SUBJECT: LEV3701
LAW OF EVIDENCE
SEMESTER 1 – ASSIGNMENT 1
DATE: 1 JUNE 2021
100%
QUESTION 1:
1
, In a bail application, the proceedings are sui generis. A bail hearing is a novel judicial
function and is interlocutory in nature1. A bail inquiry is afforded a greater inquisitorial power
to ensure that all material variables are brought into account2. In S v Maki en Andere3, the
court pointed out that bail applications are not criminal proceedings. Henceforth, the rules
of evidence applicable in criminal proceedings are not strictly adhered to in bail applications.
In a bail application, the judicial inquiry is not concerned with the determination of guilt as
the proceedings are not concerned with securing a conviction against the accused person,
nor punishment4. That is the duty of the trial court5. Schwikkard contended, at bail
proceedings the court is only concerned with the question of possible guilt to the extent that
it may have a bearing on whether the interests of justice permit the release 6. An applicant
has a right to bail in our law, but a circumscribed one, to be released from custody subject
to reasonable conditions.
The Criminal Procedure Act7, in Section 60(11B) (c) explicitly provides for the admissibility
of evidence given by the accused in bail proceedings. The provision provides that:
‘The record of the bail proceedings, excluding the information in paragraph (a)8, 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.’
The locus classicus with regard to the constitutionality of issues concerning bail is the
decision by the Constitutional Court in S v Dlamini; S v Dladla; S v Joubert; S v Schietekat9.
In casu, section 60(11B) (c) was challenged on the grounds that it infringed, inter alia, the
constitutional right against self-incrimination10. The legal question in Dlamini11, was whether
the Constitution inevitably and without anything more renders the assertions made by an
accused person when applying for bail inadmissible at that person’s subsequent trial. The
admissibility of the record of the bail proceedings was challenged on behalf of the appellant.
The crux of the objection was that, under the Constitution, at a bail application statements
by an accused person are in principle never admissible against him or her at trial. This
section, however, survived the constitutional muster. In casu, the court held that, in spite of
the fact that there was a certain tension between the right of an accused to put forth a case
for release on bail and the cluster of rights under s35 of the Constitution, that tension was
1 S v Dlamini 1999 (1) SACR 51 (CC) – para 11
2 S v Mabena 2007 (1) SACR 482 (SCA)
3 1994 (1) SACR 51 (CC) – para 11
4 A. Maharaj “Confident Criminal Litigation” (Lexis Nexis 2010)
5 S v Dlamini – para 63
6 S v Schietekat 1998 – para 713h – 714a
7 51 of 1977
8 Section 60(11B) (a) of the CPA- ‘In bail proceedings the accused, or his or her legal adviser, is compelled to inform the court
whether –
(i) the accused has previously been convicted of any offence; and
(ii) there are any charges pending against him or her and whether he or she has been released on bail in respect of those
charges.
9 1999 (7) BCLR 771 (CC)
10 Section 35(3)(j) of the Constitution, 1996 ―every accused person has the right to a fair trial, which includes the right not to be
compelled to give self-incriminating answers.
11 In Dlamini, at his arraignment the appellant pleaded not guilty to charges of murder and robbery, intimating through his counsel
that his defence was an alibi. The prosecution adduced no direct evidence linking the appellant with the crimes, but his alibi was
dealt with a dead blow when the prosecution proved that, shortly after his arrest and while asking for bail in the mag court, the
appellant had told the presiding officer that he had been present when the crimes were committed by his co-accused but had acted
under compulsion by the latter.
2
LAW OF EVIDENCE
SEMESTER 1 – ASSIGNMENT 1
DATE: 1 JUNE 2021
100%
QUESTION 1:
1
, In a bail application, the proceedings are sui generis. A bail hearing is a novel judicial
function and is interlocutory in nature1. A bail inquiry is afforded a greater inquisitorial power
to ensure that all material variables are brought into account2. In S v Maki en Andere3, the
court pointed out that bail applications are not criminal proceedings. Henceforth, the rules
of evidence applicable in criminal proceedings are not strictly adhered to in bail applications.
In a bail application, the judicial inquiry is not concerned with the determination of guilt as
the proceedings are not concerned with securing a conviction against the accused person,
nor punishment4. That is the duty of the trial court5. Schwikkard contended, at bail
proceedings the court is only concerned with the question of possible guilt to the extent that
it may have a bearing on whether the interests of justice permit the release 6. An applicant
has a right to bail in our law, but a circumscribed one, to be released from custody subject
to reasonable conditions.
The Criminal Procedure Act7, in Section 60(11B) (c) explicitly provides for the admissibility
of evidence given by the accused in bail proceedings. The provision provides that:
‘The record of the bail proceedings, excluding the information in paragraph (a)8, 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.’
The locus classicus with regard to the constitutionality of issues concerning bail is the
decision by the Constitutional Court in S v Dlamini; S v Dladla; S v Joubert; S v Schietekat9.
In casu, section 60(11B) (c) was challenged on the grounds that it infringed, inter alia, the
constitutional right against self-incrimination10. The legal question in Dlamini11, was whether
the Constitution inevitably and without anything more renders the assertions made by an
accused person when applying for bail inadmissible at that person’s subsequent trial. The
admissibility of the record of the bail proceedings was challenged on behalf of the appellant.
The crux of the objection was that, under the Constitution, at a bail application statements
by an accused person are in principle never admissible against him or her at trial. This
section, however, survived the constitutional muster. In casu, the court held that, in spite of
the fact that there was a certain tension between the right of an accused to put forth a case
for release on bail and the cluster of rights under s35 of the Constitution, that tension was
1 S v Dlamini 1999 (1) SACR 51 (CC) – para 11
2 S v Mabena 2007 (1) SACR 482 (SCA)
3 1994 (1) SACR 51 (CC) – para 11
4 A. Maharaj “Confident Criminal Litigation” (Lexis Nexis 2010)
5 S v Dlamini – para 63
6 S v Schietekat 1998 – para 713h – 714a
7 51 of 1977
8 Section 60(11B) (a) of the CPA- ‘In bail proceedings the accused, or his or her legal adviser, is compelled to inform the court
whether –
(i) the accused has previously been convicted of any offence; and
(ii) there are any charges pending against him or her and whether he or she has been released on bail in respect of those
charges.
9 1999 (7) BCLR 771 (CC)
10 Section 35(3)(j) of the Constitution, 1996 ―every accused person has the right to a fair trial, which includes the right not to be
compelled to give self-incriminating answers.
11 In Dlamini, at his arraignment the appellant pleaded not guilty to charges of murder and robbery, intimating through his counsel
that his defence was an alibi. The prosecution adduced no direct evidence linking the appellant with the crimes, but his alibi was
dealt with a dead blow when the prosecution proved that, shortly after his arrest and while asking for bail in the mag court, the
appellant had told the presiding officer that he had been present when the crimes were committed by his co-accused but had acted
under compulsion by the latter.
2
