levack and others v regional magistrate, wynberg, and another 2004 (5) sa 573 (sca

LEVACK AND OTHERS v REGIONAL MAGISTRATE, WYNBERG, AND ANOTHER 2004 (5)

SA 573 (SCA)

2004 (5) SA p573

Citation

2004 (5) SA 573 (SCA)

Case No

403/2000

Court

Supreme Court of Appeal

Judge

Harms JA, Scott JA, Farlam JA, Cameron JA and Jones AJA

Heard

November 1, 2002

Judgment

November 28, 2002

Counsel

H Raubenheimer SC for the third and fourth appellants.

J Slabbert for the second respondent.

Annotations

Link to Case Annotations

B

Flynote : Sleutelwoorde

Criminal procedure - Evidence - Ascertainment of bodily features of accused - Provisions of s 37 of

Criminal Procedure Act 51 of 1977 - 'Bodily features' - What constitutes - Human voice - Voice

'characteristic' of human body - Each human voice distinctive (though by no means C always capable

of assured discernment) - Voice therefore also 'distinguishing feature' of body - Voice accordingly

falling within scope of s 37 - Nothing in provision suggesting that 'distinguishing features' envisaged

limited to those capable of apprehension through senses of touch and sight (or even taste or smell). D

Constitutional law - Human rights - Right to remain silent - Ascertainment of bodily features - Human

voice - To require accused persons to submit voice samples not infringing right either to remain silent

in court proceedings against them or not to give self-incriminating evidence - Rule against

self-incrimination forbidding forcing person to give self-incriminating evidence - It is not merely

compulsion that is kernel of privilege, but testimonial E compulsion - Person's features (eg

complexion, stature, mutilations, or marks on body) may be relevant, and she or he may be

compelled to show them to Court - Such evidence constituting autoptic evidence (perceived by Court

itself) which Court has right to see - 'Autoptic evidence' derived from accused's bodily features not

infringing right to silence nor right F not to be compelled to give evidence - This applying also to

human voice - Constitution of the Republic of South Africa Act 108 of 1996 s 35(1)(a), Criminal

Procedure Act 51 of 1977, s 37.

Criminal procedure - Evidence - Ascertainment of bodily features of accused - Provisions of s 37 of

Criminal Procedure Act 51 of 1977 - Order by Court in G terms of s 37 - Police powers to act under s

37(1) ending only when accused convicted - As long as police retain s 37(1) powers, court before

which criminal proceedings pending lacking power to make orders contemplated under s 37(3) - This

not meaning that Court not entitled to do so under s 37(1) - Power of police under s 37(1)(c) including

power to request accused to supply H voice samples - Such power may be supplemented by court

order requiring accused to do so - Order would make refusal to co-operate subject to sanction for

contempt of court - Subsections (1), (2) and (3) not operating exclusively of one another - Precise

source of Court's power best located as deriving from s 37(1)(c). I

Headnote : Kopnota

There can be no doubt that the voice is a 'characteristic' (in the sense of a distinctive trait or

quality) of the human body. That each human voice is distinctive (although by no means

always capable of assured discernment) is also clear. The voice, therefore, is also a

'distinguishing feature' of the body. The conclusion that the voice falls within the scope of s 37

of J

2004 (5) SA p574

the Criminal Procedure Act 51 of 1977 must follow. The section does not expressly mention the

LEVACK AND OTHERS v REGIONAL MAGISTRATE, WYNBERG,... http://ipproducts.jutalaw.co.za/nxt/print.asp?NXTScript=nxt/gateway.d...

1 of 10 2012/05/24 05:40 AM

voice. But A this is because it is one of innumerable bodily features that the wording expressly

contemplates. It is true that the voice, unlike palm or other prints, is not itself part of the body.

It is a sound. But the sound is a bodily emanation. And the body from which it emanates

determines its timbre, volume and distinctive modulations. Nothing in the provision suggests

that the 'distinguishing features' it envisages should be limited to those capable of

apprehension through B the senses of touch and sight (or even taste or smell). (Paragraphs

[8], [9] and [13] at 579F/G - I and 581A - C.)

It is wrong to suppose that requiring accused persons to submit voice samples infringes their

right either to remain silent in the court proceedings against them or not to give

self-incriminating evidence. While no one can be compelled to give evidence incriminating

herself or C himself, it is necessary to confine the doctrine within its proper limits. What the

rule forbids is compelling a person to give evidence that incriminates herself or himself. It is

not merely compulsion that is the kernel of the privilege, but testimonial compulsion. A person

may be compelled, when in court, to do what she or he would rather not. Her or his features

may be of importance, and she or he may be made to D show them; complexion, stature,

mutilations, or marks on the body, may be relevant points, and she or he may be compelled to

show them to the Court. That is autoptic evidence which is perceived by the Court itself, and

which it has a right to see. In such cases the person is really passive. 'Autoptic evidence' -

evidence derived from the accused's own bodily features - does not infringe the right to silence

nor the right not to be compelled to give E evidence. This applies in all details to the human

voice. It falls within the same category as complexion, stature, mutilations, marks and prints.

There is no difference in principle between the visibly discernible physical traits and features of

an accused and those that under law can be extracted from her or him through syringe and vial

or through the compelled provision of a voice sample. In neither case is the accused required to

provide evidence of a testimonial or F communicative nature, and in neither case is any

constitutional right violated. (Paragraphs [17], [19] and [21] at 582D, 583C - D and 583G - H.)

While police powers to act under s 37(1) come to an end only when an accused has been

convicted, and, by corollary, so long as the police retain their s 37(1) powers, a court before

which criminal proceedings are pending has no power to make the orders contemplated under

G s 37(3), this does not mean that such a court cannot do so under s 37(1). The power which

the police have under s 37(1)(c) to take steps as they might deem necessary to ascertain the

characteristic or distinguishing features of the appellants' voices includes the power to request

the accused to supply voice samples. This power, in turn, can properly be supplemented by a

court order requiring H the accused to do so. The court order would make refusal to co-operate

subject to sanction for contempt of court. In short, ss (1), (2) and (3) do not operate

exclusively of one another. A court has the power to issue an order requiring an arrested

person (or any other person contemplated in ss (1) and (2)) to comply with a request from any

of the officials named to supply the autoptic evidence sought. The precise source of the Court's

power is best located as deriving from I s 37(1)(c). (Paragraphs [25] and [26] at 584E/F -

585A.)

Cases Considered

Annotations

Reported cases

Ex parte Minister of Justice: In re R v Matemba 1941 AD 75: applied J

2004 (5) SA p575

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others1996 (1) SA

984 (CC) (1996 (1) BCLR A 1): referred to

Gilbert v California 388 US 263 (1967): applied

Ismail and Others v Additional Magistrate, Wynberg, and Another1963 (1) SA 1 (A): referred to B

Key v Attorney-General, Cape Provincial Division, and Another1996 (4) SA 187 (CC) (1996 (2)

SACR 113; 1996 (6) BCLR 788): referred to

Levack and Others v Regional Magistrate, Wynberg, and Another1999 (4) SA 747 (C) (1999 (2)

SACR 151): confirmed on appeal

Nkosi v Barlow NO en Andere1984 (3) SA 148 (T): referred to

R v Brown 1935 CPD 286: referred to


2 of 10 2012/05/24 05:40 AM

R v Camane and Others 1925 AD 570: applied

R v Galiswe 1925 GWLD 23: referred to C

R v Gericke 1941 CPD 211: referred to

R v M1963 (3) SA 183 (T): referred to

S v Binta 1993 (2) SACR 553 (C): referred to

S v Huma and Another1996 (1) SA 232 (W) (1995 (2) SACR 411): referred to

S v Joshua 2003 (1) SACR 1 (SCA): referred to D

S v M1963 (3) SA 183 (T): applied

S v Maphumulo 1996 (2) SACR 84 (N): referred to

S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401):

referred to

US v Dionisio 410 US 1 (1973): applied

US v Wade 388 US 218 (1967): applied E

Wahlhaus and Others v Additional Magistrate, Johannesburg, and Another1959 (3) SA 113 (A):

referred to.

Statutes Considered

Statutes

The Criminal Procedure Act 51 of 1977, s 37: see Juta's Statutes of South Africa 2003 vol 1 at

1-328. F

Case Information

Appeal from a decision in the Cape High Court (Hlope DJP and Davis J), reported at 1999 (4)

SA 747 (C) and at 1999 (2) SACR 151. The facts appear from the reasons for judgment.

H Raubenheimer SC for the third and fourth appellants.

J Slabbert for the second respondent. G

In addition to the authorities cited in the judgment of the Court, counsel for the parties

referred to the following:

Brink v Kitshoff1996 (4) SA 197 (CC) in para [11]

Carmichele v Minister of Safety and Security2001 (4) SA 938 (CC) in paras [33] - [35] H

Chokolingo v Attorney-General, Trinidad and Tobago [1981] 1 All ER 244 (PC)

Davis v Tip NO1996 (1) SA 1152 (T) at 1156H

Harksen v Lane NO and Others1998 (1) SA 300 (CC) (1997 (11) BCLR 1489) in para [54]

Mendes v Kitching NO and Another 1995 (2) SACR 634 (E) at 644c - g I

Nortje and Another v Attorney-General, Cape, and Another1995 (2) SA 460 (C) (1995 (1)

SACR 446; 1995 (2) BCLR 236)

R v Cameron 5 CRR 36 (Alberta)

R v Francois 18 CRR (2d) 187 (Ontario)

R v Ritter 8 CRR 278 J

2004 (5) SA p576

Re Bird and Peebles and The Queen 9 CRR 69 A

Re Blackwoods Beverages Ltd et al and The Queen et al 19 CRR 49 (ManCA)

Re Skis Rossignol Canada Ltd 15 CRR 184 (FC)

S v Attorney-General of the Western Cape and Others 1999 (2) SACR 13 (C) at 21 - 2 B

S v Boesak2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36) in para [11]


3 of 10 2012/05/24 05:40 AM

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat1999 (4) SA 623 (CC) (1999 (2)

SACR 51; 1999 (7) BCLR 771)

S v Duna1984 (2) SA 591 (Ck) at 596A - B

S v Friedman (2) 1996 (1) SACR 196 (W) at 202a - g C

S v Lawrence; S v Negal; S v Solberg1997 (4) SA 1176 (CC) (1997 (2) SACR 540; 1997 (10)

BCLR 1348)

S v M1985 (1) SA 1 (A)

S v Meaker 1998 (2) SACR 73 (W) at 79e - f

S v Mhlungu1995 (3) SA 867 (CC) in para [59] D

S v Pietersen1987 (4) SA 98 (C) at 100B - D

S v Steyn2001 (1) SA 1146 (CC) (2001 (1) SACR 16; 2001 (1) BCLR 52)

Sapat and Others v Directorate for Organised Crime 1999 (2) SACR 435 (C) at 443b

US v MacDonald 435 US 850 E

Walker v Stadsraad van Pretoria1997 (4) SA 189 (T) at 203E - G.

Chambers Twentieth Century Dictionary sv 'body'

Corpus Iuris Secundum vol 22A ss 650 - 2

Du Toit et al Commentary on the Criminal Procedure Act at 3-1, 3-12, 3-13 F

HAT - Verklarende Woordeboek van die Afrikaanse Taal sv 'eienskap', 'onderskei'

Herbstein and Van Winsen The Civil Procedure of the Superior Courts in South Africa

Hiemstra SA Strafproses 5th ed at 75, 80 G

Steyn Uitleg van Wette 5th ed at 4

The Shorter Oxford English Dictionary sv 'characteristic', 'distinguishing'

Websters Third International Dictionary sv 'characteristic', 'distinguishing'. H

Cur adv vult.

Postea (November 28).

Judgment

Cameron JA: I

[1] The Criminal Procedure Act 51 of 1977 gives wide powers to police, doctors and courts to

ascertain the bodily features of arrested or accused persons. At issue in the appeal is s 37. This

empowers police and other officials, and courts before which criminal proceedings are pending,

to take steps, or to order that steps be taken 'to ascertain whether the body' J

2004 (5) SA p577

CAMERON JA

of an arrested or accused person 'has any mark, characteristic or distinguishing feature or

shows any A condition or appearance'. The main question is whether this provision covers the

human voice. B

2004 (5) SA p578

CAMERON JA

[2] In November 1997 five accused were charged with dagga-related A offences in the Wynberg

(Cape) regional court. They were not asked - and have still not been asked - to plead. This is

because at the end of March 1998 the magistrate granted an order under s 37(3) that the

accused in the presence of their legal representatives give the State voice samples as specified

by a named 'voice expert'. The object was to compare the samples with tape recordings of

telephone conversations in the State's possession, for B possible later use during the trial. The

five then challenged the order in the Cape High Court. Davis J (Hlophe DJP concurring)

dismissed their review application in June 1999, and later refused leave to appeal. This Court

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4 of 10 2012/05/24 05:40 AM

granted the necessary leave in October 1999. C

[3] One of the accused died in July 2000. Two of the others (Messrs Levack and Sebola) are no

longer traceable at their home addresses and have dropped out of the proceedings. Their

appeals must be dismissed for want of prosecution. The two remaining, Messrs Hendricks and

Le Roux, persist in the appeal, in which the presiding magistrate is the first respondent. He did

not oppose the proceedings D and abides the Court's decision. The second respondent, the

Western Cape Director of Public Prosecutions, opposed the application and resists the appeal.

Condonation E

[4] The first issue is the appalling delay that has occurred. The magistrate granted the order

four and a half years ago. This Court granted leave to appeal more than three years ago. The

record was lodged in the Cape High Court in April 2000 - more than two and a half years ago.

Thereafter both the notice of appeal and the appeal record were filed late in this Court. Later

also the F appellants' heads of argument were filed late. The appellants seek to have these

lapses condoned. Delays of this kind reflect poorly on everyone involved, and bring discredit to

the criminal justice system. The lapses here, which cumulated, are egregious. What is more,

the explanation tendered - that the attorney was ignorant of the rules for civil appeals because

he 'specialises in and deals G almost exclusively with criminal matters' - is by the avowal of the

appellants' own counsel completely unacceptable.

[5] Whether condonation should be granted is therefore open to serious question, and the fate

of the application must in these circumstances H

2004 (5) SA p579

CAMERON JA

depend on the merits of the appeal itself. These it is desirable for us to address because, we

were told, uncertainty in the A lower courts pre-dated the decision in the Court below, and

regional magistrates took conflicting approaches to whether such orders can be granted. The

appeal therefore requires disposal on the main point in issue.

[6] Before I turn to this, there is a further troubling point. The B appellants' neglect persisted

without intervention from the office of either the Registrar in the Cape High Court or the

Western Cape Director of Public Prosecutions (DPP). In S v Joshua this Court recently had

occasion to deplore a similar (though much longer) lapse where an appeal, also from the Cape

High Court, lay in limbo for years with the appellant out on bail. Appellants in such

circumstances may have little C incentive to bring appeals to finalisation. Close monitoring is

therefore essential, and responsibility for it must rest on the DPP. In this case, we await a

report the DPP's representative promised on steps to ensure that future appeals will not

disappear from view in this way.

Grounds of review D

[7] The grounds of review the appellants relied on in their founding papers were that -

(a) the voice samples the State required did not fall within s 37;

(b) an order that voice samples be provided under compulsion would effectively breach

the appellants' privilege against E self-incrimination and result in an unfair trial;

and

(c) the magistrate had no power to grant the order under s 37(1)(c), nor had the State

laid a basis for bringing the application within s 37(3)(a).

I consider these grounds in turn. F

A Is the voice a 'characteristic or distinguishing feature' of the body?

[8] Basic definition is always a good starting point in the search for statutory meaning. In the

present case it provides a conclusive solution.

The Concise Oxford English Dictionary defines 'voice' as: G

'1. Sound formed in larynx etc and uttered by mouth, especially human utterance in speaking, shouting,singing, etc. 2. Use of voice, utterance. 3. (Phonetic) Sound uttered with resonance of vocal chords, not withmere breath.'

The voice is thus a sound formed in the larynx and uttered by the mouth. It emanates from and

is formed by the body. There can therefore be no doubt that it is a 'characteristic' (in the sense

3


5 of 10 2012/05/24 05:40 AM

of a distinctive trait or quality) of the human body. H

[9] That each human voice is distinctive (although by no means always capable of assured

discernment) is also clear. The voice is therefore also a 'distinguishing feature' of the body.

The conclusion that the voice falls within the scope of s 37 must follow. I

[10] Davis J thus rightly held that a voice 'represents a defining

2004 (5) SA p580

CAMERON JA

characteristic of a human being'. As he also pointed out, this conclusion accords with both

South African and United A States authority. In S v M Bresler J thought it 'perfectly plain'

that a voice 'cannot fail but to be included within this category of ''a mark, characteristic or

distinguishing feature'''. The Supreme Court of the United States has for decades regarded the

voice of an accused as 'an identifying physical characteristic'. The contrary view, Davis J

rightly observed, is clearly untenable. B

[11] However, Davis J considered that this result could be achieved only by applying a

purposive approach to s 37. By this he meant that the provision's wording is ambiguous, and

that to reach the conclusion that 'voice' is covered, it is necessary to go beyond its perceived

verbal signification. I disagree. In my view, the literal meaning of 'characteristic or

distinguishing feature' amply covers the human C voice.

[12] The decision of this Court in Ex parte Minister of Justice: In re R v Matemba, in which

Davis J considered an early example of purposive statutory interpretation, was, I think, more

modest in its purport. The question was whether a palm-print was a 'mark, characteristic or

distinguishing D feature'. Because the then applicable provision expressly mentioned finger-

and footprints, it was argued that palm-prints were excluded. Watermeyer JA (De Wet CJ,

Tindall JA, Centlivres JA and Feetham JA concurring), affirming the majority decision (to which

he was himself party) in R v Brown, held that the general words obviously encompassed

palm-prints. He said: E

'It is quite possible that the Legislature did not have the markings on a palm particularly in mind when theyused the words ''mark, characteristic or distinguishing feature'' possibly because it may not have beengenerally known at the time the Act was passed that the marks on the palm of a hand are distinguishingfeatures. But in my judgment it was for the very reason that there may exist F innumerable kinds of marks,characteristics and distinguishing features which cannot be set out in detail that generic words were usedwide enough to embrace all. In a similar way no attempt was made to specify in detail the exact acts whichthe police may perform in order to ascertain whether or not the body of an accused person bears a mark,characteristic or distinguishing feature, because an incomplete enumeration of such acts might handicap thepolice in the performance G of their duty. Inspection of the body may reveal distinguishing marks of one kind,but other distinguishing marks may require for their revelation one or other of the resources of science such asmicroscopic or chemical examination,

2004 (5) SA p581

CAMERON JA

photography, X-ray photography, prints, etc.' A

[13] Exactly the same applies here. The section does not expressly mention the voice, but this

is because it is one of 'innumerable' bodily features that the wording expressly contemplates. It

is true that the voice, unlike palm or other prints, is not itself part of the body. It is a sound.

But the sound is a bodily emanation. And the body from which it emanates determines its

timbre, volume and distinctive modulations. Nothing in the provision B suggests that the

'distinguishing features' it envisages should be limited to those capable of apprehension

through the senses of touch and sight (or even taste or smell).

[14] Hearing is as much a mode of physical apprehension as feeling or seeing. For the sight-

impaired it is indeed the most important means of C distinguishing between people. It would

therefore be counter-literal to interpret the section as though the ways of 'ascertaining' bodily

features it contemplates extend only to what is visible or tangible.

B Self-incrimination and the appellants' fair trial rights D

[15] Appellants' counsel contended that s 37 deviated from the common-law principle, now

enshrined in the Constitution of the Republic of South Africa Act 108 of 1996, that an

accused was entitled to be 'passive' in criminal proceedings. He developed this argument (as

the second ground of review portends) by contending that the order granted violated the

'notions of basic fairness and justice' the Constitution now requires of E our criminal

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8

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6 of 10 2012/05/24 05:40 AM

proceedings and that it would thus inevitably result in an unfair trial.

[16] The argument involves a muddle with two fallacies. But in one form or another it has

proved tenacious. Hence it is necessary first to point out the muddle and then to repel the

fallacies. This Court has F previously dealt authoritatively with the muddle. In Matemba,

Watermeyer JA drew attention to a trial Judge's misformulation of issues arising from the

non-voluntary taking of an accused's palm-print. He said:

2004 (5) SA p582

CAMERON JA

'That statement appears to lay down two separate and distinct propositions - A

(a) that in the absence of statutory provision an accused person cannot be compelled to furnish evidenceagainst himself;

(b) that evidence obtained under compulsion cannot be used against an accused person.

The terms in which those propositions are stated tend to obscure the real issues which are involved, and I donot think that either of them can be accepted as accurate expositions of the law. The legality B of themethods used to obtain the palm print is one matter; the use of the palm print as evidence is another, andthese two questions must be kept separate and not combined with one another, as is done when it is saidthat an accused person cannot be compelled to furnish evidence against himself.'

(Emphasis added.) C

[17] Applying the same approach to the present argument, the first fallacy is that evidence

derived from an accused's physique violates the right against self-incrimination. Differently put,

it is wrong to suppose that requiring the appellants to submit voice samples infringes their right

either to remain silent in the court proceedings against them or not to give self-incriminating

evidence. In D R v Camane and Others, Innes CJ analysed and exposed the same fallacy a

decade and a half before Matemba:

'Now, it is an established principle of our law that no one can be compelled to give evidence incriminatinghimself. He cannot be forced to do that either before the trial, or during the trial. The E principle comes to usthrough the English law, and its roots go far back in history. Wigmore, in his book on Evidence (vol IV, s2250) traces very accurately the genesis, and indicates the limits of the privilege. And he shows that,however important the doctrine may be, it is necessary to confine it within its proper limits. What the ruleforbids is compelling a man to give evidence which incriminates himself. ''It is not merely F compulsion'' saysWigmore (s 2263) ''that is the kernel of the privilege, but testimonial compulsion''. It is important to bearthis in mind, because a man may be compelled, when in Court, to do what he would rather not. His featuresmay be of importance, and he may be made to show them; his complexion, his stature, mutilations, or markson his body, may be relevant points, and he may be compelled to show them to the Court. That is whatWigmore calls autoptic evidence (vol G II, s 1150) which is perceived by the Court itself, and which it has aright to see. In such cases the man is really passive. But he cannot be forced to go further and to giveevidence against himself.' J

2004 (5) SA p583

CAMERON JA

[18] Despite the clarity of Innes CJ's pronouncement, the fallacy has endured. Fifteen years

later, Watermeyer JA had to rebut it A again, at length, in Matemba. He concluded:

'Now, where a palm print is being taken from an accused person he is, as pointed out by Innes CJ in R vCamane 1925 AD at 575, entirely passive. He is not being compelled to give evidence or to confess, any morethan he is being compelled to give evidence or B confess when his photograph is being taken or when he isput upon an identification parade or when he is made to show a scar in Court. In my judgment, therefore,neither the maxim nemo tenetur se ipsum prodere nor the confession rule make inadmissible palm printscompulsorily taken.' C

[19] Notwithstanding the authority of these expositions, the task of explaining that 'autoptic

evidence' - evidence derived from the accused's own bodily features - does not infringe the

right to silence nor the right not to be compelled to give evidence has continued to fall upon

Judges. The explanations given in these cases apply in all details to the human voice. It

falls within the same category as complexion, stature, mutilations, marks and prints. D

[20] It is of course true that to take a palm or fingerprint, or to draw blood from an accused, or

to require him to supply a voice sample, goes further than merely observing his features or

complexion when he appears in court. Our legal system recognises the distinction. It is for this

reason that Ackermann J held in E S v Binta that a person who refuses a request to submit

to the taking of a blood sample under s 37 cannot, by the mere refusal, be guilty of obstructing

the course of justice or of attempting to defeat the ends of justice. The additional means of

compulsion that the provision licenses may have to be employed. In the present case, it was no

doubt awareness of Binta that induced the DPP to seek the order. Eventual F defiance of it

would found a charge of contempt of court.

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7 of 10 2012/05/24 05:40 AM

[21] Despite this added feature, there is no difference in principle between the visibly

discernible physical traits and features of an accused and those that under law can be extracted

from him through syringe and vial or through the compelled provision of a voice sample. G In

neither case is the accused required to provide evidence of a testimonial or communicative

nature, and in neither case is any constitutional right violated.

2004 (5) SA p584

CAMERON JA

[22] The second fallacy in the argument is this. It is wrong to suggest that the order

intrinsically violates the appellants' fair A trial rights. At present the only question before us is

whether an order requiring an accused to supply, in the presence of defence lawyers, voice

samples indicated by a State-designated 'expert' is competent. Those samples have not yet

been procured. The 'expert's' report has not yet been prepared. Its value and the weight that

should properly be accorded it have not arisen for determination. B

[23] All these are issues for determination at the trial, which has not even begun. Once the

appellants have pleaded, the trial court will be vigilant to ensure observance of their rights.

This will demand scrutiny not only of the methods and procedures applied in procuring the

voice samples, but of the quality, reliability and value of the C expert evidence about them. The

argument that an incipient and inevitable breach of fair trial rights has occurred is therefore

untenable.

C The interrelation between s 37(1) and s 37(3) D

[24] The review grounds suggested also that the magistrate had no power to grant the order

under s 37(1)(c), and that the State had laid no basis for bringing the application within s

37(3)(a). This attack, too, is misconceived. The magistrate in fact omitted to specify under what

subsection he granted the order. But that he had the power to make an order requiring the

appellants to supply voice samples cannot be doubted. E

[25] It has rightly been held that police powers to act under s 37(1) come to an end only when

an accused has been convicted, and that, by corollary, so long as the police retain their s 37(1)

powers, a court before which criminal proceedings are pending has no power to make the

orders contemplated under s 37(3). F This does not mean, however, that such a court

cannot do so under s 37(1). In the present case, the police retained the power under s 37(1)(c)

to take steps as they might deem necessary to ascertain the characteristic or distinguishing

features of the appellants' voices. This included the power to request the appellants to supply

voice samples. This power, in turn, could properly be supplemented by a court order requiring

the appellants to do so. G

[26] The regional court's order that the appellants supply the voice samples in question thus

reinforced and underscored the powers of the police, by making refusal to co-operate subject to

sanction for contempt of court. In short, ss (1), (2) and (3) thus do not operate exclusively of

one another. A court has the power to issue an order H requiring an arrested person (or any

other person contemplated in ss (1) and (2)) to comply with a request from any of the officials

named to supply the autoptic evidence sought. In the present case, therefore, the police

retained the power to request the appellants to supply the voice samples,

2004 (5) SA p585

CAMERON JA

and the regional court had the power to order that they do so. The precise source of the court's

power is therefore A best located as deriving from s 37(1)(c).

Review of unconcluded proceedings

[27] As is well established, the Supreme Court Act 59 of 1959 permits intervention by Superior

Courts in the unconcluded proceedings of B inferior courts only on limited grounds. I agree

with Davis J in the Court below that no case at all was made out that this is one of the rare

cases where intervention was warranted. Appellants' counsel sought to argue that the order

requiring the provision of voice samples was of such a radical nature, comparable to the

imposition of corporal punishment, that it was final in effect. The argument is not C persuasive.

As explained above, the provision of voice samples is no different in principle from the

provision of a blood sample or a fingerprint. The order granting it cannot, at this stage of the

proceedings constitute the sort of gross irregularity that would justify intervention. D

26

27

28

29

30


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Order

1. The appeal of appellants 1 and 2 is dismissed for want of prosecution.

2. The application for condonation of appellants 3 and 4 is dismissed.

Harms JA, Scott JA, Farlam JA and Jones AJA concurred. E

Appellants' Attorneys: R M Liddell and Weber Inc, Wynberg; E G Cooper and Sons,

Bloemfontein. F

1 Section 37 provides: 'Powers in respect of prints and bodily appearance of accused (1) Any police official may -(a) take the finger-prints, palm prints or foot-prints or may cause any such prints to be taken -(i) of any person arrested upon any charge;(ii) of any person released on bail or on warning under s 72;(iii) of any person arrested in respect of any matter referred to in para (n), (o) or (p) of s 40(1);(iv) of any person upon whom a summons has been served in respect of any offence referred to in Schedule 1 or anyoffence with reference to which the suspension, cancellation or endorsement of any licence or permit or thedisqualification in respect of any licence or permit is permissable or prescribed; or(v) of any person convicted by a court or deemed under s 57(6) to have been convicted in respect of any offencewhich the Minister has by notice in the Gazette declared to be an offence for the purpose of this subparagraph;(b) make a person referred to in para (a)(i) or (ii) available or cause such person to be made available foridentification in such condition, position or apparel as the police official may determine;(c) take such steps as he may deem necessary in order to ascertain whether the body of any person referred to inpara (a)(i) or (ii) has any mark, charcteristic or distinguishing feature or shows any condition or apperance: Providedthat no police official shall take any blood sample of the person concerned nor shall a police official make anyexamination of the body of the person concerned where that person is a female and the police official concerned isnot a female;(d) take a photograph or may cause a photograph to be taken of a person referred to in para (a)(i) or (ii). (2)(a) Any medical officer of any prison or any district surgeon or, if requested thereto by any police official, anyregistered medical practioner or registered nurse may take such steps, including the taking of a blood sample, asmay be deemed necesssary in order to ascertain whether the body of any person referred to in para (a)(i) or (ii) of ss(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance. (b) If any registered medical practioner attached to any hospital is on reasonable grounds of the opinion that thecontents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant atany later criminal proceedings, such medical practitioner may take a blood sample of such person or cause suchsample to be taken. (3) Any court before which criminal proceedings are pending may -(a) in any case in which a police official is not empowered under ss (1) to take finger-prints, palm-prints orfoot-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic ordistinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at suchproceedings or that the steps, including the taking of blood sample, be taken which such court may deem necessaryin order to ascertain whether the body of any accused at such proceedings has any mark, characteristic ordistinguishing feature or shows any condition or appearance;(b) order that the steps, including the taking of a blood sample, be taken which such court may deem necessary inorder to ascertain the state of health of any accused at such proceedings. (4) Any court which has convicted any person of any offence or which has concluded a preparatory examinationagainst any person on any charge, or any magistrate, may order that the finger-prints, palm-prints or foot-prints, ora photograph, of the person concerned be taken. (5) Finger-prints, palm-prints or foot-prints, photographs and the record of steps taken under this section shall bedestroyed if the person concerned is found not guilty at his trial or if his conviction is set aside by a Superior Counrtor if he is discharged at a preparatory examiniation or if no criminal proceeding with reference to which such prints orphotographs were taken or such record was made are instituted against the person concerned in any court or if theprosecution declines to prosecue such person.' 2 Reported: 1999 (4) SA 747 (C) (1999 (2) SACR 151). 3 S v Joshua 2003 (1) SACR 1 (SCA) in para [55] per Mpati JA. 4 Difficulties in organising reliable 'voice identification parades' are alluded to in R v Gericke 1941 CPD 211 at214 and in R v M1963 (3) SA 183 (T) at 184F - H. In R v Galiswe 1925 GWLD 23 the trial court excluded evidence of avoice identification procedure because the accused was not warned or told why he was being questioned. 5 1999 (4) SA 747 (C) at 752C (1999 (2) SACR 151 at 155g - h). 6 1963 (3) SA 183 (T) at 184E - F. 7 US v Wade 388 US 218 (1967) at 222 - 3 (Brennan J for the Court); Gilbert v California 388 US 263 (1967) at266 - 7 (Brennan J for the Court); US v Dionisio 410 US 1 (1973) (a voice has 'physical properties', which can bemeasured) (Stewart J for the Court). 8 1999 (4) SA 747 (C) at 753B (1999 (2) SACR 151 at 156f). 9 1941 AD 75. 10 Criminal and Magistrates' Courts Procedure (Amendment) Act 39 of 1926, s 2. 11 1935 CPD 286. 12 1941 AD 75 at 79 - 80. That the conclusion is 'obvious' is stated at 80. 13 The Bill of Rights provides that everyone who is arrested for allegedly committing an offence has the right toremain silent and not to be compelled to make any confession or admission that could be used in evidence againstthat person (s 35(1)(a) and (c)), and that every accused person has a right to a fair trial, which includes the right 'tobe presumed innocent, to remain silent, and not to testify during the proceedings' and not to be compelled to giveself-incriminating evidence (s 35(3)(h)); considered in S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR568); 1995 (4) BCLR 401) in paras [29] - [32] (Kentridge AJ) and Ferreira v Levin NO and Others; Vryenhoek andOthers v Powell NO and Others1996 (1) SA 984 (CC) (1996 (1) BCLR 1) in paras [23] and [91] - [100]. Steenkampand Nugent in Cheadle, Davis and Haysom South African Constitutional Law: The Bill of Rights (2002) chap 29 at


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680 observe that: 'It is difficult to see what is added by the express right not to be compelled to make a confession or an admission,for the right to remain silent, and the right not to testify have, in any event, the effect of prohibiting compulsion tomake confessions or admissions.' 14 S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401) in para [16]. 15 1941 AD 75. 16 1941 AD 75 at 77 - 8. 17 1925 AD 570 at 575. 18 See now Wigmore on Evidence, McNaughton Revision (1961) vol 8 para 2250. 19 See now Wigmore on Evidence, McNaughton Revision (1961) vol 8 para 2263. 20 See now Wigmore on Evidence, revised by Chadbourn (1972) vol 4 para 1150. 21 Cited with approval in S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401) inpara [31] and in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others1996 (1) SA 984 (CC)(1996 (1) BCLR 1) in paras [23] and [96]. 22 1941 AD 75 at 80 - 3. 23 Nkosi v Barlow NO en Andere1984 (3) SA 148 (T) at 151 - 2 (Spoelstra J, Eloff J concurring); S v Binta 1993(2) SACR 553 (C) at 562d - e (Ackermann J, Conradie J concurring); S v Huma and Another1996 (1) SA 232 (W) at 237- 40 (1995 (2) SACR 411 at 417 - 19) (Claassen J); S v Maphumulo 1996 (2) SACR 84 (N) at 87 - 90 (Combrink J). 24 This is also the position in the United States of America (US v Wade 388 US 218 (1967); Gilbert v California388 US 263 (1967); US v Dionisio 410 US 1 (1973)). 25 1993 (2) SACR 553 (C) (Conradie J concurring). 26 The Corpus Juris Secundum vol 22A para 652 puts it thus: 'The privilege against self-incrimination is not violated by compelled participation in identification procedures, andthe compelled display of identifiable physical characteristics infringes no interest protected by such privilege againstself-incrimination protects only against evidence of testimonial or communicative nature, and compulsion to speakdoes not violate it.' 27 Nkosi v Barlow NO en Andere1984 (3) SA 148 (T) at 154I - 155E (Spoelstra J, Eloff J concurring). 28 It follows that the order in S v Huma and Another1996 (1) SA 232 (W) (1995 (2) SACR 411), should havebeen granted in terms that made it clear that the accused were ordered to co-operate with the police in the exerciseof the powers of the latter to take fingerprints under s 37(1)(c). 29 Act 59 of 1959 provides: '24 Grounds of review of proceedings of inferior courts (1) The grounds upon which the proceedings of any inferior court may be brought under review before a ProvincialDivision, or before a Local Division having review jurisdiction, are -(a) absence of jurisdiction on the part of the court;(b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;(c) gross irregularity in the proceeding; and(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.' 30 1999 (2) SACR 151 (C) at 157e - 158a (1999 (4) SA 747 at 754A - 755A), citing, inter alia, Wahlhaus andOthers v Additional Magistrate, Johannesburg and Another1959 (3) SA 113 (A), Ismail and Others v AdditionalMagistrate, Wynberg and Another1963 (1) SA 1 (A) and Key v Attorney-General, Cape Provincial Division, andAnother1996 (4) SA 187 (CC) (1996 (2) SACR 113; 1996 (6) BCLR 788).

A

2005 Juta and Company, Ltd.


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levack and others v regional magistrate, wynberg, and another 2004 (5) sa 573 (sca

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