POPULAR JUSTICE, LATERAL THINKING AND BELIEVING THE IMPOSSIBLE

[Revised from my Article by the same Title — Imbizo: Research in Progress Series, Issue No 1/, 1996, Community Peace Foundation: Groote Schuur, Cape Town)] 

What can be done about the way the common people think of our justice? Some of them find the mere word “trial” terrifying.

 

—Crime and Punishment by Fyodor Mikhail Dostoyevsky

 

 

'l can’t believe that!' said Alice

'Can't you?' the queen said ...
'There's no use in trying 'she said: 'one

Can’t believe impossible things'.

'I dare say, you haven't had much practice',

said the queen.

When I was your age, I always did it for

half an hour a day.

Why, sometimes I've believed as many as

six impossible things before breakfast

 

—Through the Looking Class by Lewis Carroll

 

 

INTRODUCTION

 

Do we need courts, with their rituals, symbols and personae in black robes, who speak their familiar (but not so widely understood) legalese? Are there no other institutions more efficient in the administration of justice than the courts of law? Do we really have to spend (some might say waste) years at University learning how to resolve disputes and problems? There will be those who would consider the very contemplation of such questions sacrilegious and anarchist.

 

Criticism levelled at the legal system is that too many chauvinists have laid claim to the tools regulating the administration of justice and that they do not care about law and order or the safety of the ordinary citizen. Many legal practitioners only guard their own financial interests and professional statuses. Academics too often do not pursue justice, but only abstract ideas for erudite dissertations or articles. Justice should not be allowed to suffocate under these conditions. It should be administered by those directly interested in their own safety and security―the so-called ordinary people. These ordinary people speak the language of fellow citizens and wear the same ordinary clothes of their fellow citizens when administering their justice; they do not walk around in scary black robes.

 

I shall argue that any person who is a citizen of good standing is qualified and competent to be a judge. I shall moot the possibility that we might not even need courts to assist us in solving our problems. Justice is common sense. Years of misguided education have made us insensitive to the art of effective conflict resolution. I shall seek to encourage the appreciation of other, more participative and user friendly ways of resolving disputes and conflict.

 

 

REINVENTING THE WHEEL

 

Dr Edward De Bono, generally considered the leading authority on creative and conceptual thinking, is critical of the ability of acknowledged skilled people, operating within their conventional institutions, to resolve disputes:

 

All those people who have built up skill in the old idiom of conflict thinking, where the thinking is the extension of the conflict, should not assume that that is the only or the best approach to conflict resolution. If we are content to leave conflict resolution to such people then this assumption will be made, and we shall remain stuck forever within an idiom that has shown itself to be inadequate (De Bono 1985:99)

 

We assume that there have to be courts with all the trappings courts are supposed to be endowed. The question which is not asked, however, is whether a court is a precondition for the existence of justice. Someone, sometime long ago, invented the wheel and the construction or invention of a similar utensil is not for such sophisticated souls as we. De Bono criticises our obsession with the familiar and our fear of the untested.

 

It is never easy to abandon familiar figures that have proved their usefulness over and over again. The sense of commitment is very strong. It is difficult to remember the arbitrary nature of the figure which seems to have been discovered, not just created to simplify descriptions. When an unfamiliar figure proves difficult to describe, great efforts are made to try every possible combination of well-tried familiar figures rather than some other figure. But there comes a time when it is necessary to question not the way familiar figures are put together in an explanation, but the familiar figures themselves. (De Bono 1967:61)

 

For centuries we have, as Mark Twain said, allowed our schooling to interfere with our education. We have allowed our intellectual development to be hamstrung by rigid institutionalised schooling. We have come to regard this method of using our intellectual properties as gospel. We ostracise those who criticise the institutions to which we have all our lives been exposed. De Bono puts this point as follows:

 

Why is it that our intelligence has locked us into habits, idioms and institutions that prevent a better use of our intelligence? The reason is that we have developed a thinking system that was appropriate when developed but is now dangerously inadequate. That thinking system has served us well in most areas—except the area of conflict resolution where it is totally useless. This is because the thinking system (based on language, logic and the principle of contradiction) is itself a conflict method. So we apply conflict to the resolution of conflict. (De Bono 1985:2)

 

The unschooled, illiterate, academically unqualified citizens, who have not run the gauntlet of Western intellectual thinking, are prohibited from participating in the administration of justice. How would they ever be able to understand the highly sophisticated, highly refined, highly convoluted art of legal gymnastics that has been so carefully honed for centuries in academic seminars and venerated Courts of law?

 

 

THE BUREAUCRATISATION OF JUSTICE

 

Let us now for a moment believe just one impossible thing: let us consider the abolition of courts. According to French philosopher, Michael Foucault we should not seek a place for popular justice within the conventionally defined constraints of a court. What we should rather ask ourselves is whether there is a place for such a constituted court within acts of popular justice. A court is a means whereby justice could be administered. A court is therefore arguably dispensable:

 

In my view one shouldn't start with the court as a particular form, and then go on to ask how and on what conditions there could be a people's court: one should start with popular justice, with acts of justice by the people, and go on to ask what place a court could have within this. (Foucault 1980:1)

 

Does this suggest that Foucault concedes that there is a place for a court within the parameters of popular justice? Foucault is extremely sceptical, The masses have, for historical reasons, always had a deep-seated mistrust in the judicial system. Also courts set up by the masses themselves, meet with Foucault's disapproval, His rejection of even these courts stems from what he calls their ‘spatial arrangement’.

 

What is 'his arrangement? A table, and behind this table, which distances them from the two litigants, the 'third party', that is the judges, Their position indicates firstly that they are neutral with respect to each litigant, and secondly this implies that their decision is not already arrived at in advance, that it will be made after an aural investigation of the two parties, on the basis of a certain conception of truth and a certain number of ideas concerning what is just and unjust, and thirdly that they have the authority to enforce their decision. (Foucault 1980:8)

 

The spatial arrangement might sound innocuous and even admirable to state court officials: an impartial judge who only reaches a decision after having weighed up the oral evidence. However, an argument along these lines proves that we have been mesmerised by high-sounding Western conceptions of justice. Foucault explains:

 

Now the idea that there can be people who are neutral in relation to the two parties, that they can make judgements about them on the basis of ideas of justice which have absolute validity, and that their decisions must be acted upon, I believe that all this is far removed from and quite foreign to the very idea of popular justice. In the case of popular justice you do not have three elements, you have the masses and their enemies. (Foucault 1980:8)

 

Popular justice is 'profoundly anti-judicial, and is contrary to the very form of the court.' (Foucault 1980:6) The court structure is anathema to the concept of popular justice; the two concepts are mutually exclusive. A court only forces popular justice into a bureaucratic strait-jacket:

 

The court is the bureaucracy of law. If you bureaucratise popular justice then you give it the form of a court. (Foucault 1980;27)

 

Foucault's criticism of the judicial system is not as such a crusade against injustice. He rejects institutions even if the basic rules of natural justice are adhered to: the rule that the other side must be heard and the notion a neutral judge. His concern is with the spatial arrangements, the image of the table, that is, the image of power endemic in any court whether this court produces justice or injustice. The struggle against the judicial institutions should be seen as follows:

 

The anti-judicial struggle is a struggle against power and I don't think that it is a struggle against injustice of the judicial system, or a struggle for improving the efficiency of its institutions. (Foucault 1977:211)

 

One does not necessarily have to call for the abolition of courts, but toying with the idea gives us an excellent practice-run in preparing us to believe the impossible. De Bono teaches us that many things we believe to be impossible are impossible only to the extent that our Western intellectual habits have hampered our creativity. Unschooled people have mastered the art of dispute resolution. These people have not enrolled at Universities for law degrees. The mechanisms they use in dispute resolution, often command more respect from their communities than courts do. These mechanisms are efficient, user friendly, accessible, intelligible and cost effective.

 

 

A PEOPLE'S COURT CASE STUDY

 

In a people's court in Guguletu, Cape Town which I often attended in 1995, ordinary people meet every week to resolve community based disputes. They come voluntarily without having to submit to the jurisdiction by order of court. The stage is immediately set for the amicable dispensation of justice. There are no rules of Evidence and Procedure. There is no presumption of innocence. There is no right to legal representation. The 'judges' are not even necessarily impartial: they are the police, clerks, messengers and orderlies of the court. prosecutors, legal representatives and correctional supervision offices all in one, In short, the proceedings are contrary to the dictates of Western norms that regulate our ordinary courts, and are more likely than not unconstitutional.

 

A complainant presented his argument to the judges. He alleged that his erstwhile girlfriend (the accused) had damaged his window. Yes, she retorted, she had broken the window, but the complainant (her child’s father) had failed to support this child financially. She had gone to his residence to confront him about this; an argument ensued as a result of which she smashed the window. A magistrate in a criminal court would have told her that defence was hardly a defence but at most a plea in mitigation of sentence. She should have gone to the maintenance officer to lay a complaint of failing to pay maintenance. She was wrong to have taken the law into her own hands.

 

In our people's court, no sooner had she raised her defence than the court performed a somersault: the original complainant was there and then marked as the accused on a charge of failing to pay maintenance and the original accused became the new complainant. From the entrails of what we in a criminal court would have called a charge of malicious damage to property, sprang a charge of failing to pay maintenance. The new defendant was at pains to defend himself. There was no question of his objecting to an apparently procedural irregularity. There was no question of his taking the matter on appeal or review. He alleged that his employer had in fact deducted the payments from his salary.

 

The case was thereupon adjourned to the following week. In the meantime the judges established that our newfound accused had told the truth; the reason the complainant had not received the money was that there was a bureaucratic hiccup at the office where she was supposed to have collected it. On the next date of appearance the case was resolved: she was satisfied with the reason for non-payment and she undertook to repair the damage to the window. There was no chance of either party being 'convicted' of any offence. Harmony was restored between the two. Whereas this case would have required two separate trials over perhaps several months in our state court, it was disposed of in our people's court within a week.

 

 

 

THE LEGITIMISATION OF CONFLICT

 

In the following excerpt Dr De Bono refers to the hostile method of resolving disputes that we encounter on a daily basis in our criminal courts:

Like criticism, argument is emotionally attractive. It puts into a more civilised framework the joy of fighting and the potential joy of destroying the other party. Once this innate attractiveness had been legitimised as the proper way to think about things it is no surprise that argument became so pervasive in Western culture. Other cultures do have discussions and disagreements and emotions, but without division into two warring parties. (De Bono 1994:34)

 

The San Francisco Community Boards in the United States employ a method of conflict resolution that is informal, participatory, non-professional and in accordance with the norms of the local community. There is not the violence of imposed, coerced settlements, because the aim is reconciliation, consensus and compromise. (Merry and MiIner 1993:10). This is probably an example of the method of conflict resolution De Bono refers to in the following quotation:

 

There is a very interesting type of conflict resolution that is prescribed by law in certain states of the United States but is not often used because it is not much liked by lawyers. In normal conflict situation both parties start at extreme positions knowing that they will gradually bargain and fight their way to a middle or compromise position. A great deal of time, effort, and expense is involved. In the alternative method, the conflicting parties never meet. Each party 'designs' the most reasonable 'outcome' or conclusion. Both outcomes are placed before a judge or arbitrator. This person has to choose the most 'reasonable’ of the proposed outcomes. Clearly if one suggested outcome is unreasonable and the other is reasonable then the reasonable outcome wins. So both ponies try their hardest to 'design' a reasonable outcome. All the effort which might previously have gone into fighting now goes into 'design'. If both parties do a good job of designing a reasonable outcome then it probably does not much matter which one is chosen by the judge. The interesting point about this procedure is that all the emphasis is placed on design instead of argument. (De Bona 1992:65)

 

The members of the people's court in Guguletu naturally make use of this method of conflict resolution advocated by De Bono. They might not have made a study of these concepts, but they are lateral thinkers by nature. The time has now come for us to teach our intellectuals the art of resolving disputes in a civilised manner.

 

 

CONCLUSION

 

Michael Foucault's views on popular justice are radical. One does not necessarily have to agree with them or argue for their implementation. However, Foucault's approach could serve as a catalyst to jolt us from our complacent stance on the administration of justice. He forces us to make use of a process of thought that is seemingly anti-establishment and illogical. This might nevertheless be very valuable in giving us food for thought in a quest to solve the legitimacy crisis from which the legal profession suffers, In other words, ha urges us to make use of a problem solving technique which De Bono might have called  'Lateral Thinking'.

 

Like Alice we should learn to believe the impossible and to think the unthinkable. We should moot the possibility of abolishing courts. We might eventually realise that a step as radical as this might not be necessary. But, as the Queen advises Alice, we need the practice. Only then we might be able to stimulate a debate on the legitimisation of justice that might change our views and that of society radically. Eventually, this might encourage us to change our judicial system radically.

 

BIBLIOGRAPHY

 

Edward De Bono

 

The Use of Lateral Thinking, Penguin Books, 1967

 

Conflicts: A Better Way to Resolve Them, Penguin Books, 1985

 

Serious Creativity: Using the Power of Lateral Thinking to Create New Ideas, Harper Collins, 1992

 

Parallel Thinking: from Socratic to De Bono Thinking, HCA & Penguin Books, 1994

 

 

Michael Foucault

 

Intellectuals and Power (A Conversation with Gilles Deleuze), in Language, Counter Memory, Practice (selected essays and interviews). Oxford, Basil Blackwell, 1977

 

Power/Knowledge: Selected Interviews and Other Writings (1972-1977), Pantheon, 1980

 

 

Engle Merry and Neil Milner (Editors)

 

The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, University of Michigan Press, 1995

THE CONSTITUITONAL POSITION OF THE SUSPECT

 
Satchwell J unleashed the debate in the discussion at hand in S v Sebejan and Others 1997 (1) SACR 626 (W). The accused was under cross-examination by counsel for another accused who put it to the accused that she had made a statement to the Sergeant. The accused confirmed this. When the cross-examining counsel put this statement to  her, her own counsel contested the admissibility of the statement, arguing that, at the time of making the statement she was a suspect and that she had not, before making her statement, been warned of her right to legal representation. Counsel submitted that this failure rendered the statement constitutionally objectionable and that it should be disallowed as evidence (at 627j-628c).

Judge Satchwell summarised the position with regard to those categories of persons that enjoy constitutional protection as follows:

s 25 of the [Interim] Constitution secures certain rights for 'detained, arrested and accused persons'. According to s 25(1) every detained person has the right to consult with a legal practitioner of her choice and to be informed of this right promptly;   in terms of 25(2) every arrested person shall, in addition to the rights which she has as a detained person, have the right promptly to be informed that she has the right to remain silent and to be warned of the consequences of making any statement; according to s 25(3) every accused person has the right to a fair trial which includes certain specified rights.(at 631a-c).

The conclusion Satchwell J reached was that the accused, at the time of making the statement, was neither an arrested nor an accused person. The Judge held that it would appear that, at first reading, the provisions of the Bill of Rights were not applicable to the accused in casu insofar as she was not an 'arrested or detained person' at the time of making the statement (at 631e).

The questions which fell to be decided were stated as follows by Satchwell J (at 631g-h):

 

(a)   What is a suspect?

(b)   What rights accrue to a suspect?

(c)   Was the accused a suspect at the relevant time? 

With regard to (a), Satchwell J, traversed the definitions of the term ‘suspect’ as contained in the dictionary and case law, and concluded by defining the concept as follows: 

It would appear that a suspect is one about whom there is some apprehension that she may be implicated in the offence under investigation and, it may further be, whose version of events is mistrusted or disbelieved (at 632c-d).

Turning to question (b), the Judge considered The 1931 Judges'Rules which were issued by the executive authorities as administrative directions to be observed by the police. Failure to obey them does not itself render a confession inadmissible, yet these rules (although they are regarded as merely administrative rules of fairness) are not completely without effect: breaches of the rules may be of weight in determining whether a confession had been voluntarily made without undue influence.  

Satchwell J summarised Judges' Rules 1 and as follows: 

In short, non-suspects may be questioned without any cautions or warnings whereas suspects, even in circumstances where answers to questions may establish innocence, should receive the benefit of a caution or warning. The suspect is treated differently and entitled to certain protective cautions not afforded to a mere witness (at 632e-h). 

Thereupon the Judge elaborated on the Constitutional position of an accused person with reference Inter alia to S v Zuma and Others 1995 (2) SA 642 (CC) in which it was held that s25(3) entitled every accused person a right to a fair trial. Although a certain number of rights are enumerated, there is nothing to suggest that these rights are exhaustive and exclusive of any other substantive or procedural protections which would fall within the ambit of a fair trial (at 632i-633a).

Satchwell J concluded that, if the suspect were deprived of the rights accorded an arrested person, a fair trial would be denied the person who was ‘operating within a quicksand of deception while making a statement.’ Pre-trial procedure is a determinant of trial fairness and is implicit in the Constitution and in our common law. A suspect would not have a fair trial ‘where pre-trial unfairness has been visited upon her by way of deception (at 634f-g). 

The fairness and integrity of the criminal process (including the investigatory process) require that the suspect, who is 'at or near the starting point of an investigation, and who operates under a greater disability than does an arrested person, i.e., the disability of deceptive security and ignorance, is no less entitled to the 'guiding hands' and 'checking mechanism' than an arrested person who becomes an accused. Furthermore, the trial procedures require no less to be uncorrupted by impropriety and unfairness where the statement of an accused person tendered to the court was made when that accused was a suspect (at 635a-c). 

The temptation should not exist that accused persons, who must a fortiori have once been suspects, are not advised of rights to silence and to legal representation and never receive meaningful warnings prior to making statements which are subsequently tendered against them in their trials because it is easier to obtain such statements from them while they are still suspects who do not enjoy constitutional protections. The prospect exists that statements tendered as evidence would always emanate from suspects and that the constitutional protections accorded to arrested persons prior to making statements or pointing out would become underutilised anachronisms.(at 635g-i). 

In the result, with regard to question (b), Satchwell J concluded that: 

No less than an accused is the suspect entitled to fair pre-trial procedures. These include the rights which would accrue to an accused when arrested: the right to remain silent and the right to be informed of the right to remain silent; the right to be informed of the consequences of making any statement; the right to choose and to consult with a legal practitioner and to be informed of this right promptly (at 636a-b).

 

However, the conclusion Satchwell J reached, on the facts, regarding question “c” was that the accused was not a suspect at the time of making her statement and therefore, in any event, not entitled to the Constitutional protection as outlined above (at 637f-g). This view apparently renders the opinion given by Satchwell J obiter, as would be seen below in which other courts refused to follow the exposé of the law given in Sebejan whereby suspects should be granted Constitutional protection.

In S v Ndlovu BCLR 1997(12) 1785 Magid J was prepared to assume that the statement in Sebejan that a suspect is entitled to some protective cautions was correct (at 1791c). However, the Judge had some reservations as to the definition of a suspect in terms of which it was held that ‘a suspect is one about whom there is some apprehension that she may be implicated in the offence under investigation. . . ‘. The concern of Magid J revolves around whether the phrase ‘some apprehension’ does not set the standard too low. In other words, does this definition contemplate the inclusion of too many persons under the term ‘suspect’? However, the Judge nevertheless agreed with the view expressed in Sebejan that there must at least be some ‘offence under investigation before anybody can be a suspect in relation thereto.’ (at 1792b). 

In S v Van der Merwe 1998 (1) SACR 194 (O) the question which presented itself was whether there was a duty on the investigating officer, over and above warning the accused in terms of the Judges’ Rules, to draw the accused’s attention to the provisions of the Constitution. Gihwala AJ could find nothing in the Constitution to this effect and was of opinion that the provisions of the Constitution regarding the rights of detained, arrested and accused persons must be read with those provisions of the Criminal Procedure Act and other authorities and must not be viewed in isolation. When a person is warned in terms of the Judges’ Rules, effect is given to the provisions of the Constitution as the nature and extent of the Judges’ Rules will lead to the proper protection of the rights of the arrested and/or accused (at 199h-200b). 

In S v Langa and Others 1998 (1) SACR 21 (T) the defence argued that the accused had not properly been informed of her right to consult with a legal practitioner of her choice in terms of s 25(1)(c) of the Interim Constitution. It was furthermore argued that the provisions of s 25(2)(a) and (c), (namely the right to remain silent and not being compelled to make an admission which could be used against her) had not been complied with. MacArthur J held that neither of these submissions was relevant in the matter at hand. The reason being that accused 1 had not been detained by the police at the time she volunteered the information and neither had she been arrested which is what is required in s 25(2).  

The use of the word 'detained' in s 25(1) is intended in my judgment to deal with situations where the person is incarcerated, as for example illegal immigrants. It does not deal with the situation where a policeman stops a person of whom he has cause to be suspicious and asks him what he is doing. These two subsections do not therefore apply in this case (at p27a-b). 

The Judge thereupon embarked upon the debate unleashed in Sebejan regarding the position of the suspect. 

The facts in that case are distinguishable from the present and in any event the discussion on these rights is obiter as the accused in that case was held not to be a suspect. In the circumstances I decline to follow it (at 27b) 

Pickering J in S v Mthethwa 2004 (1) SACR 449 (E) held that it was important to bear in mind that at the time he was questioned appellant was neither an arrested nor an accused person and that in these circumstances, the provisions of s 35 of the Final Constitution, which deal with the rights of arrested, detained and accused persons, were not of relevance. This is the case despite what was stated by Satchwell J in Sebejan, where it was held that a suspect who becomes an accused is entitled to fair pre-trial procedures which include the rights under s 25(3) of the interim Constitution accruing to an accused when arrested. Pickering J held that the decisions in Ndlovu and Van der Merwe in which no pre-trial Constitutional protection as such was given to the suspect, were correctly decided (at 453i). 

Turning to the definition of ‘suspect’, Pickering J found that the appellant was clearly a suspect, ‘even if the standard set by Satchwell J in this regard is to be raised (at 454h-i). 

In S v Orrie 2005(1)SACR 63(C) Bozalek J, pointing out that it is in s35 of the Constitution where the rights of arrested, detained and accused persons reside, held that it is likewise there that the rights of a suspect must be found. Conceding that no specific provision is made for a suspect to be informed of his or her status as a suspect, it nevertheless stands to reason that a person must be informed of this status, or at least be aware thereof, in order to properly consider and exercise the rights before interacting with the police (at 68j-69a).

 

The Judge gave an overview of the opinions expressed in the cases mentioned above in which the decision of Satchwell in Sebejan was critically considered (at 69d-f). Bozalek J concluded that, notwithstanding a judicial reluctance to extend the right to fair pre-trial procedures already enjoyed by arrested, detained and accused persons to suspects, the reasoning in Sebejan  was persuasive, thereby concurring with the conclusion reached by Satchwell J that, no less than an accused, a suspect is entitled to fair pre-trial procedures. An interpretation of the relevant provisions of s 35, extending them to suspects is, Bozalek J held, in keeping with a purposive approach which has regard to the interests which the rights were intended to protect (at 69h-70a). The Judge also reiterated the views expressed in Seberjan in which Satchwell J referered to the Constitutional Court decision in S v Zuma and Others.  The Judge also held that this approach is endorsed by the authors of South African Constitutional Law: The Bill of Rights.(Cheadle, Davis & Haysom) In which they observe that the Constitution's pre-trial rights should be extended to suspects lest investigating authorities simply left potentially accused persons in the category of 'suspect', enabling themselves to collect evidential material from the 'unwary, 'unsilent', unrepresented and unwarned suspect' (at 69g-70c). 

In S v Khan 2010(2) SACR 476 (KZP) Swain J held that what is common to all of the decisions above is that suspects are entitled to ‘certain protective cautions’. Sebejan and Orrie, on the one hand, and Ndlovu, Langa, Van der Merwe and Mthethwa, on the other, are to be distinguished in the manner in which these ‘protective cautions’ are extended to a ‘suspect’, as well as the nature and ambit of such ‘protective cautions’ (at par [21]). Swain J as follows distanced himself from the opinions expressed in Sebejan and Orrie: 

In my view, the provisions of s 35 of the Constitution of the Republic of South Africa Act, 1996, apply only to 'arrested', 'detained' or 'accused' persons. Due weight being afforded to the reasoning of Satchwell J in Sebejan and Bozalek J in Orrie, I am, with respect, not persuaded that the provisions of s 35 of the Constitution are applicable to 'suspects' (at par [22]) 

Swain J agreed with Gihwala AJ in Van der Merwe that the rights of ‘suspects’ were adequately protected by the well-established provisions of the Judges' Rules and that when a person is cautioned in terms of these Rules, actual expression is given to the provisions of the Constitution. A caution in terms of the Judges' Rules would suffice and that a further warning in terms of the Bill of Rights pertaining to arrested and detained persons would not be applicable (at par [22]). 

Citing Magid J in Ndlovu with approval, Swain J held that he did not intend to minimise the necessity of abiding by the constitutional rights of suspects. However, it is also important not to hamstring the police in their investigation (at par [23]). Casting an obligation upon the police, not only to caution suspects in terms of the Judges' Rules, but also to advise them of the rights contained in s 35 of the Constitution, would not serve to strike an even balance between the competing interests of the suspect and the police (at par [24]).

BAIL MANUAL FOR SOUTH AFRICAN PRCTITIONERS

(Revision in Progress)

[Unless otherwise stated, all statutory citations refer to the Criminal Procedure Act (51 of 1977)]

 

GROUNDS FOR REFUSING BAIL

1)     There are 5 grounds on which bail could be refused [s60(4)(a)-(e)];

2)     For the factors which  could be taken into account in for refusal, consult s60(5)-(8A).

 

In other words:

When bail is opposed in terms of —

s60(4)(a)— the factors laid down in s60(5) may be relied on.
s60(4)(b)— the factors laid down in s60(6) may be relied on
s60(4)(c)— the factors laid down in s60(7) may be relied on
s60(4)(d)— the factors laid down in s60(8) may be relied on
s60(4)(e)— the factors laid down in s60(8A) may be relied on

3)     There isn’t a fixed number (numerus clausus) of grounds for refusing bai; other grounds not specified may be considered.

 

S v Mbele and Another 1996 (1) SACR 212 (W) at 223g

On general principles, there can be no numerus clausus of the grounds which may be sufficient to justify the conclusion that it is in the interests of justice that an accused person should not be released on bail, and the Legislature should not be understood as having established an exhaustive list of grounds. In my judgment this submission was correct.

 4)               The grounds for refusal (s60(4)) are essentially a codification of the Common Law (so are the factors contained in s60(5)-(8A));

5)               Therefore cases dealing with the Common Law are still relevant;

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [39]

The practical superstructure was provided in s 60(4), as supplemented by sub-ss (5) to (8A), read with sub-ss (9) and (10).  Here the legislature, drawing on the case law as collated in S v Acheson, [1991 (2) SA 805 (NBmH)] tabulated the various criteria that ordinarily bear on the question whether or not bail should be granted in a particular case and, if it should, what conditions should be imposed.

 6)     All the endings of s60(5)-(8A) are as follows: “any other factor which in the opinion of the court should be taken into account.”;

7)     All these subsections are constructed in an “open-ended” manner;
8)     Therefore, regard could be had to other unspecified factors.

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC)par [44]

Because we are dealing with optional criteria, it is logical that each of sub-ss (5) to (8A), in spelling out the components of the criteria, appends at the end of its list of specific factors a deliberately vague hold-all provision permitting any other factor to be taken into account.  A court is thus told it may look beyond the listed factors and, even if it does find criteria (listed and/or unlisted) which could tilt the scales against bail, it must ultimately make its own evaluation.  A permissive interpretation of sub-s (4) is  therefore borne out by the very fact that the succeeding subsections are open-ended.

9)     Also note that, unlike all the other subsections, s60(4)(e) opens as follows: “where in exceptional circumstances . . . ”;

10) This means that s 60(4)(e) can be relied on only if the court is convinced that “exceptional circumstances” existed;
11) The s60(8A) factors are wide ranging and drastic;
12)  However, “exceptional circumstances” need only be proved on a “balance of probabilities”;
 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [57]

It is important to note that sub-s (4)(e) expressly postulates that it is to come into play only “in exceptional circumstances”.  This is a clear pointer that this unusual category of factors is to be taken into account only in those rare cases where it is really justified.  What is more, sub-s (4)(e) also expressly stipulates that a finding of such exceptional circumstances has to be established on a preponderance of probabilities (“likelihood”).

 13) The s60(5)-(8A) factors are good guidelines in determining grounds for bail refusing bail;

14) Evidence could be led with reference to these factors.

 

EVIDENTIARY AND PROCEDURAL CONSIDERATIONS

1)     Many of the factors require reliance on not only past, but also future probable conduct of the arrested;

 

S v Thornhill 1998 (1) SACR 177 (C) at 182e-f

The determination of the question whether the applicant for bail will abscond and forfeit bail essentially involves an enquiry into the probable future conduct of the applicant. This future conduct has to be determined on the basis of information relating, inter alia, to the applicant's past conduct. What has to be determined, therefore, is not a fact or a set of facts but merely a future prospect which is speculative in nature even though it is based on proven facts.  F  Ellish en Andere v Prokureur-generaal, WPA 1994 (2) SACR 579 (W).

2)     The question to be considered is whether there is a “likelihood” (a probability) that an arrested might or might not (in the future) e.g., abscond, intimidate witnesses, tamper with evidence, commit crimes, etc. if released on bail;

3)     To prove this, Prosecutors could adduce evidence not ordinarily all that easily admissible in criminal trials;
4)     In fact, bail proceedings are not criminal trials with ordinary rules of procedure and evidence;
5)     Evidence can generally be presented less formally, with  more liberal reliance on e.g., hearsay, documentary and character evidence;
6)     Although evidence can be tendered by affidavits, its probative / evidentiary value manner, its probative value is less than that of oral evidence;
7)     The reason is that, unlike evidence by affidavit, oral evidence can be subjected to cross examination.

 

S v Pienaar 1992 (1) SACR 178 (W) at 180h

In my view therefore there is nothing in the Criminal Procedure Act that renders the use of affidavits in bail applications impermissible.  Obviously an affidavit will have less probative value than oral evidence which is subject to the test of cross‑examination.  At the same time an affidavit will carry more weight than a mere statement from the Bar.

PERSONAL CIRCUMSTANCES OF THE ARRESTED¾ S60(9)

1)     The Defense could rely on s60(9) to prove that the interests of justice permit release;

2)     Evidence could be led on the likelihood of prejudice suffered upon the infringement of the right to personal freedom due to further detained;
3)     The court would have to consider these personal circumstances;
4)     The Prosecutor could in response lead evidence on e.g.,: the reasons for any delay, the nature of the investigation, how long the investigation would still last, measures taken, and will thenceforth be taken, to alleviate prejudice;
5)     But prejudice there will always be and this is not necessarily unreasonable and unjustifiable in an open and democratic society based on human dignity, equality and freedom (see s36 of the Bill of Rights, albeit applied in  a different context);
6)     One should therefore not shy away from the consequence that refusal to grant bail might entail infringement on the right to freedom;
7)     Arrested persons (or anyone for that matter) doesn’t have an “absolute right to freedom”.

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [79] 

It should of course never be forgotten that the Constitution does not create an unqualified right to  personal freedom and that it is inherent in the wording of s 35(1)(f) that the Bill of Rights contemplates - and sanctions - the temporary deprivation of liberty required to bring a person suspected of an offence before a court of law.  The hypothesis, indeed the very reason for the existence of s 35(1)(f), is that persons may legitimately and constitutionally be deprived of their liberty in given circumstances. This clearly establishes that unless the equilibrium is displaced, an arrestee is not to be released.

 8)     However, Prosecutors must nevertheless ensure that all investigations are finalised promptly and expeditiously;

9) Of the most potent arguments the defense could use is that the State is dragging its feet.

 

SECTION 60(11)

The procedure to be followed in a bail application would depend on the gravity of the offence. I’ll deal only with offences listed in schedule 5 and 6: offences governed by the provisions of s 60(11). In practice most bail applications revolve around these more serious offences.

Substantive Provisions of s 60(11)

 

1)  If the offence is listed in either schedule 5 or 6 the reverse onus provisions of s60|(11) apply;
2)  Therefore the arrested must satisfy the court that the interests of justice permit their release. 

See: S v Dlamini [par 61]; S v Mbele & Others at p. 220h-221a; S v Vermaas 1996 (1) SACR 528 (T) at .529 – 530; S v Shezi 1996 (1) SACR 715 (T) at p718a; S v Shezi 1996 (1) SACR 715 (T) at 718a-d; S v Tshabalala 1998 (2) SACR 259 (C) at 269g-h; S v Jonas & Others 1998 (2) SACR 677 (SE)  Horn AJ 

3)  Regarding schedule 6 offences, the arrested must furthermore prove that “exceptional circumstances” existed which in the interests of justice permitted release;

4)  As for schedule 5 offences, the “exceptional circumstances” requirement needn’t be proved;
5)  An arrested need only prove that the interests of justice permitted release;
6)  Note that the onus is on the arrested.

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) at par [60]

The difference between the two subsections, therefore, lies in the requirement that an accused on a sch 6 charge must adduce evidence to satisfy a court that “exceptional circumstances” exist which permit his or her release.  An arrested on a sch 5 charge, while obliged to adduce evidence, need only satisfy the court that “the interests of justice” permit his or her release. 

7)  This onus need be discharged on a balance of probabilities only.

 

See: S v Tshabalala 1998 (2) SACR 259 (C) at 269g-h; S v Vermaas 1996 (1) SACR 528 (T) at 539b-540b

This is in line with the common law: See, e.g., S v Hlongwa 1979 (4) SA 112 (D) at 113h; S v Mataboge and Others 1991 (1) SACR 539 (B) at 543f; Aitken and Another v Attorney‑General, Zimbabwe 1992 (2) SACR 296 (ZS) at 298 g-h

8)  Note, this onus can only be discharged by “adducing evidence”;T

9)  The defense can’t simply make informal statements from the bar;
10)       The arrested can also not address the court informally from the dock without having been sworn in.

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [61]

Under sub-s (11)(a)  the lawgiver makes it quite plain that a formal onus rests on a detainee to “satisfy the court”.  Furthermore, unlike other applicants for bail, such detainees cannot put relevant factors before the court informally, nor can they rely on information produced by the prosecution; they actually have to adduce evidence.

 

Formulating a Charge Sheet for the Purposes of s 60(11)

1)     Although there is an onus on the arrested, Prosecutors must first convince the court that the offence as set out in the charge sheet is governed by s60(11);

2)     Prosecutors can’t simply hand in a blank or incomplete charge sheet, thereby expecting to saddle the arrested with an onus;
3)     Under these circumstances the court might find that there is not an onus on the arrested, but on the state, the prosecution having failed to lay the basis for relying on s60(11);

Prokureur-generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (O) (at 160c)

Hoe dit ookal sy, ek is van mening dat daar geensins gesê kan word of bevind kan  word dat die appellant ooit behoorlik aangekla was van huisbraak en diefstal van meer as R500 000 nie. Gevolglik het ek geoordeel dat daar geen bewyslas op die appellant gerus het om enigiets te bewys nie.

See also: S v Shezi 1996 (1) SACR 715 (T) at 718;  S v Stansfield 1997 (1) SACR 221 (C) at 229a-c

 4)     The particulars Prosecutors give of the charge must be such that the charge sheet prima facie discloses a schedule 5 or 6 offence;

5)     If Prosecutors alleged that the arrested committed e.g., a schedule 6 premeditated murder, this must at least be alleged;
6)     In cases governed by s 60(11) arrested persons face a difficult task to discharge the onus, especially regarding the s60(11)(a) (Schedule 6)  “exceptional circumstances” requirement;
7)     The Constitutional Court held that the fact that the arrested persons indeed faced this “uphill battle” meant that they should be given a fair chance to discharge the onus.

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [80]

They are indeed faced with an uphill battle, and they have to be given a fair chance, e.g. by ordering the prosecutor to furnish sufficient details of the charge(s) to enable the applicant to show why the circumstances are exceptional. Freedom is a precious right protected by the Constitution, that is why the subsection specifically requires that sch 6 arresters facing the more formidable hurdle of sub‑s (ll)(a) be afforded this opportunity.

 

8)     Prosecutors might have to give summaries of allegations (similar to a the High Court indictment);
9)     Prosecutors might even have to initiate the proceedings, presenting evidence before the arrested;
10) This however, wouldn’t mean that the state has an onus in respect of the proceedings on the whole;
11) Under these circumstances it could be said that Prosecutors would have the burden to initiate the proceedings (“'n beginslas”).

 

S v Shezi 1996 (1) SACR 715 (T) 718a-d

 Waar die Staat derhalwe staatmaak op die bepaling van art 60(11), soos gewysig, moet daar by wyse van 'n volledige klagstaat waarin die volle besonderhede van die misdryf uitgespel word, dit wil sê dit moet duidelik wees dat die beskuldigde aangekla word van 'n misdryf soos bedoel in art 60(11)(a), soos gewysig, anders moet daar feite voor die hof geplaas word óf by wyse van 'n erkenning óf deur middel van getuienis waaruit dit duidelik aangetoon word dat art 60(11), soos gewysig, van toepassing is op daardie betrokke beskuldigde.

 

12) The court must also direct Prosecutors to place evidence on record to clarify any uncertainty.

 

Legislative Assistance for Laying a Basis with regard to s60(11)

 

1) If Prosecutors foresee difficulties convincing the court that the offence is a schedule 5 or 6 offence, they could apply for a written confirmation from the DPP to this effect. [(s60(11A)(a))];
2) The DPP may at any time before plea, issue a notice to the effect that the DPP intends charging the arrested with such offence;
3) The DPP can issue this confirmation irrespective of what charge is specified on the charge sheet;
4) Should a dispute arise on the nature of the offense, the written confirmation shall, upon its mere production at such application or proceedings, be prima facie proof of the charge. [(s60(11A)(c)];
5) However, Prosecutors must hand the written confirmation in at the court as soon as possible after its issuing by the DPP [(60(11A)(b)];
6) This document will form part of the court record [s60(11A)(b)];
7) Prosecutors could also request a postponement for up to 7 days at a time to apply for such certificate [s 50(6)(d)(ii)].

 

Duty to Oppose Bail in respect of s 60(11) Offenses

 
1)     Prosecutors must oppose bail in schedule 5 or 6 matters;
2)     Should they decide not to oppose bail, the court must (shall) require them to place on record reasons for not doing so. [s60(2)(d)];
3)     The fact that the court must ask Prosecutors for reasons for not opposing bail (and record those reasons) means that Prosecutors could be brought to book upon failing to oppose bail.