The bail application evidence of a minor in a notorious ongoing gang trial will not be accepted by the court due to him not being informed of his rights at the bail court.
However, the bail application evidence of another co-accused in the same trial will be used.
The then-teenager, who was 16 years old at the time of arrest and assisted by his mother in his bail proceedings, is in the dock for the criminal trial against alleged Terrible Joster leader Elton Lenting and 19 others.
During the criminal trial, in which both accused face various criminal charges including murder and attempted murder, the State applied to introduce bail proceedings records from the Bellville District Court in respect of the minor and his co-accused.
Western Cape High Court Judge James Lekhuleni ordered that the matter would be heard as a trial within a trial as the admissibility of the bail proceedings, which was heard eight years ago, was contested.
Both of the accused’s representatives opposed the State’s application citing that they were not warned during the bail proceedings that their evidence would be used against them at the subsequent trial if they testified.
Judge Lekhuleni said the “young and vulnerable” minor was not informed of his rights in accordance with the Child Justice Act and while the child offender was legally represented, it “did not absolve the bail court of its judicial injunction to explain to the child offender his right not to self-incriminate”.
Without explaining the rights of the accused both accused were called to testify in support of their bail applications during which they both confirmed their gang affiliations but were no longer members at the time of their arrest.
The two accused were eventually denied bail.
Judge Lekhuleni said the duty to warn an accused rests with the court and not the legal representative.
“The reason being that (the warning) is an important constitutional safeguard that strikes at the heart of an accused person’s right to a fair hearing... A bail court cannot be inert and lackadaisical in the conduct of court proceedings.
Instead, it must adopt a proactive approach and jealously guard the entrenched constitutional rights of an accused person... “The Child Justice Act ensures that the child's rights are protected and that children appearing in the child justice court are aware of their rights and why they are in court.”
Cape Times