The Accused's Presence as a Party in South African Law 2024 PDF

The presence of the accused as a 1 party 2024 2 General Rule  The trial of an accused must take place in his/her presence.  Principle is well established in most jurisdictions  Some states accept the notion of in absentia trials, this however is not a gene...

The presence of the accused as a 1 party 2024 2 General Rule  The trial of an accused must take place in his/her presence.  Principle is well established in most jurisdictions  Some states accept the notion of in absentia trials, this however is not a general rule.  In SA the general rule against trials in absentia written into ss34 and 35(3)(c) and (e)  This is to safeguard the access to courts and includes the right to a fair trial and the right to a public trial before an ordinary court of law.  Principle is also contained in in s158(1) of the CPA  Principle means more than the accused just knowing what state witnesses have said  It requires that there should be a confrontation with witnesses  The accused must see the witnesses as they testify against him/her so that he/she can observe the demeanour of the witness  Witnesses must give evidence in the presence of the accused  NB!! Denial of this right amounts to a failure of justice which may result in the setting aside of a conviction on Appeal or Review. 3 General Rule  The verdict must be announced in his/her presence.  Verdict? Outcome of the trial  S158(1) of the CPA: Except as otherwise expressly provided by this Act or any law, criminal proceedings in any court shall take place in the presence of the accused 4 General Rule  S34 of the Con: Anyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before court or, where appropriate, another independent and impartial tribunal or forum.  S35(3) Every accused has a right to a fair trial, which includes the right – to a public trial before an ordinary court; o to be present when being tried; to adduce and challenge evidence.  Expert evidence relating to the accused’s trial and sentence should be adduced in the presence of the accused and his leg rep.  Application to cancel the accused’s bail should be considered in his presence. 5 Exceptions to the general rule 1. Trial in the absence of the accused on account of misbehaviour. 2. Absence of the accused when there is more than one accused 3. Evidence by means of close circuit television or similar electronic media. 4. Postponement of certain criminal proceedings through audiovisual link 5. Payment of fine without appearance in court 6. Compounding of minor offences 6 Trial in the absence of the accused on account of misbehaviour  S159(1) of the CPA: If an accused at criminal proceedings conducts himself in a manner that makes the continuance of the proceeding in his presence impracticable, the court may direct that he be removed and that the proceedings continue in his presence.  The court will make use of this powers, only as a matter of last resort  Courts would prefer to postpone the matter or adjourn the proceedings and continue later in the presence of the accused  If the court uses this discretion, the accused must first be warned  Even if the accused is removed, it is advisable to give him/her another opportunity to be brought before he court after evidence was lead and ask him/her if he/she wishes to give any evidence  In S v Mokoa 1985 (1) SA 350 (O) the court’s power ito s159(1) must be exercised with circumspection.  Held: A warning must be given if possible. If X continues to disrupt proceedings the trial may be completed in his absence. This warning might influence an accused to change his attitude. 7 Absence of the accused where there is more than one accused: S159 of the CPA  Two or more accused appear jointly, the court may at any time, after the commencement of the trial and upon application of the accused or his/her lawyer authorise the absence of the accused  Court may authorise absence of the accused from proceedings for a period and impose conditions determined by the court. Proceedings will continue in the accused’s absence.  Court will only make the above order if it is satisfied that: 1. The physical condition of the accused is such that he is unable to attend the trial or his attendance is undesirable. 2. Circumstances of the illness or death of a family member of the accused make his absence necessary. 3. An accused is absent with or without leave under s159 and the court is of the opinion that the proceedings cannot be postponed without undue prejudice, embarrassment or inconvenience to the prosecution, a co- accused or any witness 8 Absence of the accused where there is more than one accused  S v Khumalo 1991 (1) SACR 666 (NMS) – 3 grounds which would entitle the court to order that a proceedings may continue in the absence of an accused. 1. Misbehaviour of the accused –s 159(1) 2. X makes application to be excused and such application is granted – s159(2) (a) 3. X is absent from the proceedings without leave of the court. The Prosecution  The court may in lieu of directing that the proceedings continue in the absence if the accused, upon application by the prosecution, direct that the proceedings iro the absent accused be separated from the proceedings of the accused who are present.  When the absent accused is in attendance again, the proceedings shall continue from the stage at which he/she became absent.  If proceedings continue in the absence of the accused and he/she is not legally represented during the proceedings, he/she may examine a witness who testified during his/her absence and also inspect the record.  Proceedings may only be concluded only after the reappearance of the absent accused and after he/she has been given an opportunity of leading evidence and closing his/her case. 9 Evidence by means of closed circuit television or similar electronic media  S158(2) of the CPA:  Court may on its own initiative or on application of the prosecutor order that the witness or accused (if the person consents) give evidence by closed circuit television or similar electronic media.  A court may make a similar order if the accused or witness makes an application  When can such an order be made?  Such order may only be made if the necessary facilities are readily available and obtainable and it appears to the court that to do so would :  Prevent unreasonable delays  Save costs  Be convenient  Be in the interest of the security of the state or public safety or in the interest of justice/public  Prevent the likelihood that prejudice or harm might result to any person if he/she testifies or is present at such proceedings 10 Evidence by means of closed circuit television or similar electronic media  To ensure a fair trial the court may impose conditions as necessary when evidence is given  The prosecutor and the accused should retain the right to question witnesses and to observe the reaction of witnesses  S 170A Testimony through an intermediary allows the prosecutor and accused to ask questions and observe the reaction of that witness  If the court refuses to allow evidence by means of closed circuit television where a child complainant below the age of 14 must give evidence, the court must give reasons immediately upon refusal and such reasons shall be entered into the record of the proceedings. s 158(5) 11 Evidence by means of closed circuit television or similar electronic media  In S v Manzi 2004 (2) SA 133 (N)  X was unable to see the complainant on the television monitor  The High Court held that this amounted to an irregularity. 12 Postponement of certain criminal proceedings through audiovisual link  Possibility of a postponement of certain criminal proceedings is provided for in ss159A and 159D of the CPA  Currently limited to certain magisterial districts and correctional facilities  Purpose is to prevent unnecessary delays, expense and inconvenience caused by the daily rituals of transporting awaiting trial prisoners from the correctional faculty to the court only for a postponement  Important requirement- there must be no prejudice caused by using the method of postponement  Only applicable to persons over 18, who have already appeared and whose matter has already been postponed, who is in custody pending a trial and who is required to appear before a court for a further postponement.  Method also applies to the consideration of release on certain forms of bail  Individual is not required to physically appear before the court, but may appear by audiovisual link. (appearance will be deemed to be physical, unless the court directs otherwise and in the interest of justice)  Audiovisual link proceedings is regarded as been held in the presence of the accused if the person is in custody during the proceedings and is able to follow the proceedings and the court can see and hear the accused by means of the audiovisual link  The room or place at the correctional facility where the accused appears through the audiovisual link is deemed to part of the court. 13 Payment of a fine without appearing court  S54 of the CPA- Summons issued against the accused  (a) Prosecutor or clerk of the court believes on reasonable grounds that upon conviction a fine not exceeding R10 000 will be imposed o Prosecutor or clerk may endorse the summons to the effect that the accused may admit guilt and he may pay a fine without appearing in court.S57(1)  A written notice is handed to the accused and the endorsement is made by a peace officer, the accused may without appearing court pay the fine (admission of guilt) to the clerk of the court or any police station in the jurisdiction of the magistrates court  If the summons or written notice is endorsed to the effect that it may be paid at a specified local authority, payment may be made at such authority. 14 Payment of a fine without appearing court  S57A(1) of the CPA: If X appeared in court and the public prosecutor, before X enters a plea, believes on reasonable grounds that on convicting X a fine not exceeding R10 000 will be imposed, the prosecutor may hand a written notice to the accused.  Such notice must contain an endorsement ito s57 that the accused may admit his guilt and may pay a stipulated fine without appearing in court.  S57(4) the prosecutor may reduce an admission of guilt fine on good cause shown.  Where a prosecutor withdrew a charge after the accused paid an admission of guilt fine is confirmed by the magistrate, the conviction is set aside on the basis of justice and equality. 15 Payment of a fine without appearing court  S57(7) of the CPA empowers a judicial officer, after examining the documents on which the admission of guilt was based, to set aside the conviction and sentence if he believes that it is not in accordance with justice or the sentence is inadequate  The judicial officer may then direct that accused be prosecuted in the ordinary cause. The accused may then be summoned to answer such charge as the prosecutor sees fit.  S57 is limited to statutory offences  Procedure is often used for traffic offences 16 Compounding  S341 of the CPA: A person receives written notice from a peace officer that he has committed a minor offence.  S341 read with Administrative Adjudication of Road Traffic Offences Act 46/1998. (PS commencement date of the whole Act is not yet proclaimed)  Basic procedure currently:  Infringer will be served by the issuing authority (local municipality)  Infringer will have the following options;  Pay the penalty within 32 days  Make arrangements to pay the penalty  Make written representations  Elect to be tried in court  System is operational in Tshwane and Johannesburg Metro Municipalities 17 Compounding  Different from admission of guilt fine.  Difference?  Admission of guilt –prosecution initiated and by signing it the accused is deemed convicted and sentenced  Compounding of an offence means the offender pays a certain amount to some or other body in order not to be prosecuted for some minor offence. Procedure is generally used with traffic fines. 18 Compounding  Applies to:  Contravention of a by-law or regulation made by or for any council, board or committee  Any offence committed by driving a vehicle at a speed exceeding a prescribed limit  Driving a vehicle which does not bear prescribed lights or any prescribed means of identification  Driving a defective motor vehicle or causing undue noise by means of a motor vehicle