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[2023] ZAECQBHC 62
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Wolf v S - Ruling (16/2022) [2023] ZAECQBHC 62 (20 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
OF INTEREST
Case no: 16/2022
In
the matter between:
DONOVAN
WOLF
APPLICANT
and
THE
STATE
RESPONDENT
RULING
Govindjee J
Background
[1]
A
police docket ordinarily consists of three sections. Section ‘A’
contains statements of witnesses, expert reports
and documentary
evidence. Section ‘B’ contains internal reports and
memoranda, and section ‘C’ the investigation
diary.
Following
Shabalala
and Others v Attorney-General of Transvaal & Another
,
[1]
(‘
Shabalala
’)
it is trite that a ‘blanket’ docket privilege in criminal
cases conflicts with the constitutional right to
a fair trial. The
resultant position, also elucidated in
National
Director of Public Prosecutions v King
[2]
(‘
King
’),
is nuanced: litigation privilege no longer applies to documents in
the police docket that are incriminating, exculpatory
or prima facie
likely to be helpful to the defence, barring rare cases where the
State is able to justify the refusal of such access
on the grounds
that it is not justified for the purposes of a fair trial.
[3]
The effect is that an accused person is generally entitled to such of
the contents of the police docket as are prima facie ‘relevant’
for the exercise or protection of that right.
[4]
The entitlement is not restricted to statements of witnesses or
exhibits, but extends to all documents that might be ‘important
for an accused to properly “adduce and challenge evidence”,
in ensuring a fair trial.’
[5]
[2]
The applicant has pleaded not guilty to a
charge of murder. Relying on the SCA’s decision in
King
,
he claims entitlement to access to sections ‘B’ and ‘C’
of the police docket on the basis that it is ‘likely
to be
helpful to the defence’, important for purposes of ‘adducing
and challenging’ evidence to ensure a fair
trial and ‘relevant’
for the exercise or protection of that right.
[3]
There
are three broad grounds advanced for access. The first relates to
alleged pressure brought to bear on state witnesses to change
or
adapt their versions of events in deposing to supplementary
affidavits pertaining to the alleged planting of a knife(s) at the
scene. The second is based on the relationships between the first
state witness called to testify and both the initial prosecutor,
as
well as with the wife of the current investigating officer, who was
close to the deceased. The third is an intended future application
in
terms of
s 317(1)
of the
Criminal Procedure Act, 1977
[6]
for special entries.
[4]
The
respondent’s opposition to the application is supported by
answering affidavits filed by the Deputy Director of Public
Prosecutions (‘the DDPP’) and by the Head Control
Prosecutor at the Humansdorp Magistrate’s Court, Ms Mentz,
to
which the applicant replied.
[7]
Facts
[5]
The applicant’s defence is that the
deceased attacked him with a knife and that he shot him in
self-defence. He was initially
also charged with defeating or
obstructing the course of justice in that he, together with another
individual or other individuals,
acting in concert and in the
execution of a common purpose, placed a knife in the hand of the
deceased and / or placed a second
knife in close proximity of the
deceased (‘Count 2’). This to create the impression that
the deceased was armed at
the time of the shooting and to support the
claim of self-defence.
[6]
The State responded to a request for better
further particulars to that charge, which has since been withdrawn.
Four state witnesses
had deposed to various witness statements prior
to the commencement of the trial on 3 October 2023. All four have
since deposed
to supplementary witness statements. The crux of the
first basis for the application is that all four witnesses have, in
their
supplementary affidavits, changed or adapted their versions to
align with the allegation of a knife having been ‘planted’
either at the scene and / or in the right hand of the deceased. To
take one example, one Breytenbach initially deposed to an affidavit
stating, ‘My eye caught a glare and a knife was found about 2
metres from the suspect’. Breytenbach’s supplementary
affidavit now states, inter alia:
‘
The
Okapi knife I do not know anything about. The tactical knife is mine.
I also planted that knife on the scene…’
[7]
The further submission is that these
witnesses must have been ‘prevailed upon’, that is,
pressurised to do so, following
the application to compel the state
to provide better particulars to the second charge. This on the basis
that the initial reply
to the request for further particulars
demonstrated a lack of evidence to support the Count 2 allegations at
that point in time.
The applicant argues that the inescapable
inference to be drawn is that the State witnesses were belatedly and
improperly induced
to depose to supplementary witness statements in
the terms in which they did. The applicant seeks to pursue this
dimension in preparing
and conducting his defence, necessitating the
present application.
[8]
Ms Lucretia Stuurman has been the only
witness to testify to date in the trial. Her evidence was that she
had previously worked
as a clerk of the criminal court at the
Humansdorp Magistrate’s Court, and was on friendly terms with
Ms Vicki Rossouw, a
prosecutor at that court. It was Ms Rossouw that
appeared on behalf of the State at the applicant’s first
appearance in the
magistrate’s court after his arrest. In
addition, Ms Stuurman testified that she had a close relationship
with an ‘aunt
Selma’, who was the wife of Captain Scott,
the investigating officer who had taken over from Warrant Officer
Rispel in investigating
the case. Ms Stuurman’s evidence
further described a close relationship between Aunt Selma and the
deceased.
[9]
The applicant relies on the evidence of Ms
Stuurman to question the objectivity and impartiality of Captain
Scott as investigating
officer, averring that this has compromised
the State’s case. The applicant adds that the deceased was, to
his knowledge,
good friends with Captain Scott’s grandson and
that the resulting conflict of interest may have influenced his
decisions
and conduct in investigating the case, to the applicant’s
detriment.
[10]
The same averments are made in respect of
Ms Rossouw’s prosecution and investigation of the case. The
applicant relies on
Ms Rossouw’s conduct during the hearing of
a bail application, including reference to alleged racial motivation
for the incident,
to suggest that she did not remain objective and
became personally involved in the investigation of the case. It may
be added that
the conduct of the Office of the Director of Public
Prosecutions (‘the DPP’) in aspects of the proceedings
leading
up to a bail appeal has been subjected to trenchant judicial
criticism placed before this court. Van Zyl DJP, in granting bail on
appeal, raised concern about the issue of a
s 60(11A)
certificate, as
well as the district prosecutor’s reliance on the issue of race
in arguing the bail proceedings before a
magistrate, seemingly absent
any underpinning evidence. The use of the statement of the deceased’s
sister in opposing bail
was criticised as lacking relevance and
prejudicial to the applicant so that it should not have been used.
The prosecutor was specifically
criticised for seeking to advance the
State’s case beyond what could be proved with the aid of the
available evidence.
[11]
Linked to the above, the applicant hopes to
glean the following information from access to sections ‘B’
and / or ‘C’
of the docket:
i)
When Captain Scott became the investigating
officer in the case;
ii)
Why and under whose direction Warrant
Officer Rispel was removed from the case as the investigating
officer;
iii)
Captain Scott’s exact roll played in
the investigation of the case;
iv)
When the relevant State witnesses were
interviewed by the police, whether they were asked about the alleged
‘planting’
of a knife or knives at the scene and their
initial responses to this;
v)
Ms Rossouw’s role in the
investigation of the case;
vi)
The instructions given by Ms Rossouw and /
or Mr Stander and / or the DDPP to the police in connection with the
investigation of
the allegation that a knife was ‘planted’
at the scene; and
vii)
Whether there were any irregularities in
the manner in which the case was investigated given the alleged
irregular involvement of
Ms Rossouw and Captain Scott.
[12]
As for the State’s opposition, Ms
Mentz’s answering affidavit explains that all of the Humansdorp
prosecutors would
have been in a similar position as Ms Rossouw, as
Ms Stuurman was known to all of them. It further indicates, with
reference to
the National Prosecuting Authority Policy Manual, that
Ms Rossouw’s consultation with the paramedics, as prospective
witnesses,
was not unusual as part of the prosecutorial
decision-making process.
[13]
The DDPP’s answering affidavit
highlighted selected aspects of Ms Stuurman’s testimony during
cross-examination, notably
that she had not discussed the case with
Ms Rossouw prior to its enrolment and her lack of knowledge as to the
reason for Warrant
Officer Rispel’s replacement. It emphasised
that the supplementary affidavits obtained had resulted in the
withdrawal of
Count 2, and authority from this Division pertaining to
the realities of the interaction between prosecutors and members of
the
community who supply evidence. The State averred that Ms Rossouw
had played no further part in dealing with the matter once the
case
docket was submitted to the DDPP’s office on 13 April 2021.
There was nothing untoward in her consultation with the
relatives of
the deceased in a murder matter, or in her consultation with the
paramedics, which was in line with her mandate at
the time.
[14]
The DDPP’s affidavit also explains
the contents of section ‘B’ of the case docket. It
contains:
i)
The SAPS 328 form completed upon the
initial release of the applicant on 11 February 2021;
ii)
The application for J50 warrant of arrest
for the applicant dated 26 February 2021;
iii)
Internal police status reports;
iv)
Internal police memorandums;
v)
Clips of newspaper articles;
vi)
Correspondence, covering sheets and ‘nodal
print records’ between various stakeholders in the SAPS;
vii)
Copies of digital images included in
section ‘A’ of the case docket, to which the applicant
has access;
viii)
Correspondence between the office of the
DDPP and the investigating officer.
[15]
The State argues that this
documentation is neither exculpatory nor inculpatory and, prima
facie, does not favour the applicant
so that access is unjustified,
also being irrelevant to the applicant’s guilt or defence and
unnecessary for purposes of
preparation of a defence. The
last-mentioned correspondence between the DDPP and the investigating
officer is specifically, and
vigorously, resisted on the basis of
litigation privilege, it being averred that correspondence with
evidential value has already
been made available as part of section
‘A’ of the docket.
[16]
Little
is said about the specificities of section ‘C’ of the
docket, other than that it contains a record of events
with reference
to documents filed in the case docket. It is apparent from
Panayiotou
v The State
(‘
Panayiotou
’)
that it may serve as a reference in court should any aspect of an
investigation process be questioned.
[8]
The application is opposed, in general, on the basis that it is
premature and constitutes a fishing expedition,
[9]
and that the information contained in those sections of the case
docket are typically not of the kind that requires their production
in court. As for the first and second grounds for the application,
the State highlights that the witnesses and investigating officers
will be subjected to cross-examination, or made available to the
defence, and that the applicant’s version of events would
be
put to them in due course.
[17]
An additional matter also emerged from the
DDPP’s answering affidavit, somewhat out of the blue:
‘
On
Friday 13 October 2023 it was brought to my attention that a police
official enquired why he received no subpoena to testify
in this
matter. When informed that there is no affidavit contained in the
case docket and no reference is made of him the witness
furnished the
investigating officer, Warrant Officer Scott, with an affidavit, a
photo album together with a CD containing certain
images. This
information will be disclosed soonest.’
[18]
The applicant’s reply takes the issue
further. The police official referenced is one Warrant Officer
Opperman (‘Opperman’).
His affidavit is dated 11 October
2023. Some 39 images were only provided to the defence on 17 October
2023. The contents of Opperman’s
affidavit and the images
together constitute, in the words of the defence ‘potentially
critical inculpatory evidence which
the Defence should have been made
aware of prior to the commencement of the trial’. Without
traversing the details, considering
the contents of Opperman’s
affidavit, as well as the summary of substantial facts and reply to
the request for further particulars,
that assessment is seemingly
appropriate. That being the case, it begs the question as to the
circumstances that resulted in the
belated awareness of a potentially
important State witness. This in circumstances where the erstwhile
investigating officer, Warrant
Officer Rispel, engaged with Opperman
on the scene, ostensibly while the images now disclosed were captured
by a Constable in attendance.
The applicant argues that this is a
further basis for the application to be granted, as sections ‘B’
and / or ‘C’
of the police docket may shed light on what
is, at best, an oversight and, at worst, evidence intentionally
concealed by the respondent.
The law
[19]
The
application concerns access to parts of the docket as an element of
the constitutional right to a fair trial.
[10]
This issue cannot be addressed in abstract, and must be determined
having regard to the particular circumstances of each case.
In other
words, what a fair trial might require in a particular case depends
on the circumstances, as Mahomed DP held in
Shabalala
:
[11]
‘
The
accused may, however, be entitled to have access to the relevant
parts of the police docket even in cases where the particularity
furnished might be sufficient to enable the accused to understand the
charge against him or her but, in the special circumstances
of a
particular case, it might not enable the defence to prepare its own
case sufficiently, or to properly exercise its right “to
adduce
and challenge the evidence”; or to identify witnesses able to
contradict the assertions made by the State witnesses;
or to obtain
evidence which might sufficiently impact upon the credibility and
motives of the State witnesses during cross-examination;
… or
to focus properly on significant matters omitted by the State
witnesses in their depositions; or to properly deal with
the
significance of matters deposed to by such witnesses in one statement
and not in another or deposed to in a statement and not
repeated in
evidence … The fair trial requirement is fundamental. The
court in each case would have to exercise a proper
discretion
balancing the accused’s need for a fair trial against the
legitimate interests of the State in enhancing and protecting
the
ends of justice.’
[20]
In
attempting to strike the appropriate balance, various rights and
principles require reiteration. As indicated, the starting point
is
that every accused person has a right to a fair trial, including the
right to ‘make full answer and defence’
[12]
and to adduce and challenge evidence.
[13]
The issue at hand is a ‘fair-trial question’ and the
right is not unqualified. When interpreting the Bill of Rights,
a
court must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom, must
consider
international law and may consider foreign law.
[14]
The following considerations, drawn from the Canadian Supreme Court
decision in
Stinchcombe
,
[15]
were summarised by Ponnan JA in
Du
Toit v The Magistrate and Others
:
[16]
‘
(a)
Justice is better served by the
elimination of surprise …
(b)
The fruits of the investigation in possession of the [prosecution]
are not the property
of the [prosecution] but of the public to ensure
that justice is done.
(c)
The defence has no obligation to assist the prosecution and is
entitled to be adversarial.
(d)
The search for the truth is advanced by disclosure of all relevant
material.
(e)
The prosecution must retain a degree of discretion in respect of
these matters.
(f)
The exercise of the [prosecution’s] discretion should be
subject to review
by the Court.
…
(h)
There is a general principle that disclosure is not to be withheld if
there is a reasonable
possibility that failure to disclose may impede
or may impair the accused’s right to make full answer and
defence which is
a principle of fundamental justice protected under
[the Constitution].
(i)
Anything less than full disclosure by the [prosecution] falls short
of decency and
fair play.
(j)
It is neither possible nor appropriate to lay down precise rules here
and disclosure
should be worked out in the context of concrete
situations.’
[21]
Following
Shabalala
,
[17]
‘… in each instance, it [is] for the court to exercise a
proper discretion by balancing the degree of risk involved
in
attracting the consequences sought to be avoided by the prosecution
(if access is permitted) against the degree of the risk
that a fair
trial might not ensue (if such access is denied). What is essentially
required is a judicial assessment of the balance
of risk …’
[22]
That
judgment noted that, generally, ‘the search for truth is
advanced rather than retarded by disclosure of all relevant
material’.
[18]
Nonetheless, discovery in criminal cases remains something of a
matter of compromise, and courts are expected to remain alive to
a
range of dynamics. This is apparent from the following oft-cited
dicta of Harms DP in
King
:
[19]
‘
Fairness
is not a one-way street conferring an unlimited right on an accused
to demand the most favourable possible treatment, but
also requires
fairness to the public as represented by the State. This does not
mean that the accused’s right should be subordinated
to the
public’s interest in the protection and suppression of crime;
however, the purpose of the fair trial provision is
not to make it
impracticable to conduct a prosecution. The fair trial right does not
mean a predilection for technical niceties
and ingenious legal
stratagems, or to encourage preliminary litigation … To the
contrary: courts should within the confines
of fairness actively
discourage preliminary litigation. Courts should further be aware
that persons facing serious charges –
and especially minimum
sentences – have little inclination to co-operate in a process
that may lead to their conviction and
“any new procedure can
offer opportunities capable of exploitation to obstruct and delay”.
One can add the tendency
of such accused, instead of confronting the
charge, of attacking the prosecution.’
[23]
It
may be noted that while
King
was in fact not about the disclosure of documents at all, the
principles emerging from the decision remain relevant to an
application
for access to sections ‘B’ and ‘C’
of the docket.
[20]
In that
matter, Harms DP explained that the defence was not entitled to
‘every bit of information in the hands of the prosecution’
as of right, a point made by Mr
Stander
,
for the State, in these proceedings.
[24]
What
remains a challenge is to resolve situations, such as the present,
where access to documents is based on their perceived helpfulness,
or
relevance, to the defence. A useful exposition of the applicable
principles is contained in the judgment of Goosen J in this
Division
in
Panayiotou
.
[21]
That case also considered the implications of both
Shabalala
and
King
for access to the ‘B’ and ‘C’ sections of the
case docket. The learned judge applied what may be reformulated
as
the following test, which I intend to apply in determining the
matter:
[22]
i)
Has the applicant established prima facie
facts which point to the contents of sections ‘B’ and ‘C’
of the
case docket as being relevant in the sense required by the
King
matter?
a.
If not, access to the documents should be
refused.
ii)
If so, is there a justified ground for
non-disclosure raised by the State?
a.
If not, access to the documents should be
ordered.
[25]
With
reference to the first leg, it is apparent that the notion of
litigation privilege in criminal cases, notwithstanding its
limitation by
Shabalala
,
still extends to irrelevant documents or information.
[23]
It is so that the initial decision as to what parts of sections ‘B’
and ‘C’ of the docket are to be made
available to an
accused person is that of the prosecution. But the applicant need not
be satisfied with the say-so of the prosecution
and, if the initial
decision of the prosecution is shown to be prima facie wrong during
the trial, a court may order more.
[24]
Prima facie facts and their relevance must be assessed in relation
both to the charge itself and to the reasonably possible defences.
A
document may be relevant to the prosecution without being relevant to
the accused’s guilt or defence ‘for the purpose
of making
full answer and defence’.
[25]
[26]
As
to the second leg,
Shabalala
provides
pointed guidance when the State alludes to risks in disclosure of
documentation: what the prosecution is obliged to do
(by a proper
disclosure of as much of the evidence and material as it is able) is
to establish that it has reasonable grounds for
its belief that the
disclosure of the information sought carries with it a reasonable
risk that it might lead to, inter alia, the
impediment of the proper
ends of justice. This is an objective test and it is insufficient to
demonstrate that the belief is held
bona fide. It must be shown that
a reasonable person in the position of the prosecution would be
entitled to hold such a belief,
based on what emerges from the
papers. It follows that if the State is unable to justify its
opposition to the disclosure of the
relevant information on these
grounds, a claim that there is a justifiable reason to refuse access
to the relevant documents should
fail.
[26]
Analysis
[27]
The circumstances of this case are unusual.
Firstly, and with reference to the issue of a knife / knives at the
scene, possible
material changes or additions in the versions of
State witnesses are reflected in the papers. This bearing in mind
that the summary
of substantial facts makes reference to the planting
of knives, and where the applicant’s defence, from as early as
2 March
2021, has been one of self-defence.
[28]
Secondly, the first State witness to
testify had previously worked as a clerk of the criminal court at the
Humansdorp Magistrate’s
Court. The circumstances are such that
she had developed friendly relations with both a prosecutor at that
court, who was involved
with the case docket prior to 13 April 2021,
as well as with the wife of the investigating officer, who took over
from another
investigating officer. I hasten to add that there may
well be nothing untoward in any of this. The point, for present
purposes,
is to highlight the distinguishing features of the matter.
[29]
To that must be added, thirdly, the events
that resulted in the need for a senior judge of this Division to
express himself, in
a bail appeal judgment, as to the conduct of the
DPP’s office in issuing a section 60(11A) certificate absent
evidence of
a planned or premeditated murder, and in an application
to place further evidence before a Magistrate on that issue, in
circumstances
where the available evidence took the matter no
further. The conduct of the prosecutor in the district court, Ms
Rossouw, was subjected
to condemnation ‘in the strongest
terms’, notably because she had placed into evidence a
statement by the deceased’s
sister that lacked any evidential
value, and added an unnecessary racial dimension to proceedings.
[30]
Fourthly, there is the spectre of Opperman,
who a week ago belatedly alerted the DDPP as to his importance as a
State witness, and
introduced a photo album together with a CD
containing images. As already indicated, his evidence is prima facie
of relevance,
and the delayed airing of its contents questionable.
[31]
Cumulatively, these factors raise questions
that gnaw at both the investigative and prosecutorial dimensions of
the State’s
handling of the case thus far, as argued by Mr
Daubermann
.
The applicant has specifically identified various resulting aspects
that are of concern to the preparation of his defence to the
remaining charge of murder. These matters must impact on my finding
in respect of the first leg of the test to be applied in respect
of
both sections ‘B’ and ‘C’ of the docket.
[32]
It is convenient to consider section ‘C’
access first. In
Panayiotou
,
the court granted access to that section of the docket (the so-called
investigation diary) on the basis that the applicant had
signalled an
intention to bring into question aspects of the police investigation.
As Goosen J noted in that case, the merits of
such a challenge are a
separate matter. Following that reasoning, and the principles in
Shabalala
,
I am of the view that the applicant has advanced at least a prima
facie entitlement to access to section ‘C’ along
similar
lines. Absent any justified grounds for non-disclosure raised by the
State, disclosure must be ordered.
[33]
For similar reasons, the contents of
section ‘B’ of the docket, barring clips of newspaper
articles and copies of digital
images already provided to the
applicant, are prima facie likely to be helpful to the defence. Here,
the significant difference
between the facts supporting the
application in
Panayiotou
and those involved in the present matter explains the divergent
outcome. Specifically included in this determination is
correspondence
between the office of the DDPP and the investigating
officers, which in present circumstances is prima facie relevant to
the applicant’s
ability to adduce and challenge evidence,
including by way of properly prepared and tailored cross-examination,
as part of his
right to a fair trial. That being the case, and
bearing in mind that the trial has already commenced, the application
cannot be
criticised as premature. On my assessment, there is a
sufficient prima facie factual underpinning to gainsay the claim of
an unwarranted
foray for information. Precisely what assistance the
applicant might obtain through docket access need not be
demonstrated: in
the special circumstances of this case, it has been
established that it is prima facie likely to be helpful.
[34]
The State has again failed to demonstrate
reasonable grounds for believing that disclosure of section ‘B’
information
carries risks that may realistically impede the proper
ends of justice. To the extent that
Shabalala
may be interpreted to hold that the
enquiry boils down to a judicial assessment of the balance of risk,
the outcome is readily apparent
on the papers in respect of both
sections ‘B’ and ‘C’. While I accept the
State’s bona fides in opposing
the application, there is no
objective basis made out on the papers to justify opposition to
disclosure in these circumstances.
[35]
There
is accordingly no need to canvas the third basis for the application.
The overall outcome finds additional support in various
quarters.
Drawing again from the constitutional dispensation and the decision
in
Shabalala
,
the SCA in
Crossberg
has confirmed that there is an ‘overwhelming balance in favour
of an accused person’s right to disclosure in those
circumstances where there [was] no reasonable risk that such
disclosure might lead to the disclosure of the identity of informers
or State secrets or to intimidation or obstruction of the proper ends
of justice’.
[27]
Absent
any demonstratable risks of this sort, there is little to balance the
applicant’s claim for docket access.
[36]
A
similar point is made in
Du
Toit: Commentary on the
Criminal Procedure Act
:
[28]
‘
It
would be artificial to consider each of these privileges separately,
dismissing one, here, and engaging another, there, when
the situation
calls for a simple weighing up of their cumulative force against the
constant counterweight represented by the value
of ventilating all
relevant evidence in the service of accurate fact-finding together
with all its attendant benefits in the hands
of an accused person
seeking to make a proper defence.’
[37]
Finally,
it has been said that issues that are apparently extraneous may
ultimately be crucial to determine the guilt or innocence
of an
accused.
[29]
Granting
such access also contributes to a sense of equality at arms between
the State and the accused, particularly considering
the history of
the matter in the light of the constitutional promise of a fair
trial.
Order
[38]
The following order is issued:
1.
The respondent is ordered to provide the
applicant with a copy of sections ‘B’ and ‘C’
of the investigation
docket, excluding clips of newspaper articles
and copies of digital images to which the applicant already has
access, within 10
days of the date of this order.
2.
In the event that any documentation is only
available in hard copy, the respondent is to provide copies to the
applicant against
tender of payment of the reasonable photocopying
charges in respect thereto.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard
:
18 October 2023
Delivered
:
20 October 2023
Appearances:
For
the Applicant:
Mr
P Daubermann
Gqeberha
Instructed
by:
Griebenow
Attorneys
Applicant’s
Attorneys
157
Cape Road
Millpark
Gqeberha
Email:
griebenow@yebo.co.za
For
the Respondent:
Adv
M Stander
Gqeberha
Deputy
Director of Public Prosecutions Unit
Email:
mstander@npa.gov.za
[1]
Shabalala
& Others v Attorney-General of Transvaal & Another
[1995] ZACC 12
;
1996
(1) SA 725
(CC) (‘
Shabalala
’).
[2]
National
Director of Public Prosecutions v King
2010
(2) SACR 146
(SCA) (‘
King
’).
[3]
Shabalala
above
n 1 para 72, A3.
[4]
Shabalala
above
n 1 para 72, A4. Again, the prosecution may, in a particular case,
be able to justify the denial of such access on the grounds
that it
is not justified for the purposes of a fair trial, depending on the
circumstances.
[5]
Shabalala
above
n 1 para 57;
King
above
n 2 at para 1.
[6]
Act
51 of 1977.
[7]
The State initially opposed this court hearing the application but
abandoned that position prior to argument.
See
the judgment of Davis AJ in
S
v Murphy
[2022] ZAWCHC 278
paras 14-16. Also see, in general,
Van
der Merwe v National Director of Public Prosecutions and Others
2011 (1) SACR 94
(SCA) paras 31, 32. Cf
S
v Rowand and Another
2009 (2) SACR 450
(W) paras 12 and following.
[8]
Panayiotou
v The State and Others
2017
(1) SACR 354
(ECP) (‘
Panayiotou
’)
para 33.
[9]
This
is not the first occasion that an application of this nature has
been met with this pejorative analogy: see
R
v McNeil
(2009 SCC 3)
para 28.
[10]
Shabalala
above
n 1
paras
29, 36.
[11]
Shabalala
above
n 1 paras 37, 52.
[12]
See
Du
Toit v The Magistrate and Others
2016 (2) SACR 112
(SCA) para 9.
[13]
S
35(3)(
i)
of the Constitution of the Republic of South Africa, 1996 (‘the
Constitution’).
[14]
S
39 (1) of the Constitution.
[15]
R
v Stinchcombe
(1992)
68 CCC (3d) 1 ([1991]
3 SCR 326
;
[1992] SCC 1
; [1992] LRC (Crim) 68;
18 CRR (2d) 210; 8 CR (4 th) 277).
[16]
Du
Toit v The Magistrate and Others
2016
(2) SACR 112
(SCA) para 8.
[17]
Shabalala
above
n 1 para 55
(g)
.
The concept of a court ‘discretion’ in such matters has
been criticised on the basis that it is rather an application
of a
legal rule: see S Terblanche (ed)
Du
Toit: Commentary on the Criminal Procedure Act
(RS57) (2016) ch23-p42R-6.
[18]
Shabalala
above
n 1 para 46. On the relationship between the prosecution’s
duty to disclose and the enhancement of a legal culture
of
accountability and transparency, see M Watney ‘The
prosecution’s duty to disclose: More reason to litigate?’
(2012)
TSAR
320
at 330.
[19]
King
above
n 2 para 5; Watney above n 18 at 330.
[20]
King
above
n 2 paras 3, 54. See
Panayiotou
above
n 8 para 24.
[21]
Panayiotou
above
n 8 paras 18 – 35.
[22]
Panayiotou
above
n 8 paras 32, 34. As to the onus of proof in constitutional matters
in general, see Terblanche above n 17 ch23-p42R-6.
[23]
King
above
n 2 para 2.
[24]
King
above
n 2 para 32. Cf
S
v Rowand and Another
2009 (2) SACR 450
(W) para 17, holding that the State cannot decide
what is relevant and what not, as far as the defence case is
concerned. For
academic analysis in support of this decision, see N
Whitear-Nel ‘The right of an accused to access to evidence in
the
possession of the state before trial: A discussion of
S
v Rowand
2009 (2) SACR 450
(W)’ (2010)
SACJ
263 at 264, 267.
[25]
King
above
n 2 para 30.
[26]
Shabalala
above
n 1 para 55
(d)
and
(e)
.
Also see
S
v Rowand and Another
above n 24 para 14.
[27]
See
S
v Crossberg
[2008] ZASCA 13
;
2008 (2) SACR 317
(SCA) para 74. The case also provides an
illustration of the dangers of conviction in circumstances there are
investigatory irregularities.
[28]
Terblanche
above n 17 ch23-p42R-5.
[29]
Shabalala
above
n 1 paras 57, 48. See RP Mosteller ‘Exculpatory evidence,
ethics and the road to disbarment of Mike Nifong: The critical
importance of full open-file discovery’ (Winter
2008) 15
George
Mason Law Review
257
at 318 as cited in Whittear-Nel above n 24 at 268.