A Constitutional Revolution in South African Criminal Procedure?


A Constitutional Revolution in South African Criminal Procedure?



DURING THE 1990s South African criminal procedure law underwent root-and-branch reform as part of the new post-Apartheid state’s radical reconstruction of political institutions. Until 1995 the vast majority of South Africans were—literally—disenfranchised. Legal positivism prevailed, and the only criterion of trial fairness was formal compliance with the rules. Indefinite detention without trial was tolerated and the means of obtaining evidence had little impact on evidentiary issues of admissibility or trial fairness.

The year 1990 marked a profound change in the political climate in South Africa. An intense period of negotiation culminated in the acceptance of the principle of constitutional supremacy and, on 27 April 1995, the country held its first democratic elections with universal adult franchise. The interim Constitution of 19931 was superseded in 1996 by a permanent Constitution with a justiciable Bill of Rights. However, a genuine ‘revolution’ in criminal procedure requires more than just institutional reform and drafting new laws. South Africa has one of the highest income disparities in the world, with a relatively small middle class sandwiched between the substantial majority of the population, which is impoverished, and a super-rich elite. In formal terms, there has been a rights revolution which has made a major impact on the rules of criminal evidence. This chapter considers the extent of that impact, and its limitations.2


According to standard comparative law taxonomies, South Africa has a ‘mixed’ legal system, comprising Roman-Dutch substantive law and procedural law derived from the common law tradition. Modern South African criminal procedure law is essentially statutory,3 but courts are referred to the English common law as it stood on 30 May 1961 (the day before South Africa became a republic) to fill in any gaps in statutory coverage. Since 1993, statutes and common law precedents must now also be tested against the Constitution and the Bill of Rights. This includes a very detailed specification of the right to a fair trial, which is discussed in the next section. In addition, various other constitutionally-entrenched rights continue to reshape the content and form of the criminal justice system, including the rights to equality,4 dignity,5 life,6 freedom and security of the person,7 privacy,8 freedom of religion,9 freedom of expression,10 property,11 and access to information.12

Rights declared in the Bill of Rights are subject to the following general limitations clause, contained in section 36 of the Constitution:13

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

The limitations clause plays a significant role in balancing the competing interests inherent in any criminal justice system. Section 39 of the Constitution provides courts with further general guidance on the interpretation of substantive rights:

(1) When interpreting the Bill of Rights, a court, tribunal or forum—

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

(b) must consider international law; and

(c) may consider foreign law.

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

The Constitutional Court has expounded on the effect of section 39. Although the starting point will always be the text of the Constitution,14 the court has advocated a generous and purposive interpretation to the text so as to ‘give… expression to the underlying values of the Constitution’.15 The purpose of the right is ascertained by identifying the interests that the right seeks to protect,16 in the light of South Africa’s distinctive political history, as so eloquently explained in Shabalala v Attorney-General of the Transvaal:17

[T]he Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible… It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is ‘justifiable in an open and democratic society based on freedom and equality’. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.

The Constitutional Court stressed the importance of generously interpreting the content of constitutional rights as widely as the text will allow.18 This should mean that the party bearing the burden of establishing a rights infringement bears a relatively light burden in contrast to the party who seeks to have the right restricted. However, as we will see, there are numerous instances where the courts have elected not to take a generous approach in respect of either the content or the purpose of the right. This cramped approach qualifies the extent to which one may legitimately speak of a constitutional revolution in South African evidence law.


The Apartheid State had used law in general, and the criminal justice system in particular, as powerful tools of political coercion and social control. It was therefore not surprising that the new Bill of Rights made explicit provision, in section 35 of the Constitution, for the protection of the rights of arrested, accused and detained persons. Section 35(1) guarantees to ‘[e]veryone who is arrested for allegedly committing an offence’ the rights to silence and freedom from compelled confession, access to court, and prompt charge or release ‘if the interests of justice permit, subject to reasonable conditions’. Section 35(2) contains the rights for all detained persons (including sentenced prisoners) to be informed promptly of the reason for their detention; access to competent legal advice ‘at state expense, if substantial injustice would otherwise result’; access to court to challenge the lawfulness of their detention; to conditions of detention that are ‘consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment’; and to communicate with family members and doctors and religious counsellors of their own choosing.

Section 35(3) then sets out the following, distinctively South African version of the ‘right to a fair trial’, adapted from familiar provisions in international human rights law such as ICCPR Article 14 and ECHR Article 6:

(3) Every accused person has a right to a fair trial, which includes the right—

(a) to be informed of the charge with sufficient detail to answer it;

(b) to have adequate time and facilities to prepare a defence;

(c) to a public trial before an ordinary court;

(d) to have their trial begin and conclude without unreasonable delay;

(e) to be present when being tried;

(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;

(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;

(l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;

(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

(o) of appeal to, or review by, a higher court.

Section 35(4) stresses that information must be provided in a language that the suspect, accused or detainee understands—a significant proviso in a jurisdiction as linguistically diverse as South Africa. Finally, section 35(5) specifies a generic exclusionary rule pertaining to evidence obtained in violation of the constitution:

Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

Section 35’s right to a fair trial is possibly unique in its coverage and detail. This reflects acute consciousness of past abuses and the sterility of positivist definitions. It was only three years before the advent of democracy that the Appellate Division described the concept of trial fairness in the following restrictive terms:

[A court of appeal] does not enquire whether the trial was fair in accordance with ‘notions of fairness and justice’, or with ‘the ideas underlying … the concept of justice which are the basis of all civilised systems of criminal administration’. The enquiry is whether there has been an irregularity or illegality that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated and conducted. … What an accused person is entitled to is a trial initiated and conducted in accordance with those formalities, rules and principles of procedure which the law requires. He is not entitled to a trial which is fair when tested against abstract notions of fairness and justice.19

In its very first judgment, in S v Zuma, the Constitutional Court resoundingly rejected this positivist approach. It held that the constitutional right to a fair trial embraced ‘a concept of substantive fairness’ that ‘required criminal trials to be conducted in accordance with just those ‘notions of basic fairness and justice’.20 The Court also held that the right to a fair trial was not restricted to those rights enumerated in section 35(3).21 The Constitutional Court again in S v Dzukuda; S v Tshilo emphasised the difference in approach between the old and new legal orders:

[A]n accused’s right to a fair trial under s 35(3) of the Constitution is a comprehensive right… Elements of this comprehensive right are specified in paras (a) to (o) of ss (3). The words ‘which include the right’ preceding this listing indicate that such specification is not exhaustive of what the right to a fair trial comprises. It also does not warrant the conclusion that the right to a fair trial consists merely of a number of discrete sub-rights, some of which have been specified in the subsection and others not. The right to a fair trial is a comprehensive and integrated right, the content of which will be established, on a case by case basis, as our constitutional jurisprudence on s 35(3) develops… At the heart of the right to a fair criminal trial and what infuses its purpose, is for justice to be done and also to be seen to be done. But the concept of justice itself is a broad and protean concept. In considering what, for purposes of this case, lies at the heart of a fair trial in the field of criminal justice, one should bear in mind that dignity, freedom and equality are the foundational values of our Constitution. An important aim of the right to a fair criminal trial is to ensure adequately that innocent people are not wrongly convicted, because of the adverse effects which a wrong conviction has on the liberty, and dignity (and possibly other) interests of the accused. There are, however, other elements of the right to a fair trial such as, for example, the presumption of innocence, the right to free legal representation in given circumstances, a trial in public which is not unreasonably delayed, which cannot be explained exclusively on the basis of averting a wrong conviction, but which arise primarily from considerations of dignity and equality.22

The remainder of this chapter examines in more detail some of the most important discrete strands of the constitutional right to a fair trial and their development by the South African courts since the mid-1990s.


This section explores the impact of South Africa’s new constitutional arrangements on some familiar features of criminal procedure law and fair trial rights, specifically: (a) the presumption of innocence; (b) discharge where there is no case to answer; (c) the right to legal representation; (d) the right to silence; and (e) the right to adequate time and facilities to prepare a defence.

(a) The Presumption of Innocence

Prior to 1995 the presumption of innocence had the same equivocal status in legal theory and practice as it enjoyed in the country from which it was inherited, as part of the legacy of English common law. That is to say, it was given high rhetorical regard but subjected to the vagaries of legislative will.

From its very first decision,23 the South African Constitutional Court has consistently struck down any deviation from the presumption of innocence’s demand that the state prove each and every element of a crime beyond reasonable doubt.24 Unlike apex courts in other jurisdictions, the Court has declined to draw distinctions between ‘crimes’ and ‘regulatory offences’ or between the defence and offence components in the definition of a criminal prohibition.25 The sole determinant of constitutional compliance is whether there is the possibility of a conviction despite the existence of a reasonable doubt. However, the scope of the right to be presumed innocent has been restricted to the criminal trial; consequently it does not apply to interrogation procedures outside of the criminal process, nor to post-conviction proceedings.26

Although the Constitutional Court has never upheld a limitation on the presumption of innocence it has been careful to distinguish the presumption of innocence from the cluster of rights closely associated with it, such as the right to remain silent and the privilege against self-incrimination.27 In contrast to Canadian jurisprudence, South African courts have held that the imposition of an evidentiary burden will not infringe the right to remain silent.28 The decision in S v Manamela29 marked a shift from a more generous approach to interpreting the constitutional presumption of innocence, by effectively equating it to nothing more than a standard of proof. This undermines the rationale of the presumption of innocence, which is directed at reducing the possibility of an erroneous conviction in pursuit of the ideal that only the blameworthy should be punished. If the location of the burden of proof as a component of the presumption of innocence is ignored, the possibility of error increases.

(b) Discharge at the Close of the State’s Case

Constitutional norms have influenced the interpretation of section 174 of the Criminal Procedure Act 1977, which provides:

If at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.

Prior to the new constitutional dispensation there was a significant body of case authority in support of the proposition that the use of the word ‘may’ in section 174 conferred a discretion on the court to refuse discharge in the absence of evidence supporting a conviction, provided there was a ‘reasonable possibility that the defence evidence might supplement the state case’.30 The correctness of this approach was soon challenged when the Interim Constitution came into force. Claasen J in S v Mathebula31 held that an accused’s right to freedom and security of person as well as his rights to be presumed innocent and remain silent severely curtailed the discretion conferred by section 174. Consequently, courts no longer had discretion to refuse discharge when there was no evidence tendered against the accused. However, this approach was not uniformly adopted by the High Court.32

The Supreme Court of Appeal’s decisions in S v Legote33 and S v Lubaxa34 extend this line of reasoning. In Legote, Harms JA held that a court had a duty to ensure that an unrepresented accused against whom the state had not made out a prima facie case was discharged and the principle of equality required that this duty be extended to accused persons with legal representation. In Lubaxa, Nugent AJA (as he was then) stated:

I have no doubt that an accused person (whether or not he is represented) is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory evidence.35

The Lubaxa court found that the right to be discharged did not necessarily arise from the rights to be presumed innocent, to remain silent or not to testify, but rather from the constitutional rights to dignity and personal freedom which require the existence of a ‘“reasonable and probable” cause to believe that the accused is guilty’.36 However, the court did not disentangle the constitutional rights to dignity, personal freedom and a fair trial. It concluded that the protection afforded by the rights to dignity and personal freedom will be ‘pre-eminently’ eroded ‘where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination’.

Presumably, it is the privilege against self-incrimination which underlies the Lubaxa court’s finding that ‘[t]he same considerations do not necessarily arise … where the prosecution’s case against one accused might be supplemented by the evidence of a co-accused’.37 The Lubaxa court reasoned that ‘[t]he prosecution is ordinarily entitled to rely upon the evidence of an accomplice and it is not self-evident why it should necessarily be precluded from doing so merely because it has chosen to prosecute more than one person jointly’.38 However, it is equally not self-evident why the rights to privacy and freedom of the person cease to be infringed merely because the prosecution has chosen to prosecute more than one person jointly. One argument that might support this view is that the refusal of discharge is premised, not on the possibility that the accused will incriminate himself, but rather on the likelihood that the co-accused will complete the prosecution’s task.39 We are left with a penumbra of uncertainty surrounding the ambit of several key constitutional rights.

(c) The Right to Legal Representation

Under the old legal order there was no substantive right to legal representation except in capital cases.40 Except for those arrested under security legislation, suspects had a right to legal representation at their own expense. The importance of legal representation at both trial and pre-trial stages was already well-established in many Anglo-American jurisdictions prior to the 1990s,41 and this realisation was extended to South Africa by section 35(1) (c) of the new constitution. Thus, the link between the right to counsel and other essential procedural rights was succinctly restated by Froneman J in S v Melani:

The purpose of the right to counsel and its corollary to be informed of that right… is thus to protect the right to remain silent, the right not to incriminate oneself and the right to be presumed innocent until proven guilty…. [T]his protection exists from the inception of the criminal process that is on arrest, until its culmination up to and during the trial itself. This protection has nothing to do with the need to ensure the reliability of evidence adduced at the trial. It has everything to do with the need to ensure that an accused is treated fairly in the entire criminal process: in the ‘gatehouse’ of the criminal justice system (that is the interrogation process), as well as in its ‘mansions’ (the trial court).42

The Constitution affords detained and accused persons the right to be provided with legal assistance at state expense only ‘if substantial injustice would otherwise result’.43 However, if legal representation is necessary to uphold the privilege against self-incrimination (and associated rights) and the protection of the right not to incriminate oneself is necessary to ensure a fair trial, then a person ought to have access to legal representation in order to secure their basic rights irrespective of financial means. The logical conclusion to this line of reasoning is that if the state finds itself unable to provide legal representation to an arrested, detained or accused person, police interrogation should cease.44 There can be little doubt that the reason for qualifying the substantive right to legal representation is that the South African state simply does not have the resources to provide legal representation for every indigent accused. An unqualified right to legal representation would paralyse an already overburdened criminal justice system. Factors taken into account in applying the substantial injustice test include: the complexity of the case;45 the severity of the potential sentence;46 and the level of education and indigence of the accused.47 Where the potential for substantial injustice is clear, a trial may not proceed in the absence of legal representation unless the accused makes an informed waiver of her right to counsel.48 Whilst legal representation will normally be afforded to indigents at trial,49 the widespread incidence of pre-trial abuses in South Africa indicates dire need for pre-trial access to legal advice and assistance.

Where an accused is unrepresented it is well-established that presiding officers must ensure that the accused is informed of her rights,50 including the right to legal representation, prior to the commencement of the trial.51 However, failure to inform an accused of the right to legal representation will result in an unfair trial only if it can be shown ‘that the conviction has been tarnished by the irregularity’.52 The state’s fiscal inability to provide legal representation to all those who become embroiled in criminal process undoubtedly undermines the substantive impact of South Africa’s constitutional ‘rights revolution’.

(d) The Right to Remain Silent

At common law, the prosecution could refer to the accused’s silence once a prima facie case had been established. There was clear authority for the proposition that, in certain circumstances, an accused’s refusal to testify, when the prosecution had established a prima facie case, could be a factor in assessing guilt.53 The High Court in S v Brown54 observed that its new constitutional status would affect the application of the common law right to silence. The most obvious change is that any infringement of the right to remain silent must now be justified by reference to the limitations clause in section 36 of the Constitution.

In Brown the court ruled that use of silence as an item of evidence amounted to an indirect compulsion to testify and that the drawing of an adverse inference from silence diminished and possibly nullified the right to remain silent. It would therefore be unconstitutional for the court to draw an adverse inference where accused persons elect to exercise their constitutional right to remain silent.55 However, the court went on to say that this conclusion does not imply that reliance on the right to remain silent will never have adverse consequences for the accused.56 Where the state has established a prima facie case, and the accused fails to testify or to adduce any other evidence to rebut it, the court is obliged to assess the uncontradicted evidence of the state. In this situation it is foreseeable, indeed commonplace, that the prosecution’s prima facie case will be sufficient to sustain a conviction. In other words, although the accused’s silence may not be treated as an independent item of evidence, he or she will have to accept the risk of conviction on the basis of uncontroverted evidence of guilt (rather than any inference drawn directly from the accused’s silence).57

Reaching the opposite conclusion (and without reference to Brown), the court in S v Lavhengwa affirmed that an adverse inference could be permitted in appropriate circumstances:

It accords, first, with common sense. The inference is permissible only when the accused fails to give evidence despite the fact that the prosecution evidence strongly indicates guilt, an innocent accused would have refuted evidence against him, and there is no other explanation of his failure to do so. In these circumstances common sense demands that an inference be drawn and human nature is such that one would be all but inevitable. It has indeed been suggested that ‘no rule of law can effectively legislate against the drawing of an inference from a failure to testify’. Secondly, it is not mere sophistry to reason… that an accused’s right to remain silent is not denied or eroded by an inference drawn from his choice to exercise that right in circumstances where an innocent person would not have chosen to do so. It is suggested thirdly that, even if the rule permitting an adverse inference impinged upon the right of the accused to remain silent, it is in any event probably a justifiable limitation.58

The Constitutional Court has not expressly ruled on whether drawing an adverse inference from silence at trial would pass constitutional muster. However, in Thebus, the Court wrote that ‘if there is evidence that requires a response and if no response is forthcoming… the Court may be justified in concluding that the evidence is sufficient, in the absence of an explanation, to prove the guilt of the accused’.59 This is not the same as treating silence as an item of evidence. However, more recently the Supreme Court of Appeal handed down judgments that clearly imply that the Court is prepared to expand the ambit of negative consequences to include using silence as independent proof of guilt.60

At common law, when an alibi defence was raised for the first time at trial, the court in determining whether a late alibi was possibly true could take into account that there had been no opportunity for the state to investigate it properly.61 The constitutionality of the common law approach to late alibis was considered by the Constitutional Court in S v Thebus.62 Seven of the ten judges who heard the case held that it was constitutionally impermissible to draw an adverse inference as to guilt from the accused’s pre-trial silence. However, four of this seven-strong majority indicated that if the constitutionally mandated warning was rephrased so as to apprise arrested persons of the consequences of remaining silent, an adverse inference from pre-trial silence might be constitutionally acceptable. Three other judges held that although an adverse inference as to guilt was not justifiable, an adverse inference as to credibility was a justifiable limitation on the right to remain silent and that it was permissible to cross-examine the accused on his failure to disclose an alibi timeously. Four justices expressly rejected this conclusion. All eight of the judges dealing with the question of adverse inferences appeared to agree that there may well be acceptable negative consequences that attach to remaining silent. It would seem, therefore, that the common law position remains largely intact and that it is constitutionally permissible to take the late disclosure of an alibi into account in determining what weight should be attached to an alibi defence.