S v Zuma and Others Referral from the High Court judge in a criminal trial to the constitutionality of the presumption relating to the admissibility of confessions in terms of section 217(1)

1019 .E LWlT1111P-SpecialExaminati… v — Section C Application Questions Question 3 Read the following case judgement and answer the following questions, S v Zuma and Others Referral from the High Court judge in a criminal trial to the constitutionality of the presumption relating to the admissibility of confessions in terms of section 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977 under the interim Constitution. The trial was postponed sine die. Direct access was granted. The Court held the impugned section to be in violation of section 25(3) of the Interim Constitution (right to fair trial) as it places on the accused the burden of proving on a balance of probabilities that a confession recorded by a magistrate was not free and voluntary. The Court considered the common law rule requiring the prosecution to prove that a confession has been freely and voluntarily made to be inherent in the rights specifically mentioned in section 25(2), section 25(3)(c) and (d) of the interim Constitution and forms part of the right to a fair trial, holding that reversing the burden of proof seriously compromises and undermines these rights, meaning that the impugned section violates these provisions. Further, the Court held that the tests of reasonableness, justification and necessity for limitation of fundamental rights set out in s 33(1) of the interim Constitution are not identical, and in applying each of them individually one will not always get the same result. But in the present case, it was held these tests may be looked at and assessed together. The Court held thus that the impugned section also does not meet the criteria laid down in section 33(1) of the Constitution, declaring it inconsistent with the interim Constitution and invalid, With regard to remedy, it was held that a proper balance could be struck by invalidating the admission of any confession in reliance on section 21 T(1)(b)(ii) of the Criminal Procedure Act before the date of the declaration of invalidity of the section, but in respect only of trials begun on or after 27 April 1994 and in which the verdict had not been given at the date of the declaration. Judgment: Kentridge AJ (unanimous). Source: S v Zuma and Others 1995 (2) SA 642 (CC); 3.1 Which sources of law did the judge consult? Describe them, (4 Marks 3.2 What is the purpose of the Constitution as a source? (8 Marks 3.4 Which court heard this? (1 Mark ) ) 3.3 What is the separation of powers? (2 Marks) ) 3.5 What is the function of that court in terms of this case? (2 Marks) LWIT1’I1P — Examination Paper SF 2020 | V1.0 Page 11 of 15 3.6 What is the position of this court in terms of hierarchy and the effect of the decisions it makes in terms of the doctrine of precedent? (3 Marks) End of Section C