S v Majavu

• Jurisdiction: South Africa
• Citation: 1994 (4) SA 268 (CK)

S v Majavu
1994 (4) SA 268 (CK)

1994 (4) SA p268

Citation	1994 (4) SA 268 (CK)
Case No	CC 10/94
Court	Ciskei General Division
Judge	Heath J
Heard	June 9, 1994; June 10, 1994
Judgment	July 1, 1994

Flynote : Sleutelwoorde B

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Courts — Jurisdiction — Jurisdiction in matters relating to violation of fundamental rights — Ciskei General Division — Such Court deemed by s 241(1) to have been duly constituted in terms of Constitution and to be regarded as a Provincial or Local Division — C Accordingly having jurisdiction provided for in s 101(3) of Constitution.

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Courts — Jurisdiction — Effect of provisions of s D 241(8) of Constitution — Section 241(8) making provision for area of jurisdiction in which a court was operative — Section also providing that court would continue to be operative in such area of jurisdiction in which it was operative prior to commencement of Constitution — Accordingly, s 241(8) not excluding operation of Constitution in pending matters.

E Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Formerly independent States within national territory — Ciskei — Effect of coming into operation of Constitution Act — Bill of Rights of Ciskei contained in Republic of Ciskei Constitution Decree 45 of 1990 (Ck) not surviving the adoption of the new South African Constitution. F

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 — Provisions of s 23 not a criminal discovery measure aimed at G criminal litigation as such — Provisions of s 23 entitling accused to information in the possession of prosecution at any stage of the investigation or the prosecution in order to prepare his defence — Such provisions going hand in hand with those of s 25 entitling accused to have fair trial — But such provisions subject to limitations provided for by s H 33 where the prosecution can prove on a balance of probabilities that the limitation is applicable — Onus on prosecution to prove that it is entitled to rely on common-law privilege against disclosure.

Headnote : Kopnota

The applicant, who was indicted to stand trial on a charge of murder in the Ciskei General Division, applied for an order compelling the State to I furnish him with copies of all relevant documentation and information in its possession regarding his pending trial. The order sought required the State to produce documentation and information including all witness statements; names, addresses and occupations of all possible witnesses and other people with relevant information; notes; reports; and, in the absence of witness statements, a comprehensive summary of the expected evidence of such a person; exhibits, plans and diagrams; and all information in the possession of the State relating to evidence that might be relevant to the criminal trial. The Attorney-General, on behalf of the J State, opposed the relief on a number

1994 (4) SA p269

A of grounds, inter alia, (a) that the Ciskei General Division was not a Provincial or Local Division as envisaged by the provisions of s 101 of the Constitution of the Republic of South Africa Act 200 of 1993 and, therefore, did not have jurisdiction to adjudicate on matters referred to in s 101(3) of the Act; (b) that as the prosecution was pending when the Constitution Act came into operation the jurisdiction of the Court was specifically excluded by the provisions of s 241(8) of the Constitution; (c) that it was not clear whether the Ciskei Bill of Rights contained in B the Republic of Ciskei Constitution Decree 45 of 1990 (Ck) survived the adoption of the new South African Constitution; and (d) that the right relied upon and provided for in s 23 (in chap 3) of the Constitution was in itself defined and limited by the common-law privilege that the State has as regards the police docket and the contents thereof and, in the alternative, that the common-law privilege constituted a limitation as envisaged by the provisions of s 33 of the Constitution.

C Held, as to (a), that from the provisions of s 241(1) it was clear that the Ciskei General Division which existed before the Constitution came into operation on 27 April 1994 was deemed to have been duly constituted in terms of the Constitution: as only three categories of Superior Courts were provided for in s 101(1) and the General Division was clearly not an Appellate Division, it had to be regarded as a Provincial or a Local Division. (At 291G/H-H and H/I-I.)

Held, further, that that being the position, the Ciskei General Division was then entrusted with the jurisdiction provided for by the provisions of s 101(3). (At 291I/J.) D

Held, as to (b), that when s 241 was read as a whole it became clear that ss (8) made provision for the area of jurisdiction in which a Court was operative and it was provided in terms of this subsection that such a Court would continue to be operative in such an area of jurisdiction in which it was operative prior to the Constitution becoming operative. (At 292D/E-E.)

Held, accordingly, that s 241(8) therefore did not exclude the operation of the Constitution as far as pending matters were concerned. (At 292E/F.) E

Held, as to (c), that it was a matter of simple constitutional law that no country could be governed by two different constitutions simultaneously and as a matter of simple interpretation the second Constitution would then inevitably repeal or replace the original Constitution. (At 292H-H/I.)

Held, further, that in any event the Ciskei Bill of Rights had in fact been repealed in terms of a decree promulgated by the interim government F and that the new Bill of Rights had clearly been accepted by the majority of the population which would make a referendum provided for in terms of the old Ciskei Bill of Rights unnecessary. (At 292H/I-I/J.)

Held, accordingly, that the Ciskei Bill of Rights did not survive the new South African Constitution. (At 292G/H.)

Held, as to (d), that the provisions of s 23 of the Constitution were not a criminal discovery measure aimed at criminal litigation as such but were G aimed at the right to access to information in possession of a government organ. (At 308E and 319B-B/C.)

Held, further, that the provisions of s 23 entitle an accused to information in possession of the prosecution at any stage of the investigation or prosecution in order to prepare his defence or for the exercise or protection of a right: this is a general right subject only to the qualification that the right to discovery can be limited or discovery can be refused only where the police or the prosecution can prove on a H balance of probabilities in terms of the provisions of s 33 that they are entitled to limit or refuse access to information. (At 308F and 319C and E.)

Held, further, that each case and each particular refusal of access to information would be judged with reference to the provisions of s 33. (At 319E/F.)

Held, further, that hand in hand with the provisions of s 23 were the provisions in s 25 which entitle an accused to a fair hearing and in order to have a fair hearing the need may arise to have access to information in I the possession of the prosecution or the police in order to prepare his defence properly. (At 309E and 319D.)

Held, further, that the onus was on the prosecution or the police to prove that they were entitled to rely on the common law privilege and that they were therefore entitled to withhold information or documentation from the defence or to refuse discovery of a particular document or information in their possession. (At 315I and 319F.) The Court did not express any final views on the discovery applied for in the instant case and a decision on J the merits of discovery was therefore postponed. (At 319G.)

1994 (4) SA p270

Case Information

Application for an order compelling the State to make available to the defence items contained in the police A docket prior to the accused's trial in the Supreme Court on a charge of murder. The facts appear from the reasons for judgment.

R D Claassen SC (with him K V Matthee) for the applicant: As set out in B paras 2 and 3 of the notice of motion, this application in essence is one to compel the respondent to disclose to applicant and/or his legal representatives all relevant documentation (or copies thereof) and information in its possession regarding the criminal case pending against applicant. The basis of the application is the provisions of the C Constitution of the Republic of South Africa Act 200 of 1993 and more particularly ss 23 and 25(3)(b), (c) and (d) thereof. It is the contention of the applicant, on a proper interpretation of these provisions and the Constitution as a whole, that the applicant is entitled as of right to all that is sought in the notice of motion, and more, if anything has inadvertently been overlooked as regards any relevant aspects that may be D germane to the trial of the applicant.

Background: In order to properly evaluate and interpret the Constitution within the context of this application, it is important to reflect on what has been the status of this branch of the law (discovery in criminal cases) up until the present time. Discovery in criminal law has in brief E been limited to the following: (1) Under the old Criminal Procedure Act 56 of 1955 all Supreme Court criminal trials had to be preceded by a preparatory examination, the record of which together with the indictment, and any statements made by the accused, were available to...