S v Tandwa and Others (538/06) [2007] ZASCA 34; [2007] SCA 34 (RSA) ; 2008 (1) SACR 613 (SCA) (28 March 2007)

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[2007] ZASCA 34
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S v Tandwa and Others (538/06) [2007] ZASCA 34; [2007] SCA 34 (RSA) ; 2008 (1) SACR 613 (SCA) (28 March 2007)

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THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case no: 538/06
REPORTABLE
In
the matter between
:
Siyabulela
TANDWA
First
appellant
Aubrey
GODOLOZI
Second
appellant
Nkqubela
TEKULA
Third
appellant
Khaya
GASA
Fourth
appellant
Tanduxolo
ROZANI
Fifth
appellant
Mzukiseni
TSHEFU
Sixth
appellant
Luyanda
NGUBELANGA
Seventh
appellant
and
THE
STATE
Respondent
Before
:
Cameron JA, Mlambo JA and Hancke AJA
Heard
:
Monday 19 and Tuesday 20 February 2007
Judgment
:
Wednesday 28 March 2007
Criminal law –
Right to fair trial (s 35 of Bill of Rights) – accused accusing
legal representative of misconduct leading
to fair-trial violation –
legal representative denying allegations – legal
representative’s account admissible
in evidence – how
appeal court should deal with unprobed counter-assertions –
accused’s allegations not raising
real possibility that there
was incompetence or that bad advice was given or that misconduct
occurred
Right to silence (s
35(3)(h) of Bill of Rights) – state case based on inference –
accused’s silence pivotal to
his conviction – silence not
without consequences
Admission of
unlawfully obtained evidence (s 35(5) of Bill of Rights) –
evidence procured by assault and torture – admission
violates
fair trial guarantee and also detrimental to administration of
justice
Dock identification of
accused –sufficient in circumstance to sustain conviction
Neutral citation: This
judgment may be cited as S v Tandwa [2007] SCA 34 (RSA)
JUDGMENT
CAMERON JA, MLAMBO JA
and HANCKE AJA:
[1]
During
the early morning hours of Wednesday 18 November 1998, a
robbery took place at the Standard Bank in Mthatha, Eastern
Cape, in
which the perpetrators looted R9.6 million from the branch’s
strongroom.  The police arrived soon after the
bank’s
usual daily round began.  They found three bank employees locked
inside the now-depleted strongroom.  All
three had spent the
previous night under the robbers’ guard.  At dawn the
robbers brought them to the bank and instructed
them to de-activate
the alarm and to open the strongroom safe.  All three claimed to
have done so under compulsion.
But within hours, police
suspicion focused intense scrutiny on two of the three, Mr Siyabulela
Tandwa and Mr Aubrey Godolozi.
By the day’s end the two
had been arrested on suspicion of complicity in the crime.  They
later stood trial in the Mthatha
High Court as accused 1 and 2, with
six further accused, on a charge of robbery in contravention of s
155(1) and (2) of the Transkei
Penal Code, Act 9 of 1983.
[1]
[2]
At the trial’s commencement the
accused (who were all legally represented) pleaded not guilty and
declined to offer any plea
explanations, reserving their defence.
Seven of the eight were convicted as charged.  Accused 4,
Ms Xoliswa Tekula,
the wife of accused 3, was acquitted.  Those
convicted were sentenced to terms of imprisonment of between 17 and
20 years.
With the leave of the trial judge (Van Zyl J) the
seven appellants now appeal against their convictions only.  We
refer
to them as they were arraigned in the trial court (where the
other accused were Mr Nkqubela Tekula (3), Mr Khaya Gasa (5), Mr
Tanduxolo
Rozani (6), Mr Mzukiseni Tshefu (7) and Mr Luyanda
Ngubelanga (8)).
[3]
The robbers’ plan and its execution
were soon established, and were not disputed at the trial.  In
the course of the
evening of 17 November 1998 – a drizzly night
– the three bank employees were accosted at their homes by
armed men
and taken together with the members of their households to
the residence of accused 2, where they were detained overnight.

The three bank employees were taken to a separate room – that
of accused 2.  There they were questioned about the bank’s

security systems and alarm codes.  Early the next morning the
robbers proceeded to the bank with accused 1 and 2 and the third

employee, Mr Mtutuzeli Sibindlana, where they disarmed the alarms and
gained access to the bank and its vaults. The loot was taken,
and the
robbers scarpered after locking the three employees in the safe where
the police later found them.
[4]
The state case against the eight accused
pivoted on three axes: direct evidence against five; inferential
evidence arising from
possession of part of the loot against one; and
inferential evidence from lapses in bank procedures implicating the
two employees.
Direct evidence of the complicity of five of the
accused came from an accomplice witness, Mr Eric Pakamani Dlamini,
who in court
identified accused 3, 5, 6, 7 and 8 as fellow robbers.
In the case of each of these accused, the state also led
corroborating
evidence.  This included a confession, admissions
and other compromising statements and pointings out, as well as cash
retrieved.
[5]
Against accused 4 (spouse of accused 3),
the state led evidence that she had safeguarded some of the loot,
contending unavailingly
that this – together with her
associated conduct and statements – established her
complicity.
[6]
Against accused 1 and 2 the state’s
case rested largely on lapses in and deviations from bank procedures
which it contended
were compatible only with the inference that the
two were complicit in the crime.  During police questioning
accused 1 denied
his involvement (though he pointed the police to
accused 2 as having possibly been involved).  But accused 2, the
police testified,
soon admitted complicity, and it was he who led
them to accused 3, 4 and 5.  After the state closed its case,
accused 2 testified
in his own defence, and was vigorously
cross-examined.  By contrast, accused 1 did not testify at all.
His advocate
closed his case without calling him to the witness
stand.  After he was convicted, but before being sentenced, he
sacked his
advocate (who had represented him for the preceding
sixteen months), claiming that he had been prevented from testifying
in his
own defence.  Our first task is to examine this claim and
consider its consequences.
Accused
1’s legal representation fair-trial complaint
[7]
The Constitution guarantees every accused
person the right to a fair trial (Bill of Rights s 35(3)).  This
includes the right
‘to choose, and to be represented by, a
legal practitioner’ (s 35(3)(f)), as well as the right ‘to
have a legal
practitioner assigned to the accused person by the state
and at state expense, if substantial injustice would otherwise
result’
(s 35(3)(g)).  The right to chosen or assigned
legal representation is a right of substance, not form:
‘
The
constitutional right to counsel must be real and not illusory and an
accused has, in principle, the right to a proper, effective
or
competent defence.’
[2]
Incompetent
lawyering can wreck a trial, thus violating the accused’s fair
trial right.  The right to legal representation
therefore means
a right to competent representation – representation of a
quality and nature that ensures that the trial
is indeed fair.
[3]
When an accused therefore complains about the quality of legal
representation, the focus is no longer, as before the Constitution,

only on the nature of the mandate the accused conferred on his legal
representative,
[4]
or only on
whether an irregularity occurred that vitiated the proceedings
[5]
– the inquiry is into the quality of the representation
afforded.
[8]
It
need hardly be added that accused 1 enjoyed a constitutional right to
testify in his own defence.  The right of an accused
person to
‘adduce’ evidence (Bill of Rights s 35(3)(i)) clearly
encompasses the right to adduce his own evidence.
It also
follows clearly from the structure of s 35 that an accused person has
the right to represent himself, without the interposition
of
counsel.
[6]
If the
unwanted or inept advice of counsel improperly or unfairly thwarted
his exercise of that right, his right to a fair
trial would have been
infringed.
[9]
And this exactly is accused 1’s
complaint: that his counsel’s incompetence, bad advice and
obstructive conduct violated
his fair trial guarantee.  We must
explain the circumstances under which his complaint arose.  The
trial was protracted
– it started in November 1999, one year
after the robbery, and the appellants were convicted thirty months
later.  Initially
accused 1 was represented by Mr Rowan, later
by Mr Noxaka, and from 1 March 2001 by Mr Fuyiziwe Shepherd Gagela,
an advocate practising
at the Bar in Mthatha, who appeared on Legal
Aid Board instructions.
[10]
The state closed its case against the
accused on 10 September 2001, more than six months after Mr Gagela
took over accused 1’s
defence.  On the same day various of
the accused, including accused 1 (but not accused 2), applied for
their discharge.
All the applications were refused.  In
dismissing accused 1’s application, the trial judge found that
‘there is
evidence at this stage justifying an inference that
he may have been involved in the commission of the offence’.
Thereupon
accused 1 and accused 4 closed their cases without
testifying.  Accused 4 was acquitted, but not accused 1.
[11]
When the convictions were brought in on 23
May 2002, accused 1’s bail was revoked, and he was taken into
custody.  Six
weeks later, on 10 July, all the accused appeared
in court when a postponement was granted.  When court resumed on
23 July,
the record reflects that Mr Gagela had been to see the judge
in chambers.  In court, he recorded cryptically that he was
‘withdrawing
as counsel of record for accused 1 because the
communication has since waned’.  The judge established
from Mr Gagela,
and confirmed from accused 1, that his withdrawal was
at the request of accused 1.  He then asked accused 1 whether
there
was ‘any possibility’ that he could ‘resolve
your difficulties’ with Mr Gagela.  To this accused 1’s

only response was ‘I don’t want to be represented, I want
to talk on my own.’  He offered no further elaboration.
[12]
The state then led evidence in aggravation
of sentence.  The next day, 24 July, the accused were invited to
lead evidence in
mitigation.  After the judge had explained his
rights and opportunities to accused 1, he took the stand.  He
proceeded
to relate his personal circumstances, including details
about his employment with the bank, his family, his financial
position
and health.  In the midst of these details, he stated
(second-person appellations omitted):
‘
When
this matter was proceeding I didn’t elect to remain silent, I
did want to speak but I was advised not to speak.
I was advised
by my attorney saying that he knows what he says because he is an
attorney, because he knows the law.  I did
as he told me
thinking that he knew what he was saying.  I also have two
photos showing my involvement in the sport as I have
told the Court,
I don’t know whether the Court would also like to see them or
whether the Court has got any interest in this
sport.’
In response the judge
merely indicated that since the evidence of his involvement in sport
was unlikely to be disputed, it was not
necessary to hand up the
photographs.
[13]
Although he was then cross-examined by
other counsel and by the state, and although the judge inquired of
accused 1 at the end of
his evidence whether he wished to say
anything else, nothing further emerged.  Sentence was passed two
days later, on 26 July,
accused 1 being sentenced to 18 years.
[14]
Only
in an affidavit lodged with his application for leave to appeal on 31
July 2002 did accused 1 elaborate on his claims.
For the first
time he now stated that he and his advocate had actually agreed that
he would testify – but that his advocate
had not only thwarted
this, but ‘misled’ him about the legal position.
[7]
[15]
When he granted the appellants leave to
appeal against their convictions on 15 November 2002, the trial judge
did not refer to these
allegations.  On appeal, however, counsel
for accused 1 relied on these affidavit assertions, urging us to find
that –
(a) the accused was not
properly informed about the consequences of not testifying;
(b) the accused to his
own prejudice followed his advocate’s advice not to testify;
(c) the accused’s
right to a fair trial was accordingly breached and his appeal should
on this ground be allowed.
[16]
In
response, the state appended to its written argument an affidavit
from advocate Gagela disputing the claims of accused 1.
Mr
Gagela asserted that throughout the period he represented accused 1
‘we had constant communication with regard to the
case,
especially during the defence case’, and that he had fully and
properly advised his client about the risk of not giving
evidence.
[8]
[17]
The
first question is how we must deal with the factual disputes the
accused’s claims present.   How should an appellate

court deal with conflicting testimony from an accused and his former
legal advisor as to what transpired between them?
[9]
In particular, is his legal representative’s affidavit
admissible?  The accused’s entitlement to legal
professional privilege protected the communications between him and
his advocate from disclosure.  What transpired in their

discussions cannot be revealed unless the accused gave his consent or
waived his privilege.
The
common law rule, though it embodies a substantive principle central
to the functioning of the legal system, and not merely a
rule of
evidence or procedure,
[10]
is
statutorily embedded in our law of criminal procedure.
[11]
[18]
Since
accused 1 has nowhere expressly consented, the admissibility of his
advocate’s affidavit depends on whether he waived
his right to
legal professional privilege.  In
Peacock
v SA Eagle Insurance Co Ltd
[12]
and
Harksen
v Attorney-General Cape
,
[13]
the courts drew a distinction between implied and imputed waiver of
legal professional privilege.  Implied waiver occurs (by
analogy
with contract law principles) when the holder of the privilege with
full knowledge of it so behaves that it can objectively
be concluded
that the privilege was intentionally abandoned.  Imputed waiver
occurs where – regardless of the holder’s
intention –
fairness requires that the court conclude that the privilege was
abandoned.  Implied waiver entails an objective
inference that
the privilege was actually abandoned; imputed waiver proceeds from
fairness, regardless of actual abandonment.
[19]
In
propounding a doctrine of imputed  waiver
[14]
(which may also be termed fictive or deemed waiver),
[15]
the judges in
Peacock
and
Harksen
drew on a passage from Wigmore, much-cited in our courts, that
enjoins ‘fairness and consistency’ in inferring the

extent of an implied waiver of attorney/client privilege.
Wigmore in the same paragraph goes on to conclude that it is a
‘fair
canon of decision’ that ‘when a client alleges a breach
of duty by the attorney, the privilege is waived
as to all
communications relevant to that issue’.
[16]
[20]
The
canon seems to us to be clearly right.  Where an accused charges
a legal representative with incompetence or neglect giving
rise to a
fair trial violation, it seems to us most sensible to talk of imputed
waiver rather than to cast around to find an actual
waiver.
[17]
Even without an express or implied waiver, fair evaluation of the
allegations will always require that a waiver be imputed
to the
extent of obtaining the impugned legal representative’s
response to them.  Rightly therefore, counsel on appeal
accepted
that the advocate’s affidavit was admissible in assessing the
accused’s claims.
[21]
The
primary question is whether the failure of representation the accused
alleges in fact occurred.  The details of the accused’s

complaint are roundly denied by his legal representative.  To
some extent, of course, this is unsurprising, since his professional

reputation is at stake, and there is a natural incentive to refute
the claim.  It will be a rare advocate indeed who admits
either
coercing the accused or not informing him of material consequences of
trial-related decisions.
[18]
[22]
The
assertion and counter-assertion are both on affidavit, and neither
deponent has been tested by cross-examination.  This
need not
however leave an appellate court helpless.  The contest of two
unprobed counter-assertions can, in an appropriate
case, be properly
explored to establish the truth.  And this court has the
inherent power
[19]
to develop
if necessary a mechanism to establish which of the accused or his
legal representative is telling the truth.  This
could be done
in an appropriate case by a commission
[20]
or other suitable proceeding.
[21]
[23]
But this is not in our view an appropriate
case.  The question whether such a procedure need be developed
will arise only where
the accused’s allegations raise a real
possibility that there was incompetence or that bad advice was given
or that misconduct
occurred.  In the present case the accused’s
allegations do not in our view pass the minimum threshold.  They
are
so weak, contradictory and inherently improbable that we consider
they must be rejected on affidavit without further inquiry.
We
say this for the following reasons.
(a) The accused was not
an unsophisticated or illiterate person.  On the contrary, he
was a well-educated man who had completed
his schooling at St John’s
College in Mthatha before starting employment with the bank in 1984.
At the time of the
robbery, he had had more than 14 years’
service, and occupied a responsible position as the branch’s
senior treasury
custodian.  During his evidence in mitigation he
appeared articulate and proficient.  This does not mean that he
could
not have been bullied, misled or misadvised: but it does bear
on how likely it was that this happened.
(b) The accused gave
evidence and was cross-examined in a bail application not long after
his arrest, which led to his being granted
bail.  He was thus
aware of his right to testify, and indeed of the importance of
exercising it.  This does not mean
that he may not have been
incompetently persuaded not to give evidence at the criminal trial,
or unjustly thwarted in a determination
to do so, but again it bears
on the likelihood of that happening.
(c) The accused’s
complaint against his advocate was serious.  It was not only
that his counsel had overridden his wish
and a prior agreement that
he would testify, but that counsel had failed to inform him that an
inference could be drawn against
him should he fail to testify and
thus that counsel had ‘misled’ him about the law.
Despite the magnitude of
these infractions, and their momentous
consequences, the accused made no mention of them on his first
post-conviction court appearance
on 10 July.  It seems to us
improbable that if these claims had been true he would not have
raised them at this, the first
available opportunity.
(d) Likewise, when he
terminated the services of his counsel at the next court appearance,
before testifying in mitigation, the
accused did not explain his
reasons for wanting ‘to talk on my own’, despite having
an opportunity to do so.
This renders his grave claims
implausible.
(e) What is more, the
accused presented his complaint in conflicting terms: what he said in
court and in his affidavit were materially
different.  During
his evidence in mitigation, he claimed only that though he had wanted
to testify, he was ‘advised
not to speak’, and had
followed this advice, trusting his lawyer.  He made no mention
of a prior agreement that he would
testify, no mention of being
prevented from speaking, and no mention of being misled by errant
advice.  The first time these
latter claims arose was in the
affidavit attached to his application for leave to appeal, after
sentence was passed.  The
discrepancy casts further doubt on
their veracity and points instead to their inauthenticity.
[24]
In short, we find it inherently improbable
that a well-educated accused with experience of testifying in
previous proceedings would
not either insist on giving effect to a
previous agreement to testify, or complain immediately and in precise
terms, at the first
public opportunity, about having been unjustly
thwarted in his wish to do so.  There will no doubt be cases in
which legal
representatives mislead, misadvise, bully, obstruct or
fail their clients; and courts will be astute to intervene when they
occur.
We are also alert to the fact that allegations of
misconduct or incompetence by counsel may involve seemingly
contradictory allegations,
and that criminal accused may be in a
vulnerable position in relation to their counsel.
But
in the particular circumstances we have set out we find it impossible
to attribute even the minimum plausibility to the accused’s

claims, and not to accept the exposition of his advocate.  That
account accords with the accused’s first statement to
the
judge, which he advanced while testifying in mitigation, namely that
he was advised not to give evidence, and that he accepted
that
advice.
[25]
What his advocate’s exposition adds
to the accused’s account is that the accused accepted this
advice only
after
being properly advised about its possible consequences.  Given
the express conclusion the judge propounded in refusing to
discharge
the accused – that at the close of the state’s case there
was evidence ‘justifying an inference that
he may have been
involved in the commission of the offence’ – we find it
improbable to a high degree that the accused’s
advocate did not
take the elementary step of explaining to him the risk inherent in
not testifying.
[26]
As
a matter of fact we therefore conclude from the circumstances
surrounding the complaint, without the need for further inquiry,
that
it is unlikely that the accused was misadvised and misled as he
claims.  We conclude instead that his complaints against
his
counsel are to be attributed to chagrin at the fact that he was
convicted.
[22]
[27]
This
conclusion makes it unnecessary for us to weigh further what
constitutes incompetence for fair-trial purposes, the extent to
which
the conduct here alleged indeed showed incompetence, the degree to
which a court considering the conduct of the trial must
be
deferential in assessing counsel’s decisions and conduct, and
whether the conduct alleged resulted in a violation of the
accused’s
fair trial rights.
[23]
[28]
But we think fairness requires us to add
two observations.  First, the record of Mr Gagela’s
conduct of the accused’s
case offers no basis for inferring any
lack of proper competence, nor the want of basic integrity and skill
that the accused’s
complaint imputes.  Second, as will
emerge from our discussion of the merits of the case against accused
1 and 2 that now
follows, we cannot fault the advice he gave.
That the trial resulted in the accused’s conviction does not
mean that
the advice was wrong.
[29]
To summarise: When an accused raises a
fair-trial complaint involving allegedly incompetent legal
representation that raises a dispute
about what occurred between him
and his lawyer, (a) the lawyer’s response to the allegations is
admissible in assessing the
veracity of the complaint; (b) if the
allegations raise a real possibility that there was incompetence or
that bad advice was given
or that misconduct occurred, it may be
necessary for appropriate mechanisms to be developed to establish the
facts; (c) in this
case, the accused’s complaint is inherently
contradictory and implausible and must be rejected without further
inquiry.
The case against
accused 1 and 2 (Tandwa and Godolozi)
[30]
The circumstantial web in which the state
sought to enmesh the two accused bank employees was spun by the
evidence of a number of
bank officials who explained the details of
the branch’s security system and its administrative protocols
and procedures.
The senior officer at the bank’s main
control room responsible for the functioning and monitoring of the
computer-operated
central ‘Cosmos’ alarm system, Mr
Anthony Oosthuizen, sketched how the branch connections were
monitored from Cape
Town to check for alarms or after-hours
activations.  In this way, entries to the branch were monitored,
while a microphone
system for sound surveillance also existed.
Three different types of alarm functioned: one activated on entry;
one on the
vault door; and a third inside the strong room or safe
room. Distress alarms and wrong PIN (personal identification number)
codes
could also be monitored.  The PINs were so configured that
certain entries constituted a hold-up alarm.  In other cases
a
key had to be turned in a certain direction to avoid activating the
alarm.
[31]
Oosthuizen testified that members of the
branch carried panic buttons on their persons which on activation
registered centrally
as a panic alarm. The control panel or
‘digi-pad’ could be used on entry to send a distress
code.  Every entry
and access was electronically recorded.
[32]
The entries critical to the robbery were
recorded in a printout to which Oosthuizen attested.  This
showed an exit sequence
on 17 November 1998 at 19h14 next
to the user number usually reserved for the manager, indicating that
the user activated
the alarm on leaving. The record indicated further
that at 05h03 the same user entered the branch and seven seconds
later at 05:03:07
re-entered the pin code and deactivated the cash
vault door. At 05:03:21 he activated the codes back into the digi-pad
and deactivated
the cash vault inside. At 07:26 a hold-up alarm was
received and at 07:28:57 there was a manual isolation of the alarm
which was
reactivated at 07:29:16.
[33]
The bank manager, Mr Mark du Plessis,
testified that accused 1 was the officer in charge of custodianship.
His job was to
control and coordinate functions of the branch,
cash security and supply, and to ensure cash holdings were maintained
at low level,
and to ensure regular clearance of surplus cash via SBV
(the bk’s dedicated security service). Du Plessis related from
bank
records that on Tuesday 17 November 1998 accused 1
took a lunch break between 13:00 and 14:00, and signed off at 17:45.

The reason he gave for working late was ‘treasury’.
[34]
But this did not accord with what accused 1
told the police investigators in the tense hours of questioning after
the robbery.
According to Inspector Mxolisi Mqotyana of the
Mthatha murder and robbery unit, accused 1 told him that on the day
before the robbery
he had left work after 14h00 to consult a doctor.
When the police established that accused 1 had in fact only
signed off
work some four hours later, the discrepancy impelled the
investigators to intense scrutiny of the three bank employees’
versions.
[35]
Du Plessis related that accused 2, the
junior treasury custodian – who was accused 1’s
subordinate – signed off
on the same day at 19:45 after taking
a lunch hour between 13:00 and 14:00.  His reason for working
late was also recorded
as ‘treasury’.  Du Plessis
explained that a time lock on the strong room or safe door prevented
access before
effluxion of the period specified at the time of
locking.  The time lock operated independently of the alarm
system.
Both accused 1 and 2 were trained in its use. They were
responsible on a daily basis for actually setting the lock to ensure
that
the strong room would be open at the required time the following
day.
[36]
It is evident from Du Plessis’s
evidence that branch policy was to keep as little cash as possible.
The branch had a target
of R4.5 million which was based on the
average cash holdings for the month.  The amount accumulated
immediately before the
robbery was more than double this.  Du
Plessis insisted that this was unusual: no cash had been cleared that
week although
it was the norm that cash would be cleared on a Monday
or a Tuesday.
[37]
Further significant testimony was that
accused 1 and 2 had completed the strong room time lock register only
until Monday 16 November 1998.
The register had not
been completed for the crucial day preceding the robbery, Tuesday 17
November.  What is more, accused
1 and 2 did not sign the
locking away register on that day.  This was even though it was
in existence when they left work
on both days, and it was found in
the correct place on the morning after the robbery.  The mystery
of these two registers
formed an intense focus of accused 2’s
cross-examination.
[38]
Ms Veronica Groom joined the branch only
days before the robbery, working with accused 1 and 2.  She
testified that on Tuesday
17 November 1998 she noticed that
the cash had not been cleared.  When she asked accused 1 why, he
replied that
they had been ‘very busy’ the previous day.
Accused 1 and 2 asked her to be at work at 07h00 the next
morning
because there was still a lot of work to be done.
[39]
Mr Mtutuzeli Sibindlana was the branch
support officer in charge of treasury and the security system, and
superior to accused 1
and 2.  He testified that accused 1 and 2
decided when a money clearance was necessary: this was supposed to be
done if the
branch’s cash holdings exceeded the daily limit of
R4.5 million; though in cross-examination Sibindlana conceded that it
was not uncommon for an amount of the order of R9 million to have
accumulated in the bank.
[40]
It was evident from Sibindlana’s
account of the robbers’ conduct during the kidnapping that they
had already been primed
about procedures in the bank, who carried the
keys, the details of the branch’s security system, its link to
Cape Town, and
the panic buttons.  It is therefore clear –
and was not seriously disputed – that the robbers operated on
inside
information.  The crucial question was its source.
The finger of suspicion pointed unavoidably at the three bank
employees
entangled in the robbery.  But it emerged that the
robbers had treated Sibindlana more harshly than accused 1 and 2, by
threatening
to place a hand-grenade inside his trousers, for
detonation if he refused to cooperate.  The impression formed by
various
state witnesses also was that Sibindlana appeared more
traumatised after the robbery than accused 1 and 2, whom the same
witnesses
testified appeared relatively unscathed by the event.
[41]
Less than a month before the robbery, the
branch installed a new, highly sophisticated alarm system. The
robbers knew its functioning
as well as the alarm codes, even though
the usual custodian was on leave.  It is also unavoidably
significant that the robbery
occurred on a day the cash holding was
at its highest and far above the average.  In their positions
respectively of senior
and junior treasury custodian, the duties of
accused 1 and 2 included ensuring that cash holdings were at a low
level and that
surplus cash was regularly cleared.  Although
cash was normally cleared either on a Monday or a Tuesday this did
not happen
that week. The R9.6 million the robbers managed to plunder
was well above the branch target of R4.5 million.
[42]
We must now consider the evidence of
Dlamini, the accomplice witness.  Dlamini testified that after
one Jabulani Sando Nkobi
approached him in Johannesburg to take part
in the robbery, he travelled by kombi to Mthatha with Nkobi and one
Oupa.  They
arrived in Mthatha in the early evening and went to
a house in Northcrest.  They were met outside by a person who
introduced
himself as ‘Khaya’ (the name of accused 5). In
court, Dlamini identified that person as accused 5.
[43]
Dlamini testified that on entering they
found a man addressing a group of about 15 men, supplying information
about the bank.  Dlamini
testified that accused 2 – whom
he accurately described in his pre-trial police statement as short,
stout, dark-complexioned
and bespectacled – was that man.
After about ten minutes, accused 2 left in a maroon Golf.  This
was later established
to belong to accused 1’s wife.
[44]
Shortly thereafter Dlamini and all the
other men left in different motor vehicles to a house in Ikhwezi
Township, Mthatha.  (The
home of accused 2, where the hostages
were in fact held, was in Ikhwezi.)  At that house they took
persons hostage and Dlamini
again saw the maroon Golf. He also saw
accused 1 and accused 2, as well as a light-complexioned man, whom he
learnt ‘was
also working at the bank’.  It is common
cause that this person was Sibindlana.
[45]
Later, during the long night preceding the
robbery, Dlamini said it was accused 2 who was talkative, and ‘who
had the most
answers’.  Dlamini testified that he, accused
7 and accused 8 guarded the hostages through the night. The robbers
were
wearing balaclavas.  In the morning a call came through to
the cellphone of either accused 7 or 8, whereafter they all left
in
the maroon Golf for town, where they met up with accused 3, who was
driving a white ‘ambulance’. They abandoned
the maroon
Golf and the white ambulance took them to a homestead with a garage
that had two doors.  There he found Oupa and
Nkobi, who gave him
his share of the loot in a red and white bag: it was R435 000.  At
the trial, Dlamini was shown photographs
of accused 5’s
parents’ homestead, which he identified as the place where he
received his share of the loot.  He
testified that accused 7 and
8 were also given their share, after which they asked the
Johannesburg robbers for a lift to Engcobo.
They obliged before
returning to Johannesburg.
[46]
Dlamini’s
credibility was central to the state’s case, and was the
subject of vigorous attack both in the trial court
and on appeal.
The attack centred on the inherent plausibility of Dlamini’s
account, and on contradictions internal
to his evidence, and between
his court testimony and his prior statement to the police.  The
trial judge, who had the advantage
of seeing Dlamini in person and at
length, during a rigorous cross-examination at the hands of various
defence counsel (which covers
287 pages of the record), concluded
after applying a cautionary analysis that Dlamini had given credible
and reliable evidence.
We find his conclusion fully warranted.
Prototypically for an accomplice, Dlamini tended to minimise his own
involvement
in the crime: he equated his role to that of accused 7
and 8, whom the judge rightly described as being only the ‘foot
soldiers’
of the robbery.  But he proved an intelligent,
secure, confident, responsive and resourceful witness the credibility
of whose
account unrelenting cross-examination only tended to
reinforce.
[24]
His
account was largely coherent, and the contradictions relied on to
criticise it were relatively insubstantial.
[47]
Even though counsel pointed out that
Dlamini was arrested in November 1999, after the trial had already
started (creating the possibility
that the police put him up to all
he said), it is quite apparent that his account of the robbery was
neither fabricated nor suggested
to him; and counsel on appeal
rightly conceded that he was present during the events he described
and that he was an accomplice
to the crime.  The question
therefore is not whether his evidence is wholly figmented, but
whether and to what extent the
details implicating accused 2, 3, 5,
6, 7 and 8 are reliable.  Given the inherent quality of
Dlamini’s evidence, and
the extent to which his exposition
found corroboration in other evidence, our general conclusion is that
they can safely be relied
upon.
[48]
Accused 1 elected not to testify or to call
any witnesses in his defence. Accused 2 came to the stand.  He
denied any involvement.
He was subjected to a sustained,
meticulously prepared and tenacious cross-examination, during which
prosecuting counsel
took care to establish that he and accused 1 were
jointly responsible for the monies in the safe, for clearing them and
for setting
the locks on the safe doors.  It was also
established that accused 1 and 2 could not act independently of each
other since
the junior treasury custodian (accused 2) could not
depart from bank procedures without the knowledge and acquiescence of
his senior
(accused 1).
[49]
In his evidence accused 2 was quite unable
to explain satisfactorily why he and accused 1 had not completed the
strongroom time
lock delay register on the day preceding the
robbery.  He testified that the register went ‘missing’
on Monday
16 November 1998; yet it had been put to the
state witness that it went missing only on the Tuesday.  Although
other
means of filling in this essential administrative record were
readily available – including a replacement register –

the accused failed to use these. Instead, he claimed to have written
down the crucial information on a piece of paper (‘we
filled in
a blank paper’, he said).  Yet this was nowhere to be
found after the robbery – while bank officials
readily located
the time lock delay register, uncompleted, and handed it to the
police.  Accused 2 testified that he enquired
from Sibindlana
about the allegedly missing register on 16 November 1998.
This however contradicted the version
put to the state
witnesses.  Groom testified that though she was working closely
with accused 1 and 2, no complaint was made
to her about the
allegedly missing register.  The accused’s account was
rankly implausible.
[50]
And why had he and accused 1 set the
strongroom time delay lock to open over an hour earlier than usual?
Initially accused
2 testified that he had set the alarm in units of
four hours, but changed this under cross-examination when it became
apparent
that this did not square with the actual time, or with when
they left work (when he claimed they had set the device).
Although
accused 2 claimed to have set the time delay lock on
previous occasions to open an hour earlier than usual, the
meticulously recorded
history of the settings contradicted this.
Here it is important to note that the time lock disengaged at
05:45 instead of
the usual time of 07:30.  This was the first
time the lock had been set to open on a quarter-hour.  That
something most
unusual had occurred was evident; yet accused 2 was
unable to account for it with any plausibility.
[51]
Accused 2’s evidence was riven with
other inconsistencies.  Initially, he testified that the money
was to be cleared
on the Tuesday preceding the robbery, but under
cross-examination he first said there was no need to have the cash
collected –
and then immediately changed this again. He
testified that the robbers arrived at about five or ten minutes after
he arrived home,
having parted with accused 1. However, his evidence
at the bail application indicated that he had been home for
approximately two
hours before the robbers arrived.
[52]
The circumstantial evidence indicated
overwhelmingly that when the robbery took place things were
profoundly amiss at the branch,
in ways that pointed to the guilty
complicity of accused 1 and accused 2.  There was an abundance
of evidence calling for
an answer.  Accused 2 attempted an
answer – but found his credibility flayed in a relentless and
devastating cross-examination,
by the end of which there was moral
certainty that he had been party to the crime.
[53]
Accused
1 chose to call no witnesses, and to shun the witness stand himself.
That was his constitutional entitlement.
[25]
Yet his exercise of that right does not suspend the operation of
ordinary rational processes.
[26]
The choice to remain silent in the face of evidence suggestive of
complicity must in an appropriate case lead to an inference
of
guilt.
[27]
It is true
that, in contrast to the other accused, there was no direct evidence
implicating accused 1 in the robbery.
The state’s
principal witness, Dlamini, though mentioning accused 1’s
presence among the hostages, suggested no complicity
on accused 1’s
part.  Nor – because, no doubt, they were arrested on the
day of the robbery – were the first
two accused discovered with
any loot.
[54]
Yet those accused were jointly responsible
for the money in the safe, for clearing the cash, and for setting the
locks.  For
the two days before the robbery, they did not
complete the required documentation.  They set the time lock to
disengage over
an hour earlier than normal, allowing the robbery to
take place before branch officials arrived for work.  The lock
was also
set, inexplicably, to a quarter-hour, signalling a striking
deviation from the norm.  The amount of money accumulated,
together
with the impression of various witnesses that accused 1 and
2 survived the apparent ordeal rather too blithely (though the trial

court rightly did not consider either of these intrinsically
decisive), add two further wafers of suspicion adding to the pattern

pointing to complicity.
[55]
It
is further true that the state’s inferential case rests
entirely on circumstance, and that no direct physical evidence
links
accused 1 to the crime.
[28]
We have therefore given careful thought to the possibility
that, despite the accumulation of suspicious circumstances, accused
1
might have been guilty only of carelessness in carrying out his
duties.  Yet it is here that his choice not to give evidence

becomes pivotal, for while it is not inconceivable that the
accumulated occurrences could have been explained as sloppiness, they

were not so explained; and it is the absence of that explanation,
plausibly advanced, that becomes decisive.
[56]
In his testimony accused 2 tried to explain
the lapses as oversights and remissnesses, but failed categorically.
Since accused
1 chose not to testify, we have no reason to believe
that he would have fared any better.  While prosecuting counsel,
Mr Carpenter,
shredded the credibility of accused 2, he had even more
material against accused 1.  It was he who was in a position to
explain
the deviations from procedure and the failure to complete the
registers, and it was he who could have told the court whether
accused
2 had acted solo, without his own participative complicity.
Accused 1’s failure to supply answers on any of these
aspects
inexorably strengthens the state’s case, because in the
absence of anything to gainsay it, the circumstantial web pointed

overwhelmingly to his complicity:
‘…
if
aspects of the evidence taken alone or in combination with other
facts clearly call for an explanation which the accused ought
to be
in a position to give, if an explanation exists, then a failure to
give any explanation may as a matter of common sense allow
the
drawing of an inference that there is no explanation and that the
accused is guilty.’
[29]
[57]
The trial court correctly did not focus on
the separate pieces of evidence as fragments, but considered their
totality.  In
the face of the damning circumstantial evidence
suggesting the involvement of accused 1, van Zyl J was in our view
correct to conclude
that the evidence established his guilt.
[58]
Against accused 2 there was in addition the
direct evidence of the accomplice Dlamini, who said that he addressed
the robbers’
pre-meeting.  That constituted a ‘dock
identification’, the nature of which we discuss later: for now
we say only
that we give his identification weight in the context of
the other evidence against accused 2, particularly since Dlamini
accurately
described accused 2 in his police statement.
[59]
Accused 2’s statements to the police
on the day of the robbery also implicate him.  According to
inspector Mqotyana,
whose evidence the trial court rightly accepted,
accused 2 gave the investigating team information implicating accused
3, and led
them to the house of accused 3, eventually putting them on
the track of the other accused.  The trial court was not
deterred
in concluding that accused 2 was guilty by the fact that in
May 1998, six months before the robbery, he submitted an ‘explanation

letter’ to the then branch manager, Mr Adams, recounting an
approach to him by a suspicious character who sought to involve
him
in preparations for a robbery.  That accused 2 was so solicited,
and that he rejected the advance, does not diminish the
strength of
the evidence proving that on a later fateful occasion he did indeed
make himself party to robbing the bank.
[60]
We therefore fully endorse the trial
court’s rejection of the evidence of accused 2 and its
conclusion that his disclaimers
were not reasonably possibly true.
The case against
accused 3 (Tekula)
[61]
The accomplice Dlamini testified that
accused 3 was present at the pre-robbery meeting at ‘Khaya’s
place’ (the
house of Khaya Gasa, accused 5, in Northcrest) on
the night of Tuesday 17 November 1998. According to
Dlamini, accused
3 was armed with a pistol.  When Dlamini
arrived at Northcrest at about 19h45 – having travelled with
two other robbers
from Johannesburg – accused 3 was already
there. The host, accused 5, introduced them ‘by names one by
one’.
Pressed in cross-examination about the identity of
the accused, Dlamini stated that ‘if you commit a crime with a
person
you can never forget that person’. According to Dlamini
accused 3 was driving a Red Cross vehicle, which Dlamini referred
to
as an ‘ambulance’.  Accused 3 testified that he was
a house manager at the Red Cross, Transkei, in the primary
school
nutrition programme.  For his employment he drove a white Kombi
which bore the legend ‘Red Cross Society Transkei’,
as
well as red crosses on the front and on its passenger and driver
doors.  Indeed, accused 3 was arrested late on the evening
of
Wednesday 18 November while driving this Red Cross vehicle.
Dlamini’s evidence clearly hit the mark.
[62]
It is also not without significance that
accused 2 pointed out accused 3, who took the police to look for
accused 6 and to the house
of accused 5, both of whom were implicated
in the robbery. In addition, an amount of R60 000 was recovered at
the home of accused
3 and at the home of the mother of his wife (who
was accused 4).  The money was de-clipped and in bundles with
rubber bands,
as money was stored in the bank’s safe.
[63]
In the face of this evidence, accused 3
advanced the version that he obtained the cash on 17 November 1998
from his friend
Mr Lisa Noah (since deceased), whose life was being
threatened, and that on the night of the robbery he had gone in his
Red Cross
vehicle to Mthatha Mouth, where he visited his uncle who
performed a traditional ceremony for him.  The trial judge
rejected
this version as false beyond reasonable doubt.  His
reasons are persuasive.  During cross-examination, accused 3
varied
his version, testifying that Noah gave him the money because
Noah was going to sleep at his girlfriend’s house. Initially
he
testified that the money was found on him after he was tortured. He
later testified that the money was found when his clothes
were being
removed at the commencement of the torture. He also testified that he
had to move the money from his house to his wife’s
parental
home because of the possibility of robbery.
[64]
The only witness accused 3 called, his
uncle Mr Milton Tekula, contradicted his evidence in material
respects. The trial court described
accused 3 and his uncle as
unimpressive witnesses and in our view correctly rejected their
evidence as false wherever it conflicted
with that of the state, and
concluded that it could not reasonably possibly be true.
[65]
Dlamini also performed a ‘dock
identification’ on accused 3, whom he met before the robbery,
and with whom he travelled
after the robbery to Tabase, where they
received their share of the loot.  In the context of Dlamini’s
other evidence
relating to accused 3, particularly the ‘ambulance’,
we afford his dock identification credence.  Accused 3 was

therefore correctly convicted.
The
case against accused 5 (Gasa)
[66]
Accused 5 was arrested in the early morning
hours of Thursday 19 November 1998, the night after the robbery. By
this stage accused
1 and 2 as well as accused 3 and his wife were
under arrest.  Acting on information from accused 2, Mqotyana
and Detective
Sergeant Loyiso Mdingi from the Mthatha murder and
robbery unit went to his house in Nyathi Crescent, Northcrest. On
arriving they
tried unsuccessfully to attract a response from within
and were eventually driven to ask the public order policing unit to
use
teargas to gain entry (‘to obviate a situation,’
Mqotyana explained, ‘where we would be shot by people from
inside’).
Mdingi testified that before searching he
enquired from accused 5 (who was with his girlfriend) whether there
was anything
untoward within: accused 5 informed him that there was
an amount of R37 550 in one of the wardrobes, which, he said, his
mother
had lent to him to start a pizza shop in a shopping complex.
Throughout the trial accused 5 maintained this explanation.
[67]
The police took accused 5 to his parental
home in Tabase, and then arrested him.  He told the police that
he derived his income
from running two taxis and that he occasionally
sold second hand motor vehicles purchased from auctions.
[68]
Acting on information supplied by accused
5’s brother, Mdingi (who was the principal investigating
officer in the case) proceeded
on 31 December 1998 to accused 5’s
family home, where he retrieved fragments amongst ashes from a fire.
[69]
Accused 5, when he testified, was also
shown the photographs from which Dlamini identified the place where
the loot was shared.
Accused 5 confirmed that the homestead
depicted was his mother’s shop at Tabase.  He denied
Dlamini’s incriminating
allegations, claiming he knew nothing
of the robbery and none of the accused before his arrest.
[70]
Yet accused 5’s account of his
whereabouts during the robbery strained under implausibility.
Accused 5 stated that in
the early evening of the 17th November 1998
at about 19h00 his two taxi drivers arrived to check in the day’s
takings.
When they left he watched television and went to
sleep. On the morning of 18 November, his sister Zandile awoke him to
tell him
that she had received a call that their mother was ill.
They then left for Tabase but found that his mother was not as ill
as
reported.  As for the hubbub outside his house after the police
arrived, he claimed to have been utterly unaware of it
until he
detected ‘smoke’ inside.
[71]
Yet accused 5 was unable to explain why, if
he knew his movements on the night of the 17th and the morning of the
18th, he gave
no account of them either in his bail application or in
his evidence in chief, and why no version at all was put in this
regard
to the state witnesses who implicated him, particularly
Dlamini.  Nor could he explain why until his own evidence there
had
been no mention at all of Zandile.
[72]
Accused 5 called his mother, Mrs Agnes
Kholeka Gasa, and his sister, Ms Zandile Gasa, as witnesses. His
mother confirmed the loan
to accused 5 but fared dismally under
cross-examination, her account unravelling swiftly under
implausibilities inherent to it
and contradictions with accused 5’s
version.  Several times she failed to answer entirely, exposing
her evidence as
born of family fealty.  The sister, who was
called only to verify the presence of accused 5 at his home on the
night of the
robbery, fared similarly, contradicting her brother and
making an altogether implausible showing.
[73]
The critical elements of the state case
against accused 5 were his possession of an unavoidably suspicious
stash of cash (in declipped,
rubber-banded bundles), his failure to
respond to obtrusive police attempts to gain his attention on the
night his house was surrounded,
coupled with his lame explanation for
his conduct, plus – most centrally – the incriminating
evidence of Dlamini.
[74]
Dlamini’s evidence wove a taut web
around accused 5.  First, though he was unable to take the
police to the precise site
of the pre-robbery meeting in Northcrest
(prosecuting counsel established that the house’s intricate
location would have
made it hard for a stranger to re-locate after a
single visit), he stated that the host introduced himself as
‘Khaya’.
What is more, he took the police to the
scene where the loot was shared at Tabase – which corresponded
tellingly with the
location of accused 5’s parental home.
On the accused’s own version, he was indeed there on the
morning after
the robbery, though Dlamini did not see him.  In
these circumstances we consider Dlamini’s identification of
accused
5 as the Khaya who hosted the pre-robbery meeting in
Northcrest to be reliable, and conclude that the state proved his
complicity
in the robbery beyond reasonable doubt.
The
case against accused 6 (Rozani)
[75]
On Thursday 19 November, acting on
information from accused 2, Mqotyana and Mdingi, with Inspector
Ohlsson Nceba Miti, went to various
localities in Mthatha looking for
accused 6 but did not find him.  He was eventually arrested on 8
December at a hotel in
Melrose Arch, Johannesburg, by Detective
Inspector Wayne Kukard and Superintendent Gerhardus Johannes Kruger
of the Brixton murder
and robbery unit.  Accused 6 was arrested
with one Skumbuzo Aphane.  On their arrest the police
confiscated a cell phone
as well as a green Honda Civic and a false
identity card (a BMW 328i was seized from Aphane).  At the trial
the state proved
that the Honda was registered in the name of accused
6 on 2 December 1998, and that he had bought it just before for R56
000 cash.
[76]
Kruger and Kukard thereafter questioned
accused 6 and Aphane about the robbery.  The admissibility of
any statements accused
6 may have made to them was contested.
Kukard and Kruger testified that during the questioning Kruger made
detailed notes
of accused 6’s answers but that this record was
destroyed when Kruger’s office was sprayed with a fire
extinguisher
(the state led evidence establishing the destructive
effects of this event).
[77]
The
state sought to rely on the statement given to Kruger as a confession
which it contended was admissible in view of the fact
that Kruger was
a justice of the peace.  The trial court in these circumstances
decided after argument that oral evidence
was admissible as to the
contents of a written confession which had been destroyed.  The
court ruled that Kruger was a commissioned
officer capable of
receiving a confession and that oral evidence of the contents of the
destroyed confession was admissible.
In view of the abundance
of other evidence conclusively implicating accused 6, we refrain from
addressing this question.
[30]
We therefore leave out of account Kruger’s evidence regarding
accused 6’s oral confession.
[78]
The morning after the arrest of accused 6,
Senior Inspector Van Olst of the Brixton unit requested Captain
Henning van Aswegen of
the Pretoria murder and robbery unit to
undertake a pointing out by accused 6 in what the witnesses referred
to as the Transkei.
The team accompanying Van Aswegen consisted of
Superintendent Henry Beukes, organiser; Sergeant Bhuti Douglas
Dlamini, interpreter;
and Sergeant Zachareas Johannes de Lange,
photographer.  The same day, Van Aswegen and his team left
Johannesburg with accused
6.  They travelled to Mthatha via
Pietermaritzburg (where they spent the night) and Kokstad. On the way
accused 6 requested
to call his girlfriend, Ms Nonzuzo Nontutuzelo
Mngcotana, which he did on Van Aswegen’s cellphone.
[79]
Van Aswegen made detailed notes on the
pointing out form.  Accused 6 made hand-written insertions on
the same document, appending
his signature.  These indicated
that he understood everything on the form which had been translated
to him in isiXhosa; that
he agreed with the contents; that the
information written on it was the truth; that he understood his
rights; and that the only
person he wanted to contact was his
girlfriend.
[80]
The photo album depicts accused 6 at all
stages of the trip and all points.  According to the notes, on
arrival in Mthatha
accused 6 pointed out the Mthatha Standard Bank
branch as the bank he and his accomplices had selected to rob,
followed by the
explanation that ‘during the planning of the
robbery it was decided on this bank as the finger man was employed
there’.
A photograph shows accused 6 outside the bank
pointing to it (the trial court rightly rejected accused 6’s
preposterous
suggestion that he was in fact pointing to his
attorney’s offices).  Another note with accompanying
photograph records
that accused 6 pointed out a homestead in Libode,
apparently belonging to a policeman called Ngcobo, said to have been
implicated
in the robbery, where the robbers met some four to five
times to plan it.
[81]
After the pointing out, on 10 December Van
Aswegen’s team handed accused 6 over to captain Khayalethu
Gwayi of the Mthatha
murder and robbery unit, who proceeded to
question accused 6 about the robbery.  Thereafter accused 6 was
detained at the
Idutywa police station. The next day, 11 December
1998, he was taken to the Mthatha Magistrate’s Court for his
first appearance,
and thereafter detained first at the Mthatha
central police station cells and then at the Wellington prison.  The
trial court,
in our view correctly, found insufficiently plausible
the accused’s claims that Gwayi and others assaulted him before
his
first court appearance.
[82]
On 29 December accused 6 was booked out and
taken to Mdantsane police station by inter alia Gwayi, Mdingi,
Mqotyana, Mithi and sergeant
Nongogo (who did not testify). These
police officers took accused 6 to Corona in search of his younger
brother, Mr Zingisa Rozani.
Night had fallen by the time this
trip was undertaken. After the younger brother was located, the
police took the two to
Zandukwana in the district of Libode.
There accused 6 pointed out a spot from which the police dug out a
bucket which contained
money. Accused 6’s sister Ms Nomhlophe
Sigodi was present. Accused 6 was returned to Mthatha Central Police
Station where
he was detained at around 02h00 on 30 December 1998.
The next day accused 6 was booked out and taken to the Standard bank
where
the money was counted: it amounted to R91 580.
[83]
Thereafter accused 6 was taken to the
Wellington prison where he was detained. In the evening, he was
examined by Dr Lubanga as
well as by Sister Mhlalase. They recorded a
number of lacerations and multiple bruises over large parts of his
body.
[84]
A trial within a trial was held when the
state sought to rely on statements by accused 6 to members of the
Mthatha murder and robbery
unit and the pointing out of the money at
Zandukwana on 29/30 December 1998. The objection was that accused 6’s
rights to
a fair trial had been violated and that any alleged
statements were not made freely and voluntarily. In this regard the
defence
alleged that accused had been tortured and assaulted into
submission.
[85]
The state called Mr Mvelisi Elias Arosi,
the head of Wellington Prison. He testified that he was not on duty
on the 30th of December
1998 when accused 6 was admitted at
Wellington prison. He stated that his deputy, Siyla, who was on duty
when accused 6 was admitted,
would not have admitted him had he had
any visible wounds: the prison’s policy was that they would not
accept or admit any
awaiting trial prisoner if he had visible
injuries.  That accused 6 was admitted (the state argued) must
therefore mean that
he had no visible injuries on 30 December.
[86]
The defence called Dr Lubanga to relate
what he found when he examined accused 6 during the evening of 30
December 1998. Sister
Mhlalase was also called to state her own
findings when she examined the accused that evening.
[87]
At the end of the trial within a trial, the
trial court ruled provisionally that the pointing out on 29 December
was admissible;
but the trial judge reversed this ruling at the end
of the trial on the basis that to the knowledge of the police
officers in question,
accused 6 had a lawyer at that stage, with the
result that the pointing out in the absence of his legal
representatives violated
his right to a fair trial.
[88]
The trial court made no finding on whether
accused 6 was assaulted before the pointing out.  Despite the
evidence of Arosi
about the prison’s admissions procedures, we
find it abundantly established that accused 6 was assaulted after the
police
booked him out of the prison.  The weight to be attached
to the procedures wanes in the face of the incontrovertible evidence

of Dr Lubanga and Sister Mhlalase, who documented the injuries to the
accused.  That they were inflicted by the police –

principally Mqotyana and Mdingi – in the course of their
questioning of accused 6 is an unavoidable inference.  We
therefore find for this additional reason that the statements accused
6 made on 29-30 December to the police are inadmissible against
him.
[89]
It follows, in our view, for reasons we
expand later in relation to accused 8, that accused 6’s
pointing out of the buried
bucket of money, together with the
discovery of the bucket itself, are inadmissible against him.
This is ‘real’
evidence – in contradistinction to
‘testimonial’ evidence (such as a confession or
admissions) – but it
is inextricably tainted with the blemish
of the police brutality that procured its discovery.  It is not
fit for receipt in
a civilised legal proceeding.
[90]
This finding makes it unnecessary for us to
consider accused 6’s explanation (which the trial judge
rejected) for his possession
of the money in the bucket and his
reasons for hiding it.
[91]
What remains of the state case against
accused 6 are his suggestive access of affluence after the robbery
(which he was unable to
explain plausibly), but far more
significantly his prejudicial admissions to van Aswegen and his team
on 9/10 December during the
pointing out trip to Mthatha.
Accused 6 also made an incriminating statement to Gwayi in Mthatha
after being handed over
to Gwayi’s team.  Those statements
do not constitute a confession to the robbery, and were not tendered
as such.
Yet they tie the accused inextricably to its
commission.  His attempts to deny authorship of the
incriminating statements,
and to explain away what was said to van
Aswegen and to impugn their voluntary nature were far-fetched and the
trial judge rightly
rejected them.  There is no reasonable
explanation for what the accused said to van Aswegen and Gwayi other
than that he was
deeply implicated in the robbery.  With this
corroboration, we also accept Dlamini’s ‘dock
identification’
of the accused.  His guilt was established
beyond reasonable doubt.
The case against
accused 7 (Tshefu)
[92]
Early on the morning on 11 December 1998
members of the Mthatha murder and robbery unit with members of the
Mdantsane murder and
robbery unit went to the home of accused 7’s
girlfriend, Ms Nombasa Primrose Ntaka, in Zone 5, Zwelitsha.
She took
them to a flat in King Williams Town where the police
obtained information as to the whereabouts of accused 7.  Gwayi
and
the members of his unit followed this lead while detective
inspectors Kayalethu Sidwell Mbelu and Luvuyo Mapantsela, travelling

in a separate motor vehicle, went with Ntaka the police station in
Mdantsane’s NU12 section.  Ntaka later led the police
to
her parental home at Tolofiyeni.  On arrival she entered the
house and emerged with a bag full of money, with which the
party
returned to the NU12 police station.
[93]
There the police in effect confronted
accused 7 with Ntaka and the retrieved money, for Gwayi and the other
members of his unit
had in the meanwhile found accused 7 at an
address in Mdantsane and arrested him.  They found him in
possession of an unlicensed
firearm with eight rounds of live
ammunition.  They then took him to the NU12 police station in
Mdantsane where Gwayi questioned
him.  Mbelu and the Tolofiyeni
party subsequently arrived at the station with Ntaka and the money.
The police testified
that the confrontation pitched accused 7 into a
confessional and cooperative mode.  The police then took accused
7 and Ntaka
with the money to the East London branch of Standard
Bank, where it was found to amount to R304 565.
[94]
The state proved that on 20 November 1998 –
two days after the robbery – Ntaka purchased a Jetta CLI motor
vehicle for
R46 000 in cash, and that on 25 November, driving the
same Jetta, accused 7 arrived at a motor dealership to get a quote on
a damaged
Daewoo vehicle (which he said was for his girlfriend),
laying down an R8 000 cash deposit for repairs.  The state
further
proved that on 28 November the Jetta accused 7 had been
driving was towed into a repair shop after being in an accident, and
that
on 30 November accused 7 paid R15 000 cash as a deposit for its
repair.  During the same transactions, accused 7 inquired about

purchasing a house for about R150 000, and was taken to view one.
[95]
The state called Ntaka to give evidence,
but she proved refractory, contradicting her police statement.
After a contested
application the court declared her a hostile
witness whom the prosecutor was entitled to cross-examine.  She
testified that
accused 7 was her boyfriend and that he handed her an
amount of R350 000 for safekeeping, but that this was in October –
before the robbery – and that the cash emanated from the taxi
association to which accused 7 belonged.  But her credibility

was frayed and the trial court rightly regarded her as discredited.
[96]
Gwayi testified that accused 7 did not
cooperate initially – but that when during his interrogation
Mbelu returned from Tolofiyeni
with Ntaka and the money, accused 7,
on seeing Ntaka, buckled, apparently defeated, and admitted his
involvement, going on to implicate
accused 8 and other persons.
Defending counsel sought to cast doubt on the police account and
pointed to a number of contradictions
between the various policemen’s
exposition of the turn-around.  The contradictions are in our
view insignificant.
That a traumatic confrontation occurred
that led to a dramatic turnaround seems evident to us.  The
trial judge correctly
found the essential elements of the police
version, which in the case of accused 7 was not tainted by
allegations of violence,
to be true.
[97]
The case against accused 7 pivoted on his
munificent acquisitions (betokening an implausibly sudden access of
affluence), the discovery
a huge stash of cash (again, de-clipped and
rubber-banded into bundles), and his self-incriminating statements to
Gwayi after Ntaka’s
arrival at his interrogation.  We find
those elements amply establish his guilt.  Accused 7 insisted
that the cash retrieved
was given to him for safekeeping by Mr
Mbuyiseli Robiyana, executive member of the taxi association for
which the accused was a
taxi rank manager.  Although Robiyana
came to testify in support of this version, cross-examination
revealed it to be specious
and unworthy of credence.  The trial
judge correctly rejected it.
[98]
The state also invoked the evidence of
Dlamini, who testified that he together with accused 7 and 8 guarded
the kidnapped families
through the long night preceding the robbery.
The morning after, he and accused 7 and 8 were transported to a
garage in a
homestead in Tabase where they received their share of
the loot.  Accused 7 and 8 then requested a lift from Tabase to
Engcobo.
It is not without significance that Dlamini testified
that during the robbery accused 7 was wearing ‘a military type’

lumber jacket; when accused 7 testified, it emerged that he was a
soldier first in the Ciskei defence force and then South African

National Defence Force from 1985 to 1997.  Given the other
incriminating evidence implicating accused 7, we consider that

Dlamini’s dock identification of accused 7 adds further weight
to the state’s case.
[99]
We conclude that the guilt of accused 7 was
effectually established.
The case against
accused 8 (Ngubelanga)
[100]
Accused 8 was apprehended on the morning of
24 December 1998 in section NU15, Mdantsane. He was arrested by,
amongst others, detective
inspectors Bonginkosi Kwinana and Lizo
Elvis Mzimane of the Mdantsane murder and robbery unit, and Mdingi
and Mapantsela from the
Mthatha unit.  A fracas ensued.
Mapantsela’s spectacles were broken, Mdingi was punched and the
accused sustained
injuries (particularly a bleeding wound on his
forehead).  The police said that the accused (whose right hand
was encased
in a plaster of paris cast) was belligerent from the
outset, resisting arrest and assaulting the officers who had come to
arrest
him.  The accused said the police assaulted him when he
refused them permission to search his house.
[101]
After he was subdued and the house searched
(nothing being found), accused 8 was taken to the NU12 police
station, where Gwayi and
his team from Mthatha questioned him.  It
is not in dispute that the accused was not warned of his rights at
his arrest, though
the police evidence was that Mapantsela supplied
the deficiency at the police station.  The police witnesses
claimed that
there accused 8 became co-operative and admitted to
involvement, even informing them where his share of the loot was –
at
Zinkomeni, Mdantsane.  So the party proceeded to Zinkomeni.
But nothing was found.  The party returned to the police

station, where there was further questioning.
[102]
During the second round of interrogation
the accused now apparently said his share of the loot was at his home
in Seymour, near
Queenstown.  The police put him in the back
seat of a vehicle.  Kwinana was driving, with Mdingi in the
front passenger
seat.  Accused 8 was in leg irons.  He had
not been fully handcuffed because of the plaster cast on his right
hand. The
child lock was engaged to prevent him from opening the
door.
[103]
At Seymour accused 8 took the police to a
house which they searched comprehensively – to the extent, on
their own account,
of demolishing a corrugated iron toilet to its
very foundations.  But again they found nothing.  The next
undisputed
fact is that accused 8 was taken to the Seymour police
station, where Kwinana laid a charge against him of attempting to
escape
from custody.  Gwayi was summoned and hastened to the
scene.
[104]
Entry 747, which Gwayi made at 17h25 in the
station’s occurrence book, states that the accused ‘has
shown suicidal tendencies
by trying to jump out of the police car’.
The entry proceeds to state that ‘fortunately’,
since the accused
was partly handcuffed and wearing leg irons, ‘he
could not successfully escape’, ‘but however he did
sustain
some head and whole body bruises’.  ‘He has
not’, the entry proceeds, ‘been seriously wounded’.

Finally, the writer adds that the entry has been made ‘solely
to safeguard any malicious allegations that might be levelled
against
the whole Ministry of Safety and Security inclusive of the South
African Police Services’.
[105]
Accused 8 gave a disturbingly different
account.  He stated that at no stage did he co-operate with the
police at NU12, but
that they assaulted him and tortured him using a
rubber tube and bucket of water.  He testified that when the
police found
nothing in Seymour they took him to a minor dirt road,
where Mdingi took a nylon rope and tied him to the vehicle.  He
was
then dragged for some distance.  Because of this
maltreatment, he informed the police that the money was at his
cousin’s
house in section NU17, Mdantsane.
[106]
The police, by contrast, claimed that a
further interrogation followed at Seymour police station at which the
accused cooperatively
volunteered the further information.  It
is common cause that the party proceeded to NU17, Mdantsane, where
after the accused
instigated yet more diversion and wild goose
pursuits, he eventually indicated a house from whose owner the police
obtained telephonic
permission to enter.  This they did by
breaking in.  Inside, accused 8 pointed out a black suitcase
with brown leather
trim in the corner of a room. The police opened
the suitcase and found what they had been seeking:  money.
They also
found a red and white bag which contained an AK 47 rifle
and an empty magazine.  The money, when later counted at the
bank,
was found to amount to R176 000.  Accused 8 was taken to
Mthatha Police Station.  He was never charged with possession
of
the AK 47 rifle.  The police later confiscated a large number of
items from his house, as well as an Isuzu bakkie.
[107]
Mdingi stated that on 25 December 1998 he
took accused 8 to Butterworth hospital for treatment.  Accused 8
was also at some
stage detained at the Wellington prison where a
medical file was opened.  That contained detailed notes of his
injuries.
When he applied for bail on 13 January 1999 –
nearly three weeks after the traumatic trip to Seymour – the
magistrate
noted ‘for the record’ that at a distance of 5
metres he could see ‘extensive bruising on the abdomen, the
chest,
the left elbow’, plus ‘weal marks’ over ‘the
whole of the back’.
[108]
During the trial and on appeal the
prosecution relied on the police version plus the evidence of
Dlamini, who as previously related
testified that he had met accused
8 in Northcrest and then spent the long night together guarding
hostages at Ikhwezi.  Dlamini
testified that he, accused 7 and 8
stayed in the house the whole night (balaclavaed), and that they left
in the morning after a
telephone call; and that after accused 7 and 8
had taken their share of the loot at Tabase they were given a lift to
Engcobo.
[109]
Dlamini testified that accused 8 was
wearing a black leather jacket at the time. He pointed out accused 8
in court, saying he was
wearing the same leather jacket.
[110]
During the trial the defence objected to
the evidence of the pointing out on the basis that it was not freely
and voluntarily obtained.
This necessitated a trial within a trial.
The accused testified that he took the police to the money
under duress, after
torture – but that in truth the cash did
not come from the robbery, but belonged to his taxi association.
This version
Robiyana’s testimony, invoked also by
accused 7, was invoked to cement, but the trial judge resoundingly
rejected it.
[111]
Though the trial court found accused 8 an
unimpressive witness, it concluded that his admissions during the
pointing out procedure
were not made freely and voluntarily. We have
no doubt that this ruling was correct.  The police account of
the trip to Seymour
and their dealings with accused 8 before and
after would have been merely absurd if it did not provoke such
disquiet about the
brutality, indiscipline and absence of scruple it
revealed.  The contradiction at the heart of the police version
was that
even though the accused took them on repeated wild goose
chases, in which no money was located, he was nevertheless
voluntarily
cooperating all along.  The implausibility at its
heart was that despite sustained preceding misinformation, the
accused eventually
took the police to the money without the
supervention of improper means.
[112]
In its details, too, the police evidence
lacked any veneer of credibility.  The police would have had the
court believe that
a semi-cuffed man with an arm in plaster,
restrained by leg-irons, seated in the back of a child-locked car
with two policemen
in front, succeeded in opening the door at speed
and tumbling out in an effort to escape – all this, it is to be
remembered,
while his disposition was and had been throughout one of
full cooperation.  And why, if he managed to exit from a car
travelling
(according to the police) at a high speed, was he not much
more seriously injured?  The injuries the magistrate and the
medical
personnel recorded give the lie to the version the police
concocted about the accused’s injuries.
[113]
Despite ruling that the statements
accompanying the pointing out were inadmissible, the trial court
admitted the real evidence (the
money and AK 47) the procedure
yielded.  The trial judge had regard to s 35(5) of the
Constitution:
‘
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.’
Accepting
in favour of the accused that the evidence was obtained in a manner
that infringed his rights under s 35(5), the judge
concluded that its
admission would not render the trial unfair or be otherwise
detrimental to the administration of justice
:
‘
The
evidence is real evidence which existed independently from the
pointing out made by accused no. 8. … it was common cause
that
the accused was in possession of the money and he provided an
exculpatory explanation for his possession thereof. The inclusion
of
such evidence would not render the trial unfair within the meaning
thereof and on any of the aspects as contained in Section
35(3) which
aspects are not intended to be exhaustive. On the contrary, and
especially in the light of the accused being in a position
of
providing an exculpatory explanation for his possession thereof it
would in my view be detrimental to the administration of
justice to
exclude such evidence.’
[114]
A further important factor, the judge
considered, was ‘the fact that the evidence in question was
physical evidence that existed
irrespective of the violation of the
Constitution’:
‘
[A]s
stated in case of
R v Collins
[(1987) 33 CCC (3
rd
)
1 (SCC)], a Canadian decision, such evidence will rarely operate
unfairly for the reason alone that it was obtained in a manner
that
violated the Constitution. It existed irrespective of the violation
of the Constitution and does not render the trial unfair.’
[115]
On
appeal accused 8 contends that the real evidence should be excluded
because it was unconstitutionally obtained, and that admitting
it
rendered his trial unfair or was otherwise detrimental to the
administration of justice.  We find these contentions
compelling.
As Scott JA recently pointed out (in a judgment
delivered after the trial court’s findings in the present
case), improperly
or illegally obtained evidence was generally
considered admissible before 1994, so long as it was relevant to the
matter in issue.
[31]
The
interim Constitution did not contain an express provision directed in
this area. However, after it came into effect, courts
used their
common law discretion to exclude evidence obtained in violation of
the Constitution.
[32]
[116]
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.
[33]
[117]
In
determining whether the trial is rendered unfair, Courts must take
into account competing social interests.
[34]
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.’
[35]
Relevant factors include the severity of the rights violation and the
degree of prejudice, weighed 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.
[36]
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.
[37]
Rights
violations are not severe, and the resulting trial not unfair, if the
police conduct was objectively reasonable and
neither deliberate nor
flagrant.
[38]
[118]
As we have pointed out, though admitting
evidence that renders the trial unfair will always be detrimental to
the administration
of justice, there may be cases when the trial will
not be rendered unfair, but admitting the impugned evidence will
nevertheless
damage the administration of justice. Central in this
inquiry is the public interest:
‘
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. Over-emphasis 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.’
[39]
[119]
Of
course the public interest in combating crime is substantial.  But
in
S
v Pillay
,
Scott JA – who dissented on the facts of that case, which
involved evidence uncovered as a result of an unauthorised search

(the warrant having been obtained on the basis of erroneous
statements)
[40]
–
pointed out that the admission of derivative evidence obtained in
circumstances involving some form of compulsion, or as
a result of
torture, ‘however relevant and vital for ascertaining the
truth, would be undeniably detrimental to the administration
of
justice’.
[41]
[120]
This
is such an undeniable case.  Though ‘hard and fast rules’
should not be readily propounded,
[42]
admitting real evidence procured by torture, assault, beatings and
other forms of coercion violates the accused’s fair
trial right
at its core, and stains the administration of justice.  It
renders the accused’s trial unfair because it
introduces into
the process of proof against him evidence obtained by means that
violate basic civilized injunctions against assault
and compulsion.
And it impairs the administration of justice more widely because its
admission brings the entire system into
disrepute, by associating it
with barbarous and unacceptable conduct.  The cynical tenor of
the lies the police advanced here
to explain the injuries the accused
sustained in their custody (his ‘suicidal tendencies’) is
disturbingly reminiscent
of an earlier era.  We do well to
underscore the renunciation of that era not merely in principle, but
in police practice,
and throughout the justice system.
[121]
We accept that the public flinches when
courts exclude evidence indicating guilt:
‘
At
the best of times but particularly in the current state of endemic
violent crime in all parts of our country it is unacceptable
to the
public that such evidence be excluded. Indeed the reaction is one of
shock, fury and outrage when a criminal is freed because
of the
exclusion of such evidence.’
[43]
But in this country’s
struggle to maintain law and order against the ferocious onslaught of
violent crime and corruption,
what differentiates those committed to
the administration of justice from those who would subvert it is the
commitment of the former
to moral ends and moral means. We can win
the struggle for a just order only through means that have moral
authority.  We
forfeit that authority if we condone coercion and
violence and other corrupt means in sustaining order.  Section
35(5) is
designed to protect individuals from police methods that
offend basic principles of human rights.  To admit the evidence
of
the recovered money and the AK 47 in the circumstances of this
case would render that provision nugatory.  The evidence should

therefore have been excluded.
[122]
In
view of the trial court’s reliance on
S
v Collins
,
it may be useful to underscore the comments of Scott JA in
Pillay
[44]
about the Canadian decisions.  Under s 24 of the Canadian
Charter –
‘
(1)
Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent

jurisdiction to obtain such remedy as the court considers appropriate
and just in the circumstances.
(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.”
[45]
[123]
In
R v
Collins
, a police officer violated the
accused’s rights by grabbing him by the throat.  The
accused had a bag of heroin in his
hand, which the state sought to
admit. The Supreme Court of Canada held that a trial is rendered
unfair if the evidence is self-incriminating,
such as a confession:
‘
The
use of such evidence would render the trial unfair, for it did not
exist prior to the violation and it strikes at one of the
fundamental
tenets of a fair trial, the right against self-incrimination.’
[46]
But the
Collins
court drew a distinction between real and testimonial evidence.
While it viewed testimonial evidence (such as a confession)
as
undermining trial fairness, it expressed doubt that real evidence,
discovered derivatively as a result of unconstitutional conscription,

could render a trial unfair:
‘
Real
evidence that was obtained in a manner that violated the Charter will
rarely operate unfairly for that reason alone. The real
evidence
existed irrespective of the violation of the Charter and its use does
not render the trial unfair.’
[47]
[124]
It
was this doctrine the trial judge invoked in the present case.
Since the heroin in
Collins
was ‘real evidence’, the Court held that its admission
would not render the trial unfair.  (The heroin was however

excluded on a balancing of the other factors.)  Yet in later
decisions, Canadian jurisprudence has rejected a strict distinction

between real and testimonial evidence. In
R
v Burlingham
,
[48]
the
Canadian Supreme Court excluded a murder weapon found as a result of
a confession obtained in violation of the right to counsel.
The
court held that the
Collins
distinction
was unfounded and that admitting the real evidence would operate
unfairly.  It noted that after
Collins
,
it had ‘consistently shied away from the differential treatment
of real evidence’, and concluded that ‘the use
of any
evidence that could not have been obtained but for the participation
of the accused in the construction of the evidence
for the purposes
of the trial would tend to render the trial process unfair’.
[49]
[125]
Furthermore, focusing, as the High Court
did, on the classification of the evidence (distinguishing between
the nature of the evidence
– testimonial or real) is
misleading, since the question should be whether the accused was
compelled to provide the evidence.
As the Supreme Court of
Canada noted in
R v Stillman
:
‘
What
has come to be referred to as "real" evidence will not
necessarily fall into the "non-conscriptive" category.

There is on occasion a misconception that "real" evidence,
referring to anything which is tangible and exists as an independent

entity, is always admissible…the concept of "real"
evidence without any further description is misleading
.
It will be seen that, in certain circumstances, evidence such as the
gun in
R.
v. Burlingham
,
[1995] 2 SCR 206
, 97 CCC (3d) 385, 124 DLR (4
th
)
7, may come into the state's possession as a result of the
accused's compelled participation or "conscription"
against
himself. Thus, while the evidence is "real" it is
nevertheless conscriptive evidence.’
[50]
[126]
Though
the US Supreme Court has not dealt specifically with physical
evidence obtained from a coerced confession, a number of its

decisions clearly assume that the exclusionary rule extends to
physical evidence.
[51]
The
American Law Institute has observed that the rationale for the
exclusionary rule naturally extends it to preventing the introduction

of physical evidence derivatively obtained. The ALI Model Code
observes:
‘
In
recent years ... the Supreme Court has made it clear that coerced
confessions must be excluded not only because of their unreliability,

but also because the methods used to obtain such confessions are
intolerable and involve compulsion prohibited by the Constitution...

In view of this expanded basis for excluding confessions, the
justification for the automatic admission of all “fruits”

becomes greatly attenuated. If the use of an illegally obtained
confession constitutes compelled self-incrimination, so may the
use
of evidence derived from the confession. And, if the purpose of the
exclusionary rule is to deter unacceptable police behavior,
then the
exclusion of fruits may also be necessary to achieve this deterrence.
There would seem to be no rational basis for distinguishing
between
products of an illegal search as opposed to products of an illegally
obtained statement in terms of applicability of the
fruits
doctrine.’
[52]
[127]
In this case, the police conduct violated a
number of rights, including the accused’s right to freedom and
security of the
person. This guarantees the accused the right ‘(c)
to be free from all forms of violence from…public…sources’

and ‘(e) not to be treated or punished in a cruel, inhuman or
degrading way’ (Bill of Rights s 12).  And as a
detained
person, the accused specifically had the right ‘not to be
compelled to make any confession or admission that could
be used in
evidence’ against him (Bill of Rights 35(1)(c)).
[128]
The rights violations here were severe
since they stemmed from the deliberate conduct of the police and were
flagrant.There was
a high degree of prejudice because of the close
causal connection between the violation and the subsequent discovery
of the money
and the AK 47.  It did not therefore constitute
admissible evidence.
[129]
This
brings us to the question whether the accused’s conviction can
stand in the light of the exclusion of the real evidence
against
him.  The principal remaining evidence against him is Dlamini’s
dock identification, which – in contrast
to the same witness’s
identification of accused 2 – was not reinforced by any
preceding description of traits specific
to the accused.  Dock
identification, as our previous allusions to it in this judgment
indicate, may be relevant evidence,
but generally, unless it is shown
to be sourced in an independent preceding identification,
[53]
it carries little weight:
[54]
‘taken on its own it is suspect’.
[55]
The reason is apparent:
‘
[T]here
is clearly a danger that a person might make an identification in
court because simply by seeing the offender in the dock,
he had
become convinced that he was the offender.’
[56]
[130]
In ordinary circumstances, a witness should
be interrogated to ensure that the identification is not in error.
Questions include
–
‘
what
features, marks or indications they identify the person whom they
claim to recognise. Questions relating to his height, build,

complexion, what clothing he was wearing and so on should be put. A
bald statement that the accused is the person who committed
the crime
is not enough. Such a statement unexplored, untested and
uninvestigated, leaves the door wide open for the possibility
of
mistake.’
[57]
[131]
Where
the state relies solely on a dock identification, however, these
questions carry little weight.  This is because the
witness can
look at the accused in the court – as happened in the present
case, to the indignant objection of the accused
and their counsel.
Under these circumstances, dock identification is similar to a
leading question.  As a result, in certain
circumstances it
could carry no weight at all.
[58]
[132]
The question is whether Dlamini’s
dock identification, standing alone, is sufficient to establish
beyond reasonable doubt
that accused 8 was one of the robbers.  After
careful consideration, we have come to the conclusion that in the
circumstances
of this case, Dlamini’s identification of accused
8 is reliable.  We say this for the following reasons:
(a) Given the overall
quality and cogency of Dlamini’s evidence, the possibility that
he was maliciously figmenting the presence
of any of the accused can
safely be excluded.  The sole question in relation to accused 8
is thus whether he may have been
mistaken in insisting that he was
one of the robbers.
(b) Previous cases where
dock identifications have been rejected have generally involved
fleeting preceding encounters.  This
case is different.
Dlamini’s exposure in particular to accused 7 and accused 8,
more than to any of the other robbers,
was far more than merely
fleeting.  He had extensive contact with the two over more than
twelve hours.  He met them at
the pre-robbery planning meeting
in Northcrest.  Then he spent the long night guarding the
hostages in the same room with
them.  Although the robbers were
wearing balaclavas overnight, the intimacy and intensity of the
engagement would have exposed
to Dlamini details of the two men’s
gait, gestures and physical stature.  Indeed, as Dlamini pointed
out in his testimony,
it was important for the robbers to know each
other, and to be able to distinguish their own from non-robbers.
This accounts
for his insistence that he could never mistake a person
with whom he had performed a criminal assignment.  What is more,
the
three travelled together the next morning, without balaclavas,
first to town, then to Tabase and thence to Engcobo.  Dlamini’s

opportunity for identification was therefore extensive and
protracted.
(c) Further, we find it
significant that accused 7 and 8 were the only two accused who came
from Mdantsane, that they were close
associates (accused 8 testified
that they were friends and had known each other since 1983), and that
both were involved in the
taxi industry (accused 7 was a rank manager
at Mdantsane, while accused 8 ran taxis, and was a founder member,
with Robiyana –
the witness accused 7 called – of a taxi
association).  The other accused all came from Mthatha. Yet it
was precisely
these two whom Dlamini paired.  They were he said
assigned together with him as ‘foot soldiers’ to guard
the hostages
while the money was seized at the bank.  It was
these two who, after the loot was shared, asked the Johannesburg
robbers for
a lift to Engcobo – from where, presumably, they
had made or planned to make joint arrangements for further
transport.
These connections of location, occupation and
association sharply reduce the risk that Dlamini made an erroneous
pairing.
Conversely they enhance the assurance that he
correctly identified accused 8, and correctly linked him to accused 7
(whom other
evidence conclusively establishes was involved in the
robbery).
(d) Dlamini identified
the leather jacket accused 8 was wearing in court as that he wore
during the robbery, but this in our view
adds insubstantial safeguard
against the risk of error were the dock identification standing
alone.
(e) A more telling strand
of evidence – we put it no higher than that – is the
sudden access of affluence that accused
8 exhibited immediately after
the robbery.  He went on an extensive spending spree, the fruits
of which the police confiscated
after his arrest.  This he was
unable to account for with any plausibility in his evidence.  In
cross-examination he
tried implausibly to increase his sources of
income to explain the sudden increase in his resources. His evidence
about an invoice
for furniture he bought is implausible bearing in
mind that the document was given to him only just before his evidence
–
and it was generated only on 23 October 2001, shortly before
he testified at the trial.  Even more telling in this regard is

that the document was not produced during accused 8’s bail
application.  Cross-examined about it, the accused became

evasive.  Initially he testified that his wife bought the items
except for four items the police took. He contradicted this
in his
later evidence. He testified that certain of the goods belonged to
his girlfriend’s mother although this evidence
contradicts what
was put to the state witnesses. That evidence in turn is contradicted
by his evidence in his bail application
where he testified that he
bought the clothes.
(f) Accused 8 ran an
alibi defence.  There was no onus on him to prove it.  But
notable was a total lack of detail about
his whereabouts on 17 and 18
December 1998.  He created an unfavourable impression on the
trial judge, who rejected his evidence
as false beyond reasonable
doubt.  We consider that assessment sound.
[133]
In
these circumstances, we consider that Dlamini’s identification
of accused 8 as one of the robbers establishes his involvement
beyond
reasonable doubt.
[59]
[134]
In the result, the appeals of all the
appellants are dismissed.
E CAMERON
D MLAMBO
SPB HANCKE
JUDGES AND ACTING
JUDGE OF APPEAL
[1]
Section
155(1) and (2) of the Transkei Penal Code, Act 9 of 1983:
‘
(1)
Any person who steals anything and, at or immediately before or
immediately after the time of stealing it, uses or threatens
to use
actual violence to any person in order to obtain or retain the thing
stolen or to prevent or overcome resistance to its
being stolen or
retained, shall be guilty of robbery.
(2) Any person who
commits robbery or attempted robbery with aggravating circumstances
as defined in section 8 of this Code shall
be liable on conviction
to be sentenced to death, or to such lesser sentence as the court
may deem fit.’
Section 8 defines
‘aggravating circumstances’ in relation to robbery or
attempted robbery as –
‘
(i)
the wielding of a firearm or any other dangerous weapon;
(ii) the infliction of
grievous bodily harm; or
(iii) a threat to
inflict grievous bodily harm, by the offender or an accomplice on
the occasion when the offence is committed,
whether before or during
or after the commission of the offence.’
[2]
S v
Halgryn
2002 (2) SACR 211
(SCA) para 14, per Harms JA for the Court;
S
v Mofokeng
2004
(1) SACR 349
(W) para 18 (Louw AJ, Gudelsky AJ concurring).
[3]
Compare
Strickland
v Washington
[1984] USSC 146
;
466
US 668
(1984) 685 (‘An accused is entitled to be assisted by
an attorney, whether retained or appointed, who plays the role
necessary
to ensure that the trial is fair’), per O’Connor
J for the Court.
[4]
See
R
v Matonsi
1958
(2) SA 451
(A), which was decided on the basis that even if counsel
had ‘prevented’ the accused from testifying, the nature

of counsel’s mandate in English and Roman-Dutch law was such
that an accused in a criminal case could not, short of terminating

counsel’s mandate, question counsel’s conduct of the
trial and claim relief because of the conduct in question.
In
that case, the accused had taken no steps to withdraw counsel’s
mandate and had expressed no disagreement with the conduct
of the
case until after verdict.  The trial was therefore judged
regular (per Schreiner JA on behalf of the majority at
456A-457E).
The minority judgment (per van Blerk AJA at 458D-F), though
endorsing the outcome, expressed reservation about
the far-reaching
proposition the majority appeared to endorse that the accused
forfeited control of counsel’s conduct once
counsel was
mandated to conduct the trial.  The approach differs from that
to be taken under the Constitution.
[5]
As
Trollip JA envisaged in
S
v Majola
1982 (1) SA 125
(A) 133F, read in the light of
S
v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 16.
[6]
Compare
Faretta
v. California
[1975] USSC 147
;
422
U.S. 806
(1975) (criminal defendant has an independent
constitutional right of self-representation: he may therefore
proceed to defend
himself without counsel when he voluntarily and
intelligently elects to do so).
[7]
‘
At
the end of the state case I consulted and agreed with my counsel
that he should apply for my discharge and if discharge is
refused I
should give evidence.
The application for
discharge was refused.
Then there was further
consultation between my defence counsel and myself where I insisted
that I should testify, but my counsel
stated that –
* I do not know the law
and he is the one who knows the law, and I should not testify at all
as there was no case against me.
* The judge would again
look at the same evidence as he has and review his decision of
refusing the discharge, when he deals with
the whole of the evidence
more especially that even the evidence of one Mr Eric Dlamini who
gave evidence as an accomplice had
told the court that I was the
only person amongst all the accused who did not know of the
conspiracy to rob the bank, and furthermore
at no time that I was
one of the accused who shared the spoils of the robbery.
As a layman, I truly
believed the advice of the counsel, and I accordingly did not
testify.
When the judge gave the
judgment at the end of the case, I was so shocked when the judge
said that, since I did not give evidence
the court only remained
with the evidence of the state and that even though I had the right
not to testify, the court is compelled
to accept the evidence of the
state as correct and I was then convicted on all counts like the
rest of the seven other accused.
I submit that, had my
counsel told me that I was not compelled to testify [but] further
that, if I do not testify, the court is
entitled at the end of the
case to draw an inference against me, I would have elected to
testify.  This was the most unfortunate
situation that I had to
fall onto.
The result of the
conduct of my counsel led me to discharge him at the stage when
mitigation of sentence had to be done; and I
told the court that,
because of the amount of suffering brought about by my being misled
on aspects of law by my previous counsel,
it would be in my
interests that I should conduct carry on without legal
representation. …
I submit that I have now
been informed and verily believe that, when the court refuses an
application for discharge at the end
of the state’s case, that
means that there are some things that do not satisfy the court that
a discharge would be a proper
verdict at that stage; and the effect
thereof is that the accused should in his own interest decide
whether he should testify
in order to place the court in light in
respect of anything the court would like to know.  I was in the
dark as to such
aspects and the same were not brought to my
attention by my previous counsel.
I submit that by reason
of the conduct of my own counsel I did not have a fair trial at
all.  I believe that I may apply
for leave to appeal only on
this ground that I had an incompetent counsel or I acted on wrong
advice of a lawyer, resulting in
an unfair trial.’
[8]
‘
After
an application for a discharge was refused, I advised Mr Tandwa
about the consequences of giving or not giving evidence
in his
defence.  He readily accepted my advice and he elected not to
testify after weighing up all the advice I had given
him.
I refute that I stopped
Mr Tandwa from testifying and giving evidence in his defence at any
stage during the court case. …
The question of Mr
Tandwa testifying if an application was refused was never discussed
in detail at all during consultations prior
to the discharge
application being made, as I felt it was premature at that stage.
Prior to the discharge application I
had advised him of the
procedures that would occur once the state closed its case.
For that reason I flatly deny that there
was an agreement that he
would testify if the application was refused. …
Throughout my dealings
with Mr Tandwa I understood him to be a man of independent thinking
and reasoning.  Certainly he is
a man of such a calibre that he
would have elected to testify if he wanted to.  At no stage
during the defence case did
he indicate that he wanted to testify
even when the other accused and their witnesses testified.  Had
he indicated that
he wanted to testify I would have applied for the
[re-]opening of his case in view of his change of heart.
I strenuously deny that
I advised him that the judge would again look at the same evidence
and would then review his decision
not to grant a discharge because
the test is different after all the evidence has been led. …
I dispute that I
withdrew from representing Mr Tandwa as a result of my conduct.
It was as a result of his election not
to testify, which led to his
conviction, that was devastating to him, and for this he apportioned
the blame to me. …
I started representing
Mr Tandwa on 5 March 2001.  During the trial Mr Tandwa never
expressed any doubt about my competence
as his counsel.  Even
though his application for a discharge was refused, I continued to
appear on his behalf and he never
doubted my abilities as his
counsel.
In the conduct of Mr
Tandwa’s case I discharged my duties to the best of my ability
and I never gave Mr Tandwa any wrong
legal advice.’
[9]
The
question seems to be novel.
In
previous cases concerning an alleged failure of legal
representation, the complaint could be adjudged from the record (
S
v Bennett
1994
(1) SACR 392
(C) and
S
v Halgryn
2002 (2) SACR 211
(SCA)) or from its attendant documents (
S
v Mofokeng
.2004
(1) SACR 349 (W) (heads of argument)).
In
R
v Matonsi
1958 (2) SA 451
(A) the complaint was decided without evidence from
counsel as to what passed between him and the accused (457A-B and
458H).
In
S
v Majola
1982 (1) SA 125
(A) there was no dispute because counsel admitted
that he had not asked the accused whether he wished to testify: see
129E-F,
131H and 133E.
[10]
See the discussion of this court’s and other decisions in DT
Zeffertt, AP Paizes and A St Q Skeen,
The
South African Law of Evidence
(2003) 570-576.
[11]
Criminal Procedure Act 51 of 1977
s 201:
'No
legal practitioner qualified to practise in any court, whether
within the Republic or elsewhere, shall be competent, without
the
consent of the person concerned, to give evidence at criminal
proceedings against any person by whom he is professionally
employed
or consulted as to any fact, matter or thing with regard to which
such practitioner would not on the 30th day of May
1961 by reason of
such employment or consultation, have been competent to give
evidence without such consent: Provided that such
legal practitioner
shall be competent and compellable to give evidence as to any fact,
matter or thing which relates to or is
connected with the commission
of any offence with which the person by whom such legal practitioner
is professionally employed
or consulted, is charged, if such fact,
matter or thing came to the knowledge of such legal practitioner
before he  was
professionally employed or consulted with
reference to the defence of the person concerned.’
[12]
1991 (1) SA 589
(C) 591-2 (Farlam AJ).
[13]
1999 (1) SA 718
(C) para 61 (Friedman JP and Brand J, following the
analysis of Farlam AJ).
[14]
Criticised by David Bilchitz in 1998
Annual
Survey of South African Law
pages
814-815 (see too
1999
Annual
Survey of South African Law
page
684), but
endorsed
by DT Zeffertt, AP Paizes and A St Q Skeen,
The
South African Law of Evidence
(2003) 585.
[15]
DT Zeffertt 1991
Annual
Survey of South African Law
page
544 accepts the distinction between implied and imputed waiver, but
suggests that it would be more accurate to call the latter
a
‘fictive’ or ‘deemed’ waiver.
[16]
John
Henry Wigmore,
Evidence
in Trials at Common Law
(revised by JT McNaughton, 1961), vol 8 2328, c
ited
amongst many other cases in
S
v Boesman
1990 (2) SACR 389
(E) 394g-h.
[17]
We therefore cannot endorse the reservations about the utility of
the distinction expressed in 1998
Annual
Survey of South African Law
pages
814-815.  Nothing in
Kommissaris
van Binnelandse Sake v van der Heever
1999
(3) SA 1051
(A) paras 21-30 seems to us to impede this conclusion.
[18]
But see
S
v Majola
1982
(1) SA 125
(A), where counsel admitted not asking the accused
whether he wished to testify.
[19]
Constitution
s 173:
‘
The
Constitutional Court, the Supreme Court of Appeal and the High
Courts have the inherent power to protect and regulate their
own
process, and to develop the common law, taking into account the
interests of justice’.
[20]
In
R v
GDB
2000 SCC 22
;
[2000] 1 SCR 520
, [2000] 184 DLR (4
th
)
577 (SCC), the Alberta Court of Appeal faced issues of credibility
and fact in a complaint about counsel’s conduct of
a criminal
trial which it could not conveniently resolve itself.  It
therefore appointed a commissioner to conduct an inquiry
into
specific factual questions.  The commissioner was appointed
under a provision of the Canadian Criminal Code, but there
seems to
be no obvious reason why a comparable procedure could not be
developed in the exercise of the constitutional power to
protect and
regulate the appellate process.
[21]
In
S
v Majola
1982 (1) SA 125
(A), where the complaint occurred after conviction
but before sentence was passed on the major count, this court
envisaged that
the trial judge himself could have heard the
necessary evidence (see pages 131-2 and 133H).
[22]
Compare
S
v Bennett
1994 (1) SACR 392
(C) 398H:
‘
Regrettably
one of the events which sometimes follows a conviction is
recrimination from the convicted person who seeks to attribute
his
misfortune at having been convicted not to his own guilt, but to his
counsel.’
[23]
See
S
v Halgryn
2002 (2) SACR 211
(SCA) para 14.
[24]
One
defending counsel imprudently asked Dlamini, ‘Would you
consider yourself to be an honest person?’, to which he

responded:  ‘My Lord I am not honest and that is why I am
here today.’
[25]
C
Theophilopoulos provides a thought-provoking analysis of the ‘right’
in ‘The So-Called “Right”
to Silence and the
“Privilege” against Self-Incrimination: A Constitutional
Principle in Search of Cogent Reasons’
(2002) 18 SAJHR 505.
[26]
Osman
v Attorney-General, Transvaal
1998
(4) SA 1224
(CC) para 22;
S
v Boesak
[2000] ZASCA 112
;
2000 (3) SA 381
(SCA) para 47
[2000] ZACC 25
; ;
2001 (1) SA 912
(CC) para 24.
[27]
‘
The
accused cannot be compelled to give evidence but he must risk the
consequences if he does not do so’:
Murray
v DPP
[1994] 1 WLR 1
(HL) 11C, per Lord Slynn.
[28]
Contrast
Murray
v DPP
[1994] 1 WLR 1
(HL), where an adverse inference was drawn from
failure to testify when physical evidence (inter alia fibre and mud
particles)
linked the accused to the crime; and
S
v Boesak
[2000] ZASCA 112
;
2000 (3) SA 381
(SCA);
2001 (1) SA 912
(CC), where a letter bearing
the accused’s signature was held to constitute prima facie
proof.
[29]
Murray
v DPP
[1994]
1 WLR 1
(HL) 11G, per Lord Slynn, in whose judgment the other judges
concurred.
[30]
In
S
v Tshabalala
1980 (3) SA 99
(A) the state did not adequately prove that the
original confession was in fact irretrievably destroyed or lost;
secondary evidence
was therefore not admissible, and the conviction
was overturned.
[31]
S
v Pillay
2004
2 SACR 419
(SCA) at para 6 of his judgment (page 444).  The
majority judgment in that case, per Mpati DP and Motata AJA,
excluded evidence
obtained as a result of an illegal monitoring
operation.
[32]
S
v Motloutsi
1996 (1) SACR 78
(C) (bank notes discovered during police search of
the accused’s premises without a warrant or permission,
linking accused
to crime, excluded on basis that deliberate and
conscious violations of constitutional rights should generally lead
to exclusion
of evidence in the absence of exceptional
circumstances);
S
v Mayekiso
1996 (2) SACR 298
(C);
S
v Hammer
1994 (2) SACR 496 (C).
[33]
For an exploration of the considerations underlying these reasons,
see Eric Colvin ‘Fairness and Equality in the Criminal

Process’ (2006) 6
Oxford
University Commonwealth Law Journal
1.
[34]
Key
v Attorney-General, Cape Provincial Division
[1996] ZACC 25
;
1996
(4) SA 187
(CC) para 13 per Kriegler J for the court:
‘
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
[1996 (1) SA 984
(CC)], 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.’
[35]
S
v Lottering
1999 (12) BCLR 1478
(N) 1483C-D per Levinsohn J, Combrinck J
concurring.
[36]
S
v Lottering
1999
(12) BCLR 1478
(N);
S
v Seseane
2000 (2) SACR 225
(O) (the deliberate nature of police conduct in
not explaining the accused’s rights, part of an attempt to
‘trap’
the accused, justified exclusion of the
incriminating statements) (Pretorius AJ, Malherbe J concurring).
[37]
S
v Soci
1998 (2) SACR 275 (E)
[38]
S
v Lottering
1999
(12) BCLR 1478
(N) (the accused’s pointing out of evidence
should be admitted even though he had not been warned of his rights:
constitutional
rights violations only render the trial unfair (and
justify exclusion of evidence) if they are deliberate or flagrant).
[39]
S
v Mphala
1998 (1) SACR 654
(W) at 657g-h, per Cloete J.
[40]
The majority, per Mpati DP and Motata AJA, considered that although
the admission of the evidence in question, obtained through
an
unauthorised surveillance operation, would not render the trial
unfair, it should be excluded as detrimental to the administration

of justice: see
S
v Pillay
2004
(2) SACR 419
(SCA) at paras 90-98 of the joint judgment.
[41]
S v
Pillay
2004
(2) SACR 419
(SCA) at paras 9 and 11 of the judgment of Scott JA
(pages 447d and 448d-e).
[42]
S v
Pillay
2004
(2) SACR 419
(SCA) at para 8 of the judgment of Scott JA (pages
446f-g).
[43]
S
v Ngcobo
1998 (10) BCLR 1248
(N) at 1254G per Combrinck J (Hugo J and
Niles-Duner J concurring) (evidence of multiple murder and robbery,
which appellant
dug up in field behind his parents’ home in
the presence of police admitted even though police had not warned
him of his
rights and the consequences of his pointing out).
[44]
S v
Pillay
2004
(2) SACR 419
(SCA) at paras 6-9 of his judgment (pages 444h-447h).
[45]
Canadian
Charter of Rights and Freedoms,
Part I of the
Constitution
Act, 1982,
being Schedule B to the
Canada
Act 1982
(U.K.), 1982, c. 11
[46]
R
v Collins
(1987)
33 CCC (3
rd
)
1 (SCC) at 45, 38 DLR (4
th
)
508 (SCC) at 526
.
[47]
R
v Collins
(1987)
33 CCC (3
rd
)
1 (SCC) at 45, 38 DLR (4
th
)
508 (SCC) at 526.
[48]
R.
v. Burlingham,
[1995]
2 SCR. 206
, 124 DLR. (4th) 7 at 25.
[49]
R.
v. Burlingham,
[1995]
2 SCR. 206
, 124 DLR. (4th) 7 at 25.
[50]
R
v Stillman
(1997) 113 CCC. (3d) 321 (SCC) at 353, 144 DLR (4
th
)
193 (SCC) at 224.
[51]
The
probable reason is that until 1991, a coerced confession mandated an
automatic reversal of sentence. There was thus no need
to consider
whether the additional ‘real’ evidence should also be
excluded.  A number of cases, however, support
the proposition
that the Court assumed that real, as well as testimonial evidence,
falls within the exclusionary rule. See,
e.g.,
Kastigar
v. United States
,
[1972] USSC 160
;
406 U.S. 441
, 453 (1972) (‘We hold that such immunity from use
and derivative use is coextensive with the scope of the privilege
against
self-incrimination, and therefore is sufficient to compel
testimony over a claim of the privilege. While a grant of immunity

must afford protection commensurate with that afforded by the
privilege, it need not be broader. Transactional immunity, which

accords full immunity from prosecution for the offense to which the
compelled testimony relates, affords the witness considerably

broader protection than does the Fifth Amendment privilege. The
privilege has never been construed to mean that one who invokes
it
cannot subsequently be prosecuted. Its sole concern is to afford
protection against being "forced to give testimony leading
to
the infliction of 'penalties affixed to . . . criminal acts.'"
Immunity from the use of compelled testimony, as well
as evidence
derived directly and indirectly therefrom, affords this protection.
It prohibits the prosecutorial authorities from
using the compelled
testimony in
any
respect, and it therefore insures that the testimony cannot lead to
the infliction of criminal penalties on the witness.’).
[52]
Model
Code of Pre-Arraignment Procedure 150.4, comment at 410-11 (American
Law Institute,  Proposed Official Draft, 1975),
cited in, Yale
Kamisar,’Response: On the “Fruits” of Miranda
Violations, Coerced Confessions, and Compelled
Testimony’, 93
Michigan
Law Review
929
(March, 1995) at 940-941.  The California Supreme Court has
similarly held that derivative real evidence is excluded
under the
United States Constitution:
People
v. Ditson
369 P 2d 714
, 727 (Cal. 1962), vacated as moot,
Ditson
v California
371
U.S. 541
(1963).
[53]
Dock identification was thus approached by the full bench in
S
v Bailey
,
unreported judgment of the Cape High Court (case 215/2000) dated 31
August 2000 paras 24-28, quoting SE van der Merwe
‘Parade-uitkennings,
Hofuitkennings en die Reg op
Regsverteenwoordiging: enkele grondwetlike perspektiewe’
(1998) 9
Stellenbosch
Law Review
129
at 141 (if the state can convince the court that the dock
identification is based on observations that are independent of the
observations from an inadmissible identification parade, it can be
admitted).
[54]
R v
Masemang
1950 (2) SA 488
(A) 493, per van den Heever JA, Centlivres and
Schreiner JJA concurring.
[55]
S v
Moti
1998 (2) SACR 245
(SCA) 257h (‘is op sigself genome verdag’),
per Nienaber JA (Schutz and Plewman JJA concurring).
[56]
Paragraph
52 of the official report
Identification
Procedure under Scottish Criminal Law, Cmnd 7096
(1978),
cited in PJ Schwikkard and SE Van Der Merwe,
Principles
of Evidence
(2
nd
ed, 2002) page 515.
[57]
R
v Shekelele
1953
(1) SA 636
(T) at 638, per Dowling J, Price J concurring.
[58]
S
v Maradu
1994
(2) SACR 410
(W) 413j-414a, followed in
S
v Daba
1996 (1) SACR 243
(E) at 248, later explained in
Ebrahim
v Minister of Justice
2000
(2) SACR 173
(W)
.
[59]
Compare
the approach in
S
v Bailey
,
unreported judgment of the full court of the Cape High Court (case
215/2000) dated 31 August 2000 paras 24-28 and in
S
v May
2005
(2) SACR 331
(SCA) paras 51 and following.