Levack and Others v Regional Magistrate, Wynberg and Another (403/2000) [2002] ZASCA 146; [2003] 1 All SA 22 (SCA) (28 November 2002)

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[2002] ZASCA 146
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Levack and Others v Regional Magistrate, Wynberg and Another (403/2000) [2002] ZASCA 146; [2003] 1 All SA 22 (SCA); 2004 (5) SA 573 (SCA); 2003 (1) SACR 187 (SCA) (28 November 2002)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case no: 403/2000
REPORTABLE
In the matter between:
LEVACK,
Hamilton Caesar
First appellant
LEBOLA,
Lincoln
Second appellant
HENDRICKS,
Mervyn
Third appellant
LE
ROUX, Frederick William
Fourth appellant
and
REGIONAL
MAGISTRATE,
WYNBERG
First
respondent
DIRECTOR,
PUBLIC PROSECUTIONS,
WESTERN
CAPE
Second Respondent
Before:
Harms JA, Scott JA, Farlam JA, Cameron JA, and Jones
AJA
Heard:
Friday 1 November 2002
Judgment:
Thursday 28 November 2002
Criminal Procedure Act 51 of 1977
s 37
– Order that accused or
arrested persons supply voice samples is competent
JUDGMENT
_______________________________________________________
CAMERON JA:
The
Criminal Procedure Act 51 of 1977
gives wide powers to police,
doctors and courts to ascertain the bodily features of arrested or
accused persons. At issue in the
appeal is
s 37.
This empowers
police and other officials, and courts before which criminal
proceedings are pending, to take steps, or to order
that steps be
taken ‘to ascertain whether the body’ of an arrested or accused
person ‘has any mark, characteristic or distinguishing
feature or
shows any condition or appearance’.
1
The main question is whether this provision covers the human voice.
In November 1997 five accused were charged with dagga-related
offences in the Wynberg (Cape) Regional Court. They were not asked
– and have still not been asked – to plead. This is because at
the end of March 1998 the Magistrate granted an order under
s 37(3)
that the accused in the presence of their legal representatives give
the State voice samples as specified by a named ‘voice expert’.

The object was to compare the samples with tape recordings of
telephone conversations in the State’s possession, for possible
later use during the trial. The five then challenged the order in
the Cape High Court. Davis J (Hlophe DJP concurring) dismissed
their review application in June 1999,
2
and later refused leave to appeal. This Court granted the necessary
leave in October 1999.
One of the accused died in July 2000. Two of the others (Messrs
Levack and Sebola) are no longer traceable at their home addresses
and have dropped out of the proceedings. Their appeals must be
dismissed for want of prosecution. The two remaining, Messrs
Hendricks
and le Roux, persist in the appeal, in which the presiding
Magistrate is the first respondent. He did not oppose the
proceedings
and abides the Court’s decision. The second
respondent, the Western Cape Director of Public Prosecutions,
opposed the application
and resists the appeal.
Condonation
The first issue is the appalling delay that has occurred. The
Magistrate granted the order four and a half years ago. This Court
granted leave to appeal more than three years ago. The record was
lodged in the Cape High Court in April 2000 – more than two
and a
half years ago. Thereafter both the notice of appeal and the appeal
record were filed late in this Court. Later also the
appellants’
heads of argument were filed late. The appellants seek to have
these lapses condoned. Delays of this kind reflect
poorly on
everyone involved, and bring discredit to the criminal justice
system. The lapses here, which cumulated, are egregious.
What is
more, the explanation tendered – that the attorney was ignorant of
the rules for civil appeals because he ‘specialises
in and deals
almost exclusively with criminal matters’ – is by the avowal of
the appellants’ own counsel completely unacceptable.
Whether condonation should be granted is therefore open to serious
question, and the fate of the application must in these
circumstances
depend on the merits of the appeal itself. These it
is desirable for us to address because, we were told, uncertainty in
the lower
courts pre-dated the decision in the Court below, and
regional magistrates took conflicting approaches to whether such
orders can
be granted. The appeal therefore requires disposal on
the main point in issue.
Before I turn to this, there is a further troubling point. The
appellants’ neglect persisted without intervention from the office
of either the Registrar in the Cape High Court or the Western Cape
Director of Public Prosecutions (DPP). In
S v Joshua
3
this Court recently had occasion to deplore a similar (though much
longer) lapse where an appeal, also from the Cape High Court,
lay in
limbo for years with the appellant out on bail. Appellants in such
circumstances may have little incentive to bring appeals
to
finalisation. Close monitoring is therefore essential, and
responsibility for it must rest on the DPP. In this case, we await
a report the DPP’s representative promised on steps to ensure that
future appeals will not disappear from view in this way.
Grounds of Review
The grounds of review the appellants relied on in their founding
papers were that –
the voice samples the State required did not fall within
s 37
;
an order that voice samples be provided under compulsion would
effectively breach the appellants’ privilege against
self-incrimination
and result in an unfair trial; and
the Magistrate had no power to grant the order under
s 37(1)(c)
, nor
had the State laid a basis for bringing the application within
s
37(3)(a).
I consider these grounds in turn.
Is the Voice a
‘Characteristic or Distinguishing Feature’ of the Body?
Basic definition is always a good starting point in the search for
statutory meaning. In the present case it provides a conclusive
solution. The Concise Oxford Dictionary defines ‘voice’ as ‘1.
Sound formed in larynx etc and uttered by mouth, especially
human
utterance in speaking, shouting, singing, etc. 2. Use of voice,
utterance. 3. (Phonetic) Sound uttered with resonance of
vocal
chords, not with mere breath.’ The voice is thus a sound formed
in the larynx and uttered by the mouth. It emanates from
and is
formed by the body. There can therefore be no doubt that it is a
‘characteristic’ (in the sense of a distinctive trait
or
quality) of the human body.
That each human voice is distinctive (although by no means always
capable of assured discernment)
4
is also clear. The voice is therefore also a ‘distinguishing
feature’ of the body. The conclusion that the voice falls within
the scope of
s 37
must follow.
Davis J thus rightly held that a voice ‘represents a defining
characteristic of a human being’.
5
As he also pointed out, this conclusion accords with both South
African and United States authority. In
S v M
6
Bresler J thought it ‘perfectly plain’ that a voice ‘cannot
fail but to be included within this category of “a mark,
characteristic
or distinguishing feature”’. The Supreme Court
of the United States has for decades regarded the voice of an
accused as ‘an
identifying physical characteristic’.
7
The contrary view, Davis J rightly observed, is clearly untenable.
8
However Davis J considered that this result could be achieved only
by applying a purposive approach to
s 37.
By this he meant that the
provision’s wording is ambiguous, and that to reach the conclusion
that ‘voice’ is covered, it
is necessary to go beyond its
perceived verbal signification. I disagree. In my view the literal
meaning of ‘characteristic
or distinguishing feature’ amply
covers the human voice.
The decision of this Court in
Ex parte Minister of Justice: in re
R v Matemba
,
9
which Davis J considered an early example of purposive statutory
interpretation, was I think more modest in its purport. The

question was whether a palm print was a ‘mark, characteristic or
distinguishing feature’. Because the then applicable provision
10
expressly mentioned finger and footprints, it was argued that palm
prints were excluded. Watermeyer JA (De Wet CJ, Tindall JA,
Centlivres JA and Feetham JA concurring), affirming the majority
decision (to which he was himself party) in
R v Brown
,
11
held that the general words obviously encompassed palm prints. He
said:
‘
It is quite possible that the Legislature did not
have the markings on a palm particularly in mind when they used the
words “mark,
characteristic or distinguishing feature” possibly
because it may not have been generally known at the time the Act was
passed
that the marks on the palm of a hand are distinguishing
features. But in my judgment it was for the very reason that there
may exist
innumerable kinds of marks, characteristics and
distinguishing features which cannot be set out in detail that
generic words were
used wide enough to embrace all. In a similar way
no attempt was made to specify in detail the exact acts which the
police may perform
in order to ascertain whether or not the body of
an accused person bears a mark, characteristic or distinguishing
feature, because
an incomplete enumeration of such acts might
handicap the police in the performance of their duty. Inspection of
the body may reveal
distinguishing marks of one kind, but other
distinguishing marks may require for their revelation one or other of
the resources of
science such as microscopic or chemical examination,
photography, X-ray photography, prints, etc.’
12
Exactly the same applies here. The section does not expressly
mention the voice. But this is because it is one of ‘innumerable’
bodily features that the wording expressly contemplates. It is true
that the voice, unlike palm or other prints, is not itself
part of
the body. It is a sound. But the sound is a bodily emanation. And
the body from which it emanates determines its timbre,
volume and
distinctive modulations. Nothing in the provision suggests that the
‘distinguishing features’ it envisages should
be limited to
those capable of apprehension through the senses of touch and sight
(or even taste or smell).
Hearing is as much a mode of physical apprehension as feeling or
seeing. For the sight-impaired it is indeed the most important
means of distinguishing between people. It would therefore be
counter-literal to interpret the section as though the ways of

‘ascertaining’ bodily features it contemplates extend only to
what is visible or tangible.
Self-Incrimination and the Appellants’ Fair Trial Rights
Appellants’ counsel contended that
s 37
deviated from the common
law principle, now enshrined in the Constitution,
13
that an accused was entitled to be ‘passive’ in criminal
proceedings. He developed this argument (as the second ground of
review portends) by contending that the order granted violated the
‘notions of basic fairness and justice’
14
the Constitution now requires of our criminal proceedings and that
it would thus inevitably result in an unfair trial.
The argument involves a muddle with two fallacies. But in one form
or another it has proved tenacious. Hence it is necessary
first to
point out the muddle and then to repel the fallacies. This Court
has previously dealt authoritatively with the muddle.
In
Matemba
,
15
Watermeyer JA drew attention to a trial judge’s misformulation of
issues arising from the non-voluntary taking of an accused’s
palm
print. He said:
‘
That statement appears to lay down two separate and
distinct propositions –
that
in the absence of statutory provision an accused person cannot be
compelled to furnish evidence against himself;
that
evidence obtained under compulsion cannot be used against an accused
person.
The terms in which those propositions are stated tend to
obscure the real issues which are involved, and I do not think that
either
of them can be accepted as accurate expositions of the law.
The legality of the methods used to obtain the palm print is one
matter; the use of the palm print as evidence is another, and these
two questions must be kept separate and not combined with one
another, as is done when it is said that an accused person cannot be
compelled to furnish evidence against himself.
’
16
(Emphasis added.)
Applying the same approach to the present argument, the first
fallacy is that evidence derived from an accused’s physique
violates
the right against self-incrimination. Differently put, it
is wrong to suppose that requiring the appellants to submit voice
samples
infringes their right either to remain silent in the court
proceedings against them or not to give self-incriminating evidence.
In
R v Camane and others
,
17
Innes CJ analysed and exposed the same fallacy a decade and a half
before
Matemba
:
‘
Now it is an established principle of our law that no
one can be compelled to give evidence incriminating himself. He
cannot be forced
to do that either before the trial, or during the
trial. The principle comes to us through the English law, and its
roots go far
back in history. Wigmore, in his book on
Evidence
(vol IV, section 2250)
18
traces very accurately the genesis, and indicates the limits of the
privilege. And he shows that, however important the doctrine
may be,
it is necessary to confine it within its proper limits. What the
rule forbids is compelling a man to give evidence which
incriminates
himself. “It is not merely compulsion” says
Wigmore
(section 2263)
19
“that is the kernel of the privilege, but testimonial compulsion.”
It is important to bear this in mind, because a man may be
compelled, when in Court, to do what he would rather not. His
features may be of importance, and he may be made to show them; his
complexion, his stature, mutilations, or marks on his body, may be
relevant points, and he may be compelled to show them to the Court.

That is what
Wigmore
calls autoptic evidence (vol II, section
1150)
20
which is perceived by the Court itself, and which it has a right to
see. In such cases the man is really passive. But he cannot
be
forced to go further and to give evidence against himself.’
21
Despite the clarity of Innes CJ’s pronouncement, the fallacy has
endured. Fifteen years later, Watermeyer JA had to rebut it
again,
at length, in
Matemba
.
22
He concluded:
‘
Now, where a palm print is being taken from an
accused person he is, as pointed out by Innes CJ in
Rex v Camane
(1925 AD at p 575), entirely passive. He is not being compelled to
give evidence or to confess, any more than he is being compelled
to
give evidence or confess when his photograph is being taken or when
he is put upon an identification parade or when he is made
to show a
scar in Court. In my judgment, therefore, neither the maxim
nemo
tenetur se ipsum prodere
nor the confession rule make
inadmissible palm prints compulsorily taken.’
Notwithstanding the authority of these expositions, the task of
explaining that ‘autoptic evidence’ – evidence derived from
the accused’s own bodily features – does not infringe the right
to silence nor the right not to be compelled to give evidence
has
continued to fall upon judges.
23
The explanations given in these cases apply in all details to the
human voice.
24
It falls within the same category as complexion, stature,
mutilations, marks and prints.
It is of course true that to take a palm- or fingerprint, or to draw
blood from an accused, or to require him to supply a voice
sample,
goes further than merely observing his features or complexion when
he appears in court. Our legal system recognises the
distinction.
It is for this reason that Ackermann J held in
S v Binta
25
that a person who refuses a request to submit to the taking of a
blood sample under s 37 cannot, by the mere refusal, be guilty
of
obstructing the course of justice or of attempting to defeat the
ends of justice. The additional means of compulsion that the
provision licenses may have to be employed. In the present case, it
was no doubt awareness of
Binta
that induced the DPP to seek
the order. Eventual defiance of it would found a charge of contempt
of court.
Despite this added feature, there is no difference in principle
between the visibly discernible physical traits and features of
an
accused and those that under law can be extracted from him through
syringe and vial or through the compelled provision of a
voice
sample. In neither case is the accused required to provide evidence
of a testimonial or communicative nature,
26
and in neither case is any constitutional right violated.
The second fallacy in the argument is this. It is wrong to suggest
that the order intrinsically violates the appellants’ fair
trial
rights. At present the only question before us is whether an order
requiring an accused to supply in the presence of defence
lawyers
voice samples indicated by a State-designated ‘expert’ is
competent. Those samples have not yet been procured. The
‘expert’s’ report has not yet been prepared. Its value and
the weight that should properly be accorded it have not arisen
for
determination.
All these are issues for determination at the trial, which has not
even begun. Once the appellants have pleaded, the trial court
will
be vigilant to ensure observance of their rights. This will demand
scrutiny not only of the methods and procedures applied
in procuring
the voice samples, but of the quality, reliability and value of the
expert evidence about them. The argument that
an incipient and
inevitable breach of fair trial rights has occurred is therefore
untenable.
The Inter-Relation Between s 37(1) and s 37(3)
The review grounds suggested also that the Magistrate had no power
to grant the order under s 37(1)(c), and that the State had
laid no
basis for bringing the application within s 37(3)(a). This attack,
too, is misconceived. The Magistrate in fact omitted
to specify
under what sub-section he granted the order. But that he had the
power to make an order requiring the appellants to
supply voice
samples cannot be doubted.
It has rightly been held that police powers to act under s 37(1)
come to an end only when an accused has been convicted, and that,
by
corollary, so long as the police retain their s 37(1) powers, a
court before which criminal proceedings are pending has no power
to
make the orders contemplated under s 37(3).
27
This does not however mean that such a court cannot do so under s
37(1). In the present case, the police retained the power under
s
37(1)(c) to take steps as they might deem necessary to ascertain the
characteristic or distinguishing features of the appellants’
voices. This included the power to request the appellants to supply
voice samples. 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 thus reinforced and underscored the powers
of
the police, by making refusal to cooperate subject to sanction for
contempt of court. In short, sub-sections (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).
28
Review of Unconcluded Proceedings
As is well established, the Supreme Court Act 59 of 1959 permits
intervention by superior courts in the unconcluded proceedings
of
inferior courts only on limited grounds.
29
I agree with Davis J in the Court below that no case at all was made
out that this is one of the rare cases where intervention
was
warranted.
30
Appellants’ counsel sought to argue that the order requiring the
provision of voice samples was of such a radical nature, comparable
to the imposition of corporal punishment, that it was final in
effect. The argument is not persuasive. As explained above, the
provision of voice samples is no different in principle from the
provision of a blood sample or a fingerprint. The order granting
it
cannot, at this stage of the proceedings constitute the sort of
gross irregularity that would justify intervention.
Order
The appeal of appellants 1 and 2 is dismissed for want of
prosecution.
The application for condonation of appellants 3 and 4 is dismissed.
E CAMERON
JUDGE OF APPEAL
HARMS JA )
SCOTT JA ) CONCUR
FARLAM JA )
JONES AJA )
1
Section 37 provides:
Powers in respect of prints and bodily appearance of accused
(1) Any police official may –
(a) 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;
(ii) of any
such person released on bail or on warning under section 72;
(iii) of any
person arrested in respect of any matter referred to in paragraph
(n), (o) or (p) of section 40 (1);
(iv) of any
person upon whom a summons has been served in respect of any offence
referred to in Schedule 1 or any offence with reference
to which the
suspension, cancellation or endorsement of any licence or permit or
the disqualification in respect of any licence
or permit is
permissible or prescribed; or
(v) of any
person convicted by a court or deemed under section 57 (6) to have
been convicted in respect of any offence which the
Minister has by
notice in the Gazette declared to be an offence for the purposes of
this subparagraph;
(b) make a
person referred to in paragraph (a) (i) or (ii) available or cause
such person to be made available for identification
in such
condition, position or apparel as the police official may determine;
(c) 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.
(d) take a
photograph or may cause a photograph to be taken of a person
referred to in paragraph (a) (i) or (ii).
(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.
(b) If any
registered medical practitioner attached to any hospital is on
reasonable grounds of the opinion that the contents of
the blood of
any person admitted to such hospital for medical attention or
treatment may be relevant at any later criminal proceedings,
such
medical practitioner may take a blood sample of such person or cause
such sample to be taken.
(3) Any
court before which criminal proceedings are pending may-
(a) 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;
(b) order that the steps,
including the taking of a blood sample, be taken which such court
may deem necessary in order to ascertain
the state of health of any
accused at such proceedings.
(4) Any
court which has convicted any person of any offence or which has
concluded a preparatory examination against any person
on any
charge, or any magistrate, may order that the finger-prints,
palm-prints or foot-prints, or a photograph, of the person
concerned
be taken.
(5)
Finger-prints, palm-prints or foot-prints, photographs and the
record of steps taken under this section shall be destroyed if
the
person concerned is found not guilty at his trial or if his
conviction is set aside by a superior court or if he is discharged
at a preparatory examination or if no criminal proceedings with
reference to which such prints or photographs were taken or such
record was made are instituted against the person concerned in any
court or if the prosecution declines to prosecute such person.
2
Reported:
1999 (4) SA 747
(C),
1999 (2) SACR 151
(C).
3
S v Joshua
2002 (2) SACR *** (SCA) [ABOUT TO BE REPORTED]
para 55 per Mpati JA.
4
Difficulties in organising reliable ‘voice identification parades’
are alluded to in
R v Gericke
1941 CPD 211
214 and in
R v
M
1963 (3) SA 183
(T) 184F-H. In
R v Galiswe
1925 GWL 23
the trial court excluded evidence of a voice identification
procedure because the accused was not warned or told why he was
being
questioned.
5
1999 (4) SA 747
(C) 752C,
1999 (2) SACR 151
(C) 155
g
-
h
.
6
1963 (3) SA 183
(T) 184E-F.
7
US v Wade
[1967] USSC 181
;
388 US 218
(1967) 222-223 (Brennan J for the
Court);
Gilbert v California
[1967] USSC 162
;
388 US 263
(1967) 266-267
(Brennan J for the Court);
US v Dionisio
410 US 1
(1973) (a
voice has ‘physical properties’, which can be measured) (Stewart
J for the Court).
8
1999 (4) SA 747
(C) 753B,
1999 (2) SACR 151
(C) 156
f
.
9
1941 AD 75.
10
Criminal and Magistrates’ Courts Procedure (Amendment) Act 39 of
1926, s 2.
11
1935 CPD 286.
12
1941 AD 75
79-80. That the conclusion is ‘obvious’ is stated at
page 80.
13
The Bill of Rights provides that everyone who is arrested for
allegedly committing an offence has the right to remain silent and
not to be compelled to make any confession or admission that could
be used in evidence against that person (s 35 (1)(a) and (c)),
and
that every accused person has a right to a fair trial, which
includes the right ‘to be presumed innocent, to remain silent,
and
not to testify during the proceedings’ and not to be compelled to
give self-incriminating evidence (s 35(3)(h)); considered
in
S v
Zuma and others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) paras 29-32 (Kentridge AJ)
and
Ferreira v Levin NO and others
1996 (1) SA 984
(CC) paras
23 and 91-100. Steenkamp and Nugent in Cheadle, Davis and Haysom
South African Constitutional Law: The Bill of Rights
(2002)
chapter 29 p 680 observe that ‘It is difficult to see what is
added by the express right not to be compelled to make a
confession
or an admission, for the right to remain silent, and the right not
to testify have, in any event, the effect of prohibiting
compulsion
to make confessions or admissions.’
14
S v Zuma and others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 16.
15
1941 AD 75.
16
1941 AD 75 77-78.
17
1925 AD 570.
18
See now
Wigmore on Evidence
, McNaughton Revision (1961) vol 8
para 2250.
19
See now
Wigmore on Evidence
, McNaughton Revision (1961) vol 8
para 2263.
20
See now
Wigmore on Evidence
, revised by Chadbourn (1972) vol
4 para 1150.
21
Cited with approval in
S v Zuma and others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 31 and in
Ferreira v Levin NO and others
1996 (1)
SA 984
(CC) paras 23 and 96.
22
1941 AD 75 80-83.
23
Nkosi v Barlow NO en andere
1984 (3) SA 148
(T) 151-152
(Spoelstra J, Eloff J concurring);
S v Binta
1993 (2) SACR
553
(C) 562
d
-
e
(Ackermann J, Conradie J concurring);
S
v Huma and Another
1996 (1) SA 232
(W) 237-240,
1995 (2) SACR
411
(W) 417-419 (Claassen J);
S v Maphumulo
1996 (2) SACR 84
(N) 87-90 (Combrink J).
24
This is also the position in the United States of America (
US v
Wade
[1967] USSC 181
;
388 US 218
(1967);
Gilbert v California
[1967] USSC 162
;
388 US 263
(1967);
US v Dionisio
410 US 1
(1973)).
25
1993 (2) SACR 553
(C) (Conradie J concurring).
26
The
Corpus Juris Juris Secundum
vol 22A para 652 puts it
thus: ‘The privilege against self-incrimination is not violated by
compelled participation in identification
procedures, and the
compelled display of identifiable physical characteristics infringes
no interest protected by such privilege,
since … the privilege
against self-incrimination protects only against evidence of
testimonial or communicative nature’, and
compulsion to speak does
not violate it.
27
Nkosi v Barlow NO en andere
1984 (3) SA 148
(T) 154I-155E
(Spoelstra J, Eloff J concurring).
28
It follows that the order in
S v Huma and another
1996 (1)
SA 232
(W),
1995 (2) SACR 411
(W) should have been granted in terms
that made it clear that the accused were ordered to cooperate with
the police in the exercise
of the powers of the latter to take
finger-prints under s 37(1)(c).
29
Act 59 of 1959 provides:
24
Grounds
of review of proceedings of inferior courts
(1) The
grounds upon which the proceedings of any inferior court may be
brought under review before a provincial division, or before
a local
division having review jurisdiction, are-
(a) absence
of jurisdiction on the part of the court;
(b) interest
in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c) gross
irregularity in the proceedings; and
(d) the admission of
inadmissible or incompetent evidence or the rejection of admissible
or competent evidence.
30
1999 (4) SA 747
(C) 754A-755A,
1999 (2) SACR 151
(C) 157e-158
a
,
citing inter alia
Wahlhaus and Others v Additional Magistrate,
Johannesburg and Another
1959 (3) SA 113
(A),
Ismail and
Others v Additional Magistrate, Wynberg and Another
1963 (1) SA
1
(A) and
Key v Attorney-General, Cape Provincial Division and
Another
[1996] ZACC 25
;
1996 (4) SA 187
(CC).