STANDING ORDER (GENERAL) 307 PROCESSES AND REGISTER [SAPS 264] 1. Background Every member is, by virtue of section 13 of the South African Police Service Act, 1995 (Act No 68 of 1995) authorised to serve or execute a summons, warrant or other process. [Also see section 15 of the Magistrates Courts Act, 1944 (Act No 32 of 1944) and sections 44, 56, 72 and 329 of the Criminal Procedure Act, 1977 (Act No 51 of 1977).] The procedures to follow in serving such summonses, warrants or other processes, as well as the keeping of a register in that regard are outlined below. 2. Definitions In this Order, unless the context otherwise indicates (a) "member" means (i) (ii) a member of the South African Police Service appointed in terms of the South African Police Service Act, 1995 (Act No 68 of 1995), and includes a member of the South African Reserve Police Service, while such member is on duty in the Service; (c) Service means the South African Police Service; Station Commander means any member appointed in command of a police station, whether permanently or temporarily; (d) "the Act means the Criminal Procedure Act, 1977 (Act No 51 of 1977); and (e) "the Magistrates Courts Act means the Magistrates Courts Act, 1944 (Act No 32 of 1944). 3. Legislation with regard to serving of processes (1) Different methods may be employed to ensure the presence of a person in a criminal court and the procedure to be followed is prescribed in the following sections of the Act and the Rules of Court [GNR.740 of 23 August 2010: Rules regulating the Conduct of the Proceedings of the Magistrates Courts Act of South Africa (Government Gazette No. 33487)] in respect of (a) an accused Division: Visible Policing V 01.00 Page 1 of 7
(i) arrest without warrant [see sections 39, 40, 41, 42 and 50 of the Act]; (ii) a warrant for arrest or detention [see sections 184, 185 and 188 of the Act]; (iii) a summons [see sections 54 and 55 of the Act]; (iv) a written notice [see section 56 of the Act]; (v) a warning [see section 72 of the Act]; a witness (i) a subpoena [see section 206(1)of the Act]; (ii) a committal warrant [see sections 36, 211 and 214 of the Act]; (c) general and supplementary provisions (i) force of legal process [see section 328 of the Act]; (ii) how documents are to be served [see sections 54, 55, 56, 72 and 180 of the Act]; (iii) mode of proving serving of process [see sections 54, 55, 56, 73 and 180 of the Act]; and (iv) the telegraphic transmission or fax transmissions of summonses, writs, etc [see sections 45 and 330 of the Act]. (2) A summons, subpoena and other process are served in accordance with the Rules of Court, but not a subpoena for the attendance of a witness for the defence. This subpoena is not served by a member of the Service unless the witness is subpoenaed in terms of section 179(3) of the Act, at State expense. 4. Keeping of Process Register (1) When processes are received, excluding warrants [see SO(G) 308], its particulars must be entered in a Process Register [SAPS 264]. (2) The entries must be numbered consecutively, commencing with a new series from midnight on the last day of the month. (3) (a) This register must also be used for all processes received for serving in terms of section 15(2) of the Magistrates Courts Act. In these cases, column 7 of the register must be completed in red ink, to facilitate the rendition of the return prescribed in paragraph 9 below. After the last entry of every month, a summary must be made of notices SAPS 497 or J 534, which were issued during the month by members in terms of section 56 of the Act, in cases where fines or part-fines are payable to public bodies. Division: Visible Policing V 01.00 Page 2 of 7
5. Responsibilities of member serving a process The member responsible for the execution of a process, must act as follows: (1) He or she must take active steps to execute the process and ensure that the return of service is duly returned to the station of origin. (2) Should he or she be unable to trace the person within his or her station area or neighbouring suburban station area, in order to serve the summons at least 14 days (Sundays and public holidays excluded) before the date of trial [see section 54(3) of the Act)], the station from which it was originally forwarded, as well as the clerk of the court, must be advised that the person cannot be traced, so that steps may be taken to fix a new date of trial [if necessary], to issue a new process or to keep the case in abeyance, pending further enquiries about the person concerned. (3) If reliable information is received that the person concerned may be found at a known address in another station area [other than a neighbouring suburban station area, since there is no objection to a member crossing such station boundaries in order to execute a process with the minimum delay], the process must be forwarded directly to that police station, provided there is sufficient time for that station to comply with subparagraph (2) above. A copy must at the same time be forwarded to the office of origin (eg a police station, provincial, municipal or other authority who is dealing with the case). In an urgent case, it is recommended to the clerk of court to dispatch a process electronically or by fax to the police station concerned in terms of section 330 of the Act. (4) If a person cannot be traced in the station area or neighbouring suburban station areas and reliable information as to the person's whereabouts is not forthcoming, the process must be returned to the station of origin. (5) The process must, as far as possible, be served on the person concerned and only in instances where the person cannot easily be found, may consideration be given to leave the process at his or her place of employment or to serve it on a resident at his or her residential address. The certificate or other endorsement on the process must be accurately completed, because it may serve as evidence in court and an improperly completed return of service will not be accepted by the court. It must be clearly stated whether or not it is a personal service. The place and date of execution must be stated. The member serving the process must sign the certificate and type or print his or her name and rank below his or her signature. If the person no longer resides at the address mentioned in the process, his or her new address must be given. The name and address of the person with whom the process was left for handing over to the person named in the process, must be stated in full. Division: Visible Policing V 01.00 Page 3 of 7
(6) When returned to the office of origin or when forwarded to another station, a process must always be accompanied by a letter, giving information regarding the mode of service [ie personal or by leaving it with some other person] or if the person cannot be traced in the station area, it must be stated where he or she may possibly be found, as well as any other relevant information. If, however, the process is not returned to the office which issued it [see paragraph (2) ], a copy of the letter must also be sent to that office. 6. Responsibilities of Station Commander (1) The court where the trial is to be held must, as far as possible, when a process is issued, forward such process together with the case docket to the Station Commander of the station where the case is registered. The Station Commander or investigator concerned must ensure that, if necessary, the process is immediately forwarded to the Station Commander in whose area the accused or witness is residing, for serving. (2) The Station Commander [or other supervising member appointed by him or her] must ensure that (a) every process is entered in the Process Register (SAPS 264) and handed over to a member for execution; (c) (d) (e) (f) the register is inspected daily to ensure that active attempts are being made to serve the process; the executed process is returned immediately, or if the person cannot be traced, the provisions of paragraph 5(2), (3) and (4) above are complied with; only in an exceptional case, may the requirement that the service of process on the person himself or herself be deviated from, and this may only take place when there are good reasons for this deviation. The certificate/endorsement must be properly completed [see paragraph 5(5) above]; every entry in the register is properly closed [the initials of the Station Commander (or authorised member) must be accepted as proof that the process was executed and disposed of in accordance with instructions]; and the register is initialled and dated as proof that it was inspected in terms of subparagraph above. (3) If an officer inspects a station, he or she must check the register to ensure that this duty is receiving proper attention. Division: Visible Policing V 01.00 Page 4 of 7
(4) At a larger station, where the volume of the work justifies it, the Station Commander may authorise the use of separate registers for different kinds of process, ie ordinary summonses, subpoena, or processes in terms of section 15(2) of the Magistrates Courts Act. 7. General principles with regard to serving of processes (1) (a) Although a period relating to the servicing of a subpoena before the date of trial is not prescribed, the serving thereof must be executed a reasonable period before the date of trial, having regard to the circumstances of each case. (c) (d) A written notice in terms of section 56 of the Act to appear in a court [J 534], must be handed personally to an accused at least 14 days (Sundays and public holidays excluded) before the date of trial specified therein. A written notice in terms of section 179(1) of the Act, to a witness to appear in a lower court [SAPS 497], must, according to circumstances, be handed to the witness personally, a reasonable time before the date of trial specified therein. If the accused is a person under the age of 18 years (child), a written notice under section 56 must be served as set out in the National Instruction on Children in Conflict with the Law in terms of section 18 of the Child Justice Act, 2008, (Act No 75 of 2008). (2) An alteration or erasure may not be made on a SAPS 496, SAPS 497 or J 534. Should an error be made in completing the form, all three copies must be cancelled and kept in the book. (3) (a) Provincial Commissioners and Station Commanders must ensure that registers [SAPS 186(a)], reflecting the distribution of notice books [SAPS 496, SAPS 497 and J 534] are maintained. (h) The provisions of SO(S) 42 must be adhered to at all times, and it must be kept in mind that forms SAPS 496, SAPS 497 and J 534 are not classified as face value forms. If a SAPS 496, SAPS 497 or J 534 book becomes lost before it has been disposed of or is filed, the circumstances must be thoroughly investigated. After having convinced himself or herself that no irregularity has taken place, the Provincial Commissioner Division: Visible Policing V 01.00 Page 5 of 7
must give written instructions for the missing book(s) to be written off. (4) (a) Although it is not required by the Act, the nature, exigency, importance and contents of a Notice to a Witness to Appear in Lower Court [SAPS 497], as well as the consequences of the failure to comply therewith, must, nevertheless, particularly in the case of an illiterate person, be explained before serving or delivery thereof. A Written Notice to Appear in Court [J 534], must, as in subparagraph (a) above be explained before handing it to the accused, and the certificate that this has been done must be entered on the J 534 and signed in terms of section 56(1)(d) of the Act. (5) Members must act discreetly and with circumspection (caution) when serving processes and, unless circumstances necessitate it, processes must not be served at unreasonable times, for example, late at night. (6) If a summons is served, or a notice [J 534] is delivered to any person by a member, or when a member has occasion to notify any person that it is intended to apply for a summons against him or her, a question as to his or her age or place of birth must not be put to him or her on such an occasion. A person may be asked to furnish his or her full name and address under the circumstances provided for in section 41(1) of the Act and a person in custody may at the community service centre be called upon to supply such information as may be required for the purpose of police records, but otherwise a member does not have a right to demand to be furnished with particulars which are of a personal nature. (7) (a) If another document is attached to the process to be served with it, the return of service must state that such annexure was also duly served. Every member who serves an indictment or summons on an accused to appear in a circuit court, must enquire from him or her whether he or she desires to call any witnesses at his or her trial in his or her defence, and thereafter record the names and addresses of such witnesses, if any, upon the original indictment or summons in order that the matter may be brought to the notice of the clerk of the magistrate's court dealing therewith. (8) If the accused has been released on bail, the notice or other document must be served on him or her in person or be left at the place mentioned Division: Visible Policing V 01.00 Page 6 of 7
in the J398 or J399 as that at which any notice of trial and the serving of an indictment or summons may be made. (9) If particulars regarding the manner in which a summons or subpoena has been served, is endorsed on the relative form, all the words not applicable, must be deleted. [See paragraph 5(5) above.] 8. State Witnesses (1) A witness for the State, in a public prosecution, is entitled to free transport to and from the seat of the court, and clerks of court are responsible for the necessary arrangements in this regard and may attach the necessary documentation to subpoenas sent out for serving. (2) Because a witness, as referred to in section 181 of the Act, sometimes does not have the means to pay for accommodation at the centre where he or she must attend court, it must be brought to his or her notice when the subpoena is served on him or her that advances on witness fees are obtainable from the Magistrate of the district in which he or she lives or is temporarily staying in. (3) Whenever a summons containing an endorsement, making it a condition that the accused need not appear in answer to it, if he or she, before a certain date or the date fixed for appearance, pays any money [eg taxes or fees] alleged to be due, is referred to the Service to be served, it is served in the manner prescribed, but any money tendered is not accepted by the Service. The person tendering the money must be referred to the clerk of court. 9. Public Bodies Instructions for the serving of process in criminal cases on behalf of public bodies, is, from time to time, provided by the National Commissioner by circular. Division: Visible Policing V 01.00 Page 7 of 7