n South African Journal of Criminal Justice - 'Stacking the odds against the accused' : appraising the curial attitude towards amici participation in criminal matters
|Article Title||'Stacking the odds against the accused' : appraising the curial attitude towards amici participation in criminal matters|
|© Publisher:||Juta Law Publishing|
|Journal||South African Journal of Criminal Justice|
|Affiliations||1 University of KwaZulu-Natal|
|Publication Date||Jan 2011|
|Pages||19 - 32|
The law governing amicus curiae participation in criminal matters was recently laid down in S v Basson: Ex Parte Institute for Security Studies which was followed by S v Zuma. It essentially requires the court to be cautious in not allowing amicus curiae participation where this will stack the odds against the accused. Looking at the history, primary role and utility of amici curiae 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 amicus curiae must embark on a three-stage enquiry. The first and obvious question is whether amicus curiae 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 Basson rule. In order to respect fair trial rights, an amicus curiae 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-prosecution amicus can be balanced by a pro-accused amicus thus avoiding stacking the odds against the accused.
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