S v Nell

JurisdictionSouth Africa
Citation2009 (2) SACR 37 (C)

S v Nell
2009 (2) SACR 37 (C)

2009 (2) SACR p37


Citation

2009 (2) SACR 37 (C)

Case No

A791/2004

Court

Cape Provincial Division

Judge

Dlodlo J and Le Grange J

Heard

April 25, 2008

Judgment

April 25, 2008

Counsel

JA van der Westhuizen SC (with M Salie) for the appellant.
B Currie-Gamwo for the State.

Flynote : Sleutelwoorde

Evidence — Admissibility — Evidence illegally obtained — Constitutional exclusion, B under s 35(5) of Constitution, 1996, of evidence obtained in a manner that violates any right in Bill of Rights — Section 35(5) envisaging circumstances where such evidence would be admissible — Correct approach is that consideration whether admission of such evidence would bring administration of justice into disrepute requiring value judgment — C Interest of public and all relevant circumstances to be considered — Other factors may include whether evidence was result of deliberate and conscious violation of constitutional rights, what kind of evidence was obtained, what constitutional rights were infringed, whether infringement serious or merely of technical nature, and whether evidence would have D been obtained in any event — Police officer in casu not intending to violate appellant's constitutional rights in searching appellant's house; appellant aware of right to legal representation and had used it; evidence obtained real evidence; manner of obtaining evidence not a serious and flagrant breach of right to privacy; no force used to enter premises — Admission of evidence not rendering trial unfair or detrimental to administration of E justice — Evidence admissible.

Verdict — Competent verdicts — Charge of housebreaking with intent to steal and theft — Conviction of contravention of s 36 of General Law Amendment Act 62 of 1955 (possession of suspected stolen goods without being able to give satisfactory explanation for such possession) competent on such charge. F

Headnote : Kopnota

It is evident that s 35(5) of the Constitution of the Republic of South Africa, 1996, envisages circumstances when evidence will be admissible even if the obtaining of same entailed the violation of a right enshrined in the Bill of Rights. The correct approach is that the consideration whether the admission G of evidence will bring the administration of justice into disrepute requires a value judgment, which inevitably involves considerations of the interest of the public and all relevant circumstances. The following factors may also be considered in determining whether the admission of the evidence will bring the interests of justice into disrepute: whether the evidence obtained was as a result of a deliberate and conscious violation of H constitutional rights; what kind of evidence was obtained; what constitutional rights were infringed; was such infringement serious or merely of a technical nature; and would the evidence have been obtained in any event. (Paragraph [21] at 42 i-43 b.)

The court in the present case held that the police officer who had conducted a possibly illegal search of the appellant's house for stolen goods had not I subjectively intended to violate the appellant's constitutional rights; that the appellant had been aware of his right to legal representation and had exercised that right by instructing his wife to telephone his attorney; that the evidence obtained during the search was real evidence; that the manner in which it had been obtained could never be regarded as a serious and flagrant breach of the appellant's right to privacy; that no force was used to J

2009 (2) SACR p38

A enter the appellant's premises. The court held accordingly that the admission of the evidence would not render the trial unfair or detrimental to the administration of justice, and that the exclusion of the evidence would rather bring the administration into disrepute. The evidence was accordingly held to be admissible. (Paragraphs [22]-[24] at 43 d-43 i.)

A conviction of contravening s 36 of the General Law Amendment Act 62 of B 1955, namely of being in possession of goods in regard to which there is a reasonable suspicion that they have been stolen, without being able to give a satisfactory account of such possession, is competent on a charge of housebreaking with intent to steal and theft. (Paragraphs [27] and [28]-[29] at 44b-i.)

The dictum in S v Maunye and Others 2002 (1) SACR 266 (T) at 277 f-278b C approved and applied.

S v Chauke and Another 1998 (1) SACR 354 (V) not approved and not followed.

Annotations:

Cases cited

Reported cases

Southern Africa

D Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): dictum in para [13] applied

Pillay and Others v S [2007] 1 All SA 11 (SCA): applied

S v Chauke and Another 1998 (1) SACR 354 (V): not approved and not E followed

S v Maunye and Others 2002 (1) SACR 266 (T): dictum at 277 f - 278b approved and applied

S v Mkhize 1999 (2) SACR 632 (W): dictum at 636 f - j applied.

Canada

R v Collins (1987) 28 CRR 122 (SCC) ([1987] 1 SCR 265; (1987) 38 DLR (4th) 508): applied F

R v Jacoy (1988) 38 CRR 290 (SCC) (45 CCC (3d) 46): dictum at 298 applied.

Legislation cited

Statutes

G The Constitution of the Republic of South Africa, 1996, s 35(5): see Juta's Statutes of South Africa 2007/8 vol 5 at 1-26

The General Law Amendment Act 62 of 1955, s 36: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-743.

Case Information

Appeal from conviction and sentence in a regional magistrates' court. H The facts appear from the reasons for judgment.

JA van der Westhuizen SC (with M Salie) for the appellant.

B Currie-Gamwo for the State.

Judgment

Le Grange J:

I [1] The appellant in this matter was charged in the regional court, Goodwood, with nine counts of housebreaking with the intent to steal and theft. The appellant was convicted of only four counts of contravening s 36 of the General Law Amendment Act 62 of 1955 (the unlawful possession of stolen property) and sentenced to a term of six J years' direct imprisonment.

2009 (2) SACR p39

Le Grange J

[2] The appellant now appeals against his conviction and the sentence A imposed by the court a quo.

[3] Mr Van der Westhuizen SC, assisted by Mr Salie, appeared on behalf of the appellant. Ms Currie-Gamwo appeared on behalf of the State.

[4] Mr Van der Westhuizen's principal submissions were that the appellant's B constitutional rights to privacy and legal representation were violated during a police search at the appellant's residential house. He argued that the conscious, wilful and flagrant breach of the appellant's constitutional rights render the trial unfair and detrimental to the interests of justice. According to him, the trial court erred in admitting C the unconstitutionally obtained evidence of Rautenbach, as the appellant did not give the police consent to search his premises. Moreover, even if it is found that he did consent, the consent cannot be regarded as an informed consent. It was also contended that the State has failed to prove the guilt of the appellant beyond reasonable doubt and that the appellant's conviction on the lesser charges of contravening s 36 of Act D 62 of 1955 was wrong in law, as it is not a competent verdict on a charge of housebreaking with the intention to steal and theft.

[5] Mr Salie argued that the trial court did not exercise its discretion on sentence properly and that the sentence imposed induced a sense of shock. He submitted that the appellant is a suitable candidate for E correctional supervision and the sentence imposed should be set aside and replaced with a sentence in terms of the provisions of s 276(1) (h) of the Criminal Procedure Act 51 of 1977.

[6] Ms Currie-Gamwo argued that, even if it is found that the appellant's F ...

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7 practice notes
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...140S v Ndika 2002 1 SACR 257 (SCA) ....................................................... 317S v Nell 2009 2 SACR 37 (C) ................................................................. 466S v Ngobe [2004[ JDR 0216 (T) ............................................................ 253S v No......
  • Goldberg v Director of Public Prosecutions, Western Cape
    • South Africa
    • Invalid date
    ... ... S v Dalvie 1968 (2) SA 635 (C): referred to ... S v De Vries and Others  2009 (1) SACR 613 (C): compared ...  F  S v Nabo 1968 (4) SA 699 (E): referred to ... S v Ndwalane  1995 (2) SACR 697 (A): referred to ... S v Nell  2009 (2) SACR 37 (C): referred to ... S v Pillay and Others  2004 (2) SACR 419 (SCA) (2004 (2) BCLR 158; [2004] 1 All SA 61): compared ... S v Sayed 1981 (1) SA 982 (C): referred to ...  G  S v Tshwape and Another 1964 (4) SA 327 (C): referred to ... S v Van Wyk ... ...
  • Du Toit and Others v Provincial Minister of Environmental Affairs and Development Planning, Western Cape and Others
    • South Africa
    • Invalid date
    ...(3) SA 623 (A) ([1984] 2 All SA 366; [1984] ZASCA 51): referred to S v De Vries and Others 2009 (1) SACR 613 (C): referred to S v Nell 2009 (2) SACR 37 (C): referred S v Pillay and Others 2004 (2) SACR 419 (SCA) (2004 (2) BCLR 158; [2004] 1 All SA 61; [2003] ZASCA 129): referred to S v Zuma......
  • Goldberg v Director of Public Prosecutions, Western Cape
    • South Africa
    • Western Cape Division, Cape Town
    • 17 December 2013
    ...and that the officials did not make themselves guilty of unreasonable or disorderly conduct during the search — and see also S v Nell 2009 (2) SACR 37 (C) paras 22 – 24). The admission of that real J evidence would not bring the administration of justice into disrepute Rogers J (Goliath J a......
  • Request a trial to view additional results
6 cases
  • Goldberg v Director of Public Prosecutions, Western Cape
    • South Africa
    • Invalid date
    ... ... S v Dalvie 1968 (2) SA 635 (C): referred to ... S v De Vries and Others  2009 (1) SACR 613 (C): compared ...  F  S v Nabo 1968 (4) SA 699 (E): referred to ... S v Ndwalane  1995 (2) SACR 697 (A): referred to ... S v Nell  2009 (2) SACR 37 (C): referred to ... S v Pillay and Others  2004 (2) SACR 419 (SCA) (2004 (2) BCLR 158; [2004] 1 All SA 61): compared ... S v Sayed 1981 (1) SA 982 (C): referred to ...  G  S v Tshwape and Another 1964 (4) SA 327 (C): referred to ... S v Van Wyk ... ...
  • Du Toit and Others v Provincial Minister of Environmental Affairs and Development Planning, Western Cape and Others
    • South Africa
    • Invalid date
    ...(3) SA 623 (A) ([1984] 2 All SA 366; [1984] ZASCA 51): referred to S v De Vries and Others 2009 (1) SACR 613 (C): referred to S v Nell 2009 (2) SACR 37 (C): referred S v Pillay and Others 2004 (2) SACR 419 (SCA) (2004 (2) BCLR 158; [2004] 1 All SA 61; [2003] ZASCA 129): referred to S v Zuma......
  • Goldberg v Director of Public Prosecutions, Western Cape
    • South Africa
    • Western Cape Division, Cape Town
    • 17 December 2013
    ...and that the officials did not make themselves guilty of unreasonable or disorderly conduct during the search — and see also S v Nell 2009 (2) SACR 37 (C) paras 22 – 24). The admission of that real J evidence would not bring the administration of justice into disrepute Rogers J (Goliath J a......
  • Du Toit and Others v Provincial Minister of Environmental Affairs and Development Planning, Western Cape and Others
    • South Africa
    • Western Cape Division, Cape Town
    • 24 May 2018
    ...(SCA) (2004 (2) BCLR 158; [2004] 1 All SA 61; [2003] ZASCA 129); S v De Vries and Others 2009 (1) SACR 613 (C) para 70; and S v Nell 2009 (2) SACR 37 (C) paras 22 – [19] 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 461; [1995] ZACC 1) para 43. [20] Estate Agency Affairs Board v Au......
  • Request a trial to view additional results
1 books & journal articles
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...140S v Ndika 2002 1 SACR 257 (SCA) ....................................................... 317S v Nell 2009 2 SACR 37 (C) ................................................................. 466S v Ngobe [2004[ JDR 0216 (T) ............................................................ 253S v No......

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