People will tell you that State Prosecutors (what the local DA Office is called) fear nothing in life but that is not true. There is one section in the Criminal Procedure Act they dislike, fear and absolutely hate...Section 174 Application for Dismissal.
What happens is that a crime is committed and then the police investigate it. Now many will tell you that the South African Police Services (SAPS) are useless, corrupt and unable to read and write. I want to point something out to those who hold such beliefs and tell it to everyone bored enough to listen. I said in my Mean Street Series (now more than 50 000 downloads, thank you) that the jails cannot be 400% full with a Police Service which are useless, corrupt and unable to read and write. The criminal justice system is not broken, stretched yes, very much but far from broken. They are overworked and years behind schedule...why is that? Yes, the system is such that a lot of time is wasted but it also indicates a Police Service bringing more and more criminals to trial every day. Otherwise the criminal courts would be sitting around doing nothing.
I would seriously advise you not to take the SAPS lightly and yes, many of you will have horror stories, but remember they are all you have. When you are dealing with human beings, and you have almost 200 000 of them, as small percentage will always be bad apples. Hopefully they will be sorted out as they are. Having said that, I have never served with them and would always maintain that us lads in the South African Police Force were the example to follow. Luckily my opinion counts for very little. Another point, those fancy private security companies are not policemen; they have no powers of arrest except a citizen arrest which you also have. They are not better than the SAPS despite the relentless advertising to the contrary playing on your fears. As we saw in my book, Basic Home Security, it is for them about money, not your safety.
Now back to Section 174 which is the nightmare scenario for every State Prosecutor. How the system works is that the police investigate a crime, and then arrest someone on the reasonable suspicion that he committed the crime. There are seldom "eureka" moments, it comes down to hard work and diligently following leads backed up by forensic evidence like DNA, fingerprints and ballistic tests. This docket or case file as it is called in other countries is then given to the State Prosecutors, all qualified legal men, to check. They will then decide whether to prosecute or not. There is no such thing as a "grand jury" to decide this, someone will look at it, and make that decision. It is not supposed to be politically influenced but you can bet your ass it is at times. We have seen that in recent years and will no doubt see it again. And yes, rich people are a lot more equal in law.
Unlike many other countries the South African State Prosecutors are seldom qualified lawyers by which I mean they have not done attorney articles or advocate pupil ships, they have not passed any bar exam and only have a legal degree or two. They may be entitled to the title "advocate" because they hold a LLB (JD in America) degree. It is a simple application to the High Court and you are admitted to the role of advocates and have the right to write "Advocate" in front of your name. Amongst the rest of us who did pass bar exams, did articles, they are looked down on as "plastic advocates" and with reason - a law degree alone is not nearly good enough. Such an "advocate" will always come off second best against the true professionals, it is logical. We don't rate them highly at all.
The exception is the State Prosecutor, since they are a specie on their own, they do nothing but criminal law and boring as it is, it may become complex enough at times. On this field they are excellent. They should not be underestimated and they hate, as a general rule to lose a case. Some take it as a personal affront. Us in the private sector don't care that much, we know the client almost always lies when he explains what "really" happened and that you are only as good as your witnesses. And that my friends is where your problem is, you simply don't know how a witness will perform. Being human he may have an off day, or may be angry with the taxi which cut him off or whatever. Sometimes they fold under stress and then you lose a case you should have won. So is life, you can always earn more money on the appeal. Bad luck for the accused, but so it is.
The thing is, once the accused has pleaded, that is saying he is not guilty (he can also say he is guilty and a few other pleas but let us not get technical, law is boring) he is entitled to a ruling. And if that verdict is not guilty he cannot, by law, under normal circumstances, be prosecuted again for the same crime. We call it "autrefois non convict" and the rest of the world "double jeopardy." This is very fair and to prevent State abuse. So where the accused has pleaded that he is not guilty, or the court does that on his behalf, the system is very fair, the State will then present his case via the state prosecutor. Remember there is no jury to waste time as in other countries where I am convinced they make decisions on what the accused looks like and not the evidence. Then there is the clownish behaviour of the lawyers overseas. In this place, if you were bored enough to follow the Pistorius Trial, you would have seen they are quite rigid and formal. There is no place for clownish behaviour in court; it is too serious for such nonsense.
When the State is finished he closes his case. He has called all the witnesses he wanted to call and they were examined, then cross examined by the defense and now it is the turn of the defense counsel to present his client's case. At this stage the defense may ask the court to dismiss the case against his client as per Section (not article, that is the direct Afrikaans translation to Pommy) 174. If he succeeds and the court grants it, it means the State has failed miserably and utterly to prove his case and in fact wasted everyone's time. A civil claim for legal costs and wrongful arrest etc is almost a given when this happens. It shows the case should never have gone to the court in the first place and worse, it will never go again because of autrefois non convict. It is a slap in the face of that prosecutor, 174 times.
What happens if the 174 application is dismissed? Well the defense can then close his case without calling a single witness but that would be extremely unwise, the refusal to dismiss indicates he has something to answer. Or, and this most likely, the defense simply calls his witnesses and the trial continues. That is so much better for the prosecution. And there you have it, section 174 of the Criminal Procedure Act explained. Enjoy your day further and let me reboot the Wi-Fi device again.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.