S v Orrie and Another (SS 32/O3) [2003] ZAWCHC 63; 2004 (3) SA 584 (C); 2004 (1) SACR 162 (C) (21 November 2003)

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[2003] ZAWCHC 63
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S v Orrie and Another (SS 32/O3) [2003] ZAWCHC 63; 2004 (3) SA 584 (C); 2004 (1) SACR 162 (C) (21 November 2003)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO. SS 32/O3
In the matter between:
THE
STATE
and
MOGAMAT
PHADIEL ORRIE
MOGAMAT
SAMIR ORRIE
________________________________________________________________
JUDGMENT :
21 NOVEMBER 2003
________________________________________________________________
BOZALEK J
:
1. In this matter the accused are two brothers who
are charged with two counts of murder, housebreaking with the
intention to commit
murder, attempted murder and various other
ancillary charges. It is alleged that they broke into a safe house
and shot a couple
who were witnesses in a witness protection program.
2. The State
has not yet completed its case and has now formally applied, by way
of a notice of motion and founding affidavit for
an order in terms of
section 37(1)(c) of the Criminal Procedure Act 51 of 1997, (‘
the
Act
’) read with subsections 2(a) and (b), that the
investigating officer is authorised, in conjunction with a medical
officer or district
surgeon, to take a blood sample of each of the
accused ‘
in order to ascertain whether such sample(s) has any
mark, characteristic or distinguishing feature by means of DNA
analysis
.’ The application is made by the State following the
accuseds’ refusal to furnish blood samples in response to an
informal request
therefor. The application is opposed by the accused
who have filed an answering affidavit which in turn elicited a reply
from the
State.
The background
to the application
3. The
murders are alleged to have taken place on 25 December 2000. It is
common cause that blood samples of the accused were taken
from them
in accordance with the provisions of section 37 of the Act on or
about 16 May 2001, not long after they were arrested.
In the trial
the State has led the evidence of the district surgeon who took the
blood samples from the accused and the police officer
who took them
to his surgery for that purpose. Proof of the proper taking of the
blood samples from the accused requires a careful
description of the
so-called ‘
crime kits
’ utilised in the taking of the
samples with particular reference to the procedure followed to ensure
that no contamination of or
confusion between samples takes place.
For this purpose the accurate recording of which crime kits are
utilised, the breaking of
the seals of the crime kit, the recordal of
seal numbers and the re-sealing of the samples is vital to establish
the so-called ‘
chain of evidence
’. See in this regard
S
v Maqhina
2001 (1) SACR 241
(T).
4. Cross-examination
of the two witnesses referred to above revealed some measure of
confusion regarding which blood sample had been
taken from which
accused, a situation perhaps compounded by the fact that the
witnesses were testifying as to events which took place
more than two
years previously and involved two similarly named brothers with
similar features. It was at the conclusion of this
evidence the
State gave notice of its intention to apply for an order permitting
the taking of fresh blood samples from the accused.
5. In his
founding affidavit the investigating officer submits that there may
be confusion regarding which of the two accuseds’
blood sample was
sealed in which particular crime kit. He contends that the taking of
fresh samples will be in the interests of
justice and will remove
any doubt in this regard. The samples are necessary for the purposes
of DNA profiling. In this regard it
is common cause that there is no
eyewitness testimony directly implicating the accused in the
killings. The State’s case is built
largely upon circumstantial
evidence. An essential pillar thereof, at least in respect of
accused No.1, is evidence allegedly establishing
that his DNA
profile, as ascertained from a blood sample, matches that obtained
from blood samples found on curtains in the house
in which the bodies
of the couple were found and in a vehicle owned by accused No.2
following a search thereof some four days after
the murders. The
final paragraph of the summary of material facts reads as follows:
‘
By wyse van DNS-ontleding is gevind dat die bloed wat aan die
binnegordyn van die oorledene se huis gevind is, ooreenstem met die
bloed wat in die bakkie gevind is en dat dit ooreenstem met
beskuldigde No.1 se bloed.
’
The grounds of
opposition
The
application is strenuously opposed by Mr
Van der Berg
on
behalf of
the
accused on a number of grounds. These include the claim that being
subjected to such blood tests for the purposes of compiling
a DNA
profile will infringe the accuseds’ fundamental constitutional
rights to dignity, to freedom and security of the person,
the right
to bodily integrity, the right to privacy and the right to be
presumed innocent and not to have to assist the prosecution
in
proving its case (sections 10; 12(1); 12(2); 14(a); 35(3)(h) and
35(3)(j)) of Act 108/1996 - ‘
the Constitution
’).
7. In
addition it is contended on behalf of the accused that the taking of
a blood sample is only permissible when to do so may be
said to be
both reasonable and necessary. Mr
Van der Berg
argued that,
in the circumstances of this case, the taking of further blood
samples would be both unreasonable and unnecessary.
I understood his
argument to be that the unreasonableness arises from the stage at
which the application is made, namely mid-trial,
and by reason of the
State’s ineptitude. Other factors cited as rendering the relief
sought unreasonable are that the accused
are thereby being required
to assist the State in building a case against themselves and the
prejudice which they will suffer should
the order be granted. This
prejudice is said to include the accused having to incur the trouble
and expense of dealing with fresh
DNA evidence when they have already
performed such an exercise in relation to the existing DNA report.
8. As regards
necessity it is firstly contended on behalf of the accused that,
regard being had to the date of a report allegedly
drawn up by the
State’s DNA specialist, said to be 3 May 2001, it must have been
completed without the expert having access to
the blood samples taken
on 16 May 2001. Since the disputed samples could not have been used
in drawing up the State’s DNA report,
so it is argued, the taking
of fresh samples are unnecessary.
Necessity
9. For the
sake of convenience I shall deal firstly with the lastmentioned
argument. In my view it is without substance. In the
first place
there is at best a dispute of fact as to what is no more than a
peripheral issue on the papers, namely, whether the
State’s DNA
expert had access to the accuseds’ blood samples at the time she
drew up the report. There are, moreover, a number
of possible
explanations as to the apparent anomaly in regard to the date of the
expert’s report and the date of the taking of
the blood samples.
Furthermore, even assuming that the accused are correct in claiming
that the DNA report was drawn up without
access to the first batch of
blood samples, this only strengthens the State’s case for the
taking of fresh samples since, if the
initial samples are tainted by
the confusion regarding from which accused they emanate, any evidence
or subsequent report based on
them is doomed to meet exactly the same
challenge from the accused.
The
constitutional challenge/reasonableness
10. The
accuseds’ arguments related to the reasonableness of taking the
fresh samples are also founded upon allegations that the
State is the
author of its own misfortune in negligently conducting the exercise
whereby the blood samples were first taken and,
furthermore, in
‘
sitting on the evidence
’ for more than two years. In
developing this argument Mr
van der Berg
cast aspersions upon
the State’s
bona fides
and suggested that it had come to
court with ‘
unclean hands
.’ I can find no basis on the
evidence presently before me to make any such finding. Indeed, the
entire sequence of events is
just as easily capable of the
interpretation that the State led the evidence of the district
surgeon and police officer in good faith
only to find the
shortcomings exposed by searching cross-examination. Even were I to
be driven to the conclusion that the State
presented the evidence in
question well realising its inherent shortcomings, this alone would
hardly warrant a refusal of the relief
which the State now seeks.
The words of Curlewis JA in
R v Hepworth
1928 AD 265
at 277
remain as relevant today as they ever were:
‘
A criminal trial is not a game where one side is entitled to
claim the benefit of any
omission or mistake made by the
other side, and a judge’s position in a criminal trial is not
merely that of an umpire to see that
the rules of the game are
observed by both sides. A judge is an administrator of justice. He
is not merely a figurehead, he has
not only to direct and control the
proceedings according to recognised rules of procedure but to see
that justice is done.
’
Section 37 of the Act, insofar as it is relevant
to this application reads as follows:
’
37.
Powers
in respect of prints and bodily appearance of accused
Any
police official may –
take the finger-prints, palm-prints, or foot-prints
or may cause any such prints to be taken -
(i) of any person arrested upon any charge;
……….
……….
take
such steps as he may deem necessary in order to ascertain whether
the body of any person referred to in paragraph (a)(i) or
(ii) has
any mark, characteristic or distinguishing feature or shows any
condition or appearance: Provided that no police official
shall
take any blood sample of the person concerned nor shall a police
official make any examination of the body of the person
concerned
where that person is a female and the police official concerned is
not a female;
………
.
………
.
(2) (a) Any medical officer of any prison or any district
surgeon or, if requested thereto by any police official, any
registered
medical practitioner or registered nurse may take such
steps, including the taking of a blood sample, as may be deemed
necessary
in order to ascertain whether the body of any person
referred to in paragraph (a)(i) or (ii) of subsection (1) has any
mark, characteristic
or distinguishing feature or
shows any
condition or appearance.
……….
……….
Any court before which criminal proceedings are pending
may -
in
any case in which a police official is not empowered under
subsection (1) to take finger-prints, palm-prints or foot-prints or
to take steps in order to ascertain whether the body of any person
has any mark, characteristic or distinguishing feature or shows
any
condition or appearance, order that such prints be taken of any
accused at such proceedings or that the steps, including the
taking
of a blood sample, be taken which such court may deem necessary in
order to ascertain whether the body of any accused at
such
proceedings has any mark, characteristic or distinguishing feature
or shows any condition or appearance;
……….
’
The
Supreme Court of Appeal has recently expressed itself on the
provisions of section 37. In
Levack & Others v Regional
Magistrate, Wynberg & Another
2003 (1) SACR 187
(SCA) the
Court, per Cameron JA, dealt with an application to require an
accused to submit a voice sample. It held that such a
process does
not compel a person to give evidence which incriminates herself or
himself. I should note Mr
Van der Berg
disavowed the
reliance which he initially placed on a right against
self-incrimination. In doing so he in effect withdrew the
accuseds’
complaint that they are being forced to assist the State in building
a case against themselves or that the presumption
of innocence was
being violated.
Levack’s
case elucidated also the interplay between sections 37(1)(2) and
(3). The
Court held that police powers to act under section 37(1) come to an
end only when the accused has been convicted, and that,
by corollary,
so long as the police retain their section 37(1) powers, the court
before which criminal proceedings are pending has
no power to make
the orders contemplated under section 37(3). The Court went on to
state (at 199a-d) however that
‘
This does not mean, however, that such a court cannot do so
under section 37(1). In the present case, the police retained the
power
under section 37(1)(c) to take steps as they might deem
necessary to ascertain the characteristic and distinguishing features
of
the appellants’ voices. This included the power to request the
appellants to supply a voice sample. This power, in turn, could
properly be supplemented by a court order requiring the appellants to
do so. The regional court’s order that the appellants supply
the
voice samples in question has reinforced and
underscored the powers of the police, by making refusal to co-operate
subject to sanction for contempt of court. In short, ss (1), (2) and
(3) thus do not operate exclusively of one another. A court
has the
power to issue an order requiring an arrested person (or any other
person contemplated in ss (1) and (2)) to comply with
a request from
any of the officials named to supply the autoptic evidence sought.
In the present case, therefore, the police retained
the power to
request the appellants to supply the voice samples, and the regional
court had the power to order that they do so.
The precise source of
the court’s power is therefore best located as deriving from s
37(1)(c).
’
13. It is
clear from the above analysis that the fact that the State may seek a
sample from an accused during the trial, does not,
in itself, render
such an exercise unlawful or unreasonable.
14. In
S v
Huma & Another
1995 (2) SACR 411
(W) it was held that the
taking of finger-prints was neither inhuman nor degrading and does
not constitute a contravention of a person’s
dignity as protected
and enshrined in the then interim constitution. An involuntary blood
test undoubtedly entails an invasion of
the subject’s right to
privacy. Clearly however, the right to privacy is not
inviolable and in appropriate
circumstances must yield to other
considerations of public policy. (See
Seetal v Pravitha
and
Another N.O.
1983 (3) SA 827
(D)). Building on
Seetal’s
case Kotze J held in
M v R
1989 (1) SA 416
(O) that the
Supreme Court possesses the power to order both a minor and an adult
to submit to a blood test. See also the case
of
D v K
1997
(2) BCLR 209
(N) where Moodley AJ stated at 220I:
‘[t]
he taking of a blood sample is a relatively painless
procedure and can hardly be described as a cruel, inhuman or
degrading treatment
or punishment to the person submitting thereto.
’
15. The
taking of blood samples has become so widespread a practice in modern
life that I would venture to say that it is an experience
which
virtually every person in a modern society experiences on one or more
occasion in their life. It has long been, furthermore,
a vital tool
in the administration of the criminal justice system. Indeed, a
criminal offence frequently prosecuted is that of driving
a motor
vehicle whilst having an excessive amount of alcohol in the blood
stream. Without the taking of blood samples such a charge
could not
be pursued.
16. In
general, local academic writers appear to agree that, although the
taking of a blood sample against the will of a person is
an
infringement of their right to have no violence inflicted upon them,
the reasonableness of the restriction on this right is clear.

Hiemstra
Suid-Afrikaanse Strafproses 6de uitgawe,
Butterworths
(2002) at p 78 and Steytler
Constitutional Criminal Procedure: a
commentary on the Constitution of the Republic of South Africa, 1996
Butterworths (1998) at p 76.
17. The
taking of blood samples for the purposes of criminal investigation
has long been a sanctioned procedure in overseas jurisdictions
as
well. In 1966 in
Schmerber v California
,
384 US 757
(1966)
the United States Supreme Court dismissed a challenge to the
constitutionality of the taking of a blood sample without the
consent
of the accused. The challenge was based on the premise that evidence
so obtained infringed against the accused’s right
against self
incrimination. That such tests are now used routinely in the United
States for the purposes of DNA profiling appears
indirectly from the
case of
R v Stilman
(1997) 1 SCR at 607 in which the Canadian
Supreme Court was called upon to determine the admissibility of
certain hair samples, buccal
swabs and dental impressions taken
without the consent of the accused. The majority held that the
taking of such samples infringed
the accused constitutional right
against unreasonable search and seizure and his right to security of
person. It is important to
note, however, that the samples were
taken without the protection of the Criminal Code or any other
statutory provision. The following
passage from the dissenting
judgment of McLachlin J is instructive:
‘
Despite emphatic dissents from four justices,
Schmerber
has stood the test of time in the ensuing 30 years it has been
affirmed, reaffirmed and applied by the Supreme Court and courts
below.
The most eloquent testament to its unquestioned authority is
the fact that despite the admissibility of DNA evidence in the US
since 1988, a search reveals no case in which its use has been
challenged under the Fifth Amendment. Moreover, discussion in the
plethora of scholarly comments on DNA, DNA testing methods,
identification by DNA and legislation authorising DNA data banks,
proceeds
entirely in the context of the Fourth Amendment guarantee
against unreasonable search and seizure.
’
DNA
(the abreviation for Deoxyribonucleic Acid) is a relatively new type
of testing which may be performed on a wide range of bodily
samples,
including blood, with a view to proving guilt, establishing
innocence or proving relationships. The test, a complex one,
is
based upon the scientific thesis that all individuals, save for
identical twins, possess a unique genetic code held in the 46
chromosomes which are made up of the complex chemical which is DNA.
See
S v Maqhina
(supra)
especially at 247c-248c where
the scientific process is described and
The South African Law of
Evidence
Zeffert
et al,
Butterworths (2003) p 713-714).
19. In
keeping with trends in foreign jurisdictions, testing for DNA
purposes is increasingly being recognised by our courts as a
valuable
evidentiary tool, not least in criminal cases. See
S v R &
Others
2000 (1) SACR 33
(W) at 39d-40a and
S v Maqhina
(supra).
20. There can
be little doubt that the involuntary taking of a blood sample for the
purposes of DNA profiling is both an invasion
of the subject’s
right to privacy and an infringement, albeit slight, of the right to
bodily security and integrity. To the extent,
however, that the
involuntary taking of a blood sample from an accused for the purposes
of compiling a DNA profile for use in criminal
proceedings infringes
his/her right to privacy, dignity and bodily integrity, I am of the
view that the limitation clause in the
Constitution (s 36 of Act 108
of 1996) permits the limitation of these rights, through the medium
of section 37 of the Criminal
Procedure Act. I consider that, taking
into account the factors set out in section 36(1)(a)-(e), such a
limitation is necessary
and justifiable in an open and democratic
society based on human dignity, equality and freedom. Put
differently, the taking of blood
samples for DNA testing for the
purposes of a criminal investigation is a reasonable and necessary
step to ensure that justice is
done and is reasonable and necessary
in balancing the interest of justice against those of individual
dignity.
21. In the
content of involuntary invasive procedures, it bears noting that in
recent times our courts have gone as far as sanctioning
the removal
of a bullet from the body of an accused where the State sought it as
real evidence of the commission of a crime. In
Minister of Safety
and Security v Gaqa
2002 (1) SACR 654
(C) the Court held that
granting the relief sought by the State would involve a limitation of
rights and required that the limitation
of rights test that section
36(1) of the Constitution provides, be applied. It held that a
refusal to assist the applicant would
result in serious crimes
remaining unsolved, law enforcement being stymied and justice
diminished in the eyes of the public who have
a direct and
substantial interest in the resolution of such crimes. It goes
without saying that these factors also carry considerable
weight in
the balancing exercise which section 36 requires in relation to the
matter at hand. In
Gaqa’s
case the Court found that the
respondent’s interests were of lesser significance and allowed the
relief sought. See however the
case of
Minister of Safety and
Security and Another v Xaba
2003 (2) SA 703
(D)
where, in
very similar circumstances, the court reached the opposite
conclusion.
Application of
the law to the facts
In
the present matter, judging from the evidence heard so far and from
the summary of material facts, it is clear that DNA evidence
based
upon blood samples taken from the accused is a central pillar of the
State’s case. For the reasons given, uncertainty
has now arisen
regarding the origin of the blood samples upon which the existing
DNA evidence, not yet presented to court, is based.
The need for
great care in the execution and recordal of all aspects of the
testing process is plain. (See
S v Maqhina (supra)
)
.
The accused initially submitted to the taking of blood samples,
apparently without demur, in May 2001 in terms of section 37 of
the
Act. It is difficult to see the merits in their present refusal to
undergo a second such test.
The
objection to the taking of fresh blood samples is presented as being
twofold in nature based upon the alleged unreasonableness
and lack
of necessity therefor. As I have already sought to demonstrate, the
suggestion that there is no necessity for fresh blood
samples is
quite illogical. The inconvenience and infringement of personal
liberties which the accused will suffer through the
taking of fresh
blood samples is, in my view, very limited and is justified and
sanctioned by law. Although I can envisage circumstances
in which a
court might hold that the taking of a further set of blood samples
from an accused would be unreasonable or unnecessary,
this, however,
is not such a case. Whilst the State’s agents may have been
careless in the taking of the first blood samples,
although I
refrain from expressing any view thereon at this stage, there has
been no indication that the State has been
mala fide
either
at that stage or in this application. As I stated above, the
suggestion that the State has come to court with unclean hands
is
simply not borne out on the papers and the evidence before me at
this stage.
It
was also contended that there was prejudice to the accused in the
form of having to procure further expert evidence to deal with
any
fresh DNA report and the possible disclosure of genetic traits of
the accuseds’ family. Both from the State’s reply and
the
paucity of detail supplied by the accused, it appears that the
accuseds’ legal team have yet to engage with the substance
of the
State’s DNA evidence and the risk of duplication of effort and
expense on the
part of the
accused or their legal team, appears limited. Similarly the
accuseds’ fears of unwarranted invasions of their privacy
are
expressed in broad and even speculative terms. They can, if
warranted, be met at the appropriate time by an order regulating
the
publication, treatment and disposal of any DNA report relied on by
the State.
25. Finally,
it was suggested by Mr
Van der Berg
that, at best, a case has
only been made out for the taking of blood samples from accused No.1.
This submission once again erroneously
relies upon an acceptance of
the accuracy of the existing DNA report and the integrity of the
underlying blood samples. Furthermore,
the cases against the two
accused are interwoven and clarity as to whether one or both of the
accused is linked to any of the blood
stains can certainly not be
achieved without both being subjected to fresh blood tests.
In
the circumstances the application must succeed and I make the
following order:
In terms of section 37(1)(c) of the Criminal Procedure
Act 51/1997, read with subsections 2(a) and (b), Captain Clark is
hereby
authorised to take such steps in conjunction with the medical
officer of any prison or district surgeon as may be appointed by him
or this court, to take a blood sample of each of the respondents
herein (accused No.1 and accused No.2) in order to ascertain whether
such sample(s) has any mark, characteristic or distinguishing
feature by means of DNA analysis.
……………………………………
L J BOZALEK