CCT36/02

[2003] ZACC 12

2003 (6) SA 505 (CC)

2003 (10) BCLR 1100 (CC)

Moseneke J Majority judgment

Goldstone and O'Regan JJ Separate judgment

Yacoob J Separate judgment

Ngcobo J Separate judgment

20 February 2003

28 August 2003

http://hdl.handle.net/20.500.12144/2190

Constitutional Court granted leave to appeal against judgment and order of Supreme Court of Appeal (SCA): S v Thebus and Another 2002 (2) SACR 566 (SCA) ; [2002] 3 All SA 781 (SCA). Constitutional Court confirmed SCA decision on appeal but varied certain reasons.

Moseneke J delivered the judgment for the majority of the Court, dismissing the appeal for the following two reasons. Firstly, common purpose neither amounts to an arbitrary deprivation of freedom, nor trenches the right to be presumed innocent. Therefore, the doctrine of common purpose is not unconstitutional. Secondly, the pre-trial right to silence under section 35(1)(a) must be distinguished from the right to silence during trial protected by section 35(3)(h), in that once decided to engage in giving evidence during investigation, inferences can be drawn from information provided.