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The Rule Of Law Under Attack In South African Criminal

BY

Advocate BC Harker BA LLB

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The Rule Of Law Under Attack In South African Criminal Law

The deconstruction of the right to bail
The rule of law is under attack in South African Criminal Law.

The principles of the rule of law trace their origins through the philosophies and writings of

Plato, Aristotle, Cicero, Thomas Aquinas, Thomas Hobbes, John Locke, Baron de Montesquieu,

Jean Jacques Rousseau, John Stuart Mill, and others1

It is found in Section 1( c ) of the Constitution and provides the Republic of South Africa is one,

sovereign, democratic state founded on the following values (which include) Supremacy of the

Constitution and the rule of law.

For the purpose of this article is defined as or based on the principles that Citizens consent to

the laws and agree to obey them, Government and its officials are bound by the law and are

answerable to the people for their actions.

The laws are interpreted and applied fairly and equally to all people. The law must thus be

applied.

The passing of the Prevention of Organised Crime Act And The Criminal Procedure Act

Amendments Of 1995 And 1997 have been a triumph for non-democratic groupings in South

Africa as it has eroded the principle of the rule of law, a foundation of democracy.

It is heralded as a crime fighting legislation of a draconian nature but this is not a proud

achievement as it imposes procedural and substantive hardship on the litigant who is supposed

1 See Shklar JN ‘Political Theory and The Rule of Law’ in Hutchinson & Monahan 1-2 and Dicey AV (1996) (8th ed)
Introduction to the Study of the Law of the Constitution.
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to be presumed innocent. It is thus dehumanizing as it tears into the bill of rights and erodes it

with contempt.

A. BAIL LEGISLATION
s 35(1)(f) of the Constitution which provides the principal template “Everyone who is arrested

for allegedly committing an offence has the right . . . (f) to be released from detention if the

interests of justice permit, subject to reasonable conditions.”

Section 60(11) CPA 51 OF 1977 provides for reverse onus clause that the accused person must

adduce evidence either on the interest of justice and establish in certain circumstances that

exceptional circumstances be proved.

Section 60(11) is clearly a reverse onus clause discriminating against accused persons who

stands accused of more serious crimes.

It is clearly a deviation from the rule of law as it exists in the Constitution which is the supreme

law of the land.

How is subordinate legislation gaining priority over higher law if not by abuse of the rule of law.

The Constitutional Court is bound by its own law and the Constitution and we have not noticed

that the court is not abiding by the Constitution.

This has potential for abuse and is contrary to the rule of law and a breach of the presumption

of innocence.
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Every person has the right to bail, it is not a privilege and that is regardless of the seriousness of

the crime because we all have the right to be presumed innocent2 , and that is a right

guaranteed in the bill of rights.

However, the introduction of section 60 of the CPA and amendment to section 59 in respect of

offences in schedule 63 in 1997 and schedule 54 in 1995 into the Criminal Procedure Act 51 of

1977 is a marked and watershed a deviation from the right to be presumed innocent but the

right to bail was no longer an unqualified guarantee.

By shifting the onus, the accused now has to prove which breaches his right to remain silent. 5

These are all legislated laws which have been amended by subordinate legislation.

How did section 60 of the CPA in respect of schedule 5 and 6 pass constitutional validation

before being made law. The 1995 amendment substituted a brand new and radically different

section for the principal provision relating to bail, namely s 60 of the CPA. Is the limitation

clause of the Constitutor not there to limit the application of Constitutional law should it lead to

unfair results?6

2 Section 35(1)(h) f act 108 of 1996

3 Schedule 6 added by s. 10 of Act 85 of 1997, amended by s. 27 (1) of Act 33 of 2004 and

substituted by s. 68 of Act 32 of 2007

4 Schedule 5 added by s. 14 of Act 75 of 1995, substituted by s. 9 of Act 85 of 1997, amended

by s. 36 (1) of Act 12 of 2004 and by s. 27 (1) of Act 33 of 2004 and substituted by s. 68 of

Act 32 of 2007

5 Section 35(3)(j) of the constitution Act 108 of 1996

6 section 36 of the Constitution Act 108 of 1996

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The fact that it is radically different didn’t raise an eye brow since there is a general belief that

the high crime in the country needs to be reduced.

The cause of the High Crime is never actually disclosed by Government through political debate

or actual statistics.

Section 79 of the Constitution provides that 1) The President must either assent to and sign a

Bill ~assent terms of this Chapter or, if the President has reservations about the constitutionality

of the Bill, refer it back to the National Assembly for reconsideration.

This is the process that must have taken place for the insertion of section 60(11) (a) and (b).

Now if the unconstitutional provision which breaches the right to be presumed innocent slips

through this processes it has then the rule as sated in Dlamini at paragraph 84 that “if possible

statutory provisions should be interpreted as being consistent with the Constitution” is an

exercise in futile optimism as is the application of section 36 the limitation clause in judicial

reasoning in judgments.

The laws are administered by the department of justice but crime originates from the lack of

enforcement of the laws by the police and also the inability to prevent crimes from taking place

through poor policing standards and crime intelligence.

in S v Makwanyane 1995 (3) SA 391 (CC) the Constitutional Court held that the death penalty

was unconstitutional because it infringed section 33 of the Interim Constitution Act which

safeguarded the right to life. This has established a precedent for the importance of bill of rights

clauses that should not be transgressed with ease.

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There is a clear nexus established between the sanctity of the right in the bill of rights and

unconstitutionalism when it is transgressed in the Makwanyane judgement.

Why is the right to freedom of person not as important ?

How did parliament slip through schedule 5 and schedule 6 bail provisions contrary to

guaranteed constitutional rights.?

This was a direct attack on the rule of law as the constitutional rule was simply ignored and

political consideration made to prevail.

The reasoning in Naicker case indicated below is exactly what is infringing the rule of law.

An eagerness to vest the law in discretion rather than comply with the law as created by the

democratically elected representative of the people.

S v Naicker 2008 (2) SACR 54 (N) the full bench, per Msimang J, Ngubane AJ concurring, held

that although non-compliance with the peremptory terms of s 93ter(1) amounts to an

irregularity, it does not necessarily follow that it amounts to a failure of justice and an

assessment is nevertheless required to discover the impact of the irregularity on the integrity of

the proceedings.

Peremptory laws couched on peremptory terms must be obeyed and followed as it is a

foundation of democracy. We have become accustomed to poor excuses issued by the courts

for deviation from the rules of law such as not applying the laws contrary to their conclusions.

Failure to follow rules of law amounts to a failure of justcie.

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B. NON APPLICATION OF THE LAW

In S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat (CCT21/98, CCT22/98 ,

CCT2/99 , CCT4/99) [1999] ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771 (3 June 1999) THE

Constitutional Court may have delivered arguably the worst judgment in the Constitutional

history of South Africa.

The court tried to qualify its deviation from the rule of law with remarks such as :

1. bail is a unique judicial function at paragraph 10. – this is not so , all judicial

functions are unique , it does not justify a deviation from established law on the basis of

its sui generis or unique nature. Such thumb sucks are regularly ousting decisions which

should uphold the spirit and letter of the Constitution.

2. The origins of bail are “obscured in the mists of Anglo-Saxon history”8 and its

modern dimensions remain “an incoherent amalgam of old and new ideas serving more

to defeat than to achieve the aims of the criminal process at paragraph 3.

This is simply not true as the Pretrial Justice Institute has published an article on the

history of bail and pretrial release updated on 24 September 2010.7

3. Section 35(1)(f) presupposes a deprivation of freedom - by arrest - that is

constitutional paragraph 53 of the Dlamini judgment – what prudent basis could a judge

7 Timothy R. Schnacke, Michael R. Jones, Claire M. B. Brooker

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ever make such a statement even during arrest there are constitutional rights such as

the Miranda right and reading of the person’s right.

4. In the present context, we are not so much concerned with violent public

reaction to unpopular verdicts or sentences, but with such reactions to unpopular grants

of bail paragraph 53 of the Dlamini judgment

5. However, s 60(11)(a) does more than restate the ordinary principles of bail.

Paragraph 64 of the Dlamini judgment

6. Although the level of criminal activity is clearly a relevant and important factor in

the limitations exercise undertaken in respect of s 36, it is not the only factor relevant to

that exercise. One must be careful to ensure that the alarming level of crime is not used

to justify extensive and inappropriate invasions of individual rights. It is well established

that s 36 requires a court to counterpoise the purpose, effects and importance of the

infringing legislation on the one hand against the nature and importance of the right

limited on the other paragraph 68 of the Dlamini judgment.

7. In order to determine whether the limitation is permissible in terms of s 36, it is

necessary to consider whether the limitation would be considered reasonable and

justifiable in democratic societies based on freedom equality and dignity. In many

democratic societies, there are legislative provisions which permit a court to deny bail to

accused persons in certain circumstances. Paragraph 69 of the Dlamini judgment. This is

vague and does not pertain to legal standards or reasoning.

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In Contrast consider the following:

a) Article 1, Section 9 of the United States Constitution states that “[ T]he privilege of the

writ of habeas corpus(bail) shall not be suspended, unless when, in cases of rebellion or

invasion, the public safety may require it.”

b) “In our society liberty is the norm, and detention prior to trial or without trial is the

carefully limited exception.” -- United States v. Salerno, 481 U.S. 739, 755 (1987) (Rehnquist, C.J.,

for the Court)

c) One must endorse the objection to a deeming provision in a statute which has

the effect of obliging a court to come to an unjust factual conclusion conflicting with

that to which an objective evaluation would lead and which might also conflict with a

provision of the Bill of Rights.8

d) Such guidelines are no interference by the legislature in the exercise of the

judiciary’s adjudicative function; they are a proper exercise by the legislature of its

functions, including the power and responsibility to afford the judiciary guidance where

it regards it as necessary9

e) It is interesting to note that none of their reference to foreign law , American ,

Canadian , UK and Australian law deals with a breach of a constitutional principles.

Paragraph 70 to 73 of the Dlamini judgment.

f) Stack v. Boyle, 342 U.S. 1 (1951)

8 S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat (CCT21/98, CCT22/98 , CCT2/99 , CCT4/99) [1999]
ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771 (3 June 1999) at paragraph 41 ,
http://www.saflii.org/za/cases/ZACC/1999/8.html

9 At paragraph 43 Dlamini supra

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a. the Court articulated the reasons for a federal right to bail: [f]rom the

passage of the Judiciary Act of 1789, to the present Federal Rules of Criminal

Procedure, Rule 46 (a)(1), federal law has unequivocally provided that a person

arrested for a non-capital offense shall be admitted to bail.

b. This traditional right to freedom before conviction permits the

unhampered preparation of a defense, and serves to prevent the infliction of

punishment prior to conviction. Unless this right to bail before trial is preserved,

the presumption of innocence, secured only after centuries of struggle, would

lose its meaning

c. The Canadian Charter of Rights and Freedoms, Section 11: “Any person

charged with an offence has the right... (e) not to be denied reasonable bail

without just cause.”

d. sticking with Canadian law consider the following passage as an approach

to bail

Each possible form of release is to be considered and ruled out in turn, until the

court comes to the least onerous form of release that would be appropriate in

the circumstances, while being mindful of the necessity of exercising restraint in

the use of detention and imposing conditions of release. The mandated ladder

approach is consistent with the notion of a presumption of release 10

10 Myers, N. M. (2009). Shifting risk: Bail and the use of sureties. Current Issues in Criminal Justice, 21(1): 127-47,
p. 132
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f) The presumption of innocence is a cornerstone of our legal rights in

Canada. Conversely, the restriction of liberty by way of incarceration is one of the

state’s most absolute exercises of power, especially when one is presumed

innocent prior to trial.

The right to present one’s case is also linked to the other rights mentioned in section 35 of the

Constitution and is fundamental to an accused’s right to a fair trial.11

THE RULE OF LAW IS BREACHED WHEN LAW IS NOT APPLIED

In South Africa the onus is on the accused to show why he should get bail yet has no access to

the police docket and thus already has no reasonable opportunity state his case , that is logical

and reasonable to deduce .

The amount of section 35 rights that are simply ignored by the legislative amendment of 1995

and 1997 is simply over whelming begging the question of how it passed constitutional muster

under section 79 of the Constitution.

That the constitutional court can draw the conclusion in the Dlamini case supra, in the way that

it, has can only be achieved when the law is not applied.

The reason proffered by the Judges therein are embarrassingly inadequate.

In Robinson v Jamaica supra at 223/1987 at 241, the HRC considered a case where the

11 http://uir.unisa.ac.za/bitstream/handle/10500/1840/10chapter10.pdf
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accused’s request for adjournment in a murder trial in order to arrange for legal representation,

was denied by the trial court. The Committee found that the refusal raised issues of fairness and

violated art 14(1) of the ICCPR because of the “inequality of arms” between the parties 12

The accused having to produce evidence at bail proceedings is prejudiced in his defense, in his

ability to be treated equally based on preparation for trial.

Most importantly no reasonable person can prepare for a trial of any quality whilst detained as

an awaiting trial prisoner in South African prison conditions.

THE BAIL AMENDMENTS AND DUE PROCESS

The concept of due process derives from clause 39 from the Magna Carta, enacted by King John

of England in 1215. According to clause 39, "No free man shall be seized or imprisoned, or

stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any

other way, nor will we proceed with force against him, or send others to do so, except by the

lawful judgment of his equals or by the law of the land."

Bail thus derives from due process and not once mentioned by the Constitutional Court in

Dlamini.

In the United States, the fifth and fourteenth amendments to the constitution contain due

process clauses. The two most commonly referenced and applied types of due process are

procedural due process, which requires government representatives to follow a specified proper

course of action in dealings with individuals, and substantive due process, which requires

protection of such individual rights as privacy and security. Another element is the protection

12 http://uir.unisa.ac.za/bitstream/handle/10500/1840/10chapter10.pdf
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from vague laws, enacted to ensure that legislation cannot be phrased in an unclear manner

that could enable unjustifiable legal action.

CONCLUSION

The is article does not deal with onus and evidential difficulties related to the requirements of

the unconstitutional and internationally ostracized bail amendments in South African Law such

as by the Pistorius and Dewani case.

One is baffled and strained to understand why the legislation was amended.

Have we not learned from our forefathers who died for constitutional rights to be entrenched

due to the uncivilized and barbaric abuse of power?

If the whole between section 79 of the Constitution and every new piece of legislation is not

plugged our democracy will decline and justice be ill prepared to serve as a deterrent to crime

and no infringement of the bill of rights would logically be interpreted as wisdom.