CHAPTER FIVE THE RIGHT TO INFORMATION

1 CHAPTER FIVE. THE RIGHT TO INFORMATION . INTRODUCTION. The word ? INFORMATION is derived from the Latin word ?informo , which was adopted as ?inform and ? INFORMATION in Numerous definitions have been subscribed to the word ? INFORMATION , depending on the context in which it is used. The Merriam-Webster Online Dictionary defines ? INFORMATION , inter alia, as ?the communication or reception of knowledge or intelligence, or knowledge obtained from an investigation or study .2 This definition of INFORMATION is more relevant to the legal context.

2 The RIGHT to INFORMATION entails more than giving an individual access to documents compiled during an investigation. It also involves communication or reception of knowledge to enable an individual to exercise his Man's interest in INFORMATION stems from the fact that he is a social animal since his creation, and he needs to interact with other people and his surroundings in order to survive. Thus the collation, reception and communication of INFORMATION is seen as an important part of man's existence, and the manner in which he conducts these activities will enhance his quality of life.

3 The law is constantly transforming to reflect the social realities of the time. An individual needs to be informed about these changes, especially where these changes would impact on his daily life. This knowledge is necessary for the exercise and protection of the individual's rights. The individual should receive sufficient notification of these changes and proper guidelines should be furnished to law enforcement officers. However, one also needs to protect INFORMATION against misuse and abuse. Legal protection is not only accorded to INFORMATION itself, but it is also accorded to those individual and community interests which are considered as being worthy of legal Legal rules are formulated in the Act to prohibit the infringement of these The Constitution consolidates the position in the Act.

4 The principle provisions which are relevant to the RIGHT to INFORMATION are sections 32, 35(2)(a) and (b), 35(3)(a), (b). 1. Geldenhuys Die regsbeskerming van inligting (unpublished doctoral thesis) Unisa (1993) at 40. 2. Available at 6 June 2000. 3. To illustrate this, an individual should know why he is being arrested or detained in terms of s 39(2) of the Act. This will enable him to exercise a choice whether to remain silent or obtain legal representation. 4. Individual interests relate to, for example, the rights of an arrested person to be informed of the reason for his arrest in terms of s 39(2) of the Act.

5 Community interests relate to, for example, state security and the investigation and the solving of crime by the police. 5. The ensuing discussion in para below will focus on the arrestee's or accused's rights to INFORMATION in the Act. and (f) and section 35(4) of the The above provisions have important implications for access to documents in the police docket, access to particulars relating to charge sheets, lawful arrest and the RIGHT to be informed about legal representation. This CHAPTER will first address the accused's RIGHT to INFORMATION during the pre-trial stage.

6 This discussion will focus on the accused's RIGHT to INFORMATION in the summons, written notice, indictment and charge sheet, further particulars, arrest warrant, entry of premises for purpose of interrogation, search and seizure and statements to the police officer. Thereafter, it will address the pre-constitutional and constitutional position on an accused's RIGHT to INFORMATION . To this end, police docket privilege, the Promotion of Access to INFORMATION Act 2 of 2000, the RIGHT to be informed of the reason for detention, the RIGHT to be informed of the RIGHT to legal representation and the RIGHT to be informed of the RIGHT to remain silent will be discussed respectively.

7 Principles extracted from other countries will be applied to the relevant South African context. Finally, the conclusion will propose interim conclusions and recommendations drawn extensively from case law and legislation in South African law and foreign jurisdictions. AN ACCUSED'S ACCESS TO INFORMATION DURING THE PRE-TRIAL. STAGE. The notion that the accused in a criminal case should be informed in advance of the evidence against him is not foreign to South African criminal procedure. Under section 54 the Criminal Procedure Act 56 of 1955, the standard procedure in criminal trials in the High Court was for a preparatory examination to be held in the magistrate's court first, at which the state produced its evidence to establish a prima facie case against the The record of those proceedings was made available to the accused so that he had sufficient opportunity to prepare for the trial.

8 However, since 1977, this procedure has in practice been substituted by the procedures under CHAPTER 19 of the Although sections 123 to 143 of the Act make express provision for the holding of a preparatory examination in anticipation 6. Section 32 of the Constitution provides that everyone has the RIGHT of access to any INFORMATION held by the state, and any INFORMATION that is held by another person and that is required for the exercise of any rights. Section 35(2)(a) refers to the RIGHT of a detainee to be informed promptly of the reason for his detention whilst s 35(2)(b) refers to the RIGHT of a detainee to be informed of his RIGHT to legal representation.

9 The latter RIGHT is similar to s 35(3)(f) which refers to the RIGHT of an accused to be informed of his RIGHT to legal representation. Section 35(3)(a) provides that an accused person has the RIGHT to be informed of the charge with sufficient detail to answer it. Section 35(3)(b) provides that an accused is entitled to adequate time and facilities to prepare a defence, whilst s 35(4) provides that INFORMATION provided to a person must be given in a language that he understands. Please note that for future reference, the terms ?

10 Accused and or ?detainee will be interpreted in the masculine form for purposes of convenience. Nevertheless, this does not detract from the fact that the terms also apply to the feminine form as well. 7. A preparatory examination was also known as a ?mini-trial . It involved proceedings before a magistrate which preceded the actual trial before the High Court. This gave the accused an opportunity to effectively prepare for his case. 8. CHAPTER 19 refers to a plea in the magistrate's court on a charge justiciable in the High Court.