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[2008] ZASCA 51
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S v Mthembu (379/07) [2008] ZASCA 51; [2008] 3 All SA 159 (SCA); [2008] 4 All SA 517 (SCA) ; 2008 (2) SACR 407 (SCA) (10 April 2008)

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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
Case No:  379/07
REPORTABLE
In the matter between:
BONGANI
MTHEMBU
APPELLANT
v
THE
STATE
RESPONDENT
Coram: Cameron, Maya et
Cachalia JJA
Heard:  19 February
2008
Delivered:   10
April 2008
Corrected:  3
September 2008
Summary:  The
evidence of an accomplice extracted through torture, (including real
evidence derived from it), is inadmissible,
even where the accomplice
testifies years after the torture.
Neutral citation:
This judgment may be referred to as
Mthembu v The State
(
379
/2007)
[2008] ZASCA 51
(10 April 2008).
JUDGMENT
CACHALIA JA
[1] This appeal, in the
main, concerns the admissibility of evidence, obtained through the
use of torture, from an accomplice. The
question arises because the
chief state witness against the appellant implicated him in several
crimes through narrative and real
evidence – but disclosed,
when testifying at the trial more than four years later, that he had
been beaten and tortured before
leading the police to crucial
evidence. The point at issue is whether that evidence can be used
against the appellant.
[2]
The appellant, a former a police-officer, was convicted in the
Verulam Regional Court (Mrs Pillay) of theft of a Toyota Hilux

motor-vehicle on 5 January 1998 (count 2), theft of a Toyota
Corolla motor-vehicle on 3 February 1998 (count 3) and robbery

of a steel box containing R60 000 in cash and also of a further
amount of R8450 from the Maidstone Post Office at Tongaat (counts
4
and 5) on 10 February 1998. For the theft of the two vehicles, taken
together, he was sentenced to eight years’ imprisonment,
and
for the robbery to 15 years’ imprisonment – effectively
23 years’ imprisonment.
[1]
[3] He
appealed to the Durban High Court against his convictions and
sentence. That court confirmed the convictions but reduced
the
sentence on counts 2 and 3 to five years’ imprisonment and that
on counts 4 and 5 to 12 years’ imprisonment. The
effective
sentence was reduced to 17 years’ imprisonment.
[2]
Leave to appeal was granted to this court.
[4] At the trial, the
following witnesses testified for the State: Mr Sudesh
Ramseroop, Sergeant Selvan Govender, Mr Luke Krishna,
Mr Zamani
Mhlongo and Mr Dorasamy Pillay. In addition to testifying himself,
the appellant also called Mr Nkosinathi Zondo
and Mr Sithembiso
Philip Ngcobo to testify on his behalf. Not all their evidence is
relevant for this appeal. The foundation
upon which the convictions
rest is the evidence of Ramseroop, who was warned as an accomplice in
terms of
s 204
of the
Criminal Procedure Act 51 of 1977
.
[5] Ramseroop was 32
years old at the time of these incidents. He had lived in the Emona
area of Tongaat all his life and conducted
business as a panel-beater
from his home. He became acquainted with the appellant, who had left
the police service to start a business
as a taxi operator. The
appellant often brought vehicles to him for panel-beating. He
testified that towards the end of January
1998 the appellant,
accompanied by Ngcobo, brought the Hilux in count 2 to him. The
appellant asked him to repair and spray-paint
the vehicle. They
agreed on a price of R500. Two days later the appellant returned with
a Mr D K Mhlongo, who he introduced to
Ramseroop as his uncle from
Hambanathi. The appellant informed him that Mhlongo wished to buy the
vehicle. Two days later they
returned to inspect it and the day
thereafter they came back to collect the vehicle in return for
payment of the agreed amount.
[6] On 5 February 1998
the appellant brought another vehicle to Ramseroop’s home. This
was the Corolla in count 3. On this
occasion an unknown male
accompanied him. Ramseroop noticed that the vehicle’s ignition
switch had been damaged. The appellant
removed the
registration-plates and placed them in the boot. He also asked
Ramseroop to spray-paint the vehicle. At the appellant’s

request Ramseroop parked the vehicle in his sunken lounge thereby
concealing it. A few days later the appellant and his companion

returned. He appeared, Ramseroop said, to be in a hurry. The
appellant attached the registration-plates to the Corolla and drove

the vehicle away. He returned later, parked the vehicle in the lounge
and again removed the registration-plates. In the presence
of
Ramseroop’s wife he also handed Ramseroop R300 in note
denominations of R20. The appellant removed a metal box from the

vehicle’s boot and handed it to Ramseroop for disposal. After
the appellant’s departure, Ramseroop inspected the contents
of
the box and found that it contained paper clips and rubber bands. He
decided to keep the box and hid it in the ceiling of his
house.
[7] On 19 February 1998,
at about midday, Sergeant Govender, who was stationed at the Tongaat
Police Station arrived at Ramseroop’s
home. He was accompanied
by five other police officers from the field unit. They were acting
on information concerning a stolen
vehicle. (Ramseroop’s
evidence was that this occurred on 10 February, but he was probably
mistaken in this regard.) Ramseroop
was outside his house at the
time. Govender testified that he told Ramseroop that he was
investigating the whereabouts of a stolen
vehicle. In response
Ramseroop spontaneously began telling him how the appellant had
brought the vehicle to his home. Govender
stopped him from completing
his story and requested Ramseroop to first show him the vehicle.
Ramseroop obliged and escorted him
to his sunken lounge where the
vehicle had been parked. After inspecting the vehicle and
establishing that it had been stolen,
Govender seized it, arrested
Ramseroop and took him into custody. The main substance and sequence
of this interaction Ramseroop
confirmed in his evidence.
[8] Following Ramseroop’s
interrogation at the police station he disclosed information
regarding the Hilux to the police.
As a result of this disclosure,
Govender accompanied other members of the field unit and a few
detectives to Mhlongo’s home
at Hambanathi. Ramseroop was
present. Mhlongo was not at home. Instead they found his son Zamani,
who directed them to another
residence. There they found Mhlongo and
the Hilux which, according to the testimony of Dorasamy Pillay, the
complainant in count
2, had been taken from him at gun-point. Mhlongo
was arrested and the Hilux seized. The State was able only to prove a
case of
theft against the appellant as there was no evidence linking
him to the actual robbery of the Hilux.
[9] On 21 February at 7
am, acting on further information from Ramseroop, Govender again
accompanied some officers and Ramseroop
to the latter’s
residence. There, Ramseroop removed the hidden metal box from the
ceiling and handed it to them. This was
the very box that had been
taken from the post office during the robbery. Ramseroop was released
later that day, after making a
written statement to the police
concerning these events.
[10] To sum up,
Ramseroop’s evidence implicated the appellant in the thefts of
the Hilux and Corolla. His evidence regarding
the metal box linked
the appellant to the Maidstone post office robbery described below.
To the circumstances leading to the discovery
of the Hilux and the
metal box, which assumed critical importance before us, I will
return.
[11] The appellant denied
involvement in any of the crimes. Regarding the Hilux, the appellant
testified that he had merely been
helping Mhlongo, who had since
died, to facilitate a business deal with Ramseroop for the repair of
the vehicle. He asserted that
Ramseroop had falsely implicated him in
the crimes because the police had tortured him.
[12] Mr Luke Krishna’s
eye-witness testimony regarding the events at the post office placed
the appellant at the scene of
the robbery. He had been employed at
the post office at the time of the robbery. He attended an
identification parade at the police
station on 20 May 1998,
three and a half months after the incident, where he identified the
appellant, from a line-up of 11
persons, as one of two persons who
had participated in the robbery. He testified that the appellant
entered the post office with
one other person who stood at the door.
He himself was behind the counter. The appellant was well-spoken and
was wearing a blue
cap, jacket and pants. The appellant approached
him and asked him for five stamps. He then produced a firearm and
demanded money,
which had been delivered to the post office for the
payment of pensions. At this stage the appellant was facing him.
Krishna then
went to the back of the post office to fetch the money,
which was in a metal box. He returned and handed the box containing
the
money to the appellant. The appellant asked for more money and
Krishna returned with two other boxes, but these were empty. The

appellant then pointed his firearm at Krishna’s assistant Mr
Yugan Reddy, who was also behind the counter, and ordered him
to hand
over the money that was in the drawer. Reddy complied by throwing the
bundled money at the appellant. The appellant and
his accomplice then
left with the money. The incident lasted approximately five minutes.
[13]
The appellant confirmed that Krishna had identified him at the
identification parade. But he denied that he had been one of
the
robbers. He claimed that Krishna was able to identify him at the
parade only because he had seen him at the police station
in the
charge office on an earlier occasion. The learned magistrate rejected
this claim, with good reason. The identification parade,
however, had
several unsatisfactory features; to mention a few: the appellant was
denied the presence of his legal representative;
Krishna’s
evidence whether the other persons in the parade were of similar
build, height, age and appearance to the appellant
was
unsatisfactory; there is no evidence that the persons on the parade
were similarly dressed and Krishna was not told that the
suspect may
not be present. There was no evidence that Krishna had made a prior
description of the robbers, which bore any resemblance
to the
appellant. The State, without explanation, failed to lead any other
evidence regarding the circumstances under which the
identification
parade was held. The parade’s reliability was not tested and
therefore had little evidential weight.
[3]
For as Van den Heever JA stated:
[4]
‘
[W]here
such identification rests upon the testimony of a single witness and
the accused was identified at a parade which was admittedly
conducted
in a manner which did not guarantee the standard of fairness observed
in the recognised procedure, but was calculated
to prejudice the
accused, such evidence, standing alone, can have little weight.’
[14] The learned
magistrate and the court below were alive to the difficulty of
relying only on Krishna’s identification of
the appellant. But
they found that Ramseroop’s testimony that the appellant had
given him the metal box, which was proved
to have been the very one
taken during the robbery, constituted sufficient corroboration to
link the appellant conclusively to
the robbery.
[15] With respect to the
theft of the Corolla (count 3), counsel for the appellant urged us to
find that Ramseroop’s evidence
was insufficient to establish
the appellant’s guilt. He advanced two reasons for his
submission: first that Ramseroop, as
an accomplice, had an interest
to falsely implicate the appellant, and secondly, because the state
had failed to call Ramseroop’s
wife, who was clearly a material
witness regarding the circumstances under which the appellant had
brought the vehicle to their
home, to testify.
[16] The fact that
Ramseroop’s wife did not testify does not mean that Ramseroop’s
evidence was inadequate to prove
the case against the appellant on
this count. When Ramseroop, before his arrest, spontaneously told
Sergeant Govender that the
appellant had brought the vehicle to his
home, neither he nor the appellant were suspects. He had no reason to
implicate the appellant
at that stage. The appellant was well-known
to him and had also provided him with an income from the vehicles
which he had brought
for repairs. The magistrate analysed the
evidence carefully before concluding that the appellant was guilty on
this count. I have
no reason to reject her reasoning on this aspect.
It follows that the appellant was correctly convicted on this count.
[17] I return to the
circumstances leading to the discovery of the Hilux and of the metal
box. It is common cause that after Ramseroop
was taken into custody
on 19 February, the police at Tongaat assaulted him severely. The
assaults included torture through the
use of electric shock
treatment. Ramseroop’s uncontested evidence was that he
received a ‘terrible hiding’ on
the evening after he had
been taken into custody. Thereafter assaults continued until the
morning of the 21
st
when he took the police to his home to
show them where he had hidden the metal box. Regrettably, the
magistrate did not investigate
the extent, frequency and duration of
his unlawful treatment. Ramseroop’s cursory cross-examination
on this aspect was aimed
only at establishing his unreliability as a
witness, not whether the assaults and torture rendered his testimony
inadmissible.
[18] The learned
magistrate and the court below found that the assault and torture did
not render Ramseroop’s testimony unreliable
– a
conclusion I think was correct. However, neither the magistrate nor
the court below was asked to consider the admissibility
his evidence
even though it is beyond dispute that the chain of events which
resulted in the discovery of the Hilux and of the
metal box was
precipitated by his unlawful treatment.
[19] In this court the
parties were requested to address us on the admissibility of
Ramseroop’s evidence. The appellant submitted
that the evidence
relating to the discovery of the Hilux and the metal box must be
excluded because it was obtained in violation
of Ramseroop’s
right not to be tortured. Counsel for the State conceded that the
evidence revealed that Ramseroop had been
tortured but she made no
submissions regarding the admissibility of his evidence.
[20] It is necessary to
record that Mr Zamani Mhlongo, who was called as a witness for the
State, and Mr Sithembiso Philip Ngcobo,
who gave evidence on behalf
of the appellant, both testified that they had been tortured and
assaulted as a result of which they
made false statements to the
police. Zamani was 16 at the time. His court testimony departed
materially from the statement he had
made to the police. This
resulted in the court declaring him a hostile witness. Ngcobo
testified that the police applied electric
shocks to his testicles.
The magistrate found that their evidence could not be relied on
because of their close relationship with
the appellant.
[21] Ramseroop’s
oral testimony four years after these events was, though given under
statutory compulsion, manifestly not
given under duress. In
cross-examination he denied that he implicated the appellant only
because of the ‘terrible hiding’
the police had given
him. The question that faces us is whether his evidence relating to
the discovery of the Hilux and of the
metal box was nevertheless
‘obtained’ within the meaning of s 35(5) of the
Constitution and must, for that reason,
be excluded. The section
reads 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.’
[22]
In the pre-constitutional era, applying the law of evidence as
applied by the English courts, the courts generally admitted
all
evidence, irrespective of how obtained, if relevant.
[5]
The only qualification was that ‘the judge always (had) a
discretion to disallow evidence if the strict rules of admissibility

would operate unfairly against the accused’.
[6]
And where an accused was compelled to incriminate him or herself
through a confession or otherwise the evidence was excluded. However,

real evidence which was obtained by improper means was more readily
admitted (and also because its admission was governed by statute).
[7]
The reason was that such evidence usually bore the hallmark of
objective reality compared with narrative testimony that depends
on
the say-so of a witness. Real evidence is an object which, upon
proper identification, becomes, of itself, evidence (such as
a knife,
firearm, document or photograph – or the metal box in this
case).
[8]
Thus, where such
evidence was discovered as result of an involuntary admission by an
accused, it would be allowed because of the
circumstantial guarantee
of its reliability and relevance to guilt – the principal
purpose of a criminal trial.
[9]
As a rule, evidence relating to the ‘fruit of the poisonous
tree’ was not excluded.
[23]
There was however some resistance to this line of reasoning deriving
from normative considerations. In
S
v Sheehama
Grosskopf
JA stated that it was a basic principle of our law that an accused
cannot be coerced into making a self-incriminating
statement. He thus
held that
s 218(2)
of The
Criminal Procedure Act 51 of 1977
did
not authorise evidence of forced pointings out even though it
arguably did so.
[10]
And in
S
v Khumalo
[11]
Thirion J said that involuntary statements made by accused persons
are inadmissible against them, not only because they are
untrustworthy
as evidence but ‘also, and perhaps mainly,
because in a civilized society it is vital that persons in custody or
charged
with offences should not be subjected to ill-treatment or
improper pressure in order to extract confessions’.
[12]
With the advent of the new constitutional order looming Van Heerden
JA, in
S v
January
;
Prokureur-Generaal,
Natal v Khumalo
,
confirmed this line of thinking when he observed that there has ‘in
this century . . . rightly been a marked shift in the
justification
for excluding . . . involuntary confessions and admissions, and it is
now firmly established in English law that
an important reason is one
of policy’.
[13]
In
making this observation he was able to depart from the reasoning in
earlier cases, referred to above, which had placed their
emphasis
only on the relevance and reliability of the evidence. He thus held
that proof of an involuntary pointing out by an accused
person is
inadmissible even if something relevant to the charge is discovered
as a result thereof.
[14]
[24] Evidence of
statements emanating from third parties, unless confirmed through
oral testimony, was excluded as hearsay. And
when those persons did
testify, the question whether they had been ill-treated or improperly
induced to make statements was relevant
only to the weight of their
evidence, not its admissibility. I am not aware of any case where
evidence of a third party’s
statement was held inadmissible
because it was illegally obtained.
[25] I
return to s 35(5) of the Constitution. In
S
v Tandwa
[15]
Cameron JA observed the clear and unmistakable departure from the
pre-constitutional approach to the exclusion of improperly obtained

in these terms:
‘
The
notable feature of the Constitution’s specific exclusionary
provision is that it does not provide for automatic exclusion
of
unconstitutionally obtained evidence. 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 sub-set
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.’
[26]
To those observations I would add: public policy, in this context, is
concerned not only to ensure that the guilty are held
accountable; it
is also concerned with the propriety of the conduct of investigating
and prosecutorial agencies in securing evidence
against criminal
suspects. It involves considering 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.
[16]
Public policy therefore sets itself firmly against admitting evidence
obtained in deliberate or flagrant violation of the Constitution.
If
on the other hand the conduct of the police is reasonable and
justifiable, the evidence is less likely to be excluded –
even
if obtained through an infringement of the Constitution.
[27] A plain reading of s
35(5) suggests that it requires the exclusion of evidence improperly
obtained from any person, not only
from an accused. There is, I
think, no reason of principle or policy not to interpret the
provision in this way. It follows that
the evidence of a third party,
such as an accomplice, may also be excluded, where the circumstances
of the case warrant it. This
is so even with real evidence. As far as
I am aware, this is the first case since the advent of our
constitutional order where
the issue has pertinently arisen.
[28] I turn to how the
evidence of torture should be approached in the light of the
Constitution. On this matter the Constitution
speaks unequivocally.
Section 12 states that:
‘
(1)
Everyone has the right to freedom and security of the person, which
includes the right –
(a)  . . .
(b)  . . .
(c)  to be free from
all forms of violence from either public or private sources;
(d)  not to be
tortured in any way;
(e)  not to be
treated or punished in a cruel, inhuman or degrading way.’
[29]
There can be no doubt that the police violated all these rights in
the manner that they treated Ramseroop, and probably other
witnesses,
after his arrest. On the face of it, the evidence obtained as a
result of these violations ought to be excluded because
of its
‘stain’ on the administration of justice.
[17]
For present purposes it is necessary to deal only with the electric
shock treatment that Ramseroop was subjected to.
[30]
The Convention Against Torture (CAT), which South Africa ratified on
10 December 1998, defines torture
[18]
to include:
‘
.
. . [A]ny act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes
as
obtaining from him or a third person information or a confession . .
. when such pain and suffering is inflicted by or at the
instigation
of or with the consent or acquiescence of a public official or any
other person acting in an official capacity . .
..’
It is important to
emphasise that the definition requires the act to be performed for
the purpose of obtaining ‘information
or a confession’.
This is the mischief at which the CAT is aimed.
[31]
The CAT prohibits torture in absolute terms and no derogation from it
is permissible, even in the event of a public emergency.
It is thus a
peremptory norm of international law. Our Constitution follows suit
and extends the non-derogation principle to include
cruel, inhuman
and degrading treatment.
[19]
The European Convention on Human Rights does likewise.
[20]
The prohibition against torture is therefore one of our most
fundamental constitutional values. Having regard to this country’s

inauspicious pre-constitutional history, when the treatment of
criminal suspects and other detainees often involved the use of

torture, this is hardly surprising – for it is one of the most
egregious of human rights violations. And it is a crime that
the CAT
requires all member states to investigate thoroughly and to ensure
that perpetrators are severely punished.
[21]
[32] In regard to the
admissibility of evidence obtained as result of torture, Article 15
of the CAT cannot be clearer. It requires
that:
‘
Each
State shall ensure that any statement which is established to have
been made as a result of torture shall not be invoked as
evidence in
any proceedings, except against a person accused of torture as
evidence that the statement was made.’
The
absolute prohibition on the use of torture in both our law and in
international law therefore demands that ‘any evidence’

which is obtained as a result of torture must be excluded ‘in
any proceedings’.
[22]
As
the House of Lords has recently stated, evidence obtained by torture
is inadmissible, ‘irrespective of where, or by whom,
or on
whose authority it is inflicted’.
[23]
The reason is because of its ‘barbarism, illegality and
inhumanity’.
[24]
In
People
(at the suit of the A-G) v O’Brien
,
[25]
the Supreme Court of Ireland held that ‘to countenance the use
of evidence extracted or discovered by gross personal violence
would
. . . involve the State in moral defilement’. Lord Hoffman, in
A
v Secretary of State (No 2)
had
no doubt that that the purpose of the exclusionary rule is to uphold
the integrity of the administration of justice.
[26]
[33] I revert to the
facts of this case. The Hilux and the metal box were real evidence
critical to the State’s case against
the appellant on the
robbery counts. Ordinarily, as I have mentioned, such evidence would
not be excluded because it exists independently
of any constitutional
violation. But these discoveries were made as result of the police
having tortured Ramseroop. There is no
suggestion that the
discoveries would have been made in any event. If they had the
outcome of this case might have been different.
[34] Ramseroop made his
statement to the police immediately after the metal box was
discovered at his home following his torture.
That his subsequent
testimony was given apparently voluntarily does not detract from the
fact that the information contained in
that statement pertaining to
the Hilux and metal box was extracted through torture. It would have
been apparent to him when he
testified that, having been warned in
terms of s 204 of the Act, any departure from his statement would
have had serious consequences
for him. It is also apparent from his
testimony that, even four years after his torture, its fearsome and
traumatic effects were
still with him. In my view, therefore, there
is an inextricable link between his torture and the nature of the
evidence that was
tendered in court. The torture has stained the
evidence irredeemably.
[35]
It is important to point out this. Although the information regarding
the Corolla was probably also contained in Ramseroop’s

statement, this evidence was discovered independently – before
any constitutional violation.
[27]
It was as Ramseroop testified, and Govender confirmed, volunteered by
the former. This evidence was therefore not obtained improperly.
And
in argument before us there was no suggestion that it was. This is so
even though the statement containing the information
about the
Corolla, in addition to information on the other counts, was induced
by torture. The Corolla evidence thus remained untainted.
[36]
To admit Ramseroop’s testimony regarding the Hilux and metal
box would require us to shut our eyes to the manner in which
the
police obtained this information from him. More seriously, it is
tantamount to involving the judicial process in ‘moral

defilement’. This ‘would compromise the integrity of the
judicial process (and) dishonour the administration of justice’.
[28]
In the long term, the admission of torture-induced evidence can only
have a corrosive effect on the criminal justice system. The
public
interest, in my view, demands its exclusion, irrespective of whether
such evidence has an impact on the fairness of the
trial.
[37] For all these
reasons I consider Ramseroop’s evidence relating to the Hilux
and metal box to be inadmissible. Without
this evidence the remaining
evidence that the State presented is insufficient to secure
convictions on count 2 (theft of the Hilux)
and counts 4 and 5 (post
office robbery).
[38] What remains is only
count 3 (theft of the Corolla). Turning to the appropriate sentence:
the appellant was sentenced to five
years’ imprisonment.
However, he spent 23 months in custody awaiting trial, which must be
taken into account in deciding
on an appropriate sentence. I consider
four years on this count to be appropriate.
[39] What has happened in
this case is most regrettable. The appellant, who ought to have been
convicted and appropriately punished
for having committed serious
crimes, will escape the full consequences of his criminal acts. The
police officers who carried the
responsibility of investigating these
crimes have not only failed to investigate the case properly by not
following elementary
procedures relating to the conduct of the
identification parade, but have also, by torturing Ramseroop and
probably also Zamani
Mhlongo and Sithembiso Ngcobo, themselves
committed crimes of a most egregious kind. They have treated the law
with contempt and
must be held to account for their actions. I will
accordingly request the registrar to ensure that this judgment
reaches the following
persons:
·
The Minister for Safety and Security;
·
The National Commissioner of the South African
Police Service;
·
The Executive Director of the Independent
Complaints Directorate;
·
The Chairperson of the Human Rights Commission;
·
The National Director of Public Prosecutions.
[40] In the result the
following order is made:
(i)
The convictions and sentences on counts 2, 4 and 5
are set aside;
(ii)
The conviction on count 3 is confirmed;
(iii)
The sentence on count 3 is set aside and replaced
with a sentence of four years’ imprisonment.
A CACHALIA
JUDGE OF APPEAL
CONCUR:
CAMERON JA
MAYA JA
[1]
The appellant originally
faced seven charges. Only four are relevant to this appeal.
[2]
The
order indicates that the sentence is 12 years’ imprisonment.
And counsel for the State accepted that this was so. It
is however
clear from the judgment that the effective sentence imposed was 17
years’ imprisonment.
[3]
S
v Daba
1996
(1) SACR 243
(E) at 249d-e.
[4]
R
v Masemang
1950
(2) SA 488
(A) at 493-494.
[5]
S v Pillay
2004
(2) SACR 419
(SCA) para 6 of the judgment by Scott JA.
[6]
This
statement of Lord Goddard in
Kuruma
v R
[1955]
1 All ER 236
at 239, was approved by Rumpff CJ in
S
v Mushimba
1977
(2) SA 829 (A).
[7]
See s 218 of The
Criminal Procedure Act 51 of 1997 and its predecessors, s 274 of The
Criminal Procedure and Evidence Act 31 of
1917 and s 245 of The
Criminal Procedure Act 56 of 1955.
[8]
S
v M
2002
(2) SACR 411
para 31.
[9]
R
v Samhando
1943
AD 608
;
R
v Duetsimi
1950
(3) SA 674 (A).
[10]
1991(2)
SA 860 (A); Section 218(2) provides: ‘Evidence may be admitted
at criminal proceedings that anything was pointed
out by an accused
appearing at such proceedings or that any fact or thing was
discovered in consequence of information given
by such accused,
notwithstanding that such pointing out or information forms part of
a confession or statement which by law is
not admissible in evidence
against such accused at such proceedings.’
[11]
1992
(SACR) 411 (N).
[12]
Quoting
Lord Hailsham in
Wong
Kam-ming v The Queen
[1980]
AC 247
(PC) at 261.
[13]
1994
(2) SACR 801
(A) at 807g-h.
[14]
See
generally D T Zeffertt, A P Paizes and A St Q Skeen
The
South African Law of Evidence
(2003)
p 500-505.
[15]
[2007] SCA 34 (RSA) para
116.
[16]
R v Collins
[1987] 1 SCR 265
para
31.
[17]
S v Tandwa
above
para 120;
S
v Pillay
2004
(2) SACR 419
(SCA) paras 9 and 11 of the judgment of Scott JA.
[18]
Article
1.
[19]
Section
37(5)(c).
[20]
Article
3 and Article 15.
[21]
Article
4 of the CAT provides:
‘
1.
Each State Party shall ensure that all acts of torture are offences
under its criminal law. The same shall apply to an attempt
to commit
torture and to any act by any person which constitutes complicity or
participation in torture.
2. Each Party shall make
these offences punishable by appropriate penalties which take into
account their grave nature.’
[22]
Although
s 35(5) is concerned with the admissibility of evidence in criminal
proceedings, the CAT’s peremptory requirement
that such
evidence be excluded ‘in any proceedings’ is also
applicable to our law. The absolute prohibition against
torture in s
12 of the Constitution, which is not confined to criminal
proceedings, also requires that the exclusionary rule
be applied to
‘any proceedings’ in this country.
[23]
A
v Secretary of State for the Home Department (No.2)
[2005]
UKHL 71
para 51. This case involved the admissibility, before a
Special Immigration Appeals Commission, of torture evidence acquired

from a foreign intelligence agency without the complicity of British
authorities.
[24]
Nicolas
Grief
‘
The
Exclusion of Foreign Torture Evidence: A qualified Victory for the
Rule of Law
’
[2006]
EHRLR Issue 2 at 206.
[25]
[1965]
IR 142
at 150.
[26]
A
v Secretary of State for the Home Department (No.2)
[2005]
UKHL 71
p
ara
91.
[27]
Ramseroop’s
statement is not part of the record.
[28]
Per
Lord Hoffman in
A
v Secretary of State for the Home Department (No.2)
2005
[UKHL] 71 para 87.