S v Melani and Others

• Jurisdiction: South Africa
• Judgment Date: 01 January 1996
• Citation: 1996 (1) SACR 335 (E)

S v Melani and Others
1996 (1) SACR 335 (E)

1996 (1) SACR p335

Citation	1996 (1) SACR 335 (E)
Court	Eastern Cape Division
Judge	Froneman J
Heard	March 22-24, 1995; March 31, 1995
Judgment	October 16-26, 1995; October 27, 1995
Counsel	P Daubermann for the accused at the request of the Court; N Henning for the State

Flynote : Sleutelwoorde

D Evidence — Admissibility of — Evidence of pointings out — Such obtained in contravention of s 25(1)(c) of Constitution Act 200 of 1993 — Accused not E properly informed of right to consult with legal practitioner — Such right protecting right against self-incrimination and presumption of innocence — Common law not developing to such an extent that rule exists whereby evidence of admissions or pointings out would be excluded because accused not properly F informed of right to legal representation — Although no authority exists as to how to treat evidence unconstitutionally obtained, spirit and tenor of existing Constitutional Court decisions indicating that such evidence should be excluded — Absolute exclusionary rule however not justified — Court vested with discretion to allow evidence if its exclusion would bring administration of justice into G disrepute — Although Court allowing evidence of pointing out on this basis in S v Melani 1995 (2) SACR 141 (E), Court now of opinion that evidence should have been excluded — Infringements of Constitution resulting in accused being conscripted against himself through some form of evidence emanating from himself, strikes at fundamental right against self-incrimination — Good faith H exceptions, where Court exercises its discretion and allows evidence, relating mainly to discovery of existing facts or objects, and not from incriminating evidence emanating from accused himself.

Fundamental rights — Right to consult with legal practitioner and to be informed I of such right — Section 25(1)(c) of Constitution Act 200 of 1993 — Not sufficient to merely inform accused of this right — Right to consult with practitioner during pre-trial procedure, and especially right to be informed of this right, closely connected to, and protecting, presumption of innocence, right to silence and proscription of compelled confessions — Failure to recognise importance of s J 25(1)(c) right has effect of depriving persons, especially the uneducated,

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A unsophisticated or poor, of their right to remain silent — In order to give proper effect to right contained in s 25(1)(c), accused to be informed of this right in manner from which it can reasonably be supposed that he understood such right — Existence of right without knowledge of content serves little purpose.

Headnote : Kopnota

B The three accused stood trial in a Provincial Division on counts of murder, robbery and the unlawful possession of firearms and ammunition. All three accused relied on alibi defences. At the end of the trial the Court accordingly had to ascertain whether the State had proved its case beyond reasonable doubt. The evidence tendered by the State consisted of alleged pointings out by the accused, and eyewitness evidence. C During the course of the trial the pointing out by accused No 1 was declared to be admissible as evidence against him; see S v Melani and Others 1995 (2) SACR 141 (E). The alleged pointings out by accused Nos 2 and 3 were declared to be inadmissible after separate trials-within-the-trial. Before judgment, the Court was asked to reconsider its ruling with regard to the pointing out by accused No 1. The D Court, during judgment, gave reasons for its findings that the pointings out by accused Nos 2 and 3 were inadmissible and reconsidered its judgment that accused No 1's pointing out was admissible. It was argued, inter alia, that the accuseds' fundamental rights had been infringed as they had not been properly warned of their right to legal representation before the pointings out. The Court held that the content of the right to E legal representation had in fact not been properly conveyed to the accused. The Court subsequently analysed the position at common law with regard to pointings out. This was done in an effort to possibly avert a decision on constitutional grounds. From this analysis the Court gleaned that the common law, at the time of the coming into operation of the Constitution, had not developed to a point where it could be said that evidence of admissions or pointings out, otherwise voluntarily made, should be F excluded because the accused were not informed of their right to legal representation. The Court thus had to decide the issue with regard to the Constitution Act 200 of 1993. Although the case against the accused was pending before the Constitution came into operation, S v Mhlungu 1995 (3) SA 867 (CC) ruled that the accused, in a matter such as the instant, could rely on the provisions of Chapter 3 of the G Constitution. The Court thereafter restated the proper approach to the interpretation of the Constitution. As it had been found that the accused were not properly warned of their right to legal representation before the pointings out, the question for decision revolved around the admissibility or not of evidence obtained in breach of some of the accuseds' fundamental rights. Although no decision as to this question existed as yet, H the Court was of the opinion that the general spirit and tenor of especially S v Zuma 1995 (1) SACR 568 (CC) gave guidance as to this aspect. The right to consult with a legal practitioner and especially the right to be informed of this right, as embodied in s 25(1)(c) of the Constitution Act, was found to be closely related to, and protective of, the presumption of innocence, the right to silence and the proscription of compelled confessions. Failure to recognise the importance of this right would have the effect of I depriving persons, especially the uneducated, unsophisticated or poor, of the protection of their right to remain silent and not to incriminate themselves. This was found to offend not only the concept of substantive fairness, but also the right to equality before the law. Accused No 1 had merely been informed of his right to legal representation which was not explained to him at all. Accused No 2 had not been informed of his right at all. The Court held that, in order to give proper effect to an J accused's right in terms of s 25(1)(c), he or

1996 (1) SACR p337

A she had to be informed of his or her right to consult with counsel in a manner that it could reasonably be supposed that he or she had understood the content of the right.

The Court then turned to the appropriate relief available to the accused for the infringement of the constitutional rights. The Court confirmed its earlier decision that evidence obtained in breach of fundamental rights would be excluded, subject however B to the discretion of the presiding officer. Such discretion conferred upon the presiding officer the competence to allow the evidence if it appeared that its exclusion would bring the administration of justice into disrepute. The Court thus remained convinced that no absolute exclusionary rule could be justified. In the reassessment of its decision to allow the evidence of accused No 1's pointing out, the Court concluded that its earlier decision had been wrong. Infringements of fundamental rights which resulted in C the accused being conscripted against himself through some form of evidence emanating from himself, struck at one of the fundamental tenets of a fair trial, namely the right against self-incrimination. Instances where a discretion to allow unconstitutionally obtained evidence could be exercised, had to be limited to the discovery of existing facts or objects and not to incriminating evidence of the accused D himself. The Court accordingly held that the evidence of accused No 1's pointing out had to be excluded.

Case Information

Judgment on the admissibility of evidence at the conclusion of a criminal trial.

P Daubermann for the accused at the request of the Court. E

N Henning for the State.

Cur adv vult.

Postea (27 October 1995).

Judgment

Froneman J:

The three accused have been charged with counts of murder, robbery, theft and the unlawful possession of firearms and ammunition. All the counts relate to events on the farm Melrose in the district of Elliot on 7 July 1992 when the owner of the farm, Mr August Emil Wilhelm Wink ('the deceased') was shot and killed and dispossessed of certain of his property. All the accused pleaded not guilty and although G they did not disclose the nature of their defence when they pleaded it transpired during the course of the trial that each of them relied on an alibi: accused No 1 alleging that he was in Cala, in the then Transkei, at the time of the commission of the alleged H offences and accused Nos 2 and 3 alleging that they were in Cape Town at the time. F

The essential dispute to be resolved in the matter is therefore whether it has been established beyond reasonable doubt that the accused were correctly identified as being at the scene of the crime on that particular day and that they were the I perpetrators of the offences with which they were charged.

Before dealing with the disputed portions of the evidence, reference will be made to the undisputed facts relating to the deceased's death and the events surrounding it.

The deceased ran a shop on the farm. The shop itself formed part of the building in which the deceased lived and entry to the house could be gained directly through a J door from the shop. On the morning of 7 July 1992 the

1996 (1) SACR p338

Froneman J

A deceased's wife left the farm to take one of the employees to a doctor in Barkly East. It was after she had left that the deceased was robbed and killed. He was busy in the shop where he was being...