Mavuso v Simelane N.O (24/11) [2011] SZSC 43 (30 November 2011);

 

IN THE SUPREME COURT OF SWAZILAND

 

 

 

CIVIL APPEAL NO.24/2011

HELD AT MBABANE

 

In the matter between:

 

 

PHINDILE MAVUSO                          :        APPELLANT

AND

NONDUMISO SIMELANE N.O.  :        RESPONDENT

 

 

CORAM                                     :        EBRAHIM, JA

                                                  :        FARLAM, JA

                                                  :        MCB MAPHALALA, JA

 

 

FOR THE APPELLANT              :        MR. S. C. SIMELANE

FOR THE RESPONDENT          :        MR. M. M. VILAKATI

                                                           MS. B. MASUKU

 

 

HEARD                                      :        18 NOVEMBER 2011

DELIVERED                              :        30 NOVEMBER 2011

 

 

SUMMARY

 

Criminal Procedure and Evidence – Appeal settled – Consent order made Order of Court – Docket privilege no longer part of law of Swaziland – When accused entitled to copies of statements of witness in police docket.

 

 

 

FARLAM, JA

 

[1]    In this matter the appellant applied in the Nhlangano Magistrate’s court to the first respondent for an order calling upon the second respondent, the Director of Public Prosecutions, to deliver to her, through her attorneys, copies of the depositions and statements of the witnesses contained in the police docket in the possession of the second respondent’s representative, who was to appear for the Crown in a prosecution of the appellant in the said court on a charge of contravening with section 23(a) of the Prevention of Corruption Act of 2006, alternatively theft by false pretences.

 

[2]    The application, which was brought in terms of section 89 of the Criminal Procedure and Evidence Act 67 of 1938, as amended, was dismissed by the first respondent.

 

[3]    The appellant thereafter brought a review application in the High Court against the first and second respondents, as well as the third respondent, the Attorney-General seeking an order overturning the first respondent’s decision.  This application having been dismissed, the appellant appealed to this Court.

 

[4]    Before the appeal was heard the Court was informed that the appellant and the second and third respondents (the first respondent having abided the decision of the court) had settled the appeal and agreed on the terms of a consent order which they wished this Court to make.  I am satisfied that the terms of the order correctly set out the legal position in this country and that it is appropriate for this Court to make an order on the terms to which they agree: cf. Shabalala and Others v Attorney-General and Another 1996 (1) SA 725 (CC).

 

[5]    The following order is accordingly made:

 

1. It is declared that:

 

1. The ‘blanket docket privilege’ contained in the rule in R v Steyn 1954 (1) SA 324 (A) is inconsistent with section 21(2) of the Constitution to the extent that it protects from disclosure all the documents in a police docket, in all circumstances, regardless as to whether or not such disclosure is justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial.

 

1. In prosecutions before the High Court, an accused person (or his or her legal representative) shall ordinarily be entitled to the information contained in the police docket pertaining to the case prepared by the Crown against him or her, including copies of the statements of witnesses whom the police have interviewed in the matter, whether or not the prosecution intends to call any such witness at the trial.

 

1. The Crown shall be entitled to withhold from the accused (or his or her legal representative) any information contained in any such docket if it satisfies the Court on a preponderance of probabilities that it has reasonable grounds to believe that the disclosure of such information would lead to revelation of the identity of an informer, of state secrets, police investigation techniques or that such disclosure might lead to intimidation of witnesses or otherwise prejudice the proper ends of justice.

 

1. The Crown shall be entitled to satisfy the court on a balance of probabilities that the accused’s access to any particular documents in the police docket is not justified for the purpose of enabling the accused properly to exercise his or her right to a fair trial.

 

1. The duty of the Crown to afford an accused person (or his or her legal representative) the right of access to the contents of the police dossier shall ordinarily be discharged upon the service of the indictment and before the accused is asked to plead in the High Court.  Provided, however, that the court shall be entitled to allow the Crown to defer the discharge of that duty to a later stage in the trial, if the Crown proves on a balance of probabilities that the interests of justice require postponement in any particular case.

 

1. This order shall also apply mutatis mutandis to an accused person appearing before a Magistrate’s Court.

 

1. Each party to bear its own costs of appeal.

 

 

_________________________

I.G. FARLAM

JUSTICE OF APPEAL

 

 

I agree                             :               _________________________

                                                        A.M. EBRAHIM

                                                        JUSTICE OF APPEAL

 

 

 

 

I agree                             :               _________________________

                                                        M.C.B. MAPHALALA

                                                        JUSTICE OF APPEAL