THE CONSTITUITONAL POSITION OF THE SUSPECT

 
Satchwell J unleashed the debate in the discussion at hand in S v Sebejan and Others 1997 (1) SACR 626 (W). The accused was under cross-examination by counsel for another accused who put it to the accused that she had made a statement to the Sergeant. The accused confirmed this. When the cross-examining counsel put this statement to  her, her own counsel contested the admissibility of the statement, arguing that, at the time of making the statement she was a suspect and that she had not, before making her statement, been warned of her right to legal representation. Counsel submitted that this failure rendered the statement constitutionally objectionable and that it should be disallowed as evidence (at 627j-628c).

Judge Satchwell summarised the position with regard to those categories of persons that enjoy constitutional protection as follows:

s 25 of the [Interim] Constitution secures certain rights for 'detained, arrested and accused persons'. According to s 25(1) every detained person has the right to consult with a legal practitioner of her choice and to be informed of this right promptly;   in terms of 25(2) every arrested person shall, in addition to the rights which she has as a detained person, have the right promptly to be informed that she has the right to remain silent and to be warned of the consequences of making any statement; according to s 25(3) every accused person has the right to a fair trial which includes certain specified rights.(at 631a-c).

The conclusion Satchwell J reached was that the accused, at the time of making the statement, was neither an arrested nor an accused person. The Judge held that it would appear that, at first reading, the provisions of the Bill of Rights were not applicable to the accused in casu insofar as she was not an 'arrested or detained person' at the time of making the statement (at 631e).

The questions which fell to be decided were stated as follows by Satchwell J (at 631g-h):

 

(a)   What is a suspect?

(b)   What rights accrue to a suspect?

(c)   Was the accused a suspect at the relevant time? 

With regard to (a), Satchwell J, traversed the definitions of the term ‘suspect’ as contained in the dictionary and case law, and concluded by defining the concept as follows: 

It would appear that a suspect is one about whom there is some apprehension that she may be implicated in the offence under investigation and, it may further be, whose version of events is mistrusted or disbelieved (at 632c-d).

Turning to question (b), the Judge considered The 1931 Judges'Rules which were issued by the executive authorities as administrative directions to be observed by the police. Failure to obey them does not itself render a confession inadmissible, yet these rules (although they are regarded as merely administrative rules of fairness) are not completely without effect: breaches of the rules may be of weight in determining whether a confession had been voluntarily made without undue influence.  

Satchwell J summarised Judges' Rules 1 and as follows: 

In short, non-suspects may be questioned without any cautions or warnings whereas suspects, even in circumstances where answers to questions may establish innocence, should receive the benefit of a caution or warning. The suspect is treated differently and entitled to certain protective cautions not afforded to a mere witness (at 632e-h). 

Thereupon the Judge elaborated on the Constitutional position of an accused person with reference Inter alia to S v Zuma and Others 1995 (2) SA 642 (CC) in which it was held that s25(3) entitled every accused person a right to a fair trial. Although a certain number of rights are enumerated, there is nothing to suggest that these rights are exhaustive and exclusive of any other substantive or procedural protections which would fall within the ambit of a fair trial (at 632i-633a).

Satchwell J concluded that, if the suspect were deprived of the rights accorded an arrested person, a fair trial would be denied the person who was ‘operating within a quicksand of deception while making a statement.’ Pre-trial procedure is a determinant of trial fairness and is implicit in the Constitution and in our common law. A suspect would not have a fair trial ‘where pre-trial unfairness has been visited upon her by way of deception (at 634f-g). 

The fairness and integrity of the criminal process (including the investigatory process) require that the suspect, who is 'at or near the starting point of an investigation, and who operates under a greater disability than does an arrested person, i.e., the disability of deceptive security and ignorance, is no less entitled to the 'guiding hands' and 'checking mechanism' than an arrested person who becomes an accused. Furthermore, the trial procedures require no less to be uncorrupted by impropriety and unfairness where the statement of an accused person tendered to the court was made when that accused was a suspect (at 635a-c). 

The temptation should not exist that accused persons, who must a fortiori have once been suspects, are not advised of rights to silence and to legal representation and never receive meaningful warnings prior to making statements which are subsequently tendered against them in their trials because it is easier to obtain such statements from them while they are still suspects who do not enjoy constitutional protections. The prospect exists that statements tendered as evidence would always emanate from suspects and that the constitutional protections accorded to arrested persons prior to making statements or pointing out would become underutilised anachronisms.(at 635g-i). 

In the result, with regard to question (b), Satchwell J concluded that: 

No less than an accused is the suspect entitled to fair pre-trial procedures. These include the rights which would accrue to an accused when arrested: the right to remain silent and the right to be informed of the right to remain silent; the right to be informed of the consequences of making any statement; the right to choose and to consult with a legal practitioner and to be informed of this right promptly (at 636a-b).

 

However, the conclusion Satchwell J reached, on the facts, regarding question “c” was that the accused was not a suspect at the time of making her statement and therefore, in any event, not entitled to the Constitutional protection as outlined above (at 637f-g). This view apparently renders the opinion given by Satchwell J obiter, as would be seen below in which other courts refused to follow the exposé of the law given in Sebejan whereby suspects should be granted Constitutional protection.

In S v Ndlovu BCLR 1997(12) 1785 Magid J was prepared to assume that the statement in Sebejan that a suspect is entitled to some protective cautions was correct (at 1791c). However, the Judge had some reservations as to the definition of a suspect in terms of which it was held that ‘a suspect is one about whom there is some apprehension that she may be implicated in the offence under investigation. . . ‘. The concern of Magid J revolves around whether the phrase ‘some apprehension’ does not set the standard too low. In other words, does this definition contemplate the inclusion of too many persons under the term ‘suspect’? However, the Judge nevertheless agreed with the view expressed in Sebejan that there must at least be some ‘offence under investigation before anybody can be a suspect in relation thereto.’ (at 1792b). 

In S v Van der Merwe 1998 (1) SACR 194 (O) the question which presented itself was whether there was a duty on the investigating officer, over and above warning the accused in terms of the Judges’ Rules, to draw the accused’s attention to the provisions of the Constitution. Gihwala AJ could find nothing in the Constitution to this effect and was of opinion that the provisions of the Constitution regarding the rights of detained, arrested and accused persons must be read with those provisions of the Criminal Procedure Act and other authorities and must not be viewed in isolation. When a person is warned in terms of the Judges’ Rules, effect is given to the provisions of the Constitution as the nature and extent of the Judges’ Rules will lead to the proper protection of the rights of the arrested and/or accused (at 199h-200b). 

In S v Langa and Others 1998 (1) SACR 21 (T) the defence argued that the accused had not properly been informed of her right to consult with a legal practitioner of her choice in terms of s 25(1)(c) of the Interim Constitution. It was furthermore argued that the provisions of s 25(2)(a) and (c), (namely the right to remain silent and not being compelled to make an admission which could be used against her) had not been complied with. MacArthur J held that neither of these submissions was relevant in the matter at hand. The reason being that accused 1 had not been detained by the police at the time she volunteered the information and neither had she been arrested which is what is required in s 25(2).  

The use of the word 'detained' in s 25(1) is intended in my judgment to deal with situations where the person is incarcerated, as for example illegal immigrants. It does not deal with the situation where a policeman stops a person of whom he has cause to be suspicious and asks him what he is doing. These two subsections do not therefore apply in this case (at p27a-b). 

The Judge thereupon embarked upon the debate unleashed in Sebejan regarding the position of the suspect. 

The facts in that case are distinguishable from the present and in any event the discussion on these rights is obiter as the accused in that case was held not to be a suspect. In the circumstances I decline to follow it (at 27b) 

Pickering J in S v Mthethwa 2004 (1) SACR 449 (E) held that it was important to bear in mind that at the time he was questioned appellant was neither an arrested nor an accused person and that in these circumstances, the provisions of s 35 of the Final Constitution, which deal with the rights of arrested, detained and accused persons, were not of relevance. This is the case despite what was stated by Satchwell J in Sebejan, where it was held that a suspect who becomes an accused is entitled to fair pre-trial procedures which include the rights under s 25(3) of the interim Constitution accruing to an accused when arrested. Pickering J held that the decisions in Ndlovu and Van der Merwe in which no pre-trial Constitutional protection as such was given to the suspect, were correctly decided (at 453i). 

Turning to the definition of ‘suspect’, Pickering J found that the appellant was clearly a suspect, ‘even if the standard set by Satchwell J in this regard is to be raised (at 454h-i). 

In S v Orrie 2005(1)SACR 63(C) Bozalek J, pointing out that it is in s35 of the Constitution where the rights of arrested, detained and accused persons reside, held that it is likewise there that the rights of a suspect must be found. Conceding that no specific provision is made for a suspect to be informed of his or her status as a suspect, it nevertheless stands to reason that a person must be informed of this status, or at least be aware thereof, in order to properly consider and exercise the rights before interacting with the police (at 68j-69a).

 

The Judge gave an overview of the opinions expressed in the cases mentioned above in which the decision of Satchwell in Sebejan was critically considered (at 69d-f). Bozalek J concluded that, notwithstanding a judicial reluctance to extend the right to fair pre-trial procedures already enjoyed by arrested, detained and accused persons to suspects, the reasoning in Sebejan  was persuasive, thereby concurring with the conclusion reached by Satchwell J that, no less than an accused, a suspect is entitled to fair pre-trial procedures. An interpretation of the relevant provisions of s 35, extending them to suspects is, Bozalek J held, in keeping with a purposive approach which has regard to the interests which the rights were intended to protect (at 69h-70a). The Judge also reiterated the views expressed in Seberjan in which Satchwell J referered to the Constitutional Court decision in S v Zuma and Others.  The Judge also held that this approach is endorsed by the authors of South African Constitutional Law: The Bill of Rights.(Cheadle, Davis & Haysom) In which they observe that the Constitution's pre-trial rights should be extended to suspects lest investigating authorities simply left potentially accused persons in the category of 'suspect', enabling themselves to collect evidential material from the 'unwary, 'unsilent', unrepresented and unwarned suspect' (at 69g-70c). 

In S v Khan 2010(2) SACR 476 (KZP) Swain J held that what is common to all of the decisions above is that suspects are entitled to ‘certain protective cautions’. Sebejan and Orrie, on the one hand, and Ndlovu, Langa, Van der Merwe and Mthethwa, on the other, are to be distinguished in the manner in which these ‘protective cautions’ are extended to a ‘suspect’, as well as the nature and ambit of such ‘protective cautions’ (at par [21]). Swain J as follows distanced himself from the opinions expressed in Sebejan and Orrie: 

In my view, the provisions of s 35 of the Constitution of the Republic of South Africa Act, 1996, apply only to 'arrested', 'detained' or 'accused' persons. Due weight being afforded to the reasoning of Satchwell J in Sebejan and Bozalek J in Orrie, I am, with respect, not persuaded that the provisions of s 35 of the Constitution are applicable to 'suspects' (at par [22]) 

Swain J agreed with Gihwala AJ in Van der Merwe that the rights of ‘suspects’ were adequately protected by the well-established provisions of the Judges' Rules and that when a person is cautioned in terms of these Rules, actual expression is given to the provisions of the Constitution. A caution in terms of the Judges' Rules would suffice and that a further warning in terms of the Bill of Rights pertaining to arrested and detained persons would not be applicable (at par [22]). 

Citing Magid J in Ndlovu with approval, Swain J held that he did not intend to minimise the necessity of abiding by the constitutional rights of suspects. However, it is also important not to hamstring the police in their investigation (at par [23]). Casting an obligation upon the police, not only to caution suspects in terms of the Judges' Rules, but also to advise them of the rights contained in s 35 of the Constitution, would not serve to strike an even balance between the competing interests of the suspect and the police (at par [24]).