1
CPR3701
CRIMINAL PROCEDURE
Assignment 2
1st SEMESTER 2020
NB: Detailed answer below, with full reference and footnotes.
, 2
CPR3701 ASSIGNMENT 02
QUESTION 1
1) Open court
In terms of section 35(3)(c) of the Constitution1 an accused’s right to a fair trial includes the
right to a public trial. Therefore, the general principle is that the conduct of criminal trials
should take place in open court and in the presence of the accused. This means that the
public is generally entitled to be present.2 The concept of courts open to the public
underscores the more comprehensive notion of open justice. It embraces issues relevant to
an open democracy, such as fairness, accessibility, transparency, accountability of the
judicial system and freedom of expression.3
In Geiges4 the court held that the principle of open justice is based on two main
considerations, the notion of a fair trial, of which openness is regarded as an important
component and consideration of publicity, members of the public are entitled to be informed
of the conduct of criminal proceedings, and the administration of justice benefits from the
publicity given to such proceedings.
There are exceptions to the rule of open court. The Criminal Procedure Act 51 of 1977,
specifically section 153, provide for exceptions to the open court or public trial rule and the
resulting publication of identities and information regarding witnesses and accused.
Section 153(3) provides for the exclusion of the public at the request of a complainant or a
minor’s parent or guardian, where an accused is charged with committing or attempting to
commit any sexual offence as contemplated in s 1 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, towards or in connection with any other
person, or extortion, either at common law or in terms of a statute, which inspired fear in
the mind of such complainant.
1
Constitution of the Republic of South Africa 1996.
2
Magqabi v Mafundityala 1979 (4) SA 106 (E).
3
Joubert JJ (ed) Criminal Procedure Handbook 12ed (Juta Cape Town 2016) 314.
4
Geiges 2007 (2) SACR 507 (T).
CPR3701
CRIMINAL PROCEDURE
Assignment 2
1st SEMESTER 2020
NB: Detailed answer below, with full reference and footnotes.
, 2
CPR3701 ASSIGNMENT 02
QUESTION 1
1) Open court
In terms of section 35(3)(c) of the Constitution1 an accused’s right to a fair trial includes the
right to a public trial. Therefore, the general principle is that the conduct of criminal trials
should take place in open court and in the presence of the accused. This means that the
public is generally entitled to be present.2 The concept of courts open to the public
underscores the more comprehensive notion of open justice. It embraces issues relevant to
an open democracy, such as fairness, accessibility, transparency, accountability of the
judicial system and freedom of expression.3
In Geiges4 the court held that the principle of open justice is based on two main
considerations, the notion of a fair trial, of which openness is regarded as an important
component and consideration of publicity, members of the public are entitled to be informed
of the conduct of criminal proceedings, and the administration of justice benefits from the
publicity given to such proceedings.
There are exceptions to the rule of open court. The Criminal Procedure Act 51 of 1977,
specifically section 153, provide for exceptions to the open court or public trial rule and the
resulting publication of identities and information regarding witnesses and accused.
Section 153(3) provides for the exclusion of the public at the request of a complainant or a
minor’s parent or guardian, where an accused is charged with committing or attempting to
commit any sexual offence as contemplated in s 1 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, towards or in connection with any other
person, or extortion, either at common law or in terms of a statute, which inspired fear in
the mind of such complainant.
1
Constitution of the Republic of South Africa 1996.
2
Magqabi v Mafundityala 1979 (4) SA 106 (E).
3
Joubert JJ (ed) Criminal Procedure Handbook 12ed (Juta Cape Town 2016) 314.
4
Geiges 2007 (2) SACR 507 (T).
