Case Review: Evidence

• Jurisdiction: South Africa
• Citation: (2006) 19 SACJ 375
• Pages: 375-377
• Published date: 16 August 2019
• Date: 16 August 2019
• Author: Nicci Whitear-Nel

Case Reviews 375

Evidence

NICCI WHITEAR-NEL

University of KwaZulu-Natal

Admissibility of unconstitutionally obtained evidence

In the case of S v Hena 2006 (2) SACR 33 (SECLD) the two appellants

were convicted of rape and robbery with aggravating circumstances in

the court a quo. Neither of the appellants testif‌ied in the court a quo and

there was no direct evidence identifying the two accused as the assailants.

However, DNA from one of the appellants was present in samples taken

from both of the complainants. The court held that this evidence together

with the other state evidence was suff‌icient to prove guilt beyond a

reasonable doubt and the second accused’s conviction was conf‌irmed on

this basis. There was no DNA evidence linking the other appellant to the

complainants. However, the state led evidence to the effect that he had

been found with a cell phone belonging to one of the complainants shortly

after the offence. He was only identif‌ied as having been in possession of

the cell phone after having been abducted and violently assaulted and

interrogated by the community’s anti-crime committee. The accused’s

right to silence, to freedom and to bodily integrity had been seriously

breached and the evidence identifying the accused with the cell phone

had therefore been unconstitutionally obtained.

The court held that although it had a discretion to admit unconstitutionally

obtained evidence, to do so in this case would be detrimental to the interests

of justice. The conviction was thus set aside. In the course of its judgment

the court decried the abdication by the police of their constitutional

duty to prevent, combat and investigate crime in terms of s 205(3) of the

Constitution by allowing and indeed encouraging the community’s anti-

crime committee to perform this function. The court held that vigilantism

and violence towards suspects were inextricably linked and that this was

why policing powers were place in the hands of the state.

Interesting, this was a case in which the court did not decide on the

admissibility of the unconstitutionally obtained evidence by way of a trial-

within-a-trial. The court held that this was not necessary for two reasons.

First, the parties had agreed that the issue could be addressed in argument

after the evidence had been heard. Secondly, the facts upon which the

decision rested were common cause because the accused had not testif‌ied

and the evidence of the unconstitutional conduct was given by the state

witnesses.

(2006) 19 SACJ 375

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