On the 27 th April 1994 the new Constitution came into effect. The Constitution provides for the establishment of the supreme power to test the validity of all laws and executive action against the prescription in the Constitution. The Constitution furthermore provides inter alia for a fundamental Bill of Rights. The Bill of Rights as enforced by our courts will act as a guarantor of the values and rules of our society. The courts have the last say on the validity of all legislation.
Constitutional issues are likely to be raised in criminal proceedings.
As currently formulated, however, a breach of a person s fundamental rights will not constitute the basis of a criminal offence unless such a breach is rendered an offence through a statute. These issues are more likely to be raised as challenges to the criminal procedure followed or the method of obtaining evidence at any criminal proceedings. The constitutional validity of any law under which a prosecution is brought may also be raised as a defence to the criminal charges. Fundamental rights referred to in the constitution of the Republic of South Africa Act of 1993, which are of importance in so far as criminal procedure is concerned. Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.