Newsletter - April 2019
- Featured article by LAWYERS-ONLINE.CO.ZA
Criminal Law and You: A Quick Overview
So you’ve probably heard about civil law and criminal law, and you’ve wondered what the difference is - after all, the law is the law and wrong is wrong. Unfortunately, the law is far more complicated than that and populated with many grey areas. However it can be broken down into two main components: the aforementioned civil and criminal branches of law. Civil law simply refers to those instances where the matter is between private citizens - such as a divorce. It isn’t illegal to go through a divorce, but you’d surely need some legal assistance from a civil lawyer or family law specialist.
But when we talk about criminal law, that’s the law most people think of. It applies to those instances where a person has committed an action that is in clear contravention of the laws of the country as found in its legislation, common law and case law. In this newsletter we want to offer a quick breakdown of criminal law in South Africa and what it entails.
So what exactly is criminal law? Well in our country it refers to the laws and procedures that are used to discourage members of society from engaging in activities that are disruptive or harmful to the interest of society and justice. Sounds intense but honestly it is just a fancy way of saying that criminal law creates ways to stop criminals from being, well, criminals.
And how does it do that? Well although there are numerous crimes defined under criminal law, and in order to apply those laws and make sure that offenders are properly punished, prosecutors and criminal lawyers look to the Criminal Procedure Act 51 of 1977 for guidance. This is the most important piece of legislation that everyone should make themselves familiar with when it comes to criminal law! Of course, nothing in this act may contravene the laws found in our Constitution - the highest law in the land, and basically the yardstick by which all other laws are measured. If something goes against the rights granted by the Constitution, it cannot be made into law.
Let’s take a quick look at an example, just to make this a bit easier to digest. The Constitution guarantees everyone the freedom of movement, and yet the act of arresting someone for a crime goes against that right - quite the brain teaser right?. Well that’s where something like bail comes in. By making bail an element of criminal law, it means that someone’s freedom is not entirely restricted. (Of course there are times where public safety comes first and bail cannot be granted, but a young man arrested for driving under the influence does not fall into that category).
Now one thing that is very interesting when it comes to criminal law, is that being arrested does not make someone guilty and in fact, in order to prove someone committed a crime the prosecution (essentially the lawyers working for the state) must prove that guilt beyond a reasonable doubt. That means that if so much as a single doubt can be raised about someone’s involvement in a crime, they cannot be found guilty - someone can’t go to jail for being near the scene of a crime in a trench coat, suspicious though it is.
But more than that, there can be no crime without intent. So if you did not intend on running over you neighbour’s unsightly flamingo mailbox, you cannot be prosecuted for malicious damage to property. However, if said mailbox was your target all along, you had the intent and liability and will have to stand trial for your crimes against flamingo mailboxes. Of course it isn’t always as clear cut, and perhaps the consequences were intentional but the perpetrator had no idea that it was illegal to do so - another case where those grey areas of the law come into play.
So we have a bit of an understanding regarding criminal law. It is really far more vast than a single newsletter could convey, after all, it is an entire branch of law and is therefore best left to the experts like criminal lawyers and legal scholars. It is always best to have a qualified lawyer on hand to help you navigate legislation and to protect your rights when it comes to criminal law. Why not let us help you find the right lawyer for your needs, whether it is defending a criminal case, securing bail, or simply legal advice regarding criminal questioning or the legality of an act.
For further information about our services please feel free to contact us.