Law of Procedure and Law of Evidence

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Browsing Law of Procedure and Law of Evidence by Subject "Criminal procedure -- South Africa"

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    Simplification of the South African criminal trial process: a psycholinguistic approach
    (University of the Free State, 1998-11) Erasmus, Deon; Verschoor, T
    English:In this research the validity of the following two hypotheses are tested within the broad framework of the right of an accused person to a fair trial, as embodied in section 35 of the Constitution of the Republic of South Africa, Act 108 of 1996: .. The criminal trial process is a communicative process in essence which aims at ensuring a fair trial for undefended accused persons; and • Ineffective communication takes place during the criminal trial process. The concept of a fair trial is discussed within a jurisprudential and communicative framework. In order for the criminal trial process to comply with the constitutional requirement of a fair trial the process itself has to be fair. The aim of the criminal trial process is thus to ensure a fair trial. However, in order to be fair, the process must be intelligible and accessible to all participants, especially in the case of undefended accused persons. It is pointed out that the criminal trial process is indeed a communicative process and that various factors impact negatively on communication."Distorted" communication is one of the factors leading to an undefended accused not receiving a fair trial. The criminal trial process is identified as a primarily oral process. Procedural explanations given to accused persons during the process are identified and the content of these procedural explanations is ascertained within the framework of case law and legal literature. These procedural explanations are indeed instances of communication between the presiding officer and the undefended accused. It is accordingly submitted that the first hypothesis is supported by both the positive law and communication theories. In order to test the validity of the second hypothesis, a field study was undertaken, employing a qualitative research methodology. Ten sample cases were identified and attended at court 30, Gelvandale Magistrate's Court, Port Elizabeth. The undefended accused persons in those cases were chosen as subjects of the empirical research. The purpose of the field study was to determine the level of intelligibility of procedural explanations afforded to the subjects by the presiding officer. In order to evaluate the information gathered during the field research, a norm to test the intelligibility of the procedural explanations had to be adopted. After evaluating available norms, the psycholinguistic approach of the Charrows was adopted. The performance of the subjects who took part in the field study was evaluated. It became evident that the subjects who took part in the field study, on average, understood only 37% of the procedural explanations afforded to them by the presiding officer. It is accordingly submitted that highly ineffective communication took place during the field research and the second hypothesis is supported by the results of the field study. The low level of intelligibility of the procedural explanations may have the result that on average, the undefended accused persons who took part in the research project did not receive a fair trail. Suggested instances of remedial action are accordingly advanced. It is suggested inter alia that legal aid should be afforded to undefended accused persons on a much larger scale and that a multi-disciplinary task team be appointed to re-address the position of the undefended accused.