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[2016] ZASCA 148
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Gumede v S (800/2015) [2016] ZASCA 148; [2016] 4 All SA 692 (SCA); 2017 (1) SACR 253 (SCA) (30 September 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 800/2015
In
the matter between:
TREVOR
GUMEDE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Gumede
v The State
(800/2015)
[2016] ZASCA 148
(30 September 2016)
Coram:
Bosielo, Swain, Zondi and Mocumie JJA
and Dlodlo AJA
Heard:
24 August 2016
Delivered:
30 September 2016
Summary:
Evidence obtained
as a result of an unlawful search in violation of right to privacy –
evidence of pointing out obtained after
failure to explain
consequences of not remaining silent and co-ercion –
detrimental to administration of justice –
evidence
inadmissible in terms of s 35(5) of the Constitution.
ORDER
On
appeal from Natal Provincial Division of the High Court (P C
Combrinck and Theron JJ concurring and Kondile J dissenting, sitting
as a court of appeal).
1
The appeal succeeds and the convictions and sentences imposed
pursuant thereto
are set aside.
JUDGMENT
Zondi
JA (Bosielo, Swain and Mocumie JJA and Dlodlo AJA concurred):
[1]
The appellant was indicted in the Durban and Coast Local Division,
Durban, on charges of murder, robbery with aggravating circumstances,
unlawful possession of a firearm and ammunition. Originally, there
were 4 accused but charges were withdrawn against accused 2
and 3.
The appellant was accused 1 and his remaining co-accused, Sipho
Patrick Magwaza (Magwaza) was accused 4. Magwaza was only
charged
with murder and robbery with aggravating circumstances.
[1]
[2]
The State’s case against the appellant was based on two pieces
of evidence namely a firearm with ammunition allegedly
discovered by
the police during search and seizure operation at the appellant’s
house and verbal statements that he had allegedly
made at a pointing
out. The appellant pleaded not guilty to all of the charges preferred
against him. In a written statement in
terms of s 115(1) of the
Criminal Procedure Act 51 of 1977 (the CPA), he contended that the
two sets of evidence, one arising from
the search conducted at his
home at 26 Portadown Place, Wiggins Estate, Cato Manor on 16 May
2000; and the other from the pointing
out, were inadmissible. He
alleged that the search pursuant to which a firearm was allegedly
discovered was unlawful and that he
was assaulted by police officials
resulting in him making a pointing out which was done under duress.
[3]
At the commencement of the trial, the State informed the trial court
that it intended to rely on two pointings out that were
done by the
appellant and Magwaza, as well as the contents thereof, the
admissibility of which the appellant had forewarned he
would
challenge. Despite this warning, the State, instead of holding a
trial-within-trial proceeded to lead evidence in the main
trial about
the search and the finding of a firearm and ammunition. In an attempt
to correct this apparent procedural irregularity
a trial-within-trial
was subsequently held with several police officers, the appellant and
Magwaza testifying under oath. It was
agreed that the evidence
already led in the main trial would be regarded as having been given
in the trial-within-trial.
[4]
The trial court ruled admissible both sets of evidence, namely
evidence of the pointing out by the appellant, and the evidence
of
the finding of the firearm and ammunition. The main trial proceeded
and at the conclusion of which the appellant was convicted
of all the
charges preferred against him. He was sentenced to life imprisonment
on count 2 (murder); 15 years’ imprisonment
on count 3 (robbery
with aggravating circumstances) and three years’ imprisonment
on counts 4 and 5 (possession of an unlicensed
firearm and
ammunition) which were taken together for the purposes of sentence.
[5]
The appellant appealed to the full court of the Natal Provincial
Division against the convictions. The appeal was dismissed
in a
majority judgment delivered by P C Combrinck J with Theron J
concurring. Kondile J dissented. I will revert to the court below’s
findings later in this judgment.
[6]
The events giving rise to the appellant’s convictions and
sentences are briefly as follows: During the morning of 13 April
2000, a pension pay-out point at Klaarwater Community Centre was
attacked by a group of armed men during which approximately R460
000
was taken. In the course of the robbery, the perpetrators opened fire
and as a result, one of the security guards at the scene,
Mr
Bhekinkosi Zulu (the deceased), was fatally wounded and dispossessed
of his firearm with ammunition. The deceased later passed
away at
hospital. The robbers departed from the scene and shortly thereafter
several police officers arrived. Inspector Sagren
Govender (Govender)
from Westmead Murder and Robbery Unit, Pinetown, who formed part of
the investigating team, arrived at the
crime scene around 10h00.
Govender observed and identified the spent cartridge casings as
belonging to a 9mm pistol and was present
when the photos of the
scene were taken. No weapons were found at the scene and the
information he received was that the pistols
of the deceased and the
erstwhile second accused, who was a security guard, had been taken by
the robbers. He was also told that
they had fled in a red Ford
Bakkie. Later that afternoon, Govender together with other police
officials found this vehicle abandoned
at Nagina Township in the
Mariannhill area.
[7]
A month later, on 16 May 2000 at about 01h00 a team of detectives,
including the investigating officer, Inspector Nkosinathi
Mbatha
(Mbatha), led by Govender, acting on the strength of information
provided to them by a police informer, proceeded to the
appellant’s
home. They gained entry into the house by forcing open the front
door. Once they were inside the house they conducted
a search, during
which a 9mm pistol was found under the appellant’s pillow. The
appellant, who was found sleeping in the
bedroom, was arrested and
taken away by the police. It is common cause that the search at the
appellant’s home and his arrest
were conducted and effected
without a warrant.
[8]
Later that morning at about 03h00, Govender and Mbatha interviewed
the appellant at the Westmead Murder and Robbery Unit offices.
Mbatha
acted as an interpreter for the appellant from English to isiZulu.
According to Govender, before the start of the interview
he informed
the appellant of his rights in terms of s 35 of the Constitution and
did so by reading them from the notice of rights
form. The appellant
signed the form to confirm that he was informed of his rights. During
the course of the interview, so testified
Govender, the appellant
incriminated himself which prompted him to stop the interview. He
thereafter informed the appellant that,
if he wished to, he could
make a statement to a magistrate or to a police officer of the rank
of Captain and point out certain
points to that police officer. The
appellant, Govender stated, did not wish to make a statement to a
magistrate, but elected rather
to do a pointing out with a police
officer.
[9]
Following what the appellant told Govender during the interrogation,
Captain Edward van Rensburg (Van Rensburg) from Serious
Violent
Crimes Unit, Durban, was approached and he agreed to conduct a
pointing out with the appellant. According to the pointing
out form
completed by Van Rensburg the appellant was brought to him for
a pre-pointing out interview at Westmead Murder and
Robbery Unit
office on 16 May 2000 at 13h30 during which he asked the appellant
pertinent questions regarding his willingness to
do the pointing out
and also explained what would occur at the pointing out. Sergeant
Magwaza (Magwaza) acted as an interpreter
for the appellant from
English to isiZulu. Van Rensburg denied that the appellant had told
him that the pointing out was not voluntary
and that he had, prior
thereto, been taken to the crime scene by Govender and Mbatha who
told him what to point out to Van Rensburg.
According to van
Rensburg, during the pointing out, the appellant directed him to the
scene of the crime in Klaarwater where he
pointed out a white
building with post boxes outside which the appellant identified to be
the place where he and ‘others
robbed the pension money from
the security guards’.
[10]
As mentioned, the appellant denied the charges against him. In
relation to the search at his home on 16 May 2000, he testified
that
in the early hours of that morning while sleeping in his bedroom
(with his wife and small child), he was woken up by a number
of
police officers with firearms pointed at him. He was asked who Trevor
was, and ordered to lie on the floor. The police started
to search
his home, and also escorted his wife and his youngest child out of
the room. During the search he was taken to the bathroom
and in the
passage way, he met Govender who asked him about a firearm and an
AK47. He informed Govender that he did not know anything
about a
firearm and an AK47. He denied that a firearm was found under the
pillow in his bedroom. He was arrested and taken away.
[11]
The appellant’s denial that a firearm was found in his bedroom
is contrary to the version which his legal representative
had put to
Govender at the trial. The following was put:
‘
MS
PUNGULA
. . . And if he comes to the box he will say that firearm was
recovered in his presence or in the presence of his wife, in the
bedroom that they were sleeping in. --- M’Lord, the accused was
sleeping alone and I recovered the firearm that I found in
that
bedroom’
[12]
With regards to the events leading to a pointing out, the appellant
testified that after his arrest, he was taken from his
home in
Mayville to Umlazi. It was only after going to Umlazi, so he
testified, that he was taken to the detectives’ offices
at
Westmead where he was interrogated by the police officers, including
Govender and Mbatha. There he was tortured. He was made
to undress,
to don a black plastic bag and to lie down. A tube was pulled tightly
over his face causing him to suffocate. During
this torture, he was
told to disclose where the money was. He had no knowledge of the
money but, to save his life, he lied and
said the money was at his
father’s house at Chesterville. It was only then that he was
taken to his father’s house.
He added that, in saying that the
money was there, his motive was to be taken to his father’s
house, not to inform his father
of his arrest, but to tell his father
that he thought he was going to be killed. The police went with him
to his father’s
house and when they arrived, he went into the
house with several police men. He told his father that he feared that
he would be
killed, and that he had informed the police that he had
stored money there. Govender and Mbatha were amongst the police
officials
present, and Mbatha shortly after they went inside the
house, took the appellant outside to wait in the police vehicle.
[13]
The police remained in the house for some time, and having found
nothing, returned to the vehicles and drove away with the
appellant.
After driving to different destinations again with Govender and
Mbatha, he was then taken to a certain spot in Klaarwater,
which he
claimed he was told to point out to Van Rensburg later that day, as
the place where the robbery occurred. This is what
he pointed out to
Van Rensburg, when the latter accompanied him to do a pointing out
later that day. The appellant maintained that
he was forced to point
out the scene to Van Rensburg. Govender and Mbatha threatened him
with torture if he failed to do so. The
appellant alleged that before
he was taken to the pointing out, Govender made him to sign a blank
form with dotted lines on it.
[14]
As I have pointed out in paragraph 4 above, the trial court ruled
that the evidence of the discovery of a firearm with ammunition
and
pointing out was admissible and rejected the appellant’s
contention that it ought to be excluded. In relation to the
search
and seizure operation conducted at the appellant’s house
without a search warrant, the trial court was prepared to
assume that
despite the urgency, a search warrant could have been obtained and
that the illegal entry was unnecessary. Although
the trial court was
of the view that in circumstances the evidence concerned would be
inadmissible it nevertheless regarded it
to be admissible because of
the provisions of s 35(5) of the Constitution. The trial court
reasoned that the exclusion of the impugned
evidence would, on the
facts of the case, have brought the administration of justice into
disrepute. As to the evidence of pointing
out the trial court
admitted it because it was satisfied that the pointing out had been
done freely and voluntarily, that the appellant
had full knowledge of
his rights and that he had waived them. It found the appellant’s
version to have been wholly improbable
as to be plainly untruthful
and rejected it. The trial court held that the evidence of the
discovery of the firearm and ammunition
was corroborated by the
evidence of the pointings out and the confession made at the time by
the appellant.
[15]
The findings of the trial court found favour with the majority in the
court below and were endorsed on the reasoning that any
delay in
obtaining a warrant would have defeated the object which the police
sought to achieve, namely the arrest of the appellant.
The court
below referred to
s 25(3)
of the
Criminal Procedure Act in
support of
its reasoning. As to the evidence of pointing out, the court below
held that it was properly admitted. Accordingly,
the court below
dismissed the appellant’s appeal. The current appeal is with
the special leave of this court.
[16]
Before us the appellant submitted that the evidence concerning the
discovery of the firearm ought to have been declared inadmissible
on
the grounds that the search and seizure operation was patently
unlawful and fell to be excluded in terms of s 35(5) of the
Constitution. It was argued that the search in the appellant’s
home was illegal and irregular because it was conducted without
a
search warrant and after entry into the house had been illegally
obtained. In relation to the pointing out and confession, it
was
submitted that the State failed to prove that the appellant’s
constitutional rights were explained to him prior to and
during the
pointing out and confession. It was further submitted by the
appellant that the State failed to prove that the pointing
out and
confession were freely and voluntarily made.
[17]
Although the State in its heads of argument had submitted that the
search and seizure operation conducted at the appellant’s
house
was lawful and that the firearm and ammunition found were properly
admitted it conceded during the hearing that the search
was unlawful
and that the police ought to have obtained a search warrant. In
relation to the pointing out, the State sought to
justify the
admission of the evidence emanating from the pointing out on the
ground that the appellant did the pointing out freely
and
voluntarily.
[18]
The issue before us therefore is whether the trial court was correct
in ruling that the evidence of both the search and seizure
operation
and the pointing out and confession, was admissible.
[19]
In South Africa, prior to 1994, the admissibility of improperly
obtained evidence was determined on the basis of its relevancy
and
the court was not concerned how that evidence was obtained.
[2]
It
would appear that the court, however, had a discretion to exclude
evidence if the strict rules of admissibility would operate
against
the accused.
[3]
That
approach changed with the advent of the interim Constitution which
came into force on 27 April 1994. Since that date the Constitution
has required criminal trials to be conducted in accordance with
notions of basic fairness and justice, but it is for all courts
hearing criminal trials or criminal appeals to give content to those
notions.
[4]
(See
also
S
v Zuma & others
[1995] ZACC 1
;
1995
(1) SACR 568
(CC) para 16
[1995] ZACC 1
; ;
1995 (2) SA 642
;
1995 (4) BCLR 401)).
[20]
The interim Constitution did not expressly deal with the
admissibility of improperly obtained evidence.
[5]
If
it was found that there had been a violation of the accused’s
rights (which were guaranteed by s 25 of the interim Constitution),
that entitled the accused to approach the court for an appropriate
relief. In other words, it did not prescribe a remedy for treating
unconstitutionally obtained evidence. The remedy now lies in s 35(5)
which provides as follows:
‘
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.’
[21]
In other words, s 35(5) requires the court to exclude evidence
obtained in a manner that violates any right in the Bill of
Rights
[6]
if
either the admission of that evidence will render the trial unfair or
otherwise be detrimental to the administration of justice.
[22]
In
Key v Attorney-General, Cape Provincial Division and another
[1996] ZACC 25
;
1996 (4) SA 187
(CC) para 13 the Constitutional Court set out the
general approach as to what constitutes a fair trial as follows:
‘
In
any democratic criminal justice system there is a tension between, on
the one hand, the public interest in bringing criminals
to book and,
on the other, the equally great public interest in ensuring that
justice is manifestly done to all, even those suspected
of conduct
which would put them beyond the pale. To be sure, a prominent feature
of that tension is the universal and unceasing
endeavour by
international human rights bodies, enlightened legislatures and
courts to prevent or curtail excessive zeal by State
agencies in the
prevention, investigation or prosecution of crime. But none of that
means sympathy for crime and its perpetrators.
Nor does it mean a
predilection for technical niceties and ingenious legal stratagems.
What the Constitution demands is that the
accused be given a fair
trial. Ultimately, as was held in
Ferreira
v Levin
,
fairness is an issue which has to be decided upon the facts of each
case, and the trial Judge is the person best placed to take
that
decision. At times fairness might require that evidence
unconstitutionally obtained be excluded. But there will also be times
when fairness will require that evidence, albeit obtained
unconstitutionally, nevertheless be admitted.’ (Footnotes
omitted.)
[23]
This court in
S
v Tandwa
[7]
made
it clear that s 35(5) does not provide for automatic exclusion of
unconstitutionality obtained evidence. In this regard it
had this to
say (paras 116 to 117):
‘
[116]
. . . .
Evidence
must be excluded only if it (a) renders the trial unfair; or (b) is
otherwise detrimental to the administration of justice.
This entails
that admitting impugned evidence could damage the administration of
justice in ways that would leave the fairness
of the trial intact:
but where admitting the evidence renders the trial itself unfair, the
administration of justice is always
damaged. Differently put,
evidence must be excluded in all cases where its admission is
detrimental to the administration of justice,
including the subset of
cases where it renders the trial unfair. The provision plainly
envisages cases where evidence should be
excluded for broad public
policy reasons beyond fairness to the individual accused.
[117]
In determining whether the trial is rendered unfair, courts must take
into account competing social interests. The court’s
discretion
must be exercised “by weighing the competing concerns of
society on the one hand to ensure that the guilty are
brought to book
against the protection of entrenched human rights accorded to accused
persons”. Relevant factors include
the severity of the rights
violation and the degree of prejudice, weighted against the public
policy interest in bringing criminals
to book. Rights violations are
severe when they stem from the deliberate conduct of the police or
are flagrant in nature. There
is a high degree of prejudice when
there is a close causal connection between the rights violation and
the subsequent self-incriminating
acts of the accused. Rights
violations are not severe, and the resulting trial not unfair, if the
police conduct was objectively
reasonable and neither deliberate nor
flagrant.’ (Footnotes omitted)
[24]
There is a great similarity between s 35(5) of our Constitution and s
24(2) of the Canadian Charter of Rights and Freedom
[8]
and
it is therefore not surprising that the impact of Canadian law, on
South African jurisprudence, in this area has been substantial
more
especially when it comes to the treatment of derivative evidence.
Thus in
S
v Pillay
2004
(2) SACR 419
(SCA) para 89 this Court after a thorough review of
Canadian cases dealing with s 24(2) such as
R
v
Collins
(1987)
28 CRR 122
(SCC);
Thomson
Newspapers Ltd et al v Canada (Director of Investigation and
Research
,
Restrictive
Trade Practices Commission
)
et
al
(1990)
47 CRR 1
(SCC) and
R
v Burlingham
28
(1995) CRR (2
nd
)
244 (SCC) summed up the Canadian position as follows:
‘
.
. . .
What emerges
from this is that evidence derived (real or derivative evidence) from
conscriptive evidence, ie self-incriminating
evidence
obtained through a violation of a Charter right, will be excluded on
grounds of unfairness if it is found that, but for
the conscriptive
evidence, the derivative evidence would not have been discovered. In
the present case the information sourced
from the illegal monitoring
of accused 10's telephone line, which ultimately led to the discovery
of the robbery money in her house,
was not
conscriptive
evidence.’
[25]
In
S v Magwaza
2016 (1) SACR 53
para 15 this court held:
‘
[15]
Although s 35(5) of the Constitution does not direct a court, as does
s 24(2) of the Charter, to consider “all the circumstances”
in determining whether the admission of evidence will bring the
administration of justice into disrepute, it appears to be logical
that all relevant circumstances should be considered (
Pillay
at 433
h
).
Collins
lists a number of factors to be considered in the determination
of whether the admission of evidence will bring the administration
of
justice into disrepute, such as, for example, the kind of evidence
that was obtained; what constitutional right was infringed;
was such
infringement serious or merely of a technical nature; and would the
evidence have been obtained in any event. In
Collins
(at 282) Lamer J reasoned that the concept of disrepute necessarily
involves some element of community views, and “thus requires
the Judge to refer to what he conceives to be the views of the
community at large”.
Pillay
(at 433
d
–
e
)
accepted that whether the admission of evidence will bring the
administration of justice into disrepute requires a value judgment,
which inevitably involves considerations of the interests of the
public.’
[26]
With these principles in mind, I revert to the facts of the case. In
regard to the absence of a search warrant, Govender testified
that
due to the urgency of the matter, he did not have adequate time to
obtain one. He explained that, on 15 May 2000, at about
22h00, he was
informed by a police informer that the appellant was implicated in
the Klaarwater robbery, and was at his house after
he had been away
since the robbery. The informer warned that there was a possibility
that the appellant would not be at his home
the following day.
According to the informer the appellant was armed. With this at hand,
at about 01h00, Govender and about nine
other police officers,
including Mbatha, proceeded to the appellant’s house and
forcefully entered it.
[27]
Once they were inside the house, which was a three bedroomed house,
Govender proceeded to one of the bedrooms where he found
the
appellant lying on a bed. He switched the light on. The appellant was
alone in the room and his wife and two minor children
were in another
room, not in the same room, as was suggested by the appellant. It was
Govender’s evidence that before arresting
the appellant, he
identified himself and informed the appellant of the purpose for
which he was at the appellant’s residence.
He searched the
appellant’s room and found a firearm containing rounds of
ammunition under his pillow. He alerted Mbatha
of his find, and then
seized and gave the weapon to Mbatha who had then joined him in the
room. Govender thereafter warned the
appellant that he was under
arrest and informed him of his rights in terms of s 35 of the
Constitution before driving away with
him.
[28]
What gave rise to the pointing out and the confession made at the
pointing out, is the interview Govender, assisted by Mbatha
had with
the appellant at Westmead Murder and Robbery Unit office at 03h00 in
the morning of his arrest. Govender’s evidence
regarding what
occurred during the interview and as to what had led to the appellant
expressing an intention to do a pointing out,
was to the following
effect:
‘
Yes.
--- M’Lord, the accused was prepared to proceed with the
interview and
that
he was prepared to proceed, he did not require any services of any
legal representative
.
M’Lord, during the course of the interview I put various
questions orally to the accused, and Mr Mbatha was also asking
him
questions. M’Lord, it came to a point that I had to stop the
accused from proceeding further as the replies given by
him
incriminated himself in the offence. It was at that point that I
informed him to stop and I said that what has been told to
me cannot
go further by myself, in that it’s inadmissible. However,
M’Lord, if he wanted to mention what was said by
himself, he
could address that, firstly, by making a statement to a Magistrate or
that he could mention that to an independent
police officer of the
rank of Captain and above and, M’Lord, in this regard he could
point out certain points to that policeman.
The accused understood
this, from his reply, and after a while indicated that he was
prepared to see a police officer in respect
of a pointing out. He did
not want to see a Magistrate. M’Lord, this interview with the
accused took about 45 minutes.’
(Own
emphasis.)
I
must point out that, according to Mbatha, the interrogation took
about an hour or an hour and 15 minutes, not 45 minutes as suggested
by Govender.
[29]
The following exchange occurred between the trial court and Govender
regarding how it came about that the appellant offered
to point out
certain spots in connection with the offences:
‘
GALGUT
DJP
Tell me something, you say in regard to accused No 1 that you
told
him he could do a pointing out to an independent policeman of
sufficient rank? --- That is correct, sir.
So
was it your idea that he should do a pointing out? --- No, it was
not. What I said – could I explain, M’Lord?
Well,
I wanted to ask you because the way you put it I got the impression
that you suggested to him that he should do a pointing
out. --- No,
no, M’Lord. What I …[intervention]
How
did it happen? --- What I said to him is that he could make a
statement to what he said to a Magistrate or he could say that,
what
he was saying, to a police officer of sufficient rank or point out
certain places to that officer.
Well
then, as I understand it, it was you that put the idea into his head
to do a pointing out? --- If that’s what the Court
is saying,
M’Lord, yes, I said that to him from the replies he had given
me.
Well,
let’s make no secret of it. What were those replies then?
---
From the accused?
What
is bothering me, you’ve not suggested that he said to you that
he wanted to point something out to you. --- If I can
explain to the
Court, M’Lord.
Yes.
--- From the replies of the accused, regarded the places where this
offence happened. From that reply I then canvassed the
issue
regarding a pointing out. The pointing out to an officer is about
pointing certain places out. That’s what was said.
On
that explanation then, it was not a case of him saying to you that he
wanted to point something out to you? --- Not to me, no.
What
…[intervention]
The
question of a pointing out arose because you said to him that, if he
wanted to, he could point out whatever to a policeman,
an independent
policeman? --- That is correct. That is correct.’
[30]
Mbatha, who was present when the appellant was interrogated at 03h00
in the morning, testified that during the course of the
interrogation
the appellant made a number of disclosures which amounted to a
confession. His evidence as to what led to the appellant
allegedly
offering to point out certain spots relating to the offence, however,
is not clear. When the trial court asked Mbatha
what gave rise to the
alleged offer, he said it was because of the questions that were put
to him.
[31]
The first question is whether the admission of the impugned evidence
rendered the trial unfair under s 35(5). This is the first
leg of an
inquiry under s 35(5). The evidence relating to the discovery of a
firearm and one emanating from the pointing out was
the only evidence
on which the State relied to prove its case against the appellant.
The evidence of a firearm came to light as
a result of a search the
police conducted at the appellant’s home. That search was
unlawful as it occurred without a search
warrant. The explanation
proffered by Govender for only arriving at 01h00 at the appellant’s
home without a warrant cannot
be reasonably possibly true if regard
is had to the fact that, already on 12 May 2000, Mbatha, with whom
Govender worked closely
on the case, had obtained a written statement
from a certain Bongani Madlala (Madlala) stating that Sammy Gumede of
Portadown Place
was involved in the robbery. Mbatha’s claim
that he did not know that Sammy Gumede referred to in that statement
was the
appellant cannot be true. In opposing the appellant’s
application for bail on 11 July 2000 Mbatha relied on Madlala’s
statement. Portadown Place was, incidentally, the address of the
appellant. It is therefore clear, as submitted by the appellant,
that
Mbatha and Govender were aware of the appellant’s alleged
involvement in the offence as early as 12 May 2000, but did
not
disclose this.
[32]
On the evidence, I am satisfied that a search warrant ought to have
been sought and obtained and there was sufficient time
for it to be
obtained. The police were not faced with circumstances of urgency or
emergency. The illegality of a search is therefore
beyond question
and that much was conceded by the State. The firearm was obtained by
means of the search which because of its illegality
violated the
appellant’s right to privacy.
[9]
But
the fact that the evidence of a firearm was obtained in that manner
did not, in my view, affect the fairness of the trial. This
is so
because the firearm is real evidence that the police probably would
have found if they had entered the premises lawfully
in terms of a
search warrant and without breaching the appellant’s right to
privacy. The existence of the firearm would have
been revealed
independently of the infringement of the appellant’s right to
privacy. Consequently, the fact that the evidence
of a firearm was
unfairly obtained did not necessarily result in unfairness in the
actual trial. I am satisfied therefore that
the admission of the
evidence of the discovery of the firearm under the pillow did not
render the appellant’s trial unfair.
[33]
The second question is whether the firearm evidence should in any
event have been excluded on the ground that its admission
was
detrimental to the administration of justice. This is the second leg
of an inquiry under s 35(5) and it involves public policy.
In
S v
Mphala & another
1998 (1) SACR 654
(W) at 657f-h (which was
quoted with approval by Scott JA in
S v Pillay
para 10, Cloete
J formulated the approach to be adopted as follows:
‘
So
far as the administration of justice is concerned, there must be a
balance between, on the one hand, respect (particularly by
law
enforcement agencies) for the Bill of Rights and, on the other,
respect (particularly by the man in the street) for the judicial
process. Overemphasis of the former would lead to acquittals on what
would be perceived by the public as technicalities, whilst
overemphasis of the latter would lead at best to a dilution of the
Bill of Rights and at worst to its provisions being negated.’
[34]
This Court in
Mthembu
v S
para 26, stated
that public policy involves amongst others ‘a consideration of
the nature of the violation and the impact
that evidence obtained as
a result thereof will have, not only on a particular case, but also
on the integrity of the administration
of justice in the long term.’
As pointed out Govender and Mbatha did not disclose that they were
aware of the appellant’s
alleged involvement in the crime,
several days before they unlawfully entered his premises. I agree
with the submission of the
appellant that where the police
deliberately mislead a court in an attempt to justify a serious
rights violation, the administration
of justice is brought into
disrepute.
[35]
In any event, in considering the second leg of the s 35(5) inquiry
both evidence concerning the firearm and the pointing out
must be
analysed together as the trial court convicted the appellant on the
basis of its finding that the discovery of the firearm
and ammunition
was corroborated by the evidence of the pointings out and the
confession made. There was therefore an inextricable
link between the
firearm evidence and the pointing out evidence, which was obtained by
some degree of co-ercion.
[36]
The appellant’s right to privacy and the right against
self-incrimination were flagrantly violated by the police during
the
investigation. Following upon an illegal search at his home the
appellant was interrogated by the police officers including
Govender
and Mbatha at their offices. This led to the appellant allegedly
offering to do a pointing out. As in the case of Magwaza,
[10]
the
evidence of Govender and Mbatha of what transpired from the time of
the appellant’s arrest until he arrived at a confessing
state
of mind was unclear and far from satisfactory. The appellant’s
version was that the pointing out was not free and voluntary.
The
appellant alleged that he was severely tortured by the police during
the course of the interrogation and to save his life,
he had to lie
about the money by saying that it was at his father’s house. It
is common cause that the police took the appellant
to his father’s
house in Chesterville though they denied that they did so for the
reasons advanced by the appellant. His
father corroborated the
appellant when testifying that the reason why the police took the
appellant to his home was in order to
conduct a search of those
premises.
[37]
Govender and Mbatha contradicted each other on the duration of
interrogation. Govender said it lasted about 45 minutes while
Mbatha
said it lasted about an hour or an hour and 15 minutes. This
contradiction undermined the reliability and integrity of Govender
and Mbatha’s evidence concerning what it was that led to the
appellant wanting to do a pointing out of the crime scene and
confessing to his participation in the robbery. In addition, I find
Govender’s evidence implausible that when he asked the
appellant whether he was involved in the commission of the crime, the
appellant simply answered ‘yes’ without any form
of
co-ercion being applied to the appellant.
[38]
The police appeared to have been over zealous in conducting their
investigation and by so doing, violated the appellant’s
constitutional rights. They entered the appellant’s house by
forcing open the front door at 01h00 in the morning of 16 May
2000.
At about 03h00 they started interrogating him at their office in
Westmead. According to Govender by 04h00 of the same morning
the
appellant was ready to confess to the crime and to point out to the
police the scene of the crime. At about 11h00 Captain Van
Rensburg
was approached to conduct a pointing out with the appellant and he
began a pre-pointing out interview with the appellant
at 13h30. The
pointing out process was finalised at 14h40.
[39]
As pointed out above, the appellant’s s 35 rights were read out
to him as set out in the form headed ‘Section 35
of
Constitution Arrested, Detained and Accused Persons’ which was
an exhibit at the trial. This form in para 1(b)(ii) records
the right
of an arrested person to be informed of the consequences of not
remaining silent. Neither Govender nor Mbatha stated
that when this
form was read out to the appellant, this was explained to him.
Although Govender maintained that he had explained
this to the
appellant when he was arrested, Mbatha who was present, simply said
Govender had advised the appellant of his right
to remain silent. The
appellant’s right to remain silent and his right to be
protected against self-incrimination were not
protected. The
investigation was conducted with haste and was completed almost
within twelve hours of his arrest. In my view, given
the serious
nature of the allegations against the appellant, Govender and/or
Mbatha should have informed him of the consequences
of not remaining
silent.
[40]
When regard is had to the manner in which Govender and Mbatha sought
to justify their failure to obtain a search warrant, followed
by
their inadequate and in certain respects contradictory explanation of
how the appellant’s rights were explained to him
on arrest and
before interrogation, and why after a very short and straightforward
interrogation at 3am, the appellant admitted
his guilt and wished to
do a pointing out, but not tell his story to a magistrate, it is
clear he must have been subjected to a
considerable degree of
co-ercion, such that his conduct was neither free nor voluntary.
[41]
In my view, having regard to all of the circumstances of this case,
the admission of the evidence of the discovery of the firearm
and the
pointing out evidence, was detrimental to the administration of
justice under s 35(5) and it ought to have been excluded.
Public
policy requires the police to observe and respect the law in the
conduct of their investigation. Police officers are not
above the law
and must conduct their investigations within the parameters of the
law, which includes the Constitution. As the discovery
of a firearm
and the pointing out and confession made at the pointing out were the
sole evidence against the appellant, and ought
not to have been
admitted, he should not have been convicted. Therefore the appeal
must succeed.
[42]
In the result I make the following order:
1
The appeal succeeds and the convictions and sentences imposed
pursuant thereto
are set aside.
________________
D
H ZONDI
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:
J E Howse
Instructed
by:
Nyandeni
& Partners, Durban
Honey
Attorneys, Bloemfontein
For respondent:
R Xaba
Instructed by:
The
Director of Public Prosecutions, Pietermaritzburg
The
Director of Public Prosecutions, Bloemfontein
[1]
Magwaza’s convictions and sentence were set aside on 25 March
2015 by this Court and the case is reported as
S
v Magwaza
2016 (1) SACR 53
(SCA).
[2]
D T Zeffertt and A P Paizes
The
South African Law of Evidence
2ed
(2009), at 716; Jean Campbell ‘Illegally obtained evidence: A
reappraisal’ (1968) 85
SALJ
at 246.
[3]
Mthembu v S
[2008]
ZASCA 51
;
[2008] 3 All SA 159
(SCA) para 22.
[4]
See
S v Magwaza
[2015] ZASCA 36
;
2016 (1) SACR 53
para10, and the cases cited
therein.
[5]
S v Tandwa & others
[2007] ZASCA 34
;
2008 (1)
SACR 613
(SCA) para 115.
[6]
Ian Currie and Johan de Waal The Bill of Rights Handbook 6 ed (2013)
at 309.
[7]
See footnote 5 above.
[8]
The Constitution Act, 1982
,
being Schedule B to the
Canada
Act 1982
(UK), 1982, c 11.
Section 24(2) reads:
‘
(2)
Where, in proceedings under subsection (1), a court concludes that
evidence was obtained in a manner that infringed or denied
any
rights or freedoms guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to
all the
circumstances, the admission of it in the proceedings would bring
the administration of justice into disrepute.’
[9]
Section 14 of the Constitution.
[10]
Supra para 19.