Nortje and Another v Attorney-General, Cape, and Another

• Jurisdiction: South Africa
• Judge: Fagan Djp, Marais J, Scott J
• Judgment Date: 07 February 1995
• Citation: 1995 (2) SA 460 (C)
• Docket Number: 9125/94
• Court: Cape Provincial Division

Marais J:

The applicants face trial in the regional court on a number of G charges of fraud, a charge of contravening s 424(3) of the Companies Act 61 of 1973, two alternative charges of theft, an alternative charge of contravening s 132(d) of the Insolvency Act 24 of 1936, and a further alternative charge of contravening s 132(b) of Act 24 of 1936. Nothing turns on the details of the charges. Amongst the steps taken by the applicants' legal representatives to prepare for trial was the making of a H request to the prosecutor to furnish copies of the statements made by the State witnesses. The prosecutor declined to make those statements available and, when the proceedings commenced, the second respondent (the regional magistrate) was asked to order the prosecutor to make available to the applicants copies of such statements (including copies of the I statements of those State witnesses whom the State did not intend to call), alternatively a summary of the contents of those statements sufficiently detailed to reflect their material features. After hearing argument, the second respondent refused the application. The hearing was postponed to enable the applicants to launch these proceedings in which this Court is asked to review and set aside the decision of the second J respondent, and to direct the first respondent (the Attorney-General) to

Marais J

A deliver to the applicants the statements of the State witnesses contained in the police docket(s) relevant to their prosecution, alternatively summaries of each of the said statements sufficiently detailed to reflect their material features, and the statements in the possession of the first respondent or his representative, of those persons whom the State does not B intend to call as witnesses. A mandamus directing the second respondent to order the first respondent to furnish those documents is sought as an alternative. The applicants contend that they are entitled to those documents as a consequence of the enactment of the Constitution of the Republic of South Africa Act 200 of 1993 ('the Constitution').

Wrong decisions made in the course of a criminal trial, and which are C capable of correction by way of appeal or review after the trial has ended, are not ordinarily permitted to be challenged before the trial has run its course, unless there is a compelling reason justifying it. Mr Slabbert, who appeared for the State, did not suggest that we should decline to consider the matter now, and it seems to me to be the kind of decision which, if wrong, should be rectified before the trial proceeds. D If it were found to be wrong only ex post facto, the entire trial would have to be set aside and recommenced de novo. That is in nobody's interest. Compare S v Rosslee 1994 (4) SACR 441 (C) at 445e-446b.

The argument in this case has ranged far and wide. We have been referred to many cases and articles both here and in other countries. Some of E those jurisdictions have entrenched constitutional provisions which bear on the issue; others do not. Most of them have trial by jury as an integral and important feature of their criminal justice system. Many have advanced systems of legal aid which buttress an accused's ability to put forward effectively his or her defence. Some have a fundamentally F adversarial system of trial. Others have an inquisitorial system. Some have a blend of both. Some impose reciprocal duties of disclosure (not necessarily equally co-extensive in scope) upon the accused. Interesting and often illuminating though what is done elsewhere may be (which is no doubt why s 35(3) of the Constitution permits reference to be made to 'comparable foreign case law'), one cannot reach sensible conclusions G without ultimately taking account of the accumulated experience of what does and does not work satisfactorily in the administration of justice in South Africa. By way of illustration: for generations it has not been considered desirable in this country to allow a police constable to testify that an accused person confessed his guilt to him. No matter how H eager the accused may have been to confess, that evidence is simply forbidden to be given. Other countries, not similarly placed, have not felt the need for any such absolute prohibition. Whether such a prohibition, when considered in abstracto, is a good or a bad thing is not always easy to say. But when the question is posed with reference to a particular society, it may well be a good deal easier to answer. I I mention this example merely to illustrate how important it is, when deciding whether or not it would be desirable to adopt a proposed principle of law or procedure, not to lose sight of the nature of the society in which it is to operate. When most of a country's citizens live and work in relatively secure homes and workplaces, when the streets they must use are well lit at night and regularly patrolled by the police, when J they have secure and safe public transport and ready access

Marais J

A to telephones, when the ethos which prevails in the neighbourhoods in which they live is one of community esprit de corps which translates into a readiness to co-operate with the authorities in bringing to justice those who commit crimes, and where fear of reprisal is not so great that civic duty is ignored, the Courts may well conclude that society is best served by giving to persons accused of crime the greatest possible B latitude with regard to such matters as disclosure of what is in police dockets, and pre-trial access to witnesses whom the State intends to call. A less indulgent attitude may have to be taken by Courts which function in a society afflicted by growing lawlessness, a society in which millions of citizens are insecure and vulnerable to the depredations of criminals, in which a political culture of non-co-operation with investigating C authorities has taken root and will take time to eradicate, and in which

fear of reprisal is also endemic. The prospect, for example, of an accused being permitted to confront, prior to trial, already fearful witnesses for the State, and aggressively to interrogate them D extracurially, is not an appealing one. The scope such an opportunity creates for fabricated allegations that, when the accused interviewed the witness, the witness said something which contradicts the evidence given by the witness in court, is manifest. So is the scope for both subtle and unsubtle intimidation. We are not called upon in this case to rule upon that particular question, but I feel obliged to say, with respect, that the views expressed on this particular topic in some of the cases give me E cause for concern.

In S v Sefadi 1995 (1) SA 433 (D) (1994 (2) SACR 667) at 447F (SA) and 682g-h (SACR) it was said that reasoning of this kind is illegitimate because it

'assumes in advance of the trial that the accused is guilty of the offence charged and is likely to act dishonestly and consequently offends against F the principle contained in s 25(3)(c) of the Constitution which vests the accused with the right to be presumed innocent'.

With respect, I cannot agree. The fact that an accused is constitutionally presumed to be innocent does not mean that a court is precluded from at least recognising the possibility that he or she may be G guilty, and that a court may not, by adopting pre-trial procedural principles which cater for that possibility, seek to reduce the risk of justice possibly being thwarted by the invocation by the accused of extravagantly conceived 'rights'. The presumption of innocence is not an irrebuttable one.

Some of the debate surrounding questions of pre-trial disclosure in criminal trials appears to me, with respect, to be characterised by H unhelpful rhetoric, dubious a priori assumptions, and misconceptions as to what happens elsewhere in the free world. One sees, for example, assertions that trial 'by ambush' is not calculated to produce the truth, but that full pre-trial disclosure is, that the risk of full disclosure resulting in perjurious 'tailoring' of evidence is insignificant, and that in the USA the pre-trial disclosure of witnesses' statements is regarded I as essential to a fair trial. None of these propositions seem to me to bear examination.

In the USA one finds the following passages in the Corpus Juris Secundum 2nd ed vol 22A:

'The authorities are divided as to whether the defence is entitled to disclosure of prior statements of prosecution witnesses during the trial proceedings.'

J (Paragraph 511.)

Marais J

A 'Under Federal practice, the accused in a criminal case is not entitled to a pre-trial inspection of statements of prospective prosecution witnesses.'

(Paragraph 512.)

'The due process clause in the Constitution of the United States entitles the accused only to exculpatory evidence in the prosecutor's possession.'

B (Paragraph 487.)

'The Jencks Act provides that after a witness called by the United States has testified on direct examination, the court shall, on motion of accused, order the United States to produce any statement of the witness in the possession of the United States which relates to the subject-matter C as to which the witness has testified. . . . The statute requires production of a witness' statement only after the witness has testified. It has been held that before the witness' direct testimony at trial, the court is without jurisdiction to order the disclosure of the witness' statement, except the witness' grand jury testimony, and statements constitutionally required to be disclosed, but there is also authority for ordering the material to be furnished before the witness' testimony.'

D (Paragraph 513.) In vol 16C one finds the following:

'In a criminal case, a pre-trial discovery in favour of the accused is not required by due process and, as a general principle, the due process clause has little to...