Exclusion of relevant evidence: Privilege

Question 1

Rationale for privilege against self-incrimination

Answer 1

compelling someone to give evidence that will incriminate them goes against the right to dignity and guards against bad police practices

Question 2

When does privilege against self-incrimination apply?

Answer 2

Pre-trial: S35 of constitution - requires detained, arrested and accused persons to be advised of their right to remain silent and their right to legal rep.

During trial.

Question 3

Does privilege against self-incrimination apply for suspects?

Answer 3

Unclear:

Sebejan: took purposive approach and said that the right to a fair trial starts at the investigative stage of the criminal process.

Khan took it literally, saying s35 ≠ apply to suspects.

Question 4

What happens when accused waives their rights to silence and right against self-incrimination?

Answer 4

May not refuse to answer a question on the basis that it may incriminate them.

Question 5

Do witnesses other than the accused have privilege against self-incrimination?

Answer 5

CPA: they may refuse to answer if it exposes them to a criminal charge but fear of civil liability ≠ excuse them from answering.
CPEA echoes this.

Question 6

May inferences be drawn from silence?

Answer 6

No inference may be drawn from pre-trial silence but negative consequences may logically follow if state establishes a prima facie case and A lacks contrary evidence.

Question 7

Exception to rule re inferences from silence?

Answer 7

Alibi defence only raised at trial.

Question 8

Thebus

Answer 8

Cannot draw inferences from pre-trial silence.

Late disclosure = merely something to take into account when determining the weight of evidence.

Question 9

Can one draw inference from silence in a civil trial?

Answer 9

Yes - because there is no constitutional issue. But this inference must only be drawn once plaintiff establishes PF case.

NB re PF case

Question 10

Ascertainment of bodily features: infringement on right to remain silent?

Answer 10

Huma: fingerprints ≠ testimonial utterance.

Levak: compulsion to submit voice same ≠ infringe.

Question 11

Case: fingerprints ≠ testimonial utterance ?

Answer 11

Huma

Question 12

Case: compulsion to submit voice sample ≠ infringe.

Answer 12

Levak

Question 13

Define legal professional privilege

Answer 13

Communications between lawyers and their clients may not be disclosed without client’s consent.

NB: consent

Question 14

Rationales to go against the truth seeking function and deprive court of relevant evidence [by allowing legal privilege]?

Answer 14

Fair settlement of disputes; receipt of sound legal advice; proper functioning of legal system - legal professional privilege is a fundamental principle to proper functioning (safatsa)

Question 15

Safatsa

Answer 15

legal professional privilege is a fundamental principle to proper functioning.

Question 16

Case: legal professional privilege is a fundamental principle to proper functioning

Answer 16

Safatsa

Question 17

Requirements for legal professional privilege

Answer 17

1. Communication is made to legal advisor acting in their professional capax
2. Made in confidence
3. For purposes of obtaining professional legal advice or for purpose of pending litigation.
4. Privilege is claimed by client.

Question 18

Contango trading

Answer 18

assumed if litigation is not a substantial possibility its not in confidence for purposes of LPP.

Question 19

Explain requirements for LPP

Answer 19

1. Communication is made to legal advisor acting in their professional capax

• Coms made in presence of clerks etc are also seen as privileged.
• determined on case-by-case basis, but if there is payment between parties there is an inference that its in professional capax.

2. Made in confidence

• c-by-c basis; but if client allowed info to be known by 3P its likely not in confidence.

3. for purpose of pending litigation / obtaining professional advice

• assumed if litigation is not a substantial possibility its not in confidence (Contango trading)

Question 20

Explain marital privilege and cite legislation for it

Answer 20

Spouses are entitled to refuse to disclose communications from other spouse when married.

CPA

Question 21

Exception to marital privilege?

Answer 21

Where spouse wishes to disclose.

Question 22

State privilege def?

Answer 22

Government may claim privilege on basis that it is against the public interest to disclose.

Duncan.

Question 23

Difference between public and private privilege?

Answer 23

Public: concerned with competing public interests (hard to waive)

Private: more concerned with individual autonomy.

Question 24

Can state privilege be waived?

Answer 24

CL position is unclear.

Duncan says that courts have no power to override state assertion of state privilege made by the appropriate official.

Van der linde: Courts have final say on whether to uphold.

Court should scrutinise in private and discretion should be exercised exceptionally with circumspection.

Constitutional position: [PJS SUGGESTION]
1. Court must have power to reject ministerial objection.
2. Courts must have access to determine if disclosure is against pub interest
3. Courts must balance public interest in justice vs non-disclosure.
4. State should have onus to show its refusal constitutes a justified limitation on the constitution.

Note: case law ≠ require onus.

Question 25

Informers privilege (form of state privilege)

Answer 25

No question / document may be received that would tend to reveal the identity of an informer or the content of the info supplied by them.

There is a duty on the court to ensure this is upheld, regardless of whether parties claim it or not.

Question 26

Rationale for informers privilege

Answer 26

It is in the public interest to protect their identity to promote efficient detection of crime.

Question 27

Requirements for informer privilege

Answer 27

1. Communication made in confidence
2. Confidence is an NB aspect of relations between controller and informer
3. Relationship between I+C must be one enjoying community support.
4. Interests of non-disclosure must outweigh interests of justice.

Question 28

Where may rules re informer privilege be relaxed?

Answer 28

1. Necessary in interests of justice
2. No need for secrecy
3. Necessary for accused to prove case in civil trial or innocence in case of crim trial (Els).

Question 29

Els

Answer 29

Can relax rules re informer privilege where necessary for accused to prove innocence in crim trial.

Question 30

Steyn

Answer 30

Prosecution can refuse to disclose docket contents of accused

Question 31

Shabalala

Answer 31

Challenged CL position that prosecution can refuse to disclose docket contents of accused.

CC: blanket privilege is unconstitutional + inconsistent to right to fair trial but in some cases non-disclosure can be justified (such as where it might expose an informer). Thus: court has discretion.

Question 32

Can docket be accessed for bail application proceedings

Answer 32

CPA: no right of access @ bail stage, though not a blanket ban.

Dlamini said it is not necessary for fair trial (bail≠trial).