IN THE HIGH COURT OF SOUTH AFRICA (Transkei Division) CASE NO. 42/06

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (Transkei Division) CASE NO. 42/06 In the matter between: THE STATE v LUNGISANI MTYO ZUKILE KUTULE SIVUYILE BOTOMAN NKOSINATHI MTYO ACCUSED NO.1 ACCUSED NO.2 ACCUSED NO.3 ACCUSED NO.4 JUDGMENT PAKADE, J.: [1]. In this trial, a stage has been reached for the Court to make a ruling on the validity of certain search warrants issued by the magistrate of Ngqeleni district, legality of the search and the admissibility of the evidence procured in terms thereof. [2].It was submitted by Counsel for the accused in a trial within a trial that those search warrants are defective in a material respect because they are not directed to a specific person to conduct the search in the premises of the accused and also that the magistrate who authorised them did not disclose his name. On the legality of the search, it was submitted by counsel for the accused that the search warrants was executed contrary to the requirement that they be executed during the day time by executing them at night. The third leg of their submission is that the evidence

2 2 which was acquired during the illegal search is unconstitutionally obtained evidence which is inadmissible against the accused. [3]. Mr Genu, counsel for the State conceded that the search warrants are indeed defective in the manner alleged by the defence but submitted though those defects do not render the trial unfair. [4]. On 27 April 1994, South Africa became a Democratic State governed by the Constitution ( Act 108 of 1996 ) having a Bill of Rights embodied therein. The Constitution proclaims the rule of law and its supremacy to be the cornerstone and foundational value of our democracy ( s.1). The supremacy of the Constitution means that the Constitution is the supreme law of the Republic of South Africa ; that law and conduct inconsistent with it is invalid and that the obligations contained therein must be respected and fulfilled. The Bill of Rights entrenched in the Constitution is a cornerstone of our democracy and the state must respect, protect and promote and fulfill the fundamental rights contained therein. The Bill of Rights apply to all law, and binds the legislature, the judiciary and all organs of state (s.8(1)). Section 14 of the Constitution guarantees the right to privacy to an individual. It provides that: Everyone has a right to privacy, which includes the right not to have (a) their person or home searched (b) their properties searched; (c) their possessions seized; or (d) the privacy of their communication infringed.

3 3 [21] In his approach to interpretation of section 13 of the Interim Constitution, the equivalent of section 14 of the final Constitution, Sachs J, has the following to say in Mistry v The Interim Medical and Dental Council of South Africa and Others 1998(4) SA 1127 (CC): The existence of safeguards to regulate the way in which state officials may enter the private domain of ordinary citizens is one of the features that distinguishes a Constitutional Democracy from a police state. South African experience has been notoriously mixed in this regard. On the other hand there has been an admirable history of strong controls over the powers of the police to search and seize. On the other, when it came to racially discriminatory laws and security legislation, vast and unrestricted discretionary powers were conferred on officials and police. Generations of systematized and egregious violations of personal privacy established norms of disrespect for citizens that seeped generally into the public administration and promoted amongst a great many official habits and practices inconsistent with the standards of conduct now required by the Bill of Rights. Section 14 accordingly requires us to repudiate the past practices that were repugnant to the new constitutional values while at the same time reaffirming and building on those that were consistent with these values. In Brinegal v United States 338 US 160 (1949) at 180, Jackson J had this to say in a dissenting judgment on the invasion of privacy: These (Fourth American Rights) I protest, are not mere second class rights but belong in the catalogue of indispensable freedoms. Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.

4 4 [22] The right to privacy is, like all other chapter 2 rights, subject to the limitation clause in section 36 of the Constitution. This section provides that all rights may be limited by the law of general application provided it is reasonable and justifiable in an open and democratic society. In S v Makhwanyane and Another 1995 (3) SA it was held that there was no absolute standard which could be laid down for determining reasonableness and justifiability as this is inherent in the requirement of proportionality which calls for the balancing of different interests. The balancing process must involved a consideration of the nature of the right that is limited and its importance to an open and democratic society, the purpose for which the right is limited and the importance of that purpose to such society, the extent of the limitation and its efficacy. Where the limitation has to be necessary, the court must consider whether the desired ends could be achieved through other means less damaging to the right in question or not. [5]. I must herein below consider the submissions of counsel but before doing so I should first sketch out the background of the matter.on 3 July 2003 and at Nomboso locality in Ngqeleni district, two elderly persons were shot and killed in their homestead. The members of the police in Ngqeleni visited the scene of crime on 4 July 2003 and picked up five cartridges in the hut in which the deceased persons had been shot at. [6]. On 28 August 2003 members of the Serious Violence Crime Unit became involved in the investigation of the incident involving the shooting of the two deceased persons. Under the command of Captain Mawonga Manina ( Manina )they formed a search party of twenty policemen and proceeded to search the premises of the accused. Prior to

5 5 commencing the search aforesaid, Manina successfully applied for search warrants to the magistrate of Ngqeleni district. The search was conducted at 3:00 am and accused no.1 and 2 were woken up in their deep slumber. Accused no.4 could not be found in his home and, in his absence, a search was conducted. An R5 Rifle was found near the stock kraal of accused no.4 ` s home, having been pointed out by accused no.1 who is the brother of accused no.4. That firearm had a magazine containing 26 rounds of ammunition. Another R5 Rifle was found in the home of accused no.1 and had a magazine having no rounds ammunition inside. Nothing was found in the homes of accused no.2 and 3. After the search, the search party gathered in a spot At that spot, Manina confronted accused no.1 about the firearm that was found in his home. Accused no.1 admitted possession of that firearm. [7]. The twenty policemen who constituted the search party had divided themselves in four groups. Manina was in the group which searched the home of accused no.2. In the search of accused no. 2 s home, accused no.2 was identified to Manina by his parents. Having identified himself as a policeman by, inter alia, producing his appointment certificate, Manina arrested accused no.2 and informed him that he was arresting him for the murder of the two deceased persons and unlawful possession of firearms and ammunition. He then explained to him his constitutional rights to silence. He also informed him that if he were to say anything he should understand that his statement will be reduced in writing and will later be used as evidence against him in his trial. He further informed him of his rights to legal representation. Accused no.2 then started giving him a statement admitting his involvement in the commission of the offences in question. This admission is independent of the search.

6 6 [8] The accused were then taken to the offices of the Serious Violence Crime Unit in the Embassy building in Mthatha. Manina also interrogated accused no.1, 3 and 4 about their involvement in the commission of the offences in question. Accused no.1, 3 and 4 also admitted to him that they were involved in the commission of the offences in question. [9]. During the hearing in the trial within a trial, Mr Mbuyiswa, who represents accused no.1, cross-examined Manina. It emerges from his cross-examination that accused no.1 is denying having made any admission to Manina. This issue falls to be decided on the credibility of Manina and accused no.1. It appears from the evidence of Manina that accused no. 1 told them that accused no.4 had run away from his home on the arrival of the police. A version of accused no.1 was put to Manina by Mr Mbuyiswa that at the spot where the policemen converged together with accused no.1 and 2, Manina told the late Inspector Masoka and Inspector Gwebityala that there was a firearm in the garden next a toilet in the home of accused no.4. Manina denied having made such a statement. He also denied another version which was put to him by accused no 1 s attorney that they were kicking accused no.1 with booted feet and were clapping him with open hands. It was further put to Manina that the firearm was found next to the garden of accused no. 4 s home. Accused no. 4 was the last to be arrested, having been taken to the police station by accused no.1 ` s attorney. It is therefore common cause that the firearm was found next to the garden of accused no.4 s home having been pointed out to the policemen by accused no.1. in accused no.4 `s absence.

7 7 [10] Mr Mbuyiswa further cross-examined Manina on the admission which accused no.1 is alleged to have made to Manina in the offices of the Serious Violence Crime Unit in the Embassy building. Manina further testified that as a result of the admissions made by the accused to him in the Embassy offices, which in his view, amounted to confessions, he arranged Superintendent Maqhashalala to reduce those admissions in writing. Manina was also cross-examined by Mr Mbuyiswa on this piece of evidence. [11]. In a nutshell, the evidence before the Court at this stage is that pursuant to the admission made by the accused to Manina, who then held the rank of an Inspector, there is self incriminating evidence from the accused which is to be presented by Superintendent Maqhashalala. [12]. Against this background, I now consider the first submission that the search warrants are defective in the manner alleged by the defence. None of the accused have alleged any prejudice suffered by them as a result of the search having been conducted at night instead of during the day time as prescribed in the search warrants. In any event the prejudicial force which the accused might have suffered is outweighed by the probative value of the evidence of their admission to the commission of the offences they are facing. [13].The challenge on the search warrants emerged when the State produced them intending to adduce evidence thereon and evidence acquired in terms thereof. In view thereof I deemed it in the interest of justice to hold a trial within a trial in order to determine the admissibility of this evidence in the main trial. The evidence led so far which is

8 8 relevant to the issue to be decided was, by agreement with counsel, deemed to be evidence led in a trial within a trial. [14] The first attack on the search warrants is that they are flawed because they were not directed at any specific person for execution and that the magistrate who issued them did not disclose his name. I must reproduce the warrants herein below: SEARCH WARRANT (sections, 20,21 and 25, Criminal Procedure Act, 1977 (Act 51 of 1977)) TO THE STATION COMMANDER 1. Whereas it appears to from information on oath that there are reasonable grounds to believe that within the Magisterial District of Ngqeleni there is an article, to wit, Firearms and Ammunitions which: (a) is concerned in the commission of the offence; (b) is concerned in the suspected commission of an offence; (c) is on reasonable grounds believed to be concerned in the commission of an offence; (d) is on reasonable grounds believed to be concerned in the suspected commission of an offence; (e) may afford evidence of a commission of an offence; (f) may afford evidence of the suspected commission of an offence; (g) ; (h) Is on reasonable grounds believed to be intended to be used in the commission of an offence, and which is in the possession of/ under the control of/ upon or at a premises at/ under the person of. THESE ARE THEREFOR to authorise you to search during the day time the identified person/ to enter and search the

9 9 identified premises and to search any person found on such premises and to direct you to seize the said firearms and ammunition IF FOUND, AND TO DEAL WITH IT ACCORDING TO LAW/BRING IT BEFORE TO BE DEALT WITH ACCORDING TO LAW. GIVEN UNDER MY HAND AT NGQELENI THIS 27 DAY OF AUGUST SIGNATURE. MAGISTRATE. DESIGNATION. [15]. Chapter two of the Criminal Procedure Act, no. 51 of 1977 ( the Act) deals, inter alia, with seizure of property with or without a warrant. That the search warrant must be executed during the day time is the requirement of section 21(3)(a) of the Act. In order to grasp the full import of these provisions it may be appropriate to start reproducing them from section 20 to 22: 20 STATE MAY SEIZE CERTAIN ARTICLES. The State may, in accordance with the provisions of this Chapter, seize anything (in this chapter refers to as an article) (a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

10 10 (b) (c) which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence. 21. ARTICLE TO BE SEIZED UNDER SEARCH WARRANT (1) Subject to the provisions of section 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued (a) by a magistrate or justice; if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; (b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings. (2) A search warrant issued under subsection 1 shall require a police official to seize the article in question and shall to that and authorise such a police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to such any person found on or a such premises. (3) (a) A search warrant shall be executed by day unless the person issuing the warrant in writing authorises the execution thereof by night.

11 11 (b) A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by person with like authority. (4) A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant. 22. CIRCUMSTANCES IN WHICH ARTICLE MAY BE SEIZED WITHOUT SEARCH WARRANT A police official may without a search warrant search any person or container or premises for the purpose of seizing and any article referred to in section 20 (a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or (b) if he on reasonable grounds believes (i) that a search warrant will be issued to him under paragraph ( a) of section 21(1) if he applies for such warrant; and (ii) that the delay in obtaining such warrant would defeat the object of the search. [16]. In their commentary on the Criminal Procedure Act, Du Toit et al deal with the provisions of section 21(3)(a) as follows: Section 21(3)(a) makes execution of the warrant by day obligatory unless the person issuing the warrant in writing authorises night execution. It is submitted that night execution should be an exception

12 12 and only authorised where necessary for the proper administration of justice and the investigation of the case. Urgency is usually a ground for night execution. [17] While section 21(3)(a) provides for the execution of a search warrant during the day time, section 25 authorises a police official to enter premises for the purposes of searching or seizing an article at any reasonable time. Although the word execute is not defined in section 1 of the Act, day is defined as meaning the space of time between sunrise and sunset. In Reid and Another v Godart and Another 1938 AD 511 at 514, De Villiers JA attributed the following meaning to the word execution : I cannot however, accept that contention. The word execution means, as it seems to me, carrying out of or giving effect to the judgment, in the manner provided by law; for an example by specific performance, by sequestration, by the passing of transfer, by issue of letters of administration, by ejectment from premises, or by levy under a writ of execution. In Food and Allied Workers Union v Sanrio Fruits CC and Others 1994(2) SA 486 (TPD) at 487 H, De Klerk J adopted the same meaning which appears in Reid and Another, supra, in the follow terms: The words executed and be executed mean to carry into effect. That is the ordinary and the clear meaning of those words. In Tromp v Tromp 1956(3) SA 664 (N) at 66 H, the learned Judge also referred to Reid and another v Godart and another 1938 AD 501 at 514 and quoted from that matter as per supra. In Claassen, Dictionary of Legal Words and Phrases, volume 2, the word execution is dealt with and the following is stated:

13 13 The word execution is not limited in its connotation to a levy under a writ. The word means the carrying out of, or giving effect to, the judgment, in the manner provided by law; for example by specific performance, by sequestration, by the passing of transfer, by the issues of letters of administration, by the ejectment from premises, or by levy under a writ of execution. execution, in its wider sense means carrying out of or giving effect to a judgment in the manner provided by law. [18]. It is clear from these authorities that the process of search and seizure must be given effect to by commencing by day in terms of section 21(3)(a) or at any reasonable time as provided for in section 25. The example provided for in Reid and Another v Godart and Another supra, namely, ejectment from the premises, cannot, in my view, mean that such ejectment has to be completed before sunset. [19] There is no doubting hoc casu that the search warrants were issued in compliance with the provisions of section 21(3)(a) and were directed to the Station Commander of Ngqeleni police station and that they authorised him or any police official stationed in that police station to search the premises of the accused persons and seize any item or article that they could find in those premises. It appears in the evidence of Manina that there was not a single policeman from Ngqeleni police station amongst the policemen who conducted the search in the accused` premises. The search was, according to him, made by the members of the Serious Violence Crime Unit including himself. In my view there is nothing irregular on the face of the search warrants but the question is

14 14 whether or not the search was incompliance with them. This then brings me to the challenge on the legality of the search. [20]. It is trite law that a search warrant must be given strict interpretation. It is so because it invades the privacy of an individual which is protected by the common law and the Constitution of this Country. In reaffirming the strict interpretation of the search warrant, Ramsbottom J, stated as follows in De Wet and Others v Williers N.O. and Another 1953(4) SA 124 (T) at 127 B: To enter premises, to search those premises, and to remove goods there from is an important invasion of the rights of the individual. The law empowers police officers to infringe the rights of citizens in that way provided that they have a legal warrant to do so. They must act within the terms of that warrant. When a dispute arises as to what power is conferred by the warrant, the warrant must be construed with reasonable strictness and ordinarily there is no reason why it should be read otherwise than in terms in which it is expressed. (S v Pogrund 1974 (1) SA 244 (T). [21]. Search at night instead of during daytime as prescribed in the search warrants would be illegal if the accused were prejudiced thereby. Manina had testified, and I accept his evidence, that it would be impracticable to conduct the search during the day time as that would render the search ineffective as it would defeat the object thereof. The accused would, for instance, easily see the police approaching and would, not only run away, but also hid the firearms and ammunition to which the search was directed.

15 15 [22]. Counsel for the defence, who should be having statements and/or evidence incriminating or exculpating the accused, should have been expected to rebut the evidence of admission given by Manina. Whilst being aware that counsel for accused no.2 and 4 did not cross examine Manina in the trial within a trial nor did the accused testify and while I am not lamenting at the option adopted by them, it was at most risky for them to do so on the face of the evidence of their admission which is going to be given by Maqhashalala in the main trial. [23]. The accused have not alleged that the search which was conducted beyond the time stipulated in the search warrants violated their right to privacy. None of the accused has alleged any violation of his right by the seizure of the firearms and ammunition as a result of the search being conducted at night. All the accused instead, preferred to invoke their constitutional right to silence on the face of the evidence given by Manina that the execution of those search warrants resulted in the finding of illegal firearms and ammunition. [24].The evidence of Manina is that on 28 August 2003 he applied for search warrants in terms of sections 20, 21 and 25 of the Criminal Procedure Act. His affidavit, which was attached to the application, established jurisdictional factors which satisfied the magistrate that they justified the issue of the search warrants. It has not been contended that the search warrants were executed by persons other than those which were authorized by them to search the premises. None of the accused alleged that he suffered prejudice as a result of the search warrant having been executed by the members of the Serious Violence Crime Unit instead of by the members of the South African Police Service stationed in Ngqeleni Police Station. As a matter of fact, it is common knowledge

16 16 that the Serious Violence Crime Unit, which was previously known as Murder and Robbery Unit was formed for the purpose of investigating serious violent crimes. The duty to investigate serious violence crimes was, to my knowledge, assigned to this unit in the entire Eastern Cape Province. Therefore, in my view, when the magistrate authorized the issue of the search warrants to the Station Commander of Ngqeleni Police Station, he intended that the execution thereof should be effected by a proper unit which is assigned the duty of investigating serious violence crimes in the South African Police Service. In view of this assignment, members of the Serious Violence Crime Unit are, in my view, ex officio members of the police stations for the purpose of investigating serious violence crimes. [25]. As the trial within a trial is conducted for the benefit of an accused person in order to give him a fair trial, the advantage thereof is that he may not be cross examined on the issue of his guilt. The fact that the accused is under no obligation to testify does not mean that no consequences should attach to his decision to remain silent. In S v Osman and Another v Attorney General, Transvaal 1998(4)SA 1224(CC) at 1232 E, it was held that once the prosecution has established a prima facie case, an accused who fails to produce evidence in rebuttal of that case is at risk.. Such failure ipso facto turns to strengthen the state case because there is nothing to gainsay it and therefore less reason to doubt its credibility or reliability (S v Mthetho 1972(3) SA 766 (AD) at 769 D- E). [26] If the search was lawful, as I have found, the evidence of the search would be admissible without any further ado. Even if the search was unlawful, the evidence of the search would not automatically become

17 17 inadmissible. That question would be determined by reference to section 35(5) of the Constitution and by interpreting the provisions thereof against the available evidence implicating the accused and weigh the prejudicial force of the evidence of the search against the probative value of the evidence implicating them. The section provides that: Evidence obtained in a manner which violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. [27] The Constitution requires that the accused receives a fair trial. In any democratic criminal justice system, there is always a tension between the public interest in bringing offenders to book and the equally public interest in ensuring that justice is manifestly seen to be done. As held in Ferreira v Levin NO and Others 1996 (1)SA 984 CC fairness is an issue which has to be decided on the facts of each case. At times fairness entails that unconstitutionally obtained evidence be excluded. But there are times when fairness requires that evidence, albeit obtained unconstitutionally, nevertheless be admitted. Even when approaching the matter on the angle that the search was illegal, the interest of justice would require the evidence obtained in that search be admitted because there is evidence of admission which has been led and which is still to be led in the trial. None of the accused disputed that there is no such evidence to be led. [28]. With the approach I have adopted, there is nothing inherently unfair in receiving evidence which was obtained in the course of a lawful search and seizure. In the circumstances I make the following ruling in the matter:

18 18 1. That the search warrants issued by the magistrate of Nqgeleni for the search of the accused` premises are valid; 2. That the execution thereof by search in the premises of the accused is legal ; and 3. That the evidence obtained in the course of the search is admissible. JUDGE OF THE HIGH COURT COUNSEL FOR THE STATE: Adv Genu COUNSEL FOR 1 st DEFENCE: Mr Mbuyiswa COUNSEL FOR 2 nd DEFENCE: Mr Qina COUNSEL FOR 3 rd DEFENCE: Mr Mgudlwa COUNSEL FOR 4 th DEFENCE: Mr Mantyi Judgment delivered on:

19 19