How To Choose Between the Right to Remain Silent and the Right to a Fair Trial

South Africa, post apartheid, is a country with one of the most progressive Constitutions in the world which gives substance to many second and third generation socio economic rights that would make an avid constitutional law expert weep with joy.

One of the most important provisions is Section 35(5) of the Constitution Act 108 of 1996 which deals with the right to a fair trial and provides inter alia that said right shall include the right to remain silent and to be informed of that right.

Not exactly earth shattering is it? In any democracy that would be the norm however it should be remembered that SA came from a time where, although the common law forbade torture as a means of obtaining evidence,it was established practice to apply a smidge of the third degree in the interests of “justice”

Since 1996 the Constitutional Court, and highest court in the land, has held that any legislation or conduct of a state organ must be held up to the spirit, objectives and values underpinning the Constitution. In doing so the Constitutional court was merely confirming the contents of Section 39(2) of the Constitution and has continued to do so in years since promulgation.

This has changed the approach of the Courts to the protection of the right to remain silent and they have held repeatedly:

1) An accused or a suspect whether charged or not must be apprised of the right to remain silent
2) As well as his right to exercise the right to remain silent
3) The state bears the burden of proving either by viva voce,circumstantial evidence that the right was FULLY UNDERSTOOD

What this means is that just a mere rattling off of a warning by a policeman and a perfunctory “do you understand”? will never be enough to render the trial fair.

In S v Orrie 2005(1) SASV 63(K) the court went as far as to find

1) Even an exculpatory version of events by a suspect or accused person is inadmissible in the absence of his right to remain silent being properly explained.
2) The right must be explained comprehensively to the accused/suspect
3) The right to remain silent and right against self incrimination may not be conflated since they are two SEPARATE rights.
4) The right to remain silent is tied to the right to counsel which includes the right to have a member of Legal Aid Sa visit the police station to consult with the accused/suspect.

Anyone with even a passing familiarity of the sordid history of South Africa can appreciate that this approach by the Courts is in stark contrast to the approach during the dark days of Apartheid when the police were above the law and could do no wrong despite the multiple deaths in custody.

It can be seen therefore that the right to remain silent and by implication the right to a fair trial is vigorously protected by our Courts and some members of the public would argue that it’s too well protected. In response to this assertion there is no more eloquent retort than that of Roman Poet Juvenal who famously asked “Quis custodiet ipsos custodes?