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Refereed articles

Procedural explanations and choices: The undefended accused in a minefield

Deon Erasmus introduces his evaluation of the South African criminal trial process, which is governed by the Criminal Procedure Act 51 of 1977, by observing that the oral nature of a trial is one of its essential features. He then discusses the procedural explanations given to the accused and notes that there are important and informed procedural choices that the accused is required to make, which may have a major effect on the outcome of the trial.

The “minefield of hard choices” discussed in the article is said to be exacerbated when an accused is undefended, whereas the concept of equality before the law, it is argued, must at the very least mean a person should not be denied effective access to the courts as a result of poverty. Research findings have shown that accused persons understood a mere 37% of what was explained to them in procedural explanations. However, a large number of accused persons in District and Regional courts are unrepresented either because they had not applied for legal assistance or would not have qualified for legal aid if they had applied. The article notes that, although the number of undefended accused has declined significantly since 1993, a substantial number of accused persons in the District and Regional Courts are still undefended.

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