Levack and Others v Regional Magistrate, Wynberg, and Another

JurisdictionSouth Africa
Citation2003 (1) SACR 187 (SCA)

Levack and Others v Regional Magistrate, Wynberg, and Another
2003 (1) SACR 187 (SCA)

2003 (1) SACR p187


Citation

2003 (1) SACR 187 (SCA)

Case No

403/2000

Court

Supreme Court of Appeal

Judge

Harms JA, Scott JA, Farlam JA, Cameron JA and Jones AJA

Heard

November 1, 2002

Judgment

November 28, 2002

Counsel

H Raubenheimer SC for the third and fourth appellants.
J Slabbert for the second respondent.

Flynote : Sleutelwoorde B

Evidence — Ascertainment of bodily features of accused — Provisions of s 37 of Criminal Procedure Act 51 of 1977 — 'Bodily features' — What constitutes — Human voice — Voice is sound formed in larynx and uttered by mouth — It emanates from and is formed by body — Therefore it is 'characteristic' of human C body — Each human voice is distinctive (although by no means always capable of assured discernment) — Voice, therefore, is also 'distinguishing feature' of body — Conclusion that voice falls within scope of s 37 must follow — Nothing in provision suggesting that 'distinguishing features' it envisages should be limited to those capable of apprehension through senses of touch and sight (or even taste or smell). D

Fundamental rights — Right to remain silent — Ascertainment of bodily features — Human voice — Wrong to suppose that requiring accused persons to submit voice samples infringes right either to remain silent in court proceedings against them or not to give self-incriminating evidence — Rule against self-incrimination forbids compelling person to give evidence which E incriminates herself or himself — It is not merely compulsion that is kernel of privilege, but testimonial compulsion — Person's features may be of importance; complexion, stature, mutilations, or marks on body may be relevant points, and she or he may be compelled to show them to court — That is autoptic evidence which is perceived by Court itself, and which it has right to see — 'Autoptic evidence', evidence derived from accused's own bodily features, F doesn't infringe right to silence nor right not to be compelled to give evidence — This applies in all details to human voice — No difference in principle between visibly discernible physical traits and features of accused and those that under law can be extracted from her or him through syringe and vial or through compelled G

2003 (1) SACR p188

provision of voice sample — In neither case is accused required to provide evidence of testimonial or A communicative nature, and in neither case is any constitutional right violated.

Evidence — Ascertainment of bodily features of accused — Provisions of s 37 of Criminal Procedure Act 51 of 1977 — Order by court in terms of s 37 — Police powers to act under s 37(1) come to end only when accused convicted, so long as police retain their s 37(1) B powers, court before which criminal proceedings pending has no power to make orders contemplated under s 37(3) — This doesn't mean that such court cannot do so under s 37(1) — Power which police have under s 37(1)(c) to take steps as they might deem necessary to ascertain characteristic or distinguishing features of appellants' voices includes power to request accused to supply voice samples — Power, in turn, can properly be C supplemented by court order requiring accused to do so — Court order would make refusal to co-operate subject to sanction for contempt of court — Subsections (1), (2) and (3) not operating exclusively of one another — Precise source of court's power is best located as deriving from s 37(1)(c). D

Headnote : Kopnota

The voice is a sound formed in the larynx and uttered by the mouth. It emanates from and is formed by the body. Therefore, there can be no doubt that it is a 'characteristic' (in the sense of a distinctive trait or quality) of the human body. That each human voice is distinctive (although by no means always capable of assured discernment) is also clear. The voice, therefore, is also a E 'distinguishing feature' of the body. The conclusion that the voice falls within the scope of s 37 of the Criminal Procedure Act 51 of 1977 must follow. The section does not expressly mention the voice. But this is because it is one of 'innumerable' bodily features that the wording expressly contemplates. It is true that the voice, unlike palm or other prints, is not itself part of the body. It is a sound. But the F sound is a bodily emanation. And the body from which it emanates determines its timbre, volume and distinctive modulations. Nothing in the provision suggests that the 'distinguishing features' it envisages should be limited to those capable of apprehension through the senses of touch and sight (or even taste or smell). (Paragraphs [8], [9] and [13] at 194c - e and 195e - f.)

It is wrong to suppose that requiring accused persons to submit voice samples infringes their right either to remain silent in the court G proceedings against them or not to give self-incriminating evidence. While no-one can be compelled to give evidence incriminating herself or himself, it is necessary to confine the doctrine within its proper limits. What the rule forbids is compelling a person to give evidence which incriminates herself or himself. It is not merely compulsion that is the kernel of the privilege, but testimonial compulsion. A person H may be compelled, when in court, to do what she or he would rather not. Her or his features may be of importance, and she or he may be made to show them; complexion, stature, mutilations, or marks on the body, may be relevant points, and she or he may be compelled to show them to the court. That is autoptic evidence which is perceived by the Court I itself, and which it has a right to see. In such cases the person is really passive. 'Autoptic evidence' - evidence derived from the accused's own bodily features - does not infringe the right to silence nor the right not to be compelled to give evidence. This applies in all details to the human voice. It falls within the same category as complexion, stature, mutilations, marks and prints. There is no difference in principle between the visibly discernible physical traits and features of an accused and those J

2003 (1) SACR p189

that under law can be extracted from her or him through syringe and vial or A through the compelled provision of a voice sample. In neither case is the accused required to provide evidence of a testimonial or communicative nature, and in neither case is any constitutional right violated. (Paragraphs [17], [19] and [21] at 196f - 197c, 197f and 198c - d.)

While police powers to act under s 37(1) come to an end only when an accused has been convicted, and, by corollary, so long as the police retain their s 37(1) powers, a court before which criminal proceedings B are pending has no power to make the orders contemplated under s 37(3), this does not mean that such a court cannot do so under s 37(1). The power which the police have under s 37(1)(c) to take steps as they might deem necessary to ascertain the characteristic or distinguishing features of the appellants' voices includes the power to request the accused to supply voice samples. This C power, in turn, can properly be supplemented by a court order requiring the accused to do so. The court order would make refusal to cooperate subject to sanction for contempt of court. In short, ss (1), (2) and (3) do not operate exclusively of one another. A court has the power to issue an order requiring an arrested person (or any other person contemplated in ss (1) and (2)) to comply with a request from any of the officials named to supply the autoptic evidence sought. The precise D source of the court's power is best located as deriving from s 37(1)(c). (Paragraphs [25] and [26] at 198h - 199e.)

Cases cited

Ex parte Minister of Justice: In re R v Matemba 1941 AD 75: applied E

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1): referred to

Gilbert v California 388 US 263 (1967): applied

Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A): referred to F

Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): referred to

Levack and Others v Regional Magistrate, Wynberg, and Another 1999 (2) SACR 151 (C) (1999 (4) SA 747): confirmed on appeal

Nkosi v Barlow NO en Andere 1984 (3) SA 148 (T): referred to G

R v Brown 1935 CPD 286: referred to

R v Camane and Others 1925 AD 570: applied

R v Galiswe 1925 GWLD 23: referred to

R v Gericke 1941 CPD 211: referred to

S v Binta 1993 (2) SACR 553 (C): referred to H

S v Huma and Another 1995 (2) SACR 411 (W) (1996 (1) SA 232): referred to

S v Joshua 2003 (1) SACR 1 (SCA): referred to

S v M 1963 (3) SA 183 (T): applied

S v Maphumulo 1996 (2) SACR 84 (N): referred to I

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to

US v Dionisio 410 US 1 (1973): applied

US v Wade 388 US 218 (1967): applied

Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A): referred to. J

2003 (1) SACR p190

Legislation cited

Statutes A

The Criminal Procedure Act 51 of 1977, s 37: see Juta's Statutes of South Africa 2001 vol 1 at 1-274.

Case Information

Appeal from a decision in the Cape High Court (Hlope DJP and Davis J), reported at 1999 (2) SACR 151 (C) (1999 (4) SA 747). The B facts appear from the reasons for judgment.

H Raubenheimer SC for the third and fourth appellants.

J Slabbert for the second respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: C

Brink v Kitshoff 1996 (4) SA 197 (CC) in para [11]

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) in paras [33] - [35]

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12 practice notes
  • Magistrate Stutterheim v Mashiya
    • South Africa
    • Invalid date
    ...Magistrate, Wynberg and Another 1963 (1) SA 1 (A): referred to Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA): compared I Pitso v Additional Magistrate, Krugersdorp and Another 1976 (4) SA 553 (T): compared R v Pitje 1960 (4) SA 709 (A): criticised and......
  • Magistrate, Stutterheim v Mashiya
    • South Africa
    • Invalid date
    ...Magistrate, B Wynberg and Another 1963 (1) SA 1 (A): referred to Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA): compared Pitso v Additional Magistrate, Krugersdorp and Another 1976 (4) SA 553 (T): compared R v Pitje 1960 (4) SA 709 (A): overruled R v ......
  • S v Mahlangu
    • South Africa
    • Invalid date
    ...sentenceand replaced it with one of 15 years’ imprisonment.Cases citedLevack and Others v Regional Magistrate, Wynberg, and Another 2003 (1)SACR 187 (SCA): appliedS v Charzen and Another 2006 (2) SACR 143 (SCA) ([2006] 2 All SA 371):referred toS v Le Roux and Others 2010 (2) SACR 11 (SCA): ......
  • Comments: Voice evidence in criminal trials: Reflections on the court’s application of section 37(1)(c) of the CPA in S v Mahlangu 2018 (2) SACR 64 (GP)
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 4 July 2019
    ...by South African cour ts (Levack v The Regional Magistrate, Wynberg1999 (2) SACR 151 (C) and Levack v Regional Magistrate, Wynberg 2003 (1) SACR 187 (SCA)). In Levack v Regional Magistrate, Wynberg 2003 (1) SACR 187 (SCA), the court held that ‘[Section 37(1)(c)] does not expressly mention ......
  • Request a trial to view additional results
9 cases
  • Magistrate Stutterheim v Mashiya
    • South Africa
    • Invalid date
    ...Magistrate, Wynberg and Another 1963 (1) SA 1 (A): referred to Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA): compared I Pitso v Additional Magistrate, Krugersdorp and Another 1976 (4) SA 553 (T): compared R v Pitje 1960 (4) SA 709 (A): criticised and......
  • Magistrate, Stutterheim v Mashiya
    • South Africa
    • Invalid date
    ...Magistrate, B Wynberg and Another 1963 (1) SA 1 (A): referred to Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA): compared Pitso v Additional Magistrate, Krugersdorp and Another 1976 (4) SA 553 (T): compared R v Pitje 1960 (4) SA 709 (A): overruled R v ......
  • S v Mahlangu
    • South Africa
    • Invalid date
    ...sentenceand replaced it with one of 15 years’ imprisonment.Cases citedLevack and Others v Regional Magistrate, Wynberg, and Another 2003 (1)SACR 187 (SCA): appliedS v Charzen and Another 2006 (2) SACR 143 (SCA) ([2006] 2 All SA 371):referred toS v Le Roux and Others 2010 (2) SACR 11 (SCA): ......
  • S v Moyo and Others
    • South Africa
    • Invalid date
    ...parte Minister of Justice: In re R v Matemba 1941 AD 75: referred to E Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA): compared R v Camane and Others 1925 AD 570: applied R v Jacobs 1940 TPD 142: dictum at 146 applied R v Kruger 1941 OPD 33: applied S ......
  • Request a trial to view additional results
3 books & journal articles
  • Comments: Voice evidence in criminal trials: Reflections on the court’s application of section 37(1)(c) of the CPA in S v Mahlangu 2018 (2) SACR 64 (GP)
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 4 July 2019
    ...by South African cour ts (Levack v The Regional Magistrate, Wynberg1999 (2) SACR 151 (C) and Levack v Regional Magistrate, Wynberg 2003 (1) SACR 187 (SCA)). In Levack v Regional Magistrate, Wynberg 2003 (1) SACR 187 (SCA), the court held that ‘[Section 37(1)(c)] does not expressly mention ......
  • Voice identification and ear-witnessing in the dock
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...not in the company of the robbers on 16 June 2009, he was prepared to concede that there could be a possibilit y that 12 Para [5].13 2003 (1) SACR 187 (SCA). 14 Para [12].15 Para [8].394 SACJ . (2018) 3 © Juta and Company (Pty) a person could recognise the voice of a person with whom he or ......
  • Recent Case: Evidence
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 3 September 2019
    ...totality of the evidence, and the failure of the accused to testify. Voice sample In the case of Levack v Regional Magistrate, Wynberg 2003 (1) SACR 187 (SCA), the Wynberg magistrates court had granted an order compelling the accused to provide a voice sample in terms of s 37 of the Crimina......

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