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3.1 During the past five years significant changes have been brought about in the administration of criminal justice. Many of them are directed at the problems caused by the adversarial mode of criminal procedure as outlined above. The reforms developed along two diverging tracks - the one seeking to strengthen the adversarial process, the other leading to a more inquisitorial process. In this section the broad outlines of these developments will be sketched.
3.2 The entrenchment of the right to legal aid in the Bill of Rights sought to ensure equality of arms within an adversarial trial. Section 35(3)(g) entitles an accused to have a legal practitioner assigned at State expense "if substantial injustice would otherwise result". Moreover, all accused must be informed of this right. This duty is also reflected in section 73(2A) of the Criminal Procedure Act.[29] While the Constitutional Court has not yet pronounced definitively on the meaning of substantial injustice,[30] the present norm is to apply a multi-factor approach: the circumstances of the case, the ability of the accused and the seriousness of the offence may give rise to the right.[31]
3.3 This right does not solve the problem of the undefended accused. The right to legal aid applies only to those cases which may result in "substantial injustice". While a significant number of accused are currently represented by legal aid lawyers, a large number of accused still have to fend for themselves. Moreover, because of the high cost of legal aid there are considerable financial and political pressures to cut back on the provision of legal aid.[32] The result will be that a larger percentage of accused will be undefended.
3.4 The difficulties encountered by undefended accused have been acknowledged over the years and provision has been made for some judicial assistance. Within the overall duty to ensure a fair trial, presiding officers are obliged to facilitate accused participation in the proceedings as adversaries by advising them of their rights and duties and assisting them in their exercise.[33] This duty has also been entrenched in the Bill of Rights. The Bill of Rights is premised on the notion that accused persons are not necessarily aware of their constitutional rights.
3.5 Section 35(4) provides accused persons with a general right to be informed of their various rights in terms of the section. The duty to give information (to explain rights) is also found in specific provisions, such as the right to legal aid.[34] There are, however, limits to the extent to which this duty can ameliorate the difficulties of undefended accused. The information provided is often technical, and having access to information does not mean that it can be used skilfully.[35] The rules relating to hearsay illustrate the limits of equipping an undefended accused with legal knowledge.
3.6 In S v Ngwani,[36] Didcott J held that where the prosecution sought to admit hearsay evidence in terms of section 3(1)(c) of the Law of Evidence Amendment Act of 1988,[37] the accused, who was unrepresented,
had to have the effect of the subsection fully explained to him, in contrast with the legal position where it is not invoked. In particular, he had to be heard on the important one raised by para (vi),[38] the issue whether he would be prejudiced were it not to be invoked.
3.7 While the logic of the adversarial process imposes such a duty on the judicial officer, in practice it is most unlikely that an undefended accused, even if properly informed, would be able to employ this knowledge effectively. There may be fairness in form but not in substance.
3.8 Perhaps the most dramatic change in criminal law practice was the recognition of the right of access to information held in the police docket. In Shabalala v Attorney-General of the Transvaal[39] the Constitutional Court based prosecution disclosure on an accused's right to a fair trial. With access to state witness statements and other unused materials, defence counsel is entitled to be fully informed of the case to meet. Not only can the reliability and credibility of state witnesses be challenged in the light of inconsistent statements, but also defence strategies can be devised. For prosecutors it became an onerous burden and in the case of bail hearings, the right is now severely restricted.[40]
3.9 Prosecution disclosure can be viewed from two angles. One can argue that it is indicative of a more inquisitorial mode of procedure. The information gathered by the prosecution is no longer its property; the police docket becomes a dossier open to the defence. More important, availability of prosecution information furthers truth finding. As it was said in the leading Canadian decision of R v Stinchcombe:[41]
The principle has been accepted that the search for the truth is advanced rather than retarded by disclosure of all relevant material.
On the other hand, it could be said that disclosure is simply a reaffirmation of the adversary process in that it seeks to establish equality of arms. Whichever way one looks at prosecution disclosure, it has changed the position of the prosecutor as an adversary. Although the rhetoric has always been that the prosecutor was a disinterested combatant with only an eye for the truth, it was an unenforceable role as long as the police docket remained privileged. With full disclosure, it is for all to see whether the prosecution is indeed performing its impartial role.
3.10 Endowing judicial officers with inquisitorial powers is not a new phenomenon. A presiding officer has the power to question witnesses, and section 167 of the Criminal Procedure Act[42] empowers the court to examine any person other than the accused who has been subpoenaed to attend or who happens to be attending the proceedings, and to recall any witnesses who have testified. The court is obliged to do so if it appears "essential to the just decision of the case", and commits an irregularity if it fails to do so.[43] Section 186 of the CPA, in turn, imposes a similar power and duty with regard to the calling of witnesses.
3.11 The entire trial is not conducted in an adversarial fashion. The sentencing process, for one, is not conducive to adversarial argument;[44] the role of the court must be inquisitorial in order to establish an appropriate sentence.[45] In S v Siebert,[46] Olivier JA captured this duty as follows:
In this field of law public interest requires the court to play a more active inquisitorial role. The accused should not be sentenced unless and until all the facts and circumstances necessary for the responsible exercise of such discretion have been placed before the court.
3.12 This duty also applies to defended cases, because, in the words of Olivier JA, "[a]n accused should not be sentenced on the basis of his or her legal representative's diligence or ignorance."[47]
3.13 Appellate proceedings have also been likened to an inquisitorial process;[48] the bench engages with counsel on the issues which it would like to hear. The extent to which judges participate in the hearing often amounts to a "dialogue" between judges and counsel which closely resembles an inquisitorial hearing. The appeal hearing thus becomes "a joint problem-solving enterprise between counsel and the judges."[49]
3.14 Bail proceedings have also been placed in an inquisitorial mould. Commencing with the decision in Ellish v Prokureur-Generaal, Witwatersrand,[50] and followed by Parliament,[51] bail proceedings were cast within an inquisitorial mode. In S v Dlamini et al[52] Kriegler J described the underlying policy as follows:
Although societal interests may demand that persons suspected of having committed crimes forfeit their freedom pending the determination of their guilt, such deprivation is subject to judicial supervision and control. Moreover, in exercising oversight in regard to bail the court is expressly not to act as a passive umpire. If neither side raises the question of bail, the court must do so. If the parties do not of their own accord adduce evidence or otherwise produce data regarded by the court as essential, it must itself take the initiative. Even where the prosecution concedes bail, the court must still make up its own mind. In principle, that policy of the CPA, and the consequential provisions mentioned, are in complete harmony with the Constitution.[53]
3.15 The endorsement of an inquisitorial procedure in bail hearings as being in harmony with the Constitution, is a significant development. The inquisitorial duty cuts two ways - the court carries the responsibility of ensuring that those who should be released on bail are so released, and that those who are not are detained despite what the parties may have agreed to among themselves. The active pursuit of the interest of justice - the basis of the bail decision - becomes the court's duty; and the adversarial process does not provide the correct answer.
3.16 Flowing from recommendations of the South African Law Commission,[54] recent amendments to the Criminal Procedure Act[55] have given further legislative form to the presiding officer's management role of court proceedings.[56] To ensure the expeditious completion of proceedings, section 342A mandates the court to "investigate any delay in the completion of the proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness."[57]
It is important to note that the court is not merely required to give effect to an accused's constitutional right to a speedy trial[58] but to see to the expeditious completion of the proceedings in the interests of all parties concerned. Note further that the court is bound to "investigate" any unreasonable delay; it may not remain passive until one of the litigants complains about a delay caused by the other party.[59] The Act provides a court with specific sanctions in order to eliminate or prevent delay and prejudice, including costs orders against the State and the defence.[60]
3.17 Linked to the overall duty to secure the expeditious completion of proceedings, the court's powers to curtail and direct cross-examination have been spelled out.[61] The court may, if it appears cross-examination is being "protracted unreasonably and thereby causing the proceedings to be delayed unreasonably" request the cross-examiner "to disclose the relevancy of any particular line of examination and may impose reasonable limits" with regard to both the length and line thereof.[62] While these powers are implicit in the common law,[63] the amendment is significant as it indicates that the legislature is willing to articulate the managerial role of presiding officers in detail.
3.18 The most extensive embrace of an inquisitorial mode of procedure has been the recent proposals by the South African Law Commission's Project Committee on Juvenile Justice.[64] With the aim of diverting as many juveniles as possible from pretrial detention and the criminal courts, a specially trained magistrate, called the "inquiry magistrate", is to fulfil the primary function of making placement decisions (pending plea, trial or resolution of a matter) and final diversion decisions.[65] All cases, bar minor ones where diversion decisions are made by the police or probation officers, are to be brought before the inquiry magistrate who must hold a preliminary inquiry. At the inquiry conducted by the magistrate in his or her chambers, a free system of evidence (which includes the child's previous convictions or evidence of previous diversion) is recommended.[66] Where a case cannot be diverted because the child contests guilt, the magistrate must decide whether there is sufficient evidence to put the child on trial.
3.19 This proposal was drafted fully alive to South Africa's current infrastructure and available human and financial resources and conscious that the creation of completely new structures would have been far too expensive and ultimately unrealistic.[67] Within these constraints the Committee was of the view that the practicable way of protecting the best interest of the child was to place its faith in an active inquisitorial judicial officer.
3.20 The unmistakable trend that is emerging from these developments is that, apart from the right to legal aid, the trial process is becoming less party-centred. Even where the accused persons are represented, the court is playing an increasingly important role in establishing a factual basis for making decisions with regard to bail and sentencing, ensuring that the principles of a fair trial are observed and that the court process is managed efficiently. With regard to establishing the truth as to the guilt or innocence of an accused person the development has been uneven. While the full disclosure of the police docket has certainly increased the truth-finding capacity of the proceedings, the lack of reciprocal defence disclosure tends to distort the process.
3.21 The question that this paper seeks to address is whether truth-finding instruments, including giving the presiding officer a more inquisitorial role, should be further developed with respect to the focal point of the trial - the determination of guilt or innocence. In answering this question it is useful to reflect on some of the developments that are taking place in international law and domestic jurisdictions in this regard.
[29] Inserted by s 2 of Act 86 of 1996. See South African Law Commission 1995, § 5.39.
[30] S v Vermaas 1995 7 BCLR 851 (CC).
[31] See generally Steytler 1998, 307-313.
[32] Legal aid budgets have also come under strain in Australia, for example. See Giddings, Dewar & Parker 1999, 69.
[33] See generally Steytler 1988, 222.
[34] S 35(3)(g).
[35] Steytler 1987, 505.
[36] 1990 1 SACR 449 (N).
[37] Act 45 of 1988.
[38] "any prejudice to a party which the admission of such evidence might entail".
[39] 1995 12 BCLR 1593 (CC).
[40] S 60(14) CPA, inserted by Act 85 of 1997. In S v Dlamini et al 1997 7 BCLR 771 (CC) § 84 Kriegler J for a unanimous Constitutional Court, gave a restricted reading to s 60(14) which undercut the absolute language of the legislation.
[41] (1991) 68 CCC (3d) 1 (SCC).
[42] Act 51 of 1977.
[43] S v Mayiya 1997 3 BCLR 386 (C) 395C.
[44] Jackson and Doran (1995, 59) writes that "the judge's role changes from one resolving conflict between two sides into a problem-solving mode requiring the implementation of sentencing policy."
[45] A more traditional adversarial process was followed in S v Hlangomva 1999 1 SACR 173 (E). An undefended accused volunteered information about his previous conviction after the prosecutor choose not to prove any. On review the judge held that the magistrate did not have the licence to pose questions relating the precise nature, dates and other information of the previous conviction. The magistrate was restricted to invite the prosecutor to reconsider his stance. If the prosecutor declined to do so, the magistrate was compelled to treat the accused as a first offender.
[46] 1998 1 SACR 554 (A) 558i-559a.
[47] At 559b.
[48] Malleson 1997.
[49] Malleson 1997, 178.
[50] 1994 5 BCLR 1 (W). Followed in Prokureur-Generaal, Vrystaat v Ramakhosi 1996 11 BCLR 1514 (O); Bolofo v Director of Public Prosecutions 1997 8 BCLR 1135 (Lesotho CA).
[51] S 60(3) Criminal Procedure Act, inserted by s 3 of the Criminal Procedure Second Amendment Act 75 of 1995.
[52] 1999 7 BCLR 771 (CC) § 10.
[53] § 10.
[54] South African Law Commission 1995.
[55] Act 86 of 1996.
[56] See also South African Law Commission's proposal regarding the role of the court in plea bargaining (South African Law Commission 1995, § 10.85.
[57] S 342A(1).
[58] S 35(3)(d) Constitution.
[59] See S v Motsasi 1998 2 SACR 35 (W).
[60] S 342A(3).
[61] See recommendation of the South African Law Commission 1995, § 6.37.
[62] The court may also order that any submission regarding relevance of cross-examination be heard in the absence of the witness (s 166(3)(b) CPA).
[63] Pretorius 1997, 256-260.
[64] Project 106.
[65] § 9.3.
[66] § 9.26.
[67] § 9.1.
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