Phato v Attorney-General, Eastern Cape, and Another; Commissioner of the South African Police Services v Attorney-General, Eastern Cape, and Others

• Jurisdiction: South Africa
• Citation: 1995 (1) SA 799 (E)

Phato v Attorney-General, Eastern Cape, and Another;
Commissioner of the South African Police Services v Attorney-General, Eastern Cape, and Others
1995 (1) SA 799 (E)

1995 (1) SA p799

Citation	1995 (1) SA 799 (E)
Case No	1323/94 and 1369/94
Court	Eastern Cape Division
Judge	Zietsman JP, Jones J, Melunsky J
Heard	July 25, 1994; July 26, 1994; July 27, 1994; July 28, 1994; July 29, 1994;
Judgment	October 27, 1994

Flynote : Sleutelwoorde A

C Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Entrenchment of fundamental rights in a bill of rights not making them absolute — Purposive approach D to interpretation does not have to be liberal or generous approach — Court approving of approach whereby narrow interpretation given to rights but stringent standard of justification for limitations provided for in s 33 of Constitution maintained — Any limit upon definition or content of chap 3 right to be in accordance with proper and acceptable rules of constitutional interpretation.

E Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Right of access to State information in terms of s 23 of Constitution — Police docket — Effect of s 23 of Constitution — Right of access to information not an absolute right, but essential to have regard to underlying spirit F of Constitution — State's tight control of most of information relevant to criminal prosecution inconsistent with modern values of openness and accountability in a democratically oriented administration — Section 23 applicable in field of litigation conducted by or on behalf of State — On proper interpretation of s 23, accused person has right of access to G information contained in police docket for exercise and protection of his right to fair criminal trial — Such interpretation in line with the trend in democratic countries — Docket privilege not a reasonable and justifiable limitation on s 23 as intended in s 33(1) of Constitution.

H Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Right of access to State information in terms of s 23 of Constitution — Police docket — Effect of s 23 of Constitution — Word 'required' in s 23 not meaning that access to the docket has to be virtually essential for exercise of accused's right to a fair trial.

I Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Right of access to State information in terms of s 23 of Constitution — Police docket — Effect of s 23 of Constitution — When information to be furnished — Inappropriate to confer discretion on State official to withhold J information — Information

1995 (1) SA p800

A should be furnished in good time before the trial date and is a continuing duty as information becomes available — Qualification that investigation has to be completed in line with the values to be found in a democratic society with an accountable administration and police force.

B Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Right of access to State information in terms of s 23 of Constitution — Police docket — Effect of s 23 of Constitution — Who may claim privilege in respect of information in police docket — Attorney-General or prosecutor, C as the person who conducts trial, the proper person to decide whether to disclose contents of docket.

Criminal procedure — Evidence — Privilege — Docket privilege — Privilege to withhold some of information in police docket not justifying blanket privilege covering entire contents of the docket — Docket privilege not a D reasonable and justifiable limitation on s 23 of the Constitution of the Republic of South Africa Act 200 of 1993.

Headnote : Kopnota

In two applications, which were combined for the purposes of the judgment, the issue was the right of an accused to access to the police docket relating to the accused's impending trial in a magistrate's court on a E charge under the Witchcraft Suppression Act 3 of 1957. In the first application the applicant was the accused. His notice of motion sought an order declaring that the Attorney-General, alternatively the Commissioner of South African Police Services, was obliged to furnish him with copies of all relevant information contained in the police docket relating to the charge against him. The information required included all witness statements; all notes (including the investigation diary); all reports; all exhibits, plans and diagrams; and all information in the possession of F the Attorney-General relating to evidence which might be relevant to the trial. The applicant contended that he was entitled to this information by virtue of the provisions of ss 23 and 25(3) of the Constitution of the Republic of South Africa Act 200 of 1993. In the second application, the Commissioner of South African Police Services sought an order declaring that the privilege which existed in respect of the contents of police dockets immediately prior to the commencement of the Constitution Act was G not repealed or amended by s 23 or any other provision thereof but that the accused was entitled before trial only to copies of all medical, hospital and autopsy reports; summaries of other expert evidence to be tendered by the State; and copies of all documents relating to identification parades.

As regards the interpretation of s 23 of the Constitution, counsel for the applicant contended that the right of access to information was so H important that it was included in chap 3 of the Constitution among fundamental rights such as the right to equality before the law and the right to freedom from racial discrimination. Subject to the qualification that the purpose of the disclosure of the information was for the protection of some or other right and the general limitation of s 33(1) which applied to all rights in chap 3, the right of access to information was unqualified. Counsel for the Commissioner argued on the other hand that the right of access to information was not absolute, nor indeed was I any right in chap 3 of the Constitution: the State was only required to furnish an accused with such information as he required, in the narrow sense, to exercise his right to a fair trial, ie a trial in an adversarial system of litigation which recognised various privileges from having to disclose certain information to the other side as being paramount to its proper operation. This included the docket privilege of our law.

The Court held that the wording and spirit of s 23 was self-limiting to some extent: the entrenchment of fundamental rights in a bill of rights did not make them absolute and a purposive approach to interpretation did J not have to be a liberal or generous

1995 (1) SA p801

A approach. (At 810B/B-C/D.) One of the reasons for placing proper limits upon the content of a fundamental right in chap 3 was the interplay between the interpretative process of defining the right in the first place and the adjudicative process of determining whether a restriction upon the constitutional right as defined was justified in terms of s 33. (At 811E.) The Court approved an approach whereby a narrow interpretation was given to the rights but a stringent standard of justification for B limitations on those rights was maintained. This in the opinion of the Court was a disciplined and far-sighted approach to interpretation. Any limit, though, upon the definition or content of a chap 3 right had to be in accordance with proper and acceptable rules of constitutional interpretation as opposed to the narrow, legalistic interpretation which was appropriate to the interpretation of a detailed statute. (At 811F-G and 812D/D-E/F.)

The Court held that s 23 had to be interpreted and applied by having regard to the disciplines as well as the liberating forces released by the Constitution: there had to be recognition that the right of access to C information was not an absolute right; that the purpose of the Constitution in conferring it had to be established so that proper boundaries could be put in place, not merely in dealing with limitations under s 33(1) but, where necessary, with the content of the right itself; that all indications from the wording of the section, whether they tended towards extending or qualifying the right, had to be given proper weight; and that it was essential to have regard to the underlying spirit of the D Constitution and the mischief it was designed to exclude, which had to be ascertained from a reading of the Constitution as a whole. (At 814D-F.)

The Court held further that the practices of the past whereby the State retained tight control of almost all available information relevant to a

criminal prosecution was inconsistent with modern values of openness and accountability in a democratically oriented administration. (At 815B/C-C.) The mischief that s 23 was designed to prevent was the perpetuation of a system in which it was possible for government to escape accountability by E refusing to disclose information even if it had a bearing upon the exercise or protection of rights of the individual. (At 815D-E.) It was the inevitable result that s 23 had to apply in the field of litigation conducted by or on behalf of the State and had to apply to both civil and criminal litigation. (At 815F-G.)

The Court held accordingly that, on a proper interpretation, s 23 gave an accused person the right of access to the information contained in the police docket for the exercise and protection of his right to a fair F criminal trial. (At 816B.)...