether you feel you have been wrongfully arrested, for example due to a difference of interpretation of an opaque rule, or have been caught red-handed committing a crime, there is certain behaviour incumbent on the police making the arrest. You have the right to:

  • Be informed of your rights as well as the consequences of not remaining silent
  • Remain silent
  • Not be forced to make a confession that could be used against you
  • Be brought before a court within 48 hours or by the end of the first working day after the weekend (whichever comes last)
  • Be charged, or informed of the reason for continued detention, or released at the first court appearance
  • Be released if the interests of justice permit, subject to conditions, e.g. bail
  • Be informed of your right to institute bail proceedings

Make a note of how you are treated

Generally, the South African police force upholds the Constitution and acts within the law. Occasionally it does not. Unfortunately, at present our police are overreaching their authority and you may find your rights are breached. It is worthwhile making a note – mental or written if possible – of the following:

  • The precise events and conversations that occur between the representative of the law and yourself
  • The degree of force used in effecting the arrest
  • Whether a warrant was shown
  • Whether you were informed of your rights on arrest
  • Whether you were allowed to contact a bail attorney 

Most importantly, avoid inflaming the situation. It won’t help your case, no matter how aggrieved you may feel.

Lockdown lock-up – what to do if you are arrested unlawfully

Right now, because of the murkiness of the rules, it’s quite possible you will be arrested unlawfully, or feel that you have been. Keep calm and know your rights. 

  • First, try to make notes concerning everything that is happening to you. Ask for pen and paper if you don’t have writing materials with you
  • Second, remember that you are innocent until proven guilty and it is the state’s responsibility to prove your guilt
  • Third, contact your lawyer as soon as possible. You have a right to legal representation – have that vital cell number on speed dial for rapid response

In your written notes, record the following, as far as you are able:

  • Every conversation between you and the officer/s involved
  • Was a warrant shown?
  • Were you advised of your rights?
  • Were you advised about your rights to apply for bail and were you able to contact a bail attorney?
  • If force was used, describe this and try to evaluate whether the force used was excessive

If you have no writing materials and your request for pen and paper is turned down, do your best to make mental notes of these points and write a full account as soon as you are able.

Lockdown lock-up – what to do if you’re a victim of police brutality:

Force has been a hallmark of police activity during lockdown. The United Nations has said that South Africa is abusing the lockdown with gratuitous violence, “…using rubber bullets, tear gas, water bombs and whips, to enforce social distancing, especially in poor neighbourhoods”. This constitutes assault. If you are a victim of this, here are some steps you can take.

Step one: collect relevant information

If possible, obtain important information at the scene of the assault, such as: 

  • Names of the offending police officers
  • Names and contact details of any witnesses
  • Photographs of all your injuries

Step two: report the crime

Go to your nearest police station to report the assault and lay a criminal charge against the offending police officer. If possible, seek the assistance of a lawyer when opening the criminal charge. We can help you with this. 

Step three: see a doctor

The police officer at the police station should take you to a district surgeon, who will examine you and report on your injuries. The district surgeon should complete a J88 form, detailing your injuries. This form will be given to the police officer and will form part of your police docket.

If you are in police custody, you can request that a police officer take you to a district surgeon to be examined.

Step four: document the story 

Although you have reported the incident of assault to the police, it is important that you write down the entire incident for your own personal records. Be as specific as possible in detailing the assault and the injuries you sustained.

Other legal options:

Laying a charge against an offending police officer at the police station constitutes criminal proceedings. You may also institute a civil claim by opening an action for damages against the offending police officers and the Minister of Safety and Security. You will need to consult with a lawyer in order to begin these proceedings. Contact us for more information.

You can lodge a complaint with the Independent Complaints Directorate. Please go to www.ipid.gov.za/lodge_complaint/lodge_complaint.asp

Contact a good bail lawyer

SD Law & Associates are experts in criminal defence and bail applications. We are available 24 hours a day / 7 days a week. Contact us on 086 099 5146. Save this number in your phone under “bail lawyer”. In the current climate, you never know when you might need it.

This post also appears on baillawyer.co.za

Further reading:

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Harsh Sentence for a Minor Crime

harsh sentence for a minor crime

An accused appeared before a magistrates court for the theft of shower gel and a body wash to the value of R160.50. The accused was a primary caregiver of two minor children (11 and 16). The initial magistrate sentenced the accused to three years’ imprisonment.

Upon review, the Mpumalanga High Court found that the magistrate had failed to take the best interests of the children into account in ordering such a harsh sentence.

Was the harsh sentence fair?

Considering the children’s interests does not mean that a primary caregiver cannot or should not be given a harsh sentence as a punishment when it is deserved. However, in imposing such a sentence, the court should first take care of the best interests of the children under the accused’s care. The High Court found that the sentence of three years had failed to take the children’s best interests into account. It was reduced to 18 months, backdated to original date of sentencing.

Have you been unfairly treated by the courts?

SD Law is a firm of criminal lawyers who specialise in criminal defence and bail applications. We are available 24 hours a day / 7 days a week.

Our bail attorneys are here to help you, whether you are arrested unlawfully or lawfully. And if you or a loved one has received a sentence for an offence that you feel is unjust or excessive, contact us on 086 099 5146 or email Simon on sdippenaar@sdlaw.co.za to discuss your case in confidence.

First published on baillawyer.co.za 2020-02-03

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Will it be bail or gaol for convicted killer Jason Rodhe?

Why bail is not always granted

In November 2018, Jason Rohde was convicted of killing his wife Susan and defeating or obstructing the course of justice by covering up her murder to make it look like a suicide. He is currently serving a 20-year sentence.

Upholding the rule of law. When not to release someone on bail.

Rohde has now asked the courts to grant bail so he can manage his business interests pending the outcome of his application to have his conviction and sentence overturned in the Supreme Court of Appeal (SCA). But the Western Cape High Court has denied bail. Granting bail would “offend the rule of law and make a mockery of the criminal justice system,” Judge Gayaat Salie-Hlophe said at the hearing. The court did not believe that the facts presented by Rohde’s legal counsel were “sufficiently compelling to justify his release.”

Being presumed innocent is not enough

Section 321 of The Criminal Procedure Act and legal precedent guide the decision on whether or not to grant bail. An accused may be released on bail while awaiting trial to carry on with his life and earn an income if there is a possibility that he may be acquitted or given a suspended sentence or probation. In this scenario the accused is still presumed innocent.

In the case of Essop v the State, for example, the court ruled that the presumption of innocence no longer applies if someone who has already been convicted and sentenced for a crime later applies for bail pending the finalisation of his appeal against his sentence.

In Rohde’s case, he too had already been convicted of murder and no longer enjoys the presumption of innocence. So, although he has been granted leave to appeal in the SCA, this does not in any way invalidate the fact that he has been found guilty and does not entitle the applicant bail pending the hearing of the appeal. (See R v Mthembu 1961 (3) SA 468.)

Being presumed innocent is only one factor considered in determining whether to grant or deny bail.  In the Essop matter, bail was granted pending the appeal, subject to strict conditions and under very different circumstances: The accused had pleaded guilty, the court felt that the sentencing magistrate had handed down a sentence far too severe, the appeal court was likely to amend the sentence, and Essop was not regarded as a flight risk.

Does it serve the interests of justice?

The Court must also consider whether together all the facts constitute exceptional circumstances that would justify Rohde being released on bail (R v Milne & Erleigh (4) 1950 (4) SA 601 (W) at page 603 and S v Bruintjies 2003 (2) SACR 575 (SCA) para 6). In S v Scott-Crossley 2007 (2) SACR 470 (SCA) the court held that the likelihood of success alone is not sufficient. Additionally, Section 60(4) and (5) state that the interests of justice do not permit an accused being released on bail during trial and preceding conviction. On this basis, the court ruled that releasing Rohde would not serve the interests of justice and, in any event, he had already been convicted.

Under what circumstances is bail denied?

Numerous factors come into play in the court’s decision to deny bail:

  • The severity of the crime.
  • If the accused is a flight risk (Rhode has Australian and United Kingdom passports as well as an overseas bank account).
  • To protect the welfare of society if the accused is a repeat offender.
  • If there are signs of mental instability or violence and the defendant poses a threat to themselves or others.
  • If there is a possibility that the accused will try to influence or intimidate witnesses or destroy evidence.

Furthermore, South Africa has the worst levels of gender-based violence (GBV) in the world and the highest incidence of rape per capita. The latest crime statistics reveal that seven women and three children are killed in this country every single day.

The recent spate of gender-based violence in this country is alarming and the judiciary must be seen to be upholding the rights of women. This is further reason to deny bail for Rohde.

The bottom line

A decision to release Rohde on bail would undermine the rule of law and make a mockery of the criminal justice system. The reasons to keep him behind bars are far more compelling than any justification to grant bail to someone convicted of such a dreadful crime.

We’re here to help

Cape Town Attorneys, SD Law & Associates Inc., are criminal attorneys and bail lawyers.

We will ensure that your constitutional right to a fair trial is upheld and we always consider alternative dispute resolution/mediation instead of gaol time. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for any advice about criminal law.

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Oscar Pistorius – A Knife Edge For The Blade Runner?

Oscar Pistorius - A Knife Edge For The Blade Runner

Oscar Pistorius, just when freedom seemed so close the Supreme Court of Appeal had other ideas. As has been widely reported in the news, the verdict of culpable homicide in the case of the State versus Oscar Pistorius has been overturned on appeal and instead a verdict of murder has been returned.

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