Witness anonymity and the South African criminal justice system

• Jurisdiction: South Africa
• Citation: (2010) 23 SACJ 351
• Published date: 16 August 2019
• Date: 16 August 2019
• Author: Andra le Roux-Kemp
• Pages: 351-370

Witness anonymity and the South

African criminal justice system

ANDRA LE ROUX-KEMP*

ABSTRACT

This article will focus on witness anonymity as a tool to encourage the

reporting of criminal activities and criminal victimisation by victims and

other witnesses, and as a mechanism to ensure that witnesses in criminal

proceedings are duly protected. This will be juxtaposed against an accused’s

right to a fair trial, in terms of s 35(3) of the Constitution of the Republic of

South Africa, 1996 and relevant provisions of the Criminal Procedure Act,1

as well as the foundational principle of the criminal justice system that an

accused has a right to confront witnesses testifying against him or her and

that such testimony should be given in an open court and in the presence

of the accused. Arguments in favour of witness anonymity, primarily based

on the contention that the right of confrontation is not absolute, will be

considered together with examples from other jurisdictions and arguments

asserting that the curtailing of the right of confrontation to accommodate

true witness anonymity are too extreme and inconceivable in terms of an

accused’s right to a fair trial.

1. Introduction

Statistics conf‌irm that all South Africans – irrespective of their sex,

race, f‌inancial status or social standing – experience some form of

criminal victimisation.2 Those most vulnerable, like the poor and un-

employed, as well as children and the youth, experience and witness

exceptionally high levels of criminal victimisation.3 However, with the

f‌irst national victimisation survey conducted in 1998 it already became

apparent that only 50% of all crimes were reported to the South African

Police Service. The comparable 2003 National Survey noted increased

reporting rates, but only with regard to certain types of crimes, and

* BA LLB LLD (Stell), Lecturer, Department of Criminal Justice and Criminal Procedure,

University of the Western Cape.

1 Sections 152, 153, 154, 158 – 167 & 170A–173 of the Criminal Procedure Act 51 of

1977.

2 For the SAPS Crime Statistics for the period April 2008 – March 2009 visit, available

at http://www.saps.gov.za/statistics/reports/crimestats/2009/crime_stats.htm, accessed

25 November 2009.

3 C Frank Victimisation in South Africa and the needs of crime victims Monograph 137,

July 2007 Institute for Security Studies, available at http://www.iss.co.za/static/tem-

plates/tmpl_html.php?node_id=2960&slink_id=5488&slink_type=12&link_id=4059,

accessed 25 November 2009.

351

(2010) 23 SACJ 351

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the National Youth Victimisation Survey from 2005/2006 indicated that

only one out of every ten respondents reported cases of assault to the

police.4

One of the reasons for these poor reporting rates of crimes and

criminal victimisation in South Africa can be attributed to the fear

that witnesses have for offenders, the fear of harassment, intimidation

and other consequences that may result from their decision to report

crime and which may, with regard to whistleblowers, also include loss

of employment.5 It is furthermore said that the experience of such

secondary victimisation or intimidation will not only reduce the likeli-

hood that citizens will engage with the criminal justice system about

the particular crime in question, but also with regard to other criminal

events in future.6

This article will focus on witness anonymity not only as a tool to

encourage the report of criminal activities and criminal victimisation

by victims and other witnesses, but also as a mechanism to ensure

that witnesses in criminal proceedings are duly protected. This will

be juxtaposed against an accused’s right to a fair trial, in terms of

s 35(3) of the Constitution of the Republic of South Africa, 1996 and

relevant provisions of the Criminal Procedure Act,7 as well as the

foundational principle of the criminal justice system that an accused

has a right to confront witnesses testifying against him or her and that

such testimony should be given in an open court and in the presence

of the said accused.

It must be noted that this article will focus exclusively on witness

anonymity as a means of protection for victim-witnesses and other

witnesses. Although reference will be made to other special legisla-

tive measures of protection – such as the use of intermediaries,8 as

4 Ibid.

5 It should be noted that repeat victimization is not the same as intimidation, although

the same offenders may be responsible for both and the same witness/victim may

be both re-victimised as well as intimidated. In witness intimidation the intent is to

discourage the victim from reporting a crime or cooperating with the prosecution. In

repeat victimization, however, the motive is acquisitive. K Dedel ‘Problem-orientated

Witness Intimidation in Guides for Police, Problem-Specif‌ic Guide Series’, Guide No

42 (July 2006), available at http://www.docstoc.com/docs/6626586/Witness-Intimida-

tion, accessed on 30 November 2009; J Irish, W Magadhla, K Qhobosheane, & G

Newham Testifying Without Fear: A Report on Witness Management and the National

Witness Protection Programme in South Africa Research report written for the Centre

for the Study of Violence and Reconciliation, October 2000 (see J Irish, W Magadhla,

K Qhobosheane & G Newham at http://www.csvr.org.za/docs/policing/testyingwit-

houtfear.pdf, accessed 6 October 2010); S v Staggie & Another 2003(1) SACR 232 (C).

6 Dedel op cit (n5) 6.

7 Sections 152, 153, 154, 158 – 167 & 170A – 173 of the Criminal Procedure Act 51 of

1977.

8 Section 170A.

352 SACJ . (2010) 3

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