Aqeel Peermamode

ST10083016
Criminal Procedure
CRUN7112
Introduction

The rights and obligations of the prosecution and the accused are distinct. The
prosecutor must establish the accused's guilt beyond a reasonable doubt. The onus
is not on the accused to establish their innocence. During the procedures, the
accused has the right to remain silent and to refuse to testify. Firstly, this essay
seeks to discuss the right to remain silent of the accused as it is provided in section
35 of the Constitution against the fair trail concept. Secondly, this essay will discuss
the principle of competent legal representation.

Section 35(1)(a) and (c) of the Constitution: the right to remain silent and the
right not to be compelled to make a confession or admission that could be
used in evidence against that person.

Section 203 of the Criminal Procedure Act provided that: “No witness in criminal
proceedings shall, except as provided by this Act or any other law, be compelled to
answer any question which he would not on the thirtieth day of May, 1961, have
been compelled to answer by reason that the answer may expose him to a criminal
charge.”1 One of the most strongly protected rights in the South African Constitution
is the right to remain silent. Every suspect is entitled to remain silent and cannot be
compelled to provide a confession or admission that could be used against them, as
it is provided in section 35(1)(a) and (c), correspondingly. The stipulations of section
35(3)(h), which provides an accused person with the right to be presumed innocent,
to remain silent, and to refrain from testifying during the proceedings—termed as the
presumption of innocence—further endorses these rights. 2 Under common law, a
person's privilege to conceal information that could incriminate him in unlawful
activities was recognized. Fundamentally, the common law safeguard against self-
incrimination focused on the specific context of protecting a witness from being
compelled to give testimony in court.3

Section 35 (3) (j) of the Constitution provides that “every accused person has a right
to a fair trial, which includes the right . . . not to be compelled to give self-

1
Section 208 of the criminal procedure act 51 of 1977.
2
The Constitution of the Republic of South Africa, Act 108 of 1996.
3
C Theophilopoulos ‘The influence of American and English law on the interpretation of the South African right
to silence and the privilege against self-incrimination’ (2005) 19 Temple International and Comparative Law
Journal 387 at 391.
incriminating evidence”.4 It is a widely recognized legal principle that the accused
has the right to remain silent during the trial. Since section 60(11B)(c) of the Criminal
Procedure Act permits the trial court to rely on the same evidence to assess the
accused's culpability, it is also widely recognized that the bail court is not restricted to
considering only the evidence submitted by the accused during the bail application
process when deciding on bail approval.5 Consequently, any incriminating evidence
the accused presented during the bail proceedings can be used against them at trial
by the State, and it usually will be. The safeguard against self-incrimination at trial
may be weakened if the bail applicant declines to respond to incriminating questions
in the bail hearings.

In the case of Ferreira v. Levin and Others the Act permitted the employment of an
investigative inquiry, allowing a company's liquidator to investigate the location of
assets for the benefit of the creditors. To accomplish this, the liquidator could
subpoena anyone and ask them to answer questions regarding where the
company's assets are located. The subject of the examination is required to answer
all questions in accordance with Section 417(2)(b), even if doing so could result in
criminal proceedings against him. Because it violated the accused's right not to be
coerced into testifying against their will throughout the trial, the court declared the
section to be unlawful. Importantly, the court determined that the problematic clause
might not have been ruled unconstitutional if the legislature had granted the
examinee immunity from the use of the coerced evidence during the trial. The
examinee would still have been compelled to answer self-incriminating questions
during the investigation, but his protection against coerced self-incrimination would
have been safeguarded at any further trial. The State's attempt to use the
incriminating inquiry evidence against the defendant would have been unlawful.6

Right to silent v Fair trail

The minority judgment (Goldstone J and O'Regan J) in the Thebus case is intriguing
and captivating to examine. The court found that the warning on the right to remain
silent, as it stands, is fundamentally unjust because it presents the accused with the
choice to remain silent while simultaneously intimidating them with potential

4
Section 35 of the Constitution.
5
Section 60 of the criminal procedure act 51 of 1977.
6
Ferreira v Levin NO and Others; Vryenhoek and Others v. Powell NO and Others 1996 1 SA 984 (CC).
punishment for doing so. "While a trial should be equitable concerning the accused,
a key and essential aspect of a fair trial, the idea of a fair trial extends beyond merely
guaranteeing fairness to the accused," stated Yacoob J. It's significantly broader.
Apart from ensuring that the trial is broadly fair, a court must balance the interests of
the accused with those of society at large and the proper functioning of justice. 7

The right to silence and the right to a fair trial are obviously irreconcilable in South
Africa. When someone who has been charged with a crime and has all the pertinent
evidence in front of him choose to remain silent instead of offering an explanation for
his actions, how can that be fair? Furthermore, even after receiving legal assistance,
an accused person may still decide to remain silent through his lawyer. However, in
what ways can both the complainant and the entire criminal justice system receive
fair treatment? By tackling the issue with an open mindset and a practical outlook,
you are effectively reducing the overall burden and monotony of the process, which
further aids in guaranteeing that justice is delivered effectively and promptly. Being
completely aware of the facts and details of the case, providing a statement via your
attorney does not automatically imply that you are assisting the State in obtaining a
conviction against you.

A fair trial, referred to as due process, "necessitates that the truth is discovered
solely through the use of fundamentally just procedures," as well as achieving a
rightful verdict and ascertaining the truth. A just trial is a right that cannot be forsaken
once the guilt issue appears settled, even for offenders who appear to be culpable.
In this type of system, prosecutors "need to aid the court in reaching 'the truth'
equitably" as a facet of their duty to achieve justice. As noted previously, the validity
of a verdict stems from the justness of the process; within the adversarial framework,
"any conclusion reached according to procedural rules is deemed valid" as
substantive truth is considered unattainable.

According to Yacoob J., the Constitutional Court concluded in De Beer NO v. North-

Central Local that a fair trial is a prerequisite for a just and legitimate legal order and
that the right to a fair trial is fundamental to the rule of law. Furthermore, "qualifiers"
for the identification, conviction, and sentencing of the guilty include fairness
principles such as the presumption of innocence, the double jeopardy principle, the

7
Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC).
right to silence, the right not to be forced to give self-incriminating testimony, and the
principles of natural justice.8

Competent Legal Representation

A fair trial in this situation requires competent legal representation, and in this
situation, a lawyer must prioritize the interests of his or her client over all other
interests. Consequently, we may state Having a lawyer that has the abilities, know-
how, and expertise to successfully represent their client is a sign of competent legal
representation. This entails being aware of the law, putting up a compelling defense,
and making sure the client's rights are upheld at every stage of the proceedings.9

The right to legal representation can only be a right to qualified legal counsel, per a
court.10 Regardless of what else it may entail, providing effective legal representation
requires the lawyer to act in the client's best interest while still fulfilling his or her
inherent duty to uphold justice. Furthermore, it has been said that the constitutional
right to counsel must be real and not a mirage, and that an accused person has the
theoretical right to a proper, effective, or competent defense. A trial can be ruined
and the accused's right to a fair trial violated by incompetent legal counsel.
Therefore, the right to competent counsel—that is, counsel of the caliber and
character that ensures a fair trial—is a necessary component of the right to legal
representation.11

The question of whether a defense was so lacking that it undermined the trial's
fairness is, again, a matter of fact that is not affected by the level of post-trial
dissatisfaction voiced by the defendant, here identified as Andrew. It is rare for
convicted persons to show contentment with their legal counsel. The assessment
should be impartial, and it frequently occurs without the benefit of retrospect. The
court must adopt the viewpoint of Andrew's attorney, recognizing that the main duty
of handling the case rests with the attorney, who is compelled to make choices under
time pressures that frequently hinder comprehensive consideration. The inability to
carry out essential duties, like failing to consult, holds a distinct role in comparison to

8
De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic
Association Intervening) (CCT 59/00) [2001] ZACC 9; 2002 (1) SA 429 (CC)
9
Kellerman v Legal Practice Council Western Cape Office and Others (16305/22) [2024] ZAWCHC 81.
10
M du Plessis ‘Between apology and utopia: The Constitutional Court and public opinion’ (2002) 18 SAJHR 1 at
2.
11
S v Singo (CCT49/01) [2002] ZACC 10; 2002 (4) SA 858 (CC).
the inability to cross-examine properly or the decision to stay silent. Assessing if the
right to counsel was ineffective in the first type of case is quite simple, whereas in the
second scenario, where the attorney's judgment plays a role, the grounds for
complaint are restricted

The principle of judicial precedent, or stare decisis, is the foundation of the standard
of competent legal representation under South African law. This implies that lower
courts must abide by the rulings of higher courts regarding the same legal matters.
Because they guarantee consistency, equality, and predictability in the process of
making legal decisions, precedents have important ramifications. The legal system in
South Africa is largely based on judicial precedent, with lower courts adhering to the
rulings of higher courts.12 This implies that unless a higher court rules that a
particular legal issue is incorrect or overruled, lower courts are required to follow that
ruling. The "fit and proper" test, which demands that attorneys be trustworthy and
morally pure, must also be met. By doing this, attorneys are guaranteed to respect
moral principles and behave in their clients' best interests. The Constitutional Court's
interpretation of the Constitution, which is South Africa's highest law, establishes the
norm for legal interpretation and application.

Conclusion

Every suspect is entitled to remain silent and cannot be compelled to provide a

confession or admission that could be used against them, as it is provided in section
35(1)(a) and (c), correspondingly. The right to silence and the right to a fair trial are
obviously irreconcilable in South Africa. The right to legal representation can only be
a right to qualified legal counsel, per a court.13 Regardless of what else it may entail,
providing effective legal representation requires the lawyer to act in the client's best
interest while still fulfilling his or her inherent duty to uphold justice.

12
B.M.G.S v M.B.S and Others (26675/2022) [2024] ZAGPPHC 24.
13
M du Plessis ‘Between apology and utopia: The Constitutional Court and public opinion’ (2002) 18 SAJHR 1 at
2.
BIBLIOGRAPHY
ARTICLES:

C Theophilopoulos ‘The influence of American and English law on the interpretation

of the South African right to silence and the privilege against self-incrimination’
(2005) 19 Temple International and Comparative Law Journal 387 at 391.
M du Plessis ‘Between apology and utopia: The Constitutional Court and public
opinion’ (2002) 18 SAJHR 1 at 2.

CASES:

Ferreira v Levin NO and Others; Vryenhoek and Others v. Powell NO and Others
1996 1 SA 984 (CC).
Kellerman v Legal Practice Council Western Cape Office and Others (16305/22)
[2024] ZAWCHC 81.

B.M.G.S v M.B.S and Others (26675/2022) [2024] ZAGPPHC 24.

De Beer NO v North-Central Local Council and South-Central Local Council and

Others (Umhlatuzana Civic Association Intervening) (CCT 59/00) [2001] ZACC 9;
2002 (1) SA 429 (CC)

Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC).

S v Singo (CCT49/01) [2002] ZACC 10; 2002 (4) SA 858 (CC).

LEGISLATION:

The Constitution of the Republic of South Africa, Act 108 of 1996.

The criminal procedure act 51 of 1977.