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

• Jurisdiction: South Africa

S v Dlamini;
S v Dladla and Others;
S v Joubert;
S v Schietekat
1999 (2) SACR 51 (CC)

1999 (2) SACR p51

Citation	1999 (2) SACR 51 (CC)
Court	Constitutional Court
Judge	Kriegler J
Heard	February 18, 1999; March 10, 1999
Judgment	June 3, 1999
Counsel	P J Blomkamp for the appellant in the Dlamini case; 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; A M Breitenbach and G H Rossouw for the respondent in the Schietekat and Joubert cases; J Slabbert for the State in the Schietekat and Joubert cases

Flynote : Sleutelwoorde B

Bail — Pending trial — When to be granted — Criminal Procedure Act 51 of 1977 s 60(4) to (9) — Subsections (4) to (9) not intended as deeming provisions and not unconstitutional by virtue of being in conflict with the separation of powers principle. C

Bail — Pending trial — When to be granted — Criminal Procedure Act 51 of 1977 s 60(4)(a) and (5) — Subsections (4)(a) and (5) not allowing constitutionally impermissible preventive detention.

Bail — Pending trial — When to be granted — Criminal Procedure Act 51 of 1977 s 60(4)(e) and (8A) — Although these D provisions infringed the right to be released from custody in s 35(1)(f) of the Constitution Act 109 of 1996, they were saved by s 36 of the Constitution.

Bail — Pending trial — When to be granted — Criminal Procedure Act 51 of 1977 s 60(11) — Balance between liberty of accused and interests of society has to be determined in terms of ss (11)(a) departing from constitutional E standard set by s 35(1)(f) of Constitution Act 109 of 1996 — Provision restricted to narrow range of crimes — Term 'exceptional circumstances' not too vague — Background to assessment of constitutionality the deplorable levels of violent crime — Limitation in s 60(11)(a) an unusual one and possibly more invasive than in other countries but reasonable and justifiable.

Bail — Pending trial — When to be granted — Criminal Procedure Act 51 of 1977 s 60(11) — Onus in s 60(11)(a) — Such F onus not objectionable — Onus not difficult to discharge.

Bail — Pending trial — Access to police docket — Criminal Procedure Act 51 of 1977 s 60(14) — Notwithstanding provisions of ss (14) prosecutor may have to be ordered by the court under ss (11) to lift the veil in order to afford G the arrestee the reasonable opportunity prescribed there — Subsection (14) cannot be read as sanctioning a flat refusal on the part of the prosecution to divulge any information relating to pending charges — Read restrictively, no fault to be found with ss (14).

Bail — Pending trial — Application for — Record of proceedings — Admissibility of record at subsequent trial — First part of s 60(11B)(c) of Criminal Procedure Act 51 of 1977 which automatically incorporated bail record into trial H record unremarkable provision which merely provided for a shortcut procedure — Provided trial courts exercised caution to exclude evidence which would impair the fairness of proceedings before them, accused's right to silence not impaired by this provision. I

Headnote : Kopnota

In four matters referred to the Court on appeal, the issues required a determination of the constitutionality of provisions of the Criminal Procedure Act 51 of 1977 relating to bail. The issues which required determination on appeal were: (1) whether the Constitution automatically and without more rendered statements made by an accused person when applying for bail J

1999 (2) SACR p52

A inadmissible at such person's subsequent trial; (2) the constitutional propriety of exposing an applicant for bail to cross-examination that may later prove to have impaired that person's immunity against self-incrimination; (3) whether the provisions of the Criminal Procedure Act which prescribed the conditions under which it would be regarded as being in the interests of justice to release a person on bail infringed the doctrine of separation of Executive and B Judicial functions; and (4) the constitutional propriety of withholding access to the contents of a police docket for the purposes of a bail application.

The Court emphasised that the application of constitutional norms to the law and practice of bail did not complicate the task of judicial officers but rather clarified it. The Court took as its C starting point the provisions of s 35(1)(f) of the Constitution of the Republic of South Africa Act 109 of 1996 which postulated a judicial examination of different factors that made 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, fitted snugly into the normative system of the Bill of Rights contained in the Constitution. It was accordingly important that the rules of that institution which were alleged to be at odds with those values be scrutinised D systematically. As regards the provisions of Chapter 9 of the Criminal Procedure Act relating to bail, the Court remarked that the chapter created a complex and interlocking mechanism that was clearly designed to govern the whole procedure whereby an arrested person may be conditionally released from custody, prescribing the components of that mechanism in minute and sequential detail. It was evident further that the grant of bail was unmistakably a judicial E function and the Legislature viewed bail in a serious light. This was clear from the major amendments to the Criminal Procedure Act in 1995 and 1997 (the Criminal Procedure Second Amendment Act 75 of 1995 and the Criminal Procedure Second Amendment Act 85 of 1997). The amendments to the Act effected by these amending Acts were clearly an attempt F on the part of the Legislature to align the principle of bail with the constitutional norm of s 25(2)(d) of the interim Constitution (Act 103 of 1993) and to tighten up and clarify the whole bail system.

As regards the contention that ss 60(4) to (9) of the Act offended against the separation of powers principle, the Court held that although one had to endorse the objection to a deeming G provision in a statute which had the effect of obliging a court to come to an unjust factual conclusion conflicting with that to which an objective evaluation would lead and which might also conflict with a provision of the Bill of Rights, the question in the instant case was whether s 60(4) was indeed such a provision. If one were to read the opening sentence of ss (4) without regard to the provisions of s 60(1)(a) and s 60(9) of the Act and s 25(2)(d) of the interim H Constitution, it could possibly be regarded as a mandatory injunction to a judicial officer to conclude that something was or was not in the interests of justice, irrespective of the judicial officer's own conclusion. One had however to read the provisions together and if one read the provisions against the background of the differing constitutional regimes pertaining at the times of their amendment it could be seen that ss (4) to (9) were not intended as deeming I provisions at all but as pointers towards the categories of factual findings which could ground a conclusion that bail should be refused. Whether and to what extent any one or more of such pros and cons were found to exist and what weight each should be afforded, was left to the good judgment of the presiding judicial officer. The Court held accordingly that ss (4) to (9) of s 60 were not unconstitutional by virtue of being in conflict with the principle of the separation of J powers.

1999 (2) SACR p53

As regards the conflicting use of the phrase 'interests of justice' in s 60, the Court held that the A present case was one of those rare instances where one was compelled to deviate from the presumption of legislative consistency. It was plain that the drafters of the 1995 amendment failed to distinguish between two separate and distinct meanings of the phrase. In three of the six subsections that were inserted at that stage, the phrase was used synonymously with the interim Constitution's criterion for bail but in three of the subsections ((4), (9) and (10)) B something different must have been intended. In those subsections the drafters must have been contemplating something closer to the conventional 'interests of society' concept or the interests of the State representing society. Subsections (4), (9) and (10) should therefore be read as requiring of a court hearing a bail application to do what courts have always had to do, namely to bring a reasoned and balanced judgment to bear in an evaluation where the liberty C interests of the arrestee are given the full value accorded by the Constitution. More pertinently than in the past a court was now obliged by s 60(2)(c), (3) and (10) to play a pro-active role and was helped by ss (4) to (9) to apply its mind to a whole panoply of factors potentially in favour of or against the grant of bail. The Court then proceeded to examine the challenge to s 60(4)(a) and (5) which, it was contended, allowed preventive detention which was D constitutionally impermissible.

The Court held that although para (a) did not fall within the ambit of the trial-focused objectives of pre-trial detention, it did have a legitimate objective recognised at common law and sanctioned by the Constitution: s 35(1)(f) of the Constitution neither expressly nor impliedly E required that in considering whether the interests of justice permitted the release of a detainee pending trial, only trial-related factors were to be taken into account. The broad policy considerations contemplated by the 'interests of justice' test, in that context, could legitimately include the risk that the detainee would endanger a particular individual or the public at large. Less obviously, but nonetheless...