MISCELLANEOUS MATTERS

RELATING TO THE TRIAL

Chapter 15
 Introduction
• Section 35 of the Constitution – Arrested, detained and accused
persons
(3) Every accused person has a right to a fair trial, which includes the
right -
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable
delay;
 Who may attend the trial?
• “ordinary court”
 court must be independent and impartial and must be served by a presiding judicial officer within the
legal structures of the judicial authority as provided for by the Constitution
• “public trial”
 general rule - the public has access to and may attend it.
S153 - circumstances in which criminal proceedings shall not take place in open court
 All courts have the power to exclude the public whenever it appears to be in the interests of the security of
the State, good order, public morals or the administration of justice – S153(1).
 A court can order a witness to testify behind closed doors - harm as a result of his testifying. The public may
be excluded to protect his identity- the court cannot withhold the identity of the witness from the defence –
S153(2).
 The public may be excluded, at the request of an accused, where he is charged with committing or attempting
to commit an indecent act or extortion. Judgment and sentence must, however, be given in open court –
S153(3).
 Sections 153(4), (5) and (6) - safeguards against young people being adversely affected by criminal trials. No
person other than the accused, his parent / guardian / legal representative or person whose presence is
necessary for the conduct of the trial may be present at the trial of the person under 18 without special
authority from the presiding officer. Persons under 18 can’t attend any criminal trial unless they are actually
giving evidence (in which case the court will be cleared of all members of the public) or unless they are
specially authorised to be present.
 S 158(2) and (3), a court may order that a witness or accused give evidence by means of closed circuit
television or similar electronic media, but only if these facilities are readily available or obtainable
 Witnesses
• Securing attendance of witnesses
 summoned by subpoena to appear in court by the prosecutor or accused. Sometimes
the court may also cause witnesses to be subpoenaed – failure to obey a subpoena, -
will result in arrest and brought before court.
 is warned by the police to come to court - no legal consequences unlike a subpoena
 summoned under the provisions of s205 to appear before a judge or magistrate to
testify before the judicial officer
 procedure at disposal of DPP or PP to compel a witness who does not want to statement
 refuses to testify or be sworn in, he can be treated as a recalcitrant witness in terms of S189
 Witnesses in court are often warned in court by the presiding officer to appear in
court on a particular day –if witness ignores the warning = he is in contempt of court.
 person is to give material evidence and there is reason to believe they will abscond-
he can be arrested and committed to prison
S185 - whenever the DPP thinks there is danger that a potential witness will be
tampered with/ abscond/ will be intimidated – may apply to a judge in chambers for
witness to be detained until finalisation of the case
 Recalcitrant witness
• is someone who refuses to take the oath or answer questions.
• S189 empowers the court to institute a summary enquiry - if such a person does not have
a “just excuse” for his refusal,- may be sentenced to imprisonment of 2 years or if the
proceedings relate to an offence referred to in Part III of Schedule 2, to a maximum of 5
years.
• a witness will not be sentenced unless the judicial officer is convinced that the furnishing
of such evidence is material and necessary for the administration of justice.
• Appeal is possible.
• following requirements have to be met before a witness may be sentenced to
imprisonment:
 the witness must have refused to take the oath or testify;
a proper enquiry must have been held into the refusal;
 there must have been no “just excuse” for his failure or refusal.
• witness’ sympathy with an accused’s political ideals or fear for his safety and that of his
family is not just excuses
• S189 proceedings – not trial but a judicial proceeding ( rules of justice have to be
complied with)
 Adjournment (postponement)
• a court may adjourn or postpone a case till a later date (s168 & 169)
• When the court considers any application for postponement – either State or the
defence- the following basic principles have to be considered:
It is in the interests of society that guilty men should be convicted and not discharged due to error
which could have been avoided had the case been adjourned; and
That an accused is deemed to be innocent and therefore has the right, once charged, to a speedy
hearing.
• court of appeal will not interfere with a lower court’s decision to adjourn a case,
provided the discretion to do so was judicially exercised.
• a refusal to adjourn amounts to the exclusion of relevant evidence - conviction will
be set aside.
• an accused’s legal representative is absent and it isn’t due to the fault of the
accused, the case must be adjourned or a subsequent conviction will be set aside.
• an accused fails to attend court on the date to which the case had been
adjourned, he will be guilty of an offence, unless he satisfies the court that his
failure to attend was
 Speedy trial
• Constitution stipulates that it is the right of every accused to have his trial
commence and conclude without unreasonable delay.
• Unreasonable delay is determined by various factors:
 the nature of the prejudice suffered by the accused;
 the nature of the case;
 the length of the delay;
the reasons assigned to justify the delay and systematic delay.
• S 342A - regulates the issue of unreasonable delays in criminal proceedings. Court
is entitled to take a number of factors into consideration in establishing what is
unreasonable:
 duration and reason for the delay;
whether any person can be blamed for the delay;
effect of the delay on the accused, witnesses, the administration of justice and the victim;
seriousness of the charge;
actual or potential prejudice caused to the State.