n South African Journal of Criminal Justice - The pre-trial right to silence whilst exercising the right to access police dockets in South African law : a right too far?

Volume 27, Issue 3
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



Section 32(1) of the South African Constitution confers on everyone the right of access to any information, held by the state or another person, that impacts on the exercise or protection of any rights. In the context of arrested and accused persons this translates to the right of such persons to obtain access to information in the police docket for the purposes of a fair trial. The issue of whether an accused is entitled to unfettered access to the contents of a police docket for the purpose of a fair trial has largely been settled in South African law : although there is authority in South African case law for the view that the right to a fair trial begins at the pre-trial stage which includes bail applications, and accused persons do not have the right to access the police docket for the purpose of a bail application. However, access to a police docket in preparation for trial is permitted unless the prosecution can show that the accused does not need access to the docket for the purposes of a fair trial. Even the right to silence which is the corollary of the privilege against self-incrimination, is not unfettered: accused persons applying for bail are faced with the choice between the right to bail and the exercise of the privilege against self-incrimination.

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