S v Baleka and Others (3)

• Jurisdiction: South Africa
• Judge: Van Dijkhorst J
• Judgment Date: 10 September 1986
• Court: Transvaal Provincial Division
• Hearing Date: 10 September 1986

Van Dijkhorst J:

The defence objects to the admission of certain tape recordings which the State tenders as proof. These audio magnetic tape recordings fall into two categories. Exhibits 1 (1) - 1 (7) purport to reflect the proceedings at H the conference and national launch of the UDF on 20 August 1983. These seven tapes were found by Major H S Miles in the flat of Yunus Mohammed, an attorney of Durban, who is attached to the UDF, according to the major's testimony.

The defence admitted in exh AAS 4, amplified by exh AAS 6, that Yunus Mohammed was a regional secretary of the UDF from 20 I August 1983 to 5 April 1985 and a member of the national executive committee since the last-mentioned date. From March 1985 he has also held office on the regional executive committee of the national region of the UDF. He is alleged by the State to be a co-conspirator.

The voices of some nine persons speaking on these tapes were identified by witness I C no 12 from these tapes. A number of J other speakers he could not identify.

Van Dijkhorst J

A The police had nothing to do with the recording of these tapes and their origin is unknown. Probably they result from a recording of the proceedings either officially by the organisers of the conference and public meeting or by somebody attending for his own purposes.

According to Dr Jansen, the expert who gave evidence for the State:

(1)

B Four instances were found where a female voice made a short announcement which was recorded on top of the existing recording of the meeting, with the result that that portion of the meeting is wiped off the tape and the announcement is substituted. An example is to be found in the transcript V 1 C at p 1, where the words "opening national launching of the UDF August, 20th 1983" are so inserted. Such insertion is called a "slate" by the experts.

(2)

There are a number of instances where the tape recorder was switched off during the proceedings and later switched on again. The duration of non-recording cannot be determined. These interruptions occur, however, during singing of D songs, shouting of slogans, asking for nominations or making of announcements and not during the speeches. An example is transcript V 1 at p 13 where during the announcement of the names of officials of the UDF there is an interruption. In transcript V 26 at p 68 there is an interruption when the chairman puts resolutions to the E meeting. In my prima facie opinion these interruptions do not seem to be material.

(3)

During the recording process there were also certain technical problems. At times the sound disappears, either because the microphone was switched off or for reasons like connection problems. There are not many of these interruptions which last more than two seconds. They result in the loss of small portions of the speech.

(4)

F Exhibit 1 (5) side 1 duplicates a portion of what appears on exh 1 (4) side 2. It is not a copy, but a simultaneous recording of the same proceedings by two microphones and two tape recorders situated at different locations in the hall.

(5)

Exhibit 1 (3) side 2 is a copy of exh 1 (7) side 1 and the G first portion of side 1 of exh 1 (4) is a copy of the first portion of side 2 of exh 1 (1).

In cross-examination of Dr Jansen it was put by the defence that exhs 1 (1) - 1 (7) are obviously not originals. It was put that exh 1 was in toto a copy. Dr Jansen disputed this but stated that certain portions are copies. It was put to Dr H Jansen that the fact of the discontinuity of the tapes comprising exh 1 indicates that they are copies. Dr Jansen's view was, however, that the discontinuity could indicate that they are originals because somebody making a copy would see to it that he does it properly. In an original recording there will not be continuity where the tape is turned over. Dr Jansen did not purport to give a certificate of originality in respect of exh 1.

I The faults and peculiarities in the tapes, exhs 1 (1) - 1 (7), which have been mentioned by Dr Jansen are reflected in the transcripts of the proceedings V 1 and V 26. It is clear from these transcripts that the faults and peculiarities abovementioned in no one way can be said to render the speeches and rest of the proceedings unintelligible. On the contrary, when viewed in the context of the whole recording, the said J interruptions might well be regarded as insignificant.

Van Dijkhorst J

The second category of tapes are recordings clandestinely made A by the police. A source with microphone and radio transmitter was sent into the meeting or a secret microphone was installed beforehand. In either case the proceedings were taped by a police officer outside the hall. These tapes are exh 6, the UDF meeting at Claremont, Cape Town on 26 November 1984; exhs 7 (1) B and 7 (2), the Krisch Rabillal Commemoration Service at Durban on 25 February 1984; exhs 12 (1) and 12 (2), the Huhudi Youth Organisation Meeting at Huhudi on 1 July 1984; exhs 14 (1) and 14 (2), the Transvaal Indian Congress Meeting at Selbourne Hall, Johannesburg, on 18 July 1984 and exhs 31 (1) and 31 (2), the Luthuli Memorial Service at Durban on 24 July C 1983.

On exh 6, the voices of two speakers were identified by witness I C No 12. He also identified the voices of two speakers on exhs 7 (1) and (2). Major Benjamin, who operated the tape recorder when exh 7 was recorded, testified that he recognised the voices of three speakers at this meeting, the sound from D the hall reaching him directly.

On exhs 12 (1) and (2) the witness I C No 12 identified the voices of three speakers. One of them is accused No 20. The defence admitted that accused No 20 spoke at this meeting. Captain Sons who operated the tape recorder when exhs 14 (1) and (2) were recorded testified that while recording he E recognised the voices of four of the speakers of whom two were accused No 19 and No 20. It is admitted by the defence that accused No 19 and No 20 spoke at this meeting. Warrant Officer Beneke who operated the tape recorder recognised the voice of one speaker when recording exhs 31 (1) and (2). The witness I C No 12 identified the voices of three speakers from the tape. F One of them is accused No 20. There is an admission by the defence that he spoke at this meeting.

The policemen operating the recording machines testified that they did not intentionally alter the recordings.

Dr Jansen gave expert evidence on behalf of the State in respect of all the exhibits in the second category. On each G tape he encountered a number of so-called technical problems. He testified that the presence of these were normal for recordings in the field with normal equipment and often old tapes. The same type of problems are encountered in exh 1, UDF Launch and Conference, which tapes were not recorded by the police.

Dr Jansen's evidence on exh 6 was as follows. The quality of H this recording is reasonable to good. The tape recorder was stopped during the proceedings, once during singing before the meeting and once at the beginning of the speech by the Reverend Chikane. This stoppage was explained by Warrant Officer Nel who had switched the recorder off while waiting for the Reverend I Chikane to start talking and was a bit late in switching it on. The tape recorder was not stopped during the speeches, according to Dr Jansen. There were certain technical problems, consisting of short interruptions in sound as a result of a break in radio transmission, their duration being less than two seconds. This was caused by a faulty connection and does not materially affect the intelligibility of the speech as such. Dr J Jansen found no indication that this tape was a

Van Dijkhorst J

A reproduction or that the original tape had been altered at any stage or that it had been tampered with in any way. His view is that it is an original unaltered tape.

Dr Jansen was subjected to a very lengthy cross-examination on exh 6, lasting more than four days. It sharply focused on the B last part of the tape, just before the end, after the conclusion of the speech by Dr Boesak. The purpose of the cross-examination was to establish that exh 6 is not an original. Dr Jansen was requested to listen again to the last portion of exh 6 on stereo phones and also to the beginning of this tape. Having done this, he stated that he stood by his C evidence. In this process it was found that one channel had soft sound on it and one channel noise. He conceded that it was possible that he had not noticed this previously as he did not use additional amplifiers and as he had not listened to the end of the tape on stereo. He stated that for his purpose it had been adequate to record that due to technical problems the rest of the meeting was not properly recorded. It furthermore D appeared that the place where he works is noisy. As he had not listened on stereo he did not previously pick up the difference between the two tracks at the end of the tape, exh 6. As far as the first portion of exh 6 was concerned, he stated that he did not hear that the sound got softer there, as was put by the defence. He did hear a click, which he did not regard as a E switch off of the machine. To determine the cause of this click, one needs access to the actual recorder and know the circumstances under which the recording was made. He presumes that the first part of exh 6 was recorded with the microphone of the recording machine itself, that is where the speeches F were held. In his view the first portion of exh 6 is the remnant of a previous recording which could have been made at the testing of this machine. He is of the view that the machine was tested, played back and then started recording. He holds this view as there is no movement of the microphone itself to be perceived in the first part of exh 6 and therefore the recording was probably by means of the built-in microphone...