Whatshot
Legal Talk
Legal Talk
Date: 2018-11-23
What rights do bereaved families who lost their loved due to someone else's negligent driving have Do they qualify as victims in terms of the Victim's Charter
Victims of crimes have certain rights which are contained in theVictim's Charterfound in theConstitution. Some of these include being allowed to offer information in the criminal judicial process, being able to attend the trial or bail application and to make further statements if necessary.
The prosecutor is required to ensure that the victim's wishes are both heard and considered. This is especially so when it comes to sentencing proceedings. Can a family who lost a loved one through the negligent driving qualify as a victim in terms of the Victim's Charter
A man W whose 18-year-old son was killed in a driving accident where the driver admitted to a criminal charge of culpable homicide, took his fight to theConstitutional Court. The driver of the car S admitted 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.
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 theHigh Court. TheHigh Courtsaid that complainants in criminal matters must be given an opportunity to make representations but only when it's reasonable to do so and it must be in the interests of the complainants themselves.
It also found that in W's case he was given far greater opportunities to engage with the prosecutors than most victims were given. It said that victims are not party to criminal proceedings and have no automatic right to present evidence. TheHigh Courtagreed that the magistrate was within his rights not to exercise his judicial discretion in allowing W to give evidence in sentencing, but criticized the magistrate's lack of judicial maturity in not dealing with W in a more compassionate way.
It said the court should have displayed greater empathy and allowed W an opportunity to express his feelings at having lost his son. Leave to appeal the High Court's decision was refused.
W then took the matter to theConstitutional Court,asking that the High Court's refusal to allow the appeal to be set aside. W told theConstitutional Courtthat 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, theConstitutional Courtsaid that the plight which W found himself commanded the sympathy and respect of the court. The Concourt said the pain and suffering which W endured following the loss of his child is a terrible one for any parent to bear.
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