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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2016-11-11
The Victims' Charter. Do the family of a deceased qualify as victims

Victims of crimes have certain rights as contained in the Victim's Charter, which is a Charter of Rights found in the Constitution. These include being allowed to offer information in the criminal judicial process, attend all legal processes at the trial or bail application and make further statements if necessary. The prosecutor must make sure that victim's wishes are both heard and considered, for example in sentencing proceedings. Well what of the family who sadly lose a loved one through the negligent driving of another Does the court regard a family member of the deceased as a victim as contemplated in the Victim's Charter

W, father to an 18 year old son who died tragically in a motor vehicle accident took his fight to the Constitutional Court. The driver S was charged criminally and she admitted that she failed to keep a proper look out, that she was negligent and that her negligence caused the death of two people, one of whom was W's son, a passenger in her car and found guilty of culpable homicide.

W participated in the criminal investigations but was not allowed to give evidence to the court in order to voice his concerns as parental victim, for the devastation, which his son's death had caused him. The magistrate did not allow him hand up a victim impact statement, at the sentencing proceedings. The magistrate ruled that W lacked standing as a victim and declined to accept his statement. The court then found S guilty of culpable homicide and imposed a fine of R10 000,00 and a suspended sentence on her. W then unsuccessfully took the matter on appeal to the High Court. It said that victims are not party to criminal proceedings and have no automatic right to present evidence. Whilst the High Court said that the magistrate was within his rights not to exercise his judicial discretion in allowing W to give evidence, it criticized the magistrate for lack of judicial maturity in not dealing with W in a more compassionate way, saying that W should have been an opportunity to express his feelings at having lost his son.

W then took the matter to the Constitutional Court, asking that the High Court's refusal to allow the appeal to be set aside. W told the Constitutional Court that in terms of the Victims Charter, the magistrate's court did not properly consider the anxiety and distress, which he was forced to bear when he lost his son in the accident, which was caused by the driver. In dismissing the application on 25 October 2016, the Constitutional Court said that the plight, which W found himself, commanded the sympathy and respect of the court. It said the pain and suffering which W endured following the loss of his child is a terrible one to bear. It also endorsed the High Court's views that the Magistrate could have handled W's concerns with more judicial maturity and empathy, but said that the court needed to act in such a way that the rights of S as the accused person not be infringed.

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