S v. Nassar 1994 (2) SA 82 NmHC

Muller AJ:

Point of departure in criminal case was that the accused is presumed innocent until proven guilty. To do justice to this fundamental right it was a prerequisite that an accused be put in the position whereby he knows what case he has to face so that he can properly and fully prepare his defence. The right embodied in art 12(1)(d) to have the opportunity to call witnesses and cross-examine state witnesses can only be properly exercised if the accused knows in advance what the case against him is: it is only then that full instructions can be given to counsel with regard to cross-examination and it was only then that the accused and his legal representatives could make an informed decision as to which witnesses to call, to take statements from and to arrange for the issue of subpoenas.

In terms of the constitution the accused was entitled to be provided with all reasonably practicable time and facilities to ensure that the trial was fair. 'Facilities' included providing an accused with all relevant information in possession of the state, including copies of witness statements, relevant evidential documents, as well as an opportunity to view any material video recordings.

Disclosure should have been made when the indictment was served on the accused without waiting for a request for such disclosure to be made.

| Return to Topic Menu | Return to Main Menu |