Shabalala and Others v Attorney-General of Transvaal and Another

• Jurisdiction: South Africa
• Judgment Date: 29 November 1995
• Citation: 1995 (2) SACR 761 (CC)

Shabalala and Others v Attorney-General of Transvaal and Another
1995 (2) SACR 761 (CC)

1995 (2) SACR p761

Citation	1995 (2) SACR 761 (CC)
Court	Constitutional Court
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
Heard	March 10, 1995
Judgment	November 29, 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 respondent; E Bertelsmann SC (with him J G Cilliers) for the second respondent

Flynote: Sleutelwoorde

B Fundamental rights — Right to a fair trial — Right to have access to contents of police docket prior to trial — What a fair trial might require in particular case depends on the circumstances — No rigid rules desirable — Blanket docket C privilege unreasonable and unjustifiable in an open and democratic society and unnecessary — Where there is a reasonable risk that access might constitute a breach of State secrets, disclose methods of police investigation, the identity of informers and communications between legal advisor and client or lead to the intimidation of witnesses or otherwise impede the proper ends of justice, Court D must exercise proper discretion in balancing accused's needs for a fair trial against legitimate interests of State — Supreme Court to determine application of these principles on the basis of guidelines set out in judgment. E

Fundamental rights — Right to a fair trial — Right to consult with State witnesses — There may be circumstances where the right to a fair trial might justify a prior consultation with State witnesses — Blanket rule prohibiting such consultation could not be justified under s 33 of Constitution Act 200 of 1993 — Claim to F consult State witnesses without the prior permission of the prosecuting authority can only be justified where the right of the accused to a fair trial would in the special circumstances of the case be impaired if the defence is denied the opportunity to have such consultations — Court must have right to test the legitimacy of any such denial — Not sufficient for State to show that its belief that G there was a reasonable risk that access might lead to intimidation of witness or otherwise prejudice the proper ends of justice is bona fide; such belief to be reasonable in circumstances.

Fundamental rights — Right of access to information — Police docket — Right of access to by accused — In context of a criminal prosecution s 25(3) of H Constitution Act 200 of 1993 of direct application — Difficult to see how s 23 could take matter any further.

Fundamental rights — Generally — Referral of issue to Constitutional Court — Referral in terms of s 102(8) of Constitution Act 200 of 1993 — Whether Court obliged to follow principles of stare decisis doctrine not an issue which could be referred to Constitutional Court in terms of s 102(8). I

Headnote: Kopnota

The applicants were indicted to stand trial in a Provincial Division on a charge of murder. Before the trial, various applications were made to the trial Court on behalf of the applicants including an application that they be given copies of the relevant police dockets. The Court refused the applications, holding that the applicants had not satisfied the Court that the documents were 'required' J

1995 (2) SACR p762

A by them within the meaning of s 23 of the Constitution Act 200 of 1993 'for the exercise of any of their rights to a fair trial.' The Court ordered, however, that a number of constitutional questions raised by the applications be referred to the Constitutional Court for a ruling in terms of s 102(8) of the Constitution.

B The Court, per Mahomed DP, firstly considered the form and content of the questions referred by the Provincial Division and held that paragraph 1 of the referral (whether a Court interpreting the Constitution was bound by the principles of stare decisis to follow the decision of a superior Court) did not raise a constitutional question at all: the Provincial Division had jurisdiction to determine that issue which was merely the interpretation of a common law principle and was not an issue which could properly be referred to the Constitutional Court in terms of s 102(8). (At C paragraphs [7, 8].)

The Court also held that paragraphs 2 and 3 of the order were too widely stated. These paragraphs read as follows:

'2.

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

2.1

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

2.2

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 State 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.'

E The question as to whether the common law of privilege articulated in the case of R v Steyn 1954 (1) SA 324 (A) was in conflict with the Constitution was an issue which should properly be determined by the Constitutional Court. However, it was for the Supreme Court in the first instance to determine what the common law should be having regard to the spirit, purport and objects of the relevant provisions of the F Constitution and to develop the common law. The manner in which the questions had been formulated did not distinguish sufficiently between these two issues. The Court decided to confine itself to two issues, viz

(a)

Whether or not the common law privilege pertaining to the contents of police dockets, defined in Steyn's case, was consistent with the Constitution; G

(b)

Whether the common law rule of practice which prohibits an accused person or his legal representative from consulting with a State witness without the permission of the prosecuting authority, in all cases and regardless of the circumstances, was consistent with the Constitution. (At paragraph [9].)

H As regards the application of s 23 in regard to the issue of access to the police docket, the Court held that in the context of a criminal prosecution, s 25(3) was of direct application and that it was difficult to see how s 23 could take the matter any further. If the applicants were entitled to the documents in terms of s 25(3), nothing in s 23 could operate to deny that right and conversely, if the applicants could not legitimately contend that they were entitled to such documentation in terms of s 25(3) it I was difficult to understand how they could, in such circumstances, succeed in an application based on s 23. The real enquiry was therefore whether or not the applicants were entitled to succeed in their application on the basis of a right to a fair trial asserted in terms of s 25(3). (At paragraph [34].)

What a fair trial might require in a particular case depended on the circumstances: the simplicity of the case, either on the law or the facts or both; the degree of J

1995 (2) SACR p763

A particularity furnished in the indictment or the summary of substantial facts in terms of s 144 of the Criminal Procedure Act 51 of 1977; the particulars furnished pursuant to s 87 of the Criminal Procedure Act. In some cases, which might include a number of prosecutions in the inferior courts, there might be scant justification for allowing access to police dockets to ensure a fair trial for the accused. No rigid rules were desirable: it was for the trial Court to exercise a proper discretion having regard to the B circumstances of the case. (At paragraphs [37, 38].)

As to the constitutionality of the rule in Steyn's case, the Court held that the blanket rule of exclusion was unreasonable and unjustifiable in an open and democratic society and was unnecessary. (At paragraph [50].) In the case of statements of witnesses C made in circumstances where there was a reasonable risk that their disclosure might constitute a breach of State secrets, methods of police investigation, the identity of informers and communications between a legal advisor and his client, it might be proper to protect the disclosure of such statements and the State might succeed in establishing that such restriction was reasonable and justifiable in an open and D democratic society based on freedom and equality and that it was necessary and did not negate the essential content of the right to a fair trial. Even in such cases it did not follow that this disclosure of the statements concerned had always to be withheld if there was a risk that the accused would not enjoy a fair trial. The Court in each case had to exercise a proper discretion balancing the accused's need for a fair trial against the legitimate interests of the State in enhancing and protecting the ends of justice. (At E paragraph [52].)

The Court noted however that the real problems arose not with the principle itself but with its application. The issues arising from the application of the principle had to be determined by the Supreme Court, regard being had to the following guidelines:

(a)

F That it was difficult to conceive of any circumstances in which the prosecution could justify withholding from the accused access to any statement or document in the police docket which favoured the accused or was exculpatory.

(b)

The unilateral claim of the prosecution in its justification of a refusal to allow access on the grounds that such access might defeat the objects of the protection where there was a reasonable risk that such access might G constitute a breach of State secrets, revelation of methods of police investigation, the identification of informers and...