n Tydskrif vir die Suid-Afrikaanse Reg - The prosecution's duty to disclose : more reason to litigate? : aantekeninge

Volume 2012, Issue 2
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



Pursuant to the finding of the constitutional court in (1995 2 SACR 761 (CC)) that the blanket docket privilege in criminal cases as enunciated in (1954 1 SA 324 (A)) was inconsistent with the right to a fair trial as guaranteed by the 1993 constitution (interim constitution), courts have been called upon to adjudicate on a number of questions that arose in relation to the prosecution's duty to disclose. This was to be expected, as the constitutional court emphasized that, should the state object to disclosure, each individual case had to be decided on its own merits with reference to the guidelines provided in this regard by the constitutional court (par 55).

In this contribution the initial objections raised in the case in support of the privilege against disclosure are again briefly considered and evaluated, where possible with the knowledge of hindsight, to establish whether or not the notions that informed the objections indeed manifested themselves to the detriment of the criminal justice system. Consideration is given to the state's approach to disclosure, the duty to disclose as interpreted by the courts in two recent decisions and the question is posed to what extent, if at all, the prosecution's duty to disclose is utilized for purposes other than to ensure a fair trial. The extent to which the Criminal Procedure Act 51 of 1977 (the act) and the Promotion of Access to Information Act 2 of 2000 (PAIA) contain provisions, in addition to the state's duty to disclose, to assist an accused person to obtain sufficient information in order to advance his case is also considered.

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