Comment: The right to pre-trial silence: S v Thebus 2003 (2) SACR 319 (CC)

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 379-393
• Author: Tharien van der Walt
• Date: 24 May 2019
• Citation: (2004) 17 SACJ 379

The right to pre-trial silence:

S

v

Thebus

2003 (2) SACR 319 (CC)

THARIEN VAN DER WALT*

and

STEPHEN DE LA HARPE**

Introduction

This matter came before the Constitutional Court by way of a special appeal

in terms of Rule 20 of the rules of the Constitutional Court. The appeal was

based on two constitutional questions namely:

(1)

whether the Supreme Court of Appeal (SCA) failed to comply with its

duty under s 39(2) of the Constitution of the Republic of South Africa, 108 of

1996 (hereafter the Constitution), to develop and apply the common-law

doctrine of common purpose so as to bring it in line with the constitutional

rights to dignity, freedom and security of the person and the right to be

presumed innocent (ss 10, 12(1)(a) and 35(3)(h) of the Constitution); and

(2)

whether the SCA erred in drawing an adverse inference from the first

appellant's failure to disclose an alibi defence prior to the trial, in violation of

his right to remain silent as provided for in s 35(1)(a) of the Constitution.

Factual Background

The two appellants were allegedly part of a vigilante group of protesting

residents in Ocean View, Cape Town, who gathered and approached the

houses of several reputed drug dealers in the area. The group of vigilante

protesters also approached the house of one Grant Cronjè allegedly causing

damage to Cronjè's property before moving on. They drove in a motorcade

of about five or six vehicles. As the motorcade approached an intersection,

Cronjè opened fire on them. Some of the members of the group returned fire.

A seven-year-old girl was fatally wounded and two other bystanders

wounded in the ensuing cross fire.

The appellants were arrested and charged on suspicion of being part of the

vigilante group which was involved in the shooting incident. It was common

cause that, after being arrested, the first appellant was informed of his right to

remain silent as well as the consequences of not remaining silent. He chose

to make an oral statement to the arresting officer. First appellant refused to

* BProc LLB LLM

Senior Lecturer, Faculty of Law, North-West University (Potchefstroom

Campus)

** BCom LLB LLM

Senior Lecturer, Faculty of Law, North-West University (Potchefstroom

Campus)

379

(2004) 17 SACJ 379

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