Case Review: Constitutional application

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 400-416
• Citation: (2005) 18 SACJ 400
• Date: 16 August 2019
• Author: Anashri Pillay

400 SACJ • (2005) 3

Constitutional Application

ANASHRI PILLAY

University of Cape Town

Interpretation – section 35 – right to a fair trial

Generally – legality of plea agreements

In Van Eeden v Director of Public Prosecutions, Cape of Good Hope

2005(2) SACR 22 (C) the court considered the relationship between

plea agreements and the right to a fair trial, protected in s 35 of the

Constitution. In this case, the applicant and a co-accused had been charged

with contravening the Drugs and Drug Traff‌i cking Act 1992 (at 23i-j). The

Director of Public Prosecutions, Cape of Good Hope acknowledged the

existence of a plea agreement but there was some dispute as to the terms

of that agreement (at 25d-e). The applicant’s version, conf‌i rmed by the

attorney who had entered into the agreement on his behalf, was that the

prosecution had agreed not to prosecute him if his co-accused pled guilty

to the charge (at 24a-b). The prosecution claimed that proceedings against

the applicant were terminated because of insuff‌i cient evidence at the

time (at 25h-i). The prosecution sought to re-charge the applicant and the

(2005) 18 SACJ 400

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question before this court was whether this was permissible. Budlender AJ

noted that plea agreements were now formally regulated by section 105A

of the Criminal Procedure Act, a section that was not yet in force when

the facts of this case arose. However, plea bargaining had already become

an essential part of our criminal justice system before this (at 24j – 25b).

Following a number of earlier judgments, Budlender AJ held that the right

to a fair trial extends beyond the enumerated rights in the section (at 27c-d)

to ‘notions of basic fairness and justice’. The latter includes holding the state

to a plea bargain it has made or ‘is deemed to have been made’ (at 27g-h).

On the facts of this case, the court held an agreement not to proceed against

the applicant provided his co-accused pled guilty existed or was deemed to

exist and ordered the prosecution to be stayed (at 28c-e).

Generally – witness statements

In S v Naude 2005 (2) SACR 218 (W), there were important differences

between the complainant’s written statement and her evidence in court.

The prosecutor had not informed the regional magistrate who had

convicted the accused that the written statement existed (at 221b-c). The

court held that this failure by the prosecutor resulted in an unfair trial

because knowledge of the contents of the statement may have had an

impact on the magistrate’s f‌i ndings on the credibility of the complainant, a

single witness in the case (at 221j–222b). Whilst witness statements are no

longer privileged documents and it is, thus, open for the defence to raise

inconsistencies between written statements and oral evidence, the court

held that the prosecutor still has a duty to bring the court’s attention to

such inconsistencies where counsel for the accused person does not do

this. The prosecutor bears a responsibility to ensure that every accused

person receives a fair trial (at 222h-i).

The question of inconsistent witness statements was also considered

in S v Raikane en Andere 2005 (1) SASV 464 (T). In this case, a witness’

original statement went missing from the police docket (at 468a-b). The

witness in question was a police off‌i cer and a senior off‌i cer with some

authority over the witness then wrote a new statement. It appeared that

the witness was then told to sign the new statement (at 468c-d and 469i-

j)). Inconsistencies between the statement and what the witness actually

remembered were revealed during cross examination (at 468i-j). The court

held that this constituted a violation of the right to a fair trial.

Generally – duties of presiding off‌i cers

The issues in S v May 2005 (2) SACR 331 (SCA) all arose from the fact

that the appellant did not have legal representation at the trial. The bases

for his appeal from his conviction and sentencing on four charges were

that the regional magistrate had not fully explained his right to legal

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