FORM AFILING SHEET FOR EASTERN CAPE JUDGMENT
REPORTABLE ECJ NO : 036/2004
PARTIES: VUKILE JOHNSON TANATU APPELLANT
and
THE STATE RESPONDENT
REFERENCE NUMBERS -
• Registrar: CA & R 163/04
• Magistrate:
• Supreme Court of Appeal/Constitutional Court:
DATE HEARD: 01 September 2004
DATE DELIVERED: 15 October 2004
JUDGE(S): Mhlantla and Plasket JJ
LEGAL REPRESENTATIVES -Appearances:
• for the State/Applicant(s)/Appellant(s): H Obermeyer• for the accused/respondent(s): E Theron
Instructing attorneys:• Applicant(s)/Appellant(s): Legal Aid Board• Respondent(s): DPP
CASE INFORMATION -• Nature of proceedings : Appeal
• Topic: Requirements for valid identification parade
1
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
CASE NO:CA and R 163/04
DATE DELIVERED: 15/10/04
In the matter between:
VUKILE JOHNSON TANATU APPELLANT
and
THE STATE RESPONDENT
Appeal against conviction on a charge of indecent assault – Conviction
based on an informal identification parade conducted by the members
of a street committee – The irregularities in the informal identification
parade such that no weight could be attached to the evidence of
identification implicating the appellant Conviction set aside.
______________________________________________________________
__________________________JUDGMENT__________________________
PLASKET J:
[A] INTRODUCTION
[1] The appellant was convicted in the Regional Court, Port Elizabeth of two
counts of indecent assault. He was sentenced to ten years imprisonment on
the first count and five years imprisonment on the second count. Two years of
the latter sentence was ordered to run concurrently with the sentence on
count one. He appeals against conviction and sentence.
[2] The central issue in this matter is the identification of the appellant as the
2
person who indecently assaulted the complainant, a nineyear old boy. This is
central because the identification of the appellant was made by the
complainant and his younger friend at what may best be described as an
informal identification parade organised and conducted by members of the
street committee from the area in which the offences occurred. I shall deal
with this issue in more detail below, as well as with the relationship between
the police, the communities that the police are required to serve and the
courts which are required to determine whether the guilt of alleged offenders
have been established beyond reasonable doubt.
[B] THE FACTS
[3] It is not in dispute that the complainant was indecently assaulted as
alleged in count 1: the medical evidence established that he had suffered
injuries to his anus consistent with having been penetrated as alleged in count
one. In addition, the complainant testified that his assailant had, after
sodomising him, ordered him to suck his penis. This was the basis for the
charge in count two.
[4] On the afternoon of 21 February 1999, the mother of the complainant sent
him and his friend on an errand. When they were returning, a man joined
them, walked with them for a while and then suggested that they go to a shop
for a cold drink. Soon thereafter, the man chased the complainant’s friend
away, and proceeded to force the complainant to accompany him. The
complainant’s friend went to the complainant’s home where he reported what
had happened to the complainant’s mother. She testified, strangely, that,
rather than dropping everything and proceeding to search for her son, she
decided to finish doing her ironing, even though she appears to have believed
the report of the abduction of her son.
[5] In the meantime, the complainant’s assailant had taken him into some
3
bushes, had forced him to lie on his stomach and had proceeded to sodomise
him. Then the assailant had forced the complainant to suck his penis before
ordering him to leave. The complainant made his way to a road where he was
assisted by a motorist who gave him a lift home. When he arrived home, his
mother was, she testified, about to go and look for him, having finished her
ironing. A while after arriving home in a shocked state, he told his aunt what
had happened to him. Both the complainant and his friend gave descriptions
of the assailant. The noteworthy features that both described were that he had
a defective eye and scars or marks on his face. (The complainant also stated
that he had a scar on his stomach. This was shown to be erroneous.)
[6] It would appear that it was only two days later – on 23 February 1999 –
that the complainant’s mother took him to a doctor to be examined. She had,
however, reported the matter to members of the street committee in the area
in which the assaults on her son had taken place.
[7] The matter was reported to the police on the same day: the complainant’s
mother testified that when the doctor had examined the complainant, he had
advised her to go to the police to lay a charge.
[8] The complainant’s mother and her sister began to make enquiries about
the identity of the complainant’s assailant in the area in which the assaults on
the complainant had occurred. They were advised to involve the street
committees from their area and that area because ‘ander mense kannie by
ander mense se plek oorgaan nie’.
[9] A street committee member, Ms Nompumolelo Kakasi, testified that when
the matter had been reported to her and her committee, the appellant was
identified by them as the person who met the description that the
complainant’s mother had given. A group of four men had gone to speak to
him and had ‘invited’ him to a street committee meeting to deal with the
4
matter. The appellant had come to the meeting. Another person with a false
eye and a person who was squint were also invited and the three of them
were made to sit among the male members of the street committee. Then the
complainant was brought into the room and he proceeded to identify the
appellant. His friend then also identified the appellant. The police were called
and the appellant was arrested.
[10] I shall deal more fully with the evidence concerning the holding of the
informal identification parade and, particularly, the differences in the evidence
of the various witnesses. The appellant’s version was a denial. He attended
the identification parade but stated that the complainant and his friend did not
identify him. The magistrate found the appellant to be a very poor witness. On
that score, she was correct. His evidence makes little sense. The issue,
remains whether, even if his evidence is rejected as false, the State proved
his guilt beyond a reasonable doubt.
[C] THE EVIDENCE IDENTIFYING THE APPELLANT
(a) Evidence of Identification and Identification Parades
[11] Because of the everpresent possibility of honest mistakes being made,
evidence of identification has to be treated with caution. In S v Mthetwa
Holmes JA set out the proper approach as follows:1
‘Because of the fallibility of human observation, evidence of
identification is approached by the Courts with some caution. It is not
1 1972 (3) SA 766 (A), 768AC; see further S v Maradu 1994 (2) SACR 410 (W), 411i412h. See too Van Der Merwe ‘ParadeUitkennings, Hofuitkennings en die Reg op Regsverteenwoordiging: Enkele Grondwetlike Perspektiewe’ (1998) 9 Stellenbosch Law Review 129, 129 who states: ‘Die identiteit van die misdadiger is heel dikwels die enigste of belangrikste geskilpunt in ‘n strafverhoor. ‘n Mens sou ook – miskien effe ongevoelig – kon sê dat ‘n alibi ‘n gewilde verweer in strafsake is. Feit van die saak is egter dat daar in regspraak, amptelike verslae, handboeke en regstydskrifartikels beweer word dat die grootste enkele rede vir werklike en potensieële wanbevindings in ‘n strafhof, toegeskryf moet word aan foutiewe uitkennings van beskuldigdes deur eerlike ooggetuies – die gevalle van sogenaamde “honest but mistaken identifications”.’
5
enough for the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various factors, such
as lighting, visibility, and eyesight; the proximity of the witness; his
opportunity for observation, both as to time and situation; the extent of
his prior knowledge of the accused; the mobility of the scene;
corroboration; suggestibility; the accused's face, voice, build, gait, and
dress; the result of identification parades, if any; and, of course, the
evidence by or on behalf of the accused. The list is not exhaustive.
These factors, or such of them as are applicable in a particular case,
are not individually decisive, but must be weighed one against the
other, in the light of the totality of the evidence, and the probabilities;
see cases such as R. v Masemang, 1950 (2) SA 488 (AD); R. v Dladla
and Others, 1962 (1) SA 307 (AD) at p. 310C; S. v Mehlape, 1963 (2)
SA 29 (AD).’
[12] In these circumstances, the identification parade is often of crucial
importance. The police officials who conduct identification parades should
comply with a range of basic procedures so that the fairness of the
identification parade itself as an investigative process, and the reliability of the
resulting identifying evidence, can be guaranteed. In R v Kola2 Schreiner JA
held as follows in this regard:
‘But an identification parade though it ought to be a most important aid
to the administration of justice may become a grave source of danger if
it creates an impression which is false as to the capacity of the witness
to identify the accused without the aid of his compromising position in
the dock. Unsatisfactory as it may be to rely upon the evidence of
2 1949 (1) PH H100 (A), applied relatively recently in S v Mohlanthe 2000 (2) SACR 530 (SCA), para 29. In R v Shekelele and another 1953 (1) SA 636 (T), 638GH, Dowling J stated: ‘Questions of identification are always difficult. That is why such extreme care is always exercised in the holding of identification parades – to prevent the slightest hint reaching the witness of the identity of the suspect. An acquaintance with the history of criminal trials reveals that gross injustices are not infrequently done through honest but mistaken identifications.’ See too S v Monyane and others 2001 (1) SACR 115 (T), 129eg in which Borchers J observed that a court ‘is usually more ready to accept evidence of identification by a witness where such has been confirmed at a properly conducted parade’.
6
identification given by a witness not well acquainted with the accused,
if that witness has not been tested by means of a parade, it is worse to
rely upon a witness whose evidence carries with it the hallmark of
such a test if in fact the hallmark is spurious. Of course an
identification parade is not necessarily useless because it is imperfect.
In some respects the quality of the parade must necessarily be a
question of degree.’
[13] After alluding to the dangers of honest but mistaken evidence on
identification, Van Den Heever JA, in R v Masemang,3 held that ‘where such
identification rests upon the testimony of a single witness and the accused
was identified at a parade which was admittedly conducted in a manner which
did not guarantee the standard of fairness observed in the recognised
procedure, but was calculated to prejudice the accused, such evidence
standing alone can have little weight’.
[14] Because of the dangers inherent in the acceptance of identifying
evidence simply on the basis of it having emanated from an identification
parade, it is required of the State, when it wishes to rely on such evidence, to
go further than merely establishing this fact: it must also lead evidence that
gives it the stamp of reliability. In S v Daba,4 Kroon J held that where the only
evidence of identification before the court below (when dock identifications
had been disregarded) had been a ‘bald statement’ by a witness that he had
‘pointed the appellant out at an identification parade’ and no evidence had
been led ‘as to the circumstances under which the identification took place
and therefore whether it was reliable’, then ‘on the information before the
magistrate, he ought to have entertained serious reservations as to the
3 1950 (2) SA 488 (A), 493494. Note that in S v Mlati 1984 (4) SA 629 (A), 635GH, Botha JA explained what was meant by the term ‘calculated to prejudice the accused’ in Masemang. He held: ‘Die uitdrukking … sinspeel natuurlik nie op ‘n doelbewuste beplanning van die polisiebeamptes om die beskuldigde te benadeel nie; dit verwys na die bestaan van feite wat, objektief beoordeel, tot gevolg het dat die beskuldigde blootgestel is aan benadeling, hoe ook al hierdie feit tot stand gekom het.’4 1996 (1) SACR 243 (E), 249de.
7
reliability of the identification of the appellant sufficient to merit the acquittal of
the appellant’.
[15] The power to hold identification parades is a power that is specifically
vested in police officials, and in nobody else: s37(1)(b) of the Criminal
Procedure Act 51 of 1977 provides that ‘[a]ny police official may … make a
person referred to in paragraph (a)(i) or (ii) available or cause such person to
be made available for identification in such condition, position or apparel as
the police official may determine’. This section ‘provides the only statutory
basis for the holding of identification parades’.5 A suspect may not refuse to
take part in an identification parade.
[16] In order to ensure fairness, a number of rules of police practice have
been developed as guidelines for how identification parades should be held.
When these rules of practice have been observed properly, the effect is that
the identification of an accused acquires a reliability that it may not otherwise
have. Noncompliance with a rule or rules is not fatal to the admissibility of
identification evidence but will usually have an effect on the weight to be
attached to the evidence as to identification:6 the rules are ‘aimed at
enhancing and reinforcing the evidential cogency of parade identification’.7 If
the State wishes to rely on the evidence of identification at an identification
parade, it must establish that it was conducted fairly – and that is usually done
by proving that it was conducted in accordance with the rules of practice
and that, as a consequence, the resultant evidence is reliable. Kriegler and
Kruger make this point when they say:8
5 S v Bailey CPD 31 August 2000 (case no. 215/2000) unreported, para 33, cited in Du Toit, De Jager, Paizes, Skeen and Van Der Merwe Commentary on the Criminal Procedure Act Cape Town, Juta and Co: 1987, 37 (hereafter referred to as Du Toit et al). 6 S v Monyane and others 2001 (1) SA 115 (T), 132f in which Borchers J held that the ‘Police Rules are, however, merely guidelines to the police on the procedures to be followed in the holding of identification parades. The rules do not create rights and, as in the case of nonobservance of socalled “Judges’ Rules” relating to confessions, noncompliance with one or another of them will not necessarily result in a ruling that the parade is inadmissible’.7 Du Toit et al, 310.8 Hiemstra: SuidAfrikaanse Strafproses (6ed) Durban, Butterworths: 2002, 81. See too S v Daba 1996 (1) SACR 243 (E), 249de.
8
‘Waar getuienis oor parades gelewer word, rus die bewyslas natuurlik
op die staat om aan te toon dat die parade behoorlik gereël is. Daarom
en ook vanweë die gewig van ‘n uitkenning by ‘n behoorlikke
georganiseerde parade, moet dit reëlmatig geskied.’
[17] There are 18 rules of practice that have been developed. They may vary
in importance and ought to be applied by the courts in a common sense
manner, rather than formalistically: Kriegler and Kruger observe that the
‘polisievoorskrifte vir parades, die reels wat in die praktyk uitgekristalliseer het
en die menings wat hier uitgespreek word, is almal hulpmiddels, nie wette van
Mede en Perse nie’.9 What follows are the rules relevant to this matter, with
comment where necessary.10
[18] Rule 1 is to the effect that the ‘proceedings at the parade should – at the
time of the parade – be recorded (preferably on Form SAP 329) by the police
official in charge of the parade’. This rule is ’essential to ensure that an
accurate account of the event can later be furnished to the court’ particularly
because ‘human memory cannot retain all the detailed information which
would be required at a subsequent trial’.11
[19] Rule 2 is that the police official in charge of the parade should not be the
investigating officer. Its purpose is to minimise the possibility of collusion,
whether deliberate or not, between the investigating officer and the witness, to
the prejudice of the person who is pointed out.12
[20] Rule 3 is to the effect that suspects ‘should be informed of the purpose of
the parade and the allegations against them’ and they should ‘be given an
opportunity to obtain a legal representative to be present at the parade’.
9 Hiemstra: SuidAfrikaanse Strafproses, op cit, 81.10 All 18 rules are set out and commented on in Du Toit et al, 311 to 324. See too Kriegler and Kruger Hiemstra: SuidAfrikaanse Strafproses, op cit, 8182.11 Du Toit et al, 311 to 312.12 Du Toit et al, 313. See further S v Mbuli 2003 (1) SACR 97 (SCA), para 46.
9
Whatever the jurisprudential pedigree and status of a suspect having his or
her legal representative present (and it is not necessary to deal with that issue
here) it can be accepted that ‘a legal representative can make an important
contribution to ensure that a fair parade is conducted’.13
[21] Rule 5 is to the effect that a parade ‘should in principle consist of at least
eight to ten persons, but a greater number is desirable’ and rule 8 is that the
‘suspect and persons in the parade should be more or less of the same build,
height, age and appearance and should have more or less the same
occupation and be more or less similarly dressed’. Rule 9 is to the effect that it
is ‘extremely desirable that at least one photograph should be taken of all the
persons (including the suspect) at the parade, depicting them as they
appeared in the lineup and standing next to each other’.
[22] The underlying rationale of rule 5 is that a ‘large number enhances the
value of parade identification whilst it affords greater protection to the truly
innocent’.14 The purpose of rule 8 is to ensure that the suspect is not made to
stand out like a sore thumb, which would obviously attract attention to him or
her and increase the likelihood of him or her being identified, while also
increasing the chance of error15 and rule 9 is the mechanism for providing
objective proof of compliance with rule 8.16
[23] Rule 10 is that the official in charge of the identification parade ‘should
inform the suspect that he may initially take up any position and change his
13 Du Toit et al, 313.14 Du Toit et al, 319.15 Du Toit et al, 319 to 321. See too R v Masemang 1950 (2) SA 488 (A), 490491 and 493494; S v Mlati 1984 (4) SA 629 (A), 634C635I.16 Du Toit et al, 321 to 322. In S v Monyane and others 2001 (1) SACR 115 (T), 132bc, Borchers J stated that it had become ‘almost standard practice to produce in evidence a photograph of the lineup and this in itself greatly assists in determining whether the suspect was placed among others whose general appearance did or did not resemble his’ and in S v Mohlate 2000 (2) SACR 530 (SCA), para 28, Scott JA commented on the fact that ‘the absence of a photograph precluded the Court from seeing for itself and making its own assessment’.
10
position before any other identifying witness is called’.17 This rule is obviously
designed to reduce the possibility of improper collusion between witnesses
(and perhaps also to enhance the legitimacy of the identification parade as far
as the suspect is concerned).
[24] Rule 11 is to the effect that the suspect should be asked whether he or
she is satisfied with the conduct of the identification parade and whether he or
she has any requests to make. Rule 12 is the logical and reasonable next
step, namely that the official in charge should accede to any reasonable
requests made by the suspect.18
[25] Rule 13 states that the witnesses ‘should be kept separately, should not
be allowed to discuss the case while waiting to be called upon to attend the
parade, should not be allowed to see the parade being formed and should be
kept under the supervision of a police official who is neither the one in charge
of the parade nor the investigating official’. Once again the purpose of this rule
is to avoid collusion and to enhance the integrity of the process and the
reliability of its result.19
[26] In terms of rule 14 ‘witnesses should be prevented from seeing any
member of the parade before they are brought in for purposes of making an
identification, and in particular should not be allowed any opportunity of
seeing the suspect in circumstances indicating that he is the suspect, before
or after the parade’.20
[27] Rules 15 and 16 are both aimed at insulating the witnesses from police
officials who may be able to influence their identification of a suspect and from
17 Du Toit et al, 322.18 Du Toit et al, 322 to 323.19 Du Toit et al, 323. See too R v Nara Sammy 1956 (4) SA 629 (T), 631B632A.20 DuToit et al, 323. See too R v Masemang 1950 (2) SA 488 (A), 491, in which the witness had seen the appellant when he was brought into a yard before the identification parade and had subsequently identified him in the parade. Van Den Heever JA noted that the evidence indicated that ‘she paid hardly any attention at all to the other persons on the parade’.
11
other witnesses, after an identification: the former provides that witnesses
should be escorted from the place where they were waiting (under
supervision) by a policeman who is not the investigating officer or the official
in charge of the identification parade, and should thereafter be taken to a
place where he or she will not have any contact with witnesses who have not
yet attended the parade; the latter rule provides that both the policeman who
supervises the witnesses to ensure they do not discuss the case and the
policeman who escorts the witnesses to the parade should not know who the
suspect is, and the parade should be formed or reformed in the absence of
those policemen.21
[28] Rule 17 provides that the policeman in charge ‘should inform each
identifying witness that the person whom the witness saw may or may not be
on the parade and, further, that if he cannot make a positive identification, he
should say so’.22 In R v Nara Sammy23 Dowling J explained the purpose of this
rule when he held that a failure to add the disclaimer that the suspect may or
may not be present may make a witness, particularly one who is illiterate,
think that ‘it is his duty to point out somebody, and an act of disrespect to or
criticism of the police if he is not able to do so’.
[29] The final rule, rule 18, is that the officiating policeman should request the
witnesses to identify suspects by touching their shoulders and that such acts
of identification should be photographed.24
21 Du Toit et al, 323 to 324. See too R v Nara Sammy supra, 631DE in which the following appears: ‘A further irregularity was that the constable, who was employed to fetch the witnesses one by one in order to give them an opportunity of identification, was admitted into the room when the parade was formed and when the parade was reformed for purposes of the next witness, and he was therefore in a position to convey information which would make it possible for the identifying witness, if not too sure of his own recollection, to point out the accused. It is not suggested that the constable, who performed this function, was in any way dishonest. I mention that circumstance because it is one that should not arise at an identification parade: it is one which introduces opportunities of abuse, and identification parades should be made as free from such opportunities as is reasonably practicable.’22 Du Toit et al, 324.23 Supra, 631H632A.24 Du Toit et al, 324.
12
(b) The Identification Parade in this Case
[30] In this case, the identification parade that was held was not one
sanctioned by the Criminal Procedure Act and was not one that was
conducted by members of the police, duly clothed with statutory powers of
investigation. It may best be described as an extralegal identification parade.
[31] No documentary record of the process was made and no photographic or
video evidence of the lineup or the identification of the appellant was taken or
made, let alone produced in court. The trial court was obviously not in a
position to assess whether there had been compliance with the requirement
that the ‘suspect and the persons in the parade should be more or less of the
same build, height, age and appearance and should have more or less the
same occupation and be more or less similarly dressed’. In the result, there
was simply no attempt to comply with rules 1, 8, 9 and 18.
[32] The evidence of the complainant’s mother and Ms Kakasi confirms that
rule 8 was not complied with: of the 11 men in the lineup, the appellant and
one other man had artificial eyes, one man was squint and the remaining
eight men were members of the street committee who had nothing noticeably
wrong with their eyes. When Ms Kakasi was asked about the appearance of
the second man with the artificial eye, she conceded that he was quite
different to the appellant in appearance, in that he was light in complexion.
Noone else in the lineup appears to have had facial scars similar to those of
the appellant.
[33] The identification parade was not conducted in accordance with the
procedures that are intended to insulate the witnesses from any improper
influence in the following additional respects: (i) the street committee, who
were ‘investigating’ the offence also conducted the identification parade and
there appears to have been no effort to separate the investigative function
13
from that of officiating at the parade (or, indeed, from participating in the
identification parade), a violation of rule 2. (It would appear that Ms Kakasi
was probably the person whose functions equated to those of the ‘police
official in charge of the parade’, although the chairperson of the street
committee, who must also have been part of the lineup, also played a part in
this.); (ii) the appellant was not given an opportunity to obtain legal
representation, for what that may have been worth in the circumstances, a
violation of rule 3; (iii) the appellant does not appear to have been allowed the
freedom to choose his place in the lineup, in violation of rule 10. Instead, he
was placed third in the lineup which made him the first person with an
artificial eye that the witnesses would come to; (iv) the appellant does not
appear to have been asked whether he was satisfied with the identification
parade and whether he had any requests, as envisaged by rule 11; (v) no
evidence was placed before the court as to whether the complainant and his
friend were supervised prior to them being called upon to make their
identifications, and if so, by whom, as envisaged by rule 13; (vi) everyone
involved in the identification parade, apart perhaps from two of the
participants, knew who the suspect was so there was no effort to have a
person in charge or a person or persons responsible for escorting the
witnesses in and out, who did not know his identity, as envisaged by rules 15
and 16; and (vii) the warning that was given to the witnesses is perhaps best
described as a heavyhanded, clumsy and thoroughly unprofessional attempt
to terrify them into making a proper identification. They were told, according to
the complainant’s mother that ‘hierso moet julle nie iemand wys wat nie hy is
nie want as julle dit doen hier is baie mense wat hier is, gaan julle doodslaan
of hulle gaan jou vang’. This is hardly the type of warning envisaged by rule
17.
[34] One further issue remains. That is whether the complainant and his friend
were together in the identification parade. Both testified that they were and
that each identified the appellant in the presence of the other. The
14
complainant’s mother and Ms Kakasi both denied this: the complainant’s
mother testified that both waited in a car and that they were brought into the
room individually for purposes of making the identification; Ms Kakasi stated
that both waited in a room, presumably in the house where the identification
parade was held, before being brought into the parade separately. Neither of
the versions of the complainant and his friend, on the one hand, and his
mother and Ms Kakasi, on the other, strikes me as being more probable than
the other: it is not possible to tell where the truth lies so, in my view it can be
concluded that the State has failed to establish the propriety of the
identification parade in this respect.
[35] My conclusion from the above is that the identification parade conducted
by the street committee is so tainted by the irregularities that I have detailed
that no reliance can safely be placed on the identifications that were made
there. That being so, the only other evidence of the identity of the
complainant’s assailant is the dock identifications made by the complainant
and the complainant’s friend. No weight can be placed on that evidence
because it follows upon the irregular identification of the appellant in the
identification parade and because there was noone apart from the appellant
in court when the dock identification was made that had a defective eye: all of
the wellknown dangers of placing reliance on a dock identification are
present in stark form in this case.25
[36] In the result, it is my conclusion that the State failed to prove the guilt of
the appellant beyond a reasonable doubt. That being so, he ought to have
been acquitted by the magistrate. The conviction will accordingly be set aside
but before I make an order to that effect, I consider it necessary to comment
on the street committee’s involvement in this case.
[37] The State is required, when it tries a person for allegedly committing an
25 On dock identifications and the weight to be attached to such identification evidence, see S v Matwa 2002 (2) SACR 350 (E), especially 355i356g.
15
offence, to prove the guilt of the accused beyond a reasonable doubt.26 This
high standard of proof – universally required in civilised systems of criminal
justice – is a core component of the fundamental right that every person
enjoys under the Constitution, and under the common law prior to 1994, to a
fair trial.27 It is not part of a charter for criminals and neither is it a mere
technicality. When a court finds that the guilt of an accused has not been
proved beyond reasonable doubt, that accused is entitled to an acquittal, even
if there may be suspicions that he or she was, indeed, the perpetrator of the
crime in question. That is an inevitable consequence of living in a society in
which the freedom and the dignity of the individual are properly protected and
are respected. The inverse – convictions based on suspicion or speculation –
is the hallmark of a tyrannical system of law. South Africans have bitter
experience of such a system and where it leads to.28
[38] The State is equipped to investigate and to prosecute crime. Substantial
resources are allocated to the police and the Department of Justice for this
26 In R v Mlambo 1957 (4) SA 727 (A), 738A, Malan JA set out what was meant by proof beyond reasonable doubt. He stated: ’In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.’ See too S v Phallo 1999 (2) SACR 558 (SCA), paras 1011. 27 Constitution, s35(3). In S v Zuma and others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC), para 25, Kentridge AJ held that the standard of proof beyond reasonable doubt, as an aspect of the right to a fair trial, could be traced back to the ‘centuries old principle of English law’ that a person is presumed to be innocent until his or her guilt is proved, a principle which had been ‘forcefully restated’ by Viscount Sankey LC in Woolmington v Director of Public Prosecutions [1935] AC 462 (HL), 481 when he held: ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.’28 See Dugard Human Rights and the South African Legal Order Princeton, Princeton University Press: 1978, 262264 who discusses s2 of the Terrorism Act 83 of 1967 and s11(b)(ter) of the Internal Security Act 44 of 1950, both of which created capital offences in which, when certain facts had been proved by the State, the accused was required to prove his or her innocence beyond reasonable doubt, and s 21 of the General Law Amendment Act 76 of 1962 (the socalled Sabotage Act), which required the accused to negative a presumption of guilt on a balance of probabilities, once certain facts had been proved by the State.
16
purpose, and such investigations and prosecutions are conducted by
professionals who are trained for the purpose. If there is a deficiency in the
standards of professionalism that the citizenry is entitled to expect, every
person has the right to take up the issue politically, to utilise their fundamental
right to freedom of expression and freedom of assembly to publicise the
problem and campaign for reform or improvement, and everyone has a right
of access to a system of independent courts to compel the investigative and
prosecutorial services of the State to perform their functions properly, if need
be.
[39] In this case, there is no suggestion in the record that the police did not do
their job properly or dragged their heels in investigating the complainant’s
allegations. There was, accordingly, no basis upon which the street committee
could justify its usurpation of the investigative functions of the police. If the
suspicion that the appellant was the perpetrator of the crimes had been
reported to the police, a proper identification parade, under the tightly
controlled discipline of the rules that I have outlined above, and in facilities
specially designed for the purpose, could have been held. Instead, an
unprofessional and tainted process has had the effect of compromising the
investigation to such an extent that it could not be rescued even by a
subsequent properly conducted identification parade.
[40] The answer is not for the street committee to try, in future, to comply with
the rules of identification parades. Rather than seeking to usurp policing
functions, it should, in future, ensure that it works with the police in the
combating of crime by providing relevant information to the police so that a
proper investigation can be conducted. And it can, no doubt, play an important
role in using its political influence to hold the police to account if the standard
of investigative work falls below acceptable standards of professionalism.
[D] THE ORDER
17
Top Related