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Citation:
Nicci Whitear-Nel, Evidence, 19 S. Afr. J. Crim. Just.
112, 118 (2006)

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 SACJ. (2006) 1

Evidence
NICCI WHITEAR-NEL
University of KwaZulu-Natal

Admissibility of extra curial statements by accused

In the case of S v Mokoena 2006 (1) SACR 29 (W), the only evidence
implicating accused one and three in the commission of the offences were
their own extra curial statements.
The defence contested the admissibility of the statements. The judge
conducted a trial-within-a-trial to determine this aspect. In the trial-within-
a-trial, the accused's statements were admitted into evidence as part of
the state's case. It is clear that this is improper in terms of the general rule
that the content of a confession, or admission is irrelevant and therefore
inadmissible in a trial-within-a-trial to determine admissibility.
There is an exception to the general rule - which allows the admission
of the contents of the statement during cross examination of the accused,
in the trial-within- a-trial, for the sole purpose of determining credibility
where the accused has alleged that the content of the statement is false
or that he was told what statement to make. In terms of this exception,
the content of the statement only becomes admissible if and when the
accused testifies in the trial-within-a-trial and alleges that the content of
the statement is false or was dictated to him.
The High Court confirmed that it had committed an irregularity in
allowing the content of the statements to be admitted during the state's
case in the trial-within-a-trial. However, the court held that 'as matters
turned out... both accused [one and three] testified in the trial-within-
a-trial, and both were cross examined by the state on the content of
their statement... [because they alleged that the police had dictated the
statements to them] '.The court held accordingly that there had been no
failure of justice arising from the fact that the contents of the statements
were allowed into evidence prematurely because the accused could not
be shown to have suffered any prejudice. On the evidence, it was clear
that the police had not dictated the contents of the statements to them as
they had alleged.
The court applied the same reasoning to accused two's statement which
had also been admitted prematurely in his separate trial-within-a- trial.
As regards accused four, the court applied s 3(1)(c) of the Law of Evidence
Amendment Act 1988 and found that the hearsay evidence contained in
the other statements was admissible against him. As that evidence was
considered reliable by the court, and as accused four did not contradict
Case reviews

it because he chose not to testify, the court convicted him as charged on

all counts.

Admissibility, at subsequent trial, of statement made in bail

proceedings
In the case of S v Balkwell 2006 (1) SACR 60 (N), the court had to decide
on the admissibility, in the main trial, of the affidavit tendered by the first
appellant during bail proceedings. It was common cause that the magistrate
had not warned the first appellant that the affidavit submitted by him
during the bail proceedings could be used against him at the subsequent
trial. The court held that this was irrelevant in view of the fact that the
statement had been freely and voluntarily introduced into the proceedings
in terms of s 220 of the Criminal Procedure Act 1977, and that he was
legally represented at the time the admissions were made. The position
may have been different had the state sought to introduce the statement
in terms of s 60(11B)(c) of the Criminal Procedure Act 1977.

Admission of fact
In the case of S v Groenewald 2005 (2) SACR 597 (SCA), the accused
made an admission, in terms of s 220 of the Criminal Procedure Act 1977
to the effect, inter alia, that only five 'doppies' were found at the scene.
The defence later argued that the admission regarding the five doppies
was inconsistent with the state's case, and that the admission had to be
regarded as a matter of absolute truth, because it had been recorded as
common cause between the accused and the state.The court held that the
admission could not be examined in isolation to determine its meaning.
Its meaning could only be properly determined when viewed in the
context of the other evidence. The context pointed to a meaning other
than that ascribed to the admission by the accused.The court referred to
and applied the civil principle that ambiguously drafted provisions are
interpreted against the party drafting them. The court distinguished the
case of S v Maweke 1971 (2) SA 327 (A) which applied the rule that
where the defence makes an ambiguous admission, the construction more
favourable to the accused's case should be adopted in relation to his case.
The distinction was made on the basis that in the present case it was the
accused who sought to bind the state to an unfavourable interpretation of
the admission, and not the converse.

Child witness: cross examination

The case of S v Manqaba 2005 (2) SACR 489 (W) was a case in which the
accused's conviction on three counts of rape was set aside by the High
 SACJ - (2006) 1

Court because the magistrate in the regional court had not allowed the
12 year old complainant to be cross examined on an allegedly previous
inconsistent statement. The basis for the magistrate's decision was that
the complainant would have been traumatised at the time she made the
statement and that there may have been discrepancies in what she said to
the police officer in her home language and what was written down in
another language.
Satchwell J correctly held that the magistrate's refusal to allow cross
examination on this basis was an irregularity, based on speculation on
the part of the magistrate. She pointed out that there were measures in
place designed to protect the vulnerable child witness while at the same
time respecting the accused's right to a fair trial.These measures - such as
the use of an intermediary in terms of s 170A of the Criminal Procedure
Act 1977 - were not even canvassed in the case in question. It was not
the proper role for the magistrate to attempt to protect the witness from
challenges to her credibility by speculating as to possible reasons for the
apparent inconsistencies between her previous statement to the police
and her evidence.
In deciding what weight should be placed on the procedural irregularity
described above,SatchwellJ noted numerous evidential concerns about the
state's case.The state's case was based on the single evidence of a reluctant
complainant, whose story was full of inconsistencies, and improbabilities,
and there was no corroboration of her version. She therefore concluded
that the full dispute had not been aired as the vital cross examination
had not been allowed, and that the irregularity had resulted in a failure of
justice which negated the accused's right to a fair trial.The convictions, in
my view correctly, were thus set aside.

Expert evidence
The case of S v Kleynhans 2005 (2) SACR 582 (W) dealt with the
circumstances in which it is appropriate to lead expert opinion evidence
in criminal trials. Satchwell J decried the regular practice that has
developed of commissioning a social worker to report on the personal
circumstances of the accused person - often in order to avoid the necessity
of the accused taking the witness stand and being cross examined. In the
present case the accused was convicted of theft. She appealed against
the sentence imposed in the magistrate's court. She did not herself take the
witness stand, but called a social worker who repeated what she had been
told by the appellant as regards her age, family background, education,
employment and the circumstances surrounding the commission of the
offence. The court correctly held that the practice of the social worker
simply presenting second hand information that should have been
presented by the accused herself was unacceptable.The court in no way
Case reviews

suggested that a social worker could never be properly called as an expert

witness, but stressed that the evidentiary rules pertaining to the admission
of expert evidence must be complied with.The court held that this would,
inter alia, entail a considered assessment of proven facts by the expert so
that the court was able to reach a more sophisticated understanding of the
facts than it would have been able to do otherwise
Taking her characteristic 'substance above form' approach, Satchwell
J condoned the fact that the information pertaining to the accused's
personal circumstances was taken into account even though it had not
been properly presented to the court a quo. Satchwell J reasoned that to
do otherwise would be unduly prejudicial to the accused as there would
then be no evidence surrounding her personal circumstances before
the court, and that the matter may have to be remitted back to court
to allow her this opportunity. Satchwell J held that in addition to being
cumbersome, this would place considerable pressure on the accused to
testify where she had elected to exercise her right to silence, and found
that it was undesirable to prejudice the accused because of undesirable
practices which had developed in the courts. Satchwell J also noted that
the appeal was not argued on the basis that the evidence should not have
been admitted.
In my view this decision is to be welcomed, and is wholly consistent
with the judges earlier decisions on the question of expert evidence,
notably Holtzhauzen v Roodt 1997 4 SA 766 (W), and the more recent
case of S v Engelbrecht2005 (2) SACR 41 (W).

Identification parade
The case of S v T2005 (2) SACR 318 (E), was a case in which the accused
appealed against his conviction and sentence on two counts of indecent
assault. The appeal hinged on the alleged incorrect identification of
the accused. The identification of the accused had been made by the
complainant and a friend at an informal identification parade organised
and run by the street committee of the area in which the alleged offence
took place.The court approached the issue by emphasising the possibility
of honest identification mistake, as the foundation for the cautionary
rule attaching to identification evidence.The court referred to s 37(1)(b)
of the Criminal Procedure Act 1977, and revealed that the power to
conduct identification parades is a power vested only in police officials.
However, the court did not reject the identification evidence from the
street committee's parade on that basis alone.The court did so on a more
rational, less form-based approach.The court set out eighteen established
rules of practice regarding the proper conduct of official identification
parades by police officials.The court compared the conduct of the street
committee's parade against the eighteen rules of practice. Not surprisingly,
116 SACJ • (2006) 1

the court found the informal parade to be sorely lacking, and rejected
the identification evidence obtained therefrom as grossly tainted by
irregularity. There was thus no proper basis for the identification of the
accused, and his conviction and sentence were thus set aside.

Interception and Monitoring Prohibition Act 127 of 1992

In the case of S v Du Toit 2005 (2) SACR 367 (T) the defence objected to the
admissibility of the transcript of tape recordings made by a state witness,
during 'participant surveillance'.The court held that the Interception and
Monitoring Prohibition Act 1992 only applied to third party surveillance,
and not participant surveillance.The transcripts were thus admissible.

Right to silence
In the case of S v Sithole 2005 (2) SACR 504 (SCA) the court found as
fact that the accused had not tendered an exculpatory explanation to the
police at the time of his arrest on suspicion of dealing in large quantities
of dagga. The explanation, if tendered, would have been relatively easy to
verify.The court found that the fact that he had lied about this contributed
to the inference that his defence was fabricated. The court did not draw
a negative inference from the accused's exercise of his right to silence at
the point of arrest - but rather from his untruthful assertion that he had
waived this right and had tendered an explanation to the police at the
time. This was because it tended to suggest that even he realised that if
his explanation had been true, the logical thing to have done would have
been to tell the police officials his story so that they could immediately
investigate and verify it. In my view, this is a fine distinction to draw, but
one that is absolutely correct and which does not violate the right to
silence or the presumption of innocence.

Use of traps and undercover agents: s 252A of the Criminal

Procedure Act 51 of 1977
There are two recent cases dealing with the admissibility of evidence
obtained through the use of police traps in terms of s 252A of the Criminal
Procedure Act 1977.
Section 252A of the Criminal Procedure Act 1977 requires the court
to follow a particular procedure in determining the admissibility of
trap evidence. Firstly, the court must determine the lawfulness of the
trap arrangements. Thereafter the court must decide whether the trap
evidence is automatically inadmissible in terms of s 252A(1) of the Act.
The evidence will be automatically inadmissible if the trap went beyond
merely providing an opportunity for the accused to commit the offence.
Case reviews 117

To determine whether this is so, the court is required to consider a wide

range of factors which are not, in my view, coherent or consistent. If the
evidence is not found to be automatically inadmissible, the court must
decide whether to exercise a discretion to exclude the evidence, weighing
up factors set out in s 252A(3) of the Act. Again, I believe these factors to
be confusing and sometimes at odds with each other.
In the case of S v Reeding 2005 (2) SACR 631 (C) the court once again
decried the lack of clarity in s 252A and pointed out that there had been
no legislative response to the judicial recommendation that it be amended
(see: S v Odugo 2001 (1) SACR 560 (W)).
This case involved a police officer sent undercover into the holding cells
to investigate the alleged sale of drugs by the appellants to prisoners.The
inspector in charge of the operation obtained written permission from the
Provincial Co-ordinator of Traps and Undercover Operations to conduct
the trap. He also, although it was not strictly necessary in terms of the
Act, obtained permission from the Director of Public Prosecutions. The
appellants challenged the lawfulness of the trap because the application
to set the trap was made on the basis that attempts would be made to
buy five mandrax tablets from the first appellant, whereas in fact a parcel
of dagga and one mandrax tablet were purchased. The court held that
because the trap was conducted along the same general lines as envisaged
in the application, it was lawful. The court held that it would be quite
artificial and unrealistic to interpret the permission granted for the trap so
strictly as to preclude the trap from seeking to purchase anything different
to that laid down in the general application.
The court then applied s 252 A of the Criminal Procedure Act 1977
to the facts and reached the conclusion that the evidence obtained by
the trap should be admitted as evidence. In weighing the public interest
against the appellants' private interest, the court gave particular weight to
the seriousness of the offence, the difficulty of detecting it, or preventing
its commission without a police trap, the fact that there was limited (if
any) disregard of the appellants' rights, the lack of any prejudice to the
appellants arising from unfair or improper conduct and the proportionality
of the means used in setting the trap in relation to the seriousness of the
offence. The court also took into account the fact that the offence was
committed by a member of the South African Police Service in an apparent
gross abuse of his position.
In the course of the judgement, the court held that the onus to be met in
proving that the admission of trap evidence would result in an unfair trial,
or be detrimental to the interests of justice in terms of s 252A(3) of the Act
was on a balance of probabilities, not beyond reasonable doubt.
The second case dealing with the application of s 252A of the Criminal
Procedure Act 1977 is that of S v Thinta 2006 (1) SACR 4 (E), where the
court again applied the section to the facts and concluded that the trap
118 SACJ. (2006) 1

evidence was admissible against the appellants. The police had received
information that firearms were being stolen from a military base and sold
for use in taxi violence. The police established a trap with one of their
operatives posing as a potential buyer of firearms. An informer set up a
meeting between the police trap and the second appellant who sold him
an Uzi firearm for R1000. He later contacted the trap again and sold him
a second Uzi. Still later he contacted the trap for a third time and offered
him a much bigger quantity of firearms. When the money was being
exchanged, the trap was sprung.
There are two points worth mentioning that emerge from this case.
The first is that the court pointed out that the purpose behind s 252A is
to control the conduct of law enforcement officers, officials of the state
and any other persons authorised to make use of traps or to engage in
undercover operations. If persons other than those mentioned unfairly
induce another to commit an offence, that inducement is irrelevant for
the purposes of determining the admissibility of the evidence in terms
of s 252A. In the Thinta case, there were two other individuals involved
who were not police informers and who had no official status as regards
the trap - the court held that whether they had induced the appellants to
commit the offence was irrelevant.
An argument raised by the second appellant was that the trap had acted
unfairly because he had not sprung the trap on the first occasion he had
to do so (namely, after the purchase of the first gun). The court held that
in the absence of an unfair inducement to compound the offence, the
appellant must take responsibility for his own actions. The police had
information that the appellants were part of a syndicate involved in the
large scale sale of weapons.The third transaction allowed them to obtain
evidence of this and proved that he was not simply an opportunistic small-
time dealer in weapons..