MAY IT PLEASE THE COURT

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 627 j -628 c ). 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'. Acco...

First allow me these three preliminary fictitious examples before bringing it all back home: EXAMPLE 1 Suppose a seasoned pilot, given his expertise, can execute highly complex and life-threatening mid-air manoeuvres in any which way possible. He would often, and against regulations, take passengers aboard on some of his aforementioned exploits; each and every time succeeding in executing these escapades with textbook aplomb. One day the plane crashed. Ten of his fourteen passengers died and the other four were injured seriously. Our pilot himself had also been seriously injured and spent five days in hospital, escaping death by a narrow margin.  He is charged with ten counts of murder in respect of the deceased and four of the attempt thereof in respect of the injured. The prosecution knew that proving murder with direct intent would be out of the question (perhaps understandably so). Instead they relied on murder with legal intent  (dolus eventuaslis) . What...

Revised from my Post Graduate Diploma in Law Dissertation, UCT (1998), Supervisor: Prof Dirk Van Zyl Smit (Dean) [Unless otherwise indicated, all statutory citations relate to the Criminal Procedure Act 51 of 1977] INTRODUCTION In respect of more serious offences, the legislature placed the onus in bail proceedings squarely on the arrested (s60(11). On the other hand, the implications of the approach adopted in the case law is that, regarding less serious offences, that one should not have regard to an onus and that the proceedings  are inquisitorial with no onus on either the state or the arrested. In other words, under no circumstances is the onus on the State (whether the offences with which the arrested would be charged relate to either serious or less serious offences). This is ostensibly an anomaly in a Constitutional Democracy sporting a Bill of Rights granting the right to bail. But their again, this right is accorded the arrested only if the interests of justic...