Recent Case: Law of evidence

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Date: 24 May 2019
• Pages: 244-255
• Author: Bobby Naudé

Law of evidence

BOBBY NAUDÉ

University of South Africa

1 Exclusion of unconstitutionally obtained evidence

1.1 Introduction

In terms of s 35(5) of the Constitution of the Republic of South A frica,

1996, evidence obtained in a manner that violates any right in t he Bill

of Rights must be excluded if the admission of that evidence would

either render the trial unfa ir (the rst leg of the test), or otherwise

be detrimental to the adm inistration of justice (the second leg of the

test). The case of Sipho Patrick Magwaza v The State (20169/14) [2015]

ZASCA 36; [2015] 2 all SA 280 (SCA) (25 March 2015) provides insight

into the application of this test.

In Magwaza supra t he appellant and his co-accused stood tr ial on

one count each of murder and robbery with aggr avating circumsta nces.

The co-accused also faced t wo additional charges pertain ing to the

unlawful posses sion of a rearm and ammunition. The ch arges

resulted from an attack on a pension payment point resulti ng in a

gang of armed men making off w ith an amount of money. During

the course of the robbery a secu rity guard was fatal ly wounded and

dispossessed of his rea rm and ammunition. The appellant a nd his

co-accused were convicted as charged and sentenced to imprison ment

for life. The case came before the Supreme Court of Appeal by way of

special leave.

It was not disputed that the offences in question had been perpet rated,

but the accused denied that they had been par t of the gang on the

relevant day. None of the people who witnessed the incident were able

to identify any of the perpet rators and the sum of evidence against

the appellant consisted of a pointing out by him, together with cer tain

utterances during the course of t hat pointing out that amounted to a

confession. The conviction of the appellant turned on whether he was

informed about his rights before doing the pointi ng out and making

the utterances.

The court stated that un like the rst accused, where the state

produced a standard constitutional war ning form signed by him, there

was no such proof in respect of the appellant. The witnes ses who

testied about such warnings were unclear about what exactly was

said to the appellant and even if it can be accepted that the cumulat ive

effect of their evidence is that there was a war ning of some sorts, this

244 SACJ . (2015) 2

(2015) 28 SACJ 244

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