A critical analysis of a review pendente lite application against a lower court`s proceedings and its influence on the right to a fair trial: A South African perspective.

Abstract

The Constitution of the Republic of South Africa is built upon the values of protection and promotion of human dignity, equality, and freedom. It is the state that is bound to promote, fulfil, and protect human rights as enshrined in the Bill of Rights. The very same Constitution makes a provision for the right to a fair trial to every accused person allegedly presumed to have committed offence[s] and subjected to a criminal trial. Whenever the accused is not satisfied with the pending criminal proceedings in a lower court and has a reasonable ground[s] or apprehension that, such proceedings are not in accordance with justice, this study contends that, there is an avenue provided by the South African law, to review and set aside the so-called poisoned proceedings. Yet, it remains undisputed that, the Criminal Procedure Act 51 of 1977 is considered a cornerstone statute of the criminal jurisprudence in South Africa. However, there is no provision in the Criminal Procedure Act that regulates on how review pendente lite in criminal cases should be conducted. This exposes the indigent accused persons to a very expensive and confusing civil courts review in terms of section 22 of the Superior Courts Act read with rule 53 of the Uniform Rules of the Court. This study will argue that, such an exclusion prejudices the right to a fair trial which amongst others, includes the right for a review. This study has employed the doctrinal method in order to achieve its purpose.