The Relationship 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.

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