Page v
Preface
This edition, like the previous three, is an attempt to strike a balance between the theory of
the law of evidence and its practical application in a constitutional setting. We hope that this
fourth edition will be of assistance to both students and practitioners and that it will alert
them to the growing impact of the Bill of Rights on the traditional Anglo-South African law of
evidence.
We would like to thank the following people for their contributions: Wouter de Vos (author
of chapter 22 and co-author of chapter 23), Eugene van der Berg (co-author of chapters 4
and 8), Justin de Jager (author of chapter 21) and Avinash Govindjee (co-author of
chapter 4).
We thank our publishers, Juta, for their encouragement and support. Marlinee Chetty
oversaw production of this fourth edition. Her patience and professional approach are greatly
appreciated.
An attempt was made to state the law as at the end of May 2015.
PJ Schwikkard
Cape Town
Steph van der Merwe
Durbanville
22 September 2015
Page vii
Contents
Preface
Mode of citation of principal works and sources
Section A
An Introduction to the Law of Evidence
1 An Introduction to the History and Theory of the Law of Evidence –S E van der
Merwe
Introduction
11
Scope and Functions of the Law of Evidence
12
Early History and Development of the English Law of Evidence
13
The religious (primitive) stage
131
The formal stage
132
The rational stage (and development of the jury)
133
Procedural and Evidential Systems and Some Universal Principles of Fact-Finding
14
Ordinary Courts and Small Claims Courts: An Examination of Procedural and
15
Evidential Differences
Small claims courts and the inquisitorial procedure and free system of
151
evidence
Accusatorial versus inquisitorial procedure
152
Strict versus free system of evidence
153
Jurors and Assessors: Some Brief Comparative Remarks
16
Rules of Evidence in Criminal and Civil Proceedings
17
2 Basic Concepts and Distinctions –S E van der Merwe
Introduction
21
Facts in Issue and Facts Relevant to the Facts in Issue
22
Evidence and Argument
23
Evidence and Probative Material
24
Evidence and Proof
25
Conclusive Proof and Prima Facie Proof
26
Admissibility and Weight of Evidence
27
Conditional Admissibility
28
Circumstantial and Direct Evidence
29
Primary and Secondary Evidence
2 10
Hearsay
2 11
Relevance
2 12
Privilege
2 13
Formal and Informal Admissions
2 14
Confessions
2 15
Judicial Notice
2 16
Presumptions
2 17
The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal
2 18
(Evidential Burden, “Weerleggingslas”)
Page viii
3 Sources of the South African Law of Evidence and the Impact of Constitutional
Provisions –S E van der Merwe
31
Introduction
32
Original and Regional Incorporation of English Law: The Pre-Union Period
33
Criminal Proceedings: The Post-Union Period
34
Civil Proceedings: The Post-Union Period
35
Interpretation of the 30 May 1961 Provision
351
English decisions considered to be incorrect
352
South African rules of practice incompatible with English law
353
Rules inconsistent with constitutional provisions
36
Value of English Cases Decided after 30 May 1961
37
Value of Privy Council Decisions
38
Further Sources
39
Constitutional Provisions
4 The
41
42
43
44
45
46
Law of Evidence and Substantive Law –E van der Berg and A Govindjee
Introduction
The Significance of the Distinction
The Burden of Proof
Irrebuttable Presumptions
Estoppel
Parol Evidence
461
The integration rule
462
Some exceptions
463
Rectification
464
The interpretation rule
Section B
The Admissibility of Relevant Evidence
5 Relevance and Admissibility –S E van der Merwe
51
Introduction
52
Rationale for the Exclusion of Irrelevant Evidence
53
The Meaning of Relevance and the Determination of Relevance
531
The issues (as the essential point of departure)
532
Reasonable or proper inference: assessing the potential weight of the
evidence
533
Avoiding a proliferation or multiplicity of collateral issues
534
The risk of manufactured evidence
535
Prejudicial effect
536
The doctrine of precedent
537
The principle of completeness
538
Constitutional imperatives and the position of the accused
54
Proposals of the South African Law Reform Commission
6 Character Evidence –P J Schwikkard
61
Introduction
Page ix
62
63
Character in Criminal Cases
621
The character of the accused
622
Evidence of the accused’s bad character
623
Section 197 of the CPA
6231
Section 197(a)
6232
Section 197(b)
6233
Section 197(c)
6234
Section 197(d)
624
Section 211 of the CPA
625
Witnesses other than the accused
626
Character of the complainant
6261
Rape or indecent assault
6262
Crimen iniuria
Character in Civil Cases
7 Similar Fact Evidence –P J Schwikkard
71
Introduction
72
The Rationale for the Exclusion of Similar Fact Evidence
73
Formulating the Rule for Determining the Admissibility of Similar Fact Evidence
The formulation in Makin v Attorney-General for New South Wales
731
The inadequacies of the Makin formulation
732
A necessary proviso
733
The nexus requirement
7331
The dangers of categorisation
734
735
The formulation in DPP v Boardman
74
The Requirement of Similarity
The test of coincidence
741
Coincidence and a nexus
742
The degree of similarity
743
The Facts in Issue
75
Other Evidence
76
Examples of the Exclusion of Similar Fact Evidence
77
An Alternative Approach
78
8 Opinion Evidence –E van der Berg and S E van der Merwe
Introduction
81
Fact and Opinion: Some Comments
82
The Basis of the Opinion Rule
83
Lay Persons and Experts
84
The Opinion of a Lay Person
85
851
The compendious mode
852
Handwriting
Probative value of lay opinion
853
The Expert Witness
86
The expert witness: the need to lay a foundation
861
862
Reasons for opinion and probative value of the opinion
Hearsay and expert opinion
863
The expert referring to textbooks
864
Page x
87
Procedural Aspects
88
The Rule in Hollington
9 Previous Consistent Statements –S E van der Merwe
Introduction
91
Rationale for the Exclusion of Previous Consistent Statements
92
An Example from Case Law
93
Exceptions to the General Rule
94
To Rebut a Suggestion of Recent Fabrication
95
Complaints in Sexual Cases
96
Voluntary complaint
961
The common law
9611
The provisions of Act 32 of 2007
9612
The victim must testify
962
The common law
9621
The provisions of Act 32 of 2007
9622
First reasonable opportunity
963
The common law
9631
The provisions of Act 32 of 2007
9632
Victim of sexual offence
964
The common law
9641
The provisions of Act 32 of 2007
9642
Limited evidential value
965
The common law
9651
The provisions of Act 32 of 2007
9652
Complaints in sexual cases: inferences and the provisions of ss 58 and 59
966
of Act 32 of 2007
General background
9661
Inferences and ss 58 and 59
9662
Identification
97
Part VI of the CPEA
98
Res Gestae
99
Refreshing Memory
9 10
Statements Made at Arrest or on Discovery of Incriminating Articles
9 11
Section 213 of the CPA
9 12
Section C
Exclusion of Relevant Evidence: Privilege
10 Private Privilege –P J Schwikkard
Introduction
10 1
The Privilege Against Self-incrimination and the Right to Remain Silent
10 2
10 2 1 The rationale
10 2 2 The witness in criminal proceedings
The scope of the privilege
10 2 2 1
10 2 3 The accused
Pre-trial proceedings
10 2 3 1
Page xi
10 3
10 4
10 5
10 6
10 2 3 1 1 Ascertainment of bodily features
10 2 3 1 2 Bail proceedings
10 2 3 2
Trial and plea proceedings
10 2 4 Other investigative inquiries
10 2 5 The witness in civil proceedings
Legal Professional Privilege
10 3 1 The rationale
10 3 2 The requirements for the existence of the privilege
10 3 2 1
Acting in a professional capacity
10 3 2 2
The communication must be made in confidence
10 3 2 3
For the purpose of obtaining legal advice
10 3 2 4
The client must claim the privilege
10 3 3 The scope of the rule
10 3 4 Waiver
10 3 5 Refreshing memory in the witness-box
10 3 6 Section 19 of the Legal Aid South Africa Act 39 of 2014
Other Professional Privileges?
Marital Privilege
Parent–Child Privilege
11 State Privilege (Public Interest Immunity) –S E van der Merwe
Introduction
11 1
11 1 1 Terminology
11 1 2 The differences between public and private privilege
11 1 3 Development of the English common law
11 2
State Privilege Prior to Constitutionalisation
11 2 1 The decision in Van der Linde v Calitz
11 2 2 Legislative interference (1969 to 1996)
State Privilege after Constitutionalisation
11 3
11 3 1 Impact of constitutional provisions
11 3 2 The balancing exercise
The Detection of Crime
11 4
11 4 1 Communications tending to expose the methods used to investigate crimes
11 4 2 Communications tending to reveal the identity of an informer
11 4 3 Extension of the informer’s privilege
11 4 4 The constitutionality of the informer’s privilege
11 4 5 Examples of statutes that exclude evidence of the identity of persons who
have a statutory duty to report
11 4 5 1
Section 38(3) of the Financial Intelligence Centre Act 38 of 2001
(FICA)
11 4 5 2
Section 17(9) of the Protection of Constitutional Democracy
against Terrorist and Related Activities Act 33 of 2004
11 5
The Police Docket and Constitutional Provisions
11 5 1 Access for purposes of trial
11 5 1 1
Disclosure of contents not the equivalent of further particulars
to the charge
Page xii
11 5 1 2
Information which only becomes available after commencement
of the trial
The position of the undefended accused
Position of suspects
Further procedural and evidential matters
Cross-examination on the basis of the state witness’ statement
Abolition of the blanket docket privilege: defence interviews
with (potential) state witnesses
11 5 2 Access for purposes of a bail application
Constitutional validity of s 60(14) of the CPA
11 5 2 1
Duty and power of court to order state to disclose
11 5 2 2
Sections 60(14) and 335 of the CPA
11 5 2 3
Ethical duty of prosecutor
11 5 2 4
The Promotion of Access to Information Act 2 of 2000
11 6 1 The PAIA and mandatory protection of records privileged from production in
legal proceedings
11 6 2 Non-applicability of the PAIA to records required for criminal or civil
proceedings after commencement of such proceedings
11
11
11
11
11
11 6
5
5
5
5
5
1
1
1
1
1
3
4
5
6
7
Section D
Exclusion of Relevant Evidence: Unconstitutionally Obtained Evidence
12 Unconstitutionally Obtained Evidence –S E van der Merwe
Introduction
12 1
The Competing Interests
12 2
Rationale of the Inclusionary Approach
12 3
The Theoretical Basis and Practical Purpose of the Exclusionary Approach
12 4
12 4 1 The “preventive effect” argument
12 4 2 Due process in the context of a bill of rights
12 4 3 The doctrine of legal guilt
12 4 4 Judicial integrity
12 4 5 The principle of self-correction
12 4 6 Primary rules and the secondary rule (the exclusionary rule)
The Exclusionary Rule in the USA: A Brief Survey
12 5
12 5 1 The rule in Mapp
General principles limiting the ambit of the rule in Mapp
12 5 1 1
The “good faith” exception
12 5 1 2
The “independent source” exception
12 5 1 3
The “stop and frisk” exception
12 5 1 4
12 5 2 The Miranda-warnings
The ambit of the exclusionary rule in Miranda
12 5 2 1
The “public safety” exception
12 5 2 2
The “impeachment” exception
12 5 2 3
The “inevitable discovery” exception
12 5 2 4
Section 24(2) of the Canadian Charter: A Brief Survey
12 6
12 6 1 Seriousness of the state conduct infringing the Charter
12 6 2 Impact on the accused’s interests as protected by the Charter
Page xiii
12 7
12 8
12 9
12 10
12 11
12 6 3
12 6 4
Position
12 7 1
The interest of society in an adjudication on the merits
Applying the three lines of inquiry to specific types of evidence
in South Africa Prior to s 35(5) of the Constitution
The Anglo-South African common-law inclusionary approach (and its
development since constitutionalisation)
12 7 2 The interim Constitution
12 7 2 1
Protection of the constitutional right to a fair trial
12 7 2 2
The discretion to exclude unconstitutionally obtained real
evidence
12 7 2 3
Public opinion and the repute of the system
Section 35(5) of the Constitution
12 8 1 Section 35(5): The threshold test
12 8 2 Section 35(5): The causal link between violation and procurement
12 8 3 Section 35(5) and “standing”
12 8 4 Section 35(5) and the admissibility of evidence unconstitutionally procured
by private individuals
12 8 5 Section 35(5) and the limitations clause in s 36
12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair trial
12 8 7 Section 35(5) and impeachment of the accused
12 8 8 Sections 35(5) and 37: Derogation in states of emergency
The First Leg of the Test in s 35(5): “must be excluded if . . . admission . . . would
render the trial unfair”
12 9 1 Trial fairness
12 9 2 The content of the accused’s constitutional right to a fair trial
12 9 3 Trial fairness and the court’s discretion
12 9 4 The privilege against compelled self-incrimination: trial fairness and the
court’s discretion
12 9 5 Waiver, trial fairness and the court’s discretion
12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real evidence
and evidence “emanating from the accused”
12 9 7 Trial fairness and the admissibility of derivative evidence
12 9 8 Trial fairness and the admissibility of identification evidence obtained at an
identification parade held in the absence of the accused’s legal
representative
The Second Leg of the Test in s 35(5): “if . . . admission . . . would otherwise be
detrimental to the administration of justice”
12 10 1 The presence or absence of good faith (and reasonable) police conduct
12 10 2 Public safety and urgency
12 10 3 Nature and seriousness of the violation
12 10 4 The availability of lawful means or methods of securing the evidence
12 10 5 Real evidence
12 10 6 Inevitable discovery or discovery on the basis of an independent source
Section 35(5) and Procedural Matters
12 11 1 The trial within a trial
Page xiv
12 12
12 13
12 11 2 The burden of proof: incidence and standard
Evidence Procured by Means of Entrapment (s 252A of the CPA and s 35(5) of the
Constitution)
Civil Cases
Section E
Hearsay
13 Hearsay –P J Schwikkard
Introduction
13 1
The Rationale for the Exclusion of Hearsay Evidence
13 2
13 2 1 Procedural context
13 2 2 Cost effectiveness
13 2 3 Best evidence
13 2 4 Complexity
13 2 5 Socially necessary
13 2 6 Safeguard against the abuse of power
13 2 7 A constitutional requirement
Section 3 of the Law of Evidence Amendment Act 45 of 1988
13 3
The Definition of Hearsay
13 4
Admission by Consent
13 5
The Provisional Admission of Hearsay
13 6
Discretion in Terms of Act 45 of 1988
13 7
13 7 1 The nature of the proceedings: s 3(1)(c)(i)
13 7 2 The nature of the evidence: s 3(1)(c)(ii)
13 7 3 The purpose for which the evidence is tendered: s 3(1)(c)(iii)
13 7 4 The probative value of the evidence: s 3(1)(c)(iv)
13 7 5 The reason why the evidence is not given by the person upon whose
credibility the probative value depends: s 3(1)(c)(v)
13 7 6 Prejudice to opponents: s 3(1)(c)(vi)
13 7 7 Any other factor which in the opinion of the court should be taken into
account: s 3(1)(c)(vii)
Procedural Issues
13 8
Conclusion
13 9
14 A Selection of Common-Law Exceptions to the Hearsay Rule: A Brief
Perspective –P J Schwikkard
Common-Law Definition of Hearsay
14 1
Exceptions to the Hearsay Rule
14 2
14 2 1 Res gestae statements
Spontaneous statements
14 2 1 1
Composite acts
14 2 1 2
Declarations of state of mind
14 2 1 3
Declarations of physical sensations
14 2 1 4
14 2 2 Dying declarations
Remarks in Conclusion
14 3
Page xv
15 Selected Statutory Exceptions to the Hearsay Rule –P J Schwikkard
15 1
Introduction
15 2
Civil Proceedings Evidence Act 25 of 1965 (CPEA)
15 2 1 Proof of trial and conviction or acquittal of any person
15 2 2 Proof of certain facts by affidavit
15 2 3 Evidence of times of sunrise and sunset
15 2 4 Bankers’ books
15 2 5 General admissibility of documentary evidence as to facts in issue
15 2 5 1
Weight of admissible evidence
15 3
Criminal Procedure Act 51 of 1977 (CPA)
15 3 1 Proof of certain facts by affidavit
15 3 1 1
State departments, provincial administrations, courts of law,
and banks
15 3 1 2
Denial of information furnished
15 3 1 3
Official acts
15 3 1 4
Facts requiring specialised skills
15 3 1 5
Precious metal and stones
15 3 1 6
Fingerprints, body-prints, bodily samples and crime scene
samples
15 3 1 7
Dead bodies
15 3 1 8
Chain of custody
15 3 1 9
Discretion to call for oral evidence
15 3 1 10 The scope of s 212
15 3 1 11 The constitutionality of s 212
15 3 1 12 Affidavits by persons in a foreign country
15 3 2 Admission of written statements by consent
15 3 3 Evidence recorded at a preparatory examination or former trial
15 3 4 Admissibility of certain trade or business records
15 3 5 Part VI of the CPEA applied in criminal proceedings
15 3 6 Accounting records and documentation of banks
15 3 7 Presumptions pertaining to documents
Section F
The Admissibility and Proof of the Contents of Relevant Detrimental Statements
16 Informal Admissions –P J Schwikkard
16 1
Introduction
16 2
Requirements for Admissibility
16 3
Admissions by Conduct
16 3 1 Admissions by silence
16 3 2 Failure to answer letters
16 3 3 Statements in the presence of a party
16 3 4 Failure to cross-examine
16 4
Vicarious Admissions
16 4 1 Criminal trials
16 5
Examples of Exceptions to the Vicarious Admissions Rule
Page xvi
16 5 1
Express or implied authority
16 5 1 1
Agents and employees
16 6
16 7
Partners
16 5 1 2
Legal representatives
16 5 1 3
Spouses
16 5 1 4
Referees
16 5 1 5
16 5 2 Acts and declarations in furtherance of a common purpose
16 5 3 Privity or identity of interest or obligation
Predecessors in title
16 5 3 1
Employer and employee
16 5 3 2
Nominal and real parties
16 5 3 3
Statements Made Without Prejudice
Admissions by the Accused
16 7 1 The requirements for admissibility
Section 35(1)(c) of the Constitution
16 7 1 1
16 7 2 Plea proceedings
16 7 3 The burden of proof
16 7 4 Trial within a trial
17 Confessions in Criminal Trials –P J Schwikkard
Introduction
17 1
17 1 1 The rationale for excluding involuntary admissions and confessions
The Importance of Distinguishing Between Admissions and Confessions
17 2
The Meaning of a Confession
17 3
17 3 1 Offences which place a burden of proof on the accused
17 3 2 Incriminating statements intended to be exculpatory
17 3 3 Exculpatory statements incriminating as to a lesser offence
Requirements for Admissibility
17 4
17 4 1 Generally
17 4 2 Freely and voluntarily
17 4 3 Sound and sober senses
17 4 4 Without being unduly influenced thereto
The test of undue influence
17 4 4 1
Statements made under statutory compulsion
17 4 4 2
17 4 5 Confessions made to peace officers
“Peace officer”
17 4 5 1
Confessions made to peace officers who are also magistrates
17 4 5 2
and justices of the peace
Confessions confirmed and reduced to writing in the presence of
17 4 5 3
a magistrate or justice of the peace and undue influence
The Burden of Proof
17 5
Procedure: Trial-Within-a-Trial
17 6
Inadmissible Confessions which Subsequently Become Admissible
17 7
Facts Discovered as a Consequence of an Inadmissible Admission or Confession
17 8
17 8 1 Section 218(2)
17 8 2 Evidence discovered as a consequence of a pointing out
Page xvii
17 9
17 10
17 8 3 Factors affecting admissibility
17 8 4 Facts discovered in consequence of information given by the accused
Confession (and Admission) Admissible Only Against Maker
An Argument for Law Reform
Section G
Kinds of Evidence and Presentation Thereof
18 Oral Evidence –S E van der Merwe
18 1
Introduction
18 2
Evidence Must Generally be Given on Oath or Affirmation
18 2 1 Unsworn evidence exceptionally allowed
18 2 2 Witness with no religious belief
18 3
Examination in Chief
18 3 1 Leading questions generally prohibited
18 3 2 Situations where leading questions are permitted
18 4
Impeachment of One’s Own Witness during Examination in Chief
18 5
Examination in Chief: Limited Use of Witness’s Previous Consistent Statement
18 6
Cross-Examination
18 6 1 The purpose and general scope of cross-examination
18 6 2 Leading questions
18 6 3 Who may be cross-examined
18 6 4 The duty to cross-examine
18 6 5 The limits of cross-examination
18 6 5 1
Curial courtesy
18 6 5 2
Misleading statements put by cross-examiner
18 6 5 3
Inadmissible evidence
18 6 5 4
Sections 197 and 211 of the CPA
18 6 5 5
Cross-examination as to credit
18 6 5 6
Section 166(3) of the CPA
18 6 5 7
Legal professional ethics
18 7
Procedural Matters Pertaining to Cross-examination
18 8
Re-examination
18 9
Examination by the Court
18 10 Examination of Witnesses Called by the Court
18 11 The Intermediary and Related Procedures
18 11 1 A general assessment of the use of an intermediary in the context of an
adversarial trial
18 11 2 The essential content of the right to confront
18 11 3 The constitutionality of s 170A of the CPA
18 11 3 1 Section 170A as a constitutionally permissible limitation (s 36 of
the Constitution)
18 11 3 2 Section 170A and the constitutional injunction “best interests of
the child” (the paramountcy principle in s 28(2) of the
Constitution)
18 11 3 3 The constitutionality of s 170A(7)
18 11 4 Principles and considerations in the application of s 170A
Page xviii
18 11 5 Law reform proposals
18
18
18
18
18
18
18
12
13
14
15
16
17
18
Evidence by Means of Closed Circuit Television or Similar Electronic Media
Evidence on Commission in Criminal Cases
Evidence on Commission in Civil Cases
Interrogatories
Evidence by Way of Affidavit
Evidence in Former Proceedings
Preserved Evidence
19 Real Evidence –S E van der Merwe
Introduction
19 1
19 1 1 The court’s function and the limits of its observations
19 1 2 The situation where relevant real evidence is not produced
Appearance of Persons
19 2
19 2 1 Resemblance of child to reputed parent
19 2 2 Physical appearance as real evidence of approximate age
19 2 3 Court’s observation of witness for purpose of determining competency to
testify
Tape Recordings
19 3
Fingerprints
19 4
Photographs, Films and Video Recordings
19 5
Inspections In Loco
19 6
Handwriting
19 7
Blood Tests, Tissue Typing and DNA Identification
19 8
Computer-generated and Computer-assisted Data
19 9
20 Documentary Evidence –P J Schwikkard
Introduction
20 1
“Document”
20 2
Admissibility requirements
20 3
20 3 1 The original document
20 3 2 Authenticity
20 3 3 Stamp duty
Civil Discovery
20 4
21 Electronic Evidence –J de Jager
Introduction
21 1
The Position Prior to the ECT Act
21 2
21 2 1 Civil proceedings
The Computer Evidence Act 57 of 1983 (now repealed)
21 2 1 1
21 2 2 Criminal proceedings
The Electronic Communications and Transactions Act 25 of 2002 (ECT Act)
21 3
21 3 1 The admissibility of electronic evidence
21 3 2 Assessing the evidential weight of data messages
21 3 3 The admissibility of business records in terms of s 15(4)
Data Messages as Real Evidence
21 4
Conclusion
21 5
Page xix
Section H
Witnesses
22 The Competence and Compellability of Witnesses –W L de Vos
Introduction
22 1
The General Rule
22 2
General Procedural Matters
22 3
Children
22 4
Mentally Disordered and Intoxicated Persons
22 5
Deaf and Speechless Persons
22 6
Judicial Officers
22 7
Officers of the Court
22 8
The Accused
22 9
22 10 The Accused and Co-Accused in the Same Proceedings
22 11 Spouses
22 11 1 Civil cases
22 11 2 Criminal cases
22 12 Husband and Wife as Co-Accused
22 13 Members of the National Assembly and National Council of Provinces
22 14 Heads of State and Diplomats
23 The Calling of Witnesses –W L de Vos and S E van der Merwe
Introduction
23 1
Witnesses: General Procedural Matters
23 2
23 2 1 Witnesses to wait outside
23 2 2 The oath, affirmation or admonition
Examination of Witnesses
23 3
Criminal Proceedings
23 4
23 4 1 Witnesses called by the state
23 4 2 Witnesses called by the defence
23 4 3 Witnesses called by the court
23 4 4 Witnesses recalled by the court
Civil Proceedings
23 5
23 5 1 The right or duty to begin
23 5 2 Witnesses called by the parties
23 5 3 Expert witnesses called by the parties
23 5 4 Witnesses called by the court
Reopening a Case and Evidence in Rebuttal
23 6
Witnesses Called on Appeal or Remittal for Further Evidence
23 7
24 Refreshing the Memory of a Witness –S E van der Merwe
Introduction
24 1
“Refreshing of Memory” Versus the Distinction Between “Present Recollection
24 2
Revived” and “Past Recollection Recorded”
Refreshing of Memory Before the Witness Gives Evidence
24 3
Refreshing of Memory During an Adjournment
24 4
Refreshing of Memory While the Witness Is in the Witness-Box: The Common-Law
24 5
Foundation Requirements
Page xx
24 6
24 7
24 5 1 Personal knowledge of the event
24 5 2 Inability to recollect
24 5 3 Verification of the document used to refresh memory
24 5 4 Fresh in the memory
24 5 5 Use of the original document
24 5 6 Production of the document
The Probative Value of a Document Used to Refresh Memory
24 6 1 Present recollection revived
24 6 2 Past recollection recorded
24 6 3 Conduct of the cross-examiner
Remarks in Conclusion
25 Impeaching the Credibility of a Witness –S E van der Merwe
Introduction
25 1
Impeaching the Credibility of an Opponent’s Witness
25 2
25 2 1 Cross-examination as to credit on some collateral issue: the finality of the
response
25 2 2 Cross-examination as to credit and the right to contradict a denial:
previous convictions
25 2 3 Cross-examination as to credit and the right to contradict a denial: bias
25 2 4 Cross-examination on and proof of a previous inconsistent statement made
by an opponent’s witness
25 2 5 Calling a witness to testify on veracity
Impeaching the Credibility of Your Own Witness
25 3
25 3 1 Calling another witness
25 3 2 Proving a previous inconsistent statement against your own witness
25 3 3 Cross-examination of your own witness: the hostile witness
25 3 4 The rule that a party may not cross-examine its own witness unless
declared hostile: a constitutional perspective
Rules and Principles Which Govern the Proof and Probative Value of Previous
25 4
Inconsistent Statements
25 4 1 Rules and principles governing proof
25 4 2 Substantive use of a previous inconsistent statement: proving the truth of
its contents
Attacking the Credibility of an Accused on the Basis of an Unconstitutionally Obtained
25 5
Prior Inconsistent Statement
Section I
Proof Without Evidence
26 Formal Admissions –P J Schwikkard and S E van der Merwe
Introduction
26 1
The Nature and Rationale of Formal Admissions
26 2
26 2 1 The distinction between formal and informal admissions
The Intention of the Maker
26 3
Civil Proceedings
26 4
26 4 1 Amendment of pleadings and withdrawal of a formal admission
Page xxi
26 5
26 6
26 4 2 Procedure for withdrawal
Criminal Proceedings: The Common Law and Section 220 of the CPA
26 5 1 The effect and withdrawal of a formal admission in criminal proceedings
26 5 2 The plea of guilty: s 112(1)(b) and s 113 of the CPA
26 5 3 The explanation of plea: s 115 of the CPA
26 5 4 The rules of practice and s 220
26 5 5 Formal admissions of facts outside the maker’s personal knowledge
26 5 6 Proof of undisputed facts: s 212B of the CPA
Formal and Informal Admissions by Cross-Examiner
27 Judicial Notice –P J Schwikkard and S E van der Merwe
27 1
The Nature of and Rationale for Judicial Notice
27 2
Judicial Notice and the Reception of Evidence
27 3
Procedure
27 4
The Limits of Judicial Notice: Basic Principles
27 4 1 Notorious facts (general knowledge)
27 4 2 Facts of local notoriety
27 4 3 Facts easily ascertainable
27 5
Assorted Examples
27 5 1 Animals
27 5 2 Racial characteristics
27 5 3 Political and constitutional matters
27 5 4 Matters of science and scientific instruments
27 5 5 Financial matters and commercial practices
27 5 6 Functioning of traffic lights
27 5 7 Historical facts, words and phrases
27 5 8 Crime
27 5 9 Social conditions
27 6
Law
27 6 1 Statute and common law
27 6 2 Public international law
27 6 3 Indigenous and foreign law
27 6 3 1
Foreign law
27 6 3 2
Indigenous law
27 7
Rule 31 of the Constitutional Court Rules
28 Rebuttable Presumptions of Law –P J Schwikkard
What Are Presumptions?
28 1
Some Reasons for Presumptions
28 2
The Classification of Presumptions
28 3
28 3 1 Irrebuttable presumptions of law
28 3 2 Rebuttable presumptions of law
28 3 3 Presumptions of fact
The Effect of Presumptions on the Burden of Proof
28 4
Some Examples of Presumptions
28 5
28 5 1 Marriage
Page xxii
28 5 2
28 5 3
28 5 4
Bigamy
Legitimacy
Paternity of children born out of wedlock
28 5 5
28 5 6
28 5 7
Death
Presumption of death and dissolution of marriage
28 5 5 1
The date of death
28 5 5 2
Regularity
Letters
28 5 6 1
Validity of official acts
28 5 6 2
Res ipsa loquitur
29 A Constitutional Perspective on Statutory Presumptions –P J Schwikkard
Introduction
29 1
The Presumption of Innocence
29 2
29 2 1 Infringements of the presumption of innocence
29 2 2 Justifiable limitations
Section J
Weight of Evidence and Standards and Burdens of Proof
30 The Evaluation of Evidence –S E van der Merwe
Introduction
30 1
Basic Principles
30 2
30 2 1 Avoidance of piecemeal processes of adjudication
30 2 2 Inferences and probabilities to be distinguished from conjecture
Corroboration
30 3
30 3 1 The rule against self-corroboration
30 3 2 Ambit of the rule against self-corroboration
30 3 3 Corroboration of confessions
Scope of s 209 of the CPA
30 3 3 1
Plea procedures and s 209 of the CPA
30 3 3 2
Confirmation in a material respect
30 3 3 3
Confirmation in a material respect: other extra-curial
30 3 3 4
confessions or admissions of the accused
Evidence aliunde the confession
30 3 3 5
Credibility: The Impact of Demeanour and Mendacity
30 4
Circumstantial Evidence
30 5
30 5 1 Cumulative effect
30 5 2 Inferences in criminal proceedings
30 5 3 Inferences in civil proceedings
30 5 4 The so-called presumptions of fact
Credibility of a Witness: Previous Experience of the Court
30 6
Presence in Court Before Testifying
30 7
Failure to Cross-Examine
30 8
Failure of a Party to Testify (and the Constitutional Right of an Accused to Refuse to
30 9
Testify)
30 10 Failure to Call Available Witnesses
30 11 The Cautionary Rule: Function and Scope
Page xxiii
30 12
30 13
30 11 1 Instances of suspected deliberate false evidence
30 11 2 Evidence of identification
30 11 2 1 Dock identification
30 11 2 2 Evidence of identification at a formal identification parade
30 11 2 3 Identification evidence based on a photographic identification
parade
30 11 2 4 Assessing an alibi
30 11 2 5 Voice identification
30 11 3 Children
30 11 4 The single witness
30 11 5 Abolition of the cautionary rule in sexual offences
30 11 6 Handwriting
The Rule in Valachia
Court required to give reasons
31 The Standard and Burden of Proof and Evidential Duties in Criminal Trials –P
J Schwikkard and S E van der Merwe
31 1
Introduction
31 2
The Onus (“Bewyslas”) and Evidentiary Burden (“Weerleggingslas”)
The Ambit of the State’s Onus of Proof
31 3
31 3 1 Identity and every element of the crime
31 3 2 Statutory exceptions
31 3 3 Issues concerning the mental illness or mental defect of the accused
Criminal non-responsibility (incapacity) on account of mental
31 3 3 1
illness or mental defect (s 78(1) of the CPA)
Non-triability on account of mental illness or mental defect (s 77
31 3 3 2
of the CPA)
Further Procedural Matters
31 4
31 4 1 Criminal defamation and the provisions of s 107 of the CPA
31 4 2 Procedural duty to introduce a defence
Application for Discharge
31 5
The Criminal Standard of Proof
31 6
32 The Standard and Burden of Proof and Evidential Duties in Civil Trials –P
J Schwikkard
32 1
Introduction
32 2
The Nature and Incidence of the Burden of Proof
32 2 1 Impact of the Constitution
32 3
The Evidential Burden Distinguished
32 4
The Duty to Begin
32 4 1 Rule 39 of the Uniform Rules of Court
32 4 2 Magistrates’ Court Rule 29
32 5
The Term “Prima Facie Case”
32 6
Absolution from the Instance
32 7
Civil Standard of Proof
Page xxiv
Appendix A
Appendices
Constitution of the Republic of South Africa, 1996: Chapter 2 Bill of Rights (ss
7–39)
Appendix B
Appendix C
Judges’ Rules
Section 252A of the Criminal Procedure Act
Table of Cases
Table of Statutes
Table of Rules
Index
Page xxv
Mode of citation of principal works and sources
ASSAL
Annual Survey of South African Law
CPA
Criminal Procedure Act 51 of 1977
CPEA
Civil Proceedings Evidence Act 25 of 1965
Du Toit et al Commentary
E du Toit, F J de Jager, A P Paizes, A St Q Skeen, S E van der
Merwe Commentary on the Criminal Procedure Act (1987, as
revised biannually)
Hoffmann & Zeffertt
L H Hoffmann & D T Zeffertt The South African Law of Evidence
4 ed (1988)
Lansdown & Campbell
A V Lansdown & J Campbell South African Criminal Law and
Procedure vol V Criminal Procedure and Evidence (1982)
LAWSA
W A Joubert (ed), C W H Schmidt, D T Zeffertt, and revised by
D P van der Merwe The Law of South Africa vol 9 Evidence
First Reissue (1996)
Schmidt & Rademeyer
C W H Schmidt & H Rademeyer Bewysreg 4 ed (2000)
Schmidt & Rademeyer
Schmidt & Rademeyer Law of Evidence (2014)
Wigmore
H J Wigmore A Treatise on the Anglo-American System of
Evidence in Trials at Common Law (1940) and revised
editions (1961)
Zeffertt, Paizes & Skeen
The South African Law of Evidence (2003)
Zeffertt & Paizes
The South African Law of Evidence 2 ed (2009)
Page 1
Section A
An Introduction to |
the Law of Evidence
1
An Introduction to the History and Theory of the Law of Evidence –S E van der Merwe
2
Basic Concepts and Distinctions –S E van der Merwe
3
Sources of the South African Law of Evidence and the Impact of Constitutional
Provisions –S E van der Merwe
4
The Law of Evidence and Substantive Law –E van der Berg and A Govindjee
Page 3
Chapter 1
An Introduction to the History and Theory of the Law
of Evidence
S E van der Merwe
11
12
13
14
15
16
17
Introduction
Scope and Functions of the Law of Evidence
Early History and Development of the English Law of Evidence
131
The religious (primitive) stage
132
The formal stage
133
The rational stage (and development of the jury)
Procedural and Evidential Systems and Some Universal Principles of Fact-Finding
Ordinary Courts and Small Claims Courts: An Examination of Procedural and
Evidential Differences
151
Small claims courts and the inquisitorial procedure and free system of
evidence
152
Accusatorial versus inquisitorial procedure
153
Strict versus free system of evidence
Jurors and Assessors: Some Brief Comparative Remarks
Rules of Evidence in Criminal and Civil Proceedings
1 1 Introduction
Courts normally have to make a finding concerning the existence or non-existence of certain
facts before pronouncing on the rights, duties and liabilities of the parties engaged in a
dispute. [1] In this process of litigation and adjudication the proof of facts is regulated by the
law of evidence, which is a branch of the law of procedure. A factual basis is necessary to
determine the rights, duties and liabilities which exist in terms of substantive law, [2] for
example the law of contract.
Page 4
It should be borne in mind, however, that there are also certain procedural rights and
duties which stem from the law of evidence, for example the right to cross-examine and the
duty to adduce evidence. These rights and duties are of a procedural nature in the sense
that they form part of or emanate from the body of rules governing the proof of facts in a
court of law. The right to cross-examine and the duty to adduce evidence relate to the law of
evidence, which in turn forms part of the law of procedure in its widest sense.
|
The law of evidence is closely linked to criminal and civil procedure and forms part of that
branch of the law commonly referred to as “adjective law” or “adjectival law”.
It will later become evident that in some instances it is not always easy to draw the line of
demarcation between substantive law and the law of evidence as a branch of the law of
procedure. [3] However, this demarcation cannot be ignored: [4] the substantive-law rights
and duties of the parties to an action are determined by rules and principles which largely
stem from Roman-Dutch law, whereas the English law of evidence serves as the common
law of the South African law of evidence. [5]
1 2 Scope and Functions of the Law of Evidence
Procedural law gives practical meaning and effect to the rules of substantive law. It has
often been said that substantive law might just as well not exist if there were no procedural
machinery which could constantly transform the rules of substantive law into court orders
and actual enforcements.
The law of evidence governs the proof of facts in a court of law and therefore forms part
of the procedural machinery that makes substantive law effective.
The general scope of the law of evidence can be determined with reference to its specific
functions. The main function of the law of evidence is to determine what facts are legally
receivable (ie admissible) to prove the facts in issue. The law of evidence, however, also
determines in what manner evidence should or may be adduced; what evidence may lawfully
be withheld from a court of law; what rules should be taken into account in assessing the
weight or cogency of evidence; and, further, what standard of proof should, in a given
situation, be satisfied before a party bearing the burden of proof can be successful.
1 3 Early History and Development of the English Law of
Evidence
The early history and evolution of the English law of evidence can be divided into three
basic, successive stages: [6] the religious (primitive) stage, during which it was thought that
one man should not sit in judgment upon another; the formal
Page 5
stage, during which the oath was the primary mode of proof and mistakes in form were
fatal; and, finally, the rational stage, during which the tribunal no longer merely verified
procedural formalities but was required to employ its reasoning powers in the fact-finding
process.
1 3 1 The religious (primitive) stage
During this stage “trial by ordeal” was considered an almost perfect aid in truth-finding. The
ordeal was popular in England [7] and on the Continent. [8] It was really an appeal to God [9]
(or the gods or the supernatural) to “decide” the factual dispute. [10] The Anglo-Saxons
employed several different kinds of ordeals. In the “ordeal of the accursed morsel” (also
known as the corsnaed) the accused was required to swallow a dry morsel of bread,
accompanied by a prayer that he should choke if he were guilty. [11] In 1053 Godwin, the
powerful Earl of Kent — whom Edward the Confessor had accused of murder — attempted to
swallow his piece of bread, but choked and died (probably to the astonishment of all those
who had attended the “trial”). This ordeal — and probably all other ordeals — might appear
irrational [12] and even absurd to the modern mind. [13] But Paton and Derham maintain that
there is a possible logical explanation in respect of the corsnaed: fear, brought about by
feelings of guilt, dries the mouth and renders it more difficult to swallow a dry piece of
bread! [14] Would it be too far-fetched to suggest that the corsnaed was perhaps the early
source of the modern rule that the demeanour of a witness may be taken into account as a
factor affecting credibility? [15] Trial by battle — a Norman novelty introduced after William
the Conqueror’s invasion in 1066 — was a further ordeal in terms of which a dispute could
be settled by a duel. Holdsworth says that trial by battle was not merely an appeal to
physical force: [16] “[I]t was accompanied by a belief that Providence will give victory to the
right. The trial by battle is the judicium Dei
Page 6
par excellence.” It has been suggested that the early roots of the present accusatorial
(adversarial) trial system can be traced to trial by battle: [17] physical confrontation gradually
developed into verbal confrontation. [18] And it will later be shown that the right to confront
witnesses by cross-examining them is not only a marked characteristic of the accusatorial
trial system but also gave rise to, inter alia, the hearsay rule. [19]
1 3 2 The formal stage
The twelfth century witnessed an increase in human reason and “in the field of evidence . . .
people were turning their backs on age old irrational methods”. [20] In 1215 Pope Innocent
III in the Fourth Lateran Council forbade priests to administer ordeals, [21] thereby destroying
the validity of an entire system of proof. Langbein explains that the attempt “to make God
the fact finder for human disputes was being abandoned. Henceforth, humans were going to
replace God in deciding guilt or innocence . . .”. [22]
In England the use of oath-helpers (later called “compurgators”) became very popular.
The compurgators were not eye-witnesses but merely people who were prepared to state
under oath that the oath of one of the parties should be believed. [23] The party who was
able to summon the largest number of compurgators “won” the case. Trial by compurgation
was a formal procedure in the sense that the tribunal was still not required to weigh
evidence. The oath and number of oaths were decisive.
In virtually every age the oath has been thought to provide the strongest hold on the
consciences of men. [24] And even today the oath — however abused — plays an important
role in the law of evidence. [25]
1 3 3 The rational stage (and development of the jury)
[26]
It was soon realised that the compurgators could make a more meaningful contribution.
Page 7
The compurgators were no longer called upon to express a mere belief in the veracity of a
party’s oath but were also expected to act as adjudicators, largely because of their
knowledge of the events. A crude form of trial by jury developed, despite the personal
knowledge that the “jurors” had. White describes the next development as follows: [27] “As
population increased and everyday activities grew more complex, it developed that
neighbours knew little or nothing of the facts in dispute. It was then that witnesses who did
know some facts were called in to supply the requisite information. . . [T]he jury laid aside
its old character . . . The very thing . . . [ie personal knowledge] . . . that qualified a man for
jury service in the olden times, at a much later date disqualified him.” In the seventeenth
century it was finally decided that a witness “swears but to what he hath heard or seen to
what hath fallen under his senses. But a jury-man swears to what he can infer and conclude
from the testimony of such witnesses . . .” [28]
This distinction between a witness’s function (to testify) and a juror’s function (to
determine facts on the basis of testimony presented by witnesses) had the important result
that “jurors now were assumed to enter the box with a cognitive tabula rasa so that facts
could be writ upon their minds through, for example, the medium of witnesses giving oral
testimony . . .” [29] The general receipt of oral testimony established the principle of orality,
and personal knowledge of the event in dispute led to disqualification of a juror. The central
notion of an impartial adjudicator was accepted.
During the formative period of trial by jury the relative functions of judge and jury were
also settled: the jurors determined the facts and the judges determined the law. [30] This
procedural distinction between the functions of judge and jury had important results: the
judges (who had to decide matters of law) thought that the jury (who had to decide matters
of fact) might be misled or distracted by, or might be inclined to attach undue weight to,
certain categories or types of evidence which, according to the judges, were notoriously
untrustworthy. The judges therefore considered the admissibility of evidence a matter of
law. They then ruled, as a matter of law, that certain evidence was inadmissible, most
notably character and hearsay evidence. These decisions to exclude certain evidence were
decisions of law and fell within the ambit of the doctrine of precedent: stare decisis.
The nineteenth and twentieth centuries witnessed a large number of statutory reforms in
England as well as South Africa. The South African legislature has in the past been inclined
to base its own legislation on principles contained in English legislation. Statutory reform has
to a large extent been aimed at relaxing the strict evidential rules which owe their existence
to trial by jury.
Page 8
The exact extent of the jury’s influence on the historical development and modern rules of
the Anglo-South African law of evidence is debatable. At the same time, however, it is
equally true that a proper appreciation of some of the rules of evidence is only possible if
these rules are constantly seen and evaluated within the context of trial by jury — despite
the fact that trial by jury no longer exists. Trial by jury in civil and criminal cases was
respectively (and finally) abolished in South Africa in 1927 [31] and 1969. [32] But we have
retained an evidentiary system designed for jury trials. Most of our exclusionary rules — and
even some of our rules pertaining to the evaluation of evidence — can be attributed directly
to trial by jury. It may be said that the jury was perhaps the single most significant factor in
shaping the law of evidence. But the adversarial method of trial, the principle of orality, [33]
the oath, the doctrine of precedent and the so-called best evidence rule [34] collectively
contributed to our present intricate system in terms of which facts should be proved in a
court of law.
The steady decline and gentle disappearance of the jury in South Africa theoretically
opened the door for a more liberal and robust approach with regard to the admission of
evidence normally excluded in a jury trial. But our courts are for various reasons [35] obliged
to follow the so-called strict system of evidence which emphasises the admissibility of
evidence. Developments in our law of evidence have been and are largely brought about by
legislative action, one example being the Law of Evidence Amendment Act 45 of 1988, which
came into operation on 3 October 1988. This Act mainly changed rules relating to hearsay
(see § 13 3 below), judicial notice (see § 27 6 3 below) and the competence and
compellability of spouses (see § 22 11 2 below).
1 4 Procedural and Evidential Systems and Some Universal
Principles of Fact-Finding
There are basically two systems of evidence: the Anglo-American (or so-called strict or
common-law) system and the Continental (or so-called free or civil-law system). The South
African law of evidence belongs to the Anglo-American “family”. Most of the principles of the
Anglo-American law of evidence stem from the English system of adversarial (accusatorial)
trials before a lay jury as opposed to the Continental inquisitorial trials by professional
judges adjudicating without the assistance of a true jury. [36] It can be said that the AngloAmerican procedural method of proving or ascertaining facts in a court of law is based upon
adversarial principles and a strict system of evidence, whereas the Continental method is
based upon inquisitorial principles and a free system of evidence. These procedural and
evidential differences — which should be
Page 9
understood in a broad historical and evolutionary context — really emphasise the simple
truth that there is more than one solution to the problem of fact-finding. [37]
It is probably correct to say that all enlightened and refined procedural and evidential
systems are honest attempts to discover and protect the truth. And in this respect there is
much common ground despite the peculiar historical origins and ideological preferences that
each system might have. Consider the following. First, it is a universal principle that
protection of the truth cannot be sacrificed for the sake of mere simplicity, speed and
convenience. [38] Secondly, presentation of facts and adjudication of disputes must of
necessity proceed in an orderly fashion: a lawsuit is “essentially a proceeding for the orderly
settlement of a dispute between litigants”. [39] Thirdly, resolution of legal disputes must be
done in such a way that reasonable litigants leave court with the feeling that they were
given a proper opportunity to state their respective cases, that their cases were presented in
the best possible light and manner, and, further, that the issues were decided by an
impartial trier. Fourthly, the law of procedure and evidence must at all times maintain a
certain level of efficiency and effectiveness in order to ensure that the rules of substantive
law — however impressive and all-embracing they may be — are not for all practical
purposes relegated to the ranks of unenforceable norms.
The procedural and evidential innovations which the South African legislature has
introduced in respect of small claims courts [40] should be assessed in the light of the above
remarks — as well as the fact that small claims courts are seen as a proper and acceptable
solution to the problem of legal costs which a litigant may encounter in enforcing a modest
civil claim.
1 5 Ordinary Courts and Small Claims Courts: An Examination of
Procedural and Evidential Differences
The fundamental differences which exist between the Anglo-American and Continental
systems can — from a theoretical and practical point of view and within the context of South
African courts — perhaps be best explained by comparing the procedural and evidential
system of our ordinary courts with that which exists in our small claims courts.
South African small claims courts function along inquisitorial lines. Section 26(3) of the
Small Claims Courts Act 61 of 1984 (hereafter “the Act”) provides that a party shall neither
question nor cross-examine any other party to the proceedings (or a witness called by the
latter party). The same section provides that the presiding commissioner “shall proceed
inquisitorially to ascertain the relevant facts, and to that end he may question any party or
witness at any stage
Page 10
of the proceedings”. But there is a proviso in terms of which the presiding commissioner may
in his discretion permit any party to put a question to any other party or any witness. [41]
The procedure in our ordinary courts is totally different. [42]
South African small claims courts are not bound by the ordinary Anglo-South African rules
of evidence. They are not required to follow the strict system of evidence which is applied in
the ordinary South African courts and which can also be referred to as the Anglo-American
or common-law system. Section 26(1) of the Act provides that — subject to the provisions of
chapter 5 of the Act — the rules of the law of evidence shall not apply in respect of the
proceedings in a small claims court and that such a court “may ascertain any relevant fact in
such manner as it may deem fit”.
The adoption of an inquisitorial procedure and a free system of evidence in small claims
courts might appear to be far-reaching and even somewhat radical — especially to the South
African lawyer who is, in a procedural context, steeped in Anglo-American tradition, practice,
rules and principles. But the procedural measures taken by the legislature in respect of small
claims courts should be seen in the light of the peculiar characteristics and unique nature
and purpose of small claims courts, namely accessibility and the promotion of procedural
simplicity.
Legal representation is not permitted in small claims courts. [43] There are various valid
reasons for such exclusion. [44] For purposes of the present discussion, it is necessary only to
refer to the following remarks and conclusions of the Hoexter Commission: [45]
(a) Legal representation “must inevitably tend to infuse into the proceedings that air of
formality and technicality which is fundamentally alien to the real spirit of small claims
procedures”. [46]
One of the most obvious objections to legal representation “is the increased cost to
(b)
the litigants . . . This is the very problem which small claims courts were designed to
solve”. [47]
(c) If “the adjudicator maintains an actively inquisitorial role in the proceedings, the
absence of legal representation results in an easier and speedier fact-finding
process”. [48]
It is fairly evident from the above that procedural innovations were necessary in order to
attain and maintain the advantages of small claims courts. And in principle there is certainly
nothing wrong with or sinister in procedural innovations which are brought about to meet
new and valid demands. After all,
Page 11
small claims courts were created for the benefit of the public and the procedure in small
claims courts had to be structured accordingly: “Die prosesreg dien die gemeenskap — nie
die omgekeerde nie.” [49] Other countries have taken similar steps in order to establish the
viability and accessibility of small claims courts. For example, the New York small claims
courts — which were established in 1918 — dispensed with traditional rules of practice,
procedure, pleading and evidence and accepted the principle that decisions could be made
with the aid of an informal fact-finding process. [50]
1 5 1 Small claims courts and the inquisitorial procedure and free
system of evidence
In the Anglo-American world small claims courts have forced the adjudicator into a new
procedural role. As early as 1913 Pound concluded that the adjudicator in a small claims
court should not be a mere umpire, but should represent “both parties and the law” while
actively seeking the truth largely if not wholly unaided. [51] The Hoexter Commission took a
similar view. The success or failure of the small claims courts largely depends on whether
the commissioners, who are all trained in the tradition of the adversary system, are able to
handle the inquisitorial characteristics of the small claims courts satisfactorily. And in this
context it should also be borne in mind that the strict system of evidence is — historically
and practically speaking — a concomitant of the adversarial model of fact-finding. The free
system of evidence is to a large extent also a necessary novelty to the commissioner in a
small claims court. A free system of evidence promotes procedural simplicity and avoids that
air of procedural formality and sophistication which can create psychological barriers for
litigants. Involved rules of evidence — and these are the true features of the strict system of
evidence — make a trial “more complicated than is necessary, and . . . might well cause a
gap between the courts and the people, and this will not increase faith in the administration
of justice”. [52] The principles of a free system of evidence are dealt with in greater detail in
§ 1 5 3 below.
1 5 2 Accusatorial versus inquisitorial procedure
[53]
The accusatorial (adversarial) trial procedure — which finds its symbolic roots in the early
ritual of trial by battle — has three leading features: the parties are in principle responsible
for the presentation of evidence in support of their respective cases; the adjudicator is
required to play a passive role; and much emphasis is placed upon oral presentation of
evidence and cross-examination of witnesses. The adversarial model proceeds from the
premises that greater approximation of the truth is possible if litigants are allowed to present
their own evidence in a process which guarantees not only cross-examination of an opponent
who
Page 12
testifies but also all witnesses called by such opponent. This explains the emphasis upon
“orality”. And cross-examination — which has been referred to as “the greatest legal engine
ever invented for the discovery of truth” [54] — is a vital procedural right in a system which
makes it technically possible for a party to present only evidence which is favourable to his
case. The right of parties to cross-examine explains why the adversarial trial model can to
some extent afford and maintain the relative inactivity of the adjudicator.
But the adversarial trial system certainly is not beyond criticism. First, it “presupposes for
success some equality between the parties; when this is lacking the ‘truth’ becomes too
often simply the view of the powerful”. [55] Secondly, its very essence — the notion of
opponents engaged in a forensic duel — can generate unnecessary conflict which is not
necessarily conducive to the resolution or settlement of a dispute. Thirdly, much of the
outcome of a case depends upon the ability, wit, energy, ruthlessness and even permissible
rudeness which the cross-examiner might display. Fourthly, the “selfish” and partial [56]
manner in which parties are allowed to present evidence and the fact that the adjudicator
may only in limited circumstances call witnesses may inevitably lead to a situation where the
“procedural” or “formal truth” can be promoted at the expense of the “material truth”. Brett
makes the following remarks in respect of the adversarial method of fact-finding: [57]
“. . . [O]bserve the practice of scientists and historians in carrying out their investigations . . .
[A] lengthy search will fail to reveal one competent practitioner in either discipline who will willingly
and in advance confine himself, in deciding any question involving factual data, to a choice between
two sets of existing data proffered to him by rival claimants. In short, the inquisitorial method is the
one used by every genuine seeker of the truth in every walk of life (not merely scientific and historical
investigations) with only one exception the trial system in the common-law world.”
In contradistinction to the adversarial model, the inquisitorial model is judge-centred. It
proceeds from the premises that a trial is not a contest between two opposing parties but
essentially an inquiry to establish the material truth. Judicial examination is accepted as the
pivotal mechanism in the process of fact-finding. The emphasis is upon an inquiry conducted
with the aid of such evidence as the inquirer deems fit. The absence of a right to crossexamine also explains why the inquisitorial procedure puts the written word — as a means of
receiving evidence — to greater use than the adversarial system. The commissioner in the
small claims court may in his discretion receive written or oral evidence, [58] and may
actively call for such evidence.
Devlin remarks as follows:
[59]
“The essential difference between the [adversarial and inquisitorial] systems . . . is apparent from
their names: the one is a trial of strength and the other is an inquiry. The
Page 13
question in the first is: are the shoulders of the party upon whom is laid the burden of proof . . .
strong enough to carry and discharge it? In the second the question is: what is the truth of the
matter? In the first the judge or jury are arbiters; they do not pose questions and seek answers; they
weigh such material as is put before them, but they have no responsibility for seeing that it is
complete. In the second the judge is in charge of the inquiry from the start; he will of course permit
the parties to make out their cases and may rely on them to do so, but it is for him to say what it is
that he wants to know.”
And Devlin continues:
[60]
“The English say that the best way of getting at the truth is to have each party dig for the facts that
help it; between them they will bring all to light. The inquisitor works on his own but has in the end to
say who wins and who loses. Lord Denning denies that the English judge is ‘a mere umpire’ and says
that ‘his object’ above all, is to find out the truth’. The real difference is, I think, that in the adversary
system the judge in his quest for the truth is restricted to the material presented by the parties while
in the inquisitorial system the judge can find out what he wants to know. Put in a nutshell, the arbiter
is confined and the inquisitor is not.”
It may be said — at the risk of over-simplification — that the inquisitorial procedure is a
natural system of fact-finding in the sense that it dispenses with technical rules and is
applied in our everyday activities. For example, a father inquiring into a dispute between his
children acts inquisitorially in the sense that he will not merely rely upon information which
the “parties” are prepared to submit; nor, for that matter, will he follow or adopt evidential
rules which tell him in advance that he may not even receive certain “evidence”.
Bentham (1748-1832) considered this “domestic or natural system” an acceptable “mode
of searching out the truth”; [61] and he accepted the “domestic forum” as the most nearly
perfect tribunal, [62] providing some basic scale model in terms of which English procedural
law could be recast. Were it not for the fact that Bentham has been trapped for more than a
century and a half in a state of mummification in a glass case at the University College of
London, [63] he probably would have taken great delight in observing a commissioner at work
in a modern small claims court. “Hear” said Bentham “everybody who is likely to know
anything about the matter, hear everybody but most attentively of all, and first of all those
who are most likely to know most about it — that is the parties”. [64] His approach to the law
of evidence was also founded upon the hypothesis that the tribunal possesses the ability to
weigh the various kinds of evidence even where the tribunal consists of judge and jury. [65] It
has rightly been said that the changes which he had advocated would have brought English
procedure and evidence closer to the Continental practice. [66]
Page 14
1 5 3 Strict versus free system of evidence
[67]
The strict system of evidence is to a large extent a concomitant of the adversarial system,
whereas the inquisitorial trial is generally accompanied by a free system of evidence. This
almost universal phenomenon can be explained on the basis that those countries which
never experienced an extensive period of lay participation in the adjudication of disputes
developed and accepted the idea of adjudication by a professional or “career” adjudicator
who should not — and need not — be hampered by artificial rules relating to the exclusion of
evidence. [68] The central idea was and still is that in the adjudication of facts a professional
judge need not be guided by rules of admissibility: the true issue in the process of
adjudication is not one of admissibility, but weight; and the determination of weight is
something which can and must be left to the professional judge. Sanders explains as
follows: [69]
“Related to the inquisitorial method of procedure and the concomitant emphasis on utility is the
principle of the free evaluation of evidence. Except for matters of privilege and personal incompetence
to testify on grounds such as kinship, tender age or prior felony convictions, the civil law
acknowledges no exclusionary rules of evidence, particularly no hearsay or opinion rule. In the eyes of
civil lawyers most of the grounds which under the common law serve to preclude the admission of
evidence merely affect the weight to be attached to a particular item of evidence, which, according to
them, should be a matter for the judge’s free evaluation.”
To the Anglo-American lawyer admissibility is largely a matter of law, whilst weight is a
question of fact. But even in this context the Anglo-American approach is to make
admissibility dependent upon the potential weight of the evidence. [70]
Seen from this angle, it is but a small step for an Anglo-American lawyer or any other
lawyer to disregard the first question (admissibility) and answer only the second and final
one (weight). It may be argued that in small claims courts the general absence of formal
preliminary findings as regards the admissibility of evidence might lead to a proliferation of
evidence and a multiplicity of collateral issues. But it should be borne in mind that a
commissioner in a small claims court “shall proceed inquisitorially to ascertain the relevant
facts”. [71] It is upon this basis that he controls the volume of evidence and not upon the
basis
Page 15
of artificial rules originally designed for jury trials, where it was feared that the evidence in
dispute might distract or mislead the jury. Obviously, in both free and strict systems the
adjudicators should always bear in mind that it “is one thing to say that a factor is relevant
and an entirely different thing to say that it is cogent or persuasive”. [72]
The discretionary admission of hearsay in small claims courts apparently does not present
any problems. In a paper delivered at the South African Law Conference in 1970 Mr Justice
H C Nicholas remarked as follows with reference to the hearsay rule as it was then applied in
our ordinary courts: [73]
“In South Africa, jury trials in civil cases were finally abolished many years ago. With the
disappearance of the occasion for the hearsay rule, what necessity remains for its retention? The
strongest reason which can be advanced is that hearsay evidence may be unreliable. That, however,
is an objection which goes only to the weight of the evidence, which is a matter which can and should
be determined by the Court. What advantage has a rule of exclusion, subject to certain arbitrary
exceptions none of which have as their basis any real guarantee of the truth, over a rule of inclusion,
which would admit all relevant evidence, and leave the assessment of its value to the Court? The
answer is plainly that there is no advantage discernible.”
The area of acute conflict between strict and free systems of evidence relates to hearsay.
Continental countries, which never experienced an extensive period of lay participation in
the form of a jury in the adjudication of disputes, see no reason for the general exclusion of
hearsay.
Anglo-American lawyers generally take great pride in their procedural and evidential
system, and rightly so. But at the same time it would certainly be arrogant to look upon the
combination of an inquisitorial procedure and a free system of evidence as an inferior factfinding mechanism, especially in the context of small claims courts and in view of the fact
that the “functional test to which all procedural rules should be subjected is their practical
efficiency in providing machinery for the prompt and reasonably cheap settlement of
disputes on lines that do justice to both parties”. [74]
1 6 Jurors and Assessors: Some Brief Comparative Remarks
In § 1 3 3 above it was pointed out that trial by jury has been abolished in South Africa. We
have, nevertheless, retained the essential structure of a system designed for trial by jury.
This can perhaps be justified in view of the increased use of lay assessors in lower courts. [75]
Assessors [76] in lower courts [77] and in the
Page 16
High Court [78] can to some extent be compared with jurors [79] as they are all finders of fact
and do not decide legal issues. [80] But our system of adjudication differs materially from trial
by jury. The role of jurors can briefly be summarised as follows: jurors are lay people and
sole finders of fact. They listen to the evidence and hear arguments, and they receive a
summing-up and instructions from the presiding judicial officer. They are then called upon in
their capacity as sole finders of fact to consider and reach their verdict in the absence of the
presiding judicial officer. And they are not required to advance reasons in support of their
verdict. But in our system the judge or magistrate is at all times either a sole finder of fact
or, where assessors are involved, a co-finder of fact. [81] A judge must give reasons for his
verdict. [82] Magistrates almost invariably do give reasons for their verdict [83] and are at any
rate legally required to do so. [84] It is true that the function of assessors can be compared
with the function of jurors, because the function of assessors is — with one exception [85] —
also limited to fact-finding. But assessors — unlike a jury — must give reasons for their
verdict. [86] They either agree or disagree with the presiding judicial officer’s reasons and
finding, and in the event of a disagreement must furnish their own reasons in a separate
judgment which is read out in court by the presiding judicial officer. And assessors — unlike
jurors — are under constant and immediate judicial guidance in the sense that a judge (or
magistrate) and the assessors involved in the trial have joint deliberations in reaching their
respective verdicts. During these deliberations the presiding judicial officer can and must
draw the attention of lay assessors to certain rules which govern the evaluation of evidence.
It has been suggested [87] that our law of evidence can with ease accommodate lay
persons as finders of fact because the basic infrastructure exists, namely, the concentrated
trial, [88] the principle of orality [89] and the use of exclusionary
Page 17
rules, like rules which exclude evidence of the bad character of the accused. [90] However, a
presiding judicial officer should ensure that his lay assessors grasp “the fundamentals of
analysis of evidence”, [91] for example, the cautionary rule in respect of a single witness [92]
and the fact that proof beyond reasonable doubt — and not proof on a balance of probability
— is the standard of proof which the prosecution must satisfy for purposes of a
conviction. [93] In S v Gambushe Hurt J, having noted that lay assessors may be of
considerable assistance in the sentencing enquiry, said the following: “[I]t is by no means
clear that, in the average situation, [lay assessors] will be able to give the presiding officer
any real assistance in reaching a decision as to the guilt or innocence of an accused
person”. [94] In S v Maphanga Labe J was less pessimistic. [95] According to Seekings &
Murray there is “no reason to think that lay assessors do not enrich the administration of
justice”. [96] The Constitutional Court has stressed the importance of ensuring that there is
no reasonable apprehension of bias on the part of assessors. [97]
1 7 Rules of Evidence in Criminal and Civil Proceedings
This work is confined to the law of evidence as applied in criminal and civil proceedings. It
will be noted that the “law of criminal evidence is much more extensive than the law of civil
evidence”. [98] There are numerous common-law, statutory and constitutional provisions
which seek to protect accused persons from wrongful convictions and which seek to maintain
a balance between the state (the prosecution) and the individual. The result is that there are
also certain key areas where there are major differences between rules of evidence in
criminal as opposed to civil proceedings. The most obvious difference is the standard of
proof: the requirement in criminal cases “that guilt be proved beyond a reasonable doubt
signals the seriousness of criminal convictions”. [99]
Page 18
In civil cases the party bearing the burden of proof need only prove his case on a balance of
probability (see § 32 7 below). A court will also more readily, in terms of its discretion
embodied in s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, admit hearsay for
purposes of civil proceedings as opposed to criminal proceedings (see § 13 7 1 below). A
further major difference between criminal and civil proceedings, relates to the rules which
govern the competence and compellability of witnesses, including the parties (see
§§ 22 9, 22 11 1 and 22 11 2 below).
The strict rules of evidence may also be relaxed according to the nature and purpose of
the specific proceedings and issues. [100] All the strict rules of evidence which apply in a
criminal trial for purposes of determining the merits (ie, the question whether the accused
must be acquitted or convicted), do not necessarily apply once the accused has been
convicted and the stage is reached where evidence (information) is required for purposes of
determining an appropriate sentence. Circumstances will dictate the extent to which the
formal rules of evidence should be adhered to or relaxed, [101] but the accused may in no
circumstances be deprived of his constitutional right to a fair trial. [102] The same approach
applies to a bail application: a free system of evidence may be followed [103] provided the bail
applicant is not deprived of a fair bail hearing. Hearsay evidence, [104] opinion evidence [105]
and character evidence [106] are generally freely admitted in bail proceedings. In bail
proceedings guilt or innocence is normally not the central issue. Liberty pending the final
outcome of the trial or appeal, is the issue. [107]
[1] Tapper Cross & Tapper on Evidence 12 ed (2010) 1.
[2] S v Thomo and Others 1969 (1) SA 385 (A) 394C-D (emphasis added): “It is of importance first to determine
what conduct was established . . . Having thus determined the proper factual basis, the court can then proceed to
consider what crime (if any) has [been] committed. The former enquiry is one of fact, the latter essentially one of
law.” The student of the law of evidence will soon notice that the “factual basis” required for purposes of applying the
relevant rules of substantive law, is not the equivalent of the absolute (or material) truth. The “factual basis” really
refers to the procedural (or formal) truth, namely the truth that can be established to the extent permitted by
principles, rules and fair trial norms which are not always aimed at promoting reliable factual outcomes. Pursuit of
the truth remains subject to other values. See, eg, chs 10, 11 and 12 below. Furthermore, the applicable standards
of proof (beyond reasonable doubt in a criminal case and on a balance of probability in a civil case) also indicate that
proof of the absolute truth is not required to attain success. See chs 31 and 32. It should also be appreciated that
insistence on proof of the absolute truth, would be wholly impractical given the realities of life. In conducting a case,
lawyers and litigants have to cope with a variety of possible problems, ranging from dishonest or biased or honest
but mistaken witnesses to lost or destroyed or fabricated evidence.
[3] See ch 4 below.
[4] See generally Botes v Van Deventer 1966 (3) SA 182 (A) 197. This case is discussed in § 16 4 below.
[5] See ch 3 below.
[6] See generally Esmein (transl by Simpson) A History of Continental Criminal Procedure with Special Reference
to France: Continental Legal History Series vol V (1968) 617-9; Joubert 1982 TSAR 261.
[7] See generally Nokes An Introduction to Evidence 4 ed (1967) 18; Thayer A Preliminary Treatise on Evidence at
the Common Law (1898) 24-34, 67 and 81; Elton (ed) The Law Courts of Medieval England (1972) 25; Plucknett A
Concise History of the Common Law (1956) 113-18; Kempin Historical Introduction to Anglo-American Law (1973)
54-7; Devlin Trial by Jury (1978) 6-7; Wakeling Corroboration in Canadian Law (1977) 8-9; Levy Origins of the Fifth
Amendment: The Right against Self-incrimination (1968) 5-7.
[8] Diamond Primitive Law Past and Present (1971) 47, 297-312, 318, 386-7 and 390-1; Langbein Torture and the
Law of Proof (1977) 6; Esmein (transl by Simpson) A History of Continental Criminal Procedure with Special
Reference to France: Continental Legal History Series vol V (1968) 618; Hartland Primitive Law (1924) 191.
[9] Stein Legal Institutions: The Development of Dispute Settlement (1984) 25: “[I]n an age of faith, when there
is a general belief in the direct intervention of divine providence in human affairs, it is not irrational to think that God
knows what happened better than any human and that He will indicate which party was in the right.”
[10] Nokes An Introduction to Evidence 4 ed (1967) 18. However, cf Schwikkard Presumption of Innocence (1999)
2.
[11] Forsyth (transl by Morgan) History of Trial by Jury (1878) 68. See also § 30 2 below.
[12] Damaska “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure” 1973 121
U Pennsylvania LR 556 n110: “By irrational I mean procedural devices such as trial by ordeal, which rests on
religious imaginings, especially the belief that the deity can be summoned to intervene in the screening of the guilty
from the innocent.”
[13] Wigmore para 8.
[14] Paton & Derham A Text-book of Jurisprudence (1972) 597.
[15] See also § 30 4 below.
[16] Holdsworth in Goodhart & Hanbury (eds) A History of English Law vol 1 (1956) 308.
[17] Re “Oral v Written Evidence: The Myth of the Impressive Witness” 1983 57 Australian LR 679; Van der Merwe
1997 Stell LR 348 349.
[18] Van der Merwe 1991 Stell LR 281 290.
[19] See ch 13 below.
[20] Van Caenegem in Kuttner & Ryan (eds) Proceedings of the Second International Congress of Medieval Canon
Law: Boston College 12-16 August 1963: Monumenta Juris Canonic Series C vol 1 (1965) 304.
[21] Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 37; Kempin Historical Introduction to
Anglo-American Law (1973) 55.
[22] Langbein Torture and the Law of Proof (1977) 6.
[23] Forsyth (transl by Morgan) History of Trial by Jury (1878) 63 gives an example of the use of compurgators.
Accused A had to take the following oath: “By the Lord, I am guiltless, both in deed and counsel of the charge which
B accuses me.” The compurgators then had to reply: “By the Lord, the oath is clear and unperjured which A has
sworn.” See further § 25 3 below.
[24] Best A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law (1849) para
55.
[25] S v Munn 1973 (3) SA 734 (NC) 736H. See also generally S v Bothma 1971 (1) SA 332 (C) and S v Ndlela
1984 (1) SA 223 (N). See further s 162 of the CPA (as read with s 163) and s 39 of the CPEA (as read with ss 40 and
41).
[26] See Kahn 1991 SALJ 672 and 1992 SALJ 87, 307 and 666 and 1993 SALJ 322 for a general discussion and
evaluation of the jury system, as well as the history of the jury in South Africa. See also generally De Vos 2008 TSAR
196. Eggleston Evidence, Proof and Probability (1978) 5 has pointed out that much of the “pecularity of the English
law of evidence is due to the existence of the jury system and to the adversary nature of English legal proceedings”.
This forms the essential backdrop to our system in South Africa. See § 1 6 below.
[27] White “Origin and Development of Trial by Jury” 1961 29 Tennessee LR 8 15.
[28] Bushell’s Case 124 ER 1006 1009.
[29] Forkosch “The Nature of Legal Evidence” 1971 59 California LR 1356 1373.
[30] Nokes An Introduction to the Law of Evidence 4 ed (1967) 35. See further § 1 6 below as regards the function
of assessors in our system of adjudication.
[31] Section 3 of the Administration of Justice (Further Amendment) Act 11 of 1927.
[32] Abolition of Juries Act 34 of 1969.
[33] Van der Merwe 1991 Stell LR 281. See also § 24 1 below.
[34] The so-called best evidence rule is currently only of importance as regards documentary evidence. See § 20 3
below.
[35] See ch 3 below.
[36] Heydon Evidence: Cases and Materials 3 ed (1991) 3. Most of the rest of this chapter is based on an article
previously published by Van der Merwe 1985 De Rebus 445-51.
[37] Van der Merwe “Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of Evidence” in
Sanders (ed) Southern Africa in Need of Law Reform (1981) 141.
[38] Mueller & Le Poole-Griffiths Comparative Criminal Procedure (1969) 50.
[39] Morgan “Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence” 1943 10 Univ of
Chicago LR 285.
[40] See the Small Claims Courts Act 61 of 1984 (especially ss 26, 27 and 28).
[41] See the proviso to s 26(3) of Act 61 of 1984.
[42] See ch 18 below.
[43] Section 7(2) of Act 61 of 1984.
[44] See generally Ervine “Small Claims: The Central Research Unit Report and Beyond” 1984 Journal of the Law
Society of Scotland 66 68.
[45] Hoexter JA was the chairman of the Commission of Inquiry into the Structure and Functioning of the Courts
(hereinafter referred to as the “Hoexter Commission”).
[46] Paragraph 13 11 of the 4th interim report (RP 52/1982) of the Hoexter Commission.
[47] Paragraph 13 9 of the 4th interim report (RP 52/1982) of the Hoexter Commission.
[48] Paragraph 13 10 of the 4th interim report (RP 52/1982) of the Hoexter Commission.
[49] Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 8.
[50] Purdum “The Early History of Small Claims Courts” 1981 65 Judicature: The Journal of the American
Judicature Society 31 32.
[51] Pound “The Administration of Justice in the Modern City” 1913 26 Harvard LR 302 319.
[52] Den Hollander 1975 Acta Juridica 332 349.
[53] See McEwan Evidence and the Adversarial Process The Modern Law 2 ed (1998) 1-30 and the sources
referred to by Van der Merwe in 1991 Stell LR 281 284 n 18.
[54] Wigmore para 1367.
[55] Delisle Evidence: Principles and Problems (1984) 2.
[56] Frank Courts on Trial (1949) 85.
[57] Brett “Legal Decision Making and Bias: A Critique of an Experiment” 1973 45 Univ of Colorado LR 1 23.
[58] Section 26(2) of Act 61 of 1984.
[59] Devlin The Judge (1979) 54.
[60] Devlin The Judge (1979) 54.
[61] Hart Essays on Bentham: Jurisprudence and Political Theory (1982) 31-2.
[62] Keeton & Marshall “Bentham’s Influence on the Law of Evidence” in Keeton & Shwarzenberger (eds) Jeremy
Bentham and the Law: A Symposium (1948, reprint 1970) 86-7.
[63] Van der Westhuizen 1982 DR 477 478.
[64] Quoted by Hart Essays on Bentham: Jurisprudence and Political Theory 32.
[65] Further theories of Bentham are discussed by Twining Theories of Evidence: Bentham and Wigmore (1985)
19-100.
[66] Keeton & Marshall “Bentham’s Influence on the Law of Evidence” in Keeton & Schwarzenberger (eds) Jeremy
Bentham and the Law: A Symposium 86.
[67] See generally Van der Merwe “Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of
Evidence” in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141 144-6.
[68] See generally Capelletti & Perillo Civil Procedure in Italy (1965) 189. Many continental courts were originally
bound by strict rules which regulated the evaluation of evidence. See generally Millar Civil Procedure of the Trial
Court in Historical Perspective (1964) 22-3. These rules largely consisted of presumptions which were supposed to
furnish “half proof” (semi probatio) or “full proof” (plena probatio). According to Kralik Introduction to the
Continental Judicial Organization and Civil Procedure (1963) 8, the acceptance of a free system of evidence was a
reaction to these strict rules. At 6-7 it is stated: “The principle of free . . . evaluation of evidence means that the
court is not fettered by any formal rules of evidence . . . Behind this principle is a familiar history of dissatisfaction
with a system of weighing evidence by artificial scales and tables . . . So the principle of free appreciation of
evidence is now one of the most characteristic aspects of modern continental procedure. As compared with English
and American law, continental law is less strict in regard to the admissibility of evidence and the procedure of
prooftaking . . .” See further Van der Merwe 1991 Stell LR 281 294.
[69] Sanders 1981 CILSA 196 206-7.
[70] See § 5 3 2 below.
[71] Section 26(3) of Act 61 of 1984.
[72] S v Fourie 1973 (1) SA 100 (D) 102H-103A.
[73] See the addendum to the report (RP 78/1971) of the Commission of Inquiry into Criminal Procedure and
Evidence 46.
[74] Paton & Derham A Text-book of Jurisprudence (1972) 593.
[75] See generally Van der Merwe 1991 Stell LR 281 306.
[76] On assessors, see generally Richings “Assessors in South African Criminal Trials” 1976 Crim LR 107; Van Zyl
Smit & Isakow 1985 SAJHR 218; Van Zyl Smit 1979 SALJ 173 and 1984 SALJ 212; Swanepoel 1990 SACJ 174;
Watney 1992 THHR 465.
[77] See s 93ter of the Magistrates’ Courts Act 32 of 1944 and Watney 1992 THRHR 465. See also generally
Seekings & Murray Lay Assessors in South African Magistrates’ Courts (1998) 50.
[78] See s 145 of the CPA and Bekker “Assessore in Suid-Afrikaanse Strafsake” in Strauss (ed) Huldigings-bundel
vir W A Joubert (1988) 32.
[79] R v Solomons 1959 (2) SA 352 (A) 363-4. In S v Gambushe 1997 (1) SACR 638 (N) 643b lay assessors in
Magistrates’ Courts were referred to as “a sort of ‘mini-jury’.” See also S v Maphanga 2001 (2) SACR 371 (W) 374b.
[80] Two assessors can overrule a judge or magistrate on the facts.
[81] See generally s 145(4)(a) of the CPA and s 93ter(3)(e) of the Magistrates’ Courts Act 32 of 1944.
[82] See s 146(b) of the CPA; S v Maake 2011 (1) SACR 263 (SCA) at [24]. The requirement that courts should
furnish reasons, seeks to ensure that decisions are based on rational grounds. See S v Mokela 2012 (1) SACR 431
(SCA) at [12] and Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) at [15].
[83] See generally Ferreira Strafproses in die Laer Howe 2 ed (1979) 500.
[84] See generally S v Adams 2001 (1) SACR 59 (C). See also s 93ter(3)(c) to (e) of the Magistrates’ Courts Act
32 of 1944; S v Molawa; S v Mpengesi 2011 (1) SACR 350 (GSJ) at [12]-[14]. The furnishing of reasons in support
of a verdict, is dealt with in greater detail in § 30 13 below.
[85] See s 93ter(1)(b) of the Magistrates’ Courts Act 32 of 1944.
[86] See s 146(d) of the CPA and s 93ter(3)(e) of the Magistrates’ Courts Act 32 of 1944.
[87] Van der Merwe 1991 Stell LR 281 306-7.
[88] See generally Erasmus 1990 Stell LR 348 355; Kötz 1987 TSAR 35 40.
[89] Dennis The Law of Evidence 3 ed (2007) 16 describes this principle as follows: “The principle of orality is the
principle that evidence on disputed questions of fact should be given by witnesses called before the court to give oral
testimony of matters within their own knowledge. Historically the principle is intimately connected with the
importance attached by the common law to the oath, to the demeanour of the witness, and to cross-examination as
guarantees of reliability. Oral testimony from witnesses physically present before the court also helps to legitimize
the adjudication in other ways. It reinforces the drama and solemnity of the occasion, and it allows for maximum
participation in decision-making in the sense that parties can confront their accusers and challenge the evidence
against them in the most direct way possible by cross-examination. In the United States parties have constitutional
rights, guaranteed by the Sixth Amendment, to confrontation and cross-examination of witnesses.” See also s 35(3)
(i) of the Constitution of the Republic of South Africa. See further the discussion of S v Ndhlovu and Others 2002 (2)
SACR 325 (SCA) in § 13 7 6 below, as well as the discussion in § 18 1 below where reference is made to S v
Adendorff 2004 (2) SACR 185 (SCA).
[90] See § 1 3 3 above.
[91] S v Gambushe supra 645b-c.
[92] S v Gambushe supra 644a. See further § 30 11 4 below.
[93] See generally S v Gambushe supra 642c. See further §§ 31 6 and 32 7 below.
[94] S v Gambushe supra 643h.
[95] 2001 (2) SACR 371 (W) 373d.
[96] Lay Assessors in South Africa’s Magistrates’ Court: Issues in Law, Race and Gender vol 6 (1998) 192.
[97] S v Jaipal 2005 (1) SACR 215 (CC).
[98] Dennis The Law of Evidence 17.
[99] Schwikkard Presumption of Innocence 15. In S v Baloyi 2000 (1) SACR 81 (CC) Sachs J also said at [15]:
“The requirement that the State must prove guilt beyond a reasonable doubt has been called the golden thread
running through the criminal law, and a prime instrument for reducing the risk of convictions based on factual error.”
See also generally Magmoed v Janse Van Rensburg and Others 1993 (1) SACR 67 (A), where Corbett CJ referred to
the “general policy of concern for an accused person in a criminal trial” (at 100j) and the rule that there can be no
conviction in the absence of proof beyond reasonable doubt furnished by the prosecution (at 101a).
[100] The small claims courts are a statutory example. See § 1 5 above. Application of the rules of evidence in
arbitration proceedings, is discussed by Butler & Smith in LAWSA vol 1 at para 586. See also Whitear-Nel 2012 Stell
LR 241.
[101] For an extensive and critical discussion of rules of evidence in the presentation of evidence or other
information for purposes of sentencing, see Terblanche The Guide to Sentencing in South Africa 2 ed (2007) 96-103.
[102] It should be noted, eg, that the accused’s right under s 35(3)(h) of the Constitution to remain silent and not
to testify during the proceedings, applies to the sentencing stage as well. See S v Dzukuda and Others; S v Tshilo
2000 (2) SACR 443 (CC) at [40].
[103] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) at [11]. See also
generally Van der Merwe in Du Toit et al Commentary 9-60 as well as Hendriks Die Aard van Borgverrigtinge met
Spesifieke Verwysing na die Toepassing van die Reëls van die Bewysreg op Sodanige Verrigtinge (unpubl LLM thesis,
Univ of Stellenbosch, 2004) 31-62.
[104] S v De Kock 1995 (1) SACR 299 (T) 310e. Although hearsay is admissible in bail applications, it will often
carry less weight than the testimony of persons who had personal knowledge of the events. See S v Tshabalala 1998
(2) SACR 259 (C) 265g. The difference between admissibility and weight is explained in § 2 7 below.
[105] S v Hlongwa 1979 (4) SA 112 (D) 113H-114A. For valid qualifications and criticisms of this rule, see S v
Lukas 1991 (2) SACR 429 (E) 437b-c and Van der Berg Bail A Practitioner’s Guide 2 ed (2001) 83.
[106] S v Patel 1970 (3) SA 565 (W) 566B-C.
[107] S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra at [11].
Page 19
Chapter 2
Basic Concepts and Distinctions
S E van der Merwe
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Introduction
Facts in Issue and Facts Relevant to the Facts in Issue
Evidence and Argument
Evidence and Probative Material
Evidence and Proof
Conclusive Proof and Prima Facie Proof
Admissibility and Weight of Evidence
Conditional Admissibility
Circumstantial and Direct Evidence
Primary and Secondary Evidence
Hearsay
Relevance
Privilege
Formal and Informal Admissions
Confessions
Judicial Notice
Presumptions
The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal
(Evidential Burden, “Weerleggingslas”)
2 1 Introduction
This chapter is of a preliminary nature. Most of the concepts identified or explained here, will
be encountered again in the rest of this work.
2 2 Facts in Issue and Facts Relevant to the Facts in Issue
The facts in issue (facta probanda) are those facts which a party must prove in order to
succeed; the facts relevant [1] to the facts in issue (facta probantia) are those facts which
tend to prove or disprove the facts in issue. For example, in a paternity case the identity of
the father will be a factum probandum [2] (ie, a fact in issue); sexual intercourse with the
alleged father will be a factum probans [3] (ie, a fact relevant to the fact in issue). Schmidt &
Rademeyer make a further distinction between primary and secondary facta probanda. [4]
According to them, primary facta probanda would refer to those facts placed in issue by the
pleadings (in civil proceedings) and the plea (in criminal proceedings). Secondary facta
probanda would refer to facta probantia which are in issue; for
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example, in a paternity suit it may be disputed that sexual intercourse took place at the
material time. This is then a factum probans which is in dispute.
The facts in issue are, generally speaking, determined by substantive law, whereas the
rules of procedure — and in particular the law of evidence — determine the facts relevant to
the facts in issue.
In both criminal and civil matters the number of facts in issue at the initial stage of the
case may be reduced by means of formal admissions. [5] For example, where an accused is
charged with murder it is necessary for the state to prove that the accused unlawfully and
intentionally killed another person. Substantive law requires that these elements must be
proved. During his explanation of plea in terms of s 115 of the CPA the accused may,
however, admit that he killed a human being. At the same time he may dispute that the
killing was unlawful. He may, for example, claim that the killing was justified by reason of
self-defence. The fact that the accused killed the deceased may (with the consent of the
accused) be recorded as a formal admission. [6] The state need then prove only
unlawfulness. In this way the rules of procedure and substantive law determine the facts in
issue.
2 3 Evidence and Argument
The meaning of evidence is discussed in §§ 2 4 and 2 5 below. Argument (“betoog”) is not
presented through evidence, but is merely persuasive comment made by the parties or their
legal representatives with regard to questions of fact or law. Before judgment is delivered
the parties or their legal representatives have, for example, a right to address the court on
the cogency (or otherwise) of the evidence received during the course of the trial. Their
comment, however, does not amount to evidence. During the course of a trial parties also
have the right to object to and deliver argument with regard to the admissibility of certain
evidence. The court is then required to make a ruling on the issue of admissibility. But here,
too, the comments of the parties do not constitute evidence.
2 4 Evidence and Probative Material
There is a distinction between evidence (“getuienis”) and probative material
(“bewysmateriaal”). Our courts are not entirely consistent in distinguishing between the
two. [7] What follows is a simplified overview. “Evidence” essentially consists of oral
statements made in court under oath or affirmation or warning (oral evidence). [8] But it also
includes documents (documentary evidence) [9] and objects (real evidence) [10] produced and
received in court.
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Evidence, however, is not the only means of furnishing proof. In S v Mjoli and Another [11]
it was pointed out that even though an accused’s admission made during the explanation of
plea in terms of s 115 of the CPA is not evidence by the accused, it still is “probative
material” and there is therefore no impediment in the way of a trial court to use against the
accused material furnished during such procedure. An explanation of plea is not given under
oath or affirmation or warning and therefore cannot be classified as evidence. [12]
In S v Mokgeledi [13] it was held that formal admissions do not constitute evidence. Formal
admissions dispense with the need to adduce evidence to prove facts in issue, and must be
classified as probative material. Judicial notice, [14] similarly, cannot be classified as evidence
(see also § 2 16 below).
In S v A R Wholesalers (Pty) Ltd and Another [15] it was confirmed that presumptions
also do not constitute evidence (see further § 2 17 below).
[16]
It is submitted that the term “probative material” is a convenient term to include not only
oral, documentary and real evidence but also formal admissions, judicial notice,
presumptions and — in terms of Mjoli (supra) — also those statements made in terms of
s 115 of the CPA and which do not amount to formal admissions. Probative material
therefore refers to more than oral, documentary and real evidence.
2 5 Evidence and Proof
[17]
Proof of a fact means that the court has received probative material with regard to such fact
and has accepted such fact as being the truth for purposes of the specific case. Evidence of a
fact is not yet proof of such fact: the court must still decide whether or not such fact has
been proved. This involves a process of evaluation. [18] The court will only act upon facts
found proved in accordance with certain standards. In a criminal case the standard of proof
is proof beyond a reasonable doubt. [19] In a civil case the standard of proof is proof upon a
balance of probability [20] — a lower standard than proof beyond reasonable doubt.
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2 6 Conclusive Proof and Prima Facie Proof
Conclusive proof means that rebuttal is no longer possible.
decisive and final.
[21]
It is proof which is taken as
Prima facie proof implies that proof to the contrary is (still) possible. In the absence of
proof to the contrary, prima facie proof will, generally speaking, become conclusive proof.
Prima facie proof is sometimes used as a synonym for prima facie evidence (especially by
the legislature). This approach is, strictly speaking, incorrect. [22]
2 7 Admissibility and Weight of Evidence
The admissibility of evidence and weight of evidence should not be confused.
Campbell state that: [24]
[23]
Lansdown &
“If what is adduced can in law properly be put before the court, it is admissible. It is only once it has
been or could be admitted that its persuasiveness, alone or in conjunction with other evidence, in
satisfying the court as to the facta probanda has to be considered.”
There are no degrees of admissibility. Evidence is either admissible or inadmissible. Evidence
cannot be more or less admissible. Once admissible, however, it may carry more or less
weight according to the particular circumstances of the case. The court weighs or evaluates
evidence to determine whether the required standard of proof has been attained. It is only
after the evidence has been admitted and at the end of the trial that the court will have to
assess the final weight of the evidence. The evaluation of evidence is dealt with in
chapter 30 below.
It should be borne in mind, however, that the admissibility of evidence is in principle
determined with reference to its relevance. In determining relevance reference must of
necessity also be made to the potential weight of the evidence. [25] This, however, is a
preliminary investigation in order to determine whether such evidence, once admitted, would
be of assistance when it must finally be decided whether the facts in issue have been
proved.
2 8 Conditional Admissibility
[26]
Evidence may be admitted on condition that some basic defect which renders it inadmissible
is cured during the course of the trial. [27] This procedure is rare
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and is merely one of convenience. [28] A good example of conditional admissibility is found in
S v Swanepoel en ’n Ander, [29] where it was held that a document can be used in crossexamination in spite of its authenticity being denied by the opposing party: it is only after
the state has closed its cases that the accused have the opportunity to place their cases
before the court and tender their evidence on the authenticity of documents. If authenticity
is not proved later, the evidence initially elicited in cross-examination with regard to the
content of the document in question will be inadmissible despite the fact that it was received
at an earlier stage, because the rule remains that cross-examination on an inadmissible
document is not allowed. [30]
2 9 Circumstantial and Direct Evidence
[31]
Circumstantial evidence often forms an important component of the information furnished to
the court. In these instances the court is required to draw inferences, because the witnesses
have made no direct assertions with regard to the fact in issue. These inferences must
comply with certain rules of logic. [32]
Circumstantial evidence furnishes indirect proof. [33] In a murder trial, for example,
evidence may be given that A had a motive to kill B and was seen running from B’s home
with a bloodstained knife. Evidence, however, is direct when a fact in issue is proved directly
by such evidence; for example, where witness C testifies that he saw A stabbing B in the
latter’s home.
The distinction between direct and circumstantial evidence is of special importance in
those instances where an accused decides not to testify in his own defence. [34]
2 10 Primary and Secondary Evidence
The distinction between primary and secondary evidence is of importance with regard to
documentary evidence. [35] In the fifth edition of Cross on Evidence it was said: [36]
“Primary evidence is that which does not, by its very nature, suggest that better evidence may be
available: ‘Secondary evidence’ is that which, by its very nature, does suggest that better evidence
may be available. The original of a document is primary evidence, a copy secondary evidence, of its
contents. The distinction is now mainly of importance in connection with documents, because their
contents must, as a general rule, be proved by production of the original, but it used to be of much
greater significance on account of
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the ‘best evidence’ rule which occupied a prominent place in books on the law of evidence in the
eighteenth and early nineteenth centuries.”
2 11 Hearsay
[37]
In terms of s 3(4) of the Law of Evidence Amendment Act 45 of 1988 hearsay evidence
“means evidence, whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence”.
2 12 Relevance
Four possible definitions of relevance are quoted in § 5 3 below.
2 13 Privilege
Privilege, briefly stated, refers to the right or duty of a witness, including a party, to lawfully
withhold evidence from a court of law. A distinction is drawn between private privilege (see
chapter 10) and state privilege (see chapter 11). State privilege is also sometimes referred
to as “public privilege” or “public interest immunity” (see § 11 1 1 below).
The differences between private and state privilege, are discussed in §§ 10 1 and 11 1 2
below.
Privilege must be distinguished from the competence and compellability of witnesses (see
§ 22 1 below).
2 14 Formal and Informal Admissions
The distinction between formal and informal admissions is discussed in § 26 2 1 below.
2 15 Confessions
A confession is a comprehensive out of court informal admission by the accused of all the
elements of the alleged crime. It can be described as an unequivocal acknowledgement of
guilt, which — if it were made in a court of law — would be accepted as a plea of guilty (see
§ 17 3 below).
2 16 Judicial Notice
A court may accept certain facts as proved even though no evidence was led to prove such
facts. This process is known as “judicial notice” (see chapter 27). Examples of facts which
may be judicially noticed are facts of general knowledge (see § 27 4 1 below) and facts
which are of local knowledge (see § 27 4 2).
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2 17 Presumptions
A distinction must be drawn between three different kinds of “presumption”. There is a socalled “presumption of fact” which is merely an inference drawn from evidence (see
§§ 28 3 3 and 30 5 4 below). There are also so-called “irrebuttable presumptions of law”
which are really rules of substantive law (see §§ 4 4 and 28 3 1 below). The only true
presumption is the rebuttable presumption of law in terms of which an assumption which is
demanded by law, must be accepted in the absence of evidence or proof to the contrary (see
§§ 4 4 and 28 3 3 below). Several rebuttable presumptions of law which placed a burden of
proof upon the accused, have been declared unconstitutional (see chapter 29).
2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the
Burden of Rebuttal (Evidential Burden, “Weerleggingslas”)
The distinction between the burden of proof and the evidential burden (“weerleggingslas”) is
discussed in §§ 31 2, 32 2 and 32 3 below).
[1] Four definitions of the concept “relevance” are furnished in § 5 3 below.
[2] “Factum probandum” is the singular of “facta probanda”.
[3] “Factum probans” is the singular of “facta probantia”.
[4] See also Schmidt & Rademeyer (2014) 1-6.
[5] See ch 26 below.
[6] Section 115(2)(b) as read with s 220 of the CPA.
[7] See Van Wyk 1986 21:1 The Magistrate 26 for an accurate and critical analysis of the confusion in this regard.
[8] See ch 18 below.
[9] See ch 20 below.
[10] See ch 19 below.
[11] 1981 (3) SA 1233 (A) 1247-8.
[12] S v Slabbert en Andere 1985 (4) SA 248 (C) 250A. See also S v Xaba en ’n Ander 1978 (1) SA 646 (O) 647
and S v Mogoregi 1978 (3) SA 13 (O) 14.
[13] 1968 (4) SA 335 (A) 337.
[14] See ch 27 below.
[15] 1975 (1) SA 551 (NC) 556.
[16] See ch 28 below.
[17] Van Wyk 1976 TSAR 255. Evidence (“getuienis”) and proof (“bewys”) are not synonymous: R v V 1958 (3) SA
474 (GW).
[18] See ch 30 below.
[19] See § 31 6 below.
[20] See § 32 7 below.
[21] S v Moroney 1978 (4) SA 389 (A) 406. See also Schmidt & Rademeyer (2007) 1-4.
[22] Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 418-23. See further Bilchitz 1999 ASSAL 662
687-9.
[23] In S v Fourie 1973 (1) SA 100 (D) 102H-103A it was said that it “is one thing to say that evidence is relevant
and an entirely different thing to say that it is cogent or persuasive”. See also the quotation from Rex v C 1949 (2)
SA 438 (SR) 439 in § 5 3 6 n 50 below.
[24] At 720.
[25] See § 5 3 2 below.
[26] See generally Van Tonder v Kilian NO en ’n Ander 1992 (1) SA 67 (T) and cf S v Ntuli 1993 (2) SACR 599
(W).
[27] Cowsill & Glegg Evidence: Law and Practice. 3ed (1990, reprinted 1991) 181.
[28] See also s 3(1)(b) and 3(3) of the Law of Evidence Amendment Act 45 of 1988 as discussed by De Vos & Van
der Merwe 1993 Stell LR 7 20. See further § 13 6 below.
[29] 1980 (1) SA 144 (NC).
[30] See Rex v Black 1923 AD 388 and § 18 6 5 3 below. See also § 11 5 1 6 below.
[31] See generally S v Mtsweni 1985 (1) SA 590 (A) 593D-594A.
[32] See §§ 30 5 2 and 30 5 3 below. See also S v Burger and Others 2010 (2) SACR 1 (SCA) at [26].
[33] Schmidt & Rademeyer Bewysreg 4.
[34] S v Mthetwa 1972 (3) SA 766 (A) 769. See further § 30 9 below.
[35] See generally Hoffmann & Zeffertt 390. See further §§ 20 3 to 20 3 1 below.
[36] Cross Cross on Evidence 5 ed (1979) 15.
[37] See ch 13 below.
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Chapter 3
Sources of the South African Law of Evidence and the
Impact of Constitutional Provisions
S E van der Merwe
3
3
3
3
3
1
2
3
4
5
3
3
3
3
6
7
8
9
Introduction
Original and Regional Incorporation of English Law: The Pre-Union Period
Criminal Proceedings: The Post-Union Period
Civil Proceedings: The Post-Union Period
Interpretation of the 30 May 1961 Provision
351
English decisions considered to be incorrect
352
South African rules of practice incompatible with English law
353
Rules inconsistent with constitutional provisions
Value of English Cases Decided after 30 May 1961
Value of Privy Council Decisions
Further Sources
Constitutional Provisions
3 1 Introduction
The following fundamental principles and broad guidelines are important in identifying the
sources of the South African law of evidence:
(a) Our law of evidence is not based on Roman-Dutch authority.
(b) Our rules of evidence are found in local statutes and, where these are silent on a
specific topic or issue, the English law of evidence which was in force in South Africa on
30 May 1961 serves as our common law. [1] The CPA [2] and CPEA [3] contain provisions
to this effect.
(c) South Africa has a considerable body of local case law on evidence. These cases — if
decided in accordance with the applicable English common-law rules and principles as
at 30 May 1961 — are binding in terms of our law of precedent. The practical result is
that a South African court need not in each and every instance try to find applicable
English cases. In most instances local precedents will suffice on the basis that they
accurately reflect the common-law position.
(d) If a total lacuna is encountered, a South African court may for comparative purposes
look for guidance in English cases decided after 30 May
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Page 27
1961. Such cases would normally have considerable persuasive value, but can never
be binding. [4] In the event of a lacuna, support for a decision can also be gleaned from
the law of evidence of other Anglo-American jurisdictions, for example, Australia,
Canada and the United States. In § 1 4 above it was pointed out that the South African
law of evidence belongs to the Anglo-American “family”. We share a common heritage,
that is, the English common-law system, which is based upon rules essentially and
originally designed for trial by jury.
(e)
The South African Constitution is the supreme law: all rules of evidence must comply
with our constitutional provisions. This matter is dealt with more fully in § 3 9 below.
At this stage it is sufficient to note that the Constitution not only governs the validity of
rules of evidence but is also an important source of the law of evidence.
3 2 Original and Regional Incorporation of English Law: The
Pre-Union Period
In the period before South Africa became a Union (that is, before 1910) the English law of
evidence was directly and indirectly incorporated into the different colonies which later
became the Union. [5] Legislation which set out English common-law rules and principles was
passed. This process can be referred to as direct incorporation. However, indirect
incorporation also took place: it was also provided that the English law of evidence had to be
followed in respect of issues or topics for which no express local statutory provision had been
made. There were several colonial statutes which had directly and indirectly incorporated
English law (for example, Ordinance 72 of 1830 (Cape); Law 17 of 1859 (Natal); Ordinance
11 of 1902 (Orange Free State) and Proclamation 16 of 1902 (Transvaal)). At the original
dates of incorporation both English statutory and common law were adopted. [6] It was
generally accepted that local courts were required to follow the English statutes as these had
stood on the original date of incorporation, [7] and that local courts were therefore not bound
by subsequent English legislation. [8] Law 17 of 1859 (Natal), for example, provided
expressly that only those English statutes in force in England in 1859 were to be applied in
Natal. But amendments to the English common law brought about by English judicial
precedents (or of course subsequent local legislation) had to be applied.
In some of these early statutes the English law was indirectly incorporated by referring to
the law “in the Supreme Court of Judicature in England” (see, for
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example, s 45 of Evidence Proclamation 16 of 1902). Residuary sections (see § 3 5 below)
were also employed, for example, in the Transvaal Proclamation of 1902 and the Orange
Free State Ordinance of 1902. The latter proclamation incorporated the law of the Cape of
Good Hope, which, in turn, had incorporated English law.
3 3 Criminal Proceedings: The Post-Union Period
In criminal proceedings the early colonial legislation was superseded by and consolidated in
the Criminal Procedure and Evidence Act 31 of 1917. But this Act was later replaced by the
Criminal Procedure Act 56 of 1955. In terms of the latter Act, English law was excluded
where any matter or topic relating to evidence was expressly dealt with in South African
legislation. But English law had to be followed where a matter was specifically covered by a
reference to the law as applied “in the Supreme Court of Judicature in England”. There were
also residuary clauses which invoked the English law with regard to issues not expressly
covered by South African legislation.
When the Union became a Republic it was thought that further direct references to
another country’s laws were inappropriate. [9] The Criminal Procedure Amendment Act 92 of
1963 removed all references to “the Supreme Court of Judicature in England” from the then
Criminal Procedure Act 56 of 1955: these references were replaced by references to the law
as it stood on the “thirtieth May 1961” (the day before South Africa became a Republic). In
Savoi and Others v National Director of Public Prosecutions and Another Madlanga J, writing
for a unanimous Constitutional Court, stated that the reference to the law as it stood on 30
May 1961 “was a circuitous way of referring to the law of England; circuitous because of the
perceived inappropriateness of the direct reference — in parliamentary Acts of the then new
Republic — to the laws of another country”. [10]
In 1977 the Criminal Procedure Act 56 of 1955 was (except for ss 319(3) and 384)
superseded by the CPA. The CPA generally retained the references to the law as it stood on
30 May 1961.
The following are examples of specific topics — or aspects of specific topics — which, in
our law of evidence in criminal proceedings, are still covered by references to the law as it
stood on 30 May 1961: the impeachment or support of the credibility of a witness —s 190(1)
of the CPA; [11] legal professional privilege — s 201 of the CPA; [12] state privilege — s 202 of
the CPA; [13] the privilege against self-incrimination — s 203 of the CPA; [14] the character of
an accused — s 227(1) of the CPA; [15] the character of any female or male against or in
connection with whom any offence of an indecent nature is alleged to
Page 29
have been committed — s 227(1) as read with s 227(4) of the CPA; [16] evidence and
sufficiency of evidence of appointment to public office — s 230 of the CPA. [17] Aspects
relating to hearsay also used to be covered by references to the law as it stood on 30 May
1961. But these provisions — which were contained in s 216 and s 223 of the CPA — have
been repealed by s 9 of the Law of Evidence Amendment Act 45 of 1988. [18] The latter Act
regulates hearsay without any reference to the law as it stood on 30 May 1961. [19]
Sections 206 and 252 of the CPA contain wide residuary sections and are referred to in
§ 3 5 below.
3 4 Civil Proceedings: The Post-Union Period
In civil proceedings the various colonial provisions which had introduced the English law of
evidence were “consolidated” only when the CPEA came into operation in 1965. Section 42
of the CPEA provides that the law of evidence, including the law relating to the competency,
compellability, examination and cross-examination of witnesses, which was in force in
respect of civil proceedings on 30 May 1961, shall apply in any case not provided for in the
CPEA or any other South African legislation. This is only an indirect way of referring the
reader to the English law of evidence: on 30 May 1961 the various provisions applicable to
civil proceedings in the provinces of the Union contained residuary provisions incorporating
the English law for matters not specifically covered by South African statutes.
3 5 Interpretation of the 30 May 1961 Provision
In Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd Coetzee J posed the following
question [20] “Is the result then that the South African law of evidence is English law,
petrified as at 30 May 1961, with no room for judicial development by South African
judges?” It is generally accepted that the South African law of evidence “remains to a certain
extent frozen” [21] as at 30 May 1961. The common law that must be followed consists of
English legislation that existed on the various dates of original indirect incorporation, as well
as English case law prior to 30 May 1961. [22] The two accepted instances where our courts
have
Page 30
moved away from the binding effect of the “30 May 1961” provision are discussed in
§§ 3 5 1 and 3 5 2 below; and the value of Privy Council decisions are referred to in § 3 7
below. It must be pointed out, once again, that all rules of evidence incompatible with
constitutional provisions are not binding (see §§ 3 5 2 and 3 9 below).
A good example of a residuary provision is also found in s 206 of the CPA. [23] This section
provides as follows: “The law as to the competency, compellability or privilege of witnesses
which was in force in criminal proceedings on the thirtieth day of May, 1961, shall apply in
this Act or any other law.” In S v Taylor Selikowitz J pointed out that the effect of this
section is that “we rely heavily on the law of England as applied at that date”. [24] The
practical effect of a 30 May 1961 provision is that “. . . the Legislature has . . . in its wisdom
referred us to another system of law”, that is, the English law. [25] Section 252 of the CPA
also determines that the law as to the admissibility of evidence which was in force in respect
of criminal proceedings “on the thirtieth day of May 1961” shall apply in any case not
expressly provided for by the CPA [26] or any other law.
Section 42 of the CPEA is the residuary section for civil matters.
[27]
3 5 1 English decisions considered to be incorrect
The implication of Van der Linde v Calitz [28] is that our Supreme Court of Appeal, as
successor to the Privy Council, may deviate from an English decision if it concludes that the
English decision does not correctly apply the English law. [29] In this case — which was
decided in 1967 — the Appellate Division preferred an older Privy Council decision to a more
recent decision of the House of Lords. A further reason for this decision, namely that the
Privy Council was at the time of its decision (that is, 1931) the highest court of appeal in the
South African
Page 31
hierarchy, has been criticised. [30] It should be borne in mind that South African appeals to
the Privy Council were abolished in 1950. [31]
3 5 2 South African rules of practice incompatible with English law
[32]
Where an English evidentiary principle is obviously incompatible with South African law or a
rule of practice (usus fori), such principle may be rejected. [33] In Van der Linde v Calitz [34]
the Appellate Division also created a binding rule of practice which has no counterpart in
English law or practice.
3 5 3 Rules inconsistent with constitutional provisions
English decisions prior to 30 May 1961, and which would have been binding in the absence
of local statutory provisions, must be ignored if found incompatible and inconsistent with
constitutional provisions, for example, the constitutional right to a fair trial (see § 11 5 1
below). And, where possible, the applicable English common-law rule must — on account of
s 39(2) of the Constitution — be developed in order to promote the spirit, purport and
objects of the Bill of Rights (see § 12 13 below).
3 6 Value of English Cases Decided after 30 May 1961
English decisions after 30 May 1961 are not binding upon South African courts, but do have
considerable persuasive force. [35] English decisions also have strong persuasive force in the
interpretation of those South African statutory provisions which make no reference to English
law but which do in effect enact rules similar to those which apply in English law. [36]
3 7 Value of Privy Council Decisions
[37]
The Privy Council Appeals Act 16 of 1950 abolished appeals from the Appellate Division to
the judicial committee of the Privy Council. Post-1950 decisions of the Privy Council
therefore merely have persuasive force. Paizes concludes as follows: [38] “Lower courts in
South Africa are bound by the decision of the Appellate Division, followed by pre-1950
decisions of the Privy Council, followed by pre-30 May 1961 decisions of the English appeal
courts and House of Lords.” The Supreme Court of Appeal may disregard a pre-1950 Privy
Council decision if convinced that it was wrongly decided. [39]
Page 32
3 8 Further Sources
Obviously the CPA, CPEA and the Law of Evidence Amendment Act 45 of 1988 cannot be
regarded as comprehensive codes governing the law of evidence. But they certainly are the
main sources. Some examples of other statutes can be found in chapters 15 and 20 below.
3 9 Constitutional Provisions
The South African legal system was constitutionalized on 27 April 1994, when the
Constitution of the Republic of South Africa, 1993 (hereafter the “interim Constitution”)
came into operation. It was followed by the Constitution of the Republic of South Africa,
1996 (hereafter the “Constitution”) which came into operation on 4 February 1997.
Parliamentary sovereignty was replaced by a Constitution which is the supreme law. There is
a justiciable Bill of Rights. Any statutory or common-law rule which conflicts with the rights
and freedoms contained in the Bill of Rights must be declared unconstitutional unless it can
in terms of s 36(1) of the Constitution be saved as a constitutionally permissible limitation of
a constitutionally guaranteed fundamental right or freedom.
Some common-law (and also some statutory) procedural and evidentiary rights of the
criminally accused have hardened into constitutional rights. These include the following: the
right to be informed of certain rights; [40] the right to exercise a “passive defence right”, [41]
which incorporates the right to remain silent upon arrest, [42] to be presumed innocent, [43]
not to incriminate oneself and not to testify during trial. [44] The “active defence right” [45] of
an accused has also been elevated to a constitutional guarantee: there is a right to adduce
and challenge evidence. [46] There is, furthermore, a right to a fair trial [47] — which includes
the rights as set out in s 35(3) of the Constitution. This right to a fair trial (“due process”)
inevitably also has an important impact on the application of rules of evidence. [48] This right
has had an impact on police docket privilege (see § 11 5 below). The constitutional pre-trial
right to be informed not only of the right to legal representation [49] but also the right to
silence [50] affects the admissibility of confessions and admissions (including so-called
“pointings out”). The impact of constitutional provisions on the admissibility of admissions
and confessions is discussed in chapters 16 and 17 below.
Page 33
Constitutional provisions have been invoked to declare certain statutory presumptions and
reverse onus clauses unconstitutional. The constitutionality of presumptions is discussed in
chapter 29 below.
Constitutional provisions like ss 32 and 34 have an impact on state privilege (see § 11 3
below).
However, one of the most far-reaching effects of the Constitution on our law of evidence
concerns the admissibility of unconstitutionally obtained evidence. Section 35(5) of the
Constitution provides that 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”. The exclusion of unconstitutionally
obtained evidence is discussed in chapter 12 below.
In the final analysis it can be said that there is “an inseparability between rules of
evidence and constitutional entitlements”. [51] Our law of evidence must constantly be
scrutinised in the light of constitutional provisions. Canadian and American cases can be
useful in interpreting the impact of our Constitution on the law of evidence, because both
these countries have also had constitutional provisions superimposed on their English
common-law rules of evidence. In Canada it happened more than two decades ago; and in
the United States it happened more than two centuries ago. We can be guided by these
decisions, especially since s 39(1)(c) of our Constitution provides that “a court . . . may
consider foreign law”. However, our courts should be careful not to rely on foreign case law
too easily: a court “must evaluate [foreign decisions] in the light of the conditions and
circumstances existing in its own jurisdiction from time to time, and the facts of the case
before it”. [52]
[1] See § 3 5 below. In S v Desai 1997 (1) SACR 38 (W) 43g Flemming DJP stated that our law of evidence “is
essentially a part of the law which is tied to the law of England . . . That, of course, does not exclude different
developments at a date subsequent to the end of the statutory tying of our law of evidence to that of the law of
England.” See also Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC)
at [37] n 52.
[2] See § 3 3 below as well as S v Taylor 1991 (2) SACR 69 (C), which is discussed in § 3 5 below.
[3] See § 3 4 below.
[4] See § 3 6 below.
[5] Paizes in Du Toit et al Commentary 23-56 explains as follows: “Before Union each of the four colonies had its
own statutory provisions relating to the law of evidence. Certain sections of these colonial statutes attempted to
codify aspects of English law while other sections sought to incorporate, in undiluted form, the English law as it
governed various evidentiary topics. The effect of these provisions was that our law of evidence was governed in
large measure by the English law in both civil and criminal proceedings. The date of incorporation of that law,
however, varied from one colony to another.”
[6] Zeffertt & Paizes 8-9.
[7] O’Dowd The Law of Evidence in South Africa (1963) 3.
[8] Zeffertt & Paizes 8.
[9] Zeffertt & Paizes 10.
[10] 2014 (1) SACR 545 (CC) at [37] n 52.
[11] See §§ 25 2 and 25 2 2 below.
[12] See § 10 3 1 below.
[13] See § 11 1 below.
[14] See § 10 2 2 below.
[15] See § 6 2 1 below.
[16] See § 6 2 6 1 below.
[17] See also Van Wyk 1981 SACC 277-9.
[18] See also De Vos & Van der Merwe 1993 Stell LR 7 n 2.
[19] See ch 13 below.
[20] 1975 (4) SA 626 (W).
[21] Ex Parte Minister van Justisie: In Re S v Wagner 1965 (4) SA 507 (A) 513G. But cf §§ 3 5 1 to 3 5 3 below.
[22] See generally Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) 617; Naidoo v Marine & Trade
Insurance Co Ltd 1978 (3) SA 666 (A); Smit v Van Niekerk, NO en ’n Ander 1976 (4) SA 293 (A); A Sweidan and
King (Pty) Ltd and Others v Zim Israel Navigation Co Ltd 1986 (1) SA 515 (D). In the latter case counsel for the
applicants submitted that where the matter had never arisen before 30 May 1961 in the House of Lords, but was
after this date decided by it, this post 30 May 1961 decision was indeed binding upon South African courts because
the House of Lords would in so deciding have determined what the law has always been. For purpose of his judgment
Booysen J did not have to decide on the merits of this argument. But in 1986 ASSAL 485 Zeffertt responded as
follows to the aforementioned argument. “It is submitted that the argument advanced on behalf of the applicants
has, at best, a seductive and meretricious charm. It manipulates a fiction and, by so doing, achieves a result that
could never have been the intention of the legislature — it is unlikely that our staunchly republican Parliament
wished to leave our law of evidence in perpetual colonial servitude. The whole tenor of Van der Linde v Calitz is
against such an intention. The language of s 42 of the Civil Proceedings Evidence Act 1965 points to an intention to
‘freeze’ the law as it was on 30 May 1961. To maintain that that intention is defeated by an artificial jurisprudential
nicety, by a mere legal fiction, is specious when it most persuades, and spurious in its intended result . . . In my
submission, the primary question is: Were there relevant English decisions prior to 30 May 1961? If there were, they
are binding to the extent to which the Appellate Division (or the Privy Council before appeals to it were abolished)
considers them to be correct reflections of the English law (Van der Linde v Calitz). Since we do not have to apply
the English law of procedure in its entirety, but only that part which is evidentiary, a South African ‘practice’ which is
‘procedural’ rather than exclusively ‘evidentiary’ would also have to be followed.”
[23] See further § 22 2 below.
[24] 1991 (2) SACR 69 (C) 70h. See further § 22 11 2 below.
[25] See Ex Parte Minister of Justice: In Re Rex v Demingo and Others 1951 (1) SA 36 (A). In this case the AD
interpreted one of the forerunners of s 206 of the CPA.
[26] See s 240(1) of the CPA for an example where express provision is made for the admissibility of certain
evidence.
[27] See § 3 4 above.
[28] 1967 (2) SA 239 (A). See § 11 2 1 below for a discussion of this case.
[29] Zeffertt & Paizes 11.
[30] Davids 1967 SALJ 245; Kahn 1967 SALJ 327; Kerr 1965 SALJ 169.
[31] See § 3 7 below.
[32] See Schmidt & Rademeyer 18 as well as Schmidt & Rademeyer (2007) 1-21.
[33] Ex Parte Minister of Justice: In Re Rex v Pillay and Others 1945 AD 653.
[34] 1967 (2) SA 239 (A). See also Magmoed v Janse Van Rensburg and Others 1993 (1) SACR 67 (A) 105j-105h.
[35] Papenfus v Transvaal Board for the Development of Peri-Urban Areas 1969 (2) SA 66 (T) 69.
[36] R v Hendrickz 1933 TPD 451.
[37] See generally Hahlo & Kahn The South African Legal System and Its Background (1968) 259-60.
[38] Paizes in Du Toit et al Commentary 23-55.
[39] See generally Hahlo & Kahn The South African Legal System and Its Background (1968) 244.
[40] See, eg, s 35(1) of the Constitution.
[41] See generally Van der Merwe 1994 Obiter 22 23.
[42] Section 35(1)(a) of the Constitution.
[43] Section 35(3)(h) of the Constitution.
[44] Section 35(3)(j) of the Constitution.
[45] Section 35(3)(h) of the Constitution. See also § 30 9 below.
[46] See generally Van der Merwe 1994 Stell LR 243 257.
[47] Section 35(3)(i) of the Constitution.
[48] See § 12 9 3 below for the Constitutional Court’s broad analysis of the right to a fair trial.
[49] Section 35(2)(b) of the Constitution.
[50] Section 35(1)(a) of the Constitution.
[51] Paizes 1989 SALJ 472 478.
[52] S v Minnies and Another 1991 (1) SACR 355 (Nm) 370g-h. See also generally De Villiers 1998 TSAR 20 21.
Page 34
Chapter 4
The Law of Evidence and Substantive Law
E van der Berg and A Govindjee
4
4
4
4
4
4
1
2
3
4
5
6
Introduction
The Significance of the Distinction
The Burden of Proof
Irrebuttable Presumptions
Estoppel
Parol Evidence
461
The integration rule
462
Some exceptions
463
Rectification
464
The interpretation rule
4 1 Introduction
Substantive law is usually distinguished from adjective law (of which the law of evidence
forms a part) [1] on the basis that substantive law provides for rights and duties, whereas
adjective law provides the procedural mechanisms whereby those rights and duties are
enforced. [2]
The distinction is not as clear as it seems. [3] It is not only substantive law that creates
rights and duties. Adjective law also provides for rights and duties. One merely has to think
of the right of a party in a trial to cross-examine an opponent’s witnesses, [4] and the
numerous rights and duties provided for by the rules of court in civil matters, for example
the rules relating to the discovery of documents, [5] and the calling of expert witnesses. [6]
The question arises whether the distinction between substantive and adjective law has any
|practical relevance, or whether it is merely of academic interest. The answer is that
important consequences hinge upon this distinction.
Page 35
4 2 The Significance of the Distinction
In our law the distinction between substantive and adjective law is a necessary one. [7] The
historical development of our law resulted in our having Roman-Dutch law as our common
law, except, however, in the law of evidence, [8] wherein we follow English law. [9] The results
of following either Roman-Dutch law or following English law may be diametrically opposed.
No better illustration exists than that found in Tregea and Another v Godart and Another. [10]
This case concerned the burden of proof and is discussed in §§ 4 3 and 32 1 below.
Sonnekus points out another practical consequence of the characterisation of a principle or
rule as being either substantive or evidential. [11] In this instance characterisation has a
curious effect on the application of estoppel. [12] If estoppel is a rule of substantive law, [13]
viewed as a measure of preventing prejudice, and not an instrument of gain, the relief
afforded by estoppel should not extend beyond the actual damage suffered by the party
entitled to assert estoppel. If, however, the rule is one of evidence, [14] then, notwithstanding
the fact that the actual prejudice suffered by the representee does not extend to the full
amount in question, the representor, precluded from relying on the true facts, would be
unable to recover anything at all.
The dividing line between substantive law and the law of evidence is blurred by the fact
that some rules of substantive law result in the exclusion of evidence by the court, thus
causing the rule to appear to be one of evidence (the mistaken reasoning being that since it
results in the exclusion of evidence, the rule must be one of evidence). In this context the
so-called irrebuttable presumptions of law (see § 4 4 below) as well as estoppel (see § 4 5
below) and parol evidence (see §§ 4 6 to 4 6 4 below) will be discussed briefly in this
chapter.
4 3 The Burden of Proof
[15]
Views on the classification of the burden of proof vary from one extreme to the other. Some
hold that it is purely adjectival. Others maintain that it is substantive law. Even the view that
it falls in a grey area somewhere between substantive and adjective law has found support.
Page 36
As far as case law is concerned, Tregea and Another v Godart and Another [16] remains the
leading but doubtful authority. In this case the Appellate Division held that substantive law
lays down what has to be proved and by whom, and the rules of evidence relate to the
manner of its proof. It was also held that the burden of proof and rebuttable presumptions of
law are matters of substantive law.
The issue in this case was the validity of a will. The plaintiffs sought the rejection of the
will on the grounds that the testator did not have the mental capacity to execute a will. Much
depended upon who carried the burden of proof. If this question was regarded as one of
substantive law, Roman-Dutch law would apply, and the defendants would benefit by a
presumption that a will, regular on the face of it, is valid. If, on the other hand, the matter
was regulated by the law of evidence, and English law applied, the plaintiffs would have
been assisted by a rule that cast the burden of proof on the defendants to prove
testamentary capacity on the part of the testator. The question was held to be one of
substantive law, and Roman-Dutch law was followed. The burden of proof accordingly was
on the plaintiffs.
Schmidt & Rademeyer [17] are of the opinion that Tregea and Another v Godart and
Another was incorrectly decided. They point out that substantive law defines the rights and
duties of persons and thus determines the facta probanda. The burden of proof and the
rebuttable presumptions do nothing of the kind; they relate to the manner in which facts are
proved and therefore belong to the law of evidence.
Certainly the various elements that constitute a cause of action, or a crime, or a defence,
and thus the facta probanda, are requirements of substantive law; certainly, also, it is very
difficult to mention the burden of proof without reference to what has to be proved. That,
however, simply means that the burden pertains to the particular probanda. But it is for this
very reason that the law of evidence is called adjectival. It would be more accurate to say
that the incidence of the burden of proof is dependent upon, or varies according to,
substantive law, rather than that it is determined by substantive law. The existence of the
burden of proof, and its various consequences and qualifications, [18] must, however, be
ascribed to the law of evidence.
4 4 Irrebuttable Presumptions
[19]
Irrebuttable presumptions are not really presumptions in the true sense of the word; nor are
they rules of evidence. Irrebuttable presumptions are rules of
Page 37
substantive law, [20] directing a court to accept a situation as conclusively proved once
certain (other) basic facts have been proved. There was, for example, the common law rule
that a girl below the age of 12 is irrebuttably presumed to be incapable of consenting to
sexual intercourse. [21] This was just another way of saying that sexual intercourse with a girl
below the age of 12 amounts to rape, even if the girl had consented. [22] Once intercourse
with a girl below the age of 12 was proved (and these are the basic facts which the
prosecution had to prove) the court was obliged to conclude that there was no consent. [23]
On 16 December 2007 the above common-law approach was superseded by s 57(1) of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Section 57
(1) provides as follows: “Notwithstanding anything to the contrary in any law contained, a
male or female person under the age of 12 years is incapable of consenting to a sexual act.”
The matter is now correctly stated as a rule of substantive law. [24] It should be noted that
s 57(1) is gender-neutral and that “a sexual act” means an act of “sexual penetration” or an
act of “sexual violation” as defined in s 1(1) of Act 32 of 2007. Section 57(1) is therefore
much wider than the common-law rule which was confined to per vaginam penetration by a
male of a girl below the age of 12. [25]
There is also a so-called irrebuttable presumption of common law that an infans (a child
who has not yet completed his seventh year) is criminally and delictually non-responsible
(doli and culpae incapax). [26] The truth of the matter is that it is a rule of substantive law
that an infans can never be held liable in crime or delict. [27] Evidence to the contrary will not
be received because the court is required to accept — irrefutably — that an infans does not
possess sufficient mental ability to render him legally accountable. There are no exceptions
to the rule. If an infans is charged with fraud, the prosecution will not be permitted to lead
evidence that he or she is a genius and therefore had the necessary mental ability to
distinguish between right and wrong. Section 7 of the Child Justice Act 75 of 2008 amended
the common law pertaining to the criminal capacity of children under the age of 14 years so
that a child who commits an offence while under the age of 10 years does not have criminal
capacity and cannot be prosecuted for that offence. [28] A child who is 10 years or
Page 38
older but under the age of 14 years and who commits an offence is presumed to lack
criminal capacity, unless the State proves the contrary. [29] Proof beyond reasonable doubt is
required, and rebuttal may take place by way of direct or circumstantial evidence. [30]
The above rules are rules of substantive law [31] and stem from Roman-Dutch (and not
English) law. These rules — even though they clearly have some fictive content — are based
on policy and clearly aimed at protecting very young persons. But such protection can go too
far. The irrebuttable presumption of Roman-Dutch law that a male impubes [32] is presumed
to be incapable of sexual intercourse [33] was abolished in South Africa by s 1 of the Law of
Evidence and The Criminal Procedure Act Amendment Act 103 of 1987. [34]
4 5 Estoppel
Estoppel is a term of English law, derived from the same origin as the word “stop”. [35] It
denotes that a party is precluded (or estopped) from denying or asserting a particular
fact. [36] The doctrine of estoppel was introduced into South African law from English law on
the basis that it was analogous to, or accorded with, principles of Roman and Roman-Dutch
law. [37]
One comes across various expressions coupled with the term “estoppel”. Amongst these
are estoppel by record, by deed, by conduct, issue estoppel, estoppel in pais, equitable
estoppel, estoppel by silence, and estoppel by
Page 39
negligence. [38] Only the two forms of estoppel most common in South African law, namely
estoppel by representation (which covers most of the various aforementioned forms of
estoppel [39] ) and estoppel by judgment [40] will be considered below.
The term “estoppel” is generally used in South Africa to denote estoppel by
representation. [41] The doctrine applies where a person makes a representation to another,
who, believing in the truth thereof, acts thereon to his prejudice. The representor is then
precluded or estopped from denying the truth of the representation. [42]
Estoppel by judgment is more commonly known in South Africa as estoppel per rem
judicatam, exceptio rei judicatae or a plea of res judicata. [43] The expression signifies that a
matter has been finally adjudicated on by a competent court. It may then not be raised
again, if the action is between the same parties, for the same relief, upon the same
cause, [44] and provided further that the judgment was a final one on the merits of the
matter. [45]
The equivalent of the aforegoing in a criminal case would be a plea of autrefois convict or
acquit — that the accused has already been convicted or acquitted of the offence with which
he is now charged. [46] Again the charge must relate to the same or a substantially identical
offence and the verdict must have been pronounced by a competent court on (in the case of
autrefois acquit) the merits of the matter and not merely on an irregularity in the procedure.
Some authorities in both England and South Africa have described estoppel as a rule of
the law of evidence. [47] It is possible to express estoppel in the form of a rule that excludes
evidence: the representor may not adduce evidence at
Page 40
variance with his or her representation; [48] evidence may not be led in contradiction of a
judgment. [49] Estoppel has been expressed in the form of an irrebuttable presumption: a
judgment is presumed to be correct. [50]
Nowadays it is fairly generally accepted, at least in South Africa, that estoppel is more
correctly viewed as a rule of substantive law. [51] Proper analysis shows that estoppel by
representation is a doctrine which involves the making of a representation, action on the
faith thereof, resultant prejudice, and possibly fault; furthermore, it operates as a defence
which has to be pleaded. Such a doctrine cannot be looked upon as a rule of the law of
evidence. [52] Similarly the correct formulation of estoppel by judgment is by way of a rule
that the judgment of a court is final. Even if it is expressed as an irrebuttable presumption
as above, it must be borne in mind that such presumptions are merely rules of substantive
law couched in the form of presumptions. [53]
These rules of substantive law cause the particular evidence in contradiction of the
representation or judgment to become irrelevant and therefore, according to the law of
evidence, inadmissible. The evidence is not inadmissible because estoppel as a rule of
evidence prohibits such evidence; it is inadmissible because estoppel as a rule of substantive
law causes the evidence to be irrelevant. [54]
4 6 Parol Evidence
4 6 1 The integration rule
The parol [55] evidence rule provides that “where a jural act is incorporated in a document, it
is not generally permissible to adduce extrinsic evidence of its terms”. [56] “Extrinsic” refers
to evidence other than, or extraneous of, the document itself. [57] Closely connected with the
parol evidence rule is the “extrinsic evidence rule” that no evidence may be given to alter
the clear and unambiguous meaning of a contract, whether written or oral.
quoted [59] passage Wigmore [60] describes the rule as follows:
[58]
In an oft-
Page 41
“[The] process of embodying the terms of a jural act in a single memorial may be termed the
integration of the act, ie its formation from scattered parts into an integral documentary unity. The
practical consequence of this is that its scattered parts, in their former and inchoate shape, do not
have any jural effect; they are replaced by a single embodiment of the act. In other words: when a
jural act is embodied in a single memorial, all other utterances of the parties on that topic are legally
immaterial for the purposes of determining what are the terms of their act.”
From this derives a further name by which the rule is known: the integration rule.
[61]
It has been pointed out that extrinsic evidence can be applied to a document for two
different purposes: first, to show terms different to those contained in the document — in
other words, the inquiry is aimed at determining what the terms of a particular transaction
are; secondly, to show the meaning of the terms contained in the document — in issue is not
the content of the document, but the meaning thereof, as it stands. Accordingly, the
extrinsic evidence rule is said to comprise two distinct rules: the integration rule, which
applies to the former situation, and the interpretation rule, which applies to the latter. [62]
The parol evidence rule
evidence: [64]
[63]
is often couched in evidential terms, disguising it as a rule of
“[W]hen a contract has been reduced to writing, the writing is, in general, regarded as the exclusive
memorial of the transaction and in a suit between the parties no evidence to prove its terms may be
given save the document or secondary evidence of its contents, nor may the contents of such
document be contradicted, altered, added to or varied by parol evidence.”
The rule has accordingly been viewed as one of evidence [65] and was received into South
African law on the assumption that it forms part of the English law of evidence, so that
English precedents are followed. [66]
On proper analysis it becomes clear that the rule is one of substantive law. The rule
relates to the nature and scope of a jural act, and not merely the admissibility of evidence.
Certainly the distinction is a fine one and not as apparent as for instance in the case of
estoppel. This is so especially since even the leading authors who hold the view that the
parol evidence rule is one of substantive law explain that view with reference to the source
from which the
Page 42
terms of the act are determined. [67] Considering the document merely as a source of
information concerning the terms of a contract makes it very difficult not to regard that
document as being merely the only admissible evidence, all other evidence being
inadmissible (and the whole matter thus being a matter of evidence and admissibility).
If one were rather to think in terms of the document constituting the jural act, [68] then it
would follow that whatever other actions [69] of the parties may have accompanied the jural
act, as a matter of substantive law, simply form no part thereof. That being so, any such
actions are irrelevant to the act, and consequently inadmissible as a matter of evidence. This
approach is reflected in De Klerk v Old Mutual Insurance Co Ltd: [70]
“[W]here a contract has been reduced to writing, the written document is regarded as the sole
memorial of the transaction and deprives all previous inconsistent statements of their legal effect. The
document becomes conclusive of the terms of the transaction which it was intended to record. The
result is that previous statements by the parties on the subject can have no legal consequences and
are accordingly irrelevant and evidence to prove them is inadmissible.”
The view that the matter is one of substantive law has found some acceptance in South
African case law. [71] As a matter of practicality, however, it must be accepted that English
precedent has become so entrenched in South African law that it must now be regarded as
an ineradicable part thereof. A return to Roman-Dutch sources is unlikely. [72]
Although contracts are generally the kind of written instrument which most frequently
form the subject of debate concerning parol evidence, the rule is applicable also to other
written jural acts such as wills, [73] negotiable instruments, [74] and court orders. [75]
4 6 2 Some exceptions
There are several qualifications and exceptions to the general rule excluding parol
evidence. [76] Some of these are not truly exceptions, but rather instances which fall outside
the scope of the rule. [77]
Page 43
Where, for instance, a written contract is not intended to cover the terms of the
transaction all-inclusively, evidence of further oral terms is not precluded. [78] The rule does
not apply to a document which contains a mere narration of an event, and which does not
constitute a jural act; [79] nor does the rule exclude evidence which throws light on the true
nature of a transaction referred to in a written document, [80] or to identify an illegible
signature or to determine the capacity of a signatory, even where the law requires the
agreement to be in writing. [81]
Extrinsic evidence is admissible to determine the validity of a transaction: it may be
shown by oral evidence that a contract is void for fraud, mistake, illegality, impossibility or
lack of consensus. [82] However, where writing is required by law, evidence cannot be
produced of oral terms not included in the written document in order to invalidate the
transaction through non-compliance with the requirement of writing; the correct avenue is to
apply for rectification of the written agreement. [83]
The parol evidence rule applies to transactions reduced to writing, whether it be done at
the instance of the parties, or because the law requires it. [84] The distinction may, however,
have an effect on the admissibility of parol evidence. Parol evidence may, for instance, be
admissible of a collateral agreement and additional terms [85] and subsequent oral
variations, [86] but not where writing is a requirement of law, and such evidence seeks to
contradict the written instrument. [87] A similar result arises where the contract contains a
clause to the effect that no variation or rescission of the contract shall be valid unless it is
reduced to writing. [88] But that, of course, is not due to the operation of the parol evidence
rule. Curiously, even contracts that are required by law to be in writing can be cancelled
orally. [89]
Page 44
Suspensive conditions (or conditions precedent) which suspend the operation of a contract
may be proved by parol evidence, but not if the condition forms an integral part of the
agreement. [90]
4 6 3 Rectification
The parol evidence rule notwithstanding, and in order to effect the rectification of the written
document, extrinsic evidence is admissible to show that the document does not correctly
reflect the consensus between the parties. [91] The document is made to conform with the
jural act that underlies it: “[A]ll the Court does is to allow to be put in writing what both
parties intended to put in writing and erroneously thought they had.” [92] It is only logical
that the law should not hold parties to a document which purports to reflect an agreement,
when the document does not in fact do so. [93]
In Standard Bank of SA Ltd v Cohen (1) [94] the plaintiff sued the defendant on two written
suretyship agreements. In terms of these agreements the defendant bound himself as surety
and co-principal debtor for the indebtedness of a certain company. The defendant wished to
adduce evidence of two terms orally agreed upon prior to the execution of the written
agreements. The oral terms provided that the plaintiff would not extend credit to the
company beyond a certain limit and that no money would be advanced until the defendant
had arranged a cession of the book debts of the company to himself. The object hereof was
to protect the defendant. The deeds of suretyship were by law required to be in writing. [95]
The agreements further contained a clause which provided that the deeds set out the entire
agreement between the parties and that the plaintiff would not be bound by any term not
recorded therein.
The court held that the defendant could not rely on the oral terms, since evidence thereof
would be contrary to the parol evidence rule; in any event, they were not in writing as
required by the statute. Nor could evidence thereof be adduced as a basis for the argument
that the deeds were invalid for failure to include material clauses therein. The two written
documents contained all the essential terms to constitute valid suretyships. Ex facie the
documents
Page 45
complied with the statutory requirements for validity. Evidence of the oral terms was thus
irrelevant and inadmissible, unless it was presented for the purposes of rectification.
In a second judgment, [96] upon a plea of rectification by the defendant, the court found
on the evidence that the two oral terms alleged by the defendant had in fact been agreed
upon. The clause recording that the written deed set out the whole agreement between the
parties did not constitute a bar to rectification — that right could only be excluded in explicit
terms. [97] The plea of rectification therefore succeeded, and the matter had to be
adjudicated on the basis of the written agreements as they stood to be corrected.
In Philmatt (Pty) Ltd v Mosselbank Developments CC [98] an oral suspensive condition was
the subject of dispute. Rectification was not possible as the appellant was an innocent third
party. The court did not find it necessary to decide whether evidence of the condition was
admissible by way of exception to the parol evidence rule. Instead, it held that evidence
thereof was admissible to establish the existence of a material term not incorporated in the
deed of sale in order to show that the deed of sale did not constitute a valid deed in terms of
s 2(1) of the Alienation of Land Act 68 of 1981. [99]
The parol evidence rule does not exclude evidence of a prior oral agreement or a common
continuing intention where a party claims rectification. [100]
4 6 4 The interpretation rule
If the first aspect of parol evidence, the integration rule, does not truly form part of the law
of evidence, then the second aspect, the interpretation rule, does even less so. [101]
[1] See § 1 1 above.
[2] Schmidt & Rademeyer (2014) 1-6.
[3] Schmidt & Rademeyer (2014) 1-7; Zeffertt 1990 SALJ 579; Universal City Studios Inc and Others v Network
Video (Pty) Ltd 1986 (2) SA 734 (A) at 754I; Sheriff of Cape Town v Mt Argun, her owners and all persons interested
in her and Others [2001] 4 All SA 302 (A) at [17].
[4] See § 18 6 below.
[5] Rule 35 of the Uniform Rules of Court; rule 23 of the Magistrates’ Courts Rules.
[6] Rule 36(9) of the Uniform Rules of Court; rule 24(9) of the Magistrates’ Courts Rules; see also § 8 7 below.
[7] In Botes v Van Deventer 1966 (3) SA 182 (A) it was held, eg, that the law of evidence determines that a
vicarious admission is admissible if an identity of interest (see § 16 5 3 below) exists between a declarant and a
party, but that the issue whether such identity exists is determined by substantive law (ie Roman-Dutch law). See
generally Schmidt & Rademeyer (2014) 1-7.
[8] This is not to say that it is the only exception.
[9] See chs 1 and 3 above.
[10] 1939 AD 16.
[11] Sonnekus The Law of Estoppel in South Africa 3 ed (2012) 24, 215-217.
[12] See § 4 5 below.
[13] What Sonnekus Estoppel 214 et seq refers to as the American approach.
[14] The English approach; Sonnekus Estoppel 214 et seq.
[15] The rules and principles which govern the incidence of the burden of proof are discussed in chs 31 and 32
below.
[16] 1939 AD 16. See also §§ 28 4 and 32 2 below. See further S v Baloyi 2000 (1) SACR 81 (CC) at [29].
[17] At 1-12. It seems increasingly unlikely, however, that the courts will abandon their current approach. See for
instance During NO v Boesak and Another 1990 (3) SA 661 (A) 672H; Eskom v First National Bank of SA Ltd 1995
(2) SA 386 (A) 390G and Woerman and Schutte NNO v Masondo and Others 2002 (1) SA 811 (SCA).
[18] See chs 31 and 32 below.
[19] The traditional classification of presumptions is discussed in §§ 28 3 to 28 3 3 below.
[20] Scagell and Others v Attorney-General of the Western Cape and Others 1997 (2) SA 368 (CC); 1996 (2)
SACR 579 (CC). Also see Zeffertt & Paizes The South African Law of Evidence 2 ed (2009) 182.
[21] Socout Ally v R 1907 TS 336 339.
[22] See generally Rex v M and Another 1950 (4) SA 101 (T) 102.
[23] This rule operated only if the girl’s actual age was below 12 (Mostert v S 1973 2 PH H67 (C)).
[24] Similarly, s 57(2) of this Act states that a person who is mentally disabled is incapable of consenting to a
sexual act.
[25] See in general in this regard Teddy Bear Clinic for Abused Children and Another v Minister of Justice and
Constitutional Development and Another 2014 (2) SA 168 (CC).
[26] R v Lourie (1892) 9 SC 432 at 434. Also see S v Gk 2013 (2) SACR 505 (WCC) at [58].
[27] Attorney-General Transvaal v Additional Magistrate for Johannesburg 1924 AD 421.
[28] S v TS 2015 (1) SACR 489 (WCC). See also generally Karels & Pienaar 2015 Obiter 57; Skelton (2013) 26
SACJ 257; Walker (2011) 24 SACJ 33. In terms of s 8 of the Child Justice Act 75 of 2008, and in order to determine
whether or not this minimum age of criminal capacity should be raised, the Cabinet member responsible for the
administration of justice must submit a report to Parliament not later than five years after the commencement of this
section. See in general in this regard A Skelton “Proposals for the review of the minimum age of criminal
responsibility”, available at
http://repository.up.ac.za/xmlui/bitstream/handle/2263/40378/Skelton_Proposals_2013.pdf?
sequence=1&isAllowed=y accessed on 13 April 2015. As an aside, the authors find it odd that “children” between the
age of 18 and 21 now appear to reach intellectual maturity earlier than before, since the age of majority has been
lowered from 21 to 18: see s 28 of the Constitution, which confirms that “child” means a person under the age of 18
years for purposes of s 28 and see ss 1 and 17 of the Children’s Act 38 of 2005, defining a child to mean a person
under the age of 18 years and confirming that a child, whether male or female, becomes a major upon reaching the
age of 18 years. Yet, in regard to children between the ages of 7 and 10, the new rule appears to suppose that the
development of children between the ages of 7 and 10 has slowed down.
[29] On the requirement that the prosecution is still required, for example, to rebut this presumption of criminal
incapacity, see S v M and Another 1979 (4) SA 564 (B). Also see S v Gk 2013 (2) SACR 505 (WCC) at [58-59].
[30] See R v K 1956 (3) SA 353 (A) 359E and R v Ndenxa 1919 EDL 199 200. It was generally accepted that it
would be difficult to rebut this presumption where the impubes had barely progressed beyond the age of the infans
and that rebuttal would be easier where the impubes was nearly 14 at the time of the incident: see R v Nhamo 1956
1 PH H28 (SR) and R v K 1956 (3) SA 353 (A) 358D-E. Also see s 11 of the Child Justice Act 75 of 2008.
[31] Formulated as rules of substantive law, the absurdity of terminology and contents is removed: a person under
the age of 10 years lacks criminal and delictual capacity; the consent of a child below the age of 12 does not
constitute lawful consent for the purposes of a defence to a charge of rape. See also Zeffertt & Paizes 182 and
Schmidt & Rademeyer (2014) 5-4. See further § 28 3 1 below.
[32] An impubes is a child who is no longer an infans but who has not attained the age of 14.
[33] See generally The State v A 1962 (4) SA 679 (E) as discussed by Schmidt 1963 THRHR 139 for the absurd
results caused by this presumption.
[34] This section is quoted in § 28 3 1 below.
[35] Schmidt & Rademeyer (2014) 1-8.
[36] Schmidt & Rademeyer (2014) 1-8.
[37] Schmidt & Rademeyer (2014) 1-8. Sonnekus Estoppel 51-52.
[38] See generally Sonnekus Estoppel 10-15.
[39] Sonnekus Estoppel 10.
[40] Also called estoppel by record — see Sonnekus Estoppel 26.
[41] Sonnekus Estoppel 10.
[42] Sonnekus Estoppel 2.
[43] Sonnekus Estoppel 25; Schmidt & Rademeyer (2014) 1-8.
[44] In Kommissaris Van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) it was decided that the
strict requirements for a plea of res judicata (relating to the same cause of action and that the same thing be
claimed) must not be understood in a literal sense and as immutable rules; there is room for their adaptation and
extension based on the underlying requirement that the same thing is in issue as well as the reason for the existence
of the plea. Also see Smith v Porritt and Others 2008 (6) SA 303 (SCA). This was recently confirmed in Caesarstone
Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA).
[45] See generally Man Truck & Bus (SA) (Pty) Ltd v Dusbus Leasing CC and Others 2004 (1) SA 454 (W); Consol
Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another (2) 2005 (6) SA 23 (C); Janse Van Rensburg and
Others NNO v Steenkamp and Another; Janse Van Rensburg and Others NNO v Myburgh and Others 2010 (1) SA 649
(SCA).
[46] Section 106(1)(c) and (d) of the CPA; see generally Van der Merwe in Du Toit et al Commentary 15-28 et
seq. See also s 35(3)(m) of the Constitution.
[47] Sonnekus Estoppel 21-23.
[48] Sonnekus Estoppel 3.
[49] Schmidt & Rademeyer (2014) 1-8.
[50] Schmidt & Rademeyer (2014) 1-8. It seems to have been the fashion in earlier days to turn to fictions and
presumptions for lack of a more scientific construction.
[51] Sonnekus Estoppel 23; Schmidt & Rademeyer (2014) 1-9.
[52] Sonnekus Estoppel 23; Schmidt & Rademeyer (2014) 1-8; 1-9.
[53] See § 4 4 above; Schmidt & Rademeyer (2014) 1-10; 1-11; 5-3 – 5-4.
[54] “Relevance” is discussed in ch 5 below. See especially § 5 3 below.
[55] Cf “parol. . .given orally; (of a document) not given under seal; oral declaration”; cf “parole. . .the release of
a prisoner. . .on the promise of good behaviour; a word of honour”: The Concise Oxford Dictionary 9 ed (1995).
[56] Van Rensburg, Lotz and van Rhijn “Contract” in Joubert LAWSA 3 ed (2015) para 345; Purchase v De
Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W) 283I-J. See in general KPMG Chartered
Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) [39] cited with approval in KPMG Chartered
Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA).
[57] Howard et al Phipson on Evidence 1020.
[58] See KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA).
[59] National Board (Pretoria) (Pty) Ltd and Another v Estate Swanepoel 1975 (3) SA 16 (A) 26C; Standard Bank
of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849E.
[60] Wigmore para 2425.
[61] See also Johnston v Leal 1980 (3) SA 927 (A); Venter v Birchholtz 1972 (1) SA 276 (A); Standard Bank of SA
Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849B-C; De Klerk v Old Mutual Insurance Co Ltd 1990 (3) SA 34 (E); Philmatt
(Pty) Ltd v Mosselbank Developments CC 1996 (2) SA 15 (A) [10]; also see Fedbond Participation Mortgage Bond
Managers (Pty) Ltd v Investec Employee Benefits Ltd and Others [2010] 4 All SA 467 (SCA) [14].
[62] Johnston v Leal 1980 (3) SA 927 (A); see generally Christie & Bradfield The Law of Contract in South Africa 6
ed (2011) 212-213. We shall return to the matter of interpretation below.
[63] The name of the rule does not make things any easier either — calling it the integration rule has the merit of
placing the emphasis where it should be, on the substantive aspect of the matter.
[64] Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 47; Purchase v De Huizemark
Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W) 283I-J.
[65] See for instance Avis v Verseput 1943 AD 331; Cassiem v Standard Bank of South Africa Ltd 1930 AD 366.
[66] See for instance Cassiem v Standard Bank of South Africa Ltd 1930 AD 366; Christie & Bradfield The Law of
Contract in South Africa 200-201.
[67] See Zeffertt & Paizes 346: “[T]he document is conclusive as to the terms of the transaction. . .”; Schmidt &
Rademeyer (2014) 1-9; 11-21.
[68] Whether because it is so required by the law, or because the parties have so agreed or intended it.
[69] Whether it be oral or documentary communications, or other conduct.
[70] 1990 (3) SA 34 (E) 39D-E (our emphasis).
[71] See for instance Slabbert, Verster & Malherbe (Bloemfontein) Bpk v De Wet 1963 (1) SA 835 (O); Schroeder
v Vakansieburo (Edms) Bpk 1970 (3) SA 240 (T); Venter v Birchholtz 1972 (1) SA 276 (A).
[72] Zeffertt & Paizes 345.
[73] Moskowitz and Another v the Master and Others 1976 (1) SA 22 (C).
[74] Cassiem v Standard Bank of South Africa Ltd 1930 AD 366; also see Barclays National Bank Ltd v Serfontein
1981 (3) SA 244 (W).
[75] Postmasburg Motors (Edms) Bpk v Peens en Andere 1970 (2) SA 35 (NC). For application of the parol
evidence rule in respect of a document recording an arbitrator’s award, see Pretoria City Council v Buchanan and
Another 1952 (1) SA 236 (T). For application of the rule in the context of unlawful road transportation without a
permit, see S v Ngesi 1986 (2) SA 244 (E).
[76] See generally Zeffertt & Paizes 346 et seq; Christie & Bradfield The Law of Contract in South Africa 200 et
seq.
[77] See, for example, Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA).
[78] Johnston v Leal 1980 (3) SA 927 (A) at 944B-C.
[79] Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W).
[80] Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W); Moodley v
Moodley and Another 1991 (1) SA 358 (D).
[81] S A I Investments v Van der Schyff NO and Others 1999 (3) SA 340 (N).
[82] Kok v Osborne and Another 1993 (4) SA 788 (SE); see also AXZS Industries v A F Dreyer (Pty) Ltd and
Others 2004 (4) SA 186 (W). Regarding third parties, see Swart v Janse van Rensburg and Another (688/06) [2008]
ZASCA 2 (29 February 2008).
[83] Standard Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE); Standard Bank of SA Ltd v Cohen (2) 1993 (3)
SA 854 (SE). See, however, Philmatt (Pty) Ltd v Mosselbank Developments CC 1996 (2) SA 15 (A), as discussed in
§ 4 6 3 below.
[84] As for instance in the case of the Alienation of Land Act 68 of 1981.
[85] Avis v Verseput 1943 AD 331; Veenstra v Collins 1938 TPD 458; Du Plessis v Nel 1952 (1) SA 513 (A).
[86] Venter v Birchholtz 1972 (1) SA 276 (A); Johnston v Leal 1980 (3) SA 927 (A); De Klerk v Old Mutual
Insurance Co Ltd 1990 (3) SA 34 (E).
[87] Du Plessis v Nel 1952 (1) SA 513 (A); Venter v Birchholtz 1972 (1) SA 276 (A); Johnston v Leal 1980 (3) SA
927 (A); but also see Industrial Development Corporation of SA (Pty) Ltd v Silver 2003 (1) SA 365 (SCA).
[88] Pelser v Smith 1979 (3) SA 687 (T).
[89] Le Grange v Pretorius 1943 TPD 223; but evidence of a prior or contemporaneous oral agreement of a term
whereby the written agreement which had been implemented would fall away, is excluded (Sealed Africa (Pty) Ltd v
Kelly and Another 2006 (3) SA 65 (W)).
[90] Stiglingh v Theron 1907 TS 998; Thiart v Kraukamp 1967 (3) SA 219 (T); see, however, Zeffertt & Paizes
360-363 for an analysis of the difficulties in respect of such conditions.
[91] See Weinerlein v Goch Buildings Ltd 1925 AD 282; Benjamin v Gurewitz 1973 (1) SA 418 (A) and Meyer v
Merchants’ Trust Ltd 1942 AD 244.
[92] Weinerlein v Goch Buildings Ltd 1925 AD 282. Also see Ebrahim v Georgoulas 1992 (2) SA 151 (B) 153D-H.
For a contrary view on whether rectification is possible in circumstances where a document fails to comply with
statutory requirements, see Dowdle’s Estate v Dowdle and Others 1947 (3) SA 340 (T) and Kourie v Bean 1949 (2)
SA 567 (T). See generally Christie & Bradfield The Law of Contract in South Africa 343-349.
[93] “What is rectified is not the contract itself as a juristic act, but the document . . .”: Van der Merwe et al
Contract: General Principles 4 ed (2012) 153; “All that is to be done is, upon proper proof, to correct the mistake, so
as to reproduce in writing the real agreement between the parties”: Weinerlein v Goch Buildings Ltd 1925 AD 282
290. See Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA); [1999] 4 All SA 396 (A)
[16] and Martin Johnson Properties CC v Mutual and Federal Insurance Co Ltd [2010] 1 All SA 495 (KZP) [169]. See
also Christie & Bradfield The Law of Contract in South Africa 119.
[94] 1993 (3) SA 846 (SE).
[95] Section 6 of the General Law Amendment Act 50 of 1956.
[96] Standard Bank of SA Ltd v Cohen (2) 1993 (3) SA 854 (SE).
[97] Rectification, in other words, cannot be excluded by a clause in a contract except in clear and explicit terms. A
clause prohibiting variation or amendment or insertion is insufficient: Leyland (SA) (Pty) Ltd v Rex Evans Motors
(Pty) Ltd 1980 (4) SA 271 (W); Jarrosson Estates (Edms) Bpk v Oosthuizen 1985 (3) SA 550 (NC).
[98] 1996 (2) SA 15 (A).
[99] Also see Johnston v Leal 1980 (3) SA 927 (A) and Fraser and Another v Viljoen 2008 (4) SA 106 (SCA).
[100] Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA); [1999] 4 All SA 396 (A);
AXZS Industries v A F Dreyer (Pty) Ltd and Others 2004 (4) SA 186 (W).
[101] Zeffertt & Paizes 369 “The construction of documents is a subject so remote from the law of evidence. . .”
See further Christie & Bradfield The Law of Contract in South Africa 199 et seq for a discussion of contractual
interpretation.
Page 47
Section B
The Admissibility of Relevant Evidence
5
Relevance and Admissibility –S E van der Merwe
6
Character Evidence –P J Schwikkard
7
Similar Fact Evidence –P J Schwikkard
8
Opinion Evidence –E van der Berg and S E van der Merwe
9
Previous Consistent Statements –S E van der Merwe
Page 49
Chapter 5
Relevance and Admissibility
S E van der Merwe
51
52
53
54
Introduction
Rationale for the Exclusion of Irrelevant Evidence
The Meaning of Relevance and the Determination of Relevance
531
The issues (as the essential point of departure)
532
Reasonable or proper inference: assessing the potential weight of the
evidence
533
Avoiding a proliferation or multiplicity of collateral issues
534
The risk of manufactured evidence
535
Prejudicial effect
536
The doctrine of precedent
537
The principle of completeness
538
Constitutional imperatives and the position of the accused
Proposals of the South African Law Reform Commission
5 1 Introduction
Section 210 of the CPA provides that no evidence as to any fact, matter or thing shall be
admissible if irrelevant or immaterial and if it cannot conduce to prove or disprove any point
or fact at issue in criminal proceedings. Section 2 of the CPEA contains a substantially similar
provision. These sections serve as statutory confirmation of our common law and state the
rule in its negative form: irrelevant evidence is inadmissible. Courts, however, are inclined to
state the rule in its positive form: “[A]ll facts relevant to the issue in legal proceedings may
be proved.” [1]
The present chapter serves as an introduction to chapters 6–9, which respectively deal
with character evidence, similar fact evidence, opinion evidence, and evidence of previous
consistent statements. These four chapters are all directly concerned with the application of
the rule that irrelevant evidence is inadmissible (or, to put it differently, that relevant
evidence
admissible). However, not all relevant evidence is necessarily admissible:
|“The . . . isrule
. . . is that any evidence which is relevant is admissible unless there is some
other rule of evidence which excludes it.” [2] Evidence — even if highly relevant and even if it
happens to be the only available evidence — must be excluded where, for example, it is
privileged. [3] Relevant evidence obtained in breach of constitutional rights may also be
excluded. [4] Relevance is therefore not the sole test for admissibility. Certain rules of
exclusion (which are largely discussed in
Page 50
chapters 10–17) also come into play. The law of evidence does not allow untrammelled
access to all relevant evidence. [5]
5 2 Rationale for the Exclusion of Irrelevant Evidence
Murphy states:
[6]
“Because the purpose of evidence is [to] establish the probability of the facts upon which the success
of a party’s case depends in law, evidence must be confined to the proof of facts which are required
for that purpose. The proof of supernumerary or unrelated facts will not assist the court, and may in
certain cases prejudice the court against a party, while having no probative value on the issues
actually before it.”
To this can be added considerations of time, costs and inconvenience; the limitations of the
human mind; [7] the undesirability of a court being called upon to adjudicate matters which
are not related to the litigation at hand; the risk that the real issues might become clouded;
and, further, the obvious consideration that a party against whom irrelevant evidence is
adduced may find himself in a position where it could be difficult to defend himself. This last
consideration is of special importance to the criminally accused, who enjoy a constitutionally
guaranteed right to a fair trial.
The presiding judicial officer and the parties involved should ensure that irrelevancies are
not introduced. [8]
5 3 The Meaning of Relevance and the Determination of
Relevance
Relevance is a matter of degree [9] and is certainly easier to identify in practice than to
describe in the abstract. But the following may be useful:
(a) Stephen provides the following classical formulation: [10]
(b)
“The word ‘relevant’ means that any two facts to which it is applied are so related to each other
that according to the common course of events one either taken by itself or in connection with
other facts proves or renders probable the past, present, or future existence or non-existence of
the other.”
Rule 401 of the Federal Rules of Evidence of the United States of America defines
relevant evidence as follows:
“Evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”
Page 51
(c)
(d)
Van Wyk has put forward the following:
[11]
“[G]etuienis [is] relevant . . . wanneer dit oor die vermoë beskik, hetsy alleenstaande of tesame
met ander bewysmateriaal, om die bestaan van ’n feit in geskil, direk of indirek, meer of minder
waarskynlik te maak.”
In DPP v Kilbourne Lord Simon said:
[12]
“Evidence is relevant if it is logically probative or disprobative of some matter which requires
proof. I do not propose to analyse what is involved in ‘logical probativeness’ except to note that
the term does not of itself express the element of experience which is so significant of its
operation in law, and possibly elsewhere. It is sufficient to say . . . that relevant evidence, ie
logically probative or disprobative evidence, is evidence which makes the matter which requires
proof more or less probable.”
It would be wrong to accept or assume that evidence is admissible simply because of its
logical relevance. “Logical relevance”, states McEwan (correctly, it is submitted), “is a sine
qua non of admissibility; but it cannot guarantee that the evidence will be admitted; in fact,
on its own it is far from sufficient.” [13] What, then, are the precise factors and considerations
which place a check on the admissibility of all evidence which is logically probative or
disprobative?
5 3 1 The issues (as the essential point of departure)
Relevance (and therefore admissibility) cannot be decided in a vacuum. In S v Zuma Van der
Merwe J said: “[T]he question of relevancy can never be divorced from the facts of a
particular case before court.” [14] The nature and extent of the factual and legal dispute must
be considered. In Lloyd v Powell Duffryn Steam Coal Co Ltd it was said that the very first
question that must be asked in deciding admissibility is: “What are the issues?” [15] The term
“relevance” finds concrete application not only in the light of the primary facta probanda but
also the secondary facta probanda (the facta probantia which are in dispute). In S v Mayo
and Another Jones J held as follows: [16]
“It is not in the interests of justice that relevant material should be excluded from the Court, whether
it is relevant to the issue or to issues which are themselves relevant to the issue but strictly speaking
not in issue themselves, and this includes the credibility of witnesses, provided that the question of
their credibility is in some way related to the issues or matter relevant to the issues . . . There
remains the question of relevance. I am not satisfied on the information which is presently before me
that the pocket book in question is relevant to any of the issues in this case. It is certainly not
relevant to the main issues. Their contents do not appear to me to be relevant to issues which are
relevant to those issues and they are not presently at any rate even relevant to credibility because it
has not anywhere been suggested that the witness has said anything which will be contradicted by
accused No 1, in so far as the content of his pocket book is concerned. It is not in the interest of
justice that irrelevant information should be made available to the defence and used for the purposes
of cross-examination, because justice requires that there be an end to cross-examination and that
only relevant matter should in fact be canvassed. It seems to me therefore, that, in so far as the issue
of relevance is concerned, the application should fail and I should rule against the applicant at this
stage.”
Page 52
In R v Solomons [17] it was held that, subject to considerations of prejudice, a ruling on the
admissibility of evidence could at a later stage be reversed in the light of new factual issues
which might come to light during the course of the trial. Decisions on the admissibility of
evidence are interlocutory and may therefore be re-assessed in the light of new facts.
5 3 2 Reasonable or proper inference: assessing the potential weight of
the evidence
“[F]acts”, it was said in Rex v Mpanza, [18] “are . . . relevant if from their existence
inferences may properly be drawn as to the existence of a fact in dispute.” In Rex v
Trupedo [19] it was held that no proper inference could be drawn from the behaviour of a
police dog in its identification of a suspect. The evidence was rightly excluded as being
irrelevant. [20]
Almost seven decades after the decision in Trupedo the Appellate Division again came to a
similar conclusion in S v Shabalala, [21] where Nestadt JA also pointed out that if the weight
of the evidence “is so inconsequential and the
Page 53
relevance accordingly so problematical, there can be little point in receiving the
evidence . . .” [22] of identification by a police dog trained for purposes of identifying suspects
by scenting.
There was also no proof “that an individual has, as far as dogs are concerned, a scent
peculiar to himself”. [23] The evidence was excluded.
In order to determine whether a reasonable or proper inference might eventually be
possible the court must make a provisional or tentative assessment of the potential weight
of the evidence sought to be adduced. There must at least be some advance indication that
the evidence, if received, would be of reasonable assistance to the court in the exercise of its
ultimate fact-finding duty. Zuckerman explains that where the relevance or irrelevance of
evidence is the issue and potential probative weight must be assessed, [24]
“[t]he judge is not concerned to estimate the final weight of any piece of evidence. At the
admissibility stage he is only concerned to make a rough and ready estimate of the potential
contribution that the evidence in question might make and whether it is substantial enough to justify
admission. The admissibility test is therefore a composite test made of a mesh of considerations of
logical probabilities and of practical utility . . . On some occasions the potential contribution of the
evidence adduced will be immediately apparent; for example, the testimony of an eyewitness to the
disputed event. At other times its potential will only emerge from a juxtaposition of the evidence in
question and other pieces of known facts. If upon the presentation of an individual piece of evidence
the judge is in doubt about its relevance, he will ask the party offering it how it relates to the rest of
the evidence he plans to adduce. If a publican claims that the brewer supplied him with bad beer,
then the fact that the same brewer supplied another pub with bad beer might not be of sufficient
weight to be admissible. But it would become sufficiently weighty if it is also shown that it is one of
five incidents of supply of bad beer by the same brewer in the same neighbourhood within the space
of a day.”
Obviously, the court’s initial assessment of the potential weight of the evidence is done for
purposes of determining admissibility; and such evidence as may be admitted must
ultimately at the end of the trial be re-assessed in the light of all the other evidence for
purposes of determining sufficiency, that is, whether the required and applicable standard of
proof has been attained.
5 3 3 Avoiding a proliferation or multiplicity of collateral issues
There is a “desire to avoid waste of time in probative exertions more or less off the bull’s eye
of litigation”. [25]
In determining the relevance of evidence the court should of necessity also consider the
following question: would the admission of the evidence lead to a
Page 54
protracted investigation into many collateral or side-issues which — once determined —
would be of little probative value as regards the true issues? A proliferation of side-issues
can, for example, arise where a court decides to admit evidence of the results of a polygraph
test (a lie-detector test). [26] Was the polygraphist competent? Was he an expert in this fairly
novel “technique” of determining credibility? Were appropriate questions asked during the
session? Did the machine function properly? How reliable is the final result? Once all these
subsidiary issues — and a host of other related but collateral issues — have been determined
the court may merely end up with the following fairly useless result: the opinion of someone
else that the witness concerned is truthful or untruthful according to a test which has as yet
not received universal or broad acceptance in the scientific world. There is a real risk that
the drawn-out and time-consuming investigation of collateral issues would not justify the
final result. The game is not worth the candle. At any rate, it is the duty of the court to make
findings of credibility wherever necessary. [27]
In S v Nel [28] Marais J agreed with the trial court’s refusal to allow an accused to lead
psychiatric evidence. The purpose of this proposed evidence was to show that a defence
witness who in her testimony had contradicted aspects of the accused’s testimony was
“mildly to moderately retarded” and therefore likely to “clamp up” under the strain of
testifying in court. Marais J — following R v Turner [29] and distinguishing S v Thurston en ’n
Ander, [30] Lowery v The Queen [31] and Toohey v Metropolitan Police Commissioner [32] —
remarked as follows: [33]
Page 55
“Differences in intelligence, ability to recall, ability to articulate, and the like are commonplace and
courts are well aware that they exist. The ad hoc assessments of such matters which courts make as
part of the daily round of hearing witnesses testify are an integral and prominent part of the judicial
function. Deficiencies in any of these abilities are not likely to remain hidden or obscured if the
questioning of the witness is thorough, as it should be. Once the door is opened to evidence of this
kind when is it to be shut? If a witness happens to have undergone an intelligence test and it shows
the witness to be of high or low intelligence, is it to be received? Are school teachers or university
dons to be called to say whether or not a witness was stupid or clever when at school or university?
Or that he had a particularly good or poor memory. Is a distinction to be drawn between such
witnesses and a professional psychiatrist or psychologist because of the latter’s expertise in matters of
the mind? The questions are rhetorical but they show, I think, that this is an evidential Pandora’s box
which we are being invited to open . . . All of this has of course nothing to do with the entirely
different question of whether psychiatric evidence may be led to show that a witness is insane and
therefore incompetent to testify. Different considerations apply there. I do not think there is any real
analogy between cases of physical affliction which adversely affect the capacity of a witness to testify
accurately and reliably and intellectual and psychological disabilities of a relatively normal kind. A
court cannot tell merely by looking at and listening to a witness that he is so shortsighted that he
could not possibly have identified correctly a person who was 100 metres away at the time. Evidence
to establish that he is shortsighted should obviously be admissible. But intellectual and psychological
disabilities affecting personality, powers of exposition and articulation, ability to recall, and the like
are capable of being assessed reasonably adequately while the witness is engaged in giving evidence.
No doubt it will be said by some that a more accurate and reliable assessment is likely to be made if
evidence, and particularly expert evidence, specifically directed towards such matters is heard?
Perhaps so. But then, as against that, one must weigh the cost of this additional and inessential
assistance in terms of the prolongation of trials, its availability in relatively few centres and not in
others, and its lack of affordability for many in both criminal and civil trials. The cost is likely to
exceed by far the marginal benefit which would be gained in the administration of justice by the
admission of such evidence.”
Obviously, the court’s initial assessment of the potential weight of the evidence is done for
purposes of determining admissibility; and such evidence as may be admitted must
ultimately at the end of the trial be re-assessed in the light of all the other evidence for
purposes of determining sufficiency, that is, whether the required and applicable standard of
proof has been attained.
The reasoning of Marais J in S v Nel, was crisply formulated by Zeffertt in the following
terms: [34]
“The question is not solely one of logical relevance, but one of legal relevance. As Marais J observed,
the question is not confined to whether the opinion is ‘relevant’ in the sense that it could lead,
possibly, to a more reliable assessment by the court of a witness’s credibility. If the practical
disadvantages of receiving logically relevant evidence do not
Page 56
warrant its reception it will be legally irrelevant and inadmissible, but if its probative value outweighs
those disadvantages it will be of material assistance to the court, legally relevant, and admissible.”
5 3 4 The risk of manufactured evidence
The previous consistent statements of a witness are as a rule excluded (see §§ 9 1 and 9 2
below). One of the reasons for the exclusion of such a statement is that the admission
thereof “would make it a very straightforward matter for the unscrupulous to manufacture
evidence”. [35] Accordingly, there is a general rule, in the words of the Supreme Court of
Appeal in S v Scott-Crossley, that the previous consistent statement of the witness “has no
probative value”. [36] And it is on account of this normal lack of probative value, that it is
then said a previous consistent is irrelevant (see §§ 9 1 and 9 2 below). There are certain
established exceptions to the rule (see §§ 9 4 to 9 7 below). It can be argued that where
these exceptions apply, the risk of manufactured evidence is outweighed by the probative
value of the previous consistent statement — thus rendering the otherwise irrelevant
statement relevant and admissible (see, for example, § 9 5 below, where the rebuttal of a
suggestion of recent fabrication is discussed).
5 3 5 Prejudicial effect
[37]
Evidence which is logically probative or disprobative can be excluded because of its
prejudicial effect on the party concerned. “Prejudice” in this context does not mean that the
evidence must be excluded simply because the party against whom the evidence stands to
be adduced will be incriminated or implicated. It means that incrimination or implication will
take place in circumstances where the party concerned may be procedurally disadvantaged
or otherwise exposed to a lengthy trial involving issues which, though logically relevant, are
legally too remote to assist the court in its ultimate decision on the merits. Evidence is
relevant if its probative value outweighs its prejudical effect. Proof of motive provides a good
example.
Evidence of an accused’s motive to commit a particular crime is generally relevant for
purposes of proving intention or identity. [38] In R v Kumalo & Nkosi Innes CJ gave the
following example: [39]
“The ordinary man does not perpetrate a grave criminal offence without a motive; and although it is
not essential, nor always possible, to ascertain what it was, the matter is often of considerable
importance. A crime for which no motive likely to affect the person charged can be assigned is difficult
to bring home. So that the presence of such a motive is an element in favour of the [prosecution],
and its absence an element in favour of the accused. Now it is seldom that direct evidence on the
point, such as would be afforded by the accused’s own statement, can be produced. In the majority of
cases the probable
Page 57
existence or non-existence of motive must be deduced from external circumstances. And such
circumstances may as a general rule be proved if they are relevant — that is to say if they are
circumstances from which the presence or absence of the particular motive may be reasonably
inferred. Thus, if a husband were charged with the murder of his wife, evidence that he had formed
an adulterous connection with another woman would be admissible as showing a possible motive for
the crime. On the other hand proof might be properly given of affectionate marital relations in order
to negative motive.”
The presence or absence of motive would be worth pursuing even if it results in further
issues such as: Was there an adulterous affair? Was the marriage a happy one? These issues
are not really collateral issues but issues which, once determined, can assist the court in
making a finding as regards the facta probanda. [40] And the prejudicial effect of the evidence
is outweighed by its potential probative value.
The above is an example of the relevance of a personal motive. However, in Rex v Kumalo
and Nkosi [41] the Appellate Division actually went a great deal further and held that evidence
of a motive for a crime is admissible against an individual even though its tendency is to
show that all members of a certain category, or even persons of a certain tribe generally,
would have had an inducement to commit the crime in question. Two accused had been
charged with and convicted of the murder of a child. The body was found in the veld. The
child’s throat was cut and the front part of the body was also cut open from the throat to the
fork of the legs. According to medical opinion the cutting open of the body had been done by
a skilled hand. The heart had been taken out and the left ventricle containing the fatty
portion had been removed. In order to furnish proof of a motive for the crime the
prosecution called an expert witness, one Hoffman, who testified that it was (at that stage)
the practice amongst Zulu tribes and especially on the part of Zulu witch-doctors to kill and
mutilate young persons and use portions of the body and particularly fat — as a charm
against ill-luck. It was found that Kumalo and his accomplice were not witch-doctors but
“native doctors”. The evidence concerning the practice of witch-doctors could therefore not
be admitted against the two accused. However, Innes CJ held that the expert evidence on
the custom of Zulu people generally was relevant and admissible against Kumalo: [42]
“[I]n deciding whether inferences as to motive could reasonably be drawn from Hoffman’s evidence,
we must have regard to those portions which dealt with the custom of Zulu tribes generally. And
according to his statements the members of those tribes believed firmly in the potency of human fat
not only as a charm against misfortune already sustained, but as ensuring good luck in the future,
and for love philters. They generally followed the advice of a witch-doctor, but they also used the
charm themselves. And in my opinion the existence of a motive for a crime like the present might be
reasonably deduced from the general custom or belief described if the accused were members of the
tribe or tribes referred to. Human fat taken from certain internal organs would possess a definite
value for them, and would be used for important purposes, and that fact might be fairly considered as
pointing to the existence of a motive for acquiring a substance which to other persons would be both
useless and repulsive. Generally the circumstance relied upon as showing motive stands in direct
connection with the person
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charged, and is clearly within his personal knowledge. Here it is merely a tribal custom. But the
customs of native tribes upon vital matters are universal and binding in a very high degree. And I see
nothing unreasonable or unfair in inferring from a well-established tribal custom such as has been
deposed to, the existence of motive for a crime, the leading feature of which was the removal of the
very substance to which the custom related. This conclusion, however, as already pointed out, is
based upon the assumption that the accused are members of the tribe in question. Hoffman spoke
about the customs among the Zulu tribes, and he stated that the first accused (Kumalo) was a Bacwa,
a tribe which was a Zulu off-shoot. But he could not say to what tribe the second accused belonged.
The evidence before us does not show him to have been a Zulu, and no inference could in his case be
reasonably drawn from Hoffman’s statement. That statement was therefore relevant as against the
first accused only. But being relevant against him it was rightly admitted . . .”
Solomon JA and C G Maasdorp JA came to a similar conclusion in their separate judgments,
albeit for slightly different reasons. It is submitted that the evidence which was held
admissible in Rex v Kumalo and Nkosi supra was far too tenuous to have warranted
admission. There was no link between Kumalo and the practice referred to by the expert
witness, except that Kumalo was a Zulu. There was no evidence that Kumalo had
experienced ill-luck or was expecting imminent ill-luck. There was no personal motive.
Solomon JA sought to circumvent this argument: [43]
“For Hoffman’s evidence would, in my opinion, supply a motive for the commission of the crime in the
case not only of Zulus falling under the class of witch-doctors, but also of members of that tribe in
general. For if it is a common belief amongst them that portions of the insides of young children have
a special value as medicine to be taken in case of ill-luck, it would follow that the possession of such
objects of value would be considered highly desirable by anyone sharing in that belief. There would be
a motive, therefore, on the part of every such person to kill a young child for the purpose of procuring
those portions of its inside which have a special value. It is impossible to conceive of any ordinary
civilized person killing a child simply for the purpose of extracting portions of its inside, for he would
have no possible object in doing so; but in the case of a Zulu such conduct is quite intelligible, for he
would have the motive of acquiring objects which in his opinion are of special value. The inducement
in such a case would be on the same footing as that of a man who commits murder for the purpose of
rifling the body of his victim of money or other valuables . . . It was argued indeed that evidence of
motive is admissible only when it is directed to something peculiar to the individual who is charged
with the commission of the offence, but not when it applies to a whole class or to persons in general.
But I can see no reason for insisting upon any such limitation. One man who commits a murder may
be actuated by a motive peculiar to himself, such as ill-will towards the deceased; another by a
motive which is common to people in general, such as the love of gain. And evidence of motive is in
my opinion admissible, even though its tendency is to show that all members of a class or even
persons generally would have an inducement to commit the crime in question. It is true that in the
present case the motive would naturally be a much stronger one if it had been proved that the
prisoners were witch-doctors, but we are not concerned with the adequacy of the motive, which was a
matter entirely for the jury.”
It is submitted that this kind of reasoning is unacceptable because it is gravely prejudicial to
the individual concerned. The evidence admitted by the Appellate Division was not really
evidence of motive (at any rate, not personal motive)
Page 59
but simply circumstantial evidence which, we submit, was irrelevant on account of its
extremely limited potential probative value and its likely prejudice to the accused. There was
no evidence that the gruesome practices referred to by the expert witness did not also exist
in other tribes.
In Rex v Kumalo and Nkosi the Appellate Division seems to have admitted irrelevant
generalisations. The situation is entirely different where there is a personal connection
between the impugned circumstantial evidence and the party concerned. In R v Masebe [44]
the accused was charged with murder. The deceased had been strangled. Identity was in
issue. In admitting evidence that the accused had on a prior occasion attempted to assault
the deceased with an axe, Maisels JA held: “[The evidence] is plainly admissible to show
desire on the part of the appellant to harm the deceased and is clearly relevant to the main
issue in this case, namely, whether the appellant was the person responsible for the murder
of the deceased.” [45] The fact that the accused had the means of committing the offence
with which she was charged, was found admissible in R v Christiaans. [46] In Rex v Kumalo
and Nkosi there were no personal threats as in Masebe and no evidence that the accused
had the personal means as in Christiaans, except for the fact that Kumalo was a “native
doctor” and a member of the Bacwa, an off-shoot of the Zulu.
R v Dhlamini [47] is a case where the potential probative value of the evidence clearly
outweighed the possible prejudice to the accused. In this case the prosecution alleged that
the accused had stabbed the deceased to death in a cul-de-sac at approximately 22:00, or
shortly thereafter. The defence of the accused was an alibi: he alleged that at the time and
date of the murder (which was the sole charge against him) he was at a dance
approximately sixteen kilometres from the cul-de-sac where the deceased was killed. The
defence objected to the evidence of N, a witness who was in a position to testify that at
approximately 21:50 on the evening in question and some 140 metres from the cul-de-sac
in question, the accused had stabbed her with a sharp instrument after she had rejected
some advances made by the accused. The essence of the defence’s objection was that the
admission of N’s evidence would have been highly prejudicial to the accused in that it related
to criminal conduct which did not form the subject of the charge against the accused.
However, the court admitted N’s evidence: “[A] very material issue . . . [is] . . . the alibi of
the accused . . . [N]’s evidence is vitally relevant to the question of the alibi . . . [H]er
evidence is admissible to rebut the accused’s alibi.” [48] N’s evidence was not admitted simply
in order to prove prior misconduct (in which event it would have been inadmissible for lack
of relevance). Having regard to the issue of identity as raised by the defence, the potential
value of N’s evidence clearly outweighed the measure of prejudice, if any, that the accused
would have experienced in countering this evidence. [49]
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5 3 6 The doctrine of precedent
Judicial precedent can determine the relevance (admissibility) — but not the final weight [50]
— of certain types of evidence. In S v Shabalala [51] Nestadt JA came to the conclusion that
the judgment of Innes CJ in Rex v Trupedo [52] did not rest solely on a factual finding
concerning the reliability or otherwise of the particular dog whose activities and abilities
were in issue, but was essentially rooted in the principle that evidence of the conduct of dogs
in identifying an accused by scenting is inadmissible. [53] However, Nestadt JA did point out
that if the untrustworthiness of such evidence could be sufficiently reduced — even though
not totally removed — then “actions of the dog would become relevant and evidence thereof
admissible”. [54] It would seem that a cautious approach is necessary before boldly invoking
judicial precedent to decide on admissibility where relevance is the issue. Facts differ from
case to case and precedent can therefore at most provide useful guidelines.
5 3 7 The principle of completeness
[55]
A court should not exclude harmless irrelevant evidence. A witness should as a rule and
within limits be permitted to tell a coherent story, and in so doing provide the court with the
general background to the disputed event. [56]
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5 3 8 Constitutional imperatives and the position of the accused
It has been argued that “the defence should have more liberal rights than the prosecution to
adduce evidence which may not be of especially high probative value”. [57]
This argument has some weight in a constitutionalized system, such as ours, where an
accused has a constitutionally guaranteed right to a fair trial, which includes the right to
adduce and challenge evidence. [58] However, the rule that irrelevant evidence is
inadmissible (as provided in s 210 of the CPA and referred to in § 5 1 above) is in terms of
s 36 of the Constitution most certainly a constitutionally permissible limitation of the right to
adduce and challenge evidence. There cannot be an unqualified right to adduce irrelevant
evidence or to “challenge” admissible evidence with irrelevant evidence. Such a right would
make no sense.
But there is room for an argument that where the extremely limited probative value of the
evidence would normally have justified a finding of inadmissibility on account of irrelevance,
the court should — in order to protect an accused’s constitutional right to a fair trial — lean
in favour of admissibility. The decision of the Supreme Court of the USA in Rock v
Arkansas [59] might be a case in point. In this case the accused, charged with “manslaughter”
for the death of her husband, could not recall all the details of the fatal event. At the
suggestion of her lawyer, she agreed to undergo pre-trial hypnosis to refresh her memory.
Her memory as it stood prior to hypnosis was recorded. She was thereafter hypnotised by a
neuropsychologist specially trained in hypnosis. After the hypnosis session, the accused was
able to recall the details of the events that led to her husband’s death. The trial court ruled
that she could only testify to matters she remembered prior to the hypnosis. She was
convicted.
The Supreme Court of Arkansas confirmed the conviction. [60] It was held that whilst the
accused had the fundamental right to testify in her own defence, such right was not
limitless [61] and could validly be restricted by the standard rules of evidence. [62] The
Supreme Court of Arkansas also held that the dangers of admitting evidence based on what
emerged as a result of the pre-trial hypnosis, “outweigh whatever probative value it may
have.” [63] It was concluded that “nothing was excluded that would have been of much
assistance” [64] to the accused.
The approach of the Supreme Court of Arkansas was rejected by a five to four majority in
the Supreme Court of the USA. [65] Blackmun J, writing for the
Page 62
majority, held that the court a quo had “failed to perform the constitutional analysis that is
necessary” [66] when an accused’s constitutional right to testify is at stake. Blackmun J noted
that there were serious risks attached to the admission of hypnotically refreshed
testimony. [67] But he nevertheless held that constitutional due process demanded admission
and that a per se rule of exclusion in respect of hypnotically enhanced testimony was
arbitrary, especially since it could not — in the absence of acceptable evidence to the
contrary — be accepted that such testimony “is always so untrustworthy” that an accused
should be prohibited from presenting it. [68]
The decision in Rock v Arkansas, based as it is on constitutional due process, does not
extend to the situation of prosecution witnesses. [69]
5 4 Proposals of the South African Law Reform Commission
The South African Law Reform Commission (“SALRC”) has recommended that s 210 of the
CPA and s 2 of the CPEA (see § 5 1 above) should be repealed and the following enacted: [70]
“A. (1) Relevant evidence, is evidence that, if it were accepted, could rationally affect (directly or
indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) Evidence is not irrelevant because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence: or
(c) a failure to adduce evidence.
B. (1) Subject to the provisions of any other law, evidence that is relevant is admissible.
(2) Evidence that is not relevant is not admissible.
Page 63
C. (1) A court may refuse to admit evidence if its probative value is substantially outweighed by the
danger that the evidence might:
(a) be unfairly prejudicial to a party: or
(b) cause or result in undue waste of time.
(2) When determining whether the probative value of evidence is outweighed by the risk that
evidence will have an unfairly prejudicial effect, a presiding officer may not adopt assumptions or
make generalizations that are in conflict with the constitutional values embodied in the Constitution of
the Republic of South Africa 108 of 1996.
D. A court may provisionally admit evidence subject to evidence being later offered which
establishes its admissibility.”
The SALRC itself has noted that “[t]he absence of a legal definition of relevance does not
seem to have given rise to any difficulties in practice.” [71] It nevertheless felt that there
were no apparent disadvantages in defining relevance. The SALRC based many of its
proposals on the existing position in South Africa and developments in New Zealand and
Australia. The wisdom of “codifying” principles governing relevance, is highly debatable. “The
question whether evidence is relevant”, it was said in R v Guney, “depends not on abstract
legal theory but on the individual circumstances of each case.” [72]
[1] Rex v Trupedo 1920 AD 58 62; S v Gokool 1965 (3) SA 461 (N) 475G: “The law of evidence is foundationally
based on the principle that evidence is admissible if it is relevant to an issue in the case.”
[2] R v Schaube-Kuffler 1969 (2) SA 40 (RA) 50B.
[3] But see also § 10 3 3 below, where S v Safatsa and Others 1988 (1) SA 868 (A) is discussed.
[4] See ch 12 below, where the provisions of s 35(5) of the Constitution are discussed.
[5] Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 4.
[6] Murphy A Practical Approach to Evidence 10 ed (2008) 25.
[7] Zuckerman The Principles of Criminal Evidence (1989, reprinted 1992) 49.
[8] See generally Nomandela v S [2007] 1 All SA 506 (E) at 507i.
[9] Hoffmann 1974 SALJ 237 238. In R v Randall [2004] 1 WLR 56 at [20] Lord Steyn said: “A judge ruling on a
point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or
diminishing the probability of the existence of a fact in issue. The question of relevance is typically a matter of
degree to be determined, for the most part, by common sense and experience.” Paizes in Du Toit et al Commentary
24-22B points out that “questions relating to relevance may not be resolved by resorting to juridical formulae but
rather to reason and common sense”.
[10] Stephen Digest of the Law of Evidence 12 ed (1914) art 1. See Holtzhauzen v Roodt 1997 (4) SA 766 (W)
776D-E where, it seems, Satchwell J found this definition too restrictive. This case is discussed in § 8 6 below.
[11] Van Wyk 1978 THRHR 175.
[12] DPP v Kilbourne 1973 AC 729 756.
[13] McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 33-4.
[14] 2006 (2) SACR 191 (W) 199f-g.
[15] 1914 AC 733 738. See also the discussion of R v Dhlamini 1960 (1) SA 880 (N) in § 5 3 5 below.
[16] 1990 (1) SACR 659 (E) 661f-662e.
[17] 1959 (2) SA 352 (A) 362E-F.
[18] 1915 AD 348 352 (and cited with approval in S v Mavuso 1987 (3) SA 499 (A) 505B). The “drawing of
reasonable inferences” as a factor determining admissibility, was also emphasised in S v Sewnarain 2013 (1) SACR
543 (KZP) at [20] where reference was also made to S v Yengeni and Others (1) 1991 (1) SACR 322 (C) at 324f.
See also generally R v Sole 2004 (2) SACR 599 (Les) at 660j-661b, where Cullinan J noted that the drawing of
proper inferences ought to be a matter of common sense. At 661b he found himself in agreement with the following
statement made by Schreiner JA in R v Matthews and Others 1960 (1) SA 752 (A) at 758, namely that relevance is
“based upon a blend of logic and experience lying outside the law”.
[19] 1920 AD 58.
[20] In Trupedo supra evidence concerning the behaviour of a trained police dog towards an accused was admitted
in the court a quo to prove that he had committed the crime. On appeal it was submitted that evidence of this kind
was inadmissible because no inferences could properly be drawn from the behaviour of police dogs towards an
accused. At 62 Innes CJ remarked as follows (our emphasis): “The general rule is that all facts relevant to the issue
in legal proceedings may be proved. Much of the law of evidence is concerned with exceptions to the operation of
this general principle, as for example the exclusion of testimony on grounds of hearsay and remoteness. But where
its operation is not so excluded it must remain as the fundamental test of admissibility. And a fact is relevant when
inferences can be properly drawn from it as to the existence of a fact in issue.” Innes CJ also pointed out that the
admission of evidence relating to the behaviour of the dog towards the accused would amount to entering “. . . a
region of conjecture and uncertainty”. At 64 it was concluded that there was too great an element of uncertainty to
justify the court in drawing inferences from this kind of evidence in the course of legal proceedings. The evidence of
the behaviour of the police dog was therefore found to be inadmissible because of its irrelevance. In R v Kotcho 1918
EDL evidence of identification by a police dog was also excluded as irrelevant and inadmissible. At 104 Graham JP
said: “It does not appear to me that, without legislation, such class of testimony can be admitted. And I think it
would need very careful consideration before any such legislation should be introduced.” In 1971 the police made
representations to the Commission of Inquiry into Criminal Procedure and Evidence (the Botha Commission) for the
recommendation of legislation which would make such evidence admissible. The Botha Commission refused to do so
on the following grounds: “Because the fundamental test of admissibility of evidence in our law is the relevancy
thereof, legislation which seeks to admit evidence which is irrelevant, would be undesirable. In Kotcho’s case
Graham JP at page 103 et seq, moreover draws attention to the dangers to which the admissibility of such evidence
would unquestionably lead, because the possibility that a police dog could make a mistake, cannot be excluded, and
there is no way of establishing whether such a mistake was made, or not, or could possibly have been made. In view
of all these circumstances the proposal of the police cannot be supported and no recommendation is made.” See
para 11 06 6 of the Report of the Commission of Inquiry into Criminal Procedure and Evidence (RP 78/1971).
[21] 1986 (4) SA 734 (A).
[22] At 743F.
[23] At 743F. Shabalala supra is discussed by Van Oosten 1987 SALJ 531. It must be noted that circumstances
might be such that in appropriate cases reasonable inferences can be drawn from the behaviour of police dogs. See
generally S v Moya 1968 1 PH H148 (GW); Barrie 1967 (2) Codicillus 44 and Hoffmann 1974 SALJ 237. In Trupedo
supra it was also specifically pointed out that evidence of an animal’s instinctive behaviour — as opposed to acquired
behaviour — may be admissible. See also Poswa v Christie 1934 NPD 178.
[24] Zuckerman The Principles of Criminal Evidence 51.
[25] Maguire Evidence: Common Sense and Common Law (1947) 205. See also Poswa v Christie 1934 NPD 178
128h, where Hoffmann J concluded that the evidence in dispute had “in itself insufficient weight to justify the
exploration of otherwise irrelevant issues which its admissibility would require”.
[26] See generally Van der Merwe 1981 De Rebus 576.
[27] In Holtzhauzen v Roodt 1997 (4) SA 766 (W) the defendant wanted to lead the evidence of W, an expert
hypnotherapist, to testify that in his opinion the defendant was telling the truth about a rape incident that happened
on the plaintiff’s farm, and that in his opinion the defendant was penetrated by the plaintiff as described to him (W)
by the defendant during hypnotherapy sessions that he had with the defendant. Satchwell J excluded the evidence as
irrelevant on several valid grounds (see §§ 8 6 and 9 2 below) and also held that the proposed evidence of W would
shift the fact-finding responsibility of the court to the witness. Another way of looking at it would be to say that
admission of W’s evidence would have led to a proliferation of issues. Are statements made under hypnosis reliable?
Could the defendant have tricked W? Was the procedure followed by W scientifically acceptable? Should the plaintiff
then also have been given an opportunity to call an expert hypnotherapist to testify on his credibility and the
truthfulness of his allegations that there was no rape as alleged?
[28] 1990 (2) SACR 136 (C).
[29] 1975 1 All ER 70. In this case it was held that expert evidence is inadmissible where the issue can be decided
by the court (or jury, as the case may be) on the basis of its own experience and knowledge. Expert psychiatric
evidence is not needed to inform a court or jury how a person — not suffering from any mental abnormality or illness
— is likely to react to the stresses and strains of life. See also R v Gilfoyle 2001 2 Cr App R 57.
[30] 1968 (3) SA 284 (A).
[31] 1973 3 All ER 662. In Lowery L and K were charged with the murder of a girl, committed without apparent
motive and in circumstances which indicated that one of them, or the two of them acting in concert, had killed the
girl. L and K had so-called “cut-throat defences”, that is, each blamed the other. The Privy Council concluded that the
trial court had correctly admitted the evidence of a psychologist who was called by K and who testified that, having
examined both K and L, the latter was on account of his aggressive nature and lack of self-control more likely to
have committed the murder than K, who had an immature personality and was likely to have been dominated by the
more aggressive L. The evidence of the psychologist was relevant in support of K’s case, that is, to show that his
version was more probable than the version of L, who claimed that he was not the sort of person who would have
committed the murder. Lowery is an example of a case where the introduction of further issues — the psychologist’s
comparative analysis of the personalities involved — was considered acceptable because the ultimate determination
of these issues could assist the trier of fact. Lowery was relied upon by the House of Lords in R v Randall [2004] 1
WLR 56 at [29] and [30] for the proposition that evidence (but not necessarily expert evidence) of the propensity of
an accused to violence is relevant to the issue of which of two accused was more likely to have resorted to violence.
[32] 1965 1 All ER 506. See also generally Pattendon “Conflicting Approaches to Psychiatric Evidence in Criminal
Trials: England, Canada and Australia” 1986 Crim LR 92.
[33] Nel supra 142j-143f.
[34] 1990 ASSAL 502. Emphasis in the original.
[35] Cowsill & Clegg Evidence: Law and Practice 3 ed (1990) 207-8.
[36] 2008 (1) SACR 223 (SCA) at [17].
[37] In S v Papiyana 1986 2 PH H115 (A) the appellant at his trial appeared in prison clothes and with his feet
shackled in leg-irons. The court (at 206) compared this “information” with “evidence which . . . [should be] . . .
excluded on the ground that its relevance is too tenuous to compensate for its prejudicial nature”. The question
whether evidence has sufficient probative value to outweigh its prejudicial effect, “is a matter of degree in each
case”. See Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC) at [55].
[38] S v Sithole 1980 (4) SA 148 (D) 150.
[39] 1918 AD 500 504.
[40] See § 5 3 3 above.
[41] 1918 AD 500.
[42] Kumalo & Nkosi supra 505-6.
[43] Kumalo & Nkosi supra 508-9.
[44] 1972 2 PH H127 (BAC).
[45] At 217.
[46] 1925 TPD 868 875.
[47] 1960 (1) SA 880 (N).
[48] At 881A-C.
[49] See also generally R v P 1991 3 All ER 337 (HL).
[50] In Rex v C 1949 (2) SA 438 (SR) the accused was charged with sodomy. The prosecution sought to adduce
evidence that six days after the alleged commission of the offence the accused had attempted to commit suicide.
This evidence was held admissible. At 439 Tredgold J held as follows (emphasis added): “In this matter the Crown
tenders in evidence certain documents relating to the fact that the accused, subsequent to the charge being laid
against him, attempted to commit suicide. The main principle involved is the question as to whether attempted
suicide is admissible evidence, the letters being purely subsidiary to that attempt, but necessary to explain it, not
only from the Crown’s point of view, but from the accused’s point of view. Now, I must remember at this juncture
that I am not concerned with the weight which may be attached to this evidence. I am simply concerned with its
admissibility, and I have no doubt whatsoever that it is legally admissible and that there is nothing improper in the
Crown’s leading this evidence. It is quite clear on the authorities which have been quoted that the behaviour of the
accused subsequent to the allegations being made against him is relevant and is admissible in evidence. The weight
to be attached to that behaviour must vary greatly according to the particular circumstances of each case. But that is
a matter to be decided by the jury, and not by myself. Amongst the matters which are expressly mentioned as being
relevant is flight to avoid facing the charge laid against him, by the accused. Now, it seems to me that that covers in
principle the case in which an accused person attempts to avoid facing the charge by committing suicide. The exact
weight to be attached to any such attempts need not be dealt with now, and I think it is best reserved for the
summing-up. But I may say in conclusion that, although I am unable to recollect any specific case, I am quite
satisfied that evidence of such attempts has been led before this Court on more than one occasion, and that the
evidence is admissible, and that it is for the jury to decide in all the circumstances of this particular case how far
they should regard it as favourable or unfavourable to the accused.”
[51] 1986 (4) SA 734 (A).
[52] 1920 AD 58.
[53] Shabalala supra 741G-H.
[54] Shabalala supra 741-742A.
[55] In Palmer v Minister of Safety and Security 2002 (1) SA 110 (W) it was said that the need for having a
complete picture may require reception of facts neither in issue nor relevant because they are inextricably bound up
by factors of time, place and circumstances with facts in issue or relevant facts.
[56] Dennis The Law of Evidence 3 ed (2007) 10.
[57] Choo 1993 Crim LR 114 at 125. See also generally Mahoney The Right to Present a Defense (2011) 85-89.
[58] See s 35(3)(i) of the Constitution.
[59] 107 S Ct 2704 (1987).
[60] Rock v State 708 SW 2d 78 (1986).
[61] Rock v State supra at 84.
[62] Rock v State supra at 85.
[63] Rock v State supra at 81.
[64] Rock v State supra at 86.
[65] For a detailed analysis of Rock v Arkansas supra, see Kuplicki “Fifth, Sixth and Fourteenth Amendments — A
Constitutional Paradigm for Determining the Admissibility of Hypnotically Refreshed Testimony” 1987 7 Supreme
Court Review 853.
[66] Rock v Arkansas supra at 2712.
[67] Rock v Arkansas supra at 2713-4. See also generally Diamond “Inherent Problems in the Use of Pretrial
Hypnosis on a Prospective Witness” 1980 68 California LR 313.
[68] Rock v Arkansas supra 2714.
[69] Relying on Rock v Arkansas supra and the article by Kuplicki referred to in n 65 above, Van der Merwe 1996
Obiter 1-2 has suggested the following: “The constitutional trial rights of the accused, it would seem, give rise to a
bifurcated rule of admissibility. Hypnotically refreshed testimony by state witnesses should as a general rule be
excluded because such evidence seriously impairs the constitutional right of the accused to challenge evidence by
way of cross-examination. Due process is denied. However, hypnotically refreshed testimony by the accused (or any
other defence witness) should as a rule be admitted. The accused has a constitutional right to adduce evidence. . . It
is submitted that the bifurcated rule of admissibility — despite its constitutional basis — remains subject to the
fundamental evidentiary rule that irrelevant evidence must be excluded. Where it is patently clear to the court that
the technique (hypnosis) and its product (a hypnotically induced memory) cannot yield reasonably accurate results
(potentially reliable evidence), the evidence must be excluded regardless of the fact whether a prosecution or
defence witness (including an accused) is involved. However, where the court is merely in doubt as regards the
potential reliability of the hypnotically induced testimony, the bifurcated rule of admissibility must come into play:
Such testimony must be admitted when offered by the defence. This is necessary in order to comply with
constitutional provisions. But the ultimate rule — which over-rides the constitutional trial rights of the accused — is
the rule that only relevant evidence may be received.” Emphasis in the original. However, the position as regards
state witnesses is that the hypnotically refreshed testimony is inadmissible. See R v Trochym [2007] 1 SCR 239
where the Supreme Court of Canada held that such evidence is presumptively inadmissible for evidentiary purposes.
[70] See para 3 31 of the SALRC’s Review of the Law of Evidence (Hearsay and Relevance): Discussion Paper 113,
Project 126.
[71] Para 3 30 of Discussion Paper 113.
[72] 1998 2 Cr App Rep 242 246.
Page 64
Chapter 6
Character Evidence
P J Schwikkard
61
62
63
Introduction
Character in Criminal Cases
621
The character of the accused
622
Evidence of the accused’s bad character
623
Section 197 of the CPA
6231
Section 197(a)
6232
Section 197(b)
6233
Section 197(c)
6234
Section 197(d)
624
Section 211 of the CPA
625
Witnesses other than the accused
626
Character of the complainant
6261
Rape or indecent assault
6262
Crimen iniuria
Character in Civil Cases
6 1 Introduction
This chapter and chapter 7 deal with the subject of what evidence, pertaining to character
and disposition, may be adduced. Whilst chapter 7 deals specifically with similar fact
evidence, this chapter deals with the admissibility of evidence relating to the character of
witnesses or the accused or parties in civil proceedings, as the case may be.
Historically a distinction was drawn between different forms of character evidence. The
two primary categories were (a) general reputation [1] and (b) a person’s disposition to think
or act in a particular way. It would appear that, in the nineteenth century, the English
common law preferred evidence of general
Page 65
reputation as a means of establishing character rather than “disposition evidence”.
However the modern law of evidence does not reflect this preference. [3]
[2]
|
The rules pertaining to character evidence applicable in criminal and civil cases are dealt
with separately below.
6 2 Character in Criminal Cases
6 2 1 The character of the accused
In terms of s 227(1) of the CPA the admissibility of character evidence of the accused is
determined by the rules in force on 30 May 1961, these being the rules of English law. The
common-law rules need to be read together with the relevant statutory provisions. [4]
The general rule is that the accused may adduce evidence of his own good character, [5]
but the prosecution is prohibited from adducing evidence of his bad character, subject to
specified exceptions.
The reason for permitting evidence of the accused’s good character is to be found in the
dictum of Willes J in R v Rowton, [6] in which the court held that “such evidence is admissible
because it renders it less probable that what the prosecution has averred is true. It is strictly
relevant to the issue.” [7] Evidence of the accused’s bad character is excluded in English law
because it might “have a disproportionately prejudicial effect upon the jury” and because it
is generally considered to be irrelevant. [8] The latter reason presumably forms the basis for
the rule in South African law. While the irrelevance of general reputation is fairly self-evident
the same is not necessarily true for disposition evidence. It is frequently posited that past
behaviour is a good indicator of likely future conduct. Consequently, disposition evidence
may well be logically relevant in
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establishing the likelihood of a particular behaviour occurring. [9] Perhaps the irrelevance of
disposition evidence lies in the prejudice of a generalised application of claims of social
psychology as well as a residual scepticism as to the accuracy of past behaviour as a
predictor of future behaviour.
There are a number of ways in which an accused may try and establish her good
character: by the accused giving evidence herself, by calling witnesses to testify on her
behalf, [10] or by cross-examining prosecution witnesses. [11] However, once the accused
herself, or through calling witnesses, adduces evidence as to her good character the
prosecution can respond by introducing evidence of bad character. [12] The accused may also
render herself liable to cross-examination as to bad character in terms of s 197 of the CPA
(see §§ 6 2 3 to 6 2 3 4 below).
6 2 2 Evidence of the accused’s bad character
Once the accused has adduced evidence as to her own good character the prosecution may
respond in three different ways: (i) adducing evidence of bad reputation; (ii) crossexamining character witnesses; and (iii) cross-examining the accused. [13]
If the accused attacks the character of prosecution witnesses but does not adduce
evidence as to her own good character, the prosecution may not adduce evidence of the
accused’s bad character. [14] In these circumstances the prosecution will be limited to crossexamining the accused as to character in terms of s 197(a) of the CPA (see § 6 2 3 1 below).
In R v Butterwasser [15] the court of criminal appeal held that the defence’s crossexamination of the prosecution witnesses as to their previous convictions did not permit the
prosecution to call a police officer to testify as to the accused’s previous convictions. The
reason given by the court was that the attack on the prosecution witnesses was directed at
putting their character in issue and not the character of the accused. [16]
Where the prosecution does call witnesses to testify as to the accused’s bad character
they may in theory only state what they know about the accused’s general reputation. [17]
However, as discussed above at § 6 1 this doctrine appears to not be enforced by
contemporary courts where the similar fact rule applies. The prosecution is restricted by the
similar fact rule, which prohibits evidence of past misconduct on the part of the accused
where the sole relevance of the evidence is the accused’s disposition. Similar fact evidence is
discussed in chapter 7.
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6 2 3 Section 197 of the CPA
Section 197 of the CPA reads as follows:
“An accused who gives evidence at criminal proceedings shall not be asked or required to answer any
question tending to show that he has committed or has been convicted of or has been charged with
any offence other than the offence with which he is charged, or that he is of bad character, unless —
(a)
(b)
(c)
(d)
he or his legal representative asks any question of any witness with a view to establishing his
own good character or he himself gives evidence of his own good character, or the nature or
conduct of the defence is such as to involve imputation of the character of the complainant or
any other witness for the prosecution;
he gives evidence against any other person charged with the same offence or an offence in
respect of the same facts;
the proceedings against him are such as are described in section 240 or 241 and the notice
under those sections has been given to him; or
the proof that he has committed or has been convicted of such other offence is admissible
evidence to show that he is guilty of the offence with which he is charged.”
It is important to note that s 197 does not permit evidence of bad character to be adduced
by the prosecution. It simply makes provision for cross-examination of the accused.
6 2 3 1 Section 197(a)
Section 197 protects the accused against cross-examination that is directed at showing bad
character or his previous criminal record. However, the accused will lose this protection (or
“shield”) by: adducing evidence as to his own good character; [18] attacking the character of
a prosecution witness; [19] or by testifying “against any other person charged with the same
offence or an offence in respect of the same facts”. [20]
Section 197(a), in so far as it permits cross-examination of the accused as to character if
the accused introduces evidence as to his own good character, complements the commonlaw rule which permits the prosecution to adduce evidence of bad character in such
circumstances.
An accused gives evidence of his own good character when
[21]
“. . . he asserts, or elicits, that he is of good character independently of his giving an account of what
had happened: he must endeavour (by means of questions or his evidence) to refer to his good
character in order to have it taken into account as something in his favour: a mere canvassing of the
relevant facts is insufficient to penalize the accused if the facts may incidentally show his character in
a good light.”
Once an accused has put his character in issue his whole character will be subject to crossexamination. In Stirland v DPP the court held that [22]
“[a]n accused who puts his character in issue must be regarded as putting the whole of his past
record in issue. He cannot assert his good conduct in certain respects without exposing himself to
inquiry about the rest of his record so far as this tends to disprove a claim of good character.”
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In terms of s 197(a) the accused will also expose himself to cross-examination as to
character if “the nature or conduct of the defence is such as to involve imputation of the
character of the complainant or any other witness for the prosecution”. There are two ways
in which the nature and conduct of the defence may be revealed: (1) by the accused’s
testimony; and (2) through cross-examination of the prosecution witnesses by the accused’s
legal representative or, in the case of the unrepresented accused, by himself. [23] However, if
the accused is led by the prosecution into making assertions as to his good character, this
will not put the accused’s character into issue. [24]
The wording of s 197(a) is similar to that found in s 1(f)(ii) of the English Criminal
Evidence Act 1898. In a post-30 May 1961 decision the House of Lords held that s 1(f)(ii)
should be interpreted literally. [25] Consequently, in English law cross-examination as to
character will be allowed even where imputations as to the character of prosecution
witnesses are a necessary part of the accused’s defence. [26] “The fact that an imputation is
not made to discredit the witness but for another purpose is immaterial.” [27] The South
African courts have been reluctant to take such a literal interpretation and there is authority
for the view that where the evidence sought to be elicited forms an essential portion of the
accused’s defence s 197(a) should not be invoked, even if that evidence involves an
imputation as to the character of a prosecution witness. [28]
6 2 3 2 Section 197(b)
Section 197(b) makes the accused liable to cross-examination as to character if she gives
evidence “against any other person charged with the same offence or an offence in respect
of the same facts”. However, a person who has been charged with the same offence and
convicted
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and sentenced prior to testifying will not be considered an accused. [29] In Murdoch v
Taylor [30] the House of Lords held that “evidence against” a co-accused means evidence
which supports the prosecution case in a material respect, or which undermines the defence
of the co-accused. [31] The accused’s intention in giving such evidence, whether in
examination in chief or cross-examination, is not relevant. [32] However, “if one accused
merely denies that he took part in a joint venture, that does not constitute giving evidence
against a co-accused unless it implies that his co-accused did participate in it”. [33] In S v
Mazibuko and Others [34] the court in an obiter dictum found that the wording of s 197(b)
conferred no discretion and that when cross-examination is allowed in terms of s 197(b) the
court has no general or residual discretion to restrict such cross-examination on grounds of
irrelevancy. However, in S v Pietersen [35] Erasmus J took the view that a court
“has a discretion to restrict and control the ambit of the cross-examination under s 197(b). The
discretion must be exercised in the light of the principles governing relevance. The cross-examination
must be relevant to the issue of credibility, and it must not prejudice the accused being crossexamined in the conduct of his defence to the extent that his right to a fair trial is undermined.” [36]
6 2 3 3 Section 197(c)
Section 197(c) provides that if the charge is one of receiving stolen property, the accused
may be questioned in respect of her previous convictions and bad character. Zeffertt, Paizes
& Skeen note that although the drafter’s intention was presumably “to allow the prosecution
in a receiving charge to cross-examine on matters which they would be entitled to prove
under ss 240 and 241” [37] of the CPA, this is not supported by a literal interpretation of
s 197(c).
6 2 3 4 Section 197(d)
Section 197(d) provides that the accused may be cross-examined as to previous offences if
the purpose of such evidence is to “show that he is guilty of the offence with which he is
charged”. The courts have held that s 197 does not prohibit the accused being asked
questions relevant to an issue before the court even if such questions tend to show bad
character or to reveal the accused’s previous convictions. [38] Thus it can be said that s 197
(d) merely confirms the similar fact rule. [39]
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6 2 4 Section 211 of the CPA
Section 211 of the CPA provides:
“Except where otherwise expressly provided by this Act or except where the fact of a previous
conviction is an element of any offence with which an accused is charged, evidence shall not be
admissible at criminal proceedings in respect of any offence to prove that an accused at such
proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and
no accused, if called as a witness shall be asked whether he has been so convicted.”
As a consequence of the words “[e]xcept where otherwise expressly provided by this Act”
s 211 is subject to the similar fact rule [40] by virtue of s 252 of the CPA, which applies the
law that was in force on 30 May 1961. [41]
Section 211 does not prevent an accused from testifying as to her own previous
convictions. This might be done, for example, to support a defence based on an alibi. [42]
When an accused chooses this course she runs the risk of having her character attacked by
the prosecution in cross-examination. [43] However, in S v Mthembu and Others [44] the
Appellate Division held that if such cross-examination is permitted, it must be limited to the
extent that any further details sought are relevant to an issue in the trial. [45]
It should be noted that evidence of previous convictions are admitted during the course of
bail proceedings as they are not considered criminal proceedings. [46] However, in S v
Hlati [47] the court noted that an anomaly will arise when bail is applied for during the course
of a trial and the accused’s previous convictions are brought to the attention of the presiding
officer. [48] Previous convictions are also admissible after conviction in order to assist the
court in determining an appropriate sentence. [49]
6 2 5 Witnesses other than the accused
Except where a witness’s credit has been impeached by evidence that she has a bad
reputation, the party calling that witness is prohibited from adducing evidence as to the
witness’s good character. [50] Where a witness disputes an allegation that she has a
reputation for untruthfulness the opposition may call a witness to testify from her knowledge
of the impugned witness’s reputation that she would not believe the
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latter on her oath. [51] In S v Damalis [52] the court held that another court’s assessment of a
witness’s credibility may be put to a witness in cross-examination. This aspect is more fully
discussed in §§ 18 6 5 5 and 25 2 1 below.
6 2 6 Character of the complainant
In all criminal cases where the complainant testifies he or she may be cross-examined, and
the cross-examiner may ask questions that are pertinent to exposing the witness’s credibility
or lack thereof. [53] However, the point of departure is that the character or disposition of the
complainant is not relevant to credibility. Consequently, evidence which is solely directed at
establishing that the complainant has a bad character is prohibited, as is evidence of good
character. [54] Nevertheless, in a few exceptional categories of cases the complainant’s
character is viewed as relevant. These are discussed in §§ 6 2 6 1 and 6 2 6 2 below.
6 2 6 1 Rape or indecent assault
There is a common-law rule that in a case involving a charge of rape or indecent assault the
accused may adduce evidence as to the complainant’s bad reputation for lack of chastity. [55]
Prior to 1989 [56] s 227 of the CPA provided that, in sexual offence cases, the admissibility of
evidence as to “the character of any woman” would be determined by the application of the
common law. In terms of the common law the defence may question the complainant as to
her previous sexual relations with the accused. [57] The accused is prohibited from leading
evidence of the complainant’s sexual relations with other men. [58] However, the complainant
may be questioned on this aspect of her private life in cross-examination as it is considered
relevant to credibility. Evidence to contradict any denials may be led only if such evidence is
relevant to consent. [59]
The common-law provisions have been criticised on a number of grounds: (a) whilst
cross-examination concerning prior sexual history traumatises and humiliates the victim, the
evidence it elicits is irrelevant [60] and at most establishes a general propensity to have
sexual intercourse; (b) evidence of this nature is held to be inadmissible in other cases and
there are no grounds for
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admitting it where the case is of a sexual nature; [61] (c) the possibility of such crossexamination deters victims from reporting the offence. [62]
The South African Law Commission in 1985 [63] noted that in practice the application of
s 227 resulted in few (if any) restrictions being placed on the admissibility of sexual history
evidence. [64] In accordance with the recommendation of the Law Commission, s 227 was
amended [65] so as to require application to be made to court for leave to adduce evidence of
prior sexual history or to question the complainant on her prior sexual history. Such leave
would only be granted if the relevance of the evidence or questioning was established to the
satisfaction of the court. These amendments were criticised on the basis that the very
purpose for which they were enacted was undermined by the very wide discretion conferred
on judicial officers. [66] The same judicial officers who in the past failed to exercise their
discretion to exclude irrelevant previous sexual history evidence were now being asked to
exercise the very same discretion, albeit preceded by an application held in camera. [67] In S
v M [68] the Supreme Court of Appeal noted that “the members of this Court are not aware of
any instance where s 227(2) has been applied in this country. It seems likely that it is more
honoured in the breach than in the observance”. [69]
The Legislature finally responded to these criticisms by once again amending s 227 in
2007. [70] The new s 227 reads as follows:
“227. (1) Evidence as to the character of an accused or as to the character of any person against or in
connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, is alleged to
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have been committed , shall, subject to the provisions of subsection (2), be admissible or inadmissible
if such evidence would have been admissible or inadmissible on the 30th day of May, 1961.
(2) No evidence as to any previous sexual experience or conduct of any person against or in
connection with whom a sexual offence is alleged to have been committed, other than evidence
relating to sexual experience or conduct in respect of the offence which is being tried, shall be
adduced, and no evidence or question in cross examination regarding such sexual experience or
conduct, shall be put to such person, the accused or any other witness at the proceedings pending
before the court unless —
the court has, on application by a party to the proceedings, granted leave to adduce such
evidence or to put such question; or
(b) such evidence has been introduced by the prosecution.
(3) Before an application for leave contemplated in subsection (2)(a) is heard, the court may direct
that any person, including the complainant, whose presence is not necessary may not be present at
the proceedings.
(a)
(4) The court shall, subject to subsection (6), grant the application referred to in subsection (2)(a)
only if satisfied that such evidence or questioning is relevant to the proceedings pending before the
court.
(5) In determining whether evidence or questioning as contemplated in this section is relevant to
the proceedings pending before the court, the court shall take into account whether such evidence or
questioning —
(a)
(b)
(c)
(d)
(e)
(f)
is in the interests of justice, with due regard to the accused’s right to a fair trial;
is in the interests of society in encouraging the reporting of sexual offences;
relates to a specific instance of sexual activity relevant to a fact in issue;
is likely to rebut evidence previously adduced by the prosecution;
is fundamental to the accused’s defence;
is not substantially outweighed by its potential prejudice to the complainant’s personal
dignity and right to privacy; or
(g)
is likely to explain the presence of semen or the source of pregnancy or disease or any
injury to the complainant, where it is relevant to a fact in issue.
(6) The court shall not grant an application referred to in subsection (2)(a) if, in its opinion, such
evidence or questioning is sought to be adduced to support an inference that by reason of the sexual
nature of the complainant’s experience or conduct, the complainant —
(a) is more likely to have consented to the offence being tried; or
(b) is less worthy of belief.
(7) The court shall provide reasons for granting or refusing an application in terms of subsection (2)
(a), which reasons shall be entered in the record of the proceedings.”
Section 227(1) of the Criminal Procedure Act retains the common law but is now overtly
gender neutral and subject to sub-s (2). In terms of s 227(2) prior sexual history evidence
“other than evidence relating to sexual experience or conduct in respect of the offence which
is being tried” may not be led or raised in cross-examination except with the leave of the
court or unless prior sexual history evidence has been introduced by the prosecution. The
exception that is created by the introduction of prior sexual history by the prosecution is
consistent with the approach taken by the court in S v Zuma [71] and if
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unrestricted once again opens the door to the admission of irrelevant but damaging
evidence. Given the unfortunate application of s 227 in the past it may well have been
prudent for the legislature to specify that this exception only applied to prior sexual history
adduced by the accused in so far as it was relevant to contradicting the evidence introduced
by the prosecution.
The wording of s 227(2) makes it clear that as far as “the offence which is being tried” is
concerned, no application is necessary. But the fact that no prior application is required does
not relieve the court of its common-law [72] and statutory duty [73] to ensure that evidence
and questioning do not go beyond what is relevant. Exclusion of irrelevancies cannot
jeopardise the right to a fair trial; [74] and the court has a duty to protect the dignity of the
complainant. [75]
The most radical change brought about by the amendments to s 227 are to be found in
sub-s (5), which specifies the factors that the court must take into account when deciding
whether to grant leave to lead evidence of prior sexual history. [76] In terms of sub-s (4)
leave to lead prior sexual history evidence will only be granted if the court is satisfied that
such evidence is relevant.
The amended section leaves the court with a significant degree of discretion in
determining relative prejudice and whether or not the evidence “is fundamental to the
accused’s defence”. This is no doubt in deference to the constitutional right to a fair trial and
the Canadian experience which saw legislation that placed significant constraints on the
courts discretion being struck down as it allowed the possibility of evidence that was relevant
to the accused’s defence being excluded. [77] This may mean that there is the danger of old
practices continuing. However, subsections (6) and (7) should provide an effective barrier to
the assumption of old habits. Sub-ss (6) directs the court to refuse leave if the purpose of
adducing the evidence or questioning the complainant is to support an inference that the
complainant is more likely to have consented or is untruthful. Subsection (7) requires a
court to provide reasons for refusing or allowing an application to lead prior sexual history
evidence.
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6 2 6 2 Crimen iniuria
In order to obtain a conviction on a charge of crimen iniuria the prosecution must prove
insult to the complainant’s dignity. [78] Evidence that goes to establishing that the
complainant was not the type of person who would have been insulted in the circumstances,
will be regarded as relevant. [79]
6 3 Character in Civil Cases
In civil cases the characters of the parties are generally considered irrelevant. [80] However,
in certain specific cases evidence pertaining to the character of a party will be regarded as
relevant either in respect of an issue or in quantifying damages. [81] For example, an
essential element in an action of seduction is the plaintiff’s virginity and evidence which
shows that the plaintiff has a permissive disposition will be regarded as relevant. [82] In a
defamation action a party who fails in her defence may adduce evidence of the plaintiff’s
general bad reputation in mitigation of damages. [83] However, the defendant may not refer
to specific acts of misconduct and is restricted to leading evidence of general reputation. [84]
Clearly parties as witnesses may be cross-examined as to credit and in certain
circumstances character evidence may be considered relevant to credibility. [85] Evidence of
character may also be admitted in terms of the similar fact rule. [86]
[1] R v Rowton 1865 Le & CA 520; 169 All ER 1497. General reputation refers to a person’s reputation in the
community in which he lives.
[2] Roberts & Zuckerman Criminal Evidence (2004) at 503 give the following explanation for the preference given
to evidence of general reputation in Rowton supra: “[A]t the time when Rowton was decided the accused was
generally disqualified from testifying in his own defence and the modern sciences of personality were yet to be born.
Moreover, many people lived in relatively small, static communities where everybody more or less knew everybody
else’s business. Perhaps in these circumstances and in the absence of anything better, reputation could be taken as a
reliable guide to character and conduct. In the modern period, and particularly after the accused was made generally
competent in his own defence by the Criminal Evidence Act 1898, alternative sources of information revealing the
accused’s character have become available. Conversely, the reliability of reputation as a proxy for information about
a person’s behaviour has correspondingly declined as a function of the relative anonymity of modern urban
existence.” The authors go on to note that Rowton has never been formally overruled but that equation of character
with reputation is not a doctrine invoked by contemporary courts.
[3] Tapper Cross & Tapper on Evidence 12 ed (2010) 324: Roberts & Zuckerman op cit 503.
[4] See generally Paizes in Du Toit Commentary 24-100.
[5] R v Gimingham 1946 EDL 156; R v Bellis [1966] 1 All ER 552 (CCA).
[6] R v Rowton 1506.
[7] Cf R v Bellis [1966] 1 All ER 552 (CCA) 552, where the court described the accused’s good character as
“primarily a matter that goes to credibility”.
[8] May Criminal Evidence 3 ed (1995) 118. At 121 May lists five reasons for limiting evidence as to character: (a)
it is easy to fabricate; (b) it is often irrelevant; (c) it may lead to an investigation of collateral issues; (d) it
frequently is nothing more than opinion evidence; (e) it may usurp the function of the jury. See also Choo Evidence
(2006) 195-6.
[9] Roberts & Zuckerman Criminal Evidence 504.
[10] If a witness is called to testify as to the accused’s character, she may be cross-examined so as to test the
accuracy of her testimony. Zeffertt, Paizes & Skeen (2003) 230 express the view that such witness may be asked
whether she is aware of the accused’s previous convictions. However, this view is yet to be tested by the South
African courts and remains an open question.
[11] See generally Zeffertt & Paizes 258; May Criminal Evidence 3 ed (1995) 119.
[12] R v Rowton supra.
[13] See generally Zeffertt & Paizes 247-249.
[14] R v Paluszak 1938 TPD 427; R v Butterwasser 1948 1 KB 4; 1947 2 All ER 415.
[15] Supra.
[16] At 7.
[17] R v Rowton supra. See § 6 1 above.
[18] Section 197(a).
[19] Section 197(a).
[20] Section 197(b).
[21] LAWSA para 491. See May Criminal Evidence 3 ed (1995) 134, where it is noted that “[i]t is a question of
judgment and ultimately of discretion for the judge to say what evidence amounts to the establishment of good
character”. See also R v Malindi 1966 (4) SA 123 (PC).
[22] 1944 AC 315 326-7.
[23] See May Criminal Evidence 3 ed (1995) 139. Where an accused is unrepresented the presiding officer should
warn the accused of the dangers of exposing himself to cross-examination as to character. Where a legal
representative appears on behalf of more than one accused and attacks the character of a prosecution witness, he
should indicate in advance on behalf of which accused he is making the attack. Failure to do so may result in the
shield being lifted in respect of all the accused defended by the legal representative. See R v Heyne en Andere (2)
1958 (1) SA 612 (W).
[24] R v Beecham 1921 3 KB 464; May Criminal Evidence 3 ed (1995) 135; LAWSA para 491. See also Schoultz v
Voorsitter, Personeel-Advieskomitee Van Die Munisipale Raad Van George, en ’n Ander 1983 (4) SA 689 (C).
[25] Selvey v DPP 1970 AC 304.
[26] This rule is subject to an exception in the case of rape. The Law Commission of England and Wales in its
report Evidence of Bad Character in Criminal Proceedings, report no 273, Oct 2001 paras 4 34-4 43, 12 5 and 12 13,
has sought to remove this dilemma which requires an accused to choose “between putting forward his defence at the
expense of exposing his character, or not putting it forward at all” (Mirfield “Bad Character and the Law Commission”
2002 (6) International Journal of Evidence & Proof 141 at 154). See also Redmayne “The Law Commission’s
Character Convictions” 2002 (6) International Journal of Evidence & Proof 71.
[27] May Criminal Evidence 3 ed (1995) 139.
[28] See R v Hendrickz 1933 TPD 451; Spencer v R 1946 NPD 696; R v Persutam 1934 TPD 253; The State v V
1962 (3) SA 365 (E). Section 197 replicates the provisions of s 1(f) of the English Criminal Evidence Act 1898. The
incorporation of these provisions in a South African statute allows the South African courts to depart from English
interpretation. See Paizes in Du Toit et al Commentary 23-32. See also Zeffertt, Paizes & Skeen 241, who argue that
the approach of the South African courts is to be favoured. The Zimbabwean courts follow the South African
approach. See Jesse v Pratt NO 2001 8 BCLR 814 (Z) 814A-B.
[29] S v Dlamini and Another 2008 (1) SACR 501 (N).
[30] [1965] AC 574.
[31] At 592.
[32] Murdoch v Taylor supra 591.
[33] Zeffertt & Paizes 262.
[34] 1988 (3) SA 190 (A) 197.
[35] 2002 (1) SACR 330 (C) 334i. In this case the court endorsed the view expressed by Paizes in Du Toit et al
Commentary at 23-32A.
[36] See also Zeffertt & Paizes 262.
[37] At 262.
[38] S v Pietersen 2002 (1) SACR 330 (C); S v Mavuso 1987 (3) SA 499 (A).
[39] See ch 7 below, where this rule is discussed fully. See also Zeffertt & Paizes 254; S v Mavuso 1987 (3) SA
499 (A) discussed in § 7 7 below; S v Pietersen 2002 (1) SACR 330 (C).
[40] See ch 7 below.
[41] Section 211 is not only subject to s 252 but must also be read together with ss 197, 240, 241, and 271-273
of the CPA.
[42] See Rex v Bosch 1949 (1) SA 548 (A); S v Malinga 1962 (3) SA 174 (D).
[43] S v Malinga supra.
[44] 1988 (1) SA 145 (A).
[45] At 150G.
[46] S v Hlongwa 1979 (4) SA 112 (D). See further s 60(5)(d), (e) and (g) of the CPA. Bail proceedings are only
considered criminal proceedings for purposes of ss 20 and 21 of the Supreme Court Act 59 of 1959. See S v Botha
en ’n Ander 2002 (1) SACR 222 (SCA).
[47] 2000 (2) SACR 325 (N) 329h. See also S v Thusi 2000 4 BCLR 433 (N); S v Nkuna 2013 (2) SACR 541 (GNP);
S v Bruinders 2012 (1) SACR 25 (WCC) and S v Majikazana 2012 (2) SACR 107 (SCA).
[48] This is unavoidable as s 60(11B)(a) provides that: “In bail proceedings the accused, or his or her legal
adviser, is compelled to inform the court whether — (i) the accused has previously been convicted of any offence;
and (ii) there are any charges pending against him or her and whether he or she has been released on bail in respect
of those charges.” For the various problems that can arise in this regard, see the discussion of s 60(11B)(a) by Van
der Merwe in Du Toit et al Commentary 9-67 and 9-71.
[49] Section 271 of the CPA.
[50] Rex v Moore 1948 (2) SA 227 (C). Cf S v Dlamini and Another 2008 (1) SACR 501 (N).
[51] See May Criminal Evidence 3 ed (1995) 155.
[52] 1984 (2) SA 105 (T). See also Skeen 1984 SALJ 432.
[53] Zeffertt & Paizes 263.
[54] R v Wood 1951 2 All ER 112.
[55] See generally Zeffertt & Paizes 263.
[56] See generally Skeen 1990 SACJ 77.
[57] R v Riley 1887 18 QBD 481. As this type of evidence was always considered relevant to the issue, evidence
could be adduced to contradict a denial.
[58] R v Adamstein 1937 CPD 331.
[59] R v Cockcroft 1870 11 Cox CC 410; R v Cargill 1913 2 KB 271.
[60] South African Law Commission Report on Women and Sexual Offences (1985) 42. See Temkin Rape and the
Legal Process (1987) 120; Heilbron Committee (1975) para 89.
[61] South African Law Commission Report on Women and Sexual Offences (1985) 43. It was noted by the
Heilbron Committee para 131 that “[i]n contemporary society sexual relationships outside marriage, both steady and
of a more casual character, are fairly widespread, and it seems now to be agreed that a woman’s sexual experiences
with partners of her own choice are neither indicative of untruthfulness nor of a general willingness to consent”.
[62] South African Law Commission Report on Women and Sexual Offences (1985) 49. Temkin Rape and the Legal
Process (1987) 120.
[63] Project 45 Report on Women and Sexual Offences (1985).
[64] At 48. For a comparative perspective on sexual history evidence, see Illsley 2002 SACJ 225.
[65] By s 2 of the Criminal Law and Criminal Procedure Act Amendment Act 39 of 1989.
[66] For a thorough discussion of the problems arising from the application of s 227 see South African Law
Commission, Discussion Paper 102, Project 107 Sexual Offences: Process and Procedure (2002) 485-503. See
generally Schwikkard “A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South African Law” in
Jagwanth et al (eds) Women and the Law (1994) 198. Cf Skeen 1990 SACJ 77.
[67] Temkin “Sexual History Evidence” 1993 Crim LR 3 identifies one of the major problems underlying the
relevance test, namely that relevance is an insufficiently objective criterion. She refers to the following apt
description by L’Heureux-Dube J in R v Seaboyer; R v Gayme 83 DLR (4th) 193: “Regardless of the definition used,
the content of any relevancy decision will be filled by the particular judge’s experience, common sense and/or
logic . . . There are certain areas of enquiry where experience, common sense and logic are informed by stereotype
and myth . . . This area of the law [sexual history evidence] has been particularly prone to the utilization of
stereotypes in determinations of relevance.”
[68] 2002 (2) SACR 411 (SCA) at [17].
[69] The court in S v M 2002 (2) SACR 411 (SCA) held that prior sexual history evidence admitted in the absence
of a s 227(2) application was wrongly taken and consequently should be regarded as struck from the record.
[70] Schedule to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This Act
followed an extensive report by the South African Law Reform Commission: Sexual Offences Report (Project 107)
2002.
[71] 2006 (2) SACR 191 (W). In Zuma, it was the State that made application to ask the complainant (its own
witness), how long before the incident in question she had last had intercourse. Permission was granted, and the
complainant replied by giving a specific date. Thereafter the defence made application in terms of the then-existing
s 227, to both cross-examine and lead evidence on her prior sexual history. The court granted the application. It
should be noted that in Zuma the permission granted to the defence was also based on relevance in the sense that
what was sought to be introduced was fundamental to the accused’s defence (at 204g-h): “In my judgment the
purpose of the cross-examination and the evidence the defence wanted to lead concerning the complainant’s
behaviour in the past was not to show that she misbehaved with other men. In fact it was aimed at showing
misconduct in the sense of falsely accusing men in the past. The cross-examination and evidence are relevant to the
issue of consent in the present matter, the question of motive and indeed credibility as well. It was not aimed at
showing that the complainant was a woman of questionable morals. It was aimed at the investigation of the real
issues in this matter and was fundamental to the accused’s defence.”
[72] S v M 1999 (1) SACR 664 (C).
[73] Section 166(3) of the CPA.
[74] See generally S v M 2002 (2) SACR 411 (SCA).
[75] S v M 1999 (1) SACR 664 (C).
[76] See, for example, S v Mkhize 2012 (2) SACR 90 (KZD).
[77] R v Seaboyer [1991] 2 SCR 577. Section 276 of the Canadian Code was consequently amended and confers a
more flexible discretion. English law also contains legislation restricting the admission of character evidence of
complainants and other witnesses but this too confers a relatively wide discretion on presiding officers (s 100 of the
Criminal Justice Act 2003).
[78] Milton South African Criminal Law and Procedure vol II 3 ed (1996) 492. The exceptions which apply are not
relevant for present purposes.
[79] See R v Van Tonder 1932 TPD 90.
[80] Schmidt & Rademeyer 443; Schmidt & Rademeyer (2007) 16-5; LAWSA para 495.
[81] See generally Zeffertt & Paizes 268.
[82] See, eg, Gleeson v Durheim 1869 Buch 244; Van Staden v Rudy 1908 EDC 7.
[83] See Senkge v Bredenkamp 1948 (1) SA 1145 (O); Thole and Another v Minister of Justice and Others 1967
(3) SA 531 (D).
[84] Black and Others v Joseph 1931 AD 132.
[85] See ch 25 below for a fuller discussion.
[86] See ch 7 below.
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Chapter 7
Similar Fact Evidence
P J Schwikkard
71
72
73
74
7
7
7
7
5
6
7
8
Introduction
The Rationale for the Exclusion of Similar Fact Evidence
Formulating the Rule for Determining the Admissibility of Similar Fact Evidence
731
The formulation in Makin v Attorney-General for New South Wales
732
The inadequacies of the Makin formulation
733
A necessary proviso
7331
The nexus requirement
734
The dangers of categorisation
735
The formulation in DPP v Boardman
The Requirement of Similarity
741
The test of coincidence
742
Coincidence and a nexus
743
The degree of similarity
The Facts in Issue
Other Evidence
Examples of the Exclusion of Similar Fact Evidence
An Alternative Approach
7 1 Introduction
In the previous chapter it was noted that similar facts are often relevant and admissible for
purposes of proving character (see, for example, §§ 6 2 3 3 and 6 2 4). The present chapter
deals with similar fact evidence in a wider context, but must be read in conjunction with the
previous chapter.
In S v M and Others Friedman ACJ said:
[1]
“Similar fact evidence is evidence which refers to the peculiar or immoral or illegal conduct of a party
on an occasion or occasions other than the incident or occurrence in contention, but which is also of
such a character that it is pertinent to or in essentials similar to the conduct on the occasion which
forms the issue or subject-matter of the dispute.”
Similar facts are therefore facts that are directed at showing that a party to the proceedings
(usually the accused) or a witness in the proceedings (such as a complainant) [2] has
behaved on other occasions in the same way as he is alleged to have behaved in the
circumstances presently being considered by the court. For example, George is charged with
dealing in dagga; the prosecution wants to introduce evidence showing that he has dealt in
dagga on previous occasions. Jennifer, in trying to dispute the admissibility of a confession
made
| Page 77
while she was in detention, tenders evidence that the police have on other occasions used
improper means of interrogation.
Similar fact evidence is generally inadmissible because it is irrelevant. [3] It will be
admissible only when it is both logically and legally relevant. [4] When it is found to be
sufficiently relevant it may be admitted in both civil [5] and criminal proceedings. It is most
frequently used by the state against the accused; however, there is nothing prohibiting the
accused from seeking to have similar fact evidence admitted in his or her defence. [6]
7 2 The Rationale for the Exclusion of Similar Fact Evidence
Similar fact evidence is generally irrelevant because its prejudicial effect outweighs its
probative value (see also § 5 3 5 above). The types of prejudice emanating from similar fact
evidence are numerous and varied. [7] They may pertain to prejudice to the accused. For
example, a jury who is made aware of the accused’s past bad conduct may decide that he
deserves to be punished irrespective of whether he is guilty of the offence charged. Even
worse, the jury may decide that the accused is of such a bad character that he has probably
committed many other crimes without having been detected. A consequence of this type of
reasoning is that the jury may convict even though a reasonable doubt as to the accused’s
guilt exists. In non-jury trials like ours this risk is less pronounced.
The accused may also be prejudiced in that he not only has to defend himself in respect of
the offence charged but he also has to defend past charges of misconduct. However, in S v
M [8] the court, having noted that in criminal trials one of the main reasons for not allowing
the admission of similar fact evidence was its potential for prejudicing the accused, held that
“where . . . the similar fact evidence does not go to show guilt on the part of an accused,
prejudice is a far less sensitive issue. Indeed, the Court should be wary of putting obstacles
in the way of an accused who wishes to adduce evidence in support of his or her legitimate
defence.”
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Similar fact evidence may also result in procedural inconvenience. The accused is
frequently taken by surprise when this type of evidence is introduced. [9] The investigation
into collateral issues (see § 5 3 3 above) that arises out of the introduction of similar fact
evidence inevitably extends the length of the trial, making the trial more costly and placing
additional demands on judicial resources. [10]
If similar fact evidence is admitted too readily, it also has the potential to undermine the
proper administration of justice. An overworked police force, knowing that a person’s past
record will be considered by the court, may be tempted to focus on past offenders. This
could result in sloppy investigation techniques. It may also discourage persons who are
genuinely trying to rehabilitate themselves. In addition it would make it easier for the police
to bring undue pressure to bear on past offenders and in this way induce involuntary
confessions and admissions.
Trial by jury has clearly influenced the formulation of the similar fact rule. In South Africa
the jury system has been abolished. This has led to the questioning of the applicability of the
existing formulation of the similar fact rule (see § 7 8 below).
But when all is said and done, it is the constitutional right to a fair trial that must control
the admissibility of similar fact evidence; and a fair trial is put in jeopardy if irrelevant
similar fact evidence is admitted. [11]
7 3 Formulating the Rule for Determining the Admissibility of
Similar Fact Evidence
The many prejudicial factors associated with similar fact evidence have made the
formulation of a workable general rule for determining the admissibility of similar fact
evidence extremely difficult.
7 3 1 The formulation in Makin v Attorney-General for New South Wales
Probably the most influential formulation is to be found in Lord Herschell’s dictum in Makin v
Attorney-General for New South Wales: [12]
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“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts other than those covered by the indictment, for the purpose
of leading to the conclusion that the accused is a person likely from his criminal conduct or character
to have committed the offence for which he is being tried. On the other hand, the mere fact that the
evidence adduced tends to show the commission of other crimes does not render it inadmissible if it
be relevant to an issue before the jury, and it may be so relevant if it bears upon the question
whether the acts alleged to constitute the crime charged in the indictment were designed or
accidental, or to rebut a defence which would otherwise be open to the accused.”
In this case a husband and wife were charged with the murder of a young child. They had
“fostered” this child in return for a sum of money that was insufficient for its maintenance.
The child’s body had been found buried in the garden of the house occupied by them. These
facts were consistent both with the allegation that the child was murdered for the purpose of
gaining the maintenance money and the defence that the child had died from natural causes
accompanied by an irregular burial. However, the prosecution also adduced evidence that
skeletal remains of other babies had been found in the gardens of homes previously
occupied by the accused, and that four other women had given their babies over to the
accused, having paid them an inadequate amount for maintenance, and that these babies
had also vanished. The Privy Council found that this evidence had been correctly admitted to
negative the possibility that the child’s death resulted from accident or natural causes. It
was not admitted to show that the accused had a propensity to kill babies and that they
were therefore guilty of the crime charged.
In explanation of Lord Herschell’s dictum it has been held that the admissibility of similar
fact evidence can be determined in accordance with which one of two chains of reasoning is
employed. The evidence will be excluded if the court is asked to conclude that the accused is
guilty because he has a propensity to act in a particular way. It will be admitted “if there is
some relevant, probative purpose for it other than for the prohibited form of reasoning . . .
but when it is received, the trier of fact must eschew the forbidden reasoning”. [13] In terms
of this formulation similar fact evidence may not be admitted if it is used only to establish
propensity.
7 3 2 The inadequacies of the Makin formulation
The Makin formulation is inadequate in that it fails to explain several cases. [14] It is apparent
that in a significant number of cases “propensity itself is so highly relevant to the issue in a
particular case, that evidence of propensity itself is admitted”. [15] An example of this is to be
found in the case of R v Straffen. [16] The accused was charged with murdering a young girl
(L). The prosecution tendered evidence relating to two other young girls. All three girls had
been strangled, without having been sexually interfered with. In all three cases there was no
apparent motive for the
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crime and no evidence of a struggle. Furthermore, there was no attempt to hide the bodies,
although concealment was relatively easy. Straffen had at an earlier date been charged with
the murder of the other two girls, but was found unfit to plead on the ground of insanity and
committed to an institution. He escaped from the institution and he was seen near the place
where L’s body was found. During the very brief period of his escape L was murdered. There
was further evidence that he had admitted to killing the two other girls. The evidence was
admitted on the ground that it was relevant to identity. However, it is difficult to argue that
the probative value of the evidence was not based on propensity, “since it established that
the accused possessed a propensity of the most unusual kind: he was a strangler of small
girls, in peculiar circumstances, and for no apparent motive”. [17] It was this peculiar
propensity that was highly relevant to an issue, namely the identity of the killer, which made
the evidence admissible. [18]
7 3 3 A necessary proviso
It is because of the difficulties outlined above that Zeffertt, Paizes & Skeen assert that the
Makin formulation can only be used as a basis for explaining the case law if the following
proviso is added to it: “[I]n some cases, evidence which proves disposition will be admissible
if, on the facts of the case, it is a disposition which is highly relevant to an issue in it.” [19]
They contend that, as a consequence of the inadequacies of the Makin formulation, the
courts have tended to prefer to cite the proposition of Lawrence J in R v Bond: [20] “In
proximity of time, in method or in circumstances there must be a nexus between the two
sets of facts, otherwise no inference can be safely induced therefrom.”
7 3 3 1 The nexus requirement
In terms of the “nexus requirement” there must be a link between the fact in issue (the
probandum) and the similar fact (the probans). This is explained by Stephen as follows:
“You are not to draw inferences from one transaction to another which is not specifically
connected with it merely because the two resemble each other. They must be linked
together by the chain of cause and effect in some assignable way before you can draw your
inference.” [21]
It has been suggested that the “nexus requirement” is merely another way of stating that
the evidence must be relevant. [22] In this context the requirement of
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relevance demands that the evidence “must have probative value in the sense that it can
give rise to reasonable inferences in deciding the facts in issue”. [23]
7 3 4 The dangers of categorisation
An unfortunate consequence of the Makin formulation is that it has been interpreted by
many lawyers as establishing rigid categories in which similar fact evidence will be regarded
as relevant. An example of this approach is to be seen in the statement in Green that “[t]he
usual ambit of the admission of ’similar fact’ evidence is to prove identity, intent, guilty
knowledge, or, as often in sexual cases, to rebut a defence of innocent association and the
like”. [24]
Zeffertt, Paizes & Skeen highlight the dangers of such an approach:
[25]
“The danger of categorizing instances of admissibility is that it may lead to casuistry, to insoluble
metaphysical problems as to the confines of the categories, and to the error of thinking that, because
evidence slots into a category, it will be admissible.”
The “categorisation approach” was rejected in Harris v DPP.
[26]
7 3 5 The formulation in DPP v Boardman
In DPP v Boardman [27] the court stressed that it was the application of principle that was of
prime importance, [28] the principle being that similar fact evidence is admissible only where
its probative value exceeds it prejudicial effect. [29] This formulation was accepted by the
Appellate Division in S v D. [30] The Makin rule was not rejected in Boardman — rather it was
applauded. [31] Therefore Boardman must simply be read as revealing the underlying
principle in Makin. [32] Any doubt as to the endorsement of principle in Boardman was swept
away by the House of Lord in DPP v P [33] in which the court held:
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“[T]he essential feature of evidence which is to be admitted is that its probative force in support of
the allegation that an accused person committed a crime is sufficiently great to make it just to admit
the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was
guilty of another crime . . . Once the principle is recognized, that what has to be assessed is the
probative force of the evidence in question, the infinite variety of circumstances in which the question
arises, demonstrates that there is no single manner in which this can be achieved. Whether the
evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a
question of degree.”
7 4 The Requirement of Similarity
The probative value of similar fact evidence will to a large extent be determined by the
degree of similarity between a person’s conduct on other occasions and on the occasion
which is the subject of the court’s inquiry. [34]
Lord Wilberforce
[35]
expressed the requirement of similarity in the following terms:
[36]
“The basic principle must be that the admission of similar fact evidence (of the kind now in question)
is exceptional and requires a strong degree of probative force. This probative force is derived, if at all,
from the circumstances that the facts testified to by the several witnesses bear to each other such a
striking similarity that they must, when judged by experience and common sense, either all be true,
or have arisen from a cause common to the witnesses or from pure coincidence. The jury may
therefore properly be asked to judge whether the right conclusion is that all are true, so that each
story is supported by the other(s).”
Zeffertt, Paizes & Skeen assert that “[t]he relevance of similar fact evidence depends upon
the argument that the same conditions are likely to produce the same results”. [37] In
Laubscher v National Foods Ltd [38] Reynolds J held that “before similar fact evidence [can]
be admitted, the similarity of conditions applicable in each case has to be satisfactorily
established”. However, the requirement of similarity should not be unduly emphasised.
7 4 1 The test of coincidence
McEwan maintains that a mistake commonly made since Boardman is to assume that
evidence of previous misconduct by the accused will have the requisite probative value only
when the other incidents are “uniquely strikingly similar”. [39] She says it is preferable to see
the test in terms of “whether the evidence can be explained away as coincidence”. [40]
Several examples from case law support this argument. In R v Bond [41] the accused, a
medical practitioner, was convicted of unlawfully using instruments upon a woman (J) with
the intent to procure an abortion. The trial judge
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admitted the evidence of another woman (T) to the effect that the accused had performed a
similar operation on her with similar intent some nine months previously. In the course of
her examination in chief, T further testified that the accused had subsequently told her that
he had “put dozens of girls right”. Both women had at the material times been living at the
accused’s house and were pregnant by him. The defence was that instruments had been
used on J in the course of a lawful medical examination, that the abortion was accidental,
and there had been no intent. Why was this evidence admissible? There was no striking
similarity between the other unlawful abortions performed by the accused. However, the
evidence was significant in that it made the defence of accident implausible when raised by a
man with apparent expertise in abortion.
In Boardman the appellant, the headmaster of a boarding school for boys, was charged
with, inter alia, committing certain homosexual offences on S, a pupil aged 16, and with
inciting H, a pupil aged 17, to commit such offences. There was no application for a
separation of trials. The jury therefore heard the evidence of both S and H, who each
testified only to incidents in which they themselves were concerned. The judge ruled and
directed the jury that the evidence of S on the count concerning him was admissible as
corroborative evidence and vice versa. In doing so, the judge drew attention to certain
common features in the evidence of the two boys that justified cross-admissibility under the
Makin rule. In particular, both boys said that Boardman had tried to instigate sexual acts in
which Boardman would play the passive role. The judge apparently took judicial notice (see
generally § 27 1 below) of the fact that this was a very unusual form of homosexual
behaviour.
Despite the questionable judicial notice of what constituted unusual homosexual
behaviour, there was no striking similarity between the two incidents. But the fact that both
boys alleged that D wished to take the passive role, and the unlikelihood of them both
constructing exactly the same lie, was sufficient to suggest that the resemblance between
the two incidents went beyond coincidence. [42]
7 4 2 Coincidence and a nexus
Another way of approaching the coincidence test is to say that the nexus referred to in Bond
can be found in the extreme unlikelihood of coincidence. [43] Take, for example, the case of R
v Smith. [44] In this case the appellant was charged with the murder of a woman with whom
he had recently gone through a bigamous marriage ceremony. She had been found dead in
her bath. The accused, who stood to benefit financially from her
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death, had sought to show that it resulted from an epileptic fit. At the trial evidence was
given that two other women had died on subsequent dates, that the appellant had gone
through a form of marriage with each of these women, and that both had died in their baths
in circumstances very similar to those surrounding the death of the victim in the instance
case. In each case the accused again stood to benefit financially by the woman’s death. On
appeal the court held that the evidence had been correctly admitted in that it was sufficiently
relevant to rebut the accused’s defence. The court found that the occurrence of so many
accidents which benefited the accused could not reasonable be explained on the basis of
coincidence.
The similar fact argument in Smith can be summarised as follows: “[E]ither all three
deaths were accidental, or else the accused was responsible for each of them. The
improbability of coincidence may therefore often establish the required link.” [45]
7 4 3 The degree of similarity
If we apply the coincidence test, it is necessary to consider disputed evidence in its context.
McEwan contends that “this opens the way for unusual propensities and/or evidence which is
not, prima facie, strikingly similar”. [46] The circumstances of each case will determine the
necessary degree of similarity. This can be illustrated by comparing Makin [47] and
Boardman. [48] In Makin the similar fact evidence was required to fulfil a large part of the
prosecution’s task. In its absence it was difficult to sustain the contention that the accused
were responsible for the death of their victims. In such cases a high degree of similarity will
be required between the incidents before a sufficient link can be established. On the other
hand, in cases such as Boardman, where there is other evidence supporting the prosecution
case, the degree of similarity required is much lower. [49]
7 5 The Facts in Issue
The relevance of similar fact evidence must be assessed in the light of the issues to be
decided and the other evidence available to the court. [50] It follows that
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the admissibility of similar fact evidence also depends on what the issues before the court
are. [51] This in turn makes it necessary to identify the issues. This is not difficult in civil
proceedings, where the issues are established in the pleadings. In criminal matters the
issues are far more difficult to ascertain in that the accused is entitled to deny every element
of the charge or raise whatever defence that is open to him. [52] This does not mean,
however, that the prosecution is given a licence to introduce similar fact evidence merely on
the basis that it might conceivably be relevant. [53] In Thompson v R [54] Lord Sumner held
that the issue “must have been raised in substance if not in so many words”. In many
instances the relevant issues are apparent from the nature of the case and the prosecution
need not wait until the issue is specifically raised by the accused. Zeffertt & Paizes give the
following example: [55]
“[I]f the charge against the accused is that he fraudulently obtained goods on credit without intending
to pay for them, it would not be sufficient for the prosecution merely to prove that he bought goods
and did not pay. If this is all that the evidence disclosed, the accused would be discharged at the end
of the prosecution case without having to raise a defence at all. The prosecution have to adduce
positive evidence that the accused intended to defraud, and to do this they would be entitled to lead
evidence that the accused had made a practice of buying goods in similar circumstances and not
paying for them.”
The following example illustrates how the relevance of similar fact evidence can be negated
by an admission made by the accused:
“[I]f someone is charged with committing a crime in Cape Town, the prosecution could prove that he
was there and had an opportunity to commit the offence by showing that on the same day he robbed
a bank there, but if he admitted his presence in Cape Town, this evidence could have no purpose but
prejudice.” [56]
7 6 Other Evidence
“The question must always be whether the similar fact evidence taken together with the other
evidence would do no more than raise or strengthen a suspicion that the accused committed the
offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury
would acquit in the face of it.” [57]
The relevance of similar fact evidence will also be determined by the strength of the other
available evidence. [58] This is well illustrated by the case of R v Ball. [59] The accused, a
brother and sister, were convicted of incest committed during certain periods in 1910. The
main prosecution evidence was that the accused, who held themselves out as married, were
seen together at night in a house which had only one furnished bedroom, containing a
double bed showing signs of occupation by two persons. The brother had been seen
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coming from the bedroom in a half-dressed state while the woman was in a nightdress. The
similar fact evidence admitted by Scrutton J was that three years earlier, before incest was
made criminal, the accused had lived together as man and wife sharing a bed, and that a
baby had been born, the accused being registered as its parents. This similar fact evidence
was highly probative, given the circumstances in which they were presently cohabiting. If
the evidence had been that they lived in the same house but occupied separate bedrooms,
the probative value of the evidence would have been greatly diminished. [60]
In S v D [61] the accused had been convicted in a local division of a multiplicity of crimes,
including six counts of rape and one of robbery. He appealed, inter alia, against one of the
rape convictions and the robbery conviction. These alleged offences had been committed in
respect of the same complainant (X). The complainant had not been able to identify the
accused and the trial court had to rely on circumstantial evidence in reaching its decision to
convict. In a confession the accused had admitted to committing the other crimes with which
he was charged, but not the two forming the subject-matter of the appeal. Evidence was led
that the person who raped X told her to “sleep down”. These were the same words used by
the accused in respect of one of the other rape charges for which he had been convicted.
The trial court held that these words were so distinctive that their probative value was
sufficient to justify their admission in order to establish the accused’s identity. However, the
appeal court held that these words on their own did not have sufficient weight to confirm
identity, but if they were taken together with the other striking similarities, they did indeed
have the required probative value. The other rapes were all committed in a particular area
within a period of four months. The robbery and rape of X occurred in the same area and in
the middle of the series of the other crimes. The conduct of the perpetrator was very similar
to that of the accused in respect of the other crimes for which he had been convicted,
namely, all the crimes were committed during the morning or early afternoon, and the
accused would enter the house surreptitiously and confront the victim. He would first
demand money and then rape the victim. In almost every incident he removed, or asked, for
the victim’s watch. When the similarity of this conduct was viewed together with the
evidence that the accused had been found in possession of X’s keys, it was held that the
accused had been correctly convicted. The appeal court upheld the trial court’s rejection of
the accused’s contention that he had coincidentally picked the keys up in the street: [62]
“If, in truth, and without hearing any evidence to that effect, the accused had picked up those keys,
then we are asked to believe that one man who is a rapist has picked up a bunch of keys abandoned
by another rapist. Apart from the fact that the area is the same area where the accused lives, it is
remarkable that, if the keys recovered by the police were not stolen from the complainant’s house by
the accused, but by a man who had
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raped there, they should come into the possession of another man who is a proved rapist. We think
such a proposition would be stretching the bounds of coincidence beyond any possible limits.”
Despite the appeal court’s use of the words “striking similarity”, the conduct of the accused
was not of a particular or unique nature. However, the fact that the accused had committed
other crimes in the same area, during the same time period, and, more importantly, that he
was found in possession of the complainant’s keys imbued the similar fact evidence with
high probative value and made the likelihood of coincidence most improbable. [63]
7 7 Examples of the Exclusion of Similar Fact Evidence
Laubscher v National Foods Ltd: [64] In this case the plaintiff was a pig farmer who claimed
that his pigs had died as a result of eating contaminated foodstuff that he had bought from
the defendant. He wished to adduce evidence that other pig farmers had similarly lost pigs
after they had eaten the defendant’s foodstuff. The court held this evidence irrelevant in that
it lacked sufficient similarity. The evidence did not establish that the foodstuff had been
bought during the same time period that the plaintiff purchased it. Nor did it indicate that
the pigs had become ill within the same time of eating it, or that the conditions on the farms
were similar, or that the animal husbandry practices were similar.
S v Mavuso: [65] The appellant was convicted in a magistrate’s court of dealing in dagga.
He appealed on the basis that the magistrate had incorrectly allowed the prosecution to
question him as to a previous conviction on the same charge. The questioning as to the
previous conviction arose in the following circumstances: the accused’s defence was that he
did not know that it was dagga in the bags which he was carrying in a motor vehicle, and
under cross-examination he said that he had never before had anything to do with dagga.
The Appellate Division held that the evidence did not pass the relevance test because the
facts giving rise to the previous conviction were unknown and therefore it could not be
inferred that he knew what dagga smelt like (ie there was insufficient similarity).
Furthermore, the previous conviction was a long time ago and as the definition of dealing in
dagga is so wide, it was not necessary that the accused had handled the dagga himself.
Consequently, the evidence of the previous conviction was held inadmissible. It therefore
could not be established whether the accused knew that the dagga was in the car. The
conviction was set aside. [66]
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7 8 An Alternative Approach
Paizes [67] argues that the similar fact rule was formulated in accordance with the
characteristics of the jury trial, and that since juries have long been abolished in South
Africa, a consideration of the necessity and desirability of the similar fact rule is long
overdue.
He argues that exclusion is an inappropriate way of dealing with the dangers inherent in
the admission of similar fact evidence. It is absurd to require a judge to exclude evidence
whenever he envisages that its reception might induce him wrongly to convict the accused:
if he is able to perceive this risk, he will be able, too, to guard against it. Paizes argues that
in South Africa the primary concern should be whether the admission of similar fact evidence
will render a trial unfair and that the best way of avoiding trial unfairness is to apply the
same rules applicable to circumstantial evidence to similar fact evidence. [68] This would
enable the courts to apply the relevance rule to similar fact evidence in a more coherent
manner. Despite the merits of Paizes’ arguments, the South African courts have not to date
been called upon to consider this alternate approach and we remain bound by the Makin
formulation. [69] It may well be that the time is ripe for the legislature to revisit the rules of
evidence. This particularly so given the Constitutional Court’s conclusion in Savoi and Others
v National Director of Public Prosecutions and Another [70] that the admission of otherwise
inadmissible similar fact evidence would not necessarily render a trial unfair.
As the present mish-mash of rules governing character evidence and similar fact evidence
are essentially a reflection of the English common law, it is particularly pertinent to consider
recent reforms in England. The Criminal Justice Act 2003 has adopted a principled approach
reflecting the rules of relevance in a comprehensive and detailed piece of legislation. Section
99(1) abolishes, in principle, the “common-law rules governing the admissibility of evidence
of bad character”. Although the same underlying principles are applied to evidence of the
bad character of a witness other than the accused, there are more elaborate rules governing
the admission of evidence of the accused’s bad character in recognition of the particular
vulnerabilities that attach to an accused in criminal proceedings. [71]
[1] 1995 (1) SACR 667 (BA) at 684d-e.
[2] S v Wilmot 2002 (2) SACR 145 (SCA) and S v Zuma 2006 (2) SACR 191 (W).
[3] See generally Zeffertt & Paizes 271.
[4] S v Jones 2004 (1) SACR 420 (C); Rex v Pharenque 1927 AD 57; Rex v Zawels and Another 1937 AD 342;
Delew v Town Council of Springs 1945 TPD 128; Laubscher v National Foods Ltd 1986 (1) SA 553 (ZS). The latter
case is summarised in § 7 7 below.
[5] The same principles of admissibility are applied in both civil and criminal cases. “The courts, however, are less
wary of receiving similar fact evidence in the civil context than they are in the criminal context”: LAWSA para 501.
See also Mood Music Publishing Co Ltd v De Wolfe Ltd 1976 1 All ER 763 (CA).
[6] S v Letsoko and Others 1964 (4) SA 768 (A); S v Yengeni and Others (2) 1991 (1) SACR 329 (C); S v M and
Others 1995 (1) SACR 667 (BA). In these three cases it was alleged that the police habitually induced involuntary
confessions. See further S v Zuma supra and S v Wilmot supra.
[7] For a full discussion of these prejudicial factors, see Paizes in Visser (ed) Essays in Honour of Ellison Kahn
(1989) 238. See also Tapper “Proof and Prejudice” in Campbell & Waller (eds) Well and Truly Tried: Essay in Honour
of Sir Richard Eggleston (1982) 177; Hoffmann “Similar Facts after Boardman” 1975 91 Law Quarterly Review 193;
Roberts & Zuckerman Criminal Evidence (2004) 505.
[8] Supra at 692d-e. In S v Sewnarain 2013 (1) SACR 543 (KZP) Swain J stated as follows (at [20]): “A stricter
test is applied when similar fact evidence is sought to be led against an accused, as against when it is to be used
against the police, because of the concept of the prejudicial effect on the accused . . .”
[9] In S v Fani and Others 1994 (1) SACR 635 (E) 639-40 Jones J remarked, in an obiter dictum, that for there to
be a fair trial as envisaged by the Interim Constitution the State should disclose (amongst many other things) the full
particulars of any similar fact or character evidence which it intends to lead.
[10] Delew v Town Council of Springs supra; S v M supra.
[11] It is therefore not entirely clear what the legislature sought to achieve with the provisions of s 2(2) of the
Prevention of Organised Crime Act 121 of 1998 (“POCA”). The relevant portion of s 2(2) of POCA provides as follows:
“The court may hear evidence, including evidence with regard to . . . similar facts . . . relating to offences
contemplated in subsection (1), notwithstanding that such evidence might otherwise be inadmissible, provided that
such evidence would not render a trial unfair.” Section 2(1) of POCA creates offences relating to racketeering
activities. Given the nature of these offences, similar fact evidence may very well often be relevant and admissible.
But if irrelevant (and therefore “otherwise inadmissible”), it is hard to imagine that it could be admitted without
rendering the trial unfair. However, the Constitutional Court in Savoi and Others v National Director of Public
Prosecutions and Another 2014 (1) SACR 545 (CC) held that the courts’ resistance to departing from the Makin
formulation (see S v Nduna 2011 (1) SACR 115 (SCA)) meant that it was possible that the application of the similar
fact rule could result in the exclusion of relevant evidence.
[12] 1894 AC 57 (PC) 65.
[13] LAWSA para 496. See also S v Moti 1998 (2) SACR 245 (SCA).
[14] See R v Ball 1911 AC 47 (HL); Thompson v R 1918 AC 221 (HL); S v Moti 1998 (2) SACR 245 (SCA). Paizes
Essays in Honour of Ellison Kahn 241. See also Keane The Modern Law of Evidence 4 ed (1996) 417; Roberts &
Zuckerman Criminal Evidence 519 et seq.
[15] Zeffertt, Paizes & Skeen 255.
[16] Supra.
[17] Williams 1979 5 Dalhousie LJ 281. For a case where a peculiar technique (as opposed to a peculiar
propensity) was found relevant in linking the accused to the crime, see R v Frederick JS 56/38 (SWA) as summarised
and quoted by Engelbrecht et al Vonnisbundel vir die Bewysreg (1983) 206.
[18] Similarly in S v Moti 1998 (2) SACR 245 (SCA) the court held that the evidence of a common modus operandi
and the appellant’s direct involvement in similar cases of robbery was relevant in that it corroborated evidence
identifying the appellant. Nienaber JA held that although the similar fact evidence was admissible for identification
purposes it could not be used to sustain an inference that the appellant participated in the robbery.
[19] At 258. See also Uglow Evidence: Text and Materials (1997) 433.
[20] 1906 2 KB 389 at 424. See The State v Green 1962 (3) SA 886 (A) 894; S v Letsoko and Others 1964 (4) SA
768 (A) 775; Jones v S 1970 2 PH H129 (A); S v Naryan 1998 (2) SACR 345 (W); Zeffertt, Paizes & Skeen 258.
[21] Digest of the Law of Evidence (1914) note VI: articles 10, 11 & 12.
[22] Van der Merwe (ed) Evidence (1983) 71.
[23] Van der Merwe (ed) Evidence 71. See S v Green supra; S v Letsoko and Others supra; S v M supra.
[24] Supra 894.
[25] (2007) at 257. See also Uglow Evidence: Text and Materials 437.
[26] 1952 AC 694. Cf Rex v Katz and Another 1946 AD 71; S v M supra. Although condemning the “categorisation
approach”, many evidence texts use them to group and analyse the plethora of similar facts cases. The following list
of categories is most frequently enumerated: acts part of the transaction or res gestae, presence at a place,
possession of a weapon etc, previous course of dealing, motive, sexual passion, acts of preparation, knowledge,
intent, design or system, accident or mistake, identity, innocent association, innocent possession, proving the actus
reus. See also Schmidt & Rademeyer 421-34 as well as Schmidt & Rademeyer (2007) 15-10 to 15-20.
[27] 1975 AC 421.
[28] At 439.
[29] At 442, 451 and 456-7. Zeffertt & Paizes 279 assert that Boardman clearly demonstrates that in similar fact
cases it is the degree of relevance that is important, not the kind of relevance. See also Paizes Essays in Honour of
Ellison Kahn 244. In S v M supra 689c the court held that “the reception of similar fact evidence has to be justified
by it having so strong a probative value that it should be received in the interests in justice”. See also S v Zuma
supra.
[30] 1991 (2) SACR 543 (A) 543, where the court held that “the admission of similar fact evidence is exceptional
and requires a strong degree of probative force”. See also R v Roets and Another 1954 (3) SA 512 (A); Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); S v Winnaar 1997 (2)
SACR 352 (O); R v Roets and Another 1954 (3) SA 512 (A).
[31] At 438, 450, 461.
[32] Paizes Essays in Honour of Ellison Kahn 244 queries whether the Boardman approach embodies a legal rule or
the exercise of judicial discretion. See Zeffertt & Paizes 303 et seq for a critique of the application of judicial
discretion and similar fact evidence.
[33] [1991] 2 AC 447 HL 460-1.
[34] S v D supra 546; S v M supra.
[35] Boardman supra 444 (AC Reports).
[36] See also Rex v Kalkiwich and Kruger 1942 AD 79 at 86-7; S v M 1985 (1) SA 1 (A) 4.
[37] At 251.
[38] Supra 554. See the discussion of this case in § 7 7 below.
[39] McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 58.
[40] McEwan Adversarial Process 59. See R v Mansfield 1978 1 All ER 134; Schwikkard 1995 SACJ 389, where the
approach taken by the court in S v M and Others 1995 (1) SACR 667 (BA) is criticised.
[41] 1906 2 KB 389.
[42] See McEwan Adversarial Process 58. See also S v R 1990 (1) SACR 413 (ZS). Zeffertt & Paizes 299 note that
although “[e]vidence which tends to prove guilt on one count is not admissible on another count merely because
they are tried together . . . [I]f evidence on other counts is admissible according to the ordinary rules of similar-fact
evidence, it may also be used to corroborate a witness giving evidence on the particular count under consideration”.
In this regard see: Rex v Viljoen 1947 (2) SA 56 (A); The State v Green 1962 (3) SA 886 (A); S v Nduna 2011 (1)
SACR 115 (SCA).
[43] See generally R v Roets and Another 1954 (3) SA 512 (A) 521; R v Sims 1946 1 All ER 697; Rex v Pharenque
1927 AD 57; R v Smith (1915) 11 Cr App Rep 229; S v M and Others 1995 (1) SACR 667 (BA).
[44] Supra.
[45] Van der Merwe (ed) Evidence (1983) 72. See also Tapper Cross & Tapper on Evidence 9 ed (1999) 360: “[I]n
Smith the evidence of the other deaths tended to rebut a possible defence of accident. It was inherently implausible
that so many accidents would happen.” Emphasis added. On the improbability of coincidence, see also Omega, Louis
Brandt et Frere SA and Another v African Textile Distributors 1982 (1) SA 951 (T).
[46] Adversarial Process 60.
[47] Supra.
[48] Supra.
[49] McEwan Adversarial Process 60. See also S v Banana 2000 (2) SACR 1 (ZS) in which Gubbay J, approving the
approach of Lord Mackay in R v P 1991 3 All ER 337 (HL) held that in determining the admissibility of similar fact
evidence undue emphasis should not be placed on the requirement of striking similarity. See also Savoi and Others v
National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC) at [54] and compare S v Sewnarain
2013 (1) SACR 543 (KZP) at [20] where it was said that “the similar fact evidence must bear a ‘striking similarity’ to
the evidence in relation to the offence.”
[50] McEwan Adversarial Process 45. This approach was given approval by O’Connor J in R v Horwood 1970 1 QB
133.
[51] Zeffertt & Paizes 284; R v Solomons 1959 (2) SA 352 (A); S v Winnaar supra; cf Rex v Zawels and Another
1937 AD 342.
[52] Zeffertt & Paizes 284.
[53] Zeffertt & Paizes 284.
[54] 1918 All ER 521 at 526.
[55] Law of Evidence 284.
[56] Zeffertt & Paizes 285.
[57] Boardman supra 457.
[58] Zeffertt & Paizes 280.
[59] 1911 AC 47 (HL).
[60] The Ball case is frequently cited as an example of a case where the accused’s propensity was highly relevant.
[61] 1991 (2) SACR 543 (A).
[62] At 547.
[63] See also S v Naryan 1998 (2) SACR 345 (W).
[64] Supra. See also Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E Quarries (Pty) Ltd 2002 (1) SA 632 (E) at 639.
[65] 1987 (3) SA 499 (A).
[66] See also S v January 1995 (1) SACR 202 (O).
[67] Essays in Honour of Ellison Kahn 254.
[68] Zeffertt & Paizes 304-5.
[69] As elucidated by Boardman supra, the approach in Boardman having been adopted by the Appellate Division
in S v D supra.
[70] 2014 (1) SACR 545 (CC) at [59].
[71] For discussions of the relevant provisions of the Criminal Justice Act 2003, see Choo Evidence 3 ed (2012)
244 et seq.
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Chapter 8
Opinion Evidence
E van der Berg and S E van der Merwe
8
8
8
8
8
1
2
3
4
5
86
87
88
Introduction
Fact and Opinion: Some Comments
The Basis of the Opinion Rule
Lay Persons and Experts
The Opinion of a Lay Person
851
The compendious mode
852
Handwriting
853
Probative value of lay opinion
The Expert Witness
861
The expert witness: the need to lay a foundation
862
Reasons for opinion and probative value of the opinion
863
Hearsay and expert opinion
864
The expert referring to textbooks
Procedural Aspects
The Rule in Hollington
8 1 Introduction
This chapter deals with the following question: is the opinion (inference, conclusion,
impression, belief) [1] of a witness — whether expert [2] or lay person [3] — admissible
evidence? Should an opinion be admitted for purposes of persuading the court to rely on it in
deciding the issue at hand? The Constitutional Court in Helen Suzman Foundation v
President of the Republic of South Africa and Others provided the following answer: [4]
“Any opinion, whether from a lay person or expert, which is expressed on an issue the court can
decide without receiving such opinion is in principle inadmissible because of its irrelevance. Only when
an opinion has probative force can it be considered admissible.”
The essential and very first question must therefore be: what are the issues? [5] Broadly
speaking, it may be said that if the issue is of such a nature that the opinion of an expert or
lay person can assist the court in deciding the issue, the opinion evidence is relevant and
admissible [6] — unless some other rule, such as hearsay, calls for exclusion. By the same
it may be said that if the opinion relates to an issue which the court can decide
|token,
without the aid of
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opinion evidence of an expert or lay person, the opinion is irrelevant and therefore
inadmissible. [7] The reasons for this rule, and some refinements thereof, are discussed in
§ 8 3 below.
Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd [8] provides a good example of the
difficulties that can arise, not only in applying the above rule but also in distinguishing
between fact and opinion. [9] In this case the plaintiff contended that the advertisements of
the defendant’s product were calculated to mislead consumers into believing that the
defendant’s toothpaste possessed certain qualities concerning the removal and reduction of
plaque and tartar on teeth, which it did not. The plaintiff sought to lead the evidence of an
assistant manager of an insurance company (and thus a layman with no expert knowledge of
the matter) as to how he understood the advertisement. Counsel for the defendant objected
on the ground that this testimony was nothing more than the opinion of a lay person on a
question that the court had to decide. It was argued that the witness was no better qualified
than the court to form an opinion, and that the admission of the evidence would have the
effect of usurping the court’s function. However, counsel for the plaintiff submitted that the
evidence was relevant and admissible because the purpose of the evidence was not to
persuade the court to adopt the opinion of the witness. It was argued that the purpose of
the evidence was to prove the deception — and if, during the course of his testimony in
support of the personal deception experienced by the witness, an opinion had of necessity to
be expressed as to the meaning, for the witness, of the advertisement, it should not be
excluded on that basis alone. Van Schalkwyk J agreed with the plaintiff’s counsel and
overruled the objection. His reason was that the fact that an opinion was contained in the
evidence of the lay witness concerned could not “preclude the evidence if its purpose is to
show that as a result of his interpretation of the advertisement he was misled”. [10] It may be
said — at the risk of oversimplification — that the evidence of the witness was a factum
probans which could not be proved without also permitting the witness to state his own
personal conclusion. Van Schalkwyk J made it clear that a court should “refuse to hear
evidence only in circumstances where a witness, unqualified as an expert, seeks to give
evidence which in its essence does no more than that which the Court is itself called upon to
do . . . [T]he witness may not interpret but he may give evidence of a factual nature to act
as an aid to interpretation.” [11]
In Stewarts & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd and
Others [12] an issue of a different nature arose. In this case the trial court was requested by
counsel for two of the defendants to examine certain handwriting under a high-power
microscope, and in so doing to be guided by an expert in
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the field of handwriting, a certain Mr Gilchrist. Counsel claimed that this procedure would
have enabled the court to make observations which would have assisted the court in
determining the order in which two witnesses had affixed their handwriting on a document —
which was an issue which could have reflected on the credibility of these two witnesses. Le
Grange J held that counsel [13]
“seeks through the witness Gilchrist to educate my eye, because he first wishes Mr Gilchrist to explain
to me what he saw when he looked through the microscope. I gather this will be done, and it is
necessary for Mr Gilchrist to do this, in order that I should know what to look for. Well, the Court
declines the opportunity of qualifying itself in this branch of science. It appears to me that it is
undesirable from every point of view that the Court should look through certain sophisticated
instruments and rely upon its own observations when, from its limited knowledge of the subject, it
does not know whether its observations are reliable or not and whether an inference can reliably be
drawn from them or not. The Court therefore declines the invitation to look at the document through
the microscope.”
Of course, the Stewarts & Lloyds case stands on an entirely different footing from the
Colgate case — and is also clearly discernible from cases where the court can make its own
observations and form its own opinion on the basis of ordinary knowledge or skill common to
the average person. In Rex v Makeip [14] the trial judge had examined plaster casts of
footprints with an ordinary magnifying glass. He had also measured several distances
between various marks. The Appellate Division had no quarrel with this procedure as it
involved no more than ordinary everyday knowledge or skill. In fact, in the case of S v
Mkhabela Corbett JA (as he then was) also came to the conclusion that “it will always be
more satisfactory if the Court is able, by means of a photograph or a plaster cast or some
other visual medium . . . to make the necessary comparisons and to assess the cogency of
the footprint evidence”. [15]
Makeip and Mkhabela supra merely illustrate that a court need not be guided by opinion
evidence in respect of matters which can be assessed on the basis of ordinary knowledge or
skill. But it is irregular for a court to attempt to qualify itself as an expert for purposes of the
trial or to rely on its own peculiar specialist knowledge. [16]
8 2 Fact and Opinion: Some Comments
[17]
It is sometimes stated that in terms of the opinion rule a witness must give evidence of facts
and may not express an opinion unless he is an expert or, if not an expert, his opinion can
be received as an exception to the general rule which excludes opinion evidence. [18] Apart
from the fact that this formulation
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amounts to a gross distortion of the true rule, [19] it also fails to accommodate the practical
reality that for purposes of the law of evidence it is not always possible to distinguish clearly
between fact and opinion: “In a sense all testimony to matter of fact is opinion evidence; ie,
it is a conclusion formed from phenomena and mental impressions.” [20] Even a matter such
as identification really constitutes evidence of an inference, drawn from comparison with
prior experience. [21] Where the complainant testifies that it was the accused who had raped
her, her evidence is in truth no more than an opinion that it is the man in the dock who
committed the offence. If the rapist were someone of close acquaintance, it may seem
absurd to say that she is expressing an opinion. But if the perpetrator were a stranger,
never seen before, and the opportunity for observation not great, the identification can
clearly be seen to constitute no more than an inference, drawn from a resemblance between
the offender and the man in the dock. It has been held that the inability of a witness to give
a description of a person identified by him, does not mean that the identification of the
person concerned is fatally flawed. [22] It has also been accepted that the distinction between
“fact” and “opinion” is a difficult one, and that “facts” stated by a witness are really
inferences. [23] Maguire has also observed as follows: [24]
“Our whole conscious life is a process of forming working beliefs or opinions from the evidence of our
senses, few of them exactly accurate, most of them near enough correct for practical use, some of
them seriously erroneous. Every assertion involves the expression of one or more of these opinions. A
rule of evidence which called for the exclusion of opinion in this broad sense would therefore make
trials quite impossible.”
The so-called “compendious mode” of testifying, as discussed in § 8 5 1 below, is also based
on the fact that in the law of evidence opinion carries a special meaning.
Once it is accepted that it is not always possible — and certainly not always desirable — to
attempt to distinguish between fact and opinion it becomes meaningless to formulate the
opinion rule in terms which require, or purport to require, a strict distinction between fact
and opinion. [25]
8 3 The Basis of the Opinion Rule
Any opinion, whether expert or non-expert, which is expressed on an issue which the court
can decide without receiving such opinion is in principle
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inadmissible because of its irrelevance. [26] Such evidence is unnecessary — and can be
referred to as “superfluous” or “supererogatory evidence”. [27] In this instance the opinion of
the witness is excluded not because of a need to preserve or protect the fact-finding duty of
the court, but because such evidence makes no probative contribution, creates the risk of
confusion of the main issues, can lead to prolongation of trials, and can open an “evidential
Pandora’s box”. [28]
If the issue is of such a nature that the witness is in a better position than the court to
form an opinion, the opinion will be admissible on the basis of its relevance. [29] Such an
opinion has probative force. The opinion is no longer superfluous because it can assist the
court in determining the issue. This explains why the opinions of lay persons [30] and
experts [31] are at times received.
The rule that opinion evidence is excluded where superfluous (because it is irrelevant) and
admitted where it can assist the court (because it is relevant) has to compete with some
other theories, principles and formulations governing the opinion rule. Paizes refers to these
as “empty catch-phrases and misconceptions which have blurred the parameters of the rule
and shifted the focus of attention away from its chief function, viz the exclusion of
supererogatory evidence”. [32] It is, for example, sometimes said that the exclusion of
opinion is intended to preserve or protect the function of the tribunal of fact, [33] and that a
witness should not be permitted to usurp this function. [34] Wigmore rejected this theory on
the basis that the tribunal of fact is not and cannot be obliged to substitute the opinion of
the witness for his own. [35] Support for Wigmore’s reasons for rejecting this theory can be
found in
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S v Nieuwoudt. [36] In this case various experts (including an electrical engineer and
members of university departments of speech and drama) were called to testify as regards
certain tape recordings. Hefer JA remarked as follows: [37]
“Daarenteen is ek nie bereid om ’n submissie wat mnr De Villiers op een stadium gemaak het
(klaarblyklik sonder dat hy self veel geloof daarin gehad het) te aanvaar nie, nl dat daar slegs gelet
moet word op wat die deskundige getuies se waarnemings was. Om te hoor watter woorde in hierdie
soort opname voorkom, verg geen deskundigheid nie en ’n geregshof kan in elk geval nie sy funksie
aan die getuies delegeer nie. Natuurlik moet ag geslaan word op die getuienis; maar uiteindelik is dit
die Hof se taak om te bepaal wat die woorde is en deur wie hulle gebruik is.”
The theory that the opinion rule preserves or protects the fact-finding function of the court is
sometimes also expressed in terms of the so-called “ultimate issue” doctrine, namely that a
witness may not express an opinion on an ultimate issue which the court must decide: “The
risk of usurpation by the witness of the function of the trier of fact”, says Carter, “is often
greatest if the witness expresses an opinion on the very question, or —ultimate issue’ which
the trier of fact finally has to decide.” [38] However, the ultimate issue doctrine fails to
explain why courts at times permit not only experts but also lay persons to express an
opinion on the very issue the court has to decide. In drunken driving cases the prosecution
must prove that the accused was under the influence of intoxicating liquor at the time when
he was driving. Courts receive both expert and lay opinion in this regard, [39] despite the fact
that this is the very issue that the court must decide. The court is not bound by such an
opinion, but will place much reliance on it if it is satisfied that the reasons which the witness
can advance for having formed the opinion are convincing and do in fact support the opinion
expressed by the witness.
The ultimate issue doctrine is often ignored in practice. In DPP v A & BC Chewing Gum Co
Ltd Lord Parker said: [40]
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“. . . I cannot help feeling that with the advance of science more and more inroads have been made
into the old common-law principles. Those who practise in the criminal courts see every day cases of
experts being called on the question of diminished responsibility and although technically the final
question ‘Do you think he was suffering from diminished responsibility?’ is strictly inadmissible, it is
allowed time and time again without any objection.”
This case concerned the admissibility of expert opinion evidence on the issue whether certain
publications tended to corrupt or deprave children. It was concluded that expert evidence
would have been inadmissible if the issue had related to adults, but that it was admissible
where the issue related to children. In the latter instance the tribunal would need all the help
it could get.
It is significant that in 1972 the English legislature abolished the “ultimate issue” doctrine
for purposes of civil proceedings. Section 3(1) of the Civil Evidence Act 1972 [41] provides
that where a person is called as a witness in any civil proceedings his opinion on any
relevant matter on which he is qualified to give expert evidence shall be admissible in
evidence. Section 3(2) determines that where a person is called as a witness in any civil
proceedings a statement or opinion by him on any relevant matter on which he is not
qualified to give expert evidence, if made as a way of conveying relevant facts personally
perceived by him, [42] is admissible evidence of what he perceived. Section 3(3) determines
that for the purposes of s 3 “relevant matter” includes an issue in the proceedings in
question. It is important, though, to note that the statute also provides for a discretion to
exclude evidence falling under s 3.
Another approach is to say that a witness should not be permitted to express an opinion
which entails a conclusion of law, [43] or which requires the application of a standard of law to
the facts, [44] or which relates to the meaning of words appearing in a statute. [45] This is just
a variation of the “ultimate issue” doctrine. [46] Although this doctrine should not be
discarded entirely, [47] the answer in all three aforementioned instances should be that the
exclusion of supererogatory evidence remains the governing test. Association of Amusement
and Novelty Machine Operators and Another v Minister of Justice and Another [48] involved
the meaning of certain words in a statute. The opinion of a language expert was held
irrelevant and inadmissible: the words in dispute were often
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encountered in common parlance, and the witness was therefore in no better position than
the court to form an opinion.
In International Business Machines SA (Pty) Ltd v Commissioner for Customs and Excise it
was said: “Under our system, questions of interpretation of . . . documents are matters of
law, and belong exclusively to the Court. On such questions the opinions of witnesses,
however eminent or highly qualified, are (except in regard to words which have a special or
technical meaning) inadmissible.” [49] The words in brackets are important, and indicate that
this case is not a vindication of the “ultimate issue” doctrine; it really confirms the approach
that supererogatory evidence is inadmissible.
8 4 Lay Persons and Experts
It is customary to approach the admission of opinion evidence on the basis that one has to
distinguish between lay opinion and expert opinion. Once it is realised that admissibility does
not depend on this distinction, but on the question whether the opinion of the particular
witness in the particular circumstances of the case can assist the court in determining the
issues, it becomes clear that the distinction between lay person and expert does not govern
admissibility. The separate discussion of lay persons and experts in the next few paragraphs
is for the sake of convenience, and not an attempt to identify two separate categories for
purposes of admissibility. For procedural purposes, however, a distinction is necessary: [50] in
civil cases parties should give notice of their intention to rely on expert opinion evidence; in
criminal cases the prosecution is required on constitutional grounds to disclose expert
opinion evidence to the accused prior to the commencement of the trial. [51]
8 5 The Opinion of a Lay Person
Application of the rule that opinion evidence must be excluded where it cannot assist the
court, but admitted where it can, yields the following results: a lay witness may express an
opinion on the approximate age of a person, the state of sobriety of a person, the general
condition of a thing, and the approximate speed at which a vehicle was travelling. This is not
an exhaustive list.
An inability to provide reasons for the opinion should in principle affect the weight and not
the admissibility of the opinion. [52]
8 5 1 The compendious mode
There are instances where a witness — and more particularly a lay witness — will not be able
to testify meaningfully if the law of evidence were to persist in drawing a distinction between
fact and
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opinion for the purposes of admitting the fact and excluding the opinion. It is “never possible
for a witness to eliminate altogether the results of inference from the evidence he gives”. [53]
In Herbst v R it was said: [54]
“When an ordinary witness says ‘I see a Chinaman’, he generally means that from his knowledge,
obtained by experience or study, he is aware of the salient external characteristics of a citizen sprung
from the Celestial Empire; that the person in question appears to possess those characteristics, and
that consequently he infers, deduces or opines that the man whom he sees is a Chinaman. His short
statement is therefore a compendious mode of expressing facts and opinions. Similarly, in the
identification of an accused person, the witness compares in his own mind the person he has
previously seen with the person produced at the trial, forms an opinion as to the resemblance or
otherwise, and states that opinion which is then received as evidence for what it is worth. A similar
process takes place when a witness gives evidence as to mental and physical conditions, age, speed,
value, character and handwriting. Whether, therefore, an ordinary witness simply states ‘The flag was
yellow’, or more comprehensively says ‘The writing is Smith’s’, there is a ratiocination in different
degrees, and consequently an expression of opinion. But such evidence is clearly admissible; if it were
not, the machine for trying disputed facts would come to a standstill. It is accordingly not always
possible to wholly separate statement of opinion from statement of fact, and consequently, on the
grounds of necessity, because this separation is not always possible, and because more direct and
positive evidence is often unobtainable, experience has evolved the subsidiary rule that the opinions
and beliefs of witnesses who are not experts are in certain cases admissible.”
The term “compendious mode” as used in Herbst supra is of English law origin. [55] It is a
convenient term to use in those instances where the witness offers an opinion as a brief
summary of factual data perceived by him. This explains why a witness is permitted to say
that the complainant was “angry”, that the victim tried to “protect” himself or that the
defendant “looked surprised”. The compendious mode is permitted not only because of its
practical convenience but also because the witness is better placed than the court. [56] The
witness may in examination in chief, cross-examination and re-examination be questioned
on the reasons for his conclusion. Admission or exclusion of the evidence tendered in
compendious mode will be in the court’s discretion. Much depends on the circumstances and
issues, as well as the question whether for purposes of the case any meaningful attempt can
be made to separate conclusion from fact.
8 5 2 Handwriting
[57]
Section 4 of the CPEA provides that comparison of a disputed writing with any writing proved
to be genuine may be made by witnesses, and such writings and the evidence of any witness
with respect thereto may be submitted as evidence of the genuineness or otherwise of the
writing in dispute. Section 228 of the CPA contains a similar provision. On the basis of these
provisions as well as common-law principles, a lay witness is
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permitted to identify handwriting. An expert may also express an opinion on handwriting. [58]
The fact that an accused who has furnished samples of his handwriting to the police could
have made some intentional distortions affects the weight and not the admissibility of the
opinion. [59] Opinion evidence of handwriting must be approached with caution (see
§ 30 11 6 below). A court is also entitled to make its own comparison, but should do so with
caution (see §§ 19 7 and 30 11 6 below).
8 5 3 Probative value of lay opinion
It is generally accepted that the admissible opinion of a lay person provides prima facie
evidence and — if not challenged [60] — may, not must, be accepted. Much will depend on
the issues and the reasons that the witness can advance in support of his conclusion. [61] If
challenged, [62] the issue might be of such a nature that only expert opinion can resolve
it. [63] In S v Faltein — where the issue was whether the substance in question was dagga —
Erasmus J noted that “dagga, although unfortunately in wide use, is not so well known that
just anybody can identify it as such. In order to do so special knowledge or expertise is
required.” [64] The value of a policeman’s opinion that a substance is dagga was dealt with
comprehensively by James JP in S v Ndaba. [65]
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8 6 The Expert Witness
[66]
There are issues which simply cannot be decided without expert guidance. Expert opinion
evidence is therefore readily received on issues relating to, for example, ballistics,
engineering, chemistry, medicine, accounting and psychiatry. This is not an exhaustive list.
And there are cases where expert evidence — though not absolutely necessary — would
nevertheless still be of use. Intoxication [67] and handwriting [68] are two examples.
The matter was crisply stated in Gentiruco AG v Firestone SA (Pty) Ltd: “[T]he true and
practical test of the admissibility of the opinion of a skilled witness is whether or not the
Court can receive ‘appreciable help’ from that witness on the particular issue.” [69] In S v
Melrose the court found it necessary to point out that the viva voce evidence of medical
practitioners in cases involving, for example, homicide, rape and serious assaults “is very
relevant indeed”. [70]
Ruto Flour Mills Ltd v Adelson (1) [71] provides a good example not only of the guidance or
assistance that a court can receive from an expert but also the reasons for the exclusion or
admission of expert opinion evidence — a matter already dealt with in general terms in § 8 3
above. In this case an accountant was called to give evidence of the financial affairs of the
bakery concerned. The accountant had experience in the financial management of bakeries
and had inspected and analysed the books of the bakery. He testified that the business was
conducted erratically. The court overruled an objection to this opinion, and made the
following points: (a) Supererogatory evidence is excluded simply because it is not needed:
the court is as able as the witness to draw the conclusion. The evidence is not excluded
because there is something objectionable regarding the reliability of the evidence. (b) The
opinion of an expert
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is received because and whenever his skill is greater than that of the court. (c) The true
criterion is whether the court can receive appreciable help from the opinion of the witness.
(d) When the issue is one of science or skill the expert can be asked the very question which
the court has to decide.
In Ruto Flour Mills Ltd v Adelson (1) [72] the plaintiff (P) sued the defendant (D) for
defamation, averring that D had told third parties that P had raped her when the two of
them were alone on a farm. D invoked, inter alia, truth and public benefit as a defence. In
support of her allegation that she was indeed raped by P, D wanted to call an expert witness,
W, to testify that in his opinion, based on several interviews and two hypnotherapy sessions
he had with D, she was indeed raped by P. The interviews and sessions took place after
litigation had been initiated. W was a registered clinical psychologist and a member of the
South African Society of Clinical Hypnosis and was also going to testify that “hypnosis is a
way of accessing subconscious memories and thoughts from patients by inducing them in a
state of trance and/or deep relaxation”. [73] Counsel for P objected to the admissibility of W’s
opinion on the credibility of D. Satchwell J held that W’s evidence was irrelevant and
therefore inadmissible. The consistency of D was not in dispute and her prior statements to
W added “no greater weight to that which she . . . [was] . . . telling the court” [74] (see also
§ 9 2 below). But apart from this ground of irrelevance, Satchwell J also concluded that the
proposed evidence of W would “indeed displace the value judgment of the Court.” [75] The
court itself had to, and could, decide matters of credibility without the opinion of W. The
court also concluded that “the evidence to be given by . . . [W] . . . as to the hypnosis and
the conditions under which the statements were made by . . . [D] . . . go a long way towards
usurping the judgment of the Court”. [76]
In Holtzhauzen v Roodt the proposed evidence of a further expert, B, was held admissible.
D wanted to call B to testify that, in her opinion, a victim of acquaintance rape would often
not disclose the incident to third parties immediately after it has occurred. B, like W, was an
expert: B had an undergraduate degree in which she majored in psychology; she had a
master’s degree in social work and, at the time of the trial, she was a clinical supervisor of
POWA, [77] where her duties included the counselling of rape victims. But B’s opinion, unlike
that of W, was held relevant and admissible despite counsel for P’s argument that B’s
evidence was not relevant and would be conjecture. [78] Satchwell J rejected this argument
and found that the criteria whether the
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expert’s opinion would be “of assistance to the court” and “helpful,” were the criteria for
assessing the relevance or irrelevance of B’s evidence. [79] She reasoned and concluded as
follows: [80]
“Now rape of a woman is unlikely to be a topic or experience within the personal knowledge or
experience of many judicial officers or any at all. Rape has frequently been described as a crime which
seldom sees the light of day, let alone comes before the scrutiny of our courts. Rape victims or rape
survivors have usually endured their experience in silence, and the particular and somewhat unique
character and features of rape have long gone unstudied. They have certainly gone unappreciated by
our courts . . . However, rape is an experience of the utmost intimacy. The victims or survivors
thereof are largely confined to the female sex. I have heard the response of such survivors generically
described as a ‘scream from silence’. The result has been a paucity of South African legal and judicial
understanding and commentary on the full parameters and implications of this phenomenon. Rape is
an experience so devastating in its consequences that it is rightly perceived as striking at the very
fundament of human, particularly female, privacy, dignity and personhood. Yet, I acknowledge that
the ability of a judicial officer such as myself to fully comprehend the kaleidoscope of emotion and
experience, of both rapist and rape survivor, is extremely limited . . . In such circumstances I am of
the view that it would be unwise and it would be irresponsible for myself as a judicial officer, who is
lacking in special knowledge and skill, to attempt to draw inferences from facts which have been
established by evidence, without welcoming the opportunity to learn and to receive guidance from an
expert who is better qualified than myself to draw the inferences which I am required myself to draw.
An obvious example in the present case is the evidence that the defendant did not report the rape at
the very moment that her mother and sisters returned to the plaintiff’s farm. In the normal course
this Court would certainly be entitled to draw an inference that there was nothing for the defendant to
report to her mother or to her sisters. Certainly, if a witness’ purse containing cash and credit cards
and a cheque book had been stolen outside a bank, and the victim failed immediately to go inside and
cancel the cheque book or credit card and to make a report to the policeman standing on the street
corner while the thieves made a getaway, then I would consider myself entirely justified in drawing an
adverse inference from such facts. If indeed there are particular reasons, known only or known
particularly to those who work with rape survivors and who have experience in this field, why rape
survivors frequently do not take the first opportunity to make known such an assault and to seek
help, then it would ill-behove me as a Judge of the High Court to turn my ear against the opportunity
to gain a better understanding from an available expert . . . At the end of the day, however, I must
stress that the value which I will attach to such evidence will fall to be assessed in the light of all the
evidence before the Court; that is the evidence of the defendant, of the plaintiff and his wife, of their
son and nephew, of the defendant’s mother and her sisters. The guidance and opinion of . . . [B] . . .
will merely be one pointer for my assistance. It remains for this Court to determine the probative
value of . . . [B’s] . . . evidence and in what manner and to what extent it is of use in understanding
the facts before the Court.”
It should be noted that B’s opinion was of a general nature and, unlike W’s opinion, did not
involve an opinion on the credibility of D. B also had no personal interviews with D.
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In S v M [81] the Supreme Court of Appeal assumed, in favour of the state, that the opinion
of a qualified and experienced social worker and the opinion of a clinical psychologist to the
effect that the complainant had all the symptoms of child abuse, were admissible. The court
noted, however, that it was not bound by these opinions. On the facts of the case, the court
concluded that whilst the complainant’s symptoms were consistent with her allegations of
sexual abuse, other possible reasons for these symptoms were not excluded by the
evidence.
8 6 1 The expert witness: the need to lay a foundation
[82]
The party seeking to adduce the opinion of a witness as an expert opinion must satisfy the
court that the opinion is not supererogatory — that is, not irrelevant. For this purpose the
court must be satisfied: (a) that the witness not only has specialist knowledge, training, skill
or experience but can furthermore, on account of these attributes or qualities, assist the
court in deciding the issues; [83] (b) that the witness is indeed an expert for the purpose for
which he is called upon to express an opinion; [84] and (c) that the witness does not or will
not express an opinion on hypothetical facts, that is, facts which have no bearing on the
case or which cannot be reconciled with all the other evidence in the case. [85]
In Menday v Protea Assurance Co Ltd Addleson J said:
[86]
“In essence the function of an expert is to assist the Court to reach a conclusion on matters on which
the Court itself does not have the necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy the Court that, because of his special skill, training
or experience, the reasons for the opinion which he expresses are acceptable . . . However eminent
an expert may be in a general field, he does not constitute an expert in a particular sphere unless by
special study or experience he is qualified to express an opinion on that topic. The dangers of holding
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otherwise — of being overawed by a recital of degrees and diplomas — are obvious; the Court has
then no way of being satisfied that it is not being blinded by pure ‘theory’ untested by knowledge or
practice. The expert must either himself have knowledge or experience in the special field on which he
testifies (whatever general knowledge he may also have in pure theory) or he must rely on the
knowledge or experience of others who themselves are shown to be acceptable experts in that field.”
In Mahomed v Shaik [87] it was said that it is the function of the court to decide whether an
“expert” has the necessary qualifications and experience to enable him to express reliable
opinions. In this case it was held that a general medical practitioner — even though he held
the degrees MB ChB and had four years’ experience — was not qualified to speak
authoritatively on the significance of findings in a pathologist’s report concerning the fertility
of semen.
Formal qualifications are not always essential; and in many instances the practical
experience of the witness may be decisive. An experienced stock farmer may, for example,
give expert evidence as to the value of cattle. [88] The fundamental test still is whether the
evidence can assist the court — and the result is that in certain circumstances formal
qualifications without practical experience may not be enough to qualify the witness as an
expert. [89]
8 6 2 Reasons for opinion and probative value of the opinion
Expert witnesses are in principle required to support their opinions with valid reasons. But no
hard-and-fast rule can be laid down. Much will depend on the nature of the issue and the
presence or absence of an attack on the opinion of the expert. [90]
If proper reasons are advanced in support of an opinion, the probative value of such
opinion will of necessity be strengthened. [91] In Coopers (South Africa) (Pty) Ltd v Deutsche
Gesellschaft Für Schädlingsbekämfung MBH it was said: [92]
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“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are
either common cause, or established by his own evidence or that of some other competent witness.
Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any
real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning
which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed
by the expert.”
There are extreme cases where expert evidence can be so technical that the court may not
be in a position to follow the exact reasoning of the expert or observe the specific points of
identification. In such an instance great emphasis will be placed upon the general repute of
the witness’s profession and the absence or presence of possible bias. In R v Nksatlala it was
said: [93]
“[A] Court should not blindly accept and act upon the evidence of an expert witness, even of a fingerprint expert, but must decide for itself whether it can safely accept the expert’s opinion. But once it is
satisfied that it can so accept it, the Court gives effect to that conclusion even if its own observation
does not positively confirm it.”
In S v Blom [94] the accused was charged with, amongst other crimes, murder. Two police
fingerprint experts testified for the prosecution. At first they had not prepared comparative
charts in respect of the fingerprints found at the scene of the crime, as their department had
a policy not to do so unless there were at least eight points of identification in comparing the
fingerprints of the accused with those found at the scene of the crime. In this case they
could find only seven. Both the witnesses were satisfied that seven points of identification
were more than sufficient to identify a fingerprint beyond any doubt, and that the fingerprint
in question was that of the accused. It transpired that the prosecutor had told the defence
counsel that only five points of identification had been found. This corresponded with the
evidence of the investigating officer. When the two fingerprint experts were asked to indicate
the points of identification in court their evidence was unsatisfactory in a number of
respects. The court accordingly held that there was a reasonable doubt as to whether the
fingerprint was that of the accused, despite the fact that the two fingerprint experts had no
doubt in their minds.
In a number of cases [95] the courts have accepted the results of chemical blood-alcohol
concentration tests despite opinions by medical doctors that the clinical observations of the
accused did not correspond with the blood-alcohol level determined in the tests.
S v Van As [96] contains important observations and findings as regards expert opinion
evidence. In this case Kirk-Cohen J — apart from emphasising that in appropriate cases
expert evidence is adduced to place the court in a better position to decide the issues — also
distinguished between two situations: the first is where the expert’s opinion is based on that
of recognised writers or authority in the science concerned; the second is where the expert
has
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personally conducted experiments and then in court bases his opinion on the results of his
experiments. It was said that in the latter instance it is easier for the court to follow the
evidence, to accept it and to rely on it in deciding the issue. The expert’s presentation can
obviously also enhance the value of his testimony. [97]
In S v M [98] Kriegler J was most emphatic that a court should not lightly discard an
expert’s opinion where no factual premise of his or her evidence is unsound and where his or
her opinion — and the reasons therefor — have been furnished in a satisfactory manner. But
experts can make mistakes. In S v Venter Nestadt JA approved the trial court’s rejection of
expert testimony: [99]
“[T]he State pathologist who performed the post-mortem examination on the body of the child
supported the appellant’s denial. His opinion was that the child’s head was not submerged in the
water. The trial Court, however, refused to accept that this was so. This was a bold approach. One
does not lightly depart from the uncontroverted views of an impartial, well-qualified and experienced
expert. But I am persuaded that in the present matter it was warranted. The reasons given by
Southwood J for rejecting the doctor’s evidence are weighty. Consider the following. The photographs
clearly show that the child sustained burn injuries to his head and face; the condition of the inner
lining of the windpipe was consistent with the swallowing of hot water; the lungs contained fluid; and
there is the singular, undisputed feature that despite the injuries having been immediately painful
(intensely so, I would have thought), the child did not cry out or scream. The cumulative effect of
what has been referred to supports the trial court’s finding that the appellant ‘plunged [the child] into
the water and that his head was
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immersed for a number of seconds’ and that there was therefore no chance for the child to cry
out . . . Confirmation that the child’s head was submerged in the water comes from the appellant
himself.”
Support for the above approach can be found in Motor Vehicle Assurance Fund v Kenny, [100]
where Eksteen J observed that direct credible evidence of what happened in a collision must
generally be accorded greater weight than the opinion of an expert who attempts to
reconstruct the actual events on the basis of his experience and scientific training. After all,
there can in principle be no obstacle to accepting direct credible evidence even though such
evidence is in conflict with probabilities which arise from expert opinion evidence. [101]
The opinion of an expert must be ignored — and should strictly speaking be considered
inadmissible — if it is based on some hypothetical situation which has no relation to the facts
in issue or which is entirely inconsistent with the facts found proved. [102] This is a frequent
problem where a psychiatrist relies solely on an accused’s version of the events in assessing
his or her mental condition for purposes of determining criminal responsibility. [103] In S v
Harris Ogilvie Thompson JA said: [104]
“[I]n the ultimate analysis, the crucial issue of appellant’s criminal responsibility for his actions at the
relevant time is a matter to be determined, not by the psychiatrists, but by the Court itself. In
determining that issue the Court — initially, the trial Court; and, on appeal, this Court — must of
necessity have regard not only to the expert medical evidence but also to all the other facts of the
case, including the reliability of appellant as a witness and the nature of his proved actions throughout
the relevant period.”
It is important that an expert witness should remain objective despite the fact that he is —
in terms of our adversarial system — called by a party to testify in support of the latter’s
case: [105] “If he is to be helpful he must be neutral. The [opinion of an expert] is of little
value where he . . . is partisan and consistently asserts the cause of the party who calls
him.” In S v Kotze [106] Lombard J relied
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heavily on the opinions of experts — not only because they had advanced reasons in support
of their conclusions but also because their opinions had the “stempel van objektiewe
professionalisme”.
No reliance can be placed on an expert’s opinion if counsel puts his own interpretation to
the expert witness. [107] In this way “the expert does not put his evidence across in his own
words viva voce, but hides behind the words of counsel”. [108]
When it comes to assessing the testimony of an expert, an appeal court is in as good a
position as the trial court to test the reasoning of the expert. [109]
8 6 3 Hearsay and expert opinion
Hearsay evidence is defined in § 13 1 below. An expert witness may not as a rule base his
opinions on statements made by a person not called as a witness (but see § 8 6 4 below). In
Southern Transvaal Buildings (Pty) Ltd v Johannesburg City Council [110] it was held that even
though expert witnesses expressing opinions on the value of land may not utilise or rely
upon conclusions arrived at by other valuers not called as witnesses, they may rely on other
hearsay.
An expert witness may be allowed to rely on information which would technically be
hearsay, but which may be admitted if the conditions set out in § 8 6 4 below are satisfied.
The realities of practice demand that impossible standards should not be set. In S v
Kimimbi [111] it was said:
“No one professional man can know from personal observations more than a minute fraction of the
data which he must every day treat as working truths. Hence a reliance on the reported data of fellow
scientists learned by perusing their reports in books and journals. The law must and does accept this
kind of knowledge from scientific men . . . [T]o reject a profession [sic] physician or mathematician
because the fact or some of the
Page 108
facts to which he testifies are known to him only upon the authority of others, would be to ignore the
accepted methods of professional work and to insist on impossible standards.”
8 6 4 The expert referring to textbooks
The expert who relies on information contained in a textbook written by someone who is not
called as a witness, does in fact make use of hearsay. But he is allowed to do so if the
following conditions as set out in Menday v Protea Assurance Co Ltd are satisfied: [112]
“Where . . . an expert relies on passages in a text-book, it must be shown, firstly, that he can, by
reason of his own training, affirm (at least in principle) the correctness of the statements in that book;
and, secondly, that the work to which he refers is reliable in the sense that it has been written by a
person of established repute or proved experience in that field. In other words, an expert with purely
theoretical knowledge cannot in my view support his opinion in a special field (of which he has no
personal experience or knowledge) by referring to passages in a work which has itself not been shown
to be authoritative. . . [T]he dangers of holding the contrary are obvious.”
It is irregular for the court to rely upon publications (or portions thereof) not referred to and
adopted by an expert witness. [113]
8 7 Procedural Aspects
Rule 24(9) of the Magistrates’ Courts Rules and rule 36(9) of the Uniform Rules of Court
provide as follows:
“(9) No person shall, save with the leave of the court or the consent of all parties to the suit, be
entitled to call as a witness any person to give evidence as an expert upon any matter upon which the
evidence of expert witnesses may be received, unless he shall —
(a)
(b)
not less than fifteen days before the hearing, have delivered notice of his intention so to
do; and
not less than ten days before the trial, have delivered a summary of such expert’s opinion
and his reasons therefor.”
The above rules are confined to civil cases. [114] In criminal cases prior disclosure may be
demanded — and should generally be granted — on constitutional grounds. [115]
In both civil and criminal cases there are certain statutory provisions which permit expert
evidence by way of affidavit or certificate. These provisions — which are discussed in
chapter 15 — do not, however, preclude the calling of the witness in person. [116]
There is a series of conflicting and confusing South African cases not only on the
procedure to be adopted where an expert testifies from his written report but also on the
question to what extent the written report — as opposed
Page 109
to the viva voce evidence — is received as evidence. [117] It is submitted that the following
principles govern the situation: [118]
(a) “Not infrequently”, said Milne JP in S v Ramgobin and Others, [119] “experts are
permitted to refresh their memories from reports and notes, and the reports and notes
are, not infrequently, put in as exhibits. They are not, however, the evidence. The
evidence is the oral evidence given by the expert, and the notes are merely an aidememoire.” [120] It is submitted that this principle applies only to situations which can be
described as “present recollection revived” — a concept which is explained in § 24 2
below. In this instance the expert’s report and notes have no independent probative
value.
(b) Where the expert witness — after consultation of his report and notes — has no
independent recollection of the case and can merely vouch for the accuracy of his
recorded observations the contents of the report must be received as the evidence. [121]
This situation can be referred to as “past recollection recorded” — a concept which is
explained in § 24 2 below.
(c) In both (a) and (b) above the expert should — as a matter of convenience — be
permitted to read out his report. [122] This is a necessary exception [123] to the general
rule that witnesses are not permitted to read from statements prepared for purposes of
the trial. [124] The expert witness should in principle confirm the correctness of his
report and state his adherence to it — and he must do so in the case of “past
recollection recorded”.
8 8 The Rule in Hollington
The earlier criminal convictions of a party are inadmissible for purposes of subsequent civil
proceedings. In Hollington v F Hewthorn & Co Ltd it was held, inter alia, that the opinion of
the previous tribunal was irrelevant. [125] Sections
Page 110
11, 12 and 13 of the English Civil Evidence Act 1968 have made previous judgments
admissible in certain specified instances. In South Africa we are still bound by the English
common-law rule as embodied in Hollington.
In S v Khanyapa [126] Rumpff CJ gave an indication that the rule in Hollington may in
future be overruled by the Appellate Division. It is submitted that in order to do so some
extraordinary judicial footwork would be necessary to circumvent our residuary clause as
found in s 42 of the CPEA. [127] But is the rule in Hollington archaic and irrational? In Land
Securities plc v Westminster City Council [128] Hoffmann J applied the rule in Hollington to
proceedings which fell outside the ambit of the Civil Evidence Act 1968: an arbitrator’s
previous finding was held inadmissible in respect of the facts in dispute because such
previous finding was considered an irrelevant opinion.
In S v Mavuso [129] Hefer J raised, but did not decide, the following question: does the rule
in Hollington prohibit proof of an accused’s previous convictions in a trial in which the
prosecution seeks to prove such convictions for purposes of the merits of the case, and
assuming such previous convictions are indeed relevant? Zeffertt responded as follows: [130]
“[This] question has been asked of me, by students, at least once a year for the last twenty years. My
reply has always been that the strange rule in Hollington v F Hewthorn & Co Ltd (which is to the effect
that the fact of a conviction by a criminal court is not evidence — not even prima facie evidence — in
a subsequent civil case, that the accused had committed the act for which he was convicted since it is
the irrelevant opinion of another court) is generally regarded as wrong. Although it has been held to
bind us in civil cases by virtue of the Civil Proceedings Evidence Act 25 of 1965 (see Yusaf v Bailey
and Others 1964 (4) SA 117 (W)), it has not been applied in proceedings that are not civil
proceedings within the meaning of that Act (for instance, in proceedings to strike an attorney off the
roll: Hassim (Also Known as Essack) v Incorporated Law Society of Natal 1977 (2) SA 757 (A)). It
should not be extended to criminal proceedings either — a submission that is supported by the fact
that s 211 of the Criminal Procedure Act 1977 envisages the proof of a previous conviction and, as we
have seen, s 197(d) allows an accused’s previous conviction to be put to him if relevant . . . The fact
that my students have always seemed totally unconvinced by this reply in no way derogates from my
conviction that it is the true answer.”
Page 111
We are as unpersuaded as Professor Zeffertt’s students, but can find no quarrel with his
argument! At any rate, how must one explain proof of admissible similar fact evidence [131]
by way of previous convictions?
Statutory repeal of the rule in Hollington is probably necessary.
[132]
[1] See § 8 2 below.
[2] See §§ 8 4 and 8 6 to 8 6 4 below.
[3] See §§ 8 4 and 8 5 to 8 5 3 below.
[4] 2015 (2) SA 1 (CC) at [30] n 30.
[5] See § 5 3 1 above.
[6] See § 8 3 below. See further S v S [2011] ZASCA 214 (unreported, SCA case no 423/11, 29 November 2011)
at [20].
[7] See S v Nel 1990 (2) SACR 136 (C) as discussed in § 5 3 3 above and Holtzhauzen v Roodt 1997 (4) SA 766
(W) as discussed in § 8 6 below. See further S v S [2011] ZASCA 214 (unreported, SCA case no 423/11, 29
November 2011) at [20].
[8] 1989 (3) SA 759 (W).
[9] See further § 8 2 below.
[10] Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd supra 764E.
[11] At 763H-I.
[12] 1979 (1) SA 1018 (W).
[13] At 1019F-H.
[14] 1948 (1) SA 947 (A).
[15] 1984 (1) SA 556 (A) 563D.
[16] See generally S v Steenberg 1979 (3) SA 513 (B) 515 as discussed in § 27 5 1 below.
[17] See also Zuckermann The Principles of Criminal Evidence (1992) 59-60 and Zeffertt, Paizes & Skeen 290.
Compare generally the approach of the AD in S v Mashile 1993 (2) SACR 67 (A).
[18] See generally May Criminal Evidence 2 ed (1990) 132-3.
[19] See § 8 3 below.
[20] Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 524.
[21] Murphy A Practical Approach to Evidence 10 ed (2008) 386.
[22] S v Pretorius en ’n Ander 1991 (2) SACR 601 (A)
[23] S v Williams en Andere 1985 (1) SA 750 (C) at 752I.
[24] Maguire Evidence: Common Sense and Common Law (1947) at 24.
[25] There is much merit in the forceful approach adopted by the Appellate Division in Reckitt & Colman SA (Pty)
Ltd v S C Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A). This was a passing-off case: the appellant’s “Brasso”
versus the respondent’s “Brillo”. Regarding the question whether the “Brillo” get-up was calculated to deceive, the
court found that the evidence of the psychologists and linguistic experts was singularly unhelpful, if not inadmissible,
because it tended to disguise opinion as a statement of scientific principle — and in so doing subtly sought to
displace the court’s value judgment with that of the witness.
[26] See generally S v H 1981 (2) SA 586 (SWA).
[27] Wigmore para 1918 used this term and explained that the rule “simply endeavours to save time and avoid
confusing testimony by telling the witness: ‘The tribunal is on this subject in possession of the same materials of
information as yourself; thus, as you can add nothing to the materials for judgment, your further testimony is
unnecessary, and merely cumbers the proceedings.’” See further the discussion of Ruto Flour Mills Ltd v Adelson (1)
1958 (4) SA 235 (T) in § 8 6 below. In this case the court relied heavily on Wigmore’s views.
[28] See S v Nel 1990 (2) SACR 136 (C) as discussed in § 5 3 3 above.
[29] Zeffertt 1976 SALJ 275.
[30] In R v Vilbro and Another 1957 (3) SA 223 (A), a unanimous decision of the Appellate Division sitting with five
judges, the question concerned the descent of the appellants. It was argued on behalf of the appellants that
witnesses could not be called to offer their opinions on the point: such evidence would be inadmissible, as it was
merely evidence of opinion, usurping the function of the court on an issue which the court, not any witness, had to
decide. Fagan CJ, delivering the judgment of the court, referred to Wigmore’s concept of supererogatory evidence
and his rejection of the usurpation theory. The court concluded that whereas nothing could be gained by calling
witnesses at random to express an opinion on the question, there would, however, be people who could be of great
assistance to the court, such as a government inspector who claimed to have experience of such affairs, as well as
other persons who were familiar with the appellants. Their opinions, the court held, would be admissible. It is
important to note that the suggestion here is that it is the opinion of laymen that could be received, on the basis that
their opinion could, due to their familiarity with the appellants, assist the court, who was not as familiar with the
appellants. The approach in Vilbro has been followed in Namibia. See Minister of Basic Education, Sport and Culture v
Vivier NO and Another 2012 (2) NR 613 (SC) at [21].
[31] See § 8 6 below.
[32] Paizes in Du Toit et al Commentary 24-16A.
[33] Cowsill & Clegg Evidence: Law and Practice (1990) 149.
[34] See generally R v Louw 1930 CPD 368 and R v Van Tonder 1929 TPD 365.
[35] Wigmore para 1920. See also Cowen & Carter Essays on the Law of Evidence (1956) 169.
[36] 1990 (4) SA 217 (A). See also R v Sole 2004 (2) SACR 599 (Les) 631d-636e; Visagie v Gerryts en ’n Ander
2000 (3) SA 670 (C); ZS-SVN Syndicate v 43 Air School (Pty) Ltd and Another 2007 (6) SA 389 (E) at [18].
[37] At 238C-E.
[38] Carter Cases and Statutes on Evidence (1981) 503.
[39] In S v Edley 1970 (2) SA 223 (N) 226D Miller J noted: “It seems to me that the more gross and manifest the
physical manifestations of intoxication noted by credible and reliable laymen are, the more readily may medical
evidence be dispensed with and that the more equivocal the physical manifestations or indications of intoxication
may be, the greater would be the need for the State to lead medical evidence of the accused’s condition at the
relevant time.” S v Skeal 1990 (1) SACR 162 (ZS) is an example of a case where intoxication was found proved on
the basis of the evidence of two policemen. Both lay person and expert should, however, advance reasons for their
opinion. See S v Mhetoa 1968 (2) SA 773 (O) and Rex v Theunissen 1948 (4) SA 43 (C). The opinion becomes
worthless in the absence of reasons: S v Adams 1983 (2) SA 577 (A). On a charge of drunken driving the
prosecution must also prove that the skill and judgment normally required to drive a vehicle were impaired or
detrimentally affected. In England a lay witness is not permitted to say whether the accused was fit or unfit to drive
(R v Davies 1962 1 WLR 1111). But the Irish courts receive such an opinion (A-G (Rudely) v Kenny 1960 94 ILT 185
as cited by Heydon Evidence: Cases and Materials 4 ed (1996) 386). Expert opinion is required in South Africa, but
the courts have accepted the opinion of experienced policemen. See Rex v Seaward 1950 (2) SA 704 (N). It is
submitted that an experienced policeman’s opinion can be received on the basis that it can assist the court.
[40] 1968 AC 159 164.
[41] See Huxley & O’Connell Blackstone’s Statutes on Evidence (1991) 142-3.
[42] See also § 8 5 1 below.
[43] See the argument advanced by counsel for the appellant in S v Haasbroek 1969 (2) SA 624 (A).
[44] R v Van Tonder 1929 TPD 365 can be explained as a case based on this approach.
[45] See generally Metro Transport (Pty) Ltd v National Transport Commission 1981 (3) SA 114 (W) 120A, where
it was held that “vertolking van ’n statutêre bepaling deur middel van verduidelikende getuienis nie toelaatbaar is
nie’. However, in S v Filani 2012 (1) SACR 508 (ECG) it was held that expert evidence was necessary to determine
whether a weapon fell within the technical definition of a “firearm” as defined in the Firearms Control Act 60 of 2000.
[46] According to May Criminal Evidence 134, this doctrine developed because of jury trials: “It was feared that if
witnesses could be asked for their opinion on the issue the jury had to decide (the ‘ultimate issue’), the jury would
be unduly influenced.”
[47] Schmidt & Rademeyer (2007) Law of Evidence 17-8-17-9 make the valid point that there is a link between
the “ultimate issue” doctrine and the important administrative law principle in terms of which the tribunal of fact
must apply his mind to the issue.
[48] 1980 (2) SA 636 (A). See also § 27 5 below.
[49] 1985 (4) SA 852 (A) 874A-B.
[50] Zeffertt, Paizes & Skeen 301. See further § 8 7 below.
[51] Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC) at [72]. See
further § 11 5 below.
[52] See § 8 5 below.
[53] Cowen & Carter Essays on the Law of Evidence 166.
[54] 1925 SWA 77 80. Emphasis added.
[55] Wright v Tatham 1885 Cl & Fin 670 721 as cited by Hodgkinson Expert Evidence: Law and Practice (1990) 18.
[56] Cowsill & Clegg Evidence: Law and Practice 150.
[57] See also § 19 7 below.
[58] An “expert” on handwriting is not necessarily confined to people who are handwriting experts by profession: R
v Silverlock 1894 2 QB 766.
[59] S v Smith en Andere 1978 (3) SA 749 (A).
[60] In S v Gentle 1983 (3) SA 45 (N) 46F-G Booysen J said: “The evidence as to the identity of the substance can
hardly be said to be challenged by challenging the evidence of possession thereof. It is one thing to say ‘that exhibit
is not dagga’ and quite another to say ‘I deny having possessed it’. In these circumstances the magistrate was quite
entitled to accept that it was dagga.”
[61] S v Januarie and Another 1980 (2) SA 598 (C) 600B-C: “[A]s to the value of an opinion expressed by a
witness, there should be some sufficient enquiry not only into the reasons for the opinion, but also into the ability of
the witness to express an informed and sound opinion.”
[62] A challenge can be explicit or by implication in the course of cross-examination: S v Sinam 1990 (2) SACR
308 (E) 315a-b.
[63] AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) 614.
[64] 1990 2 PH H105 (E) 291.
[65] 1981 (3) SA 782 (N) 784B-785A: “It has been accepted in a long series of cases that the evidence of
policemen regarding the identity of dagga may be given in court and that in the absence of any challenge it may be
accepted by the presiding officer. A magistrate should satisfy himself that the policeman is sufficiently familiar with
dagga to be able to make a reliable identification but in the absence of any challenge a policeman’s statement that
he knows dagga and that what he found was in fact dagga has in the past been accepted by the Courts as sufficient
identification unless the policeman’s grounds for making this statement are challenged and his experience with and
knowledge of dagga is put in issue. See R v Radebe 1960 (4) SA 131 (T) at 133; R v S 1956 (4) SA 118 (N) at 125D.
This is in conformity with the practice in cases concerned with concoctions under the liquor laws where it has been
held that the unchallenged evidence of a policeman that the liquor in question was a particular type of concoction
may be accepted as prima facie proof that it is such a concoction. See Rex v Modesa 1948 (1) SA 1157 (T) at 1159;
R v De Souza 1955 (1) SA 32 (T). Challenges in regard to the identity of a substance which the police aver is dagga
are usually made on one of two grounds, the first being that the substance found is not dagga but something else. In
such a case the policeman’s evidence should not be accepted unless the policeman’s claim to be able to identify a
substance such as dagga has been thoroughly tested and the court feels able to accept it as so reliable that the
accused’s claim that the substance is something else must be rejected as false. See The State v Ngwanya 1962 (3)
SA 690 (T) and R v Kolisi 1960 (2) SA 374 (E). Secondly, when an accused person claims that he has no knowledge
of what the substance in question is, and challenges the correctness of the identification in cross-examination,
sufficient evidence must be adduced regarding the witness’ experience in or knowledge of the substance in question
to satisfy the court that his conclusion that the substance is undoubtedly what he claims it to be is reliable. See S v
Bertrand 1975 (4) SA 142 (C) at 149B (a case dealing with the drug known as LSD) and the case of S v Malefane
1974 (4) SA 613 (O) in which the accused denied on oath that the substance was dagga and in which the crossexamination of the State witnesses clearly challenged their claim that the substance found in her possession was
dagga. See also S v Seboko 1975 (3) SA 343 (O). Once the accused challenges the reliability of the identification on
the grounds that the witness does not have the experience to give reliable evidence on the subject of dagga the
State is entitled to examine the witness further on his experience and if thought advisable, call further evidence to
identify the substance as dagga.” See also S v Letimela 1979 (2) SA 332 (B).
[66] See generally S v Gouws 1967 (4) SA 527 (E) 528. PricewaterhouseCoopers Incorporated and Others v
National Potato Co-operative Ltd and Another [2015] 2 All SA 403 (SCA); Jacobs and Another v Transnet Ltd t/a
Metrorail and Another 2015 (1) SA 139 (SCA). See also generally the doctoral thesis of Meintjes-Van der Walt Expert
Evidence in the Criminal Justice Process — A Comparative Perspective (2001) as well as the following articles by the
same author: 2000 CILSA 348; 2000 SACJ 319; 2000 SALJ 771; 2000 SACJ 145; 2001 Stell LR 283; 2006 SACJ 152;
2008 SACJ 22; 2001 THRHR 236.
[67] See n 39 above.
[68] See § 8 5 2 above.
[69] 1972 (1) SA 589 (A) 616H. In S v Vause 1997 (2) SACR 395 (N) such help came from an expert who
specialised in the reconstruction of motor car accidents. See also Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA
589 (A), where a full bench, rejecting the approach adopted in S v Kleynhans 2005 (2) SACR 582 (W), stressed the
valuable contribution that a probation officer can make to the sentencing process. See also generally Price 2006
SACJ 141, who discusses the “appreciable help” standard with special reference to S v Ferreira and Others 2004 (2)
SACR 454 (SCA).
[70] 1985 (1) SA 720 (Z) 724I.
[71] 1958 (4) SA 235 (T).
[72] 1958 (4) SA 235 (T).
[73] At 770H-I.
[74] At 774D.
[75] At 774E-F. See also S v S [2011] ZASCA 214 (unreported, SCA case no 423/11, 29 November 2011) at [20].
[76] At 775A-B. For a critical comment on this portion of Satchwell J’s finding, see Zeffertt 1997 ASSAL 718 737.
[77] POWA stands for “People Opposing Women Abuse”.
[78] At 776I.
[79] At 776G. In this respect she quoted from and relied upon Hoffmann & Zeffertt South African Law of Evidence
3 ed (1981) 85.
[80] At 777J-779D.
[81] 1999 (2) SACR 548 (SCA) 553e-g and 555g-556b.
[82] S v Nangutuuala en ’n Ander 1974 (2) SA 165 (SWA) 167C-E: “[T]ensy die grondslag van ’n getuie se
kundigheid gelê word — en gewoonweg word dit gedoen deur gepaste vrae aan die getuie self — [mag] hy nie as
deskundige . . . getuig nie. In die onderhawige saak was geen grondslag gelê nie . . . Geen enkele vraag in verband
òf met sy akademiese kwalifikasies òf met sy praktiese ervaring is aan [die getuie] gestel nie.” See also S v Shiini
1997 (1) SACR 212 (Nm) 214g-j.
[83] Ruto Flour Mills Ltd v Adelson (1) supra. See also Holtzhauzen v Roodt 1997 (4) SA 766 (W) 772H; Mkhize v
Lourens and Another 2003 (3) SA 292 (T).
[84] Goliath v Fedgen Insurance Company Ltd 1994 2 PH F31 (E): “I am, however, not satisfied that it has been
established that Victor has the necessary qualifications or expertise to give expert evidence regarding the behaviour
of a motor vehicle in cases where a driver is faced with the sudden deflation of a tyre and the steps which should be
taken by the driver to keep the vehicle under control in such circumstances. Victor is a physicist and a motor sport
enthusiast. The fact that he is a motor sport enthusiast, without more, does not qualify him to give expert evidence
of the nature to which I have referred. There is no evidence before me to suggest that Victor has been involved in
any research, or has conducted tests on which he is able to base the views expressed by him . . . An expert must
himself have knowledge or experience in the special field on which he testifies otherwise the danger exists of a court
being blinded by theory untested by knowledge or practical experience.” On the qualifications of experts in road
accident reconstruction, see generally GS Fouche Vervoer BK v Intercape Bus Service [2006] 1 All SA 24 (C) at [25]
and [44]. A physician who is not expert in ballistics cannot be asked about the shape and size of bullets which
caused a wound: Barrie v R 1959 1 PH H22 (O). Care should be taken to ensure that an expert witness does not give
evidence in areas outside his field of expertise. See PricewaterhouseCoopers Incorporated and Others v National
Potato Co-operative Ltd and Another [2015] 2 All SA 403 (SCA).
[85] S v Mkohle 1990 (1) SACR 95 (A) 100d; S v Mponda 2007 (2) SACR 245 (C) at [49].
[86] 1976 (1) SA 565 (E) 569.
[87] 1978 (4) SA 523 (N).
[88] Van Graan v Naudé 1966 1 PH J12 (O); Mahomed v Shaik 1978 (4) SA 523 (N); also see S v Mlimo 2008 (2)
SACR 48 (SCA), where Mthiyane JA said at [14]: “There is every reason to accept Sindane as an expert witness. He
is vastly experienced in his particular field of expertise and stated that he has been involved in no less than 3 085
cases involving ballistics testing over a period of more than six years. A lack of formal qualification may be an
indicator that the witness has not yet received sufficient training in the theoretical aspects in the field in which he or
she gives evidence. But this is not the case here, given the vast experience the witness has accumulated over the
years. Significantly the challenge is not about the content or substance of his evidence but, rather, that he still had
one more year to complete the course. During argument counsel offered no guidance as to what makes an expert an
expert. In my view the vast experience that Sindane had qualified him to be an expert and the trial court was
justified in accepting his evidence. In any event the challenge on appeal is a volte face, which comes late in the day,
as the appellant’s attorney indicated during the trial that Sindane’s qualifications were not disputed. Accordingly it no
longer lies in the appellant’s mouth at this stage to dispute the witness’s qualifications.” See also S v Mdlongwa 2010
(2) SACR 419 (SCA).
[89] Van Heerden v SA Pulp and Paper Industries Ltd 1945 2 PH J14 (W).
[90] S v Ramgobin and Others 1986 (4) SA 117 (N) 146; S v Mthimkulu 1975 (4) SA 759 (A); S v Claassen 1976
(2) SA 281 (O).
[91] S v Kotze 1994 (2) SACR 214 (O). S v Mkhize and Others 1998 (2) SACR 478 (W) is an example of a case
where the bald statement of an expert’s opinion did not carry any weight. The expert had lost the exhibits and was
unable to give reasons for his opinion.
[92] 1976 (3) SA 352 (A) 371F-H. See also S v Mokgiba 1999 (1) SACR 534 (O); and S v Zuma 2006 (2) SACR
191 (W).
[93] 1960 (3) SA 543 (A) 546D.
[94] 1992 (1) SACR 649 (E). In Maritime & General Insurance Co Ltd v Sky Unit Engineering (Pty) Ltd 1989 (1) SA
867 (T) 877 the court rejected an argument to the effect that a court may not — in regard to scientific issues — draw
its own conclusions based on criteria identified by experts.
[95] See, eg, S v Boyce 1990 (1) SACR 13 (T); S v De Leeuw 1990 (2) SACR 165 (NC); S v Abel 1990 (2) SACR
367 (C).
[96] 1991 (2) SACR 74 (W).
[97] See Bartlett “The Preparation of Experts’ Reports” 1994 60 Journal of the Chartered Institute of Arbitrators 94
for a useful discussion of the various considerations that must be taken into account when the report of an expert is
prepared. Where possible, expert evidence should be presented in such a way that the court is in a position to make
the observations on which the expert relied for his opinions. See S v Nthati en ’n Ander 1997 (1) SACR 90 (O); S v
Abader 2010 (2) SACR 558 (WCC) at [10]. On the assessment of an expert’s reconstruction of events (such as
collisions), see MV Banglar Mookh Owners of MV Banglar Mookh v Transnet Ltd 2012 (4) SA 300 (SCA).
[98] 1991 (1) SACR 91 (T). In this case a specialist psychiatrist had testified in mitigation of an accused who was
addicted to pethidine. The psychiatrist strongly advised against sending the accused to prison. In the opinion of the
psychiatrist the accused needed extensive psychotherapy (including chemotherapy) under controlled conditions and
combined with a gradual process of reintegration into society. The trial court refused to rely on this opinion. On
appeal Kriegler J remarked as follows (at 99j-100c, emphasis in the original): “A court’s approach to expert evidence
has been dealt with on many occasions. The court is not bound by expert evidence. It is the presiding officer’s
function ultimately to make up his own mind. He has to evaluate the expertise of the witness. He has to weigh the
cogency of the witness’s evidence in the contextual matrix of the case with which he is seized. He has to gauge the
quality of the expert qua witness. However, the wise judicial officer does not lightly reject expert evidence on
matters falling within the purview of the expert witness’s field. The judicial process is difficult enough. And the
determination of an appropriate sentence is always vexed. It is all the more so in a case such as the one with which
we are now dealing. A wise judicial officer will gather unto himself such aids as he can find. One does not spurn
proffered aid lightly. Here a highly qualified and obviously well informed expert proffered not only expert evidence
but volunteered valuable assistance in the future handling of the prisoner before the court. That witness dealt with
questions beyond the field of ken of laymen. One does not reject such evidence readily where the expert has
furnished his opinions — and the foundational reasons therefore — in a satisfactory manner. Here the diagnosis,
prognosis and prescribed treatment were clearly articulated and carefully, if not painstakingly, explained.” At 100g it
was said that the psychiatrist’s evidence “was uncontroverted by any factual or opinion evidence. It was thoroughly
tested and was in all respects persuasive and weighty. It should have been accepted, not rejected.”
[99] 1996 (1) SACR 664 (A) 666f-j.
[100] 1984 (4) SA 432 (E).
[101] Mapota v Santam Versekeringsmaatskappy Bpk 1977 (4) SA 515 (A). See also § 30 2 2 below.
[102] See generally S v Mkohle 1990 (1) SACR 95 (A) 100c-d; S v Mngomezulu 1972 (1) SA 797 (A); S v Boyce
1990 (1) SACR 13 (T) 19. In S v Malinga 2002 (1) SACR 615 (N) 618g the expert’s opinion was deprived of a factual
basis because the evidence of the complainant was inadmissible. In PricewaterhouseCoopers Incorporated and
Others v National Potato Co-operative Ltd and Another [2015] 2 All SA 403 (SCA) one of the reasons for rejecting
the expert evidence was that the opinions were expressed without any factual basis having been established by way
of admissible evidence. Another reason was the fact that the expert concerned disregarded all facts inconsistent with
his own theories and conclusions.
[103] See generally S v Loubscher 1979 (3) SA 47 (A) 57F-G and 60B-C.
[104] 1965 (2) SA 340 (A) 365B-C (emphasis added).
[105] Stock v Stock 1981 (3) SA 1280 (A) 1296E. See also P v P 2007 (5) SA 94 (SCA) at [18] and [21]. An
expert is required to assist the court and not the party calling him: it follows that objectivity is a fundamental
prerequisite for expert opinion. See Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139
(SCA) at [15]; S v Ncube and Others 2011 (2) SACR 471 (GSJ); Schneider NO and Others v AA and Another 2010
(5) SA 203 (WCC) at 211; PricewaterhouseCoopers Incorporated and Others v National Potato Co-operative Ltd and
Another (supra) at [99]; Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ). Motswai is discussed by Slabbert 2013
Obiter 166.
[106] 1994 (2) SACR 214 (O) 225i. However, a court must keep in mind the difference between scientific
standards of proof applied by experts and judicial measure of proof to be applied by the court itself. See Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA).
[107] S v Zwane and Others (3) 1989 (3) SA 253 (W) 278H. Zeffertt 1989 ASSAL 421 points out, however, that
“reliance could be placed on it if it were an interpretation that were to be accepted by either the court or the witness
(or both)”.
[108] S v Baleka and Others (3) 1986 (4) SA 1005 (T) 1021D.
[109] Stock v Stock 1981 (3) SA 1280 (A) 1296F and Jackson v Jackson 2002 (2) SA 303 (SCA). As regards the
assessment of conflicting views of experts, see Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188 (SCA); Louwrens v Oldwage 2006 (2) SA 161 (SCA); Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241
(SCA) ([2014] ZASCA 150); Abdo NO v Senator Insurance Co Ltd and Another 1983 (4) SA 721 (E) and GS Fouche
Vervoer BK v Intercape Bus Service [2006] 1 All SA 24 (C). See also § 30 2 2 below. As regards the assessment of
the expert’s opinion where the facts upon which the expert relies are not borne out by the evidence of the accused,
see S v Engelbrecht 2005 (2) SACR 41 (W).
[110] 1979 (1) SA 949 (W) 959. Zeffertt 2000 ASSAL 795 802 observes as follows: “A valuator who gives expert
evidence about the value of an immovable is obliged to consider everything relevant to that assessment. It follows
that he may gather relevant hearsay evidence to that end and relay it to the court. Visagie v Gerryts en ’n Ander
2000 (3) SA 670 (C) at 680E-F. That was certainly true at common law. What nearly everyone seems to forget (or,
at least, to articulate in this context) is that we have had a statute governing hearsay since 1988. That statute, the
Law of Evidence Amendment Act, makes hearsay inadmissible unless it be received in terms of s 3 of the statute or
some other law. This raises the question: Is an exception at common law, which allows hearsay to be admitted as a
basis for an expert’s opinion, a ‘law’ within the meaning of s 3? It had better be — otherwise the reception of this
kind of evidence, which is so frequently admitted by our courts without recourse to the statutory discretion contained
in s 3, is quite inexplicable unless the true answer is that we have no common-law rules of evidence and that our law
of evidence is and always has been imported and included, or codified, by statute. If that be so, it is about time that
we all recognised and expressed it.”
[111] 1963 (3) SA 250 (C) 251H-252A.
[112] 1976 (1) SA 565 (E) 569H.
[113] S v Collop 1981 (1) SA 150 (A); S v Harris 1965 (2) SA 340 (A) 344C-D; S v Jones 2004 (1) SACR 420 (C).
[114] On the purpose and application of these rules, see Doyle v Sentraboer (Co-Operative) Ltd 1993 (3) SA 176
(SE) 180-1.
[115] Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC) at [72]. See
§ 11 5 below.
[116] See generally s 212 of the CPA and s 22 of the CPEA.
[117] See and compare generally Rex v Van Schalkwyk 1948 (2) SA 1000 (O); Rex v K 1951 (3) SA 180 (SWA); R
v Birch-Monchrieff 1960 (4) SA 425 (T); S v Joubert 1971 (3) SA 924 (E). See further Meintjes-Van der Walt Expert
Evidence in the Criminal Justice Process — A Comparative Perspective 128-30.
[118] See also generally Van der Merwe Die Geheueverfrissingsprosedure (unpubl LLD thesis, UCT 1988) 269-80.
[119] 1986 (4) SA 117 (N).
[120] 1986 (4) SA 117 (N) 146F-G.
[121] See generally S v Bergh 1976 (4) SA 857 (A) 865C-D.
[122] Wigmore para 787 (emphasis in the original): “Sometimes a prepared statement has advantages. In many
cases, especially where an expert witness upon a subject of scientific knowledge has made an investigation or
analysis and is called to testify, it makes for his own lucidity and accuracy, and for better comprehension and
valuation of his testimony, if he first reads his written report stating in precise terms his observations and inferences.
This practice should be freely permitted.”
[123] S v Heller and Another (1) 1964 (1) SA 520 (W) 522B-523D.
[124] See §§ 18 1 and 24 1 below.
[125] [1943] 2 All ER 35. It was held that a conviction of negligent driving in a criminal case was not admissible in
a subsequent civil action for damages. See further Prophet v National Director of Public Prosecutions 2006 (2) SACR
525 (CC) at [42]; Danielz NO v De Wet and Another 2009 (6) SA 42 (C). See Cowen & Carter Essays on the Law of
Evidence 172-204 for a detailed discussion of this rule. However, see Customs Tariff Consultants CC v Mustek Ltd
2002 (6) SA 403 (W) in respect of consolidated proceedings regarding a sister case before the same tribunal.
[126] 1979 (1) SA 824 (A) 840.
[127] See ch 3 above.
[128] 1993 4 All ER 124 128h; also see Van Zyl and Another v Jonathan Ball Publishers (Pty) Ltd and Others 1999
(4) SA 571 (W); Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (No 1) 2003 (5) SA
518 (C); Msunduzi Municipality v Natal Joint Municipal pension/provident Fund and Others 2007 (1) SA 142 (N);
Graham v Park Mews Body Corporate and Another 2012 (1) SA 355 (WCC).
[129] 1987 (3) SA 499 (A) 505F.
[130] 1987 ASSAL 433. See also Van der Berg 1987 Obiter 128. It should be noted that the Hassim case referred
to by Zeffertt, was not referred to in Nel v Law Society, Cape of Good Hope 2010 (6) SA 263 (ECG) in which the rule
in Hollington was applied to disciplinary proceedings against an attorney.
[131] See ch 7 above.
[132] However, in its report Review of the Law of Evidence: Project 6 (1986) para 18 5, the SA Law Commission
was not prepared to recommend statutory repeal of Hollington, claiming, inter alia, that to attach probative value to
the first court’s decision would in effect mean declaring something that is irrelevant to be relevant.
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Chapter 9
Previous Consistent Statements
S E van der Merwe
9
9
9
9
9
9
1
2
3
4
5
6
9
9
9
9
9
9
7
8
9
10
11
12
Introduction
Rationale for the Exclusion of Previous Consistent Statements
An Example from Case Law
Exceptions to the General Rule
To Rebut a Suggestion of Recent Fabrication
Complaints in Sexual Cases
961
Voluntary complaint
9611
The common law
9612
The provisions of Act 32 of 2007
962
The victim must testify
9621
The common law
9622
The provisions of Act 32 of 2007
963
First reasonable opportunity
9631
The common law
9632
The provisions of Act 32 of 2007
964
Victim of sexual offence
9641
The common law
9642
The provisions of Act 32 of 2007
965
Limited evidential value
9651
The common law
9652
The provisions of Act 32 of 2007
966
Complaints in sexual cases: inferences and the provisions of ss 58 and 59
of Act 32 of 2007
9661
General background
9662
Inferences and ss 58 and 59
Identification
Part VI of the CPEA
Res Gestae
Refreshing Memory
Statements Made at Arrest or on Discovery of Incriminating Articles
Section 213 of the CPA
9 1 Introduction
A previous consistent statement is a written or oral statement made by a witness on some
occasion prior to testifying and which corresponds with or is substantially similar to his or
her testimony in court. The general rule is that a witness is not allowed to testify that on a
previous occasion he made an oral or written statement consistent with his evidence in
court. [1] A witness may therefore not be asked in evidence in chief or re-examination
whether he had
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made a previous statement consistent with his evidence in court. [2] A previous consistent
statement of a witness may also not be proved by calling another witness. [3] This kind of
statement is excluded because of its irrelevance. It lacks probative value. [4] In exceptional
circumstances these statements may be sufficiently relevant to be admissible. [5]
The general rule against the admissibility of previous consistent statements is sometimes
described as the “rule against narrative” or the “rule against self-serving statements”. [6]
Proof of previous inconsistent statements is as a rule admissible, because inconsistent
statements are relevant to credibility. [7] Previous consistent statements are, however,
generally excluded.
9 2 Rationale for the Exclusion of Previous Consistent
|Statements
A previous consistent statement is generally insufficiently relevant. Its insufficient relevance
can be attributed to the cumulative effect of several factors:
(a) A previous consistent statement usually has insufficient probative force. [8] A lie can be
repeated as often as the truth. [9]
(b) There is also the danger of easy fabrication. [10] There is a risk of “self-made”
evidence. [11] This is a factor which indirectly affects relevance and admissibility. [12]
(c) Evidence of previous consistent statements would in most cases be
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(d)
(e)
completely superfluous as it may be accepted that in the ordinary course of events a
witness’s evidence would be consistent with what he on other occasions had said about
the same topic or incident. [13]
Proof of previous consistent statements in each and every case would be extremely
time-consuming and may pave the way for numerous collateral enquiries. A previous
consistent statement, once proved, would merely duplicate the evidence already given
by the witness. [14] There is no probative contribution.
The rule against self-corroboration [15] limits the probative value of a previous
consistent statement to such an extent that proof of such statement is generally
excluded: it has insufficient probative force (as stated in (a) above).
9 3 An Example from Case Law
In R v Roberts [16] the accused was charged with murder. He testified that the killing of his
girlfriend was an accident. He was, however, not permitted to testify that two days after the
killing he had told his father that the killing was an accident. The narration to his father was
excluded because of its irrelevance. The court remarked: [17]
“The law upon the matter is well-settled. The rule relating to this is sometimes put in this way, that a
party is not permitted to make evidence for himself. That law applies to civil cases as well as to
criminal cases. For instance, if A and B enter into an oral contract, and some time afterwards there is
a difference of opinion as to what were the actual terms agreed upon and there is litigation about it,
one of those persons would not be permitted to call his partner to say: ‘My partner a day or two after
told me what his view of the contract was and that he had agreed to do so and so.’ So, in a criminal
case, an accused person is not permitted to call evidence to show that, after he was charged with a
criminal offence, he told a number of persons what his defence was going to be, and the reason for
the rule appears to us to be that such testimony has no evidential value. It is because it does not
assist in the elucidation of the matters in dispute that the evidence is said to be inadmissible on the
ground that it is irrelevant. It would not help the jury in this case in the least to be told that the
appellant said to a number of persons, whom he saw while he was awaiting his trial, or on bail if he
was on bail, that his defence was this, that or the other. The evidence asked to be admitted was that
the father had been told by his son that it was an accident. We think the evidence was properly
refused.”
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9 4 Exceptions to the General Rule
At this stage of the development of our law of evidence it seems as if it must be accepted
that the exceptions to the rule form a numerus clausus. [18] These exceptions are discussed
in §§ 9 5 to 9 12 below.
9 5 To Rebut a Suggestion of Recent Fabrication
[19]
If it is suggested to a witness that he has fabricated his evidence within some ascertainable
period of time, he may rebut this specific suggestion of fabrication by showing that prior to
the time as alleged he had made a written or oral statement consistent with his evidence in
court. [20] In Menday v Protea Assurance Co Ltd Addleson J remarked as follows: [21]
“The word ‘recent’ in the term ‘recent fabrication’ appears to be inappropriate since in those cases in
which such evidence has been admitted, it appears that the comparative ‘recentness’ of the
fabrication has not been the deciding issue but rather the question whether between the event under
investigation and the trial of the matter, the witness invented a false version of what occurred; and
the statement has been admitted to show that, far from fabricating his evidence, the witness is saying
what he has always said. Much depends upon the form of the challenge of the disputed evidence and
much must depend on the ultimate cogency of the evidence of the previous consistent statement.”
This exception also applies where the allegation of recent fabrication is made by
implication. [22] General cross-examination aimed at showing that a witness is unreliable or
untruthful will not open the door for the admissibility of a previous consistent statement. [23]
The specific allegation or line of cross-examination must be analysed. [24]
The previous consistent statement is admissible not only where a direct or implied
accusation of a recent deliberate false fabrication is made but also
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where it is alleged that the witness recently imagined
though not with conscious dishonesty. [26]
[25]
or reconstructed the event even
The previous consistent statement is admitted because of its relevance. It has the
potential to rebut the attack upon the credibility of the witness. The contents of the
statement may not, however, be used as evidence of the truth of what the witness had said.
Nor can it serve as corroboration of the witness’s evidence. [27] The general rule against selfcorroboration prohibits such an approach. [28] The true evidential value of the statement is to
show that the story of the witness was not concocted at a later date. Consistency is proved
to refute recent fabrication. [29]
9 6 Complaints in Sexual Cases
The common-law position is that evidence may be given of a voluntary complaint made by
the victim within a reasonable time after the commission of the alleged sexual offence. [30]
The common-law rule applies by virtue of the 30 May, 1961 provision contained in s 190(1)
of the CPA (see § 9 6 3 2 below), but has to some extent been amended by recent
legislation as indicated below.
The common-law rule has had a peculiar historical development. [31] In the Middle Ages it
was considered essential for a rape victim to have “raised the hue and cry” [32] if a charge of
rape were to succeed. This rule, however, merely serves as a remote historical link with the
present rule. The present rule, for example, applies to female as well as male victims [33] and
is no longer confined to sexual crimes where absence of consent is an essential element. [34]
Furthermore, in terms of the modern common-law rule the absence of a complaint made
within a reasonable time after the event, is not fatal to the prosecution’s case (see § 9 6 3 1
below where S v Cornick and Another [35] is discussed).
The common-law requirements governing the admissibility of the complaint (the previous
consistent statement) are the following: the complaint must have been a voluntary one (see
§ 9 6 1 1 below); the complainant must testify (see
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§ 9 6 2 1 below); the complaint must have been made at the first reasonable opportunity
(see § 9 6 3 1 below); the complainant must have been a victim of a sexual offence (see
§ 9 6 4 1 below); and the complaint can only be admitted for the limited purpose of proving
consistency (see § 9 6 5 1 below).
The above common-law rule that the complaint of the victim is admissible as an exception
to the general rule excluding previous consistent statements, has for many decades been the
subject of severe criticism. [36] It has been argued that the rule does not have a rational
basis and is potentially prejudicial to the complainant and, indeed, the accused; [37] that it
fails to take into account research which confirms “that silence is part of a series of posttraumatic responses . . . caused by crimes such as rape”; [38] and that, in the absence of a
complaint made within a reasonable time after the incident, there is the risk that a court
might draw an adverse inference as regards the credibility of the complainant (see § 9 6 6 1
below). In some common-law jurisdictions the rule has been abolished by statute; [39] and in
other common-law jurisdictions the common-law rule has been greatly modified to eliminate
the real or perceived risks attached to the practical application of the rule. [40]
The South African Law Commission also investigated the matter and made
recommendations (see § 9 6 6 1 below) which are now, with some adaptations, embodied in
ss 58 and 59 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007. These two sections came into operation on 16 December 2007. [41]
Section 58 provides as follows:
“Evidence relating to previous consistent statements by a complainant shall be admissible in criminal
proceedings involving the alleged commission of a sexual offence: Provided that the court may not
draw any inference only from the absence of such previous consistent statements.”
Section 59 provides as follows:
“In criminal proceedings involving the alleged commission of a sexual offence, the court may not draw
any inference only from the length of any delay between the alleged commission of such offence and
the reporting thereof.”
The impact of these two sections on the common-law rule and on the common-law
conditions governing the admissibility and probative value of the complaint, is discussed in
§§ 9 6 1 2, 9 6 2 2, 9 6 3 2, 9 6 4 2 and 9 6 5 2 below. From the outset, however, it must
be noted that neither s 58 nor s 59 makes any clear reference to the conditions that attend
the admissibility of the previous
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consistent statement(s) in sexual cases, except for the fact that s 58 as read with s 1(1) of
Act 32 of 2007 has expanded the meaning of “sexual offence” for purposes of the rule under
discussion (see § 9 6 4 2 below).
9 6 1 Voluntary complaint
9 6 1 1 The common law
In R v C 1955 (4) SA 40 (N) the common-law requirement was stated as follows: “To qualify
for admission, the ‘complaint’ must have been made voluntarily, not as a result of leading or
suggestive questions, nor of intimidation.” [42] In S v T [43] the victim’s mother had
threatened to hit her if she refused to disclose what the accused had done to her. The
complaint obtained in this way was held inadmissible. This case can be criticised on the basis
that the court paid inadequate attention to all the surrounding circumstances. [44]
Leading or intimidating questions should not have been asked. [45] Questions such as “why
are you upset?” or “what happened to your clothes?” will not render the complaint
inadmissible. But a question such as “did X touch your private parts?” may affect
admissibility even if the answer was given voluntarily. In R v Osborne it was said: [46]
“[T]he mere fact that the statement is made in answer to a question in such cases is not of itself
sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will,
indeed, have that effect . . . [B]ut a question such as this, put by the mother or other person, ‘What is
the matter?’ or ‘Why are you crying?’ will not do so. These are natural questions which a person in
charge will be likely to put. On the other hand, if she were asked, ‘Did so-and-so . . . assault you?’
‘Did he do this and that to you?’ then the result would be different . . . In each case the decision on
the character of the question put, as well as other circumstances, such as the relationship of the
questioner to the complainant, must be left to the discretion of the presiding judge. If the
circumstances indicate that but for the questioning there probably would have been no voluntary
complaint, the answer is inadmissible. If the question merely anticipates a statement which the
complainant was about to make, it is not rendered inadmissible by the fact that the questioner
happens to speak first . . .”
9 6 1 2 The provisions of Act 32 of 2007
It is submitted that the words “shall be admissible” in s 58 of Act 32 of 2007 must inevitably
be read subject to the common-law requirement of voluntariness as set out in § 9 6 1 1
above. A complaint obtained as a result of violence, or the threat of violence, would on
account of its inherent unreliability lack the required probative value of proving the
consistency of the complainant and — in the absence of serving
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any such probative purpose — the complaint becomes irrelevant and inadmissible. At any
rate, a coerced complaint may also be excluded in terms of s 35(5) of the Constitution. In
terms of this section evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission thereof would render the trial unfair or otherwise
be detrimental to the administration of justice. The fact that the complaint was obtained in
breach of the rights of the complainant (as opposed to those of the accused) is no bar to the
application of s 35(5). [47]
In terms of the common-law rule as set out in § 9 6 1 1 above, non-coerced complaints
must nevertheless be excluded if they were elicited by leading questions. Does s 58 of Act
32 of 2007 demand a different approach? It is submitted that here, too, the words “shall be
admissible” do not demand admission of a complaint that lacks probative value — and a
complaint which consists of words put in the mouth of the complainant should be excluded.
A complaint which essentially consists of suggestions made by a third party, can hardly
serve to show consistency on the part of the complainant who adopted or accepted these
suggestions. It should be noted that the common-law position has been amended in
England, where s 120(8) of the Criminal Justice Act 2003 provides that — for purposes of
determining the admissibility of the prior complaint — “the fact that the complaint was
elicited (for example by a leading question) is irrelevant unless a threat or a promise was
involved”. [48] Our s 58 contains no such clear statutory break with the common law as
regards leading questions. It is accordingly submitted that the court retains a discretion as
regards the admissibility of complaints which were responses to suggestions or leading
questions. The position as set out in cases like R v C supra and R v Osborne supra (see
§ 9 6 1 1 above) prevails. However, it is important that in exercising its discretion the court
should pay careful attention to all the circumstances, especially the age of the
complainant [49] and the question whether the complaint resulted from a blatant suggestion
or a mere neutral inquiry which prompted the complaint. [50]
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9 6 2 The victim must testify
9 6 2 1 The common law
It is a condition of admissibility that the victim should testify. [51] Consistency cannot be
proved without the victim’s version. Neither the fact that the victim complained nor the
contents of the complaint may be received if the victim fails to or cannot testify. [52]
In S v R [53] it was alleged that the victim (a chronic alcoholic) was raped in an ambulance
whilst on her way to a nursing home for treatment. The accused, who had accompanied her
on the journey during which intercourse took place, alleged that she had consented. Upon
their arrival at the nursing home the victim repeatedly averred that the accused had raped
her. These statements were overheard by a nurse. At the trial — and as a result of the fact
that the victim’s acute alcoholic condition had given rise to amnesia — she was unable to
recall anything from the time she entered the ambulance. But in her evidence she denied
that she could have consented to intercourse. The complaint was held admissible despite the
fact that the victim was unable to repeat it in her testimony. It was also held that the
complaint was admissible to prove state of mind.
9 6 2 2 The provisions of Act 32 of 2007
Section 58 of Act 32 of 2007 sanctions — in line with the common-law rule — the
admissibility of “previous consistent statements by a complainant” in the context under
discussion. However, it is submitted that the common-law requirement that the complainant
must testify (see § 9 6 2 1 above) remains intact. Admission of prior statements of a
complainant who does not testify, cannot prove consistency; and it is extremely doubtful
that Parliament had in mind that s 58 should be interpreted as a statutory exception to the
hearsay rule. [54]
9 6 3 First reasonable opportunity
9 6 3 1 The common law
The complaint should as a rule have been made at the first reasonable opportunity. [55]
Complaints by young children have been admitted after periods of five days, [56] seven
days, [57] ten days [58] and even six
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weeks. [59] According to Schmidt & Rademeyer, [60] the determination of what exactly would
amount to a “first reasonable opportunity” does to a large extent depend upon (a) the
presence or absence of a person to whom it can reasonably be expected that the victim
might have complained and (b) the question whether the victim realised the immoral nature
of the act. [61] In Die Staat v V [62] it was also pointed out that an important question is
whether the complainant — because of the lapse of time — could possibly have made a false
complaint.
In S v S [63] the accused was charged with the rape of an 11-year-old girl. Ebrahim JA
adopted a most sensible approach: [64]
“There is one aspect of the complainant’s evidence which on first reading is puzzling and can only be
clarified when it is considered from the viewpoint of a young person. This is the reason she gave for
not reporting the incident to her mother in detail. She told the court she did not report it at school
because she wanted to tell her mother first. This I regard as a natural reaction of one who has been
through a traumatic experience such as that deposed to. But then when she arrived home she merely
told her mother that her teacher had ‘touched’ her private parts. Out of context, this erratic behaviour
might well present the prosecution with an insuperable problem, for it is a generally accepted
evidential requirement that the complainant should report the offence at the earliest opportunity. I
should emphasize that this requirement is not a rule of law and admits of exceptions in appropriate
cases. The explanation proffered by the complainant for her erratic behaviour is not one I would
accept from an adult, or even from an older juvenile, but it emerged so naturally from this 11-yearold, and in context to the mind of an innocent child must appear so logical that I am prepared to
accept it was given without intention to deceive. The little girl said that at the time she formed the
intention to tell her mother about her ordeal she was bleeding from her vagina and sore, but by the
time she arrived at home the bleeding had stopped. In answer to previous questions she had deposed
that she was unaware that what the appellant had done was unlawful. So, when
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she arrived home without visible injury, she decided not to trouble her mother with a detailed report
of what, one gathers, she (the complainant) regarded as a form of punishment. I am fortified in my
acceptance of this aspect of the complainant’s evidence by the evidence of her mother, from which it
emerges that the complainant was not infrequently detained at school for punishment. It is unlikely in
these circumstances that she would wish to draw attention to a further detention by going into details
about her ‘punishment’.”
In S v De Villiers en ’n Ander [65] a delay of approximately one year and the rejection of the
three young complainants’ explanation for the delay, [66] contributed to the acquittal of the
two appellants in circumstances where the court of appeal was satisfied that there were also
several other contradictions, improbabilities and unsatisfactory aspects in the testimony of
the complainants, [67] whereas the evidence of the appellants could not on account of
contradictions or improbabilities be rejected as not being reasonably possibly true. [68]
The presence or absence of a report made within a reasonable time after the incident
must be assessed in context; and a delay is not necessarily fatal to the prosecution’s case.
In S v Cornick and Another [69] Lewis JA (Ponnan JA and Theron AJA concurring) confirmed
the rape convictions of the two appellants even though the complainant — who was 14 years
old at the time of the rape — had laid charges only 19 years later. A chance meeting with
one of the appellants at the home of his sister revived memories of her ordeal, prompting
her to lay charges. Lewis JA described the case as “unusual”. [70] The appellants’ argument
was that it was improbable that the complainant, if she had been raped, would not have told
her grandparents or mother about the rapes. In this respect Lewis JA held that the
complainant [71]
“gave plausible explanations for all these apparent anomalies. She had been brought up by elderly
and conservative grandparents. They had never discussed matters of an intimate nature. She had a
distant relationship with her mother who had also not spoken to her ever about sex or physiology.
She had never had a boyfriend. It seems to me quite likely that in these circumstances she did not
realise what was happening to her when three youths took turns forcibly to have sexual intercourse
with her, despite her pleas and protestations. She knew that she was being hurt, but she did not
appreciate that she was being raped. It does not seem to me improbable that a young woman who
has tried to bury memories of a traumatic event for many years would not appreciate until her midtwenties, at a time when discussion and publicity about rape had become common, the full extent of
what had happened only later.”
9 6 3 2 The provisions of Act 32 of 2007
Section 58 sanctions the admissibility of evidence of a prior consistent complaint or
complaints. Admission of a prior
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consistent complaint or complaints is also possible in terms of the common law, provided
that each complaint satisfies the “first reasonable opportunity” requirement. [72]
However, has s 58, as read with s 59, abolished the common law’s “first reasonable
opportunity” requirement? Paizes argues that the common-law requirement that the
complaint be made at the first reasonable opportunity to the first person to whom the
complainant might reasonably be expected to complain, “will, in all probability, not survive”
the new statutory dispensation. [73] This prediction is supported on the basis that the words
“shall be admissible” in s 58 cannot be interpreted as mere confirmation of the common-law
rule and its “first reasonable opportunity” requirement. The rule and its “first reasonable
opportunity” requirement were part of our law on account of the following provisions in
s 190(1) of the CPA: “Any party may in criminal proceedings . . . support the credibility of
any witness called . . . on behalf of such party in any manner in which and by any evidence
by which the credibility of such witness might on the thirtieth day of May, 1961, have
been . . . supported by such party.” Section 58, it is suggested, is not a mere restatement of
the rule. Such an interpretation would render the peremptory terms “shall be admissible”, as
used in s 58, meaningless. It is accordingly submitted that whilst s 58 confirms that a prior
complaint is admissible as a means of supporting the credibility of a complainant, it does
away with the common-law position as far as the latter’s attended “first reasonable
opportunity” requirement is concerned. This interpretation has the added advantage of
catering for the now generally accepted view that complainants in sexual cases do not
necessarily make immediate or prompt reports. [74] The whole purpose of s 58, it would
seem, was to facilitate proof of a prior consistent statement of a complainant in a sexual
case. Furthermore, s 59 provides that “the court may not draw an inference only from the
length of any delay between the alleged commission of such offence and the reporting
thereof.” This section implies that evidence of the complaint — even if presented by the
prosecution — can be admitted in terms of s 58 without having satisfied the “first reasonable
opportunity” requirement. The emphasis, it can be said, is no longer upon the admissibility
of the complaint but upon the inferential reasoning that should be permitted in assessing the
credibility of the complainant (see § 9 6 6 1 below).
It has already been noted that s 58 permits the admission of evidence of multiple
complaints. If the “first reasonable opportunity” requirement is no longer applicable, the
following questions arise: Is the court now compelled to admit all previous complaints
regarding the incident concerned? Where must the line be drawn? The fact that s 58 permits
evidence of multiple complaints
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that are not, it seems, subject to the “first reasonable opportunity” requirement,
theoretically opens the door to the admission of a series of complaints made to various
people. However, neither s 58 nor s 59 has abolished the common-law rule that a previous
consistent statement (the complaint) has the limited probative purpose of proving
consistency (see § 9 6 5 2 below). Evidence of a complaint (or complaints) is not
independent evidence of the facts alleged and cannot serve as evidence of the truth of the
contents so as to corroborate the complainant who, after all, is the very source from which
the report emanated (see § 9 6 5 1 below). It follows that no amount of evidence which
consists of complaint upon complaint can overcome the rule against self-corroboration.
Parliament could therefore hardly have had in mind that a court must receive all previous
complaints, regardless of their number and the circumstances in which they were made. The
admission of evidence of complaint upon complaint which can only serve the limited
probative purpose of proving consistency, must on account of considerations pertaining to
relevance reach a point where a court may in its discretion refuse to receive further evidence
of yet another complaint. This much, it is suggested, is demanded by s 210 of the CPA. [75]
Repetition upon repetition of a complaint — which, after all, remains a self-serving
statement — can ultimately become superfluous, making no further probative contribution to
the ultimate assessment of consistency as a factor in determining credibility.
9 6 4 Victim of sexual offence
9 6 4 1 The common law
The common law requires that the offence must be of a sexual nature; there must be a
victim and violence (or some physical element) must have been present [76] (for example, as
in rape or indecent assault). The concept “victim” includes people who voluntarily participate
in a sexual offence, but who cannot in law give proper consent, [77] for example, children
below certain ages and the mentally disabled.
The specific offence charged is not the decisive factor. The complaint may be admissible
on a charge of common assault if the evidence discloses that an indecent act was also
committed. [78]
9 6 4 2 The provisions of Act 32 of 2007
The words “sexual offence” are used in s 58 of Act 32 of 2007 and are defined in s 1(1) of
the same Act as “any offence in terms of Chapters 2, [79] 3 [80] and 4 [81] and sections 55 [82]
and
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71(1), (2) and (6) [83] of this Act”. The common-law concept of the (sexual) crimes which
would have triggered the application of rule (see § 9 6 4 1 above), can no longer be applied:
“Whereas the rule used to apply only in prosecutions for rape, indecent assault and similar
offences, as these crimes were defined before 2007 . . . it now extends to a host of very
different offences to which it seems ill-suited, at best, and which were never envisaged by
the common-law rule . . .” [84] Included in the new array of offences calling for the
application of the rule, are, for example, “bestiality” as defined in s 13 and “sexual acts with
a corpse” as defined in s 14. These two crimes — as they stood prior to the statutory regime
established by Act 32 of 2007 — would not, in terms of the common law, have attracted
application of the rule.
9 6 5 Limited evidential value
9 6 5 1 The common law
In terms of the common law the complaint only serves to prove consistency on the part of
the victim. [85] It cannot create a probability in favour of the prosecution’s case [86] and
cannot corroborate the victim. [87] Ashworth states as follows: [88]
“A witness certainly cannot corroborate himself by pointing out that he told the same story before.
The fact that the witness telling a particular story at the trial told exactly the same story to the police
soon after the alleged offence cannot supply corroboration, although it may well strengthen the
evidence and rebut any suggestion of subsequent fabrication. Repetition of a story does not
corroborate it: and this is a corollary of the general proposition that the confirmatory evidence must
come from an independent source. But this general proposition does not apply in one carefully
circumscribed set of circumstances, where self-corroboration is possible — by means of the victim’s
distressed condition after the alleged incident.”
In S v S [89] the extremely shocked condition (“die uiterste geskokte toestand”) of the
complainant when she reported the rape, was considered strong corroboration of her
testimony that she was raped. But the court should of course be satisfied that the distressed
condition was not feigned, and if genuine that it could not be attributed to something other
than the alleged incident. [90]
9 6 5 2 The provisions of Act 32 of 2007
Section 58 of this Act does not change the common-law rule as set out in § 9 6 5 1 above.
Section 58 governs admissibility and is silent on the purpose for which the evidence is
admitted. Our legislation does not make a clear break with the common law, like s 20(4)
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of the Criminal Justice Act 2003 in England, which provides that the complaint is admissible
to prove the truth of the matters stated and not merely to to show the consistency of the
complainant.
9 6 6 Complaints in sexual cases: inferences
ss 58 and 59 of Act 32 of 2007
[91]
and the provisions of
9 6 6 1 General background
In 1985 the South African Law Commission (hereafter “SALC”) concluded that the rules
governing a prior complaint of a complainant in sexual cases, did not require law reform. [92]
According to the SALC the correct application of the rules could not prejudice the
complainant concerned: the SALC argued that a prior consistent complaint could enhance
the prosecution’s case and, in the absence of an admissible earlier complaint, the finders of
fact could — depending on the reasons why no complaint was made at the first reasonable
opportunity — draw correct inferences from all the circumstances. However, just over a
decade and a half later the SALC re-examined the matter and concluded that even though
admission of an earlier complaint may have the effect of supporting the complainant’s
credibility, practical experience had shown that the rule created problems: “Where the
complainant did not make a statement at what is regarded as ‘the first reasonable
opportunity’, the defence usually succeeds with an argument that a negative inference
should be drawn about the credibility of the complainant: if the rape really happened, the
complainant would have complained as soon as possible.” [93]
The SALC argued that there were good grounds for rejecting the approach that the
absence of a complaint made at the first reasonable opportunity, should have an adverse
impact on the credibility of the complainant: [94]
“The fact that a negative inference is accepted at all by the courts, reflects assumptions about the
psychological effects of rape and other sexual offences and the conduct expected of a ‘reasonable’
complainant which are not borne out by recent empirical advances in this area. It is now widely
recognised that there are many psychological and social factors which may inhibit a complainant from
reporting a sexual offence ‘at the first reasonable opportunity’. This militates against the theory that
the absence of an earlier complaint should, of necessity, have a negative bearing on the reliability of
the complainant.”
The SALC considered various law reform options. The first option was to propose legislation
in line with s 275 of the Canadian Criminal Code. This section abolished the rule regarding
previous consistent statements in sexual offences. This approach places a complaint of rape,
for example, on the same footing as any other evidence of prior consistent statements,
rendering it inadmissible unless it can be admitted under other established exceptions to
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the general of rule of inadmissibility, like the rule relating to rebuttal of a recent
fabrication [95] (as explained in § 9 5 above). The SALC rejected this approach, because there
are many situations where admission of evidence of a complaint made within a reasonable
period after the commission of the alleged offence can indeed enhance credibility and assist
the state in furnishing proof beyond a reasonable doubt. [96]
As a second option, the SALC considered the provisions of s 6 of the Namibian Combating
of Rape Act 8 of 2001. [97] This section provides that evidence relating to all previous
consistent statements by a complainant shall be admissible where an accused is charged
with an offence of a sexual or indecent nature, provided “that no inference may be drawn
only from the fact that no such previous statements have been made.” However, the SALC
criticised s 6 of the Namibian legislation on the basis that it did not eliminate the possibility
that the presiding judicial officer may draw an adverse inference where the complainant did
delay in making the report. [98]
As a third option, the SALC considered certain Australian state legislation and the
provisions of s 7 of the Namibian Combating of Rape Act. Section 7 provides that where an
accused is charged with an offence of a sexual or indecent nature, “the court shall not draw
any inference only from the length of the delay between the commission of the sexual or
indecent act and the laying of a complaint”. The SALC ultimately concluded that by adopting
s 7 of the Namibian legislation — and by adopting an adaptation of s 6 of the same
legislation — it could effectively address the “problem that exists at present, without unduly
curtailing judicial discretion to evaluate evidence.” [99] The SALC’s recommendations were
embodied in clauses 17 and 19 of its proposed Sexual Offences Bill and the contents of these
two clauses are now, with some editorial changes, reflected in ss 58 and 59 of Act 32 of
2007.
9 6 6 2 Inferences and ss 58 and 59
The proviso in s 58 stipulates that a court may not draw any inference only from the
absence of any previous consistent statement made by a complainant, whereas s 59 states
that a court may not draw any inference only from the length of any delay between the
alleged commission of the offence and the reporting thereof. This legislative interference in
the inferential processes conducted by courts, is not desirable and might very well give rise
to constitutional issues.
It can be argued that ss 58 and 59 favour the prosecution: Whilst no inference (which,
obviously, includes a negative inference as regards the credibility of the complainant) can be
drawn solely on account of either the absence of a complaint or the length of the delay in
making the complaint, there is no similar statutory restriction as regards an inference drawn
solely from the fact that the complaint that was made happened to be a reasonably prompt
one. But this conflict is perhaps more apparent than real. In terms of
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the general principles which govern the evaluation of evidence, a court is precluded from
resorting to a piecemeal process of adjudication (see § 30 2 1 below). And drawing an
inference solely from the length of the delay between the alleged sexual crime and the
report of the complaint, would be inconsistent with the general principle that inferences may
not be drawn from selected facts considered in isolation (see § 30 5 below). Section 59 is
therefore merely statutory confirmation of what the correct approach should be: The length
of the delay is only a factor that must go into the scales. The same argument can be applied
to the proviso in s 58. And by the same token, the fact that a complaint was indeed made
within a reasonable period, is also only a factor that forms part of the totality of the evidence
on which it must be decided whether there is proof beyond reasonable doubt.
Paizes is far less accommodating in his assessment of the manner in which ss 58 and 59
seek to curtail the free evaluation of evidence: [100]
“Inferential processes are things best left to the courts. It is artificial and undesirable to curb . . . such
exercises. No two cases are alike . . . And to allow dogma or preconceived notions . . . to trammel the
reach of the judicial power in such processes is . . . a serious error. All that sections like these serve
to do is to invite intellectual dishonesty in that courts will, if they feel it is necessary to draw an
adverse inference, look for additional facts to support their conclusion even if these facts are flimsy or
unnecessary.”
9 7 Identification
Identification in court (a so-called “dock identification”) is of very little probative value.
Prior identification obviously carries more weight. In R v Rassool it was said: [102]
[101]
“Therefore it seems to me that the evidence of previous identification should be regarded as relevant
for the purpose of showing from the very start that the person who is giving evidence in court
identifying the prisoner in the dock is not identifying the prisoner for the first time but has identified
him on some previous occasion in circumstances such as to give real weight to his identification.”
The evidence of identification must go no further than mere identification. But identifying
words accompanying any physical identification may be received. [103]
9 8 Part VI of the CPEA
[104]
In terms of Part VI of the CPEA it is in certain circumstances permissible to hand in signed
statements which witnesses, who are also giving oral evidence, made after the incident
under investigation. Part VI of the CPEA also applies in
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criminal proceedings. [105] The previous written statement cannot serve as corroboration of
evidence given by the person who made the statement. [106]
9 9 Res Gestae
A previous consistent statement may also be received if it forms part of the res gestae. [107]
This was confirmed by the Appellate Division in S v Moolman. [108] But here, too, the previous
consistent statement cannot corroborate the witness.
9 10 Refreshing Memory
[109]
A witness’s earlier statement may in certain circumstances be used to refresh his memory
whilst he is in the witness-box. The evidential value of a statement used to refresh memory
depends on one of two possible situations. In the case of “present recollection revived” the
earlier statement has no independent probative value (see § 24 7 below). However, in the
case of “past recollection recorded” the contents of the statement are received (see § 24 7
below). In such an instance there is no independent oral testimony (the memory of the
witness is not refreshed) and the issue concerning the admissibility of a previous consistent
statement does not arise.
9 11 Statements Made at Arrest or on Discovery of
Incriminating Articles
These statements may be used to prove consistency.
[110]
9 12 Section 213 of the CPA
In terms of this section, which does not apply to an accused, a witness’s statement may in
certain circumstances be proved by consent, that is, without calling the witness. It is
possible, however, that the witness may also be called upon to testify viva voce after his
statement has been proved by consent. [111] It is submitted that in such an instance the
previous written statement will merely serve to show consistency. It cannot corroborate the
witness.
[1] S v Moolman 1996 (1) SACR 267 (A) 300c; S v Mkohle 1990 (1) SACR 95 (A) 99c-d; Rex v Rose 1937 AD 467;
S v Bergh 1976 (4) SA 857 (A) 865G.
[2] Zeffertt, Paizes & Skeen 403. The cross-examiner may venture into this area should he or she deem it
necessary. In R v M 1959 (1) SA 434 (A) 438H it was accepted that a trial court could “do so mero motu . . . in the
interests of justice (in some cases in favorem innocentiae) . . .”
[3] Corke v Corke and Cook 1958 2 WLR 110.
[4] S v Mkohle supra 99d. In S v Scott-Crossley 2008 (1) SACR 223 (SCA) it was said (at [17]): “The trial court
erred in another important respect. It found Mnisi to be reliable by reason of the fact that his evidence was
consistent with the statement he made to the police. The court’s reliance on Mnisi’s previous statement was clearly
wrong. The general rule is that a witness’s previous consistent statement has no probative value . . .”
[5] These instances are discussed in §§ 9 4 to 9 12 below.
[6] See Tapper Cross & Tapper on Evidence 11 ed (2007) 322; Allen Practical Guide to Evidence (1998) 81.
[7] See ch 25 below.
[8] S v Mkohle 1990 (1) SACR 95 (A) 99d: “[T]he general rule is that a witness’ previous consistent statement has
no probative value.” See also S v Scott-Crossley 2008 (1) SACR 223 (SCA) at [17].
[9] Rex v Rose 1937 AD 467 473.
[10] See § 5 3 4 above.
[11] Cowsill & Clegg Evidence: Law and Practice 3 ed (1990, reprinted 1991) 207. Keane The Modern Law of
Evidence 6 ed (2006) 180 says: “The reason usually given for the rule is the danger of manufactured evidence. A
resourceful witness, minded to deceive the court, could with ease deliberately repeat his version of the facts to a
number of people prior to trial with a view to showing consistency with the story he tells in the witness box, thereby
bolstering his credibility.”
[12] Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 442 states: “Die vorige ooreenstemmende
verklaring is irrelevant omdat dit baie geringe bewyskrag het en tweedens omdat die toelating daarvan daartoe kan
lei dat ’n getuie of beskuldigde sy verhaal aan verskeie mense kan herhaal, met die oog daarop dat die aanhoorders
dan as getuies geroep kan word om dit te bevestig. Dit is egter ’n erkende feit dat ’n leuen net so dikwels, indien nie
meer nie, as die waarheid herhaal kan word. Die roep van ’n aantal getuies om dieselfde verhaal te kom vertel, soos
hulle dit aangehoor het, druis in teen die relevantheidsgrondreël en neem onnodig die tyd van die hof in beslag.
Voorts kan dit tot verwarring lei terwyl dit geen of weinig bewyswaarde het nie.”
[13] Tapper Cross & Tapper on Evidence 11 ed (2007) 322; S v Hanekom 2011 (1) SACR 430 (WCC) at [27].
[14] See also Holtzhauzen v Roodt 1997 (4) SA 766 (W) 774D.
[15] See § 30 3 1 below.
[16] 1942 28 Cr App R 102.
[17] At 105 (my emphasis).
[18] However, compare Holtzhauzen v Roodt supra 774A where Satchwell J, relying on S v Bergh supra, took the
view that there is no numerus clausus of instances where evidence of previous consistent statements “may be
relevant and therefore permitted”. Zeffertt 1997 ASSAL 718 738-9 argues that this is not a correct interpretation of
S v Bergh supra.
[19] See generally R v Oyesikuz 1972 56 Cr App R 240; Rex v Vlok 1951 (1) SA 26 (C) 27A-G; Pincus v Solomon
1942 WLD 237 241-2; S v Bergh supra; Rex v Dart (2) 1951 (1) SA 483 (W); S v Mavinini 2009 (1) SACR 523 (SCA)
at [16].
[20] The party calling the witness may prove the previous consistent statement made by the witness at a time
when the latter had no motive or opportunity to fabricate a false version. See generally Rex v Kizi 1950 (4) SA 532
(A) 535G-H.
[21] 1976 (1) SA 565 (E) 566F-H.
[22] Bergh supra 868D; S v Nieuwoudt 1986 1 PH H3 (C) 5-6; S v Moolman 1996 (1) SACR 267 (A).
[23] Nieuwoudt supra 5. Dennis The Law of Evidence 3 ed (2007) 561 says: “Accordingly it is not enough by itself
that the cross-examiner proves that the witness has made a previous inconsistent statement, or that the crossexaminer attacks the whole of the witness’s testimony. The cross-examiner has to go further, so that the crossexamination amounts to an allegation that the witness in effect fabricated the testimony after the events in question
for the purposes of the trial.”
[24] Pincus v Solomon supra 241-2; Moolman supra 295i.
[25] In Bergh supra 868D Rumpff CJ said (emphasis added): “Die begrip ‘onlangse versinsel’ is nie ’n omlynde
begrip nie en dit is die plig van die hof, by ’n probleem van hierdie aard, om vas te stel of die aanval op die getuie se
getuienis wesenlik neerkom op ’n suggestie, uitdruklik of implisiet, dat vir doeleindes van die saak hy iets as ’n feit
beweer wat tydens die aflê van sy getuienis ’n versinsel is of in sy verbeelding bestaan.”
[26] See generally the decision of the High Court of Australia in Nominal Defendant v Clement 1961 104 CLR 476.
[27] Bergh supra; Pincus v Solomon supra 242. The sole purpose is to prove consistency and, in so doing, rebut
the allegation of recent fabrication or reconstruction.
[28] See also § 30 3 2 below.
[29] S v Winnaar 1997 (2) SACR 352 (O).
[30] See generally Van der Merwe 1980 Obiter 86; Labuschagne 1978 De Jure 18 and 242; Singh 2006 SACJ 37
39. See also Schwikkard “A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South Africa” in
Jagwanth et al (eds) Women and the Law (1994) 198-202.
[31] See generally Nokes An Introduction to Evidence 4 ed (1967) 104; Harms 1965 THRHR 257 268-9; R v Ellis
1936 SWA 10; R v Guttenberg 1907 TS 207 211.
[32] Tapper Cross & Tapper on Evidence 11 ed (2007) 323.
[33] R v Camelleri 1922 2 KB 122; R v Burgess 1927 TPD 14.
[34] R v Osborne 1905 1 KB 551.
[35] 2007 (2) SACR 115 (SCA)
[36] For one of the latest articles in a local law journal, see Singh 2006 SACJ 37.
[37] Schwikkard “A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South Africa” in Jagwanth
et al (eds) Women and the Law (1994) 198-202. It is unfair to the accused in trials of this nature because his or her
prior consistent statement is, unlike that of the complainant, not admissible (unless, of course, it can be admitted in
the event of an allegation of recent fabrication, as explained in § 9 5 above).
[38] Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System (unpub LLM thesis, Univ of
Cape Town, 1999) 98. See also generally Müller The Child Witness in the Accusatorial System (unpub PhD thesis,
Rhodes Univ, 1997) 307-13.
[39] See s 275 of the Canadian Criminal Code. See further § 9 6 6 below.
[40] See ss 6 and 7 of the Namibian Combating of Rape Act 8 of 2001, discussed in § 9 6 6 1 below.
[41] See s 72 of Act 32 of 2007 as read with GG 30599 of 14 Dec 2007.
[42] 1955 (4) SA 40 (N) 40G-H. See also S v MG 2010 (2) SACR 66 (ECG) at [10].
[43] 1963 (1) SA 484 (A).
[44] In S v T supra the victim also testified that the accused had threatened to kill her and the rest of her family if
she were to report the incident. This allegation should have been considered and — if accepted — could have played
a role in assessing the true voluntariness of the complaint. The threat to kill, if it were present, could have served to
cancel out, or could have explained why, the coersive measure of persuasion led to the complainant’s report. There
was also medical evidence of sexual interference.
[45] R v Norcott 1917 1 KB 347.
[46] 1905 1 KB 551 556.
[47] See § 12 8 3 below.
[48] The words in brackets appear in the section. It should also be noted that the provisions of the Criminal Justice
Act 2003 are not confined to complaints in sexual cases, but to all offences where there is a complainant (“a person
against whom an offence has been committed” — s 120(7)(a)). See further Tapper Cross & Tapper on Evidence 11
ed (2007) 323, where it is explained that one of the purposes of the relevant provisions of the Criminal Justice Act
2003 was to ensure that “sexual cases should be tried as far as possible in the same way as others”.
[49] See R v C supra 41A-G.
[50] A complaint is not rendered inadmissible simply because the questioner insisted on being told the truth. See R
v C supra 41C.
[51] Rex v Kgaladi 1943 AD 255. In Smith v Malete 1907 TH 235 236 Bristowe J said: “If a child of three years
cannot give evidence in court, how can she give evidence through her mother? The particulars of the complaint must
be excluded.” If the complainant does not testify, the prosecution may seek to persuade the court to receive the
evidence of the complaint (as hearsay) in terms of s 3(1)(c) of Act 45 of 1988, on the grounds that such admission
would be in the interest of justice. It is extremely doubtful whether such an attempt would succeed — especially
where the complainant happens to be an incompetent witness. Hearsay is discussed in ch 13 below.
[52] R v Wallwork 1958 42 Cr App Rep 153.
[53] 1965 (2) SA 463 (W).
[54] See Paizes in Du Toit et al Commentary 23-20 and 24-8B.
[55] In R v C 1955 (4) SA 40 (N) Caney J said: “To qualify for admission, the ‘complaint’ . . . must have been
made . . . at the earliest opportunity which, under all the circumstances, could reasonably be expected, to the first
person to whom the complainant could reasonably be expected to make it.” See also Rex v S 1948 (4) SA 419 (GW)
423 and S v De Villiers en ’n Ander 1999 (1) SACR 297 (O). In R v Kautumundu 1936 2 PH F154 (SWA) two
complaints (relating to the same incident) were made on the same day. Both were received as having been made at
the “first” reasonable opportunity. This seems to be acceptable, provided that the court must bear in mind that the
complaint(s) can merely prove consistency. A witness, it was said in R v Whitehead 1929 1 KB 99 102, cannot
corroborate himself, otherwise it would only be necessary for him to repeat his story some 25 times in order to get
25 corroborations of it. Schwikkard in Jagwanth et al (eds) Women and the Law 201 states that the requirement of
“first reasonable opportunity” and its application by the courts fail to take into account the many psychological and
social factors which may inhibit a rape survivor from making a complaint. An instructive case in this regard, is R v
Valentine 1996 2 Cr App R 213. At 224 it was said: “We now have greater understanding that those who are the
victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what
has been done to them; that some victims will find it impossible to complain to anyone other than a parent or
member of their family whereas others may feel it quite impossible to tell their parents or members of their family.”
See also generally S v M 1999 (1) SACR 664 (C) 669f-h. In S v MG 2010 (2) SACR 66 (ECG) at [10] Jones J
concluded that it was not unreasonable for a 12-year-old to make her first report to her mother as opposed to a
report at an earlier opportunity “to a more remote relative”. See also generally S v GS 2010 (2) SACR 467 (SCA) at
[23].
[56] R v C 1955 (4) SA 40 (N).
[57] R v Hedges 1909 3 Cr App Rep 262.
[58] R v Gannon 1906 TS 114.
[59] R v T 1937 TPD 398.
[60] At 383.
[61] R v Gannon supra 117: “I think . . . the complaint was made at the earliest opportunity which could
reasonably have been expected. If the girl had been older, if it had been the case of a grown woman, or even a child
more precocious, who knew something about the nature of the offence, the decision might be different.” In Gannon
supra the complainant was 8 years old.
[62] 1961 (4) SA 201 (O).
[63] 1995 (1) SACR 50 (ZS).
[64] At 56d-h. However, see also Schwikkard 1995 SACJ 100 for some criticism of this rule.
[65] 1999 (1) SACR 297 (O).
[66] At 306a-e.
[67] At 304e-305f and 308g-i.
[68] At 309b.
[69] 2007 (2) SACR 115 (SCA).
[70] At [2].
[71] At [32].
[72] R v Kautumundu 1936 2 PH F154 (SWA). See also R v Valentine 1996 2 Cr App R 213. See also n 55 above.
[73] Paizes in Du Toit et al Commentary 23-20. Emphasis in the original.
[74] Munday Evidence 4 ed (2007) 228: “It is now widely accepted that prompt complaint by sexual complainants
is far from the norm.” See Holtzhauzen v Roodt 1997 (4) SA 766 (W) where Satchwell J admitted evidence of an
expert to the effect that a victim of acquaintance rape will often not reveal the incident immediately after its
occurrence. See further n 55 above where reference is made to Schwikkard in Jagwanth et al Women and the Law
201.
[75] See generally ch 5 above.
[76] See generally S v Thys 1974 2 PH H82 (C); R v Gloose 1936 2 PH F155 (SWA); R v Westermeyer 1911 32
NLR 197; R v Komsame 1928 EDL 423.
[77] Zeffertt, Paizes & Skeen 405.
[78] Rex v Dray 1925 AD 553.
[79] Chapter 2 creates statutory sexual offences such as rape (s 3); compelled rape (s 4); sexual assault (s 5);
compelled self-sexual assault (s 7); certain offences against persons 18 years or older (ss 8 to 11); incest (s 12);
bestiality (s 13) and sexual acts with a corpse (s 14).
[80] Chapter 3 deals with sexual offences against children.
[81] Chapter 4 deals with sexual offences against persons who are mentally disabled.
[82] This section creates the offence of attempting, conspiring, inciting or inducing another person to commit a
sexual offence.
[83] Section 71 deals with trafficking in persons for sexual purposes.
[84] Paizes in Du Toit et al Commentary 23-19 — 23-20.
[85] R v M 1959 (1) SA 352 (A). Cf, however, S v M 1980 (1) SA 586 (B) as discussed by Labuschagne 1980
THRHR 322 and Van der Merwe 1980 Obiter 86.
[86] S v Hammond 2004 (2) SACR 303 (SCA) at [17].
[87] S v Gentle 2005 (1) SACR 420 (SCA); S v MG 2010 (2) SACR 66 (ECG) at [10]. See also generally Fletcher
and Another v S [2010] 2 All SA 205 (SCA).
[88] Ashworth “Corroboration and Self-corroboration” 1978 Justice of the Peace 266 267.
[89] 1990 (1) SACR 5 (A) 11c.
[90] S v Hammond supra at [21]-[23].
[91] See generally Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System (unpub LLM
thesis, Univ of Cape Town, 1999) 96-102; Müller The Child Witness in the Accusatorial System (unpub PhD thesis,
Rhodes Univ, 1997) 307-13; Singh 2006 SACJ 37.
[92] South African Law Commission Report on Women and Sexual Offences (1985) para 3 50.
[93] SALC, Discussion Paper 102, Project 107, Sexual Offences: Process and Procedure (2002) para 34 4 1 1
(hereafter referred to as Discussion Paper 102).
[94] Discussion Paper 102, para 34 4 2 1.
[95] See also Schwikkard in Jagwanth et al (eds) Women and the Law 202.
[96] See generally S v S 1990 (1) SACR 5 (A).
[97] For a discussion of this Act, see Bohler-Muller 2001 SACJ 71.
[98] Discussion Paper 102, para 34 4 3 1.
[99] Discussion Paper 102, para 34 4 3 2.
[100] Paizes in Du Toit et al Commentary 24-8B. The facts of a case like S v GS 2010 (2) SACR 467 (SCA) support
the critical approach adopted by Paizes.
[101] Rex v Velekaze 1947 (1) SA 162 (W). See further § 30 11 2 1 below and the authorities cited by Van der
Merwe in Du Toit et al Commentary 3-7 to 3-9.
[102] 1932 NPD 112 118 (emphasis added).
[103] Zeffertt, Paizes & Skeen 408-9.
[104] See ch 15 below.
[105] Section 222 of the CPA.
[106] Section 35(2) of the CPEA.
[107] Tapper Cross & Tapper on Evidence 11 ed (2007) 411 states that the term “res gestae” is a blanket phrase
when applied to the admissibility of statements, and may roughly be said to denote relevance through
contemporaneity — part of the story.
[108] 1996 (1) SACR 267 (A). In this case entries in a policeman’s pocket book were held admissible as being part
of the res gestae.
[109] Refreshing of memory and the distinction between present recollection revived and past recollection
recorded are discussed in ch 24 below. See especially § 24 2 below.
[110] See generally Gooderson “Previous Consistent Statements” 1968 26 Cambridge LJ 64 66-74.
[111] Section 213(4) of the CPA.
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Section C
Exclusion of Relevant Evidence: Privilege
10
Private Privilege –P J Schwikkard
11
State Privilege (Public Interest Immunity) –S E van der Merwe
Page 133
Chapter 10
Private Privilege
P J Schwikkard
10 1
10 2
10 3
10 4
10 5
10 6
Introduction
The Privilege Against Self-incrimination and the Right to Remain Silent
10 2 1 The rationale
10 2 2 The witness in criminal proceedings
10 2 2 1
The scope of the privilege
10 2 3 The accused
10 2 3 1
Pre-trial proceedings
10 2 3 1 1 Ascertainment of bodily features
10 2 3 1 2 Bail proceedings
10 2 3 2
Trial and plea proceedings
10 2 4 Other investigative inquiries
10 2 5 The witness in civil proceedings
Legal Professional Privilege
10 3 1 The rationale
10 3 2 The requirements for the existence of the privilege
10 3 2 1
Acting in a professional capacity
10 3 2 2
The communication must be made in confidence
10 3 2 3
For the purpose of obtaining legal advice
10 3 2 4
The client must claim the privilege
10 3 3 The scope of the rule
10 3 4 Waiver
10 3 5 Refreshing memory in the witness-box
10 3 6 Section 19 of the Legal Aid South Africa Act 39 of 2014
Other Professional Privileges?
Marital Privilege
Parent–Child Privilege
10 1 Introduction
Privilege exists when a witness is not obliged to answer a question or supply information that
is relevant to an issue before the court. [1] A claim of privilege must be distinguished from
the non-competence or non-compellability of a witness (see § 22 1 below). An incompetent
witness does not have the capacity to testify; a non-compellable witness has the right to
refuse to testify at all, whilst a witness who wishes to claim privilege is still required to enter
the witness-box and then raise the privilege as the reason for not answering the questions
put. A claim of privilege may as a rule be waived. However, if persons are unaware of their
right to claim the privilege, the courts will be reluctant to
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uphold a claim of waiver. [2] A distinction must also be drawn between private privilege and
state privilege. Where evidence is excluded because to disclose or admit it would be
detrimental to state interests, state privilege is claimed (see § 11 1 below). Private privilege
is directed at protecting the interests of individuals. When private privilege is claimed
secondary or circumstantial evidence may as a rule be admitted to prove the matters
protected by that privilege. [3] This may not be done when state privilege is invoked. The
differences between private and state privilege are also discussed in § 11 1 2 below.
The effect of private privilege is to deprive the court of relevant evidence; consequently
there is a tendency to restrict the instances in which privilege can be claimed. [4] For
the courts will not recognise a privilege between journalists and their informers or
|example,
doctors and their patients. This matter is dealt with in § 10 4 below.
In this chapter the following heads of privilege will be discussed: the privilege against selfincrimination; professional privilege; marital privilege; and parent-child privilege. [5]
10 2 The Privilege Against Self-incrimination and the Right to
Remain Silent
The privilege against self-incrimination prohibits a person being compelled to give evidence
that incriminates him- or herself. [6] This rule is part of our common law; it is also reflected
in certain statutory provisions [7] and enjoys constitutional protection. [8] The right to remain
silent, which can be described as the absence of a legal obligation to speak, is necessary to
give effect to the privilege against self-incrimination. [9]
10 2 1 The rationale
The privilege against self-incrimination and the right to remain silent are a natural
consequence of the presumption of innocence which places the burden on the prosecution to
prove the accused’s guilt beyond a reasonable doubt. [10] It is generally accepted that
historically these rules “originated in the unpopularity of the procedure in the Star Chamber
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under which those who were charged with an offence were interrogated on oath”
use of torture was an accepted legal procedure. [12]
[11]
and the
In modern law the rationale for retaining the privilege against self-incrimination probably
remains founded in public revulsion to the idea that a person should be compelled to give
evidence that will expose her to the risk of criminal punishment. [13] This reflects a belief that
individuals have a right to privacy and dignity which, whilst not absolute, may not be easily
eroded. A further justification for the privilege is that it is necessary to encourage people to
testify freely; [14] people may be reluctant to come forward as witnesses and may decline to
testify if they are fearful that they might be forced to incriminate themselves. [15]
In Miranda v Arizona Warren CJ held:
[16]
“The constitutional foundation underlying the privilege is the respect a government . . . must accord
to the dignity and integrity of its citizens . . . [T]o respect the inviolability of the human personality,
our accusatory system of criminal justice demands that the government seeking to punish an
individual produce the evidence against him by its own independent labors, rather than by the cruel
simple expedient of compelling it from his own mouth.”
It can also be argued that both the right not to incriminate oneself and the right to silence
are necessary to deter improper investigation which may negatively impact on the reliability
of evidence and in this respect the rights should be viewed as enhancing the truth-seeking
function of the court.
There are distinctions in the application of the privilege against self-incrimination and the
right to remain silent to the accused, witnesses in criminal proceedings, and witnesses in
civil proceedings; these will be considered below.
10 2 2 The witness in criminal proceedings
In terms of s 203 of the CPA a witness may refuse to answer a question if it would expose
her to a criminal charge; [17] however, the refusal will not be justified if it is based on a fear
that it may give rise to a civil claim. [18] Presiding officers are required to warn witnesses in
criminal proceedings of their rights under s 203. A failure to do so will ordinarily render “the
incriminating evidence inadmissible in a prosecution
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against the witness”. [19] In S v Lwane [20] the appellant had been a complainant at an earlier
hearing at which he gave evidence against a fellow thief and murderer who had shot him. In
the course of his testimony he confessed to having participated in a murder himself. He was
subsequently charged and convicted of the murder on the basis of his confession made at
the earlier hearing. On appeal it was held that his testimony at the earlier hearing was
inadmissible in that he had been ignorant of his right to decline to incriminate himself and
had not been warned of the existence of this right. [21]
Before the privilege against self-incrimination will be upheld the court must be satisfied
from the circumstances of the case and the nature of the evidence that there are reasonable
grounds to believe that the witness will incriminate herself. [22] However, the witness is
“given considerable latitude in deciding what is likely to prove an incriminating reply”. [23]
A witness at inquest proceedings can also claim the privilege against self-incrimination. [24]
From the decision in Masokanye v Additional Magistrate, Stellenbosch and Others [25] it would
appear that the privilege is restricted at such proceedings. [26] The court held that a presiding
officer at an inquest, in exercising his discretion to uphold the privilege against selfincrimination, must ensure that the salutary protection afforded by the rule against selfincrimination was not converted into a means of abuse. In exercising such discretion it is
necessary to balance the scales between the interests of the witness who demands the
protection and the interests of the public, which demand full disclosure. Despite adopting
this approach, the court held that a policeman at inquest proceedings is entitled to claim the
privilege against self-incrimination concerning questions relating to his own activities as well
as the actions of his colleagues, as inferences could be drawn from his colleagues’ actions
which could incriminate him. The conclusion of the court has the
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potential of compromising the principle of open government. [27] “The propriety of police
conduct is a matter of public concern, and public policy requires that such conduct should, as
far as possible, be open to scrutiny by the courts.” [28]
It is not clear whether juristic persons can claim the privilege against self-incrimination.
The English law has recognised the claim by juristic persons [29] but this is not the case in
America, [30] Canada [31] or Australia. [32] Section 8(4) of the Constitution extends the
application of the Bill of Rights to juristic persons “to the extent required by the nature of the
rights and the nature of that juristic person”. The common-law rationale for the privilege is
firmly embedded in the right to dignity, a right more easily imagined in relation to an
individual than a legal entity. Although the Constitution does not appear to be an
impediment to extending the right to corporations it also does not provide a basis for
claiming it. Whether the common-law privilege should be seen as extending to juristic
persons should then be one determined by public interests; in the dissenting words of Lord
Denning: “The privilege is not available to a corporation. It has no body to be kicked or soul
to be damned . . . the public interest lies more in making corporations disclose their
misdeeds than in giving them this shield of privilege.” [33]
The extent of the privilege set out in s 203 is modified by s 204 of the CPA, which is
designed to encourage accomplices to testify as state witnesses against their co-offenders by
providing an avenue for indemnity. [34] This section provides that whenever the prosecutor
informs the court that a witness will be required to answer self-incriminating questions with
regard to the offence specified, the court, provided the witness is competent, shall inform
the witness that she is obliged to give evidence and answer incriminating questions (in
respect of the offence charged). [35] If a witness answers the questions put to her frankly and
honestly, she will be discharged from prosecution. [36] If such a discharge is given at
preparatory examination proceedings and a witness does not testify frankly and honestly at
the ensuing trial, the discharge shall be of no legal force or effect. [37] If discharge is refused,
the witness still enjoys a measure of protection in that her evidence will be inadmissible at
any trial in respect of
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the specified offence. However, the evidence will not be excluded where the charge is one of
perjury or statutory perjury. [38]
The privilege against self-incrimination may also be claimed when an inquiry is held in
terms of s 205 of the CPA. [39] However, the privilege falls away if the s 204 procedures are
invoked during such an inquiry. [40]
In S v Maunye and Others [41] the court noted obiter that s 204 appeared to be a
justifiable limitation on the constitutional right not to give self-incriminating evidence.
Stegmann J noted that “[t]his is no doubt because it affords a person who is under suspicion
of having committed an offence a very fair and reasonable bargain”. [42]
10 2 2 1 The scope of the privilege
A claim of privilege will succeed only if the court is satisfied that the witness’s apprehension
of being exposed to a criminal charge, if she is compelled to answer, is based on reasonable
grounds. [43] Clearly if a witness has been indemnified from prosecution she will not be able
to claim the privilege.
The privilege extends beyond answers that would directly incriminate the witness to those
“which tend to disclose facts which are innocent in themselves but might form ‘links in the
chain of proof’ in a possible charge against the witness”. [44]
10 2 3 The accused
10 2 3 1 Pre-trial proceedings
At common law it is well recognised that a person should not be compelled to incriminate
him- or herself. [45] In addition the Judges’ Rules [46] also require the police to caution
persons suspected of committing a crime before questioning them. Unfortunately, these
rules have been accorded little weight by the judges themselves, who have frequently
dismissed them on the ground that they are merely administrative directives. [47] In the past
the courts have held that a failure to advise an arrested person of
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her right to remain silent and her right to legal representation does not necessarily render
any incriminating statements inadmissible, the absence of a warning merely being a factor to
be taken into consideration in deciding whether the state has discharged its onus of proving
that the requirements of admissibility have been met. [48] For example, in Rex v Barlin [49]
the accused made an incriminating statement to a police officer. At the time this statement
was made the police officer suspected but had not yet arrested the accused and did not
caution him. The court held that as the accused’s statement had been made freely and
voluntarily, the fact that the police officer had not warned the accused of his right to remain
silent did not render the statement inadmissible. A change has been brought about by the
new constitutional dispensation. Section 35(5) of the Constitution which is discussed more
fully in chapter 12 below provides: “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.” It follows that if evidence
is obtained in breach of the privilege against self-incrimination, it will generally be
inadmissible. [50]
In the United States the Fifth Amendment, which gives constitutional protection to the
privilege against self-incrimination, was interpreted in Miranda v Arizona [51] as extending to
incriminating statements made by persons in police custody. [52] In the Miranda judgment
the court, referring with approval to an earlier case Escobedo v Illinois, [53] found that the
right to counsel was essential in order to protect the right against self-incrimination. The
holding of the court in Miranda can be summarised as follows: statements obtained during
custodial interrogation of the accused may not be admitted into evidence unless the
prosecution can show that appropriate procedural safeguards were used to secure the
privilege against self-incrimination. A similar approach has been taken by the South African
courts. The appropriate procedural safeguards are that a person must be warned that she
has the right to remain silent, and of the consequences of not remaining silent, and that she
has a right to
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consult with a legal practitioner. [54] The fact that an accused may be aware of her rights
without having been warned, should not affect the inadmissibility of the evidence. [55]
There are a number of provisions in s 35 of the Constitution which are directed at securing
the privilege against self-incrimination prior to trial proceedings. [56] However, the distinction
made between arrested, detained and accused persons in s 35 gives rise to some anomalies
regarding the application of these provisions. [57] (It would, though, seem that these
anomalies are more apparent than real.)
In terms of s 35 a detained person [58] has the right to consult with a legal practitioner of
her choice, to be informed of this right promptly and, where substantial injustice would
otherwise result, to be provided with the service of a legal practitioner at state expense. [59]
However, it is not specified that detained persons must be informed of the right to remain
silent. On the other hand, arrested persons must be advised of the right to remain silent as
well as the consequences of not remaining silent. [60] It is not specified that arrested persons
must be advised of their right to consult with a legal practitioner. However, little significance
can be attached to this omission. Although a detained person need not necessarily have
been arrested, an arrested person will always also be a detained person: “the effect of an
arrest is that the person arrested is in lawful custody and must be detained until lawfully
discharged”. [61] Both logic and policy dictate that s 35 confers the right to consult with a
legal representative and the right to be advised of this right, on both accused and detained
persons. This is reflected in s 73 of the CPA which provides that an arrested person must “be
informed of his or her right to be represented at his or her own expense by a legal adviser of
his or her own choice and if he or she cannot afford legal representation, that he or she may
apply for legal aid and of the institutions which he or she may approach for legal
assistance”. [62]
The ambit of the duty to advise a person of the right to consult with a legal practitioner is
also dependent on the meaning of the word “detention”.
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“Detention” obviously includes the physical incarceration of a person in prison. A person in
lawful police custody will also be detained. [63] However, “detention” also has a broader
meaning, and in this respect it is useful to draw on Canadian jurisprudence. Section 10 of
the Canadian Charter provides that everyone has the right on arrest or detention to retain
and instruct counsel without delay and to be informed of that right. The Supreme Court of
Canada has held [64] that detention occurs not only when persons are deprived of their liberty
by physical constraint, but also “when a police officer or other agent of the state assumes
control over the movement of a person by demand or direction which may have significant
legal consequence and which prevents or impedes access to counsel”. [65] The Canadian
Supreme Court has held that “the necessary element of compulsion or coercion to constitute
a detention may arise from criminal liability for refusal to comply with a demand or direction,
or from a reasonable belief that one does not have a choice as to whether or not to
comply”. [66] In applying the Canadian interpretation of detention it would appear that
suspects who are questioned by the police in their homes will not be “detained” and will not
be entitled to be advised of their right to legal representation, as the police have no power to
compel suspects to answer questions. [67] However, if a suspect reasonably believes that she
must answer the question then she will be “detained” and must be advised of her right to
legal representation. Presumably, if we imported this interpretation of detention into South
African jurisprudence, the test for reasonable belief would be subjective, as is the test for
undue influence. [68] Consequently, a person who is questioned by the police, and who does
not know that he or she is not obliged to answer the questions, and feels compelled to
speak, will be detained for the purposes of the Constitution.
The distinction made between arrested, detained and accused persons in s 35 also gives
rise to some uncertainty regarding the application of the privilege against self-incrimination.
The privilege against self-incrimination is only specified in relation to the accused’s right to a
fair trial. [69] However, this distinction in wording has little significance as there is sufficient
authority of the view that the right to a fair trial does not begin in the court but at the
inception of the criminal process. [70] Froneman J in S v Melani and Others [71] observed:
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“The purpose of the right to counsel and its corollary to be informed of that right . . . is thus to protect
the right to remain silent, the right not to incriminate oneself and the right to be presumed innocence
until proven guilty. Section 25(2) and 25(3) of the Interim Constitution make it abundantly clear that
this protection exists from the inception of the criminal process that is on arrest, until its culmination
up to and during the trial itself. This protection has nothing to do with the need to ensure the
reliability of evidence adduced at the trial. It has everything to do with the need to ensure that an
accused is treated fairly in the entire criminal process: in the ‘gatehouse’ of the criminal justice
system (that is the interrogation process), as well as in its ‘mansions’ (the trial court). . .”
And Claassen J in S v Mathebula and Another
[72]
noted:
“The rationale for the requirement that an accused should be entitled to legal representation at every
important pre-trial stage is as follows: an accused is presumed innocent until proven guilty. There is
no duty on the accused to assist the state in its task. An accused has the right to remain silent and
need not contribute in any way to the process of supplying or obtaining evidence which tends to prove
his guilt in the form of self-incriminatory oral or written communications. Pre-trial, he is entitled to
increased protection against any such self-incrimination induced by force (Rex v Camane and Others
1925 AD 570; S v Khumalo 1992 (2) SACR 411 (N); Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others 1996 (1) SA 984 (CC)) . . . Whenever the state wishes to embark
upon any pre-trial procedure wherein it seeks the co-operation of the accused and which would result
in an erosion of or encroachment into the accused’s constitutional rights, such procedure will have to
be preceded by a repetition of a due warning regarding all of his relevant s 25 constitutional rights. (It
may be noted in passing that even in cases of pre-trial procedures where an accused’s co-operation is
required for purposes of obtaining ‘real’ as opposed to self-incriminating oral or testimonial evidence,
the accused has in the past had the right to legal representation during such procedure . . . see
United States v Wade 388 US 218 (1967); S v Huma and Another (2) 1995 (2) SACR 411 (W); S v
Mhlakaza 1996 (6) BCLR 814 (C)). The presence of an accused’s legal representative at such pre-trial
procedures constitutes a ‘checking mechanism’. An accused may not know under what circumstances
the oral or testimonial evidence at a pre-trial procedure would constitute admissions or confessions.
He is therefore entitled to legal assistance in order to be advised as to what the consequences might
be of his responses to the State’s request for his co-operation and assistance in any pre-trial
investigatory procedures. It will also be the task of the legal representative to check and see that all
other constitutional rights are safeguarded during such procedures.”
There are conflicting views as to whether it is necessary to advise a person of her s 35 rights
at every pre-trial stage. [73] The most pragmatic approach is that in
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each case the crucial inquiry should be whether the accused, after having been apprised of
her rights on arrest, was in a position to decide voluntarily how to exercise her rights at each
subsequent pre-trial procedure.
Must detained persons also be warned of their right to remain silent? It is submitted that
if a police officer questions a detained person who is not legally represented, she runs the
risk of eliciting inadmissible evidence if the detainee is also not advised of the right to
remain silent. As argued above, the right to a fair trial demands that the privilege against
self-incrimination be upheld from the inception of the criminal process. Whilst the presence
of a legal representative might be sufficient to protect this privilege, there can be little doubt
that in the absence of a legal representative, the warning of the right to remain silent would
be a minimum for ensuring the protection of the privilege against self-incrimination. [74]
In S v Sebejan and Others [75] the court considered the appropriate warning to be given to
a suspect [76] who was not an arrested or detained person and consequently, ostensibly, fell
outside the protection afforded by s 25 of the Interim Constitution. [77] Satchwell J, endorsing
the approach that the right to a fair trial operates at the investigative stage of the criminal
process, [78] held that a suspect was entitled to the same warning as an arrested person. [79]
However, the High Courts have diverged on this point. In S v Langa, the court held that s 25
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of the Interim Constitution [80] did not apply to suspects. [81] Pickering J in S v Mthethwa
similarly held that the rights of arrested, detained and accused persons set out in s 35(1),
(2) and (3) of the 1996 Constitution were irrelevant in respect of a suspect. [82] However, the
Mthethwa court found that as the statement had been obtained in breach of the Judges’
Rules [83] and that the admission of the evidence would render the trial unfair and bring the
administration of justice into disrepute, the evidence fell to be excluded in terms of the
court’s common-law discretion. [84]
Clearly the privilege against self-incrimination requires that a detained and accused
person be afforded a substantive right to legal representation. [85] The common law did not
recognise a right to legal representation for those unable to afford a lawyer. [86] The
Constitution only affords detained and accused persons [87] the right to be provided with
counsel at state expense “if substantial injustice would otherwise result”. [88] It can be
forcefully argued that legal representation is necessary to uphold the privilege against selfincrimination and that the protection of this privilege is necessary to ensure a fair trial; [89]
therefore a person’s access to legal representation should not be dependent on her income.
This is also so if full recognition were to be given to the constitutional guarantee of equality.
Principle demands that if the state finds itself unable to provide legal representation to an
arrested, detained or accused person, the police must refrain from interrogating persons
who desire legal representation but who are not in a position to obtain it. [90] However, there
can be little doubt that the reason for imposing a restriction on the substantive right to legal
representation is the concern that the South African state simply does not have the
resources to provide legal representation for every indigent accused. As an absolute right,
the substantive right to legal representation may paralyse an already overburdened criminal
justice system. The solution is to be found in
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the limitations clause, [91] which must be applied before the constitutional exclusionary rule
comes into play. [92] Consequently, a person arguing for the exclusion of evidence on the
basis that she was not advised of her right to legal representation, would not succeed if the
prosecution persuaded the court that a rule condoning the violation was saved by the
limitations clause. However, as a right may be “limited only in terms of law of general
application” [93] it is difficult to think of an example other than waiver where the state could
successfully invoke the limitation clause in relation to a failure to advise a person of her right
to legal representation or her right to remain silent. [94]
Clearly the position is very different in regard to the substantive right to legal
representation that is internally qualified. The purpose of the qualification of the substantive
right to legal representation is not to restrict any fundamental right but to ensure that the
criminal justice system does not cease to function due to the state’s fiscal inability to supply
all accused with legal representation. Here factors [95] such as the complexity of the case,
severity of the potential sentence, [96] and the ignorance of the accused [97] will clearly come
into play in weighing the nature and extent of the limitation against the purpose that it seeks
to serve. Depending on the circumstances of the case a court might find that the failure to
provide legal representation at state expense constitutes a justifiable limitation. As a result
the exclusionary provision contained in s 35(5) would not come into consideration.
The right to substantive representation clearly includes the right to competent legal
representation. [98] Whether the incompetence of a legal representative renders a trial unfair
is a factual question [99] and the court should be highly deferential in assessing the strategic
choices made by counsel. [100]
10 2 3 1 1 Ascertainment of bodily features
Sections 36A, 36B, 36C and 37 of the CPA [101] authorise police officials to take the
fingerprints and body prints of any person who is suspected of committing a crime or who
has been arrested, charged or convicted. The police are also
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authorised to take such steps as are necessary to ascertain whether the body of any
arrested person has any mark, characteristic or distinguishing feature or shows any
condition or appearance. [102] Distinguishing features have been held to include voice and
handwriting samples. [103] Although police officials are prohibited from taking blood samples,
any medical officer of any prison or a district surgeon may do this. And if requested to by
the police, a registered medical practitioner or nurse can take steps, including taking a blood
sample, to ascertain whether the body of an arrested person has any mark, characteristic or
distinguishing feature or shows any condition or appearance. [104] Obviously evidence
obtained as a consequence of any of the above steps may incriminate the accused. The
question then arises whether s 37 is in conflict with s 35(1)(c) of the Constitution, which
provides that no one shall be compelled to make an admission which can be used in
evidence against him or her. Prior to legislative authorisation [105] there was some
uncertainty as to whether the ascertainment of bodily features, without the consent of an
accused, infringed the common-law privilege against self-incrimination. In Goorpurshad v
R [106] the court set aside a conviction where the accused during the course of a trial had
been compelled by the presiding officer to have his fingerprints taken. The Transvaal
Provincial Division adopted a similar approach in R v Maleke, [107] in which the court refused
to admit evidence of a footprint compelled by force. Krause J expressed his objection to the
admission of such evidence as follows: [108] “[I]t compels an accused person to convict
himself out of his own mouth; that it might open the door to oppression and persecution of
the worst kind; that it is a negation of the liberty of the subject and offends against our
sense of natural justice and fair play . . .”
However, the judicial debate as to whether such evidence should be excluded because it
infringed the principle against self-incrimination was brought to a close by the Appellate
Division in Ex Parte Minister of Justice: In Re Rex v Matemba, [109] in which the court
considered the admissibility of evidence of a palm-print taken by compulsion. The court
found that the privilege against self-incrimination applied only to testimonial utterances.
Watermeyer JA held: [110]
“Now, where a palm-print is being taken from an accused person, he is, as pointed out by Innes CJ in
(Rex v Camane and Others 1925 AD 570 at 575), entirely passive. He is not
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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 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.”
This reasoning was also invoked to justify the admission of evidence of a thing or place
pointed out by the accused, even in circumstances where the pointing out was coerced. In S
v Sheehama [111] the Appellate Division found this reasoning to be untenable and held that “a
pointing out is essentially a communication by conduct and, as such, is a statement by the
person pointing out”. Consequently, a pointing out, like any other extra-judicial admission,
has to be made voluntarily before it will be admitted into evidence. [112] However, although a
pointing out, like the ascertainment of bodily features, usually results in the production of
“real” evidence, it can be distinguished from the latter in that it involves some degree of
active or communicative conduct. [113]
In S v Huma and Another (2), Claassen J held that the taking of fingerprints did not
constitute testimonial evidence by the accused and was therefore not in conflict with the
privilege against self-incrimination. [114] The court relied heavily on the reasoning of the US
Supreme Court in Schmerber v California. [115] In Schmerber, a majority of the Supreme
Court held that the Fifth Amendment privilege against self-incrimination relates only to the
testimonial or communicative acts of the accused and does not apply to non-communicative
acts such as submission to a blood test. [116]
This approach was adopted by the Supreme Court of Appeal in Levack and Others v
Regional Magistrate, Wynberg, and Another. [117] In Levack, the Supreme Court of Appeal
held that compelling an accused to submit a voice sample
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infringed neither the right to remain silent nor the right not to give self-incriminating
evidence. [118] In S v Orrie and Another, the High Court found that the involuntary taking of a
blood sample for the purposes of DNA profiling infringed both the right to privacy and the
right to bodily security and integrity but that the infringement was justifiable. [119] Desai J, in
Minister of Safety and Security and Another v Gaqa, [120] confirmed an order compelling the
respondent to submit himself to an operation for the removal of a bullet from his leg. In so
doing, the High Court rejected the respondent’s argument that to do so would infringe his
constitutional right not to incriminate himself. The court held that ss 27 and 37 of the CPA
sanctioned the violence necessary to remove the bullet, and that although these procedures
constituted a serious infringement of dignity and bodily integrity, they met the requirements
of the limitation clause. A similar application was made to the High Court in Minister of
Safety and Security and Another v Xaba. [121] The respondents arguments were, it appears,
limited to the right to be free from all forms of violence (s 12(1)(c)) and the right to have
security and control over ones body (s 12(2)(b)). Southwood AJ held that the conclusion of
the court in Gaqa was clearly wrong. In the absence of a law of general application
authorising the specific constitutional infringements, Southwood AJ reasoned, the
requirements of the limitation clause could not be met.
Section 225(2) of the CPA reads:
“[S]uch evidence shall not be inadmissible by reason only thereof that the finger-print or body print in
question was not taken or that the mark, characteristic, feature, condition or appearance in question
was not ascertained in accordance with the provisions of sections 36A, 36B, 36C, 36D, 36E or 37, or
that it was taken or ascertained against the wish or the will of the accused.” [122]
The words “by reason only thereof” make it clear that evidence can be excluded on grounds
other than non-compliance with s 37; at any rate, s 35(5) of the Constitution will apply in
cases where s 37 evidence is obtained in breach of the Bill of Rights (see § 12 9 6 below).
Can a clear distinction be made between the ascertainment of bodily features and
testimonial or communicative statements? Black and Douglas JJ, dissenting in
Schmerber, [123] thought not:
“[T]he compulsory extraction of a petitioner’s blood for analysis so that the person who analysed it
could give evidence to convict him had both a ‘testimonial’ and a ‘communicative nature’. The sole
purpose of this project which proved to be successful was to obtain ‘testimony’ from some person to
prove that the petitioner had alcohol in his blood at the time he was arrested. And the purpose of the
project was certainly
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‘communicative’ in that the analysis of the blood was to supply information to enable a witness to
communicate to the court and jury that the petitioner was more or less drunk.” [124]
In his dissenting judgment Black J criticised the majority’s heavy reliance on the words
“testimonial” and “communicative”, which he found to have little clarity, and the court’s
narrow and technical interpretation of the Bill of Rights safeguard against compulsory selfincrimination.
It is submitted that even if in the future the South African courts take the more broad and
liberal construction advocated by Black J, the compulsory ascertainment of bodily features
authorised by s 37 of the CPA may still survive a constitutional challenge on the following
basis: although the ascertainment of bodily features against the will of the accused limits the
privilege against self-incrimination, such limitation may well meet the requirements of s 36
of the Constitution. [125]
Another question that arises in relation to the ascertainment of bodily features is whether
an accused must be advised of his or her right to legal representation prior to an
identification parade being held (see also § 12 9 8 below). At present it appears to be an
open question. Leveson J, in S v Ngwenya and Others, held that the right to a fair trial did
not require the accused to be advised of his right to legal representation at every stage of
the pre-trial process and that the passive role played by the accused at the identification
parade did not involve any process of self-incrimination. [126] In S v Mokoena en Ander, the
court held that the failure to advise the accused of his right to legal representation at an
identity parade merely affected the weight of the evidence and not its admissibility. [127]
However, in S v Mhlakaza en Andere, the court found the failure to advise the accused of
their right to representation coupled with the accused’s express objection to the absence of
any legal representation, rendered the evidence of the identification parade inadmissible;
this approach has received little support in subsequent cases. [128]
10 2 3 1 2 Bail proceedings
Where an accused gives evidence in a bail application he retains the privilege against selfincrimination. [129] This means that even where the accused elects to
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testify he can decline to answer incriminating questions. However, if the accused chooses
not to testify or refuses to answer incriminating questions, he runs the risk of bail being
refused. One of the issues before the Constitutional Court in S v Dlamini; S v Dladla and
Others; S v Joubert; S v Schietekat [130] was the constitutionality of s 60(11B)(c) of the CPA.
Section 60(11B)(c) provides:
“The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the
record of the trial of the accused following upon such bail proceedings: Provided that if the accused
elects to testify during the course of the bail proceedings the court must inform him or her of the fact
that anything he or she says, may be used against him or her at his or her trial and such evidence
becomes admissible in any subsequent proceedings.”
As noted by the Constitutional Court [131] this section is not inconsistent with the common
law in terms of which admissible evidence given by the accused at a bail application may be
admitted against the accused at the subsequent trial. This is reinforced by s 235 of the CPA,
which provides for proof of the record by the mere production of a certified copy thereof at
trial. [132] The common law also permits an accused to be cross-examined at trial on previous
inconsistent statements including those made during bail proceedings.
The constitutional challenge to s 60(11B)(c) was based on the alleged infringement of
those rights directed at upholding the privilege against self-incrimination. Counsel for
Schietekat focused on the effects of s 60(11B)(c) when applied in conjunction with s 60(11)
(a) and s 60(14). [133] The argument can be summarised as follows: the effect of s 60(11) is
that the accused has no choice but to adduce evidence if he wants to be released on bail.
Because s 60(14) effectively denies the accused access to information in the police docket,
the accused will in many instances have to testify himself in order to satisfy the
requirements of s 60(11). The combined effect of these provisions is to burden the accused
with a compulsion to testify. Counsel for Dlamini and Dladla advanced a broader argument
relying on the argument in S v Botha and Others (2) [134] in which the court held that “[i]n
the interests of a fair trial, the accused should not have to choose” between the right to bail
and the privilege
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against self-incrimination. Both arguments were dismissed. The court rejected the remedy
advanced in Botha, namely to treat evidence given at bail proceedings in the same way as
evidence given at a trial within a trial. It held that s 60(11B)(c) did not compel the accused
to do anything. At most it required the accused to make a difficult choice. Kriegler J held
that the fact that an accused may be forced to make a difficult choice was a common feature
in democratic societies and an important component of freedom, and that it was “an
inevitable consequence of the high degree of autonomy afforded the prosecution and the
defence in our largely adversary system of criminal justice”. [135] The Constitutional Court
concluded that there was no inevitable conflict between s 60(11B)(c) and any provision of
the Constitution as in each instance evidence contained in the bail record fell to be excluded
if its admission would render the trial unfair. [136]
The admissibility of the bail record was one of the issues that came before the court in S v
Basson, [137] in which the Constitutional Court dealt with an appeal against the acquittal of Dr
Wouter Basson. At the bail proceedings in question the state had made use of the record of
prior proceedings conducted under the Investigation of Serious Economic Offences Act 117
of 1991 (ISEO). In terms of the Act a witness who is examined under s 5(6) may not claim
the privilege against self-incrimination. [138] However, the section also provides that the
record of the examination may not be used in subsequent criminal proceedings against the
witness. The Constitutional Court noted that Dr Basson had been questioned for 39 days
under the ISEO, without legal representation, by Adv Fouche who also represented the state
in the bail proceedings.
The court held that although s 60(11B)(c) stipulated that the record of the bail
proceedings should form part of the trial record, a court still retained a discretion to exclude
the bail record if its admission would render the trial unfair. Given the clear and repeated
view of the Constitutional Court that a trial court “is best placed to determine what will
constitute a fair trial or not” [139] the Constitutional Court then turned its collective mind as to
what approach it should adopt in evaluating the exercise of such a discretion by a trial court.
It held: [140]
“. . .[T]he test on appeal is not whether the trial Court was correct in the exercise of its discretion to
exclude evidence on the grounds that it may render the trial unfair. The question is whether, as this
court formulated it in National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others, the lower Court has not exercised its discretion judicially, or been influenced by
wrong principles of law or a misdirection
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on the facts, or reached a decision which could not reasonably have been made by a court properly
directing itself to all the relevant facts and legal principles.”
Applying this test the court concluded that there were no grounds to interfere with the
exercise of the trial court’s discretion. [141]
It is important to bear in mind that s 35(3) rights can not be claimed at the bail hearing.
The application of s 35(3) is not only dependent on the claimant of the relevant rights being
an accused; the claimant must also be an accused in criminal trial proceedings.
Consequently, an accused in bail proceedings is entitled to claim the rights of an arrested
and detained person but not fair trial rights. [142] In S v Dlamini, S v Dladla, S v Joubert, S v
Schietekat, Kriegler J drew the following distinction between bail and trial proceedings:
“[T]here is a fundamental difference between the objective of bail proceedings and that of the trial. In
a bail application the enquiry is not really concerned with the question of guilt. That is the task of the
trial court. The court hearing the bail application is concerned with the question of possible guilt only
to the extent that it may bear on where the interests of justice lie in regard to bail. The focus at the
bail stage is to decide whether the interests of justice permit the release of the accused pending trial,
and that entails in the main protecting the investigation and prosecution of the case against
hindrance.” [143]
10 2 3 2 Trial and plea proceedings
Section 35(3)(j) of the Constitution provides that the accused has the right “not to be
compelled to give self-incriminating evidence”. This is reinforced by s 35(3)(f) and (g), which
provides for the right to be informed promptly of the right to be legally represented at trial
and the right to have a legal practitioner assigned at state expense if substantial justice
would otherwise result. In addition s 35(3)(h) provides that the right to a fair trial includes
the right to be presumed innocent, to remain silent and not to testify during proceedings.
The constitutional protection of the right to remain silent reinforces the notion that a
person should not be penalised for exercising her right to remain silent at trial.
Consequently, it can be argued that a court should not draw an adverse inference from an
accused’s decision not to testify at trial. The constitutional right not to testify is dealt with in
§ 30 9 below. [144]
The failure of a presiding officer to advise an unrepresented accused of the rights to legal
representation and state assistance will lead to the infringement of the right to a fair trial
and the exclusion of evidence. [145] For example, in
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S v Aimes and Another [146] the court held that the magistrate’s failure to advise an
unrepresented accused of his rights to remain silent, not to testify against himself and not
answer incriminating questions meant that the subsequent evidence of the accused was
obtained in violation of his constitutional right to remain silent as well as his common-law
and statutory rights against self-incrimination. [147] Consequently, the admission of the
accused’s bail evidence would render the trial unfair and could not be admitted against the
accused. [148] The failure to advise an accused of his rights may also result in the judgment
being set aside in terms of s 52(3) of the Criminal Law Amendment Act 105 of 1997 where
the High Court is of the view that the proceedings are not in accordance with justice. [149] In
summary contempt proceedings the failure to give an accused an opportunity to acquire
legal representation will not automatically be deemed unconstitutional; it will depend on the
circumstances of the case and the ability of the accused to defend himself. [150]
As far as plea proceedings are concerned, it is arguable that existing legislative provisions
encroach on the right to remain silent during plea proceedings. In terms of s 112 of the CPA
the accused may be questioned by the presiding officer after entering a plea of guilty. This
can be justified in numerous ways. The accused, by entering a plea of guilty, is clearly
abdicating her right to be presumed innocent; there is no longer a contest between the state
and the accused. Furthermore, questioning in terms of s 112 is aimed at
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protecting the accused; [151] the accused cannot compromise herself further as she has
already admitted guilt. A presiding officer may, through questioning the accused, discover
that she does have a valid defence. For example, it may become apparent on a charge of
culpable homicide that the accused acted in self-defence. In Director of Public Prosecutions,
Natal v Magidela and Another [152] the Supreme Court of Appeal, applying the interim
Constitution, held that the failure to advise an accused of the right to remain silent, after he
has entered a plea of guilty and before questioning him in terms of s 112(1)(b) of the CPA,
did not necessarily infringe the accused’s right to a fair trial. Although the Interim
Constitution placed a general duty on judicial officers to advise the accused of his right to
remain silent during plea proceedings, in each case it had to be established whether the
admission of the evidence would violate the accused’s right to a fair trial. [153] For example,
in Director of Public Prosecutions, Transvaal v Viljoen [154] the court held that it was
necessary to advise an accused of his right to remain silent in order to enable him to make
an informed decision whether to waive the right. Failure to do so may render the trial unfair.
However, the absence of a warning would not render the trial unfair if the accused was in
any event aware of his right to remain silent. [155]
Equally contentious is questioning in terms of s 115 after the accused has entered a plea
of not guilty. In terms of s 115(1), where an accused pleads not guilty, the magistrate may
ask her whether she wishes to make a statement indicating the basis of her defence.
Section 115(2)(a) provides that where the accused does not make a statement indicating
the basis of her defence, or does so and it is not clear from the statement to what extent
she denies or admits the issues raised by the plea, the court may question the accused in
order to establish which allegations in the charge are in dispute.
In terms of s 115(2)(b) the court may question the accused in order to clarify any matter
with regard to the statement indicating the basis of the accused’s defence, or her replies to
questions directed at ascertaining which allegations are in dispute. It is clear that an accused
is not obliged to answer any questions put to her under s 115, and she must be advised of
this right. [156] An unrepresented accused may find it extremely difficult to exercise this right
in
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an alien and intimidating court environment. [157] Consequently, it is possible that s 115 may
yet be challenged as effectively contravening the constitutionally protected right to remain
silent. [158]
Section 20 of the Criminal Law Second Amendment Act 126 of 1992 provides a more
clear-cut example of legislation that falls foul of the constitutional right to remain silent. [159]
Section 20(4)(b)(i) provides that where an accused stands trial on a special offence, [160]
pleads not guilty and declines to indicate what the basis of his defence is, “the court may at
will, in respect of his credibility or conduct, draw an unfavourable inference regarding such
failure if it is of the opinion that such an inference is justified in the light of all the evidence
that was adduced at the trial”. Chapter V of Act 126 of 1992 is currently not in
operation. [161]
The rights to remain silent, not to testify during proceedings and not to be compelled to
give self-incriminating evidence also fall to be considered when dealing with discharge at the
close of the state case. This is discussed at § 31 5 below. [162]
10 2 4 Other investigative inquiries
There are several statutory enactments that provide for interrogation procedures outside of
the criminal process. [163] Many of these authorise designated officials to compel persons to
appear before them and to answer questions, whether incriminating or not. Section 35(1)
and 35(3) of the Constitution limits the right to remain silent and not to answer incriminating
questions, to arrested and accused persons during plea proceedings and trial. [164] However,
if an examinee is subsequently charged, and the prosecution seeks to use evidence obtained
at such an interrogation in a subsequent trial, then the protections afforded by s 35(3) will
apply. Even where an examinee has been arrested and charged prior to an examination
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which occurs independently of the criminal trial, they can only claim s 35(3) rights if
evidence from the examination is sought to be introduced at the trial. [165] However, where
the purpose of the examination relates specifically to the offence charged, the accused may
not be summoned for interrogation. [166] If the evidence elicited at an examination is found
to have been obtained in contravention of the privilege against self-incrimination, then it
may be excluded in terms of s 35(5) of the Constitution at a subsequent trial. [167] Thus, the
right to a fair trial is protected by use immunity in respect of evidence arising out of the
“non-trial” interrogation. However, the subsequent use of derivative evidence is less clear
cut and its admissibility falls to be determined in terms of a competent court’s s 35(5)
discretion or specific statutory offences regulating the admissibility of such derivative
evidence. [168] This discretion does not mean that an examinee is deprived of the right to
procedural fairness prior to becoming an accused. [169] An examinee will still be subject to
the residual procedural safeguards to be found in the s 12(1) right to freedom and security
of person. [170] In addition, a person detained for non-trial purposes — say, for deportation —
may nevertheless rely on the s 35(2) rights of detainees. [171]
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The Constitutional Court in Nel v Le Roux [172] considered the extent to which the right to a
fair trial applies only to accused persons when it engaged the constitutionality of s 205 of the
CPA. [173] In terms of this section a judge or magistrate, upon receiving a request from a
Director of Public Prosecutions (DPP) or public prosecutor, may request a person who is
likely to give material or relevant information as to any alleged offence, to appear before
them for examination by the DPP or public prosecutor. Such an examination may be
conducted in private. [174] The applicants challenged s 205 of the CPA in terms of the
following provisions of the Interim Constitution: s 8(1) (equality); s 11(1) (freedom and
security of person); s 11(2) (cruel, inhuman or degrading treatment or punishment); s 13
(privacy); s 15(1) (freedom of speech and expression); s 23 (access to information); s 24
(administrative justice); s 25(3) (fair trial); s 25(3)(a) (public trial); s 25(3)(c) (the right to
be presumed innocent and to remain silent) and s 25(3)(d) (the privilege against selfincrimination).
The court in Nel found that s 205 of the CPA was not inconsistent with any of the above
provisions. In relation to the privilege against self-incrimination the court held that “[i]n view
of the transactional indemnity and use of immunity provisions in s 204(2) and (4)
respectively of the Criminal Procedure Act, the applicant could not validly object to
answering self-incrimination questions”. [175] As to the general strength of the applicant’s Bill
of Rights challenge, the court wrote:
“If the answer to any question put to an examinee at an examination under s 205 of the Criminal
Procedure Act would infringe or threaten to infringe any of the examinee’s Chapter 3 rights, this would
constitute a ‘just excuse’ for purposes of s 189(1) for refusing to answer the question unless the s 189
(1) compulsion to answer the particular question, would in the circumstances, constitute a limitation
on such right which is justified under s 33(1) of the Constitution. In determining the applicability of
s 33(1), regard must be had not only to the right asserted but also the State’s interest in securing
information necessary for the prosecution of crimes . . . There is nothing in the provisions of s 205
read with s 189 of the Criminal Procedure Act which compels or requires the examinee to answer a
question (or for that matter to produce a document) which would unjustifiably infringe or threaten to
infringe any of the examinee’s Chapter 3 rights.” [176]
The court held that the s 25(3) right to a fair trial applied only to accused persons and, as a
reluctant s 205 examinee could not be said to be an “accused”, it was not necessary to
consider s 25(3) in determining the constitutionality of s 205. [177]
The admission of statements made under statutory compulsion is further discussed in
§ 17 4 4 2 below.
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10 2 5 The witness in civil proceedings
Section 14 of the CPEA provides:
“A witness may not refuse to answer a question relevant to the issue, the answering of which has no
tendency to incriminate himself, or to expose him to penalty or forfeiture of any nature whatsoever,
by reason only or on the sole ground that the answering of such question may establish or tend to
establish that he owes a debt or is otherwise subject to a civil suit.”
Section 14 must be read together with s 42, which provides:
“The law of evidence including the law relating to the competence, compellability and examination and
cross-examination of witnesses which was in force in respect of civil proceedings on the thirtieth day
of May 1961, shall apply in any case not provided for by this Act or any other law.”
The effect of these two provisions is to give a wider ambit to the privilege against selfincrimination in civil cases than in criminal cases. In criminal cases the privilege applies only
to answers that would expose the witness to a criminal charge, whilst in civil cases it also
applies where it would expose the witness to penalties or forfeiture.
10 3 Legal Professional Privilege
10 3 1 The rationale
In civil and criminal proceedings communications made between a lawyer and her client may
not be disclosed without the client’s consent. [178] Heydon sets out the rationale for the rule
as follows:
“The privilege is usually said to exist for the following reasons. Human affairs and the legal rules
governing them are complex. Men are unequal in wealth, power, intelligence and capacity to handle
their problems. To remove this inequality and to permit disputes to be resolved in accordance with the
strength of the parties’ cases, lawyers are necessary, and privilege is required to encourage resort to
them, and to ensure that all the relevant facts will be put before them, not merely those the client
thinks favour him. If lawyers are only told some of the facts, clients will be advised that their cases
are better than they actually are, and will litigate instead of compromising and settling. Lawyer-client
relations would be full of ‘reserve and dissimulation, uneasiness, and suspicion and fear’ without the
privilege; the confidant might at any time have to betray confidences.” [179]
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In S v Safatsa and Others
in Baker v Campbell: [181]
[180]
Botha JA expressed his agreement with the views of Dawson J
“The conflict between the principle that all relevant evidence should be disclosed and the principle that
communications between lawyer and clients should be confidential has been resolved in favour of the
confidentiality of those communications. It has been determined that in this way the public interest is
better served because the operation of the adversary system, upon which we depend for the
attainment of justice in our society, would otherwise be impaired . . . The privilege extends beyond
communications made for the purpose of litigation to all communications made for the purpose of
giving or receiving advice and this extension of the principle makes it inappropriate to regard the
doctrine as a mere rule of evidence. It is a doctrine which is based upon the view that confidentiality
is necessary for the proper functioning of the legal system and not merely the proper conduct of
particular litigation . . .”
In Safatsa the Appellate Division for the first time recognised that legal professional privilege
is a fundamental right derived from the requirements of procedural justice, and not merely
an evidentiary rule. [182] However, a breach of the privilege will not automatically render a
trial unfair. The applicants in Bennett and Others v Minister of Safety and Security and
Others [183] sought the return of documents seized in a number of extensive search and
seizure operations conducted by the police. The documents included some 18 000
documents falling under the umbrella of attorney-client privilege. The full remedy sought by
the applicants was: the setting aside of the search warrants, the return of all documents and
any copies that may have been made (including extracts) as well as an order prohibiting the
use of any of the documentation seized in future proceedings.
Bertelsmann J, reiterating that attorney-client privilege is a substantive rule of law which
demands compliance in order to fulfil the requirements of a fair trial, found that in the
circumstances legal professional privilege had been breached. [184] At the time of seizing the
documents the police were aware that the documents were privileged, the warrants did not
authorise the seizure of privileged documents and in any event a warrant expressly
authorising the seizure of privileged documents “would indubitably be unlawful”. [185]
However, the court, taking into account that there was “no evidence that the privileged
papers were ever read by any police officer or State official” [186] found that it could not come
to the conclusion that at this stage the fairness of the trial had been irrevocably comprised.
It was ordered that all documents should be
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returned to the applicants, that the respondents be allowed to make copies of the nonprivileged documents and that the admissibility of these copies was to be determined by the
trial court.
In an obiter dictum, Bertelsmann J noted that a stay of proceedings would only be
appropriate where the breach of legal professional privilege was intentional or “the
authorities ignored the protection the privilege affords a suspect”. [187]
10 3 2 The requirements for the existence of the privilege
Before legal professional privilege can be claimed the communication in question must have
been made to a legal adviser acting in a professional capacity, in confidence, for the purpose
of pending litigation or for the purpose of obtaining professional advice. [188] The client must
claim the privilege. And the lawyer can claim the privilege on behalf of his client once the
latter has made an informed decision.
10 3 2 1 Acting in a professional capacity
Whether an adviser is acting in her professional capacity will be a question of fact in each
case. Although a strong inference can be drawn that this requirement has been fulfilled
where a fee has been paid, the absence of such payment does not mean that an adviser was
not acting in a professional capacity. [189] Swart J, in Van der Heever v Die Meester en
Andere, [190] held that a legal adviser must also be considered as acting in a professional
capacity for the purposes of legal professional privilege. The court approved the approach
taken by the English courts in Alfred Compton Amusement Machines Ltd v Customs and
Excise Commissioners (No 2) [191] in which Lord Denning held that no distinction could be
drawn between the salaried legal adviser and an attorney or advocate in private practice for
the purposes of legal professional privilege. The rationale for adopting such an approach was
set out in Mohamed v President of the Republic of South Africa and Others [192] by Hoffman
AJ as follows:
“To limit the scope of legal professional privilege to clients and lawyers in private practice is not
justified in law. This would considerably dislocate the established practice and would force
governments, statutory bodies and even private corporations with in-house legal advisers to
reorganise — at great expense — their modus operandi so that all advice required is received from
independent legal advisers rather than engaging salaried staff to give legal advice. There is no
warrant for doing this, provided that ‘in-house’ legal advisers remain mindful of Lord Denning’s
exhortation to be scrupulously aware of the distinction between communications made in their
capacity as legal adviser and other communications which would not be of a privileged nature.”
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The court in Mohamed concluded that in the circumstances, legal professional privilege
attached to confidential communications between the Government and its salaried legal
advisers when they could be equated to an independent adviser’s confidential advice. [193]
10 3 2 2 The communication must be made in confidence
Whether a communication was made in confidence will always be a question of fact. [194]
Confidentiality will usually be inferred where it is proved that a legal adviser was consulted in
a professional capacity for the purpose of obtaining legal advice. [195] The inference of
confidentiality will always be rebuttable, for example, where it is clear from the nature of the
communication that it was intended to be communicated to the other party. In Giovagnoli v
Di Meo [196] the court held that an instruction to an attorney to negotiate and effect a
settlement was not privileged as it was clearly not confidential in that it was intended to be
communicated to the other party.
10 3 2 3 For the purpose of obtaining legal advice
If a communication is made in confidence, but not for the purpose of obtaining legal advice,
it will not be privileged. For example, in A Company and Others v Commissioner, South
African Revenue Service [197] Binns-Ward J held that as “fee notes were not created for the
purpose of the giving of advice” [198] they would not ordinarily be regarded as privileged.
However, if a fee note contains more than mere references to advice sought and includes
material from which the substance of the advice can [199] be inferred, privilege may be
claimed in respect of such material.
Whether a particular communication is privileged will always be a question of fact.
Supreme Court of Appeal held that:
[200]
The
“The purpose of the document is not to be ascertained by reference to its author, either at the time at
which the document was prepared or at the time it is handed over to the litigant or the litigant’s legal
representative. Instead, the purpose of the document is to be determined by reference to ‘the person
or authority under whose direction, whether particular or general, it was produced or brought into
existence’. In that case it is the intention of the person who procured the document, and not the
author’s intention, that is relevant for ascertaining the document’s purpose. The author need not even
have known of possible litigation when the document was prepared.” [201]
Page 162
Communications made between a legal adviser and her client, provided they are made for
the purpose of obtaining legal advice, need not be connected to actual or pending litigation
for privilege to attach to them. [202] However, before statements taken from agents or
independent third parties will be treated as privileged, they must have been made in
connection with contemplated litigation. [203]
Legal professional privilege will not be upheld if legal advice is sought so as to further a
criminal purpose. [204]
10 3 2 4 The client must claim the privilege
The privilege attaches to the client and it must be claimed by the client. [205] The court will
not uphold the privilege in the absence of a claim of privilege. A legal representative is
obliged to claim privilege on behalf of her client. [206] If the client waives the privilege the
legal representative will be bound by the waiver. [207]
10 3 3 The scope of the rule
Where a client gives evidence in respect of facts that have not been put to the opposing
witnesses she may be asked whether she told her legal advisers about those facts, but she
may not be asked what she told them. [208]
In S v Mushimba en Andere [209] the court held that legal professional privilege extended
to interpreters, articled clerks, secretaries and other employees in a law firm. Where
communications are made between the adviser/client and a third party privilege can only be
claimed if: (i) the communication was made for the purpose of being submitted to a legal
adviser and (ii) the communication was made after litigation was contemplated. [210] In
General Accident, Fire & Life Assurance Corporation Ltd v Goldberg [211] an insured made a
claim upon a policy of fire insurance and an assessor was appointed by the insurance
company to investigate and advise whether the claimant should be paid out. The company,
in claiming privilege in respect of the assessor’s report, alleged that it was required for the
purpose of submitting it “if necessary” to the company’s attorneys. The court refused to
uphold the privilege on the basis
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that neither of the above-mentioned requirements had been fulfilled. Mason J stated the
following with reference to the requirement that litigation must be contemplated: [212]
“With reference to the first point, whether the report was made in contemplation of litigation, I do not
think that the circumstances in this case, as alleged by the affidavit on behalf of the company, show
that litigation was contemplated. It is not a question whether a man is very nervous or suspicious that
there may be litigation, and that if he is so nervous and suspicious he is to be protected in respect of
a document, whereas if he is not nervous and suspicious he is not to be protected. There must be
really some contemplated litigation, some fact to indicate that litigation is likely or probable. It must
not be a mere possibility which there is nothing to lead one to believe would be converted into reality
according to the facts of the case.”
A distinction is made between statements from agents and from independent third parties in
that an agent can be prevented from disclosing the contents of a statement whilst an
independent third party wishing to disclose what he said cannot be prevented from doing
so. [213] Where another person gains knowledge of a privileged communication, or possession
of a privileged document, its disclosure cannot be prevented. However, if such knowledge or
possession came about as a result of some unlawful act, it is possible that a court may
refuse admission of such evidence on the basis of its discretion to exclude unfairly obtained
evidence.
In the past some South African courts have held that legal professional privilege does not
prevent documents falling under this privilege from being seized by the police under a valid
search warrant. [214] However, the correctness of these past decisions has fallen to be
contested in view of the Appellate Division’s recognition in S v Safatsa and Others [215] that
legal professional privilege is a fundamental right that is essential for the proper functioning
of the legal system. In Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v
Director, Office for Serious Economic Offences, and Others [216] the Appellate Division,
accepting that legal professional privilege is a fundamental right, held that ordinarily the
privilege can be claimed to prevent seizure by warrant of a privileged document. [217]
The court has an inherent power to examine any document in respect of which privilege is
claimed. [218] However in South African Rugby Football Union and Others v President of the
Republic of South Africa and Others [219] the court held that a
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court should not inspect privileged documents as a matter of course, as such an inspection is
only called for in special circumstances, for example, “where it is necessary and desirable for
a just decision or where there is some reason to cast doubt on the claim of privilege”. [220]
Nugent JA in President of the Republic of South Africa and Others v M & G Media Ltd [221]
warned that courts should be cautious in exercising their right to “peek” because courts
“earn the trust of the public by conducting their business openly and with reasons for their
decisions” and consequently “a court should be hesitant to become a party to secrecy with
its potential to dissipate that accumulated store of trust”. [222] In order to avoid the necessity
of a judicial peek a party claiming privilege should provide sufficient contextual justification
for their claim to legal privilege. [223] It is possible for a court “to excise from an otherwise
privilege document portions which are not covered by privilege”. [224]
Whether the breach of an accused’s legal professional privilege constitutes an unjustifiable
infringement of the constitutional right to a fair trial will depend on the nature of the breach
and the circumstances in which it occurred. [225] Section 32(1) of the Constitution provides:
“Everyone has the right of access to —
(a)
(b)
any information held by the state; and
any information that is held by another person that is required for the exercise or protection of
any rights.”
In Jeeva and Others v Receiver of Revenue, Port Elizabeth, and Others [226] an application
was brought in terms of a similar provision in the interim Constitution [227] for an order that
the receiver of revenue give the applicant access to certain information in its possession. The
court ordered that all the requested information be disclosed except that information which
was covered by legal professional privilege. The court held that legal professional privilege
was a reasonable and justifiable limitation [228] on the applicant’s constitutional right of
access to information. [229] However, it appears that a claim of privilege in respect of a legal
adviser and a public authority may in certain circumstances be trumped by the constitutional
right to access to information. [230]
In S v Safatsa and Others [231] the court considered the following scenario: counsel for the
accused wished to cross-examine a state witness on an earlier
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statement made by that state witness to an attorney in the course of obtaining professional
legal advice. It was common cause that the statement was covered by legal professional
privilege. The state witness in question refused to waive the privilege. The accused argued
that such cross-examination would assist their defence. Botha JA held that if it were possible
for the court to relax the rule of privilege, the following information, as a minimum
requirement, would have to be put before the court:
“information as to how the statement came to be in the possession of the legal representatives of the
accused; whether the legal advice sought related to the trial itself, and if so, in what way; what the
contents of the statement were (the statement could be handed up to the trial Judge for his perusal);
and, perhaps most importantly, in what manner and with what prospects of success the crossexamination could avail the accused in countering the charges against them.” [232]
10 3 4 Waiver
Legal professional privilege may be waived by a client. This may be done expressly, [233]
impliedly or imputedly. For example, waiver may be implied when a client discloses
privileged information. In Ex Parte Minister van Justisie: In Re S v Wagner [234] Rumpff CJ
held that an implied waiver involves “an element of publication of the document or part of it
which can serve as a ground for the inference that the litigant or prosecutor no longer
wishes to keep the contents of the document a secret”.
In S v Tandwa and Others [235] the Supreme Court of Appeal drew a distinction between
implied and imputed waiver in the context of an allegation of poor legal representation. The
issue that arose was whether admitting an affidavit by the impugned accused constituted a
breach of professional legal privilege. The court held: [236]
“Implied waiver occurs . . . when the holder of the privilege with the 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.” [237]
Page 166
Adopting the approach of Wigmore [238] the court held that waiver must be imputed where a
client alleges incompetence on the part of his or her legal representative. [239]
10 3 5 Refreshing memory in the witness-box
In both civil and criminal trials the privilege attaching to a witness’s statements is treated as
separate from legal professional privilege (see § 24 5 6 below). The rationale is that the
distinction is necessary to protect the person who is unrepresented. However, as these two
privileges overlap and are in many aspects very similar, they are for reasons of convenience
dealt with under legal professional privilege.
The privilege pertaining to a witness’s statement falls away when a witness uses this
statement to refresh her memory in the witness box (see § 24 5 6 below). The privilege is
not disturbed if witnesses refresh their memory whilst out of the witness box; [240] and the
privilege will not be lost where witnesses refresh their memory during an adjournment. [241]
However, if the court is of the view that the witness in the witness box has no independent
recollection and has merely memorised the contents of the document, then the document
must be produced. [242]
One basis for distinguishing between refreshing memory in and out of the witness box is
that waiver of privilege cannot be implied unless there is some element of publication. This
occurs when the document is used whilst the witness is testifying in court, but not when it is
used out of court. [243] The consequences of refreshing of memory from a privileged
document are dealt with in chapter 24 below.
10 3 6 Section 19 of the Legal Aid South Africa Act 39 of 2014
Legal Aid South Africa (hereafter “LASA”) is a national public entity, created by the above
Act (the “LASA Act”), to provide and manage legal representation to persons at state
expense. Section 19(1) of the LASA Act states that a private practitioner instructed by LASA
to represent a person who qualifies for legal aid under the LASA Act must, when required by
LASA to do so, “grant access to the information and documents contained in the file relating
to the person in question for the sole purpose of conducting a quality assessment of the
work done by the legal practitioner”. It should be noted that the client — as holder of the
privilege — cannot prevent access in these circumstances. It is the lawyer’s duty to grant
access, and this duty only arises where LASA requests access for quality assessment
purposes. Section 19(2) determines, furthermore, that the documents and information
referred to in s 19(1) remain privileged
Page 167
against any other party as information falling within legal professional privilege, despite
having been made available to LASA. It is submitted that LASA can, in turn, also be
prevented from using the information for any other purpose than quality assessment.
10 4 Other Professional Privileges?
The legal recognition of a privilege attaching to communications between categories of
people inevitably involves two conflicting interests: (1) society’s interest in preserving and
promoting certain relationships; and (2) the interest of the administration of justice in
ensuring that all relevant evidence is before the court. Historically, preference has been
given to the latter interest. Consequently, professional privilege pertains only to the lawyerclient relationship and is not enjoyed by other professional relationships, [244] although
bankers do have a limited privilege in that they need not produce their books unless ordered
to do so by the court. [245] Privilege is not accorded to the doctor-patient relationship; [246]
however, where an accused has been referred for mental observation, any statement made
by her at such an inquiry will be inadmissible in criminal proceedings, “except to the extent
to which it may be relevant to the determination” of her “mental condition”. [247]
Priests, [248] insurers [249] and accountants [250] do not enjoy this privilege. Journalists can
be compelled to disclose the sources of their information. [251] However, it would appear that
some relief is available to these professionals if they can establish that they have a “just
excuse” for not testifying. [252] In Bosasa Operations (Pty) Ltd v Basson and Another [253] the
court emphasising the important role of the freedom of the press held that there was no
duty to disclose the names of sources where their identity was not relevant to the plaintiff’s
case.
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It is also arguable that certain professional communications may be protected from
disclosure by the constitutional right to privacy. Section 14(d) of the Constitution provides
that everyone has the right not to have the privacy of their communications infringed. A
communication between doctor and patient may well be regarded as a personal and private
communication, and where the state seeks to compel disclosure of such a communication,
privilege may be claimed on the basis of s 14. However, that privilege may be denied if the
state is able to establish that the requirements of the limitations clause have been met. [254]
Such an approach would not constitute such a radical departure from the common law as
such constitutional scrutiny would inevitably incorporate Wigmore’s [255] preconditions for the
recognition of a privilege and which are reflected in the pre-requisites of legal professional
privilege, namely:
“(1) the communicate must originate in a confidence that they will not be disclosed;
(2) the element of confidentiality must be essential to the full and satisfactory maintenance of the
relationship between the parties;
(3) the relationship must be one that in the opinion of the community ought to be sedulously
fostered;
(4)
the injury that would inure to the relationship by the disclosure of the communication must be
greater than the benefit gained through the correct disposal of the litigation.” [256]
10 5 Marital Privilege
Spouses are entitled to refuse to disclose communications from the other spouse made
during the marriage. [257] This privilege is founded on the notion that public opinion would
find it unacceptable if spouses could be forced to disclose communications received from
each other. [258]
The only requirements for the existence of the privilege is that the communication must
have been made whilst the spouses were married. The privilege persists after divorce with
regard to communications made whilst the couple were still married. [259]
In terms of s 199 of the CPA each spouse may refuse to answer a question that the other
spouse could not have been compelled to answer. [260] However, should the spouse who
received the communication wish to disclose it, there is nothing the other spouse can do to
prevent such disclosure, since marital privilege can only be claimed by the spouse to whom
the communication is made. The traditionally accepted view is that a third person who hears
or
Page 169
intercepts the communication cannot be prevented from disclosing it. [261] This common-law
approach may well be challenged on the basis that it infringes the constitutional right to
privacy. [262]
10 6 Parent–Child Privilege
Section 192 of the CPA [263] makes it clear that parents/guardians can be compelled to testify
against their children/wards and vice versa. Our courts do not recognise a privilege
pertaining to communications between parent and child. The absence of privilege prevails
even where the parent attends criminal proceedings in order to provide assistance to a child
in terms of s 73(3) of the CPA.
There can be no doubt that an argument can be made that where parents attend criminal
proceedings in order to assist their children, public policy militates against those very same
parents being compelled to testify against their children. In S v M [264] the Appellate Division
held that s 73(1) and 73(2) of the CPA, read together, conferred a right upon a child to be
assisted by a parent or guardian as from the time of the child’s arrest, in the same way as
an adult would be entitled to the assistance of a legal adviser. From this equation of parental
assistance with the assistance of a legal adviser follows the logical inference that parentchild communications in this context should be afforded the same privilege as
communications made between legal adviser and client.
However, even where a parent does not appear to assist the child there may well be
constitutional grounds for holding that communications between parent and child are
privileged. In the United States the courts have recognised that confidential communications
between children and their parents, guardians or other caretakers are privileged from
disclosure on the basis of the constitutional right to privacy. [265] It is submitted that s 14 of
the Constitution, which guarantees the right to privacy, is susceptible to a similar
interpretation. [266]
[1] Generally speaking, no adverse inference may be drawn from the fact that a person claims privilege; see
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1) 1955 (2) SA 1 (W).
[2] See Van Lill v S 1969 2 PH H219 (T); S v Evans 1981 (4) SA 52 (C). A presiding officer has a duty to advise
the unrepresented accused of any claim to privilege; see S v Lwane 1966 (2) SA 433 (A), which is also discussed in
§ 3 5 2 above and § 10 2 2 below.
[3] Van der Merwe et al Evidence (1983) 133.
[4] See generally Tapper Cross & Tapper on Evidence 12 ed (2010) 447.
[5] Although not discussed in this chapter, it should be noted that a litigant may refuse to disclose a document in
discovery proceedings if he would be able to claim privilege for its contents on any ground. See generally Van
Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 221 for the grounds on which witness
statement privilege exists in civil cases. See § 11 5 below as far as “docket privilege” of the state is concerned.
[6] Rex v Camane and Others 1925 AD 570 575.
[7] See s 14 of the CPEA and ss 203, 217 and 219A of the CPA.
[8] Section 35(1)(a), (b) & (c) and 35(3)(h) and (j) of the Constitution.
[9] S v Thebus and Another 2003 (6) SA 505 (CC) at [55]. See also S v Manamela and Another (Director-General
of Justice Intervening) 2000 (3) SA 1 (CC); Osman and Another v Attorney-General, Transvaal 1998 (4) SA 1224
(CC).
[10] See § 29 2 below.
[11] Tapper Cross & Tapper on Evidence 417. See also Wigmore paras 2250-1. It has also been suggested that the
privilege originated in Jewish law; see Mazabow 1987 SALJ 710, where this claim is refuted.
[12] Wigmore paras 2250-1 describes the history of the rule in the following words “. . . [a] long story . . . woven
across a tangled warp composed in part of the inventions of the early canonists, of the momentous contest between
the courts of the common law and of the church, and of the political and religious issues of the convulsive period in
English history, the days of the dictatorial Stuarts.”
[13] Tapper Cross & Tapper on Evidence 417 cites Pyneboard Pty Ltd v Trade Practices Commission 1983 152 CLR
328 346, where the privilege was referred to as “part of the common law of human rights”.
[14] See S v Lwane supra 438.
[15] The privilege against self-incrimination has been criticised in that it obstructs the course of justice and
militates against the discovery of crimes. See Kurzon 1992 TRW 1; Nugent 1999 SALJ 501; Hiemstra 1990 Stell LR
400. For a response to the criticism of Hiemstra, see Van der Merwe 1991 Stell LR 102.
[16] 384 US 436 (1966). For further discussion of this case, see § 10 2 3 1 below as well as §§ 12 5 2 to 12 5 2 4
below.
[17] The privilege is that of the witness and generally must be claimed by her.
[18] Section 200 of the CPA.
[19] S v Lwane supra. The presence of a legal representative will not necessarily excuse a presiding officer from
this duty. See S v Botha and Others (2) 1995 (2) SACR 605 (W).
[20] Supra. See also § 12 4 3 below for a discussion of S v Lwane supra.
[21] Cf Magmoed v Janse Van Rensburg and Others 1993 (1) SA 777 (A).
[22] Magmoed v Janse Van Rensburg and Others supra 819. See further Van der Merwe 1991 Stell LR 102 105106.
[23] Magmoed v Janse Van Rensburg and Others supra 820. In S v Heyman and Another 1966 (4) SA 598 (A) 608
Steyn CJ stated: “The avoidance of incriminating replies may not be a simple matter by any means. As observed in Q
v Boyes 1861 LJR 301 (referred to in The State v Carneson 1962 (3) SA 437 (T) at 439) a question which might at
first sight appear a very innocent one, might, by affording a link in a chain of evidence, become the means of
bringing home an offence to the party answering.” If a claim of privilege is wrongly denied, an incriminating reply
may not be admitted in subsequent criminal proceedings. See Magmoed’s case supra 821.
[24] Magmoed v Janse Van Rensburg and Others supra; S v Ramaligela en ’n Ander 1983 (2) SA 424 (V).
[25] 1994 (1) SACR 21 (C).
[26] See also S v Van Schoor 1993 (1) SACR 202 (E). The accused prior to his criminal trial had made a written
statement to the police for the purposes of inquest proceedings. He was not warned before making the statement.
The court found the written statement to be admissible into evidence and held that, although a witness in judicial
proceedings was required to be warned, the requirement applied only to viva voce evidence before a judicial tribunal.
In reaching this conclusion Melunsky J did not refer to any authority and no mention was made of the Judges’ Rules.
The Judges’ Rules are contained in Appendix B to this work.
[27] See s 1(d) of the Constitution.
[28] Magmoed v Janse Van Rensburg and Others supra 827.
[29] Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 All ER 613; Rio Tinto Zinc Corp v
Westinghouse Electric Corp [1978] 1 All ER 434. See Tapper Cross & Tapper on Evidence 11 ed (2007) 456.
[30] United States v White 322 US 694 (1944); Braswell v United States 108 S Ct 2284 (1988).
[31] R v NM Paterson & Sons Ltd [1980] 2 SCR 679; R v Amway Corp [1989] 1 SCR 21.
[32] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477.
[33] British Steel Corporation v Granada Television Ltd [1981] AC 1096. Cf Theophilopoulos (2004) 16 SA Merc LJ
17 who argues that the common law should be extended to corporations when it is in the public interest to do so.
[34] See Paizes in Du Toit et al Commentary 23-50B, who warns that this procedure should be used cautiously.
See further § 22 10 below.
[35] Section 204(1).
[36] Section 204(2). Such discharge (immunity from prosecution) would also cover competent verdicts in respect
of the specified charge. See s 204(2)(a).
[37] Section 204(3).
[38] Section 204(4).
[39] Section 205(1) is used for the purpose of obtaining statements from witnesses who refuse to make
statements to the police in the course of the latter’s investigation of a crime.
[40] See generally Paizes in Du Toit et al Commentary 23-50B. Section 205 is not unconstitutional: Nel v Le Roux
NO and Others 1996 (1) SACR 572 (CC). See also § 10 2 4 below.
[41] 2002 (1) SACR 266 (T) at [21].
[42] For a further discussion of Maunye, see Schwikkard 2002 SACJ 272.
[43] Zeffertt & Paizes 578.
[44] Zeffertt, Paizes and Skeen (2003) 530; see also Wigmore para 2260; Tapper Cross & Tapper on Evidence
451-2; S v Heyman and Another supra 608; Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 143.
[45] S v Sheehama 1991 (2) SA 860 (A).
[46] At the South African Judges Conference held at Cape Town in 1931 the Judges’ Rules were formulated. These
rules are virtually identical to the Judges’ Rules drawn by the English judges in 1913. The purpose of these rules is to
protect an accused from unfair practices by the police. See further Appendix B to this work.
[47] Hiemstra 1968 SALJ 187. Cf S v Mpetha and Others (2) 1983 (1) SA 576 (C); S v Sampson and Another 1989
(3) SA 239 (A); S v Colt and Others 1992 (2) SACR 120 (E). In S v Van der Merwe 1998 (1) SACR 194 (O) Gihwala
AJ held that as the Judges’ Rules gave expression to the rights protected in the Constitution, the failure to warn the
accused of his rights in terms of the Constitution was irrelevant. The correctness of Gihwala J’s views is questionable
as there are a number of distinctions that can be made between the Judges’ Rules and s 35 of the Constitution (s 25
of the Interim Constitution).
[48] See S v Mabaso and Another 1990 (3) SA 185 (A).
[49] 1926 AD 459. See also Rex v Holtzhausen 1947 (1) SA 567 (A); Rex v Kuzwayo 1949 (3) SA 761 (A). In S v
Mpetha supra 598 Williamson J noted: “Once the person being interviewed is cautioned and then indicates that he
does not want to say anything it is in my opinion improper to direct further questions to him. If he answers these
further questions the irresistible inference is that his earlier expressed decision to say nothing has been made to
crumble by the pressures of the situation in which he then finds himself.” See also § 12 9 5 below and S v Sabisa
1993 (2) SACR 525 (TKA). See chs 16 and 17 below for a discussion of the requirements that have to be met before
an admission or confession may be admitted into evidence.
[50] Cf S v Orrie and Another 2005 (1) SACR 63 (C), S v Lottering 1999 12 BCLR 1478 (N) and see S v Seseane
2000 (2) SACR 225 (O). See further §§ 12 9 3 to 12 9 4 below.
[51] 384 US 436 (1966). For a further discussion of this case, see §§ 12 5 2 to 12 5 2 4 below.
[52] See further Ghent (annotation) 31 ALR 3d 565; Smith “The Threshold Question in Applying Miranda: What
Constitutes Custodial Interrogation?” 1974 25 South Carolina LR 699 735; Harris v New York 401 US 222 (1971);
Rhode Island v Innis 446 US 291 (1980); New York v Quarles 467 US 649 (1984).
[53] 378 US 478 (1964).
[54] See S v Ramulifho 2013 (1) SACR 388 (SCA). Cf S v Mngeni 2013 (1) SACR 583 (WCC); S v Vumase 2000
(2) SACR 579 (W).
[55] See generally S v Mckenna 1998 (1) SACR 106 (C), in which the court held that the fact that the appellant
was legally qualified did not deprive her of the right to legal representation at her trial. However, cf the approach
adopted in § 12 9 4 below. For a general discussion see Schwikkard in De Waal & Currie Bill of Rights Handbook 5 ed
(2005) 760-3.
[56] Sections 35(1)(a), (b) & (c), s 35(2)(b) & (c) and s 35(3)(f), (g), (h) & (j). Jones J in S v Nombewu 1996 (2)
SACR 396 (E) at 403c held that the overriding objective of the equivalent provisions in the interim Constitution was
“to protect persons against unfairly made self-incriminating statements”.
[57] See Schwikkard 1997 SAJHR 446.
[58] This includes sentenced prisoners. See Ehrlich v Ceo, Legal Aid Board, and Another 2006 (1) SACR 346 (E);
Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, and Others 2002 (5) SA
449 (SCA).
[59] Section 35(2)(b) & (c). See Schwikkard Constitutional Law of South Africa 52-25–52-26.
[60] Section 35(1)(a) & (b).
[61] LAWSA (1994) para 196. Section 39 of the CPA. Nhlabathi v Adjunk Prokureur-Generaal, Transvaal, en
Andere 1978 (3) SA 620 (W); Minister of Law and Order v Kader 1991 (1) SA 41 (A).
[62] Section 73(2A)(a), inserted in terms of s 2 of the Criminal Procedure Amendment Act 86 of 1996, which came
into operation on 28 June 2002.
[63] This is implicit in the wording of s 39(3) of the CPA which provides: “The effect of an arrest shall be that the
person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or
released from custody.”
[64] R v Therens [1985] 1 SCR 613; R v Rahn [1985] 1 SCR 659; R v Trask [1985] 1 SCR 655; R v Thomsen
[1988] 1 SCR 640. Cf, however, the approach of the New Zealand Court of Appeal in R v Goodwin [1993] 2 NZLR
153 (CA).
[65] R v Therens supra 642-645.
[66] R v Thomsen [1988] 1 SCR 640.
[67] R v Esposito (1985) 53 OR (2d) 356.
[68] See ch 17 below.
[69] Section 35(3)(j).
[70] See also S v Mpetha and Others (2) 1983 (1) SA 576 (C); S v Lwane 1966 (2) SA 433 (A); Rex v Kuzwayo
1949 (3) SA 761 (A); S v Dlamini 1973 (1) SA 144 (A); S v Agnew and Another 1996 (2) SACR 535 (C); S v
Mathebula and Another 1997 (1) SACR 10 (W); S v Sebejan and Others 1997 (1) SACR 626 (W). Cf S v Ngwenya
and Others 1998 (2) SACR 503 (W) in which Leveson J held that the s 25(3) right to a fair trial did not include pretrial procedures. See also S v Khan 1997 (2) SACR 611 (SCA) where the court applying the Interim Constitution
found that the failure to inform the accused of his right to legal representation before his confession was recorded by
a magistrate was unfair. However, the court held that in the circumstances the privilege against self-incrimination
had not been negated as he had been advised of the right to remain silent. For further discussion of Khan see
Schwikkard 1998 SACJ 139.
[71] 1996 (1) SACR 335 (E) 348i-349a.
[72] 1997 (1) SACR 10 (W) 19f-20a.
[73] In S v Marx and Another 1996 (2) SACR 140 (W) Cameron J held that where suspects have waived their right
to legal representation police officers are required before taking a formal statement to again inform them of their
right to legal representation or assistance. S v Marx supra was followed in S v Seseane 2000 (2) SACR 225 (O). The
importance of affording the accused the opportunity to obtain legal representation at every important pre-trial stage
was reiterated in S v Mathebula supra. See also S v Gasa and Others 1998 (1) SACR 446 (D). Cf S v Shaba en ’n
Ander 1998 (1) SACR 16 (T), in which the court referring to s 25 of the Interim Constitution held that constitutional
rights could not be waived and although it might be desirable for the accused to be warned at each pre-trial
procedure, the failure to do so would not automatically lead to the exclusion of evidence as the question of
admissibility always has to be determined in the light of all the evidence. The crucial inquiry in each is whether the
accused after having been apprised of his rights on arrest was in a position to decide voluntarily how to exercise his
rights. See also S v Shongwe en Andere 1998 (2) SACR 321 (T); S v Malefo en Andere 1998 (1) SACR 127 (W);
Shabalala v S 1999 4 All SA 583 (N); S v Soci 1998 (2) SACR 275 (E); S v Ngcobo 1998 10 BCLR 1248 (N); S v
Mfene 1998 9 BCLR 115 (N); S v Gumede 1998 5 BCLR 530 (D); S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W)
and S v Nombewu 1996 (2) SACR 396 (E). For a further discussion of Nombewu see Schwikkard 1997 SACJ 223.
[74] See S v Mcasa and Another 2005 (1) SACR 388 (SCA) at [15].
[75] 1997 (1) SACR 626 (W). See also § 12 9 4 below.
[76] At 632d the court defined “a suspect” as “one about whom there is some apprehension that she may be
implicated in the offence under investigation and, it may further be, whose version of events is mistrusted or
disbelieved”. Cf S v Ndlovu 1997 (12) BCLR 1785 (N) in which Magid J, whilst accepting that suspects were entitled
to be appropriately warned in terms of s 25 of the Interim Constitution, expressed the view that Satchwell J’s
definition of a suspect in Sebejan “set the standard too low” (at 1792A). Magid J did not provide an alternate
definition but held (at 1792B) “that there must be some offence under investigation before anybody can be a suspect
in relation thereto”. See further S v Khan 2010 (2) SACR 476 (KZP) at [23]-[25].
[77] Such a person would similarly fail to be protected by s 35 of the Constitution.
[78] At 635d.
[79] At 636b. See also S v Van der Merwe 1998 (1) SACR 194 (O) and S v Orrie and Another 2005 (1) SACR 63
(C) in which the court held that a suspect must be made aware of their status as a suspect. It should be noted that
the court in Sebejan, noting that the accused at the time of making the statement was not a “suspect”, held that no
warning had been required. Unfortunately the court did not canvass the broad Canadian definition of detention. The
facts of the case illustrate that there may well be circumstances where a person who is not technically a suspect
feels compelled to answer questions put to her and consequently incriminate herself. In the judgment itself it is
noted that the “non-suspect” thought “she had to give the police a statement” (at 628j). See also Mtyhida v S
[2013] 2 All SA 335 (ECG).
[80] Section 25 of the Interim Constitution contained substantially similar provisions to those found in s 35 of the
1996 Constitution and similarly made a distinction between arrested, detained and accused persons.
[81] S v Langa and Others 1998 (1) SACR 21 (T). See also S v Mthethwa 2004 (1) SACR 449 (E); S v Ndlovu 1997
(12) BCLR 1785 (N).
[82] S v Mthethwa 2004 (1) SACR 449 (E) 453e-f.
[83] Judges’ Rule 2 provides: ‘‘Questions may be put to a person whom the police have decided to arrest or who is
under suspicion where it is possible that the person by his answers may afford information which may tend to
establish his innocence . . . In such a case a caution should first be administered. Questions, the sole purpose of
which is that the answers may afford evidence against the person suspected, should not be put.”
[84] At 456b-c.
[85] S v Khan 2010 (2) SACR 476 (KZP). See further §§ 12 7 1 and 12 8 1 below.
[86] S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A).
[87] As argued above, detained persons must also include arrested persons.
[88] Sections 35(2)(c) and 35(3)(g). See generally Steytler Constitutional Criminal Procedure (1998) 299-315.
[89] But cf the approach taken by Visser AJ in S v Tsotetsi and Others (3) 2003 (2) SACR 648 (W).
[90] Cf Mgcina v Regional Magistrate, Lenasia and Another 1997 (2) SACR 711 (W) in which Borchers J rejected
counsel’s argument that substantial injustice would result where any indigent person was tried without legal
representation. The court noted that if the framers of the Constitution intended that to be the case they could have
formulated such a simple rule in the Constitution.
[91] Section 36 of the Constitution.
[92] See § 12 8 5 below.
[93] Section 36(1).
[94] Chaskalson et al Constitutional Law of South Africa (1996) 12-20. Cf S v Mathebula supra.
[95] See Pennington v Minister of Justice and Others 1995 (3) BCLR 270 (C); Msila v Government of the RSA 1996
3 BCLR 362 (C); S v Khanyile and Another 1988 (3) SA 795 (N).
[96] In S v Moos 1998 (1) SACR 372 (C) the court held that substantive injustice would occur if the charge was
one which would attract a sentence of imprisonment and the accused did not have legal representation.
[97] S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC); S v Ambros 2005 (2) SACR 211 (C). In S v Cornelius and
Another 2008 (1) SACR 96 (C) paras 10 & 11 the court held that an accused’s financial position was irrelevant in
determining whether he had been afforded his constitutional right to legal representation at state expense, the sole
test being whether substantial injustice would occur if the accused did not have legal representation.
[98] S v Tandwa and Others 2008 (1) SACR 613 (SCA).
[99] S v Halgryn 2002 (2) SACR 211 (SCA).
[100] S v Halgryn supra [14]. Cf S v Saloman and Others 2014 (1) SACR 93 (WCC).
[101] As amended by the Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 and the Criminal Law
(Forensic Procedures) Amendment Act 37 of 2013.
[102] Section 37(1)(c). See S v Mbambeli and Others 1993 (2) SACR 388 (E), where the court held that evidence
emanating from a medical examination, authorised in terms of s 37, could also be used to refute an allegation of
assault.
[103] Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA); S v Moyo and
Others 2014 (1) SACR 82 (GNP). Cf S v Fraser and Others [2005] 2 All SA 209 (N).
[104] Section 37(1)(c) and Section 37(2)(a)
[105] Sections 2 and 3 of the Criminal and Magistrates’ Courts Procedure (Amendment Act) 39 of 1926, replaced
by ss 289 and 291 of the Criminal Procedure Act 56 of 1955, in turn replaced by ss 37 and 225 of the Criminal
Procedure Act 51 of 1977.
[106] 1914 35 NLR 87.
[107] 1925 TPD 491.
[108] At 534. See also R v B 1933 OPD 139.
[109] 1941 AD 75.
[110] At 82-3. See also Nkosi v Barlow NO en Andere 1984 (3) SA 148 (T); S v Duna and Others 1984 (2) SA 591
(CkS). See generally Labuschagne 1980 TSAR 58; Wigmore para 2265.
[111] 1991 (2) SA 860 (A).
[112] See further ch 17 below.
[113] See S v Binta 1993 (2) SACR 553 (C).
[114] S v Huma and Another (2) 1995 (2) SACR 411 (W) 419. See also S v Maphumulo 1996 (2) SACR 84 (N);
Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W).
[115] Schmerber v California 384 US 757 (1966).
[116] However, some of the American states have legislated against the admission of such evidence. For example,
a South Dakota statute permits a person suspected of driving while intoxicated, to refuse to submit to a bloodalcohol test, but authorises revocation of the driver’s licence of a person who refuses to submit to the test and allows
evidence of the refusal to be admitted into evidence. In South Dakota v Neville 459 US 553 (1983) it was argued
that the admission into evidence of such a refusal infringed the privilege against self-incrimination. The court, in
rejecting this argument, held that a refusal to take such a test after a police officer has lawfully requested it, is not
an act coerced by the officer and is therefore not protected by the privilege against self-incrimination. In Canada, in
terms of the common law a person may refuse to provide a sample of bodily substances; however, this has been
modified by statute and in terms of s 223 of the Criminal Code a person may be required to take a “breath test”.
Refusal to take such a test will constitute an offence. However, this has been held not to violate s 11(c) of the
Canadian Charter which confers the right not to be compelled “to be a witness against oneself”, as it is a privilege
against testimonial compulsion, not against compulsion generally. See Stuart Charter Justice in Canadian Criminal
Law 3 ed (2001) 334. The position of the RSA is that refusal of taking a specimen of blood or breath has for road
traffic law purposes been criminalised. See s 65(9) of the National Road Traffic Act 93 of 1996. The privilege against
self-incrimination would be no valid ground for refusing to provide a blood or breath sample. See further Van der
Merwe in Du Toit et al Commentary 3-28A to 3-29.
[117] Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA).
[118] This reasoning was applied to a handwriting sample in S v Moyo and Others 2014 (1) SACR 82 (GNP).
[119] S v Orrie and Another 2004 (1) SACR 162 (C) at [20].
[120] Minister of Safety and Security and Another v Gaqa 2002 (1) SACR 654 (C).
[121] Minister of Safety and Security and Another v Xaba 2004 (1) SACR 149 (D).
[122] See, eg, S v Britz 1994 (2) SACR 687 (W), where the court held that the fact that the nurse taking the blood
sample had not taken the appropriate sanitary precautions in drawing the blood specimen, was irrelevant to
admissibility.
[123] Supra.
[124] Black J at 774. See Theophilopoulos 2010 SALJ 107.
[125] See S v R and Others 2000 (1) SACR 33 (W), in which Willis J held that any blood test was an invasion of
the right to privacy and the right to bodily security and integrity but that s 35(5) permitted the admission of the
evidence. For further discussion of this case see Schwikkard 2000 SACJ 747-8.
[126] S v Ngwenya and Others 1998 (2) SACR 503 (W) 509. See also S v Zwayi 1997 (2) SACR 772 (Ck); S v
Monyane and Others 2001 (1) SACR 115 (T); S v Thapedi 2002 (1) SACR 598 (T). See also S v Hlalikaya and Others
1997 (1) SACR 613 (SE), where the court held that there was no right to legal representation at a “photo
identification” parade. However, the court in S v Thapedi 2002 (1) SACR 598 (T) referring to US v Wade 228 US 214,
acknowledged that there may well be circumstances in which the right to a fair trial would require that the accused
be represented at an identity parade. See further § 12 9 8 below.
[127] 1998 (2) SACR 642 (W). Cf S v Mphala and Another 1998 (1) SACR 654 (W). See further Van der Merwe
1998 Stellenbosch Law Review 129, where he discusses and compares case law in South Africa, the United States
and Canada.
[128] S v Mhlakaza en Andere 1996 (2) SACR 187 (C). See also S v Mathebula and Another 1997 (1) SACR 10
(W).
[129] S v Botha and Others (2) 1995 (2) SACR 605 (W).
[130] 1999 (2) SACR 51 (CC).
[131] At [17].
[132] S v Nomzaza 1996 (2) SACR 14 (A).
[133] The relevant provisions read as follows: “60(11) Notwithstanding any provision of this Act, where an accused
is charged with an offence referred to — (a) in Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the
interests of justice permit his or her release; (b) in Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained in custody until he of she is dealt with in accordance with the law, unless the accused, having
been given a reasonable opportunity to do so, adduces evidence which satisfied the court that the interests of justice
permit his or her release . . . (14) Notwithstanding anything to the contrary contained in any law, no accused shall,
for the purposes of bail proceedings, have access to any information, record or document relating to the offence in
question, which is contained in, or forms part of, a police docket, including any information, record or document
which is held by any police official charged with the investigation in question, unless the prosecutor otherwise
directs: Provided that this subsection shall not be construed as denying an accused access to any information, record
or document to which he or she may be entitled for purposes of his or her trial.”
[134] 1995 (2) SACR 605 (W) at 611j.
[135] At [94].
[136] See, eg, S v Hoho 1999 (2) SACR 159 (C); S v Snyman 1999 8 BCLR 931 (C). In S v Sejaphale 2000 (1)
SACR 603 (T), Jordaan J held that the failure to advise an accused at bail proceedings in terms of s 60(11B)(c) that
anything he said, might be used against him at his or her trial, rendered the record of the proceedings inadmissible
at subsequent proceedings notwithstanding that the accused was legally represented.
[137] 2007 (1) SACR 566 (CC)
[138] Section 5(8).
[139] At [109].
[140] At [117].
[141] At [119]-[121]. One of the striking themes running through the court’s deliberations is the acceptance that
in determining the admissibility of evidence considerations of trial fairness apply both to the accused and the
prosecution (see for example, [113]).
[142] See S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (“Dlamini”) at
[78] (Kriegler J held that the imposition of an onus on an applicant for bail was not constitutionally objectionable as
the question of erroneous conviction did not arise). Bail is discussed more fully below at § 32 4.
[143] Dlamini (supra) at [11]. See also Geuking v President of the Republic of South Africa and Others 2003 (1)
SACR 404 (CC) at [47] (the court held that ‘‘[a] person facing extradition is not an accused person for the purposes
of the protection afforded by s 35(3) of the Constitution”).
[144] See also Schwikkard Constitutional Law of South Africa 52.16.
[145] See S v Moos 1998 (1) SACR 372 (C); S v Malatji and Another 1998 (2) SACR 622 (W); Mgcina v Regional
Magistrate, Lenasia and Another 1997 (2) SACR 711 (W).
[146] 1998 (1) SACR 343 (C). See also S v Moos 1998 (1) SACR 372 (C); S v Malatji and Another 1998 (2) SACR
622 (W); Mgcina v Regional Magistrate, Lenasia and Another 1997 (2) SACR 711 (W); S v Ramuongiwa 1997 2 BCLR
268 (V).
[147] Where an accused is unrepresented it is well established that presiding officers have a duty to ensure that
the accused is informed of her rights including the right to legal representation and this should be done prior to the
commencement of the trial. This includes a proper explanation of the proceedings and concepts such as crossexamination. (See S v Lekhetho 2002 (2) SACR 13 (O); S v Matladi 2002 (2) SACR 447 (T); S v Njikaza 2002 (2)
SACR 481 (C); S v Mathole and Another 2002 (2) SACR 484 (T); S v Shiburi 2004 (2) SACR 314 (W); S v Ndou 2006
(2) SACR 497 (T); S v Sikhipha 2006 (2) SACR 439 (SCA); S v Radebe; S v Mbonani 1988 (1) SA 191 (T); S v Van
Heerden en Ander Sake 2002 (1) SACR 409 (T); S v Thusi 2002 12 BCLR 1274 (N). This duty is equally applicable in
bail proceedings. See S v Nzima and Another 2001 (2) SACR 354 (C).) Depending on the seriousness and complexity
of the charge, or of the applicable legal rules, an accused should not only be told of his right to legal representation;
he should also be encouraged to exercise it. (See S v Radebe; S v Mbonani supra; S v Manale 2000 (2) SACR 666
(NC); S v Nkondo 2000 (1) SACR 358 (W); S v Makhandela 2007 (2) SACR 620 (W); S v Ndlovu 2001 (1) SACR 204
(W); S v Mbambo 1999 (2) SACR 421 (W); S v Dyani 2004 (2) SACR 365 (E), S v Tshidiso 2002 (1) SACR 207 (W);
S v Thobakgale 2007 (1) SACR 395 (T).) A presiding officer must also ensure that the accused is aware of and
understands his right to legal representation at state expense (see S v Visser 2001 (1) SACR 401 (C); S v Monyane
and Others 2001 (1) SACR 115 (T)) and that his choice not to be represented is an informed one (see S v Solomons
2004 (1) SACR 137 (C)). If an accused who initially declines legal representation subsequently changes his mind he
must be given the opportunity to obtain legal representation (see S v Pitso 2002 (2) SACR 586 (O), S v Balatseng
2005 (2) SACR 28 (B)).
[148] The court held that the evidence could nevertheless be admitted for the purposes of assisting a co-accused
in his cross-examination, but not to prove the truth of the contents thereof.
[149] S v Mbambo 1999 (2) SACR 421 (W). At common law presiding officers are required to advise
unrepresented accused of the right to remain silent and the substantive right to legal representation. In Hlantlalala
and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA), the court chose to decide the matter on the basis
of the common law, and held that the failure to advise the accused of their right to legal representation and their
entitlement to legal representation may in certain circumstances constitute an irregularity resulting in a failure of
justice.
[150] S v Lavhengwa 1996 (2) SACR 453 (W). Cf S v Solomons supra.
[151] S v Williams 2008 (1) SACR 65 (C) at [6].
[152] 2000 (1) SACR 458 (SCA). Cf S v Tshabalala 2011 (1) SACR 497 (GNP).
[153] Lukoto J in S v Nelushi 2006 (1) SACR 462 (V) in considering the judgment of the court a quo on automatic
review, held that the failure to ask the accused whether his plea of guilty in terms of s 112 of the Criminal Procedure
Act had been made freely, voluntarily and without undue influence constituted an irregularity but that in the
circumstances it did not warrant the setting aside of the proceedings. See also S v Seabi and Another 2003 (1) SACR
620 (T); S v Damons and Others 1997 (2) SACR 218 (W). Cf S v Maseko 1996 (2) SACR 91 (W). See also Steytler
Constitutional Criminal Procedure (1998) 341; Schwikkard 1996 SACJ 389 and 1998 SACJ 141.
[154] 2005 (1) SACR 505 (SCA) at [43].
[155] In this case the court was specifically referring to proceedings in terms of s 119 and s 121(1) of the Criminal
Procedure Act 51 of 1977.
[156] S v Evans 1981 (4) SA 52 (C); S v Daniels en ’n Ander 1983 (3) SA 275 (A); S v Mabaso and Another 1990
(3) SA 185 (A); S v Hill 1981 2 PH H152 (C).
[157] See generally Steytler The Undefended Accused (1988) 128.
[158] The South African Law Commission in its Report Simplification of Criminal Procedure (a more inquisitorial
approach to criminal procedure-police questioning, defence disclosure the role of judicial officers and judicial
management of trials) Project 73, August 2002, has recommended that s 115 of the CPA be amended to make
advisement of the accused as to the right to remain silent peremptory. It also recommends removing the court’s
discretion whether to ask the accused whether she wishes to disclose the basis of her defence, making such
questioning compulsory.
[159] See Van der Merwe 1994 Obiter 22. See also generally Grant & Jagwanth 1993 SACJ 329.
[160] The definition of a special offence is to be found in s 18(1), which provides: “If the attorney-general is of the
opinion that an offence with which any person is charged or is to be charged, is an offence in which murder, robbery
with aggravating circumstances, violence or intimidation is involved, that attorney-general may, irrespective of what
the actual charge is, at any time before such person pleads to the charge issue a certificate to the effect that such an
offence is a special offence.”
[161] In terms of s 24(1) of Act 126 of 1992, the President may extend ch V of the Act with the concurrence of
Parliament, for a period of one year at a time.
[162] See also Schwikkard in Chaskelson et al Constitutional Law of South Africa 52-22.
[163] For example, s 65 of the Insolvency Act 24 of 1936; ss 415 and 417 of the Companies Act 61 of 1973; s 66
(1) of the Close Corporations Act 69 of 1984, ss 3, 4, 6, 8 and 9 of the Inspection of Financial Institutions Act 38 of
1984; ss 7, 9 and 17 of the Maintenance and Promotion of Competition Act 96 of 1979; ss 5, 7 and 14 of the
Consumer Affairs (Unfair Business Practices) Act 71 of 1988; s 6 of the Banks Act 94 of 1990; s 51 of the National
Ports Act 12 of 2005.
[164] Park-Ross and Another v Director: Office for Serious Economic Offences 1995 (1) SACR 530 (C); Nel v Le
Roux NO and Others 1996 (1) SACR 572 (CC); Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others 1996 (1) SA 984 (CC).
[165] Mitchell and Another v Hodes and Others NNO 2003 (1) SACR 524 (C). See also Equisec (Pty) Ltd v
Rodriques and Another 1999 (3) SA 113 (W).
[166] In Shaik v Minister of Justice and Constitutional Development and Others 2004 (1) SACR 105 (CC) at [19]
the Constitutional Court held that the reference to ‘‘any person’ in s 28(b) of the National Prosecuting Authority Act
32 of 1998, which permits the Investigating Director to summons any person who is believed to be able to furnish
any information in respect of the commission of a specified offence, did not include an accused who is being tried on
charges covered by the s 28 summons. Cf Thatcher v Minister of Justice and Constitutional Development and Others
2005 (4) SA 543 (C).
[167] See Mohamed NO and Others v National Director of Public Prosecutions and Another 2003 (1) SACR 286
(W). For a fuller discussion of investigative inquiries see Zeffertt, Paizes & Skeen 527 and Schwikkard Presumption of
Innocence (1999) 65-75.
[168] See Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC); 1996 (2) SACR
113 (CC); Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC); Ferreira v Levin (supra); National
Director of Public Prosecutions v Mohamed and Others 2003 (2) SACR 258 (C). See, eg, s 176(4) & (5) of the
Companies Act 71 of 2008 which provides:
“(4) A person questioned by the Commission, the Panel, or an inspector or independent investigator
conducting an investigation must answer each question truthfully and to the best of that person’s ability, but —
(a) a person is not obliged to answer any question if the answer is self-incriminating; and
(b) the person asking the questions must inform that person of the right set out in paragraph (a).
(5) No self-incriminating answer given or statement made by any person to the Commission Panel, or an
inspector or independent investigator exercising powers in terms of this Act will be admissible as evidence
against that person in criminal proceedings against that person instituted in any court, except in criminal
proceedings for perjury or in which that person is tried for an offence contemplated in section 215(2)(e), and
then only to the extent that the answer or statement is relevant to prove the offence charged.”
See also s 179(5) and (6). For a further discussion of derivative evidence see Theophilopoulos “Defining the limits of
the common-law, South African and European privilege against self-incrimination” (2014) 25 Stell LR 160.
[169] Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) at [11]. See also Bernstein (supra); Geuking v President
of the Republic of South Africa and Others 2003 (3) SA 34 (CC).
[170] See, generally, Bishop & Woolman “Freedom and Security of the Person” Constitutional Law of South Africa
Chapter 40. See also Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding
Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) at [43].
[171] Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2003 8 BCLR 891 (T).
[172] Nel (supra).
[173] See also Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC) dealing with ss 417 and
418 of the Companies Act 61 of 1973.
[174] Sections 162–165, 179–181, 187–189, 191 and 204 are applicable to proceedings held in terms of s 205.
Section 205(4) provides that a person who refuses or fails to give information shall not be sentenced to
imprisonment as contemplated in s 189 unless the presiding officer is of the opinion that the furnishing of such
information is necessary for the administration of justice or the maintenance of law and order.
[175] Nel supra at [4].
[176] Ibid at [20].
[177] Ibid at [11]. See also S v Mahlangu 2000 (1) SACR 565 (W).
[178] This common-law rule is reflected in s 201 of the CPA. Although there is no express provision in the CPEA,
by virtue of s 42 the common law applies as it was on 30 May 1961. It should be noted that a restriction is placed on
the privilege by s 201, in terms of which a legal adviser is required to reveal any communications from his client
made “before he was professionally employed or consulted with reference to the defence” of his client.
[179] Heydon & Ockleton Evidence: Cases & Materials 4 ed (1996) 417. The basis and justification for attorneyclient privilege has been the subject of much debate. See Paizes 1989 SALJ 109. At 120 Paizes comments favourably
on the non-utilitarian foundation for professional privilege put forward by Fried, who argues that the identity between
lawyer and client provides the moral foundation for an absolute privilege: “It is not only the client’s lack of legal
knowledge that compels him to make confidential communications to his lawyer. If we regard them as constituting
one conceptual unit then, ex hypothesis, no ‘communication’, as such, has been made. To compel either the lawyer
or the client to disclose what has passed between them would be tantamount to involuntary self-incrimination”. See
generally Unterhalter 1988 SALJ 291; Haysom 1987 De Rebus 697; Kriegler 1991 SALJ 613. The history and
theoretical framework of legal professional privilege are discussed by Van Niekerk, Van der Merwe and Van Wyk
Privilegies in die Bewysreg (1984) 27-44.
[180] 1988 (1) SA 868 (A) 886.
[181] 1983 49 ALR 385 at 442-445. See also Blue Chip Consultants (Pty) Ltd v Shamrock 2002 (3) SA 231 (W).
[182] See also Sasol III (Edms) Bpk v Minister van Wet en Orde en ’n Ander 1991 (3) SA 766 (T); Waymark
Waymark NO v Commercial Union Assurance Co Ltd 1992 (3) SA 779 (Tk). See also generally Allan “Legal Privilege
and the Principle of Fairness in the Criminal Trial” 1987 Crim LR 449.
[183] 2006 (1) SACR 523 (T)
[184] It should be noted that on appeal it was found that there had been no unconstitutional search. Minister of
Safety and Security v Bennett [2007] SCA 139 (RSA). On appeal it was also held that there was no reason why nonprivileged documents seized in terms of a valid search warrant should be regarded as having been seized unlawfully
merely because privileged documents (not covered by the warrant) had also been seized.
[185] At 534h-i.
[186] At 536e-f.
[187] At 535g. See also Klein v Attorney-General, Witwatersrand Local Division, and Another 1995 (2) SACR 210
(W); S v Du Toit en Andere 2004 (1) SACR 341 (T).
[188] Competition Commission v Arcelormittal South Africa Ltd and Others 2013 (5) SA 538 (SCA).
[189] See R v Fouche 1953 (1) SA 440 (W). The requirement of “professional capacity” is fully discussed by Van
Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 53-60.
[190] 1997 (3) SA 93 (T). See also Mohamed v President of the Republic of South Africa and Others 2001 (2) SA
1145 (C) 1151.
[191] [1972] 2 QB All ER 353. See De Villiers 2011 SACJ 42.
[192] 2001 (2) SA 1145 (C) at 1154F-H.
[193] At 1156J.
[194] Danzfuss v Additional Magistrate, Bloemfontein, and Another 1981 (1) SA 115 (O).
[195] R v Fouche 1953 (1) SA 440 (W). However, in Smit & Maritz Attorneys and Another v Lourens NO and
Others 2002 (1) SACR 152 (W) 160g Van Oosten J held that “[t]he mere fact that a file is in an attorney’s possession
does not create legal professional privilege”. A document not compiled for purposes of legal advice, but handed over
to a lawyer, is not privileged. See R v Davies and Another 1956 (3) SA 52 (A).
[196] 1960 (3) SA 393 (D). See also Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1962 (2) SA 408
(C); Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and Marketing and Others 1979 (1)
SA 637 (C); Kelly v Pickering and Another (1) 1980 (2) SA 753 (R).
[197] 2014 (4) SA 549 (WCC).
[198] At [30].
[199] At [31].
[200] Lane and Another NNO v Magistrate, Wynberg 1997 (2) SA 869 (C) 885C.
[201] Competition Commission v Arcelormittal South Africa Ltd and Others 2013 (5) SA 538 (SCA). See for
example, in S v Kearney 1964 (2) SA 495 (A) the director of a company was charged with numerous counts of theft.
The admissibility of a statement that he had made to an attorney acting on behalf of somebody else in a separate
matter was disputed. The court found that this statement was a witness statement and had not been made for the
purpose of seeking legal advice. As the client on whose behalf the attorney was acting had waived attorney-client
privilege, the privilege could not be claimed by the accused.
[202] Paizes in Du Toit et al Commentary at 23-38A.
[203] General Accident, Fire & Life Assurance Corporation Ltd v Goldberg 1912 TPD 494.
[204] R v Smith 1914-1915 All ER 262; Harksen v Attorney-General, Cape, and Others 1999 (1) SA 718 (C). Cf S
v M 2000 (2) SACR 474 (N).
[205] S v Nkata and Others 1990 (4) SA 250 (A); Craig Smith and Associates v Minister of Home Affairs and
Others 2015 1 BCLR 81 (WCC).
[206] Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director, Office for Serious Economic Offences,
and Others 1996 (1) SA 785 (A); Kommissaris Van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051
(SCA).
[207] See Zeffertt & Paizes 682.
[208] See, eg, S v Nkata and Others 1990 (4) SA 250 (A).
[209] 1977 (2) SA 829 (A).
[210] General Accident, Fire and Life Assurance Corporation Ltd supra. See also Potter v South British Insurance
Co Ltd and Another 1963 (3) SA 5 (W); Bagwandeen and Others v City of Pietermaritzburg 1977 (3) SA 727 (N);
Tshikomba v Mutual & Federal Insurance Co Ltd 1995 (2) SA 124 (T).
[211] Supra.
[212] At 504.
[213] See S v Mnyaka and Others 1990 (4) SA 299 (SE).
[214] Andresen v Minister of Justice 1954 (2) SA 473 (W); Mandela v Minister of Prisons 1983 (1) SA 938 (A). See
also generally Haysom 1981 SACC 176; Cameron & Van Zyl Smit 1983 ASSAL 521; Unterhalter 1986 SAJHR 312
328.
[215] Supra.
[216] 1996 (1) SA 785 (A). See also Sasol III (Edms) Bpk v Minister van Wet en Orde en ’n Ander 1991 (3) SA
766 (T).
[217] However, the claim of privilege failed as it had not been claimed in the interests of the client but in the
appellants’ (who were attorneys) own interest. See also Momoniat v Minister of Law and Order and Others; Naidoo
and Others v Minister of Law and Order and Others 1986 (2) SA 264 (W).
[218] Lenz Township Co (Pty) Ltd v Munnick and Others 1959 (4) SA 567 (T) 574G-H. See also Van der Linde v
Calitz 1967 (2) SA 239 (A) 257F-G; Mohamed v President of the Republic of South Africa and Others 2001 (2) SA
1145 (C).
[219] 1998 (4) SA 296 (T).
[220] At 302F. See also n 39 in § 11 1 3 below.
[221] 2011 (2) SA 1 (SCA).
[222] At [52].
[223] A Company and Others v Commissioner, South African Revenue Service 2014 (4) SA 549 (WCC) at [38] and
[39].
[224] Mohamed supra 1159H-I. See also § 11 3 2 below.
[225] Klein v Attorney-General, Witwatersrand Local Division, and Another 1995 (2) SACR 210 (W). See also S v
Nkata and Others 1990 (4) SA 250 (A); S v Mushimba en Andere 1977 (2) SA 829 (A).
[226] 1995 (2) SA 433 (SE).
[227] Section 23 of the Interim Constitution.
[228] In terms of s 33(1) of the Interim Constitution.
[229] At 453C-457B.
[230] See Van Niekerk v Pretoria City Council 1997 (3) SA 839 (A). Cf Qozeleni v Minister of Law and Order and
Another 1994 (3) SA 625 (E); Mohamed v President of the Republic of South Africa and Others 2001 (2) SA 1145
(C).
[231] 1988 (1) SA 868 (A).
[232] At 887A-B.
[233] See, eg, Brits v Van Heerden 2001 (3) SA 257 (C) at 265.
[234] 1965 (4) SA 507 (A) 514. See also generally S v Fourie en ’n Ander 1972 (1) SA 341 (T); Msimang v Durban
City Council and Others 1972 (4) SA 333 (D) 338F; Kommissaris Van Binnelandse Inkomste v Van der Heever 1999
(3) SA 1051 (SCA).
[235] 2008 (1) SACR 613 (SCA).
[236] At [18]. Avontuur & Associates Inc and Another v Chief Magistrate, Oudtshoorn, and Others 2013 (1) SACR
615 (WCC) at [31]-[34].
[237] See also S v Boesman and Others 1990 (2) SACR 389 (E); Peacock v SA Eagle Insurance Co Ltd 1991 (1) SA
589 (C). See also S v Nhlapo and Others 1988 (3) SA 481 (T), in which, following the defence’s express waiver in
respect of one page of a statement, the court held that there had been an implied waiver of the document. See
Unterhalter 1988 ASSAL 449 for a criticism of this decision; Harksen v Attorney-General, Cape, and Others 1999 (1)
SA 718 (C) at 732H; Laws v Rutherfurd 1924 AD 261 and Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A).
[238] Wigmore para 2328.
[239] At paras 19 & 20.
[240] See Ex Parte Minister van Justisie: In Re S v Wagner supra.
[241] Van den Berg en ’n Ander v Streeklanddros, Vanderbijlpark en Andere 1985 (3) SA 960 (T); S v Tshomi and
Another 1983 (1) SA 1159 (C).
[242] Van den Berg v Streeklanddros, Vanderbijlpark supra. See further § 24 3 below.
[243] See S v Tshomi en ’n Ander supra; S v Toka en Andere 1990 (2) SACR 225 (T).
[244] See, eg, Trust Sentrum (Kaapstad) (Edms) Bpk and Another v Zevenberg and Another 1989 (1) SA 145 (C).
[245] Section 236(4) of the CPA; s 31 of the CPEA.
[246] Botha v Botha 1972 (2) SA 559 (N); Davis v Additional Magistrate, Johannesburg, and Others 1989 (4) SA
299 (W).
[247] See ss 77, 78 and 79 of the CPA, and especially s 79(7).
[248] Smit v Van Niekerk, NO en ’n Ander 1976 (4) SA 293 (A); S v B and Another 1980 (2) SA 946 (A). See Van
der Vyver 1977 THRHR 217. See Freedman 1997 SACJ 74 who argues that the Constitution requires a broader
recognition of the categories of privileged communications. See also Van Dokkum 1996 SACJ 14. See also S v
Bierman 2002 (2) SACR 219 (CC) in which the Constitutional Court left the question open; and S v Mshumpa and
Another 2008 (1) SACR 126 (E) at 136a-e.
[249] Howe v Mabuya 1961 (2) SA 635 (N).
[250] Chantrey Martin v Martin 1953 2 All ER 691.
[251] The State v Pogrund 1961 (3) SA 868 (T); S v Cornelissen; Cornelissen v Zeelie NO en Andere 1994 (2)
SACR 41 (W), in which the court, whilst holding that there was no legally recognised privilege giving journalists
immunity from testifying, held that in the circumstances of the case the journalist had a just excuse for not
testifying. In Munusamy v Hefer NO and Others (Freedom of Expression Institute and Others as Amici Curiae) 2004
(5) SA 112 (O) the court held that Cornelissen’s case should not be interpreted as authority for the view that
journalists have the right only to be called as witnesses of the last resort.
[252] See Cornelissen supra.
[253] 2013 (2) SA 570 (GSJ). See also South African Broadcasting Corporation v Avusa Ltd and Another 2010 (1)
SA 280 (GSJ) at [30]-[31]; Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007
(5) SA 540 (SCA) [6]; Government of the Republic of South Africa v “Sunday Times” Newspaper and Another 1995
(2) SA 221 (T) at 227I-228A.
[254] Section 36 of the Constitution.
[255] Wigmore para 2285.
[256] Tapper Cross & Tapper on Evidence (2007) 499.
[257] See s 198 of the CPA and s 10 of the CPEA. A marriage includes an indigenous law marriage as well as a
marriage concluded under any system of religious law. See s 195(2) of the CPA and s 10A of the CPEA. See also
§ 22 11 2 below.
[258] Zeffertt & Paizes 707.
[259] See s 198(2) of the CPA and s 10(2) of the CPEA. However, widows or widowers cannot claim the privilege.
[260] Zeffertt & Paizes 707 state: “It has been suggested that the privilege not to answer questions which tend to
incriminate the other spouse must be regarded as excluded by implication in those cases in which one spouse is a
compellable witness in a prosecution against the other.”
[261] See Rumping v DPP 1962 3 All ER 256 (HL).
[262] Section 14 of the Interim Constitution. See generally S v Hammer and Others 1994 (2) SACR 496 (C).
[263] Read together with s 206 of the CPA.
[264] 1993 (2) SACR 487 (A). See also S v Manuel en Andere 1997 (2) SACR 505 (C) in which the court stressed
the importance of parental assistance; S v N 1997 (1) SACR 84 (Tk).
[265] In re A & M 61 AD 2d 426; 403 NYS 2d 375 (1978); People v Fitzgerald 101 Misc 2d 712; 422 NYS 2d 309.
[266] See Fourie 2008 SACJ 259; Van Dokkum 1994 SACJ 213. Article 2(21) of the African National Congress’
draft Bill of Rights gave recognition to parent-child privilege. See also S v Hammer and Others 1994 (2) SACR 496
(C), in which an 18-year-old accused, whilst in police custody, after receiving permission to write a letter to his
mother, asked a member of the South African Police Service to deliver the letter to his mother. The policeman,
instead of delivering the letter, read it and handed it over to the prosecution. Although the court did not base its
decision on the constitutional right to privacy, it found the evidence to be inadmissible in that it had been improperly
obtained. The court found that the policeman had in all probability committed an injuria against the accused, that he
had acted unlawfully and immorally in reading and handing the letter over to the Attorney-General, and that this was
a serious and deliberate breach of the accused’s common-law right to privacy. The court concluded that the evidence
was to be excluded as it had been unfairly obtained and to admit it would bring the administration of justice into
disrepute. This case should also be read in the context of ch 12 below. More specifically, see § 12 7 below.
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Chapter 11
State Privilege (Public Interest Immunity)
S E van der Merwe
11 1
11 2
11 3
11 4
11 5
[*]
Introduction
11 1 1 Terminology
11 1 2 The differences between public and private privilege
11 1 3 Development of the English common law
State Privilege Prior to Constitutionalisation
11 2 1 The decision in Van der Linde v Calitz
11 2 2 Legislative interference (1969 to 1996)
State Privilege after Constitutionalisation
11 3 1 Impact of constitutional provisions
11 3 2 The balancing exercise
The Detection of Crime
11 4 1 Communications tending to expose the methods used to investigate crimes
11 4 2 Communications tending to reveal the identity of an informer
11 4 3 Extension of the informer’s privilege
11 4 4 The constitutionality of the informer’s privilege
11 4 5 Examples of statutes that exclude evidence of the identity of persons who
have a statutory duty to report
11 4 5 1
Section 38(3) of the Financial Intelligence Centre Act 38 of 2001
(FICA)
11 4 5 2
Section 17(9) of the Protection of Constitutional Democracy
against Terrorist and Related Activities Act 33 of 2004
The Police Docket and Constitutional Provisions
11 5 1 Access for purposes of trial
11 5 1 1
Disclosure of contents not the equivalent of further particulars
to the charge
11 5 1 2
Information which only becomes available after commencement
of the trial
11 5 1 3
The position of the undefended accused
11 5 1 4
Position of suspects
11 5 1 5
Further procedural and evidential matters
11 5 1 6
Cross-examination on the basis of the state witness’ statement
11 5 1 7
Abolition of the blanket docket privilege: defence interviews
with (potential) state witnesses
11 5 2 Access for purposes of a bail application
11 5 2 1
Constitutional validity of s 60(14) of the CPA
11 5 2 2
Duty and power of court to order state to disclose
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11 6
11 5 2 3
Sections 60(14) and 335 of the CPA
11 5 2 4
Ethical duty of prosecutor
The Promotion of Access to Information Act 2 of 2000
11 6 1
11 6 2
The PAIA and mandatory protection of records privileged from production in
legal proceedings
Non-applicability of the PAIA to records required for criminal or civil
proceedings after commencement of such proceedings
11 1 Introduction
Relevant and otherwise admissible evidence may be withheld or excluded on the ground that
its production or admission would be against public policy [1] or harmful to the public
interest. [2] This rule — which is usually applied to documents but which can also cover real
and oral evidence — is an English common-law rule. It has found its way into the AngloSouth African law of evidence on account of early local statutory references to the law as
applied in the “Supreme Court of Judicature in England”. [3] These references were replaced
by “thirtieth day of May 1961” provisions currently contained in s 202 of the CPA [4] and s 42
of the CPEA. [5]
A good example of the application of the common-law rule is found in Duncan v Cammell
Laird & Co Ltd [6] which was decided in 1942. This case involved an action for personal
damages after a submarine, Thetis, had sunk during trials. Negligence was alleged. The
plaintiff sought discovery of certain documents which would have disclosed the design of a
new submarine and which related to contracts between the defendants and the admiralty.
The admiralty resisted, claiming that disclosure would be harmful to the public interest in
that national security was at stake. The House of Lords held that disclosure would be
harmful to the public interest. Although the procedure approved by the House of Lords in
deciding the issue has been criticised, [7] it is generally accepted that a finding in favour of
non-disclosure would at any rate
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have been correct. [8] Disclosure could have resulted in assisting the nation’s enemies in
understanding the design of a new submarine — and the United Kingdom was at that time
engaged in a perilous war. Cases like Duncan illustrate the need for the existence of the rule
under discussion. [9] In the extreme circumstances which existed in Duncan, the public
interest that a court should uphold — and a litigant should be entitled to rely upon — “the
principle of unimpeded access to information”, [10] is obviously outweighed by the public
interest that national security should not be endangered in times of war.
Public interest is the controlling factor, [11] and much would depend on the factual
circumstances. It has been said — with reference to the facts in the Duncan case — that “the
public interest in the security even of such pieces of information is ephemeral and could
hardly prevail once the campaign had been fought, or the design of the submarine become
common knowledge”. [12]
At first glance it might seem as if there could be an extremely wide variety of situations
where public interest might demand exclusion. However, over the past 50 years courts have
for obvious reasons succeeded in restricting the application of this privilege. For purposes of
this chapter, only the following areas of application will be emphasised: matters concerning
affairs (see §§ 11 2 to 11 3 2 below); protection of police methods of investigation
|state
(see § 11 4 1 below); the informer’s privilege (see §§ 11 4 2 to 11 4 4 below); and access to
information in police dockets (see §§ 11 5 to 11 5 1 7 below).
11 1 1 Terminology
Exclusion on account of public interest was for many years referred to as “crown privilege”
and became known as “state privilege” when South Africa became a Republic. The use of the
word “crown” (or “state” as the case may be) calls to mind that “much of the law relating to
public
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interest immunity was developed by the courts in cases concerned with the highest affairs of
state, such as national security, state secrets in times of war and matters of great diplomatic
importance; [13] and in these instances “most claims to the immunity were made on behalf of
central government by ministers of the Crown”. [14] However, over the past three decades
the English courts [15] and authors [16] have for various reasons preferred to refer to “public
interest immunity” rather than “crown privilege”: the public interest to be protected is not
confined to the crown “in the sense of the executive or local government [and] may be an
interest in the work of local authorities or non-governmental bodies”; [17] the crown need not
be a party to the case; and the rule, it has often been claimed, is not a privilege in the true
sense of the word. In Makanjuola v Commissioner of Police of the Metropolis Bingham LJ
said: [18]
“Where a litigant asserts that documents are immune from production or disclosure on public interest
grounds he is not (if the claim is well founded) claiming a right but observing a duty. Public interest
immunity is not a trump card vouchsafed to certain players to play when and as they wish. It is an
exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage
in the litigation.”
The above approach explains why it is generally accepted that waiver is not possible where
the public interest demands exclusion. It also explains why the court must — in the absence
of any claim — raise the matter of its own accord. [19]
In South Africa it remains customary to refer to the rule of exclusion on account of public
interest, as a “privilege”. However, it is possible that this term would, for purposes of the
constitutionally required balancing exercise as set out in § 11 3 2 below, simply disappear.
Schmidt and Rademeyer also use the term “openbare privilegie” (‘public privilege’) but
acknowledge that this privilege requires, on questions concerning waiver and the use of
secondary evidence, an approach fundamentally different from that which prevails in respect
of private privilege. [20] The real and perceived differences between public and private
privilege are dealt with in § 11 1 2 below. If these distinctions are borne in mind, the use of
the concept “public privilege” is acceptable.
11 1 2 The differences between public and private privilege
These differences were also briefly referred to in § 10 1 above. As a general principle, it may
be said that public privilege exists where the public interest in non-disclosure outweighs the
public interest that the administration of justice
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should not be hampered. This general principle also applies to those categories of private
privilege which were identified in the previous chapter: there are certain private interests
which should in the public interest prevail over the principle that there should in the public
interest be disclosure of and access to all relevant information for purposes of litigation. It
has been said, for example, that “public interest is . . . served” by legal professional
privilege [21] and that the protection of public interest forms the basis of public as well as
private privileges. [22] However, this common basis should not blur the following fundamental
differences which exist between public and private privileges:
(a) Secondary or circumstantial evidence is admissible to prove a matter protected in
terms of private privilege. [23] But such evidence is generally inadmissible in respect of
public privilege. [24] This means, for example, that where documents are in the public
interest protected from disclosure in order to protect the safety of the state, a party
would not be permitted to adduce copies of such documents or oral evidence pertaining
to the contents of such documents. [25] Nor would it be permissible to use such a
document for purposes of cross-examination.
(b)
(c)
A party to whom a private privilege attaches, may waive the privilege provided he or
she does so voluntarily, knowingly and intelligently. [26] However, in respect of a public
privilege like state privilege which involves, for example, documents relating to
national defence or diplomatic relations, it would seem as if a valid waiver is possible
only on the clear authority of the ministerial head of the government department
concerned. [27]
Private privilege must be claimed by the holder thereof. The court may not claim the
privilege on behalf of the holder. [28] The court must, however, ensure that the holder is
aware of his or her private privilege, for example, the privilege against selfincrimination [29] or marital privilege. In respect of public privilege the court may in
appropriate circumstances uphold the privilege mero motu, [30] for example, on issues
concerning national security [31] or where the informer’s privilege comes into play. [32]
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11 1 3 Development of the English common law
Much of the historical development of exclusion on grounds of public interest immunity
concerned the following issue: is the executive’s claim that information attracts nondisclosure on account of public interest final in the sense that, if it is made in proper form,
the court has no discretion to order disclosure?
As early as 1860 the English courts were inclined to accept that the executive had the
final say not only in all matters affecting the security of the state, but also in non-security
matters like cabinet minutes and even documents which merely related to the proper
functioning of the public service. [33] This approach culminated in 1942 in Duncan v Cammell
Laird & Co Ltd (as discussed in § 11 1 above) where the House of Lords unanimously held
that a court could never question the crown’s claim to (what was then known as) crown
privilege if such claim was made in proper form. This rule, it was held, applied to the
contents of individual documents (so-called “contents claims”) as well as classes of
documents (so called “class claims”). [34] Despite severe criticism of and judicial
dissatisfaction with this rule which effectively ousted the court’s jurisdiction, it was only in
1968 in the decision in Conway v Rimmer that the House of Lords reasserted judicial control
over the exclusion of evidence on the ground of state privilege. [35] Conway v Rimmer did not
concern national safety or defence secrets or other high-level affairs of state, but certainly
established the principle that absolute judicial submission or deference to the view of the
executive on matters relating to public interest immunity was unacceptable.
The present position in England is that there are no classes of documents, relating to
high-level affairs of state, which are absolutely immune from production. [36] The court may
inspect a document in private. [37] However, in Balfour v Foreign Office it was said that once
an actual or potential risk to national safety is demonstrated by a certificate in proper form,
the court should not exercise its right to inspect. [38] Dennis takes a critical view of this
approach:
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“This goes too far; where the applicant can show convincingly that the document would
materially assist his case the court should be prepared to consider inspection, since it might
be possible to order partial disclosure, or restricted disclosure to the applicant’s legal
advisers.” [39]
11 2 State Privilege Prior to Constitutionalisation
11 2 1 The decision in Van der Linde v Calitz
[40]
In this case (decided in 1967) the South African Appellate Division broke away from the
1942 decision Duncan v Cammell Laird & Co Ltd (see § 11 1 3 above) in which the House of
Lords had decided that ministerial objection, if taken in proper form, was final and binding.
Despite the fact the Appellate Division was technically required, by the 30 May 1961
provision, to have followed Duncan, [41] it gave preference to the 1931 Privy Council decision
Robinson v State of South Australia (No 2) [42] in which it was held that courts had a residual
power to determine — at least in class claims — whether executive objection had to be
upheld. The Appellate Division decision in Van der Linde was vindicated by the House of
Lords in Conway v Rimmer (as discussed in § 11 1 3 above) in which judicial control over
executive objection concerning non-security matters was reasserted. According to Mathews
“the common law in England and South Africa was in the process of freeing itself from the
deadening grip of . . . Duncan . . .” [43] But in South Africa this healthy development was
brought to an abrupt end by legislation.
11 2 2 Legislative interference (1969 to 1996)
Van der Linde’s case theoretically opened the door for a future finding that courts should
also have the final say in matters affecting national security. However, s 29 of the General
Law Amendment Act 101 of 1969 effectively reversed Van der Linde by bestowing on the
executive “an absolute and unquestionable power” [44] to withhold evidence from a court of
law if in the opinion of the executive the disclosure of such evidence was “prejudicial to the
interests of the State or public security”. [45] No reasons were required and the executive’s
certificate, if presented in proper form by the appropriate minister or official, was conclusive.
Academic and judicial protest followed. [46] And after the decision in Geldenhuys v
Pretorius [47]
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and the appointment of a commission of enquiry, [48] s 29 of Act 101 of 1969 was amended
by s 25 of the General Law Amendment Act 102 of 1972. This amendment ousted the
jurisdiction of the courts only where prejudice to national security formed the basis of an
assertion of state privilege by the executive. In 1982 the 1972 amendment was replaced by
s 66 of the Internal Security Act 74 of 1982. [49] This section re-affirmed that the executive
had the final say on matters affecting the security of the state, [50] whereas in non-security
cases the courts retained their jurisdiction. [51] Section 66 of Act 74 of 1982 was repealed on
15 November 1996. [52]
11 3 State Privilege after Constitutionalisation
11 3 1 Impact of constitutional provisions
The repeal of s 66 of the Internal Security Act 74 of 1982 came in the wake of the Interim
Constitution and some six months before the final Constitution came into operation. Section
66(1) which ousted the courts’ jurisdiction on matters affecting state security, would in the
light of the following constitutional provisions not have withstood constitutional scrutiny: [53]
s 165 which vests the judicial authority in the courts and which confirms, in principle, that a
separation of powers [54] cannot tolerate a situation where the executive can have the final
say in matters concerning the admissibility of evidence in courts of law; s 32 which provides
for the right of access to information held by the state; [55] s 34 which provides for access to
courts and a fair hearing; and s 35(3)(i) which provides that “[e]very accused person has a
right to a fair trial . . . which includes the right to adduce . . . evidence.”
11 3 2 The balancing exercise
On the basis of the Constitutional rights and principles identified in § 11 3 1 above and some
cases decided since 1994, it
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would appear that the traditional state privilege [56] claims must now be dealt with in terms
of a broad balancing exercise which demands a consideration of [57]
“. . . all germane factors which include the nature of the proceedings; the extent and character of the
materials sought to be kept confidential; the connection of the information to national security; the
grounds advanced for claiming disclosure or for refusing it; whether the information is already in the
public domain and if so, in what circumstances it reached the public domain; for how long and to what
extent it has been in the public domain; and finally, the impact of the disclosure or non-disclosure on
the ultimate fairness of the proceedings before a court”.
The test is whether disclosure, or non-disclosure, would be in the interests of justice when
two or more competing claims are assessed. In a matter dealt with by the Constitutional
Court, the competing claims identified were the right to open justice (disclosure) and the
constitutionally based “power and duty of the executive to make and implement national
security” for the well-being of the people (non-disclosure). [58] The court is entitled to
examine the evidence to establish the extent to which the interests of justice are affected.
This means that the jurisdiction of the court is not ousted and that the court is not bound by
the ipse dixit of the cabinet minister concerned or any bureaucrat like the director-general of
a state department. The Constitutional Court seems to accept that there should be no onus.
The court is entitled to a “judicial peek,” [59] that is, to examine the documents concerned
and to do so regardless of any possible classification such as “national security”, “diplomatic
relations” or “cabinet minutes” (see § 11 1 3 above).
It is submitted that a further principle of procedure should be added to the ones identified
above: a court which has inspected a document in private (the so-called “judicial peek”),
should, where appropriate, consider partial disclosure of the contents thereof [60] —
especially where such partial disclosure creates no distortion and can still effectively protect
that which in the opinion of the court cannot on account of public interest be disclosed. [61]
Of ultimate and crucial importance, is the fact that courts of law should have the final
say. [62] In his critical analysis of the repealed legislation referred to in § 11 2 2 above,
Mathews stated: [63]
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“The vital interests that are at issue in state privilege cases make it important that the resolution of
the conflict between the state, when it asserts privilege, and a litigant who seeks access to the
officially withheld information, should be under the control of independent courts . . . [T]hese
interests transcend those of the nominal parties to the dispute and their importance demands a
judicious weighing-up of the respective claims of each in the context of relevant facts. The courts are
best equipped to balance the conflicting interests in a dispassionate and fair-minded way and to
decide in particular which interest should prevail.”
11 4 The Detection of Crime
In order to promote efficient detection of crime a privilege has arisen to protect
communications which would reveal the identity of an informer or otherwise expose the
channels of communication in the investigation of a crime, such as communications between
officials in the course of an investigation. This privilege, being an aspect of state privilege, is
governed by s 202 of the CPA, and accordingly rests for its authority on English law. The
rationale underlying this principle is reflected by the remarks of Solomon J: “The whole
business of crime is conducted in secret and devious ways against the interests of the state,
and the work of defeating the operations of criminals must also be conducted, obviously, by
similar methods.” [64]
11 4 1 Communications tending to expose the methods used to
investigate crimes [65]
In R v Abelson [66] the accused was charged with contravening a Liquor Act. He called as a
witness the divisional criminal investigation officer for the Witwatersrand, who, when asked
to produce certain reports made to him by two detectives concerning the charges, refused
on the ground that such reports were confidential. The court upheld the claim of privilege,
holding that the disclosure of the evidence would be contrary to public policy as it would lay
bare to the public the methods used by the police to control the liquor traffic. And in The
State v Peake, [67] where the police had used a tape recorder to record a conversation, the
court disallowed cross-examination relating to the manner in which the recording had been
obtained, even though the recording itself was admissible evidence. Of course, in our
present constitutionalized system courts will have to be careful to ensure that any claim to
privilege concerning methods of investigation is not merely an attempt to cover up the fact
that evidence was unconstitutionally obtained. Evidence of conversations which
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were unlawfully recorded (and thus in breach of the right to privacy) might have to be
excluded in terms of s 35(5) of the Constitution. [68]
11 4 2 Communications tending to reveal the identity of an informer
[69]
There are at least three reasons for the so-called “informer’s privilege”: (a) to protect the
informer and his family from those against whom he informs; (b) to ensure that the informer
can be used in future; and (c) to encourage the public to come forward with information
about crimes. The rule, accordingly, is that no question may be asked and no document may
be received in evidence that would tend to reveal the identity of an informer or the content
of the information supplied by him, and there is a duty on the court to ensure that this
privilege is upheld regardless of whether or not the parties to the litigation claim it. [70]
After a period in our law when, owing to different procedures regarding prosecutions in
South Africa and England, our courts adopted a more stringent practice of exclusion, it was
settled in Ex Parte Minister of Justice: In Re Rex v Pillay and Others that the privilege should
only operate [71]
“. . . when public policy requires the name of the informer or his information to be kept secret,
because of some confidential relationship between the state and the informer, or because the state
desires its sources of information to be kept secret for the reason that the informer’s information
relates to matters in respect of which he might not inform if he were not protected, or for the reason
that the candour and completeness of his communications might be prejudiced if he were not
protected, or for some other good reason. To give a comprehensive definition which will include all
such cases would be impossible.”
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The Chief Justice then gave examples of instances where the rule could appropriately be
relaxed: (a) when it is material to the ends of justice; (b) if it is necessary or right to do so
to show the accused’s innocence; and (c) when the reason for secrecy no longer exists, for
example, when the identity of the informer is known. [72]
It seems to have been a subject of controversy in our law whether this privilege may be
waived, and, if it can, in what circumstances. It has been held that the protection afforded
an informer is a matter of public policy and cannot be waived. [73] This view was also taken
by the court in Natal Fertilizers Ltd v Van Dam, [74] where Dove-Wilson JP held that the
privilege would be upheld even if the informer were willing to divulge his identity in the
witness-box; he would “be protected in spite of himself”. And again, in Robinson v Benson &
Simpson [75] the court emphasised that as the privilege did not pertain to the witness who
was called, but rested on public policy, the court was “absolutely prohibited” from allowing
such information to be disclosed. These views were, however, rejected by the Appellate
Division in Rex v Van Schalkwyk, [76] where Stratford CJ approved the following approach laid
down by Tatham J in R v Harris: [77]
“The rule protecting an informer is based upon the theory that public policy requires his protection,
because otherwise persons would be discouraged from giving information, but it is difficult to see how
public policy is served by prohibiting him from himself disclosing the fact, indeed public interests
would be ill-served in many cases if there were any such rule.”
An important qualification to this principle was added, however, by Tatham J and endorsed
in Rex v Van Schalkwyk: [78] if the dictates of public policy would require that the identity of
the informer be kept secret, then, provided this is shown by the state, such evidence should
be excluded notwithstanding the informer’s willingness to disclose his identity. [79]
The informer’s privilege should as a rule also apply for purposes of any civil action which
might stem from the police investigation. In
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Els v Minister of Safety and Security — where the applicant sought disclosure of an
informer’s identity for purposes of instituting a civil action — Kriek JP, in refusing the
application on several grounds, said: [80]
“The effect of obliging the police to reveal the identity of the informer in this case will probably have
far-reaching effects. I accept that there will be cases in which it will be in the public interest or in the
interests of justice to order the disclosure of the identity of an informer, but I consider that such
orders should not be made lightly. The informer system is one of the corner-stones of the battle
against organized crime, and when the identity of one informer is made known, other informers, or
would be informers . . . will desist from informing or reconsider their positions as informers, not only
to avoid retaliatory action, but also to avoid civil actions being instituted against them.”
The constitutionality of the informer’s privilege in civil and criminal cases is discussed in
§ 11 4 4 below.
11 4 3 Extension of the informer’s privilege
In the English case Blake and Austin v Director of Public Prosecutions [81] the accused were
convicted of indecent behaviour in a church yard in contravention of s 2 of Ecclesiastical
Courts Jurisdiction Act of 1860. Two police officers had observed the activities of the accused
from an observation post in neighbouring domestic premises. The court held that there was
no reason why the precise location from which the observation had been made had to be
disclosed: there is no essential difference between informers and the providers of
observations posts, who both in different ways provide the police with indispensable
assistance in the prevention of crime. There does not seem to be any South African decision
on this very point. There is, however, ample English authority to support the decision in
Blake and Austin v Director of Public Prosecutions. [82]
It is submitted that these decisions should be followed in South Africa. After all, it is
nothing else but the practical combination of the informer’s privilege and the privilege which
relates to police methods of investigation (see § 11 4 1 above).
11 4 4 The constitutionality of the informer’s privilege
[83]
In McCray v Illinois [84] an informer gave three police officers information that someone (M)
was dealing in drugs. The informer accompanied the police in their vehicle to a street where
M was talking to people. The informer pointed
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out M and then left on foot. When M spotted the police vehicle he hurriedly disappeared
between two buildings. Two of the officers promptly arrested M on the basis that they had
probable cause for an arrest and search without a warrant. The informer concerned was
known to them as someone who had always furnished them with accurate information on
drug dealers. Heroin was found on M. At a preliminary hearing defence counsel asked each
of the officers to disclose the identity of the informer. In both instances the prosecution
objected successfully. M eventually took the matter to the Supreme Court of the United
States, claiming that his constitutional right to due process had been violated and that he
was given no opportunity to confront and cross-examine the informer. The Supreme Court
rejected M’s argument and pointed out that there was no due process violation if the police
had made the arrest and search in reliance upon facts furnished by an informer whom they
had reason to trust: nothing in due process requires that a court must assume that the
police were committing perjury. The informer was not a material witness. The Supreme
Court distinguished M’s case from Roviaro v United States, [85] which was decided a decade
earlier. In the latter case the Supreme Court had confirmed that there could be no fixed rule
as regards disclosure of the identity of an informer. A balance must be struck between the
public interest and the right of the individual to prepare and present his defence. In Roviaro
v United States Burton J held that where the disclosure of the informer’s identity or
disclosure of the contents of his communications is relevant and helpful to the accused, the
privilege must be lifted. On the facts in Roviaro v United States it was held that the trial
court had erred in refusing disclosure of the identity of the informer concerned. The informer
was with the accused when the alleged crime was committed and could have been a material
witness on the issue whether the accused had knowingly transported the drugs as charged.
The above two cases make it clear that the informer’s privilege per se is not
unconstitutional, [86] but that the constitutional right to a fair trial must be considered in
deciding whether the privilege must give way. It is submitted that this approach not merely
confirms but also expands the common-law principles which govern the relaxation of the
informer’s privilege and which were set out in § 11 4 2 above. It is also submitted that the
broader impact of the Constitution on the informer’s privilege was correctly put by Kriek JP
in Els v Minister of Safety and Security where he said that [87]
“the advent of the new Constitution should not, in the public interest, have the effect of watering
down the informer privilege to any significant extent, even though it does vest in the courts a wider
discretion to enforce disclosure of the identity of informers than they previously had . . . [E]ven
though appellant denies . . . ever having possessed counterfeit money there is nothing in the papers
to suggest that the informer was ‘mendacious and malicious’, or that the police had any reason to
suspect that he was . . . In any event, the opportunity which the applicant will have of exercising and
protecting his rights, and of being awarded damages (which he may or may not recover) if the
identity of the informer is
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disclosed, cannot in my view be of greater public importance than the protection, insofar as is legally
permissible, of the privilege attaching to informers, and this, in my view, is a case in which it ought to
be protected.”
11 4 5 Examples of statutes that exclude evidence of the identity of
persons who have a statutory duty to report
11 4 5 1 Section 38(3) of the Financial Intelligence Centre Act 38 of 2001 (FICA)
This subsection provides as follows:
“No evidence concerning the identity of a person who has made, initiated or contributed to a report in
terms of sections 28, 29 or 31 or who has furnished additional information concerning such a report or
the grounds for such a report in terms of a provision of this Part, or the contents or nature of such
additional information or grounds, is admissible as evidence in criminal proceedings unless that
person testifies at those proceedings.”
The sections referred to in 38(3) of FICA cover the following financial activities: cash
transactions above prescribed limit (s 28); suspicious and unusual transactions (s 29) and
conveyance of cash to or from South Africa (s 31). It should be noted that protection of
identity is in terms of s 38(3) confined to criminal proceedings and also ceases to exist
should the person concerned testify at these proceedings. However, s 38(2) of FICA also
provides that the person concerned “is competent, but not compellable, to give evidence in
criminal proceedings arising from the report” (see also n 7 to § 22 2 below).
11 4 5 2 Section 17(9) of the Protection of Constitutional Democracy against
Terrorist and Related Activities Act 33 of 2004
This subsection provides as follows:
“No evidence concerning the identity of a person who has made, initiated or contributed to a report in
terms of section 12(1) concerning a suspicion that any other person intends to commit or has
committed an offence referred to in section 4, is admissible as evidence in criminal proceedings unless
that person testifies at those proceedings.”
Section 4 of Act 33 of 2004 creates offences connected with financing of certain offences.
And s 12(1) requires an individual to report certain criminal conduct as identified in the Act.
In terms of s 17(9) the protection of identity only applies for purposes of criminal
proceedings and falls away should the individual be a witness at such proceedings. However,
the individual concerned is in terms of s 17(8) a competent but not compellable witness (see
n 7 to § 22 2 below).
11 5 The Police Docket and Constitutional Provisions
11 5 1 Access for purposes of trial
Prior to constitutionalization it was generally accepted that the state had some kind of
“blanket docket privilege” in terms of which statements obtained for purposes of a criminal
trial were as a
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rule privileged from disclosure [88] in much the same way as parties in a civil dispute can
claim privilege in respect of statements obtained from their respective witnesses. [89]
The prosecution’s so-called docket privilege which, as will be shown, has now shrunk
drastically on account of constitutional provisions was and is not really part of “state
privilege” in the true sense of the word. In this work, however, it is dealt with in the context
of state privilege because matters which fall under state privilege (the informer’s privilege,
state secrets, police methods of investigation) are now for all practical purposes the main
(but most certainly not sole) grounds upon which the state can seek to withhold statements
in the police docket. In the past all statements — other than a statement obtained from the
accused [90] and certain documents such as an identification parade form [91] — could have
been withheld simply because these statements were obtained for purposes of the criminal
trial. [92] The “blanket docket privilege” — sometimes also referred to as “witness statement
privilege” — did not survive chapter 3 of the Interim Constitution: it conflicted with the
provisions of ss 23 [93] and 25(3) [94] of the Interim Constitution. After a spate of conflicting
Supreme Court decisions and several academic opinions, [95] the Constitutional Court finally
resolved the matter in Shabalala and Others v Attorney-General of Transvaal and Another
and made an order declaring that: [96]
“1.
2.
3.
The ‘blanket docket privilege’ expressed by the rule in R v Steyn 1954 (1) SA 324 (A) is
inconsistent with the Constitution to the extent to which it protects from disclosure all the
documents in a police docket, in all circumstances, regardless as to whether or not such
disclosure is justified for the purposes of enabling the accused properly to exercise his or her
right to a fair trial in terms of s 25(3).
The claim of the accused for access to documents in the police docket cannot be defeated
merely on the grounds that such contents are protected by a blanket privilege in terms of the
decision in Steyn’s case.
Ordinarily an accused person should be entitled to have access to documents in the police
docket which are exculpatory (or which are prima facie likely to be helpful to
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the defence) unless, in very rare cases, the State is able to justify the refusal of such access on
the grounds that it is not justified for the purposes of a fair trial.
4.
5.
6.
Ordinarily the right to a fair trial would include access to the statements of witnesses (whether
or not the State intends to call such witnesses) and such of the contents of a police docket as
are relevant in order to enable an accused person properly to exercise that right, but the
prosecution may, in a particular case, be able to justify the denial of such access on the grounds
that it is not justified for the purposes of a fair trial. This would depend on the circumstances of
each case.
The State is entitled to resist a claim by the accused for access to any particular document in the
police docket on the grounds that such access is not justified for the purposes of enabling the
accused properly to exercise his or her right to a fair trial or on the ground that it has reason to
believe that there is a reasonable risk that access to the relevant document would lead to the
disclosure of the identity of an informer or State secrets or on the grounds that there was a
reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise
prejudice the proper ends of justice.
Even where the State has satisfied the court that the denial of access to the relevant documents
is justified on the grounds set out in paragraph 5 hereof, it does not follow that access to such
statements, either then or subsequently, must necessarily be denied to the accused. The court
still retains a discretion. It should balance the degree of risk involved in attracting the potential
prejudicial consequences for the proper ends of justice referred to in paragraph 5 (if such access
is permitted) against the degree of the risk that a fair trial may not ensure for the accused (if
such access is denied). A ruling by the court pursuant to this paragraph shall be an interlocutory
ruling subject to further amendment, review or recall in the light of circumstances disclosed by
the further course of the trial.”
An important point to note in respect of the above Constitutional Court order is that it also
fully accommodated s 22 of the Interim Constitution and s 34 of the Constitution, that is, the
fundamental right to have justiciable disputes settled by a court of law. The court can now in
all cases decide on the issue of disclosure — and it must exercise this discretion in the
context of the constitutional right of the accused to a fair trial and such legitimate claims
that the state may have, for example, state privilege and protection of witnesses from
possible intimidation. The right to have access to information did not form the basis of the
decision.
11 5 1 1 Disclosure of contents not the equivalent of further particulars to the
charge
In terms of s 87 of the CPA the defence may request — and the court may order — that
further particulars of the charge be furnished by the state before any evidence is led. [97] The
state is bound by such further particulars and “the trial shall proceed as if the charge [has]
been amended in conformity with such particulars”. [98] However, it has been held that the
state’s disclosure of the contents of the police docket to the defence, does not amount to the
furnishing of further particulars as envisaged in terms of s 87 [99] — not even where the
defence has incorrectly relied on s 87 in requesting and obtaining
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access to the police docket [100] (see § 11 5 1 5 below). The contents of the police docket
therefore do not bind the state as far as its allegations in the charge are concerned. [101] This
approach is not inconsistent with the Constitutional Court’s decision in Shabalala (as set out
in § 11 5 1 above). In Shabalala it was neither held nor implied that disclosure of the
contents of the police docket should have the binding effect of further particulars as
envisaged by s 87 of the CPA. The abolition of the blanket docket privilege was necessary to
protect the constitutional right to a fair trial (giving the defence advance notice of the factual
allegations the state would seek to prove, enabling it to take proper instructions from the
accused and to prepare for cross-examination).
11 5 1 2 Information which only becomes available after commencement of the
trial
Late disclosure of information to the defence on account of the fact that a state witness
came forward (or a document was discovered) only after the commencement of the trial,
would normally not preclude the state from calling this witness (or using the document). [102]
It is only if the “late evidence” would result in an unfair trial, that exclusion on that ground
alone would be justified. [103]
11 5 1 3 The position of the undefended accused
Accused persons are entitled to be informed by the court of their right to have access to the
contents of the police docket. [104] But the court’s failure to do so, is not necessarily a fatal
irregularity vitiating the proceedings. [105]
11 5 1 4 Position of suspects
Suspects who are asked by investigating officials to respond to allegations based on
information contained in the police docket,
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are not entitled to have access to the docket. [106] At this investigative stage they do not
(yet) have the status of an accused that can rely on Shabalala’s abolition of the docket
privilege. [107]
11 5 1 5 Further procedural and evidential matters
A request for further particulars in terms of s 87 of the CPA (see § 11 5 1 1 above) is not the
correct method of obtaining access to information to the police docket. [108] Access to the
docket should be requested by way of a written notice to the prosecution. [109] There is no
legislation that prescribes the procedure. In practice an oral request and a positive response
from the state have become the norm. In the event of a dispute, the court must be asked
for a directive. [110] For this purpose the court may inspect the relevant documents and
statements in the docket (the so-called “judicial peep” as referred to in § 11 3 2 above) and,
if necessary, also hear oral evidence. [111] If appropriate, a trial within a trial (see generally
§ 16 7 4 below) may be held. [112] The state must satisfy the court that its refusal is
justified. [113] But even if it were to do so, the court retains a discretion. [114] The court should
balance the degree of the risks of disclosure against “the degree of the risk that a fair trial
may not ensue for the accused . . . if . . . access is denied . . .” [115] The court’s decision to
refuse access is interlocutory, and may therefore be reversed by the court itself should
further circumstances come to light in the course of the trial. [116]
11 5 1 6 Cross-examination on the basis of the state witness’ statement
The defence may, of course, use a state witness’ statement, obtained in terms of Shabalala
(see § 11 5 above), for purposes of cross-examination, for example, to point out
discrepancies. However, cross-examination of this nature remains subject to the rules of
evidence and the admissibility of statements. It must, for example, be proved (in compliance
with the rule as set out in § 25 4 below)
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that the statement concerned was indeed properly deposed to by the witness. [117]
Furthermore, whilst statements of persons who have not yet testified may be provisionally
used in cross-examining a witness, such a course may not be followed unless it appears that
those other persons will indeed be called as either state or defence witnesses. [118] It follows
that statements obtained in terms of Shabalala do not have any special status as regards
admissibility.
11 5 1 7 Abolition of the blanket docket privilege: defence interviews with
(potential) state witnesses
Closely linked to — and almost a natural or inevitable extension of — the former “blanket
docket privilege” was the ethical rule of practice that the defence could not without the
consent of the prosecution have had interviews with (potential) state witnesses. [119] In
Shabalala and Others v Attorney-General of Transvaal and Another the Constitutional Court
also addressed this matter by making the following order: [120]
“1.
2.
3.
4.
5.
Insofar and to the extent that the rule of practice pertaining to the right of an accused or his
legal representative to consult with witnesses for the State prohibits such consultation without
the permission of the prosecuting authority, in all cases and regardless of the circumstances, it
is not consistent with the Constitution.
An accused person has a right to consult a State witness without prior permission of the
prosecuting authority in circumstances where his or her right to a fair trial would be impaired, if,
on the special facts of a particular case, the accused cannot properly obtain a fair trial without
such consultation.
The accused or his or her legal representative should in such circumstances approach the
Attorney-General or an official authorised by the Attorney-General for consent to hold such
consultation. If such consent is granted the Attorney-General or such official shall be entitled to
be present at such consultation and to record what transpires during the consultation. If the
consent of the Attorney-General is refused the accused shall be entitled to approach the court
for such permission to consult the relevant witness.
The right referred to in paragraph 2 does not entitle an accused person to compel such
consultation with a State witness:
(a) if such State witness declines to be so consulted; or
(b) if it is established on behalf of the State that it has reasonable grounds to believe such
consultation might lead to the intimidation of the witness or a tampering with his or her
evidence or that it might lead to the disclosure of State secrets or the identity of informers
or that it might otherwise prejudice the proper ends of justice.
Even in the circumstances referred to in paragraph 4(b), the court may, in the circumstances of
a particular case, exercise a discretion to permit such consultation in the interest of justice
subject to suitable safeguards.”
Once again, it should be noted that the ultimate power to regulate the matter is in the hands
of the court. The constitutional right to a fair trial governs the issue; and the constitutional
right to have access to information held by the state was not the basis of the Constitutional
Court’s decision.
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11 5 2 Access for purposes of a bail application
In § 11 5 1 above it was pointed out that in Shabalala and Others v Attorney-General of
Transvaal and Another [121] the Constitutional Court held that an accused’s claim to have
access to material in the police docket, could not be rejected merely on the grounds that
such material is protected by a blanket privilege in terms of the decision in R v Steyn. [122]
Unfortunately, Shabalala gave rise to the erroneous perception that the defence had
extensive rights of access even at the bail stage (as opposed to access for purposes of a fair
trial). Legislation became necessary to ensure that premature disclosure could be prevented.
Section 60(14) of the CPA provides that “[n]otwithstanding anything to the contrary
contained in any law, no accused shall, for the purposes of bail proceedings, have access to
any information, record or document relating to the offence in question, which is contained
in or forms part of a police docket . . . unless the prosecutor otherwise directs . . .” There is
also a proviso to the effect that this subsection “shall not be construed as denying an
accused access to any information, record or document to which he . . . may be entitled for
purposes of his . . . trial.” [123] This proviso was necessary to ensure that s 60(14) would not
be in conflict with the decision in Shabalala.
11 5 2 1 Constitutional validity of s 60(14) of the CPA
The constitutional validity of that part of s 60(14) which empowers a prosecutor to deny a
bail applicant access to the contents of the police docket, was confirmed in S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat. [124] The Constitutional Court, however,
noted that s 60(14) should not be read as sanctioning a flat refusal on the part of the
prosecution to divulge any information relating to the pending charge(s) against a bail
applicant. And it was also suggested that a court may very well have to order the
prosecution to lift the veil in order to give a bail applicant a reasonable opportunity as
required by s 60(11) of the CPA, a section which places the burden of proof on a bail
applicant in certain circumstances. It has been held that s 60(14) vests a discretion — but
not an unfettered discretion — in the prosecution to refuse to disclose information in the
docket. [125]
11 5 2 2 Duty and power of court to order state to disclose
Factual circumstances in a bail application may be such that a court must, on the basis of
s 60(3) [126] and
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60(10) [127] of the CPA, order the state to grant the bail applicant access to some information
contained in the police docket. In S v Green and Another Farlam JA held: [128]
“It is clear from s 60(10) that the court’s function in a bail application is intended to be more
proactive than in normal criminal proceedings. On a proper consideration of the case on which the
State relied, any reasonable court must have concluded that it lacked reliable and important
information necessary to reach a decision, notwithstanding that such information was apparently
readily available. In such circumstances the court has no discretion but to invoke s 60(3). In my view,
the magistrate should, instead of refusing bail without more, have ordered the State to grant the
defence access to the video tapes and any statements made by the police fingerprint experts, linking
the fingerprints of either of the appellants with the crime, with the decision on whether or not to grant
bail to be made thereafter.”
11 5 2 3 Sections 60(14) and 335 of the CPA
It can be argued that despite the fact that s 60(14) applies “[n]otwithstanding anything to
the contrary contained in any law”, a prosecutor should as a rule permit a bail applicant to
have access to a copy of a statement falling within the ambit of s 335 of the CPA. Section
335 provides that whenever a person has in relation to any matter made to a peace officer a
statement in writing — or a statement which was reduced to writing — and criminal
proceedings are thereafter instituted against such person in connection with that matter, the
person in possession of such statement shall furnish the person who made the statement, at
his request, with a copy of such statement. It can be said that in terms of s 34 of the
Constitution, a bail applicant has a constitutional right to a fair bail hearing and that access
to his s 335-statement is necessary to secure such a hearing. Access to a s 335-statement
ensures that there is “equality of arms”: the prosecution’s bail witnesses can peruse their
statements in the docket prior to their testifying; a bail applicant should enjoy a similar right
by perusing his s 335-statement. The prosecution’s bail witnesses can in the witness-box
refresh their memories with reference to their earlier statements; a bail applicant should
enjoy a similar opportunity by having access to his s 335-statement. Obviously, at a bail
application the fairness or otherwise of the trial is not the issue. A bail application concerns
the qualified right of an arrestee, under s 35(1) of the Constitution, to be released if the
interests of justice permit. Bail applications also cannot be classified as criminal proceedings.
However, the fact that a bail applicant is not an accused who would be entitled to all
constitutional “fair trial” rights, is no ground for depriving a bail applicant of access to his
s 335-statement. One of the purposes of s 60(14) of the CPA is to ensure that accused
persons are not prematurely put in a position where they can look over the prosecution’s
shoulder as the police investigation runs its course. It is hardly possible to argue that a bail
applicant’s access to his s 335-statement would have this improper effect. Access to a s 335statement makes an important contribution to a fair bail hearing.
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11 5 2 4 Ethical duty of prosecutor
It is, furthermore, submitted that there is at least one special situation where a prosecutor
who has decided to rely on s 60(14) in withholding the contents of the police docket from a
bail applicant, will on the grounds of legal ethics be compelled to reverse his decision. This
situation will arise where there is a material discrepancy between the oral evidence of a
state witness at the bail proceedings and his written statement contained in the police
docket. A bail applicant’s constitutional right to a fair bail hearing will be frustrated where a
prosecutor suppresses the discrepancy by withholding the relevant written statement on
account of the provisions of s 60(14). [129]
11 6 The Promotion of Access to Information Act 2 of 2000
[130]
The above Act (hereafter referred to as “the PAIA”) came into operation on 9 March 2001.
According to its long title, the PAIA seeks to give effect to the constitutional right of access
to any information held by the state [131] and any information held by another person and
that is required for the exercise or protection of any rights. [132] However, in the preamble to
the PAIA reference is also made to s 36 of the Constitution, which allows for constitutionally
permissible limitations of all rights contained in the Bill of Rights. It is therefore no surprise
that the PAIA does not abolish public (and private) privileges which exist in terms of our
common-law or statutory provisions. [133] Several provisions in the PAIA actually indirectly
reinforce existing public privileges. [134]
11 6 1 The PAIA and mandatory protection of records privileged from
production in legal proceedings
Section 40 of the PAIA provides that the information officer of a public body must refuse a
request for access to a record of the body if the record is privileged from production in legal
proceedings, unless the holder of the privilege has waived it. Section 67 contains a similar
provision in respect of a private body.
11 6 2 Non-applicability of the PAIA to records required for criminal or
civil proceedings after commencement of such proceedings
Section 7(1) of the PAIA provides that the PAIA does not apply to a record of a public or
private body if
“(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings, as the case may be;
and
Page 193
(c)
the production of or access to that record for the purpose referred to in paragraph (a) is
provided for in any other law.”
In terms of s 7(2) of the PAIA any record obtained in a manner that contravenes s 7(1) is
inadmissible as evidence in proceedings referred to in s 7(1) unless the exclusion of such a
record by the court concerned would, in the opinion of such a court, be detrimental to the
interests of justice. Section 7 of the PAIA is, it seems, an indirect way of encouraging
litigants not to use or abuse the PAIA as a mechanism for obtaining information for purposes
of litigation when access to information is provided for by some other law, such as the rules
governing disclosure. [135]
[*] Some sections of this chapter were originally written by Prof A P Paizes, School of Law, Univ of the
Witwatersrand, and published as ch 12 in Van der Merwe (ed) Evidence (1983) 147-156 and later in Du Toit et al
Commentary on the Criminal Procedure Act (1987, as revised). Prof Paizes’ kind permission to retain portions of his
original text for purposes of the present book is appreciated. Of course, the present author carries responsibility for
amendments, updating, style and ultimate accuracy of the contents.
[1] It is, eg, against public policy that discussion and deliberations between a presiding judicial officer and his or
her assessors be disclosed. See S v Baleka and Others (4) 1988 (4) SA 688 (T).
[2] See generally Minister Van Justisie v Alexander 1975 (4) SA 530 (A) 544-5; Van Niekerk, Van der Merwe & Van
Wyk Privilegies in die Bewysreg (1984) 240-74.
[3] See generally Barnicott v Minister of Justice 1913 TPD 691 695 where the court had to follow the English law
on account of the provisions of s 47 of Proc 16 of 1902 (Tvl). See also Tranter v Attorney-General and the First
Criminal Magistrate of Johannesburg 1907 TS 415 as well as § 3 2 above.
[4] The effect of this section is that, except where otherwise provided by the CPA or any other law, no witness may
be compelled or permitted to give evidence as to any fact, matter or thing, or as to any communication made to him,
if he would not have been compelled or permitted to do so on 30 May 1961 on the ground of public policy or with
regard to the public interest. There is a proviso, however, to the effect that any person may in criminal proceedings
adduce evidence of any communication alleging the commission of an offence if the making of that communication
prima facie constitutes an offence, that is, if such communication amounted to, for example, criminal iniuria, criminal
defamation, treason or perjury. See generally S v Gcali 1992 (1) SACR 372 (Tk) 378b-c.
[5] See § 3 4 above.
[6] 1942 1 All ER 587.
[7] See § 11 1 3 below.
[8] Tapper Cross & Tapper on Evidence 11 ed (2007) 514.
[9] See also Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd 1916 1 KB 822 where documents relating to
military plans during World War One were held immune from disclosure.
[10] Zuckerman “Privilege and Public Interest” in Tapper (ed) Crime, Proof and Punishment (1981) 248.
[11] In Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274 298 it was said: “Although it is
the practice to talk of conflicting public interests this can be misleading. The conflict is more accurately described as
being between two different aspects of the public interest. If it is decided that the aspect of the public interest which
reflects the requirements of administration of justice outweighs the aspect of the interest which is against disclosure,
then it is the public interest which requires disclosure.” In S v Scholtz 1996 (2) SACR 426 (NmS) Dumbutshena AJA
also provided the following perspective (at 422e-g): “It is necessary under certain circumstances to protect public
interest immunity in order to safeguard the interests of public administration and the protection of the State. I do not
however share the view that public interest immunity should be preferred in order to deny an accused a fair trial and
justice. Open justice requires fairness to be evenly applied between the prosecution and the defence . . . Rather than
make public interest immunity an exception to the general duty to disclose, it should be weighed in the scales of
justice. That weighing in should be done by the Courts. If before any trial the prosecution has in its possession
documents or other evidential material helpful to the defence case but wants to claim public interest immunity the
defence should be informed of that fact and the Court should be asked to give directions of some ruling on the
prosecution’s claim to public interest immunity. The decision must be made by a Judge. It would not be proper to
allow the prosecution to decide which of the relevant materials should be denied to the accused on the grounds of
public interest immunity.”
[12] Tapper Cross & Tapper on Evidence 514 n 36.
[13] Murphy Murphy on Evidence 10 ed (2008) 423.
[14] Dennis The Law of Evidence 3 ed (2007) 361.
[15] See Rogers v Secretary of State for the Home Department 1973 AC 388.
[16] Tapper Cross & Tapper on Evidence 511 refers to the “currently fashionable terminology of ‘public interest
immunity’”.
[17] Dennis The Law of Evidence 361.
[18] 1992 3 All ER 617 623.
[19] Uglow Evidence: Text and Materials (1997) 180. See also generally Swanepoel v Minister van Veiligheid en
Sekuriteit 1999 (2) SACR 284 (T) 287g-h as regards the informer’s privilege — a privilege discussed in §§ 11 4 2 to
11 4 4 below.
[20] Bewysreg 4 ed (2000) 577-578.
[21] S v Safatsa and Others 1988 (1) SA 868 (A) 886 (citing Dawson J in Baker v Campbell 1983 49 ALR 385
442).
[22] Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 10.
[23] Schmidt & Rademeyer Bewysreg 577 n 155 make the valid point that the privilege which covers statements
without prejudice, is an exception. See further § 16 6 below.
[24] Redelinghuys v Geidel 1963 (2) SA 274 (W); Minister of Community Development v Saloojee and Another
1963 (4) SA 65 (T).
[25] Murphy A Practical Approach to Evidence 415.
[26] Implied or imputed waiver is also possible. See § 10 3 4 above.
[27] See generally Nyangeni v Minister of Bantu Administration and Development and Another 1961 (1) SA 547
(E).
[28] S v Van Vreden 1969 (2) SA 524 (N) 529H.
[29] S v Lwane 1966 (2) SA 433 (A).
[30] See generally Conway v Rimmer 1968 1 All ER 874; Van der Linde v Calitz 1967 (2) SA 239 (A).
[31] Obviously, once the executive is aware of the issue and does not claim privilege, courts are unlikely to
disagree. Dennis The Law of Evidence 369 observes: “The courts should not be more executive-minded than the
executive, particularly where access to evidence, one of the ingredients of the right to a fair trial, is concerned.”
[32] See § 11 4 2 below.
[33] See generally Beatson v Skene 2 LT 378 (as cited by Cahn Cockle’s Cases and Statutes on Evidence 6 ed
(1938) 327).
[34] Murphy A Practical Approach to Evidence 429 explains the difference between the two claims: “A class claim is
a claim to withhold all documents falling within a specifically described class, for example minutes of Cabinet
meetings. In this kind of claim, the actual contents of the documents are irrelevant, and the claim is based on an
invariable need for confidentiality of documents of the kind described in the claim. The courts have regarded class
claims relatively unfavourably, because of the possibility of a blanket attempt to protect documents, many of which
may be of a purely routine nature. . . A contents claim is based on the contents of an individual document, and is
more favourably regarded because of the more specific justification provided to the court.”
[35] 1968 1 All ER 874.
[36] See generally Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090; Air Canada v
Secretary of State and Trade 1983 2 AC 394.
[37] Murphy A Practical Approach to Evidence 433.
[38] 1994 2 All ER 588. However, according to Emson Evidence (1999) the government issued the following
statement in the House of Commons on 11 July 1997: “[P]ublic interest immunity will not be asserted by the
Government unless the relevant Minister believes that disclosure of a document or piece of information will cause
real damage to the public interest. The test will be applied rigorously. Where public interest immunity applies,
Ministers will nevertheless make voluntary disclosure if they consider that the interests of justice outweigh the public
interest in withholding the document or information in question. In all cases, a Minister’s claim for public interest
immunity is subject to the Court’s power to order disclosure. The approach will be followed in both criminal and civil
cases.’’
[39] The Law of Evidence 283 n 96. See further § 11 3 2 below. In South Africa a “judicial peep” must be exercised
with caution. See South African Rugby Football Union and Others v President of the Republic of South Africa and
Others 1998 (4) SA 296 (T) 302F.
[40] 1967 (2) SA 239 (A).
[41] See § 3 5 1 above.
[42] 1931 AC 704.
[43] Law, Order and Liberty in South Africa (1971) 259.
[44] Hoffmann The South African Law of Evidence (1970) 445.
[45] Section 29(1) of Act 101 of 1969 (now repealed).
[46] See generally Mathews Law, Order and Liberty in South Africa 258-9.
[47] 1971 (2) SA 277 (O). In this case s 29 of Act 101 of 1969 was interpreted restrictively. It was held that s 29
only ousted the court’s jurisdiction in matters concerning the safety of the state, international relationships or highlevel executive documents.
[48] Report of the Commission of Enquiry into Matters Relating to the Security of the State (RP 102/1971). This
commission was known as the Potgieter Commission. For a discussion of this commissioner’s recommendations
concerning state privilege, see Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 245-47.
[49] This Act was also preceded by a commission of enquiry, known as the Rabie Commission. In § 8 5 3 of its
Report of the Commission of Enquiry into Security Legislation (RP 90/1981), the Rabie Commission — like the
Potgieter Commission — relied heavily on the following statement by lord Parker in The Zamora 1916 2 AC 77:
“Those who are responsible for the national security must be the sole judges of what the national security requires.”
The result was that both Commissions favoured the view that the executive should have the final say on matters
affecting the security of the state. See further Mathews Freedom, State Security and the Rule of Law — Dilemmas of
the Apartheid Society (1986) 177 for criticism of this approach.
[50] Section 66(1) of Act 74 of 1982 (now repealed).
[51] Section 66(2) of Act 74 of 1982 (now repealed).
[52] By s 1 of the Safety Matters Rationalisation Act 90 of 1996 (as read with schedule 1 to this Act.)
[53] See also generally Van Wyk et al (eds) Rights and Constitutionalism: The New South African Legal Order
(1994) 431.
[54] For a discussion of the extent to which a separation of powers is recognised and entrenched in the
Constitution, see Currie & De Waal The Bill of Rights Handbook 5 ed (2005) 44-48.
[55] See further §§ 11 6 to 11 6 2 below.
[56] Paizes in Du Toit et al Commentary at 23-44F refers to “the growing trend towards viewing all issues arising
out of the traditional privilege as aspects of a broad balancing exercise in which the extent to which it is necessary to
disclose evidence for the purpose of doing justice is balanced against the public interest in its non-disclosure”.
[57] Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In Re Masetlha v President of the
Republic of South Africa and Another 2008 (5) SA 31 (CC) at [55]. For a detailed discussion of this case, see
Schwikkard “State Privilege in a Democratic South Africa” in Carnelley & Hoctor (eds) Law, Order and Liberty —
Essays in Honour of Tony Mathews (2011) 101.
[58] Independent Newspapers (Pty) Ltd supra at [56].
[59] See generally President of the Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA) at
[52]; Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others
1999 (2) SA 279 (T) 343-4.
[60] See § 11 1 3 (n 39) above.
[61] See generally Tapper Cross & Tapper on Evidence 518.
[62] See generally Khala v Minister of Safety and Security 1994 (4) SA 218 (W); 1994 (2) SACR 361 (W); 1994 2
BCLR 89 (W) 105C-D.
[63] Freedom, State Security and the Rule of Law: Dilemmas of the Apartheid Society 176.
[64] R v Abelson 1933 TPD 227 231. One of the most important English decisions in this regard is Marks v Beyfus
1890 25 QBD 494.
[65] See also generally Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 270-4. At 271 the
authors point out that the purpose of the privilege which arises in this regard is not to protect the police, but to
ensure that their sources of information concerning crime and their methods of investigation are protected: “Die reg
moet enersyds sorg dra dat die polisie nie hul funksies en aktiwiteite verrig op ’n heimlike wyse wat nadelig kan
wees vir die breër belange van die regspleging nie, maar andersyds dat hulle in die uitvoering van hul pligte nie só
gekortwiek word dat die breër belange van die regspleging benadeel word nie.’’
[66] 1933 TPD 227.
[67] 1962 (4) SA 288 (C).
[68] See generally ch 12 below.
[69] Who is an “informer” for purposes of this privilege? In Rex v Van Schalkwyk 1938 AD 543 548 Stratford CJ
observed that while no definition has been authoritatively laid down in the English cases, these cases “seem to lay
down that any person who gives information to the authorities of the commission of a crime, or information which
leads to the detection of a crime, is one who, in the public interest, ought to be protected. In other words, anyone
who gives useful information about the commission of a crime and needs protection against those who may suffer
from his disclosures, should get that protection so as to encourage these disclosures.” Accordingly, not every person
who makes a statement to the police in connection with a prosecution may claim this privilege, but only informers
properly so called, whose identity must be kept secret in the public interest (Scheepers v S 1971 2 PH H101 (NC)). A
person who has laid a charge is normally regarded as an informer (R v Olifant 1937 2 PH H191 (T)), except where he
is the complainant in a charge relating to the person or property of an individual, in which case he would not need
encouragement to lodge his complaint (Naylor v Wheeler 1947 (2) SA 681 (D)). For the same reason, a person
interrogated by the police when the accused has already been arrested is not an informer. A policeman is not
ordinarily an informer, as he requires no encouragement to disclose information (Suliman v Hansa supra); this may
not be true, however, of a policeman who operates secretly or in disguise in order to procure information.
[70] Tranter v Attorney-General and the First Criminal Magistrate of Johannesburg 1907 TS 415; Van Wyk in
Ferreira Strafproses in die Laer Howe 2 ed (1979) 493. In Swanepoel v Minister van Veiligheid en Sekuriteit 1999 (2)
SACR 284 (T) it was held that an informer has a substantive right to non-divulgement of his identity, particularly
where the informer had specifically requested anonymity. Unlawful, malicious and intentional disclosure of the
identity of an informer to suspects, therefore disclosed a cause of action. In this case the court also stated (at
287d-e) that “onderhewig aan die openbare belang, kan die beriggewer die privilegie opeis [en is die]
beriggewer . . . selfs teenoor die Staat geregtig om die privilegie op te eis”. See further S v Rossouw en ’n Ander
1973 (4) SA 608 (SWA) 613G-H and S v Nieuwoudt (4) 1985 (4) SA 519 (C) 522B.
[71] 1945 AD 653 658.
[72] See also Rex v Van Schalkwyk 1938 AD 543. The scope of the privilege was considered further in Suliman v
Hansa 1971 (4) SA 69 (D). Fannin J approved and applied the views of Wigmore para 2285 that the following four
fundamental conditions must be satisfied to establish the privilege: “(1) The communications must originate in a
confidence that they will not be disclosed; (2) This element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties; (3) The relation must be one which in the opinion of
the community ought to be sedulously fostered; and (4) The injury that would inure to the relation by the disclosure
of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.’’
[73] R v Olifant 1937 2 PH H191 (T). Cf generally S v Rossouw en ’n Ander 1973 (4) SA 608 (SWA).
[74] 1922 NPD 157 162.
[75] 1918 WLD 1 14-5.
[76] 1938 AD 543 553-5.
[77] 1927 NPD 330 345.
[78] Supra 554-5.
[79] Zeffertt, Paizes & Skeen 660.
[80] 1998 (2) SACR 93 (NC) 100j-101c (emphasis added). See also Marais v Lombard 1958 (4) SA 224 (E) 231A
and Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 266-7.
[81] 1993 Crim LR 283.
[82] See generally R v Rankine 1986 Crim LR 464; R v Brown & Daley 1988 Crim LR 426; R v Johnson 1988 Crim
LR 831, where certain guidelines were provided to police in obtaining observation posts; R v Hewitt & Davis 1992
Crim LR 650. In a commentary on the latter case DJB 1992 Crim LR 651 remarked as follows: “Two grounds are
given for the rule about informers: first, the need to secure the informer’s own safety, and secondly the desire to
ensure that the supply of information does not dry up (see eg Hennessey (1978) 68 Cr App R 419). Both apply
equally to the supplier of an observation post: in fact it could be argued that the need for protection on both grounds
is greater, as (a) the supplier of an observation post may be an easier target for retaliation, particularly if it is the
supplier’s own home which has been used, and (b) where the need is to police a particular locality where crime is
rife, the loss of an observation post may be an irreparable blow.”
[83] See generally Van der Merwe 1998 Stell LR 297.
[84] 386 US 300 (1967).
[85] 353 US 53 (1957).
[86] This is also the clear implication of Shabalala and Others v Attorney-General of Transvaal and Another 1995
(2) SACR 761 (CC) at [72] (sub-para 5). See § 11 5 below.
[87] 1998 (2) SACR 93 (NC) 101c-h (emphasis added).
[88] R v Steyn 1954 (1) SA 324 (A); Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 219-36.
[89] See generally S v J 1990 (1) SACR 639 (C) and International Tobacco Co (SA) Ltd v United Tobacco Cos
(South) Ltd (2) 1953 (3) SA 879 (W).
[90] See s 335 of the CPA. See also S v Mpetha and Others (1) 1982 (2) SA 253 (C) 259F.
[91] S v Jija and Others 1991 (2) SA 52 (E).
[92] S v B 1980 (2) SA 964 (A).
[93] Section 23 of the Interim Constitution provided as follows: “Every person shall have the right of access to all
information held by the state or any of its organs at any level of government in so far as such information is required
for the exercise or protection of any of his or her rights.” This section was relied on in several Supreme Court
decisions in which it was held that statements of state witnesses had to be handed over to the defence. These cases
appear in n 52 of the Constitutional Court judgment in Shabalala and Others v Attorney-General of Transvaal and
Another 1995 (2) SACR 761 (CC) 775. Section 23 was replaced by s 32 of the Constitution (as read with Schedule 6
to the Constitution).
[94] This section provided for the right to a fair trial. See now ss 34 and 35(3) of the Constitution.
[95] See eg Schwikkard 1994 SACJ 323; Du Plessis 1994 SACJ 295; Meintjies-Van der Walt 1995 SACJ 127.
[96] Supra [72] 790c-791b. The Constitutional Court did not rely on s 23, but on the right to a fair trial contained
in s 25(3). See [34] of the judgment. See now s 35(3) of the Constitution. See further S v Smile and Another 1998
(1) SACR 688 (SCA); Rowe and Davis v UK (2000) 30 EHRR 1; R v Stinchcombe 1992 LRC (Crim) 68; S v Scholtz
1996 (2) SACR 426 (NmS) 442f-h; Molapo v Director of Public Prosecutions 1997 (8) BCLR 1154 (Lesotho).
[97] See generally De Jager in Du Toit et al Commentary 14-24 for a discussion of s 87.
[98] Section 87(2) of the CPA.
[99] S v Tshabalala 1999 (1) SACR 163 (T) 167a-b and 168h.
[100] Du Toit en Andere v Direkteur Van Openbare Vervolging, Transvaal: In Re S v Du Toit en Andere 2004 (2)
SACR 584 (T) 594e-f.
[101] Du Toit en Andere v Direkteur Van Openbare Vervolging, Transvaal: In Re S v Du Toit en Andere supra
595d-e.
[102] Du Toit en Andere v Direkteur Van Openbare Vervolging, Transvaal: In Re S v Du Toit en Andere 2004 (2)
SACR 584 (T) 596a-b and 598f.
[103] See generally S v Smile and Another 1998 (1) SACR 688 (SCA), where the initial unfairness that resulted
from the state’s failure to disclose, was purged when the state, during the course of the state’s case, had made
available statements of witnesses who had already testified and witnesses who still had to testify. This irregularity
was “potentially remediable” (at 692h): the state’s case was not closed when the statements were furnished; the
defence could recall the witnesses concerned; the defence had sufficient time “to consider the contents of all the
statements and to prepare for the further conduct of the trial” (at 693a). However, Melunsky AJA also sounded the
following warning (at 693b-c): “It may be noted that the Full Court of the Cape Provincial Division in Nortje and
Another v Attorney-General, Cape, and Another 1995 (2) SA 460 (C) was not prepared to accept the proposition that
a failure to make pre-trial disclosure of the statements of witnesses ipso facto rendered the trial unfair although later
disclosure of statements during the trial was made (at 483B-D). But it should be emphasised that this does not mean
that it is open to the State, as a matter of course, to postpone disclosure of the statements of prosecution witnesses
provided only that they are disclosed at some time before the closure of its case. Disclosure of statements should
usually be made when the accused is furnished with the indictment or immediately thereafter in accordance with the
practice suggested in Shabalala’s case at 752A-F (para [56]).” See further S v Mvambo 1995 (1) SACR 180 (W),
which is discussed in § 17 7 below.
[104] This was the decision of the majority (Satchwell and Makhanya JJ) in S v Shiburi 2004 (2) SACR 314 (W).
EM du Toit AJ dissented.
[105] S v Shiburi supra (per EM du Toit J with Mkanaya J concurring and Satchwell J dissenting).
[106] Park-Ross v Director: Office for Serious Economic Offences 1997 (2) SACR 401 (C).
[107] Park-Ross v Director: Office for Serious Economic Offences supra at [25].
[108] S v Tshabalala 1999 (1) SACR 163 (T) 169d-e.
[109] S v Tshabalala supra 169e. See also S v Rowand and Another 2009 (2) SACR 450 (W).
[110] See generally S v Scholtz 1996 (2) SACR 426 (NmS) 442f-h. See further the nature of the disputes that
arose in National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) and Kerkhoff v Minister of Justice
and Constitutional Development and Others 2011 (2) SACR 109 (GNP). These two cases are discussed by Watney
(2012) 2 TSAR 320.
[111] See generally S v Nassar 1995 (1) SACR 212 (Nm) where Muller AJ agreed (at 242c-d) with the Canadian
approach as set out in R v Stinchcombe 1992 LRC (Crim) 68 at 11 (cited in full in Nassar at 240h-242c).
[112] S v Nassar supra (relying on R v Stinchcombe supra).
[113] Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-General, Transvaal
supra 790j. In Namibia, it seems, the required standard of proof is on a balance of probabilities. See S v Nassar
supra 240f.
[114] Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-General, Transvaal
supra 791a.
[115] Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-General, Transvaal
supra 791b.
[116] Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-General, Transvaal
supra 791b-c.
[117] S v Tshabalala 1999 (1) SACR 163 (T) 167b-c.
[118] S v Tshabalala supra 167h-168a.
[119] See generally S v Hassim and Others 1972 (1) SA 200 (N).
[120] Supra [72] 791c-h. Paragraph 4 3 2 of the Code of Conduct: Uniform Rules of Professional Ethics of the
General Bar Council of SA, has been adjusted to reflect the decision in Shabalala supra.
[121] 1995 (2) SACR 761 (CC).
[122] 1954 (1) SA 324 (A).
[123] Emphasis added. For a critical appraisal of s 60(14), see De Villiers 2003 THRHR 175 and 2003 THRHR 349.
[124] 1999 (2) SACR 51 (CC).
[125] S v Josephs 2001 (1) SACR 659 (C) 664c-d. See also Van der Merwe 2001 SACJ 297 and S v Mauk 1999 (2)
SACR 479 (W) as well as Watney 2000 (2) TSAR 369 at 373-375.
[126] This subsection provides as follows: “If the court is of the opinion that it does not have reliable information
or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision
on the bail application, the presiding officer shall order that such information or evidence be placed before the court.”
[127] This subsection provides as follows: “Notwithstanding the fact that the prosecution does not oppose the
granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the personal interests of the
accused against the interests of justice.”
[128] 2006 (1) SACR 603 (SCA) at [23].
[129] Van der Merwe 2001 Stell LR 215 220-1.
[130] See also generally s 32(2) of the Constitution.
[131] See also s 32(1)(a) of the Constitution.
[132] See also s 32(1)(b) of the Constitution.
[133] See § 11 6 1 below.
[134] See, eg, ss 39 and 41 of PAIA. These two sections respectively identify protection of police dockets in bail
proceedings and protection of the security of the RSA, as grounds for refusal of access to records.
[135] See § 20 4 below.
Page 195
Section D
Exclusion of Relevant Evidence:
Unconstitutionally Obtained Evidence
12
Unconstitutionally Obtained Evidence –S E van der Merwe
Page 197
Chapter 12
Unconstitutionally Obtained Evidence
S E van der Merwe
12
12
12
12
1
2
3
4
12 5
12 6
12 7
12 8
Introduction
The Competing Interests
Rationale of the Inclusionary Approach
The Theoretical Basis and Practical Purpose of the Exclusionary Approach
12 4 1 The “preventive effect” argument
12 4 2 Due process in the context of a bill of rights
12 4 3 The doctrine of legal guilt
12 4 4 Judicial integrity
12 4 5 The principle of self-correction
12 4 6 Primary rules and the secondary rule (the exclusionary rule)
The Exclusionary Rule in the USA: A Brief Survey
12 5 1 The rule in Mapp
12 5 1 1
General principles limiting the ambit of the rule in Mapp
12 5 1 2
The “good faith” exception
12 5 1 3
The “independent source” exception
12 5 1 4
The “stop and frisk” exception
12 5 2 The Miranda-warnings
12 5 2 1
The ambit of the exclusionary rule in Miranda
12 5 2 2
The “public safety” exception
12 5 2 3
The “impeachment” exception
12 5 2 4
The “inevitable discovery” exception
Section 24(2) of the Canadian Charter: A Brief Survey
12 6 1 Seriousness of the state conduct infringing the Charter
12 6 2 Impact on the accused’s interests as protected by the Charter
12 6 3 The interest of society in an adjudication on the merits
12 6 4 Applying the three lines of inquiry to specific types of evidence
Position in South Africa Prior to s 35(5) of the Constitution
12 7 1 The Anglo-South African common-law inclusionary approach (and its
development since constitutionalisation)
12 7 2 The interim Constitution
12 7 2 1
Protection of the constitutional right to a fair trial
12 7 2 2
The discretion to exclude unconstitutionally obtained real
evidence
12 7 2 3
Public opinion and the repute of the system
Section 35(5) of the Constitution
12 8 1 Section 35(5): The threshold test
12 8 2 Section 35(5): The causal link between violation and procurement
12 8 3 Section 35(5) and “standing”
12 8 4 Section 35(5) and the admissibility of evidence unconstitutionally procured
by private individuals
12 8 5 Section 35(5) and the limitations clause in s 36
12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair trial
12 9
12 8 7 Section 35(5) and impeachment of the accused
12 8 8 Sections 35(5) and 37: Derogation in states of emergency
The First Leg of the Test in s 35(5): “must be excluded if . . . admission . . . would
render the trial unfair”
12 9 1 Trial fairness
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12 9 2
12 9 3
12 9 4
12 10
12 11
12 12
12 13
The content of the accused’s constitutional right to a fair trial
Trial fairness and the court’s discretion
The privilege against compelled self-incrimination: trial fairness and the
court’s discretion
12 9 5 Waiver, trial fairness and the court’s discretion
12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real evidence
and evidence “emanating from the accused”
12 9 7 Trial fairness and the admissibility of derivative evidence
12 9 8 Trial fairness and the admissibility of identification evidence obtained at an
identification parade held in the absence of the accused’s legal
representative
The Second Leg of the Test in s 35(5): “if . . . admission . . . would otherwise be
detrimental to the administration of justice”
12 10 1 The presence or absence of good faith (and reasonable) police conduct
12 10 2 Public safety and urgency
12 10 3 Nature and seriousness of the violation
12 10 4 The availability of lawful means or methods of securing the evidence
12 10 5 Real evidence
12 10 6 Inevitable discovery or discovery on the basis of an independent source
Section 35(5) and Procedural Matters
12 11 1 The trial within a trial
12 11 2 The burden of proof: incidence and standard
Evidence Procured by Means of Entrapment (s 252A of the CPA and s 35(5) of the
Constitution)
Civil Cases
12 1 Introduction
[1]
This chapter focuses on the admissibility of unconstitutionally obtained evidence in criminal
proceedings. The position as regards civil proceedings is discussed separately in § 12 13
below.
Section 35(5) of the Constitution provides as follows: “Evidence obtained in a manner that
violates any right in the Bill of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the administration of justice.” [2]
Section 35(5) does not apply to civil proceedings. [3]
The Constitutional Court has as yet not had an opportunity to interpret s 35(5).
Several Supreme Court of Appeal decisions on the interpretation of s 35(5) have become
available, [4] but no clear picture has emerged. The High Court, it
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seems, has been bold, [5] cautious, [6] critical [7] and ingenious [8] in its interpretation of s 35
(5). None but the naive would have expected a different result, given the background of our
common-law inclusionary approach (see § 12 7 1 below) and the clear break that s 35(5)
makes with the common law (see § 12 8 below).
The core principle embodied in s 35(5) — that is, the exclusion of unconstitutionally
obtained evidence despite its relevance and regardless of the fact that it would otherwise
have been admissible — is not unique to South Africa. The exclusionary rule (in a rigid form)
originated in the jurisprudence of the Supreme Court of the United States of America (see
§ 12 5 below). The central idea was to protect rights guaranteed in the American Bill of
Rights, and to promote substantive and procedural due process (see §§ 12 4 2 and 12 4 3
below). In Weeks v United States — decided in 1914 — Day J, writing for a unanimous
Supreme Court, stated: [9]
“If letters and private documents can thus be seized and held and used in evidence against a citizen
accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against
such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as
well be stricken from the Constitution.”
The American exclusionary rule seeped into the evidential systems of many national
jurisdictions, albeit in a significantly modified form, that is, not as a rigid rule but as a
discretionary one. The essence of the rule has also been accepted in Continental
jurisdictions; [10] and the rule has had an impact on supra-national regional jurisdictions
and the evidential systems of international criminal tribunals. [12]
[11]
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Countries which belong to the Anglo-American “law of evidence family” [13] initially relied
heavily on the English common-law inclusionary approach which in 1861 was formulated as
follows: “It matters not how you get it; if you steal it even, it would be admissible.” [14]
However, in the latter half of the twentieth century there was a growing international
awareness of the need to enforce and protect fundamental human rights, [15] promote
legality (see § 12 4 3 below) and conserve and enhance judicial integrity (see § 12 4 4
below). Courts — and in some instances also legislatures [16] — came to accept that there
had to be at least a judicial discretion to exclude evidence obtained unlawfully or
unconstitutionally. The difficulty is to formulate a rule or guidelines [17] accommodating all
those interests which compete and conflict whenever a decision has to be made concerning
the admission or exclusion of evidence obtained in a manner violating fundamental rights
(see § 12 2 below). There is a need to compromise and adopt a flexible approach which
accommodates various valid demands. [18]
Most countries which abandoned parliamentary sovereignty and adopted a written
Constitution as the supreme law, did not avail themselves of the opportunity to use their Bill
of Rights as a medium for addressing issues concerning the admissibility of
unconstitutionally obtained evidence. But the courts in these countries — for example,
Namibia, [19] New Zealand [20] and
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Ireland [21] — then distanced themselves from the common-law inclusionary approach,
|developed their own exclusionary rule and managed to steer clear from the American
judicially created exclusionary rule which is a rigid or absolute one save for certain
exceptions which were also judicially created (see § 12 5 below for a brief survey of the
American rule and some of its exceptions).
The South African interim Constitution also did not expressly provide for the exclusion of
unconstitutionally obtained evidence; however, during the brief period that the interim
Constitution was in force, the South African courts fairly rapidly developed an exclusionary
rule even though they were not always in full agreement as to the criteria or tests which had
to be employed (see § 12 7 2 below).
For purposes of the final Constitution, South Africa took its cue from s 24(2) of the
Canadian Charter of Rights and Freedoms (hereafter “the Charter”). The relevant portion of
s 24(2) provides as follows: “Where . . . a court concludes that evidence was obtained in a
manner that infringed or denied any rights 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.” This section
(which is briefly discussed in §§ 12 6 to 12 6 3 below) is in some respects very similar to
s 35(5) of the Constitution.
In S v Pillay Scott JA said as follows with reference to s 35(5):
“In adopting the approach they did, the drafters of the Constitution appear to have adopted a via
media between the extreme approach adopted in the USA on the one hand and that formerly adopted
in South Africa on the other. In doing so they have largely followed the example of . . . particularly
Canada.” [22]
12 2 The Competing Interests
The exclusionary approach has a sound jurisprudential basis (see §§ 12 4 to 12 4 6 below).
But this does not mean that it is without controversy. [23] Burger CJ, a former chief justice of
the Supreme Court of the USA and an opponent of the exclusionary rule, once bluntly
observed that the function of the
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exclusionary rule “is simple — the exclusion of truth from the fact-finding process”. [24] The
exclusion of reliable and highly incriminating evidence might result in the acquittal of an
accused who is factually guilty of murder or rape or other serious crimes. Is this unfortunate
outcome in the public interest?
There are clear interests that compete and conflict in determining the parameters of a rule
which excludes unconstitutionally or illegally or even improperly obtained evidence. It is
ultimately a matter of reconciling competing interests. In Lawrie v Muir Lord Cooper said: [25]
“From the standpoint of principle it seems to me that the law must strive to reconcile two highly
important interests which are liable to come into conflict — (a) the interest of the citizen to be
protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of
the State to secure that evidence bearing upon the commission of crime and necessary to enable
justice to be done shall not be withheld from Courts of law on a merely formal or technical ground.
Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is
primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed
interference, and the common sanction is an action in damages. The protection is not intended as a
protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the
other hand the interest of the State cannot be magnified to the point of causing all the safeguards for
the protection of the citizen to vanish, and of offering a positive inducement to the authorities to
proceed by irregular methods.”
12 3 Rationale of the Inclusionary Approach
The argument in favour of the inclusionary rule is essentially pragmatic and expedient. It
runs along the following lines:
The end justifies the means. [26]
•
Two wrongs do not make a right. [27]
•
The probative value of evidence is not impaired by unlawful methods employed in
•
acquiring such evidence, [28] and the relevance of such evidence cannot be affected by
the mere fact that it was unlawfully procured.
The exclusionary rule necessarily requires an investigation and adjudication of
•
collateral issues, shifting the focus of the trial from an enquiry into
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•
•
•
•
•
•
•
•
the guilt or innocence of the accused to an enquiry into the conduct of the police. The
true issues get blurred. [29]
There are sufficient (other) remedies available to an accused whose constitutional or
common-law rights have been violated. [30]
Policing is a social service aimed at protecting society and, for purposes of effective law
enforcement, society must of necessity tolerate illegal police conduct. [31]
The deterrent effect of an exclusionary rule is minimal. [32]
It is not the function (purpose) of the law of evidence to deter illegal police conduct
and the rules of evidence were never meant to promote “an indirect form of
punishment”. [33]
The exclusionary rule “protects” only the guilty from conviction. [34]
Criminals do not impose restrictions upon themselves in their choice of weapons; why
should the police? [35]
The exclusionary rule frustrates or hampers effective policing in an age of rising crime
rates. [36]
An exclusionary rule puts it in the power of any police official to frustrate the judicial
process: he can, through his unlawful conduct, control the volume of evidence
available to the prosecution at the trial; and he can in this way also determine, almost
in advance, what evidence a court may or may not receive. [37]
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•
•
•
•
•
Public policy considerations do not militate against the admission of unlawfully obtained
evidence. [38]
A court that excludes unlawfully obtained evidence might in effect be condoning the
unlawful acts of the accused. [39] If this is not the actual effect of the exclusionary rule,
then it is at least the citizen’s perception of the rule. [40] And it is undesirable that a
criminal justice system should be held in disrespect by the public at large.
An exclusionary rule may, according to Schlesinger, have the “perverse and
unintended” result of limiting the ambit of fundamental rights: judges who are required
to apply an exclusionary rule might give an extensive interpretation to probable cause
“in order to admit crucial evidence”. [41]
A (rigid) exclusionary rule allows no room for “proportionality”, that is, an approach in
terms of which a court should at least have a discretion to determine the question of
evidential admissibility by comparing the gravity and nature of the offence with the
gravity and nature of the unconstitutional conduct of the police. [42]
A prosecutor who is apprehensive that the exclusionary rule might result in the
acquittal of an accused might accept a plea of guilty to a lesser charge in
circumstances where such acceptance cannot be justified. [43]
Many of the above arguments merit little consideration and several of the counterarguments are dealt with in the corresponding footnotes. However, the danger of creating a
situation where society perceives the relevant criminal justice system as one which “frees”
criminals on account of a constable’s blunder, must be taken seriously. [44]
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12 4 The Theoretical Basis and Practical Purpose of the
Exclusionary Approach
In contradistinction to those pragmatic considerations which underlie the inclusionary rule,
the arguments in favour of an exclusionary rule are less concrete and more subtle.
12 4 1 The “preventive effect” argument
In Elkins v United States [45] the court held that the purpose of the exclusionary rule is “to
deter — to compel respect for the constitutional guaranty in the only effective way by
removing the incentive to disregard it”. [46] This deterrent purpose or basis of the
exclusionary rule has been subjected to severe criticism. [47] In response it has been argued
that “deterrence” must not be viewed in a narrow traditional sense and that its “educative”
role and ultimate preventive effect [48] are more important than immediate deterrence.
Kamisar notes: [49]
“Deterrence suggests that the exclusionary rule is supposed to influence the police the way the
criminal law is supposed to affect the general public. But the rule does not, and cannot be expected
to, deter the police the way the criminal law is supposed to work. The rule does not inflict a
punishment on police who violate the Fourth Amendment: exclusion of the evidence does not leave
the police in a worse position than if they had never violated the Constitution in the first place.
Because the police are members of a structural governmental entity, however, the rule influences
them, or is supposed to influence them, by systemic deterrence ie through a department’s
institutional compliance with Fourth Amendment standards.”
In S v Mphala and Another Cloete J, in excluding evidence in terms of s 35(5) of the
Constitution, specifically referred to “the disciplinary function of the Court”. [50] This case is
discussed in §§ 12 9 5 and 12 10 1 below. S v Soci [51] — which was also decided under s 35
(5) of the Constitution — is a clear example of a case where the court had to resort to
“systemic deterrence” as a basis for excluding evidence of a pointing out obtained in breach
of constitutional rights. This case is also discussed in § 12 10 1 below.
12 4 2 Due process in the context of a bill of rights
The exclusionary rule is founded in the concept of due process which rejects the idea that
there must be ascertainment of the truth at any cost. Unconstitutionally obtained evidence
should be excluded because its admission compromises other more important
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values. [52] It is argued that the primary function or goal of a criminal justice system is not
merely to secure the conviction of an accused but to ensure that a conviction takes place in
terms of a procedure which duly and properly acknowledges the rights of an accused at
every critical stage during pre-trial, trial and post-trial proceedings. This due process
argument gathers momentum when presented in the light of a bill of rights which demands
and guarantees due process, and which places important constitutional limitations upon
official power. For if evidence is obtained in breach of these constitutional rights and allowed
into evidence, the status of these constitutional guarantees will inevitably be
undermined. [53]
Where due process is constitutionally guaranteed the prosecution’s attempt to introduce
unconstitutionally obtained evidence may be viewed as a request that the court act contrary
to the spirit and perhaps express provisions of the Constitution. Evidence, however relevant
and persuasive it might be, should in principle be excluded where the admission of such
evidence would undermine the value system created and guaranteed by a bill of rights. In
terms of this argument the exclusionary rule is not merely an evidential barrier to factfinding; it is a constitutional barrier. [54] It can be argued that real meaning and effect are
given to constitutional provisions through the medium of the law of evidence. [55] The reason
for excluding unconstitutionally obtained evidence is not to provide the aggrieved accused
with some form of personal remedy [56] or some distorted form of “compensation”, but to
ensure that a court of law can in accordance with its constitutional duty make a valuable
contribution to the upholding of constitutional principles which govern the criminal justice
system as a whole. [57]
Although the exclusionary rule may sometimes result in the factually guilty being
acquitted, this undesirable result is justified on the basis that the purpose of the
exclusionary rule is not to provide a remedy to that particular accused — but to ensure that
in the long run other citizens are not deprived of their constitutional rights. In this context
the interests of social justice prevail over those of individual justice. [58]
12 4 3 The doctrine of legal guilt
The role that the exclusionary rule plays in ensuring that the notion of legality is retained in
the criminal justice system is supported by the due process doctrine of legal guilt. In terms
of this doctrine of legal guilt [59]
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“. . . a person is not to be held guilty of a crime merely on a showing that in all probability, based
upon reliable evidence, he did factually what he is said to have done. Instead, he is to be held guilty if
and only if these factual determinations are made in procedurally regular fashion and by authorities
acting within competences duly allocated to them.”
This doctrine can also be detected in the South African criminal justice system as it stood
prior to constitutionalization. [60] For example, in S v Lwane [61] the prosecution had
tendered, and the trial court had received, evidence which had been obtained from the
accused at an earlier preparatory examination where he had testified and inculpated himself
in his capacity as a witness. At the preparatory examination the accused (witness) had not
been warned that he was not obliged to give evidence exposing himself to a criminal charge.
The trial court convicted the accused on the basis of his self-incriminating evidence which he
had, as a witness, given at the preparatory examination. On appeal Holmes JA held: [62]
“The . . . question is whether such evidence given in the absence of judicial warning is admissible on
the prosecution of the witness. As to that, the pragmatists may say that the guilty should be punished
and that if the accused has previously confessed as a witness it is in the interests of society that he be
convicted. The answer is that between the individual and the day of judicial reckoning there are
interposed certain checks and balances in the interests of a fair trial and the due administration of
justice. The rule of practice to which I have referred is one of them, and it is important that it be not
eroded. According to the high judicial tradition of this country it is not in the interests of society that
an accused should be convicted unless he has had a fair trial in accordance with accepted tenets of
adjudication.”
12 4 4 Judicial integrity
The Supreme Court of the United States has identified “the imperative of judicial integrity”
as an important rationale of the exclusionary rule. [63] It would appear that there are at least
four interrelated facets to this rationale, namely, that by admitting unconstitutionally
obtained evidence (a) courts themselves will violate the Constitution; [64] (b) courts will act
contrary to their oath to uphold the Constitution; [65] (c) courts will indirectly encourage
violations of the Constitution; [66] and (d) courts will somehow create the impression that
they sanction or condone unconstitutional conduct by government officials. [67]
However, it should be noted that the “judicial integrity” argument loses much ground in
those situations where a discretionary rule of exclusion is specifically provided for in the
Constitution — as is the case in respect of s 35(5) of the South African Constitution and s 24
(4) of the Canadian Charter. In these instances the rule itself does not require the exclusion
of all
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unconstitutionally obtained evidence. But this does not mean that a court, in exercising its
discretion in terms of s 35(5), should ignore “judicial integrity” considerations. This point
was forcefully made by Plasket J in S v Hena and Another:
“On taking office, Judges take an oath of office in which they swear or affirm to ‘uphold and protect
the Constitution and the human rights entrenched in it’ and to administer justice ‘to all persons alike
without fear, favour or prejudice, in accordance with the Constitution and the law’. See item 6(1) of
Schedule 2 to the Constitution . . . The situation must be actively guarded against where the
protection afforded all of us by the Constitution may be eroded through a lack of vigilance or for the
sake of expediency. Central to the role of the Judiciary is the protection of the integrity of the criminal
justice system and the promotion of proper and acceptable police investigation techniques. In this
case, there is evidence of an abdication of responsibility on the part of the police, as a matter of policy
or practice, ‘sub-contracting’ their investigation functions to anti-crime committees. The unlawfulness
of that is patent, and the consequences that flowed from it in this case should not surprise anyone.
Untrained civilians, not subject to the hierarchial discipline of the police service and not subject to
political and administrative oversight, took the law into their own hands. (I have had occasion
previously to warn of the consequences of this. See S v T 2005 (2) SACR 318 (E) at [37]-[40].) It
would undermine both the Constitution and the integrity of the criminal justice system to allow this
systemic abuse to go unchecked. This is clearly a factor that weighs heavily against the admission of
the tainted evidence.” [68]
12 4 5 The principle of self-correction
An effective due process system must have the inherent ability to correct abuses within the
system; [69] and it must be able to do so at the first moment that it is established that there
has been an abuse.
To argue that a separate criminal charge (or a civil action for damage to property, for
assault, or for an illegal arrest, etc) against the perpetrator is the appropriate remedy,
amounts to a tacit admission that the relevant criminal justice system:
is not truly a due process one, because, for purposes of adjudication, it tolerates
•
infringements of rights which are otherwise considered essential for due process;
is for the maintenance or perpetuation of its status as a fair and just system dependent
•
upon (or in need of being propped up by) whatever civil action the accused may or
may not institute against the perpetrator, or whatever criminal charges the authorities
(or the accused) may follow up;
cannot operate unless abuses are accommodated on an internal level.
•
Acceptance of the principle of self-correction leads to a further valid argument. The
exclusionary rule is not primarily aimed at discouraging unconstitutional official conduct: its
true purpose is to serve as an effective internal tool for maintaining
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and protecting the value system as a whole. But if officials are as a result of the exclusionary
rule deterred from infringing fundamental rights, then so much the better.
12 4 6 Primary rules and the secondary rule (the exclusionary rule)
It can also be argued that the exclusionary rule merely reinforces existing rules regulating
police powers. Van Rooyen makes this point as follows: [70]
“It is usually said against the exclusionary rule that exclusion of illegally obtained evidence infringes
the principle that all relevant and credible evidence should be admitted at an accused’s trial. However,
upon close analysis it is clear that the policy decision that certain relevant and credible evidence may
not be obtained unless certain prerequisites are met — ie that relevant and credible evidence should
not be gathered at all costs — has already been taken by the rules regulating pre-trial police powers
(which I shall call ‘primary rules’) and is not newly imposed by the exclusionary rule (the “secondary
rule”). The secondary rule merely ‘enforces’ the primary rules: if, for example, the police in a given
case voluntarily obey the primary rules, the result may well be that certain evidence is lost and will
accordingly not be used at the trial — a calculated risk that we must run if we are to have legal limits
on police powers to infringe individual interests; if, on the other hand, the police flout the primary
rules, the secondary rule simply achieves the same result.”
S v Naidoo and Another [71] — decided under s 35(5) of the Constitution — provides a good
example of a case where flouting of the primary rules led to exclusion of the evidence. This
case is discussed in § 12 10 1 below.
12 5 The Exclusionary Rule in the USA: A Brief Survey
In § 12 1 above it was pointed out that the exclusionary rule in the USA is a judicially
created rigid rule save for certain exceptions which were also judicially created. This is not
an ideal situation. [72] It is submitted, however, that the exceptions which the Supreme Court
of the USA has created in respect of its own rule, can assist South African courts in their
interpretation of s 35(5) of the Constitution — especially as regards the second (alternative)
leg of the test in s 35(5), that is, whether admission of the evidence “would otherwise be
detrimental to the administration of justice” (see § 12 10 below). After all, s 39(1) of the
Constitution itself provides that “[w]hen interpreting the Bill of Rights, a court . . . may
consider foreign law.”
12 5 1 The rule in Mapp
The Fourth Amendment to the Constitution of the USA, provides as follows:
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“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
In 1914 it was held that evidence obtained by federal agents in breach of the Fourth
Amendment, had to be excluded in a federal prosecution. [73] Almost five decades later, it
was held in Mapp v Ohio [74] that the rule also applied in state trials and to all evidence
obtained by law enforcement officers in violation of the Fourth Amendment. [75] This
exclusionary rule, which is sometimes referred to as “the rule in Mapp”, extends to “the fruit
of the poisonous tree” [76] — an approach which is subject to the qualification identified in
§ 12 5 1 1 (f) below. The rule in Mapp is also subject to several other general principles (see
§ 12 5 1 1 below) and at least three important exceptions (see §§ 12 5 1 2 to 12 5 1 4
below).
12 5 1 1 General principles limiting the ambit of the rule in Mapp
The ambit of the rule in Mapp is — quite apart from issues as to what conduct would or
would not in terms of American jurisprudence amount to unreasonable searches and seizures
for purposes of the Fourth Amendment [77] — limited by six general principles: (a) The
accused must have so-called “standing” — a requirement that is explained and discussed in
§ 12 8 3 below. (b) The rule does not apply to a civil tax action initiated by the federal
government, [78] or to evidence secured by a private individual as opposed to a state
official. [79] (c) Real evidence which the prosecutor could on account of the rule in Mapp not
have produced in the course of presenting the case for the prosecution, can —
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for the limited purpose of impeaching credibility — be introduced to contradict a statement
made by an accused in evidence in chief [80] or cross-examination. [81] (d) The Fourth
Amendment does not apply to the unlawful search and seizure by USA agents of property
located in a foreign country and owned by an accused who is a non-resident alien; [82] and
the rule in Mapp can, therefore, in these circumstances not be invoked to exclude evidence
obtained in the course of such an extra-territorial operation. [83] (e) Evidence inadmissible
under the rule in Mapp, may be used by a grand jury in deciding whether to indict an
accused. [84] (f) Where the connection between the unconstitutional conduct of the police and
the discovery of the challenged evidence is “so attenuated as to dissipate the taint”, [85]
exclusion is not required. [86] This is probably just another way of saying that on the facts of
the case there was a break in the causal chain between the Fourth Amendment violation and
its evidentiary “fruit” [87] — an issue which has also received judicial attention in South
African and Canadian jurisprudence (see § 12 8 2 below).
12 5 1 2 The “good faith” exception
The Supreme Court has held that where the police had acted reasonably and in good faith in
relying on a statute [88] or a warrant, [89] there can be no deterrent reason for excluding the
evidence.
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In Arizona v Evans [90] a police officer, after having lawfully pulled the accused’s car over
on account of a traffic violation, ran a computer check which indicated that there was an
outstanding warrant for the arrest of the accused. The accused was arrested on the basis of
this warrant; and in the course of a “lawful” search of the accused and his car, dagga was
found. It only turned out later that the outstanding warrant on which the accused was
arrested, had been invalidated by a court fourteen days prior to the arrest and that, due to
an oversight by a court clerk, the computer records on which the police officer had relied,
were never corrected. Rehnquist CJ held that the exclusionary rule was originally designed
not to counter mistakes made by court clerks who do not form part of the police. It was
concluded that the police officer concerned had acted objectively reasonably and in good
faith. The real evidence could be received (see also § 12 10 1 below).
12 5 1 3 The “independent source” exception
If police officers discover real evidence in breach of the Fourth Amendment and, subsequent
to such discovery, other police officials were to obtain the necessary search warrant on the
basis of information constitutionally obtained (for example, from informers and through
permissible police surveillance), the real evidence seized in terms of the warrant will be
admissible on the ground that it was secured through sources independent from — and
wholly unconnected with [91] — the initial unconstitutional discovery. [92] Langenhoven has
suggested that the “independent source” doctrine should also be applied in the application of
s 35(5) of the South African Constitution [93] (see also § 12 10 6 below).
12 5 1 4 The “stop and frisk” exception
Real evidence obtained during a so-called “stop and frisk” (a police officer’s brief “field
detention” of a person and the patting down of the outer clothing of the person on the basis
of the police officer’s reasonable belief that criminal activity is afoot) is admissible [94] despite
the fact that such conduct does, strictly speaking, fall short of the requirements set by the
Fourth Amendment. It has been said that the “stop and frisk” procedure is “of considerable
importance both in principle and in practice”. [95] In fact, the “stop and frisk” exception (if it
is indeed an exception and not merely a restrictive interpretation of the Fourth Amendment)
high-lights the absurdity of a rigid exclusionary rule and underlines the importance of a
flexible rule which permits a balancing, or comparative assessment, of the
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needs of the police and the rights of the individual. It has been suggested [96] (correctly, it is
submitted) that South African courts should in their interpretation of s 35(5) of the
Constitution follow the rationale of the rule established in Terry v Ohio. [97]
12 5 2 The Miranda-warnings
These warnings were established by a five to four majority in Miranda v Arizona:
[98]
“[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to questioning, the privilege against selfincrimination is jeopardized. Procedural safeguards must be employed to protect the privilege . . . [T]
he following measures are required. He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him
throughout the interrogation. After such warnings have been given, and such opportunity afforded
him, the individual may knowingly and intelligently waive these rights and agree to answer questions
or make a statement. But unless and until such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”
These rules were designed to protect [99] the Fifth Amendment privilege against selfincrimination: “No person . . . shall be compelled in any criminal case to be a witness against
himself.” The court took the view that the point at which the adversary system of criminal
proceedings commences is “when the accused is first subjected to police interrogation while
in custody . . . or otherwise deprived of freedom of action in any significant way.” [100]
The Sixth Amendment right to counsel was incorporated in the Miranda-warnings in order
to secure effective protection of the privilege against self-incrimination: there is a right to
consult counsel prior to police questioning and to have counsel present during such
questioning. [101] Where an accused has initially waived this right but reasserts it during
questioning, all questioning must stop. All questioning must also cease “[if] the individual
indicates in any manner, at any time . . . during questioning, that he wishes to remain
silent.” [102]
In Miranda v Arizona it was specifically pointed out that the warnings are prerequisites to
the admissibility of any statement made by an accused: inculpatory as well as exculpatory
statements fall within the rule and no
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distinction can be drawn between confessions and admissions, because the privilege against
self-incrimination “does not distinguish degrees of self-incrimination”. [103]
12 5 2 1 The ambit of the exclusionary rule in Miranda
[104]
The exclusionary rule in Miranda does not apply to responses received from individuals in the
course of “[g]eneral on-the-scene [police] questioning as to facts surrounding a crime or
other general questioning of citizens in the fact-finding process”. [105] Miranda is confined to
“custodial interrogation” or interrogation where the individual has been deprived of his
freedom in any significant way. [106] And it has been held that the Miranda safeguards are not
only activated by “express questioning” of the accused, but also its “functional equivalent”,
that is, where the police, after having administered the warnings, use words or take actions
which “the police should know are reasonably likely to elicit an incriminating response from
the suspect”. [107]
A statement obtained after a valid waiver is admissible. [108] A waiver of rights is valid
where the suspect did so voluntarily, knowingly and intelligently. [109] In Oregon v Elstad [110]
the accused made a non-coerced statement in the absence of the Miranda-warnings. Later
that same day he made a second statement which was properly preceded by the
Miranda-warnings. The first statement was excluded. The second statement, the court held,
could be admitted. The court rejected the accused’s argument that for purposes of the
second statement he was unable to give a fully informed waiver since he was unaware that
his first statement could not be used. The court held that it was “neither practicable nor
constitutionally necessary” [111] that the accused should in respect of the second statement
have been informed that the first statement could not be used by the prosecution. The court
also noted that, in the case of the accused,
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“the causal connection between any psychological disadvantage created by his [first
statement] and his ultimate decision to cooperate is speculative and attenuated at best”.
[112]
In Moran v Burbine [113] the Miranda-warnings were properly administered. The police,
however, did not inform the suspect that a lawyer arranged by a family member had
attempted to reach him. They also misinformed counsel that the suspect would not be
questioned. The court — by a six to three majority — nevertheless concluded that the
accused’s waiver was valid because “[e]vents occurring outside of the presence of the
suspect and entirely unknown to him surely can have no bearing on the capacity to
comprehend and knowingly relinquish a constitutional right”. [114] The waiver, according to
the court, was also valid because the accused’s “voluntary decision to speak was made with
full awareness and comprehension of all the information Miranda requires the police to
convey”. [115] This decision must be compared with S v Mphala and Another, [116] which was
decided under s 35(5) of the South African Constitution and which is discussed in § 12 9 5
below.
The evidence of a prosecution witness identified as a result of an accused’s non-coerced
but inadmissible statement obtained in breach of Miranda, is admissible. [117] In such an
instance, the conduct of the police did not violate the accused’s “constitutional privilege
against compelled self-incrimination, but departed only from the prophylactic standards laid
down . . . in Miranda to safeguard the privilege”; [118] and the testimony of the witness can
therefore not be suppressed as a fruit of the poisonous tree. A non-coerced confession
obtained in violation of Miranda is inadmissible, but real evidence discovered as a result of
such an inadmissible statement is admissible (see § 12 9 7 below).
12 5 2 2 The “public safety” exception
In New York v Quarles [119] it was decided that there is a “public safety” exception to the
requirement that Miranda-warnings be given before a suspect’s answers may be received as
evidence to prove guilt: “[A] situation posing a threat to public safety outweighs the need for
the prophylactic rule protecting the Fifth Amendment’s privilege against selfincrimination.” [120] New York v Quarles is discussed in more detail in § 12 9 4 below.
12 5 2 3 The “impeachment” exception
In Oregon v Hass [121] and Harris v New York [122] it was decided that an accused’s pre-trial
statement which would have been admissible as part of the prosecution’s case but for the
fact that
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Miranda-warnings were not given, may in cross-examination be used for the limited purpose
of attacking the credibility of the accused if the accused’s evidence in chief happens to be
inconsistent with such a pre-trial statement. This rule is, in the context of South African and
Canadian jurisprudence and constitutional provisions, discussed in § 25 5 below.
12 5 2 4 The “inevitable discovery” exception
This exception was created in Nix v Williams. [123] Evidence of the accused’s non-coerced
statements to the police and of the fact that he had led the police to the deceased’s body,
was inadmissible because it had been obtained as a result of an improper police
“interrogation” [124] in breach of the accused’s Sixth Amendment right to counsel. However,
the court ruled that evidence of the condition of the body was admissible. The court rejected
the “fruit of the poisonous tree” argument advanced on behalf of the accused. It was held
that the body of the deceased would inevitably have been discovered by “lawful means”. The
lawful means the court relied on was the fact that prior to and at the time of the improper
police interrogation, a massive and systematic search for the body of the deceased was in
progress. The search party consisted of some 200 volunteers and police who were not
involved in the improper interrogation of the accused. A grid system was used. The court
concluded that this search party would ultimately have discovered the body if it had not
been for the fact that the search was called off after the accused had — as a result of the
improper interrogation — led the police to the body. The court did not — and could not —
rely on the “independent source” exception (see § 12 5 1 3 above) in admitting the
evidence. However, Burger CJ reasoned and found as follows: [125]
“[W]hile the independent source exception would not justify admission of the evidence in this case, its
rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery
exception to the Exclusionary Rule . . . If the information ultimately or inevitably would have been
discovered by lawful means — here the volunteers’ search — then the deterrence rationale has so
little basis that the evidence should be received. Anything less would reject logic, experience, and
common sense.”
The clear implication of Nix v Williams is that the evidence of the condition of the body would
have been excluded in the absence of a finding of inevitable discovery. What if the search
party had consisted of six people engaged in a haphazard search? Whilst the result in Nix v
Williams is certainly acceptable, this case also illustrates the rather contrived and somewhat
artificial arguments which are required to side-step a rigid exclusionary rule.
12 6 Section 24(2) of the Canadian Charter: A Brief Survey
Section 24 of the Charter provides as follows:
“(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.
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(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.”
It has been said that s 24 “reflects its historical background, a compromise between the
strict Anglo-Canadian inclusionary rule [126] and the perceived American absolute
exclusionary rule”. [127] Even in pre-Charter years various Canadian Commissions suggested
exclusion in accordance with the standard criterion that admission would “bring the
administration of justice into disrepute”. [128]
“Standing” is a requirement (see § 12 8 3 below). And s 24(4) can also only be relied
upon where there was a violation of Charter rights, even though a strict causal connection
between the violation and procurement of the evidence is not required (see § 12 8 2 below).
A court — in deciding whether the admission of the challenged evidence would bring the
administration of justice into disrepute — is directed by s 24(2) to consider “all the
circumstances”. It was a reappraisal of this requirement (“all the circumstances”) that
caused the majority of the Supreme Court of Canada in R v Grant [129] to overturn and adjust
its earlier interpretation of s 24(2) in cases such as R v Stillman [130] which, in turn, had
overruled R v Collins. [131] The majority in Grant was not comfortable with the fact that
Stillman [132] was generally understood “as creating an all-but-automatic exclusionary rule
for non-discoverable conscriptive evidence, broadening the category of conscriptive evidence
and increasing its importance to the ultimate decision on admissibility”. [133]
In Grant it was said:
[134]
“A review of the authorities suggests that whether the admission of evidence obtained in breach of the
Charter would bring the administration of justice into disrepute engages three avenues of inquiry,
each rooted in the public interests engaged by s 24(2), viewed in a long-term, forward-looking and
societal perspective. When faced with an application
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for exclusion under s 24(2), a court must assess and balance the effect of admitting the evidence on
society’s confidence in the justice system having regard to: (1) the seriousness of the
Charter-infringing state conduct (admission may send the message the justice system condones
serious state misconduct), (2) the impact of the breach of the Charter-protected interests of the
accused (admission may send the message that individual rights count for little), and (3) society’s
interest in the adjudication of the case on its merits. The court’s role on a s 24(2) application is to
balance the assessments under each of these lines of inquiry to determine whether, considering all
the circumstances, admission of the evidence would bring the administration of justice into disrepute.”
The “three avenues of inquiry” referred to in Grant, are briefly discussed in §§ 12 6 1
to 12 6 3 below.
12 6 1 Seriousness of the state conduct infringing the Charter
[135]
In assessing this issue, a Canadian court is required to determine whether the impugned
evidence would bring the administration of justice into disrepute “by sending a message to
the public that the courts, as institutions responsible for the administration of justice,
effectively condone state deviation from the rule of law by failing to dissociate themselves
from the fruit of that unlawful conduct.” [136] This approach confirms that the judicial integrity
rationale (see § 12 4 4 above) is one of the core foundations of s 24(2) of the Charter.
South African cases such as S v Mthembu [137] and S v Hena and Another [138] have also
relied upon judicial integrity as a factor in interpreting s 35(5).
In Grant it was said that the first line of inquiry required a Canadian to make
[139]
“an evaluation of the seriousness of the state conduct that led to the breach. The concern of this
inquiry is not to punish the police or to deter Grant breaches, although deterrence of Charter breaches
may be a happy consequence. The main concern is to preserve public confidence in the rule of law
and its processes. In order to determine the effect of admission of the evidence on public confidence
in the justice system, the court on a s 24(2) application must consider the seriousness of the
violation, viewed in terms of the gravity of the offending conduct by the state authorities whom the
rule of law requires to uphold the rights guaranteed by the Charter.”
The court in Grant confirmed that Charter violations can vary in seriousness: minor or
inadvertent violations would “minimally undermine public confidence in the rule of law”,
whereas a wilful or reckless disregard would inevitably have the opposite effect: [141]
[140]
“Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the
right in question may require that the court dissociate itself from such conduct. It follows that
deliberate police conduct in violation of established Charter standards tends to support exclusion of
the evidence. It should also be kept in mind that for every Charter breach that comes before the
courts, many others may go unidentified
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and unredressed because they did not turn up relevant evidence leading to a criminal charge. In
recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that
the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.”
Reference was also made to some earlier decisions where the Supreme Court of Appeal held
that the need to prevent disappearance of the evidence, [142] “may attenuate the seriousness
of police conduct” that breached the Charter. [143] Good faith police conduct minimises the
need for the court to distance itself from such conduct by excluding the evidence; [144]
however, ignorance of Charter standards and requirements “must not be rewarded or
encouraged and negligence or wilful blindness cannot be equated with good faith . . .” [145]
12 6 2 Impact on the accused’s interests as protected by the
Charter [146]
In R v Grant this criterion was referred to as the second line of inquiry, which “calls for an
evaluation of the extent to which the breach actually undermined the interests protected by
the rights infringed”. [147]
12 6 3 The interest of society in an adjudication on the merits
[148]
This third line of inquiry in the interpretation of s 24(2), calls upon a Canadian court to ask
“whether the truth-seeking function of the criminal trial process would be better served by
the admission of the evidence, or by its exclusion”. [149] It is submitted that this inquiry is
really nothing else but a reference to the question whether — having regard to all
circumstances — factual guilt should prevail over legal guilt (see § 12 4 3 above). In Grant it
was also confirmed that the importance of the impugned evidence to the case of the
prosecution, is a factor to be considered. [150]
12 6 4 Applying the three lines of inquiry to specific types of evidence
The majority in Grant examined the extent to which each line of inquiry would or could affect
the following types of evidence: statements by the accused; [151] bodily evidence; [152] nonbodily physical evidence; [153] derivative evidence. [154]
Of pertinent importance is the fact that Grant overruled Stillman in two important
respects: there is no longer an all-but-automatic exclusionary rule for non-discoverable
conscriptive evidence and “all the circumstances” — rather than the conscriptive character of
the evidence — must determine
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admissibility; [155] and, furthermore, the inappropriate blurring of the distinction between real
and testimonial evidence should not be continued (see generally § 12 9 6 below).
It will probably still take quite a while before South African courts would be in a position to
indicate to what extent Grant, rather than Stillman, can provide guidelines in the
interpretation of our s 35(5). It is predicted that our courts will in future lean in favour of the
guidelines in Grant. However, as matters stand, our courts have been influenced by Stillman
and other Canadian decisions preceding Stillman, most notably R v Collins. [156]
12 7 Position in South Africa Prior to s 35(5) of the Constitution
12 7 1 The Anglo-South African common-law inclusionary approach
(and its development since constitutionalisation) [157]
In terms of s 252 of the CPA the law as to the admissibility of evidence which was in force in
respect of criminal proceedings on 30 May 1961, shall apply in any case not expressly
provided for in the CPA or any other law. [158] In matters not expressly provided for, the
English common law was in force on that date (see § 3 5 above) and in terms of this law a
fairly strict inclusionary approach to issues concerning the admissibility of relevant evidence
obtained illegally or improperly, is required. Relevance is the test, and “the court is not
concerned with how the evidence was obtained,” [159] except for the fact that “in a criminal
case a judge always has a discretion to disallow evidence if the strict rules of evidence would
operate unfairly against the accused”. [160]
In S v Forbes and Another [161] Theron J was satisfied that he had a discretion to exclude
evidence on grounds of public policy.
But the general trend was to include rather than exclude. A good example of the
application of the inclusionary rule can be found in S v Nel. [162] In this case the court
admitted evidence of certain private but “tapped” telephone
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conversations of the accused, despite the fact that the prosecution had failed to prove that
proper authorisation for the monitoring of these conversations had been obtained in terms of
(the then-existing) s 118A of the Post and Telecommunication-Related Matters Act. [163]
Refusing to accept or exercise a discretion to exclude, Van der Walt J held that unlawfully
obtained evidence could only be excluded where, first, the accused had been compelled to
provide evidence against himself and, secondly, the evidence had been obtained by duress
from an accused. [164] However, in S v Hammer and Others [165] Farlam J held — without
reference to S v Naidoo and Another — that there is a general discretion to exclude
improperly or illegally obtained evidence on the grounds of fairness and public policy, and
that there are various factors which should be considered by a court in deciding whether to
exercise this discretion. [166]
It should be noted that the common-law discretion has not been rendered redundant by
the provisions of s 35(5) of the Constitution: the admissibility of evidence obtained
improperly or illegally — but not in violation of a right in the Bill of Rights (see § 12 8 1
below) — must still be determined on the basis of the common-law discretion which must
now, however, be understood and applied in the context of the following observations by
Cameron J in S v Kidson: [167]
“It is correct, and it has been emphasised in a number of reported cases, that the exclusionary
provision contained in s 35(5) alludes expressly only to evidence obtained in a manner that violates
any right ‘in the Bill of Rights’. But it seems to me evident that the evidence obtained in unlawful
breach of any statute must be judged broadly in the same way since its admission may in some
manner imperil the accused’s right to a fair trial. It therefore seems appropriate to me on both legs of
this approach to consider whether ‘the admission of that evidence would render the trial unfair or
(would) otherwise be detrimental to the administration of justice’.”
At any rate, in terms of s 39(2) of the Constitution a court is required “to promote the spirit,
purport or objects of a Bill of Rights . . . when developing the common law”.
In Kidson the court, having ruled that “no constitutionally cognisable breach of privacy
[had] occurred,” [168] noted that the extent and flagrancy of the police’s contravention of a
statutory prohibition remained “an issue to be considered by the court in the exercise of its
discretion whether to admit the
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evidence or not.” [169] In this case the defence had challenged the admissibility of evidence of
a recording and transcript of a conversation between a state witness (hereafter “R”) and the
accused who was charged with murder. The recording was made covertly by R with the
assistance of the police and prior to the arrest of the accused. R himself was a suspect and
had supplied the police with information of his own involvement in the murder of the
accused’s husband. He co-operated with the police. At his suggestion, he visited the accused
at her home whilst carrying a concealed voice-activated tape recorder furnished to him by
the police for the purpose of recording a conversation with the accused. During the course of
R’s conversation with the accused, R deliberately invited incriminating statements from the
accused without disclosing that he was in effect a police agent. [170] Having made certain
findings as regards the provisions of the Interception and Monitoring Prohibition Act, [171] the
court held that participant monitoring was in the circumstances of this case not prohibited by
the afore-mentioned Act and, furthermore, that information relevant to the crime and
voluntarily conveyed by the accused to R — who had a legitimate interest of his own to
record this two-party conversation — was not confidential information for purposes of the
Act. The court also held that there was no entrapment (see generally § 12 12 below) and
that, although the police may have played a trick on the accused, there was no guile,
untruth or deception which amounted to disreputable or unacceptable police conduct. Even if
the evidence had been gained in contravention of the Interception and Monitoring Prohibition
Act, such contravention was merely formal [172] and minimal. [173] The facts of this case,
found Cameron J, were clearly distinguishable from S v Hammer and Others [174] (where the
police conduct was unlawful and morally reprehensible) and S v Naidoo and Another [175]
(where the police presented patently false and downright misleading information to a judge
in order to obtain authorisation for third party monitoring). The conduct of the police in
Kidson provided no ground for exclusion; and admission of the evidence could not have
rendered the trial unfair. The court accordingly held that the evidence was admissible.
12 7 2 The interim Constitution
The interim Constitution did not contain any express provision governing the admissibility of
unconstitutionally obtained evidence. At Kempton Park two members of the Technical
Committee
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on Fundamental Rights were in favour of inserting a qualified exclusionary rule in the
proposed interim Constitution. [176] However, the majority of the Committee thought that no
such rule was required and that even a restricted constitutionalization of the exclusionary
rule could have had a detrimental effect on the prevention and combating of crime during
what they thought could have been “an unstable period of political transition”. [177] The view
of the majority prevailed, even though it must have been clear to all concerned that the
common-law crime control inclusionary approach was incompatible with a constitutional due
process system.
When the interim Constitution came into operation, the courts could no longer rely on
decisions like R v Mabuya. [178] In this case Gardiner JP admitted evidence obtained as a
result of what (he assumed, for purposes of argument) had been an unlawful search of a
private dwelling. He remarked as follows: [179]
“The only authority for . . . exclusion comes from the American courts. There are certain decisions
based on the American Constitution which . . . exclude evidence of this nature, but one must bear in
mind the sanctity which the Americans attach to their Constitution. We have not that Constitution
here, and that authority is not applicable.”
Constitutionalization required an immediate and fundamental reappraisal of the South
African jurisprudence concerning the admissibility of illegally procured evidence: if courts of
law were routinely to have received evidence obtained in breach of constitutional rights, the
constitutional rights concerned would have been stripped of their status as constitutional
guarantees. [180] Most courts responded by excluding evidence which, prior to
constitutionalization, would have been admitted: [181] in some instances reliance was placed
on the “appropriate relief” provision that was contained in s 7(4) of the Interim
Constitution; [182] in other instances the courts merely invoked and adapted
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their common-law discretion with vigour in order to meet the demands of constitutional due
process; [183] and in some cases the clear impression was created that a rigid rule of
exclusion had to be applied in respect of unconstitutionally obtained evidence. [184]
The fact that s 35(5) of the Constitution now addresses the admissibility of
unconstitutionally obtained evidence, does not necessarily mean that cases which were
decided under the interim Constitution and which dealt with the topic of unconstitutionally
obtained evidence, have become irrelevant. [185] On the contrary, courts which have been
called upon to interpret s 35(5) of the Constitution, have on several occasions referred to
and relied upon cases decided under the interim Constitution (as will be evident from the
discussion of s 35(5) in §§ 12 9 to 12 10 6 below). For present purposes it is sufficient to
note the following broad principles and trends established in some cases decided under the
interim Constitution and which, it is submitted, probably played an important role in the
formulation of s 35(5) of the Constitution:
12 7 2 1 Protection of the constitutional right to a fair trial
Even though the courts “did not always [identify] the basis of exclusion, it seems usually to
have been done under the overarching right to a fair trial” [186] which was embodied in s 25
(3) of the Interim Constitution and which was on at least two occasions, in respect of
derivative evidence, [187] suggested by the Constitutional Court [188] as
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being the true basis. In S v Melani (hereafter “the second Melani case”) it was held that
violations of constitutional rights “resulting in an accused being conscripted against himself
through some form of evidence emanating from himself would strike at one of the
fundamental tenets of a fair trial, the right against self-incrimination”. [189] Compliance with
constitutional pre-trial rights was necessary to protect the constitutional right to a fair
trial; [190] and non-compliance had to have some measurable consequence, namely
exclusion, not only in order to maintain the longer term purposes of the Constitution but also
to ensure that the constitutional right to a fair trial was not a mere pious promise. On the
basis of the second Melani case as well as several other cases decided under the interim
Constitution, the following principle emerged: the failure of the police to inform, [191] or
adequately to inform, [192] an arrestee [193] of his relevant constitutional rights [194] at every
critical stage [195] of the investigative process, would as a general rule [196] require exclusion
of all testimonial communications — for example, confessions, admissions, pointings out —
received from such an arrestee. These unconstitutionally obtained conscriptive testimonial
communications imperiled the constitutional right to a fair trial and could be excluded
regardless of the fact that all the requirements for admissibility as
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set by s 217 [197] or, where applicable, s 219A [198] of the CPA had been met [199] and
regardless of the fact that the Judges’ Rules [200] had been properly administered and applied
by the police. [201]
The drafters of the interim Constitution had elevated the prophylactic rules in Miranda
(see § 12 5 2 above) to constitutional rights, but stopped short of incorporating the true
essence of Miranda, namely that statements obtained in breach of the warnings must be
excluded. The courts — even though they were not always consistent in their approaches —
were quick to sense that exclusion of testimonial communications was as a general rule
necessary where the arrestee had not been informed of his constitutional rights aimed at
protecting his right to a fair trial. In this respect S v Gasa and Others [202] is probably the
best example. In this case two accused were not fully informed of their rights in terms of
s 25(1)(c) of the Interim Constitution — more specifically, their right to have a legal
representative appointed at state expense in certain circumstances. Howard JP held that
without full knowledge of their rights, the accused could not validly have waived their rights
and that — in the absence of a valid waiver — the pointings out, and any admissions arising
therefrom, were inadmissible. However, in S v Malefo en Andere [203] MJ Strydom J adopted a
different approach. After having set out the various approaches that could be adopted in
respect of the admissibility of testimonial communications obtained in contravention of an
arrestee’s constitutional rights, he decided that he had a discretion. The factual finding was
made that the accused had never suggested — except hypothetically and in passing — that
the failure of the police to advise them of their right to legal representation, had had any
effect on them in making the testimonial communications which they did. On this basis the
court exercised its discretion in favour of admitting the impugned evidence.
12 7 2 2 The discretion to exclude unconstitutionally obtained real evidence
In S v Motloutsi [204] incriminating real evidence was not discovered by the police on account
of a testimonial communication unconstitutionally obtained from the accused, but as a result
of the police’s breach of the accused’s constitutional rights to privacy. The evidence was
excluded. Self-incrimination played no role and therefore trial fairness was not the ground
for exclusion. In fact, the court (correctly, it is submitted) did not even consider this ground.
Relying on the
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Irish decision in The People (Attorney General) v O’Brien, [205] Farlam J expressly rejected
the rule in Mapp (see § 12 5 1 above) as being too rigid. [206] He concluded that the
discretionary approach in the O’Brien case [207] was in accordance with the law in South
Africa. [208] He excluded the real evidence because “there had been a conscious and
deliberate violation of the accused’s constitutional rights and no extraordinary excusing
circumstances existed”. [209] Motloutsi was followed by Van Reenen J in S v Mayekiso en
Andere. [210] In the latter case there was no evidence that the unconstitutional search and
seizure by the police had taken place with a view to preventing the imminent destruction of
significant evidence. Van Reenen J noted that, in the exercise of its discretion, the court
should weigh up the objects of the interim Constitution (protection of human rights) against
policy considerations (the community’s interest in justice being done). [211] The court
ultimately excluded the unconstitutionally obtained real evidence because its limited
probative value was outweighed by the fact that the constitutional right of the accused had
been breached. [212]
12 7 2 3 Public opinion and the repute of the system
Under the interim Constitution it was held that courts, though accountable to the public,
should not seek “public popularity”. [213] It was generally accepted that exclusion might be
necessary despite public opinion to the contrary; [214] and the interests of society, though
relevant, could not ultimately displace the longer term purposes of a Constitution limiting
governmental power and seeking to establish a democratic order based on, amongst other,
the recognition of human rights. [215] In S v Nombewu [216] Erasmus J, having noted that
“public opinion is at most peripheral” to what constitutes a fair trial, [217] pointed out that
public opinion would no doubt be affected by the nature and seriousness of the violation, the
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nature of the crime, the seriousness of the crime and the state of lawlessness prevailing in
the country. [218] Erasmus J, however, also said: [219]
“Not that a court will allow public opinion to dictate its decision . . . The court should in fact endeavour
to educate the public to accept that a fair trial means a constitutional trial, and vice versa.
Pronouncements on human rights by the Courts and academics obviously add body to the
jurisprudence which surrounds the Constitution. But abstract statements of law very often mean
different things to different people, and very little to the bereaved and aggrieved who see factually
guilty accused go free in consequence of some infringement of his constitutional rights by officials
enforcing the law. It is therefore the duty of the courts in their everyday activity to carry the message
to the public that the Constitution is not a set of high-minded values designed to protect criminals
from their just deserts; but is in fact a shield which protects all citizens from official abuse. They must
understand that for the courts to tolerate the invasion of the rights of even the most heinous criminal
would diminish their constitutional rights. In other words, the courts should not merely have regard to
public opinion, but should mould people’s thinking to accept constitutional norms using plain language
understandable to the common man.”
Despite their denials to the contrary, the courts were clearly concerned about the effect of
exclusion on the repute of the administration of justice. And this is one of the reasons why
s 24(2) of the Canadian Charter featured so frequently in cases decided under the Interim
Constitution.
In S v Motloutsi [220] Farlam J, in preferring the Irish approach, took the view that the
criterion “would bring the administration of justice into dispute” as embodied in s 24(2) of
the Canadian Charter, was “too narrow”. [221] The impact of admission on the repute of the
system, held Farlam J, was “but one factor, although an important one, to be taken into
account”. [222] However, in several other decisions the courts came very close to adopting the
approach as set out in s 24(2) of the Charter. [223] And in S v Malefo en Andere [224] Strydom
J in fact adopted the Canadian approach in toto.
According to Strydom J the following question taken from R v Collins [225] had to be asked:
would the admission of the challenged evidence discredit the administration of justice in the
eyes of a reasonable person regarding the matter dispassionately, and who was fully aware
of (“ten volle bewus van”) the circumstances of the case? [226] Strydom J also quoted with
approval that part of R v Collins where Lamer J identified the various factors which the
Canadian courts had most frequently considered in answering this question. [227]
Page 229
12 8 Section 35(5) of the Constitution
The principles and trends established by the High Court in respect of the admissibility of
evidence obtained in breach of rights embodied in Chapter 3 of the Interim Constitution (see
§§ 12 7 2 to 12 7 2 3 above), probably played a significant role in the formulation of 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.” The general preference of the
High Court for the Canadian approach (see § 12 7 2 3 above) must also have played some
role. Section 35(5) is “[i]n structure and wording . . . closely modelled” [228] on s 24(2) of the
Canadian Charter, which was quoted in § 12 6 above. In S v Naidoo and Another McCall J
held: [229]
“Having regard to the similarity between s 35(5) of the new Constitution and s 24(2) of the Canadian
Charter (but bearing in mind the differences between the two enactments), [230] and also the provision
in s 39(1)(c) that when interpreting the Bill of Rights, a court may consider foreign law, I am of the
view that it is more helpful to interpret the provisions of s 35(5) with reference to the Canadian
decisions than to those South African cases dealing with a more general discretion based on the
decision in The People (Attorney General) v O’Brien.” [231]
Langenhoven supports this approach in principle [232] but also warns that South African
courts should be careful in following the Canadian case law on s 24(2) in all respects,
because the Canadian Supreme Court has moved in the direction of a “omvattende
uitsluitingsreël” [233] and has created an “extremely aggressive exclusionary remedy” [234] —
the precise situation which s 24(2) was designed to avoid. [235]
Page 230
Section 35(5), like s 24(2), can be described as a qualified exclusionary rule. Section 35
(5) contains a constitutional directive to the effect that evidence obtained in a manner that
violates any right in the Bill of Rights, must be excluded. This directive, however, becomes
operative only where admission of the unconstitutionally obtained evidence would render the
trial unfair (see § 12 9 below) or would otherwise be detrimental to the administration of
justice (see § 12 10 to 12 10 6 below). On the basis of this analysis, the courts have a duty
as well as a discretion. There is a duty to exclude if admission would have one of the
consequences identified in the section. [236] In this respect there is no discretion but a fixed
constitutional rule of exclusion. [237] However, in determining whether admission would have
one of the two identified consequences, a court is required to make a value judgment [238] —
and in this respect there is a discretion which must, obviously, be exercised having regard to
all the facts of the case, fair trial principles and, where appropriate, considerations of public
policy. It should be noted that what is relevant or decisive for purposes of determining
whether admission would render the trial unfair, is not necessarily also relevant or decisive
for purposes of determining whether admission would be detrimental to the administration of
justice. For example, factors like the seriousness and prevalence of the crime, cannot tip the
scales in favour of admission if admission would indeed render the trial unfair (see § 12 9
below). In S v Naidoo and Another McCall J pointed out that the words “or otherwise” in s 35
(5) mean that an unfair trial is always detrimental to the administration of justice. [239] The
reverse, of course, is not true: if admission would not render the trial unfair, exclusion might
still be necessary on the basis that admission would be detrimental to the administration of
justice. In S v Tandwa and Others Cameron JA, Mlambo JA and Hancke AJA said: [240]
“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 subset of
Page 231
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.”
Steytler has made the following valid observations:
[241]
“It should be noted that there is principally one test — whether the admission of evidence would be
detrimental to the administration of justice. The test relating to the fairness of the trial is a specific
manifestation of this broader enquiry; to have an unfair trial is demonstrably detrimental to the
administration of justice. Having said this, it should be emphasized that section 35(5) has created two
tests which should be kept separate; rules applicable to one are not necessarily applicable to the
other.”
In the present work the two tests are also kept apart: the test whether “admission
would . . . render the trial unfair”, is discussed in §§ 12 9–12 9 8 below; and the second (or
alternate or over-arching) test whether “admission . . . would otherwise be detrimental to
the administration of justice”, is discussed in §§ 12 10–12 10 6 below. But it will also
become evident that there is considerable over-lapping.
12 8 1 Section 35(5): The threshold test
The threshold test for purposes of s 35(5) is the following: is the objection to the admission
of the evidence based upon the violation of a constitutional right (“any right in the Bill of
Rights”) or the violation of a non-constitutional right (for example, where a statute has
conferred “more extensive rights” [242] on the accused than those which are explicitly or
impliedly found in the Bill of Rights)? Section 35(5) will attract application only where
evidence was obtained after a breach of constitutional rights (see § 12 8 2 below) or in
breach of constitutional rights. [243] The admissibility of evidence obtained improperly or
illegally — but not in violation of a right in the Bill of Rights — must be determined on the
basis of the court’s common-law discretion (as set out in § 12 7 1 above). But in the
exercise of its common-law discretion, the court should ensure that the constitutional right
to a fair trial is not jeopardised by the admission of improperly or illegally obtained evidence.
It has rightly been pointed out that s 35(5) “was intended to add to and not to distract from
the constitutional right to a fair trial”. [244] The fact that s 35(5) is confined to evidence
obtained in breach of constitutional rights, provides no ground for an inference that “the
framers of the . . . Constitution intended to restrict the right to a fair trial by allowing
illegally or improperly obtained evidence to be admitted even if it rendered the trial
unfair”. [245] This is also the clear implication of S v Kidson [246] as discussed in § 12 7 1
above.
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12 8 2 Section 35(5): The causal link between violation and
procurement
The Canadian Supreme Court takes the view that the words “obtained in a manner” in s 24
(2) of the Charter do not demand a strict or direct causal link between the breach of a
Charter right and the securing of the evidence. [247] In R v Strachan [248] it was held that the
problems and pitfalls of causation could be avoided by focusing on the entire chain of events
during which the Charter breach occurred and the evidence was obtained. The court
emphasised the value of a temporal link (for example, where the violation and procurement
of the evidence took place in the course of a single transaction) in assessing the issue
whether the evidence was obtained in a manner that infringed a Charter right, but also
added the following: [249]
“The presence of a temporal requirement is not, however, determinative. Situations will arise where
evidence, though obtained following the breach of a Charter right, will be too remote from the
violation to be ‘obtained in a manner’ that infringed the Charter . . . [T]hese situations should be dealt
with on a case-by-case basis. There can be no hard-and-fast rule for determining when evidence
obtained following the infringement of a Charter right becomes too remote.”
R v Goldhart [250] is an example of a case where the Supreme Court of Canada, in an eight to
one majority, concluded that the causal connection between the Charter breach and the
evidence was too weak to attract the application of s 24(2). In this case the accused, G, was
charged with cultivating dagga. At the trial real evidence obtained during a search in breach
of G’s rights under s 8 of the Charter, was excluded. However, G was convicted on the
evidence of a former co-accused who had earlier pleaded guilty and who was present at the
time of the unconstitutional search. On appeal G was acquitted on the basis that there was a
causal link between the co-accused’s oral testimony and the unconstitutional search: had the
police not conducted the unconstitutional search, the co-accused would not have been
arrested, would have had no reason to come forward and would not have given evidence
against G. On an appeal by the Crown to the Supreme Court, it was held that the testimony
of the co-accused had not been obtained in a manner that infringed a right or freedom under
the Charter. There was an insufficient link or causal connection. The co-accused’s decision to
co-operate with the police, plead guilty and testify against G was a decision which he had
taken of his own free will and which had been brought about largely by his recent conversion
as a born-again Christian. In these circumstances, the decisive factor was not the arrest of
the
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co-accused, but his subsequent voluntary decision to testify: the discovery of the witness
following upon a Charter breach could not be equated with the evidence of this witness. [251]
In S v Mthembu [252] it was common cause that R, a prosecution witness and accomplice
who had testified after having been warned in terms of s 204 of the CPA, had been tortured
by the police some four years prior to his testifying in court and — as a result of the torture
— had made a statement that led to the discovery of articles incriminating the accused.
Cachalia JA (Cameron JA and Maya JJA concurring) found that the fact that the evidence was
obtained in breach of the constitutional rights of the witness — as opposed to those of the
accused — was no bar to subjecting the impugned evidence (the oral evidence of R and the
real evidence) to the admissibility test as provided for in s 35(5) of the Constitution (see
§ 12 8 3 below). As regards the chain of events or causal link between R’s torture and his
subsequent testimony in court, Cachalia JA found that R had
“made his statement to the police immediately after the metal box was discovered at his home
following his torture. That his subsequent testimony was given apparently voluntarily does not detract
from the fact that the information contained in that statement pertaining to the Hilux and metal box
was extracted through torture. It would have been apparent to him when he testified that, having
been warned in terms of s 204 of the Act, any departure from his statement would have had serious
consequences for him. It is also apparent from his testimony that, even four years after his torture,
its fearsome and traumatic effects were still with him. In my view, therefore, there is an inextricable
link between his torture and the nature of the evidence that was tendered in court. The torture has
stained the evidence irredeemably.” [253]
R’s evidence relating to the Hilux and metal box was accordingly excluded under the second
leg of the test in s 35(5) and irrespective of whether admission thereof would have had an
impact on the right of the accused to a fair trial.
In S v Mark and Another [254] four prosecution witnesses who were prisoners at the time of
the death of the deceased and who were eye-witnesses to the murder of the deceased,
admitted in their evidence in court that shortly after the murder they were assaulted by
prison warders who wanted them to disclose the identity of the murderer(s). Both counsel
for the defence sought exclusion of the oral testimony of the witnesses on the basis of, inter
alia, the provisions of s 35(5). Davis J proceeded from the premise that there had to be “a
sufficient link” [255] between the oral testimony of the four witnesses and the earlier
infringement of their constitutional rights to dignity and bodily integrity. He then held: [256]
“The difficulty in this case is that each of the four witnesses testified in open court some two and a
half years after the events; they all insisted as a result of examination and
Page 234
cross-examination that they had testified voluntarily. They claimed that they wished to testify because
an innocent person had been murdered. Even if they were somewhat apprehensive in their testimony,
that may well have been due to fear of reprisals from prison gangs rather than from the authorities.
In two cases the witnesses were already discharged from prison (and a third was discharged during
the trial). While the statements were unquestionably tainted, it would be a dramatic extension of the
poisoned fruit doctrine to conclude that evidence given by witnesses in the circumstances I have
outlined should be declared inadmissible as opposed to it being subject to careful scrutiny.”
In this case the link was extremely weak — if not entirely missing; and the fact that the
witnesses had testified voluntarily also caused a break in the rather lengthy chain of events
— in so far as it is possible to refer to a chain of events in this case. It should be noted that
Davis J held that the statements obtained by the authorities from the witnesses after the
incident and after the assaults, were “unquestionably tainted”, but not the oral testimony in
court. This was not a situation, said he, where the case for the prosecution was based on
evidence extracted by torture. [257] In such an instance exclusion would have been required.
It should be mentioned, in passing, that issues concerning “standing” (see § 12 8 3 below)
were neither raised nor considered in S v Mark and Another. In Mark both accused sought
exclusion not on the basis that the impugned testimony was obtained in violation of their
constitutional rights, but in violation of the rights of the four prosecution witnesses. It was
argued that admission of the oral evidence of the latter would render the trial of the accused
unfair or otherwise be detrimental to the administration of justice. S v Mark and Another
obviously did not involve the risk of unconstitutionally obtained self-incriminating evidence
which could or would have affected the right to a fair trial.
Where an accused relies on s 35(5) in circumstances where it is alleged that the impugned
evidence was obtained as a result of a breach of his constitutional rights, it seems as if a
fairly liberal interpretation should be given to the words “[e]vidence obtained in a manner
that violates any right in the Bill of Rights.” In S v Soci [258] Erasmus J — having noted that
the Constitution is no ordinary statute and having assumed that a purposeful interpretation
was required — concluded that the evidence referred to in the words “[e]vidence obtained in
a manner that violates any rights in the Bill of Rights” in s 35(5) included all acts performed
by a detainee subsequent to an infringement of his constitutional rights in the course of pretrial investigations. [259] He also took the following view: [260]
“Only on such basis can the evidence of the pointing-out and the statement by the accused be said to
have been ‘obtained in violation of a right in the Bill of Rights’ even in the absence of a causal
connection between the violation and the subsequent self-incriminating acts by the accused. On such
basis prejudice would not be a consideration
Page 235
in establishing the presence of the jurisdictional fact that the evidence was ‘obtained’ in a manner that
violates the Bill of Rights . . . However, a prejudice to the accused, in my view, becomes relevant
under the requirement in s (5) that the evidence must be excluded ‘if the admission of that evidence
would render the trial unfair’ . . . This view accords with the explicit terms of s 35(5) that the violation
must ‘render’ the trial unfair. [261] It is further to be noted that s 35(5) provides that the evidence shall
be excluded — in the alternative — if the admission of that evidence would ‘otherwise be detrimental
to the administration of justice’. The court has the power (indeed duty) to exclude evidence if the
admission thereof would bring the administration of justice into dispute, even where there is no causal
connection between the constitutional infringement and the subsequent self-incriminatory acts by the
accused. It seems to me that the question of prejudice lies at the very basis of the distinction between
the two requirements in s (5).”
The court, having made the factual finding that the accused had not been informed by the
police that he was entitled to consult a lawyer prior to and in connection with the proposed
pointing out, concluded that the issue of admissibility had to be decided “on the basis that
there was a . . . link between the infraction of the right and the accused’s pointing-out’. [262]
The evidence of the pointing out was excluded. In respect of a confession made by the
accused to a magistrate less than three hours after the pointing out, the factual finding was
made that the accused, fully informed of his rights by the magistrate, had nevertheless
decided to make a statement without first consulting a legal representative. Erasmus J
held: [263]
“It could, of course, be argued that his decision to make the statement was affected by his earlier
pointing-out. But the fact of the matter here is that the accused was fully informed of his rights and in
fact advised to obtain legal assistance. What he would or would not have done but for the preceding
pointing-out is a matter of speculation. In my view therefore the admissibility of the statement must
be decided on the basis that there was no causal connection between the failure on the part of the
police to advise the accused of his rights properly and the subsequent statement made to the
magistrate.”
Soci, it is submitted, is an example of a case where a valid waiver provided a break in the
chain of events (see also § 12 9 5 below). The accused voluntarily, knowingly and
intelligently decided not to consult a legal practitioner prior to his making a statement to the
magistrate — a decision which was neither directly nor indirectly affected by the prior
unconstitutional conduct of the police in relation to the pointing out. That is why there was
no link. In this respect, however, Soci should be compared with the Canadian Supreme
Court decision R v I (LR). [264] In this case a young person’s first statement to the police was
excluded because he was in breach of the Charter not informed of his right to retain and
instruct counsel. However, for purposes of a second statement he
Page 236
was so informed. The court nevertheless also excluded the second statement under s 24(2)
of the Charter. There was a close temporal relationship between the two statements and the
second was really a continuation of the first. The first statement was, furthermore, a
substantial factor which led to the second statement. [265]
It is submitted that there are good reasons why a strict causation test should not be
followed. A strict test will compromise the judicial integrity rationale (see § 12 4 4 above) of
s 35(5) and would also undermine the principle of self-correction (see § 12 4 5 above) in
terms of which courts should not tolerate or accommodate abuses in the system. A strict
causation test might also have an adverse impact on the deterrent purpose or basis of the
exclusionary rule (see § 12 4 1 above) embodied in s 35(5): state officials and agents of the
state should not be permitted to operate on the basis that violations of constitutional rights
will be tolerated if remotely connected to the procurement of the evidence. At any rate, a
strict causation test diverts attention from the two true tests embodied in s 35(5), namely,
whether admission of the evidence would render the trial unfair or otherwise be detrimental
to the administration of justice.
12 8 3 Section 35(5) and “standing”
In the USA the accused must in principle have so-called “standing” before he can rely on the
exclusionary rule. [266] This means that there must have been a violation of the rights of the
accused; for example, if A’s house is searched by the police in breach of the Fourth
Amendment, any evidence obtained that incriminates B may be admitted at B’s trial but not
at A’s trial. [267] Standing is also a requirement in Canada. [268] However, there is no such
restriction as far as s 35(5) of the Constitution is concerned. In S v Mthembu Cachalia JA
held: [269]
“A plain reading of s 35(5) suggests that it requires the exclusion of evidence improperly obtained
from any person, not only from an accused. There is, I think, no reason of principle or policy not to
interpret the provision in this way. It follows that the evidence of a third party, such as an accomplice,
may also be excluded, where the circumstances of the case warrant it. This is so even with real
evidence. As far as I am aware, this is the first case since the advent of our constitutional order where
the issue has pertinently arisen.”
It is submitted that there are indeed no grounds upon which a requirement of “standing” can
be read into s 35(5) of the Constitution. There is nothing in the language of s 35(5) which
calls for a restrictive interpretation. A requirement
Page 237
of “standing” would also be inconsistent with the “preventive effect” rationale (see § 12 4 1
above) of s 35(5) and would, furthermore, ignore the essential form of judicial “remote
control” which courts can through s 35(5) exercise over police officials when they operate in
the field. [270] Judicial integrity (as discussed in § 12 3 above) would also be seriously
compromised by a requirement of “standing”. It is true that s 35(5) forms part of a section
that deals with the rights of arrested, detained and accused persons. At the same time,
however, it is equally true that s 35(5) refers to “any right in the Bill of Rights” and does not
specify who the bearer of such right should be. To argue that s 35(5) can only be activated
in respect of evidence obtained in breach of a constitutional right of an accused, is to lose
sight of the true focus of s 35(5), namely to ensure that the admission of unconstitutionally
obtained evidence would not have the consequences identified in the section.
Langenhoven also rejects the idea that “standing” is a prerequisite. According to him, s 35
(5) is not a personal remedy, but “’n indirekte meganisme om alle individue se grondwetlike
regte te beskerm”. [271] However, he argues that a court may — in its assessment of the
issue whether the admission of the evidence would be detrimental to the administration of
justice — take into account the fact that constitutional rights of a third party and not those
of the accused, were violated. [272]
It is submitted that the provisions of s 39(1)(a) of the Constitution also provide further
support for the argument that a requirement of “standing” should not be read into s 35(5).
There also seems to be no reason why the admissibility of evidence obtained in breach of the
constitutional rights of the accused should be dealt with in terms s 35(5) whereas the
admissibility of the same type of evidence which involved the constitutional rights of third
parties, should fall under a court’s common-law discretion as set out in § 12 7 1 above.
12 8 4 Section 35(5) and the admissibility of evidence
unconstitutionally procured by private individuals
Section 35(5) also applies to the situation where the prosecution wishes to introduce
evidence unconstitutionally obtained by private individuals [273] who, in obtaining this
evidence, had acted quite independently from the state and its law enforcement officers,
officials
[274]
Page 238
or agents. [275] The courts should not permit a “silver platter” situation, [276] that is, a
situation where the provisions of s 35(5) can be ignored on account of the fact that the
impugned evidence was not procured by the unconstitutional conduct of the state but only
made available to it by a private individual who had secured it in breach of constitutional
rights. Section 35(5) applies to a situation where vigilantes, having decided to resort to selfhelp by not involving the police in the investigation of the crime, obtain evidence in breach
of the constitutional rights of the accused. [277] Section 35(5) also covers the situation where
the police abdicate their constitutional and statutory duty to investigate crime, by
“subcontracting” it to anti-crime committees who gather evidence by seriously and
deliberately violating the constitutional rights of the accused. [278]
The question therefore ought to be whether the admission of the unconstitutionally
obtained evidence which the state seeks to use — and not which the state had necessarily
procured — would have the consequences identified in s 35(5).
It does not follow, however, that the court should, in deciding the question of admissibility
of the impugned evidence, disregard the fact that it was an individual — and not the state —
which had procured the evidence in breach of constitutional rights. Obviously, if the court
concludes that admission would render the trial unfair the evidence must be excluded.
However, where the issue is whether admission would be detrimental to the administration
of justice, a court would be perfectly entitled to take into account that it was an individual —
and not the state — which had procured the evidence. In such an instance the disciplinary
function of the court and the need to ensure that the state makes use of constitutionally
permissible investigative techniques, can hardly play a role. The issue is not the traditional
one of protecting individuals against abuse of power by the state, but protecting individuals
against abuses of their rights by other individuals. Of course, the courts should be careful to
ensure that the individual did act independently from the police and was not part of a sham
or strategy designed to conceal police involvement in unconstitutional conduct. [279]
Page 239
12 8 5 Section 35(5) and the limitations clause in s 36
In terms of s 36(1) only a “law of general application” — and this is the minimum
requirement [280] — can validly limit a right in the Bill of Rights. The “law of general
application” could be a statutory or common-law rule. [281] Police conduct which is not
authorised by a law of general application, can never “limit” a right in the Bill of Rights on
the basis that, for example, it was reasonable and justifiable conduct having regard to all the
circumstances of the case and therefore a “permissible” limitation of the constitutional right
in question, rendering s 35(5) inapplicable or without any effect. [282] Section 36(1) does not
permit this line of reasoning. [283] The evidence will remain unconstitutionally obtained
evidence. However, for purposes of determining whether admission of such
unconstitutionally obtained evidence would result in one or both of the consequences
identified in s 35(5), the court may in the exercise of its discretion take into account the
circumstances under which the evidence was obtained (see, for example, § 12 9 4 below).
Section 36(1) applies to the situation where it is alleged that the evidence was obtained
unconstitutionally in that the statutory or common-law rule in terms of which it was
obtained, is a constitutionally impermissible limitation of one or more of the rights in the Bill
of Rights. [284] A court of competent jurisdiction must then determine the constitutional
validity of the impugned rule of law.
12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair
trial
In S v Aimes and Another [285] Desai J held that the admission of accused number one’s bail
evidence — obtained in breach of his right to be advised to remain silent — would violate his
right to a fair trial. But it was also clear that exclusion of the bail evidence of accused
number one would in the circumstances of the case also have infringed accused number
two’s right to adduce evidence, which in turn would have violated the latter’s right to a fair
trial. Desai J ruled (correctly, it is submitted) that accused number one’s bail evidence could
be used by accused number two for purposes of cross-examining accused number one or
any other purpose, provided that accused number one’s bail evidence could not be used to
prove the truth of its contents against accused number one. Desai J held that it was
unnecessary to decide whether the issue had to be
Page 240
dealt with in terms of the interim Constitution or s 35(5) of the Constitution. The result, he
found, would have been the same.
12 8 7 Section 35(5) and impeachment of the accused
The question whether the “impeachment” exception created by the Supreme Court of the
USA — see § 12 5 2 3 above — should apply to s 35(5), is discussed in § 25 5 below in the
chapter which deals with the impeachment of the credibility of witnesses, including the
accused as a defence witness.
12 8 8 Sections 35(5) and 37: Derogation in states of emergency
In terms of s 37(1) of the Constitution a state of emergency may be declared only in terms
of an Act of Parliament — and only when the life of the nation is threatened by war,
invasion, general insurrection, disorder, natural disaster or other public emergency and,
furthermore, only when such a declaration is necessary to restore peace and order. During
such an emergency certain rights may not be derogated from, or may only be derogated
from to a certain extent. That part of s 35(5) which deals with the exclusion of evidence if
the admission of such evidence would render the trial unfair, is non-derogable. [286] The
implication is that where a state of emergency has been declared, an Act of Parliament may
suspend that portion of s 35(5) which deals with the question whether admission of the
evidence would be detrimental to the administration of justice. But even here such a
derogation from s 35(5) must be “strictly required by the emergency”. [287]
12 9 The First Leg [288] of the Test in s 35(5): “must be excluded
if . . . admission . . . would render the trial unfair”
In § 12 8 above it was pointed out that the words “or otherwise” in s 35(5) make it clear
that an unfair trial is detrimental to the administration of justice. [289] But when would
admission render the trial unfair? What is an unfair
Page 241
trial? And furthermore: does the reference to an unfair trial in s 35(5) apply to the accused
only or to the accused and the prosecution?
12 9 1 Trial fairness
As a point of departure it should be noted that s 35(5) of the Constitution — unlike s 24(2)
of the Canadian Charter — makes specific reference to trial fairness as a criterion. In Canada
trial fairness to the accused had to be read into s 24(2) by the Canadian Supreme Court (see
§ 12 6 1 above). Given the fact that s 35(5) is clearly modelled on s 24(2), [290] it is perhaps
somewhat surprising that s 35(5) does not state explicitly whether unfairness of the trial
relates to the accused only or to the accused and prosecution. Zeffertt has highlighted this
vagueness or omission. [291] However, it is submitted that — having regard to the textual
setting of s 35(5) as a subsection in a section of the Bill of Rights that determines the rights
of arrested, detained and accused persons [292] — the constitutional right of the accused to a
fair trial (see § 12 9 2 below) must inevitably be the decisive standard or yardstick for
determining the admissibility of the impugned evidence. Unfairness to the prosecution if the
evidence is excluded and unfairness to the accused if the evidence is admitted, are therefore
factors which go into the scale [293] for purposes of determining the ultimate question: would
admission infringe the accused’s constitutional right to a fair trial? And whilst unfairness to
the prosecution forms part of the process of determining this question, a court is clearly
precluded from making a finding that exclusion of the evidence will be so unfair to the
prosecution (or the victim, or society) that the evidence must be admitted despite the fact
that such admission would deprive the accused of his constitutional right to a fair trial. [294]
Even under the interim Constitution the Constitutional Court in an oft-quoted passage made
it clear: “What the Constitution demands is that the accused be given a fair trial.” [295]
Having identified this constitutional demand, the court noted that ultimately fairness is an
issue which has to be determined on the basis of the
Page 242
facts of each case and that the trial court is best placed to decide this issue. [296] It was also
said that fairness, at times, might require exclusion of unconstitutionally obtained evidence
and that fairness, at times, might require admission of such evidence. [297] At no stage,
however, was it said or implied that unfairness to the prosecution can justify admission even
if such admission would deprive the accused of his constitutional right to a fair trial. The
bottom-line is that the accused’s constitutional right to a fair trial may not be sacrificed.
12 9 2 The content of the accused’s constitutional right to a fair trial
Constitutionalization has had a great impact on the traditional meaning of a fair trial. In
1992 the (then) Appellate Division could still declare that a fair trial was “a trial initiated and
conducted in accordance with those formalities, rules and principles of procedure which the
law requires [and that an accused] is not entitled to a trial which is fair when tested against
abstract notions of justice”. [298] But constitutionalization required a different approach [299]
which Ackermann J, writing for a unanimous Constitutional Court, described and
supplemented as follows in S v Dzukuda and Others; S v Tshilo: [300]
“[A]n accused’s right to a fair trial under s 35(3) of the Constitution is a comprehensive right and
‘embraces a concept of substantive fairness which is not to be equated with what might have passed
muster in our criminal courts before the Constitution came into force’. Elements of this comprehensive
right are specified in paras (a) to (o) of sub-s (3). The words ‘which include the right’ preceding this
listing indicate that such specification is not exhaustive of what the right to a fair trial comprises. It
also does not warrant the conclusion that the right to a fair trial consists merely of a number of
discrete sub-rights, some of which have been specified in the subsection and others not. The right to
a fair trial is a comprehensive and integrated right, the content of which will be established, on a case
by case basis, as our constitutional jurisprudence on s 35(3) develops.”
This case did not deal with the admissibility of unconstitutionally obtained evidence. It is
submitted, however, that the above-quoted passage provides the essential background in
terms of which the fair trial requirement in s 35(5) should be interpreted.
12 9 3 Trial fairness and the court’s discretion
It is submitted that the Constitutional Court’s broad formulation of the right to a fair trial and
its caveat that it would be imprudent in a particular case to attempt a comprehensive
exposition of such right, really confirm that the fair trial requirement in s 35(5) is flexible
enough to permit a discretion which has to be exercised on
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the basis of the facts of the case [301] and factors and considerations like the nature and the
extent of the constitutional breach, [302] the presence or absence of prejudice to the
accused, [303] the need to ensure that exclusion of evidence does not tilt “the balance too far
in favour of due process against crime control”, [304] the interests of society [305] and,
furthermore, public policy. [306] This is not an exhaustive list of factors or considerations
which can or must be taken into account in determining whether admission of the evidence
would deprive the accused of his constitutional right to a fair trial; and nor can there be such
a list, given the Constitutional Court’s broad analysis of a fair trial and the trial court’s
discretion, in terms of s 35(5), to decide whether admission of the impugned evidence would
render the trial unfair.
In S v M the Supreme Court of Appeal — per Heher AJA with Harms and Brand JJA
concurring — noted, with reference to s 35(5) and Key v Attorney-General, Cape Provincial
Division, and Another, [307] that “[t]here is no doubt that . . . a discretion exists . . . under
the Constitution, upon the question of whether admission would or would not offend the
constitutional guarantee of the right to a trial conducted in accordance with notions of basic
fairness and justice inherent in a civilized system of criminal administration.” [308]
In S v Tandwa and Others Cameron JA, Mlambo JA and Hancke AJA said, with reference to
several High Court decisions, that relevant factors for purposes of determining trial fairness
would 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
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they stem from the deliberate conduct of the police or are flagrant in nature. 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. Rights violations are not severe, and the resulting trial not
unfair, if the police conduct was objectively reasonable and neither deliberate nor flagrant.” [309]
12 9 4 The privilege against compelled self-incrimination: trial fairness
and the court’s discretion
Apart from such constitutional rights as the right to be presumed innocent, to remain silent
and not to testify during the proceedings, [310] an accused also has a right “not to be
compelled to give self-incriminating evidence” [311] — a right which is “inextricably linked to
the right of an accused to have a fair trial”. [312] These trial rights are also protected at the
pre-trial stage: in terms of s 35(1)(a) and 35(1)(b) of the Constitution an arrested person
has the right not only to remain silent, but also to be informed promptly of the right to
remain silent and of the consequences of not remaining silent. An arrested person also has
the constitutional right not to be compelled to make any confession or admission that could
be used in evidence against him. [313] An arrestee — in his capacity as a detained person —
also has a constitutional right to be informed promptly of his right to choose, and to consult
with, a legal practitioner. [314] He also has the right to be informed promptly of his right to
have a legal practitioner assigned to him “by the state and at state expense, if substantial
injustice would otherwise result . . .” [315]
The above rights and warnings are — like the judicially created prophylactic rules in
Miranda [316] — aimed at protecting the privilege against self-incrimination and, ultimately,
the right to a fair trial. But evidence obtained in the absence of these warnings is not — as is
required by the exclusionary rule in Miranda and as was done under the interim Constitution
in S v Gasa and Others [317] — subject to automatic exclusion: the issue of admissibility must
be dealt with in terms of s 35(5) even though the broad pattern which developed under the
Interim Constitution — and which was set out in § 12 7 2 1 above — can assist in the
interpretation and application of s 35(5). [318]
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The approach which our courts have adopted for purposes of s 35(5), seems to be that
whilst the absence, or inadequate furnishing, [319] of the constitutionally required warnings
does have an adverse impact on the fairness of the entire process, it does not mean that
admission of the evidence so obtained would inevitably result in the accused being deprived
of his constitutional right to a fair trial. S v Lottering [320] is a case in point. The accused,
having stabbed the deceased in the back, ran into a nightclub. A witness, D, informed a
policeman, M, that the accused was in the nightclub. D accompanied M into the nightclub
where D pointed out the accused to M. M informed the accused of the allegation against him,
arrested the accused and demanded to know “the whereabouts of the weapon that was
used”. [321] The accused pointed out L and the latter handed the knife to M. The defence
attorney, relying on s 35(5), objected to the admission of this evidence on the basis that
after the accused’s arrest and prior to his pointing out L, the accused had not been informed
by M of his constitutional rights to silence and legal representation. The trial court held a
trial within a trial, after which the evidence of the pointing out of L and the production of the
knife by L was admitted. On appeal it was argued that the evidence should have been
excluded on the grounds raised in the court a quo and, furthermore, that if the pointing out
of L and the subsequent discovery of the knife were held inadmissible, L’s evidence which
directly flowed from the inadmissible pointing out should, in turn, then also be ruled
inadmissible. [322]
In dealing with the matter on appeal, Levinsohn J identified factual and legal matters
which were common cause: first, the constitutional rights of the accused were violated;
second, the accused had made an admission incriminating himself in the commission of the
crime; [323] third, the framers of the Constitution had in mind that an accused’s rights should
at all times be respected and that “the police and other persons who have rights of arrest
and detention should not simply pay lip service to these rights but should at all times
meticulously observe them.” [324] Having noted that s 35(5) does not require exclusion of all
evidence obtained in violation of a constitutional right, Levinsohn J — relying on Steytler [325]
— held that the court has the task of making a “value judgment.” [326] According to
Levinsohn J the court exercises its
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discretion by weighing up the competing interests [327] (see also § 12 2 above). The court
also emphasised the importance of excluding evidence in order to enforce constitutional due
process (see also § 12 4 2 above): “The administration of justice would, in my opinion, not
countenance a flagrant and deliberate violation of an accused’s constitutional rights. Any
evidence discovered in consequence of such a violation ought to be excluded, otherwise the
Constitution would become a dead letter.” [328] Against this background, Levinsohn J
exercised his discretion as follows: [329]
“[T]here are violations which are not deliberate or flagrant. I venture to say that [M]’s failure to warn
the appellant falls into that category. As the magistrate points out, [M] had to act expeditiously to
recover the knife and he did what any reasonable policeman would have done, that is to question his
suspect. There were no threats, no intimidation and indeed no force used by him. The magistrate is
right in saying that the appellant acted voluntarily. The question of prejudice to the appellant is a
factor which can legitimately be weighed in the scales as well. The appellant did not testify in the trialwithin-a-trial. One would have expected him to get into the witness box and say that if he had been
apprised of his rights he would definitely not have made the pointing-out that he did. That he suffered
prejudice was purely speculative . . . To sum up then, circumstances surrounding the pointing-out by
the appellant coupled with considerations of public policy show that it is not detrimental to the
interests of justice to admit the disputed evidence. It follows, therefore, that the regional magistrate
exercised his discretion correctly. I hasten to say that each case must be judged on its own facts and
the decision in this one must not be construed as a licence to police officers to ignore or overlook the
constitutional protection afforded to accused persons.”
The court’s ultimate finding that admission of the impugned evidence was not detrimental to
the administration of justice, clearly implies that the court was also satisfied that admission
would not have rendered the accused’s trial unfair.
It is submitted that for purposes of answering this fair trial issue, the court was fully
entitled to take into account that M had to act expeditiously and did not obtain the evidence
from the accused as a result of a lengthy police interrogation during which the accused was
deliberately not informed of his constitutional rights. In Lottering M — unlike his colleagues
in S v Seseane [330] and S v Mphala and Another [331] — also did not have a modus operandi
or deliberate strategy to trap an unwitting accused. Given the circumstances in Lottering, M
“did what any reasonable policeman would have done, that is to question his suspect” [332]
without first having administered the required warnings. It is submitted that in these
circumstances those notions of basic fairness and justice which form an essential component
of the constitutional right to a fair trial, do not demand exclusion of the evidence of the noncompelled
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self-incriminating testimonial communication made by the accused to M in response to the
latter’s question. “[N]otions of basic fairness and justice”, must be applied with reference to
the facts of the case and have an inherent flexibility which links up neatly with the fact that
s 35(5) provides a court with a discretion to determine whether the impugned evidence
would render the trial unfair.
It is submitted that there is a close analogy between Lottering and New York v
Quarles [333] where the Supreme Court of the USA created a “public safety” exception (see
§ 12 5 2 2 above) to the requirement that the Miranda-warnings be given (see § 12 5 2
above). Writing for the majority, Rehnquist J held that the accused’s statement (“the gun is
over there”) and the real evidence (a revolver) — both of which were obtained prior to the
accused having been warned in terms of Miranda v Arizona [334] — were admissible on
account of the following factual and legal grounds: [335]
“The police in this case, in the very act of apprehending the suspect, were confronted with the
immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe
the suspect had just removed from his empty holster and discarded in the supermarket. So long as
the gun was concealed somewhere in the supermarket with its actual whereabouts unknown, it
obviously posed more than one danger to the public safety: an accomplice might make use of it, or a
customer or employee might later come upon it . . . Officer [K] needed an answer to his question not
simply to make his case against [Q] but to insure that further danger to the public did not result from
the concealment of the gun in a public area. We conclude that the need for answers to questions in a
situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting
the Fifth Amendment’s privilege against self-incrimination.”
At no stage was it held that the public safety exception was an exception to the right to a
fair trial. New York v Quarles, it is submitted, merely confirms that the admission of
evidence obtained in breach of those warnings designed to protect the privilege against selfincrimination, does not offend against the right to a fair trial if the unconstitutional police
conduct was objectively reasonable having regard to the facts of the case. [336] Given the
rigid rule of exclusion in Miranda, the Supreme Court of the USA was not in a position to
address the issue of admissibility on the basis of a discretion. It had to create the “public
safety” exception. But the fact that such an exception exists in the USA and is not
considered to be in conflict with the right to a fair trial, is relevant for purposes of
interpreting the fair trial requirement in s 35(5).
In S v Soci [337] the accused made a pointing out to the police in circumstances where he
was not — prior to and for purposes of the pointing out — properly informed of his right to
legal representation (see also § 12 10 1 below).
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Erasmus J held that on the facts it had to be accepted that the accused, if he had been
properly informed, would have secured the services of an attorney who would have advised
the accused not to make a pointing out and, furthermore, that the accused would probably
have followed this advice. Erasmus J excluded the evidence of the pointing out. On the
adequacy of the warnings, it was noted that no hard-and-fast rules could be laid down as
“[e]ach case depends on its own facts, in particular the personality and characteristics of the
accused, such as his . . . age, intelligence, education, background, nationality, etc”. [338] This
observation, it is submitted, can be extended to support the following principle: where it is
clear that an accused had full knowledge of his constitutional rights and options at the time
when he responded to police questioning, the fact that the constitutionally required warnings
were not given at all, cannot ipso facto lead to the conclusion that admission of the
accused’s response would render the trial unfair. [339] In such an instance there is ample
room to argue and find that an informed waiver (see § 12 9 5 below) was present.
The right to be given the required constitutional warnings not only accrues to the person
who is a detainee or arrestee in the technical sense. It also extends to the person who — at
the time of making his pre-trial statement to the police at the latter’s request — was neither
detained nor arrested but in a situation where the police on reasonable grounds suspected
him. [340] If the required warnings were not given to an accused in his capacity as a “suspectabout-to-become-an-arrested-person-and-accused”, [341] any pre-trial statement so obtained
must be treated as evidence obtained in breach of constitutional rights and its admissibility
must be assessed in terms of the requirements and discretion embodied in s 35(5). The fair
trial requirement in s 35(5) might warrant exclusion on the basis that the accused was in
deliberate breach of constitutional rights conscripted as a witness against himself and that,
accordingly, the admission of the evidence would deprive the accused of his constitutional
right to a fair trial. The fact that the suspect had co-operated and had made the pre-trial
statements voluntarily, can hardly remedy the situation. Indeed, circumstances may be such
that the unconstitutional conduct of the
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police was aimed at securing voluntary co-operation which they knew they would not have
secured had they administered the required warnings.
It follows from the above that where an accused had made incriminating statements prior
to arrest and in the absence of warnings and at a stage when he was not under police
suspicion, there is no reason to exclude the evidence if otherwise admissible. [342] A court is
entitled to take into account whether the statement was made spontaneously and whether
the police officer was bona fide. [343]
It is difficult to fit Shabalala v S [344] into the pattern of cases discussed thus far. The
accused — who had declined legal aid and had elected to conduct his own defence — was
convicted in the court a quo of robbery. The admissibility of evidence of a pointing out made
by the accused to a sergeant, was raised for the first time on appeal when the accused had
counsel. It was common cause that the record of the trial contained no indications that the
accused in his capacity as an arrestee was informed of his right to silence and his right to
legal representation. Relying on s 35(5), counsel for the accused argued that evidence of the
pointing out should have been excluded. Tshabalala AJP held that on the facts of this case, it
could not be said that the trial was unfair. [345] In this case, it would seem, the court —
sitting as a court of appeal — was really confronted with a situation where the admissibility
of the evidence only impugned on appeal, should in the course of the trial have been
disputed by the accused who unfortunately had declined legal aid. Perhaps the prosecutor
should of his own accord — or at the insistence of the trial court — have led evidence on the
question whether the required warnings were given. Be this as it may, the fact of the matter
is that at the trial the accused had denied pointing out anything at all — a factor which
probably explains why the evidence at the trial and the trial court’s findings, were confined
to the question whether a pointing out was made and whether it was voluntarily made. By
the time the appeal was heard, the accused had counsel. On appeal counsel for the accused
had expressly abandoned the earlier denial that a pointing out was made. It was merely
argued that in the absence of evidence that the constitutionally required warnings were
given, the evidence of the pointing out should not have been admitted. Given this change of
tack [346] and the fact that the conviction of the accused was not based solely on the pointing
out, the court of appeal had no grounds to conclude that admission of the evidence of the
pointing out had rendered the trial unfair in the sense that the accused was deprived of his
constitutional right to a fair trial. It is submitted that Tshabalala AJP’s remark that “[h]uman
rights ought not to
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be regarded merely as a loophole through which criminals [escape] the consequences of
their deeds” [347] should be interpreted strictly in the context of the facts in Shabalala.
S v Naidoo and Another — which is more fully discussed in § 12 10 1 below — concerned
the admissibility of evidence of the contents of telephonic conversations which were obtained
by the police in breach of the constitutional right to privacy and, in particular, the right not
to be subject to the violations of private communications. [348] On the question whether
admission of the evidence would have rendered the trial unfair, McCall J ruled as follows: [349]
“There is obviously a distinction between a confession or admission conscripted against an accused
himself and evidence of the contents of a telephonic conversation, unlawfully monitored, to which the
accused is a party. The element of compulsion or undue influence present in unlawfully obtaining a
confession or admission is not present in the telephone monitoring. However, there is a result which is
common to both kinds of evidence, namely that evidence is obtained the production of which was not
voluntarily consented to by the accused. In this respect both kinds of evidence, it seems to me, offend
against the right against self-incrimination which inevitably ‘strikes at one of the fundamental tenets
of a fair trial’, that is to say at a right which is protected by the Constitution. To admit evidence
provided by an accused person against himself without his knowledge as a result of the unlawful
monitoring of his conversation with someone else would offend against the notion of basic fairness in
no less a measure than the admission of evidence of a confession or admission made by an accused
person without having been informed of his right to legal representation, which has been held to
result in an unfair trial . . . In the circumstances I am satisfied that the admission of the evidence of
the two telephonic conversations would render the trial unfair.”
The court’s further or alternative finding that admission of the impugned evidence would
have been detrimental to the administration of justice, is supported (see § 12 10 1 below).
However, the court’s finding that admission would also have rendered the trial unfair, cannot
be supported. The fact that the accused never voluntarily consented to the interception and
recording of the conversations, was part of the fact that there was a constitutional breach of
the right to privacy. The absence of consent cannot form the basis for an argument that
admission of the evidence of the contents of the voluntary [350] conversations would have
offended the privilege against self-incrimination at trial level. The police never deceived the
two accused to co-operate with them in circumstances amounting to a breach of their
privilege against self-incrimination. There was no custodial interrogation situation. To claim
that admission of the evidence in Naidoo would “offend against the notion of basic fairness in
no less measure” than admission of the evidence of a testimonial communication obtained
from an accused who had not been informed of his right to a legal representative, is to
ignore one vital difference: there was no constitutional requirement in terms of which the
accused in Naidoo should have been informed that they were not required to provide
evidence against themselves, whereas an arrested person who was deprived of the right to
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counsel before making a confession or admission, was constitutionally entitled to such
counsel in order to protect the privilege against self-incrimination. And whilst there was
certainly gross pre-trial prejudice to the accused in Naidoo, this pre-trial prejudice — which
stemmed from the breach of the constitutional right to privacy — was not the kind of
prejudice that is inherently linked to conscriptive evidence which would render the trial
unfair, if admitted. The accused would have conducted their conversations even if there had
been no unconstitutional monitoring. The conversations took place quite independently of
the unconstitutional conduct. It only became available as evidence for the prosecution as a
result of the breach of the constitutional right to privacy. The focus should be on the nature
and extent of the unconstitutional breach of privacy and not the fact that the accused had
without knowledge of the unconstitutional monitoring provided evidence against themselves.
S v Naidoo and Another had a sequel. Several other persons were later charged in respect
of essentially the same facts that gave rise to the prosecution of the accused in Naidoo. But
this time round the prosecution did not rely on the contents of the unconstitutionally
monitored telephone conversations. Some of the accused were convicted and the sequel
culminated in S v Pillay and Others, [351] where the second appellant contended that evidence
of the discovery of the money in the roof of her house had to be excluded in terms of s 35
(5). The court held that there were infringements of her rights: The violation of her right to
privacy when her telephone was tapped; and, further, the violation of her right to silence
when the police had induced her to speak by giving her the assurance that she would not be
prosecuted. The majority (Mpati DP and Motata AJ) held that admission of the impugned
evidence was detrimental to the administration of justice, whereas the minority (Scott JA)
thought not (see § 12 10 below). But the court was unanimous in its finding that trial
fairness was not affected by the admission of the evidence of the discovery of the money.
Scott JA said: [352]
“The real evidence admitted by the Court a quo in the present case was the discovery of the money
concealed in the roof. That discovery would not have been made but for the monitoring of the
telephone conversation. But the telephone conversation would have taken place whether it was
monitored or not. It was not created by the infringement, nor was there any question of compulsion.
A conversation in such circumstances may result in a form of self-incrimination, but no more so than
any other conduct of an accused subsequent to the commission of the offence which may point to the
latter’s guilt.”
12 9 5 Waiver, trial fairness and the court’s discretion
An arrested person can waive his right to exercise his right to silence and his right to consult
a lawyer. [353] However, “[a] right can only validly be waived if the person who
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abandons the right knows [354] and understands [355] what he or she is abandoning.” [356]
Some courts have been reluctant to introduce the concept of waiver. [357] In S v Shaba en ’n
Ander [358] Spoelstra J — in rejecting the approach of Claassen J in S v Mathebula and
Another [359] — held as follows with reference to Chapter 3 of the Interim Constitution (now
Chapter 2 “Bill of Rights” of the Constitution): [360]
“Verder is ek van oordeel dat Claassen R fouteer deur die privaatregtelike regsfiguur van
afstanddoening van regte hier te gebruik. Die bepalings van Hoofstuk 3 van die Grondwet skep
onvervreembare regte. Niemand kan daarvan afstand doen nie. Op die beste kan ’n persoon kies om
hom nie op die bepalings van die Grondwet te beroep nie en om nie die regte uit te oefen nie. Hy kan
egter op enige stadium van plan verander en die regte weer uitoefen, sonder dat hy met ’n pleit van
afstanddoening ontmoet kan word. Die reg op regsverteenwoordiging of die reg op stilswye is
sprekende voorbeelde hiervan. Die regsfiguur van afstanddoening van regte pas doodeenvoudig nie
by hierdie omstandighede in nie.”
Whatever the position may be as regards the question whether rights in the Bill of Rights are
inalienable rights, it is beyond doubt that “individuals may . . . waive the right to exercise a
fundamental right” [361] like the right to silence and the right to counsel. [362] To hold
otherwise, would amount to improper interference with an individual’s autonomy and
freedom to decide how to conduct his case at the pre-trial stage. The rights under discussion
are inalienable in the sense that an individual, after having waived the right to exercise
these rights, may re-assert them by refusing to respond to further questioning in the
absence of a lawyer. [363] However, “[t]he accused cannot undo the consequences of an
earlier choice to make a statement, by later revoking the statement”. [364]
The decision of the accused to waive the exercise of his rights, must be an informed one.
He need not be aware of all the factual details or all the details of the charge(s); the
emphasis should be on the reality of the total situation
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having an impact on the accused’s understanding and appreciation. [365] In S v Mphala and
Another [366] both accused were upon their arrest properly informed of their constitutional
rights. An attorney retained by a third party to assist the accused, telephoned the
investigating officer at 10:30. The attorney requested the investigating officer to make no
arrangements for either accused to make statements or to do a pointing out until such time
as he had had an opportunity to consult with both of them. The investigating officer
informed the attorney that both accused wanted to make statements, and that this would be
arranged to take place at 14:00. However, by the time the attorney arrived both accused
had already made statements somewhere between 12:00 and 12:45. Cloete J was satisfied
that the investigating officer “had stolen a march on the accused’s attorney”. [367] Cloete J,
furthermore, held that on account of the following facts there was no informed consent by
the two accused and therefore no valid waiver of their pre-trial constitutional rights: the
investigating officer should have informed both accused that an attorney — who had been
retained to represent them — was on his way and wanted them to refrain from making any
statements prior to his having had an opportunity to consult with them. “I do not suggest”
said Cloete J “that a police officer is obliged to give advice to an accused; but I do find that a
police officer is not entitled to prevent such advice being given.” [368] The court had no
hesitation in finding that admission of the confessions would have rendered the trial unfair
and had to be excluded as provided for in section 35(5). [369] The decision in Mphala should
be compared with the decision of the Supreme Court of the USA in Moran v Burbine [370] as
discussed in § 12 5 2 1 above.
12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real
evidence and evidence “emanating from the accused”
Ever since the decision in Ex Parte Minister of Justice: In Re Rex v Matemba, [371] and even
after constitutionalization, our courts have — in line with the majority decision in Schmerber
v California [372] and the common-law rule as formulated by Wigmore [373] — consistently held
that the privilege against self-incrimination is confined to testimonial utterances or
communications (statements and pointings out) and does not extend to real evidence
emanating from an accused, [374] such as hair samples, blood samples, [375] fingerprints, [376]
voice, [377] handwriting [378] and even a bullet lodged in the body of a suspect [379] (see
§ 10 2 3 1 1 above).
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Some of our courts [380] have for the purpose of determining the admissibility of
unconstitutionally obtained real evidence, followed the test which the Supreme Court of
Canada had established in R v Collins [381] and confirmed in R v Jacoy. [382] The Collins test —
which was cited in full in § 12 6 1 above — makes good sense: for purposes of the trial
fairness test which must be read into s 24(2) of the Charter, a distinction must be drawn
between the situation where real evidence was obtained as a result of a Charter violation
and the situation where, after a violation of a Charter right, the accused was conscripted
against himself through a confession or other evidence emanating from him. In the latter
situation, according to the Collins test, the admission of the evidence would render the trial
unfair, for it did not pre-exist the Charter breach and its admission would strike at the
fundamental tenets of a fair trial, the right against self-incrimination. But in the case of real
evidence unconstitutionally procured, the accused is not conscripted against himself and the
fact that it was unconstitutionally procured “will rarely operate unfairly for that reason
alone”: [383] the real evidence not only pre-existed the Charter breach but also existed
irrespective of the Charter breach. In S v Mkhize [384] Willis J, writing for a full bench, relied
heavily on the Collins test in interpreting the fair trial requirement in s 35(5) and in coming
to the conclusion that the unconstitutionally obtained real evidence (a pistol) was admissible.
In S v R [385] Willis J also relied, inter alia, on the Collins test in overruling a defence
objection, based on s 35(5), to the admissibility of evidence relating to DNA testing [386] that
was done on samples of blood taken from two accused who were minors. It was held that
admission of the impugned evidence would not have rendered the trial unfair. In
commenting on this decision, Zeffertt said: “The blood, like Everest, was there before the
violation.” [387]
The attention of the court in S v R was never, it seems, drawn to the fact that the Collins
test was significantly readjusted by the Supreme Court of Canada in R v Stillman, [388] which
was decided in 1997 and which in turn was overruled in 2009 in R v Grant (see §§ 12 6
to 12 6 4 above). [389] In R v Stillman the majority held — at least for purposes of s 24(2) of
the Charter — that compelled use of
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the body or the compelled provision of bodily substances (like hair or blood samples) ’in
breach of a Charter right for purposes of self-incrimination will generally result in an unfair
trial as surely as the compelled or conscripted self-incriminating statement.” [390] However, in
order to reach this conclusion, the majority in Stillman extended the common-law privilege
against self-incrimination to include evidence of bodily substances taken from an
accused. [391] It gave preference to the dissenting minority judgments in Schmerber v
California [392] (see § 10 2 3 1 1 above). The impact of Stillman on the Collins test, [393] is
described as follows by Sopinka, Lederman & Bryant. [394]
“[I]n R v Stillman, the Supreme Court of Canada reformulated the trial fairness branch of the Collins
test by eliminating the distinction between self-incriminatory statements and real evidence. Simply
put, the classification of evidence as real evidence simpliciter is irrelevant for the purposes of the trial
fairness test. Since the Charter recognizes the right to bodily integrity which should only be interfered
with on the consent of the individual or in accordance with constitutional common-law or statutory
authority, the Court reasoned that the compelled production of bodily parts or substances is as great
an invasion of the essence of the person as is a compelled statement.”
The question arises whether South African courts, if confronted with the admissibility of
evidence of unconstitutionally obtained bodily samples, should adopt the “reformulated trial
fairness branch of the Collins test” — hereafter referred to as the “ Stillman modification” —
for purposes of interpreting the fair trial requirement in s 35(5) of the Constitution? Although
our courts have been keen to follow Canadian jurisprudence on issues concerning the
admissibility of unconstitutionally obtained evidence, it is submitted that reliance on the
Stillman modification in the interpretation of the fair trial requirement in s 35(5), would be
totally unnecessary and somewhat artificial. The Stillman modification no longer applies to s
24(2) of the Charter (see §§ 12 6 to 12 6 4 above). However, it is examined and criticised
below in order to alert South African courts to the undesirability of following this
modification.
In Stillman the majority conceded that even without reformulating the trial fairness
branch of the test in Collins, exclusion of the impugned evidence would also have resulted
because it could be said that the unconstitutional bodily searches which occurred in Stillman,
were so unreasonable and serious that to admit the evidence so obtained, would have
brought the administration of justice into disrepute. [395] This finding would have been based
on the second factor identified in Collins (see § 12 6 2 above). But this approach, according
to the majority in Stillman, failed to recognise the innate dignity of the individual, based
upon the integrity and sanctity of the body. [396] The court also referred to the security of the
person, which is recognised in s 7 of the Charter. Now, it is difficult to understand how the
evidence of the bodily samples in Stillman could have been excluded on the basis that
admission thereof would have
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brought the administration of justice into disrepute (as conceded and indeed also found [397]
by the majority) if the violations of the accused’s dignity and his bodily integrity, sanctity
and security, were not taken into account. Incorporation of the Stillman modification into our
law would serve no purpose, except to disturb the well-settled distinction between selfincriminating testimonial communications and incriminating non-communicative real
evidence obtained from the body of the accused. Section 35(5) of the Constitution — unlike
s 24(2) of the Charter — specifically sets out a fair trial requirement as well as an overarching requirement in terms of which exclusion is mandatory “if . . . admission . . . would
otherwise be detrimental to the administration of justice”. The drafters of the Constitution
clearly had in mind that there would be unconstitutionally obtained evidence which, if
admitted, would not render the trial unfair but which should nevertheless be excluded to
avoid detriment to the administration of justice. Unconstitutionally obtained incriminating
real evidence emanating from the body of the accused, falls into the latter category.
However, Cory J — writing for the majority in Stillman — argued as follows: [398] “The
security of the body should be recognized as being just as worthy of protection from state
intrusion aimed at compelled self-incrimination as are statements. Evidence obtained by a
significant compelled intrusion upon the body without consent or statutory authorization
should be considered, as a general rule, to adversely affect the fairness of the trial.” This
argument is fallacious if applied to s 35(5) in the context of unconstitutionally obtained
bodily samples: the security of the body is not, and does not become, less worthy of
protection simply because unconstitutionally obtained real evidence of bodily samples is
dealt with under the second leg of the test in s 35(5) and not in terms of the fair trial
requirement in s 35(5). The second leg of the test in s 35(5) caters not only for the
exclusion of unconstitutionally obtained real evidence of bodily samples, but can, where
required, be vigorously invoked to protect the constitutional rights to freedom and security
of the person, dignity and privacy which are, respectively, guaranteed in ss 12, 10 and 14 of
the Bill of Rights. [399]
12 9 7 Trial fairness and the admissibility of derivative evidence
In § 10 2 4 above it was pointed out that there are several statutes that authorise
designated officials to compel a person to appear before them to answer questions which
may or may not be self-incriminating. These statutes are not necessarily unconstitutional,
provided that the compelled self-incriminating answers given by the examinee in the course
of such investigative inquiries, may not be used against such an examinee in his capacity as
an accused in subsequent criminal proceedings against him (see § 17 4 4 2 below). The
investigative inquiry — the
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procedure as such — remains lawful, but direct use of the compelled self-incriminating
answers at the criminal trial would be in breach of the privilege against selfincrimination. [400] But what about the admissibility of derivative evidence or so-called “clue
fact” evidence secured indirectly, or obtained directly, as a result of the compelled selfincriminating answers obtained from the examinee? This type of evidence cannot be equated
with unconstitutionally obtained evidence. Placing a total ban on the admissibility of the
derivative evidence — as opposed to evidence of the examinee’s compelled self-incriminating
answers — is not warranted. The original process was lawful. The following compromise, it
seems, should be followed: as long as the evidence of the compelled self-incriminating
answers of the examinee is not admitted at the criminal trial “and the use of ‘derivative
evidence’ at such trial is made dependent on such use being subject to ‘fair criminal trial’
standards, the rule against self-incrimination is adequately protected”. [401] Ultimately
fairness is an issue that has to be decided on a case-by-case basis by the person best placed
to do so — the presiding judicial officer at the criminal trial. [402]
In the above context, the trial court would “not be dealing with the ‘fruits of a poisoned
tree’ but rather the product of a legitimate and legally controlled enquiry. Nor would it be
concerned with evidence existing solely of words used by the accused, but instead with
objective evidence existing independently of any oral communication”. [403]
However, the question arises whether the trial fairness requirement embodied in s 35(5)
of the Constitution is triggered in respect of the admissibility of real evidence (a pistol, knife)
discovered on the basis of information contained in a testimonial communication
unconstitutionally obtained from the accused? Must the real evidence so obtained be treated
as conscriptive (self-incriminating) derivative evidence which, if admitted, would violate the
privilege against self-incrimination and therefore render the trial unfair?
In R v Stillman [404] the majority of the Supreme Court of Canada, relying on some earlier
Canadian decisions, concluded that for purposes of s 24(2) of the Charter, the issue should
be addressed as follows: [405]
“Conscripted or self-incriminating evidence may lead to what has been termed derivative evidence.
This phrase has been used to describe ‘real’ evidence which has been ‘derived’ from, that is to say
found as a result of, the conscriptive evidence. The evidence discovered should be classified as
conscriptive, since the accused’s compelled statement was a necessary cause of its discovery. In
those cases, the courts must carefully review the events leading up to the finding of the evidence
rather than simply considering whether the ultimate piece of evidence which the Crown is seeking to
introduce is ‘real’ evidence . . . [W]here the conscriptive evidence would not have been discovered in
the absence of the unlawful conscription of the accused, its admission would generally tend to render
the trial unfair. In those circumstances it is not necessary to consider the seriousness of
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the violation, or the repute of the administration of justice, as a finding that the admission of the
evidence would render the trial unfair means that the administration of justice would necessarily be
brought into disrepute if the evidence were not excluded under s 24(2) . . .”
The above approach can have the following unfortunate result: evidence of a pistol which
can ballistically be linked to the murder concerned and which had the fingerprints of the
accused on it, must be excluded as a result of the fact that an accused’s unconstitutionally
obtained testimonial communication was the sole cause which led, and which could have led,
to the discovery of the real evidence. This approach is an extreme example of the “fruits of
the poisonous tree” doctrine. In R v Burlingham [406] the accused was, in breach of his
Charter right to counsel, subjected to improper and intensive questioning by the police. He
ultimately confessed, and also stated that the murder weapon (a gun) could be found at the
bottom of a frozen river. The confession was held inadmissible. It was also concluded that
the accused would have said nothing if it were not for the fact that he was unconstitutionally
conscripted to provide evidence against himself. Retrieval and seizure of the gun, it was
found, were derived from the inadmissible conscripted statement; and the real evidence had
to be excluded because “[t]he participation of the accused in providing incriminating
evidence involving a breach of Charter rights is the ingredient that tends to render the trial
unfair as he or she is not under any obligation to assist the Crown in securing a
conviction”. [407]
It is submitted that for purposes of s 35(5) of the Constitution, the matter ought to be
approached along the following lines. Exclusion of the testimonial communication cannot
automatically require exclusion of the derivative real evidence which, quite independently of
the inadmissible communication, connects the accused to the crime. The admissibility of
unconstitutionally obtained derivative real evidence is — like the admissibility of all other
unconstitutionally obtained evidence — a matter which must be decided in terms of the
court’s discretion as provided for in s 35(5) of the Constitution (see § 12 9 3 above).
Examples of factors or considerations which can assist the court in exercising its discretion
are the following:
(a) The derivative real evidence, like other real evidence, pre-existed the breach and did
not come into existence (was not created) as a result of the unconstitutional breach.
This is a factor favouring admissibility. However, it cannot on its own provide the full
answer.
(b) The fact remains that the evidence became available to the prosecution as a result of a
violation of a constitutional right. The court must therefore
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consider the nature and extent of the breach which led to the discovery of the real
evidence. In Ferreira v Levin NO; Vryenhoek v Powell NO Ackermann J observed: [408]
(c)
“Where, for example, derivative evidence is obtained as a result of torture there might be
compelling reasons of public policy for holding such evidence to be inadmissible even if it can be
proved independently of the accused. Otherwise, the ends might be allowed to justify the
means. The admission of evidence in such circumstances could easily bring the administration of
justice into disrepute and undermine the sanctity of the constitutional right which has been
trampled upon.”
Police violence as a method of investigating or solving crimes, cannot be sanctioned;
and a court should in considering the exclusion of derivative evidence in such
instances, rely heavily on its disciplinary function (see § 12 4 1 above) as well as the
need to protect judicial integrity (see § 12 4 4 above) and the integrity of the system
as a whole. In S v Tandwa and Others the Supreme Court of Appeal held as
follows: [409]
“Though ‘hard-and-fast rules’ should not be readily propounded, 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 civilised 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.”
(d)
(e)
In instances involving non-violent conduct, our courts should also be able to rely — like
American courts and Canadian courts — on the independent source doctrine (see
§§ 12 5 1 3 and 12 6 2 above) and the inevitable discovery principle (see §§ 12 5 2 4
and 12 6 2 above) as factors favouring admission of the impugned derivative real
evidence.
Where the real evidence is discovered on account of a non-coerced but nevertheless
inadmissible testimonial communication, the “fruit of the poisonous tree” doctrine need
not be invoked with vigour. In these instances the admission of the derivative evidence
would — because of the absence of coercion — generally not render the trial unfair.
The fundamental question should be whether the derivative real evidence must be
excluded on the basis that its admission would be detrimental to the administration of
justice. And for this purpose all the normal factors and considerations which have a
bearing on this leg of the test (see §§ 12 10 to 12 10 6 below) should come into play.
If an accused was not prior to custodial police questioning informed by the police of his
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(f)
constitutional right to silence, the court might in the exercise of its discretion conclude
that even though the accused had responded voluntarily, all admissions made by the
accused to the police should be excluded in order to secure a fair trial. It does not
follow, however, that incriminating real evidence discovered as a result of the
inadmissible admissions obtained in breach of the constitutional right to silence, must
necessarily also be excluded on account of the fair trial requirement in s 35(5) of the
Constitution. In the USA exclusion applies to the “fruits” of a coerced testimonial
communication, but “a Miranda-violation by the police does not have ‘fruit of the
poisonous tree’ consequences. Thus a confession obtained in violation of Miranda must
be suppressed, but . . . real evidence obtained by means of the original inadmissible
statement may be used in the government’s case-in-chief”. [410] It is submitted that
South African courts should follow a similar approach in their interpretation of s 35(5).
Exclusion of an unconstitutionally obtained testimonial communication on the basis that
its admission would render the trial unfair, does not answer — in fact, it merely raises
— the question concerning the admissibility of the real evidence obtained as a result of
the inadmissible testimonial communication. The court must exercise its discretion.
And it is submitted that in doing so, the court must bear in mind that real evidence
remains non-confessional or non-testimonial and that its admissibility should as a rule
therefore not attract fair trial considerations. Real evidence may be incriminating but it
is not self-incriminating — unless, of course, the court is prepared to assume, like the
Canadian Supreme Court has found, that real evidence is “conscriptive or selfincriminating evidence [if] discovered as a result of the accused being conscripted to
provide the evidence following a breach of his Charter rights”. [411] But there are
situations where the admissibility of derivative real evidence will attract fair trial
considerations on account of the manner in which it was obtained, especially where
violence was involved. S v Tandwa and Others is such a case (see para (c) above). In
this case the real evidence was discovered derivatively as a result of coerced
testimonial communications made by the accused whose rights were severely violated
by the deliberate and flagrant conduct of the police. The Supreme Court of Appeal
aligned itself with the Canadian approach, but — it would seem — only in so far
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(g)
as the matter before it involved violence and not a technical violation of a fundamental
right. It was not held that all derivative evidence must at all times attract fair trial
considerations.
Section 35(5) of the Constitution and s 218 of the CPA — the latter section is discussed
in §§ 17 8–17 8 4 below — can co-exist, provided, of course, that real evidence which
can be admitted in terms of s 218 will always remain subject to the court’s duty to
exclude such evidence if its admission would have one of the consequences identified
in s 35(5). Section 218(2), for example, provides for the admission of real evidence
despite the fact such evidence was obtained as a result of an inadmissible confession,
admission or pointing out. The confession, admission or pointing will remain
inadmissible, but evidence of, for example, finger-prints found on a pistol which can
ballistically be connected to the crime, can be received provided that the accused is not
identified as the source of information which led to the discovery of the pistol. It will,
however, always be open to the defence to object to the admissibility of such evidence
on the basis that the pistol was obtained in breach of constitutional rights and that
admission of the evidence would result in one of the consequences envisaged in s 35
(5) of the Constitution. It is submitted that in this instance the court should exercise its
discretion along the lines suggested in (a) to (e) above; and if the impugned evidence
is held admissible, the fact that the accused was the source of information which led to
its discovery, would remain inadmissible. [412]
12 9 8 Trial fairness and the admissibility of identification evidence
obtained at an identification parade held in the absence of the accused’s
legal representative
Exclusion of evidence of this nature cannot be based on the argument that legal
representation at the parade is necessary to protect the privilege against selfincrimination. [413] Suspects who may lawfully be required to participate in an identification
parade, [414] are not required to make testimonial communications like a “statement or
pointing out where the advice of the legal representative on the advisability of taking such a
step may well be of crucial importance to an uninformed accused”. [415]
In S v Mhlakaza en Andere [416] — which was decided under the interim Constitution — it
was held that an accused had the right to have his legal representative at the parade and
that the evidence of identification obtained in breach of this right, should be excluded unless
the prosecution could satisfy the court that the right to a fair trial “geensins benadeel kon
gewees het deur
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die afwesigheid van ’n regsverteenwoordiger nie”. [417] However, Mhlakaza has consistently
been rejected or distinguished in other cases decided under the interim Constitution and in
all cases decided in terms of s 35(5) of the Constitution. In some cases it was assumed that
an accused does not have the right to have a legal representative at the parade. [418]
In S v Mphala and Another [419] Cloete J was satisfied that admission of the identification
evidence would not have resulted in one or both of the consequences identified in s 35(5).
Two factors weighed heavily with the court in coming to this conclusion. First, Cloete J was
satisfied that the police conduct in holding the parade in the absence of the accused’s legal
representatives, was not of such a nature that the court’s disciplinary function (see § 12 4 1
above) had to be relied upon in excluding the impugned evidence. [420] Secondly, Cloete J
concluded that the presence of the legal representatives would not have made any difference
to the outcome of the parade: “Evidence was led by the state that the parade had been
properly conducted, and there was no suggestion to the contrary in cross-examination on
behalf of the accused, or in the evidence given by them.” [421] In S v Mphala and Another
Cloete J admitted the evidence even on the assumption that the accused had not expressly
waived their right to the presence of an attorney at the parade and that the evidence was, in
consequence, procured in breach of a constitutional right to have an attorney present. [422] In
S v Thapedi [423] — which was also decided in terms of s 35(5) but without reference to S v
Mphala and Another — Bertelsmann J came to a similar conclusion. He distinguished the socalled “Wade-Gilbert” rule, created by the Supreme Court of the USA, [424] from the facts in
Thapedi [425] and
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also declined to follow the Canadian Supreme Court decision in R v Ross. [426] On the facts in
Thapedi, Bertelsmann J concluded that there was no breach of the right to have a legal
representative at the parade [427] and, even if there were such a breach, admission of the
evidence would not have resulted in either of the consequences identified in s 35(5). [428] In
Thapedi the decision of the police to hold a parade in the absence of the legal
representatives, was not considered improper (“onbehoorlik”). [429] The court also took into
account that two attorneys who were at the parade on behalf of other suspects, were not
called by the accused as defence witnesses “om die wyse waarop die parade gehou is, te
kritiseer nie”. [430] However, in the course of his judgment, Bertelsmann J took care to note
that the police may not deliberately ignore the right of an accused to have his legal
representative at the parade, that an accused should be given a reasonable opportunity to
arrange such presence and, where necessary, the police should at the request of the
accused inform the legal representative of the proposed identification parade. [431] It would
seem that the present position in our law is that the admissibility of the evidence under
discussion, would really only be excluded where circumstances are so extreme that it would
be necessary to discipline the police.
Where identification evidence which stems from an identification parade is ruled
inadmissible, the in-court identification of the accused by the witness concerned, will only be
admissible if the court is satisfied that the in-court identification is based upon observations
made by the witness on an occasion or occasions other than the parade identification. [432]
In contradistinction to a formal identification parade held in terms of s 37(1)(b), an
accused has no right to a legal representative at a so-called “photo identification
parade”. [433]
12 10 The Second Leg of the Test in s 35(5): “if . . .
admission . . . would otherwise be detrimental to the
administration of justice”
The relationship and interaction between the above test and the first leg of the test in s 35
(5), were identified and discussed in § 12 8 above. The second leg of the test is the final
filter: if the admission of the unconstitutionally obtained
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evidence would not render the trial unfair, such evidence must nevertheless still be excluded
if the court is satisfied that admission would be detrimental to the administration of justice.
Cloete J has remarked in passing that the criterion of “bringing the administration of
justice into disrepute” as contained in s 24(2) of the Charter is “perhaps a test with a higher
threshold for exclusion than that contained in s [35(5)] of the Constitution”. [434] In S v
Naidoo and Another counsel for the defence argued that the latter is less stringent than the
former. [435] It seems, however, to be inevitable that if a South African court were to
conclude that admission of the impugned evidence would bring the administration of justice
into disrepute, [436] then it would also have to conclude that such admission would be
detrimental to the administration of justice as envisaged in the second leg of the test in s 35
(5).
In S v Mphala and Another Cloete J observed as follows with reference to the second leg
of the test in s 35(5): [437]
“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. Overemphasis 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.”
The extremely high level of crime (and especially violent crime) in South Africa, makes it an
onerous task to attain, maintain and defend the balance referred to by Cloete J above. Davis
J has also made reference to the burden of the crime wave and its impact on the need to
achieve some balance between crime control and due process. [438]
It is submitted that the courts are — in their interpretation of the second (or over-arching)
test in s 35(5) — fully entitled to lean in favour of crime control. For purposes of the second
leg of the test in s 35(5), a wide variety of factors and considerations must come into play.
The need to protect constitutional rights and due process, is one. But this need — albeit an
ever important one — can never preclude a court in the exercise of its discretion from taking
into account that society has a legitimate interest not only in the outcome of a criminal trial,
but also the reasons which led to the acquittal of the factually guilty. And whilst it is
probably true that public opinion is peripheral to
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determining whether admission would render the trial unfair, [439] the same cannot be said
for purposes of the second leg of the test: public opinion — including public acceptance of a
verdict and support for the system — must go into the scale as a weighty factor. The
particularly high crime rate currently prevalent in South Africa — and of which Ackermann J
has taken judicial notice [440] — is something which is directly relevant when a court is
required to respond to the second leg of the test in s 35(5). Much can be said in favour of
the approach adopted in S v Ngcobo. [441] In this case Combrinck J, writing for a full bench,
paid particular attention to the current state of endemic crime in the country and the public’s
reaction to the exclusion of unconstitutionally obtained but highly incriminating
evidence. [442] It is submitted that the approach adopted by Langenhoven in his doctoral
thesis, is a sound one: he argues strongly in defence of the Constitutional right to a fair trial
in the interpretation and application of s 35(5), but also argues that where admission of the
impugned evidence would not deprive the accused of this right, the second leg of the test
provides ample room for a court to take into account that — despite the long-term values
which the Constitution seeks to secure — South Africa has reached a point where the level of
serious crime has become unacceptable to law-abiding citizens. [443]
It should be stressed that Langenhoven’s argument is not based on the idea that a court
is in the exercise of its discretion bound by predicted public reaction to the exclusion of
unconstitutionally obtained evidence. The essence of his argument is that the second leg of
the test in s 35(5) of the Constitution creates a discretion which is wide enough to
accommodate prevailing public opinion as an important factor. This approach, it is
submitted, is not in conflict
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with the Constitutional Court’s pronouncements in S v Makwanyane and Another. [444] In this
case — which dealt with the constitutional validity of the death penalty — it was noted that
whilst public opinion did have some relevance, “it is no substitute for the duty vested in the
Courts to interpret the Constitution and to uphold its provisions without fear or favour”. [445]
It is submitted that there is a vast difference between the role of public opinion in
determining the constitutional validity of a particular sentence and the role of public opinion
in exercising the discretion, established by the Constitution, whether to exclude evidence on
account of the fact that its admission would be detrimental to the administration of justice.
Under the interim Constitution the courts, it seems, were at times extremely cautious in
referring to or relying on public opinion (see § 12 7 2 3 above). This is understandable
because they did not have the constitutional guidance and clear discretion currently
embodied in s 35(5) of the Constitution. Section 35(5) requires that a balance must be
struck. Overemphasis of the longer term constitutional values may result in a fairly rigid
exclusionary rule — a result which the drafters of s 35(5) clearly wished to avoid. At the
same time, however, overemphasis of public opinion would result in a wide inclusionary
approach — an approach which is, for the reasons advanced in §§ 12 4 1–12 4 6 above,
incompatible with a constitutional due process system. And whilst it is certainly true that an
exclusionary rule seeks to promote social rather than individual justice, [446] it is also true
that a discretionary exclusionary rule — like the one in s 35(5) — requires a court to ensure
that the exclusion of unconstitutionally obtained evidence is, on the facts of each individual
case, not detrimental to the administration of justice. It is possible to identify factors or
considerations (see
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§§ 12 10 1–12 10 6 below) which the court should take into account in deciding whether
evidence should in terms of the second leg of the test in s 35(5), be excluded. There appears
to be a general trend to admit the impugned evidence once the court is satisfied that its
decision to admit will not create a precedent which would encourage the police to procure
evidence unconstitutionally. [447] It should also be borne in mind that because of the
discretion in s 35(5), judicial integrity is not necessarily compromised by the admission of
unconstitutionally obtained evidence (see § 12 4 4 above).
12 10 1 The presence or absence of good faith (and reasonable) police
conduct
The extent to which the good faith of the police can or should play a role in the exclusion of
unconstitutionally obtained evidence, has received attention in foreign jurisdictions like the
United States of America (see § 12 5 1 2 above) and Canada (see § 12 6 1 above). Is the
good faith (or, for that matter, the bad faith) of the police a factor which ought to be taken
into account in responding to the second leg of the test in s 35(5)? One of the purposes of
exclusion is to discourage unconstitutional police conduct. The exclusionary rule has a
deterrent and educative function which, in turn, has an ultimate preventive effect (see
§ 12 4 1 above).
However, of what value is the preventive function (deterrence rationale, educative basis,
disciplinary aim) of the exclusionary rule in a situation where the police had acted in a good
faith (and reasonable) belief that they were not in breach of constitutional rights in procuring
the evidence in the manner in which they did? Can it really be said that the admission of
evidence obtained in such a situation would be “detrimental to the administration of justice”?
It has been said: [448]
“The major argument in favour of [a good faith] exception to exclusionary sanctions is that it would
permit the use of evidence in those situations in which no significant preventive function may be
served by exclusion. Law enforcement officers who have exercised reasonable care in ascertaining the
law and in attempting to apply it to the facts before them have arguably done all that the exclusionary
sanctions can reasonably demand. Exclusion of evidence because the officers, despite their efforts,
were incorrect in their conclusion that they were complying with the law would serve no function.
Adequate incentive for law enforcement officers to exert their best efforts to comply with the law is
created by excluding evidence in those cases where the officers have neither acted properly nor
exercised reasonable care in determining whether the actions were within legal requirements . . . On
the other hand, it can be argued that excluding evidence obtained in what is ultimately determined to
be an impermissible fashion will further the preventive function of the exclusionary sanctions, despite
the officers’ ‘good faith’ belief that their actions were appropriate. Exclusion in such cases may create
an incentive for officers to inform themselves more adequately concerning legal requirements and
their application.”
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In at least one South African case decided under the interim Constitution, it was pointed out
that an exclusionary rule which allows a “good faith” exception, creates a risk of encouraging
police officials to remain ignorant of their legal duties and the constitutional rights of
suspects, arrested persons and accused. [449] In several cases decided under s 35(5), the
presence or absence of good faith on the part of the police arose directly or indirectly.
In S v Naidoo and Another [450] the prosecution sought to rely on evidence of
conversations intercepted in terms of the Interception and Monitoring Prohibition Act. [451] It
was common cause that a judge properly designated in terms of this Act had — on the basis
of information as required in terms of the Act — given the necessary permission for the
interception of certain telephonic conversations. At the trial, however, the court was satisfied
that the police who had applied for the necessary judicial permission to intercept and
monitor the conversations, had given false or misleading information to obtain such
permission and that, accordingly, there had been an infringement of the accused’s
constitutional right to privacy. McCall J found that admission of the evidence of the
intercepted conversations would render the trial unfair. [452] Having reached this conclusion,
it was — strictly speaking — not necessary for McCall J to have dealt with the question
whether admission of the evidence would “otherwise be detrimental to the interests of
justice”. However, he did decide this issue and remarked and found as follows: [453]
“Both the interim Constitution and the new Constitution affirm the Legislature’s commitment to the
concept of protection of private communications against violation or infringement. To countenance the
violations in this case would leave the general public with the impression that the courts are prepared
to condone serious failures by the police to observe the laid-down standards of investigation so long
as a conviction results . . . The robbery in question has been referred to as the biggest robbery in the
history of South Africa. There may be those members of the public who will regard the exclusion of
the evidence as being evidence of undue leniency towards criminals. The answer to that is that the
crime in this country cannot be brought under control unless we have an efficient, honest, responsible
and respected police force, capable of enforcing the law. One of the mistakes which must be learnt
from the past is that illegal methods of investigation are unacceptable and can only bring the
administration of justice into disrepute, particularly when they impinge upon the basic human rights
which the Constitution seeks to protect . . . Having given this matter anxious consideration I am
satisfied that,
Page 269
taking all of the circumstances to which I have referred into account, to admit the evidence of the
telephonic conversations would be detrimental to the administration of justice.”
Naidoo is the text-book example of the principle that the “bad faith” conduct of the police
should weigh heavily in favour of the exclusion of unconstitutionally obtained evidence: it is
not in the interests of justice to permit the police to deliberately flout those rules which
govern their investigative powers and which seek to protect constitutional rights. Where the
primary rules (in this instance the provisions of the Interception and Monitoring Prohibition
Act) are clear, the secondary rule (in this instance the exclusionary rule contained in section
35(5)) ought to be invoked with vigour (see § 12 4 6 above).
It is clear that the “bad faith” conduct of the police in Naidoo played a major role in the
court’s decision to exclude. This was not a case where the police had made a reasonable
mistake in their interpretation of the Interception and Monitoring Prohibition Act. Nor was it
a case where the police had inadvertently failed to comply with a technical provision of this
Act. Had there been such a reasonable mistake or inadvertent technical error, the result
might very well have been different. In such circumstances exclusion would probably have
been detrimental to the administration of justice.
In S v Hena and Another Plasket J, in excluding the impugned evidence, observed as
follows with reference to the bad faith and unreasonable conduct of the police:
“The conduct complained of — the abduction and assault of accused 1 to force him to incriminate
himself and lead his captors to other incriminating evidence — could not conceivably have been
committed in good faith. It must have been committed in bad faith. Whether the police can be said to
have had actual knowledge of the unlawful methods used has not been established, but their
abdication of responsibility cannot have been in good faith either. Every policeman must be taken to
know that he or she has been clothed with statutory authority to investigate crime, and that this
function cannot be ‘sub-contracted’ to untrained civilians. To do so could not be reasonable and, in my
view, the police cannot distance themselves from the consequence of doing so. These factors also
operate against the admission of the evidence. There is no indication of any public-safety concerns or
urgency that could have served as justification for the violations of rights.” [454]
S v Mphala and Another [455] is also a case where the presence of bad faith left the court no
option but to conclude that admission of the evidence would — quite apart from rendering
the trial unfair — also be detrimental to the administration of justice. The salient facts of this
case were set out in § 12 9 5 above. In considering whether exclusion in terms of the second
leg of the test was required, Cloete J found as follows: [456]
“When regard is had to the manner in which the confessions were obtained and the consequence of
their admission, the decision that has to be made on the facts of the present matter appears to me to
be obvious . . . The State would not have been in possession of confessions which implicate the
accused to the hilt and which, if admitted, would probably be decisive of their guilt, but for the fact
that the Investigating Officer
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caused the confessions to be taken . . . (a) at a time when he knew that the accused’s attorney did
not wish them to make any statement before consulting with him . . . (b) without informing the
accused of that fact and the fact that their attorney was on his way; and (c) after he had misled their
attorney as to the time when the statements would be taken (obviously with a view to ensuring that
the statements would be made before the attorney arrived) . . . I cannot accept that the conduct of
the Investigating Officer was anything but intentional. In such a case the emphasis falls on the
‘detrimental to the administration of justice’ portion of s 35(5) and the disciplinary function of the
Court . . .”
Solid support for the decision in Mphala can be found in several Canadian cases in which it
was held that where the police had deliberately violated a Charter right in order to obtain
incriminating evidence, the admission of such evidence would tend to bring the
administration of justice into disrepute. [457]
In S v Madiba [458] two policemen, D and M, had obtained real evidence (two firearms) in
the course of a search of premises which they had forcibly entered. The court was satisfied
that there had been a breach of the accused’s constitutional right to privacy. This breach,
however, was carefully weighed in the light of the specific circumstances of the case and the
motive that D and M had for acting in the manner in which they did. D and M were the only
witnesses who had testified at the trial within a trial concerning the admissibility of the
evidence. They were found credible witnesses. And in the course of his judgment Hurt J paid
much attention to the explanation that D and M gave for “their decision to make the
aggressive entry . . .” [459] (ie, kicking in the door unannounced and entering the room
armed). Noting that both the concept of fairness and the concept of maintaining the
standards of administration of justice have a reciprocal nature about them, Hurt J held: [460]
“[T]his Court does have a discretion which it must exercise within the precepts set by section 35
(5) . . . As I have already indicated, it seems to me that, but for the nicety of knocking and requesting
a right of entry, which was plainly disregarded, the conduct of [D] and [M] complied with the
provisions of section 41 of Act 75 of 1969, and if that is the case, I do not consider that the act of
forcing entry into his particular room was a sufficiently grave violation to warrant a ruling that the
evidence which they gained in the course of the search was inadmissible . . . Even if I am wrong in
that view, I come to the conclusion that, in the circumstances which prevailed, and given that:
(1)
(2)
(3)
(4)
the accused were suspected of a very serious crime involving the use of firearms to kill a
person;
the information that [M] and [D] had at their disposal was that the accused were in possession
of firearms and likely to resist arrest;
the surroundings, where the room in which the accused were, was situated, were such that a
‘shoot-out’ might occur if more prosaic methods of arrest and search were adopted by the
police;
on the evidence which the two policemen gave (which is the only evidence before this Court in
relation to this ruling), the interests of safety to the police, the community and the accused
themselves, warranted the form of entry and demand which was decided upon;
Page 271
the extent of the infringement of the right to privacy was such as to pale into insignificance compared
with the importance of achievement of the object which the police had in the course of their duties.”
Hurt J accordingly exercised his discretion in favour of admitting the evidence. But he was at
pains to point out that his decision should not in anyway be interpreted as a “blanket
authority” to law enforcement officers to resort to “unorthodox methods” in criminal
investigations. “[E]ach case” said Hurt J “will ultimately have to be decided on its own
facts”. [461]
It should be noted that in Madiba the officers only over-stepped the constitutional line in
so far as it was necessary to eliminate the personal and public safety risks encountered by
them (see § 12 10 2 below). This, no doubt, is a redeeming factor.
And this, no doubt, is a clear indication of good faith and reasonable conduct. It is
submitted that Madiba is authority for the following basic proposition: the exclusion of
unconstitutionally obtained evidence — however necessary it might be for purposes of
promoting legality and enforcing constitutional rights — must always be considered in the
context of the realities that police officers face in the execution of their duties. This
proposition — which even the most ardent supporters of constitutional due process should
be able to swallow without choking — has an inevitable sub-proposition: one of the realities
of criminal investigation is that police officers will — from time to time under pressing
circumstances and through no fault of their own — have to take snap decisions on
“constitutional issues” (without the advantage of having heard learned counsel!). It is
submitted that courts should, in their subsequent judicial assessment of the conduct of the
police officer, constantly bear in mind that the blunder of the bobby on the beat was not
necessarily a deliberate attempt to circumvent or side-step constitutional rights.
There are situations where the court will have to exclude the evidence even though the
individual police officer concerned was bona fide. In S v Soci [462] Erasmus J — in applying
s 35(5) — admitted the accused’s confession to a magistrate, but excluded the evidence of a
pointing out by the accused in the presence of the police: [463]
“The failure of the police, especially Superintendent [G] to inform the accused properly of his right to
consult there and then with a legal practitioner violated a fundamental right of the accused in relation
to the very matter at hand, that is the projected pointing out . . . This violation was not however mala
fide or even conscious. Superintendent [G] in fact did his best to treat the accused fairly by complying
conscientiously with departmental prescriptions, in accordance with a form supplied for such
purposes. The fault lies rather with the form apparently drafted by legal advisors of the South African
Police Service. There can be little excuse for the oversight, as the lacuna in the form was the basis of
the judgment in S v Marx and Another . . . [464] The documents supplied for the use by police
operating in the field should set out the rights of arrested and detained persons fully in clear and
simple language.”
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At first blush it might seem as if Erasmus J was rather harsh in his assessment of the
matter. But a moment’s reflection on the practical and theoretical issues involved, will show
that he was not. Soci is a good example of a case where there was a need to exclude on the
basis of “systemic deterrence”: [465] the good faith of the individual police officers concerned
becomes irrelevant when “the system” — that is, the South African Police Service (hereafter
“the SAPS”) — has issued directives which do not comply with or fall short of constitutional
demands which are clear or which, as in Soci, have been clarified by the High Court at an
earlier stage in a reported decision. Surely, in a situation where it is clear that an entity like
the SAPS has failed to respect (or has chosen to ignore) constitutional rights, it would be
detrimental to the administration of justice to admit the evidence on account of the “good
faith” and reasonable conduct of the individual officer concerned. It is the SAPS — and not
the individual officer — that must be brought to heel.
It is submitted that all the above cases clearly indicate that the “good faith” conduct of the
police (or their “bad faith” conduct) will play an important role in the interpretation of the
second leg of the test in s 35(5). “Good faith” conduct which is reasonable having regard to
the specific circumstances of the case, should in principle weigh heavily in favour of
admission. This approach will not create a situation where individual police officers or the
SAPS would be encouraged to be as ignorant as possible in order to have evidence admitted.
But “good faith” alone is not enough. “Good faith” must also be reasonable. And an objective
test must be applied. An exclusionary rule which ignores “good faith” reasonable police
conduct, will be out of line with the realities of our constitutionalized criminal justice system.
There are many situations where criminal law practitioners and academics would, even after
careful reflection, find it very difficult to say — let alone predict what a court might find —
what a police officer could or should have done, given specific facts and having regard to
constitutional requirements and statutory rules governing police investigative powers. If the
courts in their interpretation and application of the second leg of the test in s 35(5), were to
ignore good faith and reasonable — even though unconstitutional — conduct of a police
officer, there would probably be very little incentive for police officers in general to comply or
attempt to comply with constitutional requirements.
12 10 2 Public safety and urgency
S v Madiba [466] — which is discussed in § 12 10 1 above — serves as authority that public
safety (including the safety of the police) and urgency are factors which can favour
admission of the unconstitutionally obtained evidence. [467] The presence of these factors is
frequently an indication of good faith on the part of the police (see § 12 10 1 above). The
fact that unconstitutional conduct was resorted to in order to
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prevent the imminent destruction of valuable evidence, should as a rule also militate against
the exclusion of such evidence. [468]
12 10 3 Nature and seriousness of the violation
In S v Mark and Another [469] it was noted that the infringement of a constitutional right can
lie somewhere on a scale ranging from the trivial, technical and inadvertent to the gross,
violent, deliberate and cruel. [470] A court may accordingly consider the “nature and
extent” [471] of the constitutional infringement: [472]
“Getuienis verkry as gevolg van ’n bloot tegniese of onbenullige skending, sal meer geredelik
[toegelaat] word as getuienis verkry as gevolg van ’n growwe of ernstige skending. Indien die
getuienis verkry is as gevolg van ’n flagrante of growwe skending terwyl die misdryf wat die
beskuldigde gepleeg het gering is, sal uitsluiting ’n sterk moontlikheid wees.”
A matter which is closely linked to the nature and seriousness of the violation, is whether the
unconstitutional conduct was the result of an ad hoc decision or whether it was part of a
settled or deliberate policy [473] to act with disregard for constitutional rights. [474] In the
latter instance the evidence should as a rule be excluded. [475] Here, too, it is ultimately a
matter of determining the presence or absence of good faith on the part of the police (see
§ 12 10 1 above) and to discipline the police where necessary.
12 10 4 The availability of lawful means or methods of securing the
evidence
In R v Collins Lamer J said:
[476]
“I should add that the availability of other investigatory techniques and the fact that the evidence
could have been obtained without the violation of the Charter tend to render the Charter violation
more serious. We are considering the actual conduct of the authorities and the evidence must not be
admitted on the basis that they could have proceeded otherwise and obtained the evidence properly.
In fact, their failure to proceed properly when that option was open to them tends to indicate a
blatant disregard for the Charter, which is a factor supporting the exclusion of the evidence.”
In R v Feeney the majority of the Supreme Court of Canada confirmed this approach and
added that “[if] other techniques were indeed available, it is demonstrative of bad faith and
is particularly serious that the police chose to violate the appellant’s rights”. [477] In South
Africa the matter seems to turn on the presence or absence of good faith and reasonable
conduct (see § 12 10 1 above).
Page 274
And the fact that alternative lawful means were available, is not necessarily decisive in
excluding the evidence: where the court makes a finding that on the facts the police had
acted in good faith and that their failure to follow prescribed lawful procedures was
“technical and inadvertent in nature . . . the administration of justice would be brought into
disrepute if this evidence were to be excluded”. [478]
In Canada it has been held that the non-availability of lawful methods is neither an excuse
nor a justification for constitutionally impermissible investigative techniques; and in such an
instance the Charter violation would be more serious than it would be otherwise. [479]
12 10 5 Real evidence
In S v Mkhize [480] Willis J, writing for a unanimous full bench, followed the principle
established in R v Collins [481] and confirmed in R v Jacoy: [482] the admission of
unconstitutionally obtained real evidence — as opposed to unconstitutionally obtained
testimonial communications — will rarely render the trial unfair; [483] and the admissibility of
such evidence should therefore in principle be decided with reference to the second leg of
the test. For this purpose the court may take into account “whether the violation was in good
faith, and whether it was inadvertent or of a merely technical nature”. [484] In Mkhize Willis J
also found that even if a search warrant had been applied for in terms of the CPA “nothing
that the appellant could lawfully have done would have prevented the discovery of the
pistol” [485] in the appellant’s locker at his place of employment. The court also found —
perhaps rather generously — that the police officer concerned had acted in good faith. The
evidence was held admissible. [486]
Page 275
The statement in Mkhize to the effect that unconstitutionally obtained real evidence will
rarely render the trial unfair, must now be read subject to what the Supreme Court of
Appeal said in S v Tandwa and Others, namely that the distinction between testimonial
communications and real evidence is misleading because “the question should be whether
the accused was compelled to provide the evidence.” [487] At any rate, in Tandwa the
unconstitutionally obtained real evidence (the accused was assaulted) was not only excluded
on account of fair trial considerations, but also on the basis that admission thereof would
have been detrimental to the administration of justice (see § 12 9 7 (c) above).
12 10 6 Inevitable discovery or discovery on the basis of an
independent source
It is submitted that for purposes of the second leg of the test in s 35(5), our courts may take
into account, where appropriate, that the “inevitable discovery” of real evidence is a factor
favouring admissibility: if the real evidence would — but for the unconstitutional conduct —
have been discovered by lawful means, the exclusion of such evidence would generally be
detrimental to the administration of justice. [488] This approach is in line with the “inevitable
discovery” exception created by the Supreme Court of the USA [489] and the approach of the
Supreme Court of Canada as explained in R v Stillman [490] and R v Feeney. [491]
The rationale of the independent source doctrine as applied in the USA [492] and
Canada [493] should also play a role in determining whether admission of the impugned
evidence would be detrimental to the administration of justice.
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12 11 Section 35(5) and Procedural Matters
12 11 1 The trial within a trial
[494]
A trial within a trial should as a rule be held where the defence objects to the admissibility of
evidence on the basis of s 35(5). [495] The reason for this procedure is to ensure that an
accused can testify on the issue concerning the admissibility of the impugned evidence
without exposing himself to cross-examination on guilt [496] and an accused is — for purposes
of exercising his right to testify or not at the end of the state’s case in the main trial —
entitled to know what evidence has been admitted as part of the state’s case against
him. [497]
A trial within a trial is unnecessary where the parties agree that the facts are common
cause or almost wholly common cause [498] or where the court is satisfied that the objection
raised by the defence affects the weight and not the admissibility of the evidence. [499] The
court must in each case decide whether the challenge is directed at the weight or the
admissibility of the evidence. [500]
12 11 2 The burden of proof: incidence and standard
There is a great deal of confusion concerning the burden of proof and the application of s 35
(5). [501] In S v Naidoo and Another [502] McCall J, relying on some cases decided under the
Interim Constitution, [503] expressed the opinion that “the defence bore the burden of
proving, on a preponderance of probabilities, the existence of the constitutional right on
which the accused relied and its infringement”. [504] In S v Gumede Magid J accepted that
“the party seeking to exclude the evidence . . . bears the onus of establishing that the
admission of the disputed evidence
Page 277
‘would render the trial unfair or otherwise be detrimental to the administration of
justice”’. [505] However, in S v Soci [506] Erasmus J referred to S v Nombewu, [507] his own
earlier decision under the interim Constitution, where he had said that “the rules of law
relating to burden of proof do not apply, either for the final decision on the question, or for
proof of the individual facts which bear on that decision.” [508] In Soci he concluded that
“there is no onus on the State to disprove the fact of an alleged violation of an accused’s
rights under the Constitution”. [509]
It is impossible to reconcile the above viewpoints. It is submitted that an alternative
approach is possible. First, the defence must allege — but need not prove [510] — that there
has been an infringement of a constitutional right of the accused and that s 35(5) calls for
exclusion. Second, in the course of the trial within a trial (see § 12 11 1 above) the
distinction between “purely factual matters [as opposed to] matters of judgment and
value” [511] must be borne in mind. The accused must get the benefit of the doubt on factual
matters which the state fails to prove beyond a reasonable doubt. For example, where the
defence alleges that the accused never consented to the warrantless search of his property
(or was not given the required constitutional warnings upon arrest), the prosecution will
have to prove the presence of consent (or the fact that the warnings were given) if that is
part of its case. [512] Third, once the necessary factual findings have been made and it is
concluded that the evidence was indeed obtained in breach of constitutional rights, the court
is required to exercise its discretion and make a value judgment on the question whether
admission of the evidence would result in one of the consequences
Page 278
identified in s 35(5). And there can be no question of an onus in respect of this decision;
nor should there be a presumption in favour of or against the admission of the evidence.
[513]
[514]
12 12 Evidence Procured by Means of Entrapment (s 252A of
the CPA and s 35(5) of the Constitution)
A trap is neither an accomplice [515] nor an informer, [516] but “a person who, with a view to
securing the conviction of another, proposes certain criminal conduct to him, and himself
ostensibly takes part therein . . . [H]e creates the occasion for someone else to commit the
offence”. [517] Entrapment is a “proactive investigative technique.” [518] There are various
forms of entrapment. [519] It is generally considered a controversial form of procuring
evidence, [520] even though it must be conceded that there are situations where entrapment
or engagement in undercover operations is the only effective means of detecting and
investigating the commission of an offence. [521] There is, however, always the risk that an
otherwise innocent person might have been induced to commit the crime on account of the
persuasive conduct of, or methods employed by, the trap.
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In terms of common-law principles entrapment is no defence. [522] And rules of exclusion
in respect of entrapment evidence, do not apply. [523] The court, however, must assess the
evidence of a trap with caution (see § 30 11 1 below); and in the event of a conviction,
entrapment may, where appropriate, serve as a mitigating factor in imposing sentence. [524]
Under the interim Constitution it was accepted that entrapment could not be a substantive
defence. [525] The courts also had to receive evidence of entrapment (in the sense that there
was no evidentiary rule of exclusion). [526] But most courts held that in their evaluation of the
evidence, they were required to consider whether the police procedures had been so
fundamentally unfair that the accused was deprived of his constitutional right to a fair trial in
terms of s 25(3) of the Interim Constitution. [527]
Section 252A of the CPA was inserted by s 1 of the Criminal Procedure Second
Amendment Act [528] and came into operation on 29 November 1996. [529] Section 252A [530]
— which is contained in Appendix C to this work — regulates the setting of traps and the
engaging in undercover operations. [531] No substantive defence of entrapment was created
by this section. However, following the general recommendations made by the South African
Law Commission, [532] the legislature opted for a qualified rule of exclusion. Section 252A(3)
(a) — which must be read with s 252A(1) [533] and 252A(2) [534] — provides as follows: [535]
Page 280
“If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an
undercover operation the conduct goes beyond providing an opportunity to commit an offence, the
court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already
tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the
admission of such evidence would render the trial unfair or would otherwise be detrimental to the
administration of justice.”
Section 252A(3)(b) stipulates that the court — when considering the admissibility of the
evidence — “shall weigh up the public interest against the personal interest of the accused”.
The same section also requires the court to have regard to several factors, if applicable.
These factors are set out in s 252A(3)(b)(i) to 252A(3)(b)(vi). Section 252A(3)(b)(iii)
provides that one of the factors the court is required to consider, is “the nature and
seriousness of any infringement of any fundamental right contained in the Constitution.”
Section 252A(6) provides that if the question is raised whether entrapment evidence
should in terms of s 252A(3)(a) be excluded,
“the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest
on the prosecution: Provided that the accused shall furnish the grounds on which the admissibility of
the evidence is challenged: Provided further that if the accused is not represented the court shall raise
the question of the admissibility of the evidence.” [536]
The question whether evidence should be excluded in terms of s 252A(3)(a), may — on
application of the accused or the prosecution, or by order of the court mero motu — be
adjudicated as a separate issue in dispute, [537] that is, by having a trial within a trial.
It should be noted that the discretionary rule of exclusion created by s 252A(3)(a),
remains subject to the provisions of s 35(5) of the Constitution. [538] Section 252A(3)(a)
creates the impression that evidence may be admitted even if “the admission of such
evidence would render the trial unfair or would otherwise be detrimental to the
administration of justice”. However, where the entrapment evidence was unconstitutionally
obtained, the provisions of s 35(5) must prevail: the court must exclude the evidence if it is
satisfied that admission would result in one of the consequences identified in s 35(5). [539]
In Amod v S [540] the conviction and sentence were set aside because the police
procedures and conduct in the course of entrapment, rendered the appellant’s trial unfair.
Section 252A was invoked. The police were extremely persistent in selling gold to the
accused. They offered the accused a reduction in the purchase price after he had indicated
his unwillingness to conclude the transaction at the initial price. They resorted to verbal
persuasion and also
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offered him a credit facility. A number of attempts were made over a substantial period of
time to entice the accused. [541]
12 13 Civil Cases
Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad Van Die Oranje-Vrystaat, en
Andere [542] — decided in 1992 — was the first case in which the common-law inclusionary
approach was, for purposes of civil proceedings, subjected to critical scrutiny. [543]
Distinguishing Botha v Botha [544] and relying on, inter alia, S v Mushimba en Andere [545] and
a post-30 May 1961 English decision, [546] Lombard J ruled certain evidence inadmissible on
the basis that he had a discretion to exclude improperly obtained evidence. [547] Relying on
Lombard J’s decision as well as the decision of Myburgh J in Motor Industry Fund
Administrators (Pty) Ltd and Another v Janit and Another, [548] Hurt J concluded in Lenco
Holdings Ltd and Others v Eckstein and Others that “in civil proceedings, the Court has a
discretion to exclude evidence . . . obtained by a criminal act or otherwise improperly”. [549]
Judicial integrity and the integrity of the judicial system were some of the factors which led
the court to exclude the impugned evidence. [550] On the available evidence, there was also
no indication that the applicant had attempted or contemplated lawful methods of procuring
the evidence “before taking the decision to resort to crime.” [551]
The discretion which developed in the pre-constitutional era, also has a solid constitutional
basis despite the fact that s 35(5) is not — as was pointed out in § 12 1 above — applicable
to civil proceedings.
civil trial. [553]
[552]
After all, in terms of s 34 of the Constitution there is a right to a fair
Page 282
In Fedics Group (Pty) Ltd and Another v Matus and Others Fedics Group (Pty) Ltd and
Another v Murphy and Others [554] Brand J observed that the denial of a discretion in civil
proceedings to exclude illegally or otherwise improperly obtained evidence would be “a
retrogressive step in the development of our law . . .” [555] In the exercise of this discretion,
he found, a court is directed by s 39(2) of the Constitution to “promote the spirit, purport
and objects” of the Bill of Rights in developing the common law. [556] Having noted the
fundamental differences between criminal and civil proceedings, [557] Brand J observed: [558]
“Without trying to formulate principles of general validity or rules of general application, the
implications of these differences between criminal and civil proceedings in the present context are, in
my view, twofold. On the one hand, the litigant who seeks to introduce evidence which was obtained
through a deliberate violation of constitutional rights will have to explain why he could not achieve
justice by following the ordinary procedure, including the Anton Piller procedure, available to him. On
the other hand, the Court will, in the exercise of its discretion, have regard to the type of evidence
which was in fact obtained. Is it the type of evidence which could never be lawfully obtained and/or
introduced without the opponent’s co-operation, such as privileged communications, or the recording
of a tapped telephone conversation, or is it the type of evidence involved in this case, namely
documents and information which the litigant would or should eventually have obtained through lawful
means? In the latter case, the Court should, I think, be more inclined to exercise its discretion in
favour of the litigant who seeks to introduce the evidence than it would be in the case of the former.
It goes without saying that the Court will, in any event, have regard to all the other circumstances of
the particular case.”
Taking into account various relevant facts, [559] the court ultimately concluded that the
impugned evidence was admissible even though there had been a breach of the
constitutional right to privacy in the procurement of the evidence.
In Protea Technology Ltd & another v Wainer & others [560] Heher J held that the
Interception and Monitoring Prohibition Act 127 of 1992 did not expressly or by necessary
inference render the production of recordings made in violation of its terms, inadmissible in
evidence before a court trying a civil dispute. [561] On the facts of the case it was also held
that the respondent could not rely on
Page 283
the constitutional right to privacy and that the impugned evidence was admissible. [562]
Heher J, however, also ruled that even if the finding that the respondent could not rely on
the constitutional right to privacy were wrong, he would — after having adjusted the test for
admissibility to meet constitutional requirements [563] — nevertheless have admitted the
evidence. [564]
In Lotter v Arlow and Another [565] the applicant, a creditor of the respondents, had
requested her attorneys to instruct a valuator to investigate whether the respondents had
any disposable assets. Having received his instructions, the valuator unlawfully entered the
residential premises of the respondents. He found a Mercedes, worth R125 000. Bertelsmann
J excluded the evidence of the valuator. The main reasons for exclusion were the following:
the valuator knew he was acting unlawfully; [566] the respondents’ constitutional right to
privacy was infringed; [567] the applicant had resorted to self-help whilst lawful means were
available; [568] there was no evidence that the respondents had been acting unlawfully; [569]
admission of the evidence would have brought the administration of justice into disrepute,
encouraging disrespect for the law and the Constitution; [570] neither the applicant nor the
evaluator gave any reasons why it was necessary to proceed in the manner in which they
did. [571]
It has been suggested that the conduct of the party objecting to the admissibility of the
impugned evidence, is “a factor to be taken into account by the court in exercising its
discretion . . .”. [572]
[1] Parts of this chapter are based on the following two articles by Van der Merwe: 1992 Stell LR 175 and 1998
SACJ 462.
[2] The interim Constitution had no such provision. See further § 12 7 2 below.
[3] Protea Technology Ltd & another v Wainer & others 1997 (9) BCLR 1225 (W) 1244B; Schmidt & Rademeyer
382; Steytler Constitutional Criminal Procedure (1998) 34. See further § 12 13 below.
[4] See, eg, S v Mthembu 2008 (2) SACR 407 (SCA); S v Tandwa and Others 2008 (1) SACR 613 (SCA); S v Pillay
and Others 2004 (2) SACR 419 (SCA); S v M 2002 (2) SACR 411 (SCA); Director of Public Prosecutions, Transvaal v
Viljoen 2005 (1) SACR 505 (SCA).
[5] See S v Naidoo and Another 1998 (1) SACR 479 (N), which is discussed in §§ 12 9 4 and 12 10 1 below.
[6] See generally S v Soci 1998 (2) SACR 275 (E), which is discussed in §§ 12 8 2 and 12 10 1 below; S v Gumede
1998 5 BCLR 530 (D) and S v Madiba 1998 1 BCLR 38 (D). The latter case is also discussed in § 12 10 1 below.
[7] See generally S v Shongwe en Andere 1998 (2) SACR 321 (T).
[8] S v Aimes and Another 1998 (1) SACR 343 (C). This case is discussed in § 12 8 6 below. See also S v Saloman
and Others 2014 (1) SACR 93 (WCC) which is discussed by Schwikkard (2014) 27 SACJ 293.
[9] 232 US 383 (1914) at 393. Oaks “Studying the Exclusionary Rule in Search and Seizure” 1970 37 Univ of
Chicago LR 665 756 puts the matter as follows: “If constitutional rights are to be anything more than pious
pronouncements, then some measurable consequence must be attached to their violation. It would be intolerable if
the guarantee against unreasonable search and seizure could be violated without practical consequence. It is likewise
imperative to have a practical procedure by which courts can review alleged violations of constitutional rights and
articulate the meaning of those rights. The advantage of the exclusionary rule — entirely apart from any direct
deterrent effect — is that it provides an occasion for judicial review, and gives credibility to the constitutional
guarantees.”
[10] Van den Wyngaert (ed) Criminal Procedure Systems in the European Community (1993) 20-1, 174, 238;
Bradley “The Emerging International Consensus as to Criminal Procedural Rules” 1993 14 Michigan Journal of
International Law 171 219; Pakter “Exclusionary Rules in France, Germany and Italy” 1985 9 Hastings International
and Comparative LR 1.
[11] See generally Stavros The Guarantees for Accused Persons under Article 6 of the European Convention on
Human Rights (1993) 225-7. In Saunders v United Kingdom 1996 23 EHRR 313 the European Court of Human Rights
held that evidence obtained in violation of internationally recognised procedural safeguards could infringe the right to
a fair trial under art 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms
(1950).
[12] Paragraph 7(b) of art 69 of the Rome Statute of the International Criminal Court (1998) provides that “[e]
vidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be
admissible if . . . [t]he admission of the evidence would be antithetical to and would seriously damage the integrity
of the proceedings”. See also generally rule 95 of the Rules of Procedure and Evidence of the International Criminal
Tribunal for the Former Yugoslavia (1994).
[13] See § 1 4 above.
[14] Crompton J in R v Leatham 1861 Cox CC 498 501 501 as quoted by Langenhoven Die Toelaatbaarheid van
Ongrondwetlik Verkreë Getuienis (unpubl LLD thesis, Univ of Stellenbosch, 1999) 17. See also Ally Constitutional
Exclusion under Section 35(5) of the Constitution of the Republic of South Africa, 1996 (unpubl LLD thesis, University
of Pretoria, 2009) 35.
[15] Van der Merwe 1992 Stell LR 173 174.
[16] Even in England, where the inclusionary approach developed, the matter has since 1984 been regulated by
statute. Section 78(1) of the Police and Criminal Evidence Act 1984 provides as follows: “In any proceedings the
court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the
admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought
not to admit it”. However s 82(3) of the same Act also provides as follows: “Nothing in . . . this Act shall prejudice
any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its
discretion.”
[17] Section 38(1) of the Evidence Act 1995 of Australia provides that evidence obtained improperly or in
contravention of an Australian law — or in consequence of an impropriety or of a contravention of an Australian law
— “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting
evidence that has been obtained in the way in which the evidence was obtained.” Emphasis added. Section 138(3) of
this Act identifies certain other factors that a court must take into account.
[18] Zuckermann The Principles of Criminal Evidence (1989, repr 1992) 345-6.
[19] See generally Kahanovitz “The Namibian Bill of Rights: Implications for the Promotion of Procedural and
Substantive Justice in Criminal Cases” 1991 2 Criminal Law Forum 569 589-90. In S v Minnies and Another 1991 (1)
SACR 355 (Nm) Du Toit AJ observed as follows (at 370g-h, emphasis added): “The American approach has been
formulated by judicial interpretation of the United States Constitution and in particular the Fourth, Fifth and
Fourteenth Amendments of it. A judge sitting in a different environment with different laws should obviously not seek
to draw too many analogies. But what is instructive in this and other American decisions is on the one hand the farreaching judicial protection against police abuses, based on constitutional rights, and on the other hand the
accompanying awareness that criminality must not be fostered by too great an inhibition of police investigation.
These competing values obviously transcend national boundaries. A court must evaluate them in the light of the
conditions and circumstances existing in its own jurisdiction from time to time, and the facts of the case before it.”
[20] R v Goodwin [1993] 2 NZLR 153 (CA). Evidence obtained in breach of rights in the New Zealand Bill of Rights
Act 1990, is prima facie inadmissible subject to a broad discretion to admit. At 206 Gault J noted that prima facie
exclusion was not the same thing as automatic exclusion. However, on the facts of the case no constitutional breach
was present.
[21] See generally The People (Attorney General) v O’Brien 1965 IR 142; The People v Walsh 1980 IR 294; The
People v Madden 1977 IR 336.
[22] 2004 (2) SACR 419 (SCA) at [122]. However, in the same paragraph he also cautioned that great care must
be taken when transporting Canadian decisions to the South African context: Canadian decisions can at most provide
a useful guide.
[23] See generally S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [121]; S v Shongwe en Andere 1998 (2)
SACR 321 (T) 340a-d; Van der Merwe 1992 Stell LR 173 176. In S v Gumede 1998 5 BCLR 530 (D) 538C Magid J
even pointed out that there “is some controversy, even since the promulgation of the Constitution, between those
judges who lean towards the exclusion of [unconstitutionally] obtained evidence and those who adopt an inclusionary
approach.”
[24] Stone v Powell 428 US 465 (1976) at 496. But see § 12 4 3 below.
[25] 1950 SC (J) 19 26-7 (as quoted by Stuart Charter Justice in Canadian Criminal Law 2 ed (1996) 469-70). See
also Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC); 1996 (2) SACR 113 (CC)
at [13] as quoted in n 188 below.
[26] The following dissenting judgment of Brandeis J in Olmstead v United States 277 US 438 (1928) at 485
provides clear grounds for rejecting this argument: “Decency, security, and liberty alike demand that government
officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws
the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the
potent, the omnipresent, teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious.
If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto
himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to
declare that the government may commit crimes to secure the conviction of a private criminal — would bring terrible
retribution. Against that pernicious doctrine this court should resolutely set its face.”
[27] Wigmore paras 2183 and 2184.
[28] Schlesinger Exclusionary Injustice: The Problem of Illegally Obtained Evidence (1977) 62.
[29] See generally Peiris “The Admissibility of Evidence Obtained Illegally: A Comparative Analysis” 1981 13
Ottawa LR 309 343.
[30] See People v Defore 150 NE 585 (1926); Wolf v Colorado 338 US 25 (1949); Shanks “Comparative Analysis
of the Exclusionary Rule and its Alternatives” 1983 57 Tulane LR 648. But see § 12 3 below for a counter-argument.
See also Brinegar v United States 338 US 160 (1949) at 173; Mapp v Ohio 367 US 643 (1961); Traynor Mapp v Ohio
at Large in the 50 States 1962 Duke LJ 319
[31] This argument is unacceptable because “the investigative process . . . is . . . part of the administration of
justice” (Zuckerman The Principles of Criminal Evidence 345). See also S v Nkabinde 1998 8 BCLR 996 (N) 1001E.
[32] Schlesinger Exclusionary Injustice 61; Peterson “Restrictions in the Law of Search and Seizure” 1958 52
Northwestern Univ LR 46 55.
[33] Wigmore para 2183.
[34] This criticism of the exclusionary rule can be rejected on the basis that it views the rule solely from the angle
of the “guilty”. Dworkin “Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering” 1973 48
Indiana LJ 329 330-1 has pointed out that the exclusionary rule protects “the rest of us from unlawful invasions of
our security and [maintains] the integrity of our institutions . . . The innocent and society are the principal
beneficiaries of the exclusionary rule.”
[35] Kamisar “‘Comparative Reprehensibility’ and the Fourth Amendment Exclusionary Rule” 1987 86 Michigan LR
1 43 dismisses this argument (emphasis in the original text): “I wince when I hear a law enforcement official
protest: ‘We . . . are forced to fight by Marquis of Queensberry rules while criminals are permitted to gouge and
bite’. If criminals didn’t gouge and bite they wouldn’t be criminals. And if police officers did gouge and bite they
wouldn’t (or at least shouldn’t) be police officers.”
[36] Stewart “The Road to Mapp v Ohio and Beyond: The Origins, Development and Future of the Exclusionary
Rule in Search and Seizure Cases” 1983 83 Columbia LR 1365 1394 notes that “there is absolutely no evidence that
the exclusionary rule is in any way responsible for the horrible increase in the crime rate in the United States.” See
also LaFave Search and Seizure: A Treatise on the Fourth Amendment 2 ed (1987) 22 n 6; Kamisar 1987 86
Michigan LR 1 131. See further § 12 10 below.
[37] Cardozo J in People v Defore supra. But there is a fundamental flaw in this line of reasoning. If you are going
to deal with a corrupt or ignorant policeman, there will always be loss of reliable evidence irrespective of the fact
whether an exclusionary or inclusionary rule is adopted. See also Heydon Evidence: Cases and Materials 3 ed (1991)
260-4.
[38] R v Mabuya 1927 CPD 181.
[39] Barrett “The Exclusion of Evidence Obtained by Illegal Searches — A Comment on People v Cahan” 1955 43
California LR 565 582.
[40] Waite “Judges and the Crime Burden” 1955 54 Michigan LR 169 192.
[41] Exclusionary Injustice 63.
[42] It is interesting to compare the German approach as set out by Morissette “The Exclusion of Evidence under
the Canadian Charter of Rights and Freedoms: What to do and not to do” 1984 29 McGill LJ 521 530: “The
Rechtsstaatsprinzip (or Rule of Law) requires the exclusion of evidence, regardless of its weight or value, in cases of
police brutality or other aggravated illegality. The Verhültnismüssigkeit (or principle of proportionality) calls for the
exclusion of probative evidence where the means by which it was obtained are excessively intrusive in view of the
triviality of the offence investigated and the particular sphere of privacy thus invaded. According to one fitting
metaphor, the principle of proportionality means that one should not shoot sparrows with a cannon.” Stewart 1983
83 Columbia LR 1365 1396 concludes as follows: “[D]isproportionality is significant only if one conceives the purpose
of the rule as compensation for the victim. Because I view the exclusionary rule as necessary to preserve Fourth
Amendment guarantees, I do not find this criticism persuasive.”
[43] Schlesinger Exclusionary Injustice 63.
[44] See generally Shanks “Comparative Analysis of the Exclusionary Rules and its Alternatives” 1983 57 Tulane
LR 648.
[45] 364 US 206 (1960) at 217.
[46] See also LaFave Search and Seizure 17. In S v Pillay and Others 2004 (2) SACR 419 (SCA) Mpati DP and
Motata AJA said (at [94]) that to admit the impugned real evidence indirectly obtained as a result of a serious breach
of the second appellant’s constitutional right to privacy “might create an incentive for law enforcement agents to
disregard accused persons’ constitutional rights . . . That result — of creating an incentive for the police to disregard
accused persons’ constitutional rights, particularly in cases like the present, where a judicial officer is misled — is
highly undesirable and would . . . do more harm to the administration of justice than enhance it.”
[47] Oaks “Studying the Exclusionary Rule in Search and Seizure” 1970 37 Univ of Chicago LR 665.
[48] See Stone v Powell 428 US 465 (1976) at 492.
[49] Kamisar 1987 86 Michigan LR 1 34 n 147.
[50] 1998 (1) SACR 388 (W) 400b.
[51] 1998 (2) SACR 275 (E). See also generally S v Cwele and Another 2011 (1) SACR 409 (KZP) at [7].
[52] Packer The Limits of the Criminal Sanction (1968) 149-72. See also generally Herrmann 1978 SACC 3 as well
as S v Mthembu 2008 (2) SACR 407 (SCA) at [36].
[53] See Weeks v United States 232 US 383 (1914) at 393; Oaks 1970 37 Univ of Chicago LR 665; Schwikkard
1991 SALJ 318 326.
[54] See Mapp v Ohio 367 US 643 (1961) at 662.
[55] See Paizes 1989 SALJ 472 478.
[56] See Cleary (ed) McCormick on Evidence 3 ed (1984) 463.
[57] See Gard (ed) Jones on Evidence: Civil and Criminal 13. See also generally S v Tandwa and Others 2008 (1)
SACR 613 (SCA) at [120]-[121].
[58] See generally Kamisar 1987 86 Michigan LR 130; Diamond “The State and the Accused: Balance of Advantage
in Criminal Procedure” 1960 69 Yale LJ 1149.
[59] Packer The Limits of the Criminal Sanction 166. See also Van Rooyen 1975 Acta Juridica 70 78.
[60] See, eg, S v Mushimba en Andere 1977 (2) SA 829 (A)
[61] 1966 (2) SA 433 (A).
[62] At 444C-E.
[63] Elkins v United States supra. See also generally Osakwe “The Bill of Rights for the Criminal Defendant in
American Law: A Case Study of Judicial Lawmaking in the United States” in Andrews (ed) Human Rights in Criminal
Procedure: A Comparative Study (1982) 259 280.
[64] Janis v United States 428 US 443 (1966) at 458.
[65] Elkins v United States supra 223.
[66] Janis v United States supra.
[67] See generally Olmstead v United States 277 US 438 (1928) at 485. Cf Kaplan “The Limits of the Exclusionary
Rule” 1974 26 Stanford LR 1027.
[68] 2006 (2) SACR 33 (SE) at 41f-42a. See also S v Mthembu 2008 (2) SACR 407 (SCA) at [33], where Cachalia
J put the emphasis on the integrity of the judicial process. Ally Exclusion under Section 35(5) of the Constitution of
the Republic of South Africa, 1996 (unpubl LLD thesis, Univ of Pretoria, 2009) 43 claims that judicial integrity is “the
principal rationale for exclusion under section 24(2) of the Charter as well as section 35(5) of the South African
Constitution”.
[69] See Packer The Limits of the Criminal Sanction 167-8; Damaska “Evidentiary Barriers to Conviction and Two
Models of Criminal Procedure” 1973 121 Univ of Pennsylvania LR 506 583.
[70] 1975 Acta Juridica 70 79.
[71] 1998 (1) SACR 479 (N). See also the majority decision in S v Pillay and Others 2004 (2) SACR 419 (SCA).
See also generally S v Cwele and Another 2011 (1) SACR 409 (KZP).
[72] In S v Shongwe en Andere 1998 (2) SACR 321 (T) 341d-e Preller AJ observed as follows with reference to the
position in the USA: “Dit lyk vir my ongewens dat die hoogste hof van ’n land ’n reël formuleer, net om agterna deur
realiteite geforseer te word om die een uitsondering na die ander daarop te skep. Vir litigante het dit die ongelukkige
gevolg dat as die tersaaklike optrede nie tuisgebring kan word onder een van die geykte uitsonderings nie, die saak
tot in die hoogste hof gevoer moet word, sodat ’n nuwe uitsondering in ’n gepaste geval geskep kan word.”
[73] Weeks v United States 232 US 383 (1914). This case should be read with Boyd v United States 116 US 616
(1886) and compared with Adams v NY 192 US 585 (1904). In the latter case the common-law inclusionary
approach still held sway.
[74] 367 US 643 (1961). This case overruled Wolf v Colorado 338 US 25 (1949) on this point. Mapp v Ohio supra
was preceded by Rochin v California 342 US 165 (1952), where real evidence was excluded on the basis that it was
obtained by methods that shocked “the conscience” (at 172).
[75] Mapp v Ohio was preceded by Elkins v United States 364 US 206 (1960), where the Supreme Court rejected
the so-called “silver platter” doctrine in terms of which evidence unconstitutionally procured by state officials and
handed over to federal officials, could be received in federal criminal proceedings. This doctrine, concluded the court,
violated the Fourth Amendment prohibition against unreasonable search and seizure. Standards or criteria to
determine whether federal and state searchers complied with the Fourth Amendment, are the same. See Kerr v
California 374 US 23 (1963). Mapp v Ohio must, however, also be read subject to Herring v United States 555 US
135 (2009) where it was held that inadmissibility is not necessarily an absolute result of a Fourth Amendment
breach.
[76] Acker & Brody Criminal Procedure — A Contemporary Perspective (1999) 114 explain as follows with
reference to Katz v United States 389 US 347 (1967): “[T]he exclusionary rule is designed to deter the police from
violating people’s Fourth Amendment rights. Application of the rule normally prohibits evidence directly resulting
from an illegal search or seizure from being used to prove guilt in a criminal trial. The ‘fruit of the poisonous tree’ is
the colourful metaphor describing the relationship between a constitutional violation and the related discovery of
evidence. If the evidence — the ‘fruit’ — is a direct product of the illegality — the ‘poisonous tree’ — then it is tainted
by the constitutional violation and should not be used in a trial. For example, the ‘fruit’ of the unreasonable search
conducted in Katz v United States was the telephone conversation overheard by the authorities, which was ruled
inadmissible as evidence.” See further § 12 9 6 below.
[77] See generally Bradley (ed) Criminal Procedure: A Worldwide Study 2 ed (2007) 520-30.
[78] United States v Janis 428 US 433 (1976).
[79] Burdeau v McDowell 256 US 465 (1921).
[80] Walder v United States 347 US 62 (1954). See further § 25 5 below.
[81] United States v Havens 446 US 620 (1980). However, the prosecutor may not pursue a line of crossexamination aimed at eliciting an answer which would permit introduction of the otherwise inadmissible real
evidence, unless such cross-examination is connected to matters which the accused first raised in evidence in chief.
In United States v Havens supra 626 White J said that the questions may not be “smuggled in” and that if the
prosecutor’s questions would have been put by “a reasonably competent cross-examiner” in the light of the
accused’s evidence in chief, they are not “smuggled in”.
[82] United States v Verdugo-Urquidez 1990 110 S Ct 1056.
[83] For a critical discussion of this case, see Gane & Mackarel “The Admissibility of Evidence Obtained from
Abroad into Criminal Proceedings — The Interpretation of Legal Assistance Treaties and Use of Evidence Irregularly
Obtained” 1996 2 European Journal of Crime, Criminal Law and Criminal Justice 98 109.
[84] United States v Calandra 444 US 338 (1974).
[85] Mardone v United States 308 US 338 (1939) at 341.
[86] See New York v Harris 495 US 14 (1990).
[87] In Wong Sun v United States 371 US 471 (1963) it was observed: “We need not hold that all evidence is ‘fruit
of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather,
the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959). We think it clear that the
narcotics were ‘come at by the exploitation of that illegality’ and hence that they may not be used against Toy.” See
further § 12 9 7 below.
[88] See Illinois v Krull 480 US 340 (1987), where it was held that if the police, in performing their duties, in
reasonably good faith rely on a statute only later found unconstitutional, the evidence obtained by them should be
admitted.
[89] The “good faith” exception to the mandatory exclusionary rule in the USA, was first created in United States v
Leon 468 US 897 (1984), where the police reasonably and in good faith relied on a search warrant issued by a
judicial officer but later found not supported by probable cause. See also Massachusetts v Sheppard 468 US 981
(1984). For general arguments in favour of a good faith exception to the rigid exclusionary rule in the USA, see Hart
“The Good Faith Restatement of the Exclusionary Rule” 1982 73 Journal for Criminal Law and Criminology 916 and
Ball “Good Faith and the Fourth Amendment: The ‘Reasonable’ Exception to the Exclusionary Rule’ 1978 69 Journal
for Criminal Law and Criminology 635. However, there also are commentators who take a critical view of the good
faith exception. See generally Bradley “The ‘Good Faith Exception’ Cases: Reasonable Exercises in Futility” 1985 60
Indiana LJ 287. See further § 12 10 1 below.
[90] 514 US 1 (1995).
[91] Seguar v United States 468 US 796 (1984).
[92] Murray v United States 487 US 533 (1988). For a critical discussion of this case, see Bradley “ Murray v
United States: The Bell Tolls for the Search Warrant Requirement” 1989 64 Indiana LJ 907. At 911 Bradley argues
that, on the facts of the case, the officers “who ‘found’ the evidence . . . pursuant to the search warrant . . . were not
‘wholly independent’ but were the very same officers who had committed the original fourth amendment violation.”
[93] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 132. See further § 12 9 7 below.
[94] Terry v Ohio 392 US 1 (1968)
[95] Mirfield Silence, Confessions and Improperly Obtained Evidence 327.
[96] Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 144.
[97] Supra.
[98] Miranda v Arizona 384 US 436 (1966) at 478-9. See also § 10 2 3 1 above.
[99] The Miranda-warnings have been described as “prophylactic standards” (Michigan v Tucker 417 US 433
(1974) at 446), “prophylactic procedures” and “preventive medicine” (Oregon v Elstad 470 US 298 (1985)). See
further § 12 7 2 1 below. In South Africa the essence of the Miranda-warnings have been elevated to constitutional
rights. See, eg, s 35(1)(a), 35(1)(b), 35(2)(b) and 35(2)(c) of the Constitution.
[100] Miranda v Arizona supra 477.
[101] Miranda v Arizona supra 470.
[102] Miranda v Arizona supra 473-4. See further § 10 3 2 above and § 12 9 4 below.
[103] Miranda v Arizona supra 476-7.
[104] In Oregon v Elstad supra it was said that while the Fourth Amendment exclusionary rule (see § 12 5 1
above) is to deter unreasonable searches, “[t]he Miranda exclusionary rule serves the Fifth Amendment and sweeps
more broadly than the Fifth Amendment itself”.
[105] Miranda v Arizona supra 477.
[106] See also generally Smith “The Threshold Question in Applying Miranda: What Constitutes Custodial
Interrogation?” 1974 25 South Carolina LR 699 and Kamisar Police Interrogation and Confessions: Essays in Law and
Policy (1980) 139. See also Schutte 1996 SACJ 263 at 270-3.
[107] Rhode Island v Innis 446 US 291 (1980) at 301. On the facts of this case it was found that there was no
“functional equivalent” of express questioning. Cf Brewer v Williams 430 US 387 (1977) — the so-called “Christian
burial speech” case — which is discussed in detail by Kamisar Police Interrogation and Confessions: Essays in Law
and Policy 113-37; Berger Taking the Fifth: The Supreme Court and the Privilege against Self-incrimination (1980)
156-7 and Schutte 1996 SACJ 167 177-80. In this case the court concluded that the conduct of the officer had been
tantamount to interrogation and in breach of the Sixth Amendment right to counsel.
[108] Miranda v Arizona supra 479. See further § 12 9 5 below.
[109] Kamisar “The Right to be Informed of Legal Rights” in Marshall (ed) The Supreme Court and Human Rights
(1982) 189 198.
[110] 470 US 298 (1985). See further § 12 8 2 below.
[111] Oregon v Elstad supra.
[112] Oregon v Elstad supra. See further § 12 8 2 below.
[113] 475 US 412 (1986).
[114] Moran v Burbine supra 422.
[115] Moran v Burbine supra 424. Emphasis added. Some state courts have on state law grounds refused to follow
Moran v Burbine supra. See, eg, State v Reed 627 A 2d 630 (1993).
[116] 1998 (1) SACR 388 (W).
[117] Michigan v Tucker 417 US 433 (1974).
[118] Michigan v Tucker supra 446.
[119] 467 US 649 (1984).
[120] New York v Quarles supra 657.
[121] 420 US 714 (1975).
[122] 401 US 222 (1971).
[123] 467 US 431 (1984). See also the discussion of S v Pillay and Others 2004 (2) SACR 419 (SCA) by Naudé
2008 SACJ 168.
[124] See Brewer v Williams supra. Nix v Williams supra was a sequel to Brewer v Williams.
[125] Nix v Williams supra 444.
[126] R v Wray 1970 11 DLR (3d) 673.
[127] Sopinka, Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 409. Bryant, Gold, Stevenson &
Northrup “Public Attitudes toward the Exclusion of Evidence: Section 24(2) of the Canadian Charter of Rights and
Freedoms” 1990 2 Can Bar Rev 1 observed as follows (at 5): “The core idea is simple. An effective and stable legal
system must enjoy the support of the public. To admit unconstitutionally obtained evidence where that would bring
the system into disrepute in the eyes of the public would be to compromise the public’s support for the legal system.
Conversely, to exclude evidence under circumstances where this would bring the administration of justice into
disrepute would again undermine public support for the legal system. Hence the ‘compromise’ reflected in section 24
(2).” This passage was quoted with approval by Cloete J in S v Mphala and Another 1998 (1) SACR 654 (W) 660a in
his interpretation of s 35(5) of the Constitution.
[128] See generally Marin Admissibility of Statements 7 ed (1989) 182.
[129] [2009] 2 SCR 553. For discussions of Grant and its possible future persuasive influence on South African
jurisprudence as regards the interpretation of s 35(5), see Naudé 2009 Obiter 607 and De Vos 2011 (2) TSAR 268.
See also more generally Ally 2012 15(2) PER/PELJ 477.
[130] [1997] 1 SCR 607.
[131] [1987] 1 SCR 265.
[132] See also the discussion of Stillman in § 12 9 6 below.
[133] R v Grant supra at [64].
[134] At [71].
[135] See also Naudé 2009 Obiter 607 at 616; Stuart “Welcome Flexibility and Better Criteria from the Supreme
Court of Canada for Exclusion of Evidence Obtained in Violation of the Canadian Charter of Rights and Freedoms”
2010 2 Southwestern Journal of International Law 313 at 317-8.
[136] R v Grant supra at [72].
[137] 2008 (2) SACR 407 (SCA) at [33].
[138] 2006 (2) SACR 33 (SE) at 41f-42a.
[139] At [73].
[140] R v Grant at [74].
[141] R v Grant at [75].
[142] See, eg, R v Silveira [1995] 2 SCR 297.
[143] R v Grant at [75].
[144] R v Grant at [75].
[145] R v Kokesch [1990] 3 SCR 3.
[146] See also Paizes in Du Toit et al Commentary at 24-98N-17 for a summary of this line of inquiry as identified
in R v Grant.
[147] R v Grant at [76].
[148] See also Paizes in Du Toit et al Commentary at 24-98N-18.
[149] R v Grant at [79].
[150] At [83].
[151] R v Grant at [89]-[98].
[152] At [99]-[111].
[153] At [112]-[115].
[154] At [116]-[128].
[155] See the discussion of Grant by Stuart 2010 2 Southwestern Journal of International Law 313.
[156] [1987] 1 SCR 265.
[157] For analyses and criticisms of the common-law position as it stood prior to constitutionalization, see Zeffertt
“Pointing Out” in Kahn (ed) Fiat Justitia: Essays in Memory of Oliver Deneys Schreiner (1983) 398; Zeffertt 1970
SALJ 402; Skeen 1988 SALJ 389; Campbell 1968 SALJ 246; Van Rooyen 1975 Acta Juridica 70 77-81; Paizes 1988
SALJ 168; S v Malefo en Andere 1998 (1) SACR 127 (W) 152h-154g; Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others 1996 (1) SA 984 (CC) at [147] and [148]. See also generally S v Mthembu 2008 (2)
SACR 407 (SCA) at [22].
[158] This residuary clause must of course now be read subject to s 35(5) of the Constitution.
[159] Kuruma, Son of Kaniu v R 1955 AC 197 203. See also further R v Sang 1979 2 All ER 1222 and Flemming
DJP’s analysis of Sang in S v Desai 1997 (1) SACR 38 (W).
[160] Kuruma, Son of Kaniu v R supra 204, which was quoted with approval by Rumpff CJ in an obiter dictum in S
v Mushimba en Andere 1977 (2) SA 829 (A) 840. There are also cases which seem to recognise a discretion to
exclude an accused’s otherwise admissible statement where the prejudicial effect outweighs its probative value. See
S v Mbatha 1985 (2) SA 26 (D) and S v Ramgobin and Others 1986 (4) SA 117 (N).
[161] 1970 (2) SA 594 (C) as read with s 79(7) of the Constitution. For a discussion of Forbes, see Van Niekerk,
Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 14-6. See further S v Boesman and Others 1990 (2)
SACR 389 (E).
[162] 1987 (4) SA 950 (W).
[163] Act 44 of 1958. This case should now be compared with S v Naidoo and Another 1998 (1) SACR 479 (N),
which is discussed in § 12 10 1 below. See also S v Pillay and Others 2004 (2) SACR 419 (SCA).
[164] Paizes 1988 SALJ 168-70 has pointed out that this formulation should be qualified in respect of “autoptic”
evidence and the exclusion of evidence where the prejudicial effect would outweigh probative value (ie, where the
evidence is in effect irrelevant).
[165] 1994 (2) SACR 496 (C).
[166] In Hammer supra the accused was 18 years old and, whilst in custody, wrote a letter to his mother. The
paper was provided by the police and a policeman undertook to deliver the letter to the accused’s mother. Instead
the policeman read the letter and then handed it over to the office of the attorney-general. The issue at the trial was
whether the prosecutor could cross-examine the accused on the contents of the letter. Farlam J, in applying the
principles above, ruled against such a course. He concluded that the conduct of the policeman was morally
reprehensible and amounted to an injuria.
[167] 1999 (1) SACR 338 (W) 349b-c. See also S v M 2002 (2) SACR 411 (SCA).
[168] Supra 350d.
[169] Supra 350g.
[170] At 351b. The court considered R as part of a police operation (at 346h-i) but concluded that R’s involvement
was not part of a deliberate police stratagem aimed at outflanking the provisions of the Interception and Monitoring
Prohibition Act 127 of 1992. At 347b-c it was said: “The present case does not however seem to me to involve a
stratagem, but a reasonable decision on the part of the investigating officer to utilize a civilian [R], who had a
legitimate interest of his own, to record a two-party conversation. The statute did therefore not prohibit the
monitoring.”
[171] S v Kidson supra 348c-e. The relevant statute is now the Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002. See further S v Cwele and Another 2011 (1) SACR
409 (KZP).
[172] S v Kidson supra 348d-e.
[173] S v Kidson supra 348i-j.
[174] 1994 (2) SACR 496 (C) — as discussed above.
[175] 1998 (1) SACR 479 (N) — as discussed in § 12 10 1 below.
[176] According to Du Plessis & Corder Understanding South Africa’s Transitional Bill of Rights (1994) 177-8 it was
proposed that the following provision be added to 25(3) of the interim Constitution: “Every accused person shall
have the right to the exclusion during his or her trial of evidence which was obtained in violation of any right
entrenched in this Chapter: Provided that the court must be convinced that the admission of such evidence will bring
the administration of justice in disrepute.”
[177] Du Plessis & Corder Understanding South Africa’s Transitional Bill of Rights 178.
[178] 1927 CPD 181.
[179] At 182.
[180] See generally Van der Merwe 1992 Stell LR 173 184-5.
[181] Compare, eg, R v Mabuya supra with S v Motloutsi 1996 (1) SACR 78 (C) and S v Mayekiso en Andere 1996
(2) SACR 298 (C).
[182] Section 7(4) of the Interim Constitution provided, ia, that where it was alleged that any right entrenched in
ch 3 of the interim Constitution had been infringed, a court could grant appropriate relief. In S v Melani en Andere
1995 (2) SACR 141 (E) the court, in ascertaining what constituted appropriated relief, rejected both the rigid
exclusionary and rigid inclusionary approaches. Froneman J found that a strict exclusionary approach failed to take
into account the interests of the community as a whole. He held that a rigid inclusionary approach was inappropriate
in a legal system which recognised the supremacy of the Constitution and that it denied the court the opportunity of
granting effective “appropriate relief”. In favouring and applying a discretionary approach, which allowed the court to
admit evidence if its exclusion would bring the administration of justice into discredit and dishonour, the court noted
that the seeds for such an approach could be detected in the case law prior to the enactment of the interim
Constitution. In this respect Froneman J referred (at 153e) to S v Hammer and Others 1994 (2) SACR 496 (C). In
addition the court held that this discretionary approach provided the best mechanism for balancing the legitimate
interests of the accused and those of the community at large. In a later judgment bearing the same name (S v
Melani and Others 1996 (1) SACR 335 (E)) Froneman J held that s 25 of the Interim Constitution provided a further
reason for the exclusion of unconstitutionally obtained evidence, “namely the need to ensure the fairness and
integrity of the criminal process at least from arrest up to and including the trial” (at 84i-j).
[183] See generally S v Motloutsi supra, which was followed in S v Mayekiso supra.
[184] S v Mathebula and Another 1997 (1) SACR 10 (W). This approach was rejected in S v Shongwe en Andere
1998 (2) SACR 321 (T) and Bangindawo and Others v Head of the Nyanda Regional Authority and Another;
Hlantlalala v Head of the Western Tembuland Regional Authority and Others 1998 (2) SACR 16 (Tk).
[185] Compare, however, the remarks made by Magid J in S v Gumede 1998 5 BCLR 530 (D) 538B-C.
[186] Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2 of 1998) 26-20.
See also the remarks made by Scott JA in S v Pillay and Others 2004 (2) SACR 419 (SCA) at [6]. In S v Agnew and
Another 1996 (2) SACR 535 (C) 541e-f Foxcroft J observed as follows: “[I]t would be farcical to insist on a high
standard of fairness in the courts while at the same time tolerating a low standard of fairness in the judicial process
prior to an accused reaching the court. What courts are ultimately concerned with is justice and the right of an
accused person to a fair trial. To allow a statement to be made to a magistrate in the circumstances of this case
without waiting for the attorney to advise his client and to be present during the making of a statement to the
magistrate, if that was what was desired, would undermine the principles of a fair trial.” See further S v Mphala and
Another 1998 (1) SACR 388 (W) as discussed in § 12 9 5 below.
[187] See § 12 9 7 below.
[188] See Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC)
and Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC); 1996 (2) SACR 113 (CC).
In para [13] of the latter case Kriegler J held: ‘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 . . . fairness is an issue which has to be decided on 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.” This passage has often been cited or referred
to for purposes of determining the admissibility of unconstitutionally obtained evidence under the interim
Constitution as well as s 35(5) of the Constitution. See S v Shongwe supra 342c-f; S v Kidson 1999 (1) SACR 338
(W); S v Gumede supra 541G-J. See also § 12 9 3 below.
[189] 1996 (1) SACR 335 (E) 352f. In this regard the court clearly relied on R v Collins 1987 28 CRR 122 (SCC) at
137, which was cited in § 12 1 above.
[190] In the second Melani case supra 348i-349j Froneman J stated: “The purpose of the right to counsel and its
corollary to be informed of that right (embodied in s 25(1)(c)) is thus to protect the right to remain silent, the right
not to incriminate oneself and the right to be presumed innocent until proven guilty. Sections 25(2) and 25(3) of the
Constitution make it abundantly clear that this protection exists from the inception of the criminal process, that is on
arrest, until its culmination up to and during the trial itself. This protection has nothing to do with a need to ensure
the reliability of evidence adduced at the trial. It has everything to do with the need to ensure that an accused is
treated fairly in the entire criminal process: in the ‘gatehouses’ of the criminal justice system (that is the
interrogation process), as well as in its ‘mansions’ (the trial court).” See also generally S v Manuel en Andere 1997
(2) SACR 505 (C) and the pre-constitutional decision S v Mpetha and Others (2) 1983 (1) SA 576 (C) 593G-H.
[191] S v Gasa and Others 1998 (1) SACR 446 (D) 447b-c.
[192] The second Melani case supra 349e-f; S v Gasa and Others supra; S v Marx and Another 1996 (2) SACR 140
(W).
[193] See generally S v Sebejan and Others 1997 (1) SACR 626 (W) as read with S v Langa and Others 1998 (1)
SACR 21 (T) and S v Ngwenya and Others 1998 (2) SACR 503 (W).
[194] These rights were embodied in s 25(1)(c) and 25(2)(a) of the Interim Constitution — in essence the right to
legal representation (and to be so informed) and the right to silence (and to be so informed).
[195] S v Marx and Another supra. The accused had upon his arrest been informed of all his relevant constitutional
rights. Some ten hours later he made a formal statement to the police during a specific police procedure, ie, the
taking down of a “warning statement” (“waarskuwingsverklaring”), without having been informed of his right to legal
assistance in regard to this procedure. Cameron J excluded the statement. There was no indication that the accused
knew that he was for purposes of making the statement, entitled to legal assistance. See also the second Melani case
supra 350f-g and S v Mathebula and Another 1997 (1) SACR 10 (W). However, compare S v Shaba en ’n Ander 1998
(1) SACR 16 (T) and S v Ndhlovu and Others 2001 (1) SACR 85 (W). The latter case was decided under s 35(5) of
the Constitution.
[196] See generally S v Malefo en Andere 1998 (1) SACR 127 (W) and S v Nombewu 1996 (2) SACR 396 (E),
where, it seems, good factual grounds existed for refusing exclusion.
[197] See ch 17 below, especially § 17 4 1 below.
[198] See ch 16 below, especially § 16 7 1 below.
[199] See generally S v Nombewu supra 403b-404c; S v Manuel en Andere 1997 (2) SACR 505 (C) 516b.
[200] The Judges’ Rules are cited in Appendix B to this work.
[201] See generally S v Nombewu supra 403b-e. However, compare, S v Van der Merwe 1998 (1) SACR 194 (O),
where Gihwala AJ held that no obligation rested upon the investigating officer, in addition to cautioning the accused
in terms of the Judges’ Rules, to advise him of his rights in terms of the interim Constitution. It should be pointed out
that in this case the investigating officer had been bona fide unaware that the accused was a suspect when he
questioned him. The court admitted the exculpatory statement (which contained admissions) on the basis that such
admission would not have deprived the accused of his right to a fair trial. The court relied on various factors in
reaching its decision (at 202c-f).
[202] 1998 (1) SACR 446 (D).
[203] 1998 (1) SACR 127 (W).
[204] 1996 (1) SACR 78 (C).
[205] 1965 IR 142.
[206] S v Motloutsi supra 83h. Farlam J also relied on S v Forbes and Another 1970 (2) SA 594 (C) as well as his
own decision in S v Hammer and Others 1994 (2) SACR 496 (C).
[207] In this case it was held (at 161) that a trial judge “has a discretion to exclude evidence of facts ascertained
by illegal means where it appears to him that public policy, based on a balancing of public interest, requires such
exclusion”.
[208] S v Motloutsi supra 88g-h.
[209] S v Motloutsi supra 88g-h.
[210] 1996 (2) SACR 298 (C).
[211] S v Mayekiso en Andere supra 307a-b.
[212] S v Mayekiso en Andere supra 307d-e.
[213] The second Melani case supra 352g.
[214] In the second Melani case supra Froneman J, before excluding the impugned evidence, observed as follows
at 352d-e: “At the time of delivery of this judgment it is, I think, fair to say that there is a widespread public
perception that crime is on the increase, in this province and in the country as a whole and that the police force is
having difficulty, to put it mildly, to contain the increase. At the best of times the police have an unenviable task.
Their opponents, criminals, are not gentlemen. They do not fight fair, but the police must. I venture to suggest that
a public opinion poll would probably show that a majority of our population would at this stage in the history of our
country be quite content if the courts allow evidence at a criminal trial, even if it was unconstitutionally obtained.”
[215] S v Mayekiso en Andere 1996 (2) SACR 298 (C) 307a-c.
[216] 1996 (2) SACR 396 (E).
[217] At 422h-i.
[218] At 422i-j.
[219] At 423c-e.
[220] 1996 (1) SACR 78 (C). See also § 12 7 2 2 above.
[221] At 86i.
[222] Ibid.
[223] The second Melani case supra; S v Shongwe en Andere 1998 (2) SACR 321 (T).
[224] 1998 (1) SACR 127 (W).
[225] 1987 28 CRR 122 (SCC).
[226] S v Malefo en Andere supra 155g-h.
[227] At 155d-f. The Canadian case Collins must now be read subject to R v Grant [2009] 2 SCR 353. See §§ 12 6
to 12 6 4 above.
[228] Steytler Constitutional Criminal Procedure 34.
[229] 1998 (1) SACR 479 (N) 527g.
[230] The main differences are the following: s 35(5) makes specific reference to a fair trial, whereas s 24(2) does
not (and had to be read into s 24(2) by the Supreme Court of Canada — see § 12 6 1 above); s 35(5) uses the
criterion “detrimental to the administration of justice”, whereas s 24(2) created the criterion “bringing the
administration of justice into disrepute” which, it is submitted, is a broader test than “detrimental to the
administration of justice” — see § 12 10 below; the words “if it is established that” in s 24(2) do not appear in s 35
(5) — see also § 12 11 2 below; the words “having regard to all the circumstances” appear in s 24(2) but not in s 35
(5) — a difference which is of no consequence as a court which interprets and applies s 35(5) must of necessity take
into account all the circumstances. In S v Pillay and Others 2004 (2) SACR 419 (SCA) Mpati DP and Motata J said (at
[93]) that although s 35(5) “does not direct a court, as s 24(2) of the Charter does, to consider ‘all the
circumstances’ in determining whether the admission of evidence will bring the administration of justice into
disrepute, it appears to us to be logical that all relevant circumstances should be considered.” In R v Grant [2009] 2
SCR 353 the Supreme Court of Canada relied heavily on the “all circumstances requirement” in reformulating the
interpretation of s 24(2). See § 12 6 above.
[231] 1965 IR 142.
[232] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 330-1. See also generally § 3 9 above.
[233] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355.
[234] Paciocco “The Judicial Repeal of s 24(2) and the Development of the Canadian Exclusionary Rule” 1990 32
Crim LQ 326 342 (as cited by Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 354). R v
Grant [2009] 2 SCR 353 has now established a less aggressive exclusionary rule. See §§ 12 6 to 12 6 4.
[235] See the dissenting judgment of McLaghlin J in R v Stillman 1997 42 CRR (2d) 189 (SCC) — especially at
252-3 and 257.
[236] Steytler Constitutional Criminal Procedure 36; S v Soci 1998 (2) SACR 275 (E) 394f: “The terms of s 35(5)
are peremptory: the tainted evidence ‘must’ be excluded if one of the two” consequences identified would result if
the evidence is admitted.
[237] The importance of distinguishing between a rule and a discretion for purposes of s 35(5) is explained as
follows by Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 337-8: “Die vraag ontstaan . . .
waarom die aan- of afwesigheid van ’n diskresie so belangrik is . . . Die antwoord is dat ’n diskresie ‘exists where
there is a choice to do one thing or another, not merely what is involved is the application of a flexible standard’ [R v
Therens 1985 13 CRR 193 (SCC) 224]. ’n Diskresie, in teenstelling met ’n reël, verleen baie meer outonomie aan ’n
verhoorhof ten opsigte van sy beslissing. In R v Cook [1959] 2 QB 340 (CA) 348] is verklaar dat dit geykte reg is dat
’n hof van appèl nie met ’n laer hof se uitoefening van sy diskresie sal inmeng nie tensy die regspreker óf in beginsel
fouteer het óf die getuienis onvoldoende was om die beslissing te bereik wat hy bereik het.”
[238] Steytler Constitutional Criminal Procedure 36. See also S v Lottering 1999 12 BCLR 1478 (N) 1483B which is
discussed in § 12 9 4 below and S v Pillay and Others 2004 (2) SACR 419 (SCA) at [92].
[239] S v Naidoo and Another supra 527.
[240] 2008 (1) SACR 613 (SCA) at [116].
[241] Constitutional Criminal Procedure 36.
[242] De Waal, Currie & Erasmus The Bill of Rights Handbook 4 ed (2001) 658.
[243] De Waal, Currie & Erasmus The Bill of Rights Handbook 658
[244] Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2 of 1998) 26-20.
[245] Ibid.
[246] 1999 (1) SACR 338 (W).
[247] R v Bartle 1994 23 CRR (2d) 193 (SCC). The Supreme Court of Canada has also expressed the view that as
the link between a breach of a Charter right and the impugned evidence becomes more tenuous, the likelihood of
exclusion diminishes. See R v Debot 1989 45 CRR 49 (SCC). For a detailed and useful discussion of the so-called
“connection” requirement in Canadian law, see Ally Constitutional Exclusion under Section 35(5) of the Constitution
of the Republic of South Africa 1996 (unpubl LLD thesis, Univ of Pretoria, 2009) at 157-162. See also Ally 2011 Stell
LR 376.
[248] 1988 37 CRR 335 (SCC).
[249] At 354.
[250] 1995 31 CRR (2d) 330.
[251] See also generally Michigan v Tucker 417 US 433 (1974) as discussed in the last paragraph of § 12 5 2 1
above.
[252] 2008 (2) SACR 407 (SCA).
[253] At [34]. Emphasis added.
[254] 2001 (1) SACR 572 (C).
[255] S v Mark and Another supra 578i.
[256] At 578i-579j. Emphasis added.
[257] At 577g. It is difficult to reconcile S v Mark and Another with the decision of the Supreme Court of Appeal in
S v Mthembu supra, unless one accepts that in the former case there was a clear break in the chain of events but not
in the latter. In Mark the witnesses wanted to testify. In Mthembu the witness was a s 204 witness.
[258] 1998 (2) SACR 275 (E). See also § 12 9 5 below for a further discussion of this case.
[259] At 293g.
[260] At 293h-294d.
[261] It is not correct to say that the violation must render the trial unfair. It is the admission of the impugned
evidence that must render the trial unfair. See further § 12 9 below.
[262] S v Soci supra 297a. In S v Tandwa and Others 2008 (1) SACR 613 (SCA) the Supreme Court of Appeal,
referring to S v Soci, said (at [119]) that 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”. See also Tandwa at [128],
where it was held that one of the reasons for excluding the real evidence (money and an AK 47) was the “high
degree of prejudice” caused by “the close causal connection” between the assaults on the accused and the
subsequent discovery of the real evidence.
[263] At 297d-f.
[264] 1993 19 CRR (2d) 156 (SCC).
[265] However, compare generally Oregon v Elstad 470 US 298 (1985) as discussed in § 12 5 2 1 above.
[266] Rakas v Illinois 439 US 128 (1978).
[267] Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 531, who explains that the “standing”
doctrine illustrates the general distaste that the Supreme Court of the USA now has for the exclusionary rule and
reflects the Court’s “consistent efforts in recent years to cabin its use, while still retaining it where it seems likely to
have a meaningful deterrent impact on the police.”
[268] R v Edwards 1994 22 CRR (2d) 29 (SCC); Sopinka, Lederman & Bryant The Law of Evidence in Canada 415.
[269] 2008 (2) SACR 407 (SCA) at 27. The issue, it seems, has only arisen on two other occasions. See the
argument of counsel for the prosecution in S v Naidoo and Another 1998 (1) SACR 479 (N) 525a-b and Schwikkard’s
discussion of S v Mark and Another 2001 (1) SACR 572 (C) in 2001 SACJ 264-5. The implication of S v Mark and
Another is that standing is not a requirement. The issue was not directly addressed. See further the discussion of
standing by Ally 2011 Stell LR 376 at 388.
[270] Van der Merwe 1992 Stell LR 1973 187.
[271] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 373. Emphasis in the original.
[272] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 374-6.
[273] See generally Langenhoven 2001 Obiter 102.
[274] S v Dube 2000 (1) SACR 53 (N). In this case a major motor car manufacturer which had suffered severe
losses due to internal theft, was approached by a loss control consultant who offered assistance in reducing the
incidence of theft. The loss control consultant was a private person and in no way connected to the state. A trap (see
§ 12 12 below) was set and photographs and tape recordings were obtained without the accused being aware of the
true position. At 73f-g McCall J observed as follows: “Accepting, for the purposes of this judgment, that the setting of
the trap in this case constituted a violation of some of the appellant’s rights in terms of the Bill of Rights, such as the
right to dignity in s 10 and the right to freedom and security of the person in s 12(1), the issue to be decided,
applying the requirements of s 35(5) of the Constitution, is whether the admission of the evidence of the entrapment
rendered the trial of the appellant unfair or was otherwise detrimental to the administration of justice.” The
impugned evidence was held admissible as admission could not have rendered the trial unfair and, according to
McCall J at 74i, admission “was advantageous to, rather than detrimental to, the administration of justice.” For some
critical comments on S v Dube, see Zeffertt 2000 ASSAL 795 804-6.
[275] The question whether the individual acted as an agent of the state, will have to be decided on the facts of
the case. See generally S v Kidson 1999 (1) SACR 338 (W) 351d-f, which was discussed in § 12 7 2 above.
[276] After the decision in Weeks v United States 232 US 383 (1914) — see § 12 5 1 above — the so-called “silver
platter” doctrine developed in the USA: in federal courts evidence obtained by federal authorities in breach of an
accused’s Fourth Amendment rights was inadmissible, but the same type of evidence obtained by state authorities
and handed to the federal authorities was admissible. It was only in 1960 that the Supreme Court of the USA
abolished the “silver platter” doctrine on the basis that such a doctrine violated the Fourth Amendment. See Elkins v
United States 364 US 206 (1960), which was followed by Mapp v Ohio 367 US 643 (1961) as discussed in § 12 5 1
above. Although the “silver platter” doctrine in the USA did not involve individuals, its history does show that it is the
use of the evidence that is crucial and not necessarily the identity of those who secured the evidence.
[277] Zuka v S [2009] 4 All SA 89 (E). This case is discussed by Paizes in Du Toit et al Commentary at 24-98N-6.
[278] See S v Hena and Another 2006 (2) SACR 33 (SE), especially at 40i-41b.
[279] See generally S v Kidson supra 348f-g.
[280] See further s 36 as quoted in Appendix A to this work.
[281] S v Naidoo and Another 1998 (1) SACR 479 (N) 500a.
[282] Schmidt & Rademeyer 381.
[283] See the comments made by McCall J in S v Naidoo and Another supra 499i-500a on the approach in S v
Mathebula and Another 1997 (1) SACR 10 (W).
[284] S v Naidoo and Another supra 500a. It should be noted though that even if the law in terms of which the
police had acted were to be declared unconstitutional, the evidence obtained by the police when the law was still
valid would not necessarily be excluded. Section 36 assists in determining the constitutional validity of the law
concerned, whereas s 35(5) governs the admissibility of unconstitutional evidence. If the police had acted in good
faith in what the law was before it was declared invalid, it might be possible to admit the evidence unless admission
thereof would render the trial unfair. See further § 12 10 1 below.
[285] 1998 (1) SACR 343 (C). See also generally S v Jeniker en ’n Ander 1994 (1) SACR 141 (A) as discussed in
§ 17 7 below.
[286] See the “Table of Non-derogable Rights”, which forms part of s 37 of the Constitution.
[287] Section 37(4)(a) of the Constitution.
[288] The terms “first leg” and “second leg” of the test were used in S v Mark and Another 2001 (1) SACR 572 (C).
These terms are terms of convenience and do not imply that a sequence is necessarily required when considering the
admissibility of evidence in terms of s 35(5). If the court is satisfied that admission of the evidence would be
detrimental to the administration of justice (referred to as the “second leg” in § 12 10 below), the court is, strictly
speaking, not even required to consider trial fairness as required in the “first leg.” There are, however, cases where
courts have considered it necessary to respond to the first leg even though the evidence also had to be excluded in
terms of the second leg. See, eg, S v Naidoo and Another 1998 (1) SACR 479 (N) as discussed in §§ 12 9 4
and 12 10 1 below and S v Mphala and Another 1998 (1) SACR 388 (W) as discussed in § 12 10 1 below.
[289] However, compare the following remarks made by Zeffertt 1996 ASSAL 803 804-5 (emphasis in the
original): “We are told that evidence has to be excluded if its admission ‘would render the trial unfair or otherwise be
detrimental to the administration of justice”. There are at least two different ways of reading this phrase. Probably, it
was intended to mean that evidence will be inadmissible if it either renders a trial unfair or if its reception would be
detrimental to justice. But the cumulative effect of the omission of the word ‘either’, together with the inclusion of
the word ‘otherwise’, may warrant a different interpretation: evidence will not be admissible merely because it
renders the trial unfair but only if, by doing so, it would, in addition, be detrimental to justice. Is it conceivable,
however, that the admission of evidence rendering a trial unfair would not also be detrimental to justice?”
[290] See § 12 8 above.
[291] Zeffertt 1996 ASSAL 803 804.
[292] S v Lottering 1999 12 BCLR 1478 (N) 1482I-J.
[293] In S v Madiba 1998 1 BCLR 38 (D) 44F-H. Hurt J observed as follows with reference to both the first and
second legs of the test in s 35(5): “[T]he court conducting the trial is vested with a discretion, which it must exercise
in order to achieve the object of the section. That object, to paraphrase the section, must be to hold a trial which is
fair and not detrimental to the administration of justice . . . Both the concept of fairness and the concept of
maintaining the standards of administration of justice have a reciprocal nature about them . . . A trial in which a
judge is bound by the absence of any discretion to close the door on evidence on the basis that it was procured in
circumstances constituting a relatively unimportant infringement of a fundamental right may plainly be as unfair as a
trial in which he admits evidence procured in deliberate disregard of an important right. [I]t seems to me that the
section was plainly aimed at imposing a duty on the court, in the course of a trial, to make a decision which is fair to
both sides and not aimed only at considerations of fairness or advantage to the accused . . . Accordingly, I take the
view that this Court does have a discretion which it must exercise within the precepts set by section 35(5).” It should
be noted that this case dealt with the admissibility of real evidence obtained in breach of privacy and not testimonial
communications which were unconstitutionally obtained. For a discussion of Madiba, see § 12 10 1 below.
[294] Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 345.
[295] This was said by Kriegler J in Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187
(CC); 1996 (2) SACR 113 (CC) at [13], supporting the case-by-case approach which Ackermann J identified in
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at [149] as
the correct one for purposes of considering the admissibility of derivative evidence originating from statutory
compulsion. See also Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC).
[296] Key v Attorney-General, Cape Provincial Division, and Another supra at [13].
[297] Key v Attorney-General, Cape Provincial Division, and Another supra at [13]. See also S v Tandwa and
Others 2008 (1) SACR 613 (SCA) at [117].
[298] S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A) 387A.
[299] S v Zuma and Others 1995 (1) SACR 568 (CC) as discussed in § 17 4 5 2 below; Minister of Justice v Ntuli
1997 (3) SA 772 (CC). In S v Ramuongiwa 1997 2 BCLR 268 (V) it was said that “notions of fairness and justice are
now the acid test”.
[300] 2000 (2) SACR 443 (CC) at [9] and [11]. Ackermann J quoted from S v Zuma and Others supra at [16] and
also relied on Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC) at [22]. See also Naudé 2009
Obiter 607 at 622.
[301] See generally the full bench decision in S v Ngcobo 1998 10 BCLR 1248 (N) — especially at 1254G-H. This
case was decided under the interim Constitution, but the court made it clear that there is a discretion “as is apparent
from the wording of section 35(5) of the final Constitution”.
[302] S v Seseane 2000 (2) SACR 225 (O).
[303] In S v Soci 1998 (2) SACR 275 (E) 293j-294b Erasmus J held as follows: “[P]rejudice to the accused . . .
becomes relevant under the requirement in [s 35(5)] that the evidence must be excluded ‘if the admission of that
evidence would render the trial unfair’ . . . The question of prejudice is . . . inseparable from the question of fairness,
in that a trial cannot be completely fair where the accused is in any way prejudiced; but, on the other hand, the trial
can hardly be unfair where there is no prejudice. I find therefore that the presence or absence of prejudice is
relevant to the question of a fair trial.” Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis
supports this approach on the basis that “[d]ie afwesigheid van benadeling . . . beteken dat daar geen versteuring is
of kan wees van wat die Konstitusionele Hof . . . as ‘notions of basic fairness’ beskryf het nie.” In S v Lottering 1999
12 BCLR 1478 (N) — which is discussed in § 12 9 4 below — Levinsohn J was more cautious and merely noted (at
1483F) that “[t]he question of prejudice to the appellant is a factor which can legitimately be weighed in the scales
as well.” See also Bilchitz 1998 ASSAL 735 761.
[304] S v Cloete and Another 1999 (2) SACR 137 (C) 146c. In this case Davis J, after having concluded that the
impugned evidence had to be excluded, found it necessary to observe as follows (at 150h-i): “This is a difficult case.
It is particularly problematic because the burden of the crime wave and the need for crime control weighs very
heavily. It is wrong to conclude that an attempt to preserve the Constitution is necessarily a nod in the direction of
criminals. The Constitution is not the cause of crime in this country. The court’s task is to uphold the Constitution in
such a manner that gives it its proper effect which I consider is to attempt to achieve some balance between the
models of crime control and due process.”
[305] S v Soci supra 397f-g.
[306] S v Lottering supra 1483H; S v Soci supra 295d-e and 297f-g.
[307] Supra at [13].
[308] S v M 2002 (2) SACR 411 (SCA) at [30]. In this case the SCA overruled an earlier finding of exclusion made
in S v M 2000 (2) SACR 474 (N).
[309] 2008 (1) SACR 613 (SCA) at [117]. Ally Constitutional Exclusion under Section 35(5) of the Constitution of
the Republic of South Africa, 1996 (unpubl LLD thesis, Univ of Pretoria, 2009) explains at 303-4 that the SCA in
Tandwa “preferred an approach that allows for the exercise of a discretion, in terms whereof the competing societal
concerns are to be weighed up to determine trial fairness.”
[310] See s 35(3)(h) of the Constitution.
[311] See s 35(3)(j) of the Constitution.
[312] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at
[159].
[313] See s 35(1)(c) of the Constitution.
[314] See s 35(2)(b) of the Constitution.
[315] See s 35(2)(c) of the Constitution.
[316] See § 12 5 2 above.
[317] 1998 (1) SACR 446 (D).
[318] See generally S v Soci supra where Erasmus J made frequent reference to cases decided under the interim
Constitution.
[319] S v Soci supra. Where an accused actually has knowledge of his rights due to his status as a police officer, a
statement made by him would be admissible even if his rights had not been explained to him. See Magoulaane v S
2007 3 All SA 627 (NC).
[320] 1999 12 BCLR 1478 (N).
[321] S v Lottering supra 1480H.
[322] Compare Michigan v Tucker 417 US 433 (1974) as discussed in § 12 5 2 2 above. In this case it was held
that evidence of a prosecution witness identified as a result of an accused’s non-coerced but inadmissible statement
obtained in breach of Miranda, is admissible. It is submitted that even if the accused’s pointing out in S v Lottering
supra had to be excluded, the evidence of L would, on the basis of the reasoning in Michigan v Tucker supra, still
have been admissible.
[323] S v Lottering supra 1482H.
[324] S v Lottering supra 1482J-1483A.
[325] Constitutional Criminal Procedure 36.
[326] S v Lottering supra 1483B. See also generally S v Nombewu 1996 (2) SACR 396 (E) 420e-i, which was
decided under the interim Constitution, but where Erasmus J also referred to a “value judgment”. See further S v
Pillay and Others 2004 (2) SACR 419 (SCA) at [93]; S v Nell 2009 (2) SACR 37 (C).
[327] S v Lottering supra 1483C-D. See also generally S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [117].
[328] S v Lottering supra 1483D-E.
[329] S v Lottering supra 1483E-H.
[330] 2000 (2) SACR 225 (O). In this case a police officer’s modus operandi not to explain constitutional rights in
the hope of obtaining information, required exclusion of the accused’s statement. Apart from the fact that admission
of the statement would have rendered the trial unfair, Seseane was also a clear-cut case where exclusion was
required to discipline the police for the long-term purposes of promoting constitutional values (see § 12 4 1 above).
[331] 1998 (1) SACR 388 (W). See the discussion of this case in § 12 9 5 below.
[332] S v Lottering 1999 12 BCLR 1478 (N) supra 1483E-F.
[333] 467 US 649 (1984).
[334] 384 US 436 (1966).
[335] New York v Quarles supra 657.
[336] It should be stressed that the reasonable conduct of the police cannot limit the right to a fair trial and that
s 36(1) of the Constitution cannot be relied on to justify this reasoning. See § 12 8 5 above. However, it is an
entirely different matter to look at the circumstances under which the constitutional breach took place and then to
assess whether admission of the evidence so obtained, would deprive an accused of his constitutional right to a fair
trial.
[337] 1998 (2) SACR 275 (E).
[338] S v Soci supra 289j.
[339] Compare generally S v Marx and Another 1996 (2) SACR 140 (W).
[340] In S v Sebejan and Others 1997 (1) SACR 626 (W) Satchwell J observed as follows at 635g-636b: “Policy
must surely require that investigating authorities are not encouraged or tempted to retain potential accused persons
in the category of ‘suspect’ while collecting and taking statements from the unwary, unsilent, unrepresented,
unwarned and unenlightened suspects and only thereafter, once the damage has been done as it were, to inform
them that they are now to be arrested.” It should be pointed out that this case was decided under the interim
Constitution and that the court ultimately found that the accused concerned, was not a suspect at the time when she
made her statement to the police. In S v Ndlovu 1997 (12) BCLR 1785 (N) 1792B it was held that the definition, in S
v Sebejan and Others supra, of a suspect as a person in respect of whom there is some apprehension that he may be
implicated in the offence, was too wide. The court required a reasonable suspicion. See further S v Langa and Others
1998 (1) SACR 21 (T) 27b where MacArthur J noted that Sebejan’s discussion of the rights of a suspect, was obiter
and could also on the facts be distinguished. See further § 10 2 3 1 above. See also S v Mthethwa 2004 (1) SACR
449 (E), where Sebejan was not followed; and S v Orrie and Another 2005 (1) SACR 63 (C), where Bozalek J
concluded — in line with Sebejan — that “no less than an accused, a suspect is entitled to fair pre-trial
procedures” (at 69H).
[341] A clumsy but accurate term used by Satchwell J in S v Sebejan and Others supra 637e.
[342] De Waal, Currie & Erasmus The Bill of Rights Handbook 599.
[343] S v Van der Merwe 1997 10 BCLR 1470 (O) 1473. However, see also Snyckers in Chaskalson et al
Constitutional Law of South Africa 27-44 for a critical analysis of this case.
[344] 1994 4 All SA 583 (N).
[345] 1994 4 All SA 583 (N) supra 589c-d.
[346] There is Canadian authority for the view that an objection to the admissibility of evidence on grounds that it
was unconstitutionally obtained, must as a general rule be raised timeously in the course of the trial. See generally R
v Dwernychuk 1992 12 CRR 2d 175 (Alta CA).
[347] Shabalala v S supra 589g.
[348] 1998 (1) SACR 479 (N) 525i.
[349] S v Naidoo and Another supra 527c-f.
[350] See Steytler Constitutional Criminal Procedure 37 n 319.
[351] 2004 (2) SACR 419 (SCA).
[352] At 447e-f.
[353] See the discussion of S v Soci 1998 (2) SACR 275 (E) in § 12 8 2 above.
[354] In R v Clarkson 1986 19 CRR 209 (SCC) it was held, ia, that waiver of the Charter-right to counsel by an
intoxicated accused, must pass some form of “awareness of the consequences” test.
[355] S v Gasa and Others 1998 (1) SACR 446 (D).
[356] S v Melani and Others 1996 (1) SACR 335 (E) 350e. Whether there was a valid waiver can depend on “die
intelligensie en ontwikkeling van die beskuldigde en die verloop van tyd tussen onderhoude” (Buys J in S v Brown en
’n Ander 1996 (2) SACR 49 (NC) 72h-i). See also generally S v Mathebula and Another 1997 (1) SACR 10 (W) 25c-f
as well as Mtyhida v S [2013] 2 All SA 335 (ECG).
[357] See generally S v Marx and Another 1996 (2) SACR 140 (W). See further S v Mgcina 2007 (1) SACR 82 (T)
at 96b-c.
[358] 1998 (1) SACR 16 (T). See also Magoulaane v S 2007 3 All SA 627 (NC) at [21].
[359] See S v Mathebula and Another supra 35h.
[360] S v Shaba supra 20f-g. In this case it was held that although it may be desirable to advise an accused of his
rights every time he takes a procedural step by which he may incriminate himself, the failure to do so does not mean
that evidence so obtained is inadmissible merely because the required advice was not given. See also S v Brown en
’n Ander supra 72h-j where Buys J stressed the importance of considering the facts of each case.
[361] De Waal, Currie & Erasmus The Bill of Rights Handbook 43.
[362] In the USA such waivers are permitted, provided the accused did so voluntarily knowingly and intelligently:
see § 12 5 2 above. See also generally S v Buda and Others 2004 (1) SACR 9 (T).
[363] De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158 attaches this interpretation to S v
Shaba en ’n Ander supra. The position is the same in the USA: see § 12 5 2 above.
[364] De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158. See also generally S v Tsotetsi and
Others (3) 2003 (2) SACR 648 (W) as read with S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W).
[365] See generally R v Smith 1989 41 CRR 1 (SCC). There is also no duty on a policeman arresting an accused to
advise him to obtain legal representation before making a statement. See S v Vumase 2000 (2) SACR 579 (W) 581.
[366] 1998 (1) SACR 388 (W).
[367] S v Mphala and Another supra 397c-d.
[368] S v Mphala and Another supra 399d-e.
[369] Cloete J also held that admission of the impugned evidence would — apart from rendering the trial unfair —
also have been detrimental to the administration of justice: see further § 12 10 1 below.
[370] 475 US 412 (1986).
[371] 1941 AD 75 82-3.
[372] 384 US 757 (1966). See also § 10 3 2 above.
[373] Wigmore paras 2263-2265.
[374] See generally Van der Merwe in Du Toit et al Commentary on the Criminal Procedure Act 3-2 to 3-3.
[375] S v Binta 1993 (2) SACR 553 (C) 562d-e.
[376] S v Huma and Another (2) 1995 (2) SACR 411 (W) 417; S v Maphumulo 1996 (2) SACR 84 (N) 90c-d;
Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W) 1120B.
[377] R v Gericke 1941 CPD 211; Levack and Others v the Regional Magistrate, Wynberg and Another 1999 (2)
SACR 151 (C) 155i.
[378] S v Duna and Others 1984 (2) SA 591 (CkS) 595G-H and 596B.
[379] Minister of Safety and Security and Another v Gaqa 2002 (1) SACR 654 (C) 658f.
[380] See, eg, S v Mkhize 1999 (2) SACR 632 (W) 637g-h; S v R and Others 2000 (1) SACR 33 (W) 40g-41d. See
also generally S v M 2002 (2) SACR 411 (SCA), at [31].
[381] 1987 28 CRR 122 (SCC).
[382] 1988 38 CRR 290 (SCC).
[383] R v Collins supra 137.
[384] Supra at 637g-h.
[385] Supra at 40g-41d.
[386] See generally § 19 8 below.
[387] 2000 ASSAL 795 804.
[388] 1997 42 CRR (2d) 189 (SCC).
[389] [2009] 2 SCR 353. On the facts as ultimately found by Willis J in S v R supra, the reference to R v Stillman
supra would, it is submitted, not have made any difference. The consent of the accused and/or their de facto
guardians was obtained.
[390] R v Stillman supra 223.
[391] R v Stillman supra 221-2.
[392] 384 US 757 (1966).
[393] See § 12 6 1 above.
[394] The Law of Evidence in Canada 429.
[395] R v Stillman supra 224 and 234.
[396] R v Stillman supra 224.
[397] R v Stillman supra 234.
[398] R v Stillman supra 224-5.
[399] However, it must also be conceded that the Constitutional Court’s description of the constitutional right to a
fair trial (see § 12 9 2 above) is so wide that a court might in extreme circumstances exclude unconstitutionally
obtained real evidence like bodily samples, under the first leg of the test. But this should then be done without
expanding the ambit of the privilege against self-incrimination to include bodily samples, ie, it is not necessary to
equate unconstitutionally obtained bodily samples with conscriptive testimonial communications emanating from the
accused.
[400] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC).
[401] Ferreira v Levin NO; Vryenhoek v Powell NO supra at [185].
[402] Ferreira v Levin NO; Vryenhoek v Powell NO supra at [153].
[403] Ferreira v Levin NO; Vryenhoek v Powell NO supra at [268] n 43.
[404] 1997 42 CRR (2d) 189 (SCC). Stillman was overruled in R v Grant [2009] 2 SCR 353. See §§ 12 6 to 12 6 4
above.
[405] At 230-1.
[406] 1995 28 CRR 2d 244 (SCC).
[407] At 273. But in S v Pillay and Others 2004 (2) SACR 419 (SCA) at [9] Scott JA had good reason to warn as
follows: ‘To hold that the derivative evidence, ie the discovery of the money in the roof, would render the trial unfair
in such circumstances would be to extend the application of the reasoning in the Burlingham case too far.” He went
on to say that such an approach, if adopted as an invariable rule, would be in conflict with Constitutional Court cases
such as Ferreira v Levin NO; Vryenhoek v Powell NO supra, where it was made clear that hard-and-fast rules cannot
be laid down as regards the effect of derivative evidence on the fairness of the trial.
[408] Supra at [150].
[409] 2008 (1) SACR 613 (SCA) at [120]. Emphasis added. The Supreme Court of Appeal — having noted the
Canadian “Stillman modification” of the Collins test (see § 12 9 6) — also said (at [125]): “Furthermore, focusing as
the High Court did, on the classification of the evidence (. . . testimonial or real) is misleading, since the question
should be whether the accused was compelled to provide the evidence.” This observation must now be reassessed on
account of the fact that Stillman was overruled by R v Grant [2009] 2 SCR 353. See §§ 12 6 to 12 6 4 above and De
Vos 2011 2 TSAR 268 at 276-7.
[410] Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 532. See also § 12 5 2 1 above.
[411] R v Stillman supra 226. In R v Stillman 128 the decision in R v Black 1989 47 CRR 171 (SCC) was identified
as a good example of a case where inevitably discoverable evidence was admitted. In Black the accused — after
questioning by the police in breach of her Charter rights — accompanied the police to her apartment. She produced a
knife from the kitchen and identified it as the murder weapon. Her statements were excluded as having been
obtained in breach of her right against self-incrimination — admission of the statements would have rendered the
trial unfair. The knife was held to be derivative evidence procured as a direct result of the unconstitutionally obtained
conscripted statements made by the accused. Applying the discoverability principle, the court held that there was no
doubt that the police would have searched the accused’s apartment (where the murder took place) and would —
even without the accused’s co-operation or assistance — have discovered the knife. The discovery of the knife was
inevitable and its admission would not have rendered the trial unfair.
[412] On the interaction between s 218 of the CPA and s 35(5) of the Constitution, see S v Pillay and Others 2004
(2) SACR 419 (SCA) at 442-3 and S v Danster (unreported EC decision, case no CA 392/2005, 6 Dec 2007) at [80].
[413] S v Mphala and Another 1998 (1) SACR 654 (W) 660e; S v Thapedi 2002 (1) SACR 598 (T) 602b-d, where
Bertelsmann J relied on the findings of Borchers J in S v Monyane and Others 2001 (1) SACR 115 (T) 130c and 130i;
S v Mokoena en Ander 1998 (2) SACR 642 (W) 647i-j.
[414] See s 37(1)(b) of the CPA.
[415] S v Monyane and Others supra 130i.
[416] 1996 (2) SACR 187 (C).
[417] At 199e. The court found that the accused were not granted a reasonable opportunity or sufficient time to
obtain legal representation.
[418] In S v Ngwenya and Others 1998 (2) SACR 503 (W) it was held — without reference to S v Mhlakaza en
Andere supra — that s 25(3)(e) of the Interim Constitution did not require that an accused be advised of a right to
legal representation at the identification parade. The court also refused to follow the obiter dictum in S v Mathebula
and Another 1997 (1) SACR 10 (W) 19i-j.
[419] 1998 (1) SACR 654 (W).
[420] At 659e-f.
[421] At 660d-e.
[422] At 660g.
[423] 2002 (1) SACR 598 (T).
[424] The “Wade-Gilbert” rule stems from two judgments delivered by the Supreme Court of the USA on the same
day: United States v Wade 388 US 218 (1967) and United States v Gilbert 388 US 263 (1967). The essence of the
rule is that evidence of identification of an accused at a post-indictment parade held in breach of the Sixth
Amendment right to counsel, must be excluded.
[425] At 602f-603c. However, in an obiter dictum Bertelsmann J did note that there could be some merit in the
“Wade-Gilbert” rule (at 602G-H): “Met verwysing na die beslissing in US v Wade 388 US 218 (1967), waarop steun
geplaas is vir die betoog dat regsverteenwoordiging tydens die parade noodsaaklik is, moet in die eerste instansie
daarop gewys word dat hierdie beslissing betrekking het op ’n uitkenningsparade wat gehou is nadat die beskuldigde
reeds formeel aangekla is. Dit is nie volgens die afskrif van die uitspraak tot ons beskikking duidelik of hy op daardie
stadium reeds gepleit het al dan nie. Omstandighede verskil as die parade dan gehou word van dié wat tydens die
ondersoekfase van die saak heers voordat ’n beskuldigde formeel aangekla is: daarna is die geskilpunte tussen Staat
en verdediging deur die akte van beskuldiging en die pleit bepaal. ’n Uitkenningsparade wat gehou word na die
formele aanklag gestel is (en daarop gepleit is) kan moontlik tot voordeel van die Staat strek sonder dat die
beskuldigde die geleentheid gegun is om die effek van die aldus verkreë getuienis by die oorweging van sy pleit of
pleitverduideliking in aanmerking te neem. Regsverteenwoordiging mag tydens ’n parade wat onder hierdie
omstandighede gehou word, wel noodsaaklik wees.”
[426] At 603d-e. See also S v Monyane and Others 2001 (1) SACR 115 (T) 134i-135b. In R v Ross 1987 37 CRR
369 (SCC) it was held that an arrestee’s right to legal representation, as contained in s 10(b) of the Charter,
included the right to legal representation at the parade, as well as the right to legal advice prior to participation in
such a parade. See further Van der Merwe in Du Toit et al Commentary 3-16.
[427] At 604d.
[428] At 604f.
[429] At 604c.
[430] At 604d.
[431] At 604b-c.
[432] See S v Bailey 2007 (2) SACR 1 (C) at [27] and [28]. See also generally S v Tandwa and Others 2008 (1)
SACR 613 (SCA) at [129].
[433] S v Hlalikaya and Others 1997 (1) SACR 613 (SE) 617d-g; S v Zwayi 1997 (2) SACR 772 (Ck); and see
generally S v Monyane and Others supra 134. For some critical comments on S v Hlalikaya and Others supra, see
Zeffertt 1997 ASSAL 718 729-30.
[434] S v Mphala and Another 1998 (1) SACR 654 (W) 659i-j.
[435] S v Naidoo and Another 1998 (1) SACR 479 (N) 522g.
[436] On the meaning of “disrepute” in Canadian Law, see § 12 6 3 above. The reasonable person test as applied
by the Canadian court in R v Collins 1987 28 CRR 122 (SCC) in determining disrepute provides a useful mechanism
for incorporating public opinion whilst avoiding compromising judicial integrity. In terms of this test the court is
required to take into account the views of the reasonable person, who is usually the average person in the
community, “but only when the community’s current mood is reasonable” (at 136). However, the court in exercising
its discretion must consider “long-term community values” and “not render a decision that would be unacceptable to
the community when that community is not being wrought with passion or otherwise under passing stress due to
current events”.
[437] Supra 657g-h. Emphasis added. This passage was cited with approval by the Supreme Court of Appeal in S v
Tandwa and Others 2008 (1) SACR 613 (SCA) at [118] and S v Pillay and Others 2004 (2) SACR 419 (SCA) at
447i-j. See also S v Dos Santos and Another 2010 (2) SACR 382 (SCA) at [21].
[438] S v Cloete and Another 1999 (2) SACR 137 (C) 150h. See S v Pillay and Others supra 450i-451j.
[439] S v Nombewu 1996 (2) SACR 396 (E) 422h-i.
[440] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at
[152]. See further § 27 5 8 below.
[441] 1998 10 BCLR 1248 (N). See also S v Shongwe en Andere 1998 (2) SACR 321 (T).
[442] S v Ngcobo supra 1254E-J (emphasis added): ‘It is essential that society should have confidence in the
judicial system. Such confidence is eroded where Courts on the first intimation that one of an accused’s
constitutional rights has been infringed excludes evidence which is otherwise admissible. Such evidence is very often
conclusive of the guilt of the accused. It is either admissions or a confession made voluntarily and without undue
influence wherein the accused implicates himself in the commission of the offence or it is the discovery either by way
of a search or a pointing-out of objects such as the murder weapon or property of the victim which conclusively link
the accused to the crime. 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. One need only postulate
the facts of the present matter to illustrate the point. A defenceless woman and three men are gunned down in cold
blood in the sanctity of their home in the middle of the day. The slain woman’s personal belongings taken during the
course of the robbery are dug up by the appellant in a mealie field behind his parents’ home the next night. Imagine
the reaction of the man or woman in the street if the appellant were acquitted because Captain Kweyama failed to
again warn the appellant of his right to silence and the consequences of his act of pointing-out the stolen property. It
has become noticeable in appeals and reviews from the lower courts which have come before us that at the first
intimation that an accused’s constitutional rights have been infringed the evidence tainted by such infringement is
without further ado excluded. It is necessary therefore to emphasise the discretion which rests in the presiding
officer to decide whether the evidence should be excluded. That discretion still remains as is apparent from the
wording of section 35(5) of the final Constitution.” See also S v Tandwa and Others supra at [121].
[443] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355, 357. See also generally S v Soci 1998 (2)
SACR 275 (E) 297f-g.
[444] 1995 (3) SA 391 (CC); 1995 (2) SACR 1 (CC).
[445] At [88]. In a dissenting judgment in S v Pillay and Others 2004 (2) SACR 419 (SCA) Scott JA said (at 448)
that in S v Makwanyane supra “Chaskalson P warned of the dangers of relying on public opinion. That was in the
context of the constitutionality of the death penalty. It seems to me, however, that the very nature of the second leg
of the inquiry postulated in s 35(5) of the Constitution contemplates a reference to public opinion. It must, at the
least, therefore constitute an important element of the inquiry. In R v Collins (supra at 524 (DLR), 282 (SCR) and
135 (CRR)) the test adopted was that of ‘the reasonable man, dispassionate and fully apprised of the circumstances
of the case’. Although the inquiry in Canada is somewhat different, ie whether the admission of the infringing
evidence ‘would bring the administration of justice into disrepute’, the test adopted strikes me as more apt than a
simple reference to public opinion, subject as it frequently is to ‘the shifting winds of passion’. The only refinement I
would add is that the reference must be understood as not to an individual but to the reasonable and dispassionate
members of society.”
[446] Diamond “The State and the Accused: Balance of Advantage in Criminal Procedure” 1960 69 Yale LJ 1149
states (emphasis added): “The principal objective of criminal procedure, like that of procedure generally, is to assure
a just disposition of the dispute before the court. But because time, resources and the ability to determine what is
just are limited, a procedural system inevitably represents a series of compromises. Justice to society is sometimes
taken to require that a given case be used not only to deal with the situation immediately before the court but also
to serve a larger public interest. In criminal cases, the accused may get relief, not so much out of concern for him or
for the ‘truth’, but because he is strategically located, and motivated, to call the attention of the courts to excesses
in the administration of criminal justice. The underlying premise is that of a social utilitarianism. If the criminal goes
free in order to serve a larger and more important end, then social justice is done, even if individual justice is not.
For example, if the police beat an offender in order to extract a confession, the social interest is held to require that
the confession be excluded from evidence, even if amply corroborated. The same is true, in varying extents in the
several states, when evidence is illegally seized, or telephones ‘tapped’, or counsel denied . . .”
[447] See, eg, S v Lottering 1999 12 BCLR 1478 (N) 1483H where Levinsohn J said: “I hasten to say that each
case must be decided on its own facts and the decision in this one must not be construed as a licence to police
officers to ignore or overlook the constitutional protection afforded to accused persons.” For a discussion of this case,
see § 12 9 4 above. See also S v Mkhize 1999 (2) SACR 632 (W) 638b-c.
[448] Cleary (ed) McCormick on Evidence 3 ed (1984) 507. Emphasis added.
[449] See the decision by Farlam J in S v Motloutsi 1996 (1) SACR 78 (C) 87i where he cited the following passage
from The People v Shaw 1928 IR 1 at 33-34: “To hold otherwise would be to hold what to many people would be an
absurd position, namely, that the less a police officer knew about the Constitution and, indeed, of the law itself, the
more likely he would be to have the evidence which he obtained in breach of the law (and/or the Constitution)
admitted in court.” See, however, S v Mkhize supra 637f.
[450] 1998 (1) SACR 479 (N).
[451] Act 127 of 1992. See now the Regulation of Interception of Communications and Provision of
Communication-Related Information Act 70 of 2002. See further S v Cwele and Another 2011 (1) SACR 409 (KZP)
where intercepted communications were admitted into evidence. In this case the police made no deliberate attempt
to act outside the statutory requirements. To put the matter differently: they were bona fide and did not attempt to
flout the primary rules (see § 12 4 6 above). See also generally S v Roberts and Others 2013 (1) SACR 369 (ECP).
[452] S v Naidoo and Another supra 527f. For a critical comment on this finding, see § 12 9 4 above.
[453] At 530g. Emphasis added.
[454] 2006 (2) SACR 33 (SE) at 42a-b.
[455] 1998 (1) SACR 388 (W).
[456] At 399h-400b. Emphasis added.
[457] See, eg, R v Duguay 1989 1 SCR 93.
[458] 1998 1 BCLR 38 (D). See also S v Mkhize 1999 (2) SACR 632 (W).
[459] At 41J.
[460] At 441-45D.
[461] At 45E.
[462] 1998 (2) SACR 275 (E). See also § 12 9 4 above for a discussion of this case.
[463] At 296g-296b-g.
[464] 1996 (2) SACR 140 (W). See also §§ 12 7 2 1 and 12 9 5 above.
[465] This term is used by Kamisar “‘Comparative Reprehensibility’ and the Fourth Amendment Exclusionary Rule”
1987 86 Michigan LR 1 34 n 147.
[466] 1998 1 BCLR 38 (D).
[467] See, eg, S v Lottering 1999 12 BCLR 1478 (N) as discussed in § 12 9 4 above. See also New York v Quarles
467 US 649 (1984) as discussed in §§ 12 5 2 2 and 12 9 4 above.
[468] This would in terms of Irish law qualify as an “extraordinary excusing circumstance”. See generally The
People (Attorney General) v O’Brien 1965 IR 142 and S v Mark and Another 2001 (1) SACR 572 (C) 578e.
[469] S v Mark and Another supra 578a.
[470] See also R v Grant [2009] 2 SCR 353 at [74]. See also § 12 6 1 above.
[471] S v Mark and Another supra 578c-d. See also S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [117]
and [128] and S v Mthembu 2008 (2) SACR 407 (SCA).
[472] Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 362-3.
[473] See, eg, S v Seseane 2000 (2) SACR 225 (O) as well as the approach adopted by Mpati DP and Motata AJA
in S v Pillay and Others 2004 (2) SACR 419 (SCA) at [95].
[474] See generally S v Mark and Another supra 578d.
[475] S v Seseane supra.
[476] Supra 138. In S v Hena and Another 2006 (2) SACR 33 (SE) at 42f-g Plasket J, in excluding the impugned
evidence, attached much weight to the fact that the police had not made use of available lawful means.
[477] 1997 44 CRR 2d 1 (SCC) 37.
[478] S v Mkhize 1999 (2) SACR 632 (W) 638e. See also the remarks made by Scott JA in S v Pillay and Others
2004 (2) SACR 419 (SCA) at 448e.
[479] R v Kokesch 1990 50 CRR 285 (SCC). See also generally R v Grant [2009] 2 SCR 353 at [75].
[480] Supra 637g-h.
[481] 1987 28 CRR 122 (SCC) at 137.
[482] 1988 38 CRR 290 (SCC) at 298.
[483] See also generally S v M 2002 (2) SACR 411 (SCA) and S v Pillay and Others 2004 (2) SACR 419 (SCA) at
450f. In S v Nell 2009 (2) SACR 37 (C) at [24] Le Grange J was also adamant that the test for the admission of real
evidence is “less stringent than that for other evidence”.
[484] S v Mkhize supra 637h.
[485] Supra 637i.
[486] At 638b-e Willis J held (emphasis added): “It would, in my view, make a mockery of our law of criminal
procedure to hold that evidence stumbled upon on the search for evidence in another case would, for this reason, be
held to be inadmissible against the present appellant. Moreover, I cannot believe that admitting the evidence of the
pistol’s discovery in this case can be interpreted as giving the police carte blanche to raid the homes of the innocent
at whim or upon fancy, capriciously or arbitrarily . . . In my view, the admission of this evidence would not render
the trial of the appellant unfair or otherwise be detrimental to the administration of justice . . . Regardless of whether
a trial court has a true or narrow discretion to admit evidence in violation of the Bill of Rights in our Constitution and
regardless of which test is to be applied as to the circumstances under which a Court of appeal may interfere in the
decision of the court a quo to admit such evidence, I am satisfied that Nugent J correctly decided that, even if the
discovery of the pistol was made and the evidence in respect thereof obtained in circumstances which were not
covered by s 22(b) of the [CPA] the evidence should be admitted. It is real evidence. Furthermore, Superintendent
Lang acted in good faith, in that, if it be accepted that he failed to comply with the provisions of the Act relating to a
search, such failure was inadvertent and technical in nature. In my view, the administration of justice would be
brought into disrepute if this evidence were to be excluded.” A technical defect in a warrant provides no ground for
exclusion. See S v Dos Santos and Another 2010 (2) SACR 382 (SCA) and S v Van Deventer and Another 2012 (2)
SACR 263 (WCC). In both these cases there was no male fide conduct.
[487] 2008 (1) SACR 613 (SCA) at [125]. However, see also now R v Grant [2009] 2 SCR 353 which is discussed
in §§ 12 6 to 12 6 4 above.
[488] This seems to have been part of the reasoning of the full bench in S v Mkhize supra 637j-638a. See also
Goldberg v Director of Public Prosecutions, Western Cape 2014 (2) SACR 57 (WCC) where it was held that the real
evidence (the ivory) would have been found in any event.
[489] See § 12 5 2 4 above. See also generally the remarks made by Cachalia JA in S v Mthembu 2008 (2) SACR
407 (SCA) at [33]. See further the discussion of S v Pillay and Others 2004 (2) SACR 419 (SCA) by Naudé 2008
SACJ 168.
[490] 1997 42 CRR (2d) 189 (SCC) 228-229 and R v Black 1989 47 CRR 171 (SCC). See further n 414 above.
Sopinka, Lederman & Bryant The Law of Evidence in Canada 440 state that “Stillman extended the principle of
discoverability to all evidence classified as conscriptive. Apparently, the extension of the discoverability principle to
conscriptive, derivative evidence was designed to meet the criticism that automatically excluding all evidence was
perceived as over-compensating or being too generous to the rights of the accused.”
[491] 1997 44 CRR 2d 1 (SCC).
[492] See § 12 5 1 3 above. See generally S v Mthembu supra at [33].
[493] See § 12 6 1 above.
[494] On the role of assessors, see S v Naidoo and Another 1998 (1) SACR 479 (N) 486a-487c and compare S v
Mayekiso en Andere 1996 (2) SACR 298 (C) 203i-j. As far as admissions and confessions are concerned, see
respectively §§ 16 7 4 and 17 6 below.
[495] Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA). This case overruled S v
Viljoen 2003 4 BCLR 450 (T). See generally S v Ngcobo 1998 10 BCLR 1248 (N) 1255A; S v Mhlakaza en Andere
1996 (2) SACR 187 (C); S v Mayekiso en Andere 1996 (2) SACR 298 (C); S v Ntzweli 2001 (2) SACR 361 (C). In S v
Hlalikaya and Others 1997 (1) SACR 613 (SE) a trial within a trial was held to determine the admissibility of evidence
obtained at a photo identification parade.
[496] S v Ntzweli supra 364f.
[497] See generally S v Monyane and Others 2001 (1) SACR 115 (T). In this case the court also noted the conflict
between S v Vilakazi en ’n Ander 1996 (1) SACR 425 (T) and S v Mhlakaza en Andere supra.
[498] S v Kidson 1999 (1) SACR 338 (W) 340e-f. See also S v Hena and Another 2006 (2) SACR 33 (SE) at 39d-e.
In this case the parties had also agreed to dispense with a trial within a trial.
[499] S v Vilakazi en ’n Ander supra; S v Mokoena en Ander 1998 (2) SACR 642 (W); S v Mphala and Another
1998 (1) SACR 654 (W).
[500] S v Bailey 2007 (2) SACR 1 (C) at [39].
[501] For an extensive and critical discussion, see Schwikkard Presumption of Innocence (1999) 56-61.
[502] 1998 (1) SACR 479 (N).
[503] S v Sebejan and Others 1997 (1) SACR 626 (W) 628e; S v Mathebula and Another 1997 (1) SACR 10 (W)
16i-j. See also generally S v Hlalikaya and Others 1997 (1) SACR 613 (SE) 615c. In S v Vilakazi en ’n Ander 1996
(1) SACR 425 (T) 428c the matter was mentioned but not decided.
[504] S v Naidoo and Another supra 523a. At 523b McCall J further said that “it may well be that during the course
of a trial-within-a-trial the onus on the different issues will tend to shift back and forth between the accused and the
State”. Schwikkard Presumption of Innocence 61-2 n 100 points out that by making this statement McCall J fails to
distinguish between the evidential burden that can shift and the burden of proof which remains fixed. See also § 31 2
below. The position in Canadian law, which seems to have influenced McCall J, is set out by Sopinka, Lederman &
Bryant The Law of Evidence in Canada 420.
[505] 1998 5 BCLR 530 (D). See also 538I. Gumede was followed in S v Lottering 1999 12 BCLR 1478 (N).
[506] 1998 (2) SACR 275 (E) 288j-289a.
[507] 1996 (2) SACR 396 (E).
[508] S v Nombewu supra 420f-g.
[509] S v Nombewu supra 289d. This statement is correct in so far as it will always be open to the state to argue
that even if the evidence were obtained unconstitutionally, its admission will not have the consequences identified in
s 35(5).
[510] See the full bench decision (per Du Plessis J, Basson and Preller JJ concurring) in S v Mgcina 2007 (1) SACR
82 (T) at 95a-i and S v Brown en ’n Ander 1996 (2) SACR 49 (NC) at 73b. It is submitted that the accused is not an
applicant seeking a remedy. If he relies on s 35(5) he is — unless the contrary is indicated — also not seeking to
have a law declared constitutionally invalid. The principles established in, eg, Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at [44] are not applicable to an objection to the
admissibility of evidence. See S v Mgcina supra at 95b-d where it was held that the well established two-stage
approach that is applied where the constitutionality of a statute or common-law rule is attacked, does not apply to
the situation now under discussion.
[511] See generally Mirfield Silence, Confessions and Improperly Obtained Evidence (1997) 47. See also the use of
the words “value judgment” by Bozalek J in S v De Vries (unreported CPD decision, case no 67/05, 11 June 2008) at
[7]. He nevertheless accepted, without deciding, that the state has to prove that the trial would not be unfair or
otherwise detrimental to the administration of justice.
[512] S v Mgcina supra 95g-i and S v Brown en ’n Ander supra 73b. This does not mean that in every instance the
state is required to disprove any breach of every conceivable constitutional right. It is only where the defence raises
the matter that the state would have to prove the contrary beyond reasonable doubt. See S v Mgcina supra at
95j-96a. See generally S v Mayekiso en Andere 1996 (2) SACR 298 (C) 305d, which was decided under the interim
Constitution.
[513] S v Nombewu supra 420f-g; S v Soci supra 289d. However, compare R v Collins 1987 28 CRR 122 (SCC)
134 where it was held that “the applicant must make it more probable than not that the admission of the evidence
would bring the administration of justice into disrepute” as provided for in s 24(2) of the Charter. Stuart Charter
Justice in Canadian Criminal Law 2 ed (1996) 485 makes the following valid observations: “It is unfortunate that the
word ‘established’ in s 24(2) has led the Supreme Court to conclude that there is some burden of proof on the
accused. The language of burdens of proof is more appropriate to matters of establishing facts rather than to an
issue of whether evidence should be excluded. One never speaks, for example, of the burden of proving that
evidence was inadmissible hearsay. As a practical matter many of the issues under s 24(2) such as issues of the
seriousness of the offence and the seriousness of the violation are questions of value to be assessed by the court
rather than proved.”
[514] See generally S v Hammer and Others 1994 (2) SACR 496 (C) 499d-e. A ruling on admissibility in a trial
within a trial is also interlocutory and may be reviewed at the end of the trial in the light of later evidence. See S v
Tsotetsi and Others (3) 2003 (2) SACR 648 (W) as read with S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W). It
should also be noted that a trial is not automatically rendered unfair by the fact that the nature of the impugned
evidence becomes known to the court during s 35(5) proceedings. See S v Maputle and Another 2003 (2) SACR 15
(SCA) at [11].
[515] R v Ndimangele 1913 CPD 708 709.
[516] See § 11 4 2 above as well as Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984)
258.
[517] S v Malinga and Others 1963 (1) SA 692 (A) 693.
[518] Bronitt & Roche “Between Rhetoric and Reality: Sociolegal and Republican Perspectives on Entrapment”
2000 4 The International Journal of Evidence and Proof 77. See also generally Naudé 1998 SACJ 213 214-5.
[519] See generally S v Azov 1974 (1) SA 808 (T) 809; Bronstein 1997 SALJ 108 109-10.
[520] On entrapment in general, see Labuschagne 1976 De Jure 16; Colman 1954 SALJ 120; Engelbrecht 1989 De
Rebus 421; Louw 1995 SACJ 286; Zeffertt 1976 SALJ 130; Feltoe 1974 Rhodesian LJ 52; Bertelsmann 1970 THRHR
348; Crofton 1977 Natal Univ LR 271. For judicial criticism of entrapment, see generally R v Vlok and Vlok 1954 (1)
SA 203 (SWA); S v Petkar 1988 (3) SA 571 (A); S v Ohlenschlager 1992 (1) SACR 695 (T).
[521] Van der Mescht 1995 SACJ 271; Bester De Rebus 706 707; S v Odugo 2001 (1) SACR 560 (W) 568d.
[522] S v Dube 2000 (1) SACR 53 (N); S v Hassen and Another 1997 (1) SACR 247 (T); S v Desai 1997 (1) SACR
38 (W). For a comparative analysis of entrapment as a substantive defence, see Labuschagne 1993 SACJ 208. For
entrapment as a defence in the USA, see Sherman v United States 356 US 369 (1958) and Anon “Entrapment” 1960
73 Harvard LR 1333.
[523] S v Desai supra; R v Ahmed 1958 (3) SA 313 (T) 317.
[524] R v Small 1968 (3) SA 561 (RA); S v Sellem 1992 (2) SACR 19 (A).
[525] Mendes and Another v Kitching NO and Another 1995 (2) SACR 634 (E); S v Hassen and Another supra; S v
Hayes en ’n Ander 1998 (1) SACR 625 (O).
[526] Mendes and Another v Kitching NO and Another supra; S v Desai supra; S v Hassen and Another supra.
[527] S v Nortjé 1996 (2) SACR 308 (C); S v Hassen and Another supra; Mendes and Another v Kitching NO and
Another supra. S v Desai supra was an exception. See further Naudé 2001 SACJ 38.
[528] Act 85 of 1996, which was signed by the President on 6 Nov 1996.
[529] See Gov Gazette no 17646 of 29 Nov 1996. Section 252A does not have retrospective effect. See S v Dube
supra 71c.
[530] For an extensive and critical discussion of this section, see Bronstein 1997 SALJ 108 127-33.
[531] Section 252A does not apply to traps set by private individuals, but only to entrapment operations engaged
in by law enforcement officers or state officials or their agents as referred to in s 252A(1). See S v Dube supra
71d-e. See further S v Makhanya and Another 2002 (3) SA 201 (N). Where the criminal conduct all along emanates
from the accused, there can be no true trap even if the police were to come in finally to create the opportunity to
secure the necessary evidence. See S v Lachman 2010 (2) SACR 52 (SCA). For a distinction between “traps” and
“undercover operations”, see S v Kotzè 2010 (1) SACR 100 (SCA) at [22].
[532] See the Law Commission’s Working Paper 52, Project 84 Application of the Trapping System (1993) and the
final report on Project 84 Application of the Trapping System (1994). For critical comments on these
recommendations, see Louw 1995 SACJ 286 289-94.
[533] The gist of this section is that evidence obtained by way of entrapment shall be admissible if the conduct of
the trap did not go beyond providing an opportunity to commit an offence.
[534] This section sets out the various factors which the court must take into account in considering whether the
conduct concerned went beyond providing an opportunity to commit an offence. See S v Hammond 2008 (1) SACR
476 (SCA).
[535] Emphasis added. See also generally S v Thinta and Another 2006 (1) SACR 4 (E) at [26].
[536] On the application of this standard of proof, see S v Reeding and Another 2005 (2) SACR 631 (C) at 640a-b;
S v Kotzè supra at [19]; S v Naidoo 2010 (1) SACR 369 (KZP) at [5].
[537] Section 252A(7).
[538] See generally Naudé 1998 SACJ 213 218 and S v Odugo 2001 (1) SACR 560 (W) 568b. See also S v Spies
and Another 2000 (1) SACR 312 (SCA).
[539] Paizes in Du Toit et al Commentary 24-134. See also S v Reeding and Another supra at 639-640.
[540] [2001] 4 All SA 13 (E). See S v Odugo supra for a case where entrapment evidence was admitted.
[541] In R v Mack 1989 44 CCC 3d 513 (SCC) the police trap also went too far. The accused — a former drug user
— was over a period of six months repeatedly approached (at and one stage threatened) by a police agent to
agreeing to deal in cocaine. On “abuse of process”, see generally Naudé 2001 SACJ 38 49-51. There is a fine line
between a trap acting within or outside his mandate. Section 252A(5)(b) should be understood in this context. See S
v Domingo 2002 (1) SACR 641 (C) at 646.
[542] 1992 (1) SA 906 (O).
[543] See especially 915B-917G.
[544] 1972 (2) SA 559 (N).
[545] 1977 (2) SA 829 (A) 840D-F. See also § 10 3 3 above.
[546] Derby & Co Ltd v Weldon 1990 3 All ER 762 (ChD) & (CA).
[547] Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad Van Die Oranje-Vrystaat, en Andere supra 917H-I.
[548] 1994 (3) SA 56 (W). On appeal in this case, the SCA expressly refrained from deciding the issue. See Janit
and Another v Motor Industry Fund Administrators (Pty) Ltd and Another 1995 (4) SA 293 (A) 307B-C.
[549] 1996 (2) SA 693 (N) 704B-C.
[550] At 706J-707A: “[T]he applicants regarded cloak and dagger tactics as the order of the day. I do not think
that it would be appropriate for this Court to be seen to lightly associate itself with a tactic of this nature . . . I
consider that the Court would be so associating itself if it were, without demur, to apply the categorical
imperative . . . and say that simply because the matter in the transcript is plainly relevant it must be admissible. In
my view, the tapes and transcripts which are now before me should not be admitted . . .”
[551] At 706E-F.
[552] Tap Wine Trading CC and Another v Cape Classic Wines (Western Cape) CC and Another 1999 (4) SA 194
(C) is clearly wrong.
[553] See generally Erasmus 1996 Obiter 291 and the following articles by De Vos: 1991 TSAR 353; 1995 Stell LR
34 and 1997 TSAR 444.
[554] 1998 (2) SA 617 (C). See further Bilchitz 1998 ASSAL 735 753-57 for a discussion of this case.
[555] At 636D-E.
[556] At 638C-D.
[557] At 639E-640B.
[558] At 640C-E.
[559] Some of the facts were the following: the violation of privacy was in respect of an office and not a private
dwelling (at 642E); the applicants on reasonable grounds believed that they had to search for the documents as a
matter of urgency as the documents were about to be removed (at 642F); the applicants were — on the information
available to them at the relevant time — “reasonable in their apprehension that they would not achieve justice by
involving the ordinary procedures, including the Anton Piller procedure, available to them” (at 642F); legal advice
given by senior counsel was that the search of the office would be lawful (at 642G); the documents found during the
course of the search were all discoverable and would therefore have been legitimately obtained by the applicants at
some stage during the proceedings: “The advantage gained by the applicants as a result of the search of [the] office,
though of significant importance, was, therefore at best, a procedural one.” (at 642I).
[560] 1997 (9) BCLR 1225 (W).
[561] At 1237D-E. See also the example given by Heher J at 1237A-D. See further Waste Products Utilisation (Pty)
Ltd v Wilkes and Another 2003 (2) SA 515 (W).
[562] At 1241F-G.
[563] At 1241H-1242F.
[564] The factors that the court would have considered in admitting the evidence are set out at 1242H-1244B.
[565] 2002 (6) SA 60 (T).
[566] At 63A.
[567] At 62D and 63A.
[568] At 65C.
[569] At 65F.
[570] At 65G-H.
[571] At 63G and 65C.
[572] De Vos 2011 2 TSAR 268 at 281.
Page 285
Section E
Hearsay
13
Hearsay –P J Schwikkard
14
A Selection of Common-Law Exceptions to the Hearsay Rule: A Brief Perspective –P J
Schwikkard
15
Selected Statutory Exceptions to the Hearsay Rule –P J Schwikkard
Page 287
Chapter 13
Hearsay
P J Schwikkard
13 1
13 2
13
13
13
13
13
3
4
5
6
7
13 8
13 9
Introduction
The Rationale for the Exclusion of Hearsay Evidence
13 2 1 Procedural context
13 2 2 Cost effectiveness
13 2 3 Best evidence
13 2 4 Complexity
13 2 5 Socially necessary
13 2 6 Safeguard against the abuse of power
13 2 7 A constitutional requirement
Section 3 of the Law of Evidence Amendment Act 45 of 1988
The Definition of Hearsay
Admission by Consent
The Provisional Admission of Hearsay
Discretion in Terms of Act 45 of 1988
13 7 1 The nature of the proceedings: s 3(1)(c)(i)
13 7 2 The nature of the evidence: s 3(1)(c)(ii)
13 7 3 The purpose for which the evidence is tendered: s 3(1)(c)(iii)
13 7 4 The probative value of the evidence: s 3(1)(c)(iv)
13 7 5 The reason why the evidence is not given by the person upon whose
credibility the probative value depends: s 3(1)(c)(v)
13 7 6 Prejudice to opponents: s 3(1)(c)(vi)
13 7 7 Any other factor which in the opinion of the court should be taken into
account: s 3(1)(c)(vii)
Procedural Issues
Conclusion
13 1 Introduction
The Law of Evidence Amendment Act 45 of 1988 rendered the common-law rules [1]
applicable to hearsay obsolete [2] and redefined hearsay to mean “evidence, whether oral or
in writing, the probative value of which depends upon the credibility of any person other
than the person giving such evidence”. Hearsay evidence is generally inadmissible.
13 2 The Rationale for the Exclusion of Hearsay Evidence
Historically the exclusionary rule was viewed as necessary to guard against the danger that
the trier of fact, and more particularly the jury, might place undue weight on hearsay
evidence despite its inherent weakness. The counter argument is that we all use hearsay
statements in making decisions in everyday life
Page 288
and in doing so take into account its potential unreliability. Consequently, there is no reason
to assume that either juries or professional judges lack the necessary sophistication to
accord hearsay evidence its appropriate weight. [3] This line of reasoning leads to the
assertion that “it is better to admit flawed testimony for what it is worth, giving the
opponent a chance to expose its defects, than to take the chance of a miscarriage of justice
because the trier is deprived of information”. [4]
|
Although not conclusive, empirical research indicates that juries are not unduly influenced
by hearsay evidence [5] and consequently it can be assumed that a unitary court is even less
likely to accord inappropriate weight to hearsay evidence. In a unitary system there is a
further safeguard in that the court must give reasons for its judgment and would have to
justify its reliance on hearsay in reaching a decision. Consequently, if the danger of undue
weight being accorded to hearsay was the sole rationale of the hearsay rule, it would make
little sense to retain the hearsay rule. Therefore, it is necessary to consider other possible
justifications for the hearsay rule.
13 2 1 Procedural context
The distinguishing feature of adversarial proceedings that are relevant to the moulding of the
hearsay rule, are party control of investigation and presentation, the passive role of the
presiding officer, and concentration of proceedings.
The dominant and partisan role of the parties in adversarial proceedings increases the
possibility of misleading evidence being introduced. Consequently, there needs to be an
immediate mechanism for testing evidence and this mechanism is cross-examination. [6] It is
the absence of the opportunity to cross-examine the declarant on whom the probative value
of the evidence depends which makes hearsay potentially unreliable in common-law
systems. [7]
In adversarial systems adjudication takes place at a relatively concentrated trial where the
principle of orality guides the presentation of evidence. The presentation of hearsay evidence
is frequently something of a “surprise” for the
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person against whom it is sought to be admitted and there is no time to locate or prepare a
basis of challenging the credibility of the hearsay declarant. [8]
The principle of orality is directly related to a belief underlying the adversarial system that
an adjudicator is best able to make accurate decisions of fact where the witness upon whom
the probative value of the evidence depends, testifies in open court. [9] A witness who
testifies in open court does so in circumstances in which the solemnity of proceedings is
reinforced by potential liability for perjury. The presence of the party against whom the
testimony is given also encourages circumspection on the part of the witness. The court’s
ability to observe the witness’s demeanour contributes to a more reliable assessment of
credibility. However, the central objection is embedded in a belief in the effectiveness of the
adversarial mechanism for truth finding — cross examination. [10] When hearsay evidence is
admitted these advantages of testifying in open court are lost. Consequently the “four
‘dangers’ of faulty perception, erroneous memory, insincerity, and ambiguity in narration”
are inherent in the admission of hearsay. [11]
This traditional rationale must be assessed in light of a significant body of research that
indicates that the observation of demeanour (see § 30 4 below) does not necessarily
contribute to an accurate assessment of credibility, and that there is little certainty as
regards the efficacy of cross-examination in enhancing the reliability of decision making. [12]
Furthermore, it is “questionable whether the oath discourages untruthfulness to the extent
to which it has been traditionally assumed to do”. [13] Consequently, Choo concludes that
“whilst it may be true that hearsay evidence is likely, in many circumstances, to
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be less reliable than non-hearsay evidence, the actual extent to which it is less reliable can
only be a matter of speculation, and must be dependent on the particular circumstances”. [14]
13 2 2 Cost effectiveness
The hearsay rule has also been justified on a utilitarian basis. The argument is that it pays
for itself “because it is cheaper to test witnesses in court than prepare and offer evidence
bearing on the credibility of remote declarants”. [15] This is a questionable assertion as it
would no doubt frequently be cheaper to offer a report of what a witness said than to call the
witness. [16] Allen argues vociferously against the cost justification and points to the time
spent litigating the rule. [17] He also notes that the hearsay rule also imposes costs on
academic institutions as a disproportionate amount of time is spent teaching and writing
about the hearsay rule. [18]
13 2 3 Best evidence
Another justification for the hearsay rule is that it is necessary to encourage parties to call
the original declarant. [19] However, this clearly has no application where the hearsay
evidence is the best evidence available. [20] Furthermore, the risk of low weight being
attached to the hearsay evidence should act as a sufficient incentive to call the original
declarant. It can also be argued that if the original declarant is available there is nothing
prohibiting the party against whom the hearsay is admitted from calling the original
declarant. [21]
13 2 4 Complexity
An argument can be made that in effect the hearsay rule merely requires the court to
engage in the same inquiry as it would in determining legal relevance, namely: does the
probative value of the evidence exceed its prejudicial value? What then is the utility of the
hearsay rule? Zeffertt, Paizes & Skeen [22] justify a separate hearsay rule on the basis that
hearsay attracts specific prejudicial qualities and challenges that are not necessarily features
of other types of evidence — and to include these in the legal relevance inquiry “would be to
over-burden that doctrine and to encumber it unnecessarily with principles applicable only to
a particular kind of evidence”. [23]
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It has also been argued that if the hearsay rule is subsumed under a general relevance
inquiry this will discourage settlement as parties are unlikely to be able to predict the
outcome on the basis of what evidence is likely to be admitted. [24] In response it might be
asserted that the hearsay rule is so poorly understood that parties are in any event unable
to predict admissibility.
On the other side of the score sheet is the assertion that if hearsay was properly
subjected to the relevance inquiry and admitted when probative value exceeds prejudicial
effect, the truth-seeking function of the court would be better advanced. Friedman argues
that “if live testimony by the declarant would be more probative than prejudicial then most
often . . . hearsay would be more probative than prejudicial”. [25] Consequently, to
presumptively exclude hearsay is not rational: if probative value exceeds prejudicial effect
“then the burden of producing the declarant should be placed on the person objecting to the
hearsay”. [26]
13 2 5 Socially necessary
Scallen asserts that the hearsay rule has a societal dimension centred on a number of
accusatorial relationships [27] namely, that between the accused and the witness who testifies
against the accused and that between the accused and the state. In a civil context the
second relationship is absent.
Placing emphasis on the importance of shared responsibility for outcomes and individual
consciousness of guilt, Scallen argues that “confrontation is necessary as part of the social
relationship between the individual defendant and the accusing witness”. [28] She argues that
the societal dimension of confrontation strengthens the legitimacy and integrity of
adversarial processes [29] and that “participation in decision making is critical to the
perception of procedural justice”. [30] However, Scallen also acknowledges that in certain
circumstances there may be no societal value in confrontation. For example, “[b]ecause of
the difference in vulnerability and power between the individuals, a confrontation between
child and adult may be qualitatively and ethically different than a confrontation between two
adults”. [31]
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13 2 6 Safeguard against the abuse of power
The hearsay rule can also be viewed “as a way of protecting individual rights from the
intrusion of government, or as a way of influencing the conduct of police and prosecutors in
the process of preparing and preserving evidence”. [32] (This rationale also supports an
argument that the standard for admissibility for hearsay should be lower for an accused than
the prosecution in criminal trials.) [33] Raeder argues that although a relaxation of the
hearsay rule might allow an accused to make greater use of hearsay it “is also likely to result
in prosecutors deluging the trial with hearsay” and that “such wholesale use of hearsay
would change the way criminal trials look and might lower public acceptance of verdicts”. [34]
13 2 7 A constitutional requirement
Section 35(3)(i) of the Constitution includes the right to challenge evidence as a component
of the right to a fair trial. In S v Ndhlovu and Others [35] the Supreme Court of Appeal
considered whether cross-examination of the hearsay declarant was an indispensable
component of the right to challenge evidence. The court held that whilst the unregulated
admission of hearsay evidence might infringe the right to challenge evidence, s 3 of the
1988 Act which is primarily an exclusionary rule provides legislative criteria which protect
against any infringement of the right to challenge evidence. [36] For further discussion of the
constitutionality of s 3, see § 13 7 6 below.
13 3 Section 3 of the Law of Evidence Amendment Act 45 of
1988
Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides:
“3.(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence
at criminal or civil proceedings, unless —
(a)
each party against whom the evidence is to be adduced agrees to the admission thereof as
evidence at such proceedings;
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(b)
(c)
the person upon whose credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
the court having regard to —
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible
on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is
informed that the person upon whose credibility the probative value of such evidence depends, will
himself testify in such proceedings: Provided that if such person does not later testify in such
proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted
in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of
that subsection.
(4) For the purposes of this section —
•
•
‘hearsay evidence’ means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any person other than the person giving such
evidence;
‘party’ means the accused or party against whom hearsay evidence is to be adduced,
including the prosecution.”
13 4 The Definition of Hearsay
Section 3(4) of Act 45 of 1988 defines hearsay as “evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any person other than the person
giving such evidence”. The first step in applying the definition would be to ask what the
probative value of evidence is. For example, X parks outside a supermarket and when he
comes out he notices that somebody must have reversed into the back of his car whilst he
was shopping. A total stranger comes up to him and says he witnessed the accident and
recorded the number of the other car. The stranger hands a piece of paper, on which a
motor vehicle registration number is written, over to X and then disappears never to be seen
again. X does not ask the stranger her name. The number given to X corresponds with a car
owned by Y. X sues Y. The piece of paper is tendered into evidence. Its probative value is to
establish that Y’s car was the car that collided with X’s car. The next question must be upon
whose credibility does the probative value depend. To a limited extent the probative value
rests on X in that he can testify to and be cross-examined on his interaction with the
stranger. However, primarily the probative value would rest on the stranger. The fact that
the probative value partially rests on X will not negate the hearsay nature of the evidence.
Zeffertt, Paizes & Skeen prefer the view that “depends” requires that the “probative value
depend[s] sufficiently
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upon the credibility of someone other than the witness to lead a court to believe that its
potential for prejudice [is] sufficiently great to warrant a full examination of all the relevant
facts.” [37]
The courts need to guard against treating the common-law assertion-oriented definition as
functionally equivalent to the declarant-oriented definition provided in s 3(4). Van Heerden
JA in an obiter dictum in Mdani v Allianz Insurance Ltd [38] applied the statutory definition of
hearsay as follows:
“If A testified that B made such an admission, A’s evidence in itself is clearly not hearsay. Whether B
in fact made the admission, depends upon A’s credibility and can be tested by cross-examination.
What is hearsay, is the content of the admission if it is to be used to establish the truth of what was
said. And whether the content is true or not, depends entirely upon B’s credibility.”
This is a fusion of both the assertion-oriented and declarant-oriented definitions. Paizes [39]
gives the following example (amongst others) to illustrate the fallacy of equating the two
definitions: A tells B “I am alive” and this is tendered to establish that A was in fact alive at
the time. If we apply the common-law assertion-oriented definition, then the evidence must
be hearsay. However, if we apply the declarant-oriented test — namely does the probative
value depend upon the credibility of the non-witness who utters the words in question? —
then it is not hearsay, because the conclusion that A was alive is self-evident, since he spoke
the words.
13 5 Admission by Consent
In terms of s 3(1)(a) of Act 45 of 1988 hearsay evidence may be admitted by consent. The
failure to object to the admission of hearsay evidence may be regarded as consent. [40]
Consent will also be inferred where a party deliberately elicits hearsay evidence from her
opponent in cross-examination. [41] However, the courts will be slow to infer informed
consent where a party is unrepresented; in S v Ngwani [42] the court held that a presiding
officer must properly explain the relevant law to an unrepresented accused. Furthermore, a
“judicial officer has a duty to explain to a witness who may be tendering hearsay
evidence . . . to avoid doing so until the court has made a ruling in that regard”. [43]
13 6 The Provisional Admission of Hearsay
In terms of s 3(1)(b) of Act 45 of 1988 hearsay evidence may be provisionally admitted
where the court is informed that the person upon whose credibility the probative value of the
evidence depends is going to testify at some future
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time in the proceedings. Section 3(3) provides that if the relevant person does not testify,
the hearsay evidence will not be taken into account unless it is admitted by consent in terms
of s 3(1)(a) of the Act or is admitted by the court in the interests of justice as provided for in
s 3(1)(c) of the Act.
In S v Ndhlovu and Others [44] the Supreme Court of Appeal found that Goldstein J was
incorrect in the approach he had adopted in the court a quo. [45] Goldstein J, in the court a
quo, admitted an extra-curial statement made by one accused against his co-accused on the
basis that the statement was admissible in terms of s 3(1)(b) and held that s 3(1)(b) did not
require the witness to repeat the extra-curial statement under oath. He adopted a literal
approach in interpreting the subsection on the basis that to do otherwise would render s 3
(1)(b) superfluous. He reasoned as follows: the subsection would have “no or little purpose
since an extra-curial statement, which is repeated under oath, need not be referred to at all,
and is indeed of doubtful admissibility, constituting as it does a previous consistent
statement”. [46]
The Supreme Court of Appeal rejected the literal interpretation adopted by Goldstein J and
referred to s 3(3) to ascertain the purpose of s 3(1)(b). Section 3(3) permits the provisional
admission of hearsay “if the court is informed that the person upon whose credibility the
probative value of such evidence depends, will himself testify in such proceedings”. Cameron
JA identified the rationale of the subsection as follows: [47]
“Before the Act, a witness whose narrative was conjoined with that of a later witness could not refer
at all to the latter’s hearsay statements. This could render the delivery of evidence fragmentary and
even incoherent. Any allusion to hearsay would be met with justified objection, and the court would
have to wait for the later witness to be called for coherence to emerge. In these circumstances the
provision permits the first witness to testify fully and without objection, provided the court is informed
that the declarant will in due course be called. If the declarant is not called the hearsay is ‘left out of
account’ unless the opposing party agrees to its admission or the interests of justice require its
admission under s 3(1)(c).” [48]
The court also identified the difficulties that may arise from adopting an interpretation that
allows a hearsay statement to become admissible simply because the extra-curial declarant
testifies. It noted that the primary rationale for excluding hearsay evidence was its
potentially untrustworthiness as the
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person on whom the probative value of the evidence depends cannot be subject to crossexamination. Consequently, the subsection could not have been intended to allow the
admission of hearsay evidence in circumstances where such cross-examination was absent.
This might occur “when the hearsay declarant is called as a witness, but does not confirm
the statement, or repudiates it”. [49] The court then concluded that where trustworthiness
cannot be established through cross-examination the inquiry must be subsumed under s 3
(1)(c) and a court must inquire whether the evidence should be admitted in the interests of
justice.
The rules and principles which govern the situation where the declarant (source person)
repudiates her statement when called as a witness, are dealt with in § 25 4 2 below in the
chapter which examines the credibility of witnesses and the hostile witness.
13 7 Discretion in Terms of Act 45 of 1988
The Act’s most radical departure from the common law is found in s 3(1)(c), which confers a
judicial discretion on presiding officers to admit hearsay evidence if the admission of the
evidence would be in the interests of justice. In exercising this discretion the court must
consider six specified factors as well as “any other factor which should in the opinion of the
court be taken into account”. The Supreme Court of Appeal has made it clear that a decision
to admit evidence is not simply an exercise of judicial discretion but a decision of law which
can be overruled by an appeal court if found to be wrong. In McDonald’s Corporation v
Joburgers Drive-Inn Restaurant (Pty) Ltd and Another; McDonald’s Corporation v Dax Prop
CC and Another; McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and
Dax Prop CC [50] the court held:
“It was contended that the Court a quo exercised a discretion in refusing to allow the evidence under
s 3 of the Act, and that its decision in this regard may be set aside only if the Court of appeal
considers that the discretion was not judicially exercised. I do not agree. A decision on the
admissibility of evidence is, in general, one of law, not discretion, and this Court is fully entitled to
overrule such a decision by a lower court if this Court considers it wrong. There is in my view nothing
in s 3 of the Act which changes this situation.”
13 7 1 The nature of the proceedings: s 3(1)(c)(i)
In Metedad v National Employers’ General Insurance Co Ltd [51] Van Schalkwyk J referring to
s 3(1)(c) held: “[B]ecause of the presumption of innocence, and the courts intuitive
reluctance to permit the untested evidence to be used against the accused in a criminal
case, this section might only rarely find application in our criminal
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law. [52] That does not however mean that it will not be usefully and constructively applied to
assist in the search for the truth in civil actions.” [53] In civil cases the court will take into
account that the standard of proof is a balance of probabilities. [54] It has been suggested
that hearsay will be more readily admitted in application proceedings than at trial. [55] Since
bail proceedings are regarded as neither civil nor criminal proceedings, [56] the rules of
evidence are not strictly adhered to and consequently hearsay evidence is generally
admissible at bail proceedings [57] although the hearsay nature of the evidence will affect its
weight. [58] In Vigario v Afrox Ltd [59] the quasi judicial nature of inquest proceedings and an
inquiry in terms of the Housing Amendment Act 47 of 1967 was a factor taken into account
by the court in admitting hearsay evidence. [60] The court in Swissborough Diamond Mines
(Pty) Ltd and Others v Government of the Republic of South Africa and Others [61] refused to
admit hearsay evidence in interlocutory proceedings in the absence of urgency or special
circumstances. [62] Section 3 is “[s]ubject to the provisions of any other law”; [63]
consequently, it will not apply in proceedings governed by statute where special provisions
are made in regard to hearsay evidence. For example, s 30(2)(a) of the Restitution of Land
Rights Act 22 of 1994 permits the Land Claims Court to receive hearsay evidence. [64] Similar
provisions are contained in s 6(3) and (4) of the Admiralty Jurisdiction Regulation Act 105 of
1983. [65] In Ben McDonald Inc and Another v Rudolph and Another [66] the court held that
the rules of hearsay evidence did not apply to a Taxing Master as he or she was not a court
of law. However, s 3 is generally applied in statutory arbitration proceedings. [67] The
position in the Small Claims Court was dealt with in § 1 5 above.
Section 2(2) of the Prevention of Organised Crime Act 121 of 1998 provides as follows
with regard to prosecutions for racketeering offences as identified in
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s 2(1) of the Act: “The court may hear evidence, including evidence with regard to
hearsay . . . notwithstanding that such evidence might otherwise be inadmissible, provided
that such evidence would not render a trial unfair.”
13 7 2 The nature of the evidence: s 3(1)(c)(ii)
Although there is no clear guidance from the case law, it can be inferred from Hewan v
Kourie NO and Another [68] that the courts are primarily concerned with the reliability of the
evidence when considering its nature. This criterion is also prominent in considering
probative value. [69] It must be borne in mind that the factors listed in s 3(1)(c) cannot be
viewed in isolation and will be weighed collectively in determining whether it is in the
interests of justice to admit the evidence. [70]
There are a myriad of factors that affect reliability. For example, the fact that the nonwitness has or had no interest in the matter before the court may impact on the court’s
assessment of reliability. [71] An indicator of reliability might be that the statement was made
against the interests of the declarant. Reliability will also be enhanced by other evidence
supporting the hearsay evidence. [72] A court may also consider the simplicity [73] of the
subject-matter and the absence of contradictory evidence. [74] The contemporaneity and
spontaneity of the hearsay statement may also be taken into account. [75] The degree of
hearsay will also be relevant, the reliability diminishing where it is second hand hearsay. [76]
13 7 3 The purpose for which the evidence is tendered: s 3(1)(c)(iii)
In Hlongwane and Others v Rector, St Francis College, and Others [77] Galgut J held that the
fact that the hearsay evidence pertained to an issue fundamental to the case before it,
militated against its admission. [78] However, in S v Mpofu [79] Alexander J clearly rejected the
approach that the importance of the evidence militated against its admission. The court
stressed that the important criteria in determining admissibility were truthfulness and
reliability. Truthfulness and reliability are in essence one criterion that is examined when
looking at the nature of the evidence. The difficulty with the approach taken in Mpofu is that
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it then becomes difficult to ascertain what the legislature meant by “the purpose for which
the evidence is tendered”. In Metedad v National Employers’ General Insurance Co Ltd [80]
the court held that this criterion means nothing more than that evidence tendered for a
compelling reason would stand a better chance of admission than evidence tendered for a
doubtful or illegitimate purpose. [81] This in turn is difficult to distinguish from the relevance
inquiry that takes place in terms of s 3(1)(c)(iv) and s 3(1)(c)(vi) as discussed below. In S v
Rautenbach [82] the court held hearsay would be more readily admitted where its purpose
was to exonerate the accused.
13 7 4 The probative value of the evidence: s 3(1)(c)(iv)
The probative value of the hearsay evidence must be established in order to determine
admissibility. [83] In ascertaining whether evidence is sufficiently relevant a court will weigh
the probative value of the evidence against the potential prejudice to the party against
whom it is admitted. In S v Ndhlovu and Others [84] the court usefully spelt out the contents
of this leg of the inquiry as follows: “‘Probative value’ means value for purposes of proof.
This means not only, ‘what will the hearsay evidence prove if admitted?’ but will it do so
reliably?” [85] Borchers J in S v Saat [86] identified reliability as a central issue under this leg
of the inquiry and noted that the hearsay declarants had been subject to lengthy crossexamination which was reflected in their recorded statements. This not only assisted the
court in determining reliability but also negated the potential prejudice that is usually
present when hearsay is admitted, namely, the inability to test the evidence (see also
§ 13 7 6 below). The existence of admissible evidence which is consistent with the hearsay
evidence will also enhance the latter’s probative value. [87]
13 7 5 The reason why the evidence is not given by the person upon
whose credibility the probative value depends: s 3(1)(c)(v)
The inherently prejudicial nature of hearsay evidence requires a party to establish the
necessity of leading such evidence. [88] In S v Nzama and Another [89] the court held that
where an application was made for a witness to testify in disguise because of the witness’
fear of retribution, including the loss of his life, it would defeat the purpose of the application
if the witness were required to testify at the application. [90] Where a person is prohibited in
law from disclosing information, the court will also generally admit the hearsay evidence. For
example, in
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Welz and Another v Hall and Others [91] the court held that where the evidence could not be
given by a revenue official who made a document because he was prohibited by legislation
from doing so, the evidence should generally be admitted in the interests of justice. In Van
Zyl and Another v Jonathan Ball Publishers (Pty) Ltd and Others [92] Navsa J held that a court
in exercising its discretion should consider the difficulty a respondent may encounter in
meeting a case on an urgent basis. [93] Other circumstances that might make it necessary to
introduce hearsay evidence would include: the death of the declarant; a witness’ absence
from the country; an inability to trace a witness; the extremely frail health of a witness.
13 7 6 Prejudice to opponents: s 3(1)(c)(vi)
The admission of hearsay evidence may result in procedural and substantive prejudice. For
example, in S v Ramavhale [94] the court held that it would be unduly prejudicial if an
accused found himself forced to testify in order to rebut hearsay evidence in the absence of
direct evidence supporting the prosecution’s case. The admission of hearsay evidence may
unduly lengthen proceedings and place an onerous duty of rebuttal on the party against
whom it is admitted.
There are cases from which it can be inferred that the courts will consider substantive
prejudice in determining the admissibility of hearsay evidence. [95] However, factors
pertaining to substantive prejudice are probably better considered when looking at the
nature, purpose and probative value of the evidence. The Supreme Court of Appeal in S v
Ndhlovu and Others [96] made it clear that prejudice in this context is limited to procedural
prejudice and held:
“The suggestion that the prejudice in question might include the disadvantage ensuing from the
hearsay being accorded its just evidential weight once admitted must however be discountenanced. A
just verdict, based on evidence admitted because the interests of justice require it, cannot constitute
‘prejudice’ Where the interests of justice require the admission of hearsay, the resultant strengthening
of the opposing case cannot count as prejudice for statutory purposes, since in weighing the interests
of justice the court must already have concluded the reliability of the evidence is such that its
admission is necessary and justified. If these requisites are fulfilled, the very fact that the hearsay
justifiably strengthens the proponent’s case warrants its admission, since its omission would run
counter to the interests of justice.”
In S v Ndhlovu and Others [97] the court identified the following disadvantages that may
accrue as a result of the admission of hearsay evidence. First, it is “not subject to the
reliability checks applied to first-hand testimony” and, second, “its reception exposes the
party opposing its proof to the procedural unfairness of not being able to counter effectively
inferences that may be drawn from
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it”. [98] This raises the question whether the admission of hearsay evidence potentially
infringes the constitutional right to challenge evidence. [99] Cameron JA in Ndhlovu, noting
that s 3 was primarily an exclusionary rule, held that the legislative criteria to be taken into
account in applying the “interests of justice” test were “consonant with the Constitution” [100]
and reiterated the courts reluctance to admit or rely “on hearsay evidence which plays a
decisive or even significant part in convicting an accused, unless there are compelling
justifications for doing so”. [101] The court also noted that the manner in which s 3 regulates
the admission of hearsay evidence is “in keeping with developments in other democratic
societies based on human dignity, equality and freedom” [102] and found that the
constitutional right to challenge evidence had not been infringed. The crux of the court’s
reasoning is found in the following passage:
“It has correctly been observed that the admission of hearsay evidence ‘by definition denies an
accused the right to cross-examine’, since the declarant is not in court and cannot be cross-examined.
I cannot accept, however, that ‘use of hearsay evidence by the state violates the accused’s right to
challenge evidence by cross-examination’, if is meant that the inability to cross-examine the source of
a statement in itself violates the right to ‘challenge’ evidence. The Bill of Rights does not guarantee an
entitlement to subject all evidence to cross-examination. What it contains is the right (subject to
limitation in terms of s 36) to ‘challenge evidence’. Where that evidence is hearsay, the right entails
that the accused is entitled to resist its admission and to scrutinise its probative value, including its
reliability. The provisions enshrine these entitlements. But where the interests of justice,
constitutionally measured, require that hearsay evidence be admitted, no constitutional right is
infringed. Put differently, where the interest of justice require that the hearsay statement be
admitted, the right to ‘challenge evidence’ does not encompass the right to cross-examine the original
declarant.” [103]
The Supreme Court of Appeal chose a line of reasoning that avoided the two stage
limitations analysis generally adopted by the Constitutional Court; and by concluding that
the right to cross-examine is not an essential component of the right to challenge evidence
also departed from a generous interpretation of rights. However, the approach of the
Supreme Court of Appeal finds resonance in the decisions of the United States Supreme
Court [104] which is constrained from engaging in a two stage approach in the absence of a
limitations clause.
Mlambo JA in S v Libazi and Another [105] was required to consider whether the court a quo
had correctly admitted an extra curial admission by a co-accused who had died prior to trial
and which implicated his co-accused. The court, adopting a generous approach to the
constitutional interpretation of rights, noted that the right to cross-examine is integral to the
accused’s capacity to actively assert his rights of defence. The court, whilst expressing doubt
as to the correctness of the approach taken in Ndhlovu, did not explicitly depart from it
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and instead chose to distinguish the present appeal on the basis that in Ndhlovu the maker
of the statement in question had testified but disavowed the content of his ‘hearsay’
statement, whereas in the present matter the maker of the statement was absent (having
died). Furthermore, the absent declarant was an accomplice, to which a well-established
cautionary rule applied and this militated against the admission of the statement. The court
then went on to consider whether there was sufficient evidence to sustain the convictions
despite the absence of the hearsay statement. [106] Both Libazi and Ndhlovu must now be
read subject to later decisions to the effect that an accused’s admission cannot be used
against a co-accused, not even by relying on the provisions of s 3(1)(c), that is, the
“interests of justice” criterion. This matter is dealt with in § 16 4 1 below in the chapter
which examines the admissibility of admissions.
The Constitutional Court appears to have taken the most restrictive approach in holding
that it was theoretically possible to admit evidence that did not meet the requirement of s 3
of the 1988 Act without infringing any constitutional right. In Savoi and Others v National
Director of Public Prosecutions and Another [107] the Constitution Court, inter alia, considered
the constitutionality of s 2(2) of the Prevention of Organised Crime Act 121 of 1998, which
reads: “The court may hear evidence, including evidence with regard to hearsay, similar
facts or previous convictions, relating to offences contemplated in subsection (1)
notwithstanding that such evidence might otherwise be inadmissible, provided that such
evidence would not render a trial unfair.”
The reasoning of the court in dismissing the constitutional challenge was that admitting
evidence that would otherwise be inadmissible in terms of the rules applying to hearsay,
similar facts or previous convictions would not necessarily render a trial unfair. It is the
application of s 2(2) of the facts of each case that can produce an irregularity in
constitutional terms, but the section itself is not unconstitutional.
The court considered the common-law hearsay rule and noted that its rigidity resulted in
evidence being excluded even where its probative value exceeded its prejudicial effects.
Fortunately, the common law rule was superseded by the s 3 of the Law of Evidence
Amendment Act 45 of 1988 which whilst retaining the exclusionary rule permits hearsay
evidence to be admitted if it is in the interests of justice to do so.
13 7 7 Any other factor which in the opinion of the court should be
taken into account: s 3(1)(c)(vii)
Although the common-law exceptions to the hearsay rule are obsolete, they are not
irrelevant. The common-law exceptions are factors that a court may take into account in
exercising its discretion to admit the evidence in the interests of justice. [108] For example, in
S v Mbanjwa and Another [109] the court took into account, inter alia, that the deceased’s
Page 303
statement was akin to a dying declaration [110] and was a spontaneous statement [111] and
that these types of hearsay statements were exceptionally admissible at common law.
Contemporaneity has also been taken into account. [112] The most important common-law
exceptions are briefly discussed in the next chapter.
Consistency with proven facts was “another factor” taken into account by the court in
Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting [113] The accused’s
participation in the events recorded in the hearsay document has also been taken into
account on the basis that such participation placed the accused in a position to contradict the
assertions made in the hearsay document. [114]
13 8 Procedural Issues
In S v Ndhlovu and Others [115] Cameron JA noted [116] that there were a number of duties
resting on presiding officers to ensure that the accused’s rights were upheld, namely they
are required to (a) actively guard against the inadvertent admission or “venting” of hearsay
evidence [117] ; (b) ensure that the significance of the contents of s 3 are properly explained
to an unrepresented accused; [118] and (c) protect an accused from “the late or unheralded
admission of hearsay evidence”. [119]
The admission of hearsay must be dealt with clearly and timeously. [120] However, this is
not necessarily an inflexible rule. In S v Waldeck, [121] the prosecution at the outset had
indicated its intention to introduce hearsay. When the hearsay evidence was adduced the
defence did not object, and instead cross-examined the witness and elicited additional
hearsay evidence of its own. It appears that some objection was made at the closing stages
of the trial and that the defence was offered an opportunity to re-open its case which it
declined. At no stage prior to judgment did the magistrate make a ruling on the admissibility
of the hearsay. It was the admission of the hearsay in the absence of a ruling that provided
a ground of appeal in Waldeck. The absence of a ruling, it was argued, deprived the accused
of the opportunity to make an informed decision as to whether to testify or not and
consequently deprived him of a fair trial. Kgomo JP found that other than the hearsay there
was substantial incriminating evidence adduced, and consequently it was unlikely that the
absence of the ruling on the admissibility of the hearsay would have
Page 304
made any difference to the accused’s decision not to testify. The hearsay was ruled
admissible. However, the Constitutional Court decision in S v Molimi [122] makes it clear that
the right to a fair trial requires a ruling on admissibility to be given prior to the accused
testifying. Nkabinde J held:
“It is not open to question that a ruling on the admissibility of evidence after the accused has testified
is likely to have an adverse effect on the accused’s right to a fair trial. It may also have a chilling
effect on the public discourse in respect of critical issues regarding criminal proceedings. More
importantly, proceedings in which little or no respect is accorded to the fair trial rights of the accused
have the potential to undermine the fundamental adversarial nature of judicial proceedings and may
threaten their legitimacy. There are further adverse consequences. For example, when a ruling on
admissibility is made at the end of the case, the accused will be left in a state of uncertainty as to the
case he is expected to meet and may be placed in a precarious situation of having to choose whether
to adduce or challenge evidence.” [123]
The Supreme Court of Appeal has held that in civil trials the appropriate time for a court to
make a ruling on the admissibility of evidence is at the end of the plaintiff’s case. [124]
Due notice of the intention to lead hearsay is not a pre-requisite for admissibility;
however, it will mitigate any prejudice that might result from the admission of the hearsay in
so far as it enables the person against whom the hearsay is admitted to lead evidence in
rebuttal. [125]
13 9 Conclusion
The Law of Evidence Amendment Act 45 of 1988 has relaxed the rigidity and eliminated
some of the uncertainty of the common law. However, the factors listed in s 3(1)(c) may
lead to some confusion when applied. The way in which the factors are enumerated suggests
that an inquiry into probative value and prejudice can be separated from the nature, purpose
and reliability of the evidence. Clearly the latter three factors are all pertinent in ascertaining
the probative value and prejudicial effect of the evidence, which in turn are the two
components of any relevance inquiry (see §§ 5 3 2 and 5 3 5 above). Section 3(1)(c) it
would seem is an inevitable consequence of the basic rule that all evidence admitted must
be relevant and is best understood in the light of the following directive in Hewan v Kourie
NO and Another [126] that the section “requires the Court, in the exercise of its discretion, to
have regard to the collective and interrelated effect of the considerations set out in paras (i)
-(vi) . . .”.
[1] See ch 14 for a discussion of the common law.
[2] Mnyama v Gxalaba and Another 1990 (1) SA 650 (C). However, see § 13 7 7 below.
[3] Mueller “Post modern hearsay reform: the importance of complexity” (1992) 76 Minnesota Law Review 367 at
380. See also Nance “Commentary: A response to Professor Damaska: Understanding responses to hearsay: an
extension of comparative analysis” (1992) 76 Minnesota Law Review 459 at 463 who expresses his scepticism as
follows: “The difficulty for a taint theory is explaining why being exposed to admittedly relevant information, that
may be very probative, should lead to greater inaccuracy, especially when the information carries on its face a
consumer warning . . . by virtue of its derivative status”. See also Miene, Park & Borgida “Juror decision making and
the evaluation of hearsay evidence” (1992) 76 Minnesota Law Review 683.
[4] Bull, Kovera, Park, Penrod “Juror’s perceptions of eyewitness and hearsay evidence” (1992) 76 Minnesota Law
Review 703 at 704. See also Shapiro “Saving Desdemona” (2001) 22 Cardozo Law Review 1771, Callen “Othello
could not optimize: economics, hearsay, and less adversary systems” (2001) 22 Cardozo Law Review 1791.
[5] See generally Park “The new wave of hearsay reform scholarship” (1992) 76 Minnesota Law Review 363,
Mueller op cit.
[6] Damaska Evidence Law Adrift (1987) 79-80.
[7] See Damaska op cit 85 where he notes that a rule excluding hearsay also acts as an incentive for parties to
produce the best evidence available.
[8] See Damaska op cit 64-5 where he contrasts the concentrated trial proceedings in adversarial common-law
systems and the more episodic procedures used by the Continental courts as follows: “When a witness reproduces
any person’s out-of-court statement, or when that statement is contained in a document, there is enough time in the
unhurried atmosphere of Continental litigation to seek out this person for presentation in court — at the next
procedural instalment, if necessary. And if this person’s court testimony differs from that quoted by the hearsay
witness, the court has heard them both and is thus in position to evaluate relative trustworthiness. Due to the
comparatively informal style of adducing evidence that prevails on the Continent — the hearsay witness and the
declarant can even be made to confront each other. And if the declarant turns out to be unavailable, normally there
is sufficient time before the next instalment to collect the information necessary to gauge his credibility. Also, if
hearsay evidence is relied upon by the court of first instance, the retrial of factual issues on appeal in Continental
courts provides yet another opportunity to check the information bearing on the reliability of derivative statements. A
relatively more lenient approach to the use of potentially treacherous derivative proof seems justified.”
[9] See Delisle, Stuart & Tanovich Evidence: Principles and Problems 7 ed (2004) 537-538; Wiessenberger Federal
Rules of Evidence (1987) 331. The principle of orality is also referred to in §§ 1 5 2 and 1 6 above.
[10] See S v Ndhlovu and Others 2002 (2) SACR 325 (SCA).
[11] Choo Hearsay and Confrontation in Criminal Trials (1996) 42. See also Delisle et al op cit 538; Sopinka,
Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 174; Raeder “Finding the proper balance in hearsay
policy. The uniform rules attempt to stem the hearsay tide in criminal cases without prohibiting all non-traditional
hearsay” (2001) 54 Oklahoma Law Review 631. See also Zeffertt, Paizes & Skeen (2003) 378; S v Ndhlovu and
Others 2002 (2) SACR 325 (SCA).
[12] Choo op cit 43.
[13] Choo op cit 43.
[14] Choo op cit 43. See also Mueller “Post modern hearsay reform: The importance of complexity” (1992) 76
Minnesota Law Review 367 at 380.
[15] Mueller op cit 376.
[16] Mueller ibid.
[17] Allen “Commentary: A response to Professor Friedman. The evolution of the hearsay rule to a rule of
admission” (1992) 76 Minnesota Law Review 797 at 800.
[18] Ibid.
[19] Nance “Commentary: A response to Professor Damaska: Understanding responses to hearsay: an extension
of the comparative analysis” (1992) 76 Minnesota Law Review 459. See also Friedman “Toward a partial economic,
game theoretic analysis of hearsay” (1992) 76 Minnesota Law Review 723 at 728.
[20] See for example, Tijmstra NO v Blunt-Mackenzie NO and Others 2002 (1) SA 459 (T) at 466.
[21] Nance op cit 463. This assumes that it is justified to place the costs of calling the original declarant on the
party against whom the hearsay is admitted.
[22] (2003) 377.
[23] Ibid.
[24] Raeder op cit 516.
[25] Friedman op cit 724.
[26] Ibid. However, Friedman notes that other considerations may require a departure from this approach — “such
as whether the proponent has a substantial advantage in satisfying all or part of the burden of producing the
declarant, or whether the proponent has given late notice of his intention to offer hearsay”.
[27] Scallen “Constitutional dimensions of hearsay reform: Toward a three dimensional confrontation
clause” (1992) 76 Minnesota Law Review 623 at 635.
[28] Op cit 644.
[29] Op cit 646.
[30] Op cit 647. See also Friedman “Face to face: Rediscovering the right to confront prosecution
witnesses” (2004) 8 International Journal of Evidence and Proof 1; Roberts & Zuckerman Criminal Evidence (2004)
667-670.
[31] Op cit 653. See also generally § 18 11 2 below, where the right to confront is discussed in the context of the
intermediary as provided for in s 170A of the CPA.
[32] Park op cit 365. See also Choo op cit; Friedman “Face to face: Rediscovering the right to confront prosecution
witnesses” (2004) 8 International Journal of Evidence and Proof 1; Ho “Confrontation and hearsay: A critique of
Crawford” (2004) 8 International Journal of Evidence and Proof 147 at 156. Mueller op cit 384 notes that other
grounds for objecting to hearsay include “concerns about . . . concocted or exaggerated statements, and the use of
trained investigators to exact statements by trickery and offers of immunity or leniency”.
[33] See Scallen op cit 649. See also Ho op cit 151.
[34] Raeder “Commentary: A response to Professor Swift: The hearsay rule at work: has it been abolished de facto
by judicial discretion” (1992) 76 Minnesota Law Review 507 at 512. See also Swift “The hearsay rule at work: has it
been abolished de facto by judicial discretion” (1992) 76 Minnesota Law Review 473. See Roberts & Zuckerman
Criminal Evidence op cit 599 and 603 who note that one of the reasons that the hearsay rule has endured in criminal
proceedings “is that hearsay evidence involves unacceptable risks of convicting the innocent”.
[35] 2002 (2) SACR 325 (SCA).
[36] Cf Schwikkard 2003 (120) SALJ 63; Zeffertt & Paizes 416-7; S v Mokoena and Others 2006 (1) SACR 29 (W)
at 48h. The Canadian hearsay rule has similarly passed constitutional muster. In terms of the Canadian rule “[w]
ritten or oral statements, or communicative conduct made by person otherwise than in testimony at the proceedings
in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as
proof of assertions implicit therein”. This exclusionary rule is then subject to a number of exceptions. See Sopinka,
Lederman & Bryant The Law of Evidence in Canada (1999) 173 et seq. See also Delisle & Stuart Evidence Principles
and Problems op cit 537.
[37] At 366, emphasis in original text.
[38] 1991 (1) SA 184 (A).
[39] Paizes 1983 SALJ 71 at 77.
[40] Thoroughbred Breeders Association of South Africa v Price Waterhouse 1999 (4) SA 968 (W); S v Aspeling
1998 (1) SACR 561 (C).
[41] Mahomed v Attorney-General of Natal and Others 1996 (1) SACR 139 (N).
[42] 1990 (1) SACR 449 (N).
[43] S v Congola 2002 (2) SACR 383 (T) at 386d. See also § 13 8 below.
[44] 2002 (2) SACR 325 (SCA). This case should — on the issue of admitting an accused’s admission against a coaccused — be read subject to S v Litako and Others 2014 (2) SACR 431 (SCA) and S v Mhlongo; S v Nkosi [2015]
ZACC 19 (25 June 2015). See § 16 4 1 below.
[45] S v Ndhlovu and Others 2001 (1) SACR 85 (W).
[46] S v Ndhlovu and Others 2001 (1) SACR 85 (W) at [50].
[47] At [28]. It should be noted that provisional admissibility as provided for in s 3(1)(b) and 3(3), does not
permit the initial and provisional introduction of hearsay by a party who has full knowledge (or more than a
reasonable expectation) that the alleged “source person” will not confirm the hearsay. A party (and especially the
prosecution) must take great care to ensure that s 3(3) is not abused. See De Vos and Van der Merwe 1993 (1) Stell
LR 7 at 20 n 72. An application for provisional admission (based on an invalid assurance by a party) cannot serve as
a first step to get on record hearsay evidence which ought, in the first instance, to have been the subject of a
separate application in terms of s 3(1)(c) of Act 45 of 1988 (the “interests of justice” criterion). In S v Carstens 2012
(1) SACR 485 (WCC) Dlodlo J concluded that the prosecutor’s failure to alert the court to the fact that the “source
person” would not testify, caused serious prejudice (at [10]-[11]).
[48] See also S v Rathumbu 2012 (2) SACR 219 (SCA).
[49] At [30]. See further the discussion of S v Rathumbu supra and S v Mathonsi 2012 (1) SACR 335 (KZP) in
§ 25 4 2 below.
[50] 1997 (1) SA 1 (A) at 27D-E.
[51] 1992 (1) SA 494 (W) 499.
[52] See also S v Ndhlovu and Others 2002 (2) SACR 325 (SCA).
[53] Cf Hewan v Kourie NO and Another 1993 (3) SA 233 (T) at 239.
[54] Hewan v Kourie NO and Another supra.
[55] S v Cekiso and Another 1990 (4) SA 20 (E). See Hlongwane and Others v Rector, St Francis College, and
Others 1989 (3) SA 318 (D); Mnyama v Gxalaba and Another 1990 (1) SA 650 (C); S v Staggie and Another 2003
(1) SACR 232 (C). Cf Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T).
[56] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC).
[57] S v Yanta 2000 (1) SACR 237 (Tk).
[58] S v Tshabalala 1998 (2) SACR 259 (C). See also Ellish en Andere v Prokureur-Generaal, Witwatersrandse
Plaaslike Afdeling 1994 (4) SA 835 (W); S v Mbele and Another 1996 (1) SACR 212 (W).
[59] 1996 (3) SA 450 (W).
[60] A similar approach was taken by the court in Young v Workmen’s Compensation Commissioner and Another
1998 (3) SA 1085 (T) in respect of an inquiry undertaken in terms of the Workmen’s Compensation Act 30 of 1941.
[61] 1999 (2) SA 279 (T) 336.
[62] Cf S v Saat 2004 (1) SA 593 (W).
[63] Section 3(1) of Act 45 of 1988.
[64] Richtersveld Community v Alexkor Ltd and Another 2000 (1) SA 337 (LCC).
[65] See, eg, MT Tigr Owners of the MT Tigr and Another v Transnet Ltd t/a Portnet (Bouygues Offshore SA and
Another Intervening) 1998 (3) SA 861 (SCA).
[66] 1997 (4) SA 252 (T).
[67] Southern Sun Hotels (Pty) Ltd v South African Commercial Catering & Allied Workers Union & another (2000)
21 ILJ 1315 (LAC); Edcon Ltd v Pillemer NO & others (2008) 29 ILJ 614 (LAC). See Whitear-Nel 2012 Stell LR 241.
[68] Supra.
[69] See § 13 7 4 below.
[70] See § 13 9 below.
[71] See Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W); S v Saat supra.
[72] Hewan v Kourie NO and Another supra.
[73] Hewan v Kourie NO and Another supra.
[74] S v Cekiso and Another 1990 (4) SA 20 (E). See also Aetiology Today CC t/a Somerset Schools v Van
Aswegen and Another 1992 (1) SA 807 (W).
[75] S v Mpofu 1993 (2) SACR 109 (N); S v Ndhlovu and Others 2002 (2) SACR 325 (SCA).
[76] Magwanyana and Others v Standard General Insurance Co Ltd 1996 (1) SA 254 (D). However, even “double
hearsay” may be received if the “interests of justice” (s 3(1)(c)) dictate its reception. See Makhathini v Road
Accident Fund 2002 (1) SA 511 (SCA).
[77] 1989 (3) SA 318 (D).
[78] See also Hewan v Kourie NO and Another supra. In S v Ramavhale 1996 (1) SACR 639 (A) the hearsay
evidence was of crucial importance in the trial court’s finding that the state had proved its case. This was one of the
reasons that led the Appellate Division to conclude that the trial court had been “too easily persuaded” by the
prosecution to place weight on the evidence for purposes of convicting the appellant (at 649d-e).
[79] Supra.
[80] 1992 (1) SA 494 (W).
[81] In Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC) at [45], the court, although not
referring to this criterion, held if the admission of the hearsay would make no difference to the outcome of the case
it should be admitted.
[82] 2014 (1) SACR 1 (GSJ) at [109].
[83] Giesecke & Devrient South Africa Pty Ltd 2012 (2) SA 137 (SCA).
[84] 2002 (2) SACR 325 (SCA) at [45].
[85] The requirement of relevance as a pre-requisite for admissibility is discussed in ch 5 above.
[86] Supra.
[87] S v Rautenbach 2014 (1) SACR 1 (GSJ) at [112].
[88] See for example, Giesecke & Devrient South Africa (Pty) Ltd 2012 (2) SA 137 (SCA).
[89] 1997 (1) SACR 542 (D).
[90] See also Hlongwane and Others v Rector, St Francis College, and Others 1989 (3) SA 318 (D).
[91] 1996 (4) SA 1073 (C).
[92] 1999 (4) SA 571 (W).
[93] At 390E.
[94] 1996 (1) SACR 639 (A).
[95] See Harksen v Attorney-General, Cape, and Others 1999 (1) SA 718 (C); De Lille and Another v Speaker of
the National Assembly 1998 (3) SA 430 (C). Cf Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA
494 (W).
[96] Supra at [50].
[97] Supra at [13].
[98] At [13]. See also Harksen v Attorney-General, Cape, and Others 1999 (1) SA 718 (C).
[99] See s 35(3)(i) of the Constitution. See also s 25(3)(d) of the Interim Constitution.
[100] At [16].
[101] At [16].
[102] At [23].
[103] At [24].
[104] See Ohio v Roberts 448 US 56 (1980).
[105] 2010 (2) SACR 233 (SCA).
[106] Cf S v Msimango and Another 2010 (1) SACR 544 (GSJ).
[107] 2014 (1) SACR 545 (CC).
[108] Mnyama v Gxalaba and Another 1990 (1) SA 650 (C). See also S v Mpofu 1993 (2) SACR 109 (N); Hewan v
Kourie NO and Another 1993 (3) SA 233 (T).
[109] 2000 (2) SACR 100 (D).
[110] See § 14 2 2 below.
[111] See § 14 2 below. See also S v Waldeck 2006 (2) SACR 120 (NC).
[112] Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T).
[113] Supra.
[114] S v Shaik and Others 2007 (1) SACR 142 (D).
[115] Supra.
[116] At [17].
[117] See S v Zimmerie en ’n Ander 1989 (3) SA 484 (C) 492F-H; S v Ramavhale 1996 (1) SACR 639 (A) 651c.
[118] See S v Ngwani 1990 (1) SACR 449 (N).
[119] At [18]. See S v Ndlovu and Another 1993 (2) SACR 69 (A) 73b.
[120] S v Ndhlovu and Others supra.
[121] 2006 (2) SACR 120 (NC).
[122] 2008 (3) SA 608 (CC); 2008 (2) SACR 76 (CC).
[123] At [42]. The court in coming to this conclusion overruled a contrary decision by the Supreme Court of Appeal
in S v Molimi and Another 2006 (2) SACR 8 (SCA).
[124] Giesecke & Devrient South Africa (Pty) Ltd 2012 (2) SA 137 (SCA).
[125] Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T).
[126] 1993 (3) SA 233 (T) at 239B.
Page 305
Chapter 14
A Selection of Common-Law Exceptions to the Hearsay
Rule: A Brief Perspective
P J Schwikkard
14 1
14 2
14 3
Common-Law Definition of Hearsay
Exceptions to the Hearsay Rule
14 2 1 Res gestae statements
14 2 1 1
Spontaneous statements
14 2 1 2
Composite acts
14 2 1 3
Declarations of state of mind
14 2 1 4
Declarations of physical sensations
14 2 2 Dying declarations
Remarks in Conclusion
14 1 Common-Law Definition of Hearsay
At common law hearsay evidence was defined as any statement other than one made by a
person while giving oral evidence in the proceedings, and presented as evidence of any fact
or opinion stated. [1] The purpose of tendering the statement was critical in determining
whether a statement was hearsay or not. As noted in Subramaniam v Public Prosecutor : [2]
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or
may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to
establish by evidence, not the truth of the statement, but the fact that it was made.”
14 2 Exceptions to the Hearsay Rule
|The difficulty with the common-law hearsay rule was that it led to the exclusion of relevant
and reliable evidence. [3] In an attempt to ameliorate this unfortunate consequence of the
application of the hearsay rule, a number of ad hoc exceptions developed. Although these
exceptions are now obsolete [4] they may still be considered as “any other factor” [5] that the
court may take into consideration in exercising its discretion to admit hearsay evidence in
the interests of justice. The more common of these are discussed in this chapter.
Page 306
14 2 1 Res gestae statements
The phrase res gestae does not lend itself to any meaningful translation. [6] Nevertheless,
this phrase developed a meaning in the law of evidence and is succinctly stated by Choo as
follows:
“[E]vidence of facts may be admissible as part of the res gestae if these facts are so closely connected
in time, place, and circumstances with some transaction which is at issue that they can be said to
form part of that transaction.” [7]
Various categories of res gestae evolved to facilitate the admission of hearsay evidence.
These included spontaneous statements, composite acts, and declarations of state of mind
and physical sensations.
14 2 1 1 Spontaneous statements
The reasoning behind the admission of spontaneous statements was that despite their
hearsay nature, they are the product of an instinctive response and therefore less likely to
be an invention or deliberate distortion. [8] In order for the statement to be regarded as
spontaneous it must be so closely linked to the event which gave rise to it that the presiding
officer is able to conclude that the “event” dominated the mind of the declarant at the time
of uttering the statement. [9]
An example is provided by the case of S v Tuge [10] in which the factual matrix before the
court included the following: a witness to a robbery wrote down the number of the robbers’
car on his hand as the car drove off, the robbers having robbed the occupants in the van in
which the witness was travelling. The witness transferred the number onto a piece of paper.
The witness had disappeared at the time of the trial and the prosecution called another
witness to hand the piece of paper bearing the registration number of the car into evidence.
Its admission into evidence was one of the grounds of appeal. The appeal court held “that
the act of writing down the number was, in all the circumstances, part of the res gestae
accompanying the events constituting the robbery . . . and was therefore admissible under
that exception to the hearsay rule”. [11] The court held that the following conditions needed
to exist for a res gestae statement to be admitted into evidence: (a) “the original speaker
must be shown to be unavailable as a witness”; [12] (b) “there must have been an occurrence
which produced a stress of nervous excitement”; [13] (c) the statement must have been
made whilst the stress was still “so operative on the speaker that his reflective powers may
be assumed to have been in abeyance”; [14] (d) “the statement must not amount to a
reconstruction of a past event”. [15] Williamson JA noted that it lay in the court’s discretion to
determine whether
Page 307
there was a sufficient degree of spontaneity, and the fact that a statement may be the
consequence of a question is not necessarily an indication of the absence of spontaneity.
[16]
An obvious difficulty with this exception is that it is precisely the stress and absence of
reflective powers that may make such “excited utterances” unreliable.
14 2 1 2 Composite acts
Where an act was accompanied by a hearsay statement, and the act could only be properly
evaluated as evidence if it was considered in conjunction with the statement, the statement
cou