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Citation:
Nicci Whitear-Nel, Law of Evidence, 24 S. Afr. J. Crim.
Just. 382, 398 (2011)

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382 SACJ * (2011) 3

own acts committed in the United Kingdom (at 138d). Furthermore,

the state's concession during argument that it would have to revisit or
abandon several of the counts against the respondent pointed to a lack
of clarity or finality in respect of the charges it intended to ultimately
prefer against the respondent (at 139b-i). This in itself, according to
the court, was fatal to the state's case.
Ultimately, taking all of the above reasons into account, the Supreme
Court of Appeal was of the view that the state had no prospects of
success. The application for leave to appeal was therefore dismissed.

Law of evidence
NICCI WHITEAR-NEL
University of KwaZulu-Natal,Pietermaritzburg

Admissibility of a confession
The case of S v Mkhize 2011 (1) SACR 554 (KZD) dealt with the
admissibility of a confession obtained from the accused during his
unlawful detention by the police.
The accused was charged with two counts of murder, the first
arising out of an incident on 1 November 2008, and the second from
an incident on 5 February 2009. The accused pleaded not guilty to
both charges. The prosecution called witnesses to support their case,
but the main evidence against the accused was the confession he
had allegedly made to one Captain Eva. The accused objected to the
admission of the confession on the basis that he had been forced to
make the confession by threats and assaults (at para 12). A trial within
a trial was (correctly) held to determine the matter.
Five witnesses testified for the prosecution. They testified that they had
followed the correct procedures, had properly explained the accused's
rights to him, and that the accused had freely and voluntarily chosen to
make his confession to Captain Eva. They conceded that although they
arrested and detained the accused on 27 August 2009, he was brought
to court for the first time only on 6 November 2009 (at paras 15-27). The
accused was thus in unlawful detention for well over 2 months.
The accused denied that his rights had been explained to him,
and denied that he had chosen to confess. He testified that he had
Recent cases 383

been threatened and tortured into making the confession (at paras
30-31).
This was the evidence on which the court had to determine the
admissibility of the confession. The court started by referring to s 35 of
the Constitution of the Republic of South Africa, 1996, which sets out
the rights of an arrested person, and s 50(1) of the Criminal Procedure
Act 51 of 1977, which provides that an accused has the right to be
brought to court within 48 hours of his arrest. The court held that
this was the background against which the case should be assessed
(at para 39).
The court noted that the most shocking thing about the case was
the fact that the accused was not brought to court within 48 hours
of his arrest on 27 August 2009, nor within 48 hours of 3 November
2009, when his warning statement was taken (at para 39). The
'enormity of his unlawful detention was compounded by obtaining
a confession from him on 5 November 2009, when he should rather
have been before a court' (at para 42). The court held the police's
conduct was reminiscent of the dark days of apartheid, and had
no place in the present democratic order (at para 52). The court
rejected the explanations tendered for failing to bring the accused
to court within 48 hours of his arrest as nonsensical, and held that
none of the exceptions to the 48 hour rule applied (at paras 41, 43).
The court found that the accused's rights were flagrantly violated
and that his constitutional protections were made a mockery of
by experienced police officers who should have known better (at
para 43). The court held that this conduct called into question
the police's motives and reflected poorly on their credibility and
reliability (at para 42). Against this background, the court proceeded
to evaluate the evidence.
The court held that the fact that the police officers had flagrantly
disregarded the accused's rights was a strong factor indicating that
the accused had a stronger claim to credibility than they did (at
para 63). The police officers' credibility, reliability and bona fides
was called into question by virtue of their flouting the procedures
designed to protect the accused against improper police conduct (at
para 42), which at best revealed poor and shoddy police work and at
worst was suspicious (at para 71). In contrast, the accused's evidence
was satisfactory (at para 72). In addition, the court noted numerous
improbabilities in the state's version and found that there were
aspects of the state's evidence that actually supported the version put
forward by the accused (at para 69). Therefore, the court concluded
that the version of the accused was reasonably possibly true and was
accepted over that put forward by the state (at para 72).
384 SACJ * (2011) 3

The court then had to consider whether the confession should be

excluded from the evidence. The court added (in a somewhat self-
evident statement) that 'great caution should be exercised before
deciding whether the contents of a confession should be admissible or
not' (at para 53).
There are three possible bases for the exclusion of an accused's
confession. Unfortunately, while the court deals with - or at least
alludes to - each of these possibilities, it does not do so clearly, nor
does it distinguish carefully between the different possibilities. These
three possibilities are the following:

(1) General common-law discretion

The court held that because the confession was obtained during the
accused's unlawful detention, it could not be said to have been properly
and legally taken (at para 48). The court distinguished S v Shabalala
1996 (1) SACR 627 (A), where the court had held that confessions
taken during the accused's unlawful detention were admissible, on the
basis that in Shabalalathere was no constitutional challenge to the
admissibility of the evidence in terms of the Interim Constitution, nor
had the appellants persisted in their contention that the confessions
had been illegally obtained (at para 47).
However, the court does not take this argument any further, which
is a pity because it raises the interesting issue whether the court
retains a general discretion to exclude confessions other than for non-
compliance with s 217 of the Criminal Procedure Act, or a violation
of the Constitution. The issue is however probably mostly academic,
because most illegality outside of non-compliance with s 217 is
subsumed within constitutional grounds for attacking the admissibility
of a confession (see S v Khan 1997 (2) SACR 611 (SCA)). However, in S
v Zurich 2010 (1) SACR 171 (SCA), the court held, albeit in a different
context, that there was no doubt that it retained its common-law
discretion to exclude improperly obtained evidence on the grounds of
unfairness and public policy.

(2) Unconstitutionally obtained evidence

The court referred to s 35(1)(d) of the Constitution, and 'the imperative
on all criminal trials to be conducted in accordance with the notions
of basic fairness and justice' (at para 49), and found that 'the
evidence, obtained in violation of the accused's fundamental rights, is
inadmissible' (at para 50).
The court referred to S v Viljoen 2003 (4) BCLR 450 (T) and expressed
its agreement with Patel J that (at para 51)
Recent cases 385

,...there is no discretion afforded to a judicial officer when he/she is

confronted with a situation where evidence is obtained unconstitutionally.
To admit such evidence, contaminated as it is, will be a violation of the
accused's rights and, above all, will be prejudicial to the administration of
justice'.

The court also referred to S v Burger 2010 (2) SACR 1 (SCA), to the
effect that the rights in s 35 are not to be flouted, and that such
conduct should be dealt with decisively by the relevant authorities' (at
para 52).
It is remarkable that the court only refers to s 35(1)(d) of the
Constitution, which affords an arrested person the right to be
brought to court within 48 hours, as supporting its assertion that
the confession is inadmissible. There are several other provisions
of the Constitution that relate significantly to the question of the
admissibility of the confession, on the central facts of the case.
Section 35(1)(c) provides that every accused person has the right
not to be compelled to make a confession. Sections 35(1)(a) and
(b), read with s 35(4), also give such a person the rights to remain
silent, as well as to be informed promptly of this right and of the
consequences of not remaining silent, in a language that the person
understands. Section 35(2) provides that arrested persons have the
right to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly, in a language that he understands.
Last but not least, s 35(3)(j) provides for the right to a fair trial,
which includes (but is not limited to) the right not to be compelled
to give self-incriminating evidence.
It is also of concern that the court refers to S v Viloen 2003 (4) BCLR
450 (T) as authority for its position, when that case was overturned
and severely criticized on appeal (Director of Public Prosecutions,
Transvaal v Viljoen 2005 (1) SACR 505 (SCA)). One of the questions
which the Supreme Court of Appeal had to determine was whether
a violation of an accused's fundamental rights rendered evidence
obtained as a result ipso facto inadmissible at his trial - to which
the Court answered in the negative. Thus, the statement of Patel J
which the court in casu specifically aligns itself with, was found to be
incorrect.
In any event, a reading of s 35(5) of the Constitution shows
that it is fallacious to argue that there is no discretion to include
unconstitutionally obtained evidence. In Key vAttorney-General,Cape
ProvincialDivision 1996 (2) SACR 113 (CC) at para 13, the court held
that '[a]t times fairness might require that evidence unconstitutionally
obtained be excluded. But there will also be times when fairness
will require that evidence, albeit obtained unconstitutionally,
nevertheless be admitted.' The obligation to exclude such evidence
386 SACJ * (2011) 3

only arises when it has been found that there has been a violation
of a constitutional right, that there is a sufficiently close causal link
between the violation and the procurement of the evidence and that
to include the evidence would render the trial unfair or be otherwise
detrimental to the interests of justice. These issues must be decided
on the facts (Directorof Public Prosecutions, Transvaal v Viljoen
supra at para 37).
Inevitably, where the accused's fundamental rights have been
violated, the inclusion of evidence obtained as result will result in an
unfair trial, and thus must be excluded. In casu, on the facts as found
by the court, the exclusion of the confession on the basis of s 35(5)
was clearly required, since the accused's fundamental rights had so
flagrantly been violated.

(3) Section 217 of the Criminal Procedure Act 51 of 1977

The court held that 'assuming the confession could not be attacked on
a constitutional basis' it was necessary to evaluate the evidence of the
witnesses to assess whether the requirements of s 217 of the Criminal
Procedure Act were met (at para 53). Against these requirements,
the court held that the evidence showed that the confession had not
been made freely and voluntarily, and without undue influence (for
various reasons including that he had been threatened and tortured
into making it). It was therefore inadmissible in terms of s 217(1) of the
Criminal Procedure Act (at para 75).
Having found the confession to be inadmissible, the court then
proceeded to analyse the other evidence for the prosecution, to assess
whether proof beyond a reasonable doubt had been established (at paras
77-87). The court noted that the state's case was based almost entirely
on the inadmissible confession and noted its concern that invariably,
when the evidence implicating the accused was insufficient to sustain a
conviction, an alleged confession was pulled out of the hat. The court
reaches the conclusion that 'something must be wrong with police
investigation, notwithstanding some of the difficulties which the police
authorities face on a daily basis in our country' (at para 89).
In casu, the court concluded that the evidence was not sufficient
to meet the burden of proof. The accused was acquitted (at paras
90-93), despite the fact that the court harboured a suspicion that the
accused was involved in the commission of the offences with which
he was charged (at para 91). The outcome of the case is undoubtedly
correct, but it is regrettable that the reasoning of the court is so murky.
Nevertheless, an important principle to emerge from the case is that
police officers' disregard for the law may lead to adverse credibility
findings against them.
Recent cases 387

Use of documentary evidence for purpose other than that

for which it was submitted
The case of S v Van DerMerwe and others 2011 (2) SACR 509 (FB) deals
with an appeal against the sentences imposed on the appellants in the
court a quo as a result of their convictions on charges of crimen injuria.
One of the grounds of the appeal was that the court a quo had erred
in using certain documentary evidence, which had been submitted by
the appellants for a specific limited purpose, for a different purpose,
namely as a factor aggravating sentence. This discussion addresses
only that ground of appeal.
The documentary evidence in question was a newspaper article,
which contained quotes from various members of the community in
which they expressed their views on the conduct of the appellants.
The appellants had tendered the newspaper article into evidence as
support for their argument in mitigation of sentence that they had
already been subjected to harsh public treatment as a result of their
conduct (at para 46). None of the members of the community who
were quoted in the article testified in the trial and it was found that the
comments they had made were based on a portrayal of the incident
which was not factually accurate (at paras 50-51). Nevertheless, the
court a quo relied on the content of the newspaper article as being a
true reflection of the convictions of the community and treated this as
an aggravating factor in determining sentence (at para 47). The court a
quo appeared to reason that this was justifiable because the appellants
had introduced the document into evidence and had thereby implicitly
admitted the truth of its contents (ibid).
The High Court found this to have been an unjustified assumption.
It found that the use of the newspaper article as a factor aggravating
sentence was unfair, and impermissible on a number of grounds.
In the first place, the appellants had tendered the document for the
specific and narrow purpose of revealing how the appellants had been
portrayed in the media. It was unfair for the court a quo to have
used it for a different purpose, particularly since the appellants had
been given no advance warning of this (at para 48). Secondly, the
content of the article was nothing more than hearsay evidence, since
the members of the community quoted in the article were never called
as witnesses. This was not taken into account by the court a quo
when relying on the content of the newspaper article as evidence in
aggravation of sentence (at para 47). In addition, the court a quo had
not been mindful of the fact that press articles cannot be reliably used
to gauge the convictions of the community (at para 49). In the instant
case, the unreliability of the article was compounded by the fact that
the comments quoted in the article were not made on the basis of the
true facts as proved in court (at para 50).
388 SACJ * (2011) 3

Ultimately, the High Court found that this was one of the errors
that had led the court a quo to overemphasise the interests of the
community at the expense of the appellants, and which had led to an
inappropriate sentence being imposed (at para 84).

Reconstruction of record, new evidence on appeal,

identification evidence
In the case of S v Ncube and others 2011 (2) SACR 471 (GSJ), the
appellants appealed against their convictions and sentences in the
court a quo. The appellants were convicted of robbery on the basis of
expert evidence identifying them from photographs taken at the time
of the robbery. When the High Court was seized with the matter, it
discovered that the record of the proceedings in the court a quo with
regard to sentencing was incomplete - only the sentence imposed by
the court a quo was reflected in the record for the sentencing part of the
judgment. Attempts made by the state to reconstruct the record were
unsuccessful (at 473) and it thus fell to the appeal court to do so.
The court held that fairness in the reconstruction process is part
and parcel of the right to a fair trial and required (inter alia) that the
appellants be properly informed about the need for and extent of the
reconstruction required, and that they be afforded the opportunity to
participate in the reconstruction process, with all the rights usually
attendant on a trial (at 473, referring to S v Gora 2010 (1) SACR 159
(WCC) and S v Zenzile 2009 (2) SACR 407 (WCC)). In casu, the first
and third appellants, when invited to participate in the reconstruction
process, indicated that they were not able to assist, but the second
appellant could remember what had transpired and was willing to
assist (at 473-474). The court then notified each of the appellants that it
would allow them to present mitigating factors to the court anew. The
appellants and the state representative consented to this procedure
(at 474).
The court reasoned that it was allowed to receive new evidence in
exceptional circumstances and that this was such a case. The court held
further that the interests of justice and considerations of convenience
and efficiency require that the matter be dealt with in this way, and
that the receipt of new evidence in such a situation was authorized by
s 304(2)(b) read with s 309B(3) of the Criminal Procedure Act 51 of
1977, and s 22 of the Supreme Court Act 59 of 1959 (at 474-475)).
The court ruled that the evidence of the second appellant was received
as part of the reconstruction process, and also as new evidence. The
evidence of the first and third appellants was received only as new
evidence (at 475). The evidence was taken and inserted into the record,
Recent cases 389

and the court then proceeded to deal with the merits of the appeal (at
476-477). The reasoning of the court cannot be faulted.
On the merits of the appeal against conviction, the only issue for
the court to decide was whether the appellants had been properly
identified as the perpetrators of the crime (at 477). The only evidence
which identified the appellants was photographs taken at the crime
scene. It was common cause that the photographs were taken at the
relevant time, that they accurately reflected the events portrayed and
that they captured the images of the perpetrators of the robbery (at
477).The only issue in dispute was whether the identification of the
appellants as those who appeared in the photographs was sufficient to
sustain a conviction. A facial identification expert testified for the state
and she pointed out a number of features in respect of each of the
appellants in the photographs, which she contended were sufficient
to identify the appellants as the perpetrators of the robbery, beyond
reasonable doubt (at 478).
The court noted that the function of the expert is not to decide a
case, but to provide the court with an opinion to assist it in determining
the case. It held that '[t]he function of the expert is only to assist
insofar as the court requires assistance with the skills which the court
will use in the process of comparing the pictures with the appellants'
(at 478). The court also noted that it was not bound by the opinions
expressed by the expert and that it would only accept the expert's
opinions if they had a strong foundation (at 478; see also Mutual
and FederalInsurancev SMD Telecommunications [2011] 2 All SA 34
(SCA), discussed by Meintjes-Van der Walt 'Evidence' (2011) 24 SACJ
213-217)). There is nothing controversial in the principles enunciated
by the court here.
The court indicated that it was important to bear in mind the
distinction between the scientific and judicial measure of proof, and
found that the magistrate had done this in a lengthy judgment which
considered all the pertinent issues (at 478), and that the evidence had
been fully and completely analysed (at 477). In concluding that the
appellants had been properly identified and thus properly convicted,
the court added that it should be remembered that the magistrate had
the benefit not only of the expert evidence, but was also able to rely
on his own observations of the appellants who had been in court over
the period of the trial (at 478).
Although the court did not explicitly refer to the cautionary rule
attaching to identification evidence, the comments by the Supreme
Court of Appeal in S vMablangu 2011 (2) SACR 164 (SCA) are apposite:
in the face of a careful and thorough analysis of the evidence, it would
be disingenuous to argue that the cautionary rule had been disregarded
simply because it was not explicitly referred to (at para 23).
390 SACJ * (2011) 3

The court in Ncube did not explain how the expert had qualified
herself as a facial identification expert, nor did it set out in any detail
how the expert had formed the opinion that it was the appellants
reflected in the photographs, although it appears that the magistrate
had also formed this opinion himself. The court does not indicate
whether any special forensic techniques were applied (e g, image
enhancement or facial mapping), nor what the quality of the original
photographs was. It is therefore difficult to critically evaluate the
court a quo's finding that the appellants were correctly identified. It
is nonetheless intriguing to note that the appellants submitted that
there were features which suggested that the identification was wrong,
including scarring which was not reflected on the photographs (at
478). What these features (other than the scarring) were and whether
they could be adequately explained is unfortunately not discussed in
the judgment.

Evaluation of evidence: overturning credibility finding on

appeal
The case of Minister of Safety and Security and others v Craig and
others NNO 2011 (1) SACR 469 (SCA) was an appeal against an order
in terms of which the appellants were held liable for damages to the
respondents on the basis of their negligent failure to ensure that the
deceased received proper medical attention after he had been detained
following a motor vehicle accident (at para 21). The appeal turned on
whether the assessment of the evidence by the court a quo had been
correct (at para 21). More specifically, it turned on whether the court
a quo had been correct in favouring the version of a Dr Thompson
over that of the police officers who had attended to the deceased
after the motor vehicle accident in which he had been involved. In
a nutshell, Dr Thompson alleged that he had issued an instruction
that the deceased be taken to hospital, which the police officers had
ignored. The police officers denied that the instruction was issued (at
23). If Dr Thompson were to be believed, and the instruction had been
issued but ignored, the court accepted that liability on the part of the
appellants would be proved and the decision of the court a quo would
stand (at para 24).
The court a quo had found Dr Thompson to be a less than satisfactory
witness, but had found that this did not justify rejecting his evidence in
toto. Ultimately, the court preferred his version over that of the police
officers (at paras 22-23). The Supreme Court of Appeal analysed the
evidence, and found that the court a quo had erred in its evaluation
of the evidence and in preferring the version offered by Dr Thompson
to that of the police officers (at paras 26-57). In overturning the court
Recent cases 391

a quo's credibility finding in respect of Dr Thompson, the Supreme

Court of Appeal held that although courts of appeal are slow to disturb
findings of credibility, they generally have greater liberty to do so where
a finding of fact does not primarily depend on the personal impression
made by a witness's demeanour, but rather upon inferences and other
facts, and upon probabilities (at para 58). This was the situation in
the present case. The Supreme Court of Appeal was able to show
that the court a quo had made factual errors in finding that there was
corroboration of Dr Thompson's version, as well as in assessing the
probabilities of the case. The court held that the credibility findings
were not borne out by the record and that the probabilities of the
case were destructive of Dr Thompson's version (at para 59). The court
found there was no reason to disbelieve the police officer's version,
whereas Dr Thompson's evidence was contrived, and he was not
candid in his testimony (at para 67). Accordingly, the Supreme Court
of Appeal found that the police officers attending to the deceased had
not been negligent and set aside the decision of the court a quo.

Admissibility of evidence obtained as a result of cell phone

monitoring
The issue in S v Cwele and another 2011 (1) SACR 409 (KZP) was
the admissibility of evidence obtained as a result of cell phone
communications monitored and intercepted in terms of the Interception
and Monitoring Prohibition Act 127 of 1992.
The accused were suspected ofbeing involved in the illicit manufacture
and/or trade of drugs. In 2008, the police approached Swart J to issue
a directive pursuant to the Interception and Monitoring Prohibition
Act (hereafter referred to as 'the Act'), in respect of accused 2 and
two others (at para 3). Accused 1 was not mentioned. The supporting
affidavit stated that the named persons were suspected of a serious
drug related offence that 'has been, is [being] and will probably be
committed,' and which cannot be properly investigated in any other
manner. The application was for the monitoring of communications
(verbal and by telefax) made on two cell phone numbers (which both
belonged to accused 2). The police also applied for permission to use
monitoring devices to monitor verbal communications with, by or
between the suspects, regardless of whether a telecommunications line
was used to divert the call to a monitoring centre or not (at para 4).
The directive was issued in accordance with ss 2(2)(b) and (c) of the
Act and communications made via the listed cell phone numbers were
monitored and intercepted. Ultimately, the accused were arrested and
charged with contravening the Drugs and Drug Trafficking Act 140 of
1992 (at para 6). The state sought to rely on the cell phone evidence
392 SAC] * (2011) 3

to support the conviction of the accused. The accused argued that

the evidence was inadmissible, which led to a trial within a trial to
determine this issue.
The Act did not contain a provision dealing with the admissibility
of communications intercepted in accordance with its provisions
(at para 7). This remains the position under the current legislation,
the Regulation of Interception of Communications and Provision of
Communications-Related Information Act 70 of 2002 (RICA), which
repealed the Act on 30 June 2008. The position in the United States of
America is quite different. RICA's counterpart in the USA, the Electronic
Communications Privacy Act, 1986 (ECPA) (P.L. 99-508, 100 stat. 1848)
expressly prohibits the use of evidence obtained in violation of its
provisions from use in legal, quasi-legal or administrative proceedings
(s 2515 of ECPA). However, in South Africa a failure to comply with
the provisions of the legislation is a criminal offence (s 8 of the Act;
s 51 of RICA).
In the absence of a specific provision regulating the admissibility
of the evidence, the matter had to be decided in terms of general
principles. The accused argued for the exclusion of the evidence on
two alternative grounds. Firstly, they argued that the interception
and monitoring of their communications were illegal because it had
not been properly authorized in terms of the Act, and/or because the
authority conferred by the directive had been exceeded. They argued
further that even if the cell phone communications had been intercepted
and monitored lawfully, the communications should still be declared
inadmissible in terms of s 35(5) of the Constitution, on the basis that
their rights to dignity, privacy and a fair trial were compromised (at
para 24). These two grounds are discussed in what follows.

(1) Illegally obtained evidence

The court agreed in principle that evidence obtained contrary to the
provisions of the Act should be ruled inadmissible, save 'in highly
exceptional circumstances' (at para 7). The court referred to S v Naidoo
1998 (1) SACR 479 (N) and S v Pillay 2004 (2) SACR 419 (SCA) and
(correctly) concluded that this approach was consistent with current
jurisprudence on the issue.
Accused 1 argued that the directive in terms of s 2(2) of the Act had
been improperly obtained because it was premature in that there had
been no investigations against him in connection with the charges
against him prior to the issue of the directive and that the evidence
against him arose after the directive was issued (at para 15). The
court rejected this argument on the basis that the directive had been
obtained as part of an ongoing investigation against the suspects, and
Recent cases 393

that had specific details of their crimes already been available there
would probably have been no need for the monitoring order in the first
place. The court held (at para 22) that 'it would be unduly technical,
self-defeating and illogical if evidence of a contravention of the Act
were to be excluded, simply because the particular contravention
occurred only after the direction had been issued.'
Accused 1 also argued that the application for the directive referred
specifically to communications 'with, by or between' the suspects,
and that intercepting and monitoring calls made with parties not
mentioned in the directive were ultra vires the directive (at para 15).
During argument, the accused refined his submission in this regard,
arguing only that his utterances would be inadmissible against him
because he was not named in the directive (at para 15). This argument
was rejected by the court on the basis that 'there would be no sense in
rendering admissible only one side of a conversation' and that 'it would
leave an incomplete picture and be potentially prejudicial as replies
should always be seen in the context in which they are expressed' (at
para 21).
Accused 2 argued that the directive was fatally flawed because the
Act was restricted to conventional landline telephone calls, and did not
authorize the interception and monitoring of cell phone communications
(at para 16). The court rejected this argument. It held that the fact that
cell phone technology was not in existence at the time the Act was
promulgated was not decisive, since the only real issue was whether
the wording in the statute was sufficiently broad to encompass such
future technology (at para 18). The court held that it was. Likewise, the
fact that the Act had been replaced by RICA, which did make express
provision for cell phone technology, was not a decisive indication
that the Act did not apply to cell phone technology. The court held
that although sometimes a subsequent amendment to an Act might
suggest a lacuna in previous legislation which parliament had sought
to remedy, this was not necessarily so. The court held that 'in many
instances subsequent legislation might simply seek to place matters
beyond doubt, or to provide more extensive regulation' (at para 19).
The court found this to be the case with regard to the Act and RICA,
and found that the wording of the Act was sufficiently broad to include
cell phone communications (at para 17). Therefore, although the court
found in principle that (generally) evidence obtained contrary to the
provisions of the Act should be ruled inadmissible, on the facts the
directives had been properly obtained and their authority had not
been exceeded. Therefore the Act had not been contravened and the
evidence was not inadmissible on this basis.
394 SACJ * (2011) 3

(2) Unconstitutionally obtained evidence

The accused's alternative argument was that the evidence should
be excluded in terms of s 35(5) of the Constitution, because their
constitutional rights to privacy and dignity had been violated by the
interception and monitoring of their communications, and that their
right to a fair trial would be violated if the evidence was admitted.
Section 35(5) provides that evidence which has been obtained in a
manner that violates any right in the bill of rights, must be excluded
if the admission of that evidence would render the trial unfair, or be
otherwise detrimental to the interests of justice. For s 35(5) to find
application, there must be a breach of a constitutional right and the
procurement of the evidence must be sufficiently closely connected to
that breach. The court has no discretion to include such evidence if to
include it would render the trial unfair or be otherwise detrimental to
the interests of justice.
In S v Naidoo and another [1998] 1 All SA 189 (D) the court held
that if the monitoring of a conversation was not authorised by a
direction properly and lawfully issued by a judge in terms of the Act,
such monitoring would constitute a criminal offence and would also
constitute an infringement of the right to privacy. In casu, as to whether
the appellants' constitutional rights had been violated, the court held
that rights to privacy and dignity are (of course) not absolute, but
can be limited in terms of s 36 of the Constitution (at para 25). The
court held that the accused's rights to privacy and dignity 'must yield
to the objectives of the Act, namely the authorized interception and
monitoring of cell phone calls, as these may afford evidence of the
commission of a serious offence' (at para 26). The court held that
the accused had not challenged the constitutionality of the Act, and
that it would therefore be 'incongruous to find that evidence lawfully
obtained in accordance with its provisions was inadmissible on some
other basis' (at para 26). Therefore, the accused's constitutional rights
to privacy and dignity were found not to have been violated. Having
found this, it was not strictly necessary for the court to consider
whether the admission of the evidence would render the trial unfair,
or be otherwise detrimental to the interests of justice. However, the
court noted anyway that the accused's right to a fair trial was not
compromised by the admission of the evidence. The mere fact that
the evidence would probably be incriminating was not sufficient to
establish relevant prejudice in this regard (at para 27). The court noted
further that there was no basis upon which it could be said that the
admission of the cell phone records would bring the administration of
justice into disrepute (at para 25).
Recent cases 395

Cautionary rule: Single child witness

In the case of S v Hanekom 2011 (1) SACR 430 (WCC), the appellant
appealed against his conviction in the court a quo on a count of
indecent assault. The only direct evidence against him was that of his
8 year old daughter, who was 5 at the time of the alleged incident. His
appeal was on the basis that the court a quo had misdirected itself in
assessing the evidence. The court of appeal agreed, specifically with
respect to the following issues.
Firstly, the magistrate had failed to take sufficient cognizance of
the fact that there were two cautionary rules which applied to the
evidence of the complainant (the complainant was both a single
witness and a child), and had failed to apply them with the degree of
attention to detail that the case demanded (at para 6). The court held
that although the magistrate had paid lip service to the rules, he had
not demonstrated the required degree of analysis in his approach to
the inconsistencies and contradictions in her evidence (at para 7). The
court also found that the court a quo had erred in finding corroboration
for the complainant's version (at para 28), and had made a factual error
when concluding that the complainant's 'first report' of the crime to
her mother was consistent with her version in court (at para 16) and
that it corroborated her version (at para 29). Also, the court a quo had
failed to take adequate note of the features of the appellant's evidence
which supported his version of events (at para 29).
The cautionary rule which applies to a single witness requires that
the court be alive to the danger of relying on only one witness, because
it cannot be checked against other evidence (at para 8). This rule is
not controversial and was uncritically applied in the recent case of S v
Mahlangu 2011 (2) SACR 164 (SCA), as well as Maake v DPP [2011] 1
All SA 460 (SCA) (see Meintjes-Van der Walt (2011) 24 SACJ 224-225).
The cautionary rule which applies to children is on the other hand
highly controversial. The court referred to R v Manda 1951 (3) SA 158
(A), and indicated that it fully intended to following its warning to
treat child witnesses, like accomplices, with suspicion (at para 12). The
court also referred to S v Viveiros [2000] 2 All SA 86 (SCA), stating that
the reason behind the cautionary rule was the potentially unreliable
and untrustworthy nature of a child's evidence. The court held that 'it
could also be as a result of lack of judgment, immaturity, inexperience,
imaginativeness, susceptibility to influence and suggestion, and
the beguiling capacity of a child to convince itself of the truth of a
statement which may not be true or entirely true, particularly where
the allegation is of sexual misconduct - which is normally beyond
the experience of small children, who cannot be expected to have an
understanding of the physical, social and moral implications of sexual
activity' (at para 9); as well as the 'general difficulty a child has in
396 SACJ * (2011) 3

separating reality from fantasy' (at para 13, referring to S v V 2000 (1)
SACR 453 (SCA). See also S v S 1995 (1) SACR 50 (ZS) at 54G-H).
It is of concern that the court did not refer to the more recent
research in the area of child psychology and development which
reveals that children's ability to give reliable evidence has been greatly
underestimated (Schwikkard 'Getting somewhere slowly' in Artz and
Smythe (eds) Should we consent? Rape law reform in SA (2008) 79).
There is a strong argument that just as the cautionary rule applicable
to complainants in sexual cases was found to be irrational and based
on stereotypical notions and therefore abolished (S v Jackson 1998
(1) SACR 470 (SCA)), so too should the cautionary rule applicable to
children. The South African Law Commission noted the paucity of
evidence establishing that children are more unreliable than adults
and recommended the abolition of the cautionary rule attaching to
children in 2002 (SALC Project 107- Report on Sexual Offences (2002)
187). The trend internationally has also been to abolish this cautionary
rule (Schwikkard op cit). This is not to suggest that there may not be
good reasons for treating a child's evidence with caution, but that this
issue should be decided on the basis of the case before the court and
not on the generalised and unsubstantiated notion that children are
unreliable.
The court delivered two contradictory messages about how to assess
the evidence of a child in the course of its judgment. On the one hand
it strongly endorsed the Manda case, but it also held that the fact that
the cautionary rule attaches to the evidence of the witness does not
mean that the evidence of such a witness must be evaluated in a way
fundamentally different to that of the evidence of any witness in a
criminal case (at para 12). The court stressed that there was a single
test to be applied, and that was whether the evidence is sufficient to
establish the accused's guilt beyond any reasonable doubt.
In casu, there were good reasons for treating the child's evidence
with caution, which were correctly noted by the court. Firstly, the
complainant was unable to answer certain fundamental questions
concerning the alleged incident - for example, when the incident was
reported and to whom (at para 14). Secondly, there were many material
inconsistencies and contradictions in her evidence in chief, as well as
in the evidence she gave under cross examination - for example, she
initially said there had been one incident, but later said there had
been two, and she gave three different versions of the one incident (at
paras 18-26).Thirdly, there was a lapse of a significant period of time
(3 years) between the incident complained of and the trial (at para 14).
Fourthly, there was evidence that the complainant did not get on well
with her father, the accused, and (more significantly) that her mother's
relationship with him was acrimonious and that she had allegedly
Recent cases 397

threatened to 'get him' with false allegations (of sexual harassment)

in a telephone call after their separation (at para 29). Lastly, the child
had demonstrated her suggestibility by changing her version of events
in accordance with a leading question put to her by the prosecutor (at
para 14). The court held that this demonstrated not only suggestibility,
but also that she had difficulty distinguishing reality from fantasy,
referring to S v V 2000 (1) SACR 453 (SCA).
The court held that the court a quo had not taken sufficient note
of the above listed factors, nor of the fact that the child was a single
witness of such tender years. In addition, the court held that the court
a quo had erred in finding that the complainant's version of events
was corroborated by her statement to the police, because this was
contrary to the rule against self-corroboration (at para 27). Further,
the court found that the court a quo had erred in finding that the
medical evidence supported the version of the complainant. Although
the medical evidence established that there had possibly been forcible
penetration of the complainant, there was nothing in that evidence
which linked the penetration to the appellant (at para 28). However,
it should be noted that there are cases in which it had been held that
the cautionary rule may be satisfied by corroboration of any aspect of
the witnesses testimony, even if the corroboration does not link the
accused to the crime (see S v Hlongwa 1991 (1) SACR 583 (A); Stevens
vS [2005] 1 All SA 1 (SCA); S vArtman 1968 (3) SA 339 (A) (these cases
are all referred to in S v Mahlangu 2011 (2) SACR 164 SCA)).
In contrast to the complainant's testimony, the court found that
the appellant's evidence did not contain any inconsistencies or
contradictions, that his evidence had the ring of truth to it and that
his evidence was entirely probable. The court noted further that the
court a quo had not made an adverse credibility or demeanour finding
against the appellant (at para 29). Therefore, although sometimes the
court is able to find satisfaction of a cautionary rule in the poor quality
of the evidence of the accused (cf S v Dyira 2010 (1) SACR 78 (ECG)
at para 12), or the improbability of his version (cf S v Mablangu 2011
(2) SACR 164 SCA), this was not such a case. The court concluded (at
para 30) that
'having regard to the totality of the evidence, and with the cautionary rules
in the forefront of one's mind, the conclusion is inevitable that the evidence
of the complainant does not have that degree of trustworthiness which
would allow the State to overcome the burden of proof beyond a reasonable
doubt'.
The decision of the court is undoubtedly correct - but the same
result would have been achieved even without the application of the
cautionary rule.
398 SACJ * (2011) 3

In the light of the recent uncritical acceptance of the cautionary rule

applicable to children by the Supreme Court of Appeal in Maemu v S
(147/11) [2011] ZASCA 175 (29 September 2011) it is becoming less likely
that this application of the cautionary rule will be abolished without
a constitutional challenge. What is clear is that the time is ripe for a
proper and full ventilation of the issues relating to children's evidence.
There is a wealth of recent research in this area and South Africa's
high levels of child abuse and low rates of conviction for such crimes
demand that the issues be considered systematically and carefully. It
is simply inappropriate - even irresponsible - for courts to continue to
blindly rely on old authorities (such as R v Manda 1951 (3) SA 158 (A)
and Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A)) to justify
applying the cautionary rule to children.

Sentencing
JAMIL DDAMULIRA MUJUZI
University of Western Cape, Bellville

Sentencing primary caregivers of young children

Traditionally a judicial officer was not required to consider the effects
of the imposed sentence on the children of the offender, even if the
offender was a primary caregiver of young children. The Court in S vM
(Centrefor ChildLaw as Amicus Curiae) 2007 (2) SACR 539 (CC) [2007
(12) BCLR 1312] (discussed in detail in Mujuzi (2011) 2 SACJ 164-177)
held that, in sentencing primary caregivers of young children, courts
should inquire into the effects the sentence will have on such children
and, where possible, impose a non-custodial sentence to ensure that
the children are not deprived of the care and support of the primary
caregiver.
In MS v S (Centrefor Child Law as Amicus Curiae) 2011 (2) SACR 88
(CC) the Constitutional Court dealt with the question of imprisoning
a primary caregiver of young children. Mrs S pleaded guilty and was
convicted by the regional court of forgery, uttering and fraud (at para 4).
She pleaded in mitigation that she had committed the offences as 'a
result of paying for her daughter's medical fees' as 'her children require
special care' (at para 5). A pre-sentencing report prepared for the state
after interviews with Mrs S's previous employer and her husband's