Ex parte Minister of Justice: In re Rex v Pillay and Others

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 16 June 1945
• Hearing Date: 13 March 1945
• Court: Appellate Division

Watermeyer, C.J.:

This is a case which has been submitted by the Minister of Justice to this Court for decision under the provisions of sec. 388 of Act 31 of 1917.

It appears that on 3rd, January, 1944, three brothers, named Pillay, were charged in the magistrates court of Inanda with the offence of having, on 1st January, 1944, at Tongaat in the district of Inanda, resisted and assaulted a policeman named Steyn in the execution of his duty. The case was postponed and the accused were released on bail. On 4th January, 1944, they went of their own accord to the police at Durban and made sworn statements

Watermeyer, C.J.

relative to the occurrence at Tongaat. Thereafter the trial of the accused proceeded and in the course of the trial the accused gave evidence in their own defence. During the cross-examination of No. 2 by the Crown Prosecutor, reference was made to the sworn statement made by No. 2 at Durban and he was asked whether he had made a statement and was questioned as to its contents. Objection was taken to these questions by the attorney appealing for the accused, but the magistrate overruled the objection and allowed the questions to be put. The statement which had been made by No. 2 was then proved and put in by the Crown Prosecutor. Thereafter No. 1 and No. 3 gave evidence and they were also asked whether they had made statements to the police at Durban and questioned as to the contents of such statements. Their statements were not, however, produced or put in by the Crown Prosecutor.

The three accused were convicted by the magistrate but this conviction was quashed on appeal by the Natal Provincial Division, on the ground that the magistrate was wrong in allowing the accused to be asked whether they had made statements to the police at Durban and to be cross-examined as to the contents of these statements, the Court holding that such statements were statements by informers about which evidence could not lawfully be given in the case before the magistrate.

The statement made by No. 2 is annexed to the case submitted by the Minister; it consists of a narrative of the events which occurred at Tongaat and contains an allegation that an unnamed native policeman had assaulted No. 2 by striking him on the head with a knobkierie and that an unnamed European policeman (probably Steyn) had assaulted No. 3 by striking him on the head with a revolver. It differed in important respects from the evidence which No. 2 had just given. It seems clear that the statement was intended to be a complaint to the police authorities at Durban about the conduct of two policemen at Tongaat.

The Minister has a doubt as to the correctness of the decision of the Natal Provincial Division and asks for the ruling of this Court on the following question of law: "Was the Natal Provincial Division correct in deciding that the appellants were 'informers' and that they could not be questioned on the statements made by them to the police?"

It will be noticed that the question put by the Minister consists

Watermeyer, C.J.

of two parts - (a) were the appellants informers? (b) could they be questioned as to the contents of the statements which they had made to the police? The substantial point is really contained in the second part of the question. It refers to questions put to the appellants in the circumstances disclosed in the statement of case, that is, while they were giving evidence in their own defence on the charge of resisting the police, and the real point involved is whether the statements which they made to the police at Durban were privileged documents, the contents of which could not be disclosed in the trial then proceeding.

In order to answer the Minister's question, the Court has to enquire into the English Law of Evidence on the subject, because sec. 300 of Act 31 of 1917 provides as follows: "No witness shall, except as in this Act is provided, be compellable or permitted to give evidence in any criminal proceedings as to any fact, matter or thing, or as to any communication made to or by such witness as to which, if the case were depending in the Supreme Court of Judicature in England, such witness would not be compellable or permitted to give evidence, by reason that such fact, matter or thing, or communication, on grounds of public policy and from regard to public interest, ought not to be disclosed and is privileged from disclosure. Provided that it shall be competent for any person, in any criminal proceedings, to adduce evidence of any communication alleging the commission of an offence if the making of that communication prima facie constituted an offence, and it shall be competent for the Judge or judicial officer presiding at such proceedings to determine whether the making of such communication prima facie did or did not constitute an offence, and such determination shall, for the purposes, of those proceedings, be final." Therefore, the question which we have to answer is whether, if the trial of the Pillays were taking place in the Supreme Court of Judicature in England, they could be compelled or permitted to give evidence which would disclose the contents of the statements which they had made to the police.

Now, when South African Courts are called upon to apply an English rule of evidence in a criminal case, they are sometimes faced, as in this case, with a thorny problem. Difficulties arise because the conduct of prosecutions in England is based upon a different system from the system in vogue in South Africa. In

Watermeyer, C.J.

South Africa there are public officials on whom rests the duty of prosecuting offences, with the result that, with certain exceptions, all prosecutions are public prosecutions, that is prosecutions instituted by and conducted on behalf of the State. In England the foundation of the system is private prosecution. It appears, to one unversed in it, to be involved. (See Stephen, History of the, English Law, vol. 1, chap. 14, and Halsbury's Laws of England, 2nd ed., vol. 9, sec. 102 et seq.) Generally speaking, it seems that any person may be an informer and make a charge against another before a justice (see Halsbury, sec. 105), but the prosecution which follows may be a public or a private prosecution, and the greater number of prosecutions in England are private prosecutions. This is a striking difference between the English and the South African system which, as I shall show, creates difficulties in applying the English rule, whatever it may be, in a South African setting. Another difficulty is to ascertain what the English rule really is. It is not laid down in any statutory enactment but has to be gathered from rulings given by Judges in treason trials and revenue cases, which were heard a hundred years ago or more, and from one later case, Marks v Beyfus, decided in 1890. I have not found any reported case dealing with this question since the decision in Marks v Beyfus, and if there is no such case this seems rather surprising in view of the difficulties which South African Courts have experienced in dealing with this question. From these English cases it is by no means easy to ascertain the scope of the exclusionary rule and its qualifications and exceptions. It seems that the only satisfactory way of overcoming these difficulties is to try to discover the principle or principles upon which the rule is based and apply these principles to South African conditions.

An examination of recognised textbooks on the law of evidence will show that the rule is usually stated with the qualification that it applies in cases in which the Government is interested. For example, Stephen, Digest of the Law of Evidence, 12th ed., sec. 122, says: -

"In cases in which the Government is immediately concerned, no witness can be compelled to answer any question the answer to which would tend to discover the names of persons by or to whom information was given as to the commission of offences. A criminal prosecution by the Director of Public Prosecutions is a

Watermeyer, C.J.

public prosecution, and the Director of Public Prosecutions cannot be required to say from whom he acquired information or what it was. In ordinary criminal prosecutions it is for the Judge to decide whether the permission of any such question would or would not, under the circumstances of the particular case, be injurious to the administration of justice."

Phipson, Evidence (7th ed., 2.15.2, p. 190) says: -

"In public prosecutions, informations for fraud committed against the revenue laws, or civil proceedings arising out of either, witnesses may not be asked, and will not be allowed, to disclose the channels through which information has been obtained by the executive, unless the Judge considers that such disclosure is necessary to show the innocence of the accused (Marks v Beyfus, 25 Q.B.D. 494, C.A.). The protection does not depend upon a claim being made, for it is the duty of the Judge, apart from objection taken, to exclude the evidence."

Taylor, Evidence (12th ed., vol. 1, sec. 939) says: -

"A fourth class of cases, in which evidence is excluded from motives of public policy, comprises secrets of State, or matters, the disclosure of which would be prejudicial to the public interest.

"These matters are such as concern the administration, either of penal justice, or of government, but the principle of public safety is in both cases the same, and the rule of exclusion is applied no further than the attainment of that object requires. The protection to State Papers afforded by this principle extends, it is almost needless to say, to applications for discovery, and there are many instances of such applications. In accordance with these principles, the public prosecutor is in a prosecution carried on by him not obliged (unless so ordered by the Judge) to...