S v Botha and Others (2)

• Jurisdiction: South Africa
• Judge: Myburgh J
• Judgment Date: 11 September 1995
• Counsel: W H Trengrove SC (bygestaan deur M R Hellens) namens beskuldigde nr 1; J L C J Van Vuuren namens beskuldigde nr 2; Etienne du Toit SC namens beskuldigde nr 3 J S M Henning SC (bygestaan deur I M Lindeque) namens die Staat
• Hearing Date: 11 September 1995
• Court: Witwatersrand Local Division

Myburgh J:

Introductory

Accused 1 objects to the State handing in the transcript of the evidence which he gave in the bail application which was heard on 27 January 1994. C The basis of the objection is that the evidence is not admissible against him for the following reasons:

1.

The evidence would be relevant only insofar as it incriminates the accused. It was given without warning and in ignorance of his privilege against self-incrimination. It is consequently not admissible in order to incriminate him in his subsequent trial. D

2.

The admission of the evidence would violate the accused's rights in terms of s 25 of the Constitution.

3.

The admission of the evidence would violate a rule of our common law interpreted, developed and applied in terms of s 35(3) of the Constitution, with due regard to the spirit, purpose and objects of Chapter 3 of the Constitution. E

By agreement between the parties, the record of the bail application was handed in for the purpose of considering its admissibility.

The facts

At 06h00 on 27 January 1994, while accused 1 was still in his pyjamas, he F was arrested at his house in Benmore, Sandton, by Warrant-Officer Snyman and Warrant-Officer Pienaar of the South African Police.

There is a dispute in the affidavits between accused 1 and the two policemen as to whether accused 1 was informed that he had the right to remain silent. For present purposes I will accept the version of the policemen that Warrant-Officer Snyman told accused 1 that 'hy die reg het G om te swyg'.

Accused 1 requested his wife to telephone an attorney, Mr D Phillips, to inform him that he had been arrested.

At 06h30, after accused 1 had dressed, he and the policemen left his home. He was taken to the offices of the commercial branch at John Vorster H Square. At about 10h45 he was given a copy of the preliminary charge sheet. The preliminary charge sheet is not available to me. It related to three counts of fraud. The fourth count was subsequently added. The charge sheet must have been a substantial document as the indictment in its present form consists of 98 pages. (Warrant-Officer Snyman avers that a copy of the charge sheet was attached to the warrant of arrest which was I handed to accused 1 at 06h00. I accept, however, that accused 1 became aware of the charge sheet only at 10h45 when he was given another copy.) Accused 1 met accused 3 at John Vorster Square.

Later that morning, accused 1 was formally charged and taken to the Johannesburg magistrate's court. At court accused 1 and accused 3 were J joined by accused 2.

Myburgh J

A Accused 1 met Mr Phillips and Adv M Kruger at court. The three of them discussed the matter in a room in the cells for about ten to 15 minutes. Accused 1 avers that he was not advised by his lawyers that he had the right to refuse to answer incriminating questions.

From that office they went into court. This is accused 1's version, which B is not placed in issue, of what transpired:

'I had expected to be going to tell my story to a magistrate in his office. When I got into court, I found it to be a very formal and imposing place with people wearing what I thought were long black coats. Although I thought that the magistrate, the police and my attorney might be there, I did not realise that I was entering into what I now have C been told was a formal opposed bail application. This was the first occasion that I had been in a court.

I knew nothing about bail applications or court procedures and in this ignorance stepped into the witness box to answer the questions that I believed would satisfy the magistrate so that he should release me on D bail. I had no idea that I would be cross-examined or that the merits of the case against me might be canvassed. I had no idea that I had the right to remain silent with regard to questions posed on the merits. . . .'

The State conceded that all three accused were entitled to bail but suggested an amount of R500 000 each. Accused 1 tendered R20 000. That E was not acceptable to the State.

The magistrate did not inform accused 1 that he had the right to refuse to answer incriminating questions.

Accused 1 was called to give evidence by Adv M Kruger. He was asked questions about his occupation, his assets, his family and the charges F against him. The evidence-in-chief on the charges is recorded on about nine pages of the record. Accused 1 was cross-examined by Adv De Beer of the Attorney-General's office. By 4 pm the cross-examination had not finished. The matter stood over until the following day, the accused remaining in custody. Adv Hellens appeared on the following day for G accused 1, leading Adv M Kruger. Mr Hellens placed on record his objection to the cross-examination by Mr De Beer of accused 1 on the merits of the case. The cross-examination on the merits nevertheless continued. After accused 1's ability to pay bail was canvassed, the parties agreed on bail of R100 000 for each of the three accused. The cross-examination on the merits is recorded on about 37 pages of the H record.

There...