Balancing the right of the accused to access the police docket with the duty of the state to prosecute: an analysis of the impact of the Constitution.

Abstract

Prior to the constitutional dispensation, South Africa was under parliamentary sovereignty and as a result, the right of access to the police docket was unprecedented. When the 1993 Constitution came into effect, it granted South African citizens several rights which were mostly derived from international instruments. Furthermore, the state transitioned from parliamentary sovereignty to constitutional supremacy. Constitutional supremacy guarantees that the rights entrenched in the Constitution take precedence before any other legislation or case law. Consequential to this transition, the court set new precedence by declaring blanket docket privilege unconstitutional. This dissertation examines the extent to which the accused is granted access to the information contained in the police docket. Both presiding officers and legal scholars have submitted that the accused is not granted unfettered access to the police docket. Upon careful examination of statutory provisions, relevant case law, journal articles and textbooks, it is clear that legislature has been very slow in enacting legislation aimed at regulating the right of access to the docket and this could have a negative effect on the accused, especially those without counsel. As it stands now; this right is too complex for laypersons to understand. This dissertation concludes that accused persons must be afforded an opportunity to examine the contents of the police without all the red tape that surrounds such access.