Recent Case: Constitutional application

• Jurisdiction: South Africa
• Author: Saras Jagwanth
• Pages: 266-271
• Date: 24 May 2019
• Published date: 24 May 2019
• Citation: (1999) 12 SACJ 266

266



SACJ

• (1999) 12 •

SAS

Constitutional application

SARAS JAGWANTH

University of Cape Town

Interpretation

Interpretation

—s 14 of the Constitution

In

S v Kidson

1999 (1) SACR 338 (W) Cameron J was faced with the question

of whether a covert recording and transcript of a conversation between a

suspect and the accused was admissible. The recording had been made by

the suspect with the assistance of the police, after he had supplied evidence

of his involvement together with the accused in the murder of her husband.

The court found that ss 2(2) and 3 of the Interception and Monitoring

Prohibition Act 127 of 1992 required the police to obtain authorization from a

judge to monitor conversations. In this case the police had breached

the statute in procuring the monitoring of the suspect's conversation with the

accused by not obtaining the requisite authorization. However in deciding

whether the evidence should be admitted, the 'extent and flagrancy of the

statutory contravention' must be weighed up by the court (at 350h).

The accused contended that the surveillance in this case constituted a

violation of her right to privacy. Cameron J held that for constitutional

purposes, a distinction had to be drawn between participant surveillance

which referred to a conversation monitored by one of the participants, and

third party surveillance which referred to monitoring of a conversation by an

outsider or third person. He criticized the approach of the Supreme Court of

Canada's refusal to draw such a distinction and quoted (at 345g) with

approval Peter Hogg

(Constitutional Law of Canada

1992 at 45) that

`when an accused discloses [a] confidence to someone else, he assumes the risk

that his interlocutor will reveal the confidence to the police and therefore there is

no breach of a reasonable expectation of privacy when the interlocutor does reveal

that confidence to the police, even when electronic aid is employed.'

In casu, Cameron held that there had been no violation of the right to

privacy. To find otherwise would be to interpret the right in an

`inappropriately extravagant' fashion (at 350c). He held that the accused

`chose to share her recollections and reflections with [the suspect] and by

doing so she accepted the risk that he might impart them to someone else' (at

350d). Thus, notwithstanding the court's finding that the evidence had been

obtained in violation of a statutory provision, the extent of the police

violation in this case was minimal and the evidence was ruled admissible.

(1999) 12 SACJ 266

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