Criminal Injury

Criminal injury comes about as the result of assault

Despite your best efforts, a confrontation has occurred and you are physically assaulted. Imagine a scenario where you are driving cautiously on a busy four-lane stretch of road. The driver in the lane next to you is driving far too fast for the road, changing lanes without indicating and using his cell phone at the same time.

Criminal injury can happen to anyone

You take every precaution to avoid a collision but the inevitable happens and the driver side-swipes the front of your car in his impatient overtake. As you get out your damaged car, as calmly as you can in the circumstances, the other driver bursts out of his vehicle, ranting and raving, swearing at you for your careless driving.

The next thing you know, you are stumbling, trying to keep your balance. You have just been punched in the mouth by the driver you have been trying to avoid for the last 10 minutes.

Physical assault is a criminal offence and you should report the crime to the nearest police station.

Further, in the event you have suffered the loss of income or extensive medical treatment, as a result of the assault, you can lay a compensatory criminal injury or assault claim against the assailant.

First things first

As difficult as it may be in such situations, some key points to help you in this emergency situation could include the following:

• Try to remain calm
• Do not retaliate
• Take deep breaths
• Try to assess the situation quickly but without rushing into unwise decisions or course of action
• If you have a passenger in your vehicle, be conscious and aware that they may need to be protected from a similar assault
• Be assertive towards the other driver but remain polite
• Attempt to deflate the situation
• Try to collect your thoughts and divert your attention to practical matters rather than responding in an emotional way
• Try to observe what is taking place and make a conscious effort to remember key elements, both physically and in terms of what is happening
• Try to enlist the help of a bystander or witness. It is likely that an observer of the incident will approach you saying that they saw what took place and might be willing to be a witness
• If the driver remains belligerent and is not constrained by someone else, try to get back in your car and then ensure that the vehicle is locked. This may provide the safety and time needed to call the police and, if necessary, the emergency services.
• When you call the police, be accurate and factual. Be certain in your own mind that the police and emergency services understand where the incident is taking place, that the emergency situation also involves what you believe to be criminal injury (and not only a traffic collision) and that you wish to co-operate fully. You may need to add that you have locked yourself in your vehicle to avoid further assault or injury.
• If you can, take photographs of the scene and in particular, the registration plate of the assailant
• If you have a passenger in the vehicle, consider asking them to voice record or video what is taking place, including your phone call to the authorities
• As soon as you have escaped the situation, visit your nearest medical practitioner and have your injuries examined and recorded, these records will serve as evidence in your claimant

The claiming process

While claiming for compensation is possible under South African law, there is no statutory system by which the victim of a criminal injury is compensated by the State.

This means that to receive compensation from the perpetrator you will need to contact a lawyer if you wish to initiate a claim against the assailant.

When laying a claim against the assailant, your case will be directed to the appropriate court. If the amounts demanded are deemed low enough, the case will be heard in the small claims court. The case will require legal experts as the evidence needs to be gathered and presented in a formal and lawful manner.

The assailant may choose to formally defend her innocence, or seek to settle the matter out of court. If the police investigation yielded an arrest and prosecution of the assailant, your case will prove stronger. If the case goes to trial, each party will present their case before the Judge. Upon conclusion of the trial, the Judge will rule in favour of the defendant or plaintiff.

In some cases the Judge may find that the plaintiff should be compensated, but not in the amounts sought.

Most of us do not have a lawyer that we can immediately contact, unless, for example, we have experienced a divorce, drafted a will or previously needed to resolve an issue which involved a solicitor.

• It is very likely that the company you work for has retained a firm of lawyers, and while it may be inappropriate for them to handle your case (if, indeed, compensation is one of the fields of law in which they practice) the company lawyers may also be able to ‘point you in the right direction’.
• You may also wish to consider contacting one or more governing bodies which oversee legal practice in South Africa. These bodies include The General Council of the Bar of South Africa, The Law Society of South Africa or your provincial bar association.

In the end

Most lawyers, like any other business, are motivated by profit, and perhaps a court case or compensation claim is similar to pitching a business idea to a potential investor: the involvement of a lawyer, like that of an investor, will depend on the merits of your case – the strength of your argument in court – compared to a counter-argument (that of the assailant) and the likelihood (in the event of the victim winning the case) of the assailant being in a position to make restitution.

When the Judge considers the evidence before her, she will rule compensation in amounts equal to what is deemed reasonable.

For instance, if your nose is broken in the confrontation and when you go to the hospital you decide to opt for the most expensive cosmetic treatment, knowing that it is unnecessary and you cannot afford it, the Judge may rule that the defendant need only pay an amount equal to standard medical care.

The Judge will also consider what the defendant is capable of paying, unfortunately, if the assailant is unemployed, has no assets and bankrupt, the Judge may dismiss the claim on account of its' futility.

Ultimately your compensation is unlikely to meet the costs involved in pursuing minor claims, but in cases of severe damages, it is vital to seek restitution.