Ensuring a Fair Trial: Striking the Balance between Judicial Passivism and Judicial Intervention

JurisdictionSouth Africa
AuthorDeon Erasmus
Pages662-677
Published date27 May 2019
Date27 May 2019
Citation(2015) 26 Stell LR 662
662
ENSURING A FAIR TRIAL: STRIKING THE
BALANCE BETWEEN JUDICIAL PASSIVISM
AND JUDICIAL INTERVENTION
Deon Erasmus
B Juris LLB LLD
Associate Professor
Nelson Mandela Metropolitan University
1 Introduction
Accusatorial models of crim inal procedure a re found generally in
Anglo-American legal syst ems, whereas inquisitor ial systems are com mon
in Continental legal syste ms.1 The English and American syst ems are
traditionally labelled a s examples of the accusatorial syst em and the Dutch,
French and Spanish systems ar e quoted as examples of the inquisitorial
system.2
It is generally accepted that t he South African system of crim inal procedure
is accusatory i n nature.3 The accu satorial system is descr ibed as a system
where the parties a re adversaries and t herefore both the pre-tr ial and trial
procedures are desig ned to facilitate an open and equal con frontation between
the state and the accu sed.4 In terms of this system, the judicial ofcer is
not part of the contest bet ween the parties, who ar e allowed to present
their respective ca ses.5 Judicial passivism is accordi ngly a feature of the
accusatorial system.
Proponents of this system a rgue that the only f unction of the presiding
ofcer is to en sure, in an objective a nd passive way, that the confrontation
process takes place with in the prescribe d rules. His or her role is aki n to that
of an umpire. The presiding ofcer should, as far a s possible, act in a neutral
way and merely judge the case on the evidence prese nted to court. Af ter the
parties have presented their ev idence, the presiding ofcer is ex pected to
make a decision. In this regard , Damaska6 cor rectly argues that t he essential
distinguish ing feature bet ween the accusatorial sys tem and the inquisitoria l
system of procedure is the amou nt of control that the part ies have over the
dispute. In the accusat orial system, the par ties have a greater amou nt of
control, especially relating t o the collection, preparat ion and presentation of
evidence. In the accusator ial crimi nal trial it is not the ta sk of the presiding
1 J Dugard Intr oduction to Crimi nal Procedure (1 977) 117.
2 L Meintjies van de r Walt “Comparative Method : Comparing Lega l Systems and/or Cult ures?” (2006) 20
SJ 51 52.
3 JL Snyman & DW Morkel St rafprosesreg 2 ed (1988) 17.
4 17.
5 RJV Cole “Bet ween Judicial Enabl ing and Adversar ialism: The Role of the Ju dicial Officer i n Protecting
the Unrepre sented Accused in Bo tswana in a Compar ative Perspective” (2010) 11 UBLJ 81 83.
6 MR Damaska “ Presentation of Evid ence and Fact-findi ng Precision” (1975) 123 U Pa LR 1083 10 83.
(2015) 26 Stell LR 662
© Juta and Company (Pty) Ltd
ofcer to subpoena witnesses and to question them – this is the duty of the two
parties to the con frontation, the state and the accused.7 Generally i n criminal
trials, because t he accused is also a par ty to the dispute, t he prosecutor or
the pre siding ofcer may not put questions to the a ccused, unless the latter
elects to testify.8 This principle of the accusatorial syste m is fur ther amplied
in section 35 of the Constitution of the Republic of South Af rica, 1996
(“Constitution”), in term s whereof every accused person has the rig ht to a fair
trial, which includes the r ight to be presumed in nocent, to remain silent, and
not to testify du ring trial proceedings.9
In contrast , in the inquisitorial syst em the presiding ofcer is at the centre
of the trial and plays an active role thr oughout the entire pre-t rial and tr ial
process. The trial la rgely centres arou nd the presiding ofcer who calls
witnesses, exa mines them and makes a nding on all the available evidence.
In contrast to the a ccusatorial model, the acc used is viewed as a valuable
source of information and the presiding ofcer may quest ion the accuse d.10
The process is not a contest bet ween the parties, but a n inquiry to e stablish
the material tr uth.11
No system of criminal p rocedure is totally ac cusatorial or inquisitor ial
in natu re.12 South African cr iminal procedu re contains several i nquisitorial
elements. Firstly, there is section 9 of the Crimi nal Procedure Act 51 of
1977 (“CPA”), which regulates bail proceedings. It has b een held that during
bail proceedings, t he presiding ofcer “is expressly not to act as a passive
um pi re ”.13 Presiding ofcers should not “sit with folded arms” if neither of the
parties place relevant in formation rega rding bail before the court.14 Secondly,
a plea of guilty in ter ms of section 112 of the CPA has been held as importing
inquisitorial elements into ou r law of criminal pro cedure.15 Thirdly, section
115 of the CPA introduced judicial question ing of an accused by the presiding
ofcer. In terms of this section, the accused is requested to voluntarily disclose
the basis of his or her defence.16 Fourthly, section 167, read with section 186 of
the CPA empowers the presiding ofcer to examine witnesses and the accused
during criminal proceedings.17 Fifth ly, section 210 of the CPA provides that
a presiding ofcer may rule that irrelevant or immaterial evidence that i s not
conducive to proving or disproving any point or fa ct in issue is inadm issible.
7 Snyman & Morkel Straf prosesreg 17.
8 J Hermann “ Various Models of Crimi nal Proceedi ngs” (1978) 2 SACC/SASK 3 5.
9 S 35(3)(h) of the Constitutio n.
10 Herman n (1978) SACC/SASK 5.
11 PJ Schwikka rd & SE van der Merwe Principles of Evidence 2 ed (2002) 10.
12 JL Snyman “T he Accusator ial and Inqu isitorial App roaches to Cri minal Pro cedure: Some poi nts of
Compariso n between the South A frican and Cont inental Systems” (1975) CILSA 10 0 101.
13 S v Dlamini; S v Dladl a; S v Joubert; S v Schiete kat 1999 2 SACR 51 (CC) 63d-f.
14 Prokureur-Generaal, Vrystaat v Ramokhosi 1997 1 SASV 127 (OPA) 150c-d.
15 S v Ntlakoe 1995 1 SACR 629 (O) 633b-c.
16 This sect ion empowers the p residing off icer to ask the a ccused at the ou tset of the tri al whether the
accused wis hes to make a state ment indicati ng the basis of his or he r defence. Even if the acc used decline s
to make such a sta tement, or makes one an d it is not clear from the sta tement to what extent t he accused
denies or adm its the issues rais ed by the plea, the presid ing officer may quest ion the accused in ord er to
establish wh ich allegations are i n dispute. The accu sed may however refuse to a nswer such question s.
17 These sect ions are discuss ed in detail in pa rt 4 below.
ENSURING A FAIR TRIAL 663
© Juta and Company (Pty) Ltd

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT