This article examines whether the police have a constitutional duty to
inform ‘suspects’ about their fundamental rights, despite the fact that
section 35 of the Constitution of the Republic of South Africa, 1996, is
silent on this issue. The decisions of the different divisions of the South
African High Court diverge on this question, and the Constitutional Court
has not yet had the opportunity to settle it. In an attempt to resolve this
question, this article considers the underlying principles of binding and
non-binding international law standards, as well as how this is
approached in the Canadian and United States’ jurisdictions. This
analysis reveals that an emerging consensus of opinion is developing
which suggests that the informational duties should arise from the
moment the police embark on an adversarial relationship with suspects,
by approaching them to establish or disprove the existence of evidence
linking them to a crime. The author concludes that such an approach
accords with a contextual and purposive interpretation, and should be
embraced.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:tut/oai:encore.tut.ac.za:d1001166 |
| Date | 13 September 2010 |
| Creators | Ally, D |
| Publisher | Comparative and International Law Journal of South Africa |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Text |
| Format | |
| Rights | Comparative and International Law Journal of South Africa |
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