CRIMINAL PROCEDURE A

The accused and his presence as a party

Lecturer : Dr K Naidoo
 THE ACCUSED AND HIS PRESENCE
AS A PARTY

• The general rule is that an accused should

be present when tried.
• The right for an accused to be present during
his or her trial is well-established in most
jurisdictions and has been provided for in
numerous regional and international human
rights instruments.
 THE ACCUSED AND HIS PRESENCE
AS A PARTY

• There are exceptions to this rule, in terms of

international protection afforded to accused
persons, some states allow in absentia trials for
some international crimes:
• War crimes;
• Crimes against humanity; and
• Genocide.
• However, even in these instances, trials whereby
the accused is absent should always be the
exception to the rule.
 THE ACCUSED AND HIS PRESENCE
AS A PARTY

Poels suggests that if states wish to try individuals in absentia,

it should apply the following principles:
• The accused should be notified of the criminal proceedings
and given adequate time to appear in person;
• States who conduct criminal trials in absentia should ensure
that human rights standards are protected in matters such
as extradition and international co-operation;
• Charges are to be brought by a Public Prosecutor
independent from political, governmental or extra-legal
influence;
• The State where the accused resides should be given
opportunity to deal with the issue and provide legal
assistance if required.
 THE SOUTH AFRICAN POSITION

• In South Africa, s 34 and s 35(3)(c) and (e) safeguard access to

the courts which includes a right to a fair trial and the right to a
public trial before an ordinary court.
• S 34 of the Constitution prescribes: ‘Everyone has the right to
have any dispute that can be resolved by the application of the
law decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or
forum.’
• S 35 (3) states as follows:
‘Every accused person has a right to a fair trial which includes the
right –
(c) to a public trial before an ordinary court
……
(e) to be present when being tried.’
 THE SOUTH AFRICAN POSITION

• S 158(1) of the Criminal Procedure Act prescribes that

criminal proceedings are to take place in the presence of
the accused expect in instances expressly provided for by
legislation.
• In order to understand the seriousness of the issue, it is
important to examine how courts have applied these rules.
• In the case of Madlala [2001] JOL 8632 (TK) the High
Court considered an application for cancellation of bail in
open court that occurred in absence of the accused and
his legal representative in the Magistrates Court. The High
Court exercised its powers of review and set the
cancellation of bail aside.
 THE SOUTH AFRICAN POSITION

• Amongst the right to be present, the accused has a right

to see witnesses testifying against him so that the
accused is able to assess the witnesses’ demeanour
and hear the evidence being presented against him/her.
• If the accused is denied the right, the court may on
appeal or review set aside the conviction.
• However, in the case of Basson 2000 (2) 188 (T) the court
held that evidence may be given in commission by two
witnesses based in the USA by means of commission in
terms of s 2(1) of the International Co-operation in Criminal
Matters Act 75 of 1996, despite the fact that the accused
was unable to be present upon the testimony of the
witnesses.
 THE SOUTH AFRICAN POSITION

There are certain exceptions to the rule that evidence must

be given whilst the accused is present:
1. Where the offence is trivial and an admission of guilt
fine can be paid which will result in the accused being
convicted in his absence;
2. Due to the behaviour of the accused, the trial cannot
carry on with the accused present;
3. Circumstances may warrant the accused or a witness
to testify via closed-circuit television or any other
similar electronic media; and
4. Circumstances where there is more than one accused
for the trial to carry on in absence of one or more
accused persons.
 1. TRIAL IN ABSENCE OF ACCUSED
DUE TO MISBEHAVIOUR
• If the accused acts in a manner so as to render the proceedings
impractical to continue with him/her present, the court may
request that the trial continue without the accused present, this is
in terms of s 159(1) of the Criminal Procedure Act.
• It must be noted that this must be used as a last resort. It is
preferable to postpone the matter or alternatively temporarily
adjourn the matter and allow the court to proceed with the
accused present at a later stage.
• If the court elects to use the s 159 (1) of the Criminal Procedure
Act, it must warn the accused and note the warning on
record.
• It is also advisable that after the evidence has been lead in
absence of the accused after his removal, that the accused is
given a chance to appear before the court to request whether
the accused has any evidence with which he/she wishes to lead.
 2. ABSENCE OF THE ACCUSED W HERE
THERE IS MORE THAN ONE ACCUSED

• What about instances when there is more than one

accused?
• The following grounds must be followed to proceed in
absence of an accused where the trial involves more
than one accused person:
1. Due to the physical condition of the accused, he is
unable to attend or that his attendance is undesirable
due to his/her condition; and
2. Due to circumstances in connection with the illness or
death of a member of the accused’s family.
 2.ABSENCE OF THE ACCUSED W HERE
THERE IS MORE THAN ONE ACCUSED

• If the accused is absent due to removal or absent with or

without leave from the court, a court may direct that the
trial proceed without the accused.
• This will occur in instances where postponing the trial
would cause undue prejudice, embarrassment or
inconvenience to witnesses and the prosecution (as per
s 159 (2) of the Criminal Procedure Act).
• The court may also direct that proceedings between the
accused who is present and the accused who is not
present be split.
• It is important to note that in such a situation the trial will
proceed from when the accused was absent and is not
required to be differently constituted.
 2. ABSENCE OF THE ACCUSED W HERE
THERE IS MORE THAN ONE ACCUSED

• Please note that if proceedings proceed without the

accused and he has not been legally represented, at
a later stage, the accused may request to examine a
witness who testified during his absence and
inspect the record of proceedings.
• The trial of an absent accused may only be concluded
after the accused has reappeared and the accused
has been provided with an opportunity to lead
evidence and close his/her case.
 3. EVIDENCE BY MEANS OF CLOSED-
CIRCUIT TELEVISION OR SIMILAR
ELECTRONIC MEDIA

• Evidence by closed-circuit television may be done on

the courts own initiative or on application by the
private prosecutor, order that a witness or an accused
if that witness or accused so consents, to give
evidence by close-circuit television or any other
similar electronic media as per s 158 (2) of the
Criminal Procedure Act.
 3. EVIDENCE BY MEANS OF CLOSED-
CIRCUIT TELEVISION OR SIMILAR
ELECTRONIC MEDIA
A court may make the order if it has facilities that are
ready and that doing so would result in one of the
following –
a) Prevent unreasonable delay
b) Save costs
c) Convenience
d) It is in the interests of security of the state or of
public safety or in the interests of justice or in the
interests of the public.
e) Prevent prejudice or harm that may come to a
person if they are present at the proceedings (s 158
(3))
 3. EVIDENCE BY MEANS OF CLOSED-
CIRCUIT TELEVISION OR SIMILAR
ELECTRONIC MEDIA
• The court may provide for certain condition to be met
as it deems necessary.
• Please note that the prosecution and the defence
must be able to observe the witnesses and be able to
question the witness (s 158 (4) of the Criminal
Procedure Act).
• The court may also allow testifying through an
intermediary as per s 170A and in such an instance,
the prosecutor and the accused should be able to
observe the witness and also question the witness
which is ordinarily done by means of closed-circuit
television.
 3. EVIDENCE BY MEANS OF CLOSED-
CIRCUIT TELEVISION OR SIMILAR
ELECTRONIC MEDIA

• A child complainant should be allowed to give

evidence by means of closed circuit television and
where a court so refuses, the court must provide
reasons for their refusal as per s 158 (5).
 3. EVIDENCE BY MEANS OF CLOSED-
CIRCUIT TELEVISION OR SIMILAR
ELECTRONIC MEDIA

In terms of Sexual Offences, the NDPP issued

directives in terms of s 66(2) (a) – (c) of the Criminal
Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 provides the following,
please note these directives are not yet in operation:
1. Prosecutors are to consider this in all sexual offence
cases. As a rule, the prosecutor should always bring an
application where a child’s biological or mental age is
below 14.
 3. EVIDENCE BY MEANS OF CLOSED-
CIRCUIT TELEVISION OR SIMILAR
ELECTRONIC MEDIA (CONT)

2.Circumstances to be considered on application:

a) Witness unwilling to testify in the presence of the accused
b) Nature of the offence (is violence involved?)
c) The complainant is acquainted or related to the accused
d) The court room intimidates the witness
e) The witness is part of the witness protection programme
f) The impact of the offence has been severe on the witness
g) Quality of the testimony would be compromised in the event
that the witness testifies in the accused's presence
h) The mental age of the witness requires it
 3. EVIDENCE BY MEANS OF CLOSED-
CIRCUIT TELEVISION OR SIMILAR
ELECTRONIC MEDIA (CONT)

3. If the child is under 14 years and the court has refused to allow
the child to testify in closed-circuit television, the prosecution
should remind the court to give reasons for refusal.
4. The views of the witnesses should be taken into account – if the
witness does not wish for this measure to be taken, there is no
need to apply.
5. If the closed-circuit measure would cause unreasonable delay.
6. The application should be made timeously. Expert evidence may
be brought to attest to the trauma that that the witness may be
subjected to should they not testify in such a manner.
7. If the equipment required for the CCTV testimony is not
available or not working this should be reported immediately to the
Department of Justice Court Manager.
 POSTPONEMENT OF CERTAIN CRIMINAL
PROCEEDINGS THROUGH AUDIO VISUAL
LINK

• S 159A and S 159D of the Criminal Procedure Act provides for

postponing criminal proceeding by way of audio visual link.
• Currently, the possibility is limited to only Magisterial districts and
correctional facilities.
• The idea behind this is to avoid the delays, expense and
inconvenience of transporting detainees to court for the case to
be postponed and the transporting them back to the correctional
facilities.
• Importantly, there can be no prejudice caused by using
audiovisual link.
• It is also only applicable where the accused is over the age of 18
and has already appeared before the court, and the accused is
in custody awaiting trial.
 POSTPONEMENT OF CERTAIN CRIMINAL
PROCEEDINGS THROUGH AUDIOVISUAL
LINK
• S 159A and S 159D of the Criminal Procedure Act provides for
postponing criminal proceeding by way of audio visual link.
• Currently, the possibility is limited to only Magisterial districts and
correctional facilities.
• The idea behind this is to avoid the delays, expense and
inconvenience of transporting detainees to court for the case to
be postponed and the transporting them back to the correctional
facilities.
• Importantly, there can be no prejudice caused by using
audiovisual link.
• It is also only applicable where the accused is over the age of 18
and has already appeared before the court, and the accused is
in custody awaiting trial.
• The accused must be brought before the court for any further
postponement.
 POSTPONEMENT OF CERTAIN CRIMINAL
PROCEEDINGS THROUGH AUDIO VISUAL
LINK
• This also applies with regard to considering release on
certain forms of bail.
• The accused is not required to be brought before the court
but may appear via audiovisual link and will be deemed to
have been physically brought before the court.
• The accused must be detained in a correctional facility,
must be able to following the proceedings and the court
must be able to see and hear the accused.
• The room where the audiovisual occurs is deemed to be
part of the court room.
ADMISSION OF GUILT FINES
 PAYMENT OF A FINE W ITHOUT
APPEARANCE IN COURT (ADMISSION OF
GUILT)
• The admission of guilt fine occurs where a prosecutor
issues a summons in terms of s 54 of the Criminal
Procedure Act to an accused.
• The prosecutor may identify from the facts that if the
accused is convicted, they are unlikely to receive a fine in
excess of R10 000 (this amount is determined by the
Minister from time to time by notice in the GG).
• In such an instance, they may hand the accused written
notice to be delivered by peace officer containing an
endorsement in terms of s 57 of the Criminal Procedure
Act allowing the accused to pay a fine without appearing in
court.
 PAYMENT OF A FINE W ITHOUT
APPEARANCE IN COURT (ADMISSION OF
GUILT)
• A peace officer may himself, in terms of s 56(1) upon
handing a notice for an accused to appear in court, provide
a similar endorsement if there are reasonable grounds that
he also believes that the court will not impose a fine in
excess of R10 000.
• Important: If the accused pays the fine, he admits his
guilt.
• The fine is to be paid to the clerk of the Magistrates Court
which has jurisdiction over the matter, or at a police station
within the jurisdiction of that court.
• In terms of s 57(1) the summons that contains the
admission of guilt fine may stipulate a date with which the
fine must be paid
 PAYMENT OF A FINE W ITHOUT
APPEARANCE IN COURT (ADMISSION OF
GUILT)
• It has been held in Houtzamer that the fine may be
accepted after the date has expired up to the date of
appearance.
• Once the clerk has received the fine, the criminal record
will be noted in the criminal record book of the court. The
accused is then deemed to have been convicted by the
court for the offence.
• Please note the offence will amount to a previous
conviction.
• The judicial officer of the court may also direct in terms of s
57(7) that the accused should be prosecuted in the
ordinary course of proceedings.
 PAYMENT OF A FINE W ITHOUT
APPEARANCE IN COURT (ADMISSION OF
GUILT)
• However, if the judicial officer finds the documents in order
he/she is considered a functus officio and may not hear
any representation from the accused.
• The prosecutor may reduce an admission of guilt fine,
provided good cause is shown as per s 57(4) of the CPA.
• A prosecutor has the ability to withdraw a charge after the
accused has paid an admission of guilt fine which is to be
confirmed by a magistrate, the conviction and sentence
may be set aside on review if it is in the interests of justice
and equity.
 PAYMENT OF A FINE W ITHOUT
APPEARANCE IN COURT (ADMISSION OF
GUILT)
• It has been stated by courts that the admission of guilt
fines should be limited to statutory offences and not used
for offences that are common law offences. However,
please note that it is sometimes used in cases of theft
where items are of little monetary value.
• The admission of guilt fine is often used for traffic offences.
 COMPOUNDING OF MINOR
OFFENCES
• Compounding of an offence is distinct from admission of
guilt fines.
• The compound of an offence is where an offence pays an
amount (a fine) to a body such as the municipality.
• The offence is usually minor and such a payment does not
result in a criminal record.
• Compounding is regulated by s 341 of the Criminal
Procedure Act and is limited in terms of this section to
offences which are minor traffic offences and
contraventions of rules and regulations prescribed by local
authorities.
• Note the difference between the admission of guilt find
and compounding of an offence.