S v Baleka and Others (1)

• Jurisdiction: South Africa
• Judge: Van Dijkhorst J
• Judgment Date: 03 June 1986
• Court: Transvaal Provincial Division
• Hearing Date: 03 June 1986
• Citation: 1986 (4) SA 192 (T)

Van Dijkhorst J:

A number of videos of public meetings have been

Van Dijhorst J

shown in Court in terms of my ruling that they may be placed A before Court to enable the State to lead evidence to identify them as relating to particular meetings. That was done in the presence of the two assessors to prevent a possible repetition of the whole process later on.

Witnesses who were present at meetings first gave their recollection of the songs, slogans, speakers and speeches and B thereafter were shown the videos relating to that particular meeting and asked to identify the venue, speakers, et cetera.

The State also led further evidence to support its contention that these videos were admissible as evidence. In addition, certain admissions were made by the accused. All this can be C summarised as follows:

Twelve videos relating to ten meetings were found by the South African Police at the offices of Afrascope in Khotso House, Johannesburg. They are exhs 2, 3, 4, 10, 11, 15, 18 (1), 18 (2), 19 (1), 19 (2), 28 and 29. Calvin Prakasim, the person in charge of those offices, is allegedly overseas and will be there for some time. One video was found by the South African D Police in the United Democratic Front offices at Khotso House. That is exh 9. Three videos were found in possession of private individuals, namely exh 13 in possesion of Mewa Ramgobin, presumably an office bearer of the UDF, exh 16 in possession of Hoffman Galeng, chairman of the UDF, Northern Cape region, and exh 20 in possession of one Kiren Satgoor. Two videos were E obtained by the police by undisclosed methods. They were copied and the masters were returned to their possessors. The copies are before Court as exhs 8 and 17.

Since all these videos came into the hands of the police up to the present they have not been tampered with. There is no evidence who were the cameramen, whether they are professionals F or amateurs, what type of camera was used, whether or not the police obtained the originals or reproductions of the original videos and, if they were reproductions, what type of apparatus was used to make the copies. In the circumstances there was also no evidence that the videos had not been tampered with before they came into the possession of the police.

From the videos themselves it is clear that several meetings G have not been fully recorded and that in most, if not all, recordings there are interruptions.

Defence counsel, choosing not to lead evidence on the question of admissibility, objected to the admission of these videos for any other purpose than to bolster specific evidence of State witnesses, for example that a meeting was held, who the speaker H was and what the venue looked like.

The State, on the other hand, adduces this evidence, inter alia, to prove the contents of the speeches, which, as is not surprising, the witnesses who were present at the meetings have totally forgotten. The State contends that the videos are real I evidence and may be proved as such.

The objection by defence counsel to the admission of the videos for the purpose for which the State intends to use them is twofold. Firstly, it is based on the premise that videos, like tape recordings, have certain inherent dangers and that, before they can be received in evidence, a necessary foundation has to be laid. The dangers are that, like tapes, they can be easily edited or altered, so the argument ran, and the foundation required is set out in S v Singh and Another 1975 (1) SA 330 (N) J at 333G.

Van Dijkhorst J

A I was also referred to an article by T B Radley in 1954 Criminal Law Review titled "Recordings as Testimony of Truth", dealing with the manner in which tapes can be forged, and one by R E Auld 1961 Criminal Law Review 598 at 601, titled "The Admissibility of Tape Recordings in Criminal Proceedings". The B latter refers to Wigmore 2nd ed vol 8 para 2157.

It was argued that videos, which have an aural as well as a visual component, should be treated as tapes are, as the dangers are alike. Therefore, the evidence about the taking of the video, the competency of the operator, the type of C apparatus used, the circumstances of the development and processing of the video and the history thereof until it is produced in Court, is required.

The second leg of the objection was that two of the videos before Court are copies and that all the others, as well as the masters of those two, may also be copies. There is no proof of originality and, even if a copy may be admitted, which is not D conceded, then there is no proof that the copy before Court is true copy.

As appears from the above, the objection raises questions of authenticity and originality. The first normally is not a matter of admissibility, but a matter of trustworthiness and weight. As against that, lack of originality may bring about inadmissibility in some cases.

E A video recording is a combination of a sound recording and visual material. A video tape is a magnetic record with magnetic information stored thereon which information can be converted by an electronic process into dots of light on a television screen, creating pictorial images. It is not a F photograph or cinematograph film. It is accompanied by a sound track which is synchronised with the pictorial matter. The sound track consists of magnetised tape.

As stated, defence counsel emphasised the dangers inherent in the use of videos as evidence. That there are risks, is evident. The roving camera may be selective. Only a portion of the proceedings may have been recorded. There are interruptions G in the recording. Some of the words and sometimes whole sentences of speeches are inaudible, either through audience noise or faulty recording.

Technically speaking, a magnetic tape recording can be altered by editing and even by changing word order and dubbing the altered tape onto another with slight chance of detection. A H video may also be edited into distortion.

These are all matters that have to be given due consideration when the weight of this evidence is to be determined by the Court. It does not relate to admissibility. The said risks should not be over-emphasised.

Having sat through two weeks of video viewing, I am convinced I that the video can be a very helpful tool to arrive at the truth. It does not suffer from fading memory as do witnesses. The camera may be selective, but so is the witness' recollection, even more so. The best word artist cannot draw his verbal picture as accurately and as clearly as does the...