S v Nombewu

JurisdictionSouth Africa
Citation1996 (2) SACR 396 (E)

S v Nombewu
1996 (2) SACR 396 (E)

1996 (2) SACR p396


Citation

1996 (2) SACR 396 (E)

Court

Eastern Cape Division

Judge

Jones J

Heard

September 12, 1996

Judgment

September 12, 1996

Counsel

J R Koekemoer for the appellant
J van Heerden for the State

Flynote : Sleutelwoorde

B Fundamental rights — Right to be informed of right to remain silent and of consequences of making statement to police after arrest in terms of s 25(2)(a) of Constitution Act 200 of 1993 — Constitution not providing that accused must specifically be made aware of consequences C of incriminating himself by pointing out as distinct from making a statement — Court adding caveat that s 25 not to be thought to be applicable to every act or omission giving rise to adverse inference against accused — Sight should not be lost of inherent distinction between conduct and statements.

Fundamental rights — Constitution Act 200 of 1993 — Applicability of to D cases pending before commencement of Constitution — Accused persons in cases pending when the Constitution came into operation entitled to rely on constitutional guarantees of their rights — Chapter 3 of Constitution having 'retrospective' operation only to this limited extent.

F Fundamental rights — Right to a fair trial — Effect of provisions of Constitution on cases pending when Constitutions came into effect — Court to ensure that accused has had fair trial — Court to disregard all evidence which offended against accused's right to a fair trial — Factors to be considered in exercise of Court's discretion whether or not to allow evidence set out and discussed.

Evidence — Of pointing out — Court's approach to such evidence discussed in light of accused's right to be warned of consequences of making statement contained in s 25(2)(a) of Constitution Act 200 of 1993.

Robbery — Sentence — Fact that appellant, a first offender, a member of armed forces, that firearm and relatively large amount of money G stolen and that ruthless violence was used, constituting aggravating factors — Court increasing sentence on appeal from seven to ten years' imprisonment.

Headnote : Kopnota

The appellant was convicted of robbery in a regional court and sentenced to seven years' imprisonment. It appeared that the appellant had been one of three H armed robbers who held up the complainant at gun point and robbed him of, inter alia, his motor vehicle, in which the robbers then made their escape. On appeal against the conviction and sentence, (notice having been given that in the event of the appeal against conviction being dismissed the Court would require argument on whether the sentence should be increased) it appeared that immediately after his arrest, the appellant took the police to where the I stolen motor-car had been left after the robbery. The argument advanced on behalf of the appellant was that the reception of the evidence that the appellant pointed out the car to the police violated his rights protected by the provisions of s 25 of the Constitution Act 200 of 1993 because the appellant was not given prior warning of the consequences of pointing something out to the police which might be self-incriminating. When the appellant was arrested he was given the usual warning by the police, in terms of the Judges' Rules, of J

1996 (2) SACR p397

his right to remain silent and of the consequences of making a statement. The A question for decision was therefore whether it made any difference that in the instant case the appellant was not specifically told of the possible evidential consequences of incriminating himself by his conduct in pointing something out to the police as distinct from telling them something incriminating, and whether or not on the facts the consequences of disclosing information to the police by pointing it out was apparent to him. B

The Court (per Jones J) observed that the fairness of the warning and hence the fairness of the trial had to be tested in the light of the provisions and spirit of the Constitution complemented by notions of fairness as revealed by other common-law and statutory protection given to accused persons, most notably the provisions of ss 217 and 219A of the Criminal Procedure Act 51 of 1977. From these provisions and from the rules of practice that have evolved from C them it was clear that our notions of fairness required that a written or oral statement made after a charge was put to an accused person should be preceded by a proper warning before it could be used in evidence and that the warning should be given in all cases where the statement was made in response to an invitation to an arrested person to give an explanation, at any rate where the explanation amounts to a confession or an admission. This explanation D had to be both technically admissible and fairly obtained.

The Court (per Jones J) held, applying S v Sheehama 1991 (1) SA 860 (A), that the warning section of the Constitution (s 25(2)(a)) also applied to an implied admission by conduct such as a pointing out. In the instant case the customary warning was given in terms of the Judges' Rules, so that the evidence was E technically admissible. The Court held, referring to the argument advanced on appellant's behalf, that although there could possibly be circumstances where the absence of a specific warning in relation to what the accused does as distinct from what he says would bring about an unfair procurement of evidence, it was difficult to imagine what these could be. Furthermore, in the circumstances in which appellant pointed out the motor-car in the instant case, F it was clear that the evidence was fairly obtained. After being warned that he was not obliged to say anything in answer to the charge and that if he did so it could be used against him in evidence, the appellant spontaneously made certain disclosures to the police which were not admissible in terms of ss 217 or 219A of Act 51 of 1977 and he then pointed out the car, which was admissible in terms of s 218. It would be unrealistic and absurd to suggest that G the warning that the police gave did not cover this situation and that the appellant had been unfairly treated as a result, and indeed the Constitution did not expressly or by implication require an additional or more detailed warning.

The Court added the caveat that it should not be thought that the provisions of s 25, which required an ordinary warning, was applicable to every act or H omission by an accused person which gave rise to an adverse inference against him because it amounted to a tacit admission. To give arrested persons the same degree of protection from the results of their conduct as their words, in all cases and under every circumstance, was to lose sight of the inherent distinction between conduct and statements.

It appeared that the police had not at any stage prior to the pointing-out informed I the appellant of his right to legal assistance. In view of the fact that the Constitution had not yet been enacted when the appellant was arrested and made the pointing-out, but only after the trial had commenced, the question to be decided was whether the appellant was entitled to rely on the protection of the Constitution. The Court (per Erasmus J) held that accused persons in cases pending when the Constitution came into operation were entitled to invoke J

1996 (2) SACR p398

A their constitutional guarantees so as to prevent the use against them of evidence offensive to the principles of the Constitution and that it was in this limited sense only that Chapter 3 of the Constitution had 'retrospective' operation. It did not mean that the Court was thereby granting appellant redress for infringement of a (non-existent) pre-Constitutional right, but that it was affording him his right to protection under the Constitution. The Court B was therefore obliged to disregard all evidence on record which offended against the right of the appellant to have had a fair trial.

The Court (per Erasmus J) held that the cardinal provision in interpreting the provisions of Chapter 3 was the injunction in s 35(1) of the Constitution that a court of law had to promote the values which underlie an open and democratic society based on freedom and equality, and that it was these values C which identified the considerations relevant to the enquiry as to what in a particular case will be consonant with a fair trial. The Court also held that it had a general discretionary power to ensure that the accused had a fair trial, with due regard to the spirit, purport and objects of Chapter 3 of the Constitution, as decreed by s 35(3) thereof.

As far as the exercise of this discretionary power was concerned, the Court D remarked that the general procedural principles underlying our accusatorial system of criminal trials were not appropriate for such an enquiry - the Court was required to form a value judgment in regard to the fairness of the trial and a balanced and flexible approach was necessary. The Court also held that the presence or absence of prejudice to the accused, as well as the nature and degree thereof where present, had an important bearing on the question E whether to exclude the evidence. On the facts of the case the Court held that it amounted to speculation to say that the appellant would not have made the pointing-out had the police informed him of his right to legal assistance.

The Court, after having had regard to the circumstances of the case and the nature and weight of the evidence in question, concluded that the exclusion of the evidence regarding the pointing out would bring the administration of justice F into disrepute, not so its inclusion, and that this was accordingly not a proper case for the magistrate to have exercised his discretion in favour of excluding the evidence.

As far as sentence was concerned, the...

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21 practice notes
  • S v Ndhlovu and Others
    • South Africa
    • Invalid date
    ...SA p311 S v Melani 1995 (4) SA 412 (E) A S v Mpetha 1983 (1) SA 576 (C) S v Mtsweni 1985 (1) SA 590 (A) at 593E et seq S v Nombewu 1996 (2) SACR 396 (E) S v Radebe 1991 (2) SACR 166 (T) S v Reddy 1996 (2) SACR 1 (A) B S v Shabalala 1966 (2) SA 297 (A) at 299B - C S v Sheehama 1991 (2) SA 86......
  • S v Ndhlovu and Others
    • South Africa
    • Invalid date
    ...at 416h - j S v Melani 1995 (4) SA 412 (E) S v Mpetha 1983 (1) SA 576 (C) S v Mtsweni 1985 (1) SA 590 (A) at 593E et seq S v Nombewu 1996 (2) SACR 396 (E) H S v Radebe 1991 (2) SACR 166 (T) S v Reddy 1996 (2) SACR 1 (A) S v Shabalala 1966 (2) SA 297 (A) at 299B - C S v Sheehama 1991 (2) SA ......
  • S v Maputle and Another
    • South Africa
    • Invalid date
    ...401 (W) S v Mthetwa 1972 (3) SA 766 (A) S v Mushimba en Andere 1977 (2) SA 829 (A) D S v Nkomo 1990 (1) SACR 682 (ZS) S v Nombewa 1996 (2) SACR 396 (E) S v Radebe 1973 (1) SA 796 (A) at 812H S v Radebe; S v Mbonani 1988 (1) SA 191 (T) S v Rall 1982 (1) SA 828 (A) E S v Rudman; S v Johnson; ......
  • S v Monyane and Others
    • South Africa
    • Invalid date
    ...by the perception that G criminals escape conviction due to non-compliance by investigators with technical niceties. (See S v Nombewu 1996 (2) SACR 396 (E) at 422i - There may be no essential difference between the test enunciated by Stegmann J, that is, whether the inclusion of the evidenc......
  • Request a trial to view additional results
20 cases
  • S v Ndhlovu and Others
    • South Africa
    • Invalid date
    ...SA p311 S v Melani 1995 (4) SA 412 (E) A S v Mpetha 1983 (1) SA 576 (C) S v Mtsweni 1985 (1) SA 590 (A) at 593E et seq S v Nombewu 1996 (2) SACR 396 (E) S v Radebe 1991 (2) SACR 166 (T) S v Reddy 1996 (2) SACR 1 (A) B S v Shabalala 1966 (2) SA 297 (A) at 299B - C S v Sheehama 1991 (2) SA 86......
  • S v Ndhlovu and Others
    • South Africa
    • Invalid date
    ...at 416h - j S v Melani 1995 (4) SA 412 (E) S v Mpetha 1983 (1) SA 576 (C) S v Mtsweni 1985 (1) SA 590 (A) at 593E et seq S v Nombewu 1996 (2) SACR 396 (E) H S v Radebe 1991 (2) SACR 166 (T) S v Reddy 1996 (2) SACR 1 (A) S v Shabalala 1966 (2) SA 297 (A) at 299B - C S v Sheehama 1991 (2) SA ......
  • S v Maputle and Another
    • South Africa
    • Invalid date
    ...401 (W) S v Mthetwa 1972 (3) SA 766 (A) S v Mushimba en Andere 1977 (2) SA 829 (A) D S v Nkomo 1990 (1) SACR 682 (ZS) S v Nombewa 1996 (2) SACR 396 (E) S v Radebe 1973 (1) SA 796 (A) at 812H S v Radebe; S v Mbonani 1988 (1) SA 191 (T) S v Rall 1982 (1) SA 828 (A) E S v Rudman; S v Johnson; ......
  • S v Monyane and Others
    • South Africa
    • Invalid date
    ...by the perception that G criminals escape conviction due to non-compliance by investigators with technical niceties. (See S v Nombewu 1996 (2) SACR 396 (E) at 422i - There may be no essential difference between the test enunciated by Stegmann J, that is, whether the inclusion of the evidenc......
  • Request a trial to view additional results
1 books & journal articles
  • The criminalisation of gang activity in South Africa : re-assessing the rationale
    • South Africa
    • Sabinet SA Crime Quarterly No. 2020-69, September 2020
    • 1 September 2020
    ...2014, 262–263 fn 55.43 Thebus, para 40.44 S v Makwanyane 1995 (3) SA 391 (CC).45 Ibid, paras 88–89. 46 See for example S v Nombewu 1996 (2) SACR 396 (E), 422–423 where the court mentions ‘state of lawlessness prevailing in the country’ in public perceptions of the ineffectual criminal justi......

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