S v Kidson

• Jurisdiction: South Africa
• Judge: Cameron J
• Judgment Date: 20 May 1998
• Citation: 1999 (1) SACR 338 (W)
• Hearing Date: 20 May 1998
• Counsel: Knoetze for the accused Nel for the State
• Court: Witwatersrand Local Division

Cameron J:

The question that has arisen now is this: is a recording and transcript of a conversation between a suspect and a potential accused, made covertly by the suspect with the assistance of the police, admissible against the accused in subsequent criminal proceedings? C

D The accused is charged with the murder of her husband, Barry Kidson, on 23 January 1996. The State is leading the evidence of an admitted accomplice, Ashraf Rabane. Mr Nel, for the State, now tenders a recording and transcript, allegedly of a conversation between Rabane and the accused on 11 April 1997. It is common cause that a conversation between them took place on that day. But the admissibility and authenticity of the recording and transcript are disputed. E Counsel are agreed that I should decide admissibility first and authenticity later in the trial, on the basis of the evidence as a whole (S v Baleka and Others (3) 1986 (4) SA 1005 (T); S v Fuhri 1994 (2) SACR 829 (A) at 835g-836c).The parties agreed that, since the facts were almost wholly common cause, a trial-within-a-trial was unnecessary. The relevant facts are that Rabane was at the time of the recording under police supervision, although not under arrest. In the F time-honoured euphemism, he was a suspect 'assisting the police in their investigations'. He had incriminated himself in respect of the offence of being an accessory to murder, and had supplied evidence of this. The information he had given implicated the accused in the murder of her husband. The investigating officer, Captain Steyn, apparently at Rabane's G suggestion, then supplied him with a police-issue voice-activated tape recorder, which on a visit to the accused's home he carried in his jacket's top pocket, and which he returned to the police after his conversation with the accused.

In these circumstances, Mr Knoetze, for the accused, has resisted admission of the recording and transcript on two H grounds: that the monitoring and recording of the conversation contravened the Interception and Monitoring Prohibition Act 127 of 1992 ('the 1992 statute'); and that, in any event, the police procedure infringed the accused's constitutional rights, particularly her right to privacy. I deal with these in turn.

The Interception and Monitoring Prohibition Act 127 of 1992

I The 1992 statute, which came into operation on 1 February 1993, prohibits the monitoring of certain conversations. The J prohibition is in apparently far-reaching terms. So far relevant, s 2(1) provides that no person shall -

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'(b) intentionally monitor a conversation by means of a monitoring device so as to gather confidential information concerning any person, body A or organisation'.

Severe penalties - including imprisonment of up to two years - are provided for contravention of the monitoring provision (s 8(1)(a)). It is common cause that the police tape recorder Rabane was carrying fell under the definition of 'monitoring device' in s 1. Section 2(2) provides that, notwithstanding the prohibition, a Judge may direct inter alia that - B

'(c) conversations by or with a person, body or organisation, whether a telecommunications line is being used in conducting those conversations or not, be monitored in any manner by means of a monitoring device'.

Section 3 sets out detailed conditions for the issue of a Judge's direction. In terms of s 6, the Judges - President of the C High Court are empowered jointly to issue directives regarding the manner and procedure of s 3 applications. Applications for a direction may be brought only by a limited category of officers in the police services, defence force or intelligence agencies (s 3(2)). The statute does not explicitly state, but its provisions entail, that an application for a D direction can be made only in respect of the investigation of offences. For present purposes the most significant condition is that a direction may be issued by a Judge only if the Judge is convinced -

'(i)

that the offence that has been or is being or will probably be committed, is a serious offence that cannot be properly investigated in any E other manner and of which the investigation in terms of this Act is necessary; or

(ii)

that the security of the Republic is threatened or that the gathering of information concerning a threat to the security of the Republic is necessary.'

(Section 3(b).) F

'Serious offence' is defined in s 1. It means, first, any offence in Schedule 1 to the Criminal Procedure Act 51 of 1977, including any conspiracy, incitement or attempt to commit such an offence, provided that - G

'(i)

that offence is allegedly being or has allegedly been committed over a lengthy period of time;

(ii)

that offence is allegedly being or has allegedly been committed on a regular basis by the person or persons involved therein; or

(iii)

that offence may allegedly harm the economy of the Republic;' H

or, second, certain offences under the Drugs and Drug Trafficking Act 140 of 1992. The statute thus far appears to have been the subject of only three reported decisions: Lenco Holdings Ltd and Others v Eckstein and Others 1996 (2) SA 693 (N); Protea Technology Limited and Another v Wainer and Others [1997] 3 All SA 594 (W) and S v Naidoo and Another I 1998 (1) SACR 479 (N). None of these deals with the point at issue today.

The police did not attempt to obtain a s 2(2) Judge's direction to authorise the monitoring, and hence did not comply with the elaborate procedures stipulated in s 3. Should the investigating officer, Captain J

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A Steyn, have applied for a Judge's direction? That depends in my view partly on whether he could have obtained such a direction at all. In Protea Technology (at 605-6) Heher J, and in Naidoo (at 504-6 SACR) 212-14 McCall J, set out the requirements the statute prescribes for obtaining authorisation. It would serve no purpose to rehearse them now. The circumstances under which a Judge can issue a direction Heher J rightly describes as 'severely limited' (at 605b-c), and a B rigorous antecedent procedure is prescribed.

In both Naidoo and Protea Technology, attention is drawn to anomalies in the drafting and apparent application of the statute. In summary, the statute prohibits intentional monitoring for the purpose mentioned of apparently all C conversations, then specifies an extremely cumbersome procedure for obtaining exemption from the prohibition, and in any event leaves a wide array of persons by whom, and offences for which, no judicial authorisation can be obtained at all.

D In the present case it seems to me that the investigating officer could not have sought authorisation at all. Murder is certainly a Schedule 1 offence. But unless the additional requirements of the statutory definition are met, even it does not qualify as a 'serious offence'. Mr Knoetze somewhat faintly suggested, on the strength of State evidence that over a period of years the accused had sought the assistance of at least two other persons to commit the murder, that Captain E Steyn could have obtained authorisation on the premise that the offence was being committed 'on an organised basis by the persons involved therein'. The submission does not withstand scrutiny. 'On an organised basis' can not in my opinion encompass every crime that has been forethought or pre-arranged, and the contrary conclusion to which McCall J seems F to have come in Naidoo (supra), at 214e-f is not in my respectful view correct. The statute uses the plural ('organised . . . by . . . persons'), which emphasises that some organisational elaboration in the commission of the offence is envisaged. (I note that in the Butterworths report of the judgment in Naidoo, the only one available to me, McCall J at 214f quotes the provision as containing the singular 'person'.) What the statute appears to accommodate is applications G for monitoring in respect of 'Mafia-type' cartel-organised syndicate crime - that is, criminal conduct that is the product or output of an organisation dedicated to, or otherwise regularly or extensively engaging in, criminal activities. The present murder does not qualify. Since murder is not a continuing offence, Captain Steyn could also not have obtained a H Judge's direction on the premise that the murder had been committed 'over a lengthy period of time'. Though on the State evidence the murder was long planned, the act itself was committed with brutal despatch.

I therefore conclude that the offences being investigated offered no basis for an application for a Judge's direction.

I This in my view underscores the conclusion that the Legislature must have intended to set some limit to the application of the statute. The 1992 statute is a penal statute. It criminalises conduct not sanctioned before, and imposes severe penalties for its breach. A strict construction is therefore appropriate. On well-established principles of interpretation, if a J criminal statute is reasonably capable of two meanings, it must be

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interpreted in favorem libertatis, and the Legislature must be taken to have intended the less onerous interpretation. See A Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 657H, 667H and 668A - B; and S v Toms; S v Bruce 1990 (2) SA 802 (A) at 808A - C.

Mr Nel's principal submission for limiting the statute was that it did not apply to a conversation monitored by one of the B participants. The jurisprudence of the North American courts, to which I return later, refers to this as participant surveillance. It is contrasted with third party surveillance, where an outsider monitors or surveils the conversation of two other parties. The three South African decisions to which I have referred, Lenco, Protea Technology and Naidoo, unlike the present, concern monitoring by an outside third party...