By Sanette Viljoen
Chapter 3 (section 25) of the Constitution of South Africa awards individuals who have been detained, arrested or accused various rights. One of these rights is the right to remain silent during plea proceedings or during the trail, in other words, to not testify during the trial at all.
The right to remain silent is a legal principle that stipulates that everyone has the right to not answer questions from the police or court officials prior to the case being presented before the court. This principle is acknowledged internationally, in many countries expressly and in others by convention.
The South African Constitution as well as our courts distinguish quite clearly between the right to pre-trial silence (towards the police and other court officials) and the right to remain silent during the trial (when the trial commences). An accused can rely on his right to remain silent in the pre-trial or the trial or the sentencing phases.
What is pre-trial silence?
This is determined by the common law and stipulates that suspects have the right to remain silent during pre-trial investigations, while the investigation is still on-going. It therefore entails that the suspect may choose whether or not to answer certain questions by the police. In the case of S v Thebus 2003 (2) ZACC 12 the Constitutional Court found that no detrimental deduction can be made from an accused’s pre-trial silence, as the state still has to prove its case. The accused cannot be expected to assist his opponent (the state) to prove the case against him by providing the police with information.
What is the right to remain silent during the trial?
This right includes that a person need not give testimony that could be to his disadvantage. It also means that he need not answer any incriminating questions or be compelled to do so. However, in South Africa it is generally accepted that this right could be restricted in applicable circumstances. In the case of S v Boesak 2001(1) SASV 1 (CC) the Constitutional Court also found that the right to remain silent does not mean there will be no consequences attached to a person’s choice to remain silent during the trial. The court may make a detrimental deduction or conclusion from a person’s silence where the state has made out a clear prima facie case and the accused still decides to remain silent and to not deliver any further testimony. This is the difference between the pre-trail silence and the right to remain silent during a trial.
Although a great amount of difference of opinion exists as to whether or not it is a positive right, this right is important in order to ensure a fair trial.