TDC/HL/S4Cl (side 1)

IN THE SUPREME COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 18902/94 DATE: 4 1994

In the matters between

SHABAIALA. Michael

•: . ;••: -A s i 'H tV r NO; APPLICABLE

1! IMPORTABLE: (YES>»$.

:2 CF INTEREST TO OTHER JUDGES: (YE§)#O.

!3; REVISED.^

: DATE " SIGNATURE

Applicant

1C

a n d

r

THE ATTORNEY-GENERAL OFTHE TRANSVAAL

THE COMMISSIONER OF THESOUTH AFRICAN POLICE

and

GUMEDE. Joseph

MPIKWA. Joseph Siphive

NZIMANDE. Christopher

MAJOLA. Simon HI ope

THANDEKWAYO. Vusi Waiosi

and

THE ATTORNEY-GENERAL OF THETRANSVAAL

First Respondent

Second Respondent

First Appellant

Second Appellant

Third Appellant

Fourth Appellant

Fifth Appellant

Respondent

J U D G M E N T

CLOETE J:

INTRODUCTION

The six applicants, all long term prisoners at the

Barberton/..

20

30

•JUDGMENT

Barberton prison, have been charged with the murder of John

Sehayi at that prison on 26 February 1993. When the matter

came before me on 26 August 1994 during the sitting of the

Eastern and South Eastern Circuit Local Division at

Barberton, pro deo counsel representing the applicants made

an informal application from the Bar for access to the

police dossier. I directed that a substantive application

be brought on notice of motion supported by affidavits.

The matter was then transferred to Pretoria at the request 10

of the prosecutor, acting on instructions from the

Attorney-General of the Transvaal (the first respondent in

the present applications), and with the consent of defence

counsel.

The first accused has applied for the following relief

in his notice of motion :

"6 Dat die Staat gelas word om ooreenkomstig die

bepalings van artikel 23, 25(3) saamgelees met

artikel 3'5(1) van Wet 200 van 1993 (soos

gewysig) . . .die hierin onder uiteengesette 2 0

bewysmateriaal, hetsy die Staat van voornemens

is om dit te gebruik al dan nie, aan die

verdediging beskikbaar te stel :

6.1 afskrifte van die inhoud van die polisie-

dossier;

6.2 afskrifte van alle getuieverklarings;

6.3 afskrifte van alle beedigde verklarings

en/of sertifikate in terme van artikel 212

(soos gewysig);

6.4 afskrifte/... 30

JUDGMENT

6.4 afskrifte van 'n lys van bewysstukke in die

saak;

6.5 afskrifte van 'n lys van bewysstukke, hetsy

die Staat van voornemens is om hierdie

bewysstukke by die verhoor te gebruik al

dan nie;

6.6 videobande en klank opnames, tesame met

transkripsies daarvan.

7 Dat die Staat gelas word om alle Staatsgetuies 10

tot beskikking te stel van die beskuldigde en/of

sy regsverteenwoordiger vir doeleindes van

konsultasie, voorbereiding en voer van die

verhoor. "

The second to sixth accused have applied for the

following relief in their joint notice of motion :

"1 Dat die Staat gelas word om die inligting soos

hierna uiteengesit te verskaf binne 'n redelike

tyd voordat die applikante pleit in saak nommer

CC 185/93, ten einde hulle in staat te stel om 20

hulle verdediging na behore te voer ter

uitoefening of beskerming van hulle regte soos

bedoel in artikels 23 en 25(3), saamgelees met

artikel 35(1) van die Grondwet van die Republiek

van Suid-Afrika, Nr 200 van 1993 :

1.1 afskrifte van die inhoud van die polisie-

dossier, in besonder maar nie daartoe

beperk nie en ongeag of die Staat van

voorneme is ora dit te gebruik aldan nie,

'die/... 30

JUDGMENT

die volgende :

1.1.1 a f s k r i f t e v a n a l l e

getuieverklarings;

1.1.2 afskrifte van alle beedigde

verklarings en/of sertifikate in

terme van artikel 212 van die

Strafproseswet, Nr 55 van 1977;

1.1.3 afskrifte van enige ander

dokumente insluitende fotos, 10

planne, registers, verklarings,

rekenaardrukstukke, vorms en

korrespondensie;

1.1.4 afskrifte van 'n lys van alle

bevysstukke;

2 Dat die Staat gelas word om die Staatsgetuies

tot beskikking te stel van die

regsverteenwoordigers van die beskuldigdes vir

doeleindes van konsultasie voor die verhoor;

3 Dat die Staat gelas word om, in die geval van 20

getuies wat geen skriftelike verklarings afgele

het nie, 'n opsomming van die getuienis wat

sodanige getuie tydens die verhoor gaan lewer,

te verskaf binne 'n redelike tyd voordat die

getuie getuig;

4 Dat, indien die Staat sou beoog om gebruik te

maak van ander getuienis as die wie se name op

die lys van getuies in terme van artikel 144 van

Wet 51 van 1977 voorkom, die Staat gelas word om

afskrifte/... 30

JUDGMENT

afskrifte van hulle verklarings, of waar geen

sodanige verklaring gemaak is nie, 'n opsomming

van hulle getuienis, binne 'n redelike tyd

voordat sodanige getuie getuig aan die

verdediging te verskaf. "

The Commissioner of the South African Police Services

was joined as the second respondent in the application

brought by the first accused. No formal application was

made for the joinder of the Commissioner in the application 10

brought by the second to sixth accused, but that

application was argued on the basis that such joinder had

taken place; and both applications were argued on the basis

that the second respondent had locus standi in iudicio to

oppose the relief sought.

In his affidavit, the second respondent explained that

a police docket normally consists of three sections,

namely :

(a) the A-section, which consists of the statements of

potential State witnesses which have been taken by 20

the investigating officer, expert reports and

documentary exhibits;

(b) the B-section, in which are filed internal reports,

correspondence and internal memoranda; and

(c) the C-section, which comprises the investigation

diary.

In his affidavit, annexed to the answering affidavit

of the first respondent, the investigating officer

described/...

JUDGMENT

described in general terms the contents of each section of

the dossier in the present matter as follows :

"My dossier bevat 'n A-gedeelte wat getuieverklarings

is. Hierdie is verklarings van ooggetuies asook

dokumente soos foto-albums en fonnele getuienis soos

lykskouingsverslae.

Die dossier bevat verder 'n B-gedeelte. Hierdie B-

gedeelte bestaan uit korrespondensie tussen my

kantoor, die Staatsaanklaer en die Prokureur- 10

Generaal. Dit bevat ook sorns korrespondensie met die

Streekkomioissaris en Distrikkommissaris. Hierdie

korrespondensie hou verband met die wyse waarop die

saak ondersoek word.

Verder is daar 'n C-gedeelte wat die polisie

ondersoek dagboek is. Hierdie gedeelte beskryf die

totale beloop van die polisie ondersoek. Hierin word

uiteengesit die beskrywing van die toneel asook alles

wat op die toneel gevind is. Hierin word ook

aangedui of gebruik gemaak was van beriggewers on 20

inligting te bekoia. Die totale ondersoek en metodes

van ondersoek en inligting invordering word aan die

hand van hierdie dagboek beskryf. Die ondersoek

dagboek bevat ook korrespondensie tussen die

ondersoek beampte en die betrokke Staatsaanklaer.

Opdragte ten opsigte van verdere ondersoek word

hierin deur die aanklaer asook bevelvoerder

genotuleer. "

The first respondent raised no objection to the

s.

following/... 30

I)

•JUDGMENT

following documents (which are contained in the A-section

of the dossier) being made available to the applicants -

indeed, it is the usual practice for documents of this

nature to be made available to defence counsel : formal

statements in respect of the custody, transport and

identification of the body; confessions and warning

statements of the accused (to which they are in any event

entitled in terms of the provisions of sec. 3 35 of the

Criminal Procedure Act); formal statements which relate 10

to the taking of the warning statements and confessions of

the accused; J88 forms relating to medical examinations

of accused 1 and 2; the postmortem report; the lists of

previous convictions of the accused; and formal statements

in respect of the taking of photographs and a video tape

of the body of the deceased, the alleged murder weapons and

the alleged scene of crime.

Both respondents objected to the production of the

following documents in the A-section of the dossier (and

to the contents of the B and C sections of the dossier) : 20

the statements of the witnesses whose names appear on the

list of witnesses; witness statements of the investigating

officer; and witness statements which relate to the

circumstances under which the alleged confessions made by

the accused were recorded.

INTERPRETATION OF SECTION 241(8) OF THE CONSTITUTION

Before I deal with the merits of the applications,

there is a preliminary aspect which requires decision.

In 1993 (it is not clear from the record of the

proceedings/... 30

JUDGMENT

proceedings in the magistrate's court whether the date was

27 June or 27 August 1993) the applicants appeared in the

magistrate's Court, Barberton. In terms of the provisions

of sec 119 of the Criminal Procedure Act, the prosecutor

put a charge of murder which (subject to a change in date

irrelevant for present purposes) is in identical terms to

the indictment in this Court. The applicants pleaded not

guilty and exercised their right of silence. The matter

was thereafter postponed several times pending the decision 10

of the Attorney-General. On 16 September 19 9 3, the

decision of the Attorney-General to arraign the applicants

on a charge of murder in the Supreme Court was communicated

to the applicants by the magistrate. On 20 January 1994

the magistrate committed the applicants for summary trial

on 11 April 1994 before the Supreme Court.

The present applications were argued on the basis that

the indictment before this Court had to have been served

on the applicants and the indictment lodged with the

Registrar of this Court in terms of sec 76(1) of the 20

Criminal Procedure Act on 16 September 1993, or at least

before 11 April 1994 (on which date the applicants first

appeared before this Court sitting on circuit at

Barberton). On the lastmentioned date the matter was

postponed to 29 August 1994 because there was insufficient

court time for the matter to be dealt with during the April

circuit.

Because the indictment was served on the applicants

and the indictment lodged with the Registrar before the

Constitution/... 30

JUDGMENT

Constitution, Act 200 of 1993, came into operation on 27

April 1994 (in terms of the provisions of sec 251 (1)

thereof), it seems to me beyond doubt that the proceedings

against the applicants were "pending" before the Supreme

Court "immediately before the commencement of" the

Constitution as envisaged in sec 241(8) of the

Constitution - Mr Zeiss, who argued the application pro

deo on behalf of all of the applicants, and to whom this

Court is much indebted for doing so, felt himself unable 10

to argue the contrary in view of the decision of the

Appellate Division in S v Swanepoel. 1979(1) SA 478 (A) and

the decision of THIRION J in S V Saib. 1994(2) BCLR 48 (D).

The first question which must be decided is whether

sec 241(8) of the Constitution is in itself a bar to the

relief sought by the applicants. Sec 241(8) reads as

follows :

"All ~proceedings which immediately before the

commencement of this Constitution were pending before

any court of law, including any tribunal or reviewing 20

authority established by or under law, exercising

jurisdiction in accordance with the law then in

force, shall be dealt with as if this Constitution

had not been passed: Provided that if an appeal in

such proceedings is noted or review proceedings with

regard thereto are instituted after such commencement

such proceedings shall be brought before the court

having jurisdiction under this Constitution. "

Sec 241(8) has been interpreted in a number of

decisions./... 30

10

JUDGMENT

decisions. The interpretations differ radically.

At the one extreme, there are three decisions in this

Division; one in the Witwatersrand Local Division; and one

in the Durban and Coast Local Division. HARTZENBERG J in

S v Lombard en 'n ander, 1994(2) SACR 104 (T) and again in

the same matter in an unreported judgment dated 25 August

1994; KIRK-COHEN J in S v Vermaas (TPD case CC 296/91) in

an unreported judgment dated 15 June 1994; and MARAIS J in

S v Coetzee & others (WLD case 70/92) in an unreported 10

judgment dated 17 June 19 94, all decided that where

proceedings were pending before the Constitution came into

operation, the provisions of sec 241 (8) mean that the

proceedings are to continue before the court before which

they were pending in every respect as if the Constitution

had not been passed. THIRION J came to the same conclusion

in S v Saib supra (although the learned judge also made a

finding based "on an alternative interpretation of sec

241(8)).

At the other extreme, there are the decisions of 20

FRONEMAN J (KROON J concurring) in Qozeleni v Minister of

Law & Order & Another, 1994(3) SA 625 (E) and HEATH J in

S v Majavu, 1994(2) BCLR 56 (CkGD). These learned Judges

held that the provisions of chapter 3 of the Constitution

came into operation immediately, despite the wording of sec

241(8).

In between the two extremes, there is the case of S.

v W & others. 1994(2) BCLR 135 (C) in which FARLAM J

(CONRADIE and SCOTT JJ concurring) held that the

fundamental/... 30

11

JUDGMENT

fundamental rights sections in chapter 3 of the

Constitution came into operation on 27 April 1994, save

only in the case of fundamental rights "of a procedural

nature".

I am, with great respect to the learned Judges who

decided the contrary, of the view that the fundamental

rights provisions contained in chapter 3 of the

Constitution came into effect immediately the Constitution

came into effect. 10

I take as a starting point the following passage from

the judgment of MAHOMED AJ (as he then was) in S v Acheson,

1991(2) SA 805 (Nm) at 813A-B :

"The constitution of a nation is not simply a statute

which mechanically defines the structures of

government and the relations between the government

and the governed. It is a 'mirror reflecting the

national soul', the identification of the ideals and

aspirations of a nation; the articulation' of the

values bonding its people and disciplining its 20

government. The spirit and tenor of the constitution

must therefore preside and permeate the processes of

judicial interpretation and judicial discretion. "

I find it unthinkable, when regard is had to "the spirit

and tenor of the constitution", that Parliament could have

intended to exclude any person from exercising any of the

rights entrenched in chapter 3 if he were able to do so

when the Constitution came into operation. I respectfully

agree with what FRONEMAN J said in Oozeleni's case supra

at/... 30

12

JUDGMENT

at p 639H-I, namely :

"One can take any one of the fundamental rights set

out in chap 3 of the Constitution and rhetorically

ask whether it is consistent with the inherent values

or objects of the Constitution that their content be

negated for any period after 27 April 1994. Surely

not. One example will suffice. Section 8(2)

prohibits unfair discrimination on the basis of,

inter alia, race.- Does the Constitution countenance 10

the possible justification of discrimination based on

race in pending proceedings before a court of law?

I will be surprised to be told that it does. "

I also respectfully agree with what FARLAM J said in S v

W & others, supra at p 145B-C, namely :

"It is inherently unlikely, in my view, that the

framers of the Constitution could have intended that,

for example, cruel", inhuman or degrading punishments,

the imposition of which is proscribed • in the

international legal code, may be imposed in South 20

Africa, even in pending cases. If fundamentally

unacceptable, as section 11(2) makes clear, then it

is difficult to see how they could have been regarded

as permissible in pending cases. "

The effect of sec 241 is in my view the following.

Sub-sec (1) legitimates all courts of law existing at

the time when the Constitution came into force. That

section provides :

"Every court of law existing immediately before the

commencement/... 3 0

13

JUDGMENT

commencement of this Constitution in an area which

forms part of the national territory, shall be deemed

to have been duly constituted in terms of this

Constitution or the laws in force after such

commencement, and shall continue to function as such

in accordance with the laws applicable to it until

changed by competent authority. "

Sub-sec (10) provides that all measures which regulate

the functions of courts of law shall continue to remain in 10

force until amended or repealed. Sub-sec (10) reads as

follows :

"The laws and other measures which immediately before

the commencement of this Constitution regulated the

jurisdiction of courts of law, court procedures, the

power and authority of judicial officers and all

other matters pertaining to the establishment and

functioning of courts of law, shall continue in force

subject to any amendment or repeal thereof by a

competent authority. " 20

Neither sub-sec (1) nor sub-sec (10) deals with the

situation where proceedings have already commenced before

a court which has been legitimised in terms of sub-sec (1)

and which is to continue to function in terms of existing

legislative measures in terms of sub-sec (10). The purpose

of the first part of sub-sec (8) is to provide for the

continuation of proceedings which were pending in such a

court immediately before the Constitution came into

operation. Such proceedings must be "dealt with as if the

Constitution/... 30

14

JUDGMENT

Constitution had not been passed". The words quoted were

in my view inserted to deal with the type of situation that

would arise where a procedure, sanctioned by the provisions

of the law applicable before the Constitution came into

operation but in breach of a fundamental right contained

in chapter 3 of the Constitution, had already been

followed, or was in the course of being followed, in a

matter not completed on the date when the Constitution came

into operation. (An example of a procedure which had 10

already been followed and which might be - I do not decide

the point - in conflict with the Constitution, would be a

plea explanation by an accused in terms of sec 115 of the

Criminal Procedure Act; and an example of a procedure which

was being followed and which might be - again I do not

decide the point - in conflict with the Constitution, would

be a "trial within a trial" where the accused was

attempting to discharge the 'onus placed on him by sec

217(1)(b)(ii) of the Criminal Procedure Act.) The effect

of the sub-section is that the trial would not have to be 20

commenced de novo nor would the procedure in question have

to be stopped.

In my view, if a procedure in conflict with the

Constitution had not yet commenced in a trial pending when

the Constitution came into operation, sub-sec (8) would

serve to exclude it being put into effect if it were in

breach of a chapter 3 right. For this reason, the

statement by FARLAM J in S v W & others supra at p 145D-E,

that " . . . fundamental rights of a procedural nature

applicable/... 30

15

JUDGMENT

applicable to litigation would not apply in proceedings

which were already pending because of the serious practical

results that would otherwise arise" in my respectful view

requires restrictive qualification.

The proviso in sub-sec (8) provides that an appeal or

review from proceedings pending immediately before thet h a n s-t **. '

commencement of the Constitution, and which have |_been

completed, shall be brought before the court "having

jurisdiction under this Constitution". The words I have 10

underlined are in my view vital to an understanding of the

proviso- The court having jurisdiction "under this

Constitution" depends, as I interpret the proviso, on the

nature of the enquiry raised by the appeal or review.

A Provincial or Local Division of the Supreme Court

has jurisdiction in terms of sec 101(2) and (3)(c) of the

Constitution to enquire into the constitutionality of any

law applicable within its jurisdiction, other than an Act

of Parliament; and, in terms of sees 101(2)*(a) and

101(3)(a), jurisdiction in respect of any alleged violation 20

of any fundamental right entrenched in chapter 3.

The Constitutional Court has jurisdiction, in terms

of sec 98(2) of the Constitution, as the court of final

instance over all matters relating to the interpretation,

protection and enforcement of the Constitution.

The Appellate Division has no jurisdiction (because

of the provisions of sec 101(5) of the Constitution) to

adj udicate any matter within the j urisdiction of the

Constitutional Court.

Sec/... 30

16

JUDGMENT

Sec 241(8) has in my respectful view nothing to do

with the continuation of territorial jurisdiction as was

held in Oozeleni/s case'supra at 639D-E and Maiavu's case

supra at 60H. Had that been the case, the proviso would

have read that appeal or review proceedings would have to

be brought 'before the court having jurisdiction at the

tirae such appeal is noted or review instituted' .

The proviso in sec 241(8) in my view regulates the

procedure applicable in proceedings pending when the 10

Constitution came into force by providing that an appeal

or review of such proceedings shall lie to the Provincial

or Local Division of the Supreme Court, the Constitutional

Court and/or the Appellate Division, depending on whether

a constitutional point is involved; and if so, whether such

constitutional point requires an investigation into the

constitutionality of an Act of Parliament. As FAKLAM J

said in S v W & others supra at 145J-146C :

" . . . the Appellate Division may not adjudicate any

matter relating, inter alia, to the interpretation of 20

the Constitution . . . It follows that the

Appellate Division has no jurisdiction to decide

whether, for example, Thirion J's interpretation of

section 241(8) in S v Saib is correct, with the

result that though that case concerned a pending

matter it could not be dealt with on appeal 'as if

this Constitution had not been passed'. That would

have involved the Appellate Division's having to do

that which section 101(5) says it may not do, namely,

deciding/... 30

17

JUDGMENT

deciding on the interpretation of a provision in the

Constitution. It followed that a proviso had to be

inserted to the effect that though pending cases were

to be dealt with 'as if this Constitution had not

been passed' appeals in such proceedings, if noted

after the Constitution came into operation, had to be

brought before the Court having jurisdiction under

the Constitution, which in cases where the sole issue

related to constitutionality would be the 10

Constitutional Court. (See section 102(12).) "

Sec 102 of the Constitution deals with the various

permutations which may arise. For example, according to

sub-sec (3), if in any matter before a Provincial or Local

Division, there are both constitutional and other issues,

the Provincial or Local Division concerned must (if it does

not refer an issue to the Constitutional Court) hear the

matter", make findings of fact which may be relevant to a

constitutional issue within the exclusive jurisdiction of

the Constitutional Court, and give a decision on such 20

issues as are within its jurisdiction. According to sub-

sec (4) an appeal lies to the Appellate Division against

a decision of a Provincial or Local Division in terms of

sub-sec (3) save that in terms of sub-sec (12), appeals

arising from matters referred to in sub-sec (3) which

relate to issues of constitutionality lie to the

Constitutional Court. In terms of sub-sec (5) , if the

Appellate Division is able to dispose of an appeal brought

in terms of sub-sec (4) without dealing with any

constitutional/... 30

18

JUDGMENT

constitutional issue that has been raised, it is required

to do so. In terms of sub-sec (6), if it is necessary for

the purposes of disposing of such an appeal by the

Appellate Division for the constitutional issue to be

decided, the Appellate Division is required to refer such

issue to the Constitutional Court for its decision.

Understood in this way, sec 241(8) does not preclude

the assertion of a chapter 3 fundamental right by a person

involved in proceedings which were pending before any court 10

of law, tribunal or reviewing authority immediately before

the Constitution came into operation. On the contrary, the

reference to "the court having jurisdiction under this

Constitution" envisages that chapter 3 rights can be

asserted on appeal or review and it must necessarily follow

that such rights accrue not when the appeal or review is

brought, but immediately the Constitution came into

operation". The extent to which such rights can- be enforced

will depend on the stage such proceedings have reached.

All counsel appearing before me submitted that where 20

a court is called upon to interpret the Constitution, that

court can depart from other decisions on the same point in

the same Division if it disagrees with such other

decisions. I cannot agree with this submission. It is

settled law that a court can only depart from the previous

decisions of a court of equivalent status in the same area

of jurisdiction where it is satisfied that the previous

decision is "clearly wrong" :,S v Taraika Estates CEdms)

Bpk, 1963(4) SA 467 (T) at 470A; and cf. R v Jansen, 1937

CPD/... 30

19

JUDGMENT

CPD 294 at 297 and Duminii v Prinsloo, 1916 OPD 83 at 84

and 85.

I see no reason to depart from this salutary principle

simply because the point at issue involves an

interpretation of the Constitution. I appreciate that sub-

sec 4(1) of the Constitution provides that "This

Constitution shall be the supreme law of the Republic

. . ." and that sub-sec 4(2) provides that "This

Constitution shall bind all . . . judicial organs of state 10

at all levels of government"; but those provisions do not

in my view mean that the established principles of stare

decisis no longer apply. Such an approach would justify

a single judge departing from a decision of a Full Bench

in the same Division because he considered the

interpretation given to the Constitution by the Full Bench

to be in conflict with the Constitution, with resultant

lack of uniformity and certainty until the Constitutional

Court, whose decisions in terms of sec 98(4) bind, inter

alia, "all judicial organs of state", had pronounced upon 20

the question.

On the other hand, the interpretation given to sec

241(8) in this Division cannot be said to have established

a long-standing practice.

The general difficulty which I have, with respect,

with the decisions in the Transvaal which have hitherto

interpreted sec 241(8) , is that the learned fudges who gave

those decisions appear to have applied ordinary principles

of statutory interpretation and not to have given

sufficient/... 30

20

JUDGMENT

sufficient weight to "the spirit, and tenor of the

Constitution" (Acheson's case supra, loc.cit) . I also

believe that I am justified in departing from those

decisions for the following additional reasons.

HARTZENBERG J, in his decision in Lombard's case

reported in the SACR (supra) at 110c - lllc was dealing

with a submission by defence counsel that chapter 3 rights

(and in particular, the right given to an accused in sec

25(3) (e) to be represented by a legal practitioner of his 10

choice) were not ousted by sec 241(8) in pending

proceedings. The learned judge reasoned that the argument

put forward by counsel presupposed that those two sub-

sections were in conflict and further required that sec

241(8) be given an interpretation which rendered that sub-

section useless and absurd because the sub-section would

only make provision for cases that had been completed and

which had already begun, and not for "'n moontlikheid van

onsekerheid oor dit wat reeds gebeur het nie".*For the

reasons which 1 have given, sec 241(8) can - and in my view 20

should - be interpreted so as not to exclude chapter 3

rights coining into operation immediately. It was

unnecessary for the Constitution to make provision for

cases which had already gone through all stages, including

the appeal stage. In the absence of an express provision,

the provisions of the Constitution would not be

i"?fros^^ctivs! cf. S v V7 £,- cthsrs suprs st 1 * 5H. Ssc

241(8) deals with the situation where proceedings have

already been commenced when the Constitution came into

operation/... 3 0

2 1

C1 (side 1)/C2 (side 1) JUDGMENT

operation and both the first part of that section and the

proviso in my view envisage chapter 3 rights being applied

on appeal from, or review of, such decisions - at least

where such proceedings have not been completed in a court

or tribunal of first instance when the Constitution came

into operation (cf. S v Sixaxeni, 1994(2) SACR 451 (C) ) .

MARAIS J in his unreported decision in Coetzee/s case

supra was dealing with an argument that sec 241(8) related

to territorial jurisdiction only. HARTZENBERG J, in the 10

second (unreported) decision in Lombard's case supra

followed the reasoning of MARAIS J. KIRK-COHEN J, in his

unreported decision in the Vermaas case, supra also

concluded that sec 241(8) does not relate to territorial

jurisdiction. For reasons which I have already given, I

respectfully agree with this conclusion. I do not agree,

however, nor does it follow, that sec 241(3) means that in

pending proceedings, chapter 3 rights can find no

application.

I therefore believe that I am entitled to, and should, 20

depart from the previous interpretations given to sec

241(8) in this Division and the Witwatersrand Local

Division; and I hold that sec 241(8) is not a bar to the

relief which the applicants seek even though the

proceedings against them were pending in this Court

immediately before the Constitution came into operation.

THF M~RPTTS OT THF APPLICATIONS

I turn to consider the merits of the applications.

The main submissions made in argument can beV

s u m m a r i s e d / . . . 30

22

JUDGMENT

summarised as follows.

The submission on behalf of the applicants was that

they are entitled to access to the police dossier

as of right; and that this right should be adjudicated upon

irrespective of whether further particulars had been asked

or the adequacy or inadequacy of the summary of substantial

facts given in terms of sec 144(3) of the Criminal

Procedure Act.

The principal submission on behalf of the Attorney- 10

General was that sec 23 should not be interpreted as

conferring any rights on an accused in criminal cases and

that the blanket "dossier privilege" recognised in Ft v

Stevn, 1954(1) SA 324 (A) should remain intact.

The submission on behalf of the Commissioner of Police

was in essence that sec 23 of the Constitution has no

application in criminal proceedings.

Two questions arise: can sec 23 be used by an accused

to obtain further information in criminal proceedings; and

if so, should the applicants in casu be given access to the 20

police docket?

INTERPRETATION OF SEC 2 3 OF THE CONSTITUTION

The Appellate Division held in S v Marwane, 1982(3)

SA 717 (A) at 749D-F :

"Whether our Courts were to regard an Act creative of

a Constitution as it would any other statute, or as

provision therein, they would give effect to the

ordinary accepted meaning and effect of the words

used/... 3 0

23

JUDGMENT

used and would not deviate therefrom unless to give

effect to the ordinary meaning would give rise to a

glaring absurdity; or unless there were indications

in the Act (considered as a whole in its own peculiar

setting and with due regard to its aims and objects)

that the legislator did not intend the words to be

understood in their ordinary sense. "

It seems to me entirely logical to interpret sec 23 to mean

that an accused has the right of access to such information 10

held by the Attorney-General as is required for the

exercise or protection of the right, conferred on him in

terms of sec 23(3)(d) of the Constitution, to "adduce and

challenge evidence" (cf S v Fani & others 1994(1) SACR 635

(E) at 637h-j and the as yet unreported decision of the

Full Bench of the Eastern Cape in Phato v Attorney-General,

Eastern Cape & Another; and The Commissioner of South

African Police Services v The Attorney-General, Eastern

Cape & Others. ECD cases 1323/94 and 1369/94). I'find no

indication in the Constitution that such an interpretation 20

was not intended (cf. Qozeleni's case supra at 639I-640A).

I reject the argument raised on behalf of the

Attorney-General that sec 25(3) is exhaustive of an

accused's rights. The submission was that because an

accused is entitled in terms of paragraph (b) of that sub-

section to "be informed with sufficient particularity of

application would render sec 25(3)(b) superfluous. It is

true that the interpretation which I have given to sec 23

involves/... 30

24

JUDGMENT

involves some overlapping with sec 25(3) (b). I do not find

that surprising in a Constitution where general rights and

specific rights are spelt out. Rather than leave the

definition of "a fair trial" to the Constitutional Court,

the Legislature provided in sec 25(3) that a fair trial

"shall include" certain rights. In these circumstances it

would have been extraordinary had the cardinal right "to

be informed with sufficient particularity of the charge"

had not been mentioned. The fact that it is, does not lead 10

me to the conclusion that sec 23 cannot have application

to the rights in sec 25(3).

I also reject the argument advanced on behalf of the

Attorney-General that because of the provisions of the

Criminal Procedure Act, it can never be necessary for an

accused to utilise sec 23 to obtain a fair trial. The

Criminal Procedure Act itself recognises that sec 84 (which

deals with the essentials of a charge) and sec 87 (which

provides that further particulars to the charge* may be

requested) is not sufficient to .enable an accused properly 20

to prepare for trial if a preparatory examination is not

held (which is nowadays the invariable practice): sec

114(3) requires that where an Attorney-General arraigns an

accused for a summary trial in a superior court, the

indictment must be accompanied by a list of the names and

addresses of the witnesses the Attorney-General intends

nP11 i r*rT r̂t* +".h° tri ̂1 on behy. 1 f of the St^tc S3 v.'oll =3 "31

summary of the substantial facts of the case that, in the

opinion of the Attorney-General, are necessary to inform

the/... 30

25

JUDGMENT •

the accused of the allegations against him". The content

of the summary of substantial facts depends on the opinion

of the Attorney-General and the opinions of Attorneys-

General have frequently been conservative: cf S v Fani &

others supra at 638j-639a and S v Sefadi 1994(2) BCLR 23

(D) at 36D. The following statement in paragraph 3.28 of

the "Report of the Commission of Inquiry into Criminal

Procedure and Evidence" (RP78/1971) of which Mr Justice

BOTHA was the sole member, seems to have been forgotten : 10

11 The commission is of the opinion that a complete

summary of the substantial facts alleged against an

accused, supplemented where necessary by further

particulars which may be applied for in terms of

section 17 9, is sufficient to enable the accused to

prepare his defence properly" (emphasis added).

Furthermore, no such summaries have to be produced where

the accused is arraigned before an inferior court. The

regional court presently has jurisdiction to* impose

imprisonment for ten years and a fine of R200 000. Both 20

regional and district courts have increased jurisdiction

in certain types of offence: for example, in terms of sec

64 read with sees 17 and 35 of the Drugs & Drug Trafficking

Act, No 140 of 1992, a magistrate's court has jurisdiction

to impose imprisonment of 25 years and "such fine as the

court may deem fit to impose" on a person convicted of

HpRiing in any dangerous or undesirable depender.es-

producing substance, and, in addition, to order the accused

to pay to the State an amount up to the value of the

proceeds/... 30

26

JUDGMENT

proceeds derived by him from drug trafficking, even

although such a sentence and order would far exceed its

normal punitive and civil jurisdiction.

The existence of "docket privilege" and inability to

consult with State witnesses have the result, as stated by

MARNEWICK AJ in Sefadi's case supra at 28A-D, that :

11 . . . [Cjounsel for the State has access to all and

any witnesses other than the accused himself.

Counsel for the State may send the police to 10

interview them, he may interview them himself, he may

take supplementary statements from them, and he may

investigate all matters arising from the information

so obtained from witnesses. He is then in a position

to prepare for trial on all the information contained

in such statements in order to present' his case in

court. All of the evidence contained in witness

statements so gathered is then beyond the reach of

the accused, except with the express permission of

the Attorney-General or his representative. 20

Seen from the other side, the accused is only

entitled to receive from the State the information

set out in the indictment, the list of proposed

witnesses, the summary of substantial facts and such

further particulars as may be furnished upon request.

He may also interview 'State witnesses/, but only

with the permission of the attorney-general, who may

decline to give such permission. "

An accused may therefore require information'in 30

addition/...

27

JUDGMENT

addition to that for which provision is made in the

Criminal Procedure Act in order to exercise or protect his

right to adduce and challenge evidence. (A good example

of the type of information which could be obtained is

provided by the facts in S v Jiia & Others. 1991(2) SA 52

(E) at 57I-58D : the accused in that matter obviously

required the record of the identification parade in order

to adduce and challenge evidence as to his involvement in

the alleged murder.) As matters presently stand, sec 2 3 10

of the Constitution is an accused's only means of obtaining

such additional information.

For reasons which I shall give in the next section of

this judgment, I nevertheless respectfully disagree with

MYBURGH J's statement in Khala v The Minister of Safety &

Security, 1994(2) BCLR 89 (W) where the learned judge says

at 107G that " . . . [I]t must indubitably be so that an

accused person in a criminal trial is entitled to access

to information in the police docket for the exercise or

protection of his or her rights - as long as that 20

information is relevant to the issues in the criminal

trial"; and I also respectfully disagree with the following

statement by MARNEWICK AJ in Sefadi's case supra at 27G-H :

"That access to the statements taken by the police

from witnesses in the course of their investigation

of the crimes of which the accused is charged would

bo helpful to her [zr.d therefore required) in the

preparation of her defence is so obvious that it

brooks no counter argument . . . "

It/... 30

28

JUDGMENT

It was submitted on behalf of the Attorney-General

that I have no jurisdiction to give the wide interpretation

which I have given to sec 23 because I would be embarking

on an enquiry into the constitutionality of an Act of

Parliament, namely, the Criminal Procedure Act, which is

beyond my jurisdiction because of • the provisions of sec

101(3)(c) of the Constitution. The short answer to this

contention is that there is no provision in the Criminal

Procedure Act to the effect that the details of the charge, 10

further particulars thereto, a list of witnesses and a

summary of substantial facts is the onlv information to f

which an accused is entitled. Had there been such a

provision, only the Constitutional Court could have

declared it unconstitutional; in the absence of such a

provision, sec 23 of the Constitution can be used to

supplement the provisions of the Criminal Procedure Act.

It was submitted on behalf of the Commissioner of

Police that sec 23 does not have application in 'criminal

matters. The argument was that once the Attorney-General 20

decides to prosecute, he is no longer part of the triad of

legislature, executive and judiciary because he has

subjected himself to the third arm of that triad, namely,

the judiciary; and accordingly sec 23, being of vertical

application (i.e. as between State and subject) no longer

applies to information in his possession. The argument is

ingenious but ir. ~y vie*.: fallacious - Sec ICS (I} ol ch&

Constitution provides that "The authority to institute

criminal proceedings on behalf of the State shall vest in

the/... 3 0

29

JUDGMENT

the Attorneys-General of the Republic". Sec 5(1) of the

Attorney-General Act, No 92 of 1992, provides that "An

attorney-general shall, in respect of the area for which

he has been appointed, have the authority to prosecute on

behalf of the State in criminal proceedings in any court

in the said area any person in the name of the Republic in

respect of any offence in regard to which any court in the

said area has jurisdiction". It seems to me beyond

question that the Attorney-General is bound by the 10

provisions of chapter 3 of the Constitution, as sec 7(1)

provides that "This Chapter shall bind all . . . executive

organs of state at all levels of government". It also

seems to me clear that the reference in sec 2 3 to "all

information held by the state or any of its organs at any

level of government" includes information in the possession

of the Attorney-General. I do not appreciate how, in

performing his function, the Attorney-General ceases to be

an executive organ of State; the contrary is the position.

In addition, the interpretation for which the Commissioner 20

contends would require sec 25 to be interpreted as being

of horizontal application (i.e. as between subject and

subject) whereas it was the submission on behalf of the

Commissioner that all of the other fundamental rights

entrenched in chapter 3 of the Constitution are of vertical

application. The interpretation for which the Commissioner

contends v.'ould accordingly be cnonalGus.

I therefore conclude that the applicants in casu are

entitled to invoke sec 23 for the purpose of obtaining

access/... 30

30

JUDGMENT

access to all information held by the Attorney-General in

so far as such information is required for the exercise or

protection of their right to a fair trial and in

particular, to adduce and challenge evidence.

ACCESS TO THE POLICE DOSSIER

I am firmly of the view, however, that the applicants

have not made out a case for access to any part of the

police dossier.

Sec 23 has an internal limitation related to the . 10

purpose for which information is sought from the State.

In terras of the section, every person has the right of

access to all information held by the State in so far as

such information is required for the exercise or protection

of any of his or her rights. In Cachalia et al.

"Fundamental Rights in the New Constitution" (1994) the

following is said at pp 11-12 :

"A generous interpretation of a Charter would require

a court to interpret the language in the* widest

possible manner. By contrast a purposive 20

interpretation is predicated upon the purpose of the

right, with the result being that the widest possible

interpretation will not inevitably be the one which

will be supported . . . It is submitted that this

approach to constitutional interpretation is one

which South African courts would do well to follow if

they wished tc put Chapter Z oZ tlie ConstiuuLiun in

the best and most coherent possible light".

In Hogg, "Constitutional Law of Canada" 3 ed (1992) the

learned/... 30

31

JUDGMENT

learned author says the following :

"The Court has generally assumed that a 'purposive'

approach and a ' generous' approach are one and the

same thing - or at least are not' inconsistent.

Indeed, statements of the purposive approach have

nearly always been accompanied - often in the same

sentence - by statements of the generous approach.

In the case of some rights, that is correct: a

purposive interpretation will yield a broad scope for 10

the right. In the case of most rights, however, the

widest possible reading of the right, which is the

most generous interpretation, will 'overshoot' the

purpose of the right, by including behaviour that is

outside the purpose and unworthy of constitutional

protection. The effect of a purposive approach is

normally going to be to narrow the scope of the

right. Generosity is a helpful idea as long as it is~

subordinate to purpose. Obviously, the courts in

interpreting the Charter should void narrow, 20

legalistic interpretations that might be appropriate

to a detailed statute. But if the goal of generosity

is set free from the limiting framework of purpose,

the results of a generous interpretation will

normally be inconsistent with the purpose of

approach".

It seems to me that the terms of sec 23 expressly provide

for a purposive approach in the sense that sec 23 cannot

be looked at in isolation; rather, the purpose for which

it/... 30

32

JUDGMENT

it is being invoked must be considered, and that enquiry

involves the court having regard to the right which the

person wishes to protect. I understand MYBURGH J to have

reached the same conclusion in Khala/s case supra where' the

learned Judge said at p 95D :

"The enquiry in each case should be a factual one: Is

the information required for the protection or

exercise of a person's rights?"

In addition, sec 23 postulates that the information 10

must be "required". The word "required" is capable of a

number of meanings ranging from "desires" though

"necessary" to "indispensable" (see Khala v Minister of

Safety & Security supra at 94G-95C where MYBURGH J

discusses the meaning of the word "required" and the

context in which it should be interpreted in the

Constitution). To my mind, "required" in sec 23 conveys

an element of need: the information does not have to be

essential, but it certainly has to be more than "useful"

(the meaning given by MARNEWICK J in Sefadi's case supra 20

at 27G) or "relevant" (the test postulated by MYBURGH J in

Khala's case supra at 107G-H) or simply 'desired'.

Given that information is required by an accused in

a particular case in order to adduce and challenge

evidence, it simply does not follow that he should, as a

matter of course, be given access to the police dossier.

On the contrary, there are sound reasons in South Africa

which have been accepted over many years as to why he

should not.

The/... 3 0

33

JUDGMENT

The prohibition against disclosure of statements taken

from witnesses to be called to give evidence at a criminal

trial was recognised by the Appellate Division in R v Steyn

supra as established practice. For the last forty years

(and before) every criminal trial in South Africa has been

conducted on the basis that an accused has no right of

access to statements made to the police by witnesses to be

called by the State to give evidence (except where a

witness departs from his statement, in which case the 10

prosecutor is obliged to make the statement available to

the defence). The relief sought by the applicants in the

present matter would constitute a radical departure from

this practice.

As JONES J emphasised in S v Fani & others supra at

640f-641b/ although judges of first instance must give

effect to the provisions of the Constitution even if this

necessitates a radical departure from the pre-existing law

and practice, radical and sweeping changes should not be

made lightly, particularly where courts of distinction 20

(including the Appellate Division) have held over many

years that there are good and proper reasons for the

existing situation. With respect, I entirely agree with

these views. I would add that if a judge of first instance

is of the view that departure from previous practice is

required because of the provisions of the new Constitution,

care should be taken to eliminate only that which is

unconstitutional. As HIEMSTRA CJ remarked in Smith v

Attorney-General Bophuthatswana, 1984(1) SA 196 (BSC) at

200C-D,/... 30

34

JUDGMENT

200C-D, a court, in applying the Constitution, :

" . . . [H]as to exercise its powers of controlling

legislation with a scalpel and not with a sledge

hammer".

Put colloquially, the baby should not be thrown out with

the bath water.

If a particular right entrenched in the Constitution

can be accommodated without sweeping change, it seems to

me obvious that this should be done. Constitutional 10

questions may, in terms of sec 102, be referred to the

Constitutional Court for decision by Provincial and Local

Divisions of the Supreme Court both where proceedings have

commenced and after the disposal of such proceedings. If

the Legislature believes that fundamental change is

necessary, such change can be embodied in an Act of

Parliament. It must also be borne in mind that the present

Constitution is not carved in stone; it will shortly be

replaced with another Constitution. Furthermore, the

Constitution enjoins the Human Rights Commission in sec 20

116(1)(d) to "undertake such studies for report on or

relating to fundamental rights as it considers advisable

in the performance of its functions" and in sec 116(1)(c)

to "make recommendations to organs of state at all levels

of Government where it considers such action advisable for

the adoption of progressive measures for the promotion of

fundamental rights within the framework of the law and this

Constitution, as well as appropriate measures for the

further observance of such rights" (emphasis added). The

Human/... 30

35

JUDGMENT

Human Rights Commission is far better placed to investigate

the desirability u'and make recommendations for, the

implementation of sweeping changes than any court.

An important practical reason why in South Africa an

accused should not automatically be given access to

statements of prosecution witnesses in the police dossier

is contained in paragraph 3.25 of the Botha Commission

Report to which I have already referred. That paragraph

reads as follows : 10

"The proposal that the furnishing to an accused of

copies of the statements of witnesses be prescribed

as part of the procedure, was considered by the

Commission but rejected for several reasons.

Statements of witnesses are often taken down by

inexperienced non-white and other police officials,

or with the aid of an inexperienced interpreter, and

mostly under difficult circumstances, and often at a

stage upon which the alleged charge is still

undetermined." (The affidavits filed by the 20

respondents show that this is still the position. )

"The result is that reliance cannot always be placed

on the accuracy and completeness thereof. They are

not intended to serve as official documents at court

proceedings, but are taken down in the course and as

part of the police investigation into an alleged

offence, and include everything that may possibly

contribute to the identification of the offender, and

thus often contain allegations which are irrelevant

and/... 3 0

36

JUDGMENT

and not admissible as evidence. In R v Steyn r

1954(1) SA 324 (AD) at p 335, GREENBERG, JA, drew

attention to the difference between evidence given at

a preparatory examination and statements made by

witnesses to the police in connection with the

investigation of a case, and added -

'there is a serious possibility that statements

made to the police, which are made in entirely

different circumstances, may be far from 10

constituting this accurate representation and

through inaccuracies may be a target for cross-

examination which, instead of revealing the

truth, may obscure it'".

These considerations (if not all of the language used to

express them) apply with equal force today. The Attorney-

General says in his affidavit that :

"Die oorgrote meerderheid van getuieverklarings word

deur onervare polisie bearaptes geneem en oorgetolk.

Die polisie beamptes is nie opgeleide tolke nie. Die 20

verklarings is in baie gevalle onvolledig. Hierdie

situasie gee noodwendig aanleiding tot beuselagtige

en tydverkwistende kruisverhoor en stel die betrokke

getuies in 'n besonder netelige posisie sou die

verklarings sondermeer in alle gevalle blootgele

word".

I doubt that any of the foreign legal systems referred to

in detail in some of the recent decisions of the Supreme

Court in this country have to cope with the situation

where, for example, an investigating officer whose language 30is/...

37

JUDGMENT

is siSwati records a statement in Afrikaans from a

potential witness whose home language is isiXhosa after

they have been obliged to communicate with each other in

isiZulu. There are, in terms of sec 3(1) of the

Constitution/ eleven official South African languages at

national level. The promotion by the Pan South African

Language Board (in terms of sec 3(10) of the Constitution)

of the development of German, Greek, Gujerati, Hindi,

Portuguese, Tamil,, Telegu, Urdu and other languages used 10

by communities in South Africa can only exacerbate the

problem.

Language difficulties apart, there are a number of

sound reasons why • _ ": an accused should not

be given automatic access to the contents of a police

dossier in a pending criminal trial, if this can be

avoided. These reasons are set out succinctly by

VANDERBILT CJ (in whose judgment the majority of the court

concurred) in S v Tune, 13 NJ 203; 98 Atlantic Reporter 2d

series 881, a 1953 decision of the Supreme Court of New 20

Jersey. The learned Chief Justice said the following at

pp 884-886 :

"Defendant argues that in keeping with the modern

trend toward liberal discovery in civil proceedings

we should grant him the unqualified right to an

inspection of all papers and other documents in the

possession of the State, in this case statements made

to the prosecutor by witnesses. With this we cannot

agree. Such an argument completely ignores the

fundamental/. . . 30

38

JUDGMENT

fundamental difference between civil and criminal

proceedings. In any judicial proceedings, civil or

criminal, the purpose of broad discovery is ' to *

promote the fullest possible presentation of the

facts, minimize opportunities for falsification of

evidence, and eliminate the vestiges of trial by

combat', 60 Yale LJ 626 (emphasis supplied).

'Liberal procedures for discovery in preparation for

trial are essential to any modern judicial system in 10

which the search for truth in aid of justice is

paramount and in which concealment and surprise are

not to be tolerated', Lang v Morgan's Home Equipment

Corp, 6 NJ 333, 338, 78A.2d 705, 707 (1951) .

However, such liberal fact finding procedures are not

to be used blindly where the result would be to

defeat the ends of justice. In criminal proceedings

long experience has- taught the courts that often

discovery will lead not to honest fact findi«ng, but

on the contrary to perjury and the suppression of 20

evidence. Thus the criminal who is aware of the

whole case against him will often procure perjured

testimony in order to set up a false defence, State

v Rhoads, 81 Ohio St 397, 423-424, 91 NE 186, 192, 27

L.R.A. , N.S. 558 (Sup. Ct. 1910) ; Conunonwealth v

Mead, 12 Gray 167, 170 (Mass. 1858). Another result

of full discovery would be that the criminal

defendant who is informed of the names of all of the

State's witnesses may take steps to bribe or frighten

them/... 30

39

JUDGMENT

them into giving perjured testimony or into absenting

themselves so that they are unavailable to testify.

Moreover, many witnesses, if they know that the

defendant will have knowledge of their names prior to

trial, will be reluctant to come forward with

information during the investigation of the crime.

People v Pi Carlo, 161 Misc. 484, 485-486, 292 N.Y.S.

252, 254 (Sup. Ct. 1936). All these dangers are more

inherent in criminal proceedings where the defendant 10

has much more at stake, often his own life, than in

civil proceedings. The presence of perjury in

criminal proceedings today is extensive despite the

efforts of the court to eradicate it and constitutes

a very serious threat to the administration of

criminal justice and thus to the welfare of the

country as a whole, Hibschman, You Do Solemnly Swear!

Or That Perjury Problem, 24 J. Crim. L. and

Criminology 901 (1934). To permit unqualified

disclosure of all statements and information in the 20

hands of the State would go far beyond what is

required in civil cases, it would defeat the very

ends of justice.

In considering the problem it must be remembered that

in view of the defendant's constitutional and

statutory protections against self incrimination, the

State has no right whatsoever to demand an inspection

of any of his documents or to take his deposition, or

to submit interrogatories to him. As stated in State

v Rhoads/... 30

40

JUDGMENT

v Rhoads, supra, 91 NE at page 192 :

'The state cannot compel the prisoner at the bar

to submit his private papers or memoranda to the

state for use or even examination, for he cannot

be required to testify in the case, nor to

furnish evidence against himself - Then, why

should the accused be allowed to rummage through

the private papers of the prosecuting attorney?

Neither the sublime teachings of the Golden 10

Rule, to which we have been referred, nor the

supposed sense of fair play, can be so perverted

as to sanction the demands allowed in this

case'.

See also State v Bunk, 63 A.2d 842, at page 844

(N.J.Cty.Ct. 1949) :

'The element of reciprocity is present in the

conduct of-civil causes. Each party may examine

the other, force disclosure of material evidence

and thus reduce to a minimum the element of 20

surprise or chance in the trial. In criminal

causes no such reciprocity is possible. The

State could not examine the defendant before

trial without his consent, nor could any rule of

court force such examination.'

Except for its right to demand particulars from the

defendant as to any alibi on which he intends to

rely, Rule 2:5-7, the State is completely at the

mercy of the defendant who can produce surprise

evidence/... 30

41

JUDGMENT

evidence at the trial, can ta3ce the stand or not as

he wishes, and generally can introduce any sort of

unforeseeable evidence he desires in his own defense.

To allow him to discover the prosecutor's whole case

against him would be to make the prosecutor' s task

almost insurmountable.

The rule in the federal courts does not differ from

ours . . .

The federal courts have on many occasions held that 10

the defendant has no unqualified right of inspection

In U.S. v Garsson, 291 F. 616, 649 (D.C.S.D.N.Y.

1923), Judge Learned Hand in his opinion for the

court stated :

'Under our criminal procedure the accused has

every advantage. While the prosecution is held

rigidly to the charge, he need not disclose the

barest outline of his defense. He is immune

from question or comment on his silence; he 20

cannot be convicted when there is the least fair

doubt in the minds of any one of the twelve.

Why in addition he should in advance have the

whole evidence against him to pick over at his

leisure, and make his defense, fairly or foully,

I have never been able to see. . . . '

Even under our rules of civil procedure a party

cannot obtain access to the work product of the

opposing/... 30

42

JUDGMENT

opposing lawyer, except in unusual cases:

' . . . The deponent shall not be required to

produce or submit for inspection any writing

obtained or prepared by the adverse party, his

attorney, surety, indemnitor, or agent in

anticipation of litigation and in preparation

for trial unless the court otherwise orders on

the ground that a denial of production or

inspection will result in an injustice or undue 10

hardship; nor shall the deponent be required to

produce or submit for inspection any part of a

writing which reflects an attorney's mental

impressions, conclusions, opinions, or legal

theories, or, except as provided in Rule 3:16-

34, the conclusions of an expert.' Rule 3:16-2.

Clearly then there is even more reason for

withholding such documents in criminal proceedings:

'As already pointed out the Rules of Criminal 20

Practice contain no provision for the liberal

discovery practice created by the Civil Rules.

If there is no right to the kind of documents

sought here in civil cases, where discovery

practice exists, in the absence of injustice or

undue hardship, there is certainly more reason

for withholding such documents from inspection

in criminal causes. Therefore, confessions,

investigation reports and statements of

witnesses/... 30

43

JUDGMENT

witnesses obtained in a criminal prosecution

might well, be classed as 'the work product of

the prosecutor' and granted protection against '

inspection by the defense in advance of trial.'

State v Bunk, 63 A.2d 842, supra, at page 845.

We therefore conclude that the defendant has no right

to discovery of the work product of the prosecutor,

in this case the statements signed by others than the

defendant. Such documents can only in the most 10

exceptional cases and in the most unusual •

circumstances be turned over to the defendant for

inspection. No such circumstances are shown here. "

Counsel representing the applicants sought to dismiss

the majority decision in Tune's case inter alia on

the basis that that court was lower in the hierarchy

of American courts than the Supreme Court is in

Canada. But a judgment of any foreign court is only

persuasive. A court sitting in South Africa is 20

clearly not obliged to follow the reasoning of the

highest court in one jurisdiction if it prefers the

reasoning of a court which is comparatively lower in

the hierarchy of another jurisdiction. Which of two

competing decisions in different jurisdictions is

approved, will depend on the reasoning, and not the

status, of the court.

I intend taking each of the arguments put forward by

VANDERBILT CJ and analysing them in the South African

context. I shall, at the same time, deal with the contrary 30

arguments/...

44

JUDGMENT

arguments advanced in the judgment of SOPINKA J in R v

Stinchcombe, 1992 LRC 69, on which much reliance was placed

by LE ROUX J in his (as yet) unreported decision given on

9 August 1994 in S v Botha & Others (WLD case 74/94) and

by JONES J in his judgment (in which the other members of

the court concurred) in Phato's case supra.

The Difference between Criminal and Civil Proceedings

In the Stinchcombe case supra SOPINKA J said the

following at p 6E-G : 10

"Production and discovery were foreign to the

^P adversary process of adjudication in its earlier

history when the element of surprise was one of the

accepted weapons in the arsenal of the adversaries.

This applied to both criminal and civil proceedings.

Significantly, in civil proceedings this aspect of

the adversary process has long since disappeared, and

full discovery of documents and oral examination of

parties and even witnesses are familiar features of

the practice. This change resulted from acceptance 20

^ of the principle that justice was better served when

the element of surprise was eliminated and the

parties were prepared to address issues on the basis

of complete information of the case to be met.

Surprisingly, in criminal cases in which the liberty

of the subject is usually at stake, this aspect of

the adversary system has lingered on."

*- Wj^ca-af BRENNANf J in Tune's case supra (in which the minority of

the court concurred) commences as follows :

"That/... 30

45

JUDGMENT

"That old hobgoblin perjury, invariably raised with

every suggested change in procedure to make easier

the discovery of the truth, is again disinterred from

the grave where I had thought it was forever buried

under the overwhelming weight of the complete

rebuttal supplied by our experience in civil causes

where liberal discovery has been allowed. "

In essence, the minority was of the opinion that the

liberal practices relating to discovery in civil matters 10

should extend to criminal matters as well.

In South Africa, following the English practice,

discovery of documents in civil proceedings was a

requirement for at least half a century before the decision

in R v Stevn supra in 1954 - see Continental Ore v Highveld

Steel & Vanadium Ltd, 1971(4) SA 589 (W) at 596H-597E and

cases there collected.

Whatever the position in civil cases may be in Canada

or the United States of America, in South Africa.witness

statements taken for the purpose of civil litigation have 20

always been privileged.

The present Uniform Rules of Court, which were

promulgated on 12 January 1965 (by GN R48 in Gazette

999/1965) continue to require discovery, on oath. Rule

35(1) provides that a party may require any other party to

an action, by notice in writing "to make discovery . . .

of all documents relating to any matter in question in such

action (whether such matter is one arising between the

party requiring discovery and the party required to make

discovery/... 3 0

46

JUDGMENT

discovery or not) which are or have at any time been in the

possession or control of such other party". Rule 35(2)

provides that witness statements shall be omitted from

schedules annexed to discovery affidavits.

When the Uniform Rules of Court were introduced,

provisions were for the first time included which further

removed the element of surprise in civil litigation - for

example: rule 35(8), which requires a party to disclose all

documents which he intends to use at the trial - such 10

documents include documents in the possession of third

parties, which were not covered by the previous rules which

applied in the various Divisions of the Supreme Court

relating to discovery; rule 36(9), which requires that

notice be given of intention to call an expert witness and

requires further that a summary of such witness's evidence

must be served on the other party; and rule 36(10), which

requires that notice be given of intention to use, and that

inspection be tendered of, any plan, diagram, model or

photograph. 2 0

Yet recent experience in the Witwatersrand Local

Division has shown that practitioners are against making

witness statements available to an opposing party in civil

matters. The Commercial Court in the Witwatersrand Local

Division was established by practice direction of the Judge

President of the Transvaal in April 1993 (see the June 1994

De Rebus p 413 et seer, and the Commercial Law Digest vol

2, 1993). The rules of the Commercial Court provide that

at a preliminary hearing, consideration be given to the

exchange/... 30

47

JUDGMENT

exchange of witness statements. The reaction of many-

practitioners to this rule "Has ranged from outright

rejection at the one end, to uncomfortable nervousness at

the other" (according to Mr Justice SCHUTZ and Mr Justice

PLEWMAN in their article "Commercial Court. Fear of

Exchange of Witness Statements : Is the Fear Justified?"

published in the June 1994 volume of De Rebus) - and this

despite the fact that the rules of the Commercial Court

provide that if witness statements are to be exchanged, 10

such exchange is to take place simultaneously.

In the criminal law there was no movement towards more

liberal discovery procedures. The contrary was the case.

The Botha Commission Report (to which I have already

referred) contained recommendations which resulted in the

promulgation of the present Criminal Procedure Act in 1977.

That Act no longer requires preparatory examinations to be

held and in.practice, they never are. Summary trials are

held in the Supreme Court and the accused is provided with

a summary of substantial facts in terms of sec 144(3). As 20

I have already pointed out, that document frequently, if

not invariably, gives the most cursory detail. Gone are

the days when an accused could prepare for trial with a

record of the evidence of the State witnesses who were

going to testify against him. In addition, the courts,

including the Appellate Division, continued to apply and

indeed to extend the principle in R v Stevn supra. In that

decision, GREENBERG JA (at pp 332A-334B) had regard to the

English law relating to privilege from disclosure of

evidence/... 3 0

48

JUDGMENT

evidence collected by a litigant in civil matters for the

purpose of proving his case. The learned Judge of Appeal

referred, inter alia, to the statement by JAMES LJ in

Anderson v Bank of British Columbia L.R. 2 Ch.D.644 at 656

that it is "an intelligible principle that as you have no

right to see your adversary's brief, you have no right to

see that which comes into existence merely as the materials

for the brief". Almost 40 years later, and the development

in the civil law brought about by the inclusion of rules 10

such as rules 35(8), 36(9) and 36(10) notwithstanding,

EKSTEEN JA, in reaching the conclusion (concurred in by the

other members of the court) that the police docket is prima

facie privileged from disclosure, again referred to the

same dictum as correctly reflecting the South African law

of criminal procedure: S v Mavela, 1990(1) SACR 582 (A) at

590g-591a.

I respectfully agree with what ERASMUS J said in S v

Shuma & Another, 1994(2) SACR 486 (E) at 494c :

"The . . . constitutional definition of the rights of 20

an accused to a trial is no radically new phenomenon.

The provision in s 25(3) that the accused is entitled

to 'a fair trial' is not a startling innovation. Our

existing common law and the Criminal Procedure Act

are (notwithstanding Parliamentary tinkering in

recent years) largely a distillation of wisdom as to

what in fact constitutes a fair trial in a broad

sense".

I find nothing strange in the fact that the criminal law

has/... 30

49

JUDGMENT

has not followed the civil law.. At the risk of stating the

obvious, criminal proceedings are entirely different from

civil proceedings in that no reciprocity of disclosure is

required from an accused; on the contrary, an accused is

entitled to remain silent.

SOPINKA J in Stinchcombe's case at p 7a-b said "The

suggestion that the duty" (to disclose all relevant

information) "should be reciprocal may deserve

consideration by this court in the future"; but I have 10

difficulty in understanding how such a development is

possible where an accused has a constitutional right to

remain silent. That right in South Africa is entrenched

in sec 25(3)(c) of the Constitution.

It is for these reasons that I derive no assistance

in deciding the present matter from the views of the

learned judges who decided Oozeleni's case supra and

Khala's case supra. It is obviously unfair for-the State,

when sued for damages, to retain the police dqcket as

privileged, for the reasons given by GOLDSTEIN J in Zweni 20

v Minister of Law & Order (1) 1991(4) SA 166 (W) and by

JONES J in Mazele v Minister of Law & Order, 1994(1) SACR

406 (E) at 416b-i. That is a consideration which

militates in favour of its disclosure in terms of sec 23

of the Constitution. If the information in the dossier

relates to a criminal prosecution which is pending, the

State would no doubt invoke sec 23 of the Constitution.

Whether a prosecution is likely to eventuate, is a factor

to be taken into account, as MYBURGH j did in Khala's case

supra/... 30

50

JUDGMENT

supra at 122G-I. But as I have now said repeatedly, the

approach in a civil matter is dictated by considerations

which do not apply in criminal matters.

The Risk of Perjury '

GREENBERG JA said the following in R v Stevn supra at

p 333E - in fine :

"It must be borne in mind that, even though the trial

has commenced . . . there may be ample time

thereafter (either through postponement or otherwise 10

- and a right to avail oneself of the disclosure of

the statements may in itself necessitate a

postponement) and during this time the party who has

been granted the disclosure may well have an

opportunity of abusing the information gleaned as a

result of the disclosure. In Knapp v Harvey, 1911(2)

K.B. 725, which is the latest of the cases referred

to in the second extract from the Annual Practice.

Fletcher Moulton, L.J., said (at pp 730-1) :,

'One danger of allowing a litigant to obtain 20

information as to the evidence upon which his

opponent intends to rely is that he may in this

way find out, not that his opponent' s case is

untrue, but that his opponent is not aware of

some awkward fact or facts, and he may for that

reason be emboldened to persevere with an

unrighteous defence or claim, as the case may

be. '

The learned Lord Justice was dealing with disclosure

before/... 30

51

JUDGMENT

before trial, but somewhat similar considerations might

apply even though the trial has commenced. A defendant,

more particularly if the onus rests on him on certain

issues or if he has a counterclaim, may well gather from

the statements of witnesses disclosed to him that the

witnesses have no knowledge of certain relevant matters and

be emboldened to lie about those aspects because of the

absence of fear of subsequent contradiction by those

witnesses, or to trim his case in the light of the 10

statements he has seen".

At p 8d-f of his judgment in the Stinchcombe case,

SOPINKA J said :

"Refusal to disclose is also justified on the ground

that the material will be used to enable the defence

to tailor its evidence to conform with the

information in the Crown's possession. For example,

a witness may change his or her testimony to conform

with a previous statement given to the police or

counsel for the Crown. I am not impressed with this 20

submission. All forms of discovery are subject to

this criticism. There is surely nothing wrong in a

witness refreshing his or her memory from a previous

statement or document. The witness may even change

his or her evidence as a result. This may rob the

cross-examiner of a substantial advantage but

fairness to the witness may require that a trap not

be laid by allowing the witness to testify without

the benefit of seeing contradictory writings which

the/... 30

52

JUDGMENT

the prosecutor holds close to the vest. The

principle has been accepted that the search for truth

is advanced rather than retarded by disclosure of all

relevant material. "

Firstly, I find nothing wrong with the conduct on the

part of a prosecutor described in the passage quoted. Such

conduct is expressly sanctioned in England, as appears from

the following paragraphs which form part of the guidelines

issued by the Attorney-General on the disclosure of 10

information to the defence in cases to be tried on

indictment (which are set out in full in [1982] 1 All ER

734-736 and in Sefadi's case supra at pp 30-33) :

"6 There is a discretion not to make disclosure -

at least until counsel has considered and

advised on the matter - in the following

circumstances :

(i) • . •

(ii) The statement (for example from a relative

or close friend of the accused) is believed 20

to be wholly or partially untrue and might

be of use in cross-examination if the

witness should be called by the defence,

(iii) . . .

(iv) The statement is quite neutral or negative

and there is no reason to doubt its

truthfulness - for example, 'I saw nothing

of the fight' or 'He was not at home that

afternoon'. There are however grounds to

believe/... 30

53

JUDGMENT

believe that the witness might change his

story and give evidence for the defence -

for example, purporting to give an account

of the fight, or an alibi. Here again, the

statement can properly be withheld for use

in cross-examination. "

Secondly, SOPINKA J does not address the crux of the

problem. It is not so much the witnesses to be called for

the defence, but the accused himself who might, if the 10

entire State case is disclosed to him, not only tailor his

version, but fabricate a false version consistent with the

State evidence. It was submitted before me in argument

that such a suggestion conflicts with the presumption of

innocence. To my mind, the presumption of innocence is

irrelevant. It is a fact of life that accused do fabricate

versions. As the Attorney-General says in his affidavit:

"Dit is niks -vreemds dat beskuldigdes 'n verweer fabriseer

nie". Examples abound in cases before this CourJ: and in

matters dealt with on automatic review from the magistrates 20

courts.

Although (as I trust is apparent from what I have

already said earlier in this judgment) I do not advocate

a system where a charge sheet and no more is furnished to

an accused, much less a Kafkaesque situation where the

accused cannot appreciate the relevance of evidence being

led because he does not even know what the charge is, I do

believe that a prosecutor is entitled to retain in his

armoury legitimate surprise weapons. If an accused has

been/... 3 0

54

JUDGMENT

been sufficiently informed of the case which he has to meet

so as to enable him to make a proper defence, he cannot

complain if a false version is exposed for what it is by

the production of evidence which would have caused him no

prejudice had he been telling the truth. On the other

hand, if all information is made available, it can be

misused.

Intimidation of Witnesses

The Attorney-General said the following in his 10

affidavit :

"As Prokureur-Generaal is dit my funksie nie alleen

om misdadigers te vervolg nie, maar ook om te besluit

of daar hoegenaamd 'n vervolging ingestel moet word.

Dit is daarom prakties noodsaaklik dat verklarings

onder eed bekom moet word van alle persone wat

relevante getuienis met betrekking tot 'n beweerde

misdryf kan afle ten einde tot 'n sinvolle en

korrekte besluit te kan geraak.

Dit is reeds gevestigde praktyk dat beedigde 20

verklarings van potensiele getuies in sgtrafsake

bekom word en in 'n saakdossier geliasseer word, dat

hierdie verklarings as vertroulike kommunikasie

beskou en hanteer word en gepriviligeerd is, maar dat

die getuies gedagvaar kan word om te getuig in latere

strafregtelike verrigtinge wat in die reel by wyse

van summiere verhore geskied, in welke geval hulle

statuter verplig is om mondelinge getuienis af te le.

Konsultasies deur die verdediging met staatsgetuies

is,/... 30

55

JUDGMENT

is, tensy dit met toestemming van die vervolging

geskied, ontoelaatbaar en oneties. . . . Die

privilegie wat my toekom ook as litigant in

gemeenskapsbelang sien ek as 'n besondere

verantwoordelikheid wat op my rus ten einde

behoorlike en regverdige strafregspleging te

verseker. Ek beskou die privilegie ten opsigte van

getuieverklarings, kominunikasie en aantekeninge in

verband met die ondersoek en vervolging van 'n 10

beskuldigde voorts as 'n fundamentele beginsel van

die huidige akkusatoriese strafregbedeling, welke

bedeling nie behoorlik kan funksioneer sou

konfidensialiteit nie gewaarborg wees nie.

My funksie as vervolger in openbare" belang kan alleen

volvoer word met die samewerking van die gemeenskap.

Hierdie samewerking volg nie vanself sprekend nie,

maar spruit voort uit die vertrouensverhouding wat

met die gemeenskap gebou word. Vertroulikheid was

tot dusver gewaarborg en vir sover moontlik was 20

beskerming verleen. "

The Commissioner of the South African Police said the

following in his answering affidavit :

"Die Suid-Afrikaanse Polisie voer hulle werksaamhede

onder baie moeilike omstandighede uit. Benewens die

feit dat daar nie genoeg polisiebeamptes is om

misdaad te beveg nie word ondersoek ook onder

moeilike omstandighede gedoen en die resultate

daarvan nie altyd aanvaar of waardeer nie.

Hierbenewens/... 30

56

JUDGMENT

Hierbenewens moet in gedagte gehou word dat kriminele

dade gewoonlik gepleeg word onder omstandighede wat

opsporting en vervolging uiters moeilik maak.

Ondersoeke word . . . in baie gevalle bemoeilik deur

intimidasie en mense se vrees om met die Suid-

Afrikaanse Polisie saam te werk. "'

The Commissioner annexed a number of supporting

affidavits from members of the police force to his

answering affidavit. It is necessary for me to refer to 10

some of those affidavits.

Colonel Swart is the Co-Ordinator of the Brixton

Murder & Robbery Unit, the Motor Vehicle Theft Units of

Brixton, Sandton and Hillbrow, the Firearm Unit and the

Unrest & Violence Investigation Unit of the Johannesburg

area. He has had 31 years experience in the South African

Police. In his affidavit, Colonel Swart said the

following :

"Dit is my ervaring dat in veral geweldsmis^rywe en

misdrywe van seksuele aard getuies gewoonlik baie 20

bang en bekommerd is oor die moontlike gevolge wat

dit vir hulle mag inhou indien hulle 'n

getuieverkling aan die polisie sou maak en dit bekend

sou word dat hulle as staatsgetuies kan en sal optree

in 'n verhoor teen 'n vermeende verdagte.

Die probleem in bogemelde verband is werklik wesenlik

en het tot gevolg dat die polisie nou by verskeie

plekke byvoorbeeld gebruik maak van eenrigting-glas

vir die hou van uitkenningsparades. In verskeie

gevalle/... 30

57

JUDGMENT

gevalle het getuies geweier om 'n uitkenningsparade

by te woon en 'n verdagte persoon te identifiseer

waar die getuie en die verdagte persoon dan in

direkte kontak met mekaar moet kom by sodanige

parade.

. . . [G]evalle bestaan byvoorbeeld waar gewapenende

rowers in vermomming 'n roof sou pleeg en dat waar

sodanige vermomming om een of ander rede afgekom het,

dat 'n persoon of persone wat die rower moontlik kan 10

identifiseer in die lig van bogemelde feit,

koelbloedig vermoor word.

Ek wil dit derhalwe met respek aan die Agbare Hof

voorhou dat ek dit nie vreemd vind dat getuies in

veral geweldsmisdrywe uiters bevrees en bekommerd is

wanneer die polisie hulle nader ten einde

getuieverklarings te verkry nie. . . . Die

algemene gevoel onder lede van die publiek is r

waarskynlik tereg, dat 'n lewe in die ,huidige

situasie in Suid-Afrika goedkoop geword het en dat 20

waar die keuse bestaan tussen die aandoen van leed

teen 'n potensiele verdoemende getuie of die

teregstaan op 'n aanklag waarvoor selfs die doodstraf

aan die misdadiger opgele kan word, die keuse

sekerlik uitgeoefen sal word teen eersgenoemde

moontlikheid. Sodanige houding word inderdaad deur

lede van die publiek gereeld oorgedra aan my en ander

lede van die Suid-Afrikaanse Polisie.

Die vrees is telke male teenoor my of ander lede van

die/... 30

58

JUDGMENT

die polisie uitgespreek dat indien sodanige

misdadiger kennis dra van die feit dat sterk

inkriminerende getuienis deur 'n spesifieke getuie

teen sodanige persoon afgele sou word,. die

moontlikheid bestaan dat die betrokke verdagte

sodanige getuie kan intimideer of selfs leed aandoen

ten einde te verhoed dat hy/sy getuienis sou afle wat

tot gevolg kan he dat die betrokke verdagte moontlik

selfs die doodstraf of langtermyn gevangenisstraf 10

opgele kan word. Indien in ag geneem word die feit

dat ooggetuies in baie gevalle koelbloedig vennoor

word deur misdadigers ten einde te verhoed dat

sodange getuie later die persoon identifiseer, is dit

my respekvolle submissie dat die vrees van die

betrokke getuie sekerlik nie ongegrond is nie.

Ek kan onder die Agbare Hof se aandag bring dat die

moord van sleutelgetuies in sekere sake, veral by

geweldsmisdrywe,, nie vreemd is nie en dat e}c kennis

dra en persoonlik betrokke is by sulke gevalle. As 20

voorbeeld kan ek vir die Agbare Hof voorhou dat daar

tans in Johannesburg in die Witwatersrandse Plaaslike

Afdeling van die Hooggeregshof van Suid-Afrika onder

saak nr 67/93 'n aangeleentheid deels verhoor is waar

'n sleutelgetuie, ene Mnr Ashley Bashee, nadat die

verhoor al 'n aanvang geneem net, maar alvorens hy

getuig het, doodgeskiet is. "

Captain Kinghorn, who is the Assistant Commanding

Officer of the Pretoria Central Crime Investigation Service*

and/... 30

59

JUDGMENT

and has 15 years service in the South African Police, said

the following in his affidavit :

"Dit is my ervaring dat in baie gevalle getuies wat

klaarblyklik ooggetuies tot die pleging van 'n

misdryf was of andersins wesenlike inligting kan

verskaf of getuienis kan lewer by die vervolging van

sodanige misdryf baie terughoudend is om inligting te

verskaf vanwee die vrees wat sodanige persone het vir

intimidasie wanneer dit bekend sou word dat hulle 10

getuienis sou moes af le teen die vermeende

oortreders. . . .

Ek is . . . oortuig dat wanneer dit bekend gemaak

word dat die verdediging inderdaad voor die verhoor

insae in polisiedossiere kan kry en afskrifte van

getuieverklarings kan kry, dit die taak van die Suid-

Afrikaanse Polisie geweldig sal bemoeilik en in

sekere gevalle onmoontlik sal maak.

Selfs op hierdie stadium, waar ek getuies die

versekering gee dat hulle verklarings nie geopenbaar 20

1 sal word aan die verdediging voor die verhoor nie, is

dit nie vreemd dat 'n getuie voor die verhoor aandui

dat hy nie meer bereid is om te getuig nie. Wanneer

so 'n getuie kan in kennis gestel word dat hy verplig

kan word om te getuig, is die getuie se verskoning

gewoonlik dat hy nie meer kan onthou wat gebeur het

nie of 'n ander soortgelyke verskoning. Later blyk

baie duidelik dat hierdie getuie geintimideer is deur

die vermeende oortreders en ly die vervolging in die

betrokke/... 3 0

60

JUDGMENT

betrokke saak skipbreuk. "

Warrant Officer Wiehahn, who is stationed at the

Murder & Robbery Unit at Brixton, and who has 13 years'

experience(particularly in the investigation of crimes of

violence), said the following in his affidavit :

"Ek wil verder onder die Agbare Hof se aandag bring

dat ek spesifiek in 'n saak die probleein ondervind

dat getuies weier om enige verklarings af te le. In

die lig van die sensitiwiteit van die aangeleentheid 10

verkies ek om nie die betrokke saak of sake te

identifiseer nie, maar sal ek, indien die Agbare Hof

dit van my verlang, die betrokke inligting beskikbaar

he by die hof by die aanhoor van hierdie

aangeleentheid.

Van die getuies weier pergtinent om verklarings af te

le en is hulle beswaar daarop gegrond dat hulle,

vanwee die feit dat hulle identiteit openbaar mag

word aan die beskuldigdes voor die verhpor, tot .

gevolg kan he dat hulle eie lewens en/or die lewens 20

van hulle families in gevaar mag wees.

Indien pogings aangewend word om druk op sodanige

getuies uit te oefen om verklarings af te le, word

die betrokke getuies bloot ontwykend en kan geen

behoorlike verklaring van sodanige getuies geneem

word nie.

Ek is selfs by een finansiele instelling, wat ek ook

om dieselfde redes as hierbo vermeld nie wil

identifiseer nie, tensy die Agbare Hof dit van my

verlang,/... 3 0

61

JUDGMENT

verlang, in kennis gestel deur die bestuurder van die

betrokke instelling dat haar personeel wat

klaarblyklik nuttige en noodsaaklike inligting oor

beskik, nie bereid is om verklarings aan my te

verskaf nie in die lig van die feit dat die betrokke

personeel kennis dra van die feit dat hulle

verklarings iaoontlik vooraf aan die beskuldigdes

beskikbaar gestel sal word en dat hulle om daardie

rede vrees vir hulle lewe. 10

Sodanige getuies verlang dan van my om 'n waarborg

aan hulle te gee dat hulle verklarings nie beskikbaar

gestel word aan die beskuldigde voor die aanvang van

die verrigtinge nie. Hulle verlang verder 'n

waarborg van my dat hulle nie beskikbaar gestel sal

word aan die verdediging om mee te konsulteer voor

die aanvang van die verrigtinge nie. Uit die aard

van die saak kan ek, in die lig van die huidige

situasie, nie sodanige waarborg gee nie" en is.getuies

dan nie bereid oin behoorlike samewerking te gee vir 20

die afneem van getuieverklarings nie. "

Detective Sergeants Mostert and Steyn, who are also

stationed at the Brixton Murder & Robbery Unit, have said

the following in their affidavits :

"Ek wil ook onder die Agbare Hof se aandag bring dat

ek in 'n saak waarvan ek die ondersoekbeampte is, die

spesifieke probleem het dat getuies wat klaarblyklik

sleutelgetuies kan wees in ernstige misdrywe weier om

samewerking te gee in die sin dat hulle weier om

verklarings/.. . 30

62

JUDGMENT

verklarings af te le uit vrees vir die feit dat hulle

identiteit geopenbaar sal word voor

getuienisaflegging aan die beskuldigdes. "

Colonel Swart has also said the following in his

affidavit :

"Die posisie . . . net drasties verander sedert die

uitspraak van Sy Edele Le Roux, R in die saak van

Staat v J J Botha e. a. bekend geraak net met die

strekking dat getuieverklarings van getuies aan die 10

verdediging beskikbaar gestel moet word en dat die

staatsgetuies selfs voor die verhoor gekonsulteer mag

word deur die verdediging. Die betrokke beslissing

is wyd gepubliseer in die Pers en is dit my indruk

dat die lede van die algemene publiek deeglik kennis

geneem het van die gevolg van die betrokke

beslissing";

and Detective Sergeant Mostert said in his affidavit :

"Ek is in staat om aan die Agbare Hof spesifieke

gevalle voor te hou waar getuies weier, maar vanwee 20

die sensitiwiteit daarvan en die laoontlikheid van

benadeling mettertyd in die verhoor, verkies ek om

nie hierdie inligting op hierdie stadium te openbaar

nie. Ek is egter bereid, indien die Agbare Hof dit

van my verlang, hierdie inligting aan die Agbare Hof

te openbaar op die wyse wat die Agbare Hof gelas.

Ek wil dit duidelik stel dat hierdie probleem eers

ontstaan het nadat die bekend geword het aan die

algeinene publiek dat getuieverklarings moontlik aan

beskuldigde/... 30

63

JUDGMENT

beskuldigde persone beskikbaar gestel sal word voor

die verhoor en dat getuies moontlik verplig kan word

om te konsulteer met die verdediging voor die aanvang

van die verhoor. "

I find the evidence of the police and the Attorney-

General on the question of intimidation and the necessity

to keep witness statements confidential,, • ". .

compelling.

SOPINKA J held at pp 8g-9b of his judgment in the 10

Stinchcombe case :

"Finally, it is suggested that disclosure may put at

risk the security and safety of persons who have

provided the prosecution with information . . . With

respect to witnesses, persons who have information

that may be evidence favourable to the accused will

have to have their identity disclosed sooner or

later. Even the identity of an informer is subject

to this fact of life by virtue of the ' innocence

exception' to the informer privilege rule . . . It 20

will, therefore, be a matter of the timing of the

disclosure rather than whether disclosure should be

made at all".

There are two reasons militating against the

disclosure of the precise evidence of witnesses before they

testify.

The first is that before a witness gives evidence, he

can be intimidated into not giving evidence. On the other

hand, once the witness has given evidence, there is no

point/... 3 0

64

JUDGMENT

point in attempting to intimidate him.

The second is that if a person whose name appears on

the list of witnesses is confronted by the accused and the

content of his evidence is not known,- he can deny that he

will give evidence adverse to the accused. If he can be

confronted with his signed statement under oath, then even

his life may be in danger, especially in the prison

situation in which the applicants and some of the State

witnesses find themselves in the present matter : it 10

appears from the affidavit of Brigadier Khoza (who is the

commanding officer of the Barberton prison); the affidavit

of the investigating officer; and/indeed, from a statement

which purports to be that of accused no 1 which he himself

has annexed to his founding affidavit, that there are gangs

in prisons which do manage to murder members of rival

gangs; and I know from my own experience in the courts that

the penalty for being an "impimpi" (informer) is death.

The Position of the Prosecutor

At p 7b-e of his judgment in the Stinchcombe case, 20

supra. SOPINKA J said :

"In Boucher v The Queen (1955), 110 C.C.C. 263

[1955] SCR 16, 20 C.R.I, Rand J states (at p 270) :

'It cannot be overemphasised that the purpose of

a criminal prosecution is not to obtain a

conviction; it is to lay before a jury what the

Crown considers to be credible evidence relevant

to what is alleged to be a crime. Counsel have

a duty to see that all available legal proof of

the/... 30

65

JUDGMENT

the facts is presented; it should be done firmly

and pressed to its legitimate strength, but it

must also be done fairly. The role of a

prosecutor excludes any notion of winning or

losing; his function is a matter of public duty

than which in civil life there can be none

charged with greater personal responsibility.

It is to be efficiently performed with an

ingrained sense of the dignity, the seriousness 10

and the justness of judicial proceedings. '

I would add that the fruits of the investigation

which are in the possession of counsel for the Crown

are not the property of the Crown for use in securing

a conviction but the property of the public to be

used to ensure that justice is done. "

The quotation from Boucher's case accurately states

the position in South Africa: See S v Jijia & others

supra at p 648A-B and authorities there quoted. In

R v Hollidav, 1924 AD 250 at 255, INNES CJ said : 20

"Moreover criminal prosecutions are with us in

the hands of a highly placed and independent

legal officer, upon whom a great responsibility

rests. He is responsible not only for the

institution of all prosecutions, but for the

conduct of them. And it has been repeatedly

pointed out from the Bench, that his duty is not

simply to obtain a conviction, but to place all

the/...

30

66

JUDGMENT

the relevant facts in his possession before the

Court whether they make in favour of a

conviction or against it. And he is entitled to

have regard to the public interest for he

prosecutes on behalf of the State".

For the reasons which appear from this judgment, the

public interest is not, in my respectful view, served by

automatic full disclosure of the contents of the police

dossier (subject only to exceptions generally held to be 10

in the public interest, e.g. information which would

disclose the identity of an informer). Nor does it follow

from the fact that the fruits of a criminal investigation

are the property of the public to be used to ensure that

justice is done, that an accused should have access to the

police dossier. The fruits of the investigation are for

the use of the State against the accused. To ensure that

they are used fairly, is the function of the court.

It is convenient at this stage to deal with £he main

argument advanced by Mr Zeiss on behalf of the applicants- 20

Mr Zeiss submitted (and I quote from his heads of argument)

that : "Each bill of rights contains a fundamental right,

which is the strongest and most important one and will-

trump other fundamental rights in the event of conflict".

Mr Zeiss submitted that when regard is had to the

historical context of the Constitution; the preamble to the

Constitution; sec 33(1)(a)(ii); sec 35(1) ; the National

Unity & Reconciliation section of the Constitution; and

Constitutional Principles I, III and V in schedule 4 (read

with/... 3 0

67

JUDGMENT

with sec 232(4)), the most powerful right in chapter 3 is

equality. Accordingly, the submission continued, equality

must prevail between an accused and the prosecuting

authority; in terms of the Constitution the accused must

be placed in a position as good as that of the prosecution

in order to 'adduce and challenge evidence' (the

fundamental right entrenched in sec 25(3)(d)); and a

refusal to afford sight of the police docket violates not

only sees 23 and 25(3) but also sec 8(1) . (The 10

lastmentioned section provides that "every person shall

have the right to equality before the law and to equal

protection of the law".)

The fundamental flaw in this argument, with respect

to counsel, is that an accused will never be in an equal

position to the prosecutor for so long as he is entitled

to remain silent during the proceedings and the trial and

not to testify- during trial - rights' which are entrenched

in sec 25(3) (c) of the Constitution. It is in the public

interest that guilty persons should be convicted : cf. R 20

v A, 1952(3) SA 212 (A) at 222E). The public interest in

ensuring that the accused is given a fair trial, can be

served in, I would venture to suggest, nearly every case

without allowing the accused access to the police dossier

and thereby weakening the position of the prosecution. I

would refer in this connection to the following passage in

the judgment of THEAL STEWART CJ in S v Chabalala, 1986(3)

SA 623 (B,AD) at 631F-I :

"Sight must not be lost of the fact that the

Constitution,/... 30

68

JUDGMENT

Constitution, and particularly the Bill of Rights, is

intended to protect the rights of all, and not merely

those of the murderer. In this regard I can do no

better than quote, as the Attorney-General has done,

from Mr Van der Vwer /s own lecture on this subject

on an occasion when he was not arguing the case for

the criminal :

'the lesson to be learnt from the West German

Constitution is that a bill of rights does not 10

and, if it were to be feasible, cannot imply

that the rights and freedoms it contains ought

to confer unrestricted claims and competencies.

I have gained the impression that the generally

entertained distrust in South Africa of human

rights ideas has to a large extent been

cultivated upon this false notion - which may,

incidentally, have been inspired by the sweeping

phraseology of the American Bill of Rights and

certain international human rights documents - 20

that human rights are supposed to be absolute

rights. The truth is that all rights and

freedoms claimed by an individual have their

appropriate boundaries to be determined, in

general, by both the equal rights and freedoms

of other persons and state or community

interests - provided that State interests are

restricted in view of the true function of a

State as an historical community destined to

create/... 30

69

JUDGMENT

create and preserve law and order.

Nor ought the scope and importance of one right

or freedom be preferred over that of another.

The entrenchment of certain rights and freedoms

in a bill of rights ought not to entitle the

subordinates of the State to claim excessive or

extensive privileges, arising from those rights

and freedoms, at the cost of any other right,

freedom or interest, whether included in the 10

bill of rights or not'. " .

Advantages of Disclosure

SOPINKA J in his j udgment (at pp 7h-8c and 9d-e)

refers to practical advantages of a duty of full disclosure

(e.g. that adj ournments to enable the defence to take

instructions could be avoided; pleas of guilty could

increase; and charges could be withdrawn) and to "the

overriding concern that failure to disclose impedes the

ability of the accused to make full answer and defence".

In my respectful view, these advantages could be achieved, 20

and the concern eliminated, without the necessity for the

prosecution to hand over witnesses' statements.

For all of the above reasons, I respectfully but

entirely disagree with the statement by SOPINKA J at p 7a

of the Stinchcombe decision that :

"It is difficult to justify the position which clings

to the notion that the Crown has no legal duty to

disclose all relevant information. The arguments

against the existence of such a duty are groundless

while/... 30

70

JUDGMENT

while those in favour, are, in my view,

overwhelming".

Public International Law and Foreign Judgments

Sec 35(1) of the Constitution provides :

"In interpreting the provisions of this Chapter

a court of law shall promote the values which

* underlie an open and democratic society based on

freedom and equality and shall, where

applicable, have regard to public international 10

law applicable to the protection of the rights

entrenched in this Chapter, and may have regard

to comparable foreign case law".

Cachalia et al., op.cit., at pp 121-2 say the

following :

"The question of using public international law as

authority was canvassed recently by the Botswana

Court of Appeal in Unity Dow v AG Botswana (Civil

Appeal 4/91). The court a quo had relied upon the

international obligations of Botswana in support of 20

its decision that sex based discrimination was

prohibited by the Constitution. The appellant

objected to the use of 'the African Charter on Human

and Peoples' Rights, the European Convention for the

Protection of Human Rights and Fundamental Freedoms,

and the Declaration on the Elimination of

Discrimination against Women'.

Aguda JA held:

'Even if it is accepted that those treaties and

conventions/... 30

71

JUDGMENT

conventions do not confer enforceable rights on

individuals within the state until Parliament

has legislated its provisions into the law of

the land, in so far as such relevant

international treaties and conventions may be

referred to as an aid to construction of

enactments, including the Constitution, I find

myself at a loss to understand the complaint

made against their use in that manner in 10

interpretation of what no doubt are some

difficult provisions of the Constitution. The

reference made by the learned judge a quo to

these materials amounted to nothing more than

that.'»

Mr Bertelsmann referred during the course of his

argument on behalf of the Commissioner of Police to several

decisions of the European Court of Human Rights. Two are

relevant to the conclusion I have reached in this matter.

They concern article 6 of the European Convention on 20

Human Rights. That article provides as follows :

"1. In the determination of his civil rights and

obligations or of any criminal charge against

him, everyone is entitled to a fair and public

hearing within a reasonable time by an

independent and impartial tribunal established

by law. Judgment shall be pronounced publicly

but the press and public may be excluded from

all or part of the trial in the interest of

morals,/... 30

72

JUDGMENT

morals, public order or national security in a

democratic society, where the interests of

juveniles or the protection of the private life

of the parties so require, or to the extent

strictly necessary in the opinion of the court

in special circumstances where publicity would

prejudice the interests of justice.

2. Everyone charged with a criminal offence shall

be presumed innocent until proved guilty 10

according to the law.

3. Everyone charged with a criminal offence has the

following minimum rights:

(a) to be informed promptly, in a language

which he understands and in detail, of the

nature and cause of the accusation against

him;

(b) to have adequate time and facilities for

the preparation of his defence;

(c) to defend himself in person or through 20

legal assistance of his own choosing or, if

he has not sufficient means to pay for

legal assistance, to be given it free when

the interests of justice so require;

(d) to examine or have examined witnesses

against him and to obtain the attendance

and examination of witnesses on his behalf

under the same conditions as witnesses

against him;

(e) to/... 30

73

JUDGMENT

(e) to have the free assistance of an

interpreter if he cannot understand or

speak the language used in court. "

Kruger and Currin, "Interpreting a Bill of Rights"

(1994) say the following at page 87 :

"These minimum rights set out in art 6 are regarded

by the Court as constituent elements of the wider

concept of a fair trial. The concept of fairness

embraces every aspect of the trial or pre-trial 10

procedures and focuses on the manner in which the

evidence for and against the accused has been

presented . . . "

In Saldi v France (summarised in the Human Rights Case

Digest vol IV Part 5) the European Court of Human Rights

in a judgment delivered on 20 September 199 3 held that

there had been a breach of article 6(1) and (3)(d) of the

Convention because the failure to organise a confrontation

with the prosecution witnesses, whose statements

constituted the sole basis of the applicant's conviction 20

for drug trafficking, deprived him in certain respects of

a fair trial. The 6burt reiterated that all the evidence

must normally be produced in the presence of the accused

at a public hearing with a view to adversarial argument.

It held, however, that the use as evidence of statements

obtained at the stage of the police enquiry and the

judicial investigation was not in itself inconsistent with

paragraphs (3)(d) and (1) of article 6 provided that the

rights of the defence had been respected. The court held

that/... 30

74

JUDGMENT

that as a rule those rights required that the defendant be

given an adequate and proper opportunity to challenge and

question a witness against him,either when he was making

his statements, or at a later stage. In the case under

review the testimony obtained prior to the trial

constituted the sole basis for the applicant's conviction,

after being the only ground for his committal for trial.

Yet neither at the stage of the investigation nor during

the trial was the applicant able to examine, or have 10

examined, the witnesses concerned. The Court accordingly

held that there had been a violation of article 6(1) and

In Dombo Beheer BV v The Netherlands (summarised at

p 201 of the same volume of the Human Rights Case Digest)

the applicant company had complained of the refusal by the

investigating judge to hear as a witness its former

managing director, whereas the branch manager of the bank

(who had been the only other person present when the oral

agreement which the applicant company contended it had with 20

the bank, was entered into) was allowed to testify. The

Gourt held that the requirements inherent in the concept

of "fair hearing" were not necessarily the same in cases

concerning the .determination of civil rights and

obligations as they were in cases concerning the

determination of a criminal charge. The court found this

borne out by the absence of detailed provisions such as

paragraphs (2) and (3) of article 6 applying to cases of

the former category. Thus, the Sourt found, although these

provisions/... 30

75

JUDGMENT

provisions did have a certain relevance outside the strict

confines of criminal law, the Contracting States had

greater latitude when dealing with civil cases than they

had when dealing with criminal cases. The Court

nevertheless held that the applicant company had been

placed at a substantial disadvantage vis-a-vis the bank and

there had accordingly been a violation of article 6(1).

In Khala's case supra, Sefadi's case supra and

Maiavu/s case supra an analysis is made of the legal 10

position in foreign countries- Before me, Miss Leonard,

who was part of the legal team representing the Attorney-

General, produced over 70 pages of heads of argument which

reflect detailed and careful research into the legal

position in the United States of America, England, New

Zealand, Australia and Canada; and Mr Zeiss made

submissions in regard to the legal position in Germany as

contained in article 19(11) of the Grundgesetz (Basic Law)

of which sec 33(1)(b) of the South African Constitution is

a virtually literal translation. Unfortunately (and I say 20

this with all due respect to counsel) the exercise was a

case of the blind leading the blind.

The danger of relying on cases decided in foreign

jurisdictions is that a person not trained in the practice

of the law in those jurisdictions will not be able to place

decided cases in context,, and/ for that reason, can easily

misinterpret the legal position. As Professor Forsyth in

his book "Private International Law" 2 ed (1990) says, in

a civil law context, at pp 82-3 :

" . . . [WJhile/... 30

76

JUDGMENT

" . . . [W]hile it is reasonable to expect a good

judge to have a more than nodding acquaintenance with

comparative law, it is quite unreasonable to expect

him to be sufficient of a legal wizard to be able to

master, without aid, the detailed and intricate

provisions of some foreign rule which is disputed

before him in a conflict of laws case. Moreover,

while it is plain that the judge cannot know about

every legal system, it is also clear that he cannot - 10

by himself - acquire such knowledge. Apart from the

obstacles of language which immediately present

themselves, mastery of a legal system requires long

years of training in the concepts and techniques of

that system. On the other hand, there will be some

foreign laws, e.g. the laws of South Africa's

neighbours who share a Roman-Dutch heritage, which

South African judges can easily master".

MYBURGH J in Khala's case supra at pp 115E-117I- quotes

Rule 16 of the Federal Rules of Criminal Procedure in the 20

United States of America. The learned Judge said (at p

115D) that these rules "[Gjovern criminal proceedings in

the Courts of the United States. They are promulgated by

the Supreme Court, reviewed, amended and approved by

Congress and have the force and effect of law. In most

jurisdictions they are supplemented by local rules which

detail that district's practice requirements and

procedures".

Rule 16(a)(2) of the Federal Rules reads as follows :

"Except/... 30

77

JUDGMENT

"Except as provided in paragraphs (A), (B) and

(D) of sub-division (a)(1)" (which provide

respectively for production to the defence of

the statement of the defendant, the defendant's

prior record and reports of examinations and

tests) "this rule does not authorise the

discovery or inspection of reports, memoranda,

or other internal government documents made by

the attorney for the government or other 10

government agents in connection with the

investigation or prosecution of the case, or of

statements made by government witnesses or

prospective government witnesses except as

provided in 18 USC 3500".

MYBURGH J had the benefit of research done by Professor T

Geldenhuys of the Law Department of the University of South

Africa. Professor Geldenhuys's qualifications and sources

are not given. •

MARNEWICK AJ in the Sefadi case supra (at pp 33F-34E) 20

had regard to the Corpus Juris Secundum ("CJS") and said

the following at p 34B-E :

"The State therefore has the duty to make discovery

not only of inculpatory evidence but also exculpatory

evidence. In volume 2 2A CJS paragraph 4 89 the

following is said:

'The government has a duty to disclose material

which is in the possession of the police, an

investigative or law enforcement agency, or the

crime/... 30

78

JUDGMENT

crime laboratory, to which the prosecutor has

access, the existence of which could have become

known to the prosecutor through the exercise of

reasonable diligence, even though the prosecutor

does not have the present physical possession,

and even if the prosecuting attorney has no

knowledge of the material'.

The material which has to be discovered is not

defined but it is clear from the context that it 10

includes statements made by witnesses to the

police.

It is apparent from the aforegoing that in an

American court the accused not only has the

right to interview all witnesses, even those

held in custody by the State, but he also has

the right through the discovery process of

gaining access to all the material available to

the prosecutor, which would include statements

made by witnesses, exhibits, forensic reports 20

and the like".

In Maiavu's case supra HEATH J at pp 661-67J had

regard to two text-books. The first said, inter alia :

"In contrast to the diverse means and broad scope of

discovery in civil cases, only limited discovery by

a few devices is provided for by both Federal and

State Criminal Procedures . . . the inherent power of

the trial court to permit discovery in criminal cases

in the interests of justice may be exercised with

respect/... 30

79

JUDGMENT

respect to matters not explicitly authorised under

the limited discovery provisions of Rule 16 of the

Federal Rules of Criminal Procedure or a State

counterpart thereto".

The position in regard to State courts, according to the

second text-book consulted by HEATH J, was said by him to

be the following :

11 . . . [T]hat an accused is not entitled to a

discovery as of right but that the Court has a 10

discretion to come to his assistance on application

by him, to the extent that the Court is satisfied

that he has made out a case for the discovery of

certain documents."

Miss Leonard had regard to an American text book,

"Criminal Procedure" by Wayne R Lavave and Jerold H Israel.

Miss Leonard submitted, on the strength of what is

contained in that text book, that criminal cases in the

United States of America are heard in State or Federal

Courts; that only the position in Federal Courts is 20

governed by the rule quoted by MYBURGH J; that the position

varies in State courts from a requirement that all

prosecution evidence must be disclosed to a prohibition of

any such disclosure; but that there is no constitutional

right to discovery of information in the possession of the

State and that attempts to pass such legislation have

always failed. Miss Leonard informed me that the

reference to "18 USC 3500" in Federal Rule 16(a)(2) quoted

by MYBURGH J in Khala's case supra is a reference to the

"Jencks/... 30

80

JUDGMENT

"Jencks Act" which apparently provides that after a

prosecution witness has testified in chief, the defence may

apply to the court for access to the witness's statement

for the purpose of attacking his credibility.

Quot homines, tot sententiae.

In my view, a court invoking the permissive power

contained in sec 35(1) of the Constitution to "have regard

to comparable foreign case law" (emphasis added) should

bear in mind the obvious reasons why the common law 10

requires that foreign law must be proved by the evidence

of an expert peritus virtute officii.and why sec 1(1) of

the Law of Evidence

Amendment Act, No 45 of 1988, provides in sec -1(1) that

"any court may take judicial notice of the law of a foreign

state . . - in so far as such law can be ascertained

readily and with sufficient certainty . . . " (emphasis

added). In addition, I respectfully agree with the caveat

expressed by FRONEMAN J in the Qozeleni case at p 633F-G

and adopted by LE ROUX J in the Botha case supra that : 20

"Although s 35(1) of the Constitution enjoins one to

have regard to comparable foreign case law where

applicable in interpreting the provisions of chap 3

of the Constitution, this should be done with

circumspection because of the differing contexts

within which foreign constitutions were drafted and

operate in, and the danger of unnecessarily importing

doctrines associated with those constitutions into an

inappropriate South African setting"..

I/... 30

81

JUDGMENT

I would only add that sec 35(1) does not "enjoin"; the

word used is "may".

For these reasons, I do not propose attempting to

ascertain how, why and to what extent foreign case law

permits an accused access to information in the possession

of the State.

Application of sec 23 to sec 25

In my judgment an accused is entitled to be informed

of the case against him with sufficient particularity and 10

sufficiently in advance of the trial to enable him

meaningfully to exercise his right contained in sec

25(3)(d) of the Constitution to adduce and challenge

evidence.

In order to exercise this right, he is entitled to

invoke sec 23 of the Constitution. That section requires

an accused to show that the information to which he wishes

,to have access is "required" for the exercise of his right

to fair trial; and the word "required" postulates an

element of necessity. Sec 23 does not mean that an accused 20

is entitled, as of right and without more, to access to the

police dossier; although an accused would be entitled to

access to the whole or part of a dossier if he could show

(and I believe that this would seldom be the case) that he

"required" this information to exercise or protect any of

his rights in terms of sec 25(3) of the Constitution.

If the accused brought such an application,

he would bear the onus of showing that he required the

information. If that onus was discharged, the onus would

be/... 30

82

JUDGMENT

be on the State in terras of sec 33 to prove, on a balance

of probabilities, that a law (whether statutory - e.g. sec

66 of the. Internal Security Act, No 74 of 1982; or forming

part of the common law - e.g. the privilege relating to

non-disclosure of the identity of an informer) of general

application which limited such access, is reasonable; is

justified in an open and democratic society based on

freedom and equality; does not negative the essential

content of the right in question; and - perhaps - is 10

necessary. I expressly refrain from deciding the question

of necessity as it does not arise in the matter before me

and there is a dispute in the decided cases on this point -

see the decision of the Full Bench of the Eastern Cape

Division in PhatcT'*s matter, supra.

The fate of the present applications

In casu the applicants fail at the first hurdle. They

have not shown that they require access to the dossier for

the exercise of any of their rights to a fair trial. The

applicants have been informed of the charge against them, 20

namely "Dat [hulle] skuldig is aan die misdaad van moord

deurdat [hulle] op of omtrent 26 Februarie 1993 en te of

naby Barberton in die distrik van Barberton wederregtelik

en opsetlik vir John Sehayi 'n volwasse man gedood net".

The summary of substantial facts reads as follows :

"1 Op 26 Februarie 1993 was die oorledene en 'n

groep mede-gevangenes in die maksimum A-seksie

se binne plaas te Barberton gevangenis. Die

beskuldigdes was onder hierdie groep.

2 Die/... 30

83

JUDGMENT

2 Die oorledene en ander gevangenes het by die

ablusieblok rondgestaan. Die beskuldigdes was

ook deel van hierdie groep.

3 Vier van die beskuldigdes het die oorledene

vasgehou terwyl die ander twee beskuldigdes die

oorledene verskeie kere steek met tuisgemaakte

messe. Die oorledene is op die toneel dood.

4 Die oorsaak van dood word aangegee as

'veelvuldigde steekwonde"1. 10

The applicants have been provided with a list of witnesses.

If they require further particulars (for example,, as to

whether the State relies on the doctrine of common

purpose), they can request such particulars. The Attorney-

General has tendered production of the documents to which

I have referred at the beginning of this judgment. I have,

with the consent of leading counsel representing the

applicants, ascertained from counsel representing the

respondents that the Attorney-General is prepared*to make

available the photographs and video tape and that the 20

Commissioner of Police has no objection thereto. There is

no list of exhibits.

At this stage of the proceedings and on the facts

before me I see no warrant for permitting the applicants

access to the other statements in section A of the dossier,

or to what is contained in sections B and C of the dossier,

nor do I see any warrant for directing that summaries of

evidence of witnesses who have not made statements, should

be furnished to the applicants.

I/... 30

84

JUDGMENT

•, I base my judgment not only on what I have stated in

the previous paragraph but also on the practical problems

referred to in paragraph 3.25 of the Botha Commission

Report which would result if the applicants were to be

given access to the police dossier (in casu the

investigating officer spoke siSwati to the witnesses and

translated the statements into Afrikaans); the general

approach that it is undesirable for a judge of first

instance radically to depart from a practice laid down 10

repeatedly over many years by South African courts

(including the Appellate Division), where fundamental

rights entrenched in chapter 3 of the Constitution can be

given effect to without doing so; and on my belief that the

decision of the majority in the Tune case is preferable to

the decision in Stinchcombe's case supra in the context of

the South African situation.

It is necessary for me to say, and I do so with great

respect to my learned colleague who decided Botha's case

supra and to the Full Bench of the Eastern Cape Division 20

who decided Phato/s case supra, that in my judgment those

cases were wrongly decided and ought not to be followed in

the Transvaal.

For the same reasons, I consider that the prayers

relating to consultation with State witnesses should not

be granted. The courts have repeatedly given effect to the

practice whereby an accused or his legal representative may

only consult with a State witness with the consent of the

prosecutor: S v Hassim & others, 1972(1) SA 200 (N); S v

Manacola/... 30

li, 85

JUDGMENT

Mancrcola & others, 1987(1) SA 507 (C); S v Tiiho. 1992(1)

SACR 639 (Nm); and S v Gaume & others, 1994(2) SACK 187

(C). I see no reason on what is before me to conclude that

the applicants will not be given a fair trial unless I were

to depart from that practice in the instant case.

The application is dismissed. I direct that the

trial of the accused shall proceed on a date to be fixed

by the Attorney-General.

I am of the view, however, that this application 10

raises constitutional questions of such public importance

that a ruling should be given by the Constitutional Court.

The correct interpretation of sec 241(8) of the

Constitution has already been referred to the

Constitutional Court by the Appellate Division in S v

Makwanvane en 'n Ander, 1994(3) SA 868 (A).

The following questions are referred to the

Constitutional Court for decision in terms of sec 102(8)

of the Constitution :

1 Whether a Court interpreting the Constitution is 20

bound by the principles of stare decisis to follow

the decision of a superior court; . .

- •'. .-" /.- ' " . ; or whether such a court may

hold that a decision of such superior court 1 is per

incuriam because it incorrectly interprets the

Constitution.

Whether sec 23 of the Constitution can be utilised by

an accused in the exercise of the rights contained in

sec 25(3) of the Constitution; and if so

2.1 /... 30

86

JUDGMENT

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

witnesses who have given statements to the

police; and if so, under what circumstances and 10

subject to what conditions (if any) such

consultations should take place.

T D CLOETE

JUDGE OF THE SUPREME COURT OFSOUTH AFRICA

TRANSVAAL PROVINCIAL DIVISION

20C

ON BEHALF OF ALL APPBLrkNTS: ADV R K R ZEIS3 SCPro Deoand with himPro DeoADVS S J J VAN RENSBURGJ S STONEM M DE JONGJ VILJOEN

ON BEHALF OF FIRST RESPONDENT: ADV (Mrs) H MEINTJIES 30

and

ADV (Miss) E LEONARD

FOR THE SECOND RESPONDENT: ADV E BERTELSMANN SCand with himADV J CILLIERS

Instructed by: State Attorney, Pretoria

DATE OF HEARING: 21, 24 and 25 October 199440

DATE OF JUDGMENT: 4 November 1994

'-&•? MOV '54F.3

Case NO. 18902/94

and OTHERS v AT_TUKM£Y-GSNEIWD

* •n ADENDUM TO JUDGEMENT

When.the judgement in the above matters was delivered in court on4 November 1994, Cloeze J added the following at page 53 line 9 cfthe typed judgement (after the word 'compelling ' ) .

11 The following remarks of VANDERBILT CJ in £u_n£'scase supra, are aopcsite:

1 ,.. [A]lthough we are ever alert to protect therights of an individual accused we shouldremember that the people of this State must alsobe protected. In weighing up the rights of theindividual snd these of the State we must not becarried away in our desire to protect the individualaccused to such an extent that the saftey of thepublic is jeopardized '. "

4 November, 1994 C. VRANASREGISTRAR TO THEHOHOURABLE MR JUSTICECLOETE