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

• Jurisdiction: South Africa
• Citation: 1995 (2) SA 460 (C)

Nortje and Another v Attorney-General, Cape, and Another
1995 (2) SA 460 (C) [*]

1995 (2) SA p460

Citation	1995 (2) SA 460 (C)
Case No	9125/94
Court	Cape Provincial Division
Judge	Fagan Djp, Marais J, Scott J
Heard	September 9, 1994; September 30, 1994
Judgment	February 7, 1995

Flynote : Sleutelwoorde G

Constitutional law — Human rights — Right of access to State information in terms of s 23 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Police docket — Accused's right of access to before H trial — Section 23 of Constitution applicable to criminal trials — Word 'required' in s 23 meaning 'reasonably required' — Section 23 not complied with where only summaries of statements supplied — Essential content of such right to information is access to whatever information prosecution possesses which could be of use to accused in preparing for, and defending I himself at, the trial — Privilege in respect of statements in police docket negating essential content of right conferred by s 23 — Accused entitled to pre-trial disclosure of statements of State witnesses as well as of persons State did not intend to call. J

1995 (2) SA p461

A Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Traditional rules of interpretation inappropriate — Liberal, broad and generous interpretation may so 'overshoot' purpose of right that purposive interpretation is preferred and used to pare down generous interpretation — Although B approaches adopted by other Courts and constitutional lawyers undoubtedly a valuable aid to understanding processes of interpretation, they are not holy writ but simply methodological approaches which were not necessarily the only legitimate approach to the task — Proper approach set out.

Costs — Party and party — Against Attorney-General (the State) — Semble: C Not desirable that costs orders should be made against State when criminal prosecutions fail, appeals succeed or applications the State resists are granted — Even less reason to consider granting costs order against State in interlocutory applications such as applications, based on s 23 of Constitution of the Republic of South Africa Act 200 of 1993, for access D to information held by the State.

Headnote : Kopnota

The applicants, who were facing trial in a regional court on a number of charges of fraud and theft, applied for an order setting aside the decision of second respondent, a regional magistrate, refusing an application for an order directing the prosecutor to make available to the E applicants copies of statements of the State witnesses. The applicants had also sought an order ordering the first respondent to deliver to the applicants the statements of the State witnesses contained in the police docket relevant to their prosecution, alternatively summaries of each of the said statements, sufficiently detailed to reflect their material features. The applicants contended that they were entitled to copies of the statements in terms of the provisions of s 23 in chap 3 of the F Constitution of the Republic of South Africa Act 200 of 1993.

The Court remarked that it was important, 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 was to operate. In relatively peaceful communities a court may very well conclude that society is best served by giving to accused persons the greatest possible latitude in regard to disclosure of the contents of police dockets, G whereas a less indulgent attitude in a society afflicted by growing lawlessness might have to be adopted. (At 464I-465C/D), in summary.)

As regards the interpretation of the Constitution Act, the Court held that many (but not all) of the traditional rules of interpretation were inappropriate (at 471F/G-G): by and large the constraints imposed by traditional rules resulted in a too restrictive and legalistic approach to legislation of this kind and would frustrate both contemporary and future H Courts' efforts to accommodate changing social dynamics over the years. (At 471H/I-I.) Liberal, broad, generous and purposive approaches do not always have the same result — a generous or a liberal interpretation of a conferred right may so 'overshoot' the purpose of the right (as ascertained from a 'purposive' interpretation of the right) that the purposive interpretation is preferred to, and used to pare down, the generous interpretation. (At 471I/J-472B.) Although the approaches adopted by other Courts and constitutional lawyers to the interpretation, limitation and application of constitutionally entrenched rights are undoubtedly a valuable aid to understanding what is entailed in those I processes, they were not holy writ but were simply methodological approaches which were not necessarily the only legitimate approaches to the task. (At 472F-G.) The Court went on to hold that it needed to be emphasised that the criteria which had to be taken into account required value judgments to be made, and priorities to be determined ad hoc, whenever a problem was presented for a court's consideration. Once having determined what the reach of the conferred and entrenched right was J intended to be

1995 (2) SA p462

A (essentially a question of interpretation), it has to be considered whether a limitation of that right (as provided for in s 33 of the Constitution) was 'reasonable', whether it was 'justifiable in an open and democratic society based on freedom and equality', sometimes whether it was 'necessary' and always whether it 'negates' the 'essential content' of the entrenched right. These were questions of judgment rather than questions of interpretation. (At 472H-I/J.)

B The Court held that the State's contention that s 23 of the Constitution was not applicable to criminal trials was not justified. (At 473H-474D), in summary.) The Court held that the word 'required' in s 23 meant 'reasonably required' — statements in the police docket of witnesses to be called would ordinarily be reasonably required by an accused person in order to prepare for trial in a criminal prosecution (at 474G/H-H/I): the reasonableness of the request had to be judged by taking the respective positions of both the accused and the State into account. (At 474I.)

C On behalf of the State it was submitted that the following factors justified the continued recognition of the privilege in relation to witnesses' statements in the police docket: (a) there was a danger that, if the accused person was made aware of the evidence against him, he would manufacture evidence in contradiction, or 'tailor' his case so as to fit in with that of the State and so defeat the ends of justice; (b) armed with the witnesses' statements, the accused person would be in a better position to tamper with those witnesses and to attempt to persuade them to D change or adjust their evidence; (c) inadequacies and inaccuracies in the statements resulting from language problems and the taking of statements by inexperienced or inadequately trained policeman 'would be a target for cross-examination which, instead of revealing the truth, may obscure it'; and (d) witnesses may be reluctant to give statements if they know that they are to be handed to the accused person. (At 476G/H-477A/B.) As E regards (a) and (b), the Court held that there was such a risk, but such risk had to be seen in perspective. (At 477B/C-C/D.) It had to be borne in mind, furthermore, that the same risks were also present in those cases in which preparatory examinations were held in the past. (At 477E.) As regards (c), the Court held that judicial officers in South Africa were not unfamiliar with those problems and would undoubtedly bear them in mind when dealing with such inadequacies and omissions: it was in any event better that the problem of inaccuracies in witnesses' statements be aired F and debated in open court rather than have their significance left entirely in the hands of prosecutors. (At 477I-478A/B.) As regards (d), the Court held that in the vast majority of cases the potential witnesses, when making statements, would appreciate that they would eventually have to give evidence in court and would not be deterred from coming forward by the mere fact that their statements would be handed over to the defence shortly before the trial. (At 478B/C-C/D.)

The Court held further that the disclosure of the State's statements G conferred valuable benefits upon an accused in making his or her defence (at 478F/G-479C) paraphrased): to confine the accused to summaries of the statements was a pale and unsatisfactory substitute for the actual information to which s 23 entitled the accused. (At 479H/I-I/J.) The Court held further that, even if the State's right to invoke this particular form of privilege were found to be reasonable and justifiable in an open and democratic society based on freedom and equality and even necessary, H it could not be allowed to prevail because it would negate the essential content of the accused's right to be given the statements themselves in order to exercise his or her right to defend himself or herself to the best of his or her ability. (At 479I/J-480A/B.) As regards the question of whether the privilege referred to in R v Steyn 1954 (1) SA 324 (A) was justifiable under s 33 of the Constitution, the Court was of the opinion that the first matter to be considered was whether the form of privilege negated the essential content of the right conferred by s 23: it would be I pointless to examine such questions as reasonableness, justifiability and necessity if the proposed limitation negated the essential content of the entrenched right. (At 482F/G-H.) The right in question the Court considered was the...