Right to Fair Trial Procedures in South Africa
By Dr. Ziyad Matala*
I. Introduction
South Africa held its first non-racial democratic elections under an interim constitution(1) in April 1994 culminating in the inauguration of Nelson Mandela as President of South Africa. The 1994 elections closed the chapter on one of the most tyrannical systems of racial and political domination since the Nazi era; a system of rule which has been labeled as a crime against humanity.(2) Prior to the new order, the fundamental constitutional grundnorm under which the South African constitution operated upon was the principle of parliamentary supremacy. Previously, no court of law could pronounce on the validity of an act of the legislature. Now for the first time in South Africa's history, South Africa has a bill of rights subject to judicial review.(3) The Interim Constitution in Chapter 3, seeks to protect certain very important fundamental rights such as the right to fair trial procedures, right to life, protection against torture, free speech, assembly and conscience. The state no longer can transgress fundamental individual rights. Significantly, even though South Africa operates under an Interim Constitution until 1999, the fundamental rights (protected in Chapter 3 of the Interim Constitution) has to also be protected in the final constitution. The Constitutional Court created in terms of the Interim Constitution is made the custodian of the Constitution(4) which is also a first in South Africa's constitutional history. South Africa is well on the path to a new order. It is less then two years since the new Constitutional Court has commenced its task of interpreting the Constitution, and it has already made some seminal pronouncements on various questions pertaining to the rights of the accused. The process of developing a fundamental rights culture including the question of what are appropriate standards for a fair trial under the Interim Constitution (and after 1999 under the final constitution), is likely to undergo considerable change providing even greater protections to the accused in the months and years to come. Given the reality that the Constitutional Court still has to interpret many of the provisions of the Interim Constitution against questionable trial practices which originate from laws under the apartheid order, this paper will attempt to highlight the right to a fair trial in South Africa both in terms of current practice under the South African Criminal Procedure Act of 1977 (CPA),(5) as well as what is now likely to occur in light of the Interim Constitution.
II. The Right to a Fair Trial in South Africa and Arbitrary Practices Under the Apartheid Order
The South African constitutional order historically (before 1994) was based on the British Westminster system. At the level of practice, the South African order displayed fundamental differences from the British system with respect to fair trial procedures. In the British tradition the judiciary has used the common law as a background, to give normative content to fair trial procedures without significant legislative encroachment. In the South African tradition the rule of law historically lacked normative content, and the legislature and executive consistently adopted measures to override fundamental fair trial procedures. In terms of the principle of parliamentary supremacy, no court of law could pass judgment on the validity of an act of the legislature regardless of how serious an encroachment the law may be on fundamental fair trial procedures. For example, a court could not invalidate the power of the executive to detain persons indefinitely, or to banish individuals to certain areas, or to treat citizens differently, if the action was taken in terms of an act of parliament. Similarly, freedom of movement of individuals deemed to be a danger to the State could be restricted by virtue of the power given to the executive to ban certain individuals and or restrict their movement. For example, the Minister of Law and Order could restrict the movement of persons whom he had reason to suspect were a danger to the security of the state.(6) The Minister could confine the said person to a particular area or house for a specified period of time and further prevent him/her from meeting certain persons. A further encroachment on individual freedom and freedom of movement was the power conferred on the minister as well as on a police officer (under the Internal Security Act), to detain a person whom they considered a danger to the security of the State, for prolonged periods, and without furnishing any details for the person's detention.(7)
Government action under the apartheid order was often arbitrary and outside the framework of clear legal standards. This can be seen from the wide array of discretionary powers which were available to the executive under the former Internal Security Act. In exercising the discretionary powers, the agents responsible were not subject to the control of any body and in many instances did not need to provide details for their actions. Moreover, many of the sections of the Internal Security Act were so ambiguously phrased that it was impossible to know whether a person had fallen foul to its provisions. For example, in terms of the detention provisions of the Internal Security Act it was not clear when an individual's activities were considered to endanger the interests of the State. In terms of accepted criteria of the rule of law, there were no fixed rules known beforehand on which an individual could structure his or her behavior.
Most countries allow for the exercise of emergency powers in situations of war. However, the statutory state of emergency in South Africa conferred on the executive widespread discretionary powers in non-war situations. In terms of the Public Safety Act, the State President could proclaim a state of emergency if he believed that events in the country were such as to pose a threat to the public safety. It was a completely discretionary measure which the State President could exercise in terms of his discretion. The proclamation also conferred widespread powers on the security forces. The police had the power to search and seize materials from any place or premises without warrant. They could impose curfews in any area as well as remove a person from a particular place. The freedom of press was severely restricted in terms of what they could report. The press was limited in reporting the activities of the security forces and matters relating to the unrest to only what the government had approved for reporting. Any person who contravened the state of emergency faced a prison sentence of up to 10 years and or a fine of up to R20,000 (equivalent to approximately 6,000 United States dollars).
In terms of the state of emergency, thousands of people including many children were detained. There were widespread complaints of police brutality and torture of detainees. No civil or criminal proceedings could be brought against the State President, police or other government official acting in terms of the state of emergency even if it led to injury or death. Today, there are widespread calls for prosecutions of individuals engaged in egregious conduct under the apartheid order.
III. The Right To A Fair Trial in Light of The Interim Constitution
A. Treatment During Detention Prior to and During Trial
1. Protection from torture
The Interim Constitution in Chapter 3, Section 10, provides that "Every person shall have the right to respect for and protection of his or her dignity." Section 11(1) provides that every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial. Section 11 (2) provides that no person shall be subject to torture of any kind, whether physical, mental or emotional nor shall any person be subject to cruel, inhuman or degrading treatment or punishment. There are two recent landmark decisions rendered by the Constitutional Court involving the interpretation of Section 11(2). In the Makwanyane decision, the Constitutional Court per Chaskalson P. ruled that the death penalty constituted cruel, inhuman and degrading punishment.(8) In the Williams case, Langa J. speaking for the majority ruled that corporal punishment although permitted by section 294 of the Criminal Procedure Act of 1977, amounts to cruel, inhuman and degrading treatment and is an affront to human dignity, and therefore under the Interim Constitution is invalid. Despite the invalidation of corporal punishment, Human Rights activists have complained that as late as August of 1995, magistrates in rural areas were still imposing corporal punishment on juvenile victims. The lack of adherence to the Constitutional Court decisions show the difficulty in transforming a judicial system that has no history of respect for fundamental rights.
2. Refusal of accused to testify/give evidence
The Interim Constitution provides that every accused person shall be presumed innocent and shall have the right to remain silent and not to testify during trial.(9) Section 25(2)(a) imposes a duty on the State to inform the accused of the right to remain silent. The Constitution does not expressly specify that the accused's silence cannot be used against him or her. In terms of the CPA, the accused is a competent but not a compellable witness, and in the past was under strong pressure to testify. The Interim Constitution reiterates that an accused has the right not to be a compellable witness against himself or herself.(10) Given the tenor of the recent Constitutional Court decisions, it is reasonable to assume that the Constitutional Court would in all likelihood rule that the purpose of Section 252(a), 2(c) and 3(c) (all of which proclaim the right to remain silent), is to protect the rights of the accused, and no adverse inference can be drawn from his/her failure to testify.
Confessions obtained without counsel in the past were governed only by section 217 and 218 of the Criminal Procedure Act. The courts would allow the confession into evidence if it was freely and voluntarily made without undue influence.(11) Under section 217(1) of the CPA, the test for coercion centers on whether the confession was freely and voluntarily made. It follows, if the statement was induced by undue influence, it would be excluded. In terms of various provisions contained in Article 25 of the Interim Constitution, any coerced confession would be inadmissible. In the past under the CPA, the onus was on the accused to prove that the confession was not made freely and voluntarily. In Zuma,(12) the first decision rendered by the Constitutional Court, the court unanimously repudiated the old approach and ruled that the onus is on the state to prove that the statement was obtained without coercion. Kentridge AJ writing for a unanimous court ruled that Section 25 of the Interim Constitution embodies certain important rights which include "the right to remain silent after arrest, the right not to be compelled to make a confession which can be used in evidence, the right to be presumed innocent and the right not to be a compellable witness against oneself." In the same case, Kentridge AJ further stated that not all statutory provisions that create a presumption are invalid. Presumptions are of different types, and in some cases the court has to allow reasonable presumptions to assist in effective prosecutions.
An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed, or has been convicted of or has been changed with any offence other than the offence with which he is charged unless she/he is being charged under Section 240 or 241 of the CPA which deal with evidence on charges of receiving stolen property, or evidence of previous conviction on charge of receiving stolen property.
3. Treatment of accused and convicted prisoners
In the past there was a general policy to treat accused persons differently from convicted prisoners. Due to overcrowding in prisons today this is no longer the case.
4. Persons awaiting trial
The Interim Constitution in terms of Section 25(2)(d) confers a right on the accused to be released from detention with or without bail, unless the interests of justice require otherwise. Since the Interim Constitution has come into effect, there is a perception that courts have been relatively lenient in granting bail to the accused. With the severe dislocation created under apartheid, there is a high level of absconding and a community backlash that conditions for the granting of bail are lenient. Recent legislation calls on judicial officers to look at the interest of the public when granting bail.
5. Habeas corpus, amparo and other remedies
Section 25 (1)(e) of the Interim Constitution provides the detained person a right to challenge the lawfulness of his/her detention in person before a court and to be released if such detention is unlawful.
Pursuant to section 33 of the Interim Constitution, the fundamental rights protected in the Constitution can be derogated from only if it is reasonable and necessary. The Interim Constitution provides for declaration of a state of emergency pursuant to an act of Parliament. If any individual is detained under a state of emergency, the validity of the detention has to be reviewed by a court of law within 10 days. The detainee has the right to constantly (within 10 day intervals) apply to a court of law to review the validity of his/her detention. The State has the burden of showing why the detention is necessary for the maintenance of peace and security. The State also has the duty to supply the detainee with written reasons to justify the detention. During the period of detention, the detainee has the right to full access to legal representation of his/her choice.
B. Notice
1. Under the Interim Constitution, Section 25(2)(b) and (3)(a), a person subject to detention has the right, as soon as it is reasonably possible, but not later than 48 hours after the arrest, or if the said period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an ordinary court of law and to be charged or to be informed of the reason for his/her further detention, failing which she/he shall be entitled to be released.
In terms of the Interim Constitution Section 25(3)(b), the accused has a right to be informed of the charges against him/her. In terms of the CPA Act Section 105, the charge shall be put to the accused by the prosecutor before the trial. The CPA provides in various parts(13) that the accused has the right to be informed with sufficient particularity of the charges against him/her.
2. Section 25(1)(a) of the Interim Constitution provides that the accused shall be informed promptly in a language which she/he understands of the reason for her/his detention. The said section also makes provision for the accused to be tried in a language which she/he understands or, failing this, to have the proceedings interpreted to him or her.
In the past there was no right of an accused to obtain information on the evidence against him/her, nor was there any law which required the prosecution to disclose evidence that was in favor of the accused. The Interim Constitution provides that everyone has a right to receive all information which is in their interest. There is no rule which obliges the prosecution to disclose the information without a request from the accused.
C. Counsel
1. Right to counsel
The Right to counsel is covered in the Interim Constitution Section 25(1)(c). The section states that every prisoner shall have a right "to consult with a legal practitioner of his or her choice, to be informed of this right promptly and, where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the state."
With respect to indigent accused, Section 25(3)(e) further provides that every accused person has the right "to be represented by a legal practitioner . . . or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights." In the State v. Vermaas and the State v. Du Plessis,(14) the Constitutional Court observed that there can be no undue delay in the promise of a fundamental right including the right to counsel.(15) However the right to counsel at state expense does not mean the right to have counsel of your choice.(16)
2. Pro-deo counsel
The Constitution does not make a reference to the categories of crimes for which counsel will be provided. Instead, Section 25(1)(c) merely states that counsel will be provided "where substantial injustice would otherwise result."
3. Is there a right to counsel at appeal and review
Whether there is a right to counsel at the appeal or review stage depends on how the Constitutional Court interprets Section 25(1)(c) of the Interim Constitution. Whilst the Interim Constitution does not expressly specify a right to be provided with counsel at the appeal or post-conviction stage, one would assume that the Constitutional Court would find Section 25(1)(c) still applies in the post conviction and appeal stage in order to ensure justice is done.
4. Competency of counsel
There is nothing in the Constitution to ensure the adequacy of legal representation. The reality is that competency and adequacy of legal representation are governed by chance, namely who is picked out from the draw as pro-deo counsel. The Constitutional Court observed in State v. Vermaas that although an accused has the right to state-funded counsel, where the State is paying for the counsel of the accused, the accused does not have the right to pick the lawyer appointed to represent him.
5. Guarantee of confidentiality
Communications between legal advisers and clients is covered by Section 201 of the CPA, and the common law. Section 201 of CPA provides that a legal practitioner cannot divulge privileged information without the consent of the client. This incompetence extends to any intermediary or agent whom the client or adviser used either in the litigation or to convey their communications to each other.
D. Hearing
1. Treatment without delay
Section 25 (2)(b) of the Interim Constitution deals with an accused person's right to be brought before an ordinary court, to be informed of the charge against him or her within a reasonable time, but no later than 48 hours after arrest, or the first day after the period when the court is not in session. Under the Constitution, Section 25(3)(j) further provides that an accused person has a right to be sentenced within a reasonable time after conviction.
There is no specific reference to the addition of new charges (at the last moment before trial) either in the Interim Constitution or the CPA. Section 86 provides that a court may order that a charge be amended, e.g. where a charge is defective for the want of essential averments. Sub-section 1 goes on to provide that the court may at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend. If the prosecution wants to add new charges, the courts have insisted that they must go through all the normal requirements of notice so as to give the accused time to make necessary preparations for his/her defence.
Section 86(3) of the CPA goes on to read that upon the amendment of the charge in accordance with the order or the court, the trial shall proceed at the appointed time upon the amended charge in the same manner and with the same consequences as if it had been originally in its amended form. Sub-section 4 further provides the fact that a charge is not amended as provided in this section, shall not, unless the court refuses to allow the amendment, affect the validity of the proceedings thereunder.
There is no provision made for waiving or negotiating a trial with the prosecution. There is no statute of limitations for criminal trials.
2. Whether there are rules mandating that civil and criminal trials be held in public
Section 25 (3)(a) of the Interim Constitution provides that every accused person has the right to a public trial before an ordinary court of law, within a reasonable time after having been charged. Historically, matters involving children are held in camera, and this is unlikely to be changed. In the past, matters deemed to be not in the public interest, or matters of national security or unrest could be heard in camera in terms of the Criminal Procedure Act Section 153 and Section 154.
3. Geographic locality where trial is heard
It is normal for the case to be heard in the locality where the conduct at issue occurred. Under the CPA Section 110, the Attorney General may remove the trial to another jurisdiction. Under Section 111 of the CPA, the Minister may when he deems it in the interests of the administration of justice that an offence committed within the area of jurisdiction of one Attorney General, may direct that criminal proceedings in respect of such offence be commenced within the area of jurisdiction of such other Attorney General. Also, the court may transfer the trial to another locality if it would be in the interests of the administration of justice.
4. Trials in absentia
There is no provision in either the Interim Constitution or the CPA for a trial of accused in absentia.
5. Protection of the mentally incompetent
If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be inquired into and be reported on in accordance with the provision of Section 79 of the Criminal Procedure Act.
Section 78 (2) of the CPA provides that if it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect not criminally responsible for the offences charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be responsible, the court shall direct that the matter be inquired into and be reported on in accordance within the provisions of s. 79.
Section 79 of CPA sets out the procedure for an enquiry on whether the accused is mentally ill. Section 79(1)(b) deals with the appointment of psychiatrists to the enquiry. Section 79 (4) sets out the requirements of the medical report and its contents. Section 79 (7) deals with the non-admissibility of statements made by an accused.
A mentally incompetent person in terms of section 77(6)(a) cannot be tried. If the court finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the accused be detained in a mental hospital or a prison pending the decision of the Minister.
6. Right to interpreter
The Interim Constitution Section 25 (3) (I) provides that an accused has a right to be tried in a language which he or she understands, or failing this, to have the proceedings interpreted to him or her.
7. Attendance & examination of witnesses
Section 186 of CPA makes provision that the court may subpoena a witness. The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court shall subpoena a witness or so cause a witness to be subpoenaed if the evidence of such witness appears to the court essential to the just decision of that case.
Under Section 190 of CPA, any party in criminal proceedings may impeach or support the credibility of any witness called against or on behalf of any party.
In terms of the rules of evidence, the court has discretion with respect to the admissibility of evidence.
8. The accused's right to examine adverse witnesses
Under section 166(1) of the CPA, an accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings or any co-accused who testifies at criminal proceedings, and the prosecutor may cross-examine any witness including an accused called on behalf of the defence at criminal proceedings.
The CPA section 153 makes provision for cases to be held in camera if it appears to the court that the security of the State, or of good order, or of public morals, or of the administration of justice requires, and the court orders that the trial be held behind closed doors. This order can direct that the public be excluded from the trial.
9. The accused's presumption of innocence
The Interim Constitution Section 25(3)(c) affirms the principle of presumption of innocence, and the right of an accused to remain silent. Accordingly, the burden of proof on the question of guilt is born by the prosecution.
Historically, in terms of the sub-judice the media does not comment on the substance of trials including the evidence, quality of evidence, nor what is likely to be the outcome of the case. This is likely to change with the Interim Constitution protecting freedom of speech, and the right to information.
An accused must be proven guilty beyond a reasonable doubt. When the defence is one of insanity, the onus of proving insanity rests upon the accused. A plea of insanity is determined on a balance of probabilities. The burden of proof in civil proceedings is also determined on a balance of probabilities.
10. Civil actions and examination of witnesses
A party to a civil trial has a right to obtain and examine all relevant witnesses at trial.
11. Unlawfully obtained evidence
Under the CPA Section 218 and 225, evidence although obtained by illegal means or against the wishes of the accused may still be admitted against an accused. The Interim Constitution now elevates privacy rights by providing that every person has the right of personal privacy including the right not to subject to searches of his or her person, home or property or private communications. It is likely that the provisions of the CPA (which in the past allowed abuses to take place) will be restricted in its application.
12. The participation by victim of offence in proceedings
There is no right for a victim to participate in the criminal proceedings.
E. Composition of the Court
1. Protections to guarantee the independence and impartiality of judges
Historically, the appointment of judges in South Africa was done by the State President.(17) In most instances the appointments were made from within the ranks of senior advocates. The government in the past was unlikely to appoint a large number of judges who were opposed to its racial policies. In the past there were complaints that political factors were given greater priority than merit with better qualified persons being passed over in preference for candidates who favor the government's views. There have been allegations of relatively unknown but pro-government Afrikaaner advocates being appointed as judges.(18) At the time of South Africa's transformation to majority rule in April 1994, there was only one black judge in the entire country.(19)
Under the Interim Constitution, the President still appoints judges. However, he makes his selection from a list provided by a Judicial Services Commission (JSC). The JSC is supposed to be a non-partisan body that makes judicial recommendations to the President. The JSC consists of four persons designated by the President, the Minister of Justice, four senators, two representatives of the attorney's profession, two representatives from the advocates profession, the Chief Justice, President of the Constitutional Court, a Judge President designated by all the Judge Presidents, and a representative of the Dean of law schools.
Until 1994, there was no guarantee of independence of the judiciary. Under the Interim Constitution, the Judicial Authority is vested in the courts. The judiciary is made independent of any other organ of government.
2. Trial by jury, judge or lay assessor
The Interim Constitution in Section 25(2)(b) provides that an accused following arrest has a right to be brought before an ordinary court of law. There is no system of jury trial. Accused persons are tried before magistrates in the inferior courts, and judges (plus assessors) in the Superior Courts. There are widespread calls for the use of lay assessors in court proceedings. In the past six months, a pilot program involving the use of lay assessors has been embarked upon in one part of the Cape area. If the project proves a success, it is likely that use of assessors will be introduced in other parts of the country as well.
In terms of the CPA, the decision to use assessors is that of the judge and not a right of the accused. Under Section 145 of the CPA, the judge could call on up to a maximum of two assessors, if the judge is of the opinion that the assessor(s) has experience in the administration of justice, or skill in any matter which may be considered at the trial. The judge makes all determination of law, where as determination of facts is made by the judge and assessor(s) together. If there is only one assessor, and there is a difference of opinion, the judge's decision is final.
An assessor, for the purposes of this section, means a person who in the opinion of the judge (who presides over the trial) has experience in the administration of justice, or in any matter which may be considered at the trial. Remuneration of an assessor is determined by the executive branch of government in terms of Section 145(5) of CPA. The CPA does not provide any factors that might exclude particular individuals from being an assessor. However, as stated in Section 145(1) (b) the presiding judge has discretion with respect to the suitability of persons to become assessors.
F. Decision, Sentencing, Punishment
1. Reasons for decision
There is no explicit mention in the CPA which requires a public statement to explain the rationale behind a criminal case. The requirement that the court needs to explain its decision can be inferred from the other requirements in the Interim Constitution, namely the right to appeal, as well as section 235 of the CPA which requires proof of the record of judicial proceedings. One can assume that there is a requirement that the judicial officer needs to explain his/her decision.
2. Civil case
The same need for an explanation would apply to a civil case as well.
3. Double jeopardy
Section 25(3)(g) of the Interim Constitution explicitly prohibits trying a person for an offence of which the accused was previously acquitted. This is also provided for in the CPA. Under the CPA, the avoidance of double jeopardy only applies if the accused was tried by a competent court and acquitted on the merits.
4. Conviction under ex-post facto laws
The Interim Constitution, Section 25(1)(f) prohibits ex-post facto laws, and also prohibits being sentenced to a greater punishment then that which was applicable when the offence was committed.
5. Protection for failure to fulfill contractual obligation
In the past individuals could be imprisoned for civil debt. This practice has since 1994 been done away with.
6. Assurances that judgments are made public
The Interim Constitution in Section 23 provides a fundamental right to access to information held by the State, or any of its organs of government. The Criminal Procedure Act requires proof of judicial proceedings.
7. Judgments not made public
The CPA Section 154 allows the court to restrict the publication of information relating to trials which the public was not allowed to attend.
8. Collective punishment
It is most unlikely that collective punishment would be allowed under the Interim Constitution of South Africa.
9. Death penalty
The Constitutional Court of South Africa has outlawed the death penalty as a violation of the Interim Constitution's right to life, as well as being cruel and unusual punishment.
10. Cruel and degrading punishment
The Interim Constitution in Section 11 prohibits torture, and cruel, inhuman and degrading treatment.
G. Appeal or Other Review in Higher Courts
The Interim Constitution provides a right to recourse by way of appeal or review to a higher court other than the court which originally heard the matter.
1. Review/appeal
South African law uses both the terms appeal and review. Review deals with irregularity of proceedings e.g. bias on the part of the presiding judicial officer. An appeal relates to a review of a finding of fact, based on the court record. The CPA allows for both review and appeal including passing of sentence. With respect to review from an inferior court (magistrates court), this is dealt with in Section 304 of CPA. Under Section 304(2)(a) the judge may obtain from the judicial officer who presided at the trial a statement setting forth his reasons for convicting the accused and for the sentence imposed, and shall thereupon lay the record of the proceedings and the said statement before the court of the provincial or local division having jurisdiction for consideration by that court as a court of appeal. Under the CPA Section 305, the accused does not have a right of appearance at the review, unless the judge feels otherwise.
The time period to lodge an appeal is dealt with in Section 306(1) of the CPA, which allows a one week period to make a copy of the record and transmit it for review to a higher court. Appeals from decisions rendered in Superior Courts is dealt with in Sections 315 and 316 of the CPA. A convicted person has fourteen days within passing of the sentence to apply for leave to appeal against the conviction or sentence.
The Attorney General under the CPA Section 316B may appeal against the sentence of a Superior Court.
A judge who hears the case at the trial level would not be able to hear the case on appeal or review. Section 320 of the CPA provides that a "report by a judge in the court a quo should be sent to the registrar of the higher court giving his/her/their opinion upon the case or upon any point arising in the case, and such report, which shall form part of the record shall without delay be forwarded by the registrar to the registrar of the court of appeal."
Although the Constitution provides a right of appeal, an accused convicted of an offence and who wants to appeal the conviction or sentence still has to apply for leave to appeal. In the State v. Peet Rens, the Constitutional Court ruled that applying for leave to appeal does not violate the Constitution's guarantee of right to appeal.(20) A person who applies for leave to appeal against such conviction or sentence, has the burden of satisfying the court on a balance of probabilities, that there are reasonable prospects of success. The test of reasonable prospects of success is a lower burden than deciding whether the appeal should succeed or not. The application may be made orally at the conclusion of the trial, or it may be made through a written application for leave to appeal within the periods prescribed in the CPA. There is also procedure for condonation of late appeal. The purpose of applying for leave to appeal is to protect the higher courts from being swamped by appeals which have no burden of success.
H. Pardon Amnesty & Expungement
1. Opportunities for pardon or commutation of sentence
The Interim Constitution in Section 82(1)(k) provides that the President has the power to pardon or reprieve offenders, either unconditionally or subject to conditions the President deems fit. The power of pardon also includes the power to remit any fines, penalties or forfeitures. The power of pardon is also dealt with in CPA Section 325.
2. Other measures for amnesty
Parliament passed the Promotion of National Unity and Reconciliation Act of 1995(21) to grant amnesty to persons who have committed political acts in the past, and who make a full disclosure of their past deeds. The Act provides for the creation of a Truth and Reconciliation Commission, a Committee on Human Rights Violations, a Committee on Amnesty, and a Committee on Reparation and Rehabilitation. The Truth and Reconciliation Commission's objective shall include the facilitation of granting of amnesty to persons who make a full disclosure of gross violations of human rights. Its task also includes making a full report of gross violations of human rights of a political nature. The Committee on Human Rights Violations is responsible for gathering information of gross violations of human rights. When the Committee on Human Rights finds that there has been gross violations of human rights, and a person has been a victim of such violation, the Committee on Human Rights must refer the matter to the Committee on Reparation and Rehabilitation for its consideration. The Committee on Reparation and Rehabilitation, after it considers the matter, will make recommendations for reparation to the victim, and its recommendations are forwarded to the Truth and Reconciliation Commission, who in turn makes recommendations to the President. The President in turn considers the recommendations and can make recommendations to Parliament, who in turn can adopt the appropriate legislation. A significant provision is the creation of the Committee of Amnesty. Any person has the right to submit to the Truth and Reconciliation Commission, for submission to the Amnesty Commission, an application for amnesty for acts of a political nature. The act provides that the Amnesty Committee shall grant amnesty to all persons who comply with the provisions of the act, namely that they have committed a political offence during the prescribed period, and have made a full disclosure. A person who has been granted amnesty in respect of any act, omission or offence shall henceforth enjoy full immunity from all criminal and civil actions. If any person has been convicted of any political offence associated with a political objective and has since been granted amnesty, the record of the conviction shall be nullified and deemed not to have taken place.
With respect to the procedure of the investigations conducted by the Truth and Reconciliation Commission, it has the power to declare any information or article to be confidential. It is also empowered to declare that any proceedings be held behind closed doors, and the public be excluded from any of the proceedings. The Commission also has the power to direct that no information relating to any proceedings be made open to the public.
The Constitutional Court in a recent decision(22) ruled that the amnesty provisions in the Amnesty Act do not violate the Constitution with respect to the protection of fundamental rights in Chapter 3 of the Constitution. The Court rules that international law is not part of the Constitution until and unless international law is adopted by the legislature. The Court's treatment of the role of international law in the Constitution is at variance with its treatment of the role of international law in other cases where the Court has ruled that international law is binding and an inherent part of the South African Constitution.(23) In its previous decisions, the Court has also ruled that in order to consider whether something is international law, they need to look at the sources of international law.(24) In its cursory treatment of international law in the Amnesty decision, the Constitutional Court failed to look at the sources of international law on the right of the victim to have the perpetrator of a war crime or crime against humanity be punished through a competent tribunal, as well as the right of the victim to seek civil redress from the perpetrator.
I. Other Remedies
1. Judicial or other remedies available for violation of fundamental rights
Under the Interim Constitution, Section 7, every person has a right to apply to a competent court of law for appropriate relief, if his or her fundamental rights are infringed upon. In addition, the Interim Constitution provides for a Human Rights Commission. A complainant has the option of bringing any alleged violation of fundamental rights to the attention of the Human Rights Commission. The Human Rights Commission can provide financial assistance to enable proceedings to be taken before a competent court for necessary relief. The Human Rights Commission has the wider function of promoting observance, and respect for the protection of fundamental rights. Under the Interim Constitution, the Commission has the duty to make recommendations on measures appropriate for further observance of fundamental rights.
2. Suspension of habeas corpus
This would only be possible under emergency situations in terms of the Interim Constitution. However, even under emergency times, the courts are competent to rule on the validity of the detention.
3. Compensation for false conviction/imprisonment
Under Section 342 of the CPA, conviction or acquittal is no bar to civil action for damages. This means that any person who has suffered damages in consequence of the commission of that offence can bring a civil action.
4. Remedies for pre-trial detention
This would also be covered by Section 342 of the CPA mentioned above.
J. Procedures for Juveniles
The CPA makes provisions for special treatment of juveniles in Sections 71, 290, 291 & 337. The statutes generally treat children under 18 to be juveniles. If an accused is under the age of 18 years, he/she could be placed in a place of safety as defined in s.1 of the Child Care Act 74 of 1983. The Interim Constitution not only guarantees juveniles all the fundamental guarantees of the Interim Constitution, but mandates in Section 30(2) that every child who is in detention has the right to be detained under conditions and to be treated in a manner that takes account of his or her age.
1. Special procedures for juvenile offenders
The courts in South Africa generally adopt the view that they should be careful not to place an old head on young shoulders. In this regard, the court must take into consideration the age, knowledge, experience, and the judgment of the child in the specific circumstances facing the child, at the time of commission of the prohibited act.(25)
Thus capacity is assessed subjectively, i.e. the youthfulness of the accused may serve to exclude criminal capacity.
With respect to children under 7 years of age, there is an irrebuttable presumption that they lack criminal capacity. A presumption exists that a child between 7 and 14 years is criminally unaccountable. Unlike the case of a child under 7 years of age this presumption is rebuttable and weakens with the advance to 16 years.
2. Juveniles in civil proceedings
The same general presumptions apply to juveniles in civil proceedings.
3. Protections from Imposition of Corporal Punishment
Section 11 (2) of the Interim Constitution provides that no person shall be subject to cruel inhuman or degrading treatment or punishment. The Constitutional Court interpreting the above provision has outlawed corporal punishment.
4. Treatment of accused juveniles
Section 71 of the CPA stipulates that juveniles should be placed in places of safety in lieu of release on bail or detention in custody. However, in practice due to overcrowding, fewer places of safety are available and young juveniles are often found to be in the company of adult persons in custody.
K. Military Courts
The Interim Constitution guarantees to every person the right to apply to a competent court of law for appropriate relief. If there is to be any restriction on this right, under the Interim Constitution, Section 33, the restriction has to be reasonable, and justifiable.
L. Emergency or Special Courts
The CPA does make provisions under Section 148 for special Superior Courts. The validity of Special or Emergency Courts would have to evaluated in relation to the Interim Constitution which guarantees to every person the right to apply to a competent court of law for appropriate relief. Emergency or special courts would be suspect, unless it is reasonable, and justifiable under section 33 of the Interim Constitution.
M. Administrative Courts
The Interim Constitution in Section 24 provides that every person has the right to lawful administrative action. The section further provides that there should be procedural fairness in administrative action where the individual's rights are threatened. Moreover, there should be written reason provided where administrative action affects the rights and interests of that individual. With the adoption of the Interim Constitution, the area of administrative law is likely to undergo considerable change in requiring greater accountability in administrative decisions.
Conclusion
This paper has attempted to provide an overview of the fair trial procedures in South Africa under the new constitutional order as well as in terms of current seminal statutes. In less than two years, the Constitutional Court has rendered a number of key decisions all of which (with the exception of the decision on the constitutionality of the Amnesty Act) enhances fair trial procedures. In light of the new constitutional order, it is likely that fair trial procedures will be considerably strengthened in the months and years to come.
1. Constitution of the Republic of South Africa Bill (W 212B 1993) [Hereinafter referred to as South Africa Interim Constitution].
2. See International Convention on the Suppression And Punishment of the Crime of Apartheid, G.A. Res. 3068 (XXVIII) 28, UN GAOR, Supp. No. 30, 1973, p. 75.
3. South Africa Interim Constitution, ch. 3.
4. Id. art. 98.
5. Act Number 51 of 1977.
6. Internal Security Act, Section 19.
7. Internal Security Act, Section 28 and 29.
8. The State v. T. Makwanyane and M. Mchunu, Case No.CCT/394.
9. Interim Constitution, Section 25(3)(c).
10. Article 25(3)(d).
11. S v. Radebe & Another 1968 (4) SA 410 (A).
12. Zuma and Two Others vs. The State CCT/5/94.
13. Namely in Chapter 15 and Chapter 19 of the CPA.
14. These cases were decided together and are cited as Case CCT/1/94 and Case CCT 2/94 respectively.
15. Id., paragraph 16.
16. Id.
17. In terms of the Supreme Court Act 59 of 1959, Section 10.
18. J. Jackson, Justice in South Africa, 1980, pp. 24-5.
19. This excludes the homelands.
20. Case Number CCT 1/95.
21. Act Number 30 of 1995, (hereinafter referred to as Promotion of National Unity and Reconciliation Act).
22. The Azanian Peoples Organization and Others v. the President of the Republic of South Africa and Others Case Number CCT 17/96 (thus far unreported) [hereinafter referred to as the Amnesty Decision].
23. The State v. T. Makwanyane, Case Number CCT/3/94 in paragraph 304. Farieda Coetzee and Others v. The Commanding Officer, Port Elizabeth Prison and Others, Case Number CCT/19/94 in paragraph 51-2.
24. State v. Makyanyane, (note 23), paragraph 35.
25. Weber v. Soutains 1983 (1) SA 381 (A) at 400 per Jansen JA.