3.

1 PRIVATE PRIVILEGE

Privilege:
• Privilege is a rule of evidence that allows a witness or holder of privilege to refuse to disclose
certain info or provide evidence about a particular subject to the court
• Where a witness is NOT obliged to answer a question or provide relevant information to the
court
• Court may be deprived of relevant information
o Hence, we only recognise a limited number of privileges
o In SA law we have two categories
1. Private Privilege – Protects interests of individuals
2. State Privilege – Protects interests of the State

Private privilege

• Must be able to distinguish between privilege, competence & compellability

• Competence
o A witness is incompetent if she does not have capacity to testify
o Competence has to do with capacity of Witness to testify
o May be due to mental illness or because underage

• Compellability
o A compellable witness can be compelled to testify
o A non-compellable witness has the right to refuse to testify at all – but can choose to
testify nonetheless
§ This mean that the W can refuse to enter the witness box
§ Might nonetheless choose to testify but they still have the RIGHT to refuse to
testify

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Michaela Bezer Study Notes
• Privilege:
o A witness is not obliged to answer a question or provide relevant information to the court
with regards to a specific issue protected by privilege
o But must still enter the witness box (distinguish from compellability NB)
o \ privilege only arises once a witness is actually testifying
o Done by claiming privilege
o A witness can waive their right to claim privilege
o But in order to validly waive the right, the witness must be aware of this right

Privilege against self-incrimination:

• Fundamental right in our law particularly interest of the accused person
o But Witness’s are also protected against self-incrimination
o Prohibits a person being compelled to give evidence that incriminates him
• Rule: protected by the Constitution (s 35(3)(j)) & Legislation s14 of the CPEA and ss 203, 217
and 219A of the CPA
• This privilege against self-incrimination is reinforced by Right to remain silent – gives effect to
privilege against self-incrimination & Right to legal representation
• Rights stipulated in s35 aimed at protecting the privilege against self-incrimination

• Rationale for protecting the privilege against self-incrimination & right to remain silent
o Based on the presumption of innocence
§ Based on this notion
§ This places the burden on the prosecution to prove guilt beyond reasonable
doubt
§ \ it is not the duty on the accused to help the state in any way to formulate its
case
§ If the state is accusing a person of a crime, then it is on the state to prove as
much (state’s duty to prove accused’s guilt beyond reasonable doubt)
o Right to dignity
§ As a society, we prefer that persons are not compelled to give evidence that may
result in their own punishment
§ This is because we believe that it is against a person’s right to dignity and privacy
to compel someone to give evidence that would incriminate them
§ High crime in SA, does this change this? à question for an opinion NB
o Guard against bad police practices
§ If accused persons and witnesses were not protected against privilege of self-
incrimination, policy could abuse people’s rights in attempt to obtain evidence
§ Necessary to deter improper investigation which may negatively impact on the
reliability of evidence
§ \ enhances the truth-seeking function of the court
o Encourage Witness to testify
§ May be more reluctant if forced to give incriminating evidence

• Privilege against self-incrimination protects the presumption of innocence

o Right to remain silent, legal representation, right to Constitutional warnings etc are used
as mechanisms to protect privilege against self-incrimination
o All of these rights protect the privilege
o What are the protections afforded to the accused BEFORE the trial starts?
§ What are the protections that are available to the accused pre-trial
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Michaela Bezer Study Notes
THE ACCUSED

Pre-trial proceedings

• Common law rule –

o Recognises that a person not be compelled to give evidence that would incriminate
them
o Unfortunately, in the past, courts tended to dismiss the CL rule and often found that
failure to inform accused of the right to remain silent and the right to legal
representation did not render the incriminating statements inadmissible
o Changed with the advent of the constitution
• S35(5) of the Constitution –
o Provides that evidence which is obtained in a manner that violates any right in the
BoR must be excluded if it would render the trial unfair or otherwise be detrimental to
the administration of justice
o Approach in SA mirrors that of the US “Miranda v Arizona” case –
§ Miranda rights are also followed in SA, in our law which requires that
accused person must be warned of their right to remain silent and the
consequences of not remaining silent as well as their right to consult a legal
practitioner.
§ All of this is aimed at protection the person’s privilege against self-
incrimination.
• S35(5) makes a distinction between arrested persons, detained persons and accused
persons
o E.g. S35 mentions that a detained person may consult with a legal practitioner of
their choice, but doesn’t say that detained person must be informed of the right to
remain silent
o E.g. Arrested person must ito S35 be informed of their right to remain silent &
consequences of remaining silent, but not that an arrested person must be advised of
their right to confer with a legal practitioner
o We place little emphasis on these discrepancies because policy and logic indicates
that all of these rights apply to all of these people (S35 must be read to include all
these rights apply to all these people)
o Confirmed in S73 of the CPA: gives the right to consult a legal representative and the
right to advised of this right to both detained and accused persons (accused persons
and detained persons who might not necessarily have gotten to the trial stage)

• Distinction made between arrested, detained and accused persons in s35 unfortunately
creates uncertainty ito application of the privilege against self-incrimination
o As privilege against self-incrimination is only specified with relation to the accused
persons, during the trial (only specified in relation to a fair trial = trial stage)
o But it is NB that this privilege is also applied before the trial commences
o BUT à This distinction carries little significance because there is sufficient authority
that the right to a fair trial does not begin only when the criminal process has started

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Michaela Bezer Study Notes
 o S v Melani:
§ Froneman J says that the right to legal representation and right to remain
silent is to protect this PASI
§ This protection (PASI) exists from the inception of the criminal process
which is on arrest
§ This has everything to do with the need to ensure that the accused is treated
fairly throughout the entire criminal process in the gatehouses of the criminal
justice system as well as the mansions of the criminal justice system à
saying that the criminal justice system should protect people from the
interrogation stage right up until the trial court

Constitutional warnings and suspects

• Question whether rights extended to suspects?
o S v Sebejan –
§ Judge described a suspect as someone with whom there is some type of
apprehension that may be implicated in an offence under investigation, or
someone whose version of events is mistrusted or disbelieved
§ It was held that the right to a fair trial operates at the investigative stage of
the criminal justice process therefore suspects entitled to the same warnings
§ Therefore extended PASI to suspects
§ This is a HC judgement
§ \ this remains an open question as CC has not made yet a finding on this
§ But there are later cases, also HC, who have followed this
§ But other cases have also said that the rights only apply to the accused
• Also other courts that took very literal interpretation of s35 of the Constitution and found that the
constitutional warnings do not apply to suspects
o If asked this type of question need to know about S v Sebejan and know that the court
extended the privilege against self-incrimination to suspects as well as mentioning that it
is a HC decision yet to be confirmed by the CC but some other HC decisions have gone
against what Sebejan held

• If the question to be heard by CC –

o Highly likely that right might be extended to suspects because of nature of our law &
jurisprudence which seeks to protect people.

• There are conflicting views on whether it is necessary to advise a person of their S35 right
throughout the whole pre-trial stage à is there a need to constantly remind a person of their
rights?
o The most pragmatic approach is to ask the crucial question: whether the accused, after
having been informed of his rights on arrest, was in a position to decide voluntarily how
to exercise those rights at each subsequent stage of each pre-trial procedure
o Also been said that a detained persons MUST be informed of their right to remain silent,
and right to PASI and the right to legal representation etc

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Michaela Bezer Study Notes
Ascertainment of bodily features:
• Anything that involves a persons physical body
o Fingerprints, DNA evidence, blood samples
• Does privilege against self-incrimination apply to bodily features provided that the bodily
features could incriminate them?
• E.g. In a drunk driving case, can an accused person be compelled to provide blood samples to
ascertain whether they were driving under the influence? Fingerprints? Undergo an operation
when the details of that bullet could incriminate them? Can police compel a person to give their
fingerprints when their fingerprints could incriminate them?
• Do these aspects affect the privilege against self-incrimination?
o Sometimes it is considered that it should be, because these can be very invasive
o People should not be compelled to give bodily evidence if this would incriminate them
o Many people think the privilege against self-incrimination should extend to bodily
features

• BUT Privilege against self-incrimination ONLY applies to testimonial utterances

o Only applies to oral utterances
o Meaning privilege against self-incrimination does not apply to real evidence and bodily
features (therefore a person can be compelled to give evidence of their bodily features
even if it will incrimate them)
o This is confirmed in R v Matemba
§ Concerned the admissibility of a palm-print taken by compulsion
§ The court found that the PASI only applied to testimonial utterances
§ \ allowed

• Means a person can be compelled to give evidence of their bodily features even if such
evidence can incriminate them
• Sanctioned by CPA in s36A, 36B, 36C and 37
o Which authorise police officers to take fingerprints & other bodily prints from any person
who is suspected of committing a crime, or who has been arrested, charged or
convicted.
o Police officers are also authorised to take steps that are necessary iot ascertain whether
the body of any arrested person has any mark, characteristic, distinguishing feature or
shows any condition or appearance
§ EG: evidence is brought that the accused was stabbed on their arm, then police
officer can ask to see the person's arm to determine whether they have such
feature or to determine if there is a mark there to suggest that they might have
been stabbed.
§ This is allowed, even though that evidence might be incriminating.
• This illustrates that the privilege against self-incrimination does not extend to bodily features

• Case law (not prescribed case law)

o S v Huma (NB)
§ Taking of fingerprints is not a testimonial utterances and therefore not protected
by the privilege against self-incrimination
§ This is in line with our approach in R v Matemba that privilege against self-
incrimination only applies to testimonial utterances
o Confirmed in Levack v Regional Magistrate SCA
§ A voice sample did not infringe on the PASI

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Michaela Bezer Study Notes
 o Orrie
§ Concerned taking a blood sample for DNA
§ Infringed the right to privacy & bodily integrity
§ But it was justifiable
o There are conflicting HC judgements in this regard
§ They involve more drastic measures but they are only HC judgements
§ Gaqa
• Removal of a bullet didn’t infringe PASI
• Infringed dignity & bodily integrity
• but necessary limitation
§ Xaba à disagreed

Bail Proceedings:
• When an accused gives evidence in a bail application then he is still protected by
the privilege against self-incrimination and has privilege to not give information at
this stage which would incriminate him/her
• Accused retains the privilege against self-incrimination
• Means that even if the accused elects to testify, he can decline to answer any
question that would lead to self-incrimination –
o Difficult choice because if the accused chooses not to testify or refuses to
answer certain questions during the bail proceedings he runs the risk of not
receiving bail.
• But runs the risk of bail being refused – this raised some constitutional challenges

• S v Dlamini, S v Dladla, S v Joubert, S v Schietekat

o In these cases the Constitutionality of s 60(11B)(c) of the CPA was in issue, this section
provides that the record of bail proceedings forms a part of the record of the
subsequent trial of the accused.
o Means that whatever accused says/evidence they give during their bail proceedings will
form part of their record which will also form part of the subsequent trial.
o Thus, if accused elects to testify, then that record can be used during trial
proceedings – the court accordingly must inform the accused that anything he says
during his bail proceedings may be used against him at the trial if that evidence becomes
admissible.
o Argument: s60(11B)(c) was based on the fact that this subsection would infringe on the
privilege against self-incrimination
o Two main arguments –
§ [1] Arguing s60(11B)(c) is unconstitutional because it compels the accused to
adduce evidence if he wants to be released on bail, the effect of this provision
would be that accused compelled to give evidence even if that evidence would
lead to his incrimination.
• Brought by council for Schietekat
§ [2] Argued that it is in the interest of a fair trial that the accused should not be
compelled to choose between his right to bail and his privilege against self-
incrimination
• Which is what s60(11B)(c) would require
• Council for Dlamini and Dladla
o CC dismissed both arguments and held that s60(11B)(c) did not compel the accused
to do anything, there is no issue of accused being forced to make either one of the
choices

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Michaela Bezer Study Notes
 o All s60(11B)(c) does according to the CC is that it requires the accused to make a
difficult decision irt whether or not he is going to give info iot get bail or withhold info iot
protect his privilege against self-incrimination.
o CC conclusion –
§ This section did not in fact conflict with the Constitution because in each instance
the evidence contained in the bail record fell to be excluded by the trial court if
the trial court found that admitting the bail record would render the trial unfair –
• This is because ito S35(5) of the Constitution the court has the discretion
to decide whether a particular item of evidence would render the trial
unfair
• In this instance the court has the discretion to decide whether the inclusion of a bail proceeding
would render a trial unfair.
o This was affirmed in the CC case of S v Basson

Trial Proceedings:
• S35 of the Constitution protects the privilege against self-incrimination and that the PASI is
reinforced by the right to legal representation at the trial, the right to be informed of this right,
the right to be presumed innocent and the right to remain silent
• The right to remain silent: presents challenges
o Should the court be allowed to draw a negative inference from an accused’s decision to
not testify at trial?
§ NO, the court is not allowed to draw a negative inference from an accused’s
decision to not testify at trial because the accused has the right to remain silent.
§ Unfortunately the answer is not as clear as this –
• On one hand because of right to remain silent, a person should not be
penalised for exercising this right at a trial and therefor it can be strongly
argued that a court should not draw a negative inference from an
accused’s decision to not testify.
• On other hand, challenge wrt CL rule that if the state makes a prima
facie case and accused hasn’t given explanation for defence against that
pf case then court can make finding against accused on that basis.
o There were cases, S v Mtetwa and S v Snyman, in which it was held that in certain
circumstances an accused’s refusal to testify when the prosecution has established a
prima facie case could be a factor in assessing guilt
§ This is a challenge for accused
§ CC HAS NOT ruled expressly on whether or not a negative inference can be
drawn from silence at trial and whether that consequence passes constitutional
muster.
§ But on numerous occasions the CC has pronounced that trial silence may have
this unfortunate consequence if the accused refuses to provide an explanation
after the court has made a prima facie case.
• Once the prosecution has established a prima facie case, can the court consider the accused’s
silence during the trial in assessing guilt?
o S v Thebus
§ CC held that if there is evidence that requires a response & if no response is
forthcoming, the court may be justified in concluding that the evidence is
sufficient in proving the guilt of the accused – in instances where there is no
preferred explanation.

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Michaela Bezer Study Notes
• Nonetheless, the precise nature of the negative consqs of remaining silent at trial is unclear and
the reason for that is because we are still uncertain whether the silence at trial (i.e. the
accused’s choice not to testify in court) becomes an item of evidence OR does the fact that the
accused chooses to exercise right to remain silent simply become an unavoidable consequence
when the court makes its evaluation of the evidence that the court uses this silence when
assessing issues of guilt.
• Failure of a presiding officer to advise the accused of his right to legal representation (at the
state’s expense) will lead to an infringement of the right to a fair trial and the exclusion of that
evidence

WITNESS IN CRIMINAL PROCEEDINGS:

• S203 CPA: extends the protections of protection against self-incrimination witness
o S203: provides that a witness may refuse to answer a question if it would expose her to
a criminal charge.
o NOTE
§ This protection only extends to criminal charges and does NOT extend to the
refusal to answer the question on the basis of a fear that the evidence obtained
from that could give rise to a civil claim
§ Doesn’t apply to civil claims

• Duty of Presiding officer required to warn witness in a criminal proceeding of right in s203 of
the CPA and a failure to do so would render the incriminating evidence inadmissible in a
prosecution against the witness
o Failure to do so renders the evidence inadmissible in a prosecution against the witness
o Affirmed in S v Lwane - PRESCRIBED
§ Appellant who had been a complainant in an earlier case where he gave
evidence against a fellow thief & a murder who had shot him
§ In the course of his testimony, he confessed to have participated in committing a
murder and subsequently charged with this on the basis of his confession
§ On appeal, it was held that his testimony at the earlier hearing was inadmissible
cos he had been ignorant of his right ito s203 to answer questions that would
incriminate him
§ Because he hadn’t been warned of his right ito S203 that evidence was held to
be inadmissible

• Extent of the right in s203 of the CPA is modified by terms of s204 of the CPA
• S204 of the CPA: this section indemnifies an accomplice who testifies against a co-offender as
a state witness
o aim of s204 is to encourage accomplices to testify for the state.
o Provides that whenever the prosecution informs that the court that a witness will be
required to answer self-incriminating questions wrt an offence that is specified, the court
must inform the competent Witness that she is obliged to give evidence and answer the
incriminating questions
o But it provides that the accomplice will give such evidence on the condition that they will
be indemnified.
o If the Witness answers honestly then she will be discharged from the prosecution.
o If the Witness fails to testify frankly/honestly then the discharge will be refused
o However, the Witness will still enjoy a degree of protection in that the evidence she gives
will be inadmissible at any trial irt the specified offense

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Michaela Bezer Study Notes
WITNESS IN CIVIL PROCEEDING
• S14 and 42 CPEA:
o Allow a witness to claim privilege irt questions that would expose them to criminal liability
or expose them to penalty or forfeiture.
o This is a broader/wider scope of protection (than s203 of CPA) in that it does not only
extend to the possibility of a criminal charge or questions that would lead to a criminal
charge but also extends to exposure to penalty/forfeiture
• There are also numerous other statutory provisions/enactments that provide for the
interrogation of people outside of the criminal process
o e.g. s65 of Insolvency Act, S415 of the Companies Act
• These sections authorise designated officials to compel people to appear before them to
answer questions and those questions may be incriminating.
o Is a person questions under these provisions protected by s35 of the Constitution even
though the Constitution doesn’t expressly provide for such persons?
• Other investigative inquiries:
o If an examinee is subsequently charged and the prosecution seeks to use evidence
obtained at an investigative inquiry / interrogation in a subsequent trial, the protections
given by s 35(3) apply.
• If a person interrogated in terms of a statutory enactment is subsequently charged criminally
then the prosecution who seeks to use the evidence obtained at such an interrogation would
then have to keep in mind that that person is protected by s35(3) of the Constitution

PROFESSIONAL PRIVILEGE:
• There are various professional relationships
o Relationship between doctor-patient; priest- congregant; insurance, accountants, etc.

• Professional privilege ONLY PERTAINS TO THE LAWYER–CLIENT relationship – in SA law we

only recognise legal professional privilege.
o Why is this the case?
o Do you think professional privilege should extend to other professional relationships?

• Rational for protecting legal professional privilege:

o It is believed that it is in the interest of the administration of justice in ensuring that all
relevant evidence is before the court
o All relevant evidence means all communication between doctor and patient in the matter
should be brought before the court

• Legal professional privilege: why do we protect it?

o Applies to civil and criminal proceedings:
§ In criminal and civil proceedings, the communication between a lawyer & client
are privileged and cannot be disclosed without client’s consent.
o Rationale: people need lawyers and if lawyers are to provide adequate assistance to
their client, then their clients must be able to communicate with them freely
§ The concern is that if this is not recognised, then the client won’t be free to
communicate with their legal professionals & then this could hinder the
administration of justice à because lawyer could give client wrong advice since
they don’t know all the true facts
§ Their relationship would be full of reserve, dissimulation, uneasiness, suspicion &
fear

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Michaela Bezer Study Notes
 o S v Safatsa - PRESCRIBED
§ Appellate division for the first time recognised this privilege as a fundamental
right as required by procedural justice
§ Because otherwise the adversary system on which we depend for justice would
be impaired
§ It is necessary for the proper functioning of the legal system
§ It is not merely an evidentiary rule
§ But, if this is breached à does not automatically render the trial unfair à as seen
in Bennett v MoSS

• List and briefly explain the 4 requirements for legal professional privilege.
o Lecturer wants us to look at TB and list the 4 legal requirements for legal-professional
privilege and briefly explain each one. Don’t need to discuss any case law in this regard.
o Requirements for legal professional privilege – all questions of fact i.e. court needs to
look at facts before it before deciding whether requirement met.
§ [1] Acting in a professional capacity –
• Communication made to legal advisor acting in professional capacity
• This is a question of fact and generally be inferred that the requirement is
met where client has paid a fee (implies lawyer client relationship)
• Remember that it covers salaried legal advisors and private
attorneys/advocates
§ [2] The communication must be made in confidence –
• Also question of fact
• There is Rebuttable inference of confidentiality where it is proved that
legal advisor was consulted in a professional capacity in order to obtain
legal advice
§ [3] Advice sought for the purpose of obtaining legal advice –
• Communications must have been made for the purpose of obtaining legal
opinion or advice
• Remember there need not be a connection to an actual pending litigation
for privilege to be attached to the communication
§ [4] The client must be claim privilege –
• In other words the court cannot uphold privilege unless the client or her
attorney has claimed it

PROFESSIONAL, MARITAL AND PARENT-CHILD PRIVILEGE:

Professional privilege waiver:

• NB: Client must be aware of the existence of this privilege in order to validly waive it
o Can never waive a right that you don’t know you have.
• Waiver can be done expressly, impliedly or imputed
• If client waives their privilege then their legal practitioner will be bound by the waiver
• The interest of the administration of justice in ensuring that all relevant evidence is before the
court

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Michaela Bezer Study Notes
Marital privilege:
• This privilege is protected in SA and recognises
• Spouses are entitled to refuse to disclose communications that they made to the other
spouse made during the marriage
• Requirements: communication must have been made whilst the spouses were married and
the privilege persists after divorce with regards to communications made whilst the couple
was still married
• Ito s198 CPA / s10 CPEA (not mentioned)
• This privilege is founded on the notion that public opinion would find it unacceptable if
spouses could be forced to disclose communications received from each other
• In SA, we recognized marital privilege provided that these requirements are met
• But, should the spouse wish to disclose the info à the other spouse cannot do anything
about it

Parent-child privilege
• S192 of CPA: provides that a parent/guardian can be compelled to testify against their children
and vice versa. Absence of the privilege prevails even where a parent attends criminal
proceedings to provide assistance to a child ito s73 of the CPA.
• \ the absence of the privilege prevails even where parent attends criminal proceedings to
provide assistance to a child ito s73 CPA
o Communication between spouses are protected but communication between parent and
guardian and their child is not à what are your views on this? Have an opinion on NB
for assessment
o One could argued that public policy militates against this

• SvM
o AD held that S73(1) and (2) of the CPA read together give the right to a child to be
assessed by a parent/guardian from the time of their arrest.
o Court held that when a parent/guardian is providing assistance ito these provisions the
parent is in effect acting/providing assistance to a child in the same way a lawyer would
provide assistance to their client.
o And on this basis, the court held that there is a logical inference that can be drawn that
the communications between a parent & child in this regard should actually be afforded
the same protection as the legal representative and their client

• However, even where a parent does not appear to assist the child, there may well be
constitutional grounds for holding that communications btw parent & child are privileged
o In the US, courts have recognized that confidential communications btw children &
parents, guardians or other caretakers are privileged from disclosure on the basis of right
to privacy
o It is submitted that s14 Const (right to privacy) is susceptible to a similar interpretation

• But what about where child has to testify against its parent?
o Also could be child testifying against parent therefore could be that interest of justice
could be that child must not have privilege in order to be able to testify about how the
parent was abusive
o What if it is an abusive parent? And then this puts the child at risk

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Michaela Bezer Study Notes
 o What if the parent is the child’s only carer? Source of income? Should the child still have
to testify against this person and either perjure themselves, or risk loosing their only
source of care?
o Parental bond is very NB. Could psychologically hurt the child if it is their parent’s
testimony who assists in their conviction
o Could lead to a breach of trust & a break down in the family structure
o Also what about the bests interests of the child, as protected in s28 Constitution… the
best interests of the child are supposed to be paramount. Clearly that is not the case
here.
o The rationale for the spouse privilege should extend here too.

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Michaela Bezer Study Notes
3.2 STATE PRIVILEGE

What is state privilege

• Common law rule:
o Allows the State to assert that information in its possession is privileged from disclosure
in court on the basis that it would be against public policy or the public interest to
disclose such information
o This is because in the past, states were concerned with issues relating to national
security e.g. during war time à so this was more prevalent in the past, but may still be
relevant today (such as case of Duncan v Cammell as discussed below)

• State privilege is regulated by:

o ss 202 of the CPA and s42 of the CPEA
o Why protected?
§ In the past states used to be concerned with matters of national security and state
secrets during a time where war was prevalent and there were matters of
diplomatic importance
§ State privilege was even more problematic in the past than it is now, but
nonetheless we have these rules because there are still instances where it would
be against public interest for certain info to be disclosed
• If leaked or revealed could compromise state security
• There are differences however between private and public privilege

• Public vs private privilege

o (1) Similarity in that both have a public interest element
§ In protecting private and state privilege there is an aspect of it that protects the
general public interest
• We recognise that privilege against self-incrimination because we believe it
to be in the public interest that people not be compelled to give information
that would incriminate them for example
§ State privilege also has public interest, in fact its essence is the public interests
§ Private privilege does have an individual autonomy element in that it seeks to
protect peoples individual interests as well
• Person can make a decision if they want to claim the privilege or not
o (2) Private privilege – can lead circumstantial evidence
§ In those instances circumstantial evidence can be used to prove something
§ If private privilege is claimed, circumstantial or indirect evidence can be used to
prove a particular point/aspect of the issue
§ Example
• the wife of an accused does not want to disclose that type of gun her
husband bought, other circumstantial evidence may be used to establish
the type of gun husband bought e.g. visit to a specific shop, bank
statements etc.
§ Now that is quite different to when state privilege has been claimed –
• Where state privilege is claimed, circumstantial evidence is prohibited
• If the state has refused to disclose the designs of its submarines and the
court has upheld that claim, then circumstantial evidence ,ay not be
adduced to prove the design of the submarines

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Michaela Bezer Study Notes
 • Thus the difference here is that in private privilege circumstantial evidence
can be used, whereas in state privilege circumstantial evidence cannot be
used
o (3) Easier to waiver private privilege than it is to waive state privilege –
§ Private privilege because of its individual nature can be waived by the client
themselves and actually choose to disclose the type of gun her husband bought
§ But with state privilege because it attaches to an organ of state/government, it
cannot be waived by individuals – it has to be waived by the relevant Minister
o (4) Private privilege – parties must claim –
§ With private privilege it is the party themselves claiming privilege
§ Whereas with state privilege the court can uphold privilege even where the
parties do not actually claim it

APPLICATION OF STATE PRIVILEGE:

Now going to discuss the four instances where state privilege applies

1. Matters concerning state affairs

2. The protection of police investigating methods
3. Protecting informers privilege
4. Access to information contained in police docket

[1] Matters concerning state affairs:

• Here we are concerned with the battle that is seen between the state and the court
o When it comes to state privilege and upholding of state privilege, who should have the
final say?
o Is it the court or executive?
• Scenario: If a minister claims state privilege and refuses to disclose certain information, can
a court override the claim of state privilege by Minister in the interests of justice?
o Battle between executor and court
o Court has difficulty with this and so does the executive over the year
o On the one hand during certain period of time, state was of the view that it should have
exclusive power in respect of deciding what matters were privileged and on the other
hand the court felt that the decision was one that should be made by the courts
• As early as 1860 the English courts were already expressing an inclination to accept that the
executive had the final say in security matters

• 1942 House of Lords in the case Duncan v Cammell unanimously held that a court could
never question a state privilege claim if it was made in proper form
o Court was concerned with disclosure of information of submarines during wartime, sunk
due to negligence, had to disclose design of submarine, disclosure was resisted as
wouldn’t be in public interests yet house of Lords said it would be to benefit to
understand war tactics
o Unanimously held that a court could never question a state privilege claim if it was
made in proper form
o Court willing to defer this question to the executive
o Problems?
§ What constitutes proper form?
§ This goes too far à where the applicant can show convincingly that the
documents would materially assist his case, the court should be prepared to
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 consider inspection, since it might be possible to order the partial disclosure, or
restricted disclosure, to the applicant’s legal advisers
§ The executive could never be questioned where the documents that make up the
content of their decision making are subject to privilege
• SOP à exec telling courts what is admissible

• 1967 start to see that there is a bit of discomfort with this decision, therefore the SA Ad in
Van der Linder v Calitz breaks away from House of Lords decision in Duncan –
o Even though technically the court in Van der Linder should have followed the House of
Lords decision because of the fact that this issue was actually at that time governed by
30 May 196 provision –
o the AD gave preference to the 1931 Privy Council decision of Robinson v State
§ South Australian decision
§ Held that courts have residual power to determine whether executive objection
has to be upheld
§ So the courts are “taking this power back”
§ highlights the tension that exists between executive and court
• The AD in Van Der Linder was vindicated by the House of Lords decision in Conway v
Rimmer
o Reasserted judicial control over executive objection was reasserted on the grounds of
state privilege
o \ cannot be that the state tells the courts what is admissible and what is not
o \ conclusively establish the principle that absolute judicial submission to the views of
the executive on matters relating to public interest is unacceptable

• In 1969 the General Law Amendment Act was enacted and s29 reversed the decision of
AD in Van Der Linder
o The section says that the executive had absolute and unquestionable power to withhold
evidence from the court if the executive was of the opinion that the disclosing of that
information would be against the public interests
o Very territorial issue here
o The position in s29 of GLAA was relaxed in later provision, and that relaxation was
chipped away at when s66(1) of Internal Security Act was enacted
§ That section essentially ousted the courts jurisdiction on matters concerning state
security
§ S66(1) basically reaffirmed the previous position that the executive has the
authority to decide issues relating to security

• However, s66(1) of ISA was repealed once Interim Constitution came about
o \ our CL was developed by the court up until 1969, when legislative interference
commenced, has been revived
o Except insofar as must be concluded that the CL rules and procedural rules are in
conflict with Const provisions & cannot be saves through s36
o It must also be kept in mind that when developing the CL, the courts must do it in a
manner that promotes the SPO BOR

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 • Under the current Constructional Dispensation we have section 165
o Section 165 vests judicial authority in the courts and confirms that we have SoP which
cannot tolerate a situation in which an executive has the final say as to matters
concerning the admissibility of evidence in the courts
o additional provisions that concretise the rule that the courts hold his decision
§ Section 165 - judicial authority and SoP also
§ Section 32 - right to access to information held by the state
§ Section 34 - access to courts and right to a fair hearing

• This means that the test in regard to state privilege is whether the disclosure of the
information would be in the interest of justice hen two or more competing claims are
assessed
o The two primary competing interests were identified in the CC decision of Independent
Newspapers v Minister for Intelligence Services (CC) (2008)
§ Court entitled to a “judicial peak”
§ Held that the two competing interests in this case were the rights to open justice
on the land, and the duty of the state executive to implement national security
§ So on the one hand you have the duty of the state to uphold national security, but
on the other hand there is the issue that we are entitled to an open justice system
in our country
§ The court is essentially entitled to examine the evidence to establish the extent to
which the interests of justice are affected
• The important thing here is that the court actually has to assess the
information
• This means that the courts jurisdiction is not ousted by the executive, and
court is not bound by the ipse dixit or unproven assertions of a Cabinet
Minister
§ Furthermore, the court is entitled to a judicial peak in order to examine the
documents concerned and to do so without any possible classification such as
that the document is National Security
• Document needs to be not disclosed in order to protect National Security
§ Judicial peak allows a court to have a look at the document itself
• If you remember in the past, the executive said that the curt has no power
to assess their claim for state privilege and they do not have to give court
access to documents concerned
o Now we have concept of judicial peak which entitled court to request the document
concerned from executive and have a look to determine for itself whether that
document and its information should be privileged

o Swissborough Diamond Mines v Government

§ (1) Court is not bound by the ipse dixit of any cabinet minister à he must prove
that the info is privileged
§ (2) Court is entitled to scrutinize the evidence à in order to determine the
strength of the public interest affected & the extent to which the interests of justice
to a litigant may be harmed by disclosure
§ (3) Court must balance extent to which it is necessary for the information to
remain hidden à court must balance the competing interests: interests of the
state v public to have access to information which is held by the state
§ Onus should be on the state to show why it is necessary for the information to
remain hidden
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 § Court should call for oral evidence and should permit cross-examination or probe
the validity of an objection itself

[2] The protection of police methods of investigation:

• The court may uphold claim of privilege if disclosure if disclosing the evidence would be
contrary to public policy, in that it would expose police methods of investigation which are
used by the police
• R v Abelson
o The accused was charged with contravening the Liquor Act
o The accused requested an investigating officer to reveal certain reports that had been
made to the accused concerning the charges
o The investigating officer refused to give the accused access to those reports on the
basis that they were confidential
o Matter went before the court and the court upheld the claim of investigating officer to
privilege on the basis that disclosing the reports would disclose the police’s methods of
investigation
o That is to say that the police investigation methods are considered state information
and can be privileged and court is likely to uphold that claim for privilege if it finds that
exposing the information would reveal the methods of investigation
• Also important that court is weary that claim for privilege cannot be used to hide
unconstitutionally obtained evidence

[3] The informer’s privilege:

• This is an instance of state privilege
• Regulated by Section 202 of CPA - English Law
• No question may be asked and no document may be received in evidence that would tend to
reveal the identity of an informer or the content of the information supplied by the informer
• It is the duty on the court to ensure privilege is upheld, regardless of whether or not the
parties claim it
o The reason is that this is very sensitive information and the revealing of this information
with regard to the informer could actually have detrimental consequences for informer
themselves or their family
o Thus even if parties do not claim it, court has duty to uphold the privilege nonetheless

• Informer may disclose his or her identity provided public policy does not require that the
identity remain secret
o Here, public interests outweigh private interests
o There are broader issues at stake
o Issues regarding people’s safety as well as issues regarding the future and integrity of
informers privilege and thus is very dependant on public interest whether or not the
decision of informer themselves to disclose information can be upheld

• Who is an informer?
o A person who has a relationship with the police and who provides information to the
police and who’s identity must be kept secret in the public interest

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 • Rationale of the informer’s privilege?
o 1. To protect the informer personally & his family from those against whom he informs
about
o 2. To ensure that the informer can be used in the future
o 3. To encourage the public to come forward with information about crimes à if they
have fears about their identities being disclosed, they may be deterred from providing
info to the authorities
§ R v Ableson:
• the whole business of crime is conducted in secret & devious ways against
the interest of the state, and so the work of detecting /defeating criminals
but obviously be done in the same manner
• so in order for the state to achieve its purposes of holding those who defeat
the ends of justice accountable, the state must also conduct its business in
private

• Conditions to be met before the informer’s privilege is upheld

o 1) Communication between police officer must have been made in confidence
o 2) Confidence must be an important aspect of the relationship between informer and
“controller”/investigator
§ The point here is that there is an essential element that informer must have
confidence that the information provided is privileged and it will not be disclosed
at any point
§ Foundation of confidence in the relationship
o 3) Relationship must be one that enjoys community support and the interests of non-
disclosure must outweigh the interests of justice

• Privilege may be relaxed where à provided in In re Pillay

o 1. It is in the interests of justice
o 2. It is necessary to show the accused’s innocence
o 3. Reasons for secrecy no longer exist

• Can privilege be waived?

o Rex v Van Schalkwyk it was held that public policy will not be served if the informer is
prohibited from disclosing the fact himself
o \ can be waived

• Is the privilege Constitutional?

o Accused has various rights stipulated by the Constitution eg.
§ Section 35(3) of the Con – the right to a fair trial
• \ accused has a right to adduce & challenge evidence
• \ if informer’s privilege is upheld, accused doesn’t have access to info à \
cannot prepare sufficiently for the case
• also does not have the opportunity to cross examine witness
• And cross-examination is key to our adversarial trial proceedings
§ Section 32(1) of the Con – the right to information held by the state
o So clearly there are rights that are infringed… so how does the court navigate this?

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 o US Cases:
§ McCray v Illnois + Roviaro v United States à give this idea of the “material
witness”
§ We have to determine if the witness was a material witness
§ In deciding whether the rights of the accused or interests of the public should
prevail, this is considered
§ Where the informer is a material witness, then privilege is lifted
§ BUT, if the informer is not a material witness, then the privilege is upheld in the
USA
§ \ the informer’s privilege is not unconst

o In SA, this enquiry is considered by looking at the circumstances of each case &
examine them to determine if the accused’s rights are effected
§ Eg. if the informer is a non-material witness, not so important to the case, then
there is no constitutional infringement
§ BUT, if the informer is a material witness, then the court must determine if this
limitation of the rights of the accused is justifiable
§ \ requires a s36 limitations analysis
§ The facts of each case would have to be considered
§ Confirmed the approach in Shabalala v Attorney General, Transvaal (CC
decision)

o Els v Minister of Safety and Security - PRESCRIBED

§ Kriek J considers the extent to which the informer’s privilege has survived the
new Constitution
§ Kriek outlined the rationality of this privilege and how it has been applied
§ This rule that the identity of the informers privilege should not be disclosed is a
public policy rule which aims to remove the possible deterrence of detection and
punishment of crime
§ Because it is commonly understood that if their identities would be disclosed, it
would deter them from coming forward with info
§ So insofar this infringes the accused’s constitutional right to access info, the court
must do a limitations analysis to ascertain if the limitation of the accused’s right is
justifiable
§ And in doing so, the court must not be inflexible
§ The court must not place too much emphasis on the right of the accused, but
rather do a careful analysis of the many factors in determining whether the
infringement is a reasonable and justifiable limitation to the rights of the accused
à be flexible
§ He notes that the rule on the informer’s privilege can be relaxed where
• it is material to the ends of justice &
• Necessary to relax to show that the accused is innocent,
• Or where the instances for secrecy no longer exists e.g. Where people
already know the identity of the informer
§ \ Court concluded that even though Const vests a wide discretion to enforce the
privilege or not, it should not in the public interest have the effect of watering
down the informer’s privilege to a significant extent
§ Particularly where the informer is not malicious
§ Informer’s privilege persists post-constitutional due to the good reasons that we
have this privilege
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 § “… the advent of the new Constitution should not, in the public interest, have the
effect of watering down the informer privilege to any significant extent, even
though it does vest in the courts a wider discretion to enforce disclosure of the
identity of informers than they previously had.
§ Interests must be balanced, cognisance of broader interests in capturing criminals

[4] Access to information in police dockets:

• Question ask: whether the accused should have access to information contained in a police
docket?
• Prior 1995 the prosecution could refuse the content of a police docket to an accused.
• This was known as a 'blanket docket privilege'
o This rule was derived from an AD decision of R v Steyn (1954).
§ This meant accused could not access any information that is contained in a police
docket – this included any statements made by the witnesses.

• In Constitutional dispensation the ‘blanket docket privilege’ rule was found to be problematic
o This rule implicated the rights of accused right to a fair trial, particularly right to access
to information to prepare a defense, to access information.

• Shabalala v Attorney General of the Transvaal (CC) (1995): CC reversed the ‘blanket’
rule in the Shabalala judgement
o Blanket docket privilege à inconsistent with the Constitution
§ Inconsistent insofar as it protects from disclosure all documents in a police
docket, in all circumstances, regardless as to whether or not such disclosure is
justified for the purposes of enabling the accused properly to exercise his right to
a fair trial
o Right to a fair trial includes access to the statements of witnesses
o And the content of the police docket generally contains this
o \ needs access to the docket to ascertain this, in order to challenge and adduce
evidence in order to prepare for trial
o BUT, depending on the circumstances à the prosecution may be able to justify non-
disclosure on basis that it is necessary for the exercise of the right to a fair trial
o Further held that non-disclosure may be justified if
§ it would lead to the disclosure of the identity of an informer,
• But if in the circumstances of the case, the prejudice of the administration of
justice is not so great as to violate the accused right
• Then, this may not justify disclosure
§ or state secrets,
§ or intimidation of witness,
§ or if it would otherwise prejudice the ends of justice
§ or if the access is not justified for the purposes of enabling the accused to
properly exercise rights to a fair trial
o If prosecution alleges that the identity of an informer may be disclosed, court still has
discretion to order disclosure if it finds in circumstances of the case that the prejudice of
administration of justice is not so great to justify the infringement of the accused rights
o Therefore court has discretion to order disclosure, court retains discretion à even if
these justifications are present
o Position held in Shabalala also accommodates Section 34 of the Constitution which
protects rights to have justiciable disputes settled in a court of law

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 o \ court must balance this right of accused to a fair trial against legitimate claims of
state (e.g. informer’s privilege)

• Does the ruling in Shabalala extend to access (to information contained in a police docket
during/) for bail proceedings
o Access for bail proceedings regulated in Section 60(14) of the CPA
§ The section was enacted to rectify a misconception that raised by Shabalala that
the defence has an extensive/unfettered right to access the police docket even at
the bail stage
§ S60(14): ‘Notwithstanding anything to the contrary contained in any law, no
accused shall, for the purposes of bail proceedings, have access to any
information, record or document relating to the offence in question, which
is contained in, or forms part of, a police docket, including any information,
record or document which is held by any police official charged with the
investigation in question, unless the prosecutor otherwise directs:
• Provided that this subsection shall not be construed as denying an accused
access to any information, record or document to which he or she may be
entitled for purposes of his or her trial.’
§ This section states that the accused doesn’t have access to information contained
in police docket during bail proceedings/at bail stage.
§ But this section does not apply to access to the police docket during trial
proceedings.
• So, s60(14) is limited to bail proceedings and does not conflict with
Shabalala decision

• Is s60(14) constitutional if it denies access to information?

• Constitutionality of s 60(14) was decided by CC in S v Dlamini –
o Held that s60(14) should not be read as sanctioning a flat refusal on the part of the
prosecution to divulge information relating to the pending charges against the bail
applicant.
o Thus, Section 60(14) vests a discretion in the prosecution to refuse to disclose
information contained in a police docket – but not an unfettered discretion – court may
order prosecution to lift the veil in order to give a bail applicant a reasonable chance of
success during bail proceedings/ opportunity to meet requirements stipulated by rules
on bail.

• General right to access information held by state: Promotion of the Access to

Information Act (PAIA) - Section 60(14) of the CPA
o PAIA gives effect to constitutional Right of access to information held by the state and
other information held by a person which is required for exercise of any right.
§ That Covers both private and State privilege
o PAIA also refers to the limitations clause in the Constitution to prevent the abuse of
PAIA
§ See for examples of limitations –
• Section 7(1) and (2)of PAIA: S7(1) –
o The Act does not apply to a record of a private or public body used for
criminal or civil purposes if access for the information is provided for
in any other law.

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 o S7(2) any information obtained in contravention of s7(1) is
inadmissible if its exclusion would be detrimental to the administration
of justice.
o = PAIA gives access to information of state or held by private body
BUT it also provides for a limitation to that right in a way to prevent
the abuse of PAIA
• Section 40 of PAIA: information officer of a public body must not disclose
privileged information except if that privilege is waived

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