n South African Journal of Criminal Justice - 'Stacking the odds against the accused' : appraising the curial attitude towards participation in criminal matters

Volume 24, Issue 1
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



The law governing participation in criminal matters was recently laid down in which was followed by It essentially requires the court to be cautious in not allowing participation where this will stack the odds against the accused. Looking at the history, primary role and utility of and how the courts in Canada and the US treat their participation particularly in criminal matters, it is suggested that South African courts should not hastily disallow their participation in criminal matters. A court faced with an application by an aspirant must embark on a three-stage enquiry. The first and obvious question is whether will aid it not to err. Secondly, will its participation compromise the parties' fair trial rights? And lastly, are there ways of allowing its participation whilst still respecting the parties' rights? The paper argues for a liberal application of the rule. In order to respect fair trial rights, an can be allowed to participate only if the application is made timeously - before the defence positions itself. It can also be limited to written submissions to avoid delays and costs. As far as equality of arms is concerned, a pro-prosecutioncan be balanced by a pro-accused thus avoiding stacking the odds against the accused.

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