S v Mpumlo and Others

• Jurisdiction: South Africa
• Judge: Mullins J
• Judgment Date: 18 February 1986
• Citation: 1986 (3) SA 485 (E)
• Hearing Date: 18 February 1986
• Court: Eastern Cape Division

Mullins J:

During the course of the trial of the ten accused on six counts of murder and one of public violence, the question E arose as to the admissibility of a video film tendered by the State as evidence. Such admissibility was objected to by the defence, and after hearing argument thereon both from the State and the defence, I ruled that the video film was admissible and could be used in evidence. I further stated that my reasons for that ruling would be handed down later during the trial, and these reasons follow.

F A short summary of the background to the events recorded on the video film is necessary. On 23 March 1985 there were disturbances in the Kwanobuhle township near Uitenhage. Later that day the charred remains of five bodies were found at different places, but within the same area of the township. G These bodies are alleged to be those of Benjamin Kinikini, who was a local undertaker, three male members of his family, and a friend. The body of another member of the Kinikini family has not been found. The ten accused are charged with the murder of these six persons, and with the crime of public violence.

Colonel Theron was in charge of a police unit in the township H that day, and he testified to having himself seen the bodies, some of them on more than one occasion, before they were removed to the policy mortuary. Apparently there was, however, also at least one private person in the township who was recording the events by means of a video camera. The identity of this person has not as yet been disclosed, but he is stated I to be presently overseas and not available to the State as a witness. Presumably he was on assignment by one of the overseas news media.

The video film (possibly more correctly called the "videotape") which he took, or a copy thereof, came into the hands of the police. Mr Nel, who appears for the State, conceded that the film he tendered in evidence was a copy of the original. It is not clear whether there will be evidence led by the State as to J how the copy tendered in evidence was made from the original, whether it is an identical and unedited copy thereof, and how it

Mullins J

came into the possession of the police. Mr Nel's argument was, A however, that despite the lack of proof of the origin and authenticity of the film, he was entitled to show this film to the Court and to ask Colonel Theron and other witnesses to comment on the scenes portrayed thereon. He argued that any criticisms as to the origin and authenticity of the film, or of its interpretation by witnesses, was a matter affecting the B weight of such evidence. He argued that a video film is real evidence, and not subject to any restrictions which might apply to the proof of documents tendered in evidence.

Mr Poswa, for the accused, on the other hand, adopted an even more uncompromising stand. He argued firstly that as there was C no statutory or other authority for the use of video films as evidence, such films were totally inadmissible, and could not be proffered as having any evidential value. Alternatively he contended that a video film was in the nature of a document such as a photograph - a "series of images" as he described it - and was therefore subject to the prerequisites as to proof of authenticity attendant upon the use of documents in D evidence, and was also subject to the best evidence rule.

Our law of evidence recognises a basic inclusionary rule of evidence of all facts relevant to the issue to be determined. Unless specifically excluded, whether by statute or otherwise, the inclusionary rule applies. In R v Trupedo 1920 AD 58 at 62, E the law is clearly set out as follows:

"The general rule is that all facts relevant to the issue in legal proceedings may be proved. Much of the law of evidence is concerned with exceptions to the operation of this general principle, as for example the exclusion of testimony on grounds of hearsay and remoteness. But where its operation is not so excluded it must remain as the fundamental test of admissibility. And a fact is relevant when inferences can be properly drawn from it as to the existence of a fact in issue."

See also R v Katz and Another 1946 AD 71 at 78 - 9; R v Ingham F 1958 (2) SA 37 (C) at 45H.

The Criminal Procedure Act 51 of 1977 specifies, in s 210, the basic exceptions to the aforementioned inclusionary rule, in so far as criminal proceedings are concerned, in the following terms:

"No evidence as to any fact, matter or thing shall be G admissible which is irrelevant or immaterial and which cannot conduce to prove or disprove any point or fact at issue in criminal proceedings."

A similar provision is to be found in s 2 of the Civil Proceedings Evidence Act 25 of 1965.

Both these Acts contain various provisions relating to the admissibility or non-admissibility of evidence of certain H categories or in certain circumstances. Nowhere in either of these Acts however, or elsewhere, do I find any provision which seeks to define what categories of evidence are admissible.

In terms of s 222 of the said Act 51 of 1977:

"The provisions of ss 33 to 38 inclusive of the Civil I Proceedings Evidence Act 1965 (Act 25 of 1965) shall mutatis mutandis apply with reference to criminal proceedings."

Mr Poswa relied strongly on the provisions of s 34 of the said Act 25 of 1965 which reads as follows:

"(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document be J admissible as evidence of that fact, provided -

Mullins J

(a)

A the person who made the statement either -

(i)

had personal knowledge of the matters dealt with in the statement; or

(ii)

where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with therein are B not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might reasonably have been supposed to have personal knowledge of those matters; and

(b)

the person who made the statement is called as a witness in the proceedings unless he is dead or unfit by reason of his bodily or mental condition to attend as a witness or is outside the Republic, and it is not reasonably practicable to secure his attendance or all C reasonable efforts to find him have been made without success.

(2) The person presiding at the proceedings may, if having regard to all the circumstances of the case, he is satisfied that undue delay or expense would otherwise be caused, admit such a statement as is referred to in subsection (1) as evidence in those proceedings -

(a)

notwithstanding that the person who made the statement D is available but is not called as a witness;

(b)

notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof proved to be a true copy.

(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute E as to any fact which the statement might tend to establish.

(4) A statement in a document shall not for the purposes of this section be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.

(5) F For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the provisions of this section, any reasonable inference may be drawn from the form or contents of the document in which the statement is contained or from any other circumstances, and a certificate of a registered medical practitioner may be acted upon in deciding whether or not a person is fit to attend as a witness."

"Document" is...