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Harsh sentence for a minor crime

We came across an interesting case recently where the punishment most definitely did not fit the crime. A petty criminal received an unduly harsh sentence. Furthermore, there were minor children involved who might have been left without their caregiver if the sentence had been carried out.

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. 

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.

Posted in Arrest, Arrested Unlawfully, Bail Attorney, Bail Lawyer, Criminal Law, Sentencing | Tagged , , | Comments Off on Harsh sentence for a minor crime

Can scratching your head or looking suspicious land you in cuffs? Court questions cop’s search method

Is scratching your head and looking around when a police officer approaches enough to be cuffed and searched? 

A low-key case of alleged possession of tik was heard in the Cape Town Magistrate’s Court on Tuesday and had the accused’s lawyer and the magistrate questioning how the police decide what warrants a stop-and-search.

In this case, was it because the accused, Joshua Aguza, was looking around while walking down a side road with another man in Sea Point on an August morning last year?

Was he cuffed before being searched because he reached behind his head with one hand when the police officer approached him?

Aguza was arrested for allegedly being in possession of five small packets of tik, a drug also known as methamphetamine.

Asked how he pleaded, he simply said “not guilty” and sat down.

‘Looked very suspicious’

Questioned by Legal Aid lawyer Kabelo Manyoga, Sergeant Heinrich Pretorius, said he was part of a team fanning out around Sea Point for policing duties.

He was wearing civilian clothes and was patrolling near Main and West Beach Street when he saw the man coming down a side street with a homeless man with whom police were familiar.

“They looked very suspicious, looking around and talking the whole time,” testified Pretorius.

He said one of them had also been “locked up” for drugs before.

When Pretorius approached them, Aguza put his hand behind his head and scratched it.

Pretorius’ reading of the situation was that an on-the-spot search was warranted.

He testified that to avoid risk to either the man he was about to search or himself, he cuffed him and then searched him.

Aguza was arrested and at the police station it was found he had a previous brush with the law.

At the police station, Pretorius took an item out of his pocket and put it in an evidence bag. 

The item was found in Aguza’s hand, the court heard.

Manyoga submitted his client’s version was that he was not carrying the drugs the police officer presented at the police station.

‘Just doing my job’

A long debate ensued in court over the police officer’s reading of the situation.

“You arrested him because he was scratching his head, and then you handcuffed him. And only thereafter you searched him,” submitted Manyoga.

Magistrate Vusi Mahlangu also wanted to know whether it was normal to “pick up” people and go and check their fingerprints, or to search people who had been arrested for drugs before.

Pretorius said he did it sometimes, and added people who had nothing to hide would comply.

He explained that the cuffing was necessary before the search because sometimes people are armed with knives, which is risky.

“I’m just doing my job,” he testified. “Otherwise, if I find something else, I read them their rights.

“As I explained, body behaviour says a lot. I’ve been doing this job for 13 years.”

The State rested its case. Manyoga applied to court for an acquittal in terms of Section 174 of the Criminal Procedure Act on the grounds that the State’s evidence against Aguza was weak and improbable.

Aguza was acquitted. 

Reprinted from News 24 2020-01-22

CONTACT BAIL LAWYER CAPE TOWN

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. Contact us on 086 099 5146. Why not save the number in your phone as “bail lawyer” in case you need it one day?

Further reading:

Unlawful arrest, detention and police brutality

Arrested unlawfully? Don’t wait for the worst to happen

Bail application process

Emphasis/links by SD Law.

Posted in Arrest, Arrested Unlawfully, Bail Attorney, Bail Lawyer, Criminal Law, Unlawful Arrest | Tagged , | Comments Off on Can scratching your head or looking suspicious land you in cuffs? Court questions cop’s search method

Extradited for possession of cannabis?

The legalisation of dagga has been big news since the Constitutional Court decriminalised the possession and cultivation of cannabis in private by adults for personal consumption in September 2018. But what happens if you’re caught with marijuana (cannabis) overseas? What laws apply? Can you be extradited for possession of cannabis? This is the predicament Jason Smit, a South African citizen living in the United Kingdom, found himself in when he was arrested for the alleged possession of cannabis.

Can you be extradited for possession of cannabis in a foreign country Not under the principle of "double criminality", but you may still be arrested there!

The drugs were found in his apartment and in two other residences leased in his name and Smit was charged for various criminal offences relating to production, cultivation, possession and supply of dagga. Smit was released on bail but failed to comply with his bail conditions and a warrant was issued for his arrest. 

The United Kingdom then requested that Smit be extradited to stand trial. 

Fighting crime across international borders

The rule of law is the very foundation of democracy and a functioning and effective society. Simply put, the rule of law states that no one is above the law, that all crimes must be investigated and, if convicted, the offender should be punished accordingly. The challenge is how to accomplish this if the perpetrator is outside the borders of the country in which the crime was committed? 

Extradition is defined in the Merriam-Webster dictionary as: “the surrender of an alleged criminal usually under the provisions of a treaty or statute by one authority (such as a state) to another having jurisdiction to try the charge.” 

South Africa has ratified extradition treaties with 15 countries to date, with several others either agreed to and not ratified, or still at negotiation stage. Extraditions in this country are governed by the Extradition Act 67 of 1962.

When does extradition apply?

Section 1 of the Extradition Act defines an “extraditable offence” as crime that applies under the laws of both the foreign state and South Africa and carries a six-month prison sentence or more. This is known as the rule of double criminality. 

However, a country is not obliged to surrender an alleged criminal to a foreign state, because of the principle of sovereignty which gives every state legal authority over the people residing in its borders. Importantly, the extradited person is entitled to a fair trial and South Africa will not extradite someone if they may be prejudiced at their trial because of their gender, race, religion, nationality or political opinion.

So, what was the outcome of the Smit case? 

Smit challenged his extradition claiming that the Schedule to the Drugs and Drugs Trafficking Act No 140 of 1992 is unconstitutional and invalid since the drug was proscribed. Cannabis was not lawfully retained in the Schedules, Smit said, so he had not broken the law. Although being in possession of cannabis was banned in the United Kingdom, this was not the case in South Africa and so the double criminality rule did not apply, and he could not be extradited for possession of cannabis.

Still illegal to deal

Remember it is still illegal to deal in dagga! Possessing cannabis for personal use is now legal in South Africa; growing it to sell or supply to others is still a crime. And Smit was charged with the production, cultivation, possession and supply of cannabis. This distinction is critical. Whichever way you look at it, dealing in drugs is breaking the law.

The court dismissed the application subject to Section 63 of the Drugs and Drugs Trafficking Act 140 of 1992 and the amendments made to the Schedules in terms of section 63 by the Minister of Justice and Correctional Services were declared to be inconsistent with the Constitution and therefore invalid.

Smit was subsequently arrested for running a hydroponic lab in Strand, Western Cape without the appropriate licence and was denied bail

We’re here to help

If you need legal advice or assistance related to cannabis possession or consumption or on any other matter, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

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Cannabis law – what Sithole told the police

Parliament has amended legislation regarding dagga use and police officers have received instruction from the Police Commissioner

 

Dagga possession and cultivation - the law changes

We wrote last year about the Constitutional Court rulingregarding dagga, or cannabis. The ConCourt judgement effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. The definition of “in private” extends beyond one’s place of residence and includes public spaces, as long as thepossession is in a private place, e.g. a pocket, and is discreet.

However, a court judgement, even by the highest court in the land, is not in itself legislation. It was necessary for Parliament to amend legislation before the law could officially be declared changed in response to the ruling. In the interim, police were in the arguably awkward position of having to use their judgement and discretion when faced with circumstances of cannabis possession.

National Prosecuting Authority issues guidelines

Parliament has acted swiftly to change the relevant legislation concerning cannabis and the National Prosecuting Authority (NPA) has issued guidelines to prosecutors to ensure criminal procedure reflects the amended laws. These guidelines have also been delivered to the South African Police Service (SAPS) by Police Commissioner General Khehla Sitole.If you use dagga there are important things you should know.

Cannabis law rewritten

The two primary pieces of legislation concerning cannabis law are the Drugs and Drug Trafficking Act 1992 and the Medicines and Related Substances Control Act 1965. Both have been officially amended to reflect the Constitutional Court judgement. Other legislation, i.e. the Children’s Act 2005, the Child Justice Act 2008 and the National Road Traffic Act 1996, has also been impacted in a lesser way. The Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act now specifically allow for the possession and cultivation of cannabis for private use. Personal consumption of dagga has been decriminalised.

Still an offence…

It is very important to note that dealing in cannabis is still a criminal offence, as is the use of cannabis by children or in the presence of children. Furthermore, driving under the influence of dagga contravenes the National Road Traffic Act, which prohibits “driving under the influence of a drug which has a narcotic effect”.

Smoking cannabis in public is not permitted – it is only the possession and not the use of the substance that is allowed in public, provided it is in a private space (pocket, bag, vehicle). So smoking in the street, in bars or at a rock concert is still an offence.

Determining private use

Because “private use” can take place outside the home, police officers must still rely on their judgement when they find someone in possession of cannabis. The legislation has not specified a quantity that defines private consumption or, conversely, one that constitutes dealing in the substance. Police officers must use discretion in deciding if the amount possessed is for personal consumption or not, and must furthermore ask a series of appropriate questions to satisfy themselves on the matter.

If the police officer is satisfied that the cannabis is for private consumption, then no arrest may be made and the substance may not be seized. If there is any doubt as to the intention to use the cannabis privately, the officer must not make an arrest but must rather open a docket and bring the individual to court by means of summons.

Cannabis law summarised

In summary, here’s what the amended legislation has decriminalised…and still prohibits:

  • Adults may use or possess cannabis in private for personal consumption
  • Adults may cultivate cannabis in a private place for personal consumption
  • Private use is not confined to a home or private dwelling
  • No quantity has been prescribed as constituting private use

  • Possession or use by a child (under age 18) is still prohibited
  • Use of cannabis around a child is prohibited
  • Dealing in cannabis is prohibited and is still a serious criminal offence
  • Cannabis use “not in private” is an offence

Police are accorded a large amount of discretion, which may lead to inconsistencies in implementation. Where there is a clear indication that the cannabis does not qualify as personal consumption (which the guidelines define as “large quantities” and/or an “unsatisfactory explanation”), then normal police procedure must be followed. This includes seizure of the cannabis and the registering of criminal charges and may or may not include arrest, depending on circumstances (e.g. if the suspect poses a flight risk). How these guidelines may be interpreted by different police stations or officers remains to be seen.

Legal advice is still a good idea

The amendments to cannabis use legislation are fresh and the police directive has only recently been issued. It is reasonable to expect police officers to require a period of adjustment. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorney. Cape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7and know that your call will be answered. Call Cape Town AttorneySimon Dippenaar on +27 (0) 86 099 5146 or +27 76 116 0623.

Source: SDLAW

Posted in Marijuana Legalisation | Tagged , , | Leave a comment

Expungement | 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 Bail attorneys Cape Town  help you

Cape Town Lawyers, SD Law & Associates Inc are criminal and bail law experts. 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 Attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

Original article published on SDLaw.co.za

Further reading:

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