Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Pages: 62-72
• Author: Managay Reddi
• Date: 16 August 2019
• Published date: 16 August 2019

Criminal procedure

MANAGAY REDDI

University of KwaZulu-Natal, Durban

Right to a fair trial – docket privilege

Following the Constitutional Court’s decision in Shabalala v Attorney-

General of Transvaal 1995 (2) SACR 761 (CC) [1996 (1) SA 725], t he

‘blanket’ docket privi lege t hat existed in South African law, which

denied accused persons access to documents that formed part of the

police docket, was found to be in conf‌lict with the fair trial guar-

antee contained in the Bill of Rights. Consequently, docket pr ivilege

no longer applies to document s t hat are incriminating, exculpatory

or prima facie likely to assist an accused in h is or her defence (at

para 72). However, the exercise of the protection of the right to a fai r

trial entitles an accused to not just w itness statements or exhibit s but

also to all documents that may have a bearing on the accused’s ability

to ‘adduce and challenge evidence’ (at para 57).

Although not an issue in contention on appeal in National Director

of Public Prosecutions v King 2010 (2) SACR 146 (SCA), the ef fect of

Shabalala is not that t he ‘blanket’ docket privilege has been replaced

by ‘a blan ket right to every bit of information in the hands of the

prosecution’ (at 150g). Instead, the focus of the appeal was whether, as

part of the r ight to a fair trial, an accu sed is entitled to a full descrip-

tion of each and every document to which he was denied access by

the prosecution (at 151b). Stated simply, the issue in King was whether

the accus ed was entitled to an index of t he documents to which he

has been denied access, as an advance assurance th at the trial will be

fair?

The High Court, before which an order had been sought compelling

the prosecution to provide the accused with such an index, had found

for the accused, a decision that now formed the basis of the appeal

to the Supreme Court of Appeal by the National Director of Public

Prosecutions. The i ssues on appeal were twofold: f‌irst, whether the

‘interlocutory’ order granted by the High Cou rt was of f‌inal effect,

failing which it would not be able to b e appealed before the f‌in alisa-

tion of the trial; and second, if appealable, whether the High Court

was correct in having granted such an order.

In answering the f‌irst issue, the Supreme Cour t of Appeal stated

that although, on the face of it, the order appeared to be interlocutory

in nature, and since ‘interlocutory’ order s are not normally judgments

or orders but rulings, the view that it was not f‌inal in effect was un-

62 SACJ . (2011) 1

(2011) 24 SACJ 62

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