Shabalala and Others v Attorney-General of Transvaal and Another

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 29 November 1995
• Citation: 1995 (2) SACR 761 (CC)
• Hearing Date: 10 March 1995
• Counsel: R K R Zeiss SC (with him S J J van Rensburg) for the applicants J A van S D'Oliveira SC (with him H M Meintjies and E Leonard) for the first respondentE Bertelsmann SC (with him J G Cilliers) for the second respondent
• Court: Constitutional Court

C Mahomed DP:

[1] Mr Shabalala and five others ('the accused') were charged with the crime of murder before Cloete J in the Transvaal Provincial Division of the Supreme Court. Before any evidence was led, various applications were made to the trial Court on behalf of the accused. These included applications for copies of the relevant police D dockets, including witnesses' statements and lists of exhibits in the possession of the State.

[2] These applications were all opposed by both the Attorney-General of the Transvaal and the Commissioner of the South African Police, who were cited as respondents. They were refused by Cloete J substantially on the grounds that the E accused had not satisfied the Court that the relevant documents in the possession of the State, were 'required' by them (within the meaning of s 23 of the Constitution of the Republic of South Africa 200 of 1993 ('the Constitution')) 'for the exercise of any of their rights to a fair trial'. [1]

F [3] A related application to the Court a quo for an order directing the State to make State witnesses available to the legal representatives of the defence, for the purposes of consultation, was also refused on the ground that the Court was unable 'to conclude that the applicants will not be given a fair trial' unless the Court departed from the G 'practice whereby an accused or his legal representative may only consult with a State witness with the consent of the prosecutor.' [2]

[4] Notwithstanding these conclusions, Cloete J was of the view that, because of their public importance, a ruling should be given by the Constitutional Court on a number of constitutional questions raised by the applications made on behalf of the accused. H Relying on s 102(8) of the Constitution, he accordingly made an order referring the following questions for decision by this Court -

'1.

Whether a Court interpreting the Constitution is bound by the principles of stare decisis to follow the decision of a superior Court; or whether such a I Court may hold that a decision of such superior Court (other than the Constitutional Court) is per incuriam because it incorrectly interprets the Constitution.

Mahomed DP

2.

A Whether s 23 of the Constitution can be utilised by an accused in the exercise of the rights contained in s 25(3) of the Constitution; and if so

2.1

Whether the accused should have access to the police dossier; and if so,

2.2

B To what extent, under what circumstances and subject to what conditions (if any) such access should be exercised.

3.

Whether any provision in the Constitution permits an accused to consult with prospective witnesses who have given statements to the police; and if so, under what circumstances and subject to what conditions (if any) such consultations should be exercised.' [3] C

The competence and terms of the referral

[5] It was held by this Court, in the case of Zantsi v Council of State, Ciskei and Others, [4] that three requirements had to be satisfied before a Supreme Court was entitled to refer a matter to the Constitutional Court in terms of s 102(8): D

'First, a constitutional issue must have been raised in the proceedings;

Secondly, the matter in which such issue was raised must have been disposed of by the Supreme Court; and E

Thirdly, the Division of the Supreme Court which disposed of the matter must be of the opinion that the Constitutional issue is of sufficient public importance to call for a ruling to be made thereon by this Court.' [5]

[6] I have some difficulty with the form and content of the questions referred by the Court a quo.

F [7] Paragraph 1 of the referral does not raise a constitutional issue at all. In the proceedings before Cloete J, there was a dispute as to whether or not Chapter 3 of the Constitution and, more particularly ss 23 and 25 thereof, were of application to proceedings which were pending before the commencement of the Constitution. There were a number of conflicting decisions before the decision of this Court in S v G Mhlungu and Others [6] on the proper interpretation of s 241(8) of the Constitution, which was the section relevant for the determination of that issue. In some of the cases on this issue decided in the Witwatersrand Local Division and the Transvaal Provincial Division of the Supreme Court, it was held that s 241(8) operated to bar an accused H person from relying on the provisions of Chapter 3 in proceedings which were pending immediately before the commencement of the Constitution. Cloete J (who was seised with the matter before the judgment of this Court in Mhlungu's case. [7] was given) held that the principles of stare decisis did not preclude him from coming to a different conclusion. I

[8] What the correct application of the stare decisis principle should have J

Mahomed DP

A been in the proceedings before Cloete J in the instant case is, however, not a 'constitutional issue' which falls within the jurisdiction of this Court, in terms of the Constitution. [8] The Supreme Court had jurisdiction to determine that question. It is simply the proper interpretation of a common law principle. It is not an issue which can B properly be referred to this Court in terms of s 102(8). In my view, this Court should accordingly decline to express its views on the issue raised by paragraph 1 of the order made by the Court a quo.

[9] Paragraphs 2 and 3 of the referral are also much too widely phrased. The question as to whether the common law of privilege articulated in the case of R v Steyn [9] (as it existed before the Constitution came into force) is in conflict with the Constitution, is C indeed a constitutional issue which should properly be determined by this Court. This Court is therefore entitled to decide whether that rule of the common law is consistent with the Constitution. However, it is for the Supreme Court in the first instance to determine what the content of the common law should be having 'regard to the spirit, purport and objects' [10] of the relevant provisions of the Constitution and to develop the common law. The manner in which the questions have been formulated by the Court a D quo does not distinguish sufficiently between these two issues and I therefore propose to confine myself substantially to two issues only and to deal with other factors only to the extent to which they impact, directly or indirectly, on the resolution E of these two issues. The two issues are:

(A)

Whether or not the common law privilege pertaining to the contents of police dossiers, defined in Steyn's case, [11] is consistent with the Constitution.

(B)

F Whether the common law rule of practice which prohibits an accused person or his or her legal representative from consulting with a State witness without the permission of the prosecuting authority, in all cases and regardless of the circumstances, is consistent with the Constitution.

Access to police dockets G

[10] According to the evidence in the Court a quo, the police docket normally consists of three sections: section A - witnesses' statements taken by an investigating officer; expert reports and documentary exhibits; section B - internal reports and memoranda; H and section C - the investigation diary. The claim of the accused in terms of the notice of motion to this kind of information in the possession of the State rested on the submission that s 23, as read with s 25(3) and s 35 of the Constitution, entitled them to access to such information as of right. The applications were opposed by the respondents inter alia on the grounds that s 23 was not applicable to an accused; that I s 25(3) was exhaustive of an accused's rights; that the provisions of the Criminal Procedure Act 51 of 1977 ('the Criminal Procedure Act') provided an accused with all necessary information J

Mahomed DP

A for a fair trial and hence that an accused was not entitled to access to the police docket as of right or at all. It was contended on behalf of the respondents that, in terms of the decision in R v Steyn [12] there was a 'blanket docket privilege' which protected the contents of a police docket from disclosure without the consent of the State and that nothing in the Constitution impacted upon that privilege.

B [11] Cloete J held that s 23 could competently be invoked by an accused person in a criminal trial but that -

'Section 23 does not mean that an accused is entitled, as of right and without more, to access to the police dossier; although an accused would be entitled to C access to the whole or part of a dossier if he could show . . . that he "required" this information to exercise or protect any of his rights in terms of s 25(3) of the Constitution.' [13]

[12] In order to decide whether or not an accused person is entitled to claim access to any of the contents of a 'police docket' and if so, to what extent and in what D circumstances such a claim can successfully be made, it is necessary to consider what the state of the law in this regard was prior to the Constitution and what impact, if any, the Constitution has had on such law.

[13] In the case of R v H [14] a Full Bench of the Transvaal Provincial Division of the Supreme Court upheld an appeal against a conviction on the ground that the magistrate E in the Court a quo had erred in refusing an application on behalf of the accused that a police witness who was giving evidence for the prosecution should produce the statements which he had taken from some of the witnesses. F

[14] The Appellate Division of the Supreme Court held in Steyn's case [15] however, that R v H [16] was wrongly decided and that

'when statements are procured from witnesses for the purpose that what they say shall be given in a lawsuit that is contemplated, these statements are protected against disclosure until at least the...