1 TRIAL-WITHIN -A-TRIAL
JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION. BENONI
In the matter between
CASE NO : CC49/2024
DATE: 09 .04.2026
DELETE WHICHEVER IS NOT ~PLICABLE
(1) REPORTABLE: YES/~ I.':\
(2) OF INTEREST TO OTHER JUDGES : YES / 0
(3) REVISED
10 THE STATE
20
and
KHETHA MVELASE
BONGANI BUTHELEZI
SIBUSISO SIBIYA
TRIAL-WITHIN-A-TRIAL
JUDGMENT
MATLAPENG, AJ:
Accused 1
Accused 2
Accused 3
[1] The court shall proceed to pass judgment in a trial
within-a-trial. The three accused are standing trial on
a number of counts , the evidence of the identification
parade which was held on 21 June 2023 at Germiston
at which accused 1 and 3 had been pointed out by a
CC49/2024_09.04 .2026 I jc
10
20
2
witness is in issue .
TRIAL-WITHIN-A-TRIAL
JUDGMENT
[2] It is contended by Adv Tshole on behalf of accused 1
and 3 that the evidence relating to the identification
parade should be excluded as it had been obtained
unconstitutionally , in that the legal representative had
not been present at the time of the parade.
[3] The court is required to determine whether the
evidence of what happened at the identification
parade should be excluded on the ground that it
would render the trial unfair , or otherwise be
detrimental to the administration of justice .
[ 4] The burden of proof rests upon the State to prove the
admissibility of the identification parade .
[5] The State in its attempt to prove the admissibility of
the evidence of the identification parade called two
witnesses . The first to testify is Moteku Tlolane ,his
evidence is briefly to the following effect , he is a
sergeant in the South African Police Services with 21
years' service . On 21 June 2023 he was in charge of
an identification parade held at Germiston Police
Stat ion . It is his evidence that he was not involved in
the investigation of this matter . He completed the
identification parade form, SAP329 which was handed
CC49/2024_09.04.2026 I jc
10
20
3 TRIAL-WITHIN-A-TRIAL
JUDGMENT
in as an exh ibit and marked AA3. He testified further
that there was a photographer who obtained photos
during the parade , the photos were handed in as an
exhibit and marked AAS .
[6] It is Sergeant Tlolane's testimony that there were 12
people who formed the line-up, that accused 1 and 3
are the people who chose the people that were part of
the line-up .
[7] It is this witness ' evidence that they used a one-way
glass or mirror where the people in the line-up were
in a room and the witness would be on the other side
of the mirror . Sergeant Tlolane testified further that
he had conducted m ore than 20 identificat ion
parades , that he apprised accused 1 and 3 of their
constitutional rights, in cluding their right to legal
representation , but that they elected to proceed
without a legal repre sentat ive.
[8] It is Sergeant Tlolane ' s testimony that had the
accused informed him that they needed a legal
representative at the parade , he would have
postponed the identification parade.
[9] Sergeant Tlolane testified further that each of the 12
people who formed the line-up was given a number
CC49/2024_09.04 .2026 I jc
10
20
4 TRIAL-WITHIN-A-TRIAL
JUDGMENT
written on an A4 paper, they were numbers 1 up to
12, and that the witness who did the pointing out
pointed accused 1 and 3 now before court.
[1 OJ The second witness to testify is Mr Sibuye , he is also
a sergeant in the SAPS with 24 years' experience and
22 years in the LCRC as a photographer. It is his
evidence that he also attended more than, or
participated in more than 20 identity pa rad es as a
photographer. It is Sergeant Sibuye 's evidence
further that he was called to attend the identific at ion
parade in question, he took photos and compiled the
photo album and key thereto, which was handed in as
an exhibit and marked EXHIBIT AA5. That concluded
the State case in a trial-within-a-trial , but before Adv
Malefahlo for the State could close the State case he
handed in two statements, one comp iled by Constable
Mwelase, and the second by Sergea nt Ndima. Adv
Tshole consented to the handing in of these
statements and they will be dealt with later in the
judgment .
[11] Thereafter accused 1 and 3 testified, their evidence
is briefly that their constitutional rights were not
explained to them , especially the right to legal
representation.
CC49/2024_09.04.2026 I jc
10
5 TRIAL-WITHIN-A-TRIAL
JUDGMENT
[12] Accused 1 and 3 testified fu rt her that the
i nvestig ati ng officer , to wit Sergeant Ra petsoa ,
brought int o the parade room the persons who formed
part of the line-up. It is the defence ' s evidence that
this Rapetsoa was also with the witness who did the
pointing out , who pointed out accused 1 and 3 .
[13] The court then called Sergeant Rapetsoa in terms of
section 186 of the Criminal Procedure Act, 51 of
1977 . His evidence is briefly that he is the
i nvestig ati ng officer or one of the i nvestig ati ng
officers in this matter, but that he was not present at
the identification parade held at Germiston on 21
June 2023. That the identity parade in question was
conducted in a case that occurred in Mahamba in
Mpumalanga area and that he was not part of the
investigation of that case.
20 [14] The State argued that the court should admit the
evidence of the identity parade into evidence.
[15] Adv Tshole on the other hand contends that the
admiss ion of the evidence will be prejudicial to the
accused , he argues in the main that the accused were
denied their constitutional right to have a legal
representative present at the identification parade.
CC49/2024_09.04.2026 I jc
10
6 TRIAL-WITHIN-A-TRIAL
JUDGMENT
(16] The evidence of the State as to what happened at the
identification parade is diametrically opposed to the
evidence testified to by accused 1 and 3.
(17] The evidence of Sergeant Tlolane is that he appr i sed
accused 1 and 3 of their right to legal representation ,
but that they opted to participate in the parade
without their legal representative , and that in the
parade room it was only himself , the photographer ,
Sergeant Sibuye , and the persons in the line-up ,
including accused 1 and 3.
[18] It is accused 3's testimony that the investigating
officer , to wit Sergeant Rapetsoa , in t he company of
Sergeant Tlolane arrived with the people who formed
part of the line-up in the parade room .
[19] This portion of accused 1 ' s evidence is in conflict
20 with the ve rsion of accused 3 who testified that whilst
they were in the parade room Rapetsoa was on the
other side of the mirror with the witness who did the
pointing out.
[20] These assertions by accused 1 and 3 cannot be the
truth , regard being had to what follows infra .
Sergeant Ndima , whose statement was handed in as
EXHIBIT AA? , states in his statement that he assisted
CC49/2024_09 .04.2026 I jc
7 TRIAL-WITHIN-A-TRIAL
JUDGMENT
in the identity parade held at Germiston on 21 June
2023 by Sergeant Tlolane . He states further that he
escorted the witness from room G511, that he did not
discuss the case with the witnesses , nor allow them
to discuss the case, and that no irregularities
occurred in his presence . Adv Tshole consented to
the handing in of Sergeant Ndima ' s statement .
[21] Constable SE Mwelase ' s statement was also handed
10 in as EXHIBIT AA6 . Adv Tshole also consented to the
handing in of this statement , which was also read into
20
the record by State counsel . Constable Mwelase
states in his statement that he assisted in the
ident ificat ion parade in question. He states further
that he was not involved in the investigation of this
case. He states as follows at paragraph 3:
II I did not discuss the case with the
witnesses and did not allow them to
discuss it with each other , nor were any
other persons allowed to see them , nor
discuss the case with them ."
[22] I am in agreement with Adv Malefahlo for the State
that the issue raised by accused 1 and 3 in their
evidence that the investigating officer , to wit Sergeant
Rapetsoa , was part of the identificat ion parade, is a
CC49 /2024_09.04 .2026 I jc
8 TRIAL-WITHIN-A-TRIAL
JUDGMENT
crucial issue suff icient enough to nullify the
proceedings. It is their version that Rapetsoa was at
one stage with the identifying witness when she
pointed out accused 1 and 3.
[23] Wigmore in his Book on Evidence says cross
examination is the greatest legal weapon ever
invented to discover the truth.
10 [24] Adv Tshole is one of the able counsels of this division
20
who represents his clients to the best of his ability.
He would not have consented to the statements of
Sergeant Ndima and Constable Mwelase to be handed
in as exh ibits if indeed Sergeant Rapetsoa or any
other person contacted or was with a witness before
the latter did the pointing out.
[25] Adv Tshole would also have taken Sergeant Tlolane
to task about the presence of Se rgeant Rapetsoa at
the identification parade if indeed Sergeant Rapetsoa
was present at the parade. Adv Tshole did also not
raise this aspect of Sergeant Rapetsoa being present
at the parade in his argument.
[26] The issue of the inve st igating officer , to wit Sergeant
Rapetsoa , being in attendance at the parade, which
came to the fore only when accused 1 and 3 were in
CC49/2024_09.04.2026 I jc
10
20
9 TRIAL-WITHIN-A-TRIAL
JUDGMENT
the witness stand , is one of several problems with the
accused versions, and there are also imp robabilities
which affect both accused 1 and 3' s versions as to
what actually transpired at the time of the
identification parade.
(27] I find therefore that the assertion by accused 1 and 3
that Sergeant Rapetsoa was present at the
identification parade in quest ion is just an
afterthough t, and that in fact it is a fabrication of their
own ima gination and is rejected as false.
[28] Adv Tshole raised an argument about the photos , he
argued that it was desirable that there should have
been a photo of all 12 people who were part of the
line-up, so that one can be in a position to see if
these people were of the same complexion, height,
physique , there i s no force in this argument. Mr
Sibuye, the photographer, explained that the room
where th e parade was held is smal l, it did not allow a
photo of all 12 people to be taken at the same time,
but that photo 5 is a continuation of photo 4. The
photos depicting persons in the line-up, are from
photos 4 up to 15, and every Tom, Dick and Harry wil l
be in a position to see all the people who were in the
line-up on this day in question.
CC49/2024_09.04 .2026 I jc
10
20
10 TRIAL-WITHIN-A-TRIAL
JUDGMENT
[29] Adv Tshole pointed out, and rightfully so , that an
accused person is entitled to legal representation as
from the time of his arrest . This is provided for by
sect ion 73 ( 1) of the Criminal Procedure Act , 51 of
1977 . Sect ion 35 (3) of the Constitution provides:
" Every accused person has a right t? a fair
trial, which include the right -
(f) To choose and be represented by a
(g)
legal practitioner and to be
informed of this right promptly ;
To have a legal practitioner
assigned to the accused person by
the State and at State expense if
substantial injustice would
otherwise result , and to be informed
of this right promptly ."
It is not in dispute that accused 1 and 3 had a legal
representative when they first appeared in court here
at Benoni on 12 June 2023 and that they had already
appeared in court when the identificat ion parade was
conducted .
CC49/2024_09 .04.2026 I jc
10
20
1 1 TRIAL-WITHIN-A-TRIAL
JUDGMENT
[30] There was no suggestion that the presence of a legal
representative would have made any difference to the
outcome of the parade. An identification parade is
different from a confession or a pointing out , where
an accused is asked to incriminate himself, such an
accused has a right to legal representation before
deciding whether to do the confession or a pointing
out.
[31] In the case of S v Mphala and Another 1998 ( 1) SACR
654 (W) it was contended on behalf of the accused
that the evidence relating to the identification parade
should be excluded as it had been obtained by
unconstit utional means, in that the attorney had not
been present at the time of the parade . The court
held that although on their version the accused did
not waive their right in re spec t of the parade which
was held , they at no time said that they had
attempted to assert such rights at that parade when
they discovered that their attorney was not presen t, it
could therefore not be said that the police held the
identif ication parade despite the express wish of the
accused that it should not take place without their
attorney being present .
CC49/2024_09 .04.2026 I jc
10
12 TRIAL-WITH IN-A-TRIAL
JUDGMENT
[32] In the present matter accused 1 and 3 at no time said
that they attempted to the assert the right to have
their legal representativ e present at the identification
parade . It could therefore not be said that the police ,
in particular Sergeant Tlolane, held the identification
parade despite the express wish of accused 1 and 3
that the parade should not take place without their
legal representative being present .
[33] In the resu lt it is my finding that the evidence of what
transpired at the identi fication parade is admissible in
evidence.
MATLAPENG,AJ
20 ACTING JUDGE OF THE HIGH COURT
DATE: .o .. q./0.4. / do J. ,6
CC49/2024_09 .04 .2026 I jc
TRANSCRIBER'S CERTIFICATE
I, the undersi gn ed, hereb y certify that so far as it is audible to
me, the aforegoing is a true and correct transcript of the
proc eeding s recorded by means of a dig ital recorder in th e matter
betw ee n:
THE STATE // K MVELASE & 2 OTHERS
CASE NUM BER
RECO RDED AT
DATE HELD
NUMBER OF PAGES
CC49/202 4
BENON I
09 .04.2026
12
PROBLEMS EXPERIENCED WITH RECOR DING
DATE COMPLE TED 15.04.2026
TRANSCRI BER
~
JEANETTE CROUS
inle>rso
36 Alkantrant Road, Lynnwood Manor , Bloc k B
PlelOfla
Gauteng I 0081
Ii •2112 426 73n I CD +27 83 soo 6612
iBJ: andre daYfds1@!(11exso co za I Website: y,;ww IO!e!(SQ.co za