Appearing in court
To be a witness requires courage. It will help the police and the prosecution to ensure that justice is done. The police will inform you in writing to appear in court. Most cases are dealt with in the magistrate’s courts, but more serious offences are referred to the regional court or high court.
If you do not know where the trial will take place, enquire at the help desk, or information or advice counter to find out in which courtroom the proceedings will take place. It is an offence not to respond to the witness summons and may lead to arrest.
If you have questions or information, pass them on to the prosecutor before you have to testify in court. On the day of the trial there may not be time to do so.
Let the prosecutor know when you arrive at the court. You may at any time request to reread your statement before you have to give testimony. Stay in court until you have testified or are excused. Do not leave the courtroom without permission from the presiding officer. The prosecutor will assist you to get permission.
A witness is not allowed in the courtroom until called to testify. If someone attempts to discuss the case with you, convey that to the investigating officer. Do not discuss the case with anybody, except the prosecutor or medical doctor or psychologist assisting with the case. After you have testified, you are free to attend the remainder of the proceedings.
The Act provides for the following when you are giving testimony:
- In certain circumstances you may testify by means of closed-circuit television (this means the witness is not in the courtroom in the presence of the accused, but in another room).
- If the witness is under the age of 18 years and if the presiding officer (the magistrate or judge) is of the opinion that the witness will experience unreasonable emotional stress or suffering by testifying during the trial, the witness may be assisted by a mediator and testify by means of closed circuit television.
- Under certain circumstances proceedings may take place in camera (behind closed doors).
Threats and intimidation
It is illegal to threaten or scare anybody. If this happens to you, tell the investigating officer or prosecutor. It is also illegal for someone, including family members, to force or persuade you not to testify.
Certain expenses may be claimed back, for example travelling expenses. Ask the prosecutor to complete a form after you have testified.
In the witness box
To testify in court for the first time may be an unpleasant experience and preparation is essential. There are a few basic tips that you could apply to be better prepared when standing in the witness box:
- When you take the oath, look at the presiding officer and say in a clear voice, “So help me God.” Instead of saying this, you could also say “I will tell the truth, the whole truth and nothing but the truth.” This is called an affirmation.
- You are expected to stand up while testifying, but you can ask to sit down. Speak clearly and loudly. • Listen carefully to the question. Make sure you understand it or ask for it to be explained. Look at the person when you answer, and only answer the question that you are asked.
- Do not shake your head to indicate a “yes” or “no” answer. Use words to answer every question.
- If the prosecutor or lawyer objects, stop talking. Wait for the presiding officer to decide on the objection, and continue when told to do so.
- If you do not want to answer a question, do not ask the presiding officer whether you must answer it. If it is an improper question, the prosecutor will object. If he or she does not object, you must answer the question or the court will stop the lawyer.
- Do not get involved in an argument or allow yourself to become angry. This will not help you.
- If you make a mistake, admit it. Nobody is going to hold it against you, but they will if they think you are lying.
- Know your facts, but do not recite your testimony as if you memorised it, because you may get confused when questions are asked in a different order.
- You are allowed to say “I do not remember” if you have forgotten some details.
- If a question is repeated, give the same answer as before.
- Most important of all, you have taken an oath or made an affirmation to tell the truth. If you are caught lying, you may be prosecuted. It also makes your whole testimony suspect and could allow a criminal to be acquitted.
What happens in court?
The following people will be in court: presiding officer, assessor, witness, clerk of the court, court orderly, prosecutor, lawyer, interpreter, accused, members of the public.
When an arrested person is brought to court for the first time, the presiding officer has to decide whether to release him or her on bail. If the victim of the crime is afraid of the accused being released on bail, he or she must give reasons to the prosecutor or investigating officer.
In a stock theft case the victim may be assisted by persons from organised agriculture.
If the accused has been released on bail and contacts the victim in any way, the victim must inform the prosecutor or investigating officer.
During the bail hearing the magistrate may want to hear more evidence. The court must decide whether bail will be granted.
At the beginning of a trial the prosecutor informs the accused of the details of the charge. The accused responds by pleading guilty or not guilty to the charge. If the accused pleads not guilty, the case goes to trial.
The State’s case
During the trial, the prosecutor calls the witness to give evidence. The prosecutor leads the witness so that he or she does not leave out anything important. A witness can be one of the following:
- the victim
- anyone else who knows what happened or who knows something about the crime
- the police officer, forensic expert or other experts
After each witness has testified, the accused or his lawyer may question the witness. This is to test whether the witness’s evidence is correct. It also gives the accused or his or her lawyer the opportunity of giving his or her version of the events to the witness.
The lawyer of the accused may also question you. He or she protects the rights of the accused.
The lawyer may seem unfriendly towards you and ask difficult questions. Try to stay calm and tell the truth, even if this means repeating yourself (see p. 47 for tips on how to behave as a witness).
The accused’s case
After the State’s case, the accused or his or her lawyer may request the court to discharge the accused. This happens if they feel that the prosecutor did not prove the case against the accused.
The presiding officer decides whether to discharge the accused or proceed with the case. If the accused is not discharged, the trial continues.
The lawyer presents evidence and calls witnesses, which may include the accused. The defense counsel will try to prove his client’s innocence by creating flaws in the State’s (prosecutor’s) case. They are trying to prove that the State’s allegations are not true or are insufficient for the court to find the accused guilty.
The prosecutor may now question any of the defense witnesses. This includes the accused.
In the closing argument, the prosecutor will summarise and argue the case. He or she gives reasons why the accused should be found guilty. The accused or his lawyer is also given an opportunity to persuade the court to find the accused not guilty.
The court decides whether the accused is guilty. If the accused is found guilty, the prosecutor has proved his guilt “beyond reasonable doubt”.
If the accused is found not guilty, it is because the presiding officer found insufficient evidence to find the accused guilty. If there is doubt, the court has to acquit the accused, which means he or she goes free.
When the accused has been found guilty, the presiding officer must decide on an appropriate punishment. Both the prosecutor and the defense may call witnesses at this stage.
The prosecutor may talk about how bad the crime was, how it affected the community and the victim, and may even call witnesses.
The prosecutor may also request that the complainant be compensated if he or she suffered any loss as a result of the crime. The complainant must request the prosecutor to apply for a compensation order before the accused is sentenced (see 4.5 for more information on compensation orders)
is too lenient, you may discuss it with the senior or chief prosecutor, who can decide to bring it to the attention of the relevant director of Public Prosecution. The director of Public Prosecution may appeal against the sentence. The appeal must be lodged within a fixed period of time.
An accused may appeal against a conviction or a sentence imposed by the court. If an appeal is lodged, the prosecutor in the original case or the state advocate who handles the appeal may request to be informed of further developments in the case, for instance the date set for the appeal trial, whether the accused has been granted bail and the outcome of the appeal.
If there is concern about the safety of the victim or a state witness, the police, prosecutor or a representative of the witness protection unit will be able to advise the victim on possible options for protection.