S v Monyane and Others

• Jurisdiction: South Africa
• Citation: 2001 (1) SACR 115 (T)

S v Monyane and Others
2001 (1) SACR 115 (T)

2001 (1) SACR p115

Citation	2001 (1) SACR 115 (T)
Court	Transvaal Provincial Division
Judge	Borchers J
Heard	August 11, 1999
Judgment	August 11, 1999

Flynote : Sleutelwoorde

Evidence — Of pointings out — Admissibility — Accused not having been warned of rights to legal representation before pointing out — Accused's rights under s 25(1)(c) of Constitution Act 200 of 1993 infringed — Evidence inadmissible.

Evidence — Trial-within-a-trial — Evidence of bystanders and C photographs taken at pointing out — Admissibility of during trial-within-a-trial — Evidence inadmissible prior to a finding in favour of State at conclusion of trial-within-a-trial.

Evidence — Trial-within-a-trial — When to be held — For purposes of determining admissibility of identification parade — Court holding trial-within-a-trial to determine admissibility where this in D interests of accused and State and could shorten trial.

Evidence — Of identification — Identification parade — Legal representation at — Accused having no right to demand that legal representative should be present at identification parade.

Headnote : Kopnota

During the course of a criminal trial in the High Court the accused E contested the admissibility of certain evidence which the State wished to lead against them and a trial-within-a-trial was held. The defence objected to statements and pointings out made by the accused on two grounds, namely that they had not been informed of their right to legal representation before making the statements and pointings out and that F they had been assaulted before making the statements and pointings out. It appeared that immediately before the confessions or pointings out had been made none of the accused were advised by the various officials with whom they came into contact that they were entitled to legal representation provided by the State if they could not afford such services: although at one stage their rights may have been correctly explained to them, subsequent explanations, often repeated, G

2001 (1) SACR p116

would have been to the effect that legal representation provided by the State A could be obtained by application only when they appeared in court. The Court held that there had been an infringement of the accused's constitutional rights set out in s 25(1)(c) of the interim Constitution (Act 200 of 1993, which was applicable in the present matter) and the question then arose as to whether evidence obtained as a result thereof had to be excluded. Adopting the test set B out in S v Zuma1995 (1) SACR 568 (CC), the Court ruled that acceptance of the evidence would render the trial unfair.

The Court then proceeded to give reasons for its ruling made during the trial-within-the-trial that the sister and sister-in-law of the two deceased, who were present when the three accused were brought to the house in question where the pointings out were made, could give C evidence of how the pointings out were performed, and present photographs thereof, in so far as this showed that they were freely and voluntarily made and in so far as such evidence did not contain admissions or confessions or parts thereof made by the accused. The Court held that the fact that an accused person pointed something out was not of itself necessarily incriminating and there could be a number of inferences which could be drawn from such action. It would be D incorrect to admit the gesture's and the photographs at the trial-within-a-trial while, at that stage at least, excluding the words spoken. By admitting evidence of the gestures made (the pointings out) the Court would be permitting parts of a confession or an admission to be received as evidence before deciding whether the whole confession or admission was freely and voluntary made or was inadmissible. Such E evidence was not admissible prior to a finding in favour of the State at the conclusion of the trial-within-a-trial. The Court was of the view that on the evidence placed before it, pointings out at the scene of the crime could amount only to admissions by conduct and no other inference could be drawn from the evidence.

An identification parade had been held at which one or other of the F accused had been pointed out by two State witnesses. During the course of the trial the accused objected to the admissibility of the evidence relating to the parade on the grounds that their rights to legal representation had not been explained to them beforehand. The Court, following the viewpoint of the Court in S v Mhlakaza1996 (2) SACR 187 (C) and not that in S v Vilakazi1996 (1) SACR 425 (T), without purporting to resolve the conflict between the two cases, held a trial-within-a-trial G to determine the issue in the circumstances where it was clear: (a) that the State's case was nearing its end; (b) it was equally clear that the accused were approaching the point at which they needed to decide whether to testify in their own defences or not and it was appropriate that the accused should know whether the evidence of the identification H parade was admissible prior to the close of the State's case; and (c) there was a real possibility that the holding of a trial-within-a-trial could shorten the trial as only one witness would be called for the State.

As to the admissibility of the evidence concerning the identification parade, the Court held that the appearance of a person as a suspect at I an identification parade could not be equated with a situation where he was invited to make a statement or pointing out which could be incriminatory and there was no danger that an accused would incriminate himself at an identification parade. The accused furthermore had no choice as to whether he would participate in an identification parade. As the legal representative could give no advice to his client and no enforceable orders to the policeman in charge, his role became that of a spectator which could be filled by any person who witnessed the parade. The Court concluded that although the provisions of J

2001 (1) SACR p117

s 73(1) and (2) of the Criminal Procedure Act 51 of 1977 and s 25(1) of A the interim Constitution permitted an accused to have legal representation from the time of his arrest, he was not entitled as of right to assistance at an identification parade and the failure of the police to explain to any of the accused their so-called 'rights' in this regard could not result in the evidence being ruled inadmissible.

Judgment on issues of admissibility which arose during the course B of a criminal trial.

Judgment

Borchers J:

A trial-within-a-trial was held in this matter to determine the admissibility of certain evidence which the State wished to lead. After the arrests of the four accused in the early hours of 13 July 1995, they were taken by the police C to the police station where they were all, briefly and separately, interrogated. These interrogations led to the making of certain statements or pointings out to other officials by the accused and these formed the subject matter of the trial-within-a-trial. Chronologically they are: D

1.

The contents of a verbal statement made by accused 4 to Sergeant Denny at the police station that morning during interrogation.

2.

A written confession made by accused 1 at about 8 am on 13 July 1995 to retired Colonel Du Pont.

3.

A pointing out of the scene of crime by accused 3 on 13 July 1997 at 9 am. E

4.

A pointing out of the scene by accused 1 at 10 am on 13 July 1997 to Captain Van Schalkwyk and, finally,

5.

A pointing out of the scene of the crime by accused 2 to Captain Van der Merwe at about 1:20 pm on 13 July 1995.

The State led the evidence of a large number of witnesses and from the F cross-examination thereof it became clear that the defence objections to the admissibility of these matters of evidence rested squarely on two grounds. Firstly, that the accused had not been informed of their rights to legal representation prior to making the statements or pointing out, alternatively, if informed, the full contents of such rights had at no stage been imparted to them. Secondly, that the G accused had been assaulted after their arrests, which assaults had induced them to make the said statements or pointings out.

The accused did not themselves testify. I was asked after the close of the State case to adjudicate the matter on the basis of the State evidence and the defence at this stage raised pertinently the fact that the full contents of the rights contained in s 25(1)(c) of H Act 200 of 1993, the interim Constitution, had not been imparted to the accused. I pause to mention that it became common cause that the matter was indeed governed by the interim Constitution though the defence initially submitted that the present Constitution, Act 108 of 1996 applied. Because of my view on the likelihood of the defence succeeding I on this narrow basis raised, I decided that it was an appropriate stage of the proceedings to hear argument on the issue and to make a ruling thereon. I ruled that the accused's constitutional rights had been breached and that to admit the evidence would result in an unfair trial within the meaning of s 25(3) of the interim Constitution. J

2001 (1) SACR p118

Borchers J

The accused did not testify in the trial-within-a-trial and the A factual issues must be decided solely upon the evidence presented by the State. It is not in my view necessary to summarise at length all the evidence and cross-examination placed before this Court. I shall deal only with that relevant to my ruling.

Captain Balfour testified that as each accused was arrested that B night in different places, he read to them a copy of s 25 which he had on his person, and that he made the contents thereof understandable to each accused...