South Africa’s legal system is primarily based on customary law, with large areas re-enacted by statutory law. The customary law is the Roman-Dutch law that was introduced by the Dutch in the mid-seventeenth century. During the period of Dutch rule, the legal system was inquisitorial., There was an acknowledgement of the need to assist Defendants that are charged with capital crimes and did not have means to obtain legal representation. With the advent of British rule, the adversary system replaced the Dutch inquisitorial system.
Accusatory and inquisitorial systems rest fundamentally on different assumptions about the way of achieving speedy and fair criminal trials. These two systems differ regarding roles that the judges play in the fact-finding process of the trial and the priority that is accorded to effective truth finding. The relationship between truth and fairness has a significant impact on the content, scope, and implications of fair trial rights.
The accusatory system involves the participation of two, equal, private opponents at trial. Public, oral and contradictory, the trial takes place under the guidance of the court. In the accusatory system, the witnesses render their accounts of events, entirely voluntarily, after having taken oaths before the court. The accusatorial system assumes that partisan advocacy and manipulation of evidentiary materials, coupled with equality of arms, can put an adjudicator in a position to determine the truth.
In the accusatorial system, the parties are adversaries and therefore both the pre-trial and trial procedures are designed in such a way that there is equal confrontation between the parties, namely, the State and the accused. In terms of this system, the presiding officer is not part of the contest between the parties who present their respective cases. It can therefore be said that judicial passivism is a feature of this system.
The principal of the accusatorial system is further enforced by section 35 of the Constitution of the Republic of South Africa, 1996, in terms of which the accused has a right to a fair trial which includes the right to be presumed innocent, remain silent and not to testify during the trial. Thus, the neutral or passive role of the presiding officer is maintained.
Although South Africa’s criminal procedure is said to be accusatorial in nature, no system is totally accusatorial or inquisitorial. Even systems that closely approximate a pure accusatorial model may need to relax the application of the accusatorial features for the sake of practicability, justice, and functionality. In a mixed criminal procedure system, where the accusatory features dominate, the theories underlying the accusatory system cannot always apply, and thus sometimes, the accusatory and inquisitorial system may be closely coordinated.
In the inquisitorial system, a judicial officer controls the pre-trial stage, the investigation and gathering of the evidence. The dossier that contains the statement of the witnesses and other materials is also at the disposal of the prosecution and defense. The judicial officer decides whether there are grounds for prosecution. The judge determines which witnesses to call and conducts their questioning. As the judge is also the trier of fact, an open system of evidence is followed, which means that all relevant evidence is considered, thus excluding exclusionary rules.
It is said that the court in this system determines the material truth as opposed to a party centered truth that is produced in adversarial systems. The underlying principal in this system is that the State official will proceed objectively and professionally to establish the truth and will at the same time protect the interests of the accused.
SOME DIFFERENCES BETWEEN THE ACCUSATORY AND INQUISITORIAL SYSTEMS
The difference between these two systems raises two distinct ethical problems, namely, how legal practitioners from these systems are able and willing with the mandated ethical obligations imposed by these stems and whether the systems themselves create ethical dilemmas for legal representatives. Sometimes legal institutions may encourage moral doubt by the way it narrates, for example, “the search for truth”. To expand on this, if, in terms of the adversarial system the legal institutions narrative is that the truth is whatever the prevailing party brings, then this causes parties to manufacture the “truth” in favour of their client.
Inquisitorial processes focus place a higher value on the discovery of truth whereas adversarial processes are only prepared to discover the truth within evidential and procedural boundaries. Furthermore, the inquisitorial system places the search of the truth into the hands of the impartial investigator whose duty is to objectively discover facts. In comparison, the adversarial system trusts the parties to present their argument and expect that the truth emerges from the presentation of each party’s side properly and honestly.
In inquisitorial systems, the willingness to admit all evidence, including evidence that has been improperly obtained is perceived as in important factor in search of the truth. Adversarial systems, however, regard the exclusionary rules of evidence as protecting the accused from the prejudicial effect of such evidence. The inquisitorial systems admit such evidence because there is trust in the judge’s ability to properly weigh the probative value of the evidence and thus considers exclusionary rules as a distrust in the judge’s ability to separate probative value and prejudicial effect.
In adversarial models, decision making is left largely in the hands of the parties. There is a recognised prosecutorial discretion not to proceed with the case, even where there is evidence that supports the charge. In inquisitorial systems, there is less discretion, and the legality principals dictate that prosecution must take place in all cases where sufficient evidence exists in the guilt of the matter.
Author: Thina Makaula