Tsewu and Others v President of the Regional Court for the Regional Division of the Eastern Cape and Others

• Jurisdiction: South Africa
• Citation: 1987 (3) SA 476 (A)

Tsewu and Others v President of the Regional Court for the Regional Division of the Eastern Cape and Others
1987 (3) SA 476 (A)

1987 (3) SA p476

Citation	1987 (3) SA 476 (A)
Court	Appellate Division
Judge	Viljoen JA, Hefer JA, Vivier JA, Boshoff AJA and M T Steyn AJA
Heard	March 10, 1987
Judgment	May 25, 1987

Flynote : Sleutelwoorde

Internal security — Internal Security Act 74 of 1982 — Statement made by accused in detention in terms of s 29 — Section 29(8) which disentitles accused from obtaining statements made 'during such detention' applicable where person I taken by police from custody to a magistrate where the statement was made — Although s 29 designed for interrogating detainees and magistrate having nothing to do with interrogation it does not follow that s 29(8) Is not applicable to statement made to magistrate — Implication that accused denied a fair trial because of applicability of s J 29(8) not justified.

1987 (3) SA p477

Headnote : Kopnota

The appellants had been detained in terms of s 29 of the A Internal Security Act 74 of 1982 and whilst so detained made statements before a magistrate. They were subsequently charged with contraventions of the Internal Security Act, the Arms and Ammunition Act 75 of 1969 and of the Explosives Act 26 of 1956. After being charged they applied to a Provincial Division for an order directing the first respondent to order the third respondent to furnish them with copies of the statements which they had made, the respondents refusing to do so and citing the provisions of s 29(8) of the Act. The applicants alleged that B the statements would be used against them by the State and that they would be seriously handicapped and prejudiced in the preparation of their defence and in the trial if they were not supplied with copies of such statements. The application was dismissed by the Court a quo. On appeal it was contended by the appellants that the Court had a discretion to be exercised in the interest of fairness to order production of the statements. The Court held that even if the Court a quo did have such a C discretion there was nothing before it which it could have considered in the exercise of its discretion: although it was said generally that they would be seriously handicapped and prejudiced in the preparation of their defence, they had not stated in what respect they would be handicapped and prejudiced. The Court held, however, that it was not a matter of discretion to be exercised by the Court but the Court rather had a duty, generally, to observe the rules and principles designed to ensure that every accused person had a fair trial. The implication that the appellants would necessarily be D deprived of a fair trial in the event of s 29(8) being applicable was not justified: the only privilege which the appellants would be denied by s 29(8) being applicable was that afforded by s 335 of the Criminal Procedure Act 51 of 1977 which provided for copies of statements made by an accused being made available to them. Assuming however that such withholding could be said to be prejudicial to the appellants, the enquiry was not whether an accused would be deprived of a fair trial but simply whether s 29(8) was applicable. The E appellants argued that the section was not applicable as. Firstly, the statements were not made 'during such detention' as required by the subsection as they had been taken out of detention to a magistrate for the making of the statements, and secondly, that the statements were not the kind of statement contemplated by the subsection. As to the first contention, the Court held that the appellants were not discharged from detention for the period during which they were escorted to the magistrate, remained with him and escorted back to their place F of detention: a formal act by the Commissioner of Police was required for a detainee's release and no such act was present in the instant case. As to the second contention, the Court held that while s 29 was designed for the purpose of interrogating detainees and a magistrate had nothing to do with the interrogation of detainees, it did not follow that s 29(8) did not apply to a statement made by detainee who was prepared to make a clean breast of things and make a statement to a magistrate and the fact that if charges were subsequently G brought against him the statement would only be admissible if the requirements of s 217 of Act 51 of 1977 were met did not remove the statement from the purview of the Internal Security Act. Appeal dismissed.

Case Information

Appeal from the dismissal of an application in the Eastern Cape H Division. (Kannemeyer J and Kroon J). The facts appear from the judgment of Viljoen JA.

L R Dison SC (with him T L Skweyiya ) for the appellants: The appellants were detained under s 29 of the Internal Security Act 74 of 1982 since 5 October 1985. Prior to their release, they all made statements to a magistrate at the Port Elizabeth I magistrate's court. They were accompanied to the court under escort. No policeman was present while the statements were made and these statements were reduced to writing. Subsequently, the appellants applied for bail, which was opposed on the grounds of the strong State case and it was made clear that the said statements would be used as part of the State case against the appellants. Bail was refused. The appellants requested copies J of the said statements

1987 (3) SA p478

A from the prosecutor. Their request was refused. They then made application to court for copies of their statements. Their application was unsuccessful and they then applied for a mandamus to the Eastern Cape Division of the Supreme Court, but were unsuccessful. Leave to appeal was, however, granted. The appellants appealed. The appellants require the statements to B prepare properly for their trial. A fair trial is a fundamental right and one that is accorded to every accused person by the high judicial traditions of South Africa - S v Lwane 1966 (2) SA 433 (A) at 444. Apart from statute, and in the absence of s 335 of the Criminal Procedure Act 51 of 1977, a person awaiting trial would ordinarily be entitled on request C to a copy of a statement relating to the subject-matter of the trial made by him to a magistrate, or at least the Court has a discretion to order that he be furnished with such copy. This is in the interests of fairness and justice. See S v Mpetha and Others (1 ) 1982 (2) SA 253 (C) at 257A. This principle is recognised in the systems of most modern Western States. Examples are: Canada: R v Savion and Mizrahi 1980 (52) CCC (2nd) 276; 'Fundamental fairness in the trial process' D cited in R v Kristman and the Queen 12 DLR (4th) 283 at 301 - 2. USA: Article - Cases and Annotations 10 ALR (4th) 1092. This article speaks of a changed attitude in the area of criminal discovery so that the Court has a discretion which it will exercise in the interests of justice and for good cause shown or when necessary, for the due administration of justice E in favour of pre-trial discovery of documents in the possession of the State. The onus is, however, on the accused to show that the document is necessary for the preparation of his defence and in the interests of a fair trial and is not simply part of a 'fishing expedition'. Australia: R v Chin 59 ALR 459 (1985 LRC (Crim) 216 at 223g). The Court a quo F accordingly had a discretion to order production of the said statements, but, owing to its misunderstanding of the relevant law, it failed to exercise that discretion and this Court should make the order which the Court a quo should have made. Alternatively, if this Court holds that an accused person's entitlement to a copy of a statement made to a magistrate, which relates to the subject-matter of his trial, flows solely G from s 335 of the Criminal Procedure Act, the provisions of s 29(8) of the Internal Security Act 74 of 1982 do not detract from the entitlement of a formerly detained person to be

furnished with a copy of a statement made by him to a magistrate prior to his release from detention. Compare S v Mpetha and Others 1982 (4) SA 536 (C). The provision is in terms limited to a statement made by H any person detained in terms of the provisions of s 29 which is 'made during such detention'. It is accordingly contemplated by the Legislature that a person detained under s 29 might make a statement other than during such detention. If not, the words 'made during such detention' are redundant. The provision is an intelligible one. Persons detained under s 29 of the Internal Security Act are I detained with the purpose of their being interrogated during their detention. Rossouw v Sachs 1964 (2) SA 551 (A) at 561; Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 619D - H; Nxasana v Minister of Justice and Another 1976 (3) SA 745 (D) at 747D - E. This interrogation may be at length. It would accordingly be difficult for the State to be required to J produce all statements made by a detainee during detention if that detainee were eventually charged with a

1987 (3) SA p479

criminal offence. The provision is designed to obviate the A necessity for such production. Section 29 empowers the detention of certain persons for interrogation and this measure is obviously intended to further State security and the maintenance of law and order - S v Mzo 1984 (3) SA 945 (E) at 946C - D. Accordingly, the avowed purpose of detention in terms of s 29 is to obtain information as to certain offences B by interrogation in confinement until the detainee has, in the opinion of the Commissioner of Police (per police, not a magistrate, who would be carrying out the interrogation), replied 'satisfactorily to all questions' whilst being interrogated during his detention in terms of s 29. It does not cover statements made to magistrates in circumstances...