Legal Standing of Victims in Criminal Proceedings: Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC)

Keywords: victims of crime, victim impact statements, criminal proceedings, court's discretion, Wickham v Magistrate, legal standing, judicial review, Victims Charter

Abstract

In late 2016, the Constitutional Court delivered judgment in a case, Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC), involving Wayne Anthony Wickham (an aggrieved father and applicant in this case), who appealed against the decision of the Magistrate's Court in which he was denied the opportunity to hand up a victim impact statement. The thrust of his application was that his rights, as a victim of the crime in which his son was negligently killed by the fourth respondent, had been violated, and that this raised an arguable point of law of general public importance. The respondents, however, argued that the applicant lacked standing as the dominus litis in culpable homicide cases is the public prosecutor, and not the relatives of the deceased, or the victim. The case turned on whether the exercise of discretion by the Magistrate in denying Wickham the right to be heard was performed correctly; and whether a non-party to criminal proceedings could make an application for the review of the Magistrate's conduct. The article seeks to interrogate the rights of victims in criminal proceedings and aptly poses the following question: Do victims of crimes have a locus standi to be part of criminal proceedings?

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References

Baxter A Administrative Law (Juta Cape Town 1984)

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Case law

AParty v Minister of Home Affairs; Moloko v Minister of Home Affairs 2009 3 SA 649 (CC)

Booysen v Minister of Safety and Security 2018 6 SA 1 (CC)

Bruce v Fleecytex Johannesburg CC 1998 2 SA 1143 (CC)

Ferreira v Levin 1996 1 SA 984 (CC)

Minister of Police v NP Sosibo 2010 ZAKZPHC 102 (14 December 2010)

Nyathi v MEC for Health, Gauteng 2008 5 SA 94 (CC)

Uffindell t/a Aloe Hunting Safaris v Government of Namibia 2009 NAHC 51

Wickham v Magistrate, Stellenbosch 2017 1 SACR 209 (WCC)

Legislation

Australia

Victims' Charter Act 65 of 2006

South Africa

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act 51 of 1977

Promotion of National Unity and Reconciliation Act 34 of 1995

International instruments

African Union Principles and Guidelines on the Right to Fair and Legal Assistance in Africa (2003)

Draft United Nations Convention on Justice and Support for Victims of Crime and Abuse of Power (2006)

United Nations Convention on the Elimination of All Forms of Discrimination Against Women (1979)

United Nations Convention on the Rights of the Child (1989)

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)

Published
2020-05-05
How to Cite
Mhlongo, L. B., & Dube, B. A. (2020). Legal Standing of Victims in Criminal Proceedings: Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC). Potchefstroom Electronic Law Journal, 23, 1-18. https://doi.org/10.17159/1727-3781/2020/v23i0a6022
Section
Case Notes