FOR2609

Mauné Snyman

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Chapter 10: Overview of the criminal justice process

1. Introduction
read through the introduction

2. Pre-trial process
 The first phase of the pre-trial process is the investigation of the offence
 This stage begins when the crime is committed and continues until the trial starts
 Since the police are responsible for investigating crime in terms of s 205(3) of the
Constitution, police officials play a vital role in the pre-trial process

2.1. Reporting
 Although the criminal justice process usually starts when a crime is committed, the process
can’t begin unless the offence is brought to the attention of the police
 Someone must report to the police that the crime has been committed, or the police
themselves must discover that it has been, or is being, committed
 The community expects police officials to know whether behaviour constitutes a crime and to
identify the crime in each case
 Therefore, police officials need a thorough knowledge of criminal law to be able to
take statements that contain all the required elements of the offence when a
complainant lays a complaint
 When a crime is reported, the police open a case docket in which all the information relating
to the crime is filed.

2.2. Investigation
 The purpose of the pre-trial process is to investigate the crime carefully, and then to decide
whether there’s enough evidence to indicate the suspect’s guilt and to start the prosecution
process
 Police officials who investigate the crime will put all the statements, documents and other
information relating to their investigation into the police docket
 The CPA and other legislation give the police the authority that they need to be able to
gather evidence and investigate the crime properly, e.g. the power to interrogate, arrest,
search, seize and take fingerprints of certain people
 Police officials must have a sound knowledge of the relevant statutory provisions
(especially the CPA) to ensure that they know the extent of their authority and the
limits of their investigative powers
 It’s also important that investigating officers comply with the rules relating to the law of
evidence, because if they don’t, the information and exhibits that they’ve gathered may
become inadmissible as evidence in court
 Each step in the investigation process is recorded in the investigation diary (SAPS 5) in the
case docket
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2.3. Docket for decision

 When the investigation is complete, and where there was no need to make an arrest, the
docket is submitted to the prosecutor, who must decide whether there’s enough evidence to
prosecute the person suspected of having committed the offence
 If the prosecutor is of the opinion that there are still aspects which the police need to
investigate before the prosecutor can make a decision to prosecute the crime, he/she will
record such an instruction in the investigation diary in the docket, and refer it to the
investigating officer for further investigation

 Once the prosecutor has decided on the docket, the docket is returned to the investigating
officer to finalise the matter
 If the prosecutor has decided not to prosecute, a nolle prosequi certificate is attached to the
docket and the investigating officer must inform the parties that the prosecutor has decided
‘not to prosecute’, i.e. nolle prosequi
 The case is then regarded as finalised

 If the prosecutor has decided to prosecute the suspect, he/she will formulate the charge and
decide when and in which court the trial will be heard
 All the details are usually indicated on a summons, which is sent with the docket to the
investigating officer
 The investigating officer is responsible for serving the summons on the suspect and for
ensuring that all the witnesses are also subpoenaed to be at the court on the particular day
for the trial to commence
 The docket should be sent to the court a few days before the court date to enable the
prosecutor to prepare the case for trial

2.4. Dealing with arrested persons

 If a suspect is arrested for committing a crime, the police may sometimes release him/her on
written notice, bail or warning, or otherwise bring such a person before a court within 48
hours after the arrest
 An arrested person who’s released in one of these ways must be warned to attend his/her
trial at a certain place and time
 If a written notice has been issued, the arrested person may pay an admission of guilt fine
instead of appearing in court
 If, after further investigation, it isn’t possible to link the arrested person with the crime, that
person must be released before expiry of the 48-hour period using the form SAPS 328

 At the first appearance in court, the accused may apply for bail
 However, the bail application may be postponed for up to seven days in certain
circumstances if essential investigative work is outstanding
 During a bail application, the investigating officer must indicate to the prosecutor whether
bail should be opposed or not
 In general, bail will be opposed if the accused is a flight risk, may interfere with witnesses or
may commit a serious offence if released
 If bail is refused, the court usually orders further detention in a prison
 The court will also inform the accused that he/she is entitled to legal representation and that
he/she may make an application to the Legal Aid Board for assistance
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 The trial will then be postponed enabling the accused to obtain legal representation such as
a practising attorney, advocate or an attorney or advocate employed by the Legal Aid Board

 In practice, a trial date will only be set after the accused has obtained a legal representative,
or has indicated that he/she will represent him-/herself
 Usually, when a legal representative comes on record, he/she will apply to receive copies of
the statements and other documents that the accused is entitled to have from the case
docket
 The date for plea and trial will be set in consultation with the accused’s legal representative
 Before the trial date, the prosecutor may give final instructions to the investigating officer to
ensure that the docket is ready for trial

2.5. Dealing with children

 If a child is suspected of committing an offence, his/her age plays a very important role
 Children under the age of 10 years don’t have criminal capacity and can’t be prosecuted
 Therefore, such children may also not be arrested, but the police must immediately hand
them over to a parent, guardian or appropriate adult
 The form SAPS 583(a) must be completed in this regard
 If such adults aren’t available, or it isn’t in the child’s best interest to hand him/her over to
such a person, the child must be put in a place of safety (suitable care centre)
 The police must also notify a probation officer of the situation for the child to be assessed
and to be suitably referred

 If a child between the ages of 10 and 14 years is suspected of the commissions of an

offence and the relevant offence is listed in Schedule 1 to the CJA, such child may only be
arrested if compelling reasons justify such arrest
 The child must preferably be released into the care of a parent, guardian or appropriate adult
and warned in writing on the form SAPS 583(b) to attend a preliminary inquiry
 If such adults can’t be traced or if there’s a substantial risk that the child may be a danger to
any person or to him-/herself, a police official must complete a written report on a SAPS
583(c) form and keep the child in custody
 Such a child must be informed of his/her rights and his/her parent or guardian, as well as a
probation officer must be notified of the detention
 The last-mentioned will assess the child regarding his/her criminal capacity and with a view
to a recommendation regarding diversion from the formal court procedure
 The child must be brought to a magistrates’ court as soon as possible, but within 48 hours
after arrest, for a preliminary inquiry
 If diversion doesn’t occur the child will be tried in a special child justice court

 A child between 14 and 18 years is similarly handled as one between 10 and 14, but the
children above 14 who’ve committed a crime listed in Schedule 3 to the CJA, must be
detained in a police cell or lock-up
 However, such children may not be detained together with adults or children of the opposite
sex
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3. Trial procedure
 During the trial, it’s the court’s task to establish the truth
 The accused is entitled to a fair trial; it’s therefore important that he/she be present and is
represented by a qualified legal representative who can ensure that the accused isn’t
prejudiced at any stage
 The prosecutor leads the prosecution on behalf of the state, and the guilt of the accused
must be proved beyond reasonable doubt before the court can convict him/her

3.1. Plea stage

 The trial starts when the prosecutor formally puts the charge to the accused and asks the
accused to plead to the charge
 Although the accused usually pleads guilty or not guilty, there are other special pleas
available

 If the accused pleads guilty, the court must follow a special procedure to ensure that the
accused understands the charge and admits to all the allegations in it
 The court may now put certain questions to the accused
 If the court has any doubt about the accused’s guilt, a plea of not guilty is recorded and the
trial continues
 If the court is convinced that the accused does in fact understand the charge and admits to
all the allegations, it may convict him/her
 The trial stage will then be completed, and the court will continue to the sentencing stage

 If an accused pleads not guilty, the court must give the accused an opportunity to give a
plea explanation if he/she wishes to do so
 The court must enquire whether the accused does in fact admit any of the allegations
 If the accused admits an allegation, the court may record it as a formal admission with the
permission of the accused
 It’ll then not be necessary for the state to prove such an allegation, which means that the
trial will be shortened
o E.g. an accused charged with murder may admit that he killed the victim (conduct), but
allege that he relies on a ground of justification (such as a private defence) that excludes
unlawfulness
o In such a case, the state does need not to lead evidence to prove the conduct element,
because the act isn’t disputed by the accused

3.2. State’s case

 After the plea procedure, the prosecutor will start leading evidence on behalf of the state to
prove the allegations which the accused didn’t formally admit in the charge sheet
 The prosecutor bases his/her case on the information in the case docket and calls the
people who submitted statements, e.g. complainants (victims), as witnesses
 During the trial, the prosecutor may also submit documents, such as a coroner’s report and
exhibits that were seized, to the court
 The investigating officer is also expected to assist the prosecutor during the trial

 Each witness that the prosecutor calls is sworn in by the court

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 The prosecutor then starts the examination-in-chief of the witness by asking questions to
guide him/her in telling what happened
 The questions may not suggest what the answers to them are; these questions are referred
to as ‘leading questions’ and they may not be asked
o E.g. a question such as ‘you saw the accused on the crime scene, didn’t you?’ is a
leading question, whereas ‘did you see anyone on the crime scene?’ isn’t a leading
question

 After the examination-in-chief, the defence (the accused or his/her legal representative) can
cross-examine the witnesses
 This is when the credibility of the evidence given during the examination-in-chief is tested
 The prosecutor can then re-examine the witnesses
 The purpose of re-examination is to clarify any uncertainties arising from the cross-
examination or experienced by the court
 Once the prosecutor has called all the witnesses, the state closes its case

3.3. Trial within a trial

 During the trial (usually during the state’s case), one of the parties may want to submit
evidence, the admissibility of which is disputed by the other party
o E.g. the prosecutor may want to submit a confession or an exhibit that the defence claims
was obtained in an unconstitutional manner
o In such a case, the trial is suspended temporarily and a trial within a trial is held, which
deals only with the issue of whether the specific evidence may be admitted in court

 A trial within a trial is an independent trial

 The party who wants to submit the evidence concerned begins the process
 Both parties have the chance to put their side of the case forward, cross-examine witnesses
and address the court on the issue before the court makes a ruling on the admissibility of the
specific evidence
 After a ruling has been made in the trial within a trial, the main trial continues and,
depending on the ruling, the disputed evidence is admitted or rejected
 It’s important to note that the evidential value of the evidence isn’t relevant during the trial-
within-a-trial – only its admissibility

3.4. The case for the defence

 Once the state has closed its case, the defence can apply for the accused’s discharge on
the ground that the state didn’t put evidence before the court on which a reasonable person
could convict the accused
 If the court agrees, the application will succeed
 However, if the court is of the opinion that a sufficiently strong case was put to the accused
and he/she must answer it, it will dismiss the application and put the accused on the defence

 During the case for the defence, the accused has the chance to raise doubt in the court’s
mind regarding his/her liability for the commission of the offence
 The accused will therefore probably raise a defence and submit evidence in support of it
 At no stage is the accused obliged to give any evidence him-/herself

 The procedure during the defence’s case is in principle the same as during the state’s case:
o witnesses are sworn in and the defence can examine them
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 If the accused chooses to testify in his/her own defence, he/she must be the first witness for
the defence
 The state can also cross-examine the witnesses and the defence may re-examine them
before the defence will close its case

3.5. Addressing the court

 Once both parties have put their side of the case to the court, the prosecutor and the
defence can address the court
 Both parties will emphasise those aspects of the case that they believe will swing the
balance in their favour
 The court may also ask the parties questions on which they must argue before the court

3.6. Judgement
 If the court is convinced beyond reasonable doubt that the accused is guilty of committing
the crime, it will convict him/her
 However, if the accused’s version may be reasonably possibly true, he/she must get the
benefit of the doubt and be acquitted
 In circumstances where the state may have alleged a completed crime, but only proved an
attempt to commit the crime, the court may find the accused guilty of attempt to commit the
crime concerned

 The state may also not have proved the crime with which the accused was charged, but may
have proved another related crime
 In some instances, the accused may be convicted of the latter offence if it’s a competent
verdict on the original charge
o E.g. if the accused is charge with murder, but the state could only prove that they accused
acted negligently, and not intentionally, the accused may be found guilty of culpable
homicide

 The consequence of a judgement is that an accused who’s acquitted is dismissed

 This person can’t be brought before the court again in connection with that specific crime
 If the accused is convicted, he/she will be sentenced

4. Sentencing
 During the sentencing stage, the court must decide on an appropriate sentence for the
convicted person
 The court must consider several factors in this regard
 If the convicted person has prior convictions, these must first be brought to the court’s
attention
 The defence then submits evidence of factors in mitigation of punishment to the court
 The state may cross-examine the witnesses and then lead evidence on aggravating
circumstances, which the defence may, in turn, cross-examine

 Another important factor is whether a minimum sentence is prescribed for the crime of which
the person has been convicted
 Both parties can address the court on an appropriate sentence
 The court will then sentence the convicted person and provide reasons for the punishment

5. Legal remedies after judgement and sentencing

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 The convicted person has several remedies at his/her disposal if he/she is of the opinion that
the court incorrectly convicted him/her or imposed an inappropriate sentence
 If an irregularity during the trial is alleged in a lower court, the case may be taken on review

 The convicted person may also appeal against his/her conviction and/or sentence
 If the trial was heard in a lower court, the convicted person has a right to appeal to a high
court
 If the trial was heard in a high court, the convicted person must approach the court for leave
to appeal
 Leave will be granted if the court believes that it’s reasonably possible that another court
could have come to a different conclusion or could’ve imposed a different sentence
 If leave to appeal is refused, the convicted person may petition the higher court to which
he/she wants to appeal for such leave

 The court of appeal will peruse the records and decide whether the conviction and/or
sentence is in order
 The court may dismiss the appeal and thus uphold the conviction and sentence, or uphold
the appeal and acquit the accused, substitute the sentence, or refer the case back to the trial
court to hear further evidence, or impose an appropriate sentence
 If a convicted person has exhausted all remedies and is still unsatisfied, he/she can in
certain circumstances appeal to the President for clemency
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Chapter 11: Initiating the criminal justice process

1. Introduction
read through the introduction

2. General provisions regarding questioning

2.1. Entering premises to obtain information
 Section 26 of the CPA provides that a police official who investigates an offence or alleged
offence, may enter any premises without a warrant, if such police official reasonably
suspects that a person who may be able to furnish information regarding an offence, is on
the premises
 However, if the premises are a private dwelling, the policy official may not enter without the
permission of the person occupying the premises
 The purpose of entering must be to question persons, or a person, likely to have the
relevant information, and to obtain statements from them.

 A police official can’t rely on this section to enter premises if he/she doesn’t have the aim to
question a person or to obtain a statement
 However, there are other sections of the CPA which permit police officials to enter premises
for other reasons without a warrant
o E.g. if the aim is to search in order to seize something that the police reasonably believe
was used, or will be used in the commission of a crime, or is evidence of such, the police
may enter the premises without a warrant if they comply with the provisions of s 22
 However, if the aim of the police is to arrest a person that they reasonably believe to be on
certain premises, they may lawfully enter such premises in accordance with the provisions of
s 48

 The provision that forbids a police official from entering a private dwelling without the
occupier’s consent protects the occupier’s right to privacy
 If the occupier refuses to give the police permission to enter, the police will be acting
unlawfully if they do enter
 The occupier will then be entitled to chase the police official out of the house and off the
premises

2.2. Requesting names and addresses

 A name and an address may be very valuable to a police investigation since it’s a key to
further information, which may ensure successful prosecution of crime
 A name and address might lead the police to a suspect or possible witness
 It’s also the minimum information required to issue a subpoena, summons or warrant
 It’s not always possible to take statements from all the witnesses at the scene of a crime, but
if the police official knows who the persons are and where to find them, he/she can simply
obtain statements from them at a later stage

 In cases where a witness doesn’t want to submit material or relevant information regarding
the commission of an alleged offence, such a person may be summoned to appear before a
judge or magistrate for questioning
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 However, this can’t be done unless the police have already obtained the person’s name and
address

 According to s41(1) of the CPA, a peace officer may request certain persons to furnish
him/her with their full names and addresses
 The following three categories of persons are obliged to give their names and addresses at
the request of a peace officer:
(a) any person whom the peace officer may arrest;
(b) any person reasonably suspected of having committed an offence or who has attempted
to do so;
(c) any person whom the peace officer believes may be able to give evidence regarding the
commission or suspected commission of any offence

 Category (a) refers to persons who may be arrested by a peace officer without a
warrant. e.g. in terms of s 40(1) of the CPA
 Category (b) also includes cases where an arrest without a warrant isn’t authorised
o E.g. where a peace officer reasonably suspects that a person has committed an offence
that isn’t listed in Schedule 1 to the CPA and which wasn’t committed in the peace
officer’s presence, the officer has the authority to request such a person’s name and
address
 Category (c) consists of persons who, in the opinion of the peace officer, are potential
witnesses
 Peace officers must state the reason for requesting the particulars that they want from any of
these persons

 If any of the above-mentioned persons refuse to furnish their names and addresses,
or if they give false names and addresses, there are two consequences:
o Firstly, such persons will be committing an offence and will be liable on conviction to a
fine or imprisonment for a period not exceeding three months
o Secondly, such persons may immediately be arrested without a warrant
 Where the peace officer reasonably suspects that a false name and address was provided,
he/she may arrest such a person and detain him/her for a maximum period of 12 hours to
enable the officer to verify the particulars

 If it later transpires that the name and address were correct, the person must be released
immediately, since he/she didn’t commit an offence
 However, if the person refused to furnish his/her name and address, or the name and
address that he/she did provide were false, such a person is guilty of an offence
 Bail applications from people who refuse, or who supply false information about their names
and addresses, will only be considered once they’ve revealed their true particulars

 In terms of s 18(5) of the Protection from Harassment Act, a person who’s alleged to have
committed harassment (respondent) is obliged to furnish his/her name and address or any
other information to a police official
 Failure to do so, or the furnishing of false or incorrect information, will render the respondent
guilty of an offence and upon conviction liable to a fine or imprisonment not exceeding six
months

2.3. Judges’ Rules

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 The South African version of the Judges’ Rules originated from a Judges Conference held in
Cape Town in 1931
 At that conference, 10 rules were drawn up as a code of conduct to guide the police in their
dealings with suspects and accused persons
 In the pre-Constitutional era, these Judges’ Rules gave suspects and accused persons
some pre-trial ‘rights’, since police officials were obliged to caution them before they were
questioned
 However, the Rules are purely administrative directives without any force of law, which are
intended to prevent malpractice

 Nowadays, the rights of arrested, detained and accused persons are specifically protected in
s 35 of the Constitution
 Although the Constitution doesn’t specifically give persons who are regarded as ‘suspects’
any rights, case law has since recognised that persons suspected of committing crimes, but
who haven’t yet been arrested, are also entitled to certain protective cautions
 In this regard, Judges’ Rules still play a valuable role, since a closer look at the content of
the Judges’ Rules reveals that these ‘rules of fairness’ address certain issues that aren’t
expressly addressed in the Constitution
 The relevance of the Judges’ Rules (and any other statutory or common-law safeguards) in
the Constitutional era was confirmed in S v Nombewu, where the court remarked that
although all the Judges’ Rules weren’t included in the Interim Constitution, they weren’t
excluded either, and therefore still apply
 Consequently, Judges’ Rules can still be considered as general guidelines for the police and
for the courts about the everyday conduct of police officials in dealing with suspects
 Therefore, during the subsequent discussions on questioning, constant reference will be
made to the relevant Judges’ Rules

3. Questioning potential witnesses

 Police officials have a right to question, but the person questioned isn’t obliged to answer all
questions
 However, in s 205(1), the CPA provides that a person who’s likely to give material or
relevant information regarding any alleged offence may be compelled to appear before a
judge or magistrate to be examined by the relevant Director of Public Prosecutions or a
public prosecutor authorised in writing by such Director
 Sector 205 is generally used to compel a person who refuses to make a statement to
the police to furnish the required information under oath

The procedure to be followed in terms of this section is as follows:

 A police official will inform the relevant Director of Public Prosecutions, or an authorised
public prosecutor, about the potential witness’s unwillingness to give the material or
relevant info that the person is likely to have regarding an alleged offence.
 The Director or authorised public prosecutor will request a high court judge or magistrate
to order the potential witness to appear before him/her, or another judge or magistrate, for
examination by the Director or authorised public prosecutor.
 When he/she attends, the potential witness may be compelled to take the oath and to
answer any questions put to him/her unless he/she has a ‘just excuse’ to refuse.

 The examination need not be held in court and the potential witness isn’t obliged to answer
self-incriminating questions, except where he/she was warned in terms of s 204 of the CPA
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 Although the witness may be questioned, no cross-examination by the prosecutor will be

allowed and the witness is entitled to legal representation

 The constitutionality of s 205 of the CPA was challenged in Nel v Le Roux

 The Constitutional Court held that the section is in principle not inconsistent with the
Constitution, although the application thereof in a particular case may be unconstitutional
 However, every case will have to be considered on its own merits

4. Questioning suspects, arrested and accused persons

4.1. Introduction
 Although suspects, arrested and accused persons have the right to remain silent, they don’t
have the right not to be questioned
 Once the police have lawfully obtained access to a suspect, e.g. by arresting him/her,
such a person may be questioned within reasonable limits
 The limits to the questioning are basically that, firstly, no person may be tortured or forced
in any way to supply information to the police or any public official
 In this regard, Parliament recently adopted the Prevention and Combating of Torture of
Persons Act, which creates the offence of torture and also places a duty on the State to
promote awareness of the prohibition against torture by means of informing, educating and
training public officials on the prohibition, prevention and combating of torture
 Secondly, police officials are obliged to inform these persons, before they question
them, what their rights as a suspect, arrested or detained person are
 The explanation of these rights is usually given in the form of a caution or warning

4.2. Questioning of suspects

 In S v Sebejan, a suspect is defined as ‘one about whom there’s some apprehension that
[he or] she may be implicated in the offence under investigation and, it may further be,
whose version of events is mistrusted or disbelieved’
 Consequently, such a person’s version of events should be approached with caution
 Thus, a suspect is someone other than an arrested, detained or accused person
 The Constitution doesn’t refer to suspects as a separate category of persons entitled to
specific rights; it only distinguishes between arrested, detained and accused persons
 However, case law has since given definite recognition to ‘suspects’ as a separate category
of persons who’re entitled to protection by means of a warning
 The courts also specifically referred to the important role played by Judges’ Rules in this
regard

 The Judges’ Rules provide clear guidance to police officials on how to deal with suspects
 According to rule 2, a police official shouldn’t question a person whom he/she has decided to
arrest, or who’s under suspicion, with the sole purpose of obtaining evidence against him/her
from the answers given
 However, rule 2 does provide for the questioning of such a person to enable him/her to
furnish information that may indicate his/her innocence
 Therefore, the purpose of rule 2 is to give the suspect an opportunity to pardon
him/herself, i.e. to justify his/her actions
 It should be noted that before such a person is questioned, the police official should
caution him/her

Rule 3 deals with the content of the caution to be administered in terms of rule 2. It must
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contain the following:

 the identity of the police official asking the question;
 the case that the police official is investigating;
 a warning about the seriousness of the matter;
 a warning to the suspect that he/she must be careful of what he/she says;
 a warning to the suspect that a failure to provide a satisfactory explanation may result in
his/her arrest

 It should be emphasised that the purpose of the questioning (in this instance) is to give the
suspect a final opportunity to ‘convince’ the police official not to arrest him/her
 However, the suspect must be warned to be careful of what he/she says and not to
incriminate him/herself
 Although the suspect has a right to remain silent, claiming that right will probably result in
arrest
 A person found in possession of property that’s suspected to have been stolen, or
housebreaking implements, should therefore be given an opportunity to explain such
possession in order to avoid arrest
 However, a failure to give an explanation, or an unsatisfactory explanation, will usually result
in the suspect being arrested

4.3. Questioning arrested persons

4.3.1. Introduction
 For the purpose of this discussion, an arrested person is a person who has been arrested
by a police official for allegedly committing an offence, or who has been handed over to a
police official by the person who has arrested him/her for allegedly committing an offence
 An arrested person is therefore a person held in police custody for allegedly
committing an offence

The Constitution prescribes that an arrested person (who’s automatically also being
detained) must be informed as soon as possible, in a language that he/she understands, of
the following:
 the right to remain silent and the consequences of not remaining silent;
 the right to apply for bail;
 the reason for his/her detention; and
 the right to choose and consult with a legal practitioner or to apply to have a legal
practitioner appointed by the state at state expense to assist him/her

4.3.2. Questioning despite the right to remain silent

 The question whether the police should refrain from questioning an arrested person who has
exercised his/her right to remain silent, isn’t an easy one to answer
 According to the Judges’ Rules, a person in custody shouldn’t be questioned, unless
such a person makes a voluntary statement and questions are necessary for the sole
purpose of removing elementary or obvious ambiguities

 No rule could be found which prohibits the police from questioning an arrested person
 According to Steytler, the crux of the matter is to draw a distinction between instances where
the police seek the voluntary co-operation of such a person, and those where the police
compel his/her participation
 It’s obvious that in the first-mentioned instance the police are entitled to question the person,
whereas questioning with the aim of compelling participation would be unlawful
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4.3.3. Police instructions on questioning

 The SAPS has formulated extensive instructions in a policy regarding the questioning of
persons in custody
 This formulation was done to ensure that torture and other forms of cruel, inhuman or
degrading treatment of persons in custody are prevented

 According to the policy, questioning may not commence before the arrested person has
been informed of his/her right to consult a legal practitioner, or to apply to the Legal Aid
Board for a legal practitioner to be provided by the state
 Upon the request of the arrested person, the client service centre commander must also
enable the arrested person to communicate with a legal practitioner or the Legal Aid Board
prior to being questioned
 Proper record-keeping of an arrested person’s removal from the police cells for questioning
is also prescribed

Paragraph 10 of the Policy contains detailed instructions on the questioning of arrested

persons, including the following:
 Before the commencement of the questioning or, if the questioning has been interrupted,
on resumption of the questioning, such person must be informed in a language that he/she
understands of his/her constitutional rights.
 If such a person is under the influence of liquor, drugs or medicine, or in a state of shock,
he/she shall not be questioned unless the interests of justice require otherwise.
 The duration of the questioning is limited by the provision of at least eight hours’ rest, free
from questioning, travelling or other interruption which arises from the investigation, during
every period of 24 hours. After two hours of questioning, the arrested person must be
allowed a rest period of at least 10 minutes, and the person must also be given a
reasonable opportunity to eat during meal times, without being questioned.
 Questioning must preferably be conducted in a questioning room which is adequately
heated, lit and ventilated.
 Only two members may be present during the questioning, of whom one, if possible, must
be of the same gender as the person being questioned. Not more than three teams of two
members each may conduct the questioning, and members must always identify
themselves to the arrested person before the questioning begins.

 To improve the credibility of the police, the police are considering installing electronic
systems for recording questioning procedures in future

4.3.4. Voluntary statement by arrested person

 Where a person in custody waives his/her right to remain silent by volunteering a statement,
he/she should be allowed to make such a statement, but should first be cautioned
 Judges’ Rule 8(b) provides for the following caution to be administered to such a person by
a police official:

‘Before you say anything (further), I must tell you that you’re not obliged to do so, but
whatever you say, will be taken down in writing and may be used in evidence.’

 Since Judges’ Rule 8(b) has the effect if informing an arrested person of his/her right to
remain silent and the consequence of not remaining silent, it can be argued that this rule has
been replaced by s 35(1)(b) of the Constitution
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 Consequently, as a result of the exclusionary rule, failure to caution an arrested person in

this regard may result in the subsequent statement being inadmissible as evidence in
court

 A voluntary statement by an arrested person should, if possible, be taken down in writing

and thereafter be read to the arrested person
 Such a person should be given full opportunity to make any corrections thereto, and then be
invited to sign the statement

 Where two or more persons are charged with the same offence and one makes a voluntary
statement, each of the others may be supplied with a copy of such statement
 However, a police official shouldn’t say anything to elicit an answer from the co-accused
persons
 If a co-accused wishes to make a statement in reply, he/she should be allowed to do so after
the required warning

4.4. Questioning of accused persons

 For the purpose of this discussion, an accused person is someone suspected of the
commission of an offence and who the investigation officer has decided to charge
 The investigation has therefore linked such a person to the commission of the crime
 If an accused person is in custody, a charge by the investigation officer means that he/she
must be brought to court on the next court day
 Such a person must therefore be charged within 48 hours after his/her arrest
 However, such a person hasn’t been formally charged by the prosecutor; this will happen
only upon completion of the J15 (charge sheet)

 The police official must inform the accused person of the charge against him/her, after which
a so-called warning statement will be taken from the accused
 According to rule 8(a) of the Judges’ Rules, a police official should caution a person who’s
formally charged as follows:

‘Do you wish to say anything in answer to the charge? You aren’t obliged to do so, but
whatever you say, will be taken down in writing and may be used in evidence.’

 In practice, such a warning statement is usually not sworn or attested to

 Where the accused person isn’t in custody, he/she should be advised that a statement by
him/her would assist the prosecutor in his/her decision whether to prosecute or not, since it
would present the complete picture.
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5. Options after identifying perpetrators

5.1. Introduction
 The purpose of investigating an offence is to collect evidence, identify the perpetrator and
bring him/her to justice
 During the trial, the court will attempt to arrive at the truth
 Since the court must be placed in a position to ensure that justice is done, the presence of
the accused is required as he/she can only properly conduct his/her defence while being
present
 Consequently, the accused person’s right to a fair trial includes the right to be present
when being tried

 Section 38 of the CPA provides for four methods of securing the attendance of an
accused in court
o summons
o written notice
o indictment
o arrest
 The police may also release an arrested person on bail or warning and thereby still secure
his/her attendance in court
 If the trial is being held in a foreign country, extradition is a way to ensure that a person
suspected of having committed a crime in the other country is handed over to the authorities
of that state to be taken to a court in that country

 The four methods mentioned in s 38 of the CPA don’t exclude one another
o E.g. a person who has been arrested may be released by issuing him/her with a written
notice to appear in court
 Similarly, where the investigating officer becomes aware that a person who was summoned
to appear in court plans to flee, he/she may arrest the accused to prevent him/her from
evading the trial

5.2. Summons
 According to s 54 of the CPA, a prosecutor may secure the attendance of an accused for a
trial in a lower court by means of a summons
 A summons (J175) is a document that contains the charge against the accused,
ordering him/her to appear to face that charge in a specified lower court at a
particular time on a particular date
 The clerk of the court issues a summons after the prosecutor has provided him/her with a
charge sheet and personal particulars of the accused
 This method of securing the attendance of the accused in court is used in all cases where
it’s not necessary to arrest the accused.

 The summons is served by delivering it to the person named therein

 If such a person can’t be found, the summons may be delivered at his/her residence, place
of employment or business, to a person apparently over the age of 16 and residing or
employed there
 A person authorised to serve a summons includes the messenger of the court or a police
official
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 A summons may be served anywhere in the country, but service must take place at least 14
days (excluding Sundays and public holidays) before the trial date

 A ‘return’ is a notice from the person who served the summons that indicates that the
summons was served as required
 The return is prima facie proof of the service and the date on which the service occurred
 A person on whom summons was properly served and who failed to appear in court at the
specified place and time, or failed to remain in attendance, will be guilty of an offence and
the court may issue a warrant for his/her arrest

 Section 57 of the CPA provides that the clerk of the court or the prosecutor may give an
accused the opportunity to pay an admission of guilt fine, which, if paid, will excuse the
accused from appearing in court
 This can be done where the prosecutor or clerk of the court on reasonable grounds believes
that a magistrate won’t impose a fine exceeding R10 000 upon conviction
 This fine is payable to the clerk of the magistrates’ court concerned, or at a police station
within the area of jurisdiction of the said court
 An accused paying this fine is deemed to have been convicted and sentenced by a court in
respect of the relevant charge

 Section 29 of the Child Justice Act (CJA) provides that a summons issued in respect of a
child to appear at a preliminary inquiry must be served on such child in the presence of
his/her parent or guardian or an appropriate adult
 In exceptional circumstances where it isn’t possible to serve the summons in the presence of
such adults, the summons must be served on the child and a copy thereof must, as soon as
circumstances permit, be served on the child’s parent or guardian or an appropriate adult
 Both such child and the relevant adult must acknowledge service by way of a signature or
mark

 When serving such a summons, the police official must do the following:
o inform the child and relevant adult of the nature of the allegations against the child;
o inform the child and relevant adult of the rights of the child;
o explain the immediate procedures to be followed in terms of the CJA to the child and
relevant adult;
o warn the child to appear at the preliminary inquiry on the date and at the time and place
specified in the summons and to remain in attendance; and
o warn the relevant adult to bring or cause the child to be brought to the preliminary inquiry
on the date and at the time and place specified in the summons and to remain in
attendance

 The police official serving such summons on a child must also notify the relevant probation
officer immediately, but not later than 24 hours, after such service

5.3. Written notice

 The written notice procedure is regulated by s 56 of the CPA
 This procedure expedites the course of justice in the case of minor offences by authorising a
peace officer to finalise the matter without the intervention of either the prosecutor or the
court
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 A written notice is prepared, issued and handed directly to the accused by a peace officer
(which includes a police official)
 This procedure always offers the accused the option of paying a set admission of guilt fine in
terms of s 57 of the CPA

 Where a peace officer is therefore of the opinion that a magistrate will, upon conviction of
the accused, not impose a fine of more than R5 000, he/she may issue a written notice to
such person
 The written notice contains the personal particulars of the accused, the charge, when
and where he/she has to appear in court and an endorsement which gives him/her the
option of paying an admission of guilt fine without appearing in court
 The peace officer will also sign a certificate, confirming that the original notice was handed
to the accused and the import thereof explained to him/her
 Where the accused was in custody when the written notice was issued, he/she must be
released forthwith

 The peace officer has to forward a duplicate original of the written notice to the clerk of the
magistrates’ court concerned, and the mere production of this duplicate shall be prima facie
proof that the original was issued and handed to the accused
 The admission of guilt fine is payable at the clerk of the relevant magistrates’ court or at a
police station within its area of jurisdiction, and the effect of payment is that the accused is
deemed to have been convicted and sentenced by a court in respect of the said charge
 An accused who hasn’t paid the admission of guilt fine and also fails to appear in court at the
specified place and time, or fails to remain in attendance, will be guilty of an offence and the
court may issue a warrant for his/her arrest

 Section 28 of the CJA provides for a written notice to appear at a preliminary inquiry to be
handed to a child who’s alleged to have committed an offence referred to in Schedule 1 to
the CJA
 The form SAPS 583(b) is used in this regard
 The police official who hands such a written notice to the child and his/her parent or
guardian or an appropriate adult, has the duty to convey exactly the same information to the
child and relevant adult as required in the case of a summons in terms of s 19 of the CJA,
and must also immediately, but not later than 24 hours thereafter, notify the probation officer
concerned

 A notable difference between a written notice in respect of a child and one provided for in s
56 of the CPA, is that the former doesn’t award a child the opportunity to admit his/her guilt
and pay a stipulated fine

5.4. Indictment
 The indictment is used in the high court and is the equivalent of a summons
 It contains the charge against the accused and is drawn up in the name of the Director of
Public Prosecutions
 The indictment is very seldom used as a method of securing the attendance of an accused
in court, since the high courts deal particularly with serious crimes which imply that the
accused persons will usually be in custody or release on bail
 It may be served by handing it to the accused in substantially the same manner as a
summons, but is usually handed to the accused by the magistrate who commits him/her to
the high court for trial
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5.5. Arrest
 Arrest is the most drastic method of securing the attendance of an accused in court
 It causes serious infringements to the rights of individuals and should therefore only
be used in instances where there are reasonable grounds for believing that a
summons or written notice will be ineffective to ensure the attendance of a person at
his/her trial
 The CPA therefore lays down strict rules governing the arrest of a person

 Although arrest is initially used as one of the methods of securing the attendance of an
accused in court, it’s often used in conjunction with other methods
o E.g. a person who has been arrested for allegedly committing an offence may, in certain
circumstances, be released on bail, warning or written notice to appear in court
 Arrest doesn’t necessarily mean detention until the commencement of the trial
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Chapter 12: Arrest, detention and the use of force

1. Introduction
read through the introduction

2. Arrest and detention

2.1. Definition and methods of arrest
 An arrest occurs when a person is taken into custody and thereby deprived, at least
temporarily, of his/her freedom of movement
 When the arrest occurs, the rights that the person has to privacy and human dignity are also
seriously infringed

 The CPA provides for two methods of arrest:

o with a warrant
o without a warrant
 Although the authority to execute an arrest without a warrant is granted in certain
circumstances only, in practice the majority of arrests are performed without a warrant

2.2. The purpose of arrest

 Police officials should note that an arrest may be affected only when authorised by
law
 In some instances, an arrest may be authorised even if it’s without a warrant
 In these circumstances, the police have a discretion as to whether they should arrest a
person or not
 When the police have a discretion, it means that they aren’t compelled to make use of
their powers of arrest; they may also choose not to do so
 In exercising this discretion, police are, however, obliged to consider alternative ways of
dealing with the situation, and also to keep in mind what they wish to accomplish by making
an arrest

2.2.1. General rule

 Arrest is one of the methods by which the accused’s presence can be secured in court for
the purpose of a trial
 As a general rule, the purpose of the arrest must therefore be to bring the accused
before a court to be tried on the charge that has been brought against him/her – not to
punish such a person
 Police officials must remember that an accused person is presumed innocent until proven
guilty in court and should therefore be treated as being innocent as far as it’s possible to do
so

In Ex parte Minister of Safety and Security and Others: in re S v Walters, the Constitutional
Court made the following remarks about the purpose of the arrest:
 ‘The purpose of an arrest is to take the suspect into custody to be brought before court as
soon as possible on a criminal charge.’
 ‘Arrest isn’t an objective in itself; it’s merely an optional means of bringing a suspected
criminal before court.’
 ‘The express purpose of arrest should be remembered. It’s a means towards an end.’
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 ‘The purpose of arrest is to bring before court for trial persons suspected of having
committed offences.’
 ‘Arrest isn’t the only means of achieving this purpose, nor always the best.’
 ‘Arrest may never be used to punish a suspect.’

 Even in the pre-Constitutional era it was ruled that arrest isn’t always a desirable way of
securing a person’s presence in court
 Police officials should generally use their wide powers to arrest only when a summons or
written notice will, on reasonable grounds, be considered to be insufficient to ensure that the
suspect does attend his/her trial
 Arrest should therefore be used as a last resort

2.2.2. Exceptions to the general rule

 In certain circumstances, it appears that the law allows exceptions to the general rule by
providing for the arrest of a person for an apparent additional purpose
 In these circumstances there may not be any reason to believe that the suspect won’t attend
his/her trial
 Although methods, such as a summons or written notice, may therefore be equally effective
in ensuring his/her presence in court, it may be desirable to arrest the suspect
 Taking the arrested person to court must still be an underlying object of the arrest

(a) Arrest where further investigation is required

 At the time when the police reasonably suspect a person of having committed a
Schedule 1 offence it often happens that the investigation into the crime hasn’t yet been
completed and that the state is therefore not in a position to prove the person’s guilt
 Therefore, if the detention of the suspect is necessary to complete further
investigation, the police may choose arrest as the best option of ensuring the
suspect’s presence in court
 Arresting the suspect may also be necessary if there are reasonable grounds for believing
that the suspect will destroy exhibits, interfere with witnesses or will otherwise hamper the
investigation if he/she isn’t detained

 Arrest may therefore be very useful where the investigation requires that the bodily features
of a suspect are obtained, and he/she doesn’t voluntarily submit to the examination
o E.g. since the CPA authorises a police official to take the necessary steps to obtain a
blood sample from an arrested person without his/her consent, a person who’s
reasonably suspected of ‘drunken driving’ and refuses to allow a doctor or nurse to take a
blood sample from him/her may therefore be arrested for this purpose
o In this case, essential investigation work – obtaining a blood sample from the suspect –
needs to be done urgently
 If, during this further investigation, it appears that the arrested person can’t be linked to the
commission of the crime, the police must release the person immediately, even if he/she
hasn’t yet appeared in court
 The additional purpose of the arrest in this regard would therefore be to further investigate
the matter and, depending on the outcome of the investigation, either to charge or release
the arrested person

 The authority of the police to arrest a person in these circumstances may be derived from –
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o the fact that a person may be arrested even if he/she is only reasonably suspected of
committing a Schedule 1 offence (there’s still a degree of uncertainty); and
o the wording of s 50 of the CPA, which provides that a person may be detained for 48
hours before he/she must be brought before a court and that the person may be released
before he/she appears in court

(b) Arrest to check name and address

 In terms of s 41 of the CPA, a peace officer may ask the name and address of certain
persons and, if the person furnishes a name and address that the peace officer reasonably
suspects to be false, such persons may be arrested and detained for a maximum of 12
hours while his/her name and address are verified

 In such a case, the purpose of the arrest is to check the person’s name and address and, if
the name and address appear to be correct, that person should be released without delay

(c) Termination of unlawful acts

 An illegal immigrant may be arrested in terms of s 40(1)(l) of the CPA

 The purpose of such an arrest is to terminate an unlawful state of affairs (his/her illegal
presence in the Republic) by dealing with the illegal immigrant in terms of the Immigration
Act

 Another example of arrest with the intention of ending unlawful conduct is where a failure to
arrest the person will result in the continuation of an offence
 A person who trespasses on property and refuses to leave will continue to commit an
offence if he/she isn’t arrested and removed from the premises

(d) Protection

 The purpose of an arrest may also be to secure the safety of the arrested person
o E.g. if a person who has committed an offence for which he/she may be arrested is
threatened by a group of people who wish to take the law into their own hands and
endanger that person’s life, such a person may be arrested for the purpose of protecting
him/her
o In this case, arrest is the preferred method of bringing the person before court, since it’s
necessary to protect that person until he/she can appear in court

(e) Prevention of crime

 Section 40(1)(f) of the CPA authorises the arrest of a person who’s found at night in
circumstances which afford reasonable grounds for believing that he/she is about to commit
a crime
 The purpose of such an arrest is to prevent or combat crime

 Kruger points out that someone who’s arrested because he/she is about to commit a crime
can’t necessarily be charged with a crime, because ‘is about to’ implies something less than
attempt
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 The circumstances in which such a person is found must therefore be investigated

thoroughly to determine whether the person concerned is guilty of a crime for which he/she
may be charged
 If the investigation shows that he/she can’t be connected with a crime, that must be released
immediately

2.3. Legal duty to arrest

 It’s clear that police officials are only granted a discretion to arrest without a warrant
and that they aren’t compelled by the authorising legislation to make use of their
powers of arrest
 In Louw and Another v Minister of Safety and Security and Others, the court described
situations in which it isn’t appropriate for the police to use their powers of arrest
 The court held that arrest will ordinarily not be the appropriate way of ensuring the
suspect’s presence in court if such person –
o doesn’t represent a danger to society;
o will in all probability attend his/her trial without the arrest;
o won’t abscond;
o won’t harm him/herself and isn’t in danger of being harmed by others; and
o may be able and be keen to disprove the allegations against him/her

 However, it may be argued that if the opposite of the above factors is present, the
community will most likely expect the police to use their powers of arrest, thereby
placing a legal duty on the police to indeed arrest the suspect in the interest of justice

2.4. Distinction between arrest and detention

 Since s 35 of the Constitution distinguishes between the rights of ‘arrested’, ‘detained’ and
‘accused’ persons, it’s important to note the difference between arrest and detention
 A person is arrested lawfully if the requirements set out in s 39 of the CPA are satisfied
 A degree of physical contact usually takes place (taking into custody) and the suspect must
also be informed of the reason for the arrest
 Arrest refers to the initial deprivation of liberty with intent to charge, whereas detention
relates to the continued deprivation of freedom

 An arrest (which refers to deprivation of liberty with intent to ensure a person’s presence in
court) will therefore be followed by detention until the arrested person is charged or lawfully
release, e.g. on bail
 In contrast, detention generally requires no particular reason for the deprivation of the
freedom – as opposed to arrest, which has a particular purpose
 All that’s important for the deprivation of freedom to qualify as ‘detention’ is whether
the person is actually deprived of his/her freedom
o E.g. detention will occur when a person is stopped at a roadblock and his/her vehicle
searched merely because the person is actually being deprived of his/her freedom for the
duration of the search
 Similarly, if a person isn’t arrested but is interrogated in connection with a crime, whether as
a suspect or as a source of information, he/she is to be detained for the duration of the
interrogation
 So, the difference between arrest and detention is that arrest is deprivation of freedom for
the purpose of taking the suspect into custody to be brought before court as soon as
possible on a criminal charge, and detention is deprivation of freedom as such
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2.5. Arrest and the Constitution

 Arrest infringes certain rights that are protected in the Bill of Rights
 These rights include the right to freedom of movement, the right to human dignity, the right
to privacy, and the right to freedom and security of the individual
 However, the limitation clause contained in s 36 of the Constitution provides that these rights
may be lawfully limited under certain circumstances, e.g. by legislation
 An arrest will therefore be lawful if the requirements stipulated in the Constitution and other
legislation are met

2.6. The effect of unlawful arrest and detention

 A lawful arrest takes place if the police official concerned acts in accordance with the
provisions of the authorising legislation and the Constitution
 The effect of arrest is that the arrested person is taken into lawful custody until he/she is
lawfully discharged from custody
 If a police official exceeds the powers provided for in the authorising legislation for
the Constitution, the arrest will be unlawful
o E.g. if a police official arrests a person without a warrant in a situation not expressly
authorised by s 40 of the CPA or by a provision in another Act

 A person who’s unlawfully arrested may escape arrest without being liable for the offence of
escaping from lawful custody
 However, the fact that the arrest was unlawful has no effect on the accused’s liability for the
crime for which he/she was originally arrested
 In a case where the lawfulness of the detention is challenged, an application may be brought
to the court for a release order
 If a person is arrested unlawfully, the subsequent detention will also be unlawful
 However, if the person is brought before a court and the court orders further detention, such
further detention will be lawful

 In certain circumstances, on-going detention after a lawful arrest may be unlawful

 In Van Rensburg v City of Johannesburg, a pensioner was arrested at a roadblock on the
grounds of warrants of arrest that were issued after he had failed to appear in court on
summonses for traffic violations
 Although the arrest was lawful, the court held that the subsequent detention was unlawful
since the arresting officers failed to enquire whether the person did receive the summonses
 Had they done so, it would have appeared that the summonses weren’t served on him,
entitling him to be released on warning
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2.7. The arrest of children

 The CJA prohibits the arrest of a child under the age of 10 years
 It further provides in s 20(1) that a child may not be arrested for an offence listed in
Schedule 1 to the CJA, unless there are compelling reasons justifying the arrest, e.g. where
the police official has reason to believe that the child –
o doesn’t have a fixed residential address;
o will continue to commit offences, unless he/she is arrested; or
o poses a danger to any person

 Other circumstances that constitute compelling reasons to arrest the child are where the
offence is in the process of being committed or where the offence is committed in
circumstances as set out in national instructions

 If a child is reasonably suspected of committing an offence, which isn’t contained in

Schedule 1 to the CJA, he/she may indeed be arrested without a warrant
 However, such child’s release or placement in a child and youth care centre, instead of
continuous detention in the police cells, must be considered as soon as possible

 A police official who arrests a child must –

o inform him/her of the nature of the allegation against him/her;
o inform him/her of his/her rights;
o explain the immediate procedures to be followed in terms of the CJA to him/her; and
o notify the child’s parent, an appropriate adult or a guardian of the arrest; provided that if a
police official is unable to notify the child’s parent, an appropriate adult or a guardian of
the arrest, he/she must submit a written report to the presiding officer at the preliminary
inquiry.

 In terms of s 20(4) of the CJA, the probation officer in whose area of jurisdiction a child was
arrested must be notified immediately, but no later than 24 hours after the arrest
 If the police official is unable to inform the probation officer of the arrest, he/she must submit
a written report to the inquiry magistrate at the preliminary inquiry, furnishing reasons for
non-compliance

3. Requirements for lawful arrest

3.1. Manner and effect of arrest
 Section 39 of the CPA deals with the manner and effect of arrest
 According to sub-s (1), an arrest shall be affected with or without a warrant and, unless the
person to be arrested submits to custody, by actually touching his/her body or, if the
circumstances so require, by forcibly confining his/or body

 At the time of making the arrest or immediately afterwards, the reason for the arrest
must be communicated to the arrested person and, if the arrest is made with a warrant, a
copy of the warrant must be given to the arrested person if he/she requests it

 In terms of s 39(3) of the CPA, the effect of arrest is that the arrested person is in lawful
custody and remains in lawful custody until he/she is lawfully discharged or released
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 It was held that this subsection merely provides for lawful detention during the period
between lawful arrest and the first appearance of the arrested person in court.

 Lawful arrest has five requirements:

(a) The arrest must be duly authorised. The official making the arrest must either
be in possession of a warrant of arrest, or the provisions of s 40 of the CPA must be
applicable in case of an arrest without a warrant.
(b) The person being arrested must be taken into custody physically. His/her
freedom of movement must therefore be restricted. His/her body may be touched or, if
necessary, force may be used to bring the person under control. Merely saying to the
person, ‘I arrest you’ will be insufficient. If the arrested person clearly submits him/herself
to custody, the touching of his/her body is unnecessary.
(c) The arrested person must be informed of the reason for the arrest. The person
must be informed at the time of the arrest or immediately after the arrest has been
made. The precise words of the charge don’t have to be communicated to the arrested
person. All that’s necessary is that the essence for the nature of his/her conduct that led
to the offence must be conveyed to the arrested person, e.g. ‘you’re arrested for the
murder of Mr Smith on 16 July 2013 at his house in Brooklyn, Pretoria’. If an accused is
caught red-handed and he/she is aware of the details of the offence, the details need not
be stated, only the name of the offence. However, detaining a person without providing
any reason is unlawful.
(d) The arrested person must be taken to the prescribed authority as soon as
possible. In this regard, s 50 of the CPA provides that the arrested person must be
taken to a police station as soon as possible or, if the arrest is performed in terms of a
warrant, to the place mentioned in the warrant. The arrested person may also be
detained for up to 48 hours before he/she must be brought before a court. It’s important
that the police official performing the arrest should have the intention throughout of
complying with the provisions of s 50 of the CPA.
(e) The arrested person (who’s also detained) must be informed of the rights of
arrested and detained persons as contained in s 35(1) and (2) of the Constitution.
These rights must be explained to him/her in a language that he/she understands.

3.2. Arrest with a warrant

 A warrant is a written order, which instructs that the person described in the warrant
must be arrested by a peace officer in connection with a crime mentioned in the warrant,
and that such person must be brought before a lower court in terms of s 50 of the CPA

The warrant must therefore contain the following information:

 the names and description of the person who must be arrested;
 the description of the crime;
 the address at which the accused may be found, if available.

 Warrants issued in one magisterial district are also valid in other magisterial districts in
South Africa
 Where possible, the warrant must be carried out during the day and it will remain in force
until it has been suspended or cancelled by the person who issued the warrant
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3.2.1. Application for the issue of a warrant

Section 43(1) of the CPA provides that the following individuals may apply for a warrant:
 a director of public prosecutions;
 a public prosecutor;
 a commissioned officer in the SAPS.

 The application must be in writing and must state –

o the crime that was allegedly committed;
o that the crime was committed in the area of jurisdiction of the court concerned (in the case
of an application to a magistrate), or that the crime was committed in the area of
jurisdiction of the magistrate in whose area the application was made (in the case of an
application to a justice of the peace), or where the crime wasn’t committed within the area
of jurisdiction concerned, that the person concerned is known, or on reasonable grounds
suspected, to be within the area of jurisdiction;
o that based on information obtained on oath, it’s reasonably suspected that the person
concerned committed the alleged crime

The following persons may issue a warrant:

o a magistrate;
o a justice of the peace

 It’s extremely important that the party issuing the warrant should be independent and
objective and that there should be reasonable grounds for restricting the freedom of the
person concerned

 Section 43(2) stipulates that the warrant shall direct that the person described in the warrant
must be arrested by a peace officer in respect of the offence stated and that he/she be
brought to a lower court in accordance with the provisions of s 50 of the CPA
 A warrant of arrest issued in respect of a child must direct that the child be brought to appear
at a preliminary inquiry

3.2.2. Execution of a warrant

 Section 44 of the CPA provides that a warrant should be executed by a peace officer in
accordance with the provisions of the warrant
 It’s of extreme importance that the official executing the warrant should act strictly
according to the provisions and that he/she shouldn’t act which exceeds the
instructions contained in the warrant
 In Minister of Safety and Security v Kruger, the Supreme Court of Appeal held that a warrant
must be executed with due regard to the dignity and privacy of the arrested person
 The court therefore heavily criticised the police for turning the arrest in that case into a
showpiece by permitting, or inviting, a television cameraman to invade the premises of the
person being arrested in order to make a recording of the arrest

 In terms of s 39(2) of the CPA, the arrested person may insist on being given a copy of the
warrant
 An arrest made with a warrant will be unlawful if, while executing the warrant, the person
performing the arrest isn’t in possession of the warrant and therefore can’t comply with the
arrested person’s request
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o E.g. if the warrant is handed over after the arrest, for instance, at the police station, this
will render the arrest unlawful since the requirements of s 39(2) won’t be satisfied
 Any lapse of time which constitutes more than a minor delay and which can be attributed to
the arrestor’s inability to comply with the arrested person’s request will mean that the
requirements haven’t been met

 A telegraphic or similar written or printed communication from a magistrate, justice of the

peace or peach officer, which states that a warrant for the arrest of a person has been
issued, is sufficient authorisation in terms of s 45 of the CPA for a peace officer to arrest and
detain that person
 A person may therefore be arrested on the grounds of a warrant that has been fixed

 Section 46 and 331 of the CPA and s 55 of the Police Service Act exempt from liability
persons who’re authorised to execute a warrant for arrest and who arrest the wrong person
in the reasonable belief that they’re arresting the correct person, or who act under a warrant
which contains an apparent defect in its substance or form without being aware of this defect
 It’s important that the arrestor shouldn’t be negligent
 The test is whether a person of average intelligence who’s reasonably cautious would’ve
believed that the arrested person was in fact the person mentioned in the warrant
 A person who’s arrested maliciously and wrongfully may rely on the ordinary methods of
compensation for damages

3.3. Arrest without a warrant

 The authority to arrest without a warrant is a powerful weapon and may only be used in the
circumstances described in ss 40 and 41 of the CPA, or if explicitly authorised in other
legislation
 The rights of the individual, as enshrined in the Bill of Rights, must be respected at all times
and a balance must be maintained between the interest of the community in combating and
preventing crime and the rights of the individual
 If an arrest is executed in circumstances that go beyond those described in the
authorising legislation, the arrest will be unlawful

 The principle is if the purpose of the arrest isn’t to bring the person to court, but to frighten or
harass him/her into behaving in the way that the arrested person wants him/her to behave,
the arrest will be unlawful

 Section 40(1) of the CPA provides that arrest without a warrant may take place in the
following seventeen circumstances:

 A peace officer may arrest someone –

(a) who commits or attempts to commit any offence in his/her presence

This provision only applies to crimes that the arresting official has personally
observed being committed and not to offences that may be deduced from the
circumstances. The official who makes the arrest must therefore have direct personal
knowledge of the commission of the offence. The provision also applies to a police
official who’s off-duty and dressed in civilian clothes.
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An arrest under this provision must be made in circumstances that urgently

require it, such as a need to prevent the continuation of a crime, or a need to identify
the offender. If none of these circumstances are present and the crime is insignificant,
then it’s advisable to first obtain a warrant because the immediate deprivation of the
offender’s freedom won’t serve any lawful purpose.

In order to rely on this subsection as ground of justification in a claim for unlawful arrest,
the act that has been committed in the presence of the arrestor must, on a balance of
probabilities, have constituted an offence.

(b) whom he/she reasonably suspects of having committed a Schedule 1 offence, other
than the offence of escaping from lawful custody

Many arrests are conducted on the ground that the person being arrested was
suspected of having committed a Schedule 1 offence, It’s important to note that this
provision requires reasonable suspicion, but not certainty. The suspicion must be based
on factual grounds. In objective terms, there must be reasonable grounds for the
suspicion. According to the court, the reasonable suspicion test is satisfied if a
reasonable person in the position of the police official, and with the same
information, would have believed that there were sufficient grounds for
suspecting that the accused committed any Schedule 1 offence other than
escaping from lawful custody.

Even if the arresting police official believes on reasonable grounds that a crime listed in
Schedule 1 has indeed been committed, this in itself doesn’t justify an arrest forthwith.
An arrest, because it’s such a drastic invasion of personal liberty, must still be justifiable
according to the demands of the Bill of Rights.

However, the Supreme Court of Appeal rejected this additional condition in the Louw
case referred to above, and confirmed the requirements, namely:
(i) the arrestor must be a peace officer;
(ii) the arrestor must have a suspicion;
(iii) the suspicion must entail that the suspect (arrestee) committed a Schedule 1
offence; and
(iv) the suspicion must rest on reasonable grounds

Once the above-mentioned jurisdictional facts are present, the discretion, whether or not
to arrest in terms of s 40(1)(b), arises. The Supreme Court of Appeal emphasised that
peace officers aren’t obliged to affect an arrest, but are entitled to exercise their
discretion as they see fit, provided that they stay within the bounds of rationality.

Useful guidelines for peace officers were formulated that may be used when
exercising their discretion on whether to arrest a person under this provision or not. The
following guidelines are recommended:
 He/she should consider whether there are reasonable grounds for suspecting that
the person to be arrested committed an offence referred to in Schedule 1;
 in determining whether such reasonable grounds exist, he/she should analyse the
evidence at his/her disposal critically;
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 while there may be circumstances in which such an officer can form a reasonable
suspicion based only on a witness statement, those circumstances will be rare. It’s
preferable for the officer to find corroborative evidence before making an arrest;
 where the officer him/herself witnesses events, which give rise to a reasonable
suspicion that a Schedule 1 offence has been committed, it may be that no
corroborative evidence is necessary;
 after the officer has determined that there are reasonable grounds for suspecting the
commission of a Schedule 1 offence, he/she must exercise his/her discretion to
determine whether there are circumstances that satisfy the requirements for
making an arrest without a warrant. Usually, the risk of the suspect absconding or
committing further crimes if he/she delays in obtaining a warrant would justify an
arrest without warrant;
 in determining whether or not to affect an arrest, the arresting officer should carefully
consider his/her standing orders. Where a police official exercises a discretion in
violation of standing orders, that may in itself be an indication that the discretion
wasn’t properly exercised and that the arrest without a warrant was unlawful.

(c) who has escaped or attempts to escape from lawful custody

It’s important that the person who wishes to perform the arrest should know that the
person he/she wishes to arrest has in fact escaped from lawful custody. A reasonable
suspicion isn’t sufficient here.

(d) who’s in possession of housebreaking or car-breaking implements and who’s unable to

account for such possession to the satisfaction of the peace officer

What’s important here is the time of day or night when the suspect was found, and the
type of implements that were in his/her possession. The peace officer may judge for
him-/herself whether the person’s explanation is satisfactory. If a reasonable
person could conclude that the explanation is false, the arrest without a warrant will be
lawful.

(e) who’s found in possession of anything which the peace officer reasonably suspects to
be stolen property, dishonestly obtained or in respect of which the person’s suspected
of having committed an offence

If the circumstances are such that the reasonable person would suspect the above, then
the arrest will be lawful. Sections 36 and 7 of the General Law Amendment Act, which
relate to the possession and receiving of stolen property, are contravened in this case.

(f) who’s found at any place by night in circumstances which afford reasonable grounds for
believing that he/she has committed or is about to commit an offence

An additional purpose of this arrest is to prevent crime. A police official must investigate
whether the person has in fact committed a crime or attempted to commit a crime; if not,
such a person must be released.

(g) who’s reasonably suspected of being or having been in unlawful possession of stock or
produce
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This provision refers to any stock or produce as defined in the Stock Theft Act.

(h) who’s reasonably suspected of committing or having committed an offence relating to

the making, supply, possession or conveyance of intoxicating liquor or dependence-
producing drugs, or the possession or disposal of arms or ammunition

Contraventions of the provisions of the Liquor Act, the Drugs and Drug Trafficking Act
and the Firearms Control Act, amongst others, are relevant here.

(i) who’s forced at any gambling house or gambling table in contravention of a law relating
to the prevention or suppression of gambling or games of chance

The relevant law is the National Gambling Act.

(j) who wilfully obstructs him/her in the execution of his/her duty

In terms of s 67 of the Police Service Act, it’s a crime to obstruct a police official in
the performance of his/her duty.

(k) who reasonably suspected of being concerned in the commission of an act outside the
Republic which is punishable as an offence if committed inside the Republic, and
whose arrest or detention in custody in the Republic is authorised under any law
relating to extradition or fugitive offenders

There must be a reasonable suspicion regarding such person’s involvement in a crime

in a foreign country, or a reasonable complaint must have been made or credible
information in that regard received. Such a person may be extradited only in terms of
the Extradition Act.

(l) who’s reasonably suspected of being a prohibited immigrant

The relevant statute here is the Immigration Act. A reasonable suspicion that the
person is a prohibited immigrant is a requirement.

(m) who’s reasonably suspected of being a prohibited immigrant

There must be a reasonable suspicion that the person is in fact a deserter.

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(n) who’s reasonably suspected of having failed to observe any condition imposed in
postponing the passing of sentence or in suspending the operation of any sentence

Section 297 of the CPA deals with postponement and suspension of sentences. A
reasonable suspicion of the failure is required.

(o) who’s reasonably suspected of having failed to pay any fine or part thereof on the date
fixed by order or court
(p) who has failed to undergo periodical imprisonment
(q) who’s reasonably suspected of having committed an act of domestic violence as
defined in s 1 of the Domestic Violence Act, which constitutes a violent offence

 A new ground for arrest was created by s 20 of the Domestic Violence Act.
 It should be noted that this power to arrest without a warrant seems only applicable to
situations where the suspect (respondent) is still present on the scene of an incident of
domestic violence.
 The practical implication of this section is that it authorises a peace officer to arrest a
respondent (suspect) without a warrant for committing common assault during an incident of
domestic violence.

 In terms of s 40(2) of the CPA, a peace officer may also arrest a person who may be
arrested under another law without a warrant, subject to the conditions and circumstances
specified in that law
 In addition, s 42 of the CPA sets out the instances in which a private person may arrest
someone without a warrant, which includes a person whom he/she reasonably suspects of
having committed a Schedule 1 offence, as well as someone whom he/she sees involved in
an affray (fight)

3.4. Private persons must assist in arrest

 Section 47 of the CPA provides that every male resident of the Republic who isn’t below 16
and not over 60 years must, when called upon by a police official to do so, assist in arresting
a person and detaining that arrested person
 Such a person will be guilty of an offence if he refuses to assist a police official without a
satisfactory excuse

 However, if such a person is physically unfit to assist the police official, e.g. a disabled
person, he’ll also be excused
 If the person can prove that be honestly believed that the person requesting his assistance
wasn’t a police official, this will also be accepted as sufficient excuse.

4. Use of force during arrest

 When a suspect resists arrest or attempts to escape the arrest by feeling, it’s a well-known
principle in most international systems of law that force may be used to overcome such
resistance, or prevent the escape of a fleeing suspect
 Although the use of force in these circumstances will infringe the rights of the suspect,
especially the right to freedom and security of the person, which includes the right to be free
from all forms of violence and sometimes even the right to life, it’s in principle regarded as
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a justifiable limitation of those rights; however, the degree of force used mustn’t
exceed certain strict limits

4.1. Principle of minimum force

Section 13(3)(b) of the Police Service Act provides that where a member who performs an
official duty is authorised by law to use force, he/she may use only the minimum force that’s
reasonable in the circumstances. A member may therefore use force –
 while such a member is performing an official duty;
 on condition that the member is lawfully authorised to use force; and
 provided that such a member uses only the minimum amount of force that’s
reasonably required in the circumstances.

 The first requirement (while performing an official duty) also implies that the police official
may only use force for a lawful purpose
 Although the use of force may be lawful in certain prescribed circumstances (e.g. to affect an
arrest), the use of force to intimidate or punish a person or to obtain information from
him/her will never be lawful
 Moreover, the use of force in such circumstances will constitute the offence of torture as
defined in s 3 of the Prevention and Combating of Torture of Persons Act

 Furthermore, when a police official is lawfully authorised to use force, such force may be
used only where there’s no reasonable alternative way of achieving the purpose
without using force

 Finally, it’s explicitly stated that a member may use only the minimum force that’s reasonably
necessary under the circumstances
 In most cases, minimum force means no force at all
 If there’s another reasonable way of achieving the purpose without using force, such an
alternative must be used
 Only the minimum degree of force that’s reasonable in the circumstances to achieve the
purpose should be used

 The use of force will be regarded as reasonable in the circumstances only if the police
official has reasonable grounds for believing that –
o the use of that degree of force was necessary in the circumstances to achieve the
objective; and
o the effects that may reasonably be expected from using that degree of force are
proportional to the objective to be achieved

It has been suggested that in this regard reasonable grounds will only be present in the
following circumstances:
 if the police official based his/her belief on facts that existed at the particular time; and
 if, given the facts, the police official honestly believed that the use of that degree of force in
the circumstances was necessary to achieve the objective, and that the effects that may
have resulted from using that degree of force were proportional to the objective that had to
be achieved; and
 if any reasonable police official with the same level of training and experience would, given
the facts, have held the same belief.

4.2. Breaking open premises for purposes of arrest

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 Section 48 of the CPA provides that any person (a peace officer or private person) who may
lawfully arrest another person in respect of any offence, and who knows or reasonably
suspects such other person to be on any premises, may break open, enter and search such
premises for the purpose of effecting the arrest
 However, this is only allowed if the prospective arrestor first audibly demands entry and
notified the purpose for which he/she seeks entry and fails to enter the premises.

The following is important in this regard:

 entry to the premises must be demanded audibly;
 the purpose for which entry is required must be announced;
 only if entry is refused or can’t be obtained may the premises be broken open, entered and
searched in order to effect the arrest.

 If the circumstances are such that asking audibly for permission to enter will defeat the
purpose of entering, permission need not be asked
o E.g. where a police official pursues a suspect who enters a certain premises and, in the
process of pursuing, the police official also enters the premises without first asking audibly
for permission to enter

 However, if a police official breaks open the premises without requesting entry, he/she is
guilty of an offence and a civil claim for damages may be instituted against him/her and the
police
 If the police official had sound reasons for performing the arrest, the arrest will still be valid.

4.3. Using force to overcome resistance or escape during an arrest

4.3.1. History and background
 Section 39(1) of the CPA provides for a peace officer effecting an arrest to forcibly confine
the body of the arrested person
 In addition, s 49 of the CPA deals with the use of force exclusively for the purpose of making
an arrest
 Since this section initially also provided for the lawful killing of a fleeing suspect who was
reasonably suspected of committing a Schedule 1 offence, and who couldn’t be prevented
from fleeing by other means than by killing him/her, it became controversial in the new
constitutional dispensation
 At the centre of the controversy was the lack of an apparent requirement of proportionality
between the degree of force used and all the circumstances of the offence committed, e.g. a
person suspected of stealing fruit could lawfully be shot and killed if he couldn’t be caught,
because theft is a Schedule 1 offence

 Since the legislator realised that s 49 would probably not withstand constitutional scrutiny,
an entirely new section was formulated in 1998
 It received opposition from the SAPS and other stakeholders, and as a result, it only came
into force five years later on 18 July 2003
 In the meantime, the Supreme Court of Appeal and the Constitutional Court considered the
constitutionally of the use of force during arrest and supplied valuable guidelines in that
regard
 As a result of these guidelines and due to problems with the interpretation of the 1998
version, the legislator again intervened and on 25 September 2012 the latest amendment of
s 49 was introduced
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4.3.2. Guidelines by the courts

 When the Supreme Court of Appeal received the opportunity to comment on the
constitutional validity of the initial s 49 of the CPA, it held that in applying the constitutional
standard of reasonableness, the proportionality test should be expanded to include a
consideration of proportionality between the nature and degree of the force used and
the threat posed by the fugitive suspect to the safety and security of the arrestor and
others
 The proportionality test must therefore be applied to all the circumstances in which force is
used, and not only to the seriousness of the offence

 The Constituted Court stated that the Constitution obliges the police to fulfil their duties in
terms of s 205(3), and they must therefore take all reasonable steps, including the use of
reasonable force, to carry out their duties
 However, the court also emphasised that ‘resistance or flight doesn’t have to be overcome
or prevented at all costs. Thus, a suspect whose identity and whereabouts are known or
who can otherwise be picked up later, can properly be left until then. Even when the suspect
is likely to get clean away if not stopped there and then, arrest at every cost isn’t warranted.
The might of the law need not be engaged to bring to book a petty criminal.’

Judge Kriegler, who delivered the unanimous decision of the Constitutional Court, then
summarised the law regarding the use of force during arrest in light of the Constitution:
(a) The purpose of arrest is to bring before court for trial persons suspected of having
committed offences.
(b) Arrest isn’t the only means of achieving this purpose, nor always the best.
(c) Arrest may never be used to punish a suspect.
(d) Where arrest is called for, force may be used only where it’s necessary in order to
carry out the arrest.
(e) Where force is necessary, only the least degree of force reasonably necessary to
carry out the arrest may be used.
(f) In deciding what degree of force is both reasonable and necessary, all the
circumstances must be taken into account, including the threat of violence the suspect
poses to the arrestor or others, and the nature and circumstances of the offence the
suspect is suspected of having committed; the force being proportional in all these
circumstances.
(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited
circumstances only.
(h) Ordinarily such shooting isn’t permitted unless the suspect poses a threat of
violence to the arrestor or others or is suspected on reasonable grounds of having
committed a crime involving the infliction or threatened infliction of serious bodily harm
and there are no other reasonable means of carrying out the arrest, whether at that time
or later.
(i) These limitations in no way detract from the rights of an arrestor attempting to
carry out an arrest to kill a suspect in self-defence or in defence of any other person.
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4.3.3. The provisions of the amended section 49

 Section 49(1) of the CPA contains certain definitions for the purposes of the section
 The provision dealing with the use of force in making an arrest is contained in sub-s (2),
which reads as follows:

‘If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or
resists the attempt and flees, when it’s clear that an attempt to arrest him or her is being
made, and the suspect can’t be arrested without the use of force, the arrestor may, in order
to effect the arrest, use such force as may be reasonably necessary and proportional in the
circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in
addition to the requirements that the force must be reasonably necessary and proportional in
the circumstances, the arrestor may use deadly force only if –
 the suspect poses a threat of serious violence to the arrestor or any other person; or
 the suspect is suspected on reasonable grounds of having committed a crime involving
the infliction or threatened infliction of serious bodily harm and there are no other
reasonable means of effecting the arrest, whether at that time or later.’

 Because the interpretation of the 1998 version has created practical difficulties for the SAPS,
the latest amendment, which accords largely with the guidelines that were provided by the
Constitutional Court, was placed on the statute-book

 With Judge Kriegler’s summary in mind, Joubert submits the following requirements for a
successful reliance by an arrestor on s 49 of the CPA when using force in effecting an
arrest:
o the person to be arrested (suspect) must have committed, or reasonably be suspected of
having committed, an offence;
o the arrestor must be authorised to arrest the suspect with or without a warrant, or to assist
with the arrest;
o the arrestor must have attempted to arrest the suspect;
o the arrestor must have had the intention of arresting the suspect and of bringing him/her
before court;
o the suspect must have resisted the arrest or attempted to flee;
o the suspect must have been aware of the arrestor’s intention (to arrest him/her) and must
have fled with that knowledge;
o there must have been no other reasonable way in which to arrest the suspect or prevent
his/her flight;
o the force must have been directed at the suspect;
o the degree of force to be used to effect the arrest must be reasonably necessary and
proportional in all the circumstances.

As a result of the latest amendment, an arrestor may only use a firearm, or other weapon
that may probably cause serious bodily injury or death, in two instances to overcome
resistance to arrest or prevent escape, namely –
 the suspect poses a threat of serious violence to the arrestor or any other person; or
 the suspect is suspected on reasonable grounds of having committed a crime involving the
infliction or threatened infliction of serious bodily harm.

In addition, the second instance also requires that there must be no other reasonable means
of effecting the arrest, whether at that time or later.
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5. Rights of arrested, detained and accused persons

 Section 35 of the Constitution contains the rights of arrested, detained and accused persons
 In terms of this section, these persons must be informed of certain rights, and some of these
rights must also be explained to them in a language they understand

5.1. The constitutional rights of an arrested person

 Section 35(1) of the Constitutional is relevant here and provides that every person who’s
arrested for an alleged offence has the following rights:

5.1.1. The right to remain silent

 This right is based on the principle that the onus is on the state to prove beyond reasonable
doubt the guilt of the accused and the accused isn’t compelled to help with this task
 This right becomes operative from the moment of arrest
 However, the police official is still entitled to question the individual during the investigation
of a crime

5.1.2. The right to be informed promptly of the right to remain silent and of the
consequences of not remaining silent
 The arrested person must therefore be informed that what he/she says may later be used a
evidence in court
 The premise here is that if the accused, after being informed of this right, decides to make a
statement, this decision will be an informed one
 If the accused isn’t properly informed of this right and he/she makes a statement, this
evidence may be excluded from the trial in terms of s 35(5) of the Constitution

 The purpose of this right is to protect the arrested person against being lured into making
unfair, self-incriminating statements
 It has been rules that where an arrested person makes a statement and the police haven’t
waited for the arrested person’s attorney to be present, such a statement is inadmissible
 The mere presence of the arrested person’s attorney protects his/her right to remain silent

5.1.3. The right not to be compelled to make a confession or admission that could be
used in evidence against him/her
 The arrested person may not be influenced in any way to make a confession or admission
 Any pressure or persuasion may be regarded by the court as undue influence, and will result
in the statement being inadmissible in court
 There’s a connection between this right (which is part of the investigation process), the right
to a fair trial and the admission of evidence at the trial
 This right is also linked to the right of the accused not to give self-incriminating evidence,
which protects the right to a fair trial

5.1.4. The right to be brought before a court as soon as possible

 This right links up with s 50 of the CPA, which provides that an arrested person must be
brought before a court within 48 hours
 The emphasis here is on the fact that the arrested person must be brought before a court as
soon as possible and any unnecessary delay on the part of the police may mean that this
right has been denied, rendering further detention unlawful
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5.1.5. The right, at the first court appearance after being arrested, to be charged or to
be informed of the reason for the detention to continue, or to be released
This provision includes three rights:
 the right to be charged;
 the right to be informed of the reason for the detention to continue;
 the right to be released.

 These rights must be interpreted in conjunction with the right to be brought before a court as
soon as possible and the right to be released from detention

 The reason for bringing the arrested person before a court is to enable the court to decide
whether there are sufficient grounds for charging him/her
 If not, he/she must be summarily released

5.1.6. The right to be released from detention if the interests of justice permit, subject to
reasonable conditions
 The right to be released on bail is subject to it being in the interest of justice to release the
arrested person and to the setting of reasonable bail conditions for the release
 To determine whether release on bail will be in the interests of justice, the court will consider
the factors mentioned in s 60(4) of the CPA

 The purpose of this right is to interfere as little as possible in an arrested person’s freedom,
and not to anticipate his/her punishment before he/she is convicted and sentenced
 This right is only relevant where the case against the accused isn’t finalised at the first court
appearance
 In such an instance, the court must decide whether to detain the accused further or to award
bail
 This may also lead to the conclusion that an arrested person doesn’t have constitutional
right to so-called police bail

5.2. The constitutional rights of a detainee

 In terms of s 35(2) of the Constitution, every person who’s detained, including every
sentenced prisoner, has certain rights
 Detention in this regard refers to the deprivation of a person’s freedom
 A person who’s arrested may therefore claim these rights from the moment of arrest
for the duration of his/her detention
 Detainees have the following rights:

5.2.1. The right to be informed promptly of the reason for the detention
 This right is important for the detainee because it allows him/her to dispute the lawfulness of
the detention
 This right also means that the detained person can make an informed decision regarding
his/her right to remain silent and whether he/she will use the services of a legal
representative

 It’s not necessary for the actual words of the charge to be communicated to the detainee, as
long as the essence of the charge is communicated to him/her
 The detainee must therefore know clearly what he/she is suspected of having done and why
he/she is being detained
 The actual grounds for the arrest must therefore be communicated to him/her
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 Since the aim is to inform the detained person, the communication must be simple and non-
technical in nature enabling the detainee to understand the charge fully
 Obviously, the communication must take place in a language that the detainee understands

 The detained person must be informed about the reason why he/she is being detained
‘promptly’
 This means that he/she should be informed at the moment the detention commences or, if
this isn’t possible, as soon as practically possible thereafter
 An exception is if the reason is well known to him/her, e.g. if the person is caught in the
process of committing a crime
 Failure to inform the arrested person of this right, if there was opportunity to do so, may
result in the arrest and detention being unlawful

5.2.2. The right to choose and consult with a legal practitioner, and to be informed of
this right promptly
The detainee therefore has the following rights:
 the right to choose a legal practitioner;
 the right to consult with the legal practitioner;
 the right to be informed of this right.

 The important role that a legal practitioner plays in protecting the rights of the detainee is
highlighted in the US case Miranda v Arizona, where the court ruled that the presence of a
legal practitioner is the primary way in which the privilege against self-incrimination is
protected
 In South African case law, various cases emphasised the important role of the legal
practitioner in protecting the fundamental rights of the detainee

 Before a statement is taken down from a detained person, he/she must be informed that
he/she is entitled to consult with a legal representative, and that the legal representative may
be present during the making of the statement
 If this isn’t done, the statement may be inadmissible
 Therefore, it’s important that the detainee is informed of all the possible facts that may
influence the choice that he/she has to make
 If an attorney is available to represent the detainee and the police fail to inform the detainee
about this, subsequent statements made by the detainee may become inadmissible
 The failure of the investigating official to inform the detainee that an attorney has in fact been
appointed for the detainee and is on his/her way to consult with the detainee, and that the
attorney has requested that the detainee shouldn’t make a statement, amounts to an
infringement of the right to choose and consult with a legal representative

 The detainee must be given a reasonable opportunity to exercise this right without any
intervention by the state
 The detainee must also be given a reasonable opportunity to contact his/her legal
practitioner
 If he/she is deprived of, or refused this opportunity, the right to legal representation has in
effect been denied and consequently the right to fair trial is also affected

 Usually, the initial contact with the legal representative is by telephone

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 Until the detainee gets in touch with his/her legal representative, the police official shouldn’t
involve the detainee in the investigation process or expect him/her to make decisions which
may affect his/her right against self-incrimination

 However, it was decided that an accused doesn’t have a constitutional right to be informed
of his/her right to legal representation at each stage of the investigation process, unless
special circumstances show that failure to do so may give rise to a deprivation of the right to
a fair trial
 Nevertheless, police officials are advised not to take down admissions or to hold
identification parades before the detainee has been informed of this right.

 The detainee must also be given an opportunity to consult with his/her legal representative
confidentially
 The privilege that exists between client and legal representative protects this right

5.2.3. The right to have a legal practitioner assigned to the detained person by the state
and at state expense, if substantial injustice would otherwise result, and to be informed
of this right promptly
 This provision focuses on the right of the detained person to legal assistance by the state
during the 48-hour period after arrest until the first court appearance
 As soon as the person appears in court, he/she becomes an accused and the rights
contained in s 35(3) become operative
 The right of an accused to a legal practitioner at state expense is protected in s 35(3)(g)
 Failure to inform an unsophisticated detainee that he/she is entitled to a legal practitioner at
state expense, and that this legal representative may be present at identifications, may
result in the identification being inadmissible as evidence during the trial

 A legal practitioner is only provided at state expense if substantial injustice would otherwise
result
 Substantial injustice is usually determined by whether the punishment which the accused
may face involves direct imprisonment
 The seriousness of the crime therefore plays a role
 When a police official informs the detainee of this right, it’s important also to explain to
him/her how to gain access to legal assistance
 The police therefore have a duty to communicate the necessary information concerning
state assistance, and not to determine who’s entitled to this assistance for themselves

 A detained person may waive this right

 However, this waiver must be voluntary, and the detained person must be in a position to
make an informed decision, which means that the detainee must have all the relevant
information at his/her disposal
 He/she must therefore be aware of the options available
 An undefended person must therefore be informed of the fact that he/she has a right to a
legal representative of his/her choice, the right to be given legal assistance at the state’s
expense, and the right to defend him/herself

 After the initial waiving of this right, a detainee may at any time again claim his/her right to
legal representation
 A police official will then be obligated to ensure that this right is implemented
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5.2.4. The right to challenge the lawfulness of the detention in person before a court
and to be released if the detention is unlawful
 The detainee or someone acting on his/her behalf may challenge the lawfulness of the
detention
 If the state can’t prove that the detention is lawful, the detainee must be released

5.2.5. The right to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment
 This right of the detainee is linked to various rights that are protected in the Bill of Rights
 The right to human dignity and the right not be treated in a cruel, inhumane or degrading
way are important here
 Human dignity is one of the key values that’s protected throughout the Constitution

 The right to humane treatment extends from the moment of detention up to the official
release of the person
 The authorities are subject to both positive and negative duties
 Negative duties include the duty that the authority has to refrain from certain conduct (such
as keeping a person in solitary confinement)
 Positive duties are intended to ensure the physical and mental well-being of the detainee

This right entails the following:

 the opportunity to exercise;
 adequate accommodation;
 adequate food;
 reading material;
 medical treatment.

 As far as exercise is concerned, the detainee isn’t entitled to unlimited exercise

 The criterion is only as much exercise as is necessary to ensure the physical and mental
well-being of the person

 Various cases that deal with the right of the detainee to medical treatment have come before
court
 The court has ruled that HIV-positive prisoners are entitled, at state expense, to the
expensive anti-viral medication that’s prescribed for them
 The court rejected the state’s defence that the treatment is expensive and unaffordable
 The court rules that the word ‘adequate’ didn’t indicate the optimal or best treatment
available
 The guideline for determining what’s adequate is the scientific knowledge in the particular
field

5.2.6. The right to communicate with and be visited by a spouse or partner, next of kin,
chosen religious counsellor and chosen medical practitioner
 This right entails the right to communicate with and be visited by certain persons
 The purpose of this is to allow the family of the detained person to be informed of his/her
detention
 However, the detained person may not receive unlimited visits, since this will obstruct the
purpose of the detention
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 Restrictions may therefore be imposed, as long as these can be justified on the grounds that
they’re in the interests of safeguarding the detainee

5.2.7. Protection of children detained in police custody

 The CJA provides for additional rights for children who are detained
 According to s 27 of the CJA, children who aren’t released before their first appearance at a
preliminary inquiry must preferably be detained in an appropriate child and youth care centre
if such a child is between 10 and 14 years old, or if he/she is above 14 years and has been
charged with an offence referred to in Schedule 1 or 2 to the CJA
 However, a child of 14 years or older, who has been charged with a Schedule 3 offence,
must be detained in a police cell or lock-up

 According to s 28(1) of the CJA, a child who’s in detention in police custody must be –
o detained separately from adults, and boys must be held separately from girls;
o detained in conditions which considers their particular vulnerability and will reduce the risk
of harm to that child, including the risk of harm cause by other children;
o permitted visits by parents, appropriate adults, guardians, legal representatives,
registered social workers, probation officers, assistant probation officers, health workers,
religious counsellors and any other person who, in terms of any law, is entitled to visit;
and
o cared for in a manner consistent with the special needs of children, including the provision
of –
 immediate and appropriate health care in the event of any illness, injury or severe
psychological trauma; and
 adequate food, water, blankets and bedding

5.3. Relevant constitutional rights of an accused person

 Section 35(3) of the Constitution provides that every accused person is entitled to a fair trial
that includes, amongst other things, the following:

5.3.1. The right to be informed of the charge with sufficient detail to answer it
 The accused must be informed of the charge in detail
 If the accused is undefended, the allegation in the charge must be explained
 This right includes that the accused is entitled to certain information contained in the police
docket
 Section 32 of the Constitution is also relevant here and provides that every person has the
right of access to information that’s held by the state
 This right also means that the accused must be informed of competent findings relating to
the charge

5.3.2. The right to be presumed innocent, to remain silent, and not to testify during the
proceedings
 These rights reinforce the onus on the prosecution to prove that the accused is guilty
 The right to be presumed innocent has resulted in several presumptions being declared
unconstitutional and scrapped because they’ve placed an onus of proof on the accused
 However, not all provisions that create presumptions in criminal cases are invalid
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 Although a police official must believe that a person is guilty before arresting or charging
such a person, the presumption of innocence means that the investigation must be
conducted in an impartial manner
 A police official is therefore compelled by this right to follow up all information that may count
in the accused’s favour and he/she must include it in the docket

5.3.3. The right not to be compelled to give self-incriminating evidence

 The right against self-incrimination may only be used to ensure fair proceedings according to
criminal law
 If the right to a fair trial isn’t threatened, the rule against self-incrimination doesn’t apply
 This right is limited in that the accused is protected against compulsory testimony
 Physical incriminating evidence obtained from the accused, e.g. bodily features such as
fingerprints and blood samples, is excluded from this right
 Obtaining this type of evidence from the accused won’t constitute an infringement of the right
against self-incrimination

6. Procedure after arrest

6.1. Introduction
 The CPA lays down certain rights, over and above those listed in the Constitution, to which
arrested and other persons are entitled
 They should therefore be borne in mind when dealing with a suspect after an arrest

6.2. The arrested person must be informed of his/her rights

 After an arrest has been performed, with or without a warrant, the arrested person has
specific rights that must be explained to him/her
 Failure to do so may result in the evidence of all subsequent conduct performed by the
arrested person, such as making a confession or a pointing out being unconstitutional and
inadmissible as evidence in court
 These rights include the right to remain silent, the right to a legal representative and
the right to apply for bail
 The rights must be explained to the arrested person as soon as reasonably possible
 If a person is arrested with a warrant, the warrant must also be shown to him/her upon
request
 Failure to do so will amount to an infringement of the statutory provisions of the CPA, which
may render the arrest unlawful
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6.3. The arrested person must be taken to a police station

 The arrested person must be taken to a police station as soon as possible or, if he/she has
been arrested with a warrant, to the place expressly mentioned in the warrant
 After the arrest, there are two period of detention:
o the period immediately after the arrest
o the detention at the police station

6.3.1. Detention at the police station

 Section 50 of the CPA is clear in this regard:
o The further detention of the arrestee must take place at a police station (or place
mentioned in the warrant)
 It should also preferably be the nearest police station, although this isn’t obligatory
o E.g. if a person is arrested in one area of jurisdiction, he/she may be taken to another
authorised area of jurisdiction (where the trial will be held), without being detained at the
closest police station
 However, there should be no delay in transporting the person to the authorised area of
jurisdiction

 The mere fact that a police station can’t accommodate the arrested person doesn’t mean
that a place other than a police station may be used by the police official to detain the
arrested person

 Upon arrival at the police station, the arrested person may exercise his/her rights, including
the right to have a legal representative
 Any refusal by the police officials on duty to allow the arrestee to exercise his/her rights is
unlawful and is equal to an abuse of powers
 The police officials must also ensure that, if necessary, the arrestee receives medical
treatment, regardless of the cause and nature of his/her illness or injury

 At the police station, a decision must be made whether or not to release the arrestee for one
of the following reasons:
o no charge has been brought against him/her; or
o bail has been awarded to him/her

6.3.2. The detainee must be brought before a lower court

 In terms of s 50(1)(c) of the CPA, the detainee must be brought before a lower court as soon
as reasonably possible, but not later than 48 hours after the arrest
 The purpose of this provision is to inform the court of the detention and to allow the court to
decide on the detainee’s fate

 This provision is mandatory and may not be ignored or infringed

 Although the 48-period period has been stipulated, it doesn’t mean that a person may or
should be detained for at least 48 hours
 Section 50(1)(d) of the CPA also stipulates expressly when the 48 hours are deemed to
have expired
 If the person is detained for longer than 48 hours, the detention is unlawful
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 In addition to being allowed to institute a civil action, a person may leave the police station
without the permission or authorisation of the police officials who are in charge of the police
cells or police station
 This action may not be regarded as escape and such a person may not be prosecuted or
arrested for escaping

 If the 48 hours expire outside normal court hours (09:00 to 16:00 on a court day), the
detainee must be brought before a lower court on the first court day thereafter
 This would mean that he/she wouldn’t have to be brought before the court by 09:00, but
before the end of that court day
 In practical terms, it means that if a person is arrested at 16:05 on a Wednesday, the 48
hours will expire on Friday on 16:05
 Since it’s outside ordinary court hours, he/she must be brought to court before 16:00 on the
Monday (the end of the first court day after the 48 hours expired)
 However, if the arrest was affected at 15:00 on Wednesday, such person must be brought to
court on the Friday

 If a person is transported from one area of jurisdiction to another, and the 48 hours expire
during the journey, the period will be deemed to have expired at the end of the court day
following the day on which the person was brought into the jurisdiction of that court

 Section 50(1)(d)(ii) of the CPA regulates the situation where the arrested person is
physically too ill or as a result of another physical condition, such as an injury, not able to
appear before court
 The presiding official within whose jurisdiction such person would’ve appeared if not for such
illness or other condition must be provided with a medical certificate, and the prosecutor
must explain why the arrested person couldn’t appear before court within the 48-hour period
 The court will then issue an order stipulating the place and period of detention of the person
 This application must also be made within 48 hours or, failing this, on the next succeeding
court day

 It’s important to note that the court referred to here, and to which the person must be taken,
is the lower court which was appointed in terms of the Magistrates’ Courts Act
 In certain areas, however, there are periodical courts that only sit at certain times, e.g. once
a month
 Since the purpose of s 50 of the CPA is precisely to protect detainees from being detained
for long periods before being brought before a court, in such a case the magistrates’ court
for the district also has jurisdiction and the arrested person must therefore be taken to that
magistrates’ court, otherwise the detention will be unlawful

6.4. The court’s powers

 When a person who’s in charged with an offence is brought before a court, the court has
certain powers, namely –
o to order the further detention of the accused and to give a reason for this order;
o to charge him/her;
o to release the accused on bail or with a warning

 If the detainee hasn’t been arrested for an offence, he/she may insist on adjudication of the
reasons for the arrest
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 If the court doesn’t have the jurisdiction to hear the accused’s case, the court may transfer
the accused to any court that does have jurisdiction

6.5. Procedure after the arrest of children

 The CJA provides for special procedures where children are in conflict with the law
 Various duties are place on police officials by the CJA, notably the fact that a probation
officer must immediately be notified of all the steps that were taken
 Since the age of such a child plays an important role, s 12 of the CJA places certain
responsibilities on the police in instances where the age of such a child is uncertain; if the
police official has reason to believe that the child may be of a certain age, he/she must treat
the child in accordance with the provisions relevant to a child of that particular age

6.5.1. Children between 10 and 18 years of age

 Such children have the right not to be detained, except as a last resort, and if detained only
for the shortest appropriate period
 In addition, they must be treated in a manner that take account of their age, and must be
kept separate from adults and children of the opposite sex

 A child between age 10 and 18 may not be arrested for an offence referred to in Schedule 1
of the CJA, unless there are compelling reasons to do so
 If such a child is arrested though, he/she must be released on written notice into the care of
a parent, an appropriate adult or guardian as soon as possible and before appearing at a
preliminary inquiry, unless the child’s parent, guardian or appropriate adult can’t be
reasonably located or isn’t available, or there’s a substantial risk that the child may be a
danger to him/herself or to any other person
 In such an event, the investigating police official must provide the inquiry magistrate with a
written report, giving reasons why the child couldn’t be released

 If the child can’t be released, he/she must be placed in a suitable child and youth care
centre, and only if such placement isn’t appropriate or applicable, a police official must
detain the child in a police cell or lock-up
 Such a child must then be taken to appear at a preliminary inquiry at the magistrates’ court
having jurisdiction within 48 hours after the arrest
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Chapter 13: Bail as a method of release

1. Introduction
read through the introduction

2. The right to apply for bail

 Section 50(1)(b) of the CPA states that a person who’s in detention after being arrested
shall, as soon as reasonably possible, be informed of his/her right to institute bail
proceedings
 This is a peremptory provision that applies to the police official(s) who carry out the arrest
 These police officials must also explain this right to arrested persons because, if they fail to
do so, their failure may lead to injustice

 The right contained in s 50(1)(b) of the CPA not only includes the right to apply to court for
bail in terms of s 60 of the CPA, but also the right to make a bail application in accordance
with s 59 (bail by the police) or s 59A (bail by an authorised prosecutor)

 The right to apply for bail is available before or at the time of any appearance in court
 This doesn’t mean that the full 48 hours must elapse before the arrested person may apply
for bail
 The accused may arrange to be taken to court earlier for the bail application
 The police mustn’t obstruct the efforts of the accused, but as part of the legal machinery,
must assist him/her to make the application earlier
 The police are compelled to ensure the arrested person is available for the bail application
 Although an arrested person no longer has the right to be brought to court for a bail
application outside ordinary court hours, this doesn’t apply to bail in terms of ss 59 and 59A
of the CPA, which can be set after hours

 In cases where crucial investigative work still needs to be completed, the investigating officer
must bring this fact to the attention of the prosecutor in order to request that the court
postpone the bail application for up to seven days in terms of the provisions of s 50(6)(d) of
the CPA

3. Bail before first appearance in lower court

 Under certain circumstances, bail may be granted to the accused before his/her first
appearance in the lower court
 The CPA provides for two possibilities in this regard:
o bail granted by the police; and
o bail granted by an authorised prosecutor

3.1. Bail granted by the police

Section 59 of the CPA lays down three requirements for the granting of so-called police bail.
These requirements relate to –
 the offence;
 the rank of the police official; and
 the involvement of the investigating officer.
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 Police officials aren’t allowed to grant bail in cases where the arrested person has
committed an offence that’s listed in Part II or III of Schedule 2
 Consequently, police bail may be granted only in cases of relatively minor offences

 Only police officials with the rank of non-commissioned officer or higher may grant bail
 This means that a police official who grants bail must at least hold the rank of sergeant

 If the first two requirements are met, the arrested person must be given a fair
opportunity to state why he/she should be released on bail
 The police official considering the granting of bail must judge the application fairly and
consult with the officer who’s investigating the case and who’s likely to have information
that could influence the decision as to whether it’s advisable to grant bail
 If a police official maliciously refuses to grant bail, or refuses to exercise his/her discretion in
this regard, it could give rise to an action for damages, as well as judicial review

 Kruger suggests that reasons must be given for the refusal of bail, but also indicates that
where the requirements have been met, and there’s no reason to suspect that the arrested
person will try to evade his/her trial, bail should be granted if the accused has a fixed
address, regardless of how modest this may be
 Police bail may be granted at any time (including after hours and over weekends or on public
holidays), provided the arrested person hasn’t appeared in court since the arrest

 Section 59 lays down only two conditions for the granting of police bail:
o firstly, the arrested accused must pay to the police station the amount determined
by the police official (this amount must be paid in cash)
o secondly, the accused is compelled to appear in a specific court at a specified time
and on a particular date in order to answer to the charge put to him/her

 The relevant police official must complete a recognisance form (J398) in triplicate
 The original must be handed to the accused as receipt for the bail money received, whereas
the duplicate original must be sent to the clerk of the relevant magistrates’ court as soon as
possible

3.2. Bail granted by an authorised prosecutor

 The Director of Public Prosecutions (DPP), or another prosecutor to whom the Director has
delegated this authority, may grant bail without the intervention of the court in terms of s 59A
of the CPA
 In terms of this section, an authorised prosecutor, in consultation with the investigating
officer of the case, may authorise the release of the accused on bail in respect of a
Schedule 7 offence, such as culpable homicide and theft under the value of R20 000

 This section therefore makes provision for an authorised prosecutor to grant bail – even after
hours – in respect of any of the offences listed in Schedule 7
 Unlike the case of police bail, the authorised prosecutor may attach conditions to the
granting of this type of bail
 These conditions may, e.g. be that the accused is prohibited from contacting the witnesses,
that he/she must report to a police station at a particular time, and that he/she must attend
an identification parade upon the request of the investigating officer
 Bail conditions must always be clear and reasonable
 The prosecutor’s bail may be paid in cash or by bank-guaranteed cheques
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This bail remains in force until the accused appears in court for the first time, after which the
court may –
 extend the bail under the same conditions, or amend the existing conditions, or set
additional conditions; or
 consider a new bail application, as if it were a first application for bail (in terms of s 60 of
the CPA)

 The authorised prosecutor may decide about the setting of bail only after consulting with the
investigating officer
 The role of the investigating officer is therefore important in this case, and his/her input is
crucial in determining whether bail should be granted

 Where a child has been arrested, the Child Justice Act (CJA) states that the prosecutor may
authorise the release of such child if he/she is charged with an offence contained in
Schedule 1 or 2 to the CJA
 Reference to Schedule 7 to the CPA must be regarded as a reference to Schedule 2 to the
CJA

4. Bail granted by the court

 Most bail applications by accused persons take place during the first appearance in court
 The granting of bail falls within the discretion of the court and the views of the prosecutor,
the police and the legal representatives merely serve as guides in this respect
 For this reason, it’s also undesirable for the investigating officer to make a fixed arrangement
with the legal representative or accused beforehand, e.g. in determining the amount of the
bail

 A presiding officer may at first appearance of a child at a preliminary inquiry or thereafter in

the child justice court, release such child on bail, but even also release him/her in the care of
a parent, guardian or appropriate adult, or in certain circumstances on the child’s own
recognisance

4.1. Grounds for consideration

It’s important to note the provisions of s 60(4) of the CPA, which set out the circumstances
(grounds) in which it’s in the interests of justice to refuse bail. These are:

Where it’s established, there’s a likelihood that the accused, if released on bail, will –
(a) endanger the safety of the public or any particular person or will commit a
Schedule 1 offence; or
(b) attempt to evade his/her trial; or
(c) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
(d) undermine or jeopardise the objectives, or the proper functioning of the criminal
justice system, including the bail system; or
(e) in exceptional circumstances, disturb the public order or undermine the public
peace or security

 These grounds are further illustrated by lists of factors which may be considered in
determining whether any of the above circumstances exist
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 Furthermore, s 60(9) contains a list of personal matters about the accused that the court is
obliged to weigh up against the interests of justice in general, e.g. the financial loss which
the accused may suffer as a result of his/her detention and the accused’s state of heath

 It’s crucial for an investigating officer to be fully informed about the grounds for refusing bail,
and the factors that indicate those grounds
 When one or more of the grounds in s 60(4) of the CPA are present, bail may be
opposed, and the investigating officer must ensure that the reasons for opposing bail
are brought to the attention of the relevant prosecutor
 In such instances, the prosecutor will usually call the investigating officer as a witness in the
bail application
 The testimony of the investigating officer will inform the court of the existence of the grounds
of refusing bail and enable it to exercise its discretion fairly and fully

4.2. Bail money

 Section 60(2B) of the CPA provides that if the court is satisfied that the interests of justice
permit the release of an accused on bail, and if the payment of a sum of money is to be
considered as a condition of bail, the court must hold a separate inquiry into the ability
of the accused to pay the sum of money being considered or any other appropriate sum
 If it’s then found that the accused is unable to pay any sum of money, the court must
consider setting appropriate conditions that don’t include payment of an amount of money
for the release of the accused on bail, or must consider the release of the accused in terms
of a guarantee as provided for in s 60(13)(b)
 Fixing bail at an excessive amount in the trial involving a poor person will amount to a
refusal of bail
 However, if the accused is able to pay a sum of money, the court must consider setting
conditions for the release of the accused on bail and a sum of money that’s appropriate in
the circumstances

 In terms of s 25(2) of the CPA, where the bail application of a child is concerned, a separate
inquiry must be held regarding the ability of the child and his/her parent or guardian or an
appropriate adult to pay the amount of bail that’s being considered
 If it’s found that they aren’t able to pay any amount of money, the presiding officer must set
appropriate conditions for the release of the child that don’t include an amount of money

4.3. Bail conditions

 Bail conditions may be added or amended at any time, and the accused is compelled
to comply with them
 Bail conditions are added to the ordinary conditions for appearance, namely those relating to
the time and place of the trial
o E.g. a bail condition that the accused must attend an identification parade upon the
request of the investigating officer can be added after the accused has already paid bail
money
 Bail conditions must always be clear and reasonable

 In considering whether bail should be granted, the court must, in addition to the provisions of
s 60(4) of the CPA, also consider whether the addition of bail conditions may solve the
problem of the risks mentioned in s 60(4)
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 As stated above, new conditions may be added or amended even after the accused has
been released on bail
 The determination of bail conditions would then mean that the accused could be released,
rather than being detained any further

 Once again, an investigating officer has an important role to play if an accused breaches any
of the conditions attached to his/her bail
 As soon as the officer becomes aware that the conditions have been breached, he/she
should approach the prosecutor of the court where the case is pending and make a sworn
statement to that effect
 The prosecutor may then apply to the court to lead evidence in order to prove the accused’s
failure
 If the evidence of the investigating officer is led in the absence of the accused, the court may
issue a warrant for the arrest of the accused based on breach of bail conditions
 When the accused is arrested (now for breach of bail), he/she is given the opportunity to
convince the court that he/she didn’t breach the bail conditions, or if he/she did breach them,
that it wasn’t his/her fault (either intentionally or negligently)
 If the accused doesn’t succeed in proving his/her innocence in this regard, the bail may be
cancelled and the bail money forfeited to the state

4.4. Onus of proof

 In any trial, the onus of proof is on the state to prove that the granting of bail won’t be
in the interests of justice
 However, in certain cases, the legislature has transferred the onus of proof to the accused,
requiring the latter to convince the court that he/she should be released on bail
 When the onus rests on the accused person, it’s referred to as a ‘reverse onus’
 A reverse onus is normally considered to be unconstitutional because it infringes on a
person’s right to be presumed innocent until proven guilty by the state
 However, the Constitutional Court found that all that these provisions did was to place on an
accused, in whose knowledge the relevant factors lay, an onus to establish them in a special
kind of proceeding not geared to arriving at factual conclusions but designed to make
informed prognoses

 Section 60(11)(a) of the CPA creates a reverse onus

 It provides that, if a Schedule 6 offence has been committed, such as murder of a law
enforcement officer and vehicle hijacking, the court must order the accused to submit
evidence to the effect that extraordinary circumstances exist that allow for his/her
release in the interest of justice, and the accused must convince the court thereof
 Although the exact nature of the exceptional circumstances will depend on each case, it
seems that such circumstances must be unusual and peculiar

 As far as the commission of a Schedule 5 offence, such as murder and rape, is concerned a
similar, yet lighter, reverse onus rests on the accused:
o the court must detain the accused, unless he/she can convince the court, by submitting
evidence, that it’s in the interests of justice that he/she be released on bail

4.5. Provision of information

When a bail application is made, the accused or his/her legal representative is compelled to
provide the court with the following information:
 the accused’s previous convictions; and
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 any charges against the accused that are pending, and whether he/she was released on
bail in respect of those charges

 Failure to comply with these requirements and to provide accurate information is an offence
and according to s 60(11B)(d) punishable with a fine or a maximum of two years’
imprisonment
 Such non-compliance might also result in the cancellation of bail
 Here, the investigating officer plays an important part in informing the prosecutor whether
the information is correct

 The court rules that an accused has the right of access to case docket that are relevant to
his/her case
 In bail applications, however, the accused doesn’t have this right, unless the prosecutor
decides otherwise
 This applies only to the bail application and it’s applicable until the application has been
finalised
 The accused still has the right to consult the docket for the purposes of his/her trial
 The prohibition applies to the docket, information, document or record held by the police
 The decision rests with the prosecutor, and police officials must ensure that the information
isn’t conveyed to the accused or his/her legal representative, unless the prosecutor decides
otherwise

5. Warning in lieu of bail

 Section 72(1) of the CPA provides that an accused who qualifies for bail in terms of 2 59
(police bail) or s 60 (bail granted during first appearance in court) may be released on
warning instead of bail
 The purpose of this section is to serve as an alternative to bail in the case of less serious
offences, and it’s especially suitable for persons who can’t afford bail money, but who don’t
necessarily belong in custody
 When the police act in terms of this section, a written warning (SAPS 496) must be handed
to the accused, whereas the court need only warn the accused orally

 The requirements that must be met before a police official may release the accused on
warning are similar to those required for police bail
 Therefore, the police official must ensure that the offence in question isn’t one that
appears in part II or III of Schedule 2, such as murder, rape and robbery, he/she must
at least hold the rank of sergeant, and the investigating officer must be consulted

 The written warning must also specify when, in which court and on what charge the accused
must appear
 The original must be handed to the accused, and a copy, together with the docket, must be
delivered to the clerk of the relevant court

 An accused who doesn’t comply with the provisions of the warning is guilty of an offence
 The court may also issue a warrant for the arrest of such an accused

6. Termination of bail
 The CPA makes provision for the handling of various situations that may lead to the
termination of bail
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6.1. Cancellation of bail

 Section 68 of the CPA regulates the cancellation of the accused’s bail in cases where
his/her conduct makes it necessary, in the interests of justice

6.1.1. Urgency of the matter

 The section provides for two procedures relating to the cancellation of bail, depending on the
urgency of the case

(a) When there’s time

 In cases where time isn’t a major issue, application for the cancellation of bail can be made
in the court where the case is pending
 Information on oath by any person is required before the court will consider issuing a warrant
for the arrest of an accused who was released on bail or warning
 Although the prosecutor usually makes such an application, it’s normally the investigating
officer who’ll inform the prosecutor of the circumstances, after obtaining the information on
oath

(b) Urgent applications

 When the application is urgent and it isn’t practicable to make an application in the court
where the case is pending, a peace officer may approach any magistrate with a written
affidavit stating that he/she has reason to believe that certain facts exist
 The magistrate may then issue a warrant for the arrest of the accused

6.1.2. Grounds for cancellation of bail

The facts that must appear in the information on oath, and on which the application may be
based, are that the accused –
 is about to evade justice, e.g. by wanting to abscond; or
 has interfered with witnesses, or has threatened or attempted to do so; or
 has defeated or attempted to defeat the ends of justice; or
 poses a threat to the safety of the public or of a particular person.

 A warrant for the arrest of the accused may also be issued in the following cases, in terms of
s 68:
o Where the accused hasn’t disclosed or hasn’t correctly disclosed all his/her previous
convictions during the bail application, and the true position has come to light after his/her
release on bail.
o Where further evidence has become available which might have influenced the decision
to release the accused on bail, had it been known at the time of the bail application (e.g.
false information furnished by the accused).
o If it’s in the interests of justice to do so.

6.1.3. Procedures following the issue of a warrant

 As soon as the accused has been arrested, he/she must be brought to court to answer the
allegations
 Thereafter, the court will decide whether to cancel his/her bail
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 If his/her bail is cancelled, the accused will be held in custody until the case has been
finalised
 The court may, however, make any other order it sees fit, but is unlikely to grant the accused
bail again

6.2. Failure of the accused to appear

 A condition of release on bail is that the accused must appear in the court designated for the
trial, and he/she must remain in court until he/she is excused by the court
 Failure in this respect will, in terms of s 67 of the CPA, lead to the termination of bail, the
issuing of a warrant of arrest and the provisional forfeiture of the bail money
 If the accused doesn’t reappear within 14 days, the provisional order becomes final
 Section 67A of the CPA provides that the accused who fails to appear or remain present
without valid reasons is guilty of an offence

6.3. Failure to comply with bail conditions

 Bail conditions that are set during the bail application, or added later in terms of s 62 of the
CPA, must be fulfilled by the accused
 If the conditions are breached, evidence on oath is given in the court where the case is
pending, indicating which conditions the accused breached
 If the court finds that the accused failed to comply with the conditions, and that it was due to
his/her fault, the bail may be cancelled, and the bail money forfeited to the state
 Similarly, failure to comply with bail conditions, without good cause, is an offence
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Chapter 14: General methods of obtaining evidence

1. Introduction
read through the introduction

2. Evidence to be obtained in accordance with the constitution

2.1. Introduction
 Before the enactment of the Interim Constitution, South African courts applied the rules of
English common law relating to the admission of evidence in court
 In terms of these English rules, evidence was generally admissible in court as long as it
was relevant
 Only in exceptional cases were limitations placed on the admission of evidence, and it made
little difference whether the evidence was obtained legally or not
 However, this inclusionary approach towards the admissibility of evidence is contrasted with
the exclusionary approach that’s followed in some other countries, such as the USA
 The exclusionary approach entails the exclusion of all evidence that’s
unconstitutionally obtained in order to ensure a fair trial
 Therefore, unconstitutionally obtained evidence is regarded as inadmissible court

 After the Interim Constitution, with its emphasis on the protection of the fundamental rights of
individuals, came into operation, South African courts responded to the new constitutional
due process system by excluding unconstitutionally obtained evidence even though the
Interim Constitution didn’t explicitly provide for the exclusion of such evidence
 The final Constitution, however, does provide for the exclusion of such evidence
 This is referred to as an ‘exclusionary rule’ regarding unconstitutionally obtained evidence,
Section 35(5) of the Constitution provides for a midway between the pure inclusionary and
extreme exclusionary approach by compelling the courts to exclude evidence obtained
in a manner that violates any right in the Bill of Rights if the admission of that
evidence would render the trial unfair or otherwise be detrimental to the
administration of justice
 Therefore, the midway position is that unconstitutionally obtained evidence doesn’t per se
have to be excluded
 It only needs to be excluded if its inclusion would render the trial unfair, or would be
detrimental to the administration of justice

 Evidence is regarded as being unconstitutionally obtained if any of a person’s constitutional

rights are violated during the collection process
 Since the rights entrenched in the Constitution may be lawfully limited, it’s submitted that
unconstitutionally obtained evidence implies that the requirements set in the
limitation clause weren’t complied with, e.g. if police officials act without being authorised
by law or where the authorisation in terms of which they acted had been invalid
 Furthermore, any failure by the police to respect the rights of arrested, detained and
accused persons entrenched in s 35(1), (2) and (3) of the Constitution will also render the
evidence obtained as a result thereof unconstitutional
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The following are examples of evidence obtained unconstitutionally:

 a statement obtained from a suspect who wasn’t informed of his/her right to legal
representation, or to remain silent and not to make self-incriminating statements;
 an exhibit seized after premises had been searched, where the search had been
conducted without a warrant in circumstances where a warrant could’ve been obtained;
 where the police gave false information to a judge in order to receive the authority to
monitor the suspect’s telephone.

2.2. Exclusionary rule

 Section 35(5) of the Constitution places an obligation on the courts to exclude evidence that
was obtained in violation of any right in the Bill of Rights if its admission would render the
trial unfair or otherwise the detrimental to the administration of justice
 The court therefore have to make a value judgement as to whether the admission of such
evidence would have one of these results, that is, render the trial unfair or in some other way
be detrimental to the administration of justice

 Section 35(5) must be read with s 35(3) of the Constitution, which guarantees the right to a
fair trial
 Therefore, this exclusionary rule precludes any advantage accruing to the state’s case which
disadvantages the accused’s case because of a violation of the accused’s rights to the
extent that the administration of justice would be prejudiced, or that it could no longer be
said that the accused received a fair trial
 The exclusion of such evidence therefore protects constitutional rights and discourages
infringement of such rights because police investigations may not benefit from disregarding
people’s constitutional rights; the courts are obliged to exclude evidence that has been
obtained in this manner

2.3. Factors determining exclusion

 The courts will consider the following factors in their determination of whether evidence that
has been obtained unconstitutionally must be excluded:

2.3.1. If the evidence is obtained in a manner that violates any right

 The first question is whether the evidence was obtained in a manner that infringed a
right in the Bill of Rights
 Since only law of general application may lawfully limit constitutional rights, the way in which
the evidence was gathered must’ve been authorised by statutory law or common-law
principles
 Police conduct that isn’t authorised by statute or common law can never lawfully limit a right
in the Bill of Rights
o E.g. police who enter and search someone’s home can only be justified in violating the
occupant’s right to privacy if the police were authorised to do so by a statutory provision
or were acting in accordance with common-law principles
 It doesn’t matter whether their conduct was reasonable and fair, it can’t be justified unless
the law authorises it

 A further question that arises for the courts is whether there’s a link between the
infringement of the right and the evidence that was collected as a result of the
infringement
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 The court rules that the phrase ‘evidence obtained in a manner that violates any right in the
Bill of Rights’ can be assumed to include all evidence obtained after the rights of the
detained person were infringed during the pre-trial investigation
 However, if the accused had an opportunity to reassert his/her rights, that opportunity will
break the chain of events, and the evidence subsequently obtained may then be admitted
o In the Soci case, the police failed to adequately inform the accused of his right to legal
representation, therefore the evidence of a pointing out by the accused had been
inadmissible
o However, the confession that he later made to a magistrate was held to be admissible
since the magistrate explicitly informed the accused of his right to legal representation,
which right the accused had waived

 It should also be noted that it isn’t only evidence obtained as a result of violations of the
rights of accused persons that may be excluded
 In S v Mthembu, evidence was obtained from a prosecution witness, who was an
accomplice, after the police had tortured him
 The court found that public policy also requires that investigating and prosecutorial agencies
should conduct themselves with propriety in securing evidence against criminal suspects
 Public policy sets itself firmly against submitting evidence that has been obtained in
deliberate or flagrant violation of the Constitution, and s 35(5) requires the exclusion of
evidence improperly obtained from any person, not only from an accused
 The court held that the evidence of a third party, such as an accomplice, and even real
evidence, should be excluded where the circumstances warrant it

2.3.2. If admission of the evidence would render the trial unfair

 The constitutional right of an accused to a fair trial is the decisive standard, or yardstick,
for determining the admissibility of unconstitutionally obtained evidence
 The rights of an accused in terms of s 35(3) of the Constitution, which guarantee the right to
a fair trial, involve the right to be heard by an independent, impartial and unprejudiced court
and to be given the opportunity to provide a detailed response to the charge and to defend
hi/herself against that charge

 A fundamental requirement of the right to a fair trial is that the prosecution must
establish the case against an accused without the latter being forced to participate
 Any infringement or denial of an accused’s right against self-incrimination will therefore
render the trial unfair
 An accused must be explicitly notified of this right to prevent an infringement or denial of
his/her right against self-incrimination
 If, after being warned of the existence and extent of this right, the accused still chooses to
supply information, his/her right isn’t violated

 The right not to incriminate his/herself involves not only statements that the accused may
make, but also physical exhibits that the accused reveals because of the violation of certain
rights
 Admissions and confessions by the accused are examples of incriminating statements,
whereas a physical exhibit, such as a murder weapon, may be obtained after being pointed
out by the accused
 The admission of physical evidence that existed before the infringement of the right but
which was only discovered because of this infringement will also render the trial unfair
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 The question is whether the evidence would’ve been discovered without the accused’s
compelled participation
 If not, the admissibility of this evidence will render the trial unfair

 In S v Zuma, the Constitutional Court found that the right to a fair trial is broader than the list
of rights set out in the Constitution
 It includes a concept of material fairness, which shouldn’t be equated with what might have
been approved in criminal courts before the commencement of the constitutional
dispensation
 This right therefore includes being treated fairly, lawfully and constitutionally by the
authorities, including the police

 In the Constitutional Court’s judgement, the general approach to a fair trial was explained
 It was ruled that the Interim Constitution required the accused to be given a fair trial
 Fairness is ultimately decided on the basis of the facts of each case and the trial judge is in
the best position to make that decision
 Sometimes fairness may require evidence obtained unconstitutionally to be excluded,
but there may also be times when it requires such evidence to be admitted

 Recently, the Supreme Court of Appeal (SCA) held that relevant factors for the purpose of
determining trial fairness would also include the severity of the rights violation and the
degree to which the accused’s trial was prejudiced, weighed against public policy concerning
the investigation and prosecution of criminal conduct
 According to the SCA, rights violations are severe when they stem from the deliberate
conduct of the police or if they’re flagrant in nature
 However, they aren’t severe if the police conduct was objectively reasonable and neither
deliberate nor flagrant
 Furthermore, there’s a high degree of prejudice when there’s a close causal connection
between the rights violation and the subsequent self-incriminating acts of the accused

2.3.3. If admission of the evidence would be otherwise detrimental to the administration

of justice
 The admission of evidence that will render the trial unfair will always be detrimental to the
administration of justice as well
 Therefore, the inquiry as to whether the admission of the evidence would be otherwise
detrimental to the administration of justice arises only when it’s determined that it wouldn’t
render the trial unfair

 The administration of justice requires a balance between respect for the Bill of Rights, on the
one hand, and respect for the judicial process on the other
 Steytler is of the opinion that the serious nature of the offence and the importance of the
evidence shouldn’t carry more weight in the balancing process than the serious and flagrant
infringement of rights

The factors that seem to play a role in this regard include the following:
 The evidence shouldn’t be admitted if its admission would encourage the police to ignore
or overlook the constitutional protection afforded to accused persons. In this regard, the
absence of good faith and reasonableness in the conduct of the police will be an
important indicator. However, good faith won’t be sufficient where the violation is a result
of systematic poor practices, such as incorrect training, instruction or departmental
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directives. Furthermore, the good faith must also be reasonable.

 If the unconstitutional conduct was motivated by the need to promote public safety and
urgency, the courts may be more sympathetic.
 The nature and extent of the violation. The breach will be regarded as more serious if
there were alternative lawful means of obtaining the evidence. Furthermore, if the
unconstitutional conduct was part of a settled or deliberate policy to act with disregard for
constitutional rights, the evidence should as a rule be excluded.

 In S v Naidoo and Another, the police obtained permission to monitor the telephones of
suspects, based on false information provided to a judge
 This evidence was excluded in terms of s 35(3) of the Constitution, because the court held
that its admission would’ve been detrimental to the administration of justice

2.4. Procedure for excluding evidence

 If an accused argues that the evidence should be excluded, a trial within a trial should be
held to decide the issue of admissibility apart from the merits of the case
 The accused should then submit prima facie evidence that his/her rights were infringed, and
that evidence was obtained as a result of this infringement

The state, on the other hand, will then attempt to convince the court that –
 no infringement took place; or
 it was a fair and justifiable infringement; or
 the evidence wasn’t obtained as a result of the infringement.

 If the state can’t prove one of these factors, the court has the discretion to exclude the
evidence, considering the factors in s 35(5) of the Constitution

3. Ascertaining bodily features

3.1. Introduction
 Ascertaining the bodily features of a suspect or accused, for the purpose of accurate
identification, often forms an essential part of the investigation of crime, and is in many
respects a prerequisite for the effective administration of any criminal justice system,
including the proper adjudication of a criminal trial
 Chapter 3 (ss 36A-37) of the Criminal Procedure Act (CPA) authorises and regulates the
manner in which the police may ascertain the bodily features of certain persons
 It should be noted, however, that the bodily features of a person don’t include learned
abilities, such as handwriting, but it’s also not limited to aspects that are visible and tangible
 By complying with the provisions of this chapter, a police official will ensure that
these features are properly and lawfully ascertained, resulting in a mere limitation of
the accused person’s right and not a violation thereof

 The powers and duties contained in chapter 3 of the CPA have recently been increased by
the provisions of the Criminal Law (Forensic Procedures) Amendment Act
 One of the aspects that received specific attention is the ascertainment of bodily features of
children
 In terms of s 36A(2), any police official who takes the fingerprints or body-prints of a child, or
who ascertains any bodily feature of a child, must have due regard to the personal rights
relating to privacy, dignity and bodily integrity of the child, and must obtain the prints and
features in a private area, not in view of the public
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 Such a police official must furthermore ensure that the parent or guardian of the child, a
social worker or an appropriate person is present, and must treat and address the child in a
manner that takes his/her gender and age into account

 Ascertaining the bodily features of a person doesn’t violate a person’s privilege against self-
incrimination, since this privilege is confined to communications
 It was held in S v Binta that the privilege against self-incrimination doesn’t apply to the
ascertaining of bodily features, because there’s a distinction between being obliged to make
a statement against one’s interest, and furnishing real evidence
 This distinction hasn’t been affected by the fact that the right against self-incrimination is
entrenched in the Constitution

 However, police officials won’t be able to rely successfully on statutory authority as a ground
of justification for their actions
o E.g. a police official who personally takes a blood sample from an accused may therefore
be found guilty of assault because s 37(2)(a) only authorises a medical officer of a prison,
a registered medical practitioner or a nurse to collect a blood sample
 In addition, such conduct constitutes an infringement of the affected person’s rights: by
exceeding the bounds of the law of general application, the requirements of the limitation
clause aren’t met
 The evidence obtained as a result thereof may thus be excluded at the trial

The powers of police officials to ascertain the bodily features of persons include the
following:
 compulsory taking of fingerprints of certain persons;
 taking finger- and body-prints for investigation purposes;
 storing finger- and body-prints on database;
 putting an accused into an identification parade;
 requesting the taking of samples, such as blood and DNA;
 taking a photographic image of the accused.

 Finger- or body-prints may be taken irrespective of whether the trial has commenced or not
 Apart from the circumstances in which police officials are authorised by this section to take
the prints of a person, it’s submitted that the taking of such prints is also permissible if
the person concerned consents to the taking thereof
 Consent in this regard may prevent an arrest in circumstances where the deciding factor of
such an arrest would’ve been to complete urgent investigation work by obtaining the bodily
features of a suspect
 However, if consent is relied upon, it should be noted that the requirements for valid consent
must’ve been complied with

3.2. Compulsory taking of fingerprints

 Section 36B(1) of the CPA compels a police official to take or cause the fingerprints to be
taken of any person –
(a) arrested upon any charge related to an offence referred to in Schedule 1;
(b) released on bail if such person’s fingerprints weren’t taken upon arrest;
(c) upon whom a summons has been served in respect of any offence referred to in
Schedule 1;
(d) convicted by a court and sentenced to a term of imprisonment without the option of a
fine, whether suspended or not, if the fingerprints weren’t taken upon arrest;
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(e) convicted by a court in respect of any offence, which the Minister has declared for the
purposes of this subsection

 In terms of sub-s (4), a police official may again take the fingerprints of any of the above-
mentioned persons, if –
o the fingerprints taken on the previous occasion don’t constitute a complete set of his/her
fingerprints;
o some of the fingerprints aren’t of sufficient quality to allow satisfactory analysis,
comparison or matching; or
o the fingerprints taken were lost, misfiled or not stored on the database

 Furthermore, sub-s (2) authorises a police official to take or cause fingerprints to be taken of
any person –
o arrested upon any charge; or
o deemed under s 57(6) to have been convinced in respect of any offence, which the
Minister has declared to be an offence for the purposes of this subsection
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A claim that the taking of fingerprints violates a person’s constitutional rights won’t
succeed. It was held that the taking of fingerprints doesn’t constitute inhuman or degrading
treatment of such person for the following reasons:
 it’s accepted worldwide as a proper form of individual identification, such as in an
application for the issuing of an identity document and a passport;
 fingerprints are taken in private and can therefore in no way lower a person’s self-esteem,
or bring him/her into dishonour or contempt, or lower his/her character, or debase him/her;
 the process of taking a person’s fingerprints doesn’t constitute an intrusion into his/her
physical integrity – no physical pain of any kind accompanies this process;
 the fingerprints will be destroyed in the event of the accused being found not guilty;
 the taking of fingerprints can potentially be a helpful procedure to the benefit of the
accused in proving his/her innocence, e.g. if the fingerprints don’t match those obtained at
the crime scene

3.3. Finger- and body-prints for investigation purposes

 In terms of s 36C(1) of the CPA, any police official may without warrant take fingerprints or
body-prints of a person or group of persons, if there are reasonable grounds to –
(a) suspect that the person or that one or more of the persons in that group have committed
an offence referred to in Schedule 1; and
(b) believe that the prints or the results of an examination thereof, will be of value in the
investigation by excluding or including one or more of those persons as possible
perpetrators of the offence

 Subsection (2) provides that prints taken in terms of this section may be examined for the
purposes of the investigation of the relevant offence or caused to be so examined, and may
be subjected to a comparative search

3.4. Taking of body-prints

 Any police official may, according to s 37(1)(a) of the CPA, take the body-prints or cause it to
be taken of any person –
(i) arrested upon any charge;
(ii) released on bail;
(iii) arrested in terms of s 40(1)(n), (o) or (p) of the CPA;
(iv) summoned to appear in court in respect of a Schedule 1 offence or any offence
prescribing or allowing the suspension, cancellation or endorsement of any license or
permit, or the disqualification in respect thereof; or
(v) convicted by a court; or
(vi) deemed, under s 57(6), to have been convicted in respect of an offence which the
Minister has declared to be an offence for the purposes of this subparagraph.
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3.5. Identification
 Since witnesses often make mistakes as regards the identity of a suspect, the courts treat
evidence of identification with caution
 Although a spontaneous identification of the perpetrator by a witness at the scene of
the crime may be valuable evidence, police officials should take care not to suggest
in any way to such witness who the suspect is.
o E.g. if the police arrest a suspect near the crime scene and the suspect fits the victim’s
description, the suspect shouldn’t be taken to the victim to be positively identified
o In these circumstances, an identification parade should be arranged as soon as possible

 Section 37(1)(b) of the CPA provides for any police official to make an arrested person
available, or cause him/her to be made available, for identification
 The same applies to a person who was arrested upon any charge but released on bail
 The police official may also determine the condition, position or clothing of such
person
 This section therefore authorises the police to hold an identification parade in respect of an
arrested person who’s still in custody, or who has been released on bail
 Such a parade is considered to be an important safeguard to minimise the possible
unreliability of identification evidence

 An identification parade serves a dual purpose:

o firstly, it’s an effective investigation tool – the outcome thereof will enable the investigating
officer to reassess the direction of his/her investigation; and
o secondly, it also serves an important evidential purpose, since it can provide the
prosecution with evidence far more persuasive than identification in court (the so-called
dock-identification in court carries no weight, as the accused in the dock is the obvious
person to point out)

3.5.1. Procedure at an identification parade

 The persuasive value of a claim by a witness that he/she has identified the accused at an
identification parade depends on the evidence regarding the manner in which the
identification parade was held
 The procedure that was followed therefore determines the weight that will be attached to
parade identification
 It was held that the evidential value of the results of an identification parade is decreased if
the parade is conducted in a manner which doesn’t guarantee the ‘standard of fairness
observed in the recognised procedure.’

 This ‘recognised procedure’ consists of rules of police practice based upon considerations of
fairness along with guidelines drawn from case law
 These rules have evolved to ensure as far as possible that the identification of a suspect at
an identification parade is fair and reliable, and to enhance the evidential value of parade
identification
 Non-compliance with any specific rule won’t necessarily deprive a parade identification of all
evidential value – each case must be judged on its own merits
 To further ensure that identification parades are held in a manner which makes the evidence
presented in court, regarding any particular identification made at such a parade as
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persuasive as possible, the SAPS has formulated a National Instruction on Identification

Parades
 In holding an identification parade, police officials should therefore abide by the
following rules:

(a) The proceedings at the parade should be recorded

 The police official in charge of the parade should, at the time of the parade, record the
proceedings on a SAPS 329 form
 Recording is essential in order to ensure that an accurate account of events can be
furnished to the court
 An accused is entitled to have access to the completed SAPS 329 form at some reasonable
stage prior to the trial

(b) The investigating officer shouldn’t be in charge of the parade

 If the investigating officer isn’t present at the parade, this will exclude the possibility that
someone could’ve told the witness whom to point out
 The SAPS National Instruction explicitly prohibits the investigating officer, or another
member who forms part of the investigation team, to be designated as a member in charge
of the parade

(c) A suspect should be informed of the purpose of the parade and be given the
opportunity to obtain a legal representative to be present at the parade

 In S v Mhlakaza en Andere, a suspect is constitutionally entitled to have his/her legal

representative present at an identification parade
 In this case, the court excluded the evidence because the accused hadn’t been
granted a reasonable opportunity or sufficient time before the parade to obtain legal
representation
 It was held in S v Thapedi that a suspect had to be given a reasonable opportunity to
arrange for the attendance of his/her legal representative

 According to the National Instruction, the suspect must be informed of the following before
the identification parade commences:
o the allegations against him/her;
o the purpose of the parade;
o his/her right to legal representation and to be afforded a reasonable opportunity and
means (telephone) to secure legal representation;
o his/her right to remain silent;
o that he/she is legally obliged to participate in the parade.

 A legal representative at the parade is only allowed to observe and may not participate or
interfere
 Although his/her presence doesn’t place an obligation on the defence to ensure that the
parade is conducted properly, it has been accepted that a legal representative can make an
important contribution to ensure that a parade is conducted fairly
 Kruger suggests that the representative may be invited to have any comments about the
parade recorded
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 If the suspect is a juvenile who isn’t represented by a legal representative at the parade, it
would be a sound rule of practice to allow his/her parent or guardian to be present
 This principle is confirmed by para 23 of the National Instruction on Children in Conflict with
the Law, which provides extensive guidelines to police officials regarding what they must do
to ensure that a child’s legal representative and his/her parent, guardian or an appropriate
person are informed well in advance of the prospective identification parade

(d) A suspect should be informed that a court might draw an adverse inference from
his/her refusal to take part in a parade

 A suspect should be made aware of the fact that his/her decision not to co-operate in an
identification parade might have detrimental consequences at the trial
 According to the National Instruction, a suspect who refuses to participate in the parade
mustn’t be physically taken to the parade, but must be informed that such refusal will be
adduced as evidence against him/her during the trial and that the court may draw an
adverse inference from it

 The court ruled that an accused doesn’t have the right to choose whether to participate in an
identification parade and that his/her constitutional rights aren’t violated when he/she is
requested to participate in such a parade
 Since many difficulties in holding a proper parade can arise where a suspect refuses to co-
operate, an alternative to the ordinary parade can be used, such as a photographic
identification parade

(e) There should preferably be only one suspect and at least eight other persons in the
line-up of the parade

 The value of the evidence gathered from a parade identification will be enhanced if the line-
up contains a large number of participants, and it will also give innocent suspects greater
protection
 It’s generally undesirable to have more than one suspect in a parade line-up
 However, a second suspect may be included in the line-up, if he/she is more or less similar
in general appearance to the first suspect
 In such a case, the number of persons on parade should be increased to at least 12
 It may sometimes be necessary to hold more than one parade, particularly if the number of
non-suspects that would be required, will result in the parade being too difficult to manage
 However, if the same identifying witnesses are involved in two parades, then the suspect
shouldn’t be the only person appearing in both; nor should a suspect be added to a parade,
already inspected by the identifying witnesses, for the purpose of a second parade

(f) The suspect and other persons on the parade should be more or less of the same
build, height, age and appearance (including occupation or social standing) and be
more or less similarly dressed

 In determining the condition, position and clothing of the suspect for purposes of an
identification parade, a police official should keep in mind that any decision that causes
prejudice to the suspect would negatively affect the persuasive value of any parade
identification
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o E.g. it isn’t advisable to have an item of clothing in the parade if it played an important role
in the crime, since witness’s attention may be drawn to the recognisable item of clothing
rather than to the specific person

 The fact that a suspect was found in possession of an item of clothing described by a
witness will constitute a separate piece of evidence
 Similarly, if a suspect has a distinctive facial scar or tattoo that was mentioned to the police
by a witness, an identification parade might not be necessary
 If a parade is held, it would be necessary to cover the distinctive feature and ensure that all
other persons on parade have the same parts of their bodies covered

 The purpose of the requirement that all persons on parade should be similar in
general appearance serves to ensure that the suspect isn’t identified as a result of
his/her difference from the other persons on parade
o E.g. a person’s attention is easily drawn to colourful clothing
 Therefore, if the suspect is dressed in noticeably colourful clothes, while the other persons
on parade wear fairly plain coloured clothes, the suspect will stand out as a result of their
clothing

(g) It’s extremely desirable to take photographs of the parade, depicting the persons as
they appeared in the line-up next to each other

 Photographs or video footage of the parade will enhance its persuasive value, since
photographs and videos provide evidence that the parade was properly held and
evidence of the identification actually made
 If the persons on parade changed positions after one witness had identified and before
another began, photographs should be taken to illustrate the different line-ups
 A picture should also be taken if any act of identification made by a witness, such as
touching the suspect’s shoulder

(h) The police official in charge of the parade should instruct the suspect to choose a
position in the parade line-up and, if he/she should so desire, to change positions
between witnesses. The police official should ensure that the suspect’s satisfied
with the parade and that all the suspect’s reasonable requests are granted

 Although a police official may determine the condition, position or clothing of the suspect,
the granting of a suspect’s reasonable requests contribute to the credibility of the
parade
 It may be in the interests of justice to refuse some requests, e.g. where a change of clothing
would have the effect of partially disguising the suspect or radically altering his/her
appearance
 The requests made by a suspect and the steps taken as a result thereof should be recorded
on the SAPS 329 form
 This doesn’t place an obligation on the suspect to contribute to ensure that a proper parade
is being held, and the state may not benefit from his/her failure to do so

(i) Witnesses should be kept separately under the supervision of a neutral police
official and not be allowed to discuss the case while waiting to be called
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 Witnesses should be kept separately and not be allowed to see the parade line-up as it’s
being formed
 The witnesses shouldn’t be given the opportunity to exchange notes on the appearance of
the suspect
 It’s also advisable to warn them not to discuss the suspect’s appearance
 The police official under whose supervision they’re kept should preferably not even know
who the suspect is and the parade line-up shouldn’t be formed in his/her presence

 The National Institution requires such supervising official to submit a statement for inclusion
in the docket stating that the witnesses were kept separately, that no discussion took place
between them, that they didn’t see the parade participants or the suspect before they were
required to make an identification, and that the line-up wasn’t formed in their presence

(j) Before the parade begins, witnesses should be prevented from seeing any member
of the parade as well as the suspect in circumstances indicating that he/she is the
suspect

 Those responsible for conducting the parade should ensure that the witnesses don’t see the
suspect under arrest before the parade
 A witness’s judgement may also be influenced if he/she saw any other member of the
parade beforehand

(k) Another neutral police official should escort a witness to the parade and afterwards
to a place separate from where the witnesses are who still have to inspect the
parade

 The witnesses should be escorted to and from the parade to ensure that they aren’t
influenced before the parade, and that they can’t influence other witnesses who haven’t yet
seen the parade
 The escorting police official shouldn’t discuss the case with the witness, and shouldn’t be
admitted into the parade room
 The escorting member mustn’t even know who the suspect is
 A statement is also required from such a police official confirming that he/she complied with
the above

(l) The police official in charge of the parade should inform each witness of the
possibility that the perpetrator isn’t on the parade and that he/she must indicate if a
positive identification can’t be made

 This is an important requirement since a witness might think that it’s his/her duty to point
somebody out
 The possibility that the perpetrator isn’t on the parade at all must remain prominent in the
mind of the identifying witness

(m) The police official in charge of the parade should request the witness to make
his/her identification by touching the shoulder of the suspect
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 The purpose of this rule is to prevent the possibility of a witness being misunderstood
regarding his/her specific identification
 Situations may occur where the witness, such as a victim of violent crime, might be scared
to approach and touch the suspect
 Identification parades in respect of these witnesses should preferably be held at police
stations where on-way mirror facilities are available
 If such facilities aren’t available, such a witness should be permitted to identify the suspect in
any other manner but care should be taken to prevent any misunderstanding

3.5.2. Alternative identification parades

 A survey of identification parades held in the Western Cape during the nineties indicated that
serious problems occur during the parades which result in a lack of protection for suspects
on parade
 It was found that the recommendation set out by the law and the police to guide the way in
which parades are conducted aren’t sufficient to ensure that parades are fair
 As a result of the survey, it was recommended that police officials should consider
alternative methods for determining identity
 These methods include the use of photographs or videotapes instead of using the physical
presence of a number of possible suspects in a live identity parade

 The advantages of a photo or video parade include the following:

o it can be set up more quickly;
o a very large database is easily available;
o no problems are experienced with the persons on parade, thereby eliminating possible
bias against the suspect;
o the anxiety of witnesses is greatly reduced since they don’t have to face the suspect.

 Another alternative option is the so-called sequential parade

 During this parade, the persons on parade are presented to the witness individually, in a
randomised sequence
 The witness needs to decide as each person appears whether he/she is the culprit
 In this way, the witness is forced to make an absolute choice about each person he/she
sees, rather than by comparing the persons on parade with each other
 While studies have found that the correct identification rate is more or less the same for
simultaneous and sequential parades, the false identification rate is significantly lower in the
case of sequential parades.

3.6. Other bodily marks, characteristics or distinguishing features

 According to s 37(1)(c) of the CPA, any police official may take the steps that he/she
considers necessary in order to ascertain whether the body of any person arrested upon any
charge, or such person released on bail –
o has any mark, characteristic or distinguishing features; or
o shows any condition or appearance

 This section therefore authorises the taking of blood and other bodily samples, and the
conducting of voice identification parades
 It should be noted that only arrested persons who are still in custody, or who’ve been
released on bail, may be subjected to these steps, unless the person concerned gave
his/her consent to the steps being taken
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 If the steps concerned should require medical expertise, such as the taking of a blood
sample, the provisions of s 37(2)(a) of the CPA become relevant
 This section provides that the steps necessary for the purposes of s 37(1)(c) may be taken
by any medical officer at any prison
 Furthermore, any registered medical practitioner or registered nurse is also authorised
to take such steps if requested to do so by any police official
 A police official is, however, explicitly prohibited from taking any blood sample of the person
concerned, or from doing any examination of the body of such a person, where that person
is of a different gender than the police official concerned

 As far as the taking of blood samples is concerned, s 37(2)(b) of the CPA entitles any
registered medical practitioner attached to a hospital, into which any person is admitted for
medical attention or treatment, to take a blood sample or cause it to be taken from such a
person, if he/she is of the opinion on reasonable grounds that the content of the blood may
be relevant at any later criminal proceedings

 The involuntary taking of blood samples for DNA testing during a criminal investigation were
found to be a reasonable and necessary step to ensure that justice was done, and that it had
been reasonable and necessary in balancing the interest of justice against the interest of
individual dignity
 It was held that s 37(1)(c) of the CPA permitted the surgical removal of a bullet from the leg
of an arrested person in order to make it available for ballistic testing

3.7. Photographic images

 In terms of s 37(1)(d) of the CPA, any police official may take, or cause the taking of, a
photographic image of a person who has been arrested upon any charge or has been
arrested and released on bail
 Photographs of persons who’ve been convicted may, e.g. be used in the compilation of
photographic identification parades
 Similarly, there’s nothing wrong with showing photographs of suspects who are still at large
to eye-witnesses, either to ascertain the identity of an as yet unknown suspect or to confirm
suspicion about an already known one

 The Supreme Court of Appeal held that it’s not appropriate to impose the strict requirements
of regular identification parades upon photo-identification, but warned that because of the
less restrictive requirements during photo-identification such evidence should be
approached with care
 The probative value of the identification of a suspect by a witness at a later identification
parade will decrease if such witness previously saw a photograph of the suspect

3.8. Storage of prints and images on database

 The Criminal Law (Forensic Procedures) Amendment Act also amended the Police Service
Act to, amongst others, regulate the storing and use of fingerprints, body-prints and
photographic images of certain categories of persons, to provide for the keeping of
databases, and to allow for comparative searches against those databases

 Fingerprints, body-prints or photographic images taken in terms of ss 36B, 36C and 37 of

the CPA must be stored in a database maintained by the National Commissioner of Police
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 Furthermore, any such prints or images that were taken in terms of chapter 3 of the CPA,
may be subjected to a comparative search

 Such prints and images may only be used for purposes related to:
o the detection of crime;
o the investigation of an offence;
o the identification of missing persons;
o the identification of unidentified human remains; or
o the conducting of a prosecution

 The use of any such prints and images for the purposes of establishing if a person has been
convicted of an offence, isn’t prohibited

 Section 36B(6)(d) of the CPA renders it a crime to –

o use or allow the use of those fingerprints, body-prints or photographic images or any
purpose that isn’t related to the detection of crime, the investigation of an offence, the
identification of missing persons, the identification of unidentified human remains or the
conducting of a prosecution; or
o tamper with or manipulate the process or the fingerprints, body-prints or images in
question; or
o falsely claim such fingerprints, body-prints or images to have been taken from a specific
person whilst knowing them to have been taken from another person or source

3.9. Ascertaining bodily features against a person’s wish or will

 Section 37 should also be read with s 225(2) of the CPA, which provides that evidence of
finger- or body-prints or the bodily appearance of an accused won’t be inadmissible merely
because they were obtained against the wish or will of the accused concerned
 It was held in S v Huma and Another (above) that taking an accused person’s
fingerprints against his/her wish or will doesn’t violate the Constitution
 This was confirmed in S v Maphumulo (above) where it was also stated that the accused’s
fingerprints may be taken forcibly if necessary
 The court cautioned the police to exercise discretion and care, and to have due regard for
the dignity of the accused

 Regarding an accused person’s participation in an identification parade, the court held that
an accused has no right to refuse to participate in an identification parade
 Furthermore, the court confirmed that to require an accused person’s participation parade
isn’t a violation of his/her constitutional rights

 Although a police official may not personally take a blood sample, he/she may assist a
registered medical practitioner or nurse requested to take a blood sample from an unwilling
person
 It was held that a police official may use such force as is reasonably necessary to
cause the taking of a blood sample from a person unwilling to submit to the act
 Although such a person can’t be found guilty of defeating or obstructing the course of justice,
a refusal or unwillingness to allow the taking of a blood sample might, at a later trial, result in
an adverse inference being drawn against the accused
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 It should be noted that where a person has been arrested for driving under the influence of
alcohol or drugs, s 65(9) of the National Road Traffic Act renders it a statutory offence if
such a person refuses to allow a blood or breath sample to be taken from him/her

3.10. Ascertaining bodily features in terms of a court order

 In terms of s 37(3)(a) of the CPA, a court before which criminal proceedings are pending
may order that finger- and body-prints be taken of any accused at such proceedings or that
any steps, including the taking of a blood sample, be taken that such court may deem
necessary in order to ascertain whether the body of any accused at such proceedings has
any mark, characteristic or distinguishing feature or shows any condition or appearance, in
circumstances where the police aren’t empowered by s 36B(1) or 37(1) to do so

 According to s 37(3)(b) such a court may also, if it considers it necessary, order that steps,
including the taking of a blood sample, be taken in order to ascertain the state of health of
any accused at such proceedings
 Finally, a court, including a magistrates’ court, which has convicted a person, may order the
taking of the convicted person’s finger- or body-prints or photographic image in terms of s
37(4) of the CPA

 Additional provisions for a court order regarding the ascertainment of bodily features
are now also contained in the Criminal Law (Sexual Offences and Related Matters)
Amendment Act
 According to s 28(1)(b) of the Act, a victim who has been exposed to the risk of being
infected with HIV as a result of a sexual offence that has been committed against him/her
may apply to a magistrate for an order that the alleged offender be tested for HIV at state
expense
 Furthermore, an investigating officer may similarly apply for the HIV testing of a person
suspected of the commission of any offence in which the HIV status of the alleged offender
may be relevant for purposes of investigation of prosecution

3.11. Record of bodily features to be destroyed

 If an adult person whose bodily features were ascertained in terms of chapter 3 of the CPA,
is convicted, his/her finger- or body-prints or photographic images must be retained on the
relevant SAPS database
 On the other hand, the bodily features of a child who’s convicted, is also retained on the
database, subject to the provisions relating to the expungement of a conviction and
sentence of a child, as provided for in s 87 of the Child Justice Act
 The National Commissioner must therefore destroy the fingerprints of a child upon receipt of
a Certificate of Expungement

 Where a decision was taken not to prosecute a person, or if the person is found not guilty at
his/her trial, or if his/her conviction is set aside by a superior court, or if he/she is discharged
at a preparatory examination, or if no criminal proceeding with reference to such finger- or
body-prints, or photographic images was instituted against the person concerned in any
court, such prints or images must be destroyed within 30 days after the officer commanding
the SAPS Division responsible for criminal records, has been notified

3.12. Ascertaining bodily features in terms of the Firearms Control Act

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 Bodily features may also be ascertained in terms of ss 112 and 113 of the Firearms Control
Act
 Section 112 gives the powers contained in s 37 of the CPA to a police official (or other
person authorised in writing by the National Commissioner of Police) to ascertain the bodily
features of the occupant, owner or controller any vehicle, vessel, aircraft or premises in
which any firearm, imitation firearm, airgun, device or ammunition referred to in the Firearms
Control Act is present, and in respect of which there’s a reasonable suspicion that any of the
provisions of that Act may have been contravened by such person

 In terms of s 113 of the Firearms Control Act, police officials may also, without a warrant,
take (or cause the taking of) the finger- or body-prints or bodily samples of any person or
group of persons if there are reasonable grounds for –
o suspecting that that person, or that one or more of the persons in that group, committed
an offence in terms of the Firearms Control Act, which is punishable with imprisonment for
a period of five years or longer; and
o believing that the prints or samples, or the results of an examination of these prints or
samples, will be of value in the investigation by excluding or including one or more of the
persons as a possible perpetrator of the offence

 Such prints or samples may also be examined, and be subjected to a comparative search
 Furthermore, s 113(4) provides that a police official may do such tests, or cause such tests
to be done, as may be necessary to determine whether a person suspected of having
handled or discharged a firearm has indeed handled or discharged a firearm

 Section 113(5) contains similar provisions to those in chapter of the CPA regarding the
purposes for use, retention and destruction of finger- or body-prints and body samples

 Although s 9 of the Explosives Act contains identical provisions to those in s 113 of the
Firearms Control Act, the former hasn’t yet come into operation

4. Search, seizure and disposal of articles

4.1. Introduction
 Search and seizure is one of the most powerful investigating tools at the disposal of police
officials in their quest to prevent, investigate and combat crime
 It’s obvious that crime can’t be properly prevented or investigated unless police officials are
adequately empowered to do so
 However, the basic human right to privacy is entrenched in s 14 of the Constitution, which
includes the right not to have one’s person, home or property searched, possessions seized
or the privacy of one’s communications infringed
 Other constitutional rights that are also affected by searches or seizures are the rights to
human dignity, freedom and security of the person and not to be deprived of property

 Although these rights should always be respected, protected and promoted by the police, it’s
often essential to search for and seize property in order to properly prevent or investigate
(and ultimately prove) an offence
 There are therefore two seemingly conflicting community interests:
o on the one hand, the interest in protecting human rights, which is vital in a democracy;
and
o on the other hand, the interest of society in combating crime
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 These two interests have to be balanced

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 The way in which this is done is by restricting police powers to search and seize, as an
absolute powers to search and seize will negate many of the rights referred to above; and at
the same time by limiting the constitutional rights by requiring a citizen to submit to
search and seizure of property in certain circumstances

 This balance is struck in the Bill of Rights read together with the legislation authorising
searches and seizure
 Even though the Bill of Rights confers certain rights on individuals, it also authorises the
limitation of those rights
 According to s 36 of the Constitution, rights in the Bill of Rights may be limited by law of
general application, provided that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom

 Search and seizure will therefore be constitutional if it’s authorised by law of general
application, such as the legislation contained in the CPA, which in itself restricts the
circumstances in which a search may be conducted and which indicates how it must be
conducted
 These restrictions guarantee that searches will be regarded as reasonable and justifiable in
an open and democratic society
 In addition, the SAPS formulated a National Instruction on Search and Seizure to
ensure that members act in accordance with the provisions of empowering legislation
when they conduct searches

4.2. General provisions regarding search and seizure

 For the purpose of this discussion, a ‘search’ may be regarded as ‘any act whereby a
person, container or premises is visually or physically examined with the object of
establishing whether an article is in, on, or upon such person, container or premises
 It was held that ‘seize’ encompassed both the act of taking possession of the article,
as well as the subsequent detention thereof.

4.2.1. Authorisation to search and seize

 Apart from the CPA, there are various statutory provisions that confer authority to enter
premises, search persons, containers or premises, and seize and dispose of articles, as well
as provisions providing for the forfeiture of articles
 Section 19 of the CPA states that the CPA doesn’t detract from, or lessen, the powers
conferred by other laws
 Therefore, any other law that confers power to search and seize co-exists with the CPA and
isn’t repealed by it

 However, s 6(5) of the Business Act expressly excludes the provisions on search and
seizure in the CPA from being applicable to seizure of anything which is suspected of
being concerned with the commission of an offence relating to the carrying on of the
business of a street vendor, pedlar or hawker; or which may afford evidence of the
suspected commission thereof, or suspected of being intended for use in the commission of
such an offence
 A police official may therefore not rely on the provisions of the CPA to search the stalls of
street vendors and seize their goods
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4.2.2. Search to be executed in a decent and orderly manner

 Firstly, a search must always be conducted in a decent and orderly manner
 This requirement, contained in s 29 of the CPA, is consistent with the provisions of the
Constitution:
o regard should be given to the right to dignity and to be treated in a humane manner
 Police officials should therefore not cause unnecessary disorder or damage during a search
 It was found that decency and order also require that a warrant must be addressed to a
named police official

 Secondly, linked to the first requirement, s 29 explicitly provides that a male may not search
a female
 Although it doesn’t state that a female may not search a male, it’s submitted that, in order to
give true content to the aforementioned constitutional rights of every person, it should be
interpreted to mean that a woman may not search a man
 If a police official of the same sex as the person who’s to be searched isn’t available, the
police official may designate a person of the same sex as the person to be searched, to
conduct the search
 It’s therefore advisable not to search a person of the opposite sex, even if the parent
consents

4.2.3. Articles that may be seized by the state

 Section 20 of the CPA provides for the type of articles that may be seized by the state
 This section itself doesn’t authorise the search for any article, but prescribes the type of
article that may be seized when a search in terms of another section of the CPA takes place
 However, if during the performance of his/her functions, a police official notices an article
listed in s 20 in plain view and no search is necessary to find it, he/she may seize the article
in terms of this section

 The following three categories of articles may be seized by the state (and, accordingly, by
police officials who act on behalf of the state):

(a) Anything that’s concerned in, or is on reasonable grounds believed to be concerned

in, the commission or suspected commission of an offence whether within South
Africa or elsewhere

 Section 20 defines ‘anything’ as an article

 This is a wide term that would include items such as money and documents
 However, an exception exists in respect of privileged documents:
o such documents may not be seized when the holder of the privilege hasn’t consented to
disclosure of the documentation

 The phrase ‘believed to be concerned’ is equally wide and it should be interpreted

restrictively, as seizure infringes the personal freedom of a person
 Accordingly, the following meaning should be used to determine whether a thing was
believed to be ‘concerned’ in the commission of a crime:
o an object involved in the commission of an offence and which is reasonably required to
prove the offence, or which would probably be forfeited to the state
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 ‘Reasonable grounds’ entails an objective test, thereby implying that all the available facts
should be considered without taking personal prejudices into account
 The National Instruction suggests the following approach by police officials to determine
whether ‘reasonable grounds to believe’ exist:
o he/she must really believe it;
o the belief or suspicion must be based on certain facts or grounds from which an inference
or conclusion has been drawn; and
o any reasonable person would’ve drawn the same conclusion from those facts

 The offence could be one committed in South Africa or ‘elsewhere’

 This means that the offence could’ve been committed in any country, therefore anywhere

(b) Anything that may afford evidence of the commission or suspected commission of
an offence, whether such offence was committed in South Africa or elsewhere

 This paragraph may overlap with para (a) as some articles that ‘may afford evidence’ could
also have been ‘concerned’ in the commission of an offence
 The following examples will illustrate this:
o When a police official finds that the engine and chassis numbers of a motor vehicle have
been tampered with, sufficient grounds would exist for a reasonable belief that the motor
vehicle had been stolen. The vehicle will then afford evidence of the commission or
suspected commission of the crime [s 20(b)]. Section 20(a) is also applicable, as the
vehicle is then also reasonably believed to have been concerned in the commission of a
crime.
o Marked money handed over in a police trap to the person being trapped (suspect) in an
illegal transaction (e.g. supplying liquor to a prohibited person) may be seized from the
suspect in terms of s 20(b) as it can provide evidence of the commission of the offence. In
addition, in terms of s 20(a), the money may be seized as it was also concerned in the
commission of the crime

(c) Anything that’s intended to be used or is on reasonable grounds believed to be

intended to be used in the commission of an offence

 Unlike the other paragraphs, s 20(c) doesn’t state where the offence must be intended to be
committed
 From the deliberate omission one may assume that the offence should be intended to be
committed only within South Africa
 A machine that can only be used to manufacture counterfeit money may, e.g. be seized in
terms of this subsection

4.3. Search with a warrant

4.3.1. General rule
 According to s 21 of the CPA, the general rule is that articles referred to in s 20 should be
seized with a search warrant
 The only exceptions to this are authorisation in terms of ss 22, 23, 24 and 25
 The reason for the requirement of prior authorisation is to ensure that before the search and
seizure operation takes place, the conflicting interests of the state and the individual are
assessed by an impartial arbiter to ensure that there’s no unwarranted intrusion of basic
human rights
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 Therefore, an independent, detached, ‘responsible officer’ is required in terms of this section

to make such an assessment

4.3.2. Warrant issued in terms of s 21 of the CPA

 Section 21 of the CPA provides for two instances where a search warrant may be issued:
o before the trial
o during the trial
 In addition, s 21 also prescribes certain formal requirements a search warrant has to comply
with

(a) Requirements for a valid search warrant issued before the trial
 Section 21(1)(a) states the following requirements for valid search warrant:

(i) The warrant must be issued by a magistrate or justice of the peace

 If a police official needs to obtain a search warrant and a magistrate isn’t available, a justice
of the peace should be approached, instead of conducting the search without a warrant
 Since a commissioned police officer is a justice of the peace, a police official with the rank of
Lieutenant or a higher rank is empowered to issue a search warrant
 If a magistrate isn’t available, a commissioned officer must be approached to issue a search
warrant
 However, it’s advisable, except in exceptional circumstances, to have the warrant issued by
a commissioned police officer who isn’t directly involved in the case, to ensure that the
warrant is issued by an impartial, independent, detached and neutral officer

(ii) Information on oath must be given to the magistrate or justice of the peace

 The information may be given verbally or in writing

 However, in order to facilitate proving what information was provided to the magistrate or
justice of the peace, it’s recommended that the information must always be provided in
written form
 An affidavit made by a police official would qualify as information on oath as required by this
section

 It’s important to note that hearsay evidence may be regarded as ‘information’ for the
purposes of s 21(1)(a)
 Therefore, a police official may make an affidavit in which hearsay evidence is used (e.g.
information from an informer), if the police official is of the opinion that the hearsay evidence
is true and/or correct
 It’s preferable for the police official to confirm the information received from an informer or an
anonymous person before applying for the warrant on account thereof

(iii) The information on oath must indicate reasonable grounds for believing that an
article is referred to in s 20 is in the possession or under the control of any person,
or upon or at any premises within the area of jurisdiction of the person who’s
approached with the application
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 It was held that the applicant for a warrant must make full and objective disclosure of all
material facts when applying for the search warrant

 It’s also advisable to state the address of the premises concerned for the magistrate to verify
that it’s in his/her area of jurisdiction
 If no address is available, the location should be described, e.g. the second shack in the
third row from the northern fence in a particular squatter camp
 It should be noted that the jurisdiction of a commissioned police officer includes the whole
country

(iv) The magistrate or justice of the peace must issue a warrant only if it appears to
him/her from the information on oath that there are reasonable grounds for believing
that the circumstances mentioned in (iii) exist

 The police official applying for the search warrant has to ensure that the information on oath
contains facts from which an inference can be drawn that reasonable grounds exist that an
article mentioned in s 20 is in the area of jurisdiction of the person requested to issue the
search warrant

(b) A search warrant issued during the trial

 Section 21(1)(b) provides that a search warrant may be issued during the course of criminal
proceedings by a judge or judicial officer (i.e. the presiding officer) if it appears to him/her
that an article, which is referred to in s 20, is in the possession of or under the control of any
person or upon or at any premises, and that it’s required as evidence at the criminal
proceedings

(c) Content of a search warrant

According to s 21(2), a police official should be authorised by the search warrant to –
 seize particular articles; and
 search any person identified in the warrant, or to enter and search any premises identified
in the warrant and to search any person found on or at such premises.

 Section 13(5) of the Police Service Act provides that every member is competent to execute
any warrant, whether granted to him/her or to any other member
 A warrant that authorises private individuals to search premises is invalid

 The Supreme Court of Appeal identified two criteria for validity that will apply to all warrants
for search and seizure, namely the warrant must be intelligible or capable of being
understood and it must also authorise no more than is permitted by the authorising statute

 Furthermore, the Constitutional Court held that the common-law principle of intelligibility
requires search warrants issued under s 21 of the CPA to specify the offences in respect of
which they’re issued
 A valid search warrant must therefore, in a reasonably intelligible manner –
(a) state the statutory provision in terms of which it’s issued;
(b) identify the searcher;
(c) clearly mention the authority it confers upon the searcher;
(d) identify the person, container or premises to be searched;
(e) describe the article to be searched for and seized, with sufficient particularity; and
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(f) specify the offence which triggered the criminal investigation and name the suspected
offender

 Through the years our courts have laid down the following principles concerning the content,
interpretation and execution of a search warrant:
o Every article doesn’t have to be described in detail. It’s sufficient if reasonably clear
descriptions are given. Categories or classes of articles may be identified.
o A search warrant that authorises the seizure of ‘documents’ is adequate authorisation to
seize ‘books’
o The descriptions of articles in the warrant mustn’t be too general. The person who’s
executing the warrant must be able to determine with ‘reasonable certainty’ what has to
be seized
o The warrant should describe the premises to be searched in a manner that will enable the
official who was authorised to conduct the search to identify it. Absolute perfection in
description wasn’t required. Therefore, a technically wrong address didn’t invalidate a
warrant if it otherwise described the premises with sufficient particularly so that the police
could ascertain and identify the place to be searched
o A warrant must be constructed with reasonable strictness and in accordance with its
express wording, and the search and seizure must be carried out in the least intrusive and
disruptive manner possible
o Because of the great danger of misuse in the exercise of search warrants the courts will
examine their validity with cautious regard for the rights to privacy and property. If the
warrant is too general, or if its terms go beyond what’s permitted in the authorising
statute, it will be set aside
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(d) Issuing and execution of search warrants

 Section 21(3)(b) provides for a search warrant to be issued on any day, thus including
weekends and public holidays

The search warrant will remain effective until it’s –

 executed (it may only be executed once); or
 cancelled by the person who issued it or, if that person isn’t available, by a person with the
same authority

 As a rule, the search warrant should be executed during the day

 The exception is when the person who issues the warrant in writing authorises the execution
of the warrant at night
 Where a search commenced during daytime but was interrupted when the police official had
to fetch certain equipment and continued it after night-fall, the court held that such
continuation didn’t constitute a second unauthorised search

(e) Handing over of copy

 According to s 21(4), after executing a warrant, a police official must hand a copy of the
warrant to any person whose rights were affected by the search and seizure, if the person
concerned requests that a copy be handed to him/her

The following practical procedure is prescribed by para 7(3) of N1 2/2002:

 A copy of the warrant should always be available so that this can be shown to all persons
who will be affected by the search and seizure before the search starts;
 If the person concerned is present during the search, the copy should be handed to
him/her;
 If no person whose rights have been affected is present during the search, the copy of the
warrant must be left in a prominent place

4.3.3. Warrant issued in terms of s 25 of the CPA

 A search warrant may also be issued in terms of s 25 of the CPA
 Unlike s 21, where the application is based on the suspected presence of an article
mentioned in s 20, the reason for obtaining a warrant in terms of s 25 is linked either to state
security, or to the commission of an offence

(a) Application when the state security is endangered

 According to s 25(1)(a), the following requirements must be satisfied for such an application:
o it must be made to a magistrate or justice of peace;
o the application must contain information on oath (written or verbal);
o the information on oath must indicate that there are reasonable grounds for believing that
the internal security of the Republic or the maintenance of law and order is likely to be
endangered by, or as a result of, any meeting which is being held or is to be held in/on
any premises within the area of jurisdiction of the magistrate or justice of the peace;
o The magistrate or justice of the peace may issue a warrant only if it appears to him/her
(from the information on oath) that there are reasonable grounds for believing that the
circumstances mentioned above exist.

(b) Application when an offence is committed

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 The requirements that must be satisfied for an application in terms of s 25(1)(b) to succeed
are the following:
o it must be made to the magistrate or justice of the peace;
o information on oath (written or verbal) must be presented;
o the information on oath must indicate that there are reasonable grounds for believing that
an offence are presently being made or are likely to be made, in or on any premises
within the area of jurisdiction of the magistrate or justice of the peace

(c) Authorised conduct

 In any one of the above situations, a magistrate or justice of the peace may issue the
warrant authorising the police official to enter the relevant premises at any reasonable time
for the following purposes:
o carrying out investigations and taking steps that the police official subjectively believes to
be necessary for state security, or maintenance of law and order, or the prevention of an
offence;
o searching the premises or any person on the premises for any article referred to in s 20
which the police official on reasonable grounds suspects (objective test) to be on the
premises or person;
o seizing any article mentioned in s 20.

(d) Formal requirements

 A warrant issued in terms of s 25 of the CPA may be issued on any day (including weekends
and public holidays)
 The search warrant will remain effective until it’s executed or cancelled by the person who
issued it or, if that person isn’t available, by a person with the same authority (thus, any
magistrate or justice of the peace)

4.4. Search without a warrant

4.4.1. Search with consent
 Section 22(a) of the CPA provides that in order to seize any article referred to in s 20, a
police official may search without a warrant any person, container or premises, if the person
concerned consents, or if the person who may consent to the search of the
container/premises, consents to the search and seizure

 The following should be kept in mind regarding search with consent:

o In S v Motloutsi (above) a person who was leasing the property (lessee) sublet a room to
the accused. The court held that the consent from the lessee didn’t amount to valid
consent in terms of s 22(a) because the lessee didn’t have the accused’s property in his
custody or under his control. The only person who could’ve consented was the accused.
Therefore, the search and seizure was unlawful.
o It has been suggested that the police official should inform the person concerned of the
purpose of the search. E.g. ‘I am looking for a stolen wallet. Do you mind if I search you?’
o Where the suspect wasn’t specifically asked to consent, and therefore didn’t specifically
consent, the courts have held that quick action taken by the suspect to recover the article
that was seized confirmed that consent in terms of s 22(a) wasn’t obtained
o In S c Mayekiso and Andere, accused 1 and accused 3 shared a home. The police
obtained consent from accused 1 to enter the shared home and carried out a search. A
bag with a pistol that belonged to accused 3 was seized. The court held that accused 1
had no authority from accused 3 to permit a search of his property in the house.
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Therefore, there was no valid authority to search and seize accused 3’s bag, since
consent in terms of s 22(a) hadn’t been obtained from accused 3.
o Consent must be voluntary; thus, no undue influence or duress must be exerted. It’s
allowed to tell a person that unless he/she consents to the search, a search warrant will
be obtained, and the search will then be conducted without consent. However, this will
only be in order if the police official has reason to believe that a search warrant will be
issued to him/her if he/she should apply for it. If the police official doesn’t have reason to
believe this, such a ‘threat’ will amount to undue influence and the consent given as a
result thereof won’t be regarded as valid consent.
o It was held that a mere request by the police to search is insufficient; the person
concerned should be informed of the purpose of the search. Furthermore, the court held
that a random search by the police without objective grounds for conducting it’s contrary
to the norms in an open and democratic society.
o Consent won’t validate any unlawful search warrant.

4.4.2. Search under urgent circumstances

(a) Section 22(b) of the CPA
 This section provides that in order to seize any article referred to in s 20, a police official
may search any person or container or premises without a search warrant if he/she
believes on reasonable grounds that –
o a search warrant will be issued to him/her under s 21(1)(a) if he/she were to apply for
a warrant – meaning that if there was time, and a warrant was applied for, it would’ve
been issued. The police official must therefore at least have information under oath or be
prepared to give information under oath him/herself; and
o the delay in obtaining the warrant would defeat the object of the search. The object
of the search will be defeated if the articles which form the object of the search can be
destroyed, disposed of or removed

(b) Practical application of s 22(b) of the CPA

 The following examples from case law illustrate the practical application of s 22(b):
o When a suspect attempts to swallow the evidence, e.g. money, this will constitute
reasonable grounds for believing that the delay in obtaining the warrant would defeat the
object of the search.
o In a case dealing with illegal gambling, where the police official believed, as a result of
experience, that gambling machines could easily be changed to amusement machines, a
search in terms of s 22(b) was justified.
o Search and seizure in terms of s 22(b) don’t authorise a police official to close down the
business of a suspect. Authorisation to that effect must be obtained.
o When acting on information that the suspect is in possession of stolen vehicles, a police
official who finds that the engine and chassis numbers have been tampered with would’ve
sufficient grounds for a reasonable belief that the motor vehicle had been stolen. This,
together with the fact that the suspect was unable to provide full particulars of the people
from whom he had purchased the vehicles, would justify a search and seizure without a
warrant in terms of s 22(b), since the police official feared that if he left to obtain a
warrant, the vehicles would’ve ‘disappeared’.
o If a magistrate isn’t available to issue a warrant in terms of s 21, a justice of the peace
must be approached. The unavailability of a magistrate doesn’t render action in terms of s
22(b) lawful.
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 The search was unlawful for the following reasons:

o no reasons or explanations were given to the court as to why a search warrant wasn’t
obtained;
o the delay in obtaining a warrant wouldn’t have defeated the object of the search as the
suspect had been in undisturbed possession of the article (a motor vehicle) for almost two
years and the vehicle was being used every day by the suspect’s wife;
o the police had arrived at the suspect’s home in the middle of the night without prior
notification;
o there was no reason to believe that the suspect was about to dispose of the vehicle.

(c) Additional practical guidelines

 The section doesn’t mention when the search and seizure must be executed, which implies
that it may be executed during the night

 The first step that police officials should take when intending to search or seize is to apply
for a search warrant
 However, in urgent cases, if possible, the police official should try to obtain the consent of
the relevant person since search in terms of s 22(a) is easier to prove the requirement of
reasonable grounds
 If the police official fails to obtain the consent that’s required in terms of s 22(a), s 22(b) may
be used, provided the requirements, mentioned above, have been satisfied.

(d) Section 25(3) of the CPA

 Section 25(3) contains provisions that are similar to those in s 22(b), in instances where the
state security is endangered

A police official may act in terms of s 25(1)(i), (ii) or (iii) without a search warrant if he/she on
reasonable grounds believes that –
 a warrant will be issued to him/her under s 25(1) if he/she applies for one; and
 the delay in obtaining the warrant would defeat the object of the search.

 It’s submitted that s 25 must be executed with caution as it could infringe upon the
constitutional rights to dignity, privacy, freedom of expression, freedom of religion political
rights and freedom of association

4.4.3. Search of arrested person

 Section 23 of the CPA authorises the search without a warrant of an arrested person, and
the seizure of articles found
o On arresting any person, a peace officer (which includes a police official) may search the
arrested person and seize any article falling under s 20 which is found in the possession,
in the custody or under the control of the arrested person. If the arrest was made by a
peace officer who isn’t a police official, he/she must deliver the article to a police official.
o ‘In the custody or under control’ doesn’t only refer to items on the person, but would
include articles found in a motor vehicle, flat or premises in or on which the arrested
person is. E.g. if a person is arrested at his/her home, the house may be searched; but if
a person is arrested on the street, his/her home may not be searched. However, anything
under the arrested person’s immediate control may be seized. It was held that where a
person was arrested at a café and waste business, seizure of articles found in a
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storeroom on the property and in the backyard of the premises was justified in terms of s
23.
o If the person making the arrest isn’t a peace officer, he/she may only seize (such a
person has no power to search) any article referred to in s 20, which is in the possession
of or in the custody or under the control of the person that’s arrested. The arrestor must
subsequently hand the article over to a police official.

 Section 23(2) makes provision for the placing in safe custody of an object found on the
arrested person that may be used to cause bodily harm
 Such an article must be returned to the arrested person on release

4.5. Search in terms of s 13 of the Police Service Act

4.5.1. Search near borders
 According to s 13(6) of the Police Service Act, a police official may search, without a search
warrant, any person, premises, other place, vehicle, vessel or aircraft or any receptacle, and
seize any article that’s found and may lawfully be seized
 The aim of such a search is to exercise control over the illegal movement of people or goods
across the borders of South Africa

Such searches may be conducted –

 at any place in South Africa within 10 km, or any reasonable distance, from any border
between South Africa and any foreign state;
 in the territorial waters of South Africa;
 inside South Africa within 10 km or any reasonable distance from such territorial waters; or
 at any airport or within any reasonable distance from such airport.

4.5.2. Search in an area that’s cordoned off

 Section 13(7)(a) of the Police Service Act provides that where it’s reasonable in the
circumstances in order to restore public order or to ensure the safety of the public in a
particular area, the National or Provincial Commissioner may in writing authorise that
the particular area (or any part of it) be cordoned off
 According to s 13(7)(c), once a police official receives the aforementioned authorisation,
he/she may cordon off the area concerned

 A police official may, without a search warrant, search any person, premises, or vehicle, or
any receptable or object of any nature, in that area
 The police official is authorised to seize any article referred to in s 20 of the CPA, which is in
the possession of the person searched, or in the area or part of it

However, this search or seizure may only be conducted in the following circumstances:
 where it’s reasonably necessary in order to achieve the object that’s specified in the
written authorisation; and
 provided that the police official executing the search exhibits (on demand), to a person
whose rights are or have been affected by the search and seizure, a copy of the written
authorisation

4.5.3. Roadblocks and checkpoints

(a) Written authorisation
Where it’s reasonable in the circumstances in order to exercise a power or perform a
function referred to in the Constitution, s 13(8)(a) of the Police Service Act provides that the
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National or a Provincial Commissioner may authorise a police official in writing to set up –

 a roadblock(s) on any public road in a particular area; or
 a checkpoint(s) at any public place in a particular area

 Steytler suggests that commissioners should indicate ‘specific legitimate goals’ in their
authorisation, e.g. ‘search for drugs’
 The relevant places for the roadblock must also be described with the requisite degree of
precision

 Section 13(8)(c) empowers the police official who’s so authorised to set up such a roadblock
or checkpoint, as the case may be

According to s 13(8)(g)(i), a police official who sets up such a roadblock or checkpoint may –
 search without a warrant any person who, or vehicle that, is stopped or any receptable or
object of whatever nature that’s in the possession of such person or in, on or attached to
such vehicle; and
 seize any article referred to in s 20 of the CPA, which is found in the possession of the
person or in, on or attached to the receptacle or vehicle

 The police official must, on the demand of any person whose rights are or have been
affected by the search and seizure, exhibit a copy of the written authorisation to hold the
roadblock or checkpoint
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(b) Exception to written authorisation

 According to s 13(8)(d) of the Police Service Act, a police official may set up a roadblock for
the purpose of seizing certain articles without written authorisation from the National or a
Provincial Commissioner, if such a police official has reasonable suspicion to believe that –
o there’s an object which is concerned in, or may afford evidence of, or is intended to be
used in the commission of an offence listed in Schedule 1 to the CPA, and
o such object is present in or is about to be transported in a motor vehicle in a particular
area, and
o a search warrant will be issued to him/her under s 21(1)(a) of the CPA if he/she has
reason to believe that the object will be transported in a specific vehicle and he/she has
applied for such warrant, and
o the delay that will be caused by first obtaining the authorisation in terms of s 13(8)(a) will
defeat the object of the roadblock

 In these circumstances, a roadblock may be set up by such a police official on any public
road or roads in that area, in order to determine whether a vehicle is in fact carrying such an
object

In terms of s 13(8)(g)(ii), if the requirements of sub-s (8)(d) are satisfied, and a roadblock is
set up, the police official may, without a warrant –
 search any person or vehicle that is stopped and any receptacle or object of any nature in,
on or attached to the vehicle; and
 seize any article referred to in s 20 of the CPA, that’s found in, on or attached to the
receptacle or vehicle

 The police official is obliged, upon the demand of any person whose rights are or have been
affected by such a roadblock, to inform the person of the reason for setting up the roadblock

4.6. Use of force when search is resisted

 Section 27 of the CPA empowers a police official who’s entitled to search a person or
premises, or enter premises, to use force to overcome any resistance against such entry
 The following requirements must, however, be satisfied:
o The police official must be lawfully entitled to search any person or premises or
lawfully enter any premises. Such a police official must therefore be authorised in terms
of the CPA or other legislation.
o Only such force as may be reasonably necessary to overcome any resistance
against the search or entry may be used. The amount of force used may include the
breaking of any door or window of the premises if it’s reasonably necessary to do so.
However, according to s 13(3)(b) of the Police Service Act, a police official may use ‘only
the minimum force which is reasonable in the circumstances.’ Note also that in order to be
reasonable, the force used must be proportional in the circumstances.
o The police official must first audibly demand admission to the premises (it’s advisable
to ensure that this is done in a loud voice), and state the reason (purpose) for which
he/she wants to enter the premises.

 In terms of s 27(2), the last-mentioned requirement doesn’t apply if the police official is on
reasonable grounds of the opinion that any article, which is to be searched for, may be
destroyed or disposed of if the requirement is first complied with
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o E.g. where drugs can be flushed down a toilet if the person is ‘warned’ that the police are
on their way

 If s 27(2) isn’t applicable, e.g. when the only reason for non-compliance with this
requirement is that the police official is in a hurry, such official won’t be able to successfully
rely on s 27 as authorisation to enter the premises

 If no one’s present on the premises, entry in terms of this section would depend on the
circumstances of the case
 Factors that would be taken into consideration are:
o the seriousness of the crime;
o the urgency of the search, seizure or entry;
o the extent of the period one will have to wait for the occupier to return; and
o the nature of the articles to be searched or seized

4.7. Statutory liability for wrongful search

 According to s 28(1) of the CPA, a police official will be guilty of an offence while
exercising his/her powers to search and seize in terms of the CPA, if –
o he/she acts contrary to the authorisation of a search warrant issued in terms of s
21(1) or 25(1). This will, e.g. be the case where the police official doesn’t limit his/her
search to the articles mentioned in the search warrant;
o without being authorised by the law, he/she searches any person, container or
premises, or seize any article, or performs any act contemplated in paras (i), (ii) or (iii) of s
25(1). A police official will therefore be committing an offence if he/she is searching a
person who hasn’t been arrested, without his/her consent and without reasonably
believing that he/she will obtain a search warrant if he/she applies for one

 A police official convicted of one of the above offences shall be liable on conviction to a fine
or to imprisonment for a period not exceeding six months

 In addition to the sentence, an order in terms of s 28(2) may also be made against the police
official
 This subsection refers to the situation where ‘any person’ (e.g. a police official) falsely gives
information on oath in order to obtain a search warrant, and the person is subsequently
convicted of perjury
 Any person who has suffered damage as a result of this may apply to court for
compensation in terms of s 300 of the CPA
 The prosecutor, on instruction from the person concerned, may also make such an
application
 It’s important to note that in addition to criminal liability in terms of s 28(1) and liability
in terms of s 28(2), police officials may also be held liable if delictual claims for
damages are instituted against the police officials concerned

4.8. Disposal of seized articles

4.8.1. Disposal of articles after seizure
 Section 30 of the CPA prescribes the manner in which articles that have been seized in
terms of s 20, or delivered to a police official, should be disposed of
 These articles are divided into three categories:
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(a) Perishable articles

 These articles are to be disposed of in the manner that’s required by the circumstances
 Due regard must be given to the interests of the person whose article is being disposed of

 When the article is perishable and the owner can’t be located in time to save it from decay,
portions should be retained for identification
o E.g. if the article is a dead cow, the hide, skin or head with earmarks may be retained
o Where the article is a dead chicken, the entire carcass doesn’t have to be retained as
evidence – skin, head, feet or feathers would be reasonable sufficient

(b) Stolen property or property that’s suspected of being stolen

 In this case, the police official may deliver the article to the person from whom the police
official believes it was stolen, provided that the consent of the person from whom it
was seized, is required
 The person to whom the article is delivered must be warned to keep the article available in
order for it to be produced at the criminal proceedings
 However, note that consent may amount to an admission of guilt and therefore the
‘suspected thief’ may refuse consent
 If the requirements of this section aren’t met, s 30(c) should be used

(c) Articles not falling under (a) or (b)

 Any article that isn’t disposed of in terms of s 30(a) or (b), that is, if it isn’t a perishable
article, stolen or suspected to be stolen, or if consent couldn’t be obtained from the accused
thief to deliver it to the owner from whom it was stolen, or if it’s uncertain who the owner is,
then s 30(c) applies

In terms of s 30(c), the police official must –

 give it a distinctive identification mark (‘tag it’), and
 retain it in police custody or make other arrangements as the circumstances may require
with regard to the custody

 Magazines, e.g. don’t fall under s 30(a)

 Therefore, if they’re not stolen, a distinctive mark must be attached to it and it should be
retained in police custody
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4.8.2. Disposal of article referred to in s 30(c) where no criminal proceedings are

instituted or where it’s not required at criminal proceedings
 In a case where a seized article (exhibit) isn’t needed as evidence or for purposes of an
order of the court, the article must be returned to the person from whom it was seized, if
that person may lawfully possess it, according to s 31(1)(a) of the CPA
 If that person may not lawfully possess it, it must be returned to the person who may lawfully
possess it

 The state bears the onus of proving on a balance of probabilities that the person from whom
it was seized isn’t entitled lawfully to possess such article
 It was decided that magazines that weren’t banned (and possession thereof was therefore
not unlawful), should be returned to the person from whom it was seized if that person may
lawfully possess it

 Section 31(2) states that the person who may lawfully possess the article must be notified in
writing by registered post at his/her last known address that he/she may take possession of
the article
 The aforementioned person has 30 days from the date of notification to take possession of
the article
 If possession isn’t taken within this period of time, the article will be forfeited to the state

The article will be forfeited to the state in the following situations mentioned in s 31(1)(b):
 if no person may lawfully possess that article;
 if the police official (investigating officer) has no reasonable knowledge of any person who
may lawfully possess the article

4.8.3. Disposal of article where criminal proceedings are instituted and an admission of
guilt fine is paid
 If criminal proceedings are instituted and the accused admits his/her guilt, s 32 of the CPA
states that any article referred to in s 30(c) must be returned to the person from whom it
was seized if the person may lawfully possess it
 If the person may not lawfully possess it, it must be returned to the person who may lawfully
possess it
 The lawful possessor must be notified as in s 31(2)

Such an article will be forfeited to the state if –

 no person may lawfully possess the article;
 the police official (investigating officer) has no reasonable knowledge of any person who
may lawfully possess the article;
 no criminal proceeding has been instituted in respect of the article seized. Section 31 will
then not apply to the aforementioned article, and it will be dealt with according to the
provisions of s 31 of the CPA.
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4.8.4. Article to be transferred to court for trial

 According to s 33 of the CPA, when an article referred to in s 30(c) is required at the criminal
proceedings to be used as evidence (exhibit), or for an order of the court, the investigating
officer must deliver the article to the clerk of the court where the criminal proceedings are
instituted
 However, if ‘by reason of the nature, bulk or value of the article in question, it’s impracticable
or undesirable that the article should be delivered to the clerk of the court’, the clerk of the
court may require the investigating officer to retain the article in police custody or in other
custody that may be determined by s 30(c)

 Section 33(1) doesn’t specify a time limit for the articles to be transferred to court
 It’s sufficient if the transfer takes place in time for the trial

4.8.5. Disposal of article after commencement of criminal proceedings

 At the conclusion of criminal proceedings, the presiding officer must make an order that an
article that was transferred to court as an exhibit –
o be returned to the person from whom it was seized if the person may lawfully possess it;
or
o be returned to any other person who’s legally entitled thereto; or
o if no person is legally entitled thereto, or if such person is unknown or can’t be traced, be
forfeited to the state

4.8.6. Forfeiture of article to the state

 Once an accused is convicted of an offence, the court may declare certain articles forfeited
to the state (without notifying anyone)
 Any of the following articles, if seized in terms of the CPA, may be declared forfeited to the
state in terms of s 35:
o Any weapon, instrument or article by means whereof the offence was committed or
which was used in the commission of the offence. Petrol isn’t considered as an
instrument. It should be noted that s 35(1)(a) provides for the removal of articles with
certain characteristics that facilitate the commission of a crime or make the commission
possible.
o If the offence is one that’s listed in Part 1 of Schedule 2, any vehicle, container or other
article that was used for the purpose of or in connection with the commission of
the offence, or for the conveyance or removal of the stolen property. If a vehicle was
used in a robbery, it can therefore be forfeited. However, a vehicle involved in a traffic
offence can’t be forfeited.

 When an accused is acquitted, a court must declare any article that’s forged, counterfeit, or
that may not lawfully be possessed by any person, forfeited to the state
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Chapter 15: Alternative methods of obtaining evidence and information

1. Introduction
read through the introduction

2. Admission, confession and pointing out

2.1. Introduction
 During the investigation of a crime, a person suspected of the commission of the offence
(accused person) often makes statements or declarations to the investigating officer
 Any of these statements may, often unbeknown to the accused, amount to either an
admission or a confession and, if dealt with correctly, may be very valuable in proving the
case against the accused
 However, if these statements aren’t dealt with correctly, the statements will be worthless as
evidence, since they won’t be admissible in court
 When in contact with accused persons, police officials must therefore always be
aware of the potential evidential value of statements made by these people

2.2. Evidential value of an admission, confession and pointing out

 An accused may be convicted of an offence solely on the grounds of a confession
he/she had made, provided that the confession is confirmed in a material respect, or the
offence is proved to have been committed by evidence other than the confession

 Once an accused makes a formal admission of a fact, the fact is no longer in issue
and the state therefore need not prove it
 A so-called pointing out made by an accused, e.g. of the place where stolen goods or the
weapon used to commit the crime is hidden, may also be of great assistance in the
investigation of a crime, as it may account to an admission by conduct

 An admission, a confession and a pointing out must each be admissible in court before they
can be relied on as evidence at the accused’s trial
 Therefore, certain admissibility requirements as stipulated in the Constitution and the CPA
first have to be met
 Although the constitutional admissibility requirements are the same for admissions,
confessions and pointing out, the requirements in terms of the CPA differ
 It’s therefore important to distinguish between the three types of evidence

2.3. Admissibility requirements according to the Constitution

 In terms of s 35(5) of the Constitution, evidence obtained in a manner which violates any
right in the Bill of Rights must be excluded from the trial if its admission would render the trial
unfair or otherwise be detrimental to the administration of justice
 If the constitutional rights of a person are therefore unlawfully infringed when
evidence is obtained, e.g. the accused was forced against his/her will to make an
incriminating statement, this evidence will probably be inadmissible at the trial
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 When an accused person makes a confession, admission or pointing out, the following
rights set out in the Constitution are especially relevant:
o Right to remain silent
o Right not to be compelled to make a confession or admission that could be used as
evidence against him/her
o Right to legal representation
o Right not to be compelled to give self-incriminating evidence to give self-incriminating
evidence

 Since admissions, confessions and pointing out usually arise from questioning, it’s very
important for police officials to be aware that they’re only allowed to question an
accused within reasonable limits
 These limits entail that a person who’s being questioned may not be forced in any way
to provide information, and that he/she must, before being questioned, be informed of
his/her constitutional rights – usually by means of a warning
 Note that the content of the warning will differ, depending on whether the person is a
suspect, an arrested person or an accused

 The Constitution also requires that a person who’s accused, detained or arrested must be
informed of the constitutional rights listed above, e.g. to legal representation, in a language
he/she understands
 Therefore, it’s vital for police officials to make sure that such a person is properly informed of
his/her rights before an admission or confession is taken from him/her
 These rights apply only to accused, detained and arrested persons
 A person who’s merely stopped and questioned, or who provides information voluntarily,
can’t rely on these rights

 The following practical examples are an illustration of the courts’ approach when dealing
with a confession and pointing out (Admissions don’t pose many practical problems)

2.3.1. Constitutional requirements regarding confessions

 According to case law, confessions are inadmissible in the following circumstances because
they don’t comply with constitutional requirements:
o An accused hasn’t been informed of his/her right to legal representation
o An accused hasn’t been advised of his/her right to legal representation before he/she
makes a statement, or is only advised while he/she makes the statement, even though
he/she was informed of his/her right to legal representation at the time of his/her arrest
o The rights to fair pre-trial procedures of a suspect who later becomes an accused haven’t
been respected
o A statement is taken from an accused when his/her legal representative isn’t present to
assist him/her
o An investigating officer has failed to inform the accused that a legal representative has
been appointed to defend him/her, that the representative is on his/her way to consult with
the accused and has requested that the accused shouldn’t make any statement. In this
circumstance, an accused’s decision to make a statement doesn’t amount to a waiver of
his/her rights since he/she hasn’t been fully informed of all the relevant facts and options
and his/her choice is therefore uninformed.
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o Based on false and misleading information, the police have obtained a judge’s consent to
monitor an accused’s telephone conversations. Any remarks made by accused persons
during monitored conversations about offences they may have committed don’t amount to
confessions
o An accused hasn’t been informed of his/her rights in each important pre-trial procedure –
he/she is entitled to legal assistance during each important pre-trial stage.

 However, in a case in which accused persons disputed the admissibility of incriminating

statements made on the grounds of misconduct by the police (including assault and undue
pressure), and only in passing suggested that they weren’t informed of their rights to legal
representation, the court held that this failure had had no effect on them and that the court
therefore had a discretion regarding the admission of the evidence as long as the admission
of it wouldn’t be detrimental to the administration of justice

2.3.2. Constitutional requirements regarding pointing out

 The following guidelines can be deduced from case law regarding the admissibility of a
pointing out:
o If a pointing out is done without the accused’s constitutional, rights being explained to
him/her, the pointing out might be inadmissible
o The accused must be informed not only that he/she isn’t compelled to point something
out, but also of the consequences of that pointing out and that evidence concerning it may
be used against him/her in a later trial
o The failure to inform an uninformed accused person that he/she can receive legal
representation at the state’s expense if he/she can’t afford legal aid him/herself will render
the pointing out inadmissible
o Where the police used standard printed questions to establish the free and voluntary
nature of a pointing out, the failure to make enquiries beyond the ambit of such questions
won’t necessarily render the pointing out inadmissible

2.4. Admissions
 An admission is a statement made by an accused that’s to his/her disadvantage
 The admission may be made by means of conduct or a statement and is a confirmation of a
prejudicial or unfavourable fact
 An admission therefore can’t contain a fact that’s to the advantage or in the favour of
the accused – it must be incriminating (prejudicial) to him/her
 The admission must also relate to a fact in dispute, which is admitted and is therefore
no longer in dispute
 For instance, an accused may admit that he/she shot the deceased, which means that the
state need not prove the conduct element in a charge of murder

2.4.1. Types of admissions

The following types of admissions can be identified:

 unintentional admission;
 formal admission;
 informal admission; and
 vicarious admission

(a) Unintentional admission

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 An accused may sometimes make a statement with the intention of defending or excusing
him/herself
 If the statement is to the disadvantage of the accused, it’s an admission
 This type of admission is always informal and may be made inside or outside the court

(b) Formal admission

 This type of admission is made before the court during the trial
 The fact admitted is deemed to be proved, and the state need not present evidence on
the admitted fact
 Section 220 of the CPA provides that an accused or his/her legal adviser may in criminal
proceedings admit a fact placed in issue and this admission will be accepted as sufficient
proof of that fact
 The presiding officer will then formally record such a fact
 The formal admission can be made at any time during the trial or plea stage
 If an admission is made during the plea stage, s 115(2)(b) of the CPA provides that the
presiding officer must ask the accused whether the admitted fact can be recorded as formal
admission
 If he/she consents, the admission is regarded as a formal one, and this has the same effect
as an admission made in terms of s 220

(c) Informal admission

 An informal admission is usually made outside of court (extra-judicially), but can also be
made inside the court
 However, the fact admitted is still in dispute
 The state therefore still has to prove the fact admitted
 The admission therefore provides evidential material only

Examples of informal admissions are as follows:

 During cross-examination, the accused or his/her legal representative may make certain
statements to witnesses. The legal representative may say: ‘The accused will allege…’.
This allegation may contain an informal admission that can be used to ascertain that the
accused was at the scene, for instance.
 If an accused refuses to answer a question or keeps silent on certain aspects which
he/she knows, and which form part of the elements of the crime, the silence may be
regarded as an admission by conduct.
 If an accused pleads guilty in terms of s 112(1) of the CPA and is questioned by the
presiding official, allegations he/she makes may also be regarded as admissions. If the
plea is then recorded as not guilty in terms of s 113 of the CPA, the allegations will remain
as informal admissions
 An accused may also make an informal admission outside of court, e.g. during a
statement to the police

(d) Vicarious admission

 A vicarious admission is made by a person other than the one who’s prejudiced by it, i.e. an
admission by someone other than the accused
 Generally, admissions are made only by an accused person him/herself
 However, there are exceptions, e.g. when the person making the admission is expressly or
implicitly authorised to do so

Examples in this regard are as follows:

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 An accused may authorise his/her legal representative to make admissions on his/her

behalf
 An admission by one partner against another in a partnership is admissible

2.4.2. Admissibility requirements of an admission in terms of the CPA

 Section 219A of the CPA contains the admissibility requirements of an admission
 This section provides that evidence from an extra-judicial admission is admissible
against the declarant if the admission was made voluntarily
 This section can be divided into primary and secondary requirements:

(a) Primary requirements

The two primary requirements are that an admission –
 must be made by the accused or must be accepted by him/her; and
 must be made voluntarily

 The emphasis here is on free will

 No promises or threats may be made
 The use of threats may include physical violence and any form of emotional pressure
 The question to be asked is whether these forms of pressure could cause the person to
make the statement
o Was the accused’s free will involved?
 To exclude voluntariness, a person in a position of authority must have applied the pressure
 This includes any person who may have an influence on the course of the prosecution

(b) Secondary requirements

 The secondary requirements deal with the submission procedures of a written
admission to the court without any evidence being presented
 These can be referred to as the formal requirements

The secondary requirements are that –

 the admission must be made to a magistrate;
 the admission must be reduced to writing by a magistrate or must be confirmed and put
in writing in a magistrate’s presence;
 the name of the declarant must correspond to that of the accused in the document;
 a certificate of the interpreter must be provided stating that he/she has interpreted truly
and correctly and to the best of his/her ability; and
 it must appear from the document that the admission was made voluntarily

 If all these requirements have been met, the admission is admissible as evidence in
court by mere production
 The burden of proof is on the state to prove that the admission was made voluntarily
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2.4.3. Admission by a child in conflict with the law

 Although the Child Justice Act (CJA) doesn’t have special provisions regarding admissions
made by children, guidelines in this regard were nevertheless formulated by the SAPS and
included in the National Instruction on Children in Conflict with the Law

 According to para 22 of the National Instruction police officials are obliged to inform a child
who makes an admission, of his/her right to silence, right to consult with a legal
representative and right to be assisted by his/her parent or guardian or an appropriate adult

 If the child chooses to first consult with his/her legal representative or to have his/her
parent or guardian or an appropriate adult present, the police official must –
(a) establish who the legal representative is, or the whereabouts of the relevant adult;
(b) contact the legal representative and/or relevant adult and inform them that the
child wishes to consult and/or have him/her present before making any statement or
answering any question; and
(c) record the above-mentioned steps that were taken to inform the legal
representative or relevant adult in the Occurrence Book or, if he/she isn’t at the police
station, in his/her Pocketbook

 If the child indicates that he/she doesn’t wish to have his/her legal representative or relevant
adult present, the police official must make an entry to that effect in the Occurrence Book or
his/her Pocketbook and ask the child to sign the entry to confirm the correctness thereof

2.5. Confessions
 A confession is an unambiguous, clear and open admission of guilt
 The accused makes a statement admitting all the elements of the crime
 If the confession is made in court, it’ll amount to a plea of guilty
 All possible grounds of justification must also be excluded
 The statement must be read in its entirety and words given their ordinary meaning
 The intention in making the confession isn’t important

2.5.1. Distinction between admissions and confessions

 In effect, a confession can be regarded as an admission of each fact in issue, i.e. each
element of the crime
 The reason for the distinction between admissions and confessions is that different
admissibility requirements apply
 Since an accused can be found guilty on the strength of a confession alone, once it’s
confirmed in a material respect, or if evidence other than the confession proves that the
crime was in fact committed, the admissibility requirements for a confession are
naturally much stricter
 To determine whether a statement is a confession or an admission, one must consider the
definitions of both, as well as that of the crime to which the statement relates

 A confession to one crime may sometimes also serve as an admission to another crime
 It’s therefore important to bear in mind all the elements of the particular crime when
assessing the status of a statement
 Surrounding circumstances can also be taken into consideration in order to establish the
nature of a statement
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 The admissibility requirements don’t play a role in determining whether a statement is

a confession or an admission – only the various definitions
 The different admissibility requirements only come into play once the type of statement has
been established
 An inadmissible confession (e.g. made to a peace officer without the necessary
confirmation) can’t be used as an admission

2.5.2. Admissibility requirements of confessions in terms of the CPA

 Section 217 of the CPA stipulates the requirements for the admissibility of a confession
 It provides that evidence of a confession by a person relating to the commission of a
crime is admissible against that person in criminal proceedings, provided the
confession is made freely and voluntarily and by the person him/herself in his/her sound and
sober senses and without undue influence
 A confession made to a peace officer who isn’t a justice of the peace or a magistrate, isn’t
admissible, unless it’s confirmed in the presence of a magistrate or justice of the peace and
put in writing

 Section 217(3) of the CPA provides that a confession that’s inadmissible may become
admissible in certain circumstances
 This will be the case where the accused him/herself presents evidence during cross-
examination of a statement he/she made as part of the confession
 However, this evidence must be favourable to the accused
 This is also sometimes referred to as an elicited confession
 The whole confession will then be admissible

(a) Primary admissibility requirements

The four primary requirements for admissibility of a confession are as follows:
 the confession must be made by the accused him/herself;
 the accused must make the confession freely and voluntarily;
 the accused must be in his/her sound and sober senses; and
 the confession must be made without undue influence

(i) The confession must be made by the accused him/herself

 No person may make a confession on behalf of the accused, although the accused may
accept the confession of another person unambiguously and unconditionally as his/her own
 There should be no doubt that the accused accepts everything contained in the
statement and reconciles him/herself with it

(ii) The accused must make the confession freely and voluntarily
 Most confessions are disputed in court on the grounds that they weren’t made freely and
voluntarily
 Accused persons often allege that they were assaulted or threatened by the police to
make the statement
 The words ‘freely and voluntarily’ are given their ordinary interpretation and generally mean
that the statement mustn’t be obtained by any threat or any promise made by a person
in a position of authority (i.e. any person involved in, or having an influence on, the
proceedings)
 Therefore, this indicates any form of influence that could play a role in causing the accused
to break his/her silence.
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 The following are important issues regarding the voluntary or free-will nature of confessions:
o where the confession was made by an accused who had been subjected to improper
questioning and confrontation, it’s inadmissible;
o where the accused had been detained for a period, his/her detention and its surrounding
circumstances could’ve influenced the voluntary and free-will aspect of the statement;
o where the questioning procedure had been continuous, and the interrogation had been
prolonged. Prolonged interrogation serves as a ground for exclusion of the confession if it
can be proved that undue pressure was placed on the accused to make the statement.
However, if the accused is given sufficient periods between questioning to rest and
consider his/her situation, this defence shouldn’t succeed;
o where the accused was told that he/she would be kept in custody if he/she didn’t co-
operate but wouldn’t be prosecuted once he/she had co=operated. This could also be
construed as a subtle form of pressure;
o where the accused was told that he/she could act as a state witness if he/she told the
truth, and that he/she wouldn’t be prosecuted. This would constitute a form of undue
influence;
o where there was a threat of prolonged custody and solitary confinement it would also
make the statement inadmissible. A confession made in detention could indicate the
presence of undue influence.

 It has also been held that a forced confession obtained by a person in a position of authority,
e.g. a father over his son, an uncle over his nephew or even an employer over an employee,
won’t be admissible in court
 Similarly, if investigative techniques are used to suggest to the accused that the case
against him/her is stronger than what it really is, the statement will be inadmissible, as these
actions amount to undue influence

(iii) The accused must be in his/her sound and sober senses

 The criterion here’s whether the accused knows and realises what he/she was saying
 If the accused is slightly under the influence of alcohol or is experiencing some degree of
pain or fear, the statement won’t necessarily be inadmissible
 If he/she understood what he/she was saying, the statement will be acceptable
 It isn’t a foregone conclusion that a person who has consumed large amounts of alcohol
doesn’t know what he/she is saying or doing
 The confession may very well be admissible

(iv) The confession must be made without undue influence

 It’s important that the undue influence must have an effect on the accused’s will
 The influence must be sufficiently substantial and significantly undue
 External factors must be present which extinguish the accused’s free will
 Any form of promise made to the accused of any advantage he/she might gain could amount
to undue influence
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 According to case law, the following will amount to undue influence:

o a threat made by the investigating officer that the person will be detained for longer if
he/she doesn’t confess;
o any influence which could result in the accused saying something that isn’t the truth;
o the promise of benefit given to the accused;
o the declarant is given the impression that he/she might not be prosecuted;
o the accused is promised that his/her family will be cared for if he/she is in jail;
o an implied threat or promise;
o a confession taken down from a juvenile accused without the assistance of a parent or
guardian. E.g. questioning a youth in the absence of his mother, after which he indicated
that he would like to make a confession. He was informed of his right to legal
representation and that he wasn’t compelled to make a statement. However, the
magistrate failed to inform the youth or his mother of possible legal aid. On the grounds of
the principle of a fair trial, the confession was deemed inadmissible. Since juveniles can
be intimidated more easily, they should have the assistance of their parents;
o confronting a suspect with the statement of another suspect to persuade him/her to make
the confession

 According to case law, the following don’t necessarily constitute undue influence:
o the accused hoped to be granted bail and therefore makes a statement;
o the statement is made at a time when the accused is of independent mind;
o the accused is encouraged to tell the truth;
o the accused decides and accepts of his/her own free will that his/her co-accused have
implicated themselves and therefore he/she needs to tell the truth and so makes a
confession. In this instance, the accused has decided of his/her own free will to make a
confession and no external influences or incorrect perceptions have played a role;
o the accused is confronted with a witness statement that incriminates him/her and moves
him/her to make a clean breast of the matter;
o the accused persists with a self-induced expectation of a benefit despite the fact that the
state had refused to commit itself thereto, and the magistrate had warned that he/she
should eliminate it from his/her mind

(b) Secondary admissibility requirement

 The secondary requirement for the admissibility of a confession relates to the person to
whom it’s made
 If the confession is made to a private person, justice of the peace or magistrate, it need not
be in writing and will be admissible if it meets the primary requirements

 However, if a confession is made to a peace officer who isn’t a justice of the peace or
a magistrate, an additional requirement applies, namely that the confession must be
reduced in writing and confirmed before a magistrate or justice of the peace
 The primary purpose of this additional requirement is to afford the accused a degree of
protection by requiring that he/she be brought before an impartial official who wouldn’t
put pressure on him/her to confess, but would ensure that the statement is freely and
voluntarily made
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 It might sometimes happen that a commissioned police officer also has to take down a
confession
 When this happens, case law clearly indicates that an investigating officer who’s also a
commissioned officer, may not take down the confession of an accused who’s
implicated in a case that the officer is investigating
 Instead, the accused should be taken to an independent commissioned officer from another
unit, or to a magistrate
 If the confession is taken down by a police official who’s a member of the unit investigating
the crime, it will be more difficult for the state to prove that the confession was made
voluntarily, since the objectivity of the police official concerned may be questionable

 It was held by the Supreme Court of Appeal that the officer before whom a confession is
made isn’t expected to embark upon the interrogation of the suspect
 He/she merely has to ensure that the suspect who wishes to make the statement freely and
voluntarily and has been informed of his/her rights

2.5.3. Onus of proof

 The onus of proof regarding the admissibility of a confession rests on the state
 The state must prove beyond reasonable doubt that the person (accused) wasn’t forced or
compelled to waive his/her constitutional rights
 If a problem arises concerning the admissibility of a confession, a trial within a trail
must be held
 The contents of the confession or the guilt of the accused aren’t at issue here, but rather
whether the admissibility requirements have been met
 The court has to decide when it’s necessary to hold a trial within a trial
 The accused may be cross-examined during this process only to determine his/her credibility
and not on the contents of the confession
 If the court decides that the admissibility requirements have been met, the confession is
admissible and then only may the state present evidence on its contents

2.5.4. Reasons for excluding involuntary admissions and confessions

 The main reason for excluding involuntary admissions and confessions is that the
statements may be unreliable
 Their admission also infringes the right of an accused not to incriminate him/herself
 The judge said that the reason for exclusion was one of policy, ‘because in a civilised society
it’s vital that a person in custody or charged with offences shouldn’t be subjected to ill
treatment or improper pressure in order to extract a confession.’

 If the accused was compelled to make an admission or confession, thereby infringing his/her
constitutional right, the court, in terms of 35(5) of the Constitution, must exclude such
evidence if its admission would render the trial unfair or be detrimental to the administration
of justice

2.5.5. Confession by child in conflict with the law

 Paragraph 20 of the SAPS National Instruction compels police officials to inform a child who
indicates that he/she is willing to make a confession, of the following:
(a) that he/she will be taken to a magistrate or commissioned police officer, that the
confession will be written down and may be used as evidence against him/her in court;
(b) that he/she is entitled to have his/her legal representative present while making
the confession; and
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(c) that he/she is entitled to be assisted by his/her parent, guardian or appropriate

adult while making the confession

 If the child chooses to have his/her legal representative, or relevant adult present, the
police official must contact them and inform them of the time and place where the confession
will be taken down to enable them to attend
 The said police official must also report to the magistrate or commissioned police officer
regarding the steps that were taken to inform the child’s legal representative or relevant
adult

 If the child doesn’t want the assistance of a legal representative or relevant adult, the police
official must make an Occurrence Book entry or, if he/she isn’t at a police station, an entry in
his/her Pocketbook to that effect, and ask the child to sign it as confirmation of its
correctness
 If requested thereto by the magistrate or police officer concerned, the police official must
provide him/her with the contact details of the child’s legal representative and/or relevant
adult

2.6. Pointing out

 A pointing out can be defined as an act in which the accused points out premises, or an
object, to the investigating officer or examiner, which is physically visible
 The objects or premises usually relate to the crime that the accused is suspected of having
committed, e.g. where an accused is suspected of having committed armed robbery and he
takes the police to a place where the weapon and money are hidden, and the police find
them there
 The court describes a pointing out as an extra-judicial admission
 More specifically, a pointing out is an admission by conduct

 An admission may be made either expressly or by way of conduct

 An admission by way of conduct is made, e.g. by nodding the head or even simply by
remaining silent in circumstances in which one would reasonably expect someone to speak
or otherwise offer an excuse
 In R v Barlin, the police asked the accused why the name tags had been removed from all
the shirts which they found in his possession
 The accused simply remained silent
 The court found that the accused’s silence amounted to an admission

 In the same way, the fact that an accused takes a person to a place and points out
something is an admission by conduct that the accused has knowledge of the article that
he/she pointed out

2.6.1. Distinguishing between a pointing out and a confession

 During a pointing out, the accused may make certain statements that could amount to
a confession
 In such a case, the pointing out and the confession become intertwined
 If a pointing out can’t be distinguished from a confession, or it contains a confession in itself,
in order to use it as evidence in court the admissibility requirements of a confession will
apply
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 If an accused therefore starts explaining during a pointing out, he/she must be warned that
he/she might be making a confession and must be informed of the consequences of doing
so

 Section 218 of the CPA doesn’t provide for the admissibility of statements made by the
accused during a pointing out
 Care must therefore be taken not to use an inadmissible confession, which is usually
inadmissible because the admissibility requirements haven’t been met, under the guise of
submitting a pointing out to the court
 Such pointing out and confession will both be inadmissible if the respective
admissibility requirements haven’t been met

2.6.2. Admissibility requirements of a pointing out

 Since a pointing out is an admission by conduct, the admissibility requirements for an
admission are relevant to a pointing out
 Two aspects need to be addressed in this regard:
o the pointing out must be made freely and voluntarily;
o pointing out that form part of an inadmissible admission or confession may sometimes be
held to be admissible

(a) Freely and voluntarily

 The then Appeal Court found that a pointing out essentially is a communication by conduct
and as such a statement by the person making it
 Section 219A(1) of the CPA stipulates that an admission must be made voluntarily in order
to be admissible
 Since a pointing out amounts to an admission, it must therefore also be made
voluntarily to be admissible

 This principle has been confirmed

 The court ruled that s 219A of the CPA is written in unambiguous language – an admission
made under duress will be inadmissible
 The section doesn’t make provision for any exceptions
 Therefore, since there are no exceptions with regard to oral or written admissions made
under duress, admissions by conduct (pointing out) shouldn’t be admitted either

 The courts have condemned the following practices by police officials that may cause
disputes regarding the voluntariness of pointing out:
o the involvement of a member of the investigation team in the pointing out;
o the involvement of any person in the pointing out who had prior knowledge of the relevant
place or object;
o the use of an interpreter during the pointing out who’s connected to the investigation unit

 Such practices won’t automatically render the evidence of the pointing out inadmissible,
since the court will in each case determine whether the accused acted freely and voluntarily
 However, it was held that photographs of pointing out may not be used to provide proof that
it was freely and voluntarily made

(b) Admissibility of pointing out that form part of inadmissible admissions and
confessions
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 Section 218(2) of the CPA deals with the admissibility of pointing out that form part of
inadmissible admission or confessions
 This section provides that although the confession or admission is inadmissible, the
pointing out may still be admissible
 Therefore, the inadmissibility of the confession or admission, e.g. because it was made
under duress, doesn’t necessarily render the pointing out inadmissible
 I.e. if something is discovered as a result of a pointing out by the accused, evidence may be
led that the discovery was made as a result of such pointing out by the accused

 However, it’s clear from the wording of this section, namely: ‘Evidence … may be admitted
…’, that the court has a discretion to admit or reject this evidence

 There may therefore be reasons why the court, in the interests of justice, decides not to
admit it

 The then Appeal Court ruled that it could never have been the intention of the legislature in s
218(2) of the CPA to permit the admission of evidence about a pointing out that would
otherwise be inadmissible. as soon as that pointing out forms part of an inadmissible
admission or confession
 In this regard, s 35(1)(c) of the Constitution must also be considered – it stipulates that
every arrested person has the right not to be compelled to make a confession or
admission (thus, also a pointing out) which could be used in evidence against him/her

 A further aspect that needs to be discussed concerns the time lapse between the confession
or admission made under duress, and the pointing out
 Since s 218(2) creates only the possibility that the pointing out in such a case may be
admissible, the question remains whether the duress or undue influence used to extract a
confession from an accused could have an influence on the admissibility of the pointing out

 The court ruled that where a pointing out is closely related to a forced confession, or
forms part of it, it can’t be considered to have been made voluntarily
 The court rightly held that the duress, which was used to obtain the confession, didn’t vanish
into thin air within a few hours
 The coincidence between the confession and the pointing out, in terms of both applicability
and time, was simply too great in this specific case
 The court consequently ruled that the pointing out was also made under duress and that it
was therefore inadmissible
 This is a question of fact and the courts have to judge each case on its own merits
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2.6.3. Pointing out by child in conflict with the law

 In terms of para 21 of the National Instruction, a child who indicates that he/she is willing to
make a pointing out, must be informed that he/she will be taken to a magistrate or
commissioned police officer and that the pointing out will be recorded and may be used as
evidence against him/her in court

 The remainder of the provisions of para 21 are similar to those in para 20 that relate to a
confession by a child
 Police officials must therefore also contact the child’s legal representative, parent or
guardian or an appropriate adult if their presence is required, or make the relevant entry in
the Occurrence Book or Pocketbook if the child indicates that he/she doesn’t need
assistance
 The magistrate or commissioned police officer concerned must also be informed accordingly
and be provided with the particulars upon request

3. Police traps, informers and interception

3.1. Introduction
 Usually during the investigation of offences, police officials identify themselves as members
of the SAPS
 A suspect confronted by a police official is therefore fully aware that he/she is dealing with a
police official, since the member must inform the suspect of his/her constitutional rights
 Sometimes, especially in the case of organised crime or where the crime is committed by
willing participants (so-called victimless crimes), prior identification as a police official
may render the investigation ineffective
o E.g. if a police official who wants to catch a drug lord approaches a person suspected of
buying drugs from the drug lord for information, such person’s involvement will probably
result in a denial that any offence was committed
 The same applies in a situation of organised crime where the accomplices in the
commission of the offence will simply deny that an offence has been committed out of fear
that they’ll be prosecuted or, on the other hand, killed if they disclose information

 In these cases, it becomes necessary to consider utilising alternative investigation

techniques
 These techniques include using undercover agents to join the crime syndicate,
setting up traps where the dealer is unaware that the ‘buyer’ is actually a police
official, and intercepting communications, e.g. wiretapping, where the suspect is
unaware that his/her telephone conversations are recorded and listened to by the police

 Contrary to ordinary investigation techniques, these alternative techniques create risky

situations in which the undercover police official (agent) may be in danger
o E.g. where an undercover agent is sent to infiltrate a crime syndicate, this normally means
that the agent must gain the trust and confidence of the other members of the syndicate
o This quite often requires the agent to turn a blind eye when other members of the
syndicate commit offences in his/her presence and, in extreme cases, may even require
the agent to take part in the commission of an offence in order to gain the trust of the
syndicate
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o Gaining their trust will allow the agent to obtain more information concerning the
syndicate, to identify all the syndicate members and, by means of evidence, to connect
them to the offences committed by the syndicate

 Furthermore, these alternative techniques place the suspect in a vulnerable position

that seriously endangers his/her constitutional rights
o E.g. if the police secretly listen to the private conversations of persons suspected of being
involved in the commission of offences, the listeners will inevitably also overhear private
conversations that’ll have nothing to do with the commission or planning of the
commission of offences
o In doing so, the privacy of these persons is seriously violated

 Thus, it’s obvious that these alternative investigation techniques will only be justifiable
and fair to the persons affected by them if the evil that the police strive to combat by
means of the methods is greater than the evil created by their use
 To determine this, the court will have to weigh two competing interests of the community: the
interest in combating crime against the interest of protecting its members against the
infringement of their constitutional rights

3.2. Setting of police traps and undercover operations

 Section 252A(1) of the CPA authorises a law enforcement officer (including a police official)
or his/her agent to make use of a trap or engage in an undercover operation in order to
detect, investigate or uncover the commission of an offence
 A trap is a person who, with a view to securing the conviction of another, proposes
certain criminal conduct to him/her, in which he/she (the trap) also takes part, in order
to create the opportunity for someone else to commit the offence
 The provision of an attractive opportunity is the essence of a successful trap
 The evidence obtained during the entrapment will be admissible in court if the conduct of
the trap doesn’t go beyond providing an opportunity to commit an offence

 In terms of this section, police officials are therefore authorised to make use of traps and to
engage in undercover operations in certain limited circumstances
 However, the section also clearly indicates that it’s the intention of the legislature that
evidence obtained by means of a trap or during an undercover operation that doesn’t
fall within these limited circumstances, may be inadmissible in court
 As such evidence is normally vital to a conviction, the exclusion thereof will often lead to the
acquittal of the accused

 The reason for the exclusion of such evidence is contained in s 252A(3)(a) of the CPA,
which states that a court may refuse to allow the evidence if it was obtained ‘in an improper
or unfair manner and that the admission of such evidence would render the trial unfair or
would otherwise be detrimental to the administration of justice’
 Admitting evidence obtained through the unauthorised use of these investigation
techniques will therefore infringe upon the accused person’s right to a fair trial as
protected by s 35(3) of the Constitution
 The burden of proving on a balance of probabilities that the evidence should be admitted
rests on the state (prosecution)
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 These investigation techniques will only serve their purpose if the conduct of the official or
his/her agent doesn’t go beyond providing an opportunity to commit an offence
 If the conduct of the police official amounts to inciting the suspect to commit the
offence, or includes a threat of harm to the suspect or his/her family if he/she doesn’t
commit the offence, such conduct will be viewed as going beyond providing an
opportunity to commit the offence
 On the other hand, if the police receive information on oath that a person is, e.g. a drug
dealer and this information appeared to be confirmed by their own observations, it wouldn’t
go beyond providing the opportunity to commit an offence to send a trap to him/her to buy
drugs

In determining whether the conduct of a police official went beyond providing an opportunity
to commit the offence, a court will have to consider when –
 the accused was an innocent person who wouldn’t have committed the offence had it not
been for the persuasion, incitement, inducement, threats or instigation by such police
official;
 the accused would’ve committed the offence in any event even if the police hadn’t made
use of this investigation technique

 In terms of s 252A(2) of the CPA, a court, in considering the question of whether the conduct
of the member went beyond providing an opportunity to commit an offence, has to take a
number of factors into account
 These factors include whether the required approval was obtained, which type of offence
was under investigation, the availability of other techniques, whether an average person
would’ve been induced into committing the offence, the degree of persistence and number of
attempts made, and the type of inducement used

 Section 252A(3)(b) provides that a court must, in deciding on the admissibility of evidence
obtained by means of a trap or undercover operation, weigh the public interest against the
personal interests of the accused

 In terms of s 252A(5)(a) of the CPA, a police official or his/her agent who commits an
offence in the course of setting up a trap or an undercover operation shan’t be liable for such
offence if –
o the offence relates to the trap or undercover operation; and
o such official or his/her agent acted in good faith

3.3. The use of informers

 An informer is a person who provides information to the police concerning the
commission or planned commission of an offence in order to assist the state and who
needs protection from person who’re prejudiced by the information so provided

 Informers are invaluable to the police in the prevention and detection of crime
 Without the information provided by informers, many criminals would never be identified and
be brought to book
 However, they’re often shady characters and the use of informers is sometimes described
as a necessary evil
 Informers normally provide the information for financial gain or to prevent themselves from
being prosecuted for some minor offence
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 The informer may be instructed to approach a known suspect, have a discussion with
him/her and report back to the handler
 The informer won’t usually testify him/herself and the information obtained by him/her
is normally used by the investigating officer as a means of directing him/her to other
sources of evidence

 There is a common-law privilege against the disclosure of the identity of informers,

which is also embodied in s 202 of the CPA
 This privilege is based on public policy
 This was explained by saying that crime is normally committed in secret and is against the
interest of the state; its detection requires that the identity of persons providing information to
assist in its detection should, in the interest of the state, also be kept secret

 The identity of an informer is protected mainly for the following reasons:

o to protect the informer against the person in respect of whom he/she provided
information; and
o to encourage members of the public in general to provide information concerning offences

 If it happens that a police official, while testifying in court, is asked questions during cross-
examination that, if he/she answered, would disclose the identity of an informer, he/she will
be legally entitled to refuse to answer the questions, and may rely on the informer privilege
as reason for refusing to answer

 The reliability of the information obtained from an informer is affected by the fact that
he/she provides the information for financial gain
 Due to this motive, information obtained from an informer should, where reasonably
possible, be verified before reliance is placed upon it
 Since an informer usually doesn’t testify, his/her credibility isn’t in issue
 However, if an informer testified, he/she can no longer rely on the informer privilege to
protect his/her identity
 In such a case, the defence will be entitled to a copy of the statement made by him/her
 Furthermore, it’s to be expected that, in such a case, the defence may attack the credibility
of the informer on account of the fact that he/she provided the information for financial gain,
and therefore had a motive to lie in order to ensure that the accused was convicted
 Such an attack can, to a large extent, be countered by paying the informer before he/she
testifies
 This removes his/her motive to ensure a conviction in order to be paid

 A court will, however, still approach the evidence of an informer with caution, since
the evidence of an informer is regarded in a similar light to that of an accomplice
 All efforts should therefore be made to obtain evidence that corroborates the testimony of an
informer

 Informers have registered and a number is allocated to them

 Payment to informers should also be properly regulated and administered
 Strict control over informers is essential and a police official must also ensure that
the mandate given to an informer to obtain information is clear and unambiguous
 The police official must ensure that the informer doesn’t interpret it in such a way that it
allows him/her to continue committing offences on the side lines
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3.4. Interception of communications and postal articles

 The right to privacy of every person is protected in s 14 of the Constitution and
specifically includes the right that the privacy of a person’s communications shan’t
be infringed
 It’s therefore no surprise that s 2 of the Regulation of Interception of Communications and
Provision of Communication-related Information Act declared that ‘no person may
intentionally intercept or attempt to intercept, or authorise or procure any other person to
intercept or attempt to intercept, at any place in the Republic, any communication in the
course of its occurrence or transmission

 Since people involved in the commission of offences sometimes make use of telephones to
arrange their criminal activities and also send postal articles to one another in the course of
such activities, it would seriously hamper police investigations into especially organised
crime if the interception of these communications were to be prohibited
 Provision for such interceptions in certain circumstances is therefore made in this Act
 In view of the seriousness of the infringement of privacy by such an interception,
strict rules have to be followed before such an interception may take place, e.g. the
interception must be authorised by an interception direction issued by a judge designated for
this purpose by the Minister

 A commissioned officer in the SAPS may apply for such a direction by including facts in the
application that will satisfy the judge that there are reasonable grounds for believing one of
the following:
o that a serious offence has been, is being or will probably be committed;
o that the gathering of information is necessary, and it concerns an actual or potential threat
to the public health or safety, national security or compelling national economic interests
of the Republic;
o that the request for the provision of assistance in connection with the interception of
communications relates to organised crime or any offence relating to terrorism or the
gathering of information relation thereto, and is made in accordance with an international
mutual assistance agreement or in the interests of the Republic’s international relations or
obligations; or
o that the gathering of information is necessary and concerns properly which is or could
probably be either an instrumentality of a serious offence or the proceeds of unlawful
activities

 According to s 16(6) of the Act, an interception direction must be in writing and must
contain –
o the name (if known) of the person or customer whose communication is required to be
intercepted;
o the postal service provider or telecommunication service provider to whom the direction
must be addressed, if applicable; and
o the type of communication which is required to be intercepted

 Such a direction may be issued for a period not exceeding three months at a time, and
the period for which it has been issued must be specified therein
 It may also specify conditions for restrictions relating to the interception of
communications authorised therein
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 Any law enforcement officer (including police officials) who’s authorised by the applicant who
made the application may execute or assist with the exception of an interception direction
 In executing the direction any such authorised person may intercept, at any place in
the Republic, any communication in the course of its occurrence or transmission to
which the direction applies

 An applicant may, during an application for an interception direction, or before the expiry
thereof, apply to a designated judge for the issuing of an entry warrant
 Such a warrant authorises entry upon any premises for purposes of intercepting a postal
article or communication on the premises, or installing and maintaining an interception
device on, and removing an interception device from, the premises

 Any evidence obtained by means of intercepting or monitoring a telephonic communication

or conversation other than in the circumstances provided for in this Ac7t, is likely to be
excluded by the court because it’ll probably infringe the accused’s right to a fair trial
 Such evidence will also be excluded if its admission will otherwise be detrimental to the
administration of justice, such as where it’s obtained in accordance with an interception
direction issued by a judge upon false information presented to him/her by the police
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Chapter 16: The law of evidence: an introduction

1. Introduction
read through the introduction

2. Evidence
 Tendering evidence is the means of proving or disproving facts in dispute
 Evidence comprises all the information and material submitted to the court by the parties, to
enable the presiding officer to judge and settle a dispute
 Evidence therefore consists of oral statements, written statements, documents and objects
that are produced and received in court to prove or disprove allegations

2.1. Defining the law of evidence

The law of evidence primarily determines –
 which evidence may be submitted to court;
 how it may/should be submitted;
 who may present or submit the evidence

 The law of evidence contains the entire body of legal rules that regulates the proof of
facts in a court of law
 It includes the rules that enable a court to make findings without hearing evidence
 The law of evidence also deals with the weighing of evidence, the standard of proof, the
onus of proof, corroboration, cautionary rules and the admissibility of evidence

2.2. Different types of evidence

 In order to investigate criminal cases effectively, and to ensure a just verdict in court,
police officials must be able to present different types of evidence which may be
either oral (when witnesses appear in the dock to give the evidence); or real, i.e.
exhibits (when the evidence is an object which is proof of itself, for instance, a spent
cartridge which proves that a bullet was fired), or documentary (such as a letter or a
birth certificate)
 The investigating officer must be able to determine whether the evidence to be presented
should supplied by oral evidence, by means of properly identified exhibits, or documents,
and to identify which witnesses will be best suited to present these specific types of
evidence

2.3. Other evidential material

 Proof is furnished by way of evidential material
 Oral, documentary and real evidence are the most common forms of evidential material, but
there are also other types, e.g. judicial notice, formal admissions, informal admissions made
during an explanation of plea and presumptions
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3. Witnesses
3.1. Compellability and competence
 As a general rule, anyone who’s capable of giving an intelligent account of the facts in issue
is considered to be a competent witness and may be compelled to give evidence
 However, not every witness who’s called before the court is compelled to give evidence, e.g.
an insane person can’t be compelled to give evidence, and neither can a child who’s too
young to be competent to give an intelligent account of the facts in issue

3.2. Privilege
 There are exceptional circumstances in which the legal system regards some interests as
more important than the quest to find the truth
 These interests give witnesses who have these important interests privileges that permit
them to refuse to answer questions, or provide real or documentary evidence that may be
relevant to a matter that’s before the court
o E.g. the content of discussions that take place between legal practitioners and their clients
are considered to be privileged, and legal professionals may not disclose the content of
these conversations before a court of law, or even discuss them in public
 In some instances, the police may be prohibited from seizing certain privileged documents
 It’s essential for police officials to know and understand these evidential privileges to enable
them to identify those witnesses who won’t be obliged to disclose documents or information,
even though they may be relevant and important to a case
 A police officer must therefore be aware of this privileged information and take it into account
in preparing a case for the prosecution

4. Proof of facts
4.1. Facts in issue
 In a criminal case, all allegations that the prosecutor makes in the charge sheet are initially
in dispute
 In order to ensure a conviction, it’s necessary for the prosecution to prove all the allegations
in the charge sheet, except for those facts that have been formally admitted by the accused
or his/her legal representative

4.2. Definition of proof

 Proof indicates that there are grounds for a ruling in terms of a fact in dispute
 Proof is furnished by way of the evidential materials described above
 The fact is proven when there are sufficient grounds for the presiding officer to
accept the existence of such fact
 Proof of a fact means that a court (the presiding official) has received probative material with
regard to such a fact, and has accepted such a fact as being the truth for purposes of the
specific case
 All the elements of the offence must be proven, primarily by means of evidence, before a
person can be convicted
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4.3. Onus of proof

 In a criminal case, the onus or burden of proof rests on the state (the prosecution) to prove
all the facts in dispute
 The rule is that the party who makes an allegation must prove that allegation
 Should the state (prosecutor) therefore allege in the charge sheet that an accused is guilty of
a crime, the onus of proof rests on the state to prove all the facts in dispute
 The party with whom the onus of proof rests, is also the first to present evidence
 Since the state prosecutor represents the state in a criminal case, it’s the state prosecutor
who presents evidence first

4.4. Standard of proof

 This is the measure used to determine whether a particular party has discharged its onus of
proof
 I.e. the court uses this standard to determine whether the evidence submitted by the party
on whom the onus of proof rests has sufficient value to discharge this burden
 The standard of proof the state must comply with in criminal cases is proof beyond
reasonable doubt
 This means the state must prove all facts in dispute beyond reasonable doubt before the
court will find the accused guilty of an offence
 Proof beyond reasonable doubt doesn’t mean beyond all doubt, or proof without the slightest
doubt
 A degree of doubt may exist, but it mustn’t be substantial
 Also note that the concept, ‘beyond reasonable doubt’, always has a constant value in all
cases
 The seriousness of the offence therefore has no influence in this standard

5. Basic concepts in the law of evidence

 If a police official is familiar with these basic concepts, he/she will find it much easier to
understand the rules that govern the admission of relevant evidence in a court of law

5.1. Admissibility and the weight of evidence

 A police official who investigates a criminal case, or who testifies as a witness in court,
should present reliable and relevant evidence to the court in order for it to reach the correct
decision, based on the available facts before it
 Failing to adhere to the rules of the law of evidence may result in evidence that’s
inadmissible, and therefore unacceptable by a presiding officer such as a judge or
magistrate
 If evidence is rejected, it means that investigative work which may have taken long hours
and have taken place in difficult circumstance will have been done in vain

 If a police official adheres to the rules his/her evidence will be admissible

 An important distinction that police officials need to make in gathering evidence is to
determine whether the evidence is relevant and likely to be reliable; irrelevant and unreliable
evidence will be of no use, because it’s usually inadmissible

 Evidence can never be admissible in a court if it isn’t relevant

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 Evidence is relevant if it contributes to proving or disproving one or more of the facts

in dispute
 Should a party therefore give evidence, which in no way contributes to proving or refuting a
fact in dispute, it’s irrelevant and therefore inadmissible
 Evidence can also be inadmissible if it’s immaterial; its evidential value is therefore too
insignificant to contribute to proving or disproving any of the facts in issue

 However, all relevant evidence isn’t necessarily admissible

 Relevant evidence may also be excluded if it was obtained in an improper or unconstitutional
manner
 Some relevant evidence, such as hearsay evidence, can also be excluded on the basis of its
unreliability

 Once a court has decided that evidence is admissible, it must assess the weight of that
evidence in order to determine what value it will have to the court in deciding the issue
before it

 Armed with this knowledge, the police official can go to court with the confidence that he/she
will have a constructive influence on the outcome of a criminal trial
 In such a way, he/she will serve the community, by actively contributing to enable the court
to convict the guilty and acquit the innocent

5.2. Circumstantial evidence and direct evidence

 The distinction between circumstantial and direct evidence can be explained as follows:
o direct evidence is evidence about the observation of a fact in issue
o circumstantial evidence is evidence about a fact from which the court can draw an
inference regarding a fact in issue
 In criminal cases, the inferences drawn from circumstantial evidence must in the first place
be consistent with all the proved facts, and secondly the proved facts should be such that
the inference drawn is the only reasonable inference that can be drawn from the facts

6. Presenting evidence in court

 The prospect of giving evidence in court is quite daunting
 Factors contributing to this include the possibility of the case being postponed and
uncertainty about when the witness will be called to testify
 Moreover, witnesses (including police officials) who have to testify for the first time feel
uncertain about what’s going to be expected of them, which makes them nervous

 The investigating officer can play a valuable part in putting witnesses at ease; it’s therefore
important for him/her to arrive at court early
 The investigating officer must also ensure that the witness knows what’s expected of him/her
and that he/she is familiar with the procedure involved in giving evidence
 Since most evidence in court is presented orally, it’s useful for prospective witnesses to be
aware of the procedure followed in court when a witness testifies, including the types of
examination he/she will encounter
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6.1. Types of examination

 There are three types of examining witnesses, namely examination-in-chief, cross-
examination and re-examination
 Each type has a particular purpose and is used at a specific point in the trial

6.1.1. Examination-in-chief
 This takes place when the witness gives his/her evidence-in-chief
 The witness is called to the witness stand for the purpose of giving the court his/her
version of the facts
 The evidence is given orally, on oath (also referred to as viva voce), and is led by means of
questions asked by the prosecutor, if it’s a state witness, or by the attorney or advocate for
the defence (or the accused him/herself), if the witness was called by the defence
 The questioner usually uses the witness’s statement to guide him/herself through the facts in
a logical order so that he/she presents the court with a complete account of the events
 As a rule, leading questions may not be asked, but are admissible in the case of introductory
remarks and aspects that aren’t in dispute

6.1.2. Cross-examination
 Cross-examination begins as soon as the examination-in-chief has been completed
 The opposing party, e.g. the accused’s legal representative, then questions the witness

 The purpose of cross-examination is to place before the court facts that are
favourable to the cross-examiner, and to test the reliability of the witness’s account
 The scope of cross-examination is very wide and the examiner isn’t limited to matters that
the witness testified about during the examination-in-chief

 Cross-examination may be focused on points in dispute, as well as the credibility of the

witness
 Cross-examination directed at the points in dispute is designed to bring to light evidence
about the facts in dispute, or other relevant facts, which may be favourable for the cross-
examiner’s case
 During cross-examination, the version of the accused will also be put to the witness for
his/her comments
 Cross-examination aimed at credibility is designed to convince the court that the evidence of
a particular witness is unreliable

 Leading questions may be asked during cross-examination

 Any witness who has been sworn in or who has made a confirmation under oath may be
cross-examined by the opposing party
 The cross-examiner has a duty to ensure the correctness of the facts, as well as other
interpretations of the facts that reinforce his/her client’s case
 If the witness isn’t cross-examined, the assumption may be made that the cross-examiner
accepts the witness’s account as true

 Witnesses may be exposed to the following cross-examination techniques:

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(a) Leading questions

Was a weapon a knife?
 This is a leading question because the person who’s asking it has already provided an
answer as to what the weapon was
 Leading questions during cross-examination are permitted and aimed at confusing the
witness, which may impact negatively on his/her credibility
 Sometimes the cross-examiner deliberately suggests the answer that will best suit the case
for the defence
 The witness must therefore concentrate carefully on the facts and ignore the suggested
answer if it isn’t correct
 The question must be answered independently and truthfully

(b) Questions asked in rapid succession

 Questions like:
o Where were you standing?
o Where was the accused?
o Who else was standing there?

 Each question must be considered carefully and, where necessary, the examiner must be
asked to repeat each question clearly
 The witness may also turn to the presiding officer and ask him/her which questions should
be answered first

(c) Aggressive approach

 The cross-examiner adopts an aggressive attitude and stares straight into the witness’s eyes
o Sir, that is so, isn’t it?

 A witness must never lose his/her temper

 The question must be answered in a calm and composed manner
 The presiding officer may sometimes intervene and object to such behaviour if the
prosecutor or legal representative fails to do so

(d) Excessively sympathetic approach

 The cross-examiner is exceptionally kind to the witness
o You say you were very tired
o We understand that it must’ve been difficult to concentrate

 The question must be answered firmly and confidently

 If the witness is under of the question, he/she may ask for it to be repeated or explained

(e) Overfriendly, flattering approach

 The cross-examiner tries to win the favour of the witness
o You’re such an asset to the Police
o You’re so observant

 The witness must be on guard because this cross-examiner may have a hidden agenda, e.g.
he/she may be trying to distract the witness
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(f) Deliberately addressing the witness incorrectly

 The cross-examiner tries to divert the witness’s attention from the relevant points and make
him/her focus on less important issues, with the intention of irritating or provoking him/her
o Mr de Vos instead of Mr Vos; Sergeant instead of Captain

 The witness must ignore the form of address and concentrate on the question

(g) Distortion
 The cross-examiner tries to put words in the witness’s mouth and place inconsistencies on
record
o You said the car came to a standstill 32 metres further on (when, in fact, the witness had
said 23 metres)

 The witness must listen carefully when evidence is repeated, in order to correct any
distortions immediately

(h) Restrictive or ambiguous questions

 Questions like:
o Have you ever discussed the case with someone else? (If the witness answers ‘No’, the
examiner may later claim that the witness is unreliable. If the witness answers ‘Yes’, it
may indicate that the witness is being told what to say)

 The witness must acknowledge that he/she has discussed the case with the prosecutor or
investigating officer, if that’s actually so

(i) Playing one witness off against another

 The examiner tries to elicit contradictions
o But the previous witness said it was around 10 o’clock in the evening. Now you’re saying
it was before 6 o’clock in the evening
 The witness must simply deny all knowledge of the other witnesses’ testimony, but confirm
his/her own observation

(j) Predicting inconsistencies

 The examiner tries to annoy the witness and create uncertainty
o If Ms Malopa testifies later that is was 10 o’clock in the evening, will that be a lie?

 The witness must tell the examiner that he/she can’t assess the other witnesses’ evidence
and the truthfulness thereof, since that’s the task of the court
 Then he/she must again confirm his/her own observations

(k) Attacking the witness

 The examiner concentrates on less important details, with the result that the witness is
unable to answer the question
 If the witness is unsure of the facts, he/she must simply inform the court that the aspect in
question was of so little importance to him/her that he/she took no notice of it

(l) Examiner insists on a simple ‘yes/no’ answer

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 The examiner probably wishes to keep relevant facts concealed if a simple ‘yes/no’ answer
is required
 The witness must explain to the court that a simple ‘yes/no’ is inadequate to sketch a clear
picture of the events that took place; further explanation is necessary to prevent a false
impression being created
 The presiding officer will often insist that a witness elaborate on the initial answer

(m) Fixed or expectant gaze

 After the witness has answered the question, the examiner continues to stare at him/her
 The examiner is trying to create uncertainty or to give the impression that the witness hasn’t
yet answered the question
 If the witness then repeats or adapts his/her answer, it opens the way for further questions
 In this situation, the witness must simply wait for the next question

(n) Wasting time

 The witness is asked a question which he/she has already answered earlier
 The examiner is trying to create doubt in the witness about the correctness of his/her answer
 The witness must simply remain calm and not provide any additional information; he/she
must tell the court that he/she has already answered the question

(o) Sarcasm
 Questions like:
o Is that so? (Once again, the examiner is trying to create uncertainty and divert the
witness’s attention from the evidence)

 The witness must ignore the examiner’s tone of voice and disturbing comments and
concentrate only on the question
 Bear in mind that the witness talks to the presiding officer and not to the cross-examiner
 The witness is also not obliged to look at the cross-examiner

6.1.3. Re-examine
 Re-examination follows cross-examination
 A party uses re-examination to question his/her own witness in order to clarify or
explain certain issues that were raised during cross-examination
 Re-examination is limited to issues that were raised during cross-examination
 Leading questions are again not permitted

6.1.4. Questioning by the court

 The court may put questions to the witness at any stage of the proceedings
 Usually, such questioning will take place once re-examination has been completed
 The court will use this type of questioning to clear up any uncertainties
 The court may also call upon any witnesses who weren’t called by the state or the defence,
if it deems this to be in the interests of justice
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6.2. General guidelines for improving behaviour on the witness stand

 If a witness keeps the following in mind, it’ll make his/her testimony more effective:
o A neat appearance creates a good impression. An untidy appearance can give the
impression of irresponsibility.
o The witness must be relaxed. While giving evidence, the witness must remain standing,
unless given permission to sit down by the court. The witness’s attitude and conduct on
the witness stand may elicit criticism from the opposing party. If the witness is relaxed,
chances are better that he/she will be able to concentrate and thus give better testimony.
o The witness must speak clearly and answer exactly what’s asked.
o The witness must watch the pen of the presiding officer and adapt his/her answers to the
rate at which the presiding officer makes notes. Long explanations given very quickly can
cause the court to become distracted and exhausted.
o Answers must be brief and concise. If the witness feels that a brief answer will lead to
confusion, he/she may ask the court’s permission to elaborate on that point.
o Unnecessarily long or irrelevant answers, or repetition, should be avoided, since this only
wastes the court’s time and detracts from the value of the evidence.
o The witness must use simple language. A straightforward account of the facts, given in
everyday terms, will carry more weight than a verbose explanation.
o Confrontation with the examiner must be avoided. The expert witness who gets into an
argument with an experienced cross-examiner may soon have to swallow his/her words if
the examiner has researched the subject thoroughly.
o Irritating mannerisms should be avoided, e.g. repeating every question before answering
it.
o The witness must always concentrate on the important aspects. The legal practitioner
may sometimes try to divert the witness’s attention from the points in dispute by means of
long, drawn-out questioning. By focusing only on the relevant aspects, the witness should
be able to avoid this trap.
o The witness must always remain calm, otherwise, in an irrational moment, he/she might
answer a question differently from hom he/she would have, had he/she remained calm
and rational. The witness runs the risk of losing the respect of the court if he/she gives in
to the examiner’s provocation.
o If the witness is unable to answer a question, he/she must inform the court of this.
Guesswork should be avoided and the witness should rather ask the court for a chance to
think about the matter. If the witness does make a mistake while giving evidence, he/she
must immediately notify the court accordingly. The court will have more respect for a
witness who’s honest and is prepared to admit his/her mistakes, rather than one who tries
to conceal information.

6.3. The police official as a witness

 The investigating officer in a case has an official interest in the case
 While he/she is investigating the case, he/she should already be preparing him/herself to
give evidence
 Therefore, statements must be taken carefully, and detailed notes must be made of, e.g. the
condition and appearance of the victim and the crime scene
 All potentially relevant evidence must be kept for the court case
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 Because the investigating officer was involved in investigating the case, the prosecutor,
defence and presiding officer will probably ask him/her many probing questions
 The success of the court case will depend largely on how thoroughly the investigative work
was done and how effectively the investigating officer presents evidence in court
 Since the state has to prove every point in dispute against the accused, the
investigating officer must ensure that he/she knows what each element involves and
how to prove it
 To this end, the investigating officer needs a sound knowledge of criminal law and law of
evidence

 While submitting evidence, the investigating officer mustn’t appear to be prejudiced

against the accused
 The investigating officer is also a court official and, as such, it’s his/her duty to ensure that
justice is done in favour of both the accused and the community
 Evidence must therefore be given in an unbiased manner and shouldn’t only include facts
that are to the prejudice of the accused
 On the witness stand, the investigating officer has the same privileges and duties as any
other witness, so he/she can’t expect any special treatment

 In preparing for the case, it’s advisable for the investigating officer to consult with the
prosecutor and discuss the questions the prosecutor is planning to ask
 If the witness is familiar with the questions and has had an opportunity to think about the
answers, there should be no surprises during the trial and the witness should feel more
confident about giving evidence in court
 It’s therefore wise if the investigating officer meets the prosecutor before the proceedings
and is involved in the preparation of the questions
 Uncertainties should be discussed with the prosecutor and decisions must be reached about
how difficult aspects should be handled during examination-in-chief and cross-examination

 To summarise, the following aspects are important when the investigating officer testifies:
o A witness will feel in control on the witness stand if he/she speaks slowly, emphasises
syllables, controls his/her breathing and varies his/her tone of voice.
o The investigating officer should meet the prosecutor before the examination-in-chief and
should be involved in preparing the questions.
o When a witness doesn’t have an answer or can’t remember, he/she must inform the court
of this.
o If the witness makes a mistake, he/she must correct it as quickly as possible and then try
to forget about it.
o When the right opportunity presents itself to differ from the cross-examiner, the witness
should do so with conviction.
o The witness must deal with half-truth questions by first acknowledging the part that’s true
and then, separately, denying the untrue part vehemently.
o It’s a good idea if the witness gets to know the names and faces of the legal
representatives, presiding officers and other role-players in the court setting.
o The witness must listen carefully to the way in which the cross-examiner formulates
his/her questions and use this knowledge to take control.
o A dispute or debate at key moments may have a positive or negative effect on the
credibility of the witness and the acceptability of the evidence.
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o The witness can handle the intimidation of cross-examiners by responding calmly and
keeping to the facts.
o The witness should remember that the last impression he/she makes should be positive.

 The manner in which a witness gives evidence is important because injustice can triumph
when the right evidence is given in an unreliable manner
 It’s therefore important that evidence is given effectively if the courts in the criminal justice
system are to function successfully and fairly.

7. Refreshing memory
 Although oral evidence is the most common type of evidence, it’s also one of the most
unreliable forms of providing proof
 The reason is that human memory is highly unreliable
 The solution to this problem is for witnesses to refresh their memory by means of notes or
statements they made while the events were still fresh in their minds
 For this reason, police officials should always make notes of important events taking place
during a working day or an investigation
 Remember that it may be months or even years before a witness’s testimony is required in
court

 Witnesses may refresh memory before or while giving evidence from a note or
document they made or read through when the events were still fresh in their minds
 The note is merely an aid that witnesses use to ensure the accuracy of their evidence and
isn’t regarded as evidence itself
 The note or document isn’t submitted as evidence
 However, in practice, doctors, psychologists, psychiatrists, social workers and other experts
read their reports out loud, confirm them as being true and then submit them

When witnesses want to refresh their memories by using notes or documents, the state must
lay the grounds for admissibility by proving that the notes are –
 authentic;
 contemporaneous (made during or immediately after the incident);
 disclosed; and
 the original document.

7.1. Authenticity
The note or document is authentic if –
 the witnesses wrote it themselves; or
 it was written on their instruction; or
 the witnesses read the notes at the time when the events were still fresh in their minds.

 The court allowed a witness to refresh his/her memory by using notes that another witness
had made
 The prerequisite was that the witness who was refreshing his/her memory had to have seen
the notes shortly after they were made and while the incident was still fresh in his/her mind

7.2. Contemporaneous
 The witness must’ve made the notes during or immediately after the events
 Depending on the nature of the events, a reasonable time may have elapsed before the
witnesses made the notes
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 Because of the time lapse, the witnesses’ memories of the events may have faded to such
an extent that they might not have been able to remember the events as well by the time
they wrote the notes
 In this instance, the court shouldn’t allow the witnesses to refresh their memory by using
these notes

7.3. Disclosure
 Once a witness has refreshed his/her memory from a note or document while giving
evidence, the other party is entitled to inspect the note or document and the court may also
view it

 It, before appearing on the witness stand, a state witness refreshes his/her memory from a
statement hi/she made to the police, the accused or his/her legal representative can’t
inspect this statement
 If, during an adjournment, the state witness refreshes his/her memory from a statement
he/she submitted to the court, the defence can’t inspect this document either
 However, if the witness refreshes his/her memory while in the witness stand, he/she loses
any privilege in respect of the statement
 However, note should also be taken of the judgement of the Constitutional Court, which
dealt with the accused’s access to information in, among other things, the pocketbooks of
police officials and dockets
 As a result of this decision the defence will in any case be in possession of all witness
statements and may use any deviation from them as weapons to attack the credibility
of a state witness

7.4. Original document

 The usual requirement is that the document that witnesses use to refresh their memories
must be the original documents
 However, witnesses are also allowed to use true copies, even if the originals still exist, if the
witnesses personally remember the facts
 If witnesses no longer remember the facts themselves, they must use the original
documents
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Chapter 17: Types of evidence

1. Introduction
read through the introduction

2. Oral evidence
 Most evidence presented in criminal cases before a court is given orally, i.e. viva voce
 It’s a principle of our law that an accused person is entitled to face his/her accusers,
therefore viva voce evidence should be used wherever possible
 This gives the accused the opportunity to question his/her accusers through a process of
cross-examination

 A witness is usually subpoenaed to appear in a specified court on a particular day and at a

specific time to testify
 The witness usually presents his/her evidence orally, under oath, in the presence of the
public and the parties to the case, and can thereafter be cross-examined by the accused, or
his/her legal representative

2.1. Oral evidence

 The reason for oral evidence is that a party to a case must have the opportunity to confront
witnesses who testify against him/her and to challenge this evidence through questioning in
a situation where the demeanour of the witness can be observed for purposes of assessing
his/her credibility

 The witnesses are brought before the court either by the prosecution or by the accused, and
sometimes even by the presiding officer if the evidence of the particular witness appears to
the court to be essential to the just decision of the case
 The witness has the right to communicate in his/her own language
 If the presiding officer and other court officials can’t understand this language, an interpreter
is used
 If the witness communicates through sign language, the evidence is conveyed to the court
with the aid of a sign language interpreter

 There are two exceptions to the rule that evidence is given orally, under oath, in the
presence of the public and parties to the case, and is subject to examination
 These are contained in ss 213 and 212 of the CPA:

2.1.1. Section 213 of the CPA

 This section provides that, in criminal proceedings, a written statement by a person other
than the accused is admissible to the same extent as oral evidence and will have the same
effect

 A great deal of time and expense is saved if witnesses can give evidence on undisputed
facts in this manner
 Long technical explanations, such as the findings of an auditor, can be placed before the
court in written statements
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 In terms of sub-ss (2)(c), (d) and (f), the accused is given the opportunity to inspect these
written statements beforehand, and to object to them if he/she wishes to do so
 If the written statements refer to exhibits, a copy of the statement and the exhibits must be
served on the other party in advance and any objections by the accused must be made at
least two days before the proceedings start

 If the accused makes no objection, the evidence is admitted

 If he/she does object, the witness must testify in person
 Even after the statement has been submitted, the accused can still demand that the witness
testify in person
 The presiding officer also has the authority to subpoena the witness to give oral evidence on
a written statement he/she has made, and must subpoena such a witness at the request of
any of the parties

 The witness must sign the statement and declare that it’s true to the best of his/her
knowledge and belief
 The witness must also confirm that the statement was made in the knowledge that, if it were
to be tendered as evidence, he/she knew that he/she could be prosecuted if he/she wilfully
stated in it anything which he/she knew to be false or didn’t believe to be true

 The court ruled that if the public prosecutor wants to apply s 213, the accused’s consent
must be obtained in advance in terms of sub-s (2)(c)
 The public prosecutor can’t simply read the statement out in court and only then obtain the
accused’s consent
 The person who writes such a statement is called a ‘deponent’
 The prosecutor may not use the written statement of a deponent if the deponent is going to
appear in court as a witness
 This is so regardless of whether the accused gives his/her consent in advance as is required
by s 213
 I.e. a s 213 statement can’t be used if the deponent is called as a witness and testifies in
person

2.1.2. Section 212 of the CPA

 This section provides for affidavits or certificates to be used as proof of facts instead of
tendering oral evidence
 Evidence presented by affidavit in terms of this section is primarily evidence of a technical,
formal and usually non-contentious nature, which covers the following:
o acts, transactions or occurrences which have allegedly taken place in a state department,
court of law or bank. An affidavit of an official who can say that such an act would’ve
come to his/her knowledge, but didn’t, will be prima facie proof that it didn’t take place;
o information allegedly given to a government official. The affidavit of such an official stating
that he/she didn’t receive the information will prima facie refute such an allegation;
o official acts of a person authorised by law to register or record something may be proved
by means of an affidavit;
o facts that require specialised skills, such as DNA or ballistic testing;
o the mass and value of precious metals and stones, e.g. in cases involving trade in gold or
diamonds;
o findings regarding fingerprints and palmprints;
o the condition or identity of dead bodies;
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o the safeguarding of exhibits, such as the chain of custody from procuring the evidence up
to the laboratory.

 These affidavits are presented as prima facie evidence of their contents

 The accused may object to the contents and presentation of the affidavit
 In such a case, the witness will be subpoenaed to give oral evidence

2.2. Under oath

 Evidence is given under oath mainly to confirm the importance of the occasion and to ensure
that witnesses realise they may be punished for telling lies
 If witnesses object to taking the oath, they may affirm that they’ll tell the truth
 If witnesses don’t understand the nature and significance of an oath or affirmation,
they’re warned by the court to tell the truth
 Usually, in the case of young children, who don’t understand what it means to take an oath,
the court will test whether they know the difference between the truth and lies
 If it seems that they do, the court wil be satisfied that they may testify and warn them to tell
the truth

2.3. In the presence of the public and the parties

 Evidence is given in public and in the presence of the parties to ensure the fair
administration of justice
 Schmidt and Rademeyer suggest that the reason for this is to give the community the
chance to see that justice is being done during a trial
 There are exceptions to this rule, e.g. evidence by complainants in sexual crimes or youths
 The presiding officer then has a discretion to order that the trial be heard being closed doors

 Section 170A of the CPA provides that when a presiding officer is of the opinion that a
witness under the biological or mental age of 18 years would be exposed to undue mental
stress or suffering if he/she testifies at the criminal hearing, the court may appoint a
competent person, e.g. a social worker, as an intermediary to enable the witness to give
his/her evidence through that intermediary

 A witness for whom the court has appointed an intermediary may not be examined in any
way other than through that intermediary, except if examination takes place by the court
 Normally, this evidence is given in a separate room that’s linked to the court by closed-circuit
television

 This procedure doesn’t infringe an accused’s right to a public hearing because the witness
simply testifies in a separate room through an intermediary
 The accused still retains his/her right to cross-examine the witness

2.4. Subject to examination

 All state witnesses are examined orally by the public prosecutor during examination-in-chief
 The purpose is to guide the witnesses into giving a logical and detailed version of the events
to the court

 The accused or his/her representative then has the chance to cross-examine the state
witnesses
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 The purpose of cross-examination is to test the credibility of the witnesses and the reliability
of their evidence
 The witnesses must also be informed of where the accused differs from them to enable the
witnesses to respond to the version of the accused
 The truth and accuracy of a witness’s evidence can be tested through this process of cross-
examination

 Examination includes questions by the public prosecutor to clarify matters

 This is done during re-examination, which is conducted after cross-examination by the
defence
 The purpose thereof is to rectify any misunderstandings, incorrect impressions or false
perceptions that arose during cross-examination
 The presiding officer also has the right to examine the witnesses at any time during the trial
but only to clarify any uncertainties

3. Real evidence
 Real evidence is an object that, upon proper identification, becomes evidence of itself
 Just after a crime has been committed, the crime scene is a potentially valuable source of
real evidence
 The investigating officer must therefore do everything possible to ensure that this evidence
isn’t lost
 The following are examples of real evidence:

3.1. A person as an object

 Usually, real evidence refers to exhibits shown in court, e.g. a bloodstained murder weapon
or stolen goods
 However, a person can also be an object that could have evidential value
 For instance, a court could estimate the age of a person by his/her appearance, such as
looking at his/her teeth or general physical development
 Furthermore, the identity of a person could be established from a DNA analysis of his/her
hair or other tissue

3.2. Marks made by a person

 Sometimes real evidence isn’t found on the person him/herself, but by the marks he/she
leaves behind, e.g. handwriting and prints
 Therefore. the investigating officer must, for instance, establish whether there are footprints
of the suspect at the scene and, if so, photograph them or even take plaster of Paris moulds
thereof
 Furthermore, objects found at the scene, such as a murder weapon, mustn’t be handled with
bare hands since it may contain fingerprints
 Therefore, the investigating officer must ensure that surfaces that the perpetrator could
possibly have touched are powdered as soon as possible in order to lift fingerprints
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3.3. Operation of technology

 There’s also another important category of real evidence, i.e. evidence of the operation of
some aspect of technology
 A used cartridge case or a bullet lodged in a wall, for instance, often forms very important
real evidence, especially if it can be proved that the cartridge or bullet was fired by a specific
firearm
 The science of ballistics, which consists of the study of projectiles and firearms, etc. can be
used to prove this

 If the readings and calculations of a piece of equipment, e.g. a Gatso meter or a computer,
are at issue in a court, an expert witness is usually used to satisfy the court that the
‘machine’s’ findings can be relied upon
 The printout so generated amounts to real evidence in the sense that it came about
automatically and not as a result of any input of information by a human being
 However, the court still has to be satisfied that the operation of the computer was reliable
during the time when the information was produced

3.4. Photographs of real evidence

 Section 232 of the CPA provides for proving an object by means of a photograph
thereof
 Such photograph is sufficient, even if the original object is available
 The court may nevertheless require the object to be produced as well
 However, it isn’t always necessary to display the object or a photograph to the court
 The court ruled that a conviction for unlawful possession of a firearm was in order, even
though the weapon hadn’t been shown to the court
 This section is normally used where an item is too bulky to produce in court
 However, the court pointed out that it was preferable to submit the object or item
o E.g. a person could be falsely accused of possessing dagga
 By requiring the dagga to be produced, the risk of making false accusations is likely to
decrease

3.5. Inspection in loco

 A final point to remember about real evidence is that the court can often obtain valuable
evidence by conducting an actual site inspection (in loco) where witnesses have the
chance to point out specific areas at the scene of a crime or accident

4. Documentary evidence
 Documentary evidence is another form of evidence apart from the testimony of witnesses
and the production of real evidence

 The simplest definition of a document is found in R v Daye: ‘any written thing capable of
being evidence’
 In Seccombe v Attorney-General, a document is defined as anything that contains the
written or pictorial proof of something

 Regardless of whether it’s in writing and in images, ‘if it contains written proof of facts, it’s a
document.’
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 Although photographs of real evidence and reports from devices, such as computers, seem
to fall under this definition of a document, they aren’t primarily considered as ‘documentary
evidence’

 Similar to real evidence, a document must usually be identified by a witness who submits it
to court
 However, since a document creates the impression that it’s all that it purports to be, whereas
it can easily be falsified, special rules are applicable to documentary evidence, e.g. a
document can’t be merely identified by the witness submitting it, it must be authenticated
 This means that if the document claims to contain the opinion of an expert, it’ll be
authenticated if it’s proved that that specific expert in fact compiled the document
 Note that the authenticity of a document is no guarantee of the truth of its contents
 Therefore, the information or opinion expressed in a document must be proved separately

Three basic rules must be obeyed before a court will admit a document into evidence:
 the contents of the document must be relevant to the facts in issue;
 the original document must be produced;
 the document must be authenticated.

 In proving the authenticity and contents of documents, a distinction must be made between
public, private and official documents
 This distinction is important since different rules regarding authenticity and proof apply with
regard to each type of document

4.1. Public documents

 A public document is drafted by a public official in carrying out a public duty, which is
intended for public use and to which the public have a right of access, e.g. a birth
certificate and a title deed
 To say that the document must be intended for public use means that it must have been
made as a permanent record with the purpose of enabling the public to refer to it
 The official who drafts a public document has a duty to ensure that it’s correct
 Before writing the document, the official also has to ensure that the public is entitled to have
the information that’s contained in the document, i.e. it mustn’t be confidential or private
information

 A public document is proof of the authenticity and of the truth of the contents of the
document upon production
 The reason is that the right of access to a public document by the public is regarded as a
guarantee of the truth of the content of that document

 Section 233(1) of the CPA also provide that a copy of, or extract from, a public document, is
admissible as evidence in criminal proceedings if it’s proved to be an examined copy (or
extract), or if it purports to be signed and certified as a true copy (or extract copy) by the
official into whose custody the original document is entrusted

 Public documents are usually submitted to the court by the official into whose custody
they’re entrusted
 It’s therefore not necessary to prove that public documents are authentic
 Moreover, the contents of the documents don’t need to be proved to be true either
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 Neither is it necessary to submit the original documents because usually a certified copy of a
public document is sufficient proof of the facts contained in it

4.2. Private documents

4.2.1. Introduction
 A private document is any document that’s not a public document, for instance, a
receipt as proof of payment or a report by an expert
 Therefore, most documents will fall into this category
 If the document is in the possession of the party who wants to use it in favour of his/her own
case, it’s usually produced and identified (authenticated) by a competent witness, such as
the person who personally received the document as proof of payment, or the expert who
compiled the report
 However, even if a document is authenticated by a witness it isn’t necessarily admissible,
e.g. if the content consists of hearsay evidence the court won’t admit it as evidence

4.2.2. Persons competent to submit private documents

 In general, the prosecutor or legal representative can’t submit a private document
 It must usually be submitted by the following categories of people, who can identify the
document and testify to its authenticity:

(a) Author or signatory thereof

 Because these people are in the best position to identify the document and testify as to its
authenticity, they’re most often used as witnesses in court cases

(b) The attesting witness to the document

 The only instance where the evidence of an attesting witness is required to prove a
document is in the case of a will

(c) A person who can identify the handwriting

 If the author or a witness isn’t available, someone who can identify the handwriting or
signature of the person who drafted or signed the document may prove the authenticity of
such document

(d) A person who found the document in possession of the opposing party

(e) A person in whose lawful possession the document is

 A person who has lawful custody or control over a document may also submit it
 Two kinds of documents need to be considered in this regard:
o documents older than 20 years
o official documents
 A document older than 20 years which comes from proper custody, i.e. from a person or a
place where one would reasonably expect to find it if authentic, is presumed to be authentic
 As far as an official document is concerned, it isn’t required that the head of the state
department or office in whose custody the document is, should produce it personally; it can
be done by a person authorised thereto by such head

 Proof of authenticity of a document is not required when:

o it’s discovered (disclosed) by the opposing party in terms of the rules of court and he/she
is requested to submit it to court;
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o judicial notice is taken of the document;

o the testator admits to its authenticity;
o the document is admissible upon mere production in terms of legislation;
o it’s a foreign document that’s proved to be authentic in its land of origin.

4.3. Official documents

 An official document is kept in the custody or under the control of a state official by
virtue of his/her office, regardless of who drafted it
 The word ‘state’ here includes the provincial administration
 An official document can be a private or public document

 A private official document’s contents can’t become evidence upon mere production of the
document
 The submission of a private official document proves only that such a document exists and
that the person who drafted it has expressed the ideas contained in it
 If it’s necessary to prove the truth of the contents, a witness who’s familiar with the
contents must be called to testify

 Section 234 of the CPA provides for the proof of official documents
 It states that in criminal proceedings it’s sufficient to prove an original official document,
which is in the custody or under the control of any state official by virtue of his/her office, if a
copy of or extract from it’s produced in evidence at these proceedings
 This copy or extract must be certified as a true copy or extract by the head of the department
concerned or a state official authorised to do so by that head of such department

 An original official document can be submitted as evidence only with the consent of the
director of public prosecutions
 The head of the department concerned need not appear in person to produce an original
document, but anyone authorised to do so by the head of department may submit it
 This section was intended to make official documents accessible to parties in a criminal case
 In S v Mpumlo, the court decided that it’s sufficient in terms of s 234(1) to prove an original
official document by means of a certified copy
 The court found that the mere production of an official document or a certified copy of it’s
proof of its authenticity, but not necessarily of the truth of its contents

4.4. Primary and secondary evidence

 The general rule is that if the content of the document needs to be proved, the original
must be presented as evidence
 An original document is considered as primary evidence, whereas secondary evidence
usually refers to a copy of the document or oral evidence
 Secondary evidence may in exceptional cases be used to prove the contents of a document
in the following circumstances:
o the document is lost or destroyed;
o the document is in the possession of the opposing party;
o the document is in the possession of a third part;
o it’s impossible or inconvenient to produce the original;
o it’s permitted by statute.
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 Proof must be given that the original is lost or has been destroyed and that the document
couldn’t be found after a thorough search
 The importance of the document is a factor to be considered in determining the adequacy of
the search
 Even if the original has been destroyed intentionally, the court will admit a copy, as long as
the original hasn’t been destroyed fraudulently with a view to litigation

 If the document is in the possession of the opposing party, who has failed to produce it after
having been given reasonable notice, or in the possession of a third party and can’t be
obtained by means of a witness subpoena, secondary evidence will also be allowed

 It might also be impossible or inconvenient to produce the original, e.g. writing on a wall or
gravestone or where it would be illegal to remove the document
 Finally, the document may be an official one
 Although the consent of the director of public prosecutions is needed to submit an original
official document, a copy can’t be refused

Also take note that a document can have more than one original, e.g. –
 a document drafted in duplicate or triplicate and of which each copy is signed;
 different copies of a book, all amount to duplicate originals;
 computer printouts which are certified as authentic are duplicate originals and admissible
as evidence;
 roneoed specimens can be regarded as roneoed original specimens;
 all ‘copies’ made with carbon paper are originals

5. Computer-generated and electronic evidence

 Electronic evidence is a form of documentary evidence and traditionally, the court’s
approach to it can be described as conservative and exclusionary, i.e. they don’t readily
accept it
 Therefore, electronic evidence mustn’t only be relevant and otherwise admissible, but
must also overcome the rules relating to authenticity and the production of the
original version

 In a technologically advanced age, computers and other electronic devices have come a
significant part of everyday life
 Certain special provisions, which have been made for the admissibility of computer-
generated and other electronic evidence in court, will be discussed below.

5.1. Business records

 Strictly speaking, computer printouts are copies of the original document, which is stored in
electronic form on a disk
 However, the reality is that computer printouts are the best available evidence in most
businesses

 Section 221 of the CPA provides for the admissibility of certain trade or business records in
criminal proceedings and is usually used to submit computer-generated evidence before a
court
 When direct oral evidence of a fact would be admissible, any statement contained in a
document and tending to establish that fact shall, upon production of the document,
be admissible as evidence of that fact
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 This section is applicable to trade and business records only, which are the result of the
input and knowledge of a number of people, and may be used if the persons that supplied
the information can’t testify in the proceedings due to their unavailability, or because they
don’t have any recollection of the matter due to specific circumstances such as the time that
has passed since the compilation of the record

 ‘Document’ is defined in s 221(5) to include ‘any device by means of which information is

recorded or stored’, which is why computer-generated evidence can also fall under this
section
 The information on a computer printout is obtained from all everyday, regular and routine
inputs by people who have personal knowledge of the information
 The data stored on a computer’s hard drive, although in unreadable form, is still correct
 The printout is merely the readable version of what was stored on the computer’s hard drive
by people who had original knowledge of the stored information

 In S v Harper, a computer printout was accepted as proof of its contents

 The court referred to the definition of ‘document’ in s 221(5) and ruled that if computer
printouts consist of typed words and characters and fall prima facie within the ordinary
meaning of the word ‘document’, they’re admissible
 However, if the computer was used to sort and collate information and make adjustments, a
printout thereof wouldn’t fall under such definition
 Therefore, information obtained from computer printouts would be admissible only if the
function of the computer was merely to record and store the information
 Where information is generated by the mechanical operation of a computer, without human
intervention, the evidence will amount to real evidence and s 221 won’t be applicable

The requirements of s 221(1) of the CPA are mainly as follows:

 the facts in the document must be such that direct oral evidence thereof would’ve been
admissible;
 the document must relate to a trade or business and have been compiled in the ordinary
course of business. The facts must therefore have been entered on the computer as part
of the routine of the business;
 the persons who entered the data must have or be reasonably supposed to have personal
knowledge of the matters dealt with in the information supplied.

 Such a document may also only replace oral evidence if the witnesses;
o are dead;
o are outside the Republic;
o are unfit because of their physical or mental condition to appear as witnesses;
o can’t be identified with reasonable diligence; or
o can’t reasonably be expected to recall the matter, taking into account the time that has
elapsed or any other circumstances, such as frequency of input

 The court can also examine computer printouts and, depending on their form and content,
assess whether they’re admissible
 The court therefore has a discretion
 If it decides to admit a computer printout, the evidential value of it as a document must still
be determined

5.2. Banking records and documentation

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 According to s 236(1) of the CPA, accounting records and documents in possession of a

bank shall be admissible in evidence provided they’re accompanied by an affidavit by a
person stating that –
o he/she is in the service of the bank;
o the relevant documents are ordinary records and documents of the bank;
o the said entries have been made in the usual and ordinary course of the business of the
bank or the said document has been compiled, printed or obtained in the usual and
ordinary course of the business of the bank; and
o such accounting records or documents are in the custody or under the control of the bank.

 An entry, record or documents will constitute proof of the contents thereof if it’s accompanied
by an affidavit in which the deponent states that –
o he/she is in service of the said bank;
o he/she examined the said entry, accounting record or document; and
o the attached copy is a correct copy of such entry or document.

 Note that a bank can only be compelled to produce such records and documents by an
order of court

5.3. The Electronic Communications and Transactions Act (ECT Act)

 The provisions of the ECT Act govern the admissibility of data or information arising from an
electronic communications transaction
 The ECT Act moves beyond the concept of computer printouts and focuses on terms such
as ‘data’ and ‘data messages’, which may be displayed in court on an output device other
than paper

 Section 15(1) of the ECT Act states that in any legal proceedings, the rules of evidence
mustn’t be applied so as to deny the admissibility of a data message in evidence merely on
the grounds that the evidence is contained in a data message, or on the grounds that it isn’t
in its original form (provided that it’s the best evidence that the person adducing it could
reasonably be expected to obtain)

 The court expressed the view that s 15 facilitates the admissibility of evidence by excluding
rules of evidence which deny the admissibility of electronic evidence purely because of its
origin

 It’s also provided by the ECT Act that a data message made by a person in the ordinary
course of business, or a copy or printout of or an extract from such data message, which is
certified to be correct by an officer in the service of such person, is on its mere production in
any civil, criminal, administrative or disciplinary proceedings admissible in evidence against
any person and rebuttable proof of the facts contained in such record, copy, printout or
extract

6. Video and audio recordings

 The Supreme Court of Appeal held that the video footage recorded by the security cameras
of a bank and which have been downloaded on the computer system, was unquestionably
original and constituted real evidence
 Earlier, no clarity existed on whether audio tapes and video recordings constituted
documentary evidence or real evidence
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 The importance of the distinction lies in the admissibility requirements

 If they’re documentary evidence, it must be proved that –
o the tapes are authentic;
o their content is the truth; and
o the tapes or recordings are the originals, and not copies of the originals

 On the other hand, if the tapes are real evidence, these facts don’t need to be proved to
admit the tapes as evidence, although it may influence the reliability of the tapes
 However, this then comes an issue of evidential value and not of admissibility

 The then Appellate Division had to decide whether it’s a prerequisite for the prosecution to
prove that an audio tape is authentic before it can be allowed to admit it as evidence
 Although the court didn’t find it necessary to rule on this point, it made a passing remark that
he approach in S v Baleka (above, holding them to be real evidence) was to be preferred,
i.e. an audio tape should be regarded as real evidence
 The court remarked that even if proof of authenticity was a prerequisite for the admissibility
of the recording, it was of the opinion that the recording couldn’t be excluded solely on the
basis that interferences appeared in it
 Each interference must be investigated to determine whether the recording is a distorted
version of the truth
 Obviously, the evidential value may be influenced, but it doesn’t mean that the recording
won’t be admitted only because there’s a suggestion of unauthenticity
 The key issue is whether the prosecution has excluded the reasonable possibility that the
recording isn’t genuine

 It was held that there’s no difference between video and audio tapes
 The then Natal Provincial Division also decided that these tapes and documentary evidence
and the state therefore has to prove –
o hat the tapes are the originals;
o that there’s no reasonable possibility that there has been any tampering with the tapes;
o that the tapes are authentic;
o the identity of the speakers; and
o that the tapes and the contents are identified

 The court ruled that a video file isn’t a document and that video films and tape recordings
are real evidence
 The authenticity relates only to their evidential value and not their admissibility
 In the Baleka case (which also held that they’re real evidence), the court decided that
originality affects the admissibility and that authenticity affects only the evidential value of the
tapes concerned
 It also ruled that no distinction should be made between video and audio tapes
 The court then concluded that video tapes are real evidence
 Proof of authenticity and originality is therefore not required for admissibility
 Defects in the tapes, such as an inaudible sound track or poor image; therefore, affect the
weight of the evidence rather than its admissibility
 The state only needs to show that the tapes are relevant
 The court also held that to determine whether the tape recording is admissible, it isn’t
necessary for a witness to testify that he/she saw and heard that the events allegedly
recorded were correctly recorded
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 All that’s required is that the tape must be relevant, which it will be if it has sufficient
evidential value
 The tape will have evidential value when there’s a logical connection between the tape and
the facts in dispute
 Prima facie evidence to this effect will suffice
 As already mentioned, the then Appeal Court remarked that the approach in the Baleka case
was more acceptable

 Therefore, the courts are in favour of the view that videos and tape recording are real
evidence
 Proof of authenticity and originality is therefore not required for admissibility as is the case
with documentary evidence
 Defects in the tapes, or videos, such as an inaudible sound track or poor image; therefore,
affect the weight of the evidence rather than its admissibility
 The state only needs to show that the tapes are relevant

7. Photographs and films

 Photographs and films may be either documentary evidence or real evidence, depending on
the purpose for which they’re presented
 When they’re presented because they were stolen, they’re real evidence
 If the photograph contains fingerprints, this is also real evidence

 However, photographs and films also fall into the category of documentary evidence, e.g.
when s 232 of the CPA is applicable
 In such a case, the same principles as those applicable to documents apply, only in a
narrower sense
 When a photograph is presented to prove what the camera recorded, it may lean towards
being documentary evidence
 The object (film or paper) isn’t important, but what was reproduced
 The contents are therefore important
 In this respect, photographs are then similar to documents

 However, a photograph is used as means of proof at a speed trap and thus amounted to real
evidence
 The only issue before court wasn’t whether the speed measuring instrument was trustworthy
and correctly set up, but whether the photograph was admissible without corroborative
evidence that identified the photograph as a true representation of the object
 The court held that the science of measuring speed by means of a camera has already
reached such a level of general acceptability that judicial notice may be taken of the fact that
a photographer is a true reflection of what happened in front of the camera
 Therefore, the trustworthiness of a device or instrument may also be based upon general
experience as to the class of instrument in question, together with knowledge that the
mechanism of the particular instrument is of a trustworthy type
 The proven or known trustworthiness of the particular instrument (like a camera) and the
manner in which it was used are therefore relevant in this regard
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Chapter 18: Privilege

1. Introduction
read through the introduction

2. State privilege
 State privilege (also known as public policy or public interest immunity) provides that
relevant and otherwise admissible evidence may be withheld or excluded on the ground that
its production or admission would be against public policy or harmful to the public
interest
 In terms of s 202 of the CPA, such information is privileged from disclosure
 In all instances where state privilege is claimed, the courts will have a discretion to
determine whether or not the privilege should be upheld

The state privileges that usually play an important role in policing protect the following:
 information regarding the methods used to investigate crime;
 information contained in police dockets;
 identity of informers and the information they convey to the police.

2.1. Police methods

 South African courts have accepted the fact that it may sometimes be in the interests of the
community not to disclose specific methods that the police use to investigate crime
 The court remarked that the whole business of crime is conducted in secret and in devious
ways against the interests of the state
 It therefore follows that the work of defeating the operations of criminals must also be
conducted in secret
 By not revealing methods of police investigation to the public, who include potential
criminals, the criminals will be prevented from devising ways of circumventing police
operations in order to commit their crimes

 This is also confirmed by the Promotion of Access to Information Act, which provides that
requests for access to a record may be refused if the disclosure of any methods, techniques,
procedures or guidelines for the prevention, detection, curtailment or investigation of crime
or the prosecution of alleged offenders, could reasonably be expected to prejudice the
effectiveness of those methods, or lead to the circumvention of the law or facilitate the
commission of an offence

2.2. Police dockets

 Prior to 27 April 1994, the state had a privilege with regard to written statements obtained
from witnesses, potential witnesses and suspects during the course of a criminal
investigation with a view to prosecuting crime
 At that stage, the only exception to this privilege was contained in s 335 of the CPA
 This section entitles a person who has made a written statement to a peace officer and
against whom criminal proceedings are thereafter instituted in connection with that matter, to
have access to a copy of such statement

 The question of docket privilege was first fully discussed by the then Appellate Division
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 The court ruled that one of the parties to a case doesn’t need to disclose his/her evidence to
the opposing party because the opponent may interfere with the witnesses and may
fabricate evidence to rebut the opponent’s case, and may therefore present his/her case in
such a way that it will be to the detriment of the judicial process
 This privilege is similar to legal professional privilege, since the prosecution aims to use this
information, obtained in such a manner, to prosecute the accused

 With the enactment of the Interim Constitution on 27 April 1994, the legal position regarding
access to police dockets was threatened by the entrenched rights to a fair trial and to the
right of access to information
 This matter was referred to the Constitutional Court for adjudication
 The court was faced with two questions that related to police dockets:
o Whether an accused may use his/her right to access to information in exercising his/her
right to a fair trial. I.e. does an accused have a right of access to the police docket?
o Whether the accused or his/her legal representative may consult with state witnesses
without the consent of the prosecution

2.2.1. Access to police docket

 The Constitutional Court recognised that the Interim Constitution embodied a culture of
openness and democracy and universal human rights for all South Africans
 The vision for the future is governed by what’s justifiable in an open and democratic society
based on freedom and equality, and is based on a legal culture of accountability and
transparency
 The court identified the question to be whether the right to a fair trial includes the
right to have access to a police docket
 It was held that the answer would depend on the circumstances of each case
 Ordinarily, an accused should be entitled to have access to the statements of
prosecution witnesses, at least, but the prosecution may, in a particular case, be able
to justify the denial of such access on the grounds that it isn’t justified for the
purposes of a fair trial.

 Usually, the state only supplied the accused with the charge sheet and a summary of
the essential facts
 However, these summaries sometimes included no more information than the
indictment
 The Constitutional Court expressed the opinion that this practice didn’t always meet
the requirement of ‘sufficient information’ to enable an accused to prepare properly for a
trial, and that it didn’t necessarily facilitate a fair trial as envisaged in the Interim
Constitution
 The Constitutional Court therefore ruled that the blanket docket privilege from
the pre-Constitutional era in South Africa was unconstitutional

 Nowadays, the practice is followed of providing the defence with copies of all witness
statements and other evidence that’ll be used by the prosecution during the trial
 In situations where the state objects to such disclosure, the crucial determinant will still be
what’s fair in the circumstances
 Note that the accused is only entitled to discovery of the docket prior to his/her trial, and not
with the purposes of a bail application
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 In this regard, s 60(14) of the CPA provides that, although an accused shall not have access
to any information, record or document in the police docket for bail proceedings, the
prosecutor may still allow such access
 Furthermore, an accused isn’t entitled to have access to the B and C sections of the police
docket

2.2.2. Consultation with state witnesses

 In the past, ethical rules existed which stipulated that an accused may not consult with state
witnesses, except with the consent of and on the conditions determined by the prosecution
 In most instances, this practice won’t constitute a denial of the accused’s right to a fair trial,
because the accused or his/her legal representative will have an opportunity of cross-
examining the witnesses during the trial

 However, the Constitutional Court recognised that there might be circumstances

where an accused’s right to a fair trial would be impaired if, on the special facts of the
particular case, he/she wasn’t afforded an opportunity to consult with state witnesses
 The Constitutional Court consequently altered the rule that the defence may under no
circumstances consult with state witnesses without the permission of the prosecution, by
providing that if such a request is refused, the accused is entitled to approach the court for
permission in this regard

 If the state shows that a reasonable person in the position of the prosecutor would believe
that the consultation would lead to the intimidation of the witness, or that other reasons exist
that would cause such a consultation not to be in the interests of justice, the court will
usually decline the request
 However, even if the state were able to prove this, the court still has a discretion to authorise
the consultation if the interests of the accused outweigh the interests of the state
 No witness is obliged to attend such a consultation
 The director of public prosecutions or the prosecutor, or a person nominate on behalf of any
of these persons, has the right to attend such a consultation and to record it

2.3. The informer

 It’s in the public interest to prevent and solve crime and to bring criminals before court
 Although the police are primarily responsible for the detection of crime and the identification
of criminals, the co-operation of the community is crucial and should therefore be
encouraged
 Sometimes a person who provides information may become the target of the criminals
concerned
 Therefore, in order to protect an informer and his/her family; to ensure that the informer can
be used in future; and to encourage the public to come forward with information on crime,
the identity of police informers is protected by a privilege
 This privilege not only protects the community’s interests by ensuring more effective
policing, but also the interests of individual informers by keeping their identity secret

 In terms of this privilege, the name of the informer may be withheld, as well as the
contents of his/her communication
 The court may uphold the privilege at the request of either the state or the informer
 The Constitutional Court recognised the state’s right to rely on informer’s privilege
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 According to the then Appellate Division, the following requirements must usually be met
before an informer can rely on the protection of this privilege:
o the communications by the informer must’ve been based on the trust that it wouldn’t be
disclosed;
o the information provided by the informer must initiate the criminal prosecution; therefore, a
person who happens to be at a crime scene is usually not an informer, but merely an
ordinary witness;
o the informer must provide information that’s prejudicial to other whose enmity (hostility)
he/she may thereby provoke;
o it must be in the public interest that the informer’s identity be protected. If a person who
was the victim of a crime (such as a robbery) goes to a police station and lays a charge,
he/she isn’t an informer because it isn’t in the public interest that his/her identity remains a
secret;
o the information must be given to officers of justice.

 The court restricted informer privilege to those cases where public policy requires the
name of the informer or his/her information to be kept secret in order to promote state
interests
 Examples given by the court included that some confidential relationship should’ve existed
between the state and the informer, or that the state should’ve desired it sources of
information to be kept secret because the information related to matters in respect of which
the informer might not have given the information if he/she hadn’t been protected

 However, the court also gave three examples of instances where the state couldn’t rely on
this privilege any longer, namely:
o when it’s material to the ends of justice;
o if it’s necessary to show the accused’s innocence; and
o when the reason for secrecy no longer exists, e.g. when the identity of the informer is
known. Therefore, the victim of a crime won’t be able to invoke this privilege, because
his/her identity will be known

 A police official who reports a crime can never protect his/her identity by using the informer’s
privilege
 If it’s in the public interest that the identity of the police official is kept secret, e.g. if he/she
infiltrated an illegal organisation, it won’t be regarded as informer privilege, but rather as the
above-mentioned state privilege on police methods

3. Private privilege
3.1. Legal professional privilege
 Any confidential communication made directly between a client and his/her legal adviser, or
made by means of an agent, is privileged and a person can’t be compelled to disclose such
communication
 Neither may any communication which was obtained with a view to litigation be disclosed
without the consent of such client

 Witness statements for the defence are protected from disclosure because, for a legal
representative’s investigation to be effective, the client shouldn’t be afraid to fully disclose all
the information in his/her possession
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 Consequently, it’s necessary to protect all communications between the client and the legal
representative, not only that which is communicated by the client to the legal representative,
but also that which the legal representative discovered with the help of the client
 This can be regarded as an extension of the communications between legal representative
and client

 The relationship between the legal practitioner and his/her client is deemed so
important by the legal system that s 201 of the CPA specifically prohibits disclosure
to the court of any communications between the accused and his/her legal
representative

 The reason why this confidential, and usually extremely relevant, evidence can’t be used, is
that the whole nature of our legal system is based on frank communication between accused
and legal representative
 The argument is that no accused will be prepared to be honest with his/her legal
representative if such a representative could later be forced to disclose all this
information to the court
 Without frankness on the part of the client, it’s impossible for the legal representative to
represent the client effectively

 In contrast to most other privileges, legal professional privilege doesn’t belong to the
witness (legal representative), but to the client
 Without the permission of his/her client, the legal representative can therefore not disclose
the contents of their communications to the court or anybody else

 Since the enforcement of privilege can affect the court process negatively, by denying the
court important information, it’s usually applied very strictly.
 Legal professional privilege can only be claimed successfully when the following
requirements are strictly adhered to:
o The legal practitioner must have acted in his/her professional capacity.
I.e. not simply as a friend or business associate. In order to determine in which capacity
he/she acted, one of the aspects the court will look at is whether the legal practitioner was
remunerated for his/her services.
o The communication between the parties must’ve been made with the exclusive
purpose of obtaining legal advice.
If the legal advice was obtained with a criminal or unlawful purpose, legal professional
privilege can’t be claimed. Information that’s put in writing before a decision is made to
obtain legal advice and before litigation is expected falls outside the privilege even if it’s
later submitted to the legal representative. E.g. if a person makes a confession in a letter
he/she writes to a friend before his/her arrest and then gives his/her attorney this letter,
the letter isn’t privileged merely because it was submitted to a legal representative.
However, if litigation is already expected and the person makes notes before he/she
consults his/her legal representative, these notes are part of the privileged information.
o The communications between the legal adviser and his/her client must’ve taken
place on a confidential basis.
The court ruled that a client can’t be compelled to disclose oral or documentary
communications that were made in confidence between him/herself and his/her legal
representative. The same principle applies to oral or documentary communications that
the client obtained from third parties with a view to laying them before the legal adviser for
advice. Communications between the legal representative (or the client) and a third can
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therefore also be protected by the legal professional privilege, but in such a case an
additional requirement must be met: such statements are privileged only if they’re made in
view of litigation which has already started or which is contemplated as a definite
possibility by the litigant.
o The client must claim the privilege.
It’s the duty of the legal representative to claim the privilege on behalf of the client.
However, if the client waives the privilege, the waiver will bind the legal representative

 This privilege covers all information and evidence that were obtained by a legal
representative him/herself or by his/her client or anybody else, on request of the legal
representative or the client, on condition that the statements were obtained with a view to
existing or contemplated litigation

 Such a situation will usually arise where the legal representative (or the client) consults an
expert such as a doctor, psychologist or handwriting expert in order to obtain advice about a
pending case
 If a third party makes a statement to the client, it’s privileged only if it’s obtained with the
purpose of submitting it to the legal representative
 However, this third person isn’t actually required to be called as a witness later

 Although the requirements for the privilege of statements obtained from independent parties
by the legal representative or client, and those obtained from ‘agents’ of the client who act
on his/her behalf, are the same, the scope of privilege differs
o E.g. a private detective who’s hired by the litigating party to collect evidence about the
case
 Such an agent is bound by the decision of the client whether or not to disclose the
information
 However, the statement of the independent third party is privileged at the discretion of the
third party; i.e. the third person can him/herself decide to disclose the contents of the
statement to the court

 Another important aspect that influences the work of a police official is the possible seizure
of privileged documents
 The court ruled that legal professional privilege is a fundamental right that’s essential to the
proper functioning of the legal system
 The courts confirmed this and ruled that legal professional privilege can be claimed to
prevent
the seizure by warrant of a privileged document

3.2. Other professional privilege

 Although the legal profession is the only one for which statutory provision is made, the
question arises as to whether professional privilege can be extended to other professions
that also deal with confidential information

 The following cases have been raised:

o Confidential financial information that falls within the bank manager’s knowledge isn’t
privileged and the bank manager may be compelled to disclose this information to a court.
However, s 236(4) of the CPA makes provision for a limited privilege in the sense that the
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bank need not produce any accounting record to the court unless the court orders such
production.
o A doctor or psychologist can’t claim professional privilege to protect confidential
information that his/her patient revealed to him/her. The only exception is in the case of
an investigation into the mental capacity of the accused in terms of s 77(1) or 78(2) of the
CPA. Section 79(7) of the CPA stipulates that a statement which an accused makes to a
doctor during such an investigation is inadmissible as evidence against the accused,
‘except to the extent to which it may be relevant to the determination of the mental
condition of the accused.’
o The information a journalist obtains in his/her professional capacity isn’t privileged and the
journalist may be compelled to disclose the source of his/her information. The courts have
ruled that there’s no professional privilege for clergymen, accountants or insurers in South
African law. However, it has been proposed that our courts have a wide discretion to
exclude evidence on the grounds of public interest although the evidence might not be
privileged.

 The practical implication of the above is that all the persons in the above categories will
normally be competent and compellable witnesses and the police will be able to legal seize
information in their possession and compel these persons to disclose information obtained in
the course of their work, except in cases where such persons can rely on one of the legally
recognised privileges, or the information is protected by the stipulations of a specific statute

3.3. Marital privilege

 In criminal cases, the general rule is that a spouse isn’t compelled to give evidence against
the other spouse
 However, there are instances where a spouse is both a competent and compellable
witness and where he/she is competent, but not compellable
 Two types of marital privilege can be distinguished, namely instances where a spouse may
refuse to disclose communication between the spouses, and instances where a spouse may
refuse to give evidence regarding his/her knowledge about a crime committed by the other
spouse

 Section 195 of the CPA stipulates that the wife or husband of an accused shall be
competent, but not compellable, to give evidence for the prosecution in criminal
proceedings, but shall be competent and compellable to give evidence for the
prosecution at such proceedings where the accused is charged with –
(a) any offence committed against the person of either of them or of a child of either
of them or of a child that’s in the care of either of them;
(b) any offence under chapter 8 of the Child Care Act, committed in respect of any
child of either of them;
(c) any contravention of any provision of s 31(1) of the Maintenance Act or of such
provision as applied by any other law;
(d) bigamy;
(e) incest as contemplated in s 12 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act;
(f) abduction;
(g) any contravention of any provision of s 2, 8, 10, 12, 12A, 17 or 20 of the Sexual
Offences Act;
any contravention of any provision of s 17 or 23 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act;
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(h) perjury committed in connection with or for the purpose of any judicial proceedings
instituted or to be instituted or contemplated by the one of them against the other, or in
connection with or for the purpose of criminal proceedings in respect of any offence
included in this subsection;
(i) the statutory offence of making a false statement in any affidavit or any affirmed,
solemn or attested declaration if it’s made in connection with or for the purpose of any
such proceedings as are mentioned in para (h)

 Section 196 of the CPA stipulates that an accused and his/her spouse shall be a
competent witness for the defence at every stage of criminal proceedings, whether or
not the accused is charged jointly with any other person
 An accused shall, however, not be called as a witness except upon his/her own application,
and the spouse of an accused shall not be compellable witness where a co-accused calls
such a spouse as a witness for the defence

 According to s 198 of the CPA, a spouse shall not at criminal proceedings be

compelled to disclose any communication mad by the other spouse to him/her during
the marriage
 This also applies to a communication made during the subsistence of a marriage that has
been dissolved or annulled by a competent court
 The spouse who received the communication may refuse or agree to give evidence about
the communication
 The spouse who made the communication thus can’t claim the privilege

 A court must inform a party about its right to claim the marital privilege
 However, it’s up to the party to whom the privilege belongs to claim or waive the privilege
 Only in those cases mentioned specifically in s 195, which deals with family and
sexually-related crimes, can spouses be compelled to give evidence against each
other
 The privilege belongs to the spouse to whom a communication was made, and that spouse
can decide to claim or waive the privilege

 In terms of s 195(2) of the CPA, ‘marriage’ shall include a customary marriage or customary
union concluded under the indigenous law and custom of any of the indigenous peoples of
the country or any marriage concluded under any system of religious law
 Marital privilege will also protect partners in a civil union as provided for in the Civil Union Art
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3.4. Privilege against self-incrimination

 In terms of s 203 of the CPA, a witness can’t be compelled in criminal proceedings to
answer a question that may expose him/her to a criminal charge
 The purpose of this privilege is to encourage people to come forward to give evidence
without fear that they’ll be compelled to incriminate themselves in the witness box
 The witness may refuse to answer an incriminating question, but may not refuse to give
evidence about information that isn’t privileged

 The privilege may not be claimed only during a hearing, but also when a person is requested
in terms of s 205 of the CPA to give information about an alleged crime before a magistrate
or judge
 A witness at an inquest is also entitled to withhold incriminating information from the court

 The privilege belongs to the witness and must be claimed by him/her

 Since a large percentage of accused persons in South African courts are without legal
representation, and aren’t aware of their rights, a rule of practice has developed which
provides that the presiding officer is under an obligation to inform the witness about his/her
right to remain silent

 The rule that the witness must be made aware of his/her right to remain silent also applies to
inquests and s 205 proceedings
 In terms of s 205 of the CPA, a magistrate or judge may take down evidence from a witness
in connection with an alleged crime
 After the witness has been informed about his/her privilege, it’s up to the witness to decide
to disclose the privileged information
 The presiding official can’t make a decision on behalf of the witness
 If the witness has already incriminated him/herself with regard to a certain crime, he/she can
no longer rely on the privilege in order to escape further questioning

 The privilege can be claimed with regard to information that indicates directly that the
witness has committed a crime, and it can also be claimed in respect of any
information that can connect the witness in a crime
o E.g. a witness may refuse to answer a question about his/her whereabouts at a certain
time, because it would effectively place him/her at the scene of the crime
 The witness may not refuse to answer a question if the answer will expose him/her to
administrative action (such as deportation) or will lead to civil liability

 In South African criminal procedure, the accused is allowed to give evidence in his/her own
defence if he/she wishes to do so, but he/she isn’t compelled to do so
 However, if he/she decides to give evidence, he/she is treated like an ordinary witness and
is exposed to cross-examination by the state
 This is confirmed in s 35(3)(h) of the Constitution, which stipulates that every accused has
the right to a fair trial, which shall include the right to be presumed innocent and to remain
silent during plea proceedings or trial and not to testify during trial

 As a witness, the accused is also entitled to the same privileges as any other witness and,
thus, also to the privilege against self-incrimination
 However, s 197 of the CPA governs the position of the accused when giving evidence
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 It determines that the accused is protected against questioning with regard to any offence
other than the one with which he/she is currently being charged
 If he/she is asked a question which implies that he/she was also involved in another crime,
he/she can refuse to answer it on the grounds of his/her privilege against self-incrimination
 The privilege is only waived with regard to the crime for which he/she is currently being
charged, but remains in force with regard to any other crimes

3.5. State witnesses: Indemnity against prosecution

 It sometimes happens that the prosecution just doesn’t have sufficient evidence against
accused persons
 In such instances, the CPA makes provision for the prosecution to use an accomplice, a co-
perpetrator or an accessory after the fact to testify against his/her former co-accused without
being able to rely on the privilege against self-incrimination
 In such cases, the prosecution will withdraw the charges against the co-accused, whom they
want to use as a witness, call that person to testify, and inform the court that the prosecution
intends to use the procedure created by s 204 of the CPA

 Section 204 makes provision for depriving a state witness of his/her privilege against
self-incrimination in exchange for indemnity against prosecution
 If the prosecutor doesn’t make use of s 204, such a person will be able to claim privilege
against self-incrimination and consequently refuse to answer any question that may expose
him/her to criminal prosecution

 Whenever the prosecutor during criminal proceedings invokes s 204 and informs the court
that any person called as a witness on behalf of the prosecution will be required by the
prosecution to answer questions which may incriminate such witness with regard to an
offence specified by the prosecutor, the court shall inform such witness that –
o heshe is obliged to give evidence at the proceedings in question;
o questions may be put to him/her which may incriminate him/her with regard to the
offence(s) specified by the prosecutor;
o he/she will be obliged to answer any question put to him/her, whether by the prosecution,
the accused or the court, notwithstanding the fact that the answer may incriminate him/her
with regard to any offence so specified;
o if he/she, in the opinion of the court, answers frankly and honestly all questions put to
him/her, indemnity regarding the specified offences will be given to him/her.

 The accused will then be lawfully obliged to answer all questions

 However, the witness may still claim privilege regarding any offence, other than those
specified by the prosecutor
 At the end of the case, the court decides whether the witness answered the questions
frankly and honestly
 It’s irregular to let the witness believe that he/she will obtain indemnity only if he/she
incriminates the accused
 A witness may be indemnified even if the accused is acquitted

 Although the privilege against self-incrimination may also be applied at inquests, it would
appear that the privilege is restricted at such proceedings
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 It was held that in exercising his/her discretion to uphold the privilege against self-
incrimination, the presiding officer at an inquest must ensure that the protection awarded by
the privilege wasn’t converted into a means of abuse.
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Chapter 19: Irrelevant and unreliable evidence

1. Introduction
read through the introduction

2. Opinion evidence
 Opinion evidence is given when witnesses draw their own inferences from their
observations and express their opinions on certain issues

2.1. General rule

 The rule is that a witness isn’t allowed to give his/her opinion to the court, but may only
describe the facts that he/she has observed
 The reason for this is that the primary purpose of a witness’s testimony is to assist the
presiding officer to reach the correct decision on the issue at hand
 If the presiding officer can therefore draw his/her own inferences regarding the issue
and form opinions on the basis of the knowledge and skills of the average person, it’s
unnecessary to present opinion evidence
 In such instances, the opinion of the witness has little or no evidential value because the
witness isn’t in a better position than the presiding officer to draw inferences or form an
opinion
 The court also noted that different people could have different opinions on the same matter
 A person who gives his/her opinion is therefore expressing his/her personal convictions
regarding a particular matter

 Since it’s the court’s function to make conclusions and draw inferences from the
facts presented, the presiding officer should never allow witnesses to make
deductions and thereby assume the function of the court
 Usually, a witness may therefore give evidence only on his/her observations and the court
must then itself draw the inferences, come to conclusions and apply the law to its
conclusions about the facts

2.2. Exceptions to the rule

 However, if the issue is such that the witness is in a better position than the presiding
officer to form an opinion, the opinion evidence will be admissible on the grounds of
its evidential value and its consequent relevance
 The opinion evidence is then no longer redundant because it can help the court to settle the
issue

 Consequently, South African courts admit opinion evidence every day

 Although reference is made to opinion evidence by both laypersons and experts, there’s no
difference in the requirements for admissibility
 The question is only whether the opinion evidence, given either by a layperson or an
expert, can make a valuable contribution to settling the issue before the court
 The admissibility of opinion evidence is therefore not dependent on the distinction between
the opinion of an expert and that of a layperson, but only whether the opinion of the
particular witness in the particular circumstances of the case can assist the court in
determining the issues
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2.2.1. Opinion evidence by laypersons can be admitted about a fact which is difficult to
describe other than by giving an opinion
 A few examples of the admissibility of opinions by laypersons are
o opinions about the approximate age of a person,
o estimates about distance and speed,
o about the sobriety of a person, and
o opinions concerning the identity of exhibits

 Usually, the opinion evidence of a layperson is prima facie evidence and, if it isn’t disputed,
the presiding officer may accept it
 The weight a presiding officer attaches to a layperson’s opinion depends on the nature of the
opinion evidence and the reasons that the witness gives for his/her opinion in support of
his/her inferences and conclusions

2.2.2. Experts may give opinion evidence on matters in which they’re experts
 Experts include doctors, engineers, fingerprint experts, forensic experts, auditors and
psychiatrists
 A police official can also be regarded as an expert if he/she has a formal qualification and
experience in a specific area
 The opinion evidence of an expert witness is admissible if, owing to the expert’s
special knowledge and experience, he/she is in a better position than the presiding
officer to draw inferences
 There are certain issues on which a presiding officer can’t decide without the help of an
expert witness
 In other instances, such as the sobriety of a person or identification of handwriting, where
expert witnesses aren’t absolutely essential, the expert’s evidence can still make a
significant contribution in most cases to help the presiding officer reach a decision

 The then Appeal Court noted that the true test of the admissibility of an expert witness’s
opinion was whether the court could obtain valuable assistance form the witness in the
matter in question
 The party wanting to present an expert’s evidence must satisfy the court that such evidence
won’t be redundant and irrelevant
 The presiding officer must decide whether the expert has the necessary qualifications and
experience to enable him/her to give reliable opinions
 Formal qualifications aren’t always essential, and the practical experience of the
witness may often be decisive
 Therefore, people with only practical experience can also be experts, e.g. a stock farmer
who expresses an opinion on the value of cattle
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2.3. Expert witnesses

 In adducing the opinion evidence of expert witnesses, the following must be kept in mind:

2.3.1. The witness must be competent to express an opinion on the basis of his/her
qualifications and/or experience
 The party who wants to call an expert witness must satisfy the court that the opinion of the
expert isn’t irrelevant
 For this purpose, the presiding officer must be satisfied that the witness –
o not only has specialist knowledge, training, skill or experience, but can also, on account of
these attributes or qualities, assist the court in deciding the issues;
o is indeed an expert in the field on which he/she is called to express an opinion; and
o doesn’t or won’t express an opinion on hypothetical facts.

 Experts who rely on information contained in a textbook and written by someone else, who
isn’t called as a witness, technically make use of hearsay
 However, such experts will be allowed to do so provided that they can affirm by reason of
their own training, the correctness of the statements, and the work that’s being referred to is
reliable in the sense that it has been written by a person of established repute or proved
experience in that field

2.3.2. The witness must mention the grounds for his/her opinion
 Expert witnesses are in principle required to support their opinions with valid reasons
 However, in some instances, a witness might not be able to give reasons for a specific
opinion owing to the nature of the opinion evidence

 In certain cases, the lack of reasons could cause the opinion evidence to have so little
evidential value that it’s irrelevant and inadmissible
 In most instances, an unmotivated opinion of an expert witness doesn’t render the
opinion evidence inadmissible, but the value that the presiding officer attaches to it
may be affected
 If the expert witness provides proper reasons for his/her opinion, which support the
inferences he/she has drawn, the evidential value of the opinion evidence will obviously
increase
 This requirement therefore enables the court to assess and check for itself whether the
opinion of the witness is justified

2.4. Discretion of the court

 A court has a discretion to accept or reject opinion evidence and is therefore not
subject to the opinion of a witness
 The court held that the primary function of an expert is to lead the court to a correct decision
regarding aspects within his/her field of specialisation
 The expert witness’s decision shouldn’t replace that of the court which has to decide on the
matter
 The court found that the role of an expert witness isn’t to assume or replace the
functions or obligations of the court
 The court must still consider and decide on each fact
 Where appropriate, expert evidence is given to place the court in a better position to make
decisions about facts that relate to the expertise of the expert witness
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 The court noted that the essential function of an expert is to assist the court in drawing a
conclusion in matters about which the court doesn’t have sufficient knowledge to make a
decision

 In certain cases where expert evidence is given regarding highly technical aspects, presiding
officers may find it difficult to come to a finding on their own
 Section 34 of the Magistrates’ Courts Act and s 145 of the CPA provide that in such cases a
presiding officer may use assessors, who’re experts in the field concerned
 The main task of such an assessor is to assist the presiding officer in making a finding of
fact after hearing all the evidence

2.5. General practical examples of opinion evidence

 The courts’ approach regarding the admissibility and value of opinion evidence is illustrated
in the following practical examples:

2.5.1. Drunken driving cases

 A good example of opinion evidence is that of a police official or doctor testifying about the
sobriety of an accused in a case of so-called drunken driving
 The basic principles about handling opinion evidence are the same for all the other topics on
which opinion evidence can be given

(a) Lay opinion of police official

 The then Appeal Court held that the prosecution in drunken driving cases needn’t call a
doctor, since a layperson could also be competent to testify on the sobriety of a person
 However, it stressed the importance of the need for such a witness to provide reasons for
his/her belief
 Although the police official, who is a layperson in this case, may base his/her opinion on
experience with people under the influence of alcohol, testimony on what he/she observed
regarding the accused,
o e.g. that the accused was unsteady on his/her feet, his/her eyes were bloodshot, he/she
had slurred speech and his/her breath smelled of liquor, are essential

 Usually, a layperson can’t express an opinion on whether a drunk person was fit to drive
 However, certain police officials with experience in drunk driving cases may fall into an
expert witness category in this regard

(b) Expert opinion of doctor

 A doctor testifying on the sobriety of an accused in a case of drunken driving testifies as an
expert
 Usually, he/she examines the person thoroughly and records his/her observations and
opinion on the prescribed form
 The doctor must give evidence of his/her qualifications and experience as a doctor, and then
the court will decide whether he/she is competent to express an opinion on a person’s
sobriety
 The doctor must also give evidence about the mental and physical condition of the accused
 He/she then usually gives his/her opinion of whether the accused was under the influence of
liquor and the extent to which this was the case
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 During the clinical examination of the suspect, the doctor runs a number of tests to
determine whether the patient was affected in any way by consuming alcohol
 These tests are aimed mainly at establishing the coordination of the fine and gross motor
skills of the suspect, as well as the outer appearance of the suspect and disruptions to
his/her nervous system, if any

 It’s always preferable to take the accused to a doctor if at all possible, because the doctor
may also take a blood sample, which can be sent to the Forensic Science Laboratory for
analysis
 The result of the blood test can be extremely valuable in confirming the opinion regarding
the sobriety of the accused at the time of the alleged contravention
 It’s also always preferable for the public prosecutor to submit the best available evidence to
the court, which in this case will be the doctor’s evidence and the analysis of the blood
sample

 As was mentioned above, the court isn’t absolutely bound to the opinion evidence of either
the police official or the doctor
 However, the evidence will bear much weight if the presiding officer is satisfied that the
reasons the witnesses gave for justifying their opinions are convincing and that such
reasons do support their opinions

2.5.2. Drugs
 If the accused disputes that the substance found on him/her or in which he/she was dealing,
was drugs, a police official may identify the substance as such
 The police officials who’re usually in the best position to do this are members with extensive
experience in handling and identifying drugs, such as members who were formerly stationed
in the South African Narcotics Bureau (SANAB)
 However, it’s suggested that substances which are suspected to be drugs should be sent to
the Forensic Science Laboratory for analysis
 These scientific analyses will prove beyond reasonable doubt whether the substances are
illegal

2.5.3. Estimating speed, distance and age

 Presiding officers allow witnesses to estimate speed, distance, age and the value of animals
and objects on a daily basis
 As long as the estimation can provide the presiding officer with real help in making the
correct decision and he/she isn’t in the same as or a better position than the witness to make
the estimation him/herself, the presiding officer should allow such testimony
 Although lay witnesses may find it difficult to give reasons for their opinions in many of these
cases, the court may still admit their evidence
 If a witness testifies on distances, the court will usually test the witness’ appreciation of
distance, e.g. by asking him/her what the length of the courtroom is

 If the witness can provide valid reasons for his/her opinion evidence, the presiding officer will
obviously attach more value to it
 Estimating distances and speed will always be considered as lay opinion, whereas
estimating age can be done by a layperson as well as an expert, such as a doctor

2.5.4. Motor vehicle accidents

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 Usually, a public prosecutor will call the eyewitnesses and police officials who were at the
scene immediately after a motor vehicle accident, as well as those who drew up the plans
and took the photographs of the accident scene to testify in cases of this nature
 Police officials usually give opinion evidence because they’re asked to state where they
suspect the point of collision was, and to testify on marks on the road, pieces of glass and
other parts of the vehicles that were scattered about at the accident scene
 A police official also usually has to explain to the presiding officer why he/she is of the
opinion that the point of collision was at a specific place

 Remember that any court may visit the actual accident scene to obtain better insight into the
evidence given
 During such an inspection all the parties concerned accompany the presiding officer to the
scene of the accident where the presiding officer can make notes of his/her own
observations

 Direct and reliable evidence given by eyewitnesses of what happened during a motor vehicle
accident usually has more evidential value than the opinion of an expert, such as a
mechanical engineer or a motor mechanic, who can only speculate on what might have
happened

2.5.5. Fingerprints
 A good example of a police official who gives opinion evidence as an expert, is a fingerprint
expert
 This expert compares the fingerprints lifted from the crime scene with those of the accused
that’re obtained from the investigating officer
 He/she then makes a deduction as to whether or not the two prints match
 During his/her testimony, the fingerprint expert must remember to draw inferences regarding
whose prints were found at the scene of the crime

 In S v Blom (above), the evidence that fingerprint experts gave at the trial concerning a
match between the identification marks and the accused’s fingerprints was unsatisfactory
 The court ruled that, although they (presiding officers) weren’t fingerprint experts, this didn’t
mean that they had to blindly accept the evidence and opinions of these experts
 The court has to be satisfied as far as possible that the evidence can be accepted without
question

2.5.6. Handwriting
 In principle, any layperson familiar with another person’s handwriting may identify that
handwriting
 The degree to which the witness is familiar with the accused’s handwriting determines the
value the presiding officer will attach to the opinion evidence on the handwriting
 Note that only a handwriting expert is competent to give evidence on two handwriting
samples that aren’t familiar to him/her
 The reason is that the opinion of a layperson will make no additional contribution to the
presiding officer’s own observations in such cases

 Section 228 of the CPA provides that a witness in criminal proceedings may compare a
disputed writing with any writing proved to be genuine
 Such writings and the evidence of the witness can be submitted as proof of the genuineness
of the writing in dispute
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 Although this need not be done by an expert, the courts usually only use experts in this
regard, since a layperson is in no better position than the presiding officer to compare
handwriting
 It’s therefore submitted that the evidence of an expert should be obtained in cases where
handwriting is disputed
 The expert’s function is to show the presiding officer the differences or similarities between
the various handwriting samples
 This is usually of more value than the layperson’s opinion or the court’s own observation

3. Similar fact evidence

 Similar facts refer to facts that are similar to the disputed facts
 A similar fact is usually presented to show to the court that the conduct of the accused on
previous occasions was similar to the conduct alleged to the trial, and that he/she therefore
has the tendency to behave in a certain manner

3.1. General rule

 Usually, the courts won’t admit similar fact evidence, e.g. relating to previous offences
of the same nature as those with which the accused was charged, because such evidence
is irrelevant, since it can’t prove or disprove any of the facts in issue

 The fact that a person has previously committed a similar offence, or has been found guilty
of the commission thereof, doesn’t necessarily mean that he/she has again committed such
a crime
 Mere similarity, without any particular link between the two crimes, will therefore not be
sufficient to make similar fact evidence admissible
 Furthermore, evidence regarding an accused person’s previous convictions is prohibited by
s 211 of the CPA, since it might create prejudice in the mind of the presiding officer that may
be detrimental to the accused

The three most important reasons for inadmissibility of similar fact evidence are the
following:
 it may be irrelevant;
 it may adversely affect the accused, by causing prejudice in the presiding officer’s mind
while the evidential value is negligible;
 the court’s time may be wasted if it has to consider related activities such as similar facts,
which contribute very little to proving the facts in issue.

 Schwikkard & Van der Merwe also mention the possibility that if the overworked police know
that similar fact evidence will be readily admitted in court, proper investigation techniques
may be neglected, and they may be tempted to focus on past offenders
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3.2. Exception to the rule

 The main requirement for any type of evidence to be admissible is that the evidence must be
able to contribute to the proving or disproving of the facts in issue
 Evidence regarding similar fact evidence will be relevant only if there’s a logical
connection or nexus between the similar facts and the facts in issue
 The requirement of a nexus is that the evidence must essentially correspond with the facts in
issue
 The greater the correspondence, and the closer the evidence and facts in issue are in time,
place, manner and nature, the easier it’s to make the assumption that the required nexus
exists
 When it’s clear that there’s sufficient correlation between the facts of the current case and
the relevant similar fact evidence, such evidence will be viewed as relevant and therefore be
admissible

 However, it’s fairly difficult to determine in advance whether the nexus will be strong enough
to ensure that the evidence on similar facts will be admissible
 The test is whether a court will be able to draw a reasonable or adequate conclusion
from the similar facts in respect of the current facts

In South African law, the existence of a nexus can be deduced from the following factors:
 continuance (tendency);
 the improbability of coincidence;
 common source;
 time and place;
 cumulative effect (strong circumstantial evidence);
 disproving of a defence or a fact that’s disputed by the accused

 The probative value of similar fact evidence will to a large extent be determined by the
degree of similarity between a person’s conduct on other occasions and the occasion that’s
the subject of the court’s inquiry
 Similar fact evidence will only be admitted if it has a strong degree of probative force
 The relevance of similar fact evidence must also be assessed in the light of the issues to be
decided and the other evidence available to the court
 According to Zeffertt, the relevance of similar fact evidence will be determined by the
strength of the other available evidence

3.3. Practical value of similar fact evidence

 It’s evident from case law that similar fact evidence may sometimes be very valuable
 It may be used successfully in the following instances:

3.3.1. Identity
 The prosecution is most likely to present similar fact evidence in instances where
identification is in issue, and similar fact evidence can contribute to proving the identity of the
accused
 Where the identity of an accused is at issue, evidence can be led of previous similar
offences to make identification easier

 In S v M, the accused was charged with four counts of rape and one of attempted rape
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 Charges 1, 2 and 4 were proved beyond reasonable doubt by the state, but the state had
difficulty in proving that the accused was involved in the fifth charge
 The court decided that it was indeed the accused who committed the offence mentioned in
charge 5, since the attack took place in a similar manner, time and place by a person with
similar demeanour and clothing as was the case with charges 1, 2 and 4

 The similarities between charges 1, 2, 4 and 5 were the following:

o the attacks always took place on a Sunday;
o the complainants were always attacked with fists and feet;
o a knife was always used as a deterrent;
o the complainants were always carried or dragged to a remote place;
o intercourse took place a few times in each case;
o the attacker had the tendency to pull his cap over his eyes.

 The court therefore took cognisance of the evidence with regard to charges 1, 2 and 4 in
order to link the accused with charge 5
 Evidence relating to similar facts was therefore admitted to prove the identity of the accused
with regard to charge 5, i.e. that the accused also committed the offence mentioned in
charge 5

3.3.2. Acts of preparation

 In R v Troskie, the court found that evidence of the accused’s previous attempts to have
sexual intercourse with his sister was admissible to support evidence of incest

3.3.3. Opportunity, means and capacity

 Similar fact evidence is usually admissible if it proves that the accused had the opportunity,
means and capacity to commit the crime
 In R v E, evidence about E’s sexually transmitted disease was admitted to prove that he had
the ability to have sexual intercourse
 Another example is that evidence that a person had been in possession of implements that
could be used for housebreaking was admissible where the accused had been charged with
the offence of housebreaking with the intent to commit an offence
 This was admitted to prove that the accused had the means and ability to commit the
offence in issue

3.3.4. Systematic conduct

 The nexus requirement is often found in the continuance of the conduct of an accused
 However, a continuous plan or system must be proven
 In R v Katz, where the accused sold meat above the controlled price, evidence was admitted
that he offered the same type of meat a week earlier at the higher price and that he stated
that he wasn’t prepared to sell the meat at a lower price
 This proved that the accused made a practice of selling meat at a higher price than was
allowed

3.3.5. Intent
 Evidence led about an act or statement from which it appears that there was a previous
intention to do something may often be admissible to prove the existence of such an
intention at a later stage
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 In R v Janke and Janke, evidence of previous child abuse was admitted to prove that later
assaults took place without the purpose of parental discipline, but with a blameworthy state
of mind

3.3.6. Motive
 In R v Matthews, gang members were charged with the murder of a member of another
gang
 To prove the competition between the gangs, and thereby the motive for the murder,
evidence was admitted of other crimes committed by the gang members

3.4. Similar fact evidence presented by the accused

 The accused may also present similar fact evidence to prove or disprove some of the facts
at issue
 The courts are more willing to admit similar fact evidence presented by the accused rather
than by the state
 The obvious reason for this is that similar fact evidence presented by the accused will
normally not be to his/her own detriment by causing prejudice in the presiding officer
 Even if it does cause prejudice, it’s the choice of the accused to present such evidence

 In S v Yengeni (2), the accused alleged that she had been forced and unduly influenced by a
lieutenant in the police to make a confession
 The accused asked to be allowed to present evidence about the lieutenant’s method of
interrogation with regard to four other women
 This was evidence relating to similar facts which supported the accused’s version, i.e. that
the lieutenant always used the same wrongful methods during interrogation to obtain
statements from accused persons

 The court was of the opinion that similar fact evidence should be allowed only in exceptional
cases, since it can prejudice the accused
 In this case, the accused couldn’t be prejudiced since the accused herself wanted to submit
evidence relating to similar facts
 According to the court, the similar facts must have sufficient evidential value before they can
be admitted
 The court found that three to five similarities between the methods of interrogation didn’t
have sufficient evidential value, but where the methods corresponded in seven respects the
similar fact evidence was admitted

 The court therefore admitted the evidence of previous methods of interrogation, which were
similar to the way in which the accused had been interrogated, because of sufficient
correspondence, sufficient evidential value and remarkable similarities

3.5. Concluding remarks

 Police officials should rather rely on sound scientific investigative techniques than on the
slim chance of getting a conviction on the basis of similar fact evidence alone
 However, similar fact evidence in conjunction with other direct and circumstantial evidence
may prove a case beyond reasonable doubt

As far as the admissibility of similar facts are concerned, the following conclusions can be
drawn from case law:
 similar fact evidence is admissible if the requirement of relevance is satisfied;
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 similar fact evidence will be relevant if a reasonable and admissible inference can be
drawn regarding the facts in issue;
 there must be a clear and logical connection (nexus) between the similar facts and the
facts in issue;
 the similarities between the similar fact evidence and the facts in issue must be
remarkable;
 the similar fact evidence must have essential and convincing evidential value in
relation to the facts in issue;
 as a rule, the previous offences of an accused can’t be used to prove the tendencies of
the accused.

4. Previous consistent statements

 A previous consistent statement is an oral or written statement made by a witness on
some occasion before he/she testified at the trial, and which corresponds with or is
substantially similar to his/her testimony in court
 Previous consistent statements usually feature where a witness mentions during his/her
testimony that what he/she is saying, was previously said by him/her outside of court
 Although the previous statement is therefore not submitted as evidence before the court, the
witness indicates that his/her evidence is a repetition of what he/she said outside the court
 By doing this, the witness attempts to enhance the credibility of his/her testimony

4.1. General rule

 The general rule is that evidence about what the person previously said or wrote
outside the witness stand (court) is inadmissible
 The reason is that evidence must be given orally and under oath inside the court so that
witnesses may be questioned about their evidence

Generally, a previous consistent statement of a witness, whether oral or in writing, is

excluded for the following reasons:
 it’s insufficiently relevant;
 it’s easily manufactured, especially if it supports the evidence of a party;
 a witness can create any amount of evidence by repeating his/her story to a number of
people;
 proof of previous consistent statements would be extremely time-consuming, whereas
there’s no probative contribution.

 In R v Stephen Jood, the court ruled that evidence regarding previous consistent statements
was irrelevant and inadmissible
 It’s of slight evidential value and, at most, can slightly strengthen the credibility of a witness
 Against the slight evidential value that may exist, one must balance the danger of the person
trying to strengthen his/her evidence superficially by repeating his/her version over and over
again
 Such evidence will also waste the court’s time
 A person can repeat anything to a number of people, without its necessarily true, with no
guarantee of reliability

4.2. Exceptions to the rule

 The admissibility of evidence on a previous consistent statement ultimately depends on its
relevance to the matter before court
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 A previous consistent statement will usually be relevant and therefore admissible in

the following instances
 If the previous statement:
o is used to rebut an allegation that a witness had recently fabricated his/her testimony;
o is a first report (complaint) about a sexual offence;
o relates to a previous identification outside the court.

 It should be noted that if evidence about the above exceptions is admitted, it will be done for
the purpose of proving consistency and not to prove the truth thereof.

4.2.1. Rebuttal of an allegation of recent fabrication

 In cases where a witness is accused in court by his/her cross-examiner that he/she
fabricated his/her version recently with a view to the trial, the court may allow the witness to
give evidence about a previous consistent statement made by him/her
 In such a case, the witness’s credibility is disputed, and evidence about a previous
consistent statement he/she made may serve to rebut the attack on his/her good faith

 The previous consistent statement isn’t evidence of the truth of its contents and
doesn’t corroborate the evidence of the witness
 It’s relevant to support his/her credibility by showing that his/her version of the
events is consistent
 In R v Dart (above), it was alleged that a witness prepared his evidence for the purpose of
the trial with the assistance of a sergeant in the police
 An affidavit made before the trial was submitted by the prosecutor to prove that what he said
previously in his statement was consistent with his oral evidence before court
 The court ruled that the evidence was admissible as it showed that the witness was
consistent; however, it didn’t serve to prove the correctness of his version

 The mere fact that a cross-examiner disputes the version of a witness doesn’t render a
previous consistent statement admissible
 An allegation must be made that the witness has fabricated his/her version
 However, this doesn’t have to be expressed in so many words, but may also be done by
implication
 The court is obliged to determine whether the attack on the witness’s evidence amounts to
an accusation or allegation that he/she fabricated his/her version with a view to the trial
 The fabrication need not have been concocted recently, as long as there’s an allegation that
the witness fabricated his/her version in anticipation of an impending trial, i.e. between the
incident on which the trial is based and the trial itself

4.2.2. Complaints with regard to sexual offences

 In the past, allegations by victims of sexual offences were viewed with caution in our law
 Therefore, amongst others, evidence about the first time such a complaint was reported is
allowed in order to rebut the suspicion that may exist regarding the credibility of the victim
 In addition, it’s also admitted to show that the victim didn’t fabricate his/her version
 Evidence about such a previous consistent statement may also serve to rebut a defence of
consent by the accused and strengthen the credibility of the victim’s account
 However, note that this doesn’t serve as evidence that the victim’s version is the truth,
and therefore it doesn’t corroborate the version that he/she gives in court
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 The previous consistent statement on which the victim may testify in this instance is the first
report of the incident that the victim made to another person
 The person to whom it was first told, must also testify about the report
 Investigating officers must therefore always ensure that a statement is taken from such
person

 The provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act
also need to be considered in this regard
 According to s 58 of the Act, evidence relating to previous consistent statements by a
complainant shall be admissible in criminal proceedings involving the alleged
commission of a sexual offence: provided that the court may not draw any inference
only from the absence of such previous consistent statements

A court will admit evidence on the first report only if the following requirements have been
met:
 the crime must be of a sexual nature;
 the complaint must’ve been made voluntarily;
 the complaint must’ve been made at the first reasonable opportunity; and
 the victim must testify him/herself.

(a) The crime must be of sexual nature

 This exception applies only where the act consisted of some sexually directed bodily
infringement
 Therefore, evidence regarding the first report of a person against whom bad language was
used, or to whom obscene suggestions were made, won’t be admissible
 Although this exception initially only applied to rape cases, the scope of its application has
been widened to include indecent assault, incest, sodomy, intercourse with girls under the
age of 16, indecent acts with youths and crimen injuria, and in cases of sexual offences
against men and boys
 The provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act
have now also extended this rule to include any attempt, conspiracy, incitement or inducing
another person to commit a sexual offence
 However, some crimes to which this rule now applies seem ill-suited for it, such as bestiality
and sexual acts with a corpse

(b) The complaint must’ve been made voluntarily

 It’s essential that the victim made a voluntary complaint
 If a statement has been obtained under duress from a reluctant complainant, it will be
excluded as evidence
 The complainant may be questioned as long as no leading questions are asked and no
intimidation takes place
 However, the fact that the complaint was made in response to questioning doesn’t signify
that the complaint was made involuntarily
 Leading questions may, for instance, be asked if young children to elicit information
 If circumstances show that it’s probable that no voluntary complaint would’ve been made
without the questioning, the answers (complaint) will be inadmissible

(c) The complaint must’ve been made at the first reasonable opportunity
 The complain must’ve been made at the first reasonable opportunity after the offence was
committed
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 However, this is a flexible concept that depends on the facts of the particular case
 Specific factors, such as the age of the victim, the victim’s ability to understand the nature
and wrongfulness of the offence, the availability of a person to confide in, the opportunity to
complain and the relationship of the victim and a person confided in, could be taken into
consideration
 These factors play a major role in determining the reasonableness of the time that elapsed
before the report was made

 What a reasonable time may be, is at the sole discretion of the court
 In R v Gannon, the court admitted a complaint made 10 days after the assault on a little
eight-year-old girl
 It was held that she couldn’t have been expected to say anything earlier, because she was
too young to realise the nature of the offence and had been bribed by the accused not to tell
her mother
 Note that s 59 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act now prohibits a court in criminal proceedings involving the alleged commission
of a sexual offence from drawing any inference only from the length of any delay
between the alleged commission of such offence and the reporting thereof

(d) The victim must testify

 The last requirement for such a previous consistent statement to be admitted is that the
victim gives evidence in court
 If the victim doesn’t testify, neither the terms of the complaint nor the fact that it was
made may be admitted, the reason being that the complaint can’t be used to show
consistency and will therefore be irrelevant

 Sometimes, the complaint may have some additional relevance

 In S v R, an intoxicated victim made a complaint of rape almost immediately after the
incident, while she was still distressed and weeping
 By the time of the trial, the complainant was suffering from amnesia and declared that she
couldn’t remember a thing, but she also stated that she never would’ve been able to consent
to sexual intercourse with the accused
 The court held that the complainant’s statement and condition were relevant to show her
state of mind at the time of the incident and to rebut a defence of consent

4.2.3. Prior identification

 Evidence that a witness identified a person on a previous occasion before the trial outside
the court is admissible
 The reason for this is that such an identification has much higher evidential value than an
identification inside the court for the first time after the crime was committed, and while the
accused stand in the dock

 The fact that the witness identifies the person in the dock for the first time renders the
identification suspect
 In S v Maradu, the court stated that the danger of dock identification is the same as that
created by a leading question in examination-in-chief: it suggests the answer desired
 As the latter type of question is inadmissible, dock identification should be inadmissible

 The court stated that it seemed that the evidence of previous identification should be
regarded as relevant for the purpose of showing from the very start that the person
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who’s giving evidence in court, and is identifying the accused in the dock, isn’t
identifying him/her for the first time, but has identified him/her on some previous
occasion in circumstances such as to give real weight to the identification
 Not only is identification at the trial relevant, but also identification between the trial and the
incident on which the trial is based
 The latter, if effected under strictly fair and proper conditions, has far greater probative value
than identification in court

 Evidence of previous identification is also relevant as it could prove consistency

 The person who previously identified another should testify personally
 If he/she doesn’t testify him/herself, there will be no question about whether the identification
is consistent and evidence about the fact that he/she identified the other person will amount
to hearsay evidence and as such be inadmissible

 Note that the evidence is only admissible to prove prior identification

 The courts may not allow anything else to be proved that isn’t directly related to the
identification

 Although identification often takes place at an identification parade arranged in terms s 37 of

the CPA, it may also take place spontaneously outside the court – referred to as
incidental identification
lees voorbeeld op bl422

 Prior identification under such is definitely much more reliable than identification while the
accused is standing in the dock
 There’s one mistake inexperienced police officials tend to make and that’s to ask the witness
whether a certain person is the suspect while pointing to him/her
 Under such circumstances, the prior identification will have no evidential value at all, since
the police official has led the witness to believe that the specific person is in fact the suspect

Identification of a suspect outside the court can occur in the following ways:
 during a properly set identification parade;
 by means of a photo album. Evidence gathered as a result of this type of identification is
sometimes received with scepticism, since the safeguards that apply in an identification
parade aren’t available for this type of evidence. E.g. the legal representative of a suspect
isn’t entitled to be present at such a parade;
 by means of a voice identification parade. Voice identification can also be held as long as
the safeguards are adhered to. The same safeguards that are applicable to other
identification parades should also apply here;
 incidental spontaneous identification.

5. Character evidence
 Generally, a person’s character is judged according to his/her general reputation and his/her
disposition to think or act in a particular way
 The character of an accused will usually enter into the matter in two instances:
o where the accused or the prosecution leads evidence concerning the accused’s character
o and where the public prosecutor poses questions to the accused regarding his/her
character

5.1. Presenting character evidence

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 In terms of s 227(1) of the CPA, the admissibility of character evidence is governed by the
English common law
 In terms of it, an accused may submit evidence of his/her own good character,
whereas the prosecution is normally prohibited from presenting evidence of the
accused’s bad character
 Evidence regarding an accused’s bad character is usually inadmissible, since it has little
evidential value and it may create prejudice in the presiding officer about the accused

Schmidt & Rademeyer provide three more reasons why evidence of character is
inadmissible:
 individual opinions regarding a person’s character will inevitably differ;
 a few examples of good or bad behaviour can’t provide a true image of a person’s
character;
 an investigation of individual opinions and examples of behaviour may be endless.

 The rules in connection with the admissibility of character evidence differ, depending on the
party who presents the evidence

5.1.1. Character evidence by the accused

 The accused may present evidence of his/her good character because it’s relevant to show
that it’s less probable that the allegations of the prosecution are true
 The defence may present evidence of the accused’s good character by calling the accused
and other witnesses to testify to it
 The defence may also cross-examine state witnesses about the good character of the
accused

 However, once the defence tries to show that the accused has a good character, the
prosecution may respond by cross-examining the character witnesses or the accused, or by
calling witnesses to testify about the accused’s bad character

5.1.2. Character evidence by the prosecution

 The prosecution can’t normally present evidence of the bad character of the accused, except
when it’s specifically relevant, or if the accused presents evidence to show that he/she has a
good character
 Even if the accused attacks the good character of a state witness during cross-examination,
the prosecution may not present evidence regarding the bad character of the accused
 In these circumstances, the prosecution may cross-examine the accused about his/her
character in terms of s 197 of the CPA

5.2. Examination as to character

 In terms of s 197 of the CPA, an accused who’s giving evidence may not be asked any
question which tends to show that he/she is of bad character
 However, there are exceptions to this rule

The accused may be questioned on his/her character if –

 the accused or his/her legal representative asks any question of any witness to establish
the good character of the accused; or
 the accused him/herself gives evidence of his/her own good character; or
 the nature of conduct of the defence is such that it imputes the character of the
complainant or any other witness for the prosecution.
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6. Hearsay evidence
 The admissibility of hearsay evidence is statutorily regulated by the Law of Evidence
Amendment Act
 In terms of s 3(4) of the Act, hearsay evidence is defined as evidence, whether oral or in
writing, of which the probative value depends upon the credibility of any person other
than the person giving such evidence

 A few simple examples may be useful to explain this definition:

o A witness accused B of robbing a café. A tells C what happened during the robbery and
indicates that it was B who committed the crime. C didn’t see the incident. Immediately
after the incident, A leaves for Australia. If C were to testify in the subsequent criminal trial
that he heard that B robbed the café, this would be regarded as hearsay evidence, since
–
o C’s evidence was oral; and
o the evidential (probative) value of C’s evidence depends on the credibility of another
person, i.e. A, who saw the whole incident.

 Remember that the statement by the original declarant may also be written and is then
referred to as documentary hearsay evidence
lees die voorbeeld op bl 424 – 425

6.1. General rule

 Hearsay evidence is normally inadmissible because it’s unreliable evidence that may
mislead the court
 It’s unreliable because the person who observed the particular facts doesn’t him/herself tell
his/her observations to the court
 Such a person therefore doesn’t stand under oath, can’t be observed by the court and the
truth or accuracy of his/her allegations can’t be tested during cross-examination
 The purpose of cross-examination includes the opportunity to test the credibility of a witness

 Since the original declarant, who witnessed the incident, isn’t available to testify, and it will
therefore be impossible to determine the reliability of his/her evidence during cross-
examination, the court can’t attach any value to the testifier’s evidence
 Although the testifier who gave the hearsay evidence can be cross-examined, he/she can’t
vouch for the truth of what he/she was told because he/she didn’t personally see the incident

6.2. Exceptions to the rule

 Although s 3(1) of the Law of Evidence Amendment Act provides that hearsay evidence is
inadmissible in criminal and civil proceedings, there are three exceptions to this rule:

6.2.1. Consent (s3(1)(a))

 If each party against whom the hearsay evidence is presented agrees to its admission as
evidence, it’ll be admissible
 If more than one accused person is therefore involved, everyone against whom the hearsay
evidence is to be adduced must give consent

6.2.2. The original declarant must testify personally (s 3(1)b) read with s 3(3))
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 Hearsay evidence may be admitted if the person upon whose credibility the evidential value
of the evidence depends personally testifies at the proceedings
 It may also be provisionally admitted if the court is informed that the original declarant will
testify at a later stage
 However, if he/she doesn’t personally testify later, the hearsay evidence will be left out of
account, except if it was admitted in terms of s 3(1)(a) or (c)

6.2.3. Discretion of the court (s 3(1)(c))

The third exception provides that the court may admit hearsay evidence if it’s of the
opinion that such evidence should be admitted in the interests of justice. The court
must consider the following factors when exercising this discretion:
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence isn’t given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account.

 This section grants the court a very wide discretion in admitting hearsay evidence, taking
into account the factors mentioned above
 The most important question that the court must answer in exercising this discretion
is whether the admission of the hearsay evidence is in the interests of justice

 In S v Molimi, the Constitutional Court confirmed that to ensure that hearsay evidence is only
received if the interests of justice so require; a court must have regard to all the factors
mentioned in s 3(1)(c) and must also be careful to ensure respect for the fair trial rights set
out in s 35(3) of the Constitution

 Although s 35(3)(i) of the Constitution guarantees every accused the right to adduce and
challenge evidence, it was held that the use of hearsay evidence by the state doesn’t violate
the accused’s right to challenge evidence based on the fact that the original declarant can’t
be cross-examined
 The accused doesn’t have a right to subject all evidence to cross-examination, but merely to
challenge evidence
 Where the evidence is hearsay, that right entails that the accused is entitled to resist its
admission and to scrutinise its probative value, including its reliability
 The Supreme Court of Appeal therefore concluded that where the interests of justice require
that the hearsay evidence be admitted, the right to ‘challenge evidence’ doesn’t encompass
the right to cross-examine the original declarant

6.3. Concluding remarks

 Investigating officers must never base their case on hearsay evidence, but must
rather attempt to obtain a statement from the original declarant
 As a point of departure, police officials can assume that the courts won’t admit this evidence
in criminal case
 If a court does admit this evidence in exceptional case, it’s still likely to have little evidential
value
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 If police officials testify themselves, they should also refrain from giving hearsay
evidence, except if the court admits it in terms of s 3(1)(a), (b) or (c) of the Law of Evidence
Amendment Act or if the police officials are requested by the presiding officer to give such
evidence

 Remember that the investigating officer may include statements containing hearsay
evidence in a case docket
 The public prosecutor handling the case may find this additional information useful in
preparing for the case and may even consider using it during the trial
 However, this is up to the public prosecutor
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Chapter 20: Evaluating evidential material

1. Introduction
read through the introduction

2. Corroboration
2.1. Introduction
 Although s 208 of the Criminal Procedure Act (CPA) provides that an accused may be
convicted of any offence on the evidence of a single witness, it’s also true that whenever
corroboration is present it would be easier to conclude that the required standard of
proof has been met
 This additional (corroborative) evidence therefore serves as a guarantee of reliability of the
initial evidence
 Therefore, corroboration is evidence that confirms or supports a fact of which other evidence
is given

 Corroboration may be provided by a variety of forms of evidential material such as oral,

documentary or real evidence, or by formal or unrecorded admissions made during an
explanation of plea
 It’s important to note that corroboration can only take place if admissible evidential material
has been submitted
 In cases where corroboration is required, the prosecution must still prove his/her case
beyond reasonable doubt
 In principle, corroboration must come from a source other than the witness giving the
initial evidence
 A witness may therefore not corroborate his/her own evidence
 A witness who repeats his/her story in the hope that repetition will confirm the evidence can,
at most, demonstrate that he/she is convinced of his/her statements

2.2. Corroboration of confessions

 Section 209 of the CPA is the only statutory provision in South African law that still demands
corroboration
 This section provides that an accused may be convicted of an offence on the single
evidence of a confession made by him/her, provided that the confession is confirmed in
a material respect or, where the confession isn’t so confirmed, if other evidence
proves that the offence has actually been committed
 The object of s 209 is to prevent persons being convicted as a result of possible false
confessions

This means that a court may never convict an accused solely on the grounds of a
confession, which he/she made outside the court, since the confession must be corroborated
in one of the following two ways:
 confirmation of the confession in a material respect; or
 other evidence that proves that the offence was indeed committed.

 Note that the state must first prove that a confession is admissible before s 209 will be
applicable
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 If the provisions of both ss 217 and 209 of the CPA have been complied with, the court must
still, during its evaluation of the evidence, determine whether the state has proven its case
beyond reasonable doubt

2.2.1. Confirmation in a material respect

 Schmidt & Rademeyer contend that the meaning of the requirement ‘confirmation in a
material respect’ is that the evidence (confession) to be confirmed must be demonstrated to
be reliable
 The confession must therefore be confirmed to be materially true

 In R v Blyth, the accused wrote a letter stating that she had murdered her husband by
poisoning him with arsenic
 After the man’s body was exhumed, traces of arsenic were found
 The court found that the arsenic in the body confirmed the confession in a material respect,
even though it didn’t connect the accused with the murder or confirm that a murder had
indeed been committed
 Consequently, the court was able to convict the accused
 Note that the court didn’t find that arsenic had caused the man’s death, merely that arsenic
was present in his body

 In S v Erasmus, the court found that other admissions and confessions made by an accused
outside the court may in fact serve as material confirmation of a confession
 This applies particularly where the other confession, which will serve as a material
confirmation, is made under circumstances which indicate that the confession isn’t a false
one

2.2.2. Evidence proving the commission of the offence

 In this instance, there’s an admissible confession as well as other evidence before the court
which may prove that the offence was committed
 If one uses the facts to illustrate this requirement, the prosecution not only has to prove that
arsenic was found in the deceased’s body, but also that the deceased died as a result of the
arsenic in his body

 Also note that in this instance, it isn’t a requirement that the content of the confession be
confirmed, but instead that there exists additional evidence which proves that the crime was
in fact committed

2.3. Concluding remarks

 The trend in the past few years has been to move away from confession-based
investigations to more scientific investigatory methods
 The requirements contained in s 209 of the CPA show clearly that an investigating officer
can’t rely solely on a confession in his/her investigation in an attempt to secure a conviction
 Other reliable evidence independent from such confession, which will prove beyond
reasonable doubt that the offence was committed, must also be obtained
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3. Cautionary rules
3.1. Introduction
 As a result of many years’ experience, the courts realised that certain types of evidence
should be treated with caution in view of the possible unreliability of such evidence
 Consequently, the courts use cautionary rules when evaluating such evidence
 This means that the court should consciously remind itself to be careful in considering
evidence which practical experience has taught should be viewed with suspicion
 The court must also seek a safeguard that’ll eliminate the suspicion and risk associate with
this evidence to such an extent that the possibility of a wrong finding is excluded or reduced
considerably
 One of the ways in which suspicion can be eliminated is by means of corroboration
 The standard of proof in a criminal case still remains ‘beyond reasonable doubt’ even though
one or more cautionary rules may be applied in the trial

 In the course of time, the courts have identified the following categories to which the
cautionary rules should be applied:
o participants
o traps
o evidence of identification
o children
o single witnesses
o handwriting experts

3.2. Participants
 In instances where the prosecution would otherwise have insufficient evidence available to
secure the conviction of the accused, it sometimes happens that the evidence of persons
who participated in the crime, like accomplices, is used
 In such cases, the public prosecutor will, after consulting with the investigating officer,
withdraw the case against the person who participated in the crime and make use of the
procedure in s 204 of the CPA to compel him/her to testify against the accused

 The courts evaluate evidence given by participants in a crime with caution, because
participants may be motivated to blame the accused to order to derive the benefit of s 204
 The truly guilty person may be either the participant, who has now turned state witness, or
someone else that the participant wants to protect
 Due to the involvement of participants, they’re also in a position to give misleading evidence
in a convincing manner
 Thus, their evidence must be regarded with caution

 The court must find a safeguard to reduce the risk of a wrong conviction
 In S v Francis, it was ruled that it isn’t necessary for a court to accept the evidence of an
accomplice as being entirely true, reliable and consistent
 The test is whether, after having considered the evidence with the necessary caution, the
court is satisfied beyond reasonable doubt that the material aspects of the evidence are true

 The attitude of our courts is that the suspicion is reduced in cases where the participant or
accessory after the fact, has already been sentenced before testifying
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 Note that the risks associated with this type of evidence aren’t reduced by corroborative
evidential material which shows that the crime was in fact committed, but by corroborative
evidential material which links the accused to the crime

3.3. Traps
 A trap is someone who, with a view to securing the conviction of another person, creates an
opportunity for that person to commit a crime by proposing criminal conduct to him/her and
by pretending to take part in the crime

The courts have levelled criticism at this method of trapping criminals because traps –
 are usually paid for their actions;
 usually wish to please their employers by securing a conviction;
 ‘participate’ in the crime and are consequently in a position to give a false version and to
present this as the truth in a convincing manner.

 It seems quite clear from this criticism why the evidence of traps should be treated with
caution
 However, during entrapment the police can use certain safeguards that will address these
aspects and, consequently, present evidence which is more acceptable to the courts

The court mentioned the following precautionary measures that will ensure the reliability of
the evidence:
 the money or object which is used as trap bait should marked beforehand or identified by a
description;
 the trap should be searched before the transaction to ensure that he/she isn’t carrying
goods of the same nature as those to be used in the transaction;
 the trap should be watched to ensure that he/she carries out his/her instructions faithfully.

 The purpose of these safety precautions is to eliminate possible fabrication of evidence and
to guarantee the reliability of the trap’s evidence
 By taking these precautionary measures, the police official ensures that the evidence
submitted in court is reliable, not withstanding the cautionary rule
 Although taking precautionary measures isn’t a requirement for the presentation of evidence
derived from police traps, failure to do so is likely to make the court suspicious because
proper precautions weren’t taken to ensure that the trap doesn’t mislead the court

 It’s also essential for police officials working with traps to master s 252A of the CPA
 In this section, the legislator has laid down further provisions that must be observed to
establish a fair procedure for this type of operation
 These provisions don’t abolish, replace or modify the cautionary rule which is deprived from
common law; they merely address the matter of the admissibility of the evidence, not its
weight

3.4. Identification
 Experience has taught that courts must exercise care when a witness testifies that he/she
has identified the accused
 According to the court, human observation is fallible
 Not only must the witness be honest, but the reliability of his/her observation must also be
tested
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 I.e. an honest person can also make a mistake with the identification of a criminal and, in
spite of expressing certainty, identify the wrong person

 In deciding whether evidence of identification is reliable, the court must consider the
following
o lighting
o visibility
o sight
o the proximity of the witness
o the opportunity for observation in terms of time and situation
o whether the witness knew the accused beforehand
o the mobility of the scene
o corroboration
o suggestibility
o the accused’s face, voice, build, demeanour and dress
o the result of identification parades; and
o the evidence by or on behalf of the accused

 The person who performed the identification must be asked what characteristics enabled
him/her to recognise the accused
 He/she must therefore, e.g. describe the physical build, clothes and features of the
perpetrator
 If the accused was known to the witness, he/she must explain what opportunity he/she had
to make these observations and how well he/she knows the accused

 Bear in mind that the identification of an accused may take place in circumstances which are
above suspicion, e.g. during an identification parade held in terms of s 37 of the CPA
 However, it’s essential that the court should be satisfied that there were no material
irregularities at the parade
 Applying the cautionary rule in such a case would be superfluous, provided that the
prerequisites for setting up such a parade had been met
 These prerequisites have been set by the courts for the exact purpose of ensuring that the
evidence regarding such a parade is reliable

3.5. Alibi defence

 The following five principles are the correct approach in assessing an alibi defence raised by
an accused:
o there’s no burden of proof on an accused to prove his/her alibi;
o if there’s a reasonable possibility that an accused’s alibi could be true, the state has failed
to discharge its burden of proof and the accused must be given the benefit of the doubt;
o an alibi must be assessed in the light of the totality of the evidence and of the court’s
impressions of the witnesses;
o if there are identifying witnesses, the court should be satisfied, not only that they’re
honest, but also that their identification of the accused is reliable;
o the ultimate test remains whether the state has furnished proof against an accused
beyond a reasonable doubt
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 If the accused only raises an alibi defence for the first time at the trial, the court, in
determining whether the alibi is reasonably possibly true, may take into account that there
has been no opportunity for the state to investigate the alibi properly
 However, some judges of the Constitutional Court have found that the right to silence is
infringed if the accused’s silence (by not disclosing the alibi) is held against him/her after
he/she has been warned of the right to remain silent, without specifically warning him/her
that an inference can be drawn from his/her failure to raise an alibi

3.6. Children
 Children may testify in all cases
 However, the court must first establish whether a child who testifies understands what it
means to tell the truth
 Even if a child understands this, his/her evidence must still be treated with caution
 In R v Manda, the court confirmed that the evidence of young children should be treated with
great care
 The imaginative nature and suggestibility of children are only two of the factors which
warrant that their evidence be scrutinised with care
 However, corroboration of a child’s evidence isn’t necessarily required
 The court must only be satisfied that, having regard to all the facts and circumstances, there
is or isn’t proof beyond a reasonable doubt that the accused is guilty

3.7. Single witnesses

 Section 208 of the CPA provides that an accused may be convicted on the evidence of a
single witness only
 The court held that this rule should only be relied on if the evidence of the single witness is
clear and satisfactory in all material aspects

 The court found that there’s no formula for determining the credibility of the witness
 The trial court should evaluate (weigh up) the evidence of the single witness, consider its
value (merits) and, having done so, decide whether it’s reliable; i.e. whether the truth has
been told despite shortcomings, defects or contradictions in the witness’ testimony
 Ultimately, the standard of proof ‘beyond reasonable doubt’ must be satisfied before the
court can convict an accused

 This cautionary rule should also be applied where there’s more than one witness in a case,
but only one of the witnesses testifies about a particular matter in dispute
 Since the evidence of only a single witness is heard in respect of that matter, if must
therefore be evaluated as such

3.8. The handwriting expert

 The court is careful not to summarily accept the evidence of handwriting experts, because
their evidence may be regarded as mere opinion evidence
 Only in exceptional cases will a conviction be secured purely on grounds of the evidence of
a handwriting expert
 Usually, other evidence, which also proves that the crime was committed, will be present

3.9. Concluding remarks

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 When one of the cautionary rules applies to a police official, e.g. when he/she acts as a trap
of single witness, he/she must be particularly mindful of the fact that the presiding officer will
scrutinise his/her evidence in search of a guarantee of reliability
 An investigating officer should also inform witnesses who may be subject to cautionary rules
of this and advise them how to present reliable evidence in court

4. Judicial notice
4.1. Introduction
 Usually, a presiding officer may only consider facts which have been submitted or presented
in court by a competent witness under oath for the purposes of deciding whether an accused
is guilty or not
 The evidence may include real, oral or documentary evidence
 Proof can, however, sometimes be submitted to a court without evidence
 This can be done by means of formal admissions, judicial notice and presumptions

 In cases where a presiding officer has personal knowledge of a matter, he/she must recuse
(withdraw) him/herself from the case and be replaced by another presiding officer
 This is because presiding officers must be impartial at all times when they hear cases
 Only facts that are presented in the court itself by witnesses under oath may be taken into
account in a judgment

 An exception to this rule is judicial notice, which entails that a presiding officer may take
notice of facts even though evidence hasn’t been led by one of the parties in this regard
 A presiding officer can take judicial notice of facts that are general knowledge or of
local notoriety, readily ascertainable as well as of the law
 The courts use judicial notice with caution, because this will deprive the parties of an
opportunity to cross-examine
 Note that the facts that are judicially noticed by a presiding officer should always be
evaluated together with other evidential material
 This is because judicial notice is a way of providing proof and therefore forms part of the
evidential material that’s presented in court

 Note that a presiding officer may not take judicial notice of facts that’re in dispute
 If a fact is in dispute, it’s essential to lead evidence regarding the fact in a criminal case,
because the onus of proof rests with the prosecution, who must prove all disputed facts
beyond reasonable doubt
 It’s also essential that evidence regarding disputed facts beyond reasonable doubt
 It’s also essential that evidence regarding disputed facts should be tested by cross-
examination, which can’t happen If the court has taken judicial notice of the fact
 Also remember that an accused has a right to a fair trial, which includes the right to adduce
and challenge evidence
 If evidence in respect of facts that’re in dispute isn’t led, the accused won’t be able to
exercise this right, which may result in an unfair trial
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4.2. Definition
 A presiding officer takes judicial notice of a fact if he/she accepts that it’s established,
although there’s no evidence on the point
 Schmidt & Rademeyer state that there are cases in which a fact is so well known or so
readily and accurately ascertainable that it would be absurd to lead evidence to prove it
 In such cases, the presiding officer him/herself takes judicial notice of these facts

4.3. Categories of judicial notice

The three categories of judicial notice is:

 general knowledge;
 facts readily ascertainable;
 the law

4.3.1. General knowledge

 The courts distinguish between generally known and locally known facts
 Schwikkard & Van der Merwe contend that a presiding officer may only take judicial notice of
a fact if the fact is well known to all reasonable persons or to a reasonable court in a specific
locality
 However, Schmidt & Rademeyer believe that the test is whether a fact is well known to a
court that has jurisdiction over a particular matter

(a) Notorious facts

 A presiding officer may only take judicial notice of notorious facts if the particular fact is
undisputed among reasonably informed and educated people
 Schmidt & Rademeyer contend that the presiding officer may take judicial notice of a fact
which is so well known that the court and parties concerned would be wasting their time if
this evidence were to be heard

The following are examples of facts in this category of which South African courts have taken
judicial notice:
 that there’s a national network of roads in the country and that these roads are public
roads;
 that there are seven days in a week;
 that no two sets of fingerprints are identical;
 that A K 47 rifles caused carnage and devastation in peaceful and defenceless
communities in South Africa

(b) Facts of local notoriety

 The court ruled that the facts should be well known among all reasonably well-informed
people in the area in which the courts sits
o E.g. courts have taken judicial notice of the fact that a particular road in a local town is a
public road, and of the geographic location of places in the particular area where the court
sits
 However, Schmidt & Rademeyer contend that the criterion should rather be that the
knowledge concerned falls within the field of knowledge of a ‘reasonably informed court’
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 It would be possible for a court to take notice of facts that will normally not be known by the
reasonably informer citizens, e.g. that a certain crime is often committed in the court’s
jurisdiction

4.3.2. Facts readily ascertainable

 This category deals with facts that are readily and easily ascertainable
 The sources from which these facts are ascertained should be indisputable and authoritative
 A presiding officer may only take judicial notice of such facts if they can be
ascertained immediately and with certainty
o E.g. the information which appears on maps and calendars
 It was held that if there’s any doubt as to whether a map can prove the particular fact with
the necessary certainty, a court shouldn’t, by means of the said map as source, take judicial
notice of that fact

 A presiding officer in a particular case can easily consult an almanac in the court to establish
on which day of the week a particular date fell; it’s unnecessary for one of the parties to call
a witness to testify under oath in this regard
 However, a presiding officer won’t rely on an almanac to establish in what phase the moon
was or at what time sunrise and sunset were on a particular day

 The same principle applies to geographical maps, ordnance surveys, road maps and other
similar maps
 The presiding officer may either take a map from one of the parties, without submitting it as
evidence, or he/she may obtain a map from his/her officer or the court library and use it to
establish what the facts are
 Zeffertt suggests that it’s desirable that a map used by a presiding officer for judicial notice
should be open to scrutiny by all parties, even if the map isn’t submitted as evidence

4.3.3. The law

 Courts must take judicial notice of South African law
 The principle is that jurists act and preside in courts and that, as experts, they’re conversant
with South African law
 It would therefore be unnecessary to call on additional expert evidence in this respect
 Although parties may not lead evidence concerning South African law, they may address the
court on the position of the law with regard to a particular point

 The courts must take judicial notice of South African legislation and common law

Legislation includes the following:

 Acts of Parliament;
 Provincial legislation;
 Proclamations;
 Municipal regulations.

 Since the commencement of the Law of Evidence Amendment Act, all courts in South Africa
can take judicial notice of foreign and indigenous law in so far as such law can be
established readily and with sufficient certainty

4.4. Concluding remarks

 Certain cases of judicial notice aren’t as simple as the above may suggest
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o E.g. the case of scientific instruments where courts normally require that an expert
witness should testify that an instrument functioned properly
 If the public has been familiar with the particular technology for a length of time and it’s
general knowledge that a particular instrument functions reliably, the court may take judicial
notice of its reliability

 Even though judicial notice doesn’t affect the police official directly, it’s nevertheless
meaningful to be aware of it
 Although judicial notice came about because it saves times and money, an investigating
officer must still ensure that he/she gathers all possible evidence that may help to prove or
refute the facts in dispute
 This must be done despite the possibility that the presiding officer may take judicial notice of
certain facts in the case under investigation
 Also bear in mind that the public prosecutor relies on having a comprehensive investigation
docket to be able to prepare the case properly for trial.