The pre-trial right to silence whilst exercising the right to access police dockets in South African law: A right too far?
| Jurisdiction | South Africa |
| Published date | 16 August 2019 |
| Author | Managay Reddi |
| Citation | (2014) 27 SACJ 306 |
| Date | 16 August 2019 |
| Pages | 306-324 |
The pre-trial right to silence whilst
exercising the right to access police
dockets in South African law:
A right too far?
MANAGAY REDDI* AND BHAVNA RAMJI**
1 Introduction
Section 32(1) of the South African Constitution confers on everyone
the right of access to any information, held by the state or another
person, that impacts on the exercise or protection of any right s. In
the context of arrested and accused person s this translates to the r ight
of such persons to obtain access to informat ion in the police docket
for the purposes of a fair tria l. The issue of whether an accused is
entitled to unfettered access to the contents of a police docket for the
purpose of a fair tria l has largely been settled in South A frican law:
although there is authority in South A frican case law for the view that
the right to a fair trial begi ns at the pre-trial st age which includes
bail applications, and accused persons do not have the right to access
the police docket for the purpose of a bail application.1 Howe ver,
access to a police docket in preparation for trial is perm itted unless
the prosecution can show that the accused does not need access to
the docket for the purposes of a fair tria l.2 Even the right to silence
which is the corollary of the pr ivilege against self-incrim ination, is not
unfettered: accused persons applying for bail are faced with t he choice
between the right to bail and the exercise of the pr ivilege against
self-incrimin ation.3
The justification for the incursion of these r ights is premised on
the notion that the interests of an accused must b e balanced against
* BA (Law) LLB (UDW) LLM (Nata l) LLD (UDW), Dean and Head of School, School of
Law, University of KwaZulu-Natal.
** LLB LLM (U KZN).
1 Se ction 60(14) of the Crimi nal Procedure Act 51 of 1977 provides t hat ‘no accused
shall, for the purp oses of bail proceed ings, have access to any infor mation…which
is contained in or for ms part of a police do cket…unless the prosecu tor directs
otherwise.’ The con stitutional va lidity of thi s provision was confir med in S v
Dlamini; S v Dladla; S v Joube rt; S v Schietekat 1999 (2) SACR 51 (CC).
2 Shabalala v Attorney-General Transvaal 1996 (1) SA 725 (CC).
3 Se e for instance S v Botha 1995 (2) SACR 605 (W).
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(2014) 27 SACJ 306
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other legitimate considerations,4 the most profound of these being the
legitimate pursuit of truth. T he legitimate pursuit of truth re quires that
neither the prosecution nor the defence’s case in a crimina l matter
should be improperly advantaged or undermined through the exercise
by an accused of any of the fair trial r ights. The potential surely exists
for an accused who has access to the contents of a police docket for
the purpose of preparing for tr ial, yet who has elected to remain silent
at the pre-trial stage of cr iminal proceedi ngs, to concoct a defence
based on the information elicited from the doc ket. This provides a
reasonable basis for the argument that an accused electi ng to remain
silent at the pre-trial stage should not be entitled to access the pol ice
docket until he or she has indicated the basis of his or her defence.
This article provides a sy nopsis of the law, with a view to developing
an argument in favour of curta iling or culling t he right of suspects in
South Africa to access police dockets – for those exercising the right to
silence at the pre-trial stage. T he history and development of the right
to silence are first considered. Here, after reviewing t he origins of the
right to silence in English law, its incorporation into South Africa law,
and its status in the const itutional era, some arguments put forwa rd
by proponents of culling the right to silence (improving efficiency in
the crimina l-justice system, avoiding the abuse or exploitation of the
system by guilty persons, a nd doing away with obsolete protection) are
presented and discussed. The r ight to access information contained in a
police docket is then considered with respect to the pre- constitutional
restrictions on access to the police docket in South A frica, the right to
a fair trial under the 1996 Constit ution, and the English law position.
After detail ing some additional policy considerations, a conclusion is
presented.
2 The right to silence: origins, incorporation into South
African law, and the constitutional era
2.1 Origins of the right to silence
The right of an accused person to remai n silent originated in English
law, and was incorporated gradually into South Afr ican law.5
Prior to the emergence of the right to silence in England, the
pre-modern English legal system was prem ised on the guilt of the
accused. In the English common-law cour ts at this time, the accused
was not informed in advance of the charge again st him or her, nor
was he or she informed of the evidence that would be led against
him or her. The accused could also be asked incrim inating questions,
4 Shabalala v Attorney-General supra (n2) and Dlamini su pra (n1).
5 J Bu rchell Principle s of Criminal Law 3ed (2005) 28, 32.
The pre-trial right to silence whilst exercising the right to access
police dockets in South African law: A right too far? 307
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