Molapo v Director of Public Prosecutions (CRI/T 1 of 97) [1997] LSHC 52 (18 June 1997)

1 CRI/T/1/97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between L E P O QO S E O E H LA M O L A PO A P P L I C A NT and D I R E C T OR OF P U B L IC P R O S E C U T I O NS R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M M. R a m o d i b e di On the 18th d ay of J u n e, 1 9 9 7. T h is application c o n c e r ns the right to a fair trial in t e r ms of the Constitution of L e s o t h o. It arises f r om the criminal trial b e f o re me in w h i ch the A p p l i c a nt is facing the f o l l o w i ng c h a r g es n a m e l y: C o u nt 1- H i gh T r e a s o n; alternatively C o u nt 2- Sedition; alternatively C o u nt 3- C o n t r a v e n t i on of Section 7 of the Internal Security ( G e n e r al A c t ); alternatively C o u nt 4- K i d n a p p i n g. On the 6th M a r ch 1 9 97 the A p p l i c a nt p l e a d ed n ot guilty to e a ch of the aforesaid c o u n ts a nd b e c a u se his c o - a c c u s ed offered a plea of guilty to C o u nt 2 ( w h i ch plea w as accepted by the L e a r n ed Director of Public Prosecutions) the C o u rt o r d e r ed separation of trials. On the 28th April 1 9 97 the c a se against the A p p l i c a nt d u ly c o m m e n c ed a nd the C r o wn h as since called the following witnesses P W1 M a s u p ha M o l a p o, P W2 L e n n ox N t e n te Sesioana, P W3 Francis R a m a t o na M a s e e l a, P W4 'Maliketso Natalia M a s u p h a, P W5 ' M a m o s i li N t e ne a nd P W6 T e fo ' M u s i. I s h o u ld m e n t i on that in the m i d d le of his cross e x a m i n a t i on of P W2 M r. P h o o f o lo for the A p p l i c a nt m a de an application f r om the b ar for discovery of the C r o wn w i t n e s s e s' statements. He h o w e v er a b a n d o n ed the application indicating that he w o u ld consider m a k i ng such application on notice a nd in a substantive w a y. T h is w as on the 3 0 th April 1 9 9 7. M r. P h o o f o lo then p r o c e e d ed to cross e x a m i ne P W2 right up to the e nd a nd i n d e ed p r o c e e d ed to do so w i th the rest of the witnesses m e n t i o n ed a b o v e. W h at is significant a b o ut M r. P h o o f o l o 's a p p r o a ch is that he d u ly i n f o r m ed the C o u rt at the close of his cross e x a m i n a t i on of e a ch of the C r o wn w i t n e s s es thus far that he h ad " no further questions." He did not reserve his cross e x a m i n a t i on subject to discovery of statements. I shall return to this aspect later. It w as o n ly on the 21st M ay 1 9 97 at the close of the court's session for the d ay a nd after P W5 h ad already c o m p l e t ed his e v i d e n ce that M r. P h o o f o lo d r ew the Court's attention to the fact that he h ad n ow filed a substantive application on notice of m o t i on for discovery of the C r o wn witnesses' statements. It is this application w h i ch is the subject matter of this j u d g m e n t. It p r o v es convenient to r e p r o d u ce the prayers s o u g ht in this application. In his N o t i ce of M o t i on the Applicant applies for an order in the following terms:- " I. A R u le Nisi be issued a nd returnable on the D ay of 1 9 97 calling u p on the respondents to s h ow c a u se if a ny w h y :- (a) T he periods of notice p r o v i d ed for by the R u l es of C o u rt s h o u ld not be d i s p e n s ed with on a c c o u nt of u r g e n cy of this matter. (b) Declaring the privilege against access by the applicant to the witnesses' statements in the police d o c k et null a nd void for b e i ng inconsistent with Section 12 (2) of the constitution. © Directing the r e s p o n d e nt to avail to the applicant or his attorney the statements of the witnesses w ho h a ve already given e v i d e n ce a nd those w ho are to give e v i d e n ce in the a c c u s ed o n g o i ng trial. (d) In the event that this application is granted, that this H o n o u r a b le C o u rt directs that the prosecution witnesses w ho h a ve already given evidence be re-called if the n e ed arises. (e) G r a n t i ng applicant further and/or alternative relief. 2. P r a y er 1 (a) to operate w i th i m m e d i a te effect." T he application is o p p o s ed by the Director of Public Prosecutions It should be o b s e r v ed straight a w ay that this application a s s u m es h u ge constitutional i m p o r t a n ce in this country. It is a matter of considerable public i m p o r t a n ce to the extent that it s e e ks a decisive b r e ak b e t w e en the past a nd the future as far as the notion of a fair trial is c o n c e r n ed in this country. It s e e ks to s h a ke the very foundations of the criminal justice s y s t em a nd the notion of a fair trial as courts h a ve perceived it in this country. It h as thus fallen u p on this court to interpret the Constitution a nd give true colour, flesh a nd m e a n i ng to it. I should m e n t i on that the application before me is w i t h o ut p r e c e d e nt in this country. A c c o r d i n g ly I shall take the liberty to s e ek g u i d a n ce f r om other jurisdictions with similar constitutions to Lesotho. It is my considered v i ew that o ur l aw should fall in line w i th the international trend. I start f r om the p r e m i se that the Constitution is the s u p r e me l aw in the country. T h is is so in t e r ms of Section 2 of the Constitution of L e s o t ho w h i ch p r o v i d es as follows: " 2. T he Constitution is the supreme l aw of Lesotho a nd if a ny other l aw is inconsistent with this Constitution, that other l aw shall, to the extent of the inconsistency, be void." It is important to note that the Constitution of Lesotho provides for a justiciable Bill of Rights w h i ch basically guarantees fundamental h u m an rights a nd freedoms. N ow Section 12 of the Constitution on w h i ch this application is based is entitled "Right to fair trial, etc" a nd it provides in part as follows:- " 1 2. (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent a nd impartial court established by law. (2) E v e ry person w ho is charged with a criminal offence - (a) shall be p r e s u m ed to be innocent until he is p r o v ed or has pleaded guilty; (b) shall be informed as soon as reasonably practicable, in a language that he understands in adequate detail, of the nature of the offence charged; © shall be given adequate time a nd facilities for the preparation of his defence; ( d) shall be p e r m i t t ed to d e f e nd h i m s e lf b e f o re the court in p e r s on or by a legal representative of his o wn c h o i c e; (e) shall be afforded facilities to e x a m i ne in p e r s on or by his legal representative the w i t n e s s es called by the prosecution before the court a nd to obtain the a t t e n d a n ce a nd carry out the e x a m i n a t i on of w i t n e s s es to testify on his b e h a lf b e f o re the court on the s a me conditions as t h o se a p p l y i ng to w i t n e s s es called by t he p r o s e c u t i o n ." In order to m a ke a m e a n i n g f ul a nd p u r p o s i ve interpretation of S e c t i on 12 of the Constitution it is n e c e s s a ry to give a little b a c k g r o u nd to the legal history of this c o u n t ry leading to the Constitution w h i ch c a me into force in 1 9 9 3. T he L e s o t ho I n d e p e n d e n ce Constitution of 1 9 66 w h i ch c o n t a i n ed a Bill of Rights n e v er h ad a c h a n ce since it w as unlawfully s u s p e n d ed by the G o v e r n m e nt of the d ay hardly four years later n a m e ly in 1 9 7 0. W h at t h en f o l l o w ed w as autocratic rule s p a n n i ng m o re t h an t w e n t y - t wo y e a rs m a r k ed by repression a nd detentions w i t h o ut trial. T h e re is no d o u bt in my m i nd therefore that the f r a m e rs of t he 1 9 93 C o n s t i t u t i on h ad this u n p l e a s a nt history in m i nd h e n ce t h ey i n c l u d ed a justiciable Bill of R i g h ts e n t r e n c h ed in the Constitution. S e en against the a b o ve m e n t i o n ed b a c k g r o u nd I a c c e pt that the Constitution h as u s h e r ed in a n ew order. It is a decisive b r e ak f r om the u n a c c e p t a b le p a st a nd h as i n t r o d u c ed a culture of equality, o p e n n e s s, justification, t r a n s p a r e n cy a nd universal h u m an rights all of w h i ch a re protected in the Constitution. I shall b e ar these n o b le principles in m i nd in interpreting S e c t i on 12 of the Constitution. C o u r ts in L e s o t ho h a ve till n ow traditionally f o l l o w ed the c o m m on l aw principle of privilege n a m e ly that a w i t n e ss statement is a privileged d o c u m e nt a nd that the a c c u s ed is n ot entitled to it. T he s a me privilege h as a l w a ys b e en e x t e n d ed to police d o c k e t s. In this r e g a rd o ur courts h a ve up to n ow f o l l o w ed the principle of t he " b l a n k et d o c k et privilege" e x p r e s s ed in R v S t e yn 1 9 54 (1) S. A. 3 24 (A) w h i ch w as in turn b a s ed on the English l aw as it w as at that time. T he question that arises for determination by this C o u rt is therefore w h e t h er or n ot the c o m m on l aw privilege to w i t n e s s e s' s t a t e m e n ts is consistent w i th the Constitution. I turn n ow to e x a m i ne the a p p r o a ch of other jurisdictions to the p r o b l em as p r o m i s ed earlier. Since o ur c o m m on l aw on the subject is d e r i v ed f r om the E n g l i sh l aw it is no d o u bt appropriate to c o m m e n ce w h e re it all started n a m e ly E n g l a n d. E N G L A ND It is important to note that English l aw h as in recent y e a rs u n d e r g o ne drastic c h a n g es f r om the traditional standpoint that w i t n e s s e s' statements are privileged. T he c h a n g es w e re b r o u g ht a b o ut by a n u m b er of mistrials c a u s ed by indiscretions on the part of s o me of the police investigators, state experts a nd public p r o s e c u t o rs to leave out relevant materials or statements f a v o u r i ng the d e f e n c e. T he c a se of R v W a rd ( 1 9 9 3) 2 A LL ER 5 77 ( C A) serves as a perfect e x a m p l e. In that c a se the prosecution h ad failed to disclose material relevant to b o th the a c c u s e d 's c o n f e s s i o ns a nd scientific e v i d e n ce relied u p o n. T he a c c u s ed h ad then b e en convicted of the m u r d er of 12 p e o p le w ho d i ed after a b o mb h ad e x p l o d ed on board a c o a ch in w h i ch soldiers a nd their family m e m b e rs w e re travelling. In overturning the conviction on the ground of n on disclosure by the prosecution the Court of A p p e al held: "(1) T he prosecutions' duty at c o m m on l aw to disclose to the defence all relevant material, ie. evidence w h i ch tended either to w e a k en the prosecution case or to strengthen the defence case, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow t h em to inspect the statements and m a ke copies unless there w e re g o od reasons for not doing so. Furthermore, the prosecution w e re under a duty, w h i ch continued during the pre-trial period a nd throughout the trial, to disclose to the defence all relevant scientific material, w h e t h er it strengthened or w e a k e n ed the prosecution case or assisted the defence case and whether or not the defence m a de a specific request for disclosure. Pursuant to that duty the prosecution w e re required to m a ke available the records of all relevant experiments a nd tests carried out by expert witnesses. Furthermore, an expert witness w ho h ad carried out or k n ew of experiments or tests w h i ch tended to cast doubt on the opinion he w as expressing w as under a clear obligation to bring the records of such experiments a nd tests to the attention of the solicitor w ho w as instructing h im so that they might be disclosed to the other party. On the facts, the non-disclosure of notes of s o me interviews by the police to the Director of Public Prosecutions, the n o n- disclosure of certain material by the Director of Public Prosecutions a nd prosecuting counsel to the defence a nd the non-disclosure by forensic scientists e m p l o y ed by the C r o wn of the results of certain tests carried o ut by t h em w h i ch t h r ew doubt on the scientific evidence put f o r w a rd by the C r o wn at the trial cumulatively a m o u n t ed to a material irregularity w h i c h, on its o w n, u n d o u b t e d ly required the appellant's conviction to be q u a s h e d ." It is important to bear in m i nd w h at w as said by Gildwell LJ at p a ge 6 01 J of the j u d g m e nt n a m e l y: " 'all relevant e v i d e n ce of help to an a c c u s e d' is n ot limited to e v i d e n ce w h i ch will obviously a d v a n ce the a c c u s e d 's case. It is of help to the accused to h a ve the opportunity of considering all material e v i d e n ce w h i ch the prosecution h a ve gathered, a nd f r om w h i ch the prosecution h a ve m a de their o wn selection of e v i d e n ce to be led." 1 am m a i n ly p e r s u a d ed by the fact that the d e v e l o p m e n ts in E n g l a nd h a ve occurred so drastically despite the fact that that country d o es n ot h a ve the benefit of a written constitution or a Bill of Rights. N A M I B IA I h a ve had the benefit of reading the judgment of the S u p r e me Court of Namibia in S v Scholtz 1997 ( 1 ) B C LR 103 ( N M S) That case has n ow settled the legal position in N a m i b ia r e g a r d i ng the right to a fair trial by ruling that in criminal prosecutions the a c c u s ed s h o u ld ordinarily be entitled to the i n f o r m a t i on c o n t a i n ed in t he p o l i ce d o c k et relating to the c a se against h im or her, including c o p i es of s t a t e m e n ts of w i t n e s s es w h e t h er or n ot the p r o s e c u t i on intends calling s u ch w i t n e s s es at the trial. T he C o u rt in that c a se h as also h e ld that the state is entitled to w i t h h o ld a ny i n f o r m a t i on c o n t a i n ed in the police d o c k et if it satisfies the C o u rt on a b a l a n ce of probabilities that it h as r e a s o n a b le g r o u n ds for believing that the disclosure of a ny s u ch i n f o r m a t i on m i g ht r e a s o n a b ly i m p e de the e n ds of justice or o t h e r w i se be contrary to the public interest s u ch as for instance w h e re the i n f o r m a t i on s o u g ht w o u ld disclose the identity of an i n f o r m er or w h e re it w o u ld disclose police techniques of investigation w h i ch it is n e c e s s a ry to protect or w h e re s u ch disclosure m i g ht e n d a n g er the safety of) a w i t n e s s. W h at is of great i m p o r t a n ce a b o ut the N a m i b i an a p p r o a ch as highlighted a b o ve is that Article 1 2 ( 1) (a) of the Constitution of that c o u n t ry b e a rs a v e ry close similarity to o ur o wn S e c t i on 1 2. It p r o v i d es as follows:- " 1 2 . ( 1 ) ( a) In the d e t e r m i n a t i on of their civil rights a nd obligations or a ny criminal c h a r g es against t h e m, all p e r s o ns shall be entitled to a fair a nd public hearing by an i n d e p e n d e n t, impartial a nd c o m p e t e nt court or T r i b u n al established by l aw " I further n o te w i th interest that o ne of the j u d g es w ho sat on the B e n ch in S v S c h o l tz (supra) is the t h en C h i ef Justice of N a m i b ia M r. Justice I. M a h o m ed w ho is the f o r m er P r e s i d e nt of the C o u rt of A p p e al of L e s o t h o. In the c i r c u m s t a n c es I find that the d e c i s i on in S v S c h o l tz ( s u p r a) is highly persuasive to this Court. S O U TH A F R I CA It is important to n o te that of all t he n e i g h b o u r i ng countries this is w h e re t he w i n ds of c h a n ge all started. In S v S h a b a l a la a nd others v A t t o r n ey G e n e r al of the T r a n s v a al a nd A n o t h er 1 9 9 5 ( R ) B C LR 1 9 93 ( C C) reported in 1 9 9 6 ( 1) S . A. 64 t he Constitutional C o u rt of S o u th Africa firmly u p h e ld the a c c u s e d 's entitlement to h a ve a c c e ss to t he s t a t e m e n ts of p r o s e c u t i on w i t n e s s e s. It expressly h e ld that t he "blanket d o c k et privilege" e x p r e s s ed by the rule in R v S t e yn ( s u p r a) is inconsistent w i th t he Constitution to the extent to w h i ch it protects f r om disclosure all the d o c u m e n ts in a police d o c k e t, in all c i r c u m s t a n c e s, regardless as to w h e t h er or n ot s u ch disclosure is justified for t he p u r p o s es of e n a b l i ng t he a c c u s ed p r o p e r ly to exercise his or h er right to a fair trial in t e r ms of S e c t i on 25 ( 3) of the Constitution of S o u th Africa. T he C o u rt r e c o g n i s ed h o w e v er that the p r o s e c u t i on m a y, d e p e n d i ng on the peculiar c i r c u m s t a n c es of a c a se be able to justify the denial of s u ch a c c e ss on t he g r o u n ds that it is n ot justified for the p u r p o s es of a fair trial. It is significant that the j u d g m e nt of the Constitutional C o u rt in S h a b a l a la & others v A t t o r n ey G e n e r al of the T r a n s v a al & A n o t h er ( s u p r a) w as written by n o ne other than M a h o m ed DP (as he then w as - He is n ow C h i ef Justice of S o u th Africa). Significantly he w r o te this j u d g m e nt at t he t i me w h en he w as still P r e s i d e nt of the C o u rt of A p p e al of L e s o t h o. W h at is e v en of m o re i m p o r t a n ce is that S e c t i on 25 ( 3) of the Constitution of S o u th A f r i ca on w h i ch t he decision in Shabalala's c a se is b a s ed is substantially similar to Section 12 of the Constitution of L e s o t h o. It r e a ds in part: " 25 ( 3) E v e ry a c c u s ed p e r s on shall h a ve the right to a fair trial, w h i ch shall include the right - (a) ( b) to be i n f o r m ed w i th sufficient particularity of the c h a r g e; © to be p r e s u m ed i n n o c e nt a nd to r e m a in silent d u r i ng p l ea p r o c e e d i n gs or trial a nd n ot to testify d u r i ng the trial; ( d) to a d d u ce a nd challenge e v i d e n c e, a nd n ot to be a c o m p e l l a b le w i t n e ss against h i m s e lf or h e r s e lf A d m i t t e d ly it is h a rd to i m a g i ne a ny country w i th a w o r se record of violations of h u m an rights than S o u th Africa. T h at h o w e v er is of no c o n s e q u e n ce as far as the exercise before me is c o n c e r n e d. T h is is so b e c a u se in my j u d g m e nt a ny violations of h u m an rights regardless of the d e g r ee t h e r e of d e s e r ve to be s t a m p ed o ut in a just d e m o c r a t ic society that prides itself w i th a Bill of R i g h ts e n t r e n c h ed in the Constitution s u ch as L e s o t ho is. A c c o r d i n g ly I am p r e p a r ed to a d o pt the a p p r o a ch of the Constitutional C o u rt in S h a b a l a l a 's c a s e. A f t er all L e s o t ho h as h ad its o wn fair share of repression, autocracy a nd or dictatorship of s o me sort as w e ll as p o w er struggles in w h i ch f u n d a m e n t al h u m an rights inevitably t o ok the b a ck seat. T he e x p e r i e n c es of S o u th Africa are therefore n ot w i t h o ut r e l e v a n ce to this c o u n t r y. C A N A DA In C a n a da an a c c u s e d 's right to a fair trial is c o n t a i n ed in Article 11 of the C a n a d i an C h a r t er w h i ch r e a ds thus: " I I. A ny p e r s on c h a r g ed w i th an offence h as a right (a) (b) to be tried within a r e a s o n a b le t i m e; © n ot to be c o m p e l l ed to be a w i t n e ss in p r o c e e d i n gs against that p e r s on in respect of the offence; ( d) to be p r e s u m ed innocent until p r o v en guilty a c c o r d i ng to l aw in a fair a nd public h e a r i ng by an i n d e p e n d e nt a nd impartial tribunal." N ow in R v H e i k el ( R u l i ng N o . 81 5 C R R ( 2 d) at 3 62 the C o u rt stated the following r e m a r ks w h i ch are v e ry illuminating a nd indeed persuasive at 3 63 thereof: "I am in c o m p l e te a g r e e m e nt w i th Tallis J A, in R v B o u r g et (supra), that w i th the a d v e nt of the C h a r t e r, full a nd timely d i s c o v e ry of ' d o c u m e n t s' that are material or relevant to the offences w i th w h i ch the a c c u s ed are charged, o u g ht properly to be c o n s i d e r ed a g u a r a n t e ed right of an a c c u s ed p e r s on within sections 7 a nd 1 l(d) of the Charter. To d e ny the a c c u s ed s u ch timely discovery, to my m i n d, is contrary to the principles of f u n d a m e n t al justice a nd will deprive an a c c u s ed of his or h er right to m a ke full a n s w er a nd d e f e n ce a nd t h e r e by infringe or d e ny the a c c u s e d 's sections 7 a nd l l ( d) C h a r t er rights to liberty a nd security of the p e r s o n. S u ch right, of c o u r s e, m u st be subjected to certain exceptions s u ch as ' d o c u m e n t s' w h i ch fall within a c a t e g o ry of privilege, t h o se w h i ch m ay require protective o r d e r s, t he possible t i m i ng of the disclosure of C r o wn w i t n e ss s t a t e m e n ts a nd editing of s a me by the court a nd other e x c e p t i o ns w h i ch m ay arise." I n d e ed on 7 N o v e m b er 1 9 91 t he C a n a d i an S u p r e me C o u rt g a ve j u d g m e nt in R v S t i n c h c o m be ( 1 9 9 2) L RC ( C r i m) 68 affirming t he a c c u s e d 's right to full disclosure a d d i ng at p a ge 9 thereof that " t he right to m a ke full a n s w er a nd d e f e n ce is o ne of the pillars of criminal justice on w h i ch we heavily d e p e nd to e n s u re that the i n n o c e nt are n ot c o n v i c t e d ." T he C o u rt c a u t i o n ed h o w e v er that t he obligation to disclose is n ot absolute. T HE U N I T ED S T A T ES OF A M E R I CA A similar trend is to be found in the United States w h e re an accused is entitled to information that will e n a b le h im to u n d e r s t a nd t he n a t u re of the c h a r ge he is facing. H o w e v e r, it is i m p o r t a nt to b e ar in m i nd t he r e m a r ks of the S u p r e me C o u rt in the c a se of R o v i a ro v U n i t ed States of A m e r i ca IL ed 2d 6 39 at 6 46 that: " We believe that no fixed rule w i th respect to disclosure is justifiable. T he p r o b l em is o ne that calls for b a l a n c i ng t he public interest in protecting t he f l ow of information against the individual's right to prepare his defence. W h e t h er a p r o p er b a l a n ce r e n d e rs n on disclosure e r r o n e o us m u st d e p e nd on the particular c i r c u m s t a n c es of e a ch c a s e, taking into consideration the c r i me c h a r g e d, t he possible d e f e n c e s, t he possible significance of the informer's t e s t i m o n y, a nd other relevant factors." T h e se r e m a r ks c o m m e nd t h e m s e l v es to m e. In the interpretation of Section 12 of the Constitution of L e s o t ho it is relevant also to h a ve r e g a rd to the provisions of S e c t i on 19 w h i ch g u a r a n t ee the right to equality b e f o re the l aw a nd the e q u al protection of the l aw in the f o l l o w i ng w o r d s: " 1 9. E v e ry p e r s on shall be entitled to equality b e f o re the l aw a nd to the e q u al protection of the l a w ." In interpreting a similar Article in the N a m i b i an Constitution n a m e ly Article 1 0 ( 1) thereof D u m b u t s h e na A JA delivering the j u d g m e nt of the A p p e al C o u rt in S v S c h o l tz ( s u p r a) h ad this to s ay at 1 1 2 :- " C o u r ts of l aw h a ve to interpret a nd e n f o r ce the protection of f u n d a m e n t al rights a nd f r e e d o m s. Article 10 ( 1) p r o v i d e s: " A ll p e r s o ns shall be e q u al b e f o re l a w ." A p a rt f r om this, equality p e r v a d es the political, social a nd e c o n o m ic life of the R e p u b l ic of N a m i b i a. A r e a d i ng of the Constitution leaves o ne in no d o u bt as to w h at is i n t e n d ed to be a c h i e v ed in o r d er for the p e o p le of N a m i b ia to live a full life b a s ed on equality a nd liberty. It is in this light that Article 12 should be l o o k ed at a nd interpreted in a b r o ad a nd purposeful w a y. A nd the courts m u st a sk w h e t h er the retention of privileges of witness statements a c c o r ds w i th the exercise of the rights in the Constitution. If the constitutional p u r p o se or intention is equality for all, o ne m u st a sk w h e t h er n o n- disclosure a c c o r ds w i th that p u r p o s e , or intention? I think not. To a c h i e ve equality b e t w e en the prosecution a nd the defence is w h at the Constitution d e m a n ds w h en it says "All persons shall be equal before the law." I respectrully share the v i e ws expressed by the L e a r n ed J u d ge of A p p e a l. I further accept the v i ew that a trial cannot be fair, just a nd balanced if the prosecution is allowed to k e ep relevant material such as witness statements close to its chest and thereby h o pe to spring a surprise on the defence for the purposes of securing a conviction. It certainly cannot h a ve b e en the intention of the framers of the Constitution to place the accused at a disadvantage in relation to the prosecution. S u ch a disadvantage in my v i ew does not accord with the tenor and spirit of the right to equality before the l aw as enshrined in the Constitution. I accept that the Constitution is premised on openness, transparency and accountability w h i ch are the corner stones of d e m o c r a c y. V i e w ed in this context the w o rd "facilities" used in Section 12 of the Constitution m u st obviously be interpreted in a meaningful a nd purposeful m a n n er that is to say in such a w ay as to include witness statements. Indeed I hold that the Bill of Rights as are entrenched in the Constitution m u st be given a generous and purposive interpretation a nd not a restrictive one. Accordingly I hold that the "blanket docket privilege" as stated in R v Steyn (supra) is inconsistent with the Constitution. T he privilege has in my v i ew b e en overtaken by the Constitution w h i ch has n ow entrenched a Bill of justiciable Rights. T he Constitution m u st therefore prevail as the s u p r e me law. As earlier stated there m ay be cases w h e re n on disclosure of witness statements is justified depending on the circumstances of a particular case. In such cases the prosecution should seek directions from the court rather than act as a j u d ge in its o wn c a u se by deciding w h at should be discovered or w h at s h o u ld not. T h at is preeminently the d o m a in of the court. It r e m a i ns then to consider w h e t h er the A p p l i c a nt h as s u c c e e d ed to m a ke out a case for disclosure of statements of prosecution witnesses w ho h a ve already given e v i d e n ce a nd the recalling of s u ch witnesses for further cross examination. As earlier stated M r. P h o o f o lo i n f o r m ed the court at the close of his cross examination of e a ch of the said witnesses that he h ad " no further questions." N or did he s e ek to reserve his cross e x a m i n a t i on of s u ch witnesses. I h a ve l o o k ed at the f o u n d i ng affidavit of the Applicant. N o w h e re d o es he deal with the n e ed to recall the witnesses a nd the justification for it. N or d o es he explain w hy the application w as m a de so belatedly. I h a ve taken these factors into consideration. W h i le the C o u rt is prepared to order discovery of the statements of witnesses w ho h a ve not yet given evidence the court feels h o w e v er that an application for late d i s c o v e ry a nd i n d e ed for recalling of witnesses is in the nature of an indulgence. T he court h as a discretion w h e t h er or not to grant such application but the discretion is h o w e v er o ne that m u st be exercised judicially a nd not capriciously or arbitrarily. T he court m u st l o ok at all the relevant factors. U n d o u b t e d ly the Applicant is facing a very serious c h a r ge indeed. T h at is a factor in his favour. B ut the matter d o es not, h o w e v e r, e nd there. I also o b s e r ve that the C r o wn h as not expressly s h o wn in its p a p e rs that it stands to suffer prejudice if the application in this particular prayer is granted. It is the d u ty of the Court however to determine the existence or otherwise of prejudice. In this regard I hasten to say that any delay in the prosecution of a criminal trial is clearly prejudicial to the ends of justice. Indeed justice delayed is justice denied. In S v Scholtz (supra) Dumbutshena A JA had this to say at p 121 :- "For disclosure to be effective it must be done at the earliest possible time. In s o me instances soon after arrest and in others long before the accused is asked to plead and in some cases only after the witness has given his evidence in chief. This depends on the circumstances of each case. However, the overriding factor should be the sufficiency of time in which the accused should prepare his or her case. In my view it won't be sufficient time to hand witness statements and other materials to the accused a few minutes before plea. There should be reasonable time to allow the accused to prepare thoroughly his reply to the charge and his defence." I respectfully agree. I should add however that what is reasonable time must depend on the circumstances of a particular case. It is the Court that must determine what is reasonable or what is not reasonable time. I have taken the Applicant's timing in bringing this application in a very dim light. This is so because the Applicant w as served with the indictment in this matter as far back as February 1997. His attorney M r. Phoofolo then wrote to the Director of Public Prosecutions on 28th day of February 1997 requesting inter alia, "copies of statements of witnesses to the trial" adding "the above request is m a de on the basis of the constitutional right to a fair trial." It is significant therefore that despite the fact that the d e f e n ce w as a w a re of the A p p l i c a n t 's "constitutional right to a fair trial" no a t t e m pt w as m a de h o w e v er to m a ke a t i m e o us application to C o u rt to e n f o r ce the right. On the contrary I find that the d e f e n ce t o ok a deliberate a nd w e ll calculated decision to p r o c e ed w i th the trial in the a b s e n ce of the s t a t e m e n ts of the p r o s e c u t i on witnesses. A c c o r d i n g ly I h a ve t a k en this factor into consideration in d e c i d i ng this a s p e ct of the application. In this r e g a rd the A p p l i c a nt states as f o l l o ws in p a r a g r a ph 6 of his f o u n d i ng affidavit:- " 6. 6.1 W h en the trial c o m m e n c ed w i t h o ut a ny r e s p o n se f r om the r e s p o n d e nt for the said statements, my attorney a d v i s ed me that the indictment s e e m ed to h a ve b e en sufficient in its s u m m a ry of particulars to inform me of the c a se I h a ve to m e e t. I a g r e ed to h a ve my trial p r o c e ed as usual, b ut I indicated to my attorney that I w as not at all w a v i ng my right to r e q u e st t h o se s t a t e m e n ts should I feel the n e ed to see t h em during the c o u r se of the trial." It is significant h o w e v er that the C o u rt w as n e v er told that the A p p l i c a nt w as n ot t h e r e by w a i v i ng his right to r e q u e st the statements. As earlier stated it w as o n ly v e ry late in the trial w h en on the 2 1 st M ay 1 9 97 an application for d i s c o v e ry of w i t n e ss s t a t e m e n ts w as m a de f r om the b ar b ut e v en t h en it w as n ot persisted in then. W h i le this C o u rt accepts that there c an be no strict t i me limits to applications for d i s c o v e ry of w i t n e ss s t a t e m e n ts a nd that e a ch c a se m u st be d e t e r m i n ed on its o wn merits it m u st be stated that applications of this n a t u re are generally a p re trial exercise. W h e re s u ch applications are m a de belatedly d u r i ng the c o u r se of a trial it is n e c e s s a r y, at the v e ry least, that the a c c u s ed c o n c e r n ed s h o u ld g i v e, e v en if o n ly briefly, specific r e a s o ns for his request. M o re i m p o r t a n t ly the a c c u s ed in s u ch a c a se m u st g i ve sufficient e x p l a n a t i on as to his d e l ay in m a k i ng the application to C o u r t. In this r e g a rd it m u st a l w a ys be b o r ne in m i nd that o n ce a trial h as c o m m e n c ed different considerations c o me into p l ay s u ch as the i m p o r t a n ce of the c a s e, the r e s p o n d e n t 's interest in the finality of the c a se in q u e s t i o n, the c o n v e n i e n ce of the C o u r t, the a v o i d a n ce of u n n e c e s s a ry delay in the administration of justice, the e x p l a n a t i on for the d e l ay in bringing the application to court, the b o na fides of the applicant in m a k i ng the application n a m e ly that the application is n ot m a de for the p u r p o s es of delay as well as the relevance of the i n f o r m a t i on s o u g ht to the issues in the criminal trial (the list is n ot e x h a u s t i v e ). As earlier stated the A p p l i c a nt h as offered no e x p l a n a t i on at all w hy this application w as n ot m a de t i m e o u s l y. T he C o u rt d e s e r v es to be treated w i th s o me m e a s u re of respect in this regard. C o n s e q u e n t ly the C o u rt shall m a rk its d i s a p p r o v al of the d e f e n ce c o n d u ct by refusing s o me of the o r d e rs s o u g ht as fully s h o wn b e l o w. I h a ve no d o u bt in my m i nd that the A p p l i c a nt h i m s e lf fully anticipated this ruling as a m a t t er of c o m m on s e n se a nd logic. In this r e g a rd it is significant to q u o te p a r a g r a ph 9 of the f o u n d i ng affidavit of the A p p l i c a n t. He states:- " 9. As the trial is already in progress I feel the n e ed to h a ve this application d e t e r m i n ed as a matter of u r g e n cy in order to avoid a situation w h e re I m i g ht h a ve to apply for recall of certain witnesses w ho h a ve already given their evidence. F u r t h e r m o re a ny delay in the determination of this application m i g ht be prejudicial to me as I m i g ht not be allowed to re-examine the past witness as it w o u ld s e em like re- o p e n i ng the matter for retrial." A proper reading of this paragraph h as left me in no d o u bt that the A p p l i c a nt h as actually not supported prayers 1© a nd (d), of the N o t i ce of M o t i on in his f o u n d i ng affidavit to the extent that statements of the witnesses w ho h a ve already given evidence be discovered a nd that s u ch witnesses be recalled. On the contrary he is m a k i ng it perfectly clear that he is avoiding just " s u ch a situation." I h a ve taken this factor into a c c o u nt as well. M o r e o v er the C o u rt attaches d ue w e i g ht to the fact that as earlier stated M r. Phoofolo unequivocally told the C o u rt that he h ad " no further questions" in respect of e a ch of the prosecution witnesses w ho h a ve already given evidence. In the result therefore a nd h a v i ng regard to the cumulative effect of all the factors m e n t i o n ed a b o ve the application is granted in t e r ms of prayer l(b) a nd © of the N o t i ce of M o t i on to the extent that the Director of Public Prosecutions is directed to avail to the Applicant or his attorney the statements of the prosecution witnesses w ho are to give e v i d e n ce in the trial of the Applicant. Prayer l(d) of the N o t i ce of M o t i on is h e r e by refused. In c o n c l u s i on I s h o u ld like to e x p r e ss my appreciation for the assistance r e n d e r ed to t he C o u rt by b o th M r. Phoofolo for the A p p l i c a nt a nd t he L e a r n ed D i r e c t or of P u b l ic P r o s e c u t i o ns M r. M d h u l i. I s h o u ld also m e n t i on that the latter fully s u p p o r t ed the d e v e l o p m e nt of the l aw as stated in this j u d g m e n t. As g u i d a n ce in future p r o s e c u t i o ns in w h i ch the a c c u s ed s e e ks to obtain the c o n t e n ts of police d o c k e ts a n d / or s t a t e m e n ts relevant to the p r o s e c u t i on on a ny particular m a t t er I h e r e by m a ke the f o l l o w i ng declaratory o r d er n a m e ly that: 1. T he " b l a n k et d o c k et privilege" c o n t a i n ed in the rule in R v S t e yn 1 9 54 in S. A. 3 2 4 ( A) is inconsistent w i th the Constitution to the extent to w h i ch it protects from disclosure all the d o c u m e n ts in a police d o c k e t, in all c i r c u m s t a n c e s, regardless as to w h e t h er or not s u ch disclosure is justified for the p u r p o s es of e n a b l i ng the a c c u s ed p r o p e r ly to exercise his or h er right to a fair trial in t e r ms of S e c t i on 12 ( 1) of the Constitution. 2. In p r o s e c u t i o ns b e f o re t he H i gh C o u r t, an a c c u s ed p e r s on (or his legal representative) shall ordinarily be entitled to the i n f o r m a t i on c o n t a i n ed in the police d o c k et relating to the c a se p r e p a r ed by the prosecution against h i m, including c o p i es of t he s t a t e m e n ts of w i t n e s s es w h om the police h a ve i n t e r v i e w ed in the matter, w h e t h er or n ot the p r o s e c u t i on intends to call a ny s u ch w i t n e s s es at the trial. 3. T he C r o wn shall be entitled to w i t h h o ld f r om the a c c u s ed (or his legal representative), a ny i n f o r m a t i on c o n t a i n ed in a ny s u ch d o c k e t, if it satisfies the C o u rt on a b a l a n ce of probabilities that it h as reasonable g r o u n ds for believing that the disclosure of a ny s u ch i n f o r m a t i on m i g ht r e a s o n a b ly i m p e de the p r o p er administration of justice or o t h e r w i se be against p u b l ic interest s u ch as for e x a m p le w h e re the i n f o r m a t i on s o u g ht to be w i t h h e ld w o u ld disclose the identity of an i n f o r m er w h i ch it is n e c e s s a ry to protect, or w h e re it w o u ld disclose police t e c h n i q u es of investigation w h i ch it is similarly n e c e s s a ry to protect, or w h e re s u ch disclosure m i g ht e n d a n g er the safety of a w i t n e ss or w o u ld o t h e r w i se n ot be in the public interest. 4. T he d u ty of the C r o wn to afford to an a c c u s ed (or his legal representative) the right referred to in p a r a g r a ph 2 a b o ve shall ordinarily be d i s c h a r g ed u p on service of the i n d i c t m e nt a nd b e f o re the a c c u s ed is r e q u i r ed to p l e ad in the H i gh C o u rt p r o v i d e d, h o w e v e r, that the C o u rt shall be entitled to a l l ow the C r o wn to defer the d i s c h a r ge of that d u ty to a later s t a ge in the trial if the p r o s e c u t i on establishes on a b a l a n ce of probabilities that the interests of justice require s u ch d e f e r m e nt d e p e n d i ng on the c i r c u m s t a n c es of a ny particular c a s e. 5. N o t h i ng c o n t a i n ed in this declaration shall be interpreted so as to p r e c l u de an a c c u s ed p e r s on a p p e a r i ng b e f o re a court o t h er t h an the H i gh C o u rt f r om c o n t e n d i ng that the p r o v i s i o ns of p a r a g r a p hs 2, 3 a nd 4 h e r e of s h o u ld m u t a t is m u t a n d is also be applicable to the p r o c e e d i n gs b e f o re s u ch other court. M . M. R a m o d i b e di J U D GE 18th d ay of J u ne 1 9 97 F or the Applicant : F or the R e s p o n d e n t: Phoofolo M r. M r. M d h u li (Director of Public Prosecutions)