S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat

• Jurisdiction: South Africa
• Judge: Chaskalson P; Langa DP; Ackermann J; Goldstone J; Kriegler J; Madala J; Mokgoro J; O' Regan J; Sachs J; Yacoob J
• Judgment Date: 03 June 1999
• Citation: 1999 (4) SA 623 (CC)
• Docket Number: CCT 21/98; CCT 22/981; CCT 2/99; CCT 4/99
• Counsel: P J Blomkamp for the appellant in the Dlamini case (at the request of the Court). F H Buntting for the State in the Dlamini case. J Engelbrecht SC for the appellant in the Dladla case. J A van S d'Oliveira SC (with him J van Jaarsveld) for the State in the Dladla case. J Slabbert for the State in the Schietekat and Joubert matters. A M Breitenbach and G H Rossouw for the respondents in the Schietekat and Joubert matters.
• Court: Constitutional Court

Kriegler J:

Introduction I

[1] Each of the four cases considered in this judgment is concerned with the constitutional validity of one or more provisions of the South African law relating to bail. These provisions relate to the admissibility of the record of bail proceedings at trial, the test in the grant of bail particularly J

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where serious offences are concerned, and access to the police docket for A purposes of a bail application. Some provisions are challenged in more than one of the cases; several of the challenges rely on more than one constitutional ground and many of the provisions being challenged are interrelated. It is therefore sensible to examine the various constitutional challenges together rather than on a case-by-case approach. B

[2] Although the transition to the new dispensation kept the general body of South African law [1] and the machinery of State [2] intact, the advent of the Bill of Rights [3] exposed all existing legal provisions, whether statutory or derived from the common law, to reappraisal in the light of the new constitutional norms heralded by that transition. [4] The retention of the existing C legal and administrative structures facilitated a reasonably smooth transition from the old order to the new. But the transition did have an effect on the country's criminal justice system. People who had acquired specialised knowledge of the system, and had become skilled and sure-footed in its practice, were confronted with a new environment and lost their confidence. Particularly in the lower courts, where the D bulk of the country's criminal cases is decided, judicial officers, prosecutors, practitioners and investigating officers were uncertain about the effect of superimposing the norms of a rights culture on a system that had evolved under a wholly different regime; and about the effect of that superim- E

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position in a given case. [5] Bail was no exception. A On the contrary, much of the public debate, [6] and much of the concern in official circles about law enforcement has been directed at the granting or refusal of bail. [7]

[3] The origins of bail are 'obscured in the mists of B Anglo-Saxon history' [8] and its modern dimensions remain 'an incoherent amalgam of

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old and new ideas serving more to defeat than to achieve the aims of A the criminal process'. [9] In South Africa, judicial pronouncements on the topic have been called 'labyrinthine'. [10] There is murkiness even at the elemental level of the source(s) of South African judicial power to grant bail, ie whether the power derives exclusively from - and is circumscribed by - chap 9 of the Criminal Procedure Act [11] (the CPA) or whether there is a parallel B reservoir of 'inherent' or 'common-law' power on which a Judge can draw. [12]

[4] An important aim of this judgment is to show that the application of constitutional norms to the law and practice of bail does not complicate the task of judicial officers but clarifies it. At the same time it will be shown how recent amendments to the relevant C statutory provisions are to be harmonised with those constitutional norms.

[5] The starting point of the exercise is s 35(1)(f) of the Constitution, which provides the principal template against which chap 9 of the CPA must be measured. It reads as follows: [13] D

'Everyone who is arrested for allegedly committing an offence has the right -

. . . E

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(f)

to be released from detention if the interests of A justice permit, subject to reasonable conditions.'

The context of that provision is the rest of s 35(1) and s 35(2), which protect the rights of arrested and detained persons. Section 35(1) spells out the rights of arrested persons: the right to remain silent; to be informed of the right and of the consequences of waiving B it; and the right not to be compelled to make an admission or confession. Then, particularly relevant to the present context, s 35(1) affords an arrestee the right to be brought before a court as soon as reasonably possible, but within 48 hours of arrest, and at that first appearance to be charged, or told the reason for further detention, or released. Section 35(2) likewise makes detailed provision for the protection of the interests of detainees, assuming that detention is constitutionally acceptable. C

[6] Section 35(1)(f), in its context, makes three things plain. The first is that the Constitution expressly acknowledges and sanctions that people may be arrested for allegedly having committed offences, and may for that reason be detained in custody. The Constitution itself therefore places a limitation on the liberty D interest protected by s 12. [14] The second is that notwithstanding lawful arrest, the person concerned has a right, but a circumscribed one, to be released from custody subject to reasonable conditions. The third basic proposition flows from the E second, and really sets the normative pattern for the law of bail. It is that the criterion for release is whether the interests of justice permit it. What that term means, both in the Constitution and in s 60 of the CPA, is central to much of this judgment, and will be thrashed out later. All that need be said at this stage is that s 35(1)(f) postulates a judicial evaluation of different F factors that make up the criterion of the interests of justice, and that the basic objective traditionally ascribed to the institution of bail, namely to maximise personal liberty, [15] fits snugly into the normative system of the Bill of Rights. It is accordingly important that the rules of that institution, which are said by some to be at odds with those values, be scrutinised systematically. The four cases before us offer an appropriate framework to do so.

[7] The next point of reference is chap 9 of the CPA. That is G where the effect, rules and consequences of bail are primarily to be found. Chapter 9 of the CPA is therefore not only an invaluable point of reference in any general enquiry into the law of bail and a primary source to be consulted in looking for an answer to any specific bail H question, but provides a comprehensive framework in which any answers can be judged. Tiresome though it may be, it is therefore necessary to outline the basic provisions of the whole of chap 9. [16] I

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'58. Effect of bail A

(A)n accused who is in custody shall be released from custody upon payment of . . . the sum of money determined . . . and . . . the release shall . . . endure until a verdict is given . . . or . . . sentence is imposed. . . .

59. Bail before first appearance . . .

(1)(a) An accused . . . in custody in respect of any [specified minor] offence . . . may . . . be released on bail . . . by any police official of . . . the rank of non-commissioned officer. . . .' B

[Subsection (2) affords such 'police bail' the same effect as ordinary bail.]

'59A. Attorney-General may authorise release on bail C

(1)[An Attorney-General or an authorised prosecutor may, in consultation with the investigating officer and in respect of Schedule 7 offences, grant bail.]

. . .

(4) [Such release then endures until the accused's first appearance in court.]

(5) [The court then extends, amends or considers bail afresh in terms of s 60.]

. . . D

(7) [This bail is tantamount to ordinary bail under s 60.]

60. Bail application . . . in court

(1)(a) An accused who is in custody in respect of an offence shall, subject to the provisions of s 50(6) and (7), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, unless the court finds that it is in the interests of justice that he or she be detained in custody. E

. . .

(c) If . . . bail is not raised by the accused or the prosecutor, the court shall ascertain from the accused whether he or she wishes [bail] to be considered. . . .

(2) In bail proceedings the court -

(a) may postpone . . . such proceedings . . .;

(b) [may acquire undisputed information F informally];

(c) may . . . require . . . the prosecutor or the accused [to adduce evidence];

(d) shall . . . require . . . the prosecutor to place on record the reasons for not opposing . . . bail . . . .

(3) [If reliable or sufficient information or evidence is lacking the court shall G order its production.]

(4) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established:

(a)

Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or

(b)

where there is the likelihood that the H accused, if he or she were released on bail, will attempt to evade his or her trial; or

(c)

where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d)

where there is the likelihood that the I accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;

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(e)

where in exceptional circumstances there A is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security; or (sic)

(5) In considering whether the ground in ss (4)(a) has been established, the court may, where applicable, take into account the following factors, namely -

(a)

the degree of violence towards others implicit in the charge against the accused;

(b)

any threat of violence which the accused B may have made to any...