A missing link in the Traditional Courts Bill 2017 : evidence obtained through human rights violations

• Author: Robert Doya Nanima
• DOI: 10.10520/EJC-1173e72773
• Published date: 01 September 2018
• Date: 01 September 2018
• Record Number: iscrime_n65_a3
• Pages: 23-31

23

SA CRIME QUARTERLY NO. 65 • SEPTEMBER 2018

* Robert Doya Nanima is a lecturer anda doctoral candidate in the

Faculty of Law at the University of the Western Cape.

A missing link in the

Traditional Courts

Bill 2017

Evidence obtained through

human rights violations

Robert Doya Nanima*

rnanima@gmail.com

http://dx.doi.org/10.17159/2413-3108/2018/v0n65a5268

The issue of admission of evidence obtained through human rights violations is central to a criminal

justice system as a mechanism through which to prevent overzealous prosecution by the state and

ensure protection of human rights. As such, any court that deals with criminal cases has to evaluate

evidence before it is admitted. This article argues that the Traditional Courts Bill (TCB)1 does not

provide for a mode of dealing with evidence obtained as a result of human rights violations. To

substantiate this argument, the article reviews the current Bill, and reflects on the challenges that

arise with regard to evidence obtained in this way. The article contextualises section 35(5) of the

Constitution of the Republic of South Africa, and discusses the practical difficulties of applying it

under the current Bill. The article concludes with recommendations for measures that can ensure that

accused persons are not prejudiced when appearing before the court.

Much has been written on the Traditional Courts

Bill (TCB), focusing in particular on the need to

balance the law and tradition, as well as issues

of legal pluralism in South Africa, and offering

a comparative analysis of various aspects of

traditional leaders’ role in justice and crime

prevention.2 There is a wealth of literature on the

application of section 35(5) of the Constitution

of the Republic of South Africa, yet insights

on its application to traditional courts remain a

grey area.3 The attempts by the Executive to

formalise the operation of traditional courts, and

use the Bill of Rights as a foundational principle,

point to the need for a clear framework on how

to deal with evidence obtained as a result of

human rights violations.

Jurisprudence on the application of section

35(5) of the Constitution requires that the

collection of evidence before a trial meet certain

criteria. For instance, an accused should be

informed of the right to legal representation

before s/he is charged.4 Furthermore, s/he

should not be subjected to torture or inhuman

treatment to extract evidence.5 The right to a fair

trial has constitutional safeguards that include

an accused’s right to be informed promptly

of the charge against him or her,6 the right to

remain silent,7 and the consequences of not

remaining silent.8 In addition, s/he should not be

compelled to make a confession or admission