IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: CC08/2018
In the matter between:
THE STATE
And
ELTON LENTING AND 19 OTHERS ACCUSED
JUDGMENT
LEKHULENI J:
Introduction
[1] The State brought an application for a hybrid hearing of this matter, akin to the
one it filed at the beginning of this trial. For completeness, at the beginning of this
trial, Mr Damon, appearing on behalf of the State, applied in terms of s 74(1)(b) 1 and
1 Section 74(1)(b) provides: ‘If the High Court, in any proceedings before it, is satisfied that —
(i) it would be in the interest of justice; or
(ii) there is a likelihood that harm may ensue to any person as a result of the proceedings being open,
it may direct that such proceedings be held behind closed doors and that the public or any category
thereof shall not be present at such proceedings or any part thereof.
74(2) of the Prevention of Organised Crime Act 121 of 1998 (POCA) that these
proceedings be held behind closed doors in respect of civilian witnesses as provided
for in s 74(1)(b)(i) of POCA. Mr Damon also applied in terms of s 158(2) of the
Criminal Procedure Act 51 of 1977 (‘the CPA’) that the evidence of all civilian
witnesses in this case be taken by means of a closed -circuit television or a similar
electronic media. Alternatively, counsel proposed that witnesses testify only in the
presence of the accused to whom the charges pertain. Counsel submitted that
accused persons unaffected by specific testimony could remain at Pollsmoor Prison
and attend the proceedings virtually via electronic media platform. In simple terms,
the State sought an order that only the accused relevant to the day's testimony
appear in person, while all others join virtually from prison.
[2] After considering the matter, I dismissed the State’s application. I indicated to the
parties that I will deal with the matter on a case -by-case basis in respect of each
witness. I also indicated to the parties t hat, if necessary, in the future, I will
reconsider the State’s application for a virtual hearing of the matter.
The present application
[3] Recently, Mr Damon submitted that the interest of justice now warrant s that the
Court grants the application f or the virtual presence of accused 3 to 20. The State
further requested for that the virtual attendance of accused 3 to 20 continue until the
conclusion of the cross -examination of accused 1 and 2. Specifically, the State
sought an order for accused 1 and 2 to attend the proceedings in person, while
accused 3 to 20 remain at Pollsmoor Prison, participat ing in these proceedings via
an audiovisual link. Mr Damon further contended that, upon the conclusion of the
relevant cross-examination, this Court should r evisit the issue to determine whether
to extend the proposed order or return to the conventional proceedings.
to extend the proposed order or return to the conventional proceedings.
[4] Mr Damon developed these submissions in the course of his argument. He
submitted that the relief sought by the State is interlocutory and the Court can revisit
(c) An application for proceedings to be held behind closed doors may be brought by the National
Director, the curator bonis referred to in section 28 or 42 and any other person referred to in
paragraph (b) (ii), and such application shall be heard behind closed doors.
or vary its order at any stage of the proceedings. Mr Damon further contended that
the necessary arrangements relating to the equipment for the virtu al hearing have
been finalised with the Head of Prison for accused 3 to 20 to remain at Pollsmoor
and be present virtually when accused 1 is being cross -examined. It was submitted
that the accused will have full audio -visual access to the courtroom, ensuri ng their
effective participation in the proceedings.
[5] The State’s application was predicated substantively on the presence of a rival
group of accused appearing before Kusevitsky J, whose simultaneous presence in
this Court was submitted to be untenable. Mr Damon highlighted significant logistical
constraints in having the two cases heard at the same time in this Court. In addition,
the State cited a recent stabbing incident involving members of the alleged rival
group, which resulted in accused 3 and 13 sustaining severe injuries. This violence
caused the matter to be postponed as all the accused could not be brought to Court.
On subsequent dates, when the accused were brought to Court, the Court invoked s
159 of the CPA. It excused accused 3 and 13, who were recovering from their
serious injuries.
[6] Mr Damon contended that there is a likelihood of further assault between the
alleged rival group should this matter continue simultaneously with the trial of the
rival group (‘the Mobsters’), appearing before Judge Kusevitsky. Mr Damon
emphasised the necessity of preventative measures to ensure no loss of life occurs
while these matters are being tried. Counsel pointed out that in both these matters,
extra police officers and security had to be present, as the court orderlies of the High
Court do not have suff icient human resources to secure all the accused. Counsel
argued that transporting both groups to the High Court would present a significant
logistical problem. The factor of logistic problems would entail a high probability that
logistical problem. The factor of logistic problems would entail a high probability that
this matter would be delay ed, as the ‘Mobsters’ group appearing before Judge
Kusevitsky would be transported first, with the accused in this matter to follow later,
and this is likely to cause a delay. Moreover, the Court will be required to adjourn
early because all the accused (t he two rival groups) will have to be transported back
to Pollsmoor in time.
[7] In addition, Mr Damon referred the Court to the accused’s unbecoming conduct
during the court proceedings in support of his application. Counsel further referred
the Court to the directive issued by the former Judge President of this Division in
2021 during the pandemic period which provided that for purposes of these
directives, the words presence of the accused, referred to in s 158(1) of the CPA,
shall be deemed to include the virtual presence or the ability of an accused person to
participate in proceedings electronically, together with their legal representatives and
or witnesses throughout the proceedings, some or all being virtually present. Mr
Damon implored the Court to grant the State's application.
Principal submissions by the counsels for the accused
[8] The 20 accused, through their legal representatives, opposed the application. Mr
De Villiers, counsel for accused 1, 2 and 3, submitted that from his reading and
understanding of s 159A(2)(e) of the CPA, an audiovisual link may only be used for a
further postponement or a consideration of release on bail and not where a trial is
running. To this end, counsel argued that s 158 that the State is relying o n cannot be
used for the purpose of the application. Mr De Villiers implored the Court to invoke
the provisions of s 342A of the CPA and investigate the delay in this case, which he
placed at the door of the State. He prayed the Court to dismiss the State’ s
application. The other defence counsels aligned themselves with Mr De Villiers'
submissions. In addition, Mr Strauss, counsel for accused 4 and 15, submitted that a
ruling that only a few of the accused should be present physically in Court while the
others attend virtually will not be in the interest of justice, and the accused will see
this as a n infringement of their right to be physically present in Court to hear the
evidence.
[9] While Mr Badenhorst, counsel for accused 5, 9 and 12, shared the s entiments of
[9] While Mr Badenhorst, counsel for accused 5, 9 and 12, shared the s entiments of
his colleagues and submitted that the State's request will infringe on his clients’
constitutional rights, as it will be difficult for them to consult with the accused if they
are not at Court. On the other hand, Mr Van Zyl, counsel for accuse d 6, 10 and 16,
opposed the State’s application . Mr Van Zyl submitted that his clients were
concerned that if the application is granted, they will not be able to give instructions
timeously. He implored the Court to dismiss the application. Mr Johnson, on behalf of
the accused 8 and 17, argued that the Constitution mandates, in terms of s 35(3),
every person the right to a fair trial. According to counsel, that’s where it all starts. Mr
Johnson contended that s 35(3)(e) of the Constitution, which is intert wined with the
right to a fair trial, mandates that the accused should be present at Court when the
matter is tried. Mr Johnson argued that the State’s application seems to be hinged
on the transportation of the accused to Court. Counsel submitted that if the problem
is about transporting the accused to court with their rival group, that issue can be
resolved by keeping the two factions apart.
[10] Mr Klopper, counsel for accused 14, 18, 19 and 20, submitted that his clients
wish to be physically presen t in Court to follow the proceedings . Mr Klopper aligned
himself with the argument submitted by his colleagues. However, on the
interpretation of s 158(1) of the CPA, Mr Klopper submitted that if one considers
what it means to be present nowadays, it means also to be present virtually. Counsel
highlighted that by using the various media platforms currently available, it is
possible to convene a meeting in which participants from different parts of the world
can engage and be regarded as virtually present. In Mr Klopper's assessment, a
broad interpretation of ‘presence’ may encompass people who participate in a
meeting via virtual means or other media. This interpretation , according to Mr
Klopper, reflects a more expansive understanding of the term. Conversely, counsel
noted, the traditional legal definition of ‘presence’ requires physical attendance,
meaning a person must be physically present at the site where the event is taking
place.
The relevant legal principles
[11] The general principle is that criminal trials should be held in open Court and in
the presence of the accused. The constitutional right to be present at trial is reflected
in s 35(3) of the Constitution, which sets out the requirements for a fair trial in
in s 35(3) of the Constitution, which sets out the requirements for a fair trial in
criminal proceedings. A crucial component of the right to a fair trial is the s 35(3)(e)
right to be present when tried, which is closely linked to s 35(3)(i) right to adduce and
challenge evidence, and the right to a publi c trial before an ordinary court in s
35(3)(c) of the Constitution . A public hearing requires that all proceedings be
conducted in open Court. However, sections 170A and 158(2) provide for certain
complainants to give evidence in a separate room outside th e presence of the
accused. These sections do not violate the accused’s right to be physically present.
[12] Furthermore, in Nel v Le Roux NO,2 the Constitutional Court noted that there are
well-recognised exceptions to the general rule that criminal proceedings should be
conducted in open court. Steytler points out that a ‘public trial’ should not be
interpreted literally, and the openness of the proceedings should be assessed as a
whole.3 Steytler identifies five broad areas of justification for in camera proceedings
that override the right to a public trial and are recognised internationally in criminal
proceedings, namely: in the interests of s tate security, good order, public morals, or
the administration of justice. In such cases, the Court may direct that the
proceedings be held in camera and that the public, or a class thereof, should not be
present.4
[13] On the one hand, the general principle that the accused must be ‘present in
court’ for his or her trial finds statutory expression in s 158(1) of the CPA. Section
158(1) provides that ‘except as otherwise expressly provided by the Act or any other
law, a ll criminal proceedings in any court shall take place in the presence of the
accused. This would also include the postponement of cases against the accused.
Section 158(1) is peremptory. Neither an accused nor his legal representative can
waive this fundamental right.5 The requirement that the accused should be present is
applicable until the trial is completed. 6 The accused must generally be present at all
stages of the proceedings including in inspection in loco proceedings. 7 In S v
Zenzile,8 this Court held that this right extends to the right to participate in the
reconstruction of a lost trial record.
2 1996 4 BCLR 592 (CC) 11.
3 Steytler N Constitutional Criminal Procedure : A Commentary on the Constitution of the Republic of
South Africa, (1998) at 251 Butterworths, Durban.
South Africa, (1998) at 251 Butterworths, Durban.
4 Steytler N Constitutional Criminal Procedure: A Commentary on the Constitution of the Republic of
South Africa, (1998) at 247 Butterworths, Durban.
5 R v Blackbeard 1925 TPD 965). S v Roman 1994 (1) SACR 436 (A).
6 S v Roman and Others 1994 (1) SACR 436 (A) at 442I.
7 R v Makiep 1948 (1) SA 947 (A).
8 2009 (2) SACR 407 (WCC).
[14] Section 158(1) of the CPA is a very important provision in our law, as it ensures
that an accused person knows what the State witnesses are saying about him. 9 It
gives an accused person the right to face his accusers, to cross -examine witnesses,
to give evidence, and to generally participate in the trial. It also enables the accused
to see his accusers as they depose against him and to observe their demeanour
during the trial. The state witnesses must also give evidence in the presence of the
accused. This principle is so fundamental that non -compliance amounts to a failure
of justice. Although the section is peremptory and canno t be waived,10 it recognises
that the accused and witnesses may give evidence by closed -circuit television or
similar electronic media.11
[15] In terms of s 159 of the CPA, the Act allows for the trial and postponement of
cases against an accused person in his or her absence. Section 159 deals with the
circumstances in which criminal proceedings may take place in the absence of the
accused. Sec tion 159(1) provides that if an accused at criminal proceedings
conducts himself in a manner which makes the continuance of the proceedings in his
presence impracticable, the court may direct that he be removed and that the
proceedings continue in his abse nce. Section 159(2) provides that where a co -
accused is absent due to, inter alia, ill -health, a court may authorise the continuation
of the trial in that person’s absence.
Discussion
[16] In this case, the State sought an order that accused 3 to 20 re main in Pollsmoor
court while accused 1 and 2 are in Court during accused 1's cross -examination by
the State. This application was also brought based on the unbecoming conduct of
some of the accused in Court and the fact that another rival group is attendi ng court
proceedings before Kusevitsky J. It is alleged that the rival group severely assaulted
accused 3 and 13 in this matter. These two accused were seriously injured, so much
accused 3 and 13 in this matter. These two accused were seriously injured, so much
so that they had to be excused for weeks in terms of s 159 (2)(a)(i) of the CPA to
attend court proceedings. The state advocate advised the court that the necessary
9 S v Motlatla 1975 (1) SA 814 (T) at 815E.
10 S v Roman and others 1994 (1) SACR 436 (A).
11 See s 158(2) and s 170A of the CPA.
equipment for the audiovisual proceedings is available and that the accused in
Pollsmoor will remain present, hear, observe and participate effectively in the
proceedings through the audiovisual link. According to the state advocate, this action
would significantly address some of the critical challenges that have impeded
progress on this matter over the past five years, since the trial commenced. Counsel
for th e State further emphasised that the two rival groups should not be present
together in the High Court during the hearing of their respective cases. This
precaution is necessary to mitigate the risk of serious consequences, including the
potential harm or death to some of the accused.
[17] What this Court is enjoined to determine pursuant to the State’s application is
whether it can be said that the proceedings are taking place in the presence of the
accused, notwithstanding that they are in Pollsmoor Priso n and attending these
proceedings virtually and not physically in Court. Expressed differently, whether the
rights of accused 3 to 20 would be infringed if they attend court virtually or through
an audiovisual ink during the evidence and cross-examination of accused 1 and 2.
[18] A proper pronouncement on this critical issue lies in the proper examination and
interpretation of the right to a fair trial within the context of s 158(1) of the CPA,
which provides that, unless otherwise provided, all criminal proceedings in any court
shall take place in the presence of the accused. This requires that meaning be
assigned to the language used, of what was intended and what the purpose was of
the provision. The Constitution requires a purposive approach t o statutory
interpretation. 12 The starting point should be s 39(2) of the Constitution which
provides that:
“When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.”
objects of the Bill of Rights.”
12 See National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others 2000 (1) BCLR 39 (CC) at para 24.
[19] In Investigating Directorate: Serious Economic Offences and Others v Hyundai
Motor Distributors: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO
and Others, 13 the Constitutional Court interpreted this provision to mean, inter alia,
that the Constitution re quires judicial officers to read legislation, where possible, in
ways which give effect to its fundamental values and in conformity with the
Constitution.
[20] Mindful of the imperative to read and interpret legislation purposively in
conformity with s 39( 2) of the Constitution, I turn to consider whether s 158(1) also
envisages the presence of an accused person virtually. It bears emphasis that the
phrase ‘in the presence of’ has been interpreted in some cases to mean physical
presence or close proximity .14 In Gulyas v Minister of Law and Order ,15 the court
considered the meaning of the phrase ‘in the presence of’ in the context of s 40(1)(b)
of the CPA. That section deals with the authority of a peace officer to execute an
arrest, without a warrant, where the offence is committed in his presence. The court
accepted that the ordinary dictionary meanings of the phrase indicate that ‘in the
presence of’ a p oliceman means within the eyeshot of that policeman or in his
immediate vicinity or proximity.16
[21] The interpretation presented in the Gulyas matter is significant within its context,
particularly regarding the criteria that establish the lawfulness of an arrest made
without a warrant. In my opinion , different considerations apply in matters that
involve the presence of an accused person at court during the trial. In Natal Joint
Municipal Pension Fund v Endumeni Municipalit y,17 the Supreme Court of Appeal
(SCA) stated:
‘Interpretation is the process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in the light of the
context provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into
13 2000 (10) BCLR 1079 (CC) at para 22.
14 Firstrand Bank Limited v Briedenhann 2022 (5) SA 215 (ECGq) para 29.
15 1986 (3) SA 934 (C)
16 See Firstrand Bank Limited v Briedenhann fn 14 above, para 24.
17 2012 (4) SA 593 (SCA) at para 18
existence. Whatever the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar and syntax; the context in
which the provision appe ars; the apparent purpose to which it is directed and the
material known to those responsible for its production. Where more than one
meaning is possible each possibility must be weighed in the light of all these factors.
The process is objective, not subjective. A sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike results or undermines the apparent
purpose of the document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as reasona ble, sensible or businesslike for the words
actually used. To do so in regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation; in a contractual context it is to make a
contract for the parties other than t he one they in fact made. The 'inevitable point of
departure is the language of the provision itself', read in context and having regard to
the purpose of the provision and the background to the preparation and production of
the document.’
[22] The litera l meaning of the expression ‘in the presence of accused’ within the
context of s 158(1) requires that the court proceedings take place in the physical
presence of the accused. The purpose thereof is to ensure that the accused has the
opportunity to have fi rst-hand knowledge of proceedings which affect his or her vital
interests, such as facing his or her accuser, hearing the case against him or her,
consulting with counsel, cross -examining witnesses, participating in the trial and
raising objections where necessary , having proper observations made of the
demeanour of witnesses and, to make full answer and defence after the close of the
case for the prosecutio n.18 To my mind, these objectives are not compromised if the
case for the prosecutio n.18 To my mind, these objectives are not compromised if the
accused appears virtually in court provided they can be fulfilled through a credible
electronic media to the satisfaction of the court.
[23] I t must be acknowledged that the right of the accused to be present in court
during any proceeding relating to them is a fundamental right and one specifically
protected by s 158(1) of the CPA. However, it must also be acknowledged that what
being present meant in 1996 when the section was introduced in the CPA , is much
different than what it means now. This finding does not seek to water down the
18 R. v. Gibbs, 2018 NLCA 26 para 56.
accused’s right to be present in court. Rather, it suggests that with the evolution of
technology and in our pursuit of effective justice, we should consider that the phrase
‘in the presence of the accused’ can be defined and interpreted in ways that were not
anticipated over thirty years ago. 19 As I see it, the accused's presence via a virtual
platform fulfils the purpose envisaged in s 158(1). Simply put, i t incorporates the
essence of the accused’s presence in court as envisaged in s 158 (1) of the CPA.
The following reasons bear out this conclusion:
[24] There is no substantial difference between the accused's physical presence and
his participation in the proceedings by audiovisual link or videoconferencing. A video
link allows the accused to see and hear what is going on in the courtroom, and the
accused could be seen and heard by the other parties, the judge and the witnesses.
The accused will thus be in a position to listen to the evidence given by the
witnesses and grasp anything capable of refuting their evidence, request leave to
address the Court and make any statement he considers necessary to his defence. It
cannot be said that the accused's physical presence in court alone would ensure the
effectiveness of this right. What is important is the accused's personal and conscious
participation in the pr oceedings. In addition, the court has the power and duty to
ensure that the technical means installed are appropriate to the aims sought to be
achieved and could, if necessary, order the accused to be physically present in the
courtroom during the hybrid sitting.
[25] It bears emphasis that although s 158 of the CPA is peremptory and cannot be
waived, it recognises that the accused and the witness may give evidence by closed-
circuit television or similar electronic media outside the presence of the accused .
Simply put, s 158 supports the use of a virtual platform to expedite the hearing of
criminal matters, prevent unreasonable delay, or save costs. Section 170A of the
criminal matters, prevent unreasonable delay, or save costs. Section 170A of the
CPA also permits certain witnesses to give evidence with the assistance of an
intermediary outside the physical presence of the accused at a place which is
informally arranged to set that witness at ease whenever it appears to the court that
19 See Conference Paper of Judge Wayne Gorman - Provincial Court of Newfoundland and Labrador:
The Virtual Court - The Provincial Court of Nova Scotia, Spring Education Conference 11 June 2021.
it would expose such witnesses to psychological, mental or emotional condition if
they testify in open court.
[26] To my mind, where an accused person is held at a remote location, in this case,
in the court in prison, and can participate virtually in a meaningful and effective
manner in court proceedings, it cannot be said that the proceedings are not taking
place in his presence. The essential reasons for the accused's presence in court can
be fulfilled by alternative methods, provided that no reasonable sense of injustice
arises. If the judge or magistrate can fairly and effectively hear, manage, and decide
the case, then, in my opinion, the objectives served by s 158(1) of the CPA will not
be subverted. An audiovisual link or a credible virtual platform would allow the
accused to o bserve witnesses and hear what is going on in the courtroom, and the
accused himself would be seen and heard by other parties, the Court and the
witnesses.
[27] The defence counsels raised the issue of consultation as a challenging hurdle to
the State’s application. In my view, this problem is not insurmountable.
Arrangements can be made for the accused to confer privately with their counsel
present in court, via a telephone line connecting the court to the prison centre.
Furthermore, Zoom and Microsoft Teams and other virtual platforms now have break
away rooms feature that can be used for consultation purpose s. In other words,
these platforms allow a party to break away from the main line to a different channel
or ‘room’ without being heard by ot hers in the meeting. Thus, where an accused
wants to consult with his attorney, the relevant accused and his legal representative
can be put in a virtual breakaway room where they can talk without being heard by
others and can go back into main virtual roo m when done to join virtual proceedings.
Multiple virtual breakaway rooms are possible on these platforms, and it can be
Multiple virtual breakaway rooms are possible on these platforms, and it can be
directed who goes to which room. It will therefore be easy for the accused and their
lawyers to privately consult whilst on a virtual link . In my view, this is a viable option
to address the consultation and instruction provision concerns raised by Mr
Badenhorst and Mr Van Zyl.
[28] Moreover, on the meaning of ‘in the presence of the accused’, I find the analogy
postulated in the South African Law Reform Commission Report ,20 (SLARC) which
investigated the feasibility of postponing cases via an audiovisual link appropriate to
the circumstances. The SALRC’s postulation underscores Mr Klopper's submissions.
In its report , the SALRC quotes with approval the opinion of Mr Nel, of the National
Prosecuting Authority and notes that the question is not whether the accused is
present at a specific place, but rather whether the accused is present during the
proceedings when their trial is in progress. The report notes, to illustrate this by way
of an analogous situation: When A and B are busy with a television debate, with A in
the SABC Cape Town studio and B in the SABC Johannesburg studio, can one say
that neither was present during the debate? Surely, they were both present during
the debate. It is not their presence a t a specific place that determines whether it was
a fair debate, but the presence of the parties at all times during the debate and the
opportunities they have to observe the proceedings and actively participate in the
debate. As foreshadowed above, Mr Klo pper articulated a similar argument at the
hearing of this application.
[29] I repeat, in an audiovisual link or videoconferencing, the accused would still be
able to listen to the evidence given by the witness and grasp anything said and
dispute the evid ence of witnesses adduced against him . The accused may still
request leave to address the Court and make any submission they consider
necessary for their defence. Using the virtual platform has almost the same benefit
as his physical presence in Court in t hat the accused would have the benefit of
contemporaneous audiovisual transmission of the proceedings. The accused would
have the means of acquiring direct knowledge of all trial issues that involve his
interests. The accused would still participate meanin gfully in the proceedings, in the
interests. The accused would still participate meanin gfully in the proceedings, in the
same way as if he were physically present. Even though the accused will be
physically absent from the courtroom, the proceedings will still be open to the public,
and the media and the public will have access to report on the matter.
20 Project 113 Report the Use of Electronic Equipment in Court Proceedings (Postponement of
Criminal Cases Via Audiovisual Link) at 43.
[30] I must add that in June 2021, this matter was heard in the accused's absence,
when the matter was postponed via the virtual platform. The accused's respective
counsels were in Court, and the accused were in the courtroom at Pollsmoor
Correctional Centre. They effectively participated in the proceedings when the matter
was postponed.
[31] I find the reasoning of the full court in S v M,21 apposite in the present matter. In
that matter, the appellant, a well -versed attorney, appealed against his conviction on
a charge of rape. He contended, inter alia, that he had not had a fair trial, in that the
trial had been conducted in his absence. Dur ing the trial, the parties had agreed that
the complainant's evidence would be held in camera and that the appellant would
take up the position normally taken up by an intermediary. In other words, the
appellant would sit outside of the Court, in the room in which the intermediary and
the witness would normally sit, from where he was both visible and audible to the
Court on a television monitor. However, on his taking up that position, witnesses
would be audible, but not visible, to the appellant. As a comp romise reached by the
parties, the complainant then gave evidence in Court, with the Court able to see the
appellant on the television monitor. However, the appellant was unable to see the
complainant. After the matter was heard, the appellant was subseque ntly convicted
of rape and sentenced to 14 years’ imprisonment.
[32] On appeal against the conviction only, the appellant relied on s 158(1) of the
CPA, which required that all criminal proceedings take place in the presence of the
accused. It was argued before the full court that in these circumstances, the
appellant was deprived of a fair trial because s 158 of the CPA requires that all
criminal proceedings take place in the presence of the accused. Reference was also
made to s 35(3)(e) of the Con stitution of the Republic of South Africa Act 108 of
made to s 35(3)(e) of the Con stitution of the Republic of South Africa Act 108 of
1996, which reads: ‘every accused person has the right to a fair trial, which includes
the right to be present when being tried.
[33] The State's response was that, even if the procedure adopted had con stituted
an irregularity, the conviction ought nonetheless not to be quashed as, in terms of
21 2004 (1) SACR 238 (N).
the proviso to s 322(1) of the CPA, the irregularity had not resulted in a failure of
justice. The defence countered that the irregularity fell within the category of gross
irregularities that, per se, resulted in a failure of justice, and that there was therefore
no need to conduct an enquiry into whether, as a fact, it had resulted in a failure of
justice. The appeal court found that one must look at the circumsta nces and facts of
each case to determine whether it can be said that there was a failure of justice. The
Court considered that there had been no failure of justice in this case as the trial
court was, inter alia, alive to the appellant’s right to a fair tr ial. The Court concluded
that the appellant was correctly convicted and dismissed his appeal against
conviction.
[34] In other words, notwithstanding that the appellant was not physically present in
court, the full court found that in the circumstances of this case, there was not a
failure of justice as the appellant was throughout represented by one of the most
experienced senior counsels in the country. The Court reasoned that, as a
consequence of the arrangement reached, the State withdrew its applicati on for the
complainant to give her evidence through an intermediary on closed -circuit
television. The result was that counsel was able to observe the witness in open
Court, subject her to extensive cross -examination and note at close quarters her
reactions and demeanour.
[35] In my view, this case underscores that a one -size-fits-all approach does not
apply in cases of this nature. One must consider the circumstances of each case to
determine whether the interests of justice demand that a request for an audiovisual
hearing be granted. In the same way, in S v Basson,22 the state applied for the issue
of a letter of request in terms of s 2(1) of the International Co -operation in Criminal
Matters Act 75 of 1996 to procure evidence from two people residing in Florida,
Matters Act 75 of 1996 to procure evidence from two people residing in Florida,
United States of America, by way of commission. The Court held that the evidence of
the two witnesses was indispensable to put the objective facts before the Court and
was not merely a fishing expedition on the part of the State. It granted the State’s
request.
22 2000 (2) SACR 188 (T).
[36] The accused feared for his personal safety to go to the United States when the
evidence was to be taken. As t o the accused's inability to attend the interrogation,
the Court accepted that the accused had reason to fear that he was persona non
grata in the United States and was justified in not attending. The Court found that his
absence in the light of his active involvement in the trial would no doubt be a
disadvantage to him, but with the aid of technology in the form of cell phones,
telefax, computers and the like, the defence team would be able to consult with the
accused in South Africa during the hearing. If , due to the accused's absence, certain
relevant things were not taken up by the defence, that would have to be considered
when the evidence was eventually evaluated. The Court granted an order allowing
the evidence of two witnesses to be taken in America in the accused's absence and
suggested the use of technology to remedy the shortcoming.
[37] Moreover, in S v F ,23 the Court stressed that the right to be present at criminal
proceedings is, however, also not absolute. The Court emphasised that there can be
little doubt that the provisions of s 158(2) allow for a witness to give evidence outside
the presence of the accused. The very application by the State to lead evidence
through the medium of a closed -circuit television system is demonstrative of th e fact
that the State proposes to lead the evidence of its witness outside of the physical
presence of the accused.
[38] In my opinion, the right to be physically present is limited by sections 158(2),
159, and 170A(3) of the CPA. As foreshadowed above, s 158(2) allows the Court, on
application, to order that a witness, irrespective of whether the witness is in or
outside the Republic, give evidence by means of closed -circuit television or similar
electronic media. The section also allows evidence to be given outside the accused's
physical presence. In terms of s 170A(3), if a court appoints an intermediary, the
physical presence. In terms of s 170A(3), if a court appoints an intermediary, the
Court may direct that a witness gives his or her evidence at any place informally
arranged to set that witness at ease. T hese sections limit an accused person's right
to challenge evidence.
23 1999 (1) SACR 571 (C) at 575.
[39] Importantly, sections 159A to 159D of the CPA provide for and regulate the
postponement of criminal proceedings through an audiovisual link. Section 159A of
the CPA provides specif ic types of cases in which the physical presence of the
accused in Court can be substituted with an electronic one through the aid of a
closed-circuit television. Section 159A(3) establishes that any proceedings in terms
of subsection (2) shall be regarded as having been held in the presence of the
accused person if, during the proceedings, that person is held in custody in a
correctional facility; and can follow the court proceedings and the Court can see and
hear the accused person by means of audiovisual link. The remote point shall be
regarded as being a part of the Court.
[40] I see no compelling reason why the deeming provision outlined in s 159A(3)
should not be applied with equal force and significance in both bail and trial
proceedings. Significantly, in terms of s 158(2) an accused’s physical presence in
the court room may be dispensed with during the giving of evidence by the accused
or a witness . In my opinion , there is no difference in a case where an accused
appears through a virtual platform and the situation provided for in s 158(2) which
permits a court, to order that a witness or an accused person give evidence by
means of closed-circuit television. I am mindful that s 158(2) requires the consent of
the accused. However, the emphasis, in my view , should be a fair and just trial. In
both cases , to ensure, a fair and just trial, a court may impose the necessary
conditions provided that the prosecutor and the accused have the right, by means of
that procedure to question a witness and to observe the reaction of that witness and
to participate meaningfully in the proceedings.
[41] Steytler notes that a ‘virtual reality’ trial by electronic means may take place only
with the consent of the accused and on order of the trial court. 24 The learned author
with the consent of the accused and on order of the trial court. 24 The learned author
believes that w hile the participants in a trial may be dispersed geographically, the
central purpose of the right to be present, the ability to exercise active defence
rights, will not be prejudiced. From a constitutional perspective, if one assumes that
the hearing of a matter where the accused is present virtually infringes s 35(3)(e) of
24 Constitutional Criminal Procedure: A commentary on the Constitution of the Republic of South
Africa, (1998) at 295 Butterworths, Durban.
the Constitution, the next question to consider is whether the accused’s right cannot
be limited by way of section 36 of the Constitution. The limitation of the right, as
provided for in the CPA , must be assessed in terms of whether the accused's
absence will detract from the fairness of the trial.25
[42] As previously stated, the accused’s right to be present when tried as envisaged
in s 158(1) of the CPA is not absolute. This right is subject to limitation in terms of
s 36 of the Constitution. The right to be physically present, in my view, is limited by
the provisions of s s 158(2), 159, and 170A (3) of the CPA. Without delving into the
full inquiry in terms of s 36, the limitation is evidently reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom.
[43] Finally, s 39(1) of the constitution provides, inter alia, that when interpreting the
Bill of Rights, a court, tribunal or forum must consider international law; and may
consider foreign law . In Sanderson v Attorney -General, Eastern Cape , 26 the
Constitutional Court considered the application of comparative research and
remarked as follows:
‘In this context I wish to repeat a warning I have expressed in the past. Comparative
research is generally valuable and is all the more so when dealing with problems new
to our jurisprudence but well -developed in mature constitutional democracies. Both
the interim and the final Constitutions, moreover, indicate that comparative research
is either mandatory or advisable...Nevertheless the use of foreign precedent requires
circumspection and acknowledgment that transplants require careful management.’
[44] I deem it prudent to draw parallels with similar provisions in Canada, as our Bill
of Rights in our Constitution is modelled around the Canadian Charter of Rights and
Freedoms. Prior to the 2022 amendments, 27 the situation in Canada was a bit more
Freedoms. Prior to the 2022 amendments, 27 the situation in Canada was a bit more
convoluted. For summary conviction trials (for less serious charges) , the accused
could presumptively appear by way of an agent (s. 800(2)), so their lawyer could
25 Kentucky v Stincer 482 US 730 745 (1987).
26 1998 (1) SACR 227(CC) para 26.
27 See Legislative Summary of Bill S -4: An Act to Amend the Criminal Code and the Identification of
Criminals Act and to make related amendments to other Acts (Covid -19 response and other
measures).
appear for them in the courtroom. For preliminary inquiries (pre-trial for serious
offences), s. 537(1)(j), (j.1) and (k) allowed an accused to be out of the courtroom or
to attend by CCTV or video. In indictable matters (serious offences) before 2022,
procedural appearances could be handled by a designation of counsel (s. 650.01(1))
or a video ap pearance except where evidence was being taken (s. 650(1)(1.1)).
There was a strong presumption that an accused had to be present for the whole
trial, even where no evidence is being taken. The remedy for proceedings that
occurred partially in the absence of the accused would be a mistrial: R. v. Poulos,
2015 ONCA 182.
[45] With the eme rgence of the Covid -19 pandemic, competing lines of case law
emerged. One was that various provisions in ss. 606 and 650 would permit an
accused to be "outside" the courtroom for an indictable trial. For instance, R. v.
Daley, 2020 ONCJ 201, it was suggest ed that s 650(2)(b) of the Criminal Code
‘permits the court to allow the accused to be completely out of the courtroom with no
connection by video or audio even when evidence is being taken from a witness .
However, another line of jurisprudence held that those sections did not allow for that.
For instance, in R. v. Pazder, 2015 ABQB 493,28 the court adopted a very restrictive
approach to s 650(2)(b). The court found that the first fundamental principle is that s
650(2)(b) of the Criminal Code, should only be used sparingly, and with caution. An
accused’s absence should only occur where there is a valid and legitimate reason
that does not offend public policy, and that is benef icial to the accused without
prejudicing fair trial rights of the accused and other trial participants. The controversy
is summari sed fairly well in R v. Twoyoungmen , 2021 ABPC 88, at paras. 30 -35.
This controversy led to Parliament enacting the 2022 provi sions to make it clear that
remote appearances are possible.29
remote appearances are possible.29
[46] In terms of the new amendments, t he Canadian justice system permits the
hearing of matters through audioconference and videoconference. Section 650(1) of
28 At paras 249 and 250.
29 See Legislative Summary of Bill S -4: An Act to Amend the Criminal Code and the Identification of
Criminals Act and to make related amendments to other Acts (Covid -19 response and other
measures).
the Canada Criminal Code30 provides that ‘subject to subsections (1.1)31 and (2) and
section 650.01, an accused, other than an organi sation, shall be present in court
during the whole of their trial, either in person or, if authori sed under any of sections
715.231 to 715.241, by audioconference or videoconference ’. Similar to s 159 of the
CPA, s 650(2) of the Canada Criminal Code, provides that the court may (a) cause
the accused to be removed and to be kept out of court, where he misconducts
himself by interrupting the proceedings so that to continue the proceedings in his
presence would not be feasible; (b) permit the accused to be out of court during the
whole or any part of his trial on such conditions as the court considers proper.
[47] The Canada Criminal Code further permits a Court, with the consent of the
prosecutor and the accused, to allow an accused to appear by videoconference at a
trial for an indictable or a serious offence.32 The court may, with the consent of the
prosecutor and the accused, allow an accused to appear by audioconference or
videoconference for the purpose of making a plea. 33 Furthermore, the Court may,
with the consent of the prosecutor and the offender, allow the offender to appear by
audio or video conference for sen tencing purposes. Crucially, the Code emphasises
that in any proceedings in respect of which this Code does not expressly authorise
the Court to allow an accused or offender to appear by audioconference or
videoconference or limit or prohibit their appeara nce by those means, the Court may
allow the accused or offender to appear by either of those means. In other words, a
court has the discretion to allow video conferencing even where it is not provided or
prohibited by the Code.34
[48] The overriding consi deration in Canada for permitting a trial of an accused
virtually hinges on the proper administration of justice. The objective of the Canadian
criminal justice system is that an accused receives a fair trial, even if he is not
criminal justice system is that an accused receives a fair trial, even if he is not
physically present in court when a matter is tried. Thus, a fair trial occurs when an
30 (RSC, 1985.c.C-46)
31 In terms of this section a court may, with the consent of the prosecutor and the accused, allow the
accused to appear by counsel for any part of the trial, other than a part in which the evidence of a
witness is taken.
32 S 715.233 of the Code.
33 S 715.234 (1).
34 S 715.24. See also Woods v. Ontario, 2020 ONSC 6899, at paragraph 35(ii)).
accused can make a full answer and defence. This conclusion is underscored by the
provisions of s 715.22 of the Code, which provides that the purpose of the provisions
of this Act that allow a person to appear at, participate in or preside at a proceeding
by audioconference or videoconference, in accordance with the rules of court, is to
serve the proper administration of justice, including by ensuring fair an d efficient
proceedings and enhancing access to justice.35 The emphasis is not on whether the
accused is physically present in court, but on whether the provision effectively gives
the accused the right to participate in the process, in keeping with the ri ght to a fair
trial
[49] While in Europe, in Marcello Viola v Italy,36 the European Court of Human Rights
dismissed an appeal against an appellant who was convicted of various serious
offences, including murder. Pursuant to his conviction, the applicant was subject to a
restricted prison regime, provided for by s 41 bis of Law no. 354 of 26 July 1975
(known as “the Prison Organisation Act”), which, among other things, limited his
contact with the outside world. Accordingly, the a ppellant was no l onger brought to
the courtroom from prison for his subsequent appeal hearing. The appellant,
however, was able to participate in the hearings of his appeal via an audiovisual link
to the hearing room. Aggrieved by the decision of the trial court, the app ellant
appealed on points of law. The app ellant complained that he had been forced to
participate in the appeal hearings by videoconference during the second set of
proceedings, which violated his fair trial rights under Article 6 of the European
Convention on Human Rights. His appeal was dismissed in the domestic courts.
[50] On appeal to the European Court of Human Rights, the court found that the
appellant did not claim that he had been denied the opportunity to follow the
proceedings. Instead, he complained about the manner of his participation, which
proceedings. Instead, he complained about the manner of his participation, which
was via videoconference. He alleged that the use of this device created difficulties
for the defence .37 The court found that although the appellant’s participation in the
proceedings by videoconference is not as such contrary to the Convention, it was
incumbent on the Court to ensure that recourse to this measure in any given case
35 See s 715.22 of the Code.
36 (Application no. 45106/04) (05/01/2007).
37 At para 64.
serves a legitimate aim and t hat the arrangements for the giving of evidence are
compatible with the requirements of respect for due process, as laid down in Article 6
of the Convention. 38 The Court conclude d that the applicant's participation in the
appeal hearings by videoconference pursued legitimate aims under the Convention,
namely, prevention of disorder, prevention of crime, protection of witnesses and
victims of offences in respect of their rights to l ife, freedom and security, and
compliance with the “reasonable time” requirement in judicial proceedings.39
[51] In reference to the present matter, and considering the preceding discussion, it
is evident that there is a legitimate rationale supporting th e State's application. It is
my firm view that, to avoid possible conflict between the two rival groups, and at
times the unbecoming conduct of some of the accused, there are merits in the
State’s application that this Court should seriously consider alleviating the challenges
highlighted above. It seems to me that those accused who conduct themselves in a
manner that makes the continuance of the proceedings in their presence
impracticable can remain in attendance virtually, with a muted function appli ed or
with such conditions as the court may imposed.
[52] I may also add that generally, the hearing of matters as suggested by the State
has immense benefits. It will alleviate the problems of some of the accused not
brought to Court, as has happened in this matter frequently. It will minimise the
problem of the accused being brought late to Court. It ensures the protection of
witnesses and victims of offences and court officials in respect of their rights to life,
freedom and security. Moreover, i t is also incontestable that the transportation of
detained prisoners heightens the risk of escape and may lead to potential reprisals
against the individuals involved.
[53] To this end, I share the views expressed by Satchwell J, in Uramin Incorporated
[53] To this end, I share the views expressed by Satchwell J, in Uramin Incorporated
v Perie, 40 that the technology of the video link is now accepted both in other
jurisdictions and South Africa as an efficient and an effective way of providing oral
evidence both in chief and in cross examination and that this is simply another tool
38 At para 67.
39 At para 72.
402017 (1) SA 236 (GJ).
for securing effective access to justice. The court emphasised that courts must adapt
to the requirements of the modernities within which they operate and upon which
they adjudicate. The Constitution and the Rules of Court enjoin the courts to make
the necessary developments on a case-by-case and era-by-era basis.
[54] In VJS v SH,41 this Court stressed that a s modernisation unfolds, it is important
for the courts to open themselves to the modern trend of technology to securing
effective access to justice. The court stated:
These developments, in my view, are a testament that the benefits of technology
should be utilised and incorporated into our justice system to improve the efficiency
of civil litigation in our courts. This will go a long way in optimising access to justice
for civil court litigants. I understand that different divisions of the High Court in our
country have adopted CaseLines, where pleadings, affidavits, and relevant
documents are uploaded to the CaseLines portal. In my opinion, this clearly
demonstrates that the courts are acknowledging the significance of technology and
the advantages it b rings. This recognition reflects an evolving understanding of how
technology can enhance legal processes and improve access to justice.
[55] The views expressed by the court above are equally applicable to this matter.
More so, recently, the full court in this division, observed in Road Accident Fund v
Van Wyk ,42 that courts must avoid a rigid or inflexible approach when considering
applications for virtual hearings; instead, they should consider such applications with
a thoughtful mind, always prioritising the pursuit of justice as their guiding principle.
[56] Two decades ago, t he SALR C43 noted that audiovisual hearing provides the
following benefits:
(a) it reduces inmate transportation costs;
(b) the elimination of security problems in prisoner transportation;
(c) a reduction in the number of jail personnel needed for inmate movement;
(c) a reduction in the number of jail personnel needed for inmate movement;
41 (19578/2024) [2024] ZAWCHC 333 (22 October 2024) para 27.
42 Road Accident Fund v Van Wyk (Appeal) (1169/2020; A186/2025) [2026] ZAWCHC 39 (9 February
2026) para 43.
43 SALRC Report Fn 20 above, at p. 27.
(d) a reduction in tension by eliminating inmate movement and waiting in holding
cells;
(e) allowing inmates to be released more quickly after the court hearing;
(f) saving of travel time and costs;
(g) saving of court time spent on awaiting the arrival of inmates.
Conclusion
[57] In conclusion, it is my considered view that the requirement of ‘being present in
court’ in s 158 (1) should not be read too literally. Instead, the emphasis should be
on the accessibility of the court to the accused, the accused’s legal representative
and the publi c. When the SALRC investigated the feasibility of postponement of
cases through AVR, it note d that ‘it is, however, sympathetic to the view that the
procedure would introduce an innovation which should be implemented
incrementally, and although convinced of the major advantages to the criminal
justice system, recommends that it be introduced for limited purposes initially but
with the reservation that it be expanded later ’. The report was prepared 23 years
ago. Clearly, the SALRC envisaged that the innovation it proposed would have
developed after two decades of its report.
[58] I am of the view that each case must be dealt with according to its own merits.
Hearing matters through the virtual platform as proposed by the State should not be
the norm; however, where the interests of justice demand it, it should be considered.
Order
[59] In preparation for the judgment, I gathered that Justice Kusevitsky would be
going on long leave in a week’s time and that the matter concerning the other rival
group would not be sitting for the full term. But for that reason, I refused the State’s
application and indicated that I would be willing to reconsider it in the future, if
necessary, as the main underlying ground for the State’s application no longer exist.
I stated that if the accused continue to disrupt proceedings, I will consider excusing
them under section 159 (1) of the CPA and allowing them to attend these
them under section 159 (1) of the CPA and allowing them to attend these
proceedings virtually, while they are in Pollsmoor prison.
___________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For Accused 1, 2, 3 and 11: Advocate De Villiers
Instructed by: Legal Aid South Africa
For Accused: 4, and 15: Mr Strauss
Instructed by: Legal Aid South Africa
For Accused: 6, 7, 9 and 12: Advocate Badenhorst
Instructed by: Legal Aid South Africa
For Accused: 6, 10 and 16: Advocate Van Zyl
Instructed by: Legal Aid South Africa
For Accused 8 and 17: Advocate Johnson
Instructed by: Legal Aid South Africa
For Accused 18, 19 and 20: Advocate Klopper
Instructed by: Legal Aid South Africa