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LEV3701 Assignment 1 semester 1 2021 solutions/answers
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LEV 3701 ASSIGNMENT 1SEMESTER 1 2021 SOLUTIONS/
ANSWERS
ANSWERS FOR LEV 3701
UNISA
, LEV 3701 Assignment 1 semester 1 2021
Question 1
The Constitutional Court in S v Dlamini; S v Dladla; S v Joubert; S v
Schietekat,12 when confronted with the constitutional validity of section
60( 11 BHc) of the Criminal Procedure Act, also indicated that the right to
remain silent was the governing principle. The court explained that the issue
was not so much the right of an arrested person to be released on bail,but
the ~different constitutional right enjoyed by every person, upon arrest and
thereafter, to remain silent. The court indicated that this right was expressed in
the following number of complementary ways in the Constitution:
• to remain silent while under arrest;
• not to be compelled while under arrest to make any confession or admission
that could be used in evidence against that person;
• to be presumed innocent, to remain silent, and not to testify at trial; 16 and
• not to be compelled to give self-incriminating evidence at trial.
Section 60{11 B){c) of the Criminal Procedure Act provides as follows:
The record of bail proceedings, excluding the information in paragraph (a), 84
shall form part of the record of the trial of the accused following upon such bail
proceedings: Provided that if the accused elects to testify during the course of
the bail proceedings the court must inform him or her of the fact that anything
he or she says, may be used against him or her at his or her trial and such
evidence becomes admissible in any subsequent proceedings.
It seems that the legislature with section 60( 11 B) intended to target testimony
by the accused. However, the first part of section 60(11 B){c) provides that the record of the bail
proceedings, which would, for example, include the
testimony by the investigating officer objecting to the granting of bait forms
part of the record of the subsequent criminal trial. On a literal interpretation,
the record of proceedings at the bail hearing, excluding testimony by the
accused, will therefore in any event form part of the trial record. If the accused
is informed of the consequences and he elects to testify, that testimony is
admissible at the subsequent criminal trial. Only the admissibility of evidence
tendered by the accused is considered here.
Even though it is not indicated for which purpose the prior testimony may be
used at the trial, I do not think that the intention of the legislature was that the
evidence presented at the bail hearing by the accused should form part of the
state case at the trial. 86 Using the evidence as part of the state case would
clearly be an unjustifiable infringement of sections 35(3)(h) and 35(3)(j) of the
Final Constitution. It therefore seems that the intention must have been to
use the prior testimony for purposes of cross-examination. I am of the opinion
that the use of the prior testimony to incriminate an accused during cross-
examination at trial would similarly be an unjustifiable infringement of sections 35(3Hh) and
35(3)(j). But section 60(11 BHc) does not differentiate between
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