n Stellenbosch Law Review = Stellenbosch Regstydskrif - Defining the limits of the common-law, South African and European privilege against self-incrimination




The privilege against self-incrimination is a fundamental first generation procedural right of the Anglo-American adversarial system. Its origin is to be found some 700 years ago in the political-legal struggle for supremacy between the canon law prerogative courts of the English monarch and the indigenous common-law courts. Together with its corollary principle, the right to silence, the privilege has had a significant jurisprudential influence on the procedural law of all western systems of justice. The primary purpose of this article is to make a comparative study of the privilege in major commonwealth jurisdictions such as England, Australia, Canada and South Africa in order to explain the nature of the common-law and statutory privilege, and to expose the jurisdictional variations in the privilege's application. A secondary purpose is to contrast the common-law privilege with that of the continental privilege defined in article 6 of the European Convention on Human Rights, and to identify unique principles of the common-law and European privilege which may be successfully incorporated into the South African privilege. An incidental purpose of the article is to comprehensively explain the principal requirements of the privilege, thereby adding to the of knowledge about the South African privilege which has previously been treated in a somewhat cursory fashion by most scholarly works and court decisions.


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