Sanctions for Silence—Constitutional Issues in South Africa: S v Thebus
| Published date | 01 March 2004 |
| DOI | 10.1350/ijep.8.2.120.36513 |
| Date | 01 March 2004 |
| Subject Matter | Case Comment |
120 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
CASE COMMENT
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2004) 8 E&P 120–129
A
Sanctions for silence—constitutional
issues in South Africa:
S
v
Thebus
By P. J. Schwikkard
Professor, Department of Criminal Justice, Faculty of Law, University of Cape Town
t present, in South African law there is no pre-trial obligation on an
accused to disclose an alibi defence. However, at common law, if the
alibi defence is raised for the first time at trial, the court, in determining
whether the alibi is reasonably possibly true, may take into account that there
has been no opportunity for the state to investigate the alibi properly.1 The late
disclosure of alibi defences is perceived in a number of quarters as a factor
detracting from the efficiency of criminal trials in South Africa. South Africa,
following similar trends in other jurisdictions, has considered a legislative
solution to this perceived problem. The South African Law Reform Commission2
has recommended that the following devices be introduced to encourage earlier
disclosure of alibis:
1. An amendment to s. 115 of the Criminal Procedure Act 51 of 1977
making it mandatory rather than discretionary for a presiding officer,
after the accused has entered a plea of not guilty, to inquire whether
he or she wishes to disclose the basis of his or her defence.3
2. A bar to introducing evidence in support of an alibi defence after plea
proceedings, save with the leave of the court.4
3. The holding of a pre-trial conference after which ‘[t]he failure of an
accused to disclose sufficient details of an alibi defence to enable the
1R v Mashele 1944 AD 571; S v Zwayi 1997 (2) SACR 772, Ck. See also S. E. Van der Merwe in P. J.
Schwikkard and S. E. Van der Merwe, Principles of Evidence, 2nd edn (Juta: 2002) 518.
2 South African Law Commission, Project 73, Simplification of Criminal Procedure: A More Inquisitorial
Approach to Criminal Procedure—Police Questioning, Defence Disclosure, the Role of Judicial Officers and the
Judicial Management of Trials (2002) (hereafter Inquisitorial Report).
3 Draft Bill, s. 2 (attached to the Inquisitorial Report).
4 Ibid. s. 5.
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