In accordance with the minimum standards for services for victims of crime, victims also have the right to compensation and the right to restitution. See Chapter 3 for more information on minimum standards.
The right to compensation
- You have the right to compensation for the loss of or damage to property as a result of crime committed against you.
- You may request to be present in court on the date of sentencing and request the prosecutor to apply to the court for a compensation order, in pursuance of section 297 and 300 of the Criminal Procedure Act, 1977 (Act 51 of 1977).
- “Compensation” refers to an amount of money that a criminal court awards the victim who suffered a loss or damage to property, including money, as a result of a criminal act or omission by the accused.
- The prosecutor will inform you if a compensation order was awarded, explain the content thereof and how to enforce it. You may also institute civil action against the accused if the criminal court does not award a compensation order. This normally happens when the damage cannot be determined easily, such as psychological scars or pain and suffering.
- The clerk of the court will assist you with the enforcement of a compensation order awarded by the court
The right to restitution
- You have the right to restitution if you have been unlawfully dispossessed of your goods or property or if your goods or property have been unlawfully damaged.
- “Restitution” refers to cases where the court, after a conviction, orders the accused to return the property or goods that have been taken from you unlawfully, or repair the property or goods that have been damaged unlawfully, in order to restore the position you were in before the crime had been committed.
- The prosecutor will inform you what restitution involves and the clerk of the court will assist you in exercising this right.
The Criminal Procedure Act provides for compensation. A superior court, regional court or district court may in the case of a conviction of an offence that resulted in damage or loss of property, award a compensation order to the complainant or aggrieved party.
Under the Criminal Procedure Act there are two clear stipulations applicable in cases of compensation, namely section 297 (1)(a) (i)(aa) and section 300. Both have the same goal, namely to compensate the victim of the crime. However, the application and awarding of these two stipulations are different. In both instances it is left to the discretion of the court to decide whether they will be awarded.
Criminal Procedure Act, section 297
Section 297 deals with court sentences and provides that the court may postpone or suspend a sentence conditionally or unconditionally, and warn or reprimand someone. Where a court finds someone guilty of an offence other than an offence with respect to which a law prescribes a minimum sentence, the court may at its discretion suspend sentence for a period not exceeding five years and release the person on one or more conditions. Conditions include compensation or the provision to the aggrieved person of a particular benefit or service instead of compensation owing to damage or financial loss.
With respect to this section, the decision is solely at the discretion of the court and the stipulations of section 300 do not apply, namely that the victim has to apply for it. The amounts prescribed in the case of section 300 are also not applicable in this case.
The principles mentioned here remain applicable, namely that the person must have the necessary funds to pay the compensation. The superior courts have long since established their authority to indicate that this type of compensation should be considered where a person receives a suspended sentence and the accused is able to work and pay off the compensation.
There are many judgements with examples of section 297 and it is important to note that in most cases the compensation is paid off by the accused and that interest does not apply.
Criminal Procedure Act, section 300
An application for compensation may be brought when livestock or other movable property belonging to the complainant or aggrieved party has been stolen.
Such application may also be brought when an accused has damaged property (movable or immovable) that belongs to the complainant or aggrieved party.
The judicature of a compensation order is that the accused is ordered by the court to compensate the complainant or aggrieved party for the damage or loss of property. However, a few aspects warrant special mention:
- The complainant or aggrieved party must have concrete (preferably written) proof that confirms the damage or loss of property.
- The application must be brought after conviction, by the complainant or aggrieved party or a state prosecutor on instruction of the complainant or aggrieved party. Here it is suggested that the complainant or aggrieved party should mention it beforehand in his or her statement to the SAPS that he or she wants to apply for a compensation order.
- In practice the complainant or aggrieved party may already testify during his or her testimony in court that such an order is requested.
- It is also wise to mention in the statement made by the victim that compensation is required.
- In case it has not been done in the statement, the prosecutor must call the complainant or aggrieved party before sentence to testify to this.
- Conversely, the prosecutor may inform the court that on instruction from the complainant or aggrieved party, he wants to apply for a compensation order.
- However, when an accused pleads guilty to the charge, the complainant or aggrieved party must inform the prosecutor pertinently that he or she wants to testify about the awarding of a compensation order before sentencing.
- The regional court can award a maximum amount of R1 000 000 as compensation and the district court R300 000, as prescribed in Government Gazette no. 36111 of 30 January 2013.
- The awarding of a compensation order is at the discretion of the court and is not subject to appeal or revision. However, if the court refuses such an order, it must provide reasons. The complainant or aggrieved party must abide by the decision of the court, but still has the right to recover the damage or loss from the accused in a civil action.
- It stands to reason that the court will not issue a compensation order in the event that the accused does not have any funds to pay compensation or is not capable of generating the funds.