CONSTITUTIONALLY OBJECTIONABLE EVIDENCE

A Working Document for South African Legal Practitioners

[Revision in Progress]

Unless Indicated Otherwise, all Statutory Citations Refer to the Constitution of Republic of South Africa Act 108 of 1996

 

I have avoided the generally used title ‘Unconstitutionally Obtained Evidence’; such phrasing presupposes the automatic unconstitutionality of evidence the very constitutionality of which s35(5) would want us investigate. This subsection, which provides that, “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”, has two legs. The generally used title concentrates on only the first part which, if read alone, would indeed create the impression that the affected evidence is ipso facto visited with unconstitutionally. But such damnation only besets such evidence after an investigation is launched into the impact of the latter part of s35(5) on the evidence, viz. will the admission of that evidence render the trial unfair or otherwise be detrimental to the administration of justice?

Therefore let us consign the opening words of s35(5) to the backbenches (although of course not to oblivion) and rather concentrate on what is mentioned after the word ‘if’. Let us enlighten ourselves that, although there might be an objection that evidence be excluded, there is nevertheless a safety door through which such evidence could be admitted. This evidence, ostensibly teetering on the brink of exclusion, is further away (than what the uninformed might think) from doing just that because the hat-trick the Prosecution could come up with is that—as the second part of s35(5) reads—the admission of that evidence would not render the trial unfair or not otherwise be detrimental to the administration of justice. Therefore, can we under such circumstances be heard to speak about “Unconstitutionally Obtained Evidence’”? Such evidence cannot from the outset be condemned to “Unconstitutionality”. This approach unjustifiably gives the Bill of Rights the infamy for being overprotective towards the accused. The evidence is not “Unconstitutional”, but at most “Constitutionally Objectionable”.

 

Summary:

·                  The evidence must have been obtained in a manner that violates any right in the Bill of Rights;

·                  First ascertain if a right mentioned in the Bill of Rights was infringed;

·                  If not, cadit questio  (end the enquiry then and there);

·                  This obviates an unnecessary potentially protracted enquiring into whether or not the evidence should be excluded. S v Naidoo 1998 (1) SACR 479 (N) at 502e-f.

·                  But if it were established that a right mentioned in the Bill of Rights had been indeed violated, there is a  risk that the evidence might be excluded―but remember only “might”;

·                  The reason for using “might’ is that, even if a right were definitely proved to have been thus infringed, another inquiry should be launched into “if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”―i.e., an inquiry into the second leg of s35(5);

·                  So there is only a risk because the exclusionary rule is not absolute;

·                  The prosecution will in this event be hard pressed to prevent this evidence from being excluded;

·                  This can be achieved by convincing the Court that “the admission of that evidence would not render the trial unfair or not otherwise be detrimental to the administration of justice.”

This note only deals with the first leg of s35(5) and furthermore concentrates on only on those rights most relevant to Constitutional Criminal Justice, as treated of in the law reports viz., the Right to remain Silent, Legal Representation, Privacy and Dignity.

 

THE FIRST LEG

Categories of Persons Specifically Protected in the Bill of Rights

The Bill of Rights specifically distinguishes between the rights of:

·        arrested persons (s 35(1));

·        detained persons (s 35(2)),and

·        accused persons (s 35(3))―however, for the purposes of s35(5) the right of an accused is not directly relevant as these rights are specifically covered by s35(3).

 

Take Note

·        In practice It is not all that necessary to differentiate between arrested and detained;

·        Usually, upon arrest, arrestees would be under the control of the arrestor in the event of which they would automatically become a detained;

·        For our purposes, a consideration of most of those rights relating to arrestees (s35 (1)) could be projected onto detainees (s35 (1)).

 

THE ARRESTED

Section 35 (1) mentions the right:

·        to be informed of the right to remain silent (s 35(a);

·        to be informed promptly of this right (s 35(b);

·        to be informed of the consequences of not remaining silent (also s 35(b);

·        not to be compelled to make any confession or admission that could be used in evidence against that person (s 35(1)(c)).

 

Take Note

·        These apparently separate rights are essentially the same in content;

·        A person who is compelled to talk obviously wanted to remain silent in the first place.  S v Melani 1996 (1) SACR 335 (O) at 347e-h;

 

Practical Applications of the Right to Silence

[A]

It is argued that evidence is constitutionally objectionable in that the accused was not informed of their right to silence.

·                  It should first be ascertained when exactly the alleged infringement took place;

·                  By establishing that the constitutional right had not existed at the time of questioning, a protracted constitutional enquiry could be avoided;

·                  If the violation took place prior to the arrest, the s 35 injunction would not apply;

·                  Arrestees should also be warned of the “consequences of not remaining silent”―viz., any statement made could be used against them at the trial;

·                  This warning should be given “without delay”;

·                  Therefore, the police cannot arrest and incarcerated and explain the right to remain silent hours thereafter;

 

[C]

It is alleged that the right to silence was infringed by the taking of finger/footprints, blood samples, the identification parade process, etc.

 

(a) Blood samples / Fingerprints

·        The police are empowered to conduct these procedures in terms of s37 (read with s 225) of the Criminal Procedure Act;

·        Police can “take such steps as he may deem necessary” to determine these features—arguably, even by using reasonable force (s 37(1)(c));

·        Remember, if the validity of any statute is raised in the lower courts, “the court shall decide the matter on the assumption that such law . . . is valid” (s 110(2) of the Magistrate’s Court Act).

·        The cases cited below do not deal with challenges to the validity of s 37 and 225;

·        The objections revolved around the fact that the arrestee should have been warned of the right to silent prior to the ascertainment of the bodily feature;

·        In other words, the courts dealt with the application of s 37 vis-à-vis the Bill of Rights, not its validity;

S v Huma & Another (2) 1995 (2) SACR 411 (W) at 417d-e; S v Maphumulo 1996 (2) SACR 84 (N) at 90c-d); Levack & Others v The Regional Magistrate, Wynberg & Another 1999 (2) SACR 151 (C)

 

Case Law Summaries

·        I the above it was held that, during these procedures arrestees do not give oral statements;

·        They only provide what is called 'real' / physical evidence;

·        The right to remain silent is therefore not infringed.

 

 

(b)          The Right to Remain Silent and Identification Parades

It is argued that the evidence should be excluded because the accused had not been warned of their right to remain silent before the ID parade was held.

·                  However, during ID parades, arrestees do not say anything orally, or by conduct;

·                  Those on the parade are observed, knowingly or unknowingly;

·                  The witnesses are asked to say or do something with regard to the observed, e.g., to point out the culprit, if possible;

·                  There is no risk that the ID parade evidence as such would infringe the right to remain silent;

·                  Even a voice sample does not constitute giving a statement;

·                  A voice sample is not testimonial evidence, it amounts to real/physical evidence;

·                  The sample is given not to analyse the contents of what was said, but the manner in which it was said.

See also S v Ngwenya 1998 (2) SACR 503 (W) at 508-9; S v Mokoena 1998 (2) SACR 642 (W)

 

[C]

The right to silence and s 36 of Act 62 of 1955: Found in possession of reasonably suspected stolen property, whilst being unable to give a satisfactory explanation for such possession.

·                  It is objected that the arrested had not been warned of the right to silence before being asked to give the required explanation;

·                  Remember, first enquire if the arrested, at the time of questioning was arrested or detained;

·                  The police would have to question persons to enable themselves to arrive at the very decision as to whether or not to arrest;

·                  Usually those questioned would be neither an arrested nor a detained;

·                  They would not have the right to silence and therefore need not be explained anything in this regard.

S v Langa & Others 1998 (1) SACR 21 (T) at 26i-7a.

See also Osman & Another v A-G, Transvaal 1998 (2) SACR 493 (CC) at par [11] to [12] the Constitutional Court held that s 36 did not infringe:

·        the right against self-incrimination (s 35(1)(c); and

·        the right not to be compelled to give self-incriminating evidence; (s 35(3)(j));

·        s36 does not compel anybody to do or say anything, or involve pressure being applied;

·        Such persons have a choice to give an explanation for the possession of the goods;

·        No prejudice is suffered at trial in the absence of an explanation;

·        They can reserve the right to give an explanation afterwards at the trial.

[N.B.: This argument becomes a little more complicated regarding persons who have not yet been arrested/detained viz., those questioned as Suspects. I have dealt with this debate separately in a previous blog].

 

THE DETAINED PERSON

The component of s35 (2) that has in practise elicited the most litigation is the right to legal representation and/or legal aid (s 35(2)(b) and (c)):

2) Everyone who is detained .has the right-

(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;

(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

 

Practical Applications of the Right to Legal Representation

 

[A]

The Right to Legal Representation at ID Parades

S v Mhlakaza & Andere 1996 (2) SACR 187 (C) (at 119h)

·                  Persons are entitled to legal representation at an ID parade;

·                  The state could prove that there were sound reasons why such assistance had not been available and that the participant had not been prejudiced by the absence of a legal representative;

[NB: This is the position adopted by the Cape High Court]

Contra: S v Mphala (1) 1998 (1) SACR 654 (W) at 606e-f

·                  The legal position corresponds to that governing the taking of finger/footprints and blood samples. (supra);

·                  Whether or not a legal representative present, the accused does not have the right not to take part in an ID parade.

 

[B]

 

Often neither the presence of arrested/detained nor their co-operation is required at certain pre-trial investigations, e.g., a photo ID parade.

·                  During a photo ID parade only the witness and the investigating officer are usually present;

·                  Here the affected parties would not be entitled to legal representation as they would have no role to play;

·                  The same argument applies upon an allegation that the detained had a right legal representation when witnesses are being interviewed or during their pointings-out.

See: Hlalikaya and Others 1997 (1) SACR 613 (SE) at 616g-617c; Zwayi 1997 (2) SACR 772 (CkHC)

 

 

THE RIGHT TO PRIVACY (S 14)

·        This right is often violated in the cause of unlawful searches and seizures;

·        The provisions of the CPA that are the most important are s 20, 21 and 22;

·        s20 sets out what articles the police may seize;

·        s21 provides that these articles may as a rule only be seized under search warrant;

·        s22 sets out when person or premises may be searched without a warrant.

 

Privacy and s 22 of the Criminal Procedure Act

·        The provision that has elicited the most litigation is s 22;

·        s 22 allows the police search (without a warrant) any person or premises for the purpose of seizing certain articles under the following circumstances;

-        if the person-

i.       concerned consents to the search for and the seizure of the article;

ii.      who may consent to the search of the premises consents to such search and the seizure of the article in question; or

-        if the police on reasonable grounds believes that-

i.       a search warrant will be issued to him if s/he applies for it; and

ii.      the delay in obtaining the warrant would defeat the object of the search.

 

Take Note

·        Most objections revolve around the fact the police seized and searched property without a warrant;

·        Let us assume that the article seized or searched is covered by s 20, i.e., that it was concerned in or was reasonably believed to have been concerned in the commission or suspected commission of an offence.

·        It might be argued that the evidence was obtained in contravention of the right to privacy;

·        Put aside the argument as to the constitutionality of  s22 a lower court cannot pronounce upon the constitutionality of a statute;

·        The mere fact that the police searched the person or premises without a warrant does not mean that the search is a violation of that persons right to privacy;

 

Consent to the Search

The following Specific Points with regard to Consent

 

Example A

·        A lessor consents to the search of a room leased to a tenant;

·        Goods in such room are not under lessor's custody or control;

·        The lessor has no right to pry into tenant’s private possessions;

·        The consent by the lessor would not render the search and seizure lawful.

See: S v Moloutsi 1996 (1) SACR 78 (C) at 87c-d

 

Example B

·        The accused gave consent under protest merely in order to co-operate with the police in their investigation;

·        The accused’s behaviour might not amount to consent as envisaged by s 22(a) and that the seizure of the property might be unlawful.

See Ndlovu v Minister Of Police, Transkei, and Others 1993 (2) SACR 33 (TK)

[See further the following cases on the question as to who may consent in terms of s 22(a) and under what circumstances such consent is valid: S v Mayekiso en Andere  1996 (2) SACR 298 (C); The Minister of Safety and Security v Nombembe 1998 (2) SACR 160 (T) at 164a-165a]

 

Reasonable Grounds for Belief

·        A police official's belief that a magistrate would grant a search warrant in terms of s 20(b) if applied for must be based on reasonable grounds;

·        The existence of such a belief is to be adjudicated objectively on all the facts;

·        The onus is on the State to prove that reasonable grounds existed at the time when the search was conducted.

S v Mayekiso en Andere 1996 (2) SACR 298 (C)

·        When the police on reasonable grounds concluded that a search without a warrant was necessary, it would be in exactly the same as if a warrant was obtained;

·        The police could even If resisted conduct the search and seizure lawfully;

·        When the person suspected gives consent to the search, such person could not deprive the official of the right to seize the incriminating articles any more than consent could prevent the official, armed with a warrant, from seizing the articles.

See Nel v Deputy Commissioner of Police, Grahamstown & Others 1953 (1) SA 487 (E) at 490c-d

 

THE RIGHT TO HUMAN DIGNITY (S10)

Is the taking of fingerprints (and, especially blood) is an infringement of the right to human dignity?

Take Note

·        Such objection could be countered with the following points from  S v Huma and Another (2) 1995 (2) SACR 411 (W) at 417d-e;

-        The taking of fingerprints does not constitute inhuman or degrading treatment;

-        This procedure is accepted worldwide as a proper form of  individual identification;

-        The prints are taken in private and not in Court or a  public place;

-        No physical pain of any kind accompanies this process;

-        It has to be borne in mind that those fingerprints will be destroyed in the event of the accused being found not guilty;

-        Fingerprints can potentially be helpful to the accused in proving innocence;

-        This procedure therefore does not infringe a person's physical integrity.

 

PROCEDURAL MATTERS

The Onus Debate

The divergent views in this regard can be set out as follows:

a.      S v Hammer and Others 1994 (2) SACR 496 (C)), at 499d-e; S v Soci  1998 (2) SACR 275 (E) at 288h-289c

·        There should be no presumption in favour  of or against the reception of the evidence, the question of an onus should not be relevant;

·        The rules of law relating to the burden of proof did not apply, either for the final decision of the question, or for proof of the individual facts which bore on that decision;

·        A balanced and flexible approach was necessary;

·         

·        There is no onus on the State to disprove the alleged violations of the accused's rights under the Constitution.

 

 

b.      S v Sebejan and Others 1997 (1) SACR 626 (W) at 628e. S v Mathebula and Another (supra) at 129e-f.

·        The onus is on the defence;

 

 

c.      S v Naidooo 1998 (1) SACR 479 (N) at 523a

·        The defence bears the burden of proving, the existence  of the constitutional right on which the accused relied and its infringement;

·        This onus need only be discharged on a preponderance of probabilities;

·        It might well be that during the course of a trial-within-a-trial the onus on different issues would tend to shift back and forth between the accused and the State.