THE ABSOLUTE ANONYMITY OF A STATE WITNESS

Bc Naudé Bc Naudé

doi:10.17159/obiter.v32i1.12314

Abstract

An important facet of the principle of open justice is the right of the accused to challenge the evidence given against him or her. When a witness testifies anonymously, the potential exists for an improper infringement of this right. Although the right to challenge evidence is not absolute, it is not easy to identify the circumstances that would provide justification for an infringement of this essential right. While the interests of justice is a determining factor, it is necessary for legislation to be put into place to set out specific circumstances to guide the courts whether or when to allow anonymous testimony. In addition, provision should be made for the appointment of an independent investigator to assist the court to investigate the credibility of the witness. Further, if witness anonymity orders are limited to serious cases and only allowed in exceptional circumstances, there is no reason why anonymous testimony should not be allowed.

Highlights

That criminal proceedings must take place in an open court and in the presence of the accused has long been a fundamental principle of our common law[1] and is codified in section 152 of the Criminal Procedure Act 51 of 1977 which states that “except where otherwise expressly provided by this Act or any other law, criminal proceedings in any court shall take place in open court, and may take place on any day”
It is understandable that the identity of a witness should, in appropriate circumstances, be withheld from the public, but it is questionable whether the mentioned provisions allow for the non-disclosure of the identity of state witnesses to the accused and his or her representatives or even to the court itself, since such an outcome would be against general common law principles, but would infringe the right of the accused to a fair trial.[10]
It should be possible to apply section 153(2) of the Criminal Procedure Act 51 of 1977 to a situation where an application is made for the non-disclosure of the identity of state witnesses to the accused and his or her representatives or even to the court itself, it is necessary to consider the dangers of anonymous testimony in order to place a proper limitation on the right of the accused’s right to challenge evidence.[24]

Summary

SUMMARY

An important facet of the principle of open justice is the right of the accused to challenge the evidence given against him or her. When a witness testifies anonymously, the potential exists for an improper infringement of this right. The right to challenge evidence is not absolute, it is not easy to identify the circumstances that would provide justification for an infringement of this essential right. While the interests of justice is a determining factor, it is necessary for legislation to be put into place to set out specific circumstances to guide the courts whether or when to allow anonymous testimony. Provision should be made for the appointment of an independent investigator to assist the court to investigate the credibility of the witness. If witness anonymity orders are limited to serious cases and only allowed in exceptional circumstances, there is no reason why anonymous testimony should not be allowed

INTRODUCTION

THE CRIMINAL PROCEDURE ACT

THE PITFALLS OF ANONYMOUS TESTIMONY

MAIN CIRCUMSTANCES JUSTIFYING ANONYMOUS

CONCLUSION