Magister Legum - LLM / Section 105A of the Criminal Procedure Act is unconstitutional with regard to its
failure to extend benefits to an unrepresented accused. Unlike a represented
accused, an unrepresented accused cannot benefit from section 105A. The only
recourse available to him or her is to enter a plea of guilty under section 112 of
the Criminal Procedure Act. This plea of guilty does not offer him the benefits
under section 105A. This causes the section to operate unfairly against the
unrepresented accused based on his/her failure to secure legal representation.
This continued operation of section 105A infringes on the rights of an accused by
not affording this protection to the accused. This is in terms of a right to equality
before the law, freedom from discrimination and what constitutes a justifiable
limitation under section 36 of the Constitution. South Africa has ratified or acceded to international and regional treaties which require, inter alia that the right to equality before the law is respected. This requires a model framework to be put in place to ensure that unrepresented accused can benefit from section 105A. An evaluation of the viability of adding the unrepresented accused to the protection under section 105A is done. This is informed by experiences from other jurisdictions, which aid the need for reform.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uwc/oai:etd.uwc.ac.za:11394/5513 |
| Date | January 2016 |
| Creators | Botman, Andre |
| Contributors | Mujuzi, J. |
| Publisher | University of the Western Cape |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Rights | University of the Western Cape |
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