The constitutionality of section 60 (11B)(c) of the Criminal Procedure Act 51 of 1997 where an applicant for bail relies on a weak state's case during a section 60(11)(a) application

Abstract

In South Africa, as in most jurisdictions which profess to be based on an open and democratic society based on human dignity, equality and freedom, the right against compelled self-incrimination is a guaranteed Constitutional right. This study is prompted by the realization that the right against self-incrimination is being undermined and eroded by an aspect of South Africa’s bail laws. The current study addresses the constitutional validity of section 60(11B)(c) of the Criminal Procedure Act 51 of 1977 in so far as it allows for the admission of incriminating evidence at trial, in contravention of the accused’s right against self-incrimination, which incriminatory evidence was tendered by the applicant during a bail application in circumstances where the applicant was compelled to prove that he would be acquitted at trial where reliance is placed on a weak State’s case in proving exceptional circumstances in compliance with section 60(11)(a) of the Criminal Procedure Act 51 of 1977. Whilst section 60(11B)(c) of the Criminal Procedure Act 51 of 1977 is undoubtedly aimed at combatting crime, the pre-occupation with crime control measures threatens to undermine individual liberty and poses a threat to our Constitutional project of building a human rights culture. I advance an argument which supports the view that section 60(11B)(c) of the Criminal Procedure Act 51 of 1977 is unconstitutional, in the above context, in that it infringes upon the accused’s right against compelled self-incrimination at trial and does not amount to a justifiable limitation on the rights of an accused in an open and democratic society based on human dignity, equality and freedom. I also advance an alternative legal remedy aimed at fulfilling the initial mischief which Section 60(11B)(c) of the Criminal Procedure Act 51 of 1977 was designed to prevent in order to bring the section in line with the Constitution and a rights-based society.