DEPARTEMENT YANJUST1SIE
REFUBLIEK VAN SUD-AFR1KA
DEPARTMENT OFJUST1CE
REPUBLIC OF SOUTH AFRICA
THE CONSTITUTIONAL COURT IN RE
KANTOOR VAN DIE GRIFFIER VAN DIE KONSTITUSIONELE HOF VAN SUID-AFRIKA/
OFFICE OF THE REGISTRAR OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA PRIVAATSAK/PRIVATE BAG X32
BRAAMFONTEIN 2017
TEL (Oil) 403-8032 FAKS/FAX (Oil) 4O3-6S24 YERWYSING/REFERENCE
CCT/23/94
SHABALALA, Michael and
THE ATTORNEY-GENERAL OF THE TRANSVAAL
THE COMMISSIONER OF THE SOUTH AFRICAN POLICE and
GUMEDE, Joseph
MP1KWA, Joseph Siphiwe NZIMANDE, Christopher MAJOLA, Simon Hlope THANDEKWAYO. Vusi Maiosi and
THE ATTORNEY-GENERAL OF THE TRANSVAAL
Applicant
First Respondent
Second Respondent
First Appellant Second Appellant Third Appellant Fourth Appellant Fifth Appellant
Respondent
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DIRECTIONS GIVEN IN TERMS OF GOVERNMENT NOTICE R1584 OF 16 SEPTEMBER 1994.
Mr. Justice Cloete referred the following issues to the Constitutional Court on 4 November 1994, in terms of Section 102(8) of the Republic of South Africa Constitution, 1993.
1. Whether a Court interpreting the Constitution is bound by the principles of stare decjsis to follow the decision of a superior court;
or whether such a court may hold that a decision of such superior court (other than the Constitutional Court) is per incuriam because it incorrectly interprets the Constitution.
2. Whether sec 23 of the Constitution can be utilised by an accused in the exercise of the rights contained in sec 25(3) of the Constitution; and if so
2.1 Whether the accused should have access to the police dossier;
and if so,
2.2 To what extent, under what circumstances and subject to what conditions (if any) such access should be exercised;
3. Whether any provision in the Constitution permits an accused to consult with prospective witnesses who have given statements to the police; and if so, under what circumstances and subject to what conditions (if any) such consultations should take place.
The President of the Constitutional Court has given the following directions regarding the procedures to be followed in this matter:
1. The Attorney-General has requested to be represented at the hearing of argument in this matter and his request has been granted. The Commissioner of Police, who was represented at the hearing before Mr. Justice Cloete, should advise the Registrar of the Constitutional Court by not later than 5 December 1994 if he wishes to be represented at the hearing.
2. The Minister of Justice is requested to appoint counsel in terms of section 102(9) of the Republic of South Africa Constitution, to submit argument to the Court on behalf of accused persons who may be affected by the Court's judgment.
3. The legal representatives of the Attorney-General of the Transvaal, the Commissioner of the South African PoIiceGf he wishes to be represented at the hearing), and counsel appointed by the Minister of Justice, are. required to file written argument with the Registrar of the Constitutional Court by not later than the 20th January 1995, setting out clearly and succinctly the contentions made by them in respect of each of the issues referred to the Constitutional Court by Mr. Justice Cloete, the reasons therefor, and the authorities relied on in support of such contentions, and if necessary, to respond in
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writing to the arguments on behalf of the other parties, by not later than 31st January 1995.
4. The record will consist of the record in the proceedings before
Mr. Justice Cioete, and the Registrar of the Transvaal Provincial Division is requested to cause 25 copies of the record to be prepared and lodged with the Registrar of the Constitutional Court by not later than 2 January 1995. Such record shall be prepared in accordance with the Rules of Court of the Appellate Division applicable to the preparation of records, provided that photostats which are clear and legible may be used whenever it is convenient to do so, and it will not be necessary to number every tenth line of documents which are not so numbered in the original record.
5. In view of the importance of this matter, any party interested in the issues referred to the Constitutional Court shall have access to the written arguments lodged with the Registrar, and may lodge with the Registrar written argument as amicus curiae. provided that such argument:
(a) Shall indicate the interest that the amicus curiae has in the outcome of the proceedings:
(b) Shall be clear and succinct and without any unnecessary elaboration:
(c) Shall not repeat any matter set forth in the argument of the other parties:
(d) Shall raise only new contentions which may be useful to the Court.
(e) Shall be served on the Registrar of the Constitutional Court and the other parties by not later than 17th February 1995.
Without leave of the Court the amicus curiae will not be permitted to present oral argument. A request to be permitted to present oral argument may be made in writing at the time the written argument of the amicus curiae is lodged with the Registrar. The request shall indicate whether or not the parties who have been asked to submit argument to the Constitutional Court, consent to the amicus curiae being given a hearing, and shall set out clearly and succinctly the grounds on which it is contended that the Court will be assisted thereby. No oral hearing will be allowed in respect of such request.
6. If any of the parties contend that it is in the interests of justice that these directions should be revised, such parties shall by not later than 9th December 1994 advise the registrar of the Constitutional Court in writing, which shall be served on the other party, of the contentions that are made in that regard. The directions will be reconsidered in the light of any such contentions that may be made.
7. The reference number of this case in the Constitutional Court is CCT/23/94 and this should be referred to in all documents and correspondence directed to the Constitutional Court in respect of this matter.
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8. When any document, other than that referred to in paragraph 4 is required to be lodged with the Registrar in terms of these directions, it shall be accompanied by 25 copies thereof.
9. The issues referred to the Constitutional Court by Mr. Justice Cloete will be dealt with at a hearing before the Cpj^stilytipnaLCmilinJoh^
b££ii^£tjlQMiioi-tbfiJilth_dav of March 1995 at 10 am. If no contentions are made in terms of paragraph 4 for the revision of these directions, the provisional date will be confirmed. If it is contended by either party that these directions should be revised, the confirmation or revision of the provisional dates will depend on the decision given in response to such contentions.
M.S. NIENABER Registrar
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