Recent Case: Constitutional application
| Jurisdiction | South Africa |
| Citation | (2007) 20 SACJ 123 |
| Author | Warren Freedman |
| Date | 24 May 2019 |
| Pages | 123-136 |
| Published date | 24 May 2019 |
Constitutional application
WARREN FREEDMAN
University of KwaZulu-Natal
Interpretation
Interpretation — the right to a fair trial
The role of the judicial officer
The extent to which a judge may, during the course of a trial, come to
the assistance of an inexperienced prosecutor, without infringing the
accused person’s constitutional right to a fair trial, was carefully exam-
ined by the full bench of the Natal Provincial Division in S v Mseleku
The full bench (per Nicholson J, Theron J and Aboobaker AJ concurring)
began in this respect by explaining that in terms of s 35(3) of the Constitu-
tion of South Africa, 1996 all criminal trials must be conducted not only in
accordance with the formal principles and rules of procedure, but also in
accordance with notions of basic fairness and justice (para 56).
These notions of basic fairness and justice, the full bench went on to
explain, have long provided that where the accused is represented by
inexperienced counsel the court must come to his or her assistance in
order to ensure that justice is done. For similar reasons, the full bench
explained further, where the state is represented by an inexperienced
prosecutor, particularly as a result of a process of transformation, the
court should also come to its assistance (para 60). This is because a
criminal trial is not a game in which the role of the judge is merely to
ensure that the rules are observed by both sides. Instead, the role of the
judge is to see to it that justice is done (para 63).
A court’s power to intervene in a criminal trial, the full bench then
pointed out, is in fact recognized in s 167 and s 186 of the Criminal Pro-
cedure Act 51 of 1977. Section 167 provides in this respect that a court
may, at any stage in criminal proceedings, examine any person (exclud-
ing the accused) who has been subpoenaed or who is in attendance,
and may recall and re-examine any person (including the accused) who
has already been examined, if such a person’s evidence appears to be
essential to the just decision of the case. Section 187 provides that a
court may, at any stage in criminal proceedings subpoena any person as
a witness, if such a person’s evidence appears to be essential to the just
decision of the case (para 58).
Recent cases 123
(2007) 20 SACJ 123
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