LEV3701 Due date: 1 June 2021 Unique number: 807271
Semester 1 Assignment 1 Student number: 55612792 Ashleigh Hala
Question 1
The discussion below will examine whether evidence given by an accused during
his bail application will be admissible against him at the trial. The discussion will
refer to the case of S v Dlamini 1999 (2) SACR 51 (CC), the Criminal Procedure
Act 51 of 1977 (CPA), as well as section 35 of the Constitution.
In the case of S v Botha and Others1 it was held that when an accused gives
evidence in a bail application, he will be protected against self-incrimination.
However, if the accused chooses not to testify then there is a risk that the bail
could be refused.2
According to section 60(11B)(c) of the CPA, the record of bail proceedings forms
part of the record of the trial of the accused after such bail proceedings, provided
that the court must inform him or her that anything said during the bail proceedings
may be used against him or her at the trial and this information becomes
admissible in these proceedings.3
The cases of S v Dlamini4, S v Dladla and Others, S v Joubert and S v Schietekat5
brought the idea of infringement of the right or privilege against self-incrimination
in the form of section 60(11B)(c) before the Constitutional Court to challenge its
constitutionality. In this case, the Constitutional Court stated that this section is
consistent with the common laws that admissible evidence given by the accused
at a bail application can be admitted against the accused at the trial and is further
supported by section 235 of the CPA as well. It was argued in these cases that the
provisions of this section compel the accused to testify in order to be released on
bail and that if the trial is fair the accused should not have to choose. The
Constitutional Court held that there is no conflict between section 60(11B)(c) and
the Constitution, as in each case, evidence from the bail application would be
excluded if it would result in an unfair trial6. This was seen in the case of S v
Basson7 where the court argued that although section 60(11B)(c) states that the
1
(2) 1995 (2) SACR 605 (W).
2
Schwikkard, P.J., 2016, (150).
3
Schwikkard, P.J., 2016, (150.
4
1999 (2) SACR 51 (CC).
5
1999 (2) SACR 51 (CC).
6
Schwikkard, P.J., 2016, (151).
7
2007 (1) SACR 566 (CC).
, LEV3701 Due date: 1 June 2021 Unique number: 807271
Semester 1 Assignment 1 Student number: 55612792 Ashleigh Hala
record of bail proceedings should form part of the trial proceedings, a court can
choose to exclude it if its admission would cause a trial to be unfair.8
Section 35(3)(j) of the Constitution provides that the accused “has the right not to
be compelled to give self-incriminating evidence”.9 Section 35(3)(h) provides
further support to this, in that it states that the accused has “the right to fair trial
which includes the right to be presumed innocent, to remain silent and not to
testify during proceedings”.10 When looking at section 35(3)(h), it would be unfair
to deny the accused bail as a result of their choice not to give evidence.
Section 35(f) and (g) of the Constitution state that the accused has the right to be
informed of the right to be legally represented at trial. The case of S v Aimes and
Another11 shows the importance of the court to uphold these legal provisions, as
when the accused is not legally represented and informed correctly of his rights,
any information obtained from him is seen to be in violation of his constitutional
rights to remain silent and any inclusion of this information results in an unfair trail
and therefore cannot be admissible against the accused.12 In these scenarios
whereby the accused is not informed correctly of his rights, the judgement may
also be set aside according to section 52(3) of the Criminal Law Amendment Act
105 of 1997 if proceedings are seen to go against justice.13
In considering the facts and case law discussed above, South African law is of the
opinion that section 60(11B)(c) is in line with common law and does not conflict
with the Constitution, thus evidence given by an accused during his bail
application is admissible against him at the trial. However, in each case, the
judicial officer needs to consider the specific circumstances of the case and the
accused’s right to a fair trial and exclude this evidence if it would result in an unfair
trail. In addition to this, it is of great importance that the presiding officer in the
case has a duty to ensure that the accused, who agrees to testify, is informed of
their rights and has an understanding that what is said in the bail application can
8
Schwikkard, P.J., 2016, (152).
9
Schwikkard, P.J., 2016, (152).
10
Schwikkard, P.J., 2016, (152).
11
1998 (1) SACR 343 (C).
12
Schwikkard, P.J., 2016, (153).
13
Schwikkard, P.J., 2016, (153).
Semester 1 Assignment 1 Student number: 55612792 Ashleigh Hala
Question 1
The discussion below will examine whether evidence given by an accused during
his bail application will be admissible against him at the trial. The discussion will
refer to the case of S v Dlamini 1999 (2) SACR 51 (CC), the Criminal Procedure
Act 51 of 1977 (CPA), as well as section 35 of the Constitution.
In the case of S v Botha and Others1 it was held that when an accused gives
evidence in a bail application, he will be protected against self-incrimination.
However, if the accused chooses not to testify then there is a risk that the bail
could be refused.2
According to section 60(11B)(c) of the CPA, the record of bail proceedings forms
part of the record of the trial of the accused after such bail proceedings, provided
that the court must inform him or her that anything said during the bail proceedings
may be used against him or her at the trial and this information becomes
admissible in these proceedings.3
The cases of S v Dlamini4, S v Dladla and Others, S v Joubert and S v Schietekat5
brought the idea of infringement of the right or privilege against self-incrimination
in the form of section 60(11B)(c) before the Constitutional Court to challenge its
constitutionality. In this case, the Constitutional Court stated that this section is
consistent with the common laws that admissible evidence given by the accused
at a bail application can be admitted against the accused at the trial and is further
supported by section 235 of the CPA as well. It was argued in these cases that the
provisions of this section compel the accused to testify in order to be released on
bail and that if the trial is fair the accused should not have to choose. The
Constitutional Court held that there is no conflict between section 60(11B)(c) and
the Constitution, as in each case, evidence from the bail application would be
excluded if it would result in an unfair trial6. This was seen in the case of S v
Basson7 where the court argued that although section 60(11B)(c) states that the
1
(2) 1995 (2) SACR 605 (W).
2
Schwikkard, P.J., 2016, (150).
3
Schwikkard, P.J., 2016, (150.
4
1999 (2) SACR 51 (CC).
5
1999 (2) SACR 51 (CC).
6
Schwikkard, P.J., 2016, (151).
7
2007 (1) SACR 566 (CC).
, LEV3701 Due date: 1 June 2021 Unique number: 807271
Semester 1 Assignment 1 Student number: 55612792 Ashleigh Hala
record of bail proceedings should form part of the trial proceedings, a court can
choose to exclude it if its admission would cause a trial to be unfair.8
Section 35(3)(j) of the Constitution provides that the accused “has the right not to
be compelled to give self-incriminating evidence”.9 Section 35(3)(h) provides
further support to this, in that it states that the accused has “the right to fair trial
which includes the right to be presumed innocent, to remain silent and not to
testify during proceedings”.10 When looking at section 35(3)(h), it would be unfair
to deny the accused bail as a result of their choice not to give evidence.
Section 35(f) and (g) of the Constitution state that the accused has the right to be
informed of the right to be legally represented at trial. The case of S v Aimes and
Another11 shows the importance of the court to uphold these legal provisions, as
when the accused is not legally represented and informed correctly of his rights,
any information obtained from him is seen to be in violation of his constitutional
rights to remain silent and any inclusion of this information results in an unfair trail
and therefore cannot be admissible against the accused.12 In these scenarios
whereby the accused is not informed correctly of his rights, the judgement may
also be set aside according to section 52(3) of the Criminal Law Amendment Act
105 of 1997 if proceedings are seen to go against justice.13
In considering the facts and case law discussed above, South African law is of the
opinion that section 60(11B)(c) is in line with common law and does not conflict
with the Constitution, thus evidence given by an accused during his bail
application is admissible against him at the trial. However, in each case, the
judicial officer needs to consider the specific circumstances of the case and the
accused’s right to a fair trial and exclude this evidence if it would result in an unfair
trail. In addition to this, it is of great importance that the presiding officer in the
case has a duty to ensure that the accused, who agrees to testify, is informed of
their rights and has an understanding that what is said in the bail application can
8
Schwikkard, P.J., 2016, (152).
9
Schwikkard, P.J., 2016, (152).
10
Schwikkard, P.J., 2016, (152).
11
1998 (1) SACR 343 (C).
12
Schwikkard, P.J., 2016, (153).
13
Schwikkard, P.J., 2016, (153).
