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Article by listed attorney: Fawzia Khan

The Victims’ Charter. Do the family of a deceased qualify as victims?

Victims of crimes have certain rights, which are 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, where the driver admitted to a criminal charge of culpable homicide, 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.

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.

The High Court said 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.

Whilst the High Court said that the magistrate was within his rights not to exercise his judicial discretion in allowing W to give evidence in sentencing, it criticized the magistrate for 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 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. 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. 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, and dismissed the application for leave to appeal.


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