Section 32(1)(a) of the Constitution states that everyone has the right of access to any
information held by the state (b) any information that is held by another person and that is
required for the exercise or protection of any rights. Section 35 of the Constitution
encompass that an accused person has a right to a fair trial which includes the right to be
informed of the charge with sufficient detail to answer.
The question has arisen whether the accused is entitled to access to documents in the
police file to facilitate the preparation of his defence. The common law position was that
most documents in the police docket were privileged. The court wrestled with the question
whether the blanket privilege as enunciated in Steyn, pass constitutional muster.
However, in Shabalala v Attorney General of the Transvaal the Constitutional court held
that the right to a fair trial required disclosure of information in the police docket. The court
rejected the blanket docket privilege enunciated in Steyn. Steytler approves of the
constitutional Court’s decision to be base the prosecutorial policy to disclose on the right
to a fair trial.
Denial of access to state witnesses statements in the police docket would violate an
accused’s right to a fair trial because an accused who is not fully informed of the case to
meet, may not be able to prepare a plea or defence adequately. It is also possible that
reliability of the prosecution’s evidence will not be adequately challenged if the accused is
not granted prior access to such statements. However, the prosecution can refuse
access, by convincing the trial court that access is not justified for the purpose of a fair
trial. This would depend on the simplicity of the case and degree of information in the
accused’s possession.
(2)
Section 88 and 86 should be read together both from a historical and a contextual
perspective. Both sections are aimed at correcting mistakes or omissions of an essential
nature in the charge sheet (indictment). The provisions of section 88 could automatically
cure a fatal defect in the charge sheet provided that the charge sheet has not been
brought to the attention of the court by any of the parties before the judgement. Section 86
is aimed at request by the state to the court to amend a defect, allegation or omission in
the charge sheet before any judgement.
Section 86 allows for the amendment of charge sheets that defective where
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