Case Review: Criminal Procedure

• Jurisdiction: South Africa
• Citation: (2009) 22 SACJ 94
• Published date: 24 May 2019
• Pages: 94-123
• Author: Robin Palmer
• Date: 24 May 2019

Criminal procedure

Robin Palmer

University of KwaZulu-Natal, Durban

and

Michael Cowling

Appeal — leave to appeal on preliminary points prior to or

during criminal trial — interests of justice

Whereas the cornerstone of the criminal justice system in South Africa

(particularly after the advent of the Constitution) is to ensure that all

accused persons are guaranteed a fair trial, it is also important to prevent

94 SACJ *(2009) 1

(2009) 22 SACJ 94

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over-reliance by accused on technicalities in order to evade a guilty ver-

dict. This situation arose in Thint & Zuma v NDPP 2008 (2) SACR 421

(CC) where various search warrants were being challenged by the

accused. The latter warrants were issued to enable the prosecution to

obtain certain documents necessary to establish the guilt of the accused

in a subsequent criminal trial.

The accused then challenged the validity of these warrants in two

separate High Courts having jurisdiction. One of the courts upheld the

validity whereas the other overturned the warrants. Both these decisions

were taken on appeal to the SCA where the validity of the warrants was

upheld by a 3-2 majority. The accused consequently appealed to the

Constitutional Court. This was opposed by the prosecution on the basis

that the accused did not show that they had suffered any prejudice as a

result of the search and seizure operation. The prosecution further sub-

mitted that challenging the validity of the search warrants in this way

would ultimately result in a circumvention of the application of s 35(5)

of the Constitution which provides that it is ultimately within the reach

of the court conducting the criminal trial to determine whether unconsti-

tutionally obtained evidence should be admissible against the accused.

This means that the real issue in this matter is not the extent to which

the two accused’s constitutional rights to privacy had been invaded, but

rather whether or not the documents and other evidence seized during

the search and seizure operation would be admissible at the subsequent

criminal trial. It was argued by the prosecution that this must be decided

by the trial court and the ceaseless challenges and subsequent appeals

of decisions arising therefrom will result in undue delays. Therefore, so

it was argued, leave to appeal should be refused as these preliminary

challenges and appeals constituted obstacles to the emergence of the

truth.

The Constitutional Court responded (per Langa CJ) by stating that

‘there is certainly a great deal of merit in these arguments’ (para [63]).

The Court further held that it should ‘discourage preliminary litigation

that appears to have no purpose other than to circumvent the applica-

tion of s 35(5)’ (para [65]). However, the court did not spell out how this

was to be achieved — other than to remark that allowing this prelimin-

ary litigation often places prosecutors between ‘a rock and a hard place’

(para [65]). This is because dealing with these challenges will inevitably

result in delays of the commencement of the trial.

The situation is complicated by the fact that, on the face of it, the

accused are merely enforcing their constitutional rights. Ironically, one of

these rights is the right to a speedy trial which will inevitably be jeopar-

dised as a result of any preliminary litigation. And, once the initial chal-

lenge has been made, an accused is entitled to appeal against any

unfavourable finding. It would seem that the only solution in this regard

Criminal procedure 95

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