S v Marx and Another

• Jurisdiction: South Africa
• Judge: Cameron J
• Judgment Date: 29 March 1996
• Citation: 1996 (2) SACR 140 (W)
• Hearing Date: 29 March 1996
• Counsel: I van Dyk for accused number 1 at the request of the Court, A de Wet for accused number 2 at the request of the Court J Davidowitz for the State
• Court: Witwatersrand Local Division

S v Marx and Another
1996 (2) SACR 140 (W)

1996 (2) SACR p140

Citation	1996 (2) SACR 140 (W)
Court	Witwatersrand Local Division
Judge	Cameron J
Heard	March 29, 1996
Judgment	March 29, 1996
Counsel	I van Dyk for accused number 1 at the request of the Court, A de Wet for accused number 2 at the request of the Court; J Davidowitz for the State

Flynote : Sleutelwoorde

B Evidence — Confession — Admissibility of — Failure by police officer to inform accused of right to legal representation before making formal statement — Question is whether the subsequent trial is conducted in accordance with notions C of basic fairness — Basic fairness not requiring formalistic repetition or inappropriate or undue formalism — Where accused upon arrest had been informed that he was entitled to legal representation but there was no indication that his knowledge extended to the fact that he was entitled to legal assistance even while making statement to the police, statement ruled inadmissible.

Headnote : Kopnota

D During the course of a criminal trial the defence contested the admissibility of a statement made by accused number 2 to a police officer. It appeared that on arrest accused number 2 had been informed of his rights including his rights to legal representation but he had not been specifically advised that he was entitled to legal representation before making the statement which he subsequently made. The Court E held that informing the accused upon arrest of his or her rights to legal assistance did not exhaust the police's duties if a statement the accused made was later sought to be admitted in evidence. A statement might be freely and voluntarily made and without the accused having been unduly influenced thereto for the purpose of the Criminal F Procedure Act 51 of 1977 and yet be inadmissible on broader constitutional grounds. These questions arose because the accused was now entitled, generally, to observance of his or her rights to a fair trial. The Court held, following the decision in S v Ntuli 1996 (1) SACR 94 (CC), that all criminal trials had now to be run not only in compliance with the old requirements but also in conformity with notions of basic fairness and justice. The general question for every criminal court was therefore G whether the admission of any evidence, including statements an accused had made to a police officer, would unfairly infringe his or her right to a fair trial. Relevant in this regard was an expressed failure on the part of the police to inform the accused properly of his or her constitutional entitlements but the admission of evidence might be unfair also on other grounds than such a failure. The Court endorsed the approach in S H v Melani and Others 1996 (1) SACR 335 (E). The Court held further that basic fairness did not require formalistic repetition and likewise did not require inappropriate or undue formalism. Mere formalism may indeed constitute a clog on the proper and efficient performance of police duties. It was clear however that the formality and significant consequences of the proceedings before the police officer required that the I accused's rights to legal representation or assistance should at the outset and before any statement was taken have been communicated to him. There could in the circumstances have been no suggestion that the accused's knowledge extended to the fact that he was entitled to legal assistance even while making his statement to the police officer. The Court accordingly ruled that the statement was inadmissible against accused number 2.

Case Information

Ruling on the admissibility of a statement made to a police officer. J

1996 (2) SACR p141

I van Dyk for accused number 1 at the request of the Court. A

A de Wet for accused number 2 at the request of the Court.

J Davidowitz for the State.

Judgment

Cameron J:

This is a ruling regarding the admissibility of a statement that accused No B 2 made to Captain Johnstone of the Brixton Murder and Robbery Squad on Tuesday morning, 7 February 1996.

The defence contested the admissibility of the statement primarily on the ground that it had not been freely and voluntarily made within the meaning of that term in ss 217 and 219A of the Criminal Procedure Act 51 of 1977. Yesterday morning, the Court ruled C unanimously that evidence of the statement to Captain Johnstone was admissible as evidence against accused No 2 for the purposes of those statutory provisions.

The Court, however, indicated that it required further argument on the question whether the failure by Captain Johnstone in the particular circumstances of the case to inform accused No 2 before taking the statement that he had the right to legal D representation in relation to the statement made it inadmissible in terms of s 25 of the interim Constitution, Act 200 of 1993. The basis was that the failure to inform the accused of his right to legal representation unfairly impeached his right to a fair trial.

Mr Davidowitz, on behalf of the State, and Ms De Wet, on behalf of accused No 2, yesterday afternoon made submissions regarding this question. Since the ruling that E follows concerns a question of law, it is my ruling. But it represents also the considered views of my assessors, Professor R C Whiting and Advocate G M Makhanya.

The relevant facts are as follows: Accused No 2 was arrested on Monday evening, 6 February 1995. The arrest took place at the Rotunda bus terminal in Johannesburg. It was effected by Detective-Sergeant Fouche of the Hillbrow Police Station. Fouche did F not describe in detail the manner in which he carried out the arrest. It was not, however, suggested to him that he failed properly to carry out police procedures on arresting the accused. There is therefore no basis for any suggestion that the accused was not properly informed of all his constitutional rights upon his arrest. The Court therefore finds that accused No 2 was informed upon his arrest that he had the right to legal representation.

After a brief sojourn at the Hillbrow Police Station accused No 2 was taken by car to G the Brixton Murder and Robbery Squad offices at the Brixton Police Station. This occurred sometime before 23:20.

Detective (now Inspector) Sergeant van der Watt, the investigating officer in the case, H was summoned from his home and arrived at approximately 23:30. Upon his arrival, accused No 2 had already been detained as a suspect. An interview then took place. Van der Watt, accused No 2 and a further police officer, Erasmus, were present. The interview lasted approximately 40 minutes. The occurrence book indicates that the I accused was booked out at approximately 23:30 and booked back into the cells at 00:10.

Accused No 2 now made a call to his mother. The circumstances in which that call occurred are not directly relevant. What is relevant is that he requested her to contact a lawyer and to arrange the provision of bail J

1996 (2) SACR p142

Cameron J

A money for him. Accused No 2 also testified that his mother advised him not to make any statement.

These facts show that the accused was indisputably aware of his entitlement to legal assistance regarding the police investigation against him. He would not otherwise have B requested his mother to arrange a lawyer for him. The arrangements concerning the lawyer, however, appear to have related principally to the question of his getting bail. I return to this aspect later.

It appears that accused No 2's mother indeed made the arrangements he requested. In the meantime, however, on Tuesday morning, 7 February 1995, at approximately 09:10, Inspector Van der Watt took accused No 2 to Captain Johnstone. Johnstone, C like Van der Watt, was a police officer attached to the Brixton Murder and Robbery Squad. He did, however, have nothing to do with the current police investigation.

Between 09:10 and 09:50 accused No 2 was in the office of Captain Johnstone. The court ruled unanimously that the statement Captain Johnstone recorded was made D freely and voluntarily and that for statutory purposes no undue pressure had been placed upon the accused.

The relevant facts included Inspector Van der Watt's testimony that accused No 2 made a report to him during the interview the previous evening between 23:30 and 00:10. That report was repeated to Van der Watt the next morning. Van der Watt also E testified that accused No 2 expressed willingness to make a formal statement to a police officer. It is therefore clear that the accused was in this sense fully willing to make a statement to Captain Johnstone.

The statement he made (in its presently attenuated form) is Exhibit A. Since the procedure preceding the taking of the statement are of some significance, it is F necessary to set them out in detail.

Captain Johnstone testified that he worked through a standard police form with accused No...