A legal and Parliamentary think-tank, Veritas, has said The Judicial Laws Amendment Bill needs extensive amendments to make it comply with the Constitution.
The Judicial Laws Amendment Bill was gazetted on the 29th of April and passed its first reading in the National Assembly on the 21st of June 2022, and then was referred to the Parliamentary Legal Committee.
Veritas concludes that the main objective of the Bill seems to be to expedite legal proceedings and reduce legal costs. The amendments it proposes may go some way towards achieving this objective but, they will do so at the expense of fundamental human rights.
Discussing proposed amendments to the Criminal Procedure and Evidence Act, Veritas in its Bill Watch 34/2022 said the amendments will see Remand and bail proceedings held virtually.
Veritas noted that there is no requirement that the accused and the prosecutor must consent before proceedings can be held virtually.
It also noted that there is also no requirement that the accused person and the prosecutor must be able to see each other, or that they must be able to see the magistrate or judge presiding over the proceedings.
As with all the other provisions for virtual hearings in the Bill, there is no provision for the public to sit in or observe the proceedings.
Veritas says this proposed amendment is unconstitutional and undesirable for the following reasons:
Section 50(5)(e) of the Constitution gives detained persons the right to challenge the lawfulness of their detention in person before a court. A person who challenges his or her remand while sitting in prison looking at a computer screen cannot be said to be doing so in person before a court, particularly if he or she cannot see the judge or magistrate or the prosecutor.
Remand and bail proceedings, though they are pre-trial proceedings, are not mere formalities. They affect the liberty of accused persons.
Because they affect personal liberty, remand and bail proceedings are of vital importance to the public. Public scrutiny may be the only safeguard preventing accused persons from being kept in detention for months and years on end awaiting trial.
This amendment must either be deleted entirely from the Bill or else altered to require accused persons to consent before their remand and bail proceedings can be held virtually, and to enable the public and press to monitor the proceedings.
Veritas says the Bill needs extensive amendment to make it comply with the Constitution and with the basic concepts of fairness that lie at the heart of our procedural law.