SOUTH AFRICAN LAW
5.3 Approach of the courts to statements made under statutory compulsion to speak
5.4.2. Provision of the new constitution which will have an impact on the admissibility of confessions
Before the adoption of the new constitution, there were many proposals as to what a Bill of Rights mayor may not contain." The chapter on fundamental rights shall bind the legislatures, the cabinet, provincial governments and all executive organs of state at all levels of government.~ It shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of the new constitution." This implies that when the police detain a person in terms of section 29 of the Internal security Act for questioning, the provisions of this
65 See chapter 3 of the Constitution of the Republic of South Africa Act 200 of 1993.
66 See the Bill 'of Rights proposed by the South African Law Commission; the ANC Draft Bill of Rights: Prelimi- nary Revised version February 1993; the DP's Freedom under the Rule of Law: Advancing Liberty in the New South Africa, May 1993i Technical Committee on Fundamental Rights during Transition Seventh progress Report: 29 July 1993; Technical Committee on Fundamental Rights during Transition sixth Progress Report: 15 July 1993.
67 See section 7(1) and (2) of the constitution of the Republic of South Africa Act 200 of 1993.
68 Section 7(2) of the constitution of the RepUblic of South Africa Act 200 of 1993
chapter on fundamental rights shall apply. The detainee is entitled to apply to a competent court of law for appropriate relief which may include a declaration of his or her rights.~
In terms of the new constitution, every person shall have the right to freedom and security of his person, which shall include the right not to be detained without trail. n There is no provision for detention for purposes of interrogation. There are two types of detention allowed in terms of the new constitution.
Firstly, detention for purposes of bringing the detainee to court on a criminal charge is allowed.
This is implied from the wording of section 11(1) of the constitution of South Africa Act. Secondly, the detention of a person or persons following the declaration of a state of emergency7l for purposes of restoring peace or order is allowed. The new constitution spells out clearly how to deal with the process of effecting the detention of a person.
69 Section 7(4) of the Constitution of the Republic of South Africa Act 200 of 1993.
70 Section 11(1) of the Constitution of the Republic of South Africa Act 200 of 1993.
71 In terms of section 34 of the Constitution of the Republic of South Africa Act 200 of 1993.
When the entrenched rights against detention are suspended,n the detention of a detainee shall be review by a court of law as soon as i t is reasonably possible, but not later then ten days after his or her detention.1Z The court shall order the release of the detainee if it is satisfied that the detention is not necessary to restore peace or order.H A detainee is entitled to apply for a review of his or her detention at any stage after the expiry of ten days of review.
The detainee enjoys the rights set out below.
(a) A detainee has a right to appear in person, to be represented by legal counsel, and to make repre- sentations against his or her continued detention.75
(b) He is entitled at all reasonable times to have access to a legal representative of his or her choice. "
72 i.e. rights entrenched in terms of sections 11 and 25 of the constitution of the Republic of South Africa Act 200 of 1993.
73 section 34(6) (c) (i) of the constitution of the Republic of South Africa Act 200 of 1993.
74 section 34(6) (c) (i) of the constitution of the Republic of South Africa Act 200 of 1993.
75 section 34(6) (d) of the Constitution of the Republic of South Africa Act 200 of 1993.
76 Section 34(6) (e) of the Constitution of the Republic of South Africa Act 200 of 1993.
(c) He is entitled at all times to have access to a medical practitioner of his or her choice."
When a detainee has been released following a court order, her or she shall not be detained again on the same ground unless the state shows good cause to a court of law prior to such re-detention.~
A person detained when there is no state of emergency, that is, any person in police custody, enjoys the rights set out below.~
(a) A right to be informed promptly, in a language which he or she understands, of the reason for his or her detention.~ The purpose of this right is to place the police under a duty to inform the detainee of the purpose and circumstances that have led to his arrest. This prevents arbitrary action on the part of the police.
77 section 34(6) (f) of the Constitution of the Republic of South Africa Act 200 of 1993.
78 section 34(7) of the Constitution of the Republic of South Africa Act 200 of 1993.
79 section 25(1) of the constitution of the Republic of South Africa Act 200 of 1993.
80 Section 25(1) (a) of the Constitution of the Republic of South Africa Act 200 of 1993.
(b) A detainee (including every sentenced prisoner) has a right to be detained under conditions consonant with human dignity which must include at least the provision of adequate nutrition, reading material and medical treatment at the expense of the state.~ This right is intended to prevent any mental and physical torture of a detainee.""
(c) A detainee has a right to consult with a legal practitioner of his or her choice, to be informed of this right promptly and, where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the
state.~ A lawyer would ensure that all the rights of a detainee are respected and upheld by the police.
(d) A detainee is entitled to communicate with, and to be visited by, his or her spouse or partner, next-of-kin, religious counsellor and a medical
81 section 25(1) (b) of the Constitution of the Republic of South Africa Act 200 of 1993.
82 section 11(2) of the Constitution of the Republic of South Africa Act 200 of 1993.
83 section 25(1) (c) of the Constitution of the Republic of South Africa Act 200 of 1993.
doctor of his or her choice.'" Such visits are necessary to prevent the inherently coercive pressure of a police custody. This helps to ensure that detainees are not disorientated by the custody in which they find themselves.
(e) Lastly, a detainee has a right to challenge the lawfulness of his or her detention in person before a court of law and to be released if such detention is unlawful.$
A person who has been arrested in connection with the commission of a crime has the rights detailed below in addition to his rights as a detainee. This suspect has the right to be informed promptly in a language which he or she understands of his or her right to remain silent and to be warned of the consequences of making a statement." The duty of the police to inform a suspect of the right to remain silent does not depend on whether they intend to question him. The constitu- tion provides that a suspect must be informed and warned. The exact wording of a warning is not spelt out in the constitution.
84 section 25(1) (d) of the constitution of the Republic of South Africa Act 200 of 1993.
85 section 25(1) (e) of the constitution of the Republic of South Africa Act 200 of 1993.
86 section 25(2) (a) of the Constitution of the Republic of South Africa Act 200 of 1993.
The legislature has enacted the right to remain silent for the first time in our law as a fundamental right.
As soon as reasonably possible after arrest, a suspect must be informed of this right. It is not adequate to warn a suspect in terms of the jUdges' rules. In interpreting the right to remain silent and the wording of a warning to be given to suspects of the consequences of making a statement, our courts would have regard to comparable foreign case law." Police interrogation is not prohibited. What is required is that a suspect must be informed of his right to remain silent and of the consequences of making a statement.
Future arguments in our courts would centre around the question whether a suspect understood his or her right to remain silent and on whether a warning given to him by the police was adequate.
A suspect who has been arrested has a right not to be compelled to make a confession or admission which could be used in evidence against him or her.~ This does not differ significantly from the current law on the admissibility of confessions. What is clear is that compulsion is recognised as a ground on which a confession could be excluded from evidence. What this
87 Refer to Chapters 12 and 13 infra.
88 Section 25(2) (c) of the Constitution of the Republic of South Africa Act 200 of 1993.
really means is that all circumstances that led to the making of a confession should indicate the absence of compulsion.