Right to choose

In Davids v S [2022] 4 All SA 67 (WCC) where a court building is situated does not compromise the institutional and individual independence of the court and/or the judge.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Criminal law and procedure - Right of accused to choose where trial is held: The applicant in Davids v S [2022] 4 All SA 67 (WCC) sought an order that the criminal proceedings against him and his co-accused be heard at the Western Cape Division of the High Court rather than at the circuit court at Pollsmoor Correctional Centre.

The applicant’s objections related to the stigma attached to the Pollsmoor Circuit Court as it was part of the prison complex. The fact that members of the public would sit in another building viewing the trial proceedings via CCTV was said to give rise to an aura of a secret court and undermined the right to be tried in an open court.

The critical questions were whether the hearing of the trial in the Pollsmoor Circuit Court would infringe on the applicant’s right to a fair trial. The second question was whether the architectural design of the court created a perception of bias against the applicant and compromised the fairness of the trial. Section 35(3)(c) of the Constitution provides that every accused has the right to a fair trial, which includes the right to a public trial before an ordinary court.

Section 7(1) of the Superior Courts Act 10 of 2013 deals with a Judge President’s power to establish circuit districts for the adjudication of civil or criminal matters. The respondent submitted that the circuit courts, such as that at Pollsmoor, were meant to assist with the speedy finalisation of cases. The sitting of a court in a building, which has the aesthetics of a courtroom, and which is resourced with adequate offices, which are independent from each other to house the court officials, cannot be said to be offending against the right to a fair trial merely because it is situated in a correctional facility. The fact that a court is held in a building situated within a prison complex does not compromise the institutional and individual independence of the court and/or the judge. Judicial officers are obliged to conduct criminal trials fairly, impartially and with open minds.

The application was dismissed.

Merilyn Rowena Kader
Legal Editor at LexisNexis