The Pistorius case and SA's legal system
20 February 2013
South Africa woke up on Valentine's Day, 14 February, to the news that champion paraplegic athlete Oscar Pistorius had shot his girlfriend of four months, Reeva Steenkamp, in his R4-million home in Pretoria.
The state has brought a schedule 6 case of premeditated murder against the para-olympian. If he is found guilty, Pistorius will get a life sentence, which is 25 years. He will only be eligible to apply for parole after serving that term, under a schedule 6 conviction.
Pistorius began applying for bail in the Pretoria Magistrate's Court on Tuesday, with magistrate Desmond Nair saying that he would, "for the purpose of this application, at this point in time, ... consider this an offence listed under schedule 6".
Given this, and the seriousness of the charge, Pistorius's lawyers will have to prove exceptional circumstances if he is to be granted bail.
The hearing continued on Wednesday, with his defence team, led by advocate Barry Roux SC, having indicated that they would bring evidence to support their argument that the shooting constituted a schedule 5, not a schedule 6, offence.
Schedule 5 versus schedule 6 offences
In South African, schedule 5 offences include murder, attempted murder, rape, drug-related crimes, especially where the drugs are found to be worth R50 000 or more, corruption, extortion, fraud, forgery or theft to the value of R500 000, the illegal dealing or smuggling of firearms, and assault on a child under the age of 16.
If convicted of a schedule 5 offence, the minimum sentence is 15 years for a first offender.
Schedule 6 offences include murder, including premeditated murder, the killing of a law enforcement officer, or killing as a result of rape or robbery with aggravating circumstances. Also falling in this category is rape, which includes gang rape or rape by a suspect who knows he is HIV-positive. Rape of a person under 16 years, or a mentally or physically disabled person, is also a schedule 6 offence.
Robbery with the use of a firearm, where grievous bodily harm results, or a car is stolen, is also a schedule 6 offence.
South Africa's legal system: no jury
Pistorius's case is being handled by the National Prosecuting Authority, the government agency that handles criminal cases in the country, with a team of prosecutors.
The police work with this agency, presenting evidence to the authority, which then decides whether there is sufficient evidence to go ahead with a prosecution.
It is more than likely, given the seriousness of Pistorius's case, that it will be heard in the country's High Court.
South Africa's legal system is based on Roman-Dutch law, and hence is not a jury system.
The highest court in the country is the Constitutional Court, based in Johannesburg and presided over by 11 judges, and created after the country's first democratic elections in 1994. The judges make decisions and judgements about issues that have to do with the Constitution. Being the highest court in the country, no other court can overturn these decisions. Judgements relating to the Constitution from the High Court can be taken to the Constitutional Court.
The next highest court in the country is the Supreme Court of Appeal, based in Bloemfontein in the Free State, which only deals with cases that come from the High Court. Only the Constitutional Court can change decisions from the Supreme Court of Appeal. Three to five judges sit in this court, and final judgements are made by a majority decision.
In South Africa, the High Court hears cases which are too serious for the lower-level Magistrate's Court, or when a Magistrate's Court's decision is challenged. These cases are usually presided over by one judge, but if a case on appeal is heard, then two judges will hear the case.
Or, if the case is about a very serious crime, then a judge and two experienced and often retired advocates or magistrates will assist in the case. They are referred to as assessors. The judge can override their opinions, but they are usually used to help the judge make a decision.
The High Court divisions have jurisdiction or the right to hear a case over provincial areas in which they are situated. The decisions of the High Courts are binding on Magistrates' Courts within their areas of jurisdiction. Usually only advocates appear for their clients in the High Court.
They usually only hear civil matters involving more than R100 000, and serious criminal cases. They also hear any appeals or reviews from Magistrates' Courts.
There are 14 high courts in South Africa. Circuit Courts are also part of the High Court system. They sit at least twice a year, moving around to serve far-flung rural areas.
Other courts that fall under the country's High Court system are Special Income Tax Courts, Labour Courts and Labour Appeal Courts, Divorce Courts, and the Land Claims Court.
The Master of the High Court administers cases of deceased estates, liquidations, registration of trusts, among other areas.
The Sheriff of the High Court is an impartial and independent official of the Court, appointed by the Minister of Justice and Constitutional Development, who must execute all documents issued by the court, including summonses, notices, warrants and court orders.
South Africa's Magistrates' Courts are lower courts which deal with the less serious criminal and civil cases. They are divided into regional courts and district courts.
Regional Magistrates' Courts only deal with criminal cases like murder, rape, armed robbery and serious assault, whereas district Magistrates' Courts deal with criminal and civil cases. The magistrate makes decisions in a Magistrate's Court sometimes with the support of lay assessors.
A regional Magistrate's Court can sentence a guilty person for a period up to 20 years, or can impose a maximum fine of R300 000.
District Magistrates' Courts try less serious cases, which exclude cases of murder, treason, rape, terrorism, or sabotage. They can sentence a person to a maximum of 3 years in prison or a maximum fine of R100 000.
Ordinary Magistrates' Courts can hear civil cases when the claims are for less than R100 000. They will not deal with cases involving divorce, arguments about a person's will, or matters where a person's sanity is in question.
There are a number of Magistrates' Courts that are specialised to be better able to deal with certain types of case, such as children's courts, sexual offences courts, small claims courts, equality courts, community courts, maintenance courts, and courts for chiefs and headmen.