Criminal Law

Marius du Toit was not only a prosecutor and magistrate in the Justice Department but also trained young prosecutors. He further practised as an attorney in specifically criminal law since 1999. He further has acted as a guest lecturer at Bond University in criminal law and has acted on SABC 3 television program “Rights and Recourse” as a guest legal expert. This was a live debate dealing with various legal issues raised by members of the public calling into the program.

He has further been involved in various prominent criminal matters that have received international and local coverage i.e. he represented people involved in the death of the well-known businessman Brett Kebble as well as prominent ANC politicians who have been charged with fraud and corruption. He further acted on behalf of prominent policemen exposed on BBC television for brutality and he has represented numerous policemen on charges ranging from murder, rape and corruption. He has a success rate in criminal matters exceeding 90 % of all matters he has been involved in.

Due to the fact that Marius du Toit prosecuted and acted as a magistrate in six of the nine provinces, he has dealt with most of the statutory and common law offences applicable to South Africa. He has done in all his years of criminal related work in excess of 100 rape cases, 150 murder cases, 100 fraud cases and thousands of other trials too numerous to mention. Some of the offences would include but are not limited to offences under the Sea Fisheries Act, offences dealing with the illicit dealing in diamonds and gold, drug-related offences, all common law offences i.e. robbery, rape, theft, housebreaking, vehicle theft and fraud. He has also dealt with numerous stock theft matters, importation of drugs, money laundering and racketeering.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

Drugs

One of the first questions asked when an individual is arrested for possession of drugs is will he/she go to jail. This question is usually posed whilst the person is still incarcerated pending the granting of bail. To answer this one has to differentiate between different stages in the matter.

Consequences: Possession of drugs

Before bail is granted

When a person is arrested for drugs he will be detained in a holding cell and should it happen on a Friday night, chances are that he/she will most probably only get bail on a Saturday or Sunday night. The granting of bail is solely in the discretion of the investigating officer and the police can only grant bail if the Criminal Procedure Act (51 of 1977) authorises them. Therefore: Give your cooperation and be polite.

You should be able to get bail for possession of a small number of drugs i.e. 1 or 2 ecstasy tablets, 1 gram Coke/Cat/ Dagga. Bail is always dependant on the person having a fixed address, no criminal record for similar offence, having employment and numerous other factors (too voluminous for this article) If you possess drugs in bigger quantities or have previous conviction for drugs/theft etc you will not get bail over the weekend, and probably only once you are in court will the court have a discretion to grant you bail. At your first appearance at Court, the prosecutor is also entitled to ask for an adjournment of 7 days at a time in order to enable the state to investigate whether you are indeed a suitable candidate for bail. If could, therefore, happen that you be detained for 10 days or even longer before bail is granted.

The moment you are granted bail you will remain on bail until such time as you are convicted or when the court revokes your bail.

After Conviction

If you are a first offender and you are convicted or found guilty of possession of a very small quantity of drugs irrespective of the nature of the drugs, i.e. 1 tablet, small amount of dagga, prescription medicine without having a script, chances are you will get a fine ranging between R3 000 and R10 000 as well as a term of imprisonment suspended wholly for a period of 5 years. The moment the quantity of drugs creates the impression or evidence exists which justifies an inference that you were dealing in drugs or you are actually found dealing in drugs, chances are you will go to jail for the offence. This is of course not a hard and fast rule and when it comes to imposing a sentence, the Courts have a wide discretion to impose any sentence, but chances are the more drugs you possess, the bigger your chance of going to jail. If you are a repeat offender, expect no mercy. Chances are you will get a term of imprisonment. If your friends possess drugs in your car whilst going to nightclubs, chances are further that you will be arrested and be detained. You might get bail later on, but you have a very unpleasant experience due to your friend’s conduct. The best advice is to not use or sell drugs yourself or hang out with friends who use or sell drugs.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

Corruption

When dealing with corruption, one is to always keep in mind that the public perception of corruption and what the offence of corruption entails are two different things.

The public view corruption generally speaking as any theft or fraud or bribery within government departments and any conduct of government officials that seems unlawful of self-enriching. The courts do not view corruption in the same way.

The definition of corruption is specifically contained in Corrupt Activities Act of 2000. This definition is very wide and it includes receiving or demanding a benefit which is in breach of any rule, code of law. It covers all spheres of business and a zero tolerance is applied by the courts. The courts would sentence corrupt government officials quite readily to a jail term even as first offenders. If private individuals are convicted of corruption, as first offenders, the courts tend to impose heavy fines coupled with a term of imprisonment.

Any person who pays a government official in order for that person to gain a benefit or to prevent the official performing his duties should realise that such conduct is criminal and punishable in law.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

Fraud

The offence of fraud is one of the most widespread offences and is often been referred to in our legal authorities as to the “cancer of society”.

Fraud varies from not only credit card fraud and cheque fraud, but also to channel funds by making false entries into various accounts or submitting false claims to insurance companies.

Fraud is widely regarded as one of the more serious offences for which an individual may be charged and should a client be charged, he should always keep in mind that the possibility of a jail sentence is very likely. The courts are generally lenient on first offenders but it has to be stressed that the moment the monetary value or prejudice suffered by the complainant exceeds R50 000.00, the courts tend to have zero tolerance attitude.

Since 1990 there has been a crack-down by courts and authorities on fraud or white-collar crime. As a result, sentences are much higher than they used to be and the perception of white-collar criminals getting away with a crime has definitely been stamped out by our courts. In fact, there are numerous authorities where one can see that should an individual be charged and convicted of fraud of big amounts of money; the courts readily send them to jail as first offenders. This is not to say of course that all fraudsters go to jail; with the right legal representation, one can steer these matters, to satisfy not only the client but also the State seized with the matter.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

Self Defence

Legally speaking, when may I act in self-defence? What is considered self-defence?

Some of the principles applicable to the question posed above are as follows:

You should ascertain if the attack is ongoing or whether the attack is over. It sounds silly, but it is an important issue in court. You can only defend yourself against an attacker during an ongoing/imminent attack. If your attacker has fled the scene of the crime you cannot pursue him and think you are still acting in self-defence. Retaliation is not self-defence. In those circumstances, you have become an attacker yourself and would be guilty of an assault. Your defence must also be directed towards the attacker. You cannot defend yourself by assaulting somebody else who never launched an attack on you.

Your actions in defending yourself or your friend/family must further be reasonable in the circumstances and necessary. You cannot shoot a person for slapping you. There has to be a reasonable comparison between the attack and the defence. In this regard, it should be kept in mind that it is not expected of a person to first ascertain what weapon the attacker is using before you defend yourself. All that is required is that your actions in defending yourself must not exceed boundaries of self-defence. You cannot beat a person to death after he punched you once because in those circumstances you would exceed the boundaries of self-defence. The principle to remember is that if you have the belief that this person would injure you or someone close to you and even possibly kill you as a result of this attack, you may use any and all means to defend yourself. More often than not, these tests will not be applied by the investigating officer or the arresting officers at the scene, but the Court who ultimately considers whether boundaries of self-defence were exceeded.

All these requirements have been dealt with in our Courts in numerous matters and our Courts has set guidelines applicable to each and every requirement mentioned hereinabove. These requirements are not an exhaustive list and there are other requirements as well. This summary merely serves as a very brief discussion on the issue of self-defence.

You should always bear in mind that it is simply not worth it to get involved in fights and those repercussions will be severe if the person dies from his injuries. Even though you might be acquitted on the charge of murder, you might ultimately find yourself being convicted of culpable homicide and still going to jail. You should therefore always think twice before getting involved in a fight.

In conclusion: Changing Section 49 of act 51 of 1977 will serve no purpose as the proper application of the common law principles of self-defence are more than adequate at present. There is, therefore, no need for the Justice Department to change the law, rather educate police officers better.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

Racketeering

Racketeering and money laundering are both offences which run hand in hand. In the past, these offences were not part of our legal system but since the introduction of the Prevention of Organised Crime Act, No 121 of 1998 (POCA) it has now become a criminal offence and our legislation is now in line with international law enforcement agencies in this regard.

In both instances, a conviction for money laundering and racketeering carries massive fines of up to R200 million and could include life imprisonment.

Racketeering and money laundering were specifically adopted in the South African law due to the fact that there were inadequate measures to enable law enforcement agencies to investigate and prosecute gangs and mafia type organisations.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

After Hours Bail

On a regular basis, we are contracted by members of the public who wish to ascertain whether bail can be granted after hours at a police station. The following should always be kept in mind when the issue of after-hours bail is considered.

What is the charge for which you have been arrested?

You can only get bail for offences listed in specific schedules of the Criminal Procedure Act 51 of 1977. Should you be arrested for offences listed in Schedule 5 or 6 of the Act, you cannot get bail after hours. You can however still get bail in court, but not over the course of weekend i.e. after hours.

For offences listed in schedule 5 and 6 of the Criminal Procedures Act, the right to after-hours bail has been retracted and the individual cannot get bail after hours and has to wait for his first appearance at Court when a formal application for bail can be lodged. Schedule 5 and 6 offences include offences of theft and fraud where the value is in excess of R500 000.00, murder, rape and robbery, to name but a few. Also if the individual was previously arrested for an offence and was granted bail prior to the current matter for which he has been arrested, for now, he cannot get bail after hours either.

For certain offences listed in Schedule 7, the investigating officer concerned cannot grant bail but a prosecutor from the Director of Public Prosecutions, who is usually on standby in the specific district over a weekend, has to attend the police station in order to grant bail. In those offences, the police official or the officer in the charge office has got no right to grant bail except when the prosecutor so ordered. In practice, however, the prosecutor is always guided by the attitude of the investigating officer and would never grant bail unless the investigating officer consents thereto.

Each Magistrates Court has prosecutors specifically designated to be on standby and those numbers are usually available at the police stations for bail applications. The offences resorting in this category are fraud and theft where the amount is less than R20 000.00, robbery in circumstances where it is not aggravated and where the amount also is less than R20 000.00, arson, culpable homicide or assault involving the infliction of grievous (serious) bodily harm.

Many of the minor offences like driving under the influence of alcohol, being found in possession of a very small quantity of drugs and shoplifting, the police have authority in terms of Section 59 of the Criminal Procedure Act to grant bail at the police station without the assistance of a prosecutor. In those instances, a person above the rank of Sergeant i.e. Inspector and higher has to grant the bail and the bail money will be deposited at the police station.

Bail money will be refunded to the person who deposited the bail money, provided that the accused adhered to his condition of bail and he/she attended court on each and every occasion.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

Drunken Driving Matters

These are the type of matters most commonly referred to Du Toit Attorneys especially over the course of weekends. It would seem that in the Johannesburg area the officers of the Johannesburg Metro are very active in actively pursuing possible transgressions of the Road Traffic Act.

Typically they prosecute people not only for exceeding the amount of alcohol exhaled in their breath, but also prosecuting offenders who exceed the legal limit of alcohol in their blood. In both instances the individuals are granted bail after hours at the police stations and should clients wish to plead guilty in these matters, they can look at fines of between R2 000 and R10 000.

The veracity of all tests can, of course, be contested. It is, however, a very expensive process and expert testimony to this end have to be adduced.

In some cases or where the accused are young adults the State would consider withdrawing the charges against the accused subject to community service being performed. This is the so-called “Diversion program” and it is a program recommended for all young offenders and endorsed by Du Toit Attorneys.

Should you require any of our legal services please don’t hesitate to contact us on 012 664 9400 for more assistance.

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