n South African Law Journal - Self-incrimination, private records, and required reporting in regulatory statutes

Volume 131, Issue 3
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



There is a wealth of South African case law describing the privilege against self-incrimination as a shield against the compulsion of oral incriminating testimony, but there is a paucity of case law about the relationship between the privilege and incriminating documents. There is also a lacuna about the relationship between the privilege and regulatory statutes which make it compulsory to keep and produce required records. The modern state manages a vast amount of information in order to function efficiently. A cost-effective manner of collecting data is to use compulsory self-reporting mechanisms in regulatory statutes to force citizens to hand over potentially incriminating written records to the state on pain of criminal sanction. Some of the more important statutory provisions are in the Tax Administration Act 28 of 2011, the Financial Intelligence Centre Act 38 of 2001, the Prevention of Organised Crime Act 121 of 1998, and various banking and exchange control regulations. In this article, the stop-and-report provision in the National Road Traffic Act 93 of 1996 is used as the primary illustration of a reporting mechanism which may attract a claim of privilege. Anglo-American jurisdictions have developed a number of technical tests and doctrines to explain the relationship between the privilege and the required records demanded by regulatory statutes, but a claim of privilege in this context has never come before our superior courts - hence the lacuna. The Canadian courts rely on a predominant-purpose test based on the principles of a co-operative-partnership doctrine, and the United States courts make use of an adapted act-of-production doctrine and a required-records doctrine to explain the relationship. This article critically evaluates relevant decisions mainly by the Supreme Courts of the United States and Canada, and in parts the United Kingdom and the European Union in this area, in order to provide guidance to a future South African court in developing our domestic jurisprudence.

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