EVIDE! Wemust develop the ability to apply principles of cases also to other parts ofthe work ‘The ease of S WN (mother doing washing and dagga was sold to the aceused) deals with trap and secondly with the felevance of evidence because they wanted to ell the mother of ‘the accused to testify. I you know the cas, the ease can be used as authority for other sections of ‘he work as well = should not be restricted only tothe specifi section ofthe work. ‘Also the ease of HoltzhiausenW/ROodE which deals with relevance and adrissibility can be used later dealing with expert and opinion evidence ‘Question — Discuss character evidence wit reference tothe case of SWPIRERSER, (Wor8 marks) ‘Similar fact evidence ~ lecturer fond of this topic _/ THELAW OF EVIDENCE AS PART OF ADJECTIVE AND Certain procedural rights and duties stem fiom the law of evidence for eg the right to Eg: motor vehicle accident and A sues B for damages ~ the plaintiff must prove negligence con te part ofthe defendant ‘The court will then order the defendant o ay the plaintiff say RSO 000,00 for damages. This sa delitul claim ~ substantive aw How do we give effect to substantive lav? Through the law of evidence by calling witnesses (oral evidence) and documentary evidence. ‘The law of evidence is required to give effect to substantive law, (Criminal law will deal with what s& crime, what are the requirements for murder, rape ete, evidence is required to give effect o substantive law. ‘Also with contact law in the ase of a dispute ina contrac, you will make us of evidence ‘The sight peculiar to the evidence isthe right to cross-examine ‘The law of evidence regulates the proof of facts within the process of litigation and adjudication. ‘The law of evidence have to be distinguished from substantive law which regulates the rights, it will render what was averred by the prosecution less probable, thus that it was not true. Itis strictly elevant othe issue. For eg: if is alleged that the accused is «rapist, then the accused can call upon hie friend to testify about his good character. There are a number of ways in which the accused can lead evidence of his own good ‘haracter, namely (2) By testifying himself, (©) By calling witnesses to testify as to his good character (this happens afer conviction for mitigation ofthe sentence) (©) By eross-examining prosecution witnesses. However, once the accused himself, or by calling witnesses, leads evidence of his own good character, the prosecution can respond by introducing evidence of ster EVIDENCE OF THE ACCUSED’S BAD CHARACTER (General Principe: ‘The prosecution is prohibited fiom leading evidence of the accused's bad character, subject to certain specifi exceptions. Rationale: ‘Based on Emglish aw Such evidence might have a disproportionately prejudicial effect on the jury and is 9therefore generally considered tobe Irrelevant. ‘This foms the bass for this rule in SA law Exceptions ‘Where the accused has fed evidence as to his own good character the prosecution may respond by introducing evidence of his bad character, in three different ways (@) By adducing evidence of his bad reputation, (©) By cross-examining character witnesses, or (©) By cross-examining the accused However if x attacks character prosecution witness & does not adduce evidence- his own 00d character tations of state evidenc ‘Where the prosecution calls witnesses to testify as tothe accused’s bad character, they may ‘only state what they know about the accused's general reputation ‘The prosecution is also restricted by the rule against similar fact evidence which prohibits {evidence wire the accused inthe past behaved inthe same manner asthe resent. Where the accused attacks the character of prosecution (stats) witnesss but does not adduce evidence of his own good character, the prosecution may not addice evidence of the aceused's bad character. Inthese ircumstances the prosecution will be limited to cross-examining the accused as to ‘character in terms of s 197(a) CPA. In LY BUTTERWASSER the court held thatthe eross-examinaton by the defence of the prosecution witnesses as to their previous convictions (attack on character, did mot permit the prosecution to call a police officer 1o testify as to the previous convietions of the accused. Deals only with previous convictions (not with general reputation of accused) ‘The general rule is that an accused may not be questions convietions or charzes other than the offence with which he is charged, or about _haracter. +The reason for this is because every ease must be based on its own merits ‘Whea will the previous eonvietions ofan accused be introduced into the evar record? During bail applications and after conviction just before sentencing, (previous convictions contained in SAP 69, wll be read and accused will be asked whether he sdmits or denies previous convictions) However, s 197(a)-4d) of the CPA provides for certsn exceptions |. SECTION 19742) OF THE CPA ‘The accused wil lose the protection ofs 197 if 20 ieee aes@ © He adduces evidence of his own good character ito $197(a) ‘This confirms the eommon law rule However, $197(a) goes 1 common law rule ‘The meaning of good character is not restricted to general reputation (it wil also include his disposition, the way he ats and thinks) ‘Once an accused has pat his character in issue his whole char subject to eross-examination er willbe oni Heat ctr: jon wi ‘This may be done in one of two ways (a) By the aceused’s testimony (b) Through the eross-examination of prosecution witnesses Ifthe accused attacks the character of a prosecution witness, his whole character will then be subject to eross-examination English law This exception applies even where the imputations as to the character of prosecution witnesses is a necessary par of the accused's defence ‘This postion has not readily been accepted by South African cours SECTION 197(b) OF THE CPA (NB!) (nvolves a situation where thre is more than one accused. If accused no 1 testifies against the other accused ~ can also testy against an accused ina different offence with the same facts) ‘The secused wil lose the protection of S197 if he testifies against any other person charged with the same offence or an offence in respect of thesame facts ‘What does ‘against’ mean in this instance? In MUrdoghvTavlor the court held that evidence against a co-accused means cvidence which supports the prosecution's case in a material aspect or which ‘undermines the defence ofthe co-accused. Hoffman & Zeffertsises that if an accused merely denies that he took part in @ joimt venture docs not constitute giving evidence against « co-acased, unless he implies thatthe co-accused id take part in the venture, * Pietersen and 3 other co-accused wore charged with murder, robbery with ‘aggravating circumstances and the unlawful possession of arms and ‘ammunition, ‘Accused no 1 then testified against accused no 3 and counsel for accused 3 then ‘evoked $197(b) of the CPA by cross-examining accused no 1 as 10 his previous ‘murder convictions Counsel's questioning went beyond that of conviction, he questioned the accused about the details of the previous murders, in particular wheter he falsely {implicated others in te previous tral ‘Counsel for accused ne 1 objected to the questioning and contented hat it would as“Ns be prejudicial to his client and infringed upon his clients constitution right to @ fair il. ‘Dhecourt held: That when an accused testifies against a co-sccused, he loses his pretection under $197 of the CPA and therefore he may be asked questions about his previous convictions. ‘The court hed thet the court has a diseretion to limit and control the ambit of ‘The eross-examination under 197(b) (not the details ofthe previous convictions”) ‘This discretion must be exercised in the light of principles governing relevance. ‘The cross-examination must be relevant tothe issue of eredibility, and it must not prejudice the accused being cross-examined inthe conduct of his defence to the extent that his right toa far tral is undermined, ‘The court held that although the accused lost his protection ito S197(b) in the sense that he ean now be asked questions about his previous convictens, he still had the protection of an ordinary witness tothe right to far tril. ‘Question in exam — Discuss $197(b) with reference to S v Pistersen ($204 witness — in terms of $204 ofthe CPA, the prosecution can makes a deal with the co-perpetrtor that ithe testifies against the aceused andthe cour is Satisfied thet he answered all the questions put to him honestly and frankly, he willbe indemnified against prosecution) Nu s cra If the accused is charged with recelving stolen property, the socused may be ‘qusstioned in respect of previous convictions and his bad character (for eg accused may say that he picked up a ag with the stolen goods) ‘This is also dealt with in $240 and S241 ofthe CPA and S37 of the General Law Amendment Act ‘These sections provide that if'an accused is charged with receiving solen| property, then he may be questioned in respoct of a previous charge oF conviction here he was also found in postssion of stolen property, inorder to ‘Prove that he knew thatthe property was stolen. SECTION 197(@) OF THE CPA ‘The accused may be cross-examined as to previous convictions ifthe purpose of such evidence isto show that he is guilty of the offence with which be is charged ‘Mavaso was caught with dagga in his mouth and he argued that he does mot know how dages smell, However, he also had a previous conviction of posession of dagea The court was thus allowed to question the accused abou his previous conviction in order to prove that he fs guilty ofthe offence with which he was charged SIVBANUARY (read on your own) S211 OF THE CPA BEN 0 on toe go tnt le |S211 of the CPA provides tat evidence regarding the previous convictions ofan accused is ot admissible, unless the accused himself testifes shout is own previous convictions S2IT is also subject othe similar fact ale S211 docs therefore not prevent an sccused from testifying as to his own previous convictions ‘0g. To support a defence based on alibi (eg I could not have commited the oifence because 1 ‘was convicted and served a sentence) ‘This section dels with eharacter evidence ofthe complainant The party calling the witness may not adduce evidence as tothe witnesses good character, tunles the witnesses’ credibility has been impeached by evidence that he'she has a bad reputation a witness disputes an allegation that he’she has a reputation for untruthfulness, the ‘opposition may call a witnes to testify from his/her knowledge ofthe witness's reputation that he'she would not believe the later under oath Ifthe complainant ins criminal case testifies, helshe may be cross-examine! and the cross examiner may ask questions concerning the complainant's credibility. (to prove the person cannot he believed) However, the character or disposition of the complainant is not relevant to credibility The eros-examiner may’ aot ask questions which is solely directed at showng the good or bad character ofthe complainant. ‘The general principle in terms of common law in cases involving a charge of rape or deen asa thence may aldce evidence a 1 the somplanans bad enaaion for lack of chastity (chastity means not having sexual interourse or only having sexual inteteourse with the person you are married to) S227 CPA PRIOR TO 1989 The admissibility of evidence as to the character ‘of any female’ in sexusl offence cases ‘would be determined by the common law. According to the common Iaw, the accused was allowed to question the complainant's ‘scaual_relations with the accused, but the accused may not lead evidence of the ‘complainant's sexual relations with other men. ‘The complainant can however be erose-examined on this aspect. (Criticism of the common law postion: T. Cross-examination concerning prior sexual history traumatised and humiliates the‘The evidence it elicit is irrelevant and at most establishes a general propensity to have sexual intercourse 3. Evidence of this nature is held to be inadmissible in other eases and there are no ‘grounds for admitting it where the cae is ofa sexual nature 4. The possibility of such crose-examination deters the vietim from reporting the offence ‘SECTION 227 CPA AFTER 1989 (NB! ‘$227 was amended by S2 of the Criminal Law and Criminal Procedure Amendment Act 39.0 1989, ‘The original provisions were retained and three subsections were added sma) The defence will only be allowed to ask questions about the previous sexual history of the complainant with the leave ofthe court. ‘The cour will only grant such leave ifthe court is satisfied that such evidence or question is relevant, in other words wil it agsst the court in determining the issue sa ‘An application to lead such evidence must be made in eamera, ‘This means that oaly the parties with an interest i the case is allowed sx These provisions are now applicable to complainants irrespective of gender ‘The amendment did not change the postion wth regard to the complainant's prior sexual history withthe aceused. ‘The accused was sil allowed 10 question the complainant's sexual relations with the accused iti Schwikkar: ‘The wide discretion conferred upon judicial officers undermines the purpose of the amendment 1989 ‘A father was charged with the rape of his 6 year old daughter and was comcted, (On appeal (when daughter was 13) the father applied to court to lead evidence of two witnesses showing that the vietim had sexual experiences with other men. ‘The one witness would testify that the complainant had sexual intercourse with him snd the other witness would testify thatthe complainant admitted to being influenced by her ‘mother to incriminate the accused, ‘The court had to decide whether to allow evidence of the sexual history of the complainant. ‘The court held that the purpose of $227(2) of the CPA was to protect the complainant fiom an attack aimed solely on discrediting hin her. If, however, he sexual experiences of the complainant i relevant to an issue inthe trial, it ansay be admitted ‘The cour refered to the SA Law Commission's draft amendment of S227@) and held that 4 court will grant an application to adduce evidence or to put questions about previous sexual experiences of « complainant if the court is satisfied that such evidence or {questioning (Ge) telates to specific instance of sexual activity relevant ta fact in issue (©) is ikely to rebut evidence previously adduced by the prosecution {©} is ikely to explain the presence of semen or the source ofa pregnancy or disease or any injury to the complainant where its relevant toa fact in issue (@) is not substntally outweighed by its potential prejudice to the complainant's personal dignity and right to privacy (2) _\sfandamental tothe accused's defence ‘The court held that the prior sexual experiences ofthe accused was relevant othe issue in the trial and was thus admissible. (NB) ‘The accused was eonvieted of the rape ofa 14 year ol. On appeal the accused wanted o lead evidence of witnesses who would testify that they were old by the complainant, subsequent to the rape, thatthe accused dié not rape her. tnd that she wanted to withdraw the ease but was prevented from doing so by her mother Further investigations by the accused revealed that she was involved in 2 otker rape cases. Inthe one case the acused was found not guilty and inthe other case she withdrew the case saying tha she had consensual intercourse with the accused. ‘The accused argues thatthe history and the conduct ofthe complainant was important in his cas, because subsequent to his conviction she was involved in two other rape eases. ‘The court held that although there were dangers in a cout having regard to wat happened in subsequent cases in which a complainant sas involved and in which the Pandora’s box of collateral issues could be opened by doing so thete was no absolute bar to doing so. Just as similar fact evidence is admissible agzinst an accused only in narrowly circumscribed circumstances, so should ‘similar fact” evidence of the proclivity of a complainant to give untrue evidence be admissible in narrowly circumscribed The court should thus only take such evidence into consideration ifthe complainant has 2 tendency to falsely implicate an accused The accused was charged with rape. At the end ofthe complainants evidence in chief the state applied ito $227} ofthe CPA to ‘ask questions conceming the last time the complainant had sexual intereouse with a man, An application was then made by the defence ito $227(2) of the CPA to ercss examine the ‘complainant on her past sexual history and also to lead evidence in connection therewith. The defence contended thatthe testimony ofthe complainant that she would not have sexual intercourse without a condom knowing that she was HIV positive, could only be tested by asking questions about her sexual history, in other words from the date wien she became Aware of her HIV statu, ‘The court allowed the questioning and evidence of the complainant's past sexual history a5for doing so was not to show that she misbehaved with other men, ‘but was aimed at showing misconduct inthe sense that she also accused men falsely inthe past. ‘The cross-examination and evidence were relevant 10 the issue of consent, motive and redibilits, Ie was aimed atthe investigation ofthe real Issues in this matter and was fundamental to the ‘defence ofthe accused. ‘SEXUAL OFFENCES ACT 32 OF 2007 ‘This act amended S227 of the CPA ‘$58 ofthe Sexual Offences Act provides that if there iss previous consistent statement by the complainant in criminal proceedings, the court may not draw an inference from the bsence of such previous consistent statements. In a rape ease the previous consistent statements are admissible. (what is rfered to as the fist report) Usually previous consistent statements are inadmissible, but in sexual offences itis admissible ‘The court may however not draw an inference if there is no previous consistent statements. If theres no previous consistent statement, then it cannot count against the victim. 59 of the Sexual Offences Act provide that the court may not draw an inference from the delay between the actual offence occurring and the reporting thereof. or eg: Ifa person is raped in 2009 and the person only lays a charge in 2022, then the cout ‘may not draw an inference from the delay in reporting the incident and the actual offence ccurring $60 ofthe Sexual Offences Act (Relates to the cautionary rule -the cautionary rule sates thatthe court should treet the evidence ofa single witness in asexual offence with caution) ‘S60 of the Sexual Offences Act provides thatthe court should not treat the testimony of & victim with eaution gnly because the charge ie of asexual nature. (NB! if we are given a scenario and the scenario states tha the court ss drawing the Inference because the nature of the offence is sexual, then this is wrong, Interns of S60 & court may not apply the cautionary rule omly because itis asexual offence Must know S227 with Sv M,S v Wilmot and S ¥ Zama and S197 in onder (0 obtain a conviction on «charge of erimen iniura, the prosecsion must prove Insult tothe complainant's dignity Evidence that shows thatthe complainant was not the type of person who would have been insulted inthe circumstances will he regarded as relevant General Principle as seeeeweeeew ewe ewe ew eee ee |‘The characters ofthe partes in evil cases are generally considered tobe Irrelevant Exceptions ‘There are exceptions where evidence relating to the character of a party may be relevant to sn issue or in quantifying damages For eg: In an case of seduction Otner exceptions: Parties as witnesses may be cross-examined as to credit and in some circumstances character ‘evidence willbe considered to be relevant to eredibilt (Character evidence may be admitted in terms ofthe similar fact rule. EST ONE 'SIMILARIEACDEVIDENGE: (This i «specific pat of character evidence.) ‘Similar fact evidence is evidence that 2 party to the proceedings (accused, complainant, plaintiff or defendant) have behaved previously in the same way as he is alleged to have ‘behaved inthe matter presently being considered hy the cour. xe ‘The case of established the similar fact evidence rule. Mr & Mrs Makin were charged with the murder ofa child who's body was found buried in the garden oftheir home. ‘They fostered the child for maintenance money. ‘The state then wanted to introduce evidence of murders of 4 other children also found buried in gardens where they previously resided ‘The Issue was whether the court should allow the admissibility of similar fact evidence previously to prove the guilt ofthe accused inthe present matte. ‘The court held thatthe evidence should be admitted because it had # relevant probative purpose to negative the possiblity thatthe child's death resulted from accent or natural [twas mot admitted to show thatthe accused had a propensity to kill babies ‘only:to establish propensity. — ey e..¢, =) In this case the accused was charged with sodomy and in his possesson was found pornographic photographs and books. ‘hat the similar fact evidence was inadmissible unless there was connection between the photographs and books and the netions of the accused. Similar fact evidence is usually used against che accused by the prosecution However, i an also be used by the accused in his/her defence In this case the accused made an application to court to Iead evidence about the sexual history of the complainant subsequent to his conviction. This case illustrates that itis not only the prosecution that can apply to lead similar fact evidence, but also the accused in his/her defence. oFADMISSIBILITY: Similar fact evidence is generally inadmissible, because itis irrelevant. twill only be admissible i tis logically and legally relevant as determined inthe ease of RyPharengue RY PHARENOUE ‘The accused was a stlesman who was charged with theft by false pretences in that he ‘unruly made representations and obtained cash deposits and goods in respect of orders ‘booked by him and not fulfilled. ‘The fasue was whether evidence of his previous convictions for fraud by false pretences should be admitted, as he was convicted ofthese offences some time ago. ‘The court held that the evidence should be admitted because it was logically and legally relevant imexpoctve ofthe time period, ‘This general principle applies to both civil and eriminal cases. ee inthis case the plaintiff was a pig farmer and he alleged that his pigs died as a result of tng contaminated foodstuffs supplied by the defendant He then wanted to lead evidence from other pig farmers wis also suffered similar losses fer using the defendant's foodstus, ‘Thecourt had: ‘The cour held thatthe evidence was irrelevant because it Jacked sufficient similarity. ‘The evidence did not establish thatthe foodstuffs were bought during the same period that the plaintiff purchased it Nor did it indicate thatthe pigs had become il within the same time of eating it, or that the ‘conditions on the farms were similar. ‘The respondent distributed watches called "Homegas” ‘The appellant who was the manufacturer of “Omega” watches applied to court to allow evidence thatthe respondent sold watches previously where they scratched off the letters HT” and “3” to pase it off as genuine omepa watches. ‘The court held that in evil eases the courts will admit similar fact evidence if itis Vogially ‘and legally relevant in determining the matter which is in Issue, proviced that it isnot ‘pprestive oF unfair to the other side, and that the other side had falr notice of it and was abl to deal with it The similar fact evidence was admissible to prove that the respondent commited the wrong of passing off and that t did mot respect trade marks. However, according to LAWSA courts ar less strict onthe admissibility of similar facts in civil eases, because the potential prejudice to the defendant is less Similar fact evidence is generally irrelevant, because its prejudicial effeet outweighs its probative value —(e) Similar fact evidence may prejudice the accused Similar fact evidence may undermine the presumption of inocenc. 2s~ (b) Similar fac evidence may result in procedural inconvenience May lead nto an vestigation into collateral issues which makes the wl more costly and places additional demands on judicial resources — (© Similar fact evidence may undermine the proper administration of justice Police may be tempted to focus on past offenders Way discourage rehabilitation te formulation of «rule for determining the admis ce ‘is section snot preserbod for evaluation purposes) {@) The formulation in Makin v Attorney General for New South Wales Similar fact evidence will be excluded if the court is asked to conclude that the scoused is guilty cause he/she has a propensity to actin particular way “at there is some relevant, probative purpose or it other than ted form of reasoning ...but when it is received, the ter of fact must eschew avoid) the forbidden reasonin ‘The inadequacies ofthe Makin formulation The Makin formulation fails to explain certain cases—thereare = numberof cases where propensity i sufficient to allow similar fact evidences in the case of R'V STRAFFEN, In this ease the accused was charged murder of «young female ‘The state then led evidence about two other girls who were also murdered by the accused ‘The accused was charged withthe murder of the two girls but was found unfit to plea onthe ground of insanity and commited to aniston He then escaped and during this period the murder in the present case took place [ATL the victims were strangled and none of them were sexually interfered with, ‘Ther was no motive forthe crimes and it was also possible othe scene to hide the bodies, ut no such attempts were made. ‘The evidence indicted that the accused had the propensity to_commit The feategorizat The Makin formulation indicated that similar fact evidence was only allowed in certain cates where identity was anise and where it was ‘sexual offence (©) Hoffman & Zeffert’s formulation ‘The Makin formulation can be amended by adding the following proviso to the formula. “Evidence which proves only disposition will be admissible if, on the facts of the ‘ase it isa disposition whichis highly relevant to an issu in it a4Furthermore, there must bea nexus(link) betwoen the two sets of fats, otherwise no inference can be drawn ‘There must bea link between the fact in issue and the similar fact evidence on the previous occasion. (©) The formulation in DPP » Boardman Boardman was & headmaster of a school and was charged with committing homosexual offences with his pupils(wo boys,16[S] & 17(H] years cage) Evidence in both eases was admissible Both pupils testified but there was no striking similarity between the two incidents ‘The cour ld thatthe fact that both boys testified thatthe principle layed & passive role and the unlikelihood that they would both lic, was sufficient to Suggest thatthe similarity between the two incidents went bevond mere soincidence ‘Court provided that for evidence to be admis eit must be uniquely similar. General Principle: The probative value and the admissibility of similar fact evidence will depend greatly on the degree of similarity between a person's conduct on other occasions and on the ‘occasion whichis the subject ofthe courts inquiry ‘In this ease the court held that before similar fact evidence is admissible, the similarity of ‘conitions applicable in each case has tobe satisfactorily established, ‘The court hed tat the evidence was irrelevant because it lacked sufficient similarity The evidence did not establish that the foodstuls were bought during the same time period thatthe plaintiff purchased it Nor dia it indicate that the pigs had become il within the same time of eating it, or that the conditions on the farms were simi However, the roqurement of similarity should not be overemphasized 1, The degree of similarity ‘The novessury degree of similarity will depend on the clreumstance ofeach case [A igh degree of similarity wil be required in cases where the simi fact ‘evidence forms a large part of the prosecution's case Where there is other evidence supporting the prosecution's ease, the degree of similarity required is lower. 2 They incidence the mistake was made in several eases by ‘our cours that for similar fact evidence to have probative value the ‘ceasions most be “‘aniguely strikingly similar’ 30‘The writer McEwan points out that this was not intended in the case of DBP W" ‘Boardman The writer maintains thatthe test should rather be ‘explained away as coincidence’ nether the evidence cam be ‘The accused was a medical practitioner who was convicted of unlawfully using instruments on the woman withthe intent todo an abortion. ‘The court admitted the evidence of another woman who testified thatthe accused also performed # similar operation on her previously [Both woman were a the material mes living with the accused at his aouse and were pregnant by him. ‘The question was whether the evidence can be explained away as coincidence. ‘The court held: ‘That the evidence could not be explained away as an accident given the fact that the cused wis a man with apparent expertise in abortion. RV SMITH | ‘The accused was charged with the murder of his wife who was found dead in the bath The accused stood to benefit financially from her lite policy. His defence was that her death was due to an epleetc fit. Evidence was given that two other women who were subsequently married to ‘the accused also died in similar circumstances, and in these cases the accused also stood to benefit financially. ‘The court held: ‘That the oceurrence of so many acckdents which benefited the accused could not be explained © ‘The similar fact argument in smith can be summarised as follows: “Either all 3 deaths were accidental, or ese the accused was responsible foreach of them. The Jmprobabilty of coincidence may therefore often establish the require link: 3 Caselaw Ry Pharengue Omega, Louls Brand et Frere SA v African Textil Distributors Laubscher ¥ National Food Lid Sv Wilmot Ry Zama Ano refer to the above cases and state how similar fact evidence was applied in these cases ‘General Principle ‘The relevance of similar fact evidence must be assessed in the ight ofthe isues to be decided [entifying the issues in criminal cases The prosecution may not introduce similar fact evidence merely on the basis that it might 3I‘conceivably be relevant “The issues must have been raised in substance S v Yengeni and Others 1991 (1) SACR 322 (C) Sv Yengeni and Others 1991 (2) SACR 322(C) (OTHER EVIDENCE AVAILABLE TO THE COURT General Principle The relevance of similar fact evidence must also be assessed in the light of other evidence available to the cour. Rv Ball. Fata (facts in issue) Facts thats party must prove in order to succeed Facta probands is determined by substantive law l¢may be reduced by formal admissions. For eg: if patemity is in iste, the question is whether the accused the father of the child Fata (acts relevant tothe f ue These are the facts which tend to prove or disprove the fats in issue Facta probantia is determined by procedural law For ef: if paterity is in issue, the question is did the partes have sex QUESTION? ‘Jurors are the sole finders of fact in our system we do not have a jury system, the presiding officer i the sole finder of fast “Assessors are still used in our courts and where thee ate assessors involved they also rake findings on the facts of the case. Jurors are not required to give reasons for their verdict. In our system judges must give reasons for their verdiet, and where there are involved, they must also give reasons for ther verdict. ‘Where assessors disagree withthe presiding officer, they must give reasons in a separate Judgment Assessors sre under constant judicial guidance his is not the case with jurors Sessa ene ae ‘The tril procecded before a magistrate siting with 2 assessors ‘The court was thus constituted i tems of $83ter of the Magistrates Court Act The accused was convicted on the evidence of a single witness. ‘The magistrate warned that his evidence should be treated with extreme ceution, ‘The assessors were of the view that despite the discrepancies in his evidence they were aninclined to accept his version. ‘The presiding officer disagreed however the accused was convieted asthe presiding officer was inthe minority when there are as The object ofthe provisions in S98ter of the Magistrates Court Act vas to bridge the cultural gap betwooa the magistrates and the uneducated and not so Intelligent accused persons who appear before him. “The presiding magistrate must give direction to the assessors how to analyse the ‘evidence andthe direction must form part ofthe trial record tis not enough thatthe presiding magistrate state a specific rule of evidence to the assessors, he must explain the reason behind the rule. 4. Thejudgment should reflest whether the views expressed as tothe acceptability ofthe evidence are the unanimous views ofthe members ofthe cour. Where an assessor has specific knowledge of custom or habit of a commanity nd such knowledge has affected the assessor's conclusion, he must inform the Court ofthis knowledge and this must form part ofthe record, 6. The court must give reasons for its decision and where there is lssent by any rember of the cout, reasons must also be given. ‘The court held thatthe view of the majority ofthe court was Incorrect and the conviction and sentence wat set aside. ‘What is the difference between in the ower courts and assessors in the High Cou inthe lower courts the assessors can be Iay persons whereas in the High Court the assessors must have knowledge of evidence and experience in criminal procedure and the ‘deliberation of evidence. EE 3 ‘S93 ofthe Magistrates Court Act 32 of 1944 was amended by the Amendment Act 118 (01991 which came into force on 1 March 1992 Tn terms of the above Acta presiding officer has a discretion to appoint assessors in the lower courts, except in murder trials In the lower courts the assessors can be Jay persons whereas in the High Court the assessors must have knowledge of evidence and experience in criminal precedure and she deliberation of evidence. ‘in SWGAMBUSHE the appesl court criticised the appointment and procedure of assessors snd laid down the erin rules In this case the nocused was convicted on two counts of murder. ‘The trial proceeded before a magistrate sitting with 2 assessors ‘The cour was thus constituted in terms of S9Ber of the Magistrates Court Act ‘The accused was convicted on the evidence o a singe witness. a5“The magistrate warned that is evidence should be treated with extreme caution. ‘The assessors were of the view that despite the discrepancles in his evidence they were Inclined to accept his version. ‘The presiding officer disagreed hoviever the accused was convicted asthe residing officer swas in the minority. ‘On appeal the court hel: J. The object of the provisions in S93ter of the Magistrates Court Act was to bridge the cultural gap betwoen the magistrates andthe uneducated and not so {intelligent accused persons wino appear before him. 2 The presiding officer must give direction tothe assessors how to analyse the ‘evidence and the direction must form part ofthe tral record. 3, isnot enough that the presiding magistrate state a specific rule of evidence to the assessors, he must explain the reason behind the rule other 4. Thejudgment should reflect whether the views expressed as tothe acceptability of each material aspect of the evidence were the unanimous views ofthe members ofthe cour ‘Where an assessor has specific knowledge of s custom or habit ofa community nd such knowledge has affected the assessor's conclusion, he must inform the ‘Court ofthis knowledge and tis must form part of the record, 6. The court must give reasons for its decision and where there is dssent by any member ofthe court, reasons must also be given. “The court held thatthe view of the majority ofthe court was incorrect and the convietion and sentence was set aside. “QUESTION 4 Substantive law provides for rights and duties ‘Adjective law provides procedural mechanisms whereby those rights and duties are enforced (law of evidence forms part of adjective law) However adjective law also sometimes provides for rights a Fores: The right to call and cross-examine witnesses duties ‘Substantive law sometimes has an evidential effect Eareg:Irrebuttable Presumptions, Estoppel, Paral Evidence Generally Roman-Dutch law is seen as our common law However English law serves a the common law for the Law of Evidence ‘The significance of the distinction between substantive and adjective law was illustrated in the cate of In this case the facta probanda was the validity of a will Te cour had to decide whether it was going to look at Roman Duteh law or English law of ‘evidence. 3HIf the court applies the Roman Dutch law (substantive law) the burden of proof ison the plaintiff because there is a presumption in RD law that ia will was drafted i was accepted ‘that onthe face of the wil it was regular and that it should be accepted. the court applies English law of evidence (adjective law), then the burden of proof is on the defendant to prove the testamentary capacity of the testator. The court held thatthe substantive law was applicable inthis case and the burden of proof was onthe plaintiff, Therefore whichever system of law you apply, it will have an impact on the burden of proof. QUESTION 5 S42 of the CPEA provides thatthe law of evidence which was in force in respect of civil proceedings on 30 May 1961, shall apply in any ease not provided for in the CPEA or any other SA legislation. 5227 ofthe CPA also still refers to the law a it stood on 30" May 1961. ‘Thote are two instances where our courts have moved away from the binding effect of the “30 May 1961" provision, namely: (0) Iminstances where English decisions were considered to be inorrect The case of YAN DER LINDE VCALITZ dealt with a decision based on English aw. The issue was how to deal with Ministerial objection from the exceative English law provided that sf Ministenal objection was done in proper form was binding and final. ‘The Appellate Division was bound to follow the English decision in terms of the eae corres nnshe aaet reir eran sta! ‘se ROBINSON V“THP STATE OP SOUIH AUSTRALIA were it vas held ‘hat although a court must accept « ministerial objection, it was pot final and binding, ‘The Appellant Division ths deviated from the English law decision and held thatthe English decision was incorrect. lays down the principle that a SA court may dev ‘an English decision ifthe English decision does not correctly apply the English law In 1969 however the General Law Amendment Act was enacted which ousted the jurisdiction of the courts and the decision in Vam der Linde y Calitz was allied, (©) Instances where English law i incompatible with South African law or a rule ofpractics in such cases, the English law may be rejected In SWEWANE, [wane was charged with murder. He was involved in an incident where 2 people died A few days afer the incident L and his co-perpeator H had a disagreement snd [wane was shot and he instituted criminal proceedings. During the preparatory examination he tested against the co-acused and in an 35Affidavit he confessed that he was part ofthe murder. ‘A ial within il was held and the court accepted the evidence as admissible. LLwane was however never informed of his right against sel-incrimination. ‘The court hel ‘The court held thet there isa general rule of practice in our cours interms of ‘which a judicial officer has a duty to inform a witness in criminal proceedings ‘that he is not obliged to give evidence which might heve a tendency © expose ‘him to a criminal charge. ‘This rule is hovever not part of English law or practice ‘This duty arses whenever it appears that a witness might well be about to give such evidence, whether or nota specific question has been directed thereto. {A fallure to inform a witness of this right would amount to an irregularity ‘This case illustrates that we can depart from 30 May 1961 provisions if the English law principles is incompatible with SA law or a rule of practice * QUESTION 6 In S V-NEL, the accused applied to call « psychiatrist to testify that her mother who was called to testify on her behalf was moderately and midy retarded and likely to become ‘uncommuniative when subjected tothe stain of testifying in court ‘The court had to decide whether the evidence ofthe witness was relevant, ‘The court held: ‘An expert opinion is admissible to furnish the court with sclenific infermation which ‘would he of assistance t the court, fit is gutside the knowledge and experience of the sour, ‘The admission of psychiatic evidence to determine the intelligence ofa witness mey lead to the investigation of collateral issues. ‘The court held that a disability of a relatively normal kind which affsts personality, powers of exposition, articulation and ability to recall are capable of being assessed reasonably adequately while the witness is giving evidence. ‘The court held thatthe possible advantages of expert evidence must be weighed up against the cost ofthe additional and inessential assistance which would prolong the tral. “The court held that the costs of calling an expert is likely to excéed by far the probative value ofthe evidence ‘The evidence was thus inadmissible. NBL: Two other cases which also deals with relevance is $v Shabala and Rv Trupedo (the relevance ofthe evidence ofthe dogs) You could be asked to discuss all the eases, ‘QUESTION 7 1. First state general rule in $227 2. Then exceptions 3. Then state S107 of the CPA which deals with previous conviction, The general rule in terms of $227(1) of the CPA is thatthe accused may lad evidence of his own good character, but the prosecution is prohibited from leading(adducing) evidence of his bad character, subject to specified exceptions.‘The accused can lead evidence of his own good character by (@) testifying himself () by calling witnesses to testify as to his good character (©) _bycrose-examining prosecution witnesses Exceptions: ‘Where the accused has led evidence of his own good character the prosecution may respond. in 3 different ways: (@) by adducing evidence of his had repution (b) by cross-examining character witnesses of the accused (6) by crossexamining the accused S197 of the CPA provides that an accused may ot be asked questions shout previous ‘convictions or charges other than the offence with which he is charged, o: about his bad ‘character. ‘The reason fo his is because ench ease is based on its own merit However $197(a)-(d) provides for certain exeeptions '$197(a) of the CPA provides that the accused will lose the protection of $197 if {@) Headduees evidence of his own good character ‘This confirms the common law rule, however this section goos beyond the common law rule The meaning of good character is not restricted to general reputation but also his disposition (&) Heattacks the character of a prosecution witness S197(b) of the CPA provides that an accused will lose the protection of SIS7 ihe testifies ‘against any other person charged with the same offence(co-accused) o- an offence in respect ofthe same facts. ‘SV PIETERSEN Pietersen and 3 other co-accused were charged with murder, robbery with aggravating circumstances and the unlawful possession of arms and ammunition. Accused no 1 then testified against accused no 3 and counsel for accused 3 then evoked '197(b) ofthe CPA by cross-examining accused no 1 aso his previous murder convictions. CCounse's questioning went bevond that of conviction, he questioned the acused about the details of the previous murder, in particular whether he falsely implicated others. in the previous trial Counsel for accused no 1 objected to the questioning and contented that it ‘Would be prejudicial to his client and infkinged upon his client's constitution right to a fair trial ‘The court held: ‘That when an accused testifies against 2 co-accused, he loses his protection under S197 of the CPA and therefore he may be asked! questions about hisprevious convictions. The court held thatthe court has a discretion to Himit and control the ambit of the eross- xamination under $197(b) (not the deals ofthe previous convictions?) This discretion must be exerised in the light of principles governing relevance. ‘The eros-examination must be relevant othe issue of eredibility, and must not prejudice the aceused being cross-examined in the conduct of his defence tothe ‘tent that his right to afar trial is undermined, ‘The court hed that although the accused lost his protection ito $197(b) inthe sense that Ine ean now be asked questions about his previous convictions, he stil had the proteetion 34of an ordinary witness to the right 0 fair tia ‘S197 ofthe CPA provides that if the accuse is charged with receiving stolen property, the accused may be questioned in respect of previous convictions and his bad character This is also dealt with in $240 and S241 of the CPA and S37-of the General Law Amendment Act ‘These sections provide that if an accused i charge with receiving stolen property, then Ihe may be questioned in espoct ofa previous charge or conviction where hz was also ‘ound in possession of stolen property, inorder to prove that he knew that the property was stolen, Section 197(@) of the CPA ‘The accused may be cross-examined as to previous convictions ifthe purpose of such evidence isto show that he is guilty ofthe offence with which he is charged. SVMAVUSO ‘Mavuso was caught with dagga in his mouth and he argued that he did not krow how SV-ZUMA (expert relied on complainant’s version) ‘in this case a clinical paychologist of the sate testified that she consulted with the complainant 3 months aftr the incident. She wat of the opinion that due to the unexpestedness of the attack, the fact that she was ‘woken from her seep and the fict that she regarded the accused asa father figure, led het to freee rather than offer resistance — According to the expert this was atypical response under the circumstances. ~ Also, her distress and failure to seek help immediately afterwards were expected of ‘someone who lsd undergone this kind of traumatic experience. Under eross-examinaion it was established thatthe expert was unaware thatthe complainant tended sessions ata mental hospital and of the previous allegations of rape. =The expert did not regard this as relevant and also did not conduet ary tests on the complainant. The defence called their own clinical psychologist who was eritical of the short ‘consultations carried out by the state psychologist and her lack of enquiry into the ‘complainants sexual background. She conceded that 10% of woman froze during rape, however this could not be determined inthis case due to lack of detail andthe absence of psychometictesting, _-She also questioned the state psychologists conclusions regarding post traumatic stress disorder since the latter did not investigate the varios allegations of rape by the complainant The court rejected the evidence of the state psychologist saying that se reached her conclusions without making full enquiries of the complainant and without psychometric testing Her evidence could thus not be relied upon to conclude thatthe complainant froze during —Zama’s case indicates that if the expert opinion is inconsistent with the facts, it will be sxsluded, “» Amexpert witness should remain neutral and objective 46Even though helshe i called by a party to support that party's case Also, an experts opinion eanmot be aceeptd if counsel puts his own interpretation to the expert witness. ‘exper OPINION AND HEARSAY ‘An expert may not base his opinion on statements made by persons not called as witnesses (hearsay), wih the exception of text hooks in certain instances ‘Textbooks? Where an exper refers to a text hook writen by someone whois not calleé asa witnes it amounts to hearsay. ‘Ths wil be allowed if certain conditions are metas confirmed inthe case ef MENDAY V ROTEA ASSURANCE, namely ‘The exper, by eason of his own taining, must confirm the correctness ofthe statements inthe book (©) The text book must be reliable inthe sens that it was written by penon of established repute or proved expertise inthe particular fd. ‘Can the court refer to textbooks without calling an expert SVJONES ‘This case involves battered woman syndrome. ‘There were discrepancies and contradictions inthe complainant's testimony. ‘The court didnot eal an expert bt refered oa textbook and used th opinion of aan expert in the textbook to explain the shortcomings in the compeinant’s testimony. (On appeal the cour held that a cour cannot refer toa textbook to clear up the evidence of a witness without calling an expert, PROCEDURAL ASPECTS Civil Cases: Rule 24(9) of the Magistrates’ Court Rules and Rule 36(9) of the Supreme Court Rules provides the requirements for «party to inteoduce an expert opinion: (0) The party must deliver notice of its intention to do so no less that 18 davs before the sal (©) The party must deliver a summary ofthe expert's opinion and his reasons for that opinion not less than 10 days before the tal Unless the cour gives permission otherwise or all the parties consent (Criminal Cases: If the prosecution intends to use expert opinion, then the accused must be given notice prior to the commencement of the trial as decided in the case of Shabalala v Atorney-General of Transvaal Procedure where an E his Written Report (®) Experts are permitted to refresh their memories form reports and notes Ror ex: Where a doctor consulted person re sexual assault in 2007 and then as to testify in 2008, he is allowed to read from his written report. Present Recollection revived ‘The expert after refreshing his memory from his report, realises that he does not Ihave to testify from his writen report and then gives oral evidence, 4aTis is refered to as present recollection revived ‘The reports and notes ar included as exhibits but itis not evidence ‘Past recollection recorded ‘Where the exper, afer consulting his reports and notes, has mo independent recollection, he wil be allowed to read from his report and this is refered 10 fas past recollection recorded, ‘The reports and notes willbe regarded as documentary evidence (&) ‘The expert should be permitted to read out his report ‘This is an exception tothe general rule that witnesses are not permite to read from statements prepared fr the purposes ofthe trial ASSIGNMENT: ‘$227 ofthe CPA was amended by the Sexual Offences Act 32 of 2007 'S227Q2) of the CPA provides that the defence will only be allowed to ask questions about the ‘previous sexual history ofthe complainant with the lave of the court. The defence counsel must fist obtain the leave of the court to ask questions about the previous sexual history ofthe complainant fo $227(2) of the CPA "The magistrate was thus incorreet(erred) in allowing the defence to ask questions aboot previous convictions he should have requested the defence counsel to apply in camera 822713) - application to lead the evidence must be made in camera $227(4) ~ these provisions applies to all complainants irespecive of gender (Cases: Sv M, $v Wilmot and S y Zuma sexual assault 5 years ‘onvitions or similar faet evidence) is arrest ~ Character evidence (either his ‘Striking similar situation similar fact evidence Prosecution called Sam “Trauma Syndrome) ~ evidence of exports Holtzhausen v Roodt Sv Zuma (Must know the courts reasoning in accepting and rejecting the evidence of expert witnesses) ‘Work out rest of question and take fo Hamman (this type of question will be asked at the end ofthe year for 20 marks) i EREVIOUS CONSISTENDSTATE MENTS: [A previous consistent statement is a written or oral statement made by a witness on some ‘occasion prior to testifving in court and which corresponds with or is substantially similar {o his testimony in court ‘THE ADMISIBILITY OF PREVIOUS CONSISTENT STATEMENTS ‘General Rule: Previous consistent statements are generally excluded. we ae ee ewe eee eee eee eee‘A witness is not allowed to testify that on a previous occasion helshe rade an oral oF ‘writen statement consistent with his evidence in court AA witness may also not be asked whether he'she made a previous consistent statement [A previous consistent statement of a witness may also not be proved by calling another witness Previous inconsistent statements are generally admissible, because itis relevant to the credibility ofthe witness. Ration Previous consistent statements are generally excluded because ofits Irrlevance tis soen a ierelevant, because: IeIneks sufficient probative force ‘There is a danger of fabrication Itis superfluous Proof af previous consistent statements may be time consuming and may lead to 2 proliferation of collateral issues 5. Therule against self-eorroboration (to test the reliability of evidence your should call an independent and objective ‘witness. Ifyou testify youself or your family testifies, there is no objectivity and the ‘court will reat the evidence with caution) + In RV ROBERTS the sccused was charged with murder. He testified that the killing of his girfiend wes an accident He was however not permitted to testify that after the killing he fold his father that the Kiling was an accident. ‘This was regarded as an inadmissible previous consistent statement because of its irrelevance, In HOLTZHAUZEN V ROODT the court when refering to Wilkinson's evidence helé that: “It is ite that the evidence of « witness - inthis ease the defendaxt - cannot be confirmed by calling someone ese to prove thatthe witness made a statement tothe same effect on a previous occasion. The reason is thatthe evidence i insufficiently relevant. It does not add anything of value tothe evidence given in Cour to be told thatthe witness has always adhered to that opinion and had made that statement previously. Repetition gives no greater force to the evidence." = EXCEPTIONS TO THE GENERAL RULE: L.Torebut a suggestion of recent fabrication 2 Inthe case of complaints in sexual cases where there isa victim pO REBUT A SU N INT FABRICATION ‘General Rule IF itis suggested to a witness that he has fabricated his evidence within a certain ascertainable period, he may rebut this suggestion by referring to a previous 4consistent statement ‘The effec ofthe previous consistent statement is limited to rebuttal ‘The previous consistent statement cannot be used as evidence of the truth of a witmesss statement Sw Bergh the statement did not serve as corroboration of the contents thereof, but reinforced the accuracy ofthe complainant’ evidence” SV BERGH ‘The sccused was handed 41 cattle and there was one missing. When the complainant testified in court, counsel forthe accused put tothe witness that be is making a mistake and that he is fabricating the tory. The complainant never said that one of his cattle was missing To rebut this suggestion made by counsel thatthe complainant made up this story, evidence was allowed of wht she tld the police when the charge was ai, ‘The principle here is that if you put it to a witness that he is Iying or making a 1mistake, then the witness may rebut the suggestion. This exception is ony allowed to ruta criticism that was recent fabricated. ‘You cannot before there is suggestion that you fabricated evidence bring the previous consistent statement into the courts record. Rationale: (@) The previous consistent statement is admitted because ofits relevance (b) _Itean serve to rebut am attack upon the eredibility of a witness ‘The term ‘recent fabrication” In MENDAY V PROTEA ASSURANCE the court held tha the word “recent” in the term “recent fabrications inappropriate because in instances where the evidene> was admitted, the reventness of the fabrication was not the deciding isue but rather the question whether bberween the event and the trial the witness invented false version of what occured ‘The statement was admitted to show thatthe witness is saying what he has always said. In $V BERGH the cour held thatthe concept ‘recent fabrication” is mot a defined concept and itis the duty of the court o determine whether the attack on the evidence ofthe witness amounts substantially to a suggestion, express or implied, that he has alleged something ‘hile giving evidence which is «fabrication or exists in his imagination When docs this exception apply? a) Direct accusation of a recent deliberate false fabrication ) Implied accusation of recent deliberate false fabrication ©) Where i is alleged thatthe witnese recently imagined or reconstructed the event even though not witha conscious dishonesty COMPLAINTS IN SEXUAL. General rule: eS WHERE THERE IS A VICTIM ==vt ap CONSISTENT STATEMI In sexual eases evidence may be given of a voluntary complaint mace by the vitim within # reasonable time after the commission ofthe alleged sexual offence ‘This rule as it's origin inthe Middle Age requirement of {or an allegation of rape to succeed However the present rule has developed away from the above rule now applies to both female and male vitims and is no longer confined to sexusl crimes where the absence of consent isan essential element ing the hue and cry ‘The complaint has limited evidential value. 1 eannot corroborate the victim's version and only serves to prove consistency on the part ofthe vitim. ‘Thete is also a rule against self-corrobaration ‘SSB of the Sexual Offences Act provides that previous consistent statements by a ‘complainant shall be admissible in criminal proceedings involving the commission of 4 sexual offence, provided thatthe court may not draw an inference from the absence of such previous consistent statements UI ISSIBILITY OF PREVIOUS ATS IN SEXUAL CASES: ‘THE COMPLAINT MUST HAVE BEEN VOLUNTARY ‘The complaint must not be made as result of leading oF intimidating questions nor of intimidation. ‘The judge has discretion to decide on the character of the questions as well as ‘other circumstances ofthe case as decided in Rv Osborn osyT In tis case the Victims mother threatened to it her if she refused t disclose what the accused had done to her This was a leading question and the court held thatthe complaint obiained as a result of intimidation was inadmissible The court should not only look atthe leading question on its own, but should take into sccount al the surounding circumstances. Jn this case the court paid Inadequate attention to all the surrounding sircumstances, For eg: Why di the mother ask the question? ‘Are there any other evidence which would justify the inclusion of th: evidence? ‘Maybe we should mot have a strict rule thatthe statement made a a result of leading {questions should be excluded al the time. ‘There could be other evidence about the injuries and the state of mind of the witness ‘which could also determine the admissibility of evidence. ‘THE VICTIM MUST TESTIFY 5[Neither the fac thatthe victim complained nor the contents ofthe complaint may be received ifthe victim falls to or eannot testify ‘SMITH V MALETE, in this case the court held that the parents cannot be used as ax intermediary ‘where the victim was thet 3 year old child. ‘The court held that if the child cannot give evidence in court, then how can the child give evidence tothe parents ‘The complaint was therefore inadmissible. In the case of a child of this age the court will frst ascertain whether the child is able to understand the proceedings before the court will allow the child to testi Take mote: SITOA of the CPA provides that where it appears to ‘he court that & witness under the age of 18 will be expose’ to undue mental stressor suffering if helshe testifies in cour, the court may appoint an intermediary through whom the witness will give evidence. ‘The judgment in $ VR was an exception tothe rue that the victim must testify. In this cate the view was a chronie alcoholic who was raped is an ambulance hile on her way to 2 nursing home for treatment. Upon her arrival at the nursing home she repeatedly averred that the accused raped hor and these statements were overheard by a nurse. When she testified in court she was unable to remember anything tht happened in the ambulance but she testified that she would never have consented to intercourse withthe accused. ‘The complaint was admissible despite the fact that the victim was unable to repeat it in her testimony. Teas also admissible to prove state of mind ‘THE_COMPLAINT_MUST_HAVE BEEN MADE AT THE FIRST REASONABLE OPPORTUNITY. ‘According to Schmidt & Rademeyer this will depend on: 8) The presence or absence of a person to whom it can reasonably’ bbe expected that the victim might have complained. b) The question whether the victim realized the immoral nature of the act ‘S58 of the Sexual Offences Act however provides that a court may not draw an inference from the absence ofa previous consistent statement. ‘SSH deleted the above requirement because event if there is mo complaint atthe first reasonable opportunity, the court may not draw an inference from the absence of such complaint 59 of the Sexual Offences Act furthermore provides that the court may not ‘draw an inference from the delay between the commission of the offence and the reporting thereof, _/W SYS the accused was a teacher who was charged with the rape of an 11 vear 5a.oldie ‘The gil did mot report the incident at school because she first wanted to tell her smother. ‘She did not give her mother detailed account of what happened because by the ‘ime she came home she was no longer bleeding and sore and decided not to bother her mother witha detailed report of what she regarded asa form of panishment. ‘The cour held that the evidence was puzzling and can only be elarfied when itis considered from the viewpoint of a young person. ‘The explanation given by the gr for her erratic behaviour was o be expected of ‘an innocent 11 year old and the court accepted that it was given witheut intention tw deceive ‘The evidence was thus admissible, In SV DE VILLLIERS (read ease and add to this) In this case the accused was charged with the rape of 3 girs. ‘The complaint was only made by the girls one year after the incident took place ‘The cour held thatthe complaint which was made one year later was not made at the first reasonable opportunity andthe evidence was thus inadmissible 4. ‘THE OFFENCE MUST BE OF A SEXUAL NATURE, THERE MUST BE A ‘VICTIM, AND VIOLENCE MUST HAVE BEEN PRESENT ‘The offence: The specific fence charged is not the decisive factor as long as tis an offence with a sexual nature ‘The vietim: Vietims include people who voluntarily participate in 2 sexual offence, but who ‘cannot in law give proper consent (for eg mentally ill persons or peron below the age of 16), Viotenes 11s sufficient thatthe offence has some physical clement Ry Accused (ead case and add) DENTIFICATION (when you observe the accused or witness at the scene ofthe crime or during he incident) jeation is generally regarded as relevant and admisible ‘denitfication in court, or so-called “dock identification”, sof very litle probative value. Prior identification carries more weight '822.CPA AND PART VICPEA Ii is in certain circumstances pennssible to hand in signed statements which witnesses, ‘ho are also giving oral evidence, made after the indent under investgaten. 53‘This sa statutory exception to the hearsay rale which deals with documentary evidence ‘The previous writen statement canmot corroborate the evidence given by the witness who ‘wrote the statement, RES GESTAE Res geste i a blanket phrase when applied to the admissibility of statements and means part ofthe story. ‘A previous comistent statement may be received (admitted as evidence i it forms part of the res gestae. ‘This wat confirmed in the case of S V MOOLMAN where entries in a pliceman’s pocket ‘book were eld admissible as part ofthe res gestae. A previous consistent statement cannot however corroborate the witness testimony REFRESHING OF MEMORY ‘A witness's ealir statement may in certain circumstances be used to refresh his memory ‘The evidential value of these statements In te ease of present recollection revived, the statement has no independent probative value, In the case of past recollection recorded the statement is recvived as documentary evidence, — ‘STATEMENTS MADE AT ARREST OR ON DISCOVERY OF INCRIMINATING ARTICLES ‘Statements made at arrest or on discovery of incriminating article may be used to prove consistency. ‘The statement cannot however corroborate the accused’s testimony szi3.cra ‘A witnesses’ statement may in certain circumstances be proved by consent, without calling the witness. Its however possible thatthe witness may be called to testify or hhas been proved by consent. ‘The previous consistent statement wil then serve to show camsstency, not corroboration. > lags Wonca opingy, ad Fe ‘THE EXCLUSION OF RELEVANT EVIDENCE, IVATE PRIVILEGE after his statement General principles: ‘When does privilege ex Privilege exists when a witness is mot obliged to answer a question or to supp {Information thai relevant to the case Privilege vs, Non-compellability A claim of privilege must be distinguished from the non-compellability of witness ‘A non-compellable witness has the right to refuse to testify, while a witness who wishes fo lal privilege is sill required to enter the witness-box and then raise the privilege as the 54 = ee ee ee eee ee eeamram naw ea ewe ee eee ee ee eee reason for not answering the questions put to him. Waler IRpetteg can bo wave ya wins tnt be nara Thier Words he arcsed mnt beware tat be ha he igh ae Gps sd fate oaving Tete pled walt wl uot be rtd asa waiver? (check with Hamenan) See ae ac ees sphald a dim of waive. Sno snas a eto Races ‘These privileges have a similar ature, but the protected interests die. Where evidence is excided because to disclose or admit it would he detrimental to state interests, state privilege is elaimed. ‘Therefore state privilege protects the interests of the state Private privilege protects the interests of individuals. ‘When private prlege is claimed secondary or circumstantial evidence may be admitted to prove the matters protected by the privilege, however this may not be done when state privilege i invoked. ‘There is tendency to restrit the instances in which private privilege can be csimed for cz the cours will not reogatse » prviloge between Journalists and their informers (eg Stagg case) or doctors and their patients (protected unde ight to prvacy) ‘THE PRIVILEGE AGAINST SELF-INCRIMINATION ‘General Rule: [A person cannot be compelled to give evidence that would ineriminate himvherself ‘This rule ie confirmed in $203 of the CPA which provides that no witness in crimins proceedings will be compelled to answer any question which he would not on the 30 May 1961 have been compelled to answer if the answer may expose him toa eriminal charge. [eis also entrenched in S3SGY) of the Constitution which provides that every accused has 8 right toa far trial which includes the right mot to be compelled to give seltincriminating evidence Rationale ‘The privilege against self-incrimination and the right to remain silen: are 2 natural consequence ofthe presumption of innocence which places the burden on the prosecution to prove the accused's guilt beyond a reasonable doubt ‘The privilege agains sel-incrimination has long been part of our common- ad statutory law and enjoys constitutional protection in $38(3)Q) Nemo tenetur se ipsum accusare SVLWANE. [Lwane gave evidence at an cater hearing against his co-perpetrator who sbot him. Inan Affidavit he confessed to having parieipated in the murder himself. He was then subsequently convited of the murder on the bass of is confession made at the earlier hearing. ‘The court eld that there isa general rule of practice in our cours that a judiilofficer has @ duty to inform a witness in criminal proceedings that he isnot obliged to give self- SFincriminating evidence. ‘This rule is hovever not part of English law or practic, ‘This duty aries whenever t appears that a witness is about to give such evidence, whether or not a specific question has een directed thereto. ‘Afallure to inform a witness ofthis right would amount to an irregularity ‘This case illustrates that a SA court can depart from 30 May 1961 provision ifthe English Jaw principles is incompatible with $A law ora rule of practice ‘The evidence given at the earlier hearing was inadmissible because Lane was ignorant of his right not to incriminate himself and was not warned ofthe existence of ths right. ‘There was a duty on the presiding officer to inform him that he is not obliged to give self incriminating evidence. ‘THE WITNESS IN CRIMINAL PROCEEDINGS {$203 ofthe CPA read with $200 and $204 NB: Must know the distinction betwen S203 and $200 of the CPA S203 of the CPA proves that no witness in criminal proceedings will be compelled to ‘answer any question which he would not on the 30° May 1961 have been compelled to answer Ifthe answer may expose him to a criminal charge. ~\S203 of the CPA thus provides that a witness in criminal proceedings can only invoke the ‘privilege against self-incrimination if the answer may expose him toa criminal charge. \,$200 of the CPA provides that a witness in criminal proceedings may not refuse t0 ‘answer any question relevant tothe issue by reason only that the answer establishes oF ‘may establish civil liability om is part. $200 ofthe CPA qualifies $203 and makes it clear that exposure to evil lability does not entitle a witness to invoke the privleze conferred by S203 of the CPA. ‘The exception to the privilege against slf-incrimination is contained in $204 of the CPA. ‘S204 provides that wlenever the prosecutor informs the court that a witness wll be required to answer self-ineriminating questions with regard othe specified offence, the cour wil Inform the witness that he is obliged to give evidence and answer incriminating questions ‘and if he answers the questions honestly and frankly, he will be discharged frm prosecution In $v Maunye the court held obiter that S204 is justifiable limitation on the constittional right not to give self incriminating evidence ‘The privilege against seléincrimination only pertains to possible criminal lability, not possible civil liability ‘The scope ofthe privlese ‘The privilege against self incrimination extends beyond information tha! would directly incriminate the witness to information which may seem harmless but might form what is termed “links in the chain of proof” in possible charge agaist the witness i rivilege to be upheld The court must be satisfied thatthe witnesses's fear of incriminating him/herself is based on reasonable grounds. SeWarning and the Bffect of Non-observance on the Admissibility of Evidence Presiding officers are required to warn witnesses in criminal proceedings of thie rights In ‘terms of S203 ofthe CPA. ‘A fallure t0 do so will ordinarily result in the inadmissibiity of that evidence in a prosecution against the witness In Sv Lwane the evidence ofthe witness was inadmissible because the presiing officer did rot warn Lwane of his right not to ineriminate himself. ‘The Constitution '$35(3)(), $35(5) and S36 (unconstiutionally obtained evidence is inadmissibe unless justified in terms oF $36) inquest Proceedings ‘The privilege agaist setf-incrimination canals be laimes at inquest proceedings ‘THE ACCUSED ‘The Right to Silence prior to Tris $.38(1) ofthe Constitution provides that everyone who is arrested for allegedly committing ‘an offence has the right (a) to remain silent (©) tobe informed promptly of the right fo remain silent and ofthe consequences of not remaining silent (6) not tobe compelled to make any confession or admission that could be used in evidence against that person ‘The privilege aginst self-incrimination for arrested persons is manifested in the right to silence. This is similar to the rights provided for by the Sth Amendment tothe American Constitution as interpreted by the US Supreme Court in Miranda v Arizona. In this ease the court held that statements made by persons in police eustody will only be admitted if it ean be proven that procedural safeguards were used (o secure the privilege against sel-incrimination, These safeguards are that person must be warmed that he has the right to remain silent, that any statement he makes may be used as evidence against him and that he has the right to an attorney. Important difference between application of $ Amendment and S3S(1) of Constitution. 'S35(1) does not refer to the right to legal counsel whereas the S® Amendment refers to the right to legal counsel South African Judges’ Rules ‘The Judges Rules require the police to caution persons suspected of commiting a crime before questioning them. Unfortunately these rules have been given litle weight by judges themselves who freauently Aismiss them on the ground that they re merely administrative directives. ‘The Constitutional Court in $v Zamal95 1 SACR 568 (CC) (not Zuma case of today) held that fairtrial must embrace the substantive fir rights toa fair tial (22) ‘THE, ‘TO LEGAL REPRESENTATI St'S25(2)() ofthe Constitution provides that everyone who is detained including every Sentenced prisoner, has the right to choose and consult with a legal practitioner and to be {informed of this right promply. ‘S3S(2\e) of the Constitution provides that everyone who is detained, including every ‘sentenced prisoner, has the right to have legal practitioner assigned tothe detained person by the state a state expense, if substantial injustice would result, and to be nformed of | this right prompdly ‘35(3Mf of the Constitution provides that every aceused person has the rightto afar trial, ‘which includes dhe ight 1 ehoose, and tobe represented by algal practitioner and to be informed ofthis right promptly, 35(3)2) of the Constitution provides that every aceused person has the right to a fal trial ‘hich inclades the right to ave a legal practitioner assigned to the detained person by the state at state expense, if substantial injustice would result, nd tobe informed of this right promptly, ‘Why is the right o legal representation important inthe discussion of the privilege against seifincrimination? ‘Arrested and detained persons will have « better chance of implementing and ‘understanding the privilege with the help of legal counsel. However, the igh legal representation is not absolute. ‘The Constitution only provides for state-sponsored legal representation in sases where “substantial injustice would otherwise result” Question: Is senior counsel (advocateatiomey) with 30 years experience enitle to legal representation? Inthe case of SV MCKENNA the secused was a prosecutor who decided with ther prosecutors to go on ago-slow because they were dissatisfied with thet alanis. Because ofthe go-slow the prosecutor came to court late on two occasions zd the “Magistrate initiated contempt of court proceedings. ‘The accused argued that she needed time to consult with counsel and the senior prosecutor, however the magistrate held that she was a legal practitioner and does not ‘eed counsel ‘The prosecutor was found guilty but on appeal the cour held that even if an accused is legally qualified, the accused stil has the right to legal representation and must be informed of this righ. ‘THE ASCERTAINMENT OF BODILY FEATURES 537 CPA read with $225 ‘S37 of the CPA provides that the police may take the fingerprints, palmprints or footprints of any arrested or convited person. ‘S225 ofthe CPA also authorises the police to take the fingerprints, palmprints or footprints ofan accused person and o determine whether the body of the accused has any mark, characteristic or distinguishing feature and frthermore fo take blood tests. “These sections convey the right on police officials to ascertain certain bodily features from arrested persons. $2502) of the CPA allows such evidence to be admitted into evidence even fit was ‘obtained improperly or against the wll ofthe accused, 58ssw in conflict with the privilege against sel incrimination? In the case of EX FARTE MINISTER OF JUSTICE: IN RE RV MATEMBA the court ‘considered the admissibility of evidence of a palmprint which was taken by compulsion. ‘The cour eld thatthe privilege against sel-inerimination only applies to testimonial untferances and not to fingerprints, palmprints, footprints, sears onthe body or photos. In $V HUMA the accused objected to his fingesprints being taken and argued that this, inginged his right to dignity and his right against sel-inerimination. ‘The court confirmed the decision in Rv Mathemba and held tha fingerprint evidence is not ‘testimonial evidence and vas therefore not in conflict with the privilege agains self- incrimination. ‘The accused could therefore not refuse to give Fingerprint evidence In the case of MINISTER OF SAFETY AND SECURITY V GAQA the sccused robbed ENB in Bellville nd killed 2 people, bu before the person died he shot the accused in the eg, ‘There was no other evidence fo link the repondent to the erime and the curt ordered the respondent to submit himself to an operation forthe removal ofa bulletin his leg. ‘The court rejected the respondents argument that to do so would infringe his constitutional ‘gt not to incriminate himself, his right to privacy and his right not to be subjected to cruel, inhuman or degrading treatment. ‘The court held that 827 and 837 of the CPA sanctioned the violence necessary to remove the bullet and although the procedure consttued an inffingement of the respondent's ‘constitutional rights, it met the requirements of the limitation clause. However in MINISTER OF SAFETY AND SECURITY V XABA the cots held thatthe decision in Gaga was wrong. ‘The court held that in the absence of a law of general application authorising the constitutional infringements the requirements ofthe limitation clause was not met. ‘Therefore the respondent could not be ordered to undergo an operation to remove the Dalle. Ball Proceedings Ifa accused gives evidence during bail proceedings, he retains the privilege against self- {ncrimination, but he runs the risk of ball being reused. ‘The accused must be informed that anything he says may be used agalast him at the subsequent tial, Ifthe accused is not informed hereof, the evidence willbe inadmissible. In the case of $V DLAMINE; § V DLADLA: § V JOUBERT: § V SCHIETEKAT the court dealt with the constitutionality of S6OCL1BMe) ofthe CPA. ‘The court held that this section was not inconsistent with the common law in terms of ‘which evidence given by the accused at bail proceedings may be used against the accused atthe subsequent tra (Only a fallure to advise the accused during the proceedings in terms of S0(11B}\2) of the CPA, tat anything he says may be used against him at the subsequent trial, will render the evidence inadmissible. ‘This is reinforced by S235 of the CPA which provides for proof ofthe recced by the mere production of certified copy therof at tral. 9 0 aque am 54“Trial and Plea Proceedings 'S35(3)d) of the Constitution provides that every accused person has the right toa fir rial “which includes the ight not to be compelled to give self-neriminating evidence. $$35(3)) of the Constitution provides that every accused person has the right o fair tial ‘which inciades the right tobe presumed innocent, o remain silent and not to testify during the proceedings General principle IaSV BROWN the court eld thatthe accused may not be penalised in any way for exercising his constitutional ight in terms of S35(3)G) and $3503). However this does not mean that an aceused cannot be adversely affected by refusing 0 answer cetan questions Certain legislative provisions may be found to eneroach on the privilege against self incrimination during rial end plea proceedings: (2) A plea of guilty in terms of SL12 of the CPA ‘The presiding officer will question the accused after entering a pla of guilty to determine whether the accused is indeed guilty of committing the offence, (©) Ales of not guilty in terms of S11S of the CPA ‘The presiding officer will ask the accused whether he wishes to make a statement Indicating the basis of his defence in terms of SUISCI) of the CPA. ‘S118(2) ofthe CPA provides tht ifthe accused does not make a statement indicating the basis fr his defence, or does so and iis not elear from the statement what extent hie denies or admits the issues raised by the pla, the court will question the accused to ‘establish which allegations ae in dispute. ‘The accused is however not obliged to answer these questions and mustbe advised of thisright In SV EVANS the accused pleaded not guilty toa charge of stealing two bed sheets fiom a shop. “The court asked the accused whether she wanted to make statement disclosing the basis of her defence to which she answered no. The court then asked the accused whether she stole the sheets and ber reply was that she knows nothing and that she does not want to testify. ‘When she later testified, ner testimony’ was different to what was said during the plea proceedings. ‘The cout found that the accused cannot be believed and thatthe state proved the ease ‘beyond reasonable doubt. ‘On appeal the conviction asst aside based on an irregularity in that te accused was not warned of her right to remain silent ‘The sour held that the magistrate ad a duty to inform the unrepresented accused of ther right to-remain silent and the court eannot question the accused ifshe decides not to make a statement because the right Co remain silent is entrenched inthe Constitution. ‘The accused is therefore mot obliged to answer questions and must be advised ofthis right (6) $20.of the Criminal Law Second Amendment Act 126 of 1992 bo'$20(4)(0)G) provides thatthe court may draw an unfavourableadverse inference ‘where a plea of not guilty is entered where an accused stands tral on a special offence tnd fails to indicate the bass for his defence. 520 ofthe Criminal Law Second Amendment Acti an example of legislation that falls foul ofthe constitutional right to remain silent ‘The general rule is that fhe accused remsins silent, the court may not éraw any Inference from his failure to make a statement. Phowever the accused is charged with a special offence, a failure to answer questions or indiate the basis ofhis defence, then the eourt ean draw a negative inference from his failure to disclose the bass orto answer questions Ifthe proseeutor is ofthe opinion thatthe offence with which the accused is charged is tn offence in which murder, robbery with aggravating circumstances, violence or Intimidation i involved, he can apply to court before the accused pleads to the charge thatthe offence isa special offence. OTHER INVESTIGATIVE INQUIRIES Read Principles, P.133 ‘THE WITNESS IN CIVIL PROCEEDINGS, S14 of the CPEA must be read with 42 of the CPEA Sid of the CPEA provides that a witness may not refuse to answer a question relevant to ‘the issue which will not incriminate him or expose him to penalty or forfeiture only for the reason thatthe answering ofthe question may establish that he owes a debtor is subject toa civil suit ‘S42 of the CPEA provides that the law of evidence including the law relating to the competence, compellabilty, examination and cross-cxamination of witnesses which was in force in respect of civil proceedings on the 30” May 1961, shall apply in any case not provided for by this Act or any other law. The effect of there two provisions is to give a wider ambit to the privilege against self incimination in evil eases than in criminal cases, In civil eases the privilege not only applies to cases where the information would create the possibilty of a criminal prosecution but also to cases where there is + possibility of penalties or forfeiture of assets Prevention of Organised Crime Act (POCA) - Scorpions (ho has been disbanded) had asset forfeiture unit and if an accused was busy with erime they could attach the proceeds of the crime For eg: Ifperson dealing in daggs and buys cars and property from the process ofthe crime, then the cars and property can be attached and sod in execution, ‘$48 and S42 of the Prevention of Organised Crime Act deals with the forfeiture of property. LEGAL PROFESSIONAL PRIVILEGE. General rule: In criminal and civil cases, the communications between lawyer and his client is privileged and cannot he disclosed without the client's consent, eI‘The client is the holder of the privilege and can decide to walve the protection of legal professional privilege, If the client waives the protection of legal professional privilege, the client or is counsel may bbe questioned on any communications between them. |S201 CPA provides that mo legal practitioner will be competent to give evidence against ny person by whom he is professionally employed or with whom he consulted as to any {act without the consent ofthe person concerned Rationale The privilege serves to create an open line of communication between the lawyer and the aan Es emcee) Paes es cal realtek ds clown The dol nce ee aed Eipncsed were chargl wires Bien She meena apeaah i Bitlis yin cmb et aria eeeteearsnemaiiaeae aeeias ae See oe eres oe oN ON piecnyirepe pre: < Ty ovement ioteonr ives i oped cfean ofeopatoms We fourire aces ocr ede degaeaillicesinisinesiaaina Peat pas geste etc case te eaege ea Sicte penance sokichegratees wettest stay oo Te eC Ie rani welt ebenimatscirtn tte tect massa mares Serer inten pecans ae ci nainslcaidin assign Fasshaeg aoe pte ped ee On aon ese trom, prscpnacphep in an Foyer pala FAS See A ea = ee ee ee greta ke a eee ae Soames eee ae eee renee cin issn ruc ofpriege lingo scat al the fern format pele alberta =) oy ro cnt rke etcere Coe SS ee enn (&) Whether th legal vee sought elated the tel el, an sm in what wy Ee cake plano faites bese ee eee cuca x canes cs or aera tae Peers eter rere eee eae eat eee erage esterase tines garni Reece Ga‘THE SCOPE OF THE LEGAL PROFESSIONAL PRIVILEGE, in $V SAFATSA the court hei thatthe privilege extends beyond the purposes of litigation to all communications made forthe purpose of seeking legal advie. SV MUSHIMBA ‘The acoused was convicted of contravening the Terrorism Act. ‘A member of the staff of the firm of attomeys who defended the accused was a police ormant who gave copies of statements and privileged documents to the police. These documents were given to the investigating officer who gave instrtions to the prosecutor who was unaware ofthe irregularities that had occurred, ‘The state then wanted to ask questions about the contents of the documents The issue was whether the contents ofthe documents were protected by the privilege. The court held that legal professional privilege was not only applicable to communfeations between attorney and client but i also extended to everyone inthe law firm. The court held that the privilege was breached and this resulted ina gross ieegularity inthe proceedings, \Where communications are made between a legal adviser or his client and a third party, legal professional privilege cau only be claimed if, (@) The communication was made forthe purpose of being submitted to alegal adviser () The communication was made after tigation was contemplated. onan, idee es.Where sins knowledge of a privileged coms sion of ‘privileged: Diselosure of such information cannot be prevented by invoking the legal professional privilege. Diselorure can only be prevented in cases where the information was unlawfully obtained ‘nd the judge exereses his discretion to disallow unlawfully obtained evidence a in the ‘ase of Sv Naldoo (See case Seizure . [information or documents ae obsined (rom the offices of legal counsel ofthe accused as result of a valid search warrant, then legal professional privilege cannot prevent the slaure of sich documents ‘This was confirmed by the cour inthe case of MANDELA V MINISTER OF PRISONS, Inthe case of SV ZUMA the police raided the offices of the legal counsel ofthe accused ‘with a valid search warrant snd attached confidential information and fils of counsel Legal professional privilege could not prevent the seizure of the documents, However, the correctness ofthese past decisions canbe contested in view cf the Appellate Division's recognition in §'V SAFATSA that legal professional privilege is «fundamental ight tha is essential forthe proper funetioning ofthe legal system. ‘In BOGOSHIL V VAN VUUREN the Appellate Division accepted that legal professional rivilege isa fandamental right and eld that ordinarily the privilege can be claimed to prevent seizure by a warrant of a privileged dacument. ‘The constitutional right of access to information in trms of $32 ofthe Consdtusion ‘Our courts have eld that legal professional privilege Is» reasonable and 3 in terms of S36 ofthe Constitution of the righ of acces to information in terms of $32 ofthe Constitution In JEEVA V RECEIVER OF REVENUE, PORT ELIZABETH an appliction was made ‘to order the Receiver of Revenue to give the applicant access to certain information in its possession. ‘The court ordered that the information be disclosed except the information which was covered by egal professional privilege. ‘The cout held that legal professional privilege was a reasonable and justifiable imitation ‘on the applicant's constitutional right of aecess to information However, a claim of privilege in respect of legal adviser and a publi authority may in ‘eran circumstances be trumped by the constitutional ight of access to inftmation (Mohamed v President of the RSA) n ‘The FICA Act also is an influence on legal professional privilege ‘The FICA Act paces « duty on financial institutions to identify a person, ‘Ala firm is regarded as financial institution in terms of FICA and therefore have to comply withthe FICA ActIn teams of FICA iTan attorney is aware of anv suspicious transactions made by the client, then he must report it othe Financial Intelligence Centre fa suspicious transaction is nt reparted tothe FIC, the attorney will be Weld lis ‘ean be prosecuted. (On the one hand an atiomey has a duty to report any suspicious transaction in tems of | FFICA, and onthe other hand he also as legal professional duty towards Ais ellent not to disclose privileged communications made between them jleand RE NTS FOR THE TO BE INvo! ‘General principle: The communication must have been made in confidence to legal adviser in hither ‘profesional capacity forthe purpose of pending tigation or obtaining legal advice end the privilege must be claimed by the client. © Jogal representative mus Jn hi her profession capacity ‘This isa question of fact determined by the circumstances ofeach case Foret information disclosed by a legal practitioner ata brs, no: covered by legal professional privilege di not actin professional capaci. Foreg: legal adviser working at Deeds Oice that gives information —not seting in his professional capacity, not protected by legal professinl Privilege because everyone has acces othe information, (©) Thecommunication must be made in confidence ‘Whether «communication was made in confidence will always be @ ‘question of fact determined by the elrcumstances ofeach ease Confidentiality will usualy be inferred where iis proven tat legal adviser was consulted ina professional capacity forte purpose of ‘obtaining egal advice. In Giovagnoliv Di Meo the court held that a instruction to an atorney 10 negotiate and effect a settlement was not privileged sit was not ‘confidential in that it was intended o be commiaicated othe other party Oo £ of obtaining legal advice ‘The obtaining of legal advice is sufficient, it noed not be linked to pending ition If the communications were made in confidence, but not for the purpose ‘of obtaining legal advice, the communication will nt be privileged. ‘Legal professional privilege wll not be upheld if legal advice is ought to further a criminal purpose. ( ——-Threetent must calm the privilege The privilege attaches tothe cllent and it must be elaimed by the lint A legal adviser may claim the privilege onthe client's behalf but itis sil the client that must decide,the eiemt waives the privilege, the legal representative will be bound by the waiver ‘The court will mt uphold the privilege inthe absence ofa claim of privilege I client indicates that he wil not claim the privilege, then his attorney ‘cannot refuse to answer questions about communications made between bim and his client, In $V CHARLES(2) the candidate atomey who represented the client ‘only received the file on the morning ofthe rial He consulted wit the client and during cross-examination ofthe wimes, Ihe putt tothe clint thatthe clint testified that he was drunk and that he wat at the place where the incident occurred. (29972) ‘When hovtever the accused testified in cout he then gave an alli to the cour and testified that he was home onthe day of the incident “The accused was convicted (On appeal the conviction was set aside WAIVER OF THE LEG: AIVILEG! ‘The legal professional privilege may be expressly oF impli An example of an implied waiver would be where a cllent discloses privileged information out of ister own volution ‘S\VBOESMAN In this case # accused were charged with murder, arson and illegal possesion of explosives $Tcounsel were appointed to act pre deo forthe accused Te evidence of 4 state witnesses were ed and the mater was then postponed. Just before the tial was due o resume, 3 diferent counsel tok over the defence ‘ofthe accused ‘The accused then testified however they testified differently to the statements put by thelr pro deo advocates tothe 4 sate witnesses. ‘The eccused denied thst they made the statements put by ther counsel w the witnesses. ‘The state then wanted (0 call the pro deo advocates a witnesses to ascevain whether the statements were infact made to them by th accused prir to tril. Counsel forthe accused argued tha the communieations between the accused and their pro deo counsel were privileged and that evidence thereof cannot be led, ‘Theisue was whether the accused impliedly waived the privilege ‘The court held tht itis generally undesirable thet legal practitioner stould ‘be compelled to give evidence against hs lint. However, the accused inthis case impliedly waived the privilege when they stated that their counsel acted comtrary to thelr instructions and when they elected to give evidence regarding the instructions given by them te their ‘ous &eApe ‘The court exercised its diseretion and held that public polly dictates tha the fermer pro deo counsel ofthe accused should not be. ive evidence even, ‘hough the privilege was impliedly waived by the accuse. ‘The follows te witnesses by counsel Fourie) ‘hat accused no I was present when the accused was stacked That accused no 2 stated that he saw a witness walking slong the road pushing aryre and that he too the te from her. ‘That accused no 3 admitted that he was handed a bottle of petro by accused 8 and ‘that he took pat inthe attack onthe deceased's house ‘That accused no 4 said that he was an onlooker ‘That accused no 7 was approached by secused no 8 and others to obtain petrol ‘That accuted no 8 admitted that she was in possession of s blue bag which contained petrol bombs i witness box Ia witness uses his statement in the wimess box to refresh his memory, then there is mo privilege inthe statement. [ithe witness refreshes his memory out of the witness box, the privilege Is not disturbed, OTHER PROFESSIONAL PRIVILEGES Profesional privilege perins only othe lawyer-client relationship and isnot enjoyed by other professional relationships. Privilege is mot accorded to the doctor-patient relationship (persocal and private communication) Sounalss, priests, insurers and accountants also do not enjoy this privilege LEGE General cule: S198 ofthe CPA provides tha husband o wife at criminal proceedings will not be compelled to disclose communications made between them during the marriage. However, if one spouse is prepared to disclose privileged information, hushe cannot be prevented from doing so by the other spouse Rationale Public opinion finds it unacceptable that spouses should be forced to testify against each other oFREQUIREMENTS Before 1 April 1997 (@) The communications must have been made while they were married (©) The marriage must not have been in terms of customary law Afi 1 April 1997 ‘The second requirement fll away 195@) CPA was amended by S4 of Act 18 of 1996 PARENT-CHILD PRIVILE: ‘General rule (ur law does not recognise «parent-child privilege. ‘8192 ofthe CPA makes it clear that a parent can be compelled to testy against his chill and The privilege i also absent where & parca attends criminal proceedings to mista chil, S731 the CPA confers the right upon a child fo be assisted by a parent or a guardian as ftom the child's ares. ln the United States inthe cases of IN REA & M and PEOPLE V FITZGERALD the courts ‘have recognised that confidential communications been children and their pareis or «guardians or otber caretakers ae privileged from disclosure on the basis ofthe ‘constitutional right to privacy. 7182008 STATE EGE [Relevant and otherwise admissible evidence may be excluded on the ground ta its admission ‘would be against public policy or harmful tothe public interest. Scope State Privilege concems the exclusion of evidence that could adversely affect: (2) The security ofthe state (©) Publi interest (©) The efficient detection of Crime RATIONAI S202 CPA, and $42 CPEA (Civil Procedure Evidence Act) provides that relevant evidence tay be excluded on the ground that is admission would be against public paiey or public interest ‘These sections applies the common law [Relevant evidence is excluded on the grounds of public policy or put és‘THE DIFFERENCES BETWEEN PRIVATE AND STATE PRIVILEGE ‘Secondary or circumstantial evidence is generally inadmissible in cases where state privilege is claimed ‘Such evidence may be admisible wo prove a mater protected by private privilege. (itaccused wants to iavoke the privilege against sal incrimination or Private privilege, then secondary or circumstantial evidence willbe admissible, (&) The Court can enforce state privilege mero mots Private privilege has to be claimed by the accused (6) State privilege can only be waived on the authority ofthe ministerial head of| the state department Private privilege can usually be waived by the holder thereof In DUNCAN V CAMMELL LAIRD the plaintiff claimed personal damages stra submarine sunk during tials. ‘The plait sought discovery of certain documents which would disclose the design of « new submarine and which related Io contracts between the defendants and the admiralty, ‘The House of Lords refused the disclosure and held that disclosure would be harmful to the public interest and tat national security was a take, Public interest was the controlling factor and the evidence was proteted under state privilege. ‘STATE PRIVILEGE PRIOR TO THE CONSTITUTION ‘An example of sate privilege isthe case of Van der Linde v Cal Inthe cate of VAN DER LINDE V CALITZ (decided in 1967) the Appellate Division broke away from the 1942 decision of DUNCAN in which the House of Lerds decided that ‘ministerial objection, if taken in proper form, was final and binding. (Court held tht the English la decision of Duncan was incorrect and although the court was supposed to follow the decision due to the precedent system, the cour allowed ministerial objection) Despite the fact that the Appellate Division was technically required, by the 30% May 1961 provision, to have followed Duncan, it gave preference to the Robinson case whore it was held that courts had a residual power to determine whether executive objection had to be upheld. LEGISLATIVE INTERFERENCE (1969 — 1996) ‘Van der Linde case theoretically opened the door for a future finding that courts should also have the final say in mater affecting national security However $29 of the General Law Amendment Act reversed effectively reversed Van der Linde by bestowing on the exeeutive an absolute and unquestionable pomer to withhold evidence from a court of law iin the opinion ofthe executive the disclosure of such evidence is Prejudicial othe interests ofthe State oF public security eq‘The law was then amendad by S25 of the General Law Amendment Aet vbich ousted the jisdiction of the cours only where prejudice to national security formed the basis of an ‘asserion of state privilege by the executive. ‘This amendment was then replaced by $66 ofthe Internal Security Act which re-affimmed that the executive had the final ay on matters affecting the security ofthe state, whereas in non ‘scout eases the court retained their jurisdiction. STATE SECURITY ‘.G6(1 ofthe Internal Security Act 74 of 1982: State privilege occured where the relevant Minister or Administrator (where provincial concems) signed an affidavit to the effect that certain evidence (whether testimonial or documentary) is considered to be prejudicial tothe security ofthe state [No person could then be compelled to divulge such evidence Such an affldave was final and could not be questioned by the court '866(1) of Act 74 of 1982 was then repealed in 1996 by Act 90 of 196, ‘STATE PRIVILEGE AFTER THE CONSTITUTION AAfer the repeal of S66 of the Internal Security Act, we now have SIGS of the Constitution Which vests the judicial authority in the courts, $32 provides for the right of access 10 information held by the slate, $34 provides for access to cours and a fir hearing and S38) ‘which provides that every accused person hat the right toa fur ial which icles the right wo duce and challenge evidence PUBLIC INTEREST. Section 66() Internal Security Act 74 of 1982 “This section ha th effect hat common law governed areas not covered by statute leat alzo repealed hy Act 90 of 1996 ‘THE EFFICIENT DETECTION OF CRIME one Cerin communications which could reveal the identity of am informer or ould expose the channels of communication in investigating crime are protected $202 of the CPA provides thatthe identity ofan informer should be protected snd should nat bye disclosed by the court or the investigating officer. The rationale underlying ths principle was reflecied by he remarks of Solomon Jin RVABELSON where he held that! “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 cxnducted, obviously by similar methods” The fighting of crime has heen given constitutional protection and S203) of the Constitution provides that the objects of the police service are to preven, combat and investigate crime, to ‘maintain public order, oprotet and secure the inhabitants of the Republic and their property‘nd to uphold and enforce the law 218 of the Interim Constitution also provides thatthe National Commissione shall be responsible forthe investigation and prevention of organise crime. TENDIN (TE CRIMES, SSON the accused was charged with contravening the Liquor Act. He called as a witness the divisional criminal investigating officer who refused to produce reports made to im by two detectives conceming the charges, on the grouné thatthe repor’s were confidential. ‘The court upheld the claim of privilege and held thatthe disclosure ofthe evidence would be contrary to public policy as it would expose to the public the methods used hy the police © contol the iguor traffic, e_THE METHODS USED_To ‘Alo, inthe case of Sv Peak, where the police used a tape recorder to record a conversation, the court disallowed eross-examination relating to the manner in which the recording Was ‘obtained even though the recording itself was admissible evidence In our present consitutionalised system courts wil hve o be careful because there isa danger thats claim of state privilege by the police in this context can be an attempt to cover up the fact that evidence was unconstitutionaly obtained. Evidence of converations which Were unlawfully recorded (in breach ofthe right to priva may have tobe excluded in terms of S3(5) of the Constitution. COMMUNICATIONS TENDING TO REVEAL THE IDENTITY OF AN INFORMER (informer's Privilege") ‘THE TERM INFORMER" In RV VAN SCHALKWYK the court held tat the tm Informer means on who gives useful information about the commission of a erime and sceds protection against those who might suffer from his disclosures, ‘The term informer is so wide that it also includes any person who lays sriminal charge against someone else and who's identity has not been disclosed to the accused ELEMENTS OF THE INFORMER’S PRIVILEGE (@) Thepeson mus provide information that would be detrimental to other persons (©) The information must be given wo legal officers (©) The information must be of such a nature tha it ean lead toa criminal prosecution N‘THE DIFFERENCE BETWEEN AN ‘INFORMER AND A “TRAP ‘Theterm trap" inthe case of MALINGA and also the case of $V NEL the court held that a raps a person “uo, with a view fo securing the conviction of another, proposes certain eriminal conduct 10 hi, and himself ostensibly takes part thereln, thereby creating an opportunity for someone else to commit the offence trap doesnot fll within the ambit of the informer’ privilege. ‘An informer’ identi is usually not known to the accused and the court ‘sn informer does mot testify in court. ‘With trap the person's identity is known to the aeused. “The person wil testify in court and doesnot enjoy the protection asin the case of an informe, (Will be asked a shorter question difference between an informer and a trap) Contents Interms ofthe common law, no question may be asked oF document revealed in evidence that would tend to (a) reveal the identity ofan informer or (©) the content ofthe information which he'she supplied ‘The court has a duty to se that the informer's privilege is upheld In SWANEPOEL V MINISTER VAN VEILIGHEID EN SEKURITETT the paint ‘became aware that a crime involving cheques and false identity documents was going wo be committe He informed the police hereof and specially requested the police not to divulge his identity to the persons involved in the crime ‘The police gave an undertaking not wo disclose his idemty but nevertheless mace his ientlty known tothe accused [Ase result of the unlawful and intentional infringement bythe police of the pints right to privacy, his life was in danger and he had to flee He then insted a cv claim against the Minister of Safety and Security The court confimed that an informer has a substantive right that his identity should not be Aisclosed especially where e requested hs identity not tobe disclosed. RATIONALE OF THE INFORMER’S PRIVILEC (@) To protet the informer and his/her family () To ensure thatthe informer may be used aga Inthe future (6) To encourage the public 19 come forward with information about crimes (Swanepoel y minister van vellgheld en sekuritit) 72.INFORMER’S PRIVILEGE IN SOU! Law Tn EX PARTE MINISTER OF JUSTICE: RE RV PILLAY the court laid dovn the instances ‘where the rule may be relaxed, namely (@) Where itis material tthe ends of justice () Where itis necessary to show the nceused’s innocence (©) Where the reason for secrecy no longer exists, eg. where the identity ofthe informe is known. In the case of SULIMAN V HANSA the court laid down 4 requirements for the implementation ofthe informers privilege: (2), Communications by the informer must have been made in the confidence that they would not be disclosed (©) This confidentiality must be essential to the relationship between the Informer and the state (©) Therelationship must be worth of fostering inthe opinion of the community (@) Injury by disclosure must outweigh the benefit gained by disclosure of WAIVER? ‘The general view was thatthe informer’s privilege cannot be waived, because i isa matter of public policy ‘This view was rejected in the case of RV VAN SCHALKWYK where the cour eld that the informers privilege cam be walved in cases where the informer himself waives the privilege. This does not apply where the state shows that public policy requires the identity of the Informer to be kept a secret ‘THE CONSTITUTIONALITY OF THE INFORMER’S PRIVILEGE ‘Question ‘Should the grounds for relaxing the informer’s privilege be extended on constitutional rounds $2 of the Constitution provides that everyone has the right of access to any information held 'S3S of the Constitution which provides that every accusec person has the Bes There has been no decisions as yet in criminal cases in South African law whether the informer’s privilege should be extended on constitutional grounds. In the US Supreme Court case of MeCRAY V ILLINOIS an informer gave the police information thatthe accused was dealing in drug. 13‘The informer then accompanied the police and pointed out the nceused lroln wes found on the accused and he was arrested. ‘The police refused to disclose the identity of the informer. The court held that there was no violation of the accused's right to due process because the police made the arest on the bass of information provided by the informer whom they had ‘The informer's privilege was ths upheld. In the case of ROVIARO V UNITED STATES the court held that if the di {identity ofthe informer would be helpful tothe eccused, the privilege must Tn this cate the Informer was with the accused when the crime was committed and could therefore testify whether the accused knowingly transported the drugs. ‘The privilege had to be lifted because the identity of the informer would be helpful to the accused. © per seis not unconstitutional, but ‘lal must be considered in deciding wheter the privilege ‘The above cases make it clear thatthe informer's priv ‘tha the constitutional right to = must give way ‘This has not yet been decided by our courts but there is possibility that we will fllow the [American system and allow a privilege to be lifted where this would assist the accused in his efence ELS V MINISTER OF SAFETY AND SECURITY ‘An informer told the police thatthe accused wat dealing with counterfit money this house. ‘Ona single Affidavit a search warrant was issued. ‘The plaintiff then advised his attorney ofthe intended search and the attormy agreed to the search Aller the search was conducted no counterfit money was found on the premibes or any other incriminating evidence. The plaintiff instituted a eiil action against the state and requested the identity ofthe informer to be disclosed however the cour refused the request. The cour laid down 4 principles, namely |. The Constitution did not destroy the informer’s privilege 2. The informer's privilege can omly be related where it is “material o the ends of jnstice” 3. The court must consider the decision in Shabalala v Attorney-General of Transvaal as well asthe content of Chapter 2 ofthe Constitution 44 The applicant has « prima face right to the information requested and threfore the onus rests on the respondent to prove on @ balance of probabilities thatthe limitation of the Informer’s privilege is justified in terms of S36 14‘The court held that “The advent ofthe new Constitution should not, inthe public Interest, have the effect of watering down the informer privilege to any significant extent, eventhough it does vest in the courts a wider discretion to enforce disclosure of the identity of informers that they previously had." ‘The court held thatthe disclosure of the identity of an informer should not be made lightly because the informer system is one of the cormer-stones of the battle azainst organised crime. Ifthe identity ofan informer is made known, other informers will sop Informing, not ony 19 void retaliation, but also to avoid ev actions beng instituted agains them (notes on this nt sufficient ~ read textbook) SBLANKET DOCKET PRIVILEGE” P. (3) bt bool rior tothe constitution, the police had some kind of “blanket docket privilege” in terms of Which all statements, except stutement hy the accused and certain documents such as an ‘identification parade form, were privileged from disclosure. Nom, counsel for the accused cam request the prosecutor to furnish him wh a copy of the charge sheet, copies ofl statements of the witnesses and all epors. yy SHABALALA V ATTORNEY-GENERAL OF TRANSVAA\ ‘The Constitutional Court found thatthe “blanket docket privilege’ was in conlct with S23 (ight of access to information) and 25(3) of the Interim Constitution (rightto a fal trial), In Shabalala v Attorney General of Transvaal the court held that 1 The "blanket docket privilege” is inconsistent with the Constitution to he extent 0 which it protects from disclosure all the documents in a police docket. 2. The claim ofthe acused for access to documents in ths police docket cannot be defeated merely on the grounds that such contents are protected by ablnke_privlege. 3. Ordinarily an accused person shouldbe entitled to ave accesso doctmens inthe police ockot which are exculpatory (or which are prima facie likely oe helpfal tothe defence), ‘unless the state is able to justify the refusal of such acces onthe grounds ‘ht itis mot justified for the purpose of fair trial. 44. The right toa fair al would include access to statements of witnesses, whether oF not the state intends wo cal the witnesses or nt. 'S. The states ett to refuse accesso documents in the police docket where there is & ‘reasonable risk that this would disclose the identity of an informer, stat seerets or tht it coud lead to intimidation of witnesses or prejudice the proper ends of justice, 6, Byen where the state proved thatthe denial of access to documents is usted, the court still has a discretion to deside on the issue of disclosure, and the court mist exercise the Aisretion by taking into account the right ofthe accused to a fir tral andthe legitimate claims of the state'535(5) ofthe Constitution provides that evidence obained in 2 manner that vilates any right inthe Bll of Rights most be excluded if the admission of the evidence would render the tril unfair or otherise be detrimental tothe administration of Justice. Burger CJ, « former chief justice of the Supreme Court of the USA snd an opponent of the exclsionary rule, once bluntly observed thatthe function ofthe exclusionary ule “is simple ~ fhe exclusion ofthe truth from the fact-finding process” ‘The exclusion of reliable and highly incriminating evidence might result inthe acquittal of an accused who is fetually guilty of murder or rape or other serious crimes. ‘To what extent ae law abiding members af society prepared to accept such an outcome? ‘Whose interests and what interests are protected by exclusion? In SV_LWANE the cour held thatthe presiding officer has a duty to warn the accused of his right not to give slfincriminating evidence. [wane was not warned of thls right when he made a stem the offence, the evidence was exclodedecaus his right to a ‘and even though he committed ‘ial was infringed. ‘Balancing of inerests In Earle v Mu the cour eld that when dealing with unconstiutionaly obtained evidenee, the lw is to play’ delicate balancing act between: (2) The individual’ interest to be protected from inffingements agaist His constitutional rights ($3565) (©) The terest ofthe state to ensure that evidence relevant tothe commission of exime is not witheld on mere technical grounds ($205 of the Constitution ~ pole has a duty to ‘prevent, combat and investigate crime) The case of $V MELANI laid down three possible policies with repard to the admissibility of uneonstitutionally obtained evidence xe Jn term of this rule all evidence must be admissible respective of how the evidence was obtained (©) Rigid Exclusonary Rule In tems ofthis ral ll evidence obtained in violation ofthe rights in he Bill of Rights must be excided (©) Compromise policy Interms ofthis poicy some evidence are included and other are excludct 18* ‘This approach is generally followed in countries without a Bill of Rights or a supreme Constittion, Arguments in favour of the inclusionary rule (2) Theend justifies the means (©) The probative value of the evidence i not impaired by unlawful methods of acquiring such evidence (©) The exclusionary rule shifts the attention from an inquiry into the gult or innocence ‘ofan accused to police conduct (@) The deterrent eet of an xciasionary rule is minimal (©) Theexclusionary rule protects the ‘gil (®Theexclusionary rule limits effective policing in an age of rising crime mates ‘THE RIGID EXCLUSIONARY RULE ‘Arguments in fevour ofthe exclusion of unconsituionally obtained evidence (@) The practical effect of the absence of an exclusionary rule is hat the police mav aint tie Cy (©) Primarv rules and the secondary rule ‘The primarv rules are used forthe pre-trial powers of the police 2d provides that, relevant and credible evidence should not be gathered at all costs snd isnot newly imposed by the exclusionary rule (the secondary rule) ‘The secondary rule merely enforces the primary rules ~if for eg the police obey the ‘primary rules, the result may be that certain evidence will be lost ~ fen the other hand the police lout the primary rules, tie secondary rule achieves the same result (©) Judicial integrity By admiting unconstittionally obtained evidence the courts themselves will be Violating the Constitution, the courts will act contrary to their oath to uphold the Constitution, courts wil indirectly encourage violations of the Constitution and ‘courts will create the impression that they sanetion unconstitutional conduct by ‘government officials, (Preventive effect ‘The purpose of the exclusionary rule is to deter and to compel respect for the 74© Legality In tems of the principle of legality © person will be guilty omly if the facts are determined by proper and fal procedures, ‘The guilt of the accused must he established with due process and not by way of lunderhanded ways and means ‘Sv Lwane Tiwane was not warned of this right when he made a statement and even though he committe the offence, the evidence was excluded because his right (oa fair trial war infringed of documents in the attorney's firm and handed it to the Without these documents the accused would not have been found gully and he wat scoordingly acquit. (© The principle of se-correction ‘An effective due process system must have the inherent ability to correct abuses Within the system and it must beable to doo atthe frst moment thai is established that there has been an abuse, Tre policy in the USA, Read Principles p179-186 ++ COMPROMISE: DISCRETION THE COMMON LAW DISCRETION TO EXCLUDE IMPROPERLY OBTAINED. EVIDENCE, vil Cases ‘The discretion to exclude improperly obtained evidence existed under common law siminal C ‘Authority for the existence of the discretion wo exelude admissible evidence which was Improperly obtained SV MUSHIMBA In this ease a member ofthe staff ofthe firm of attorneys who defended the appellants gave copies of statements by the appellants and defence witnesses and other cnfidential and privileged documents tothe police The police gave the documents to the investigating officer who gave instructions to the prosecutor 80“The court held that that this amounted to & gross irregularity which breached the privilege which existed between the appellants and their attomeys. “The court held that legal professional privilege also extends to employees ofthe fm and the evidence was therefore excluded. y. ease In this case the evidence was obtained by way of tape recordings of telephone conversations. Despite the fet tha the prosecution did not prove that they obtained proper authorisation for the tape recordings ofthe telephone conversations, the court admitted the evidence against the accused. ‘The cout held that evidence obtained in an legal manner can be excluded on two grounds (@) Tae accused cannot be compelled to provide evidence against himsel" (©) Evidence which is obtained under duress ‘The court held that the evidence was admissible because there was no duress involved in obiaining the evidence and the accused was not compelled in any way to incriminate himself ‘SV.LWANE In this case the court held thatthe presiding officer has a duty to warn the accused of his right not to give self-incriminating evidence. [bwane wes not warned ofthis right when he made statement and even though he committed the offence, the evidence was exchided because his right toa fair trial was in‘ringed SV HAMMER ‘The accused was an 18 yrold male who wrote a leter to his mother while in custody. The paper for th letter was provided by the police who undertook not to read the letter and 10 ve the eter to his mother ‘The police however read the letter and geve i (othe Attorney Gene the Director of Publie Prosecutions. ‘Thefaewe was whether the accused could be cross-examined about the conten of the eter. ‘The cour disallowed eross-examination and held that the right to privacy of the accused was infringed. ‘The court held thet courts should develop a general discretion to exdude improperly ‘obiained evidence on te grounds of unfairness and public policy. ‘whe in tum gave it to ‘THE INTERIM CONSTITUTION 20011993 ‘The interim Constitution did not contain any express provision dealing witk dhe admissiili ‘of unconstitutional obtained evidence Section 744) of the interim Constitution provides that “When itis alleged that any right tntenched in the bil of rights had boen threstoned or infringed, a person may apply to & ompetent cour for appropriate rele.” This section did not specifically state that unconstiutionally obwined evidence must be excloded By =e ew ewe eee eee eee eee‘Our courts held on number of occasions thatthe exc evidence constituted appropriate relief obtained ‘SV MELAN SY MOTLouTs! ‘The accused was arested and the police weat to his house and searched his property without search warrant. The police found bloodstained bank notes which was hidden in one ofthe speakers of his music The issue was whether the evidence was admissible The court held that when the evidence obtained by the state is « deliberate and conscious Violation of the constitutional rights of the accused, the evidence must in general be excluded unless there ae extraordinary excusing circumstances which would warrant its admission, ‘The court held that there were no extraordinary excusing circumstances andthe evidence was therefore not admis. ‘once it is accepted tht the court has a diseretion, even in « nomconstnuonal context, to exclude Megally obtained evidence, then it must fellow tht in a case where the violation of ‘constitutional rights is involved the court will also have a dleretion to exclade evidence so ‘obtained ‘The court rejected the rigid exclusionary rule ‘prevents the admission of relevant and vital fats where unintentional or trivial legalities have been commited in the course of ascertaining them. Faimess does not require such rule and common sense rejects i.” Further examples S vNombew 1996 (2) SACR 396 (F) 'S vMalefo 1998 1 SACK 127 (W) ‘The approach with which judicial discretion should be exercised (©) Canadian approach Followed in e.g v Nombewy Sv Malefo Section 242) of the Canadian Charter “the evidence shall be exeluded its established that heving regard to allcisumstances admission of inthe proceedings would bring the administration of justice in disreput ‘When would the administration of justice be brought into disrepute? Rv Collins BaSv Malefo ‘The Cenadian approach comes down wo the reasonable person test Jn farther Canadian case lam, the courts developed three factors that should be ‘considered when deciding whether the administration of justice would be brought into ‘disrepute: Ry Richardson (@) Faimess of the rial process () Seriousness of the violation (©) Theconsequences of admiting the evidence vs. The effect of excluding the evidence Ds rm stitution ‘x Naidoo (be dealt with lat) ‘Sv Shonzwe (tobe dcalt with ltr) (©) Irish Approach Stricter epproach followed in $v Motloust The People (Attomey-General) v OBrien “Where there has heen a deliberate and conscious violation of constitutional rigs bythe state or its agents evidence obtained by such violation should in general be exclude, . there may be certain ‘extraordinary excusing circumstances’ which may warrant ts admission.” &> SECTION 35(S) OF THE CONSTITUTION ‘S35(5) ofthe Constitution provides that evidence obtained in a manner that violates any right in the Bil of Rights must be excluded ifthe admission of the evidence woule render the tral unfar or otherwise be detrimental tothe administration of justice. (GENERAL PRINCIPLES Diseretion” '$35(6 isa qualified exclusionary rul ‘The courts have a duty to exclade unconstitutionaly obiined evidence only ithe admission of the evidence would have one of the consequences provided for in the section, ‘The cour has a diseretion in determining whether the admission of evidence wil have one of the identified consequences. (tral unfair or detrimental tothe administration of jstice) s ‘Two policemen forelbly entered the premises of the accused afer receiving information that they Were in possession of firearms. ‘The information indicted that the scused were likely to resist arrest and ‘here was also & possibility that «shoot-out would occur ifthe preseace ofthe police became known, ‘When entering the premises the police asked the accused who was asleep on the floor whether they could search the room and the accused consented. The court accepted that the consent was pven under dures since the police rie was pointed at the accused a the time. The defence argued tha the right to privacy of the accused had been violated and that the evidence shouldbe excluded, The court held that usually evidence obtained in this manner should be exuded, however cach cate had to be decided based om the facts. The court then exercised its diseretion in admitting the evidence and gave the folowing reasons for doing 0, Firstly the accused was suspecting of having committed « serious erime involving the use of firearms o killa person. Secondly, the information received by the police indicated thatthe accused were in possession of firearms and were likely to resist arrest, ‘Thirdly, the suroundings where the room ofthe accused was situated were such that a shoot- ‘out might occur ifthe usual methods of aes and search were not posible The cout held that onthe evidence ofthe two policemen, the interests of safety tothe police, ‘the community and the accused, warranted the forcible entry and demand which was desided spon ‘The extent of the infringement of the right to privacy was importance of achieving the object of the search. jgnificant compared to the ‘The cout however pointed out that this judgment should not be construed asx blanket authority tothe police to use unorthodox methods inthe investigation of eximes, 8HNAIDOO ‘The eccused were charged with robbery ata security firm in the basis of evince obtained by \way of recordings of telephone conversations. “The police gave false and misleading information tothe presiding officer when they applied for the warrant to recor the telephone conversations. ‘The court eld that admission of the evidence obuained by way of false and misleading information to obtain warrant would render the trial unfair Te court exercised its discretion and held that the evidence was inadmbsible because it ‘violated the right to privacy ofthe accused, Test '$35(5) will oly find application where evidence was obtained after a breach of ‘constitutional rights o in breseh of constitutional rights Where evidence was obtained improperly or illegally (where there was no breach of constitutional rights), the admissibility thereof must be determined on the basis of the court's ‘common law discretion (Liane, Mushi ymer, Ne SV MPHALA ‘Two accused were arested andthe police duly informed them oftheir right to consult with » legal practitioner and of al their rights in terms of S35 of the Constitution, ‘The attorney of the accused the telephoned the investigating officer and requested him to advise his clients that he was on his way and that they should not make any statements or pointing out until he had an opportunity to consult with them. "The investigating officer advised the attomey tha the accused wished to make statements and that thie would occu later the day. ‘When the attomey arived atthe police station he discovered that the Investigating officer already took statements from the accused. ‘The police officer argued that he informed the accused oftheir rights and they agreed to make the statement ‘The issue was whether this was informed consent by the accused to waive tiir constitutional, ight wo a fair il ‘The court held that this was not an informed waiver because counsel was not given an ‘opportunity to consult with the accused, ‘The police red to circumvent counsel by taking the statements ‘The court held that the evidence was therefore and hat admission thereof woud be detrimental to the administration of Justice sae eum nm eee ewe ew ee ee eeThe question s wheter ther isa causal link between the Infringement and the evidence to decide whether the evidence wil be admissible. ‘This is a question of facto be datermined within the circumstances ofthe case SV MARK (aust know facts ~ discuss causal link and what does it mean ‘The four witneses inthis case observed the killing of fellow prisoner while being transported {fom Pollsmoor prison to other prisons. After the murder the witnesses were assaulted by prison officials to disclose the identity ofthe ‘murderer and statements were made by them implicating the accuse ‘When the witnesses testified in court two years later, two of the witnesses were already released and one was released during the tral. Counsel for the defence argued that the statements given by the state wimesses were obtained in violation oftheir constitutional right to dignity and bodily integrity and shouli be excluded The issue was whether there was a suffident link beoween the infringement of their constitutional rights and the evidence which was obtained in court. ‘The court admitted the evidence because the witnesses claimed to testify volurtarily and tere vas no threat to public safety asthe deed had already been commited ‘The cour held that there was mo ink between the infringement ofthe constitutional rights of the witnesses and the evidence which was obtained two and a half years later The court held that the statements obtained from the witnesses after they were assaulted ‘were inadmissible bu the testimony in court was admissible because the witnesses claimed to testy Voluntarily, however this testimony shouldbe subject to careful scrutiny ‘The court examined the evidence and held that due tothe many contradictions in the esimony of the witnesses, it was mot proven that the accused committed the offence beyond a reasonable doubi. sysocr ‘The accused was charged with murder and robbery. He made a pointing out bt prior tothe pointing out he was not properly informed of hs right to legal representation. ‘The warning given tothe accused prior tothe pointing out and the proforma form used by the police was not very specific us to what his rights were. ‘The accused later made a statement to the mapistate and prior to making the statement the ‘magistrate informed the aceused that he was entitled to legal representation before making the statement and advised the coused fo obtain the services of legal pretitoner through the Legal Aid Board. ‘The issue was whether there was a link between the unconsttutios Deing the pointing out, and te statement made tothe magistrate. obtained evidence, ‘The cour held that the evidence of the pointing out was obtained unconsitutionslly and should be excluded, The accused however voluntarily decided to make the stalement to the magistrate without consulting legal practitioner.‘This waiver provided a break inthe chain of events and therefore there was no link between the infringement and the evidence obtained. ‘The evidence of the statement made tothe magistrate was accordingly admissible, Evidence Unconsttutionally Obtained by Private Individuals (no police ocers) 'S35(5) also applies to the situation where the prosecution wishes to intoduve evidence "unconstitutionally obtained by private individuals ‘The court may however consider the fac tha the evidence wa obtained by pivate individuals, in deciding whether the admission ofthe evidence would be detrimental tothe administration of justice ‘A motor car manufacturer who suffered severe losses due to internal theft obtained the assistance of Joss control consultant o assis in reducing the incidence ofthe. The loss contol consultant was a private person and in o way connected wo the state A trap was set and photographs and tape recordings were obtained without the accased being aware ofthe true postion. ‘The issue was whether the admission of the evidence of the entrapment rendered the trial ‘or was otherwise detrimental tothe adminkstration of justice. ‘Thesgourgheld thatthe evidence was admissible and did not render the trial unfair and furthermore that the admission was advantageous, rather dn detrimental tothe administration of justice 'S35(6) has two lege: ‘The far tral rights are listed in $35(3) ofthe Constitution, evidence is obtained in contravention of S35(3) then it must be excluded in terms of S35(8), unless i is ustifed in terms of S36, Application of $36 SvZama In this case the cour held that theright to a fair tiat “embraces a concept of substantive fairness” 8In Key v Attorney-General, the court held tht the right 1 tial conducted must be in accordance with the notions of base fairness, Sw Lottering ‘eial fairmess and the court's discretion Discretion reals from the broad interpretation given tothe “fair trial concept? sem ‘SYLOTTERING | ‘The accused stabbed the deceased in the back and then ran Into a nightclub. Altes informed the police thatthe accused was in the nightclub and then socompanied the police into the nightclub and pointed out the accused. ‘The police informed the accused of the allegations, arested the accused and demanded (0 know where the weapon was. ‘The accused then pointed out a person and this person handed the knife tothe police. ‘The defence relied on S35 ofthe constitution and argued tht prior tothe pointing out and the aest, the accused was mot informed of his right to remain silent his right 10 legal representation and his right to be presumed innocent The count made a value judgment by weighing up the competing interests sn held that even ‘hough the constitutional rights of the accused were violated snd he made an incriminating admission, the evidence was admissible ‘The cout sid down the reasons for admiting the evidence, namely |.” The falure by the police officer to advise the accused of his rights was not deliberate or ‘agra 2. The police tad to act expeditiously to recover th knife and he did what any reasonable policeman would have done, which isto question the suspect 3. There were no threats, no intimidation and no frce used by the policeman. 4 Theaccused acted voluntarily S. The accused was not prejudiced because be did not enter the witness box during the ‘rial within atrial to say that if he had been informed of his rights, he would not have made the pointing out ‘The court held that exch ease hnd fo be judged omits own facts and the cour will exercise its iseretion in terms of S35(3). “The court pointed out that this judgment should not be construed as eense police officers to lgnore the constitutional protection afforded to accused persons. (a in Mada) (Madiba and Lottering are examples where the court decided to admit the evidence based ‘onthe facts) 88‘Theprivilege against sl 35(1)a) and () 'S35() provides that everyone who is arested for allegedly commiting an offence has the right — (@ twremainsilent (©) 10 be informed promply of the right to remain silent and of the consequences of nat remaining silent ‘The accused must be informed of these rights incrimination and related constituona rights Failure? SVLOTTERING ‘Value Judgment? WAIVER OF FAIR TRIAL RIGHT: ‘An accused may waive the exercise of his fir ral rights, but t must bean Informed waiver MPHALA ‘were arestod and the palice duly informed them of their right to consult with a legal practitioner and of all their ight in terms of S35 ofthe Constitution. ‘Theattorney ofthe accused then telephoned the investigating officer and requested im to advise his clients that he was on his way and that they should mot make aay statements or pointing out until he had an opportunity to consult with them. ‘The investigating officer advised the atorney thatthe accused wished to make statements and that his would oocur later the day. When the attomey arived at the polis station he discovered that the investigating officer already took statements from the accused ‘The police officer arguod that he informed the accused of thelr rights and they agreed 19 make the statement ‘The Iesue was whether this was informed consent by the accused to waive tir constitutional Fight to afar tril ‘The court eld that this was not an opportunity to consult with the accuse. ‘The police tried to circumvent counsel by taking the statements, ‘The cout held tat the evidence was therefore and that mission thereof would be detriment of just formed waiver because counsel was not given an Ifthe accused were effectively askod to waive their constitutional right by making statements, such consent must be uninformed consent aq memeewew ee eee eee ee1m Key v Attorney-General, the court held that the right to tial condu:tad must be in accordance withthe notions of basic fairness. Sw Lottering ‘ial fairness and the court's dis Discretion resuls from the broad interpretation given tothe ‘far trial concept? sem SYLOTTERING ‘The accused stabbed the deceased inthe back and then ran into a nightclub, ‘A wimess informed the police thatthe accused was inthe nightclub and then accompanied the police into the nightclub and pointed out the accused. ‘The police informed the accused of the allegations, aresed the accused and demanded to iknow where the weapon was. The accused then pointed out a person and this person handed the knife othe police. ‘The defence relied on S35 of the consituton and argued tha prior to the potting out andthe anrest, the accused was not informed of his right to remain silent, his right 10 legal representation and his right o be presumes innocent. ‘The court made a value judgment by weighing up the competing interests and held that even ‘though the constiutional rights of the accused were violated and he made an incriminating ‘admission, the evidence was admissible, ‘The court iaid down the reasons for admitting the evidence, namely: |. The fallure by the police officer to advise the accused of his rights was nt deliberate or Aagrant 2. The police Wad to act expeditiously 1o recover the knife and he di what any reasonable policeman would have done, which isto question the suspect 3. There were no threats, no intimidation and no force used by the policeman 4. Theaecused acted voluntarily 5. The accused was not prejudiced because be did not enter the witness box during the trial within atrial to say that if he had been informed of his rights he would not have ‘ade the pointing out The court eld that exch ease had tobe judged on its own facts and the court will exerese its discretion in tems of $38(8). ‘The court pointed ou that this judgment should not be construed asa lcense fo police officers ‘o ignore the constitutional protection afforded 1 accused persons, (a n Mabe) (Madiba and Lottering are examples where the court decided to admit the evidence based fon the facts) 88The in The privilege agnns selt-ncriminaion and related constitutional hts 5 35(1)a) and () 'S35() provides that everyone who is arrested for allegedly committing an offeace has the right — (@)toremainsilent () 10 be informed promptly of the right to remain silent and of the consequences of not remaining silent ‘The cused must be informed of these rights Failure? SVLOTTERING ‘Value Judgment” WAIVER OF FAIR TRIAL RIGHT: ‘An accused may waive the exercise of his fir il rights, but it must bean Informed waiver ‘SVMPHALA ‘Two accused were ested and the police duly informed them oftheir right to consult with a legal practitioner and ofall ther right in terms of S35 ofthe Constitution. The attorney of the accused then telephoned the investigating officer and royusted him to Advise his clients that he wat on his way and that they should mot make aay’ statements or pointing out until he had an opportunity to consul with them. The investigating oficr advised the atiomey thatthe acused wished to make statements nd that this wold occur later the day. When the attorney arrived at the police tation he discovered thatthe Investigating officer already took statements from the accused. ‘The police officer argued that he informed the accused of their rights end they agreed to make the statement. ‘The insue was whether tis was Informed consent by the accused fo waive their constitutional right oa fair trial, ‘The court held tht ths was mot am informed waiver because counsel was not given an ‘opportunity to consult with the accused ‘The police tied to cireamvent counsel by taking the statements ‘The court held thatthe evidence was therefore and tat admission thereof woud be detrimental to the administration of justice Ifthe accused were effectively asked to waive their constitutional rights by aking statements, such consent must bean informed consent ae ce aa aThe privilege against so incrimination is limited to testimonial utterances or communications snd does not extend to real evidence emanating from the acused (money et asin Motos) Therefore questions as to the admissibility of unconsttutionally obtained real evidence or “evidence emanating’ from the aceused should nonmally be decided upon unde the second le ‘9 $35(5} (evidence would be detrimental tthe administration of justice) Pillay and Others v § ‘Trial fairness and the admissibility of identification evidence obtained at an identification Datade held in the absence ofthe accused's legal representative Such evidence eanmot be excluded on the basis of an infringement of the privilege against selincrimination SECOND LEG OF _$ _35(5):"IF..ADMISSION...WOULD OTHERWISE _BE DETRIMENTAL TO THE ADMINISTRATION OF JUSTICE” Intexpretation Fina Ter Even where the admission of evidence would not render stil unfair, it must nevertheless be ‘excluded where the admission thereof would be detrimental tothe administration of justice EACTORS TO DETERMINE WHETHER THE ADMISSION OF EVIDENCE WOULD ‘BE DETRIMENTAL TO THE ADMINISTRATION OF JUSTICE, () PUBLIC OPINION ‘What role should pubic opinion play? In $V MAKWANYANE which dealt withthe constitutionality of the Jeah penalty, it \wssnoied that public pinion did have some relevance, however it was no substitute for the duty vested Im the courts to interpret the constitution ani to uphold its provisions without fear or fivour sy 7 Jo‘The accused was charged with murder and robbery Fe made « pointing out bu prior tothe pointing out he wos nt property informed of his right to legal representation, ‘The warning given to the accused prior tthe pointing out andthe proforma form used bythe police was not very specif as to What his rights were. The accused later made a statement othe magistrate and prior to making the statement the magistrate informed the aceused that he was entitled to legal representation before making the statement and advised the accuse to obtain {he services ofa legal practitioner though the Legal Aid Board. ‘The issue was whether there was a link berveea the unconstitutionally obtained evidence, being the pointing out, ad the statement made tothe magistrate, ‘The court held thatthe evidence ofthe pointing out was obtained unconstitutionally and should be excluded. ‘The accused however voluntarily, knowingly and intelligently decided to make the statement without consulting a legal practitioner. ‘This decision was neither direc nor indirectly affected by the prior ‘constitutions conduct of the police in relation tothe pointing out ‘Ths valid waiver provided a break in the chain of events and thereforethere was zo link berveen the infringement and the evidence obained ‘The evidence ofthe statement made tothe magistrate was according! admissible SV SHONGWE ‘This case dealt murder. “The court had o determine whether a statement made by the accused was ‘admissible because prior to making the statement he was not informed of| ‘constitutional rights “The cout held tit there was no indication that the police acted mala fide but thatthe infringement ofthe rights of the accused was asa result of ignorance The cour eld thatthe aequittal of a clearly gulty person onthe bass that his constitutional rights were infringed would perceive human rights as nothing more ‘han a loophole trough which criminals could escape the consequences of their seeds ‘The court held tat the country was experiencing an unprecedented wave of vlessness and tht the public expected firm aetion from the courts ‘The evidence was therefore admissible th axl Wloence which resulta in the accused being charged with SYMPHALA ‘Two accused were aresed and the police uly informed them oftheir ht to consult with legal practioner and of all het rights in terms of S35, of the Constitution ‘The attorney ofthe accused then telephoned the investigating officer and requested. him to advise his clients hat he was on his way and that they should not ‘make any statements or pointing out until he had an opportunity to consult with them. a“The investigating officer advised the attomey that he aceused wished to make statements and that tis would occur later the day. ‘When the atomey arsved at the police station he discovered thatthe investigating ‘officer already took statements from the aceued ‘The police officer argued that he informed the accused of their rights and they greed to make the statement, “The issue was whether thie wae informed consent by the accused to waive their constitutional right to a fir a “The cout held that this was not an Informed waiver be:ause counsel wss not given ‘an opportunity to consult withthe accused. ‘The police tried to eireumnvent counsel by taking the statements The court held that the evidence was therefore and that admission thereof would be ‘detrimental tothe administration of Justice ‘THE GOOD/BAD FAITH OF THE POLICE (i if the admission of such evidense would lead to an unfair trial in terms of S35(5), the evidence shoul be excluded whether the police acted in good faith or nat However, if this is not the ease, the question is whether the good faith of the police ‘ean be taken Into account 10 decide whether the evidence would “otherwise be detrimental tothe SV.MorLourTst ‘The accused was arrested and the police went 10 his house end searched his property without a search warrant. ‘The police found bloodstained bank notes which was hidden in one ofthe speakers of his musi system. The issue was whether the evidence was admissible, ‘The court hei thatthe palice could have obtained a search warrant. ‘The court held that when the evidence obtained by the slate is deliberate and violation ofthe constitutional rights of the accused, the evidence must in general be excluded unless there are extraordinary excusing clrcumstanees which would warrant its edmission ‘The court held that there were no extraordinary excusing circumstances and the evidence was therefore not admissible, conceit is accepted that the court has a discretion, even in # non

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