The Right to a ‘Public Trial’ in South Africa in Light of Article 14(1) of the International Covenant on Civil and Political Rights

Abstract

Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) provides, inter alia, for the right to a ‘fair and public hearing.’ It also provides for some of the circumstances in which a court may exclude ‘the press and the public…from all or part of a trial.’ It also provides for instances in which a judgment may not be published. South Africa ratified the ICCPR in December 1998. Section 35(3)(c) of the Constitution of South Africa provides that every accused person has a right to ‘a public trial before an ordinary court.’ The Constitution does not define or describe the features of a public trial. However, the right to a public trial is not absolute. Section 153 of the Criminal Procedure Act (1977) provides for grounds in which a trial can take place ‘behind closed doors.’ However, some of the grounds under section 153 are different from those under Article 14(1) of the ICCPR. For example, the conditions that a trial does not have to be public on ‘moral’ or ‘public order’ grounds. There are many cases in which courts have explained the meaning of the right to a public trial and the circumstances in which it can be limited. These differences do not necessarily mean that section 153 is contrary to Article 14(1) of the ICCPR. The purpose of this article is to suggest ways in which section 153 of the CPA could be interpreted to give effect to South Africa’s obligation under Article 14(1) of the ICCPR. It is recommended that, in interpreting sections 35(3)(c) of the Constitution and 153 of the Criminal Procedure Act, courts should not limit themselves to the literal meaning of Article 14(1) of the ICCPR. They could also be guided by its drafting history.