S v Ramgobin and Others

• Jurisdiction: South Africa
• Judge: Milne JP
• Judgment Date: 05 June 1986
• Citation: 1986 (4) SA 117 (N)
• Court: Natal Provincial Division

Milne JP:

Two matters fall to be decided at this stage. The first is whether certain audio and video tape recordings are admissible evidence against the accused. The second is whether the State should be permitted to re-open its case and lead further evidence as to the admissibility of the recordings.

C It is common cause that both these matters are questions of law which, in terms of s 145 (4) (c) of the Criminal Procedure Act 51 of 1977, I alone must decide.

I decided to consider these points together since there would D be no point in permitting the State to re-open and lead evidence, if I took the view that the exhibits were inadmissible on grounds unconnected with the absence of that evidence which the State now seeks to lead.

I propose to deal firstly with the admissibility of the tape recordings.

It will, I think, be convenient to set out in tabular form E particulars of those exhibits which are the subject of this enquiry. They are as follows:

Exh No of tape recording	Exh No of transcript	Nature of recording	Date	Subject-matter
15	M54	1 cassette (A)	Unknown	"Lesotho" tape. Discussion between Jabu Msomi and unknown person.
18	M12	4 cassettes (A)	15/8/82	A Luthuli memorial meeting.
19	M15	2 cassettes (A)	16/12/82	Commemoration Service after Lesotho attack.
20	M11	3 cassettes (A)	19/6/82	Soweto and Freedom Charter Day meeting.
22	M14	1 reel (A)	16/10/82	SAAWU meeting.
23	M23	2 reels (A)	30/7/83	SAAWU meeting.
24	M25	2 reels (A)	13/8/83	SAAWU meeting.
25	M28	5 reels (A)	17/9/83	SAAWU meeting.
26		5 cassettes (A)
28	M16	1 reel (A)	13/1/83	Discussion in SAAWU office "cooking" tape.
29 [*1]	M39 (a),(c) & (d)	4 cassettes (V)	6-9/4/84	SAAWU Congress & Press Conference.
31	M17 (b)	5 reels (A)	22-23/1/83	Anti-SAIC Committee Congress.
33 [*2]	No	20 cassettes (A)	6-9/4/84	SAAWU Congress.
27	M55	1 reel (A)	28/8/83	Telephone conversation between Barnabas & Acc No 16.

Milne JP

A The recordings marked (A) are audio (sound) recordings only, whereas those marked (V) are video recordings which have sound and picture. Only the four cassettes comprising exh 29 are video recordings. The State abandoned any reliance on exh 30, which consisted of cassettes allegedly relating to the Anti-SAIC Committee Congress of 22-23 January 83, and relied B solely on the reels exh 31 in this regard.

I have referred to the transcripts and "meetings" in the above schedule in order accurately to describe the State's case with regard to the tape recordings. The transcripts were, however, put in subject to proper proof, and a number of them have not yet been proved. This applies to the transcripts M14, 15, 17 C (a), 17 (b), 23, 28 and 39 (a), (b), (c) and (d). Furthermore, no transcripts have been put in with regard to exh 33, which consists of 20 audio tape recordings in the form of cassettes. It was also submitted by the defence that there is no proper proof that the exhibits do relate to the meetings to which the State alleges they relate, nor indeed any proof of such meetings. Some evidence was led for the purpose of establishing that all the recordings, with the exception of D exhs 15, 29 and 33, were made by the police. I shall refer to this evidence, and to the evidence regarding the provenance of exhs 15, 29 and 33, at a later stage. In order to complete the picture as to the evidential mateiral before me, I should add that a number of the tape recordings are almost entirely in Zulu, the balance being Xhosa, eg exhs 22 and 23 and others, eg E exhs 28, 39 (a) and 39 (b), are partly in English and partly in Zulu. No translation has, as yet, been put before me with regard to the recordings just mentioned but there are translations in respect of exhs 18, 20, 24, 27 and 28.

I deal now with the law relating to the admissibility of tape recordings. Counsel on both sides gave me the benefit of a full F and well-researched argument, and I am much indebted to them for their assistance. I have also had the benefit of listening for several weeks to the evidence of experts on the subject of tape recordings and related matters. I have no doubt that it was a real benefit, not only in determining the factual issues before me, but in considering the law. In discussions of this subject in cases and legal textbooks, one finds it said that G tape recordings are receivable in evidence, but reservations are expressed or conditions for admissibility are suggested because of a feature that is, to some extent at least, peculiar to tape recordings. This is, that they can be altered (and materially altered), in such a way that even experts cannot detect the alteration. A clear illustration of this occurred in H this trial. It was put to Dr Jansen, the State expert, in cross-examination that it was quite possible to "edit out" material from a tape recording without an expert being able to detect that an "edit" had occurred. Dr Jansen was disinclined to accept that this was so unless very sophisticated equipment was used in a very sophisticated way. It was, however, I conclusively demonstrated in Court, that an "edit" had in fact been done on a copy of one of the exhibits now sought to be admitted, and Dr Jansen did not detect it. The "edit" was quite material. A whole sentence from a speech allegedly made by Archie Gumede (formerly accused No 9), on exh 19 was omitted. This was done using quite an ordinary tape recorder purchased over the counter in a shop (ie relatively unsophisticated equipment) by the defence expert, Mr Atkinson. One might J imagine that it would be more difficult to do this

Milne JP

A with a video recording, but Atkinson described a process by means of which it can readily be done. This is, furthermore, a process which is in fact done, and done, apparently, so regularly in the video recording world that it has a name. It is called a "noddy". He described the process as follows:

B "The second thing you've got to say is, you simply cannot go around imputing what was on the tape by looking necessarily at what's in front of it or what's after it and there's an absolutely classic example of this which comes up in every television programme and with His Lordship's permission, I'd G like to illustrate it. We call it a cut away or a ns quite clearly the voice of an accused person saying things which are convincing proof of his guilt: there is his accent, his tone of voice, his tricks of speech, his oral idiosyncracies, all building up to an apparently overwhelmingly authentic pictbt claim that he has been misquoted, edited, quoted out of context, etc. How does this happen? Well it happens because editing has been taken. Whatever the politician said and he probably said it at some length, has been condensed to a very much shorter length and in the process of condensing him - don't forget he was talking to the camera so you were hearing what he was saying and you were seeing his lips move and his D body movements - when you try to shorten that, you will have - it's quite easy to shorten the speech, but you will have a problem that one minute his head will be on the left-hand side and the next on the right-hand side. That's what's called a jump cut - in other words, a visual discontinuity. You're taking words out of continuum. But that doesn't present any problem to the television people because all they do is they at a later time or time of convenience, focus a camera on the man who's doing the interview and he just E smiles and he nods and you record what we call a whole series of noddys. So when you come to a bit that you want to join up what the man said and then what he said five minutes later, you just cut away to the little man doing his noddy. I mean, it's absolutely standard practice. It's been going on for years."

I think one could perhaps describe an "edit" of the kind which would be virtually impossible or very difficult for an expert F to detect, as a "seamless edit". Tape recordings are, therefore dangerous from an evidential point of view by reason of these factors, unless certain precautions are taken.

It is important to be aware of this danger because, when one is dealing with tape recordings, one is faced with what is, on the face of it, highly convincing evidential material. One may G have, for example, what is quite clearly the voice of an accused person saying things which are convincing proof of his guilt: there is his accent, his tone of voice, his tricks of speech, his oral idiosyncracies, all building up to an apparently overwhelmingly authentic picture. It is even more convincing when one adds pictures, suiting "the action to the H word". There, quite unmistakably, is the face of the accused as large as life and plain as daylight, perhaps addressing a large public gathering and saying, with passionate emphasis:

"I say to you now, all of you who have patiently endured for so many years injustice and oppression, that now is the time to rise up and overthrow the wicked oppressor with violence"

- whereas in truth and in fact, the word "not" was said by the accused before he said the words "the time". Nor need this I be the result of deliberate, dishonest, editing by the police or any other interested party. It is quite apparent that all manner of technical problems may result in a portion of a recording being partly or wholly inaudible; furthermore, words may be "lost" while the operator turns over the cassette or the reel while making the recording; or "lost" during the switching on or...