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Is South Africa ready for its new constitution when it comes to unconstitutionally obtained evidence?

This might sound like a cynical question, but in all honesty, is our courts ready for the challenge?

Welcome Masilane case background.

In order for the heads of argument to make any kind of logical sense, I first need to explain the case and give a little background on the case itself.

Welcome Masilane is accused nr 2 in a line of 6 accused. The brief summary of events of the incident is as follows:

The brief summary of events

On a day in 2007, during the evening, in Vredenburg, a couple of gentleman violently entered the deputy mayor’s (2^nd in command to the mayor of Vredenburg) house by breaking down the front door. I will refer to him after this as the complainant.

During their entry, a couple of gentleman started to help themselves to the complainant’s properties in his lounge and 2 gentleme n went into the bedroom where the complainant and h is wife and their young toddler was present at the time. The complainant was assaulted and asked for money and weapons. A firearm was present during this encounter, although clearly not loaded according to testimony of the complainant.

For purposes of the legal argument the incident is summarized, I do not think it appropriate to disclose everything that occurred on the day in question in order to respect the privacy of the witnesses concerned.

After the properties were taken, all the gentleman disappeared into the night with their loot. The complainant was injured, but fully recovered from his injuries.

The matter was reported to the police, they came out to the crime scene. During their visit to the crime scene an individual reminiscent of one of the assailants passed the police in the street and was subsequently arrested. This individual was never charged, and is not one of the accused in the matter currently on trial.

At a later stage, some time afterwards. Accused nr 6 was apprehended on an unrelated charge. He had a panga in his possession which was in violation to his parole conditions in another matter.

This is also the point where all logics and sensibility ceases to exist any further. From here on, onwards, all becomes very blurry and the stories does not seem to make much sense afterwards.

During the questioning of accused nr 6 about the panga that he allegedly had in his possession. Without any reason, without any cause or without any proper explanation, accused 6 decided to start talking about his involvement in the robbery at the complainant’s house. Why on earth he would volunteer such information with no reason to do so, remains a mystery to this day.

Logics aside, he gives the information and this leads the police to his house and subsequently to accused nr 2 house as well.

The police claimed they did not assault accused nr 6, the community members whom were present at the trial and during the police procedures at accused 6 house the day in question, claim otherwise. The community is making claims of severe police brutality, and a half naked accused nr 6 in the back of the police van. The police deny any of that.

The police arrived at Mr Masilane’s house, fully knowing that they are going to search the premises. Yet despite going to the house with this knowledge, they do not obtain a search warrant beforehand.

On the police’s version, they obtained permission from the owner of the house to search the house. The owner, Mrs Masilane whom testified, denies ever giving such, since she was never asked for permission. On her version she was merely asked where Mr Masilane’s room was situated.

The police entered Mr Masilane’s room, with him being asleep in the room, at the time. They search the room, found properties belonging to the complainant and a hand gun. They also asked Mr Masilane to point out where another cell phone would have been, which on the police’s version he told them he has given to his sister.

Afterwards Mr Masilane also made a confession to a fellow police officer whom reduced this statement to writing.

The police claimed all this evidence was obtained from accused nr 2, in a free and voluntarily fashion while he was duly informed of his constitutional rights and decided to waive all his constitutional rights.

These rights would be, the right to remain silent and the right to an attorney. According to the police Mr Masilane had no intention of exercising any of these rights, and waived them while under complete and utter understanding of what he is about to embark upon. This is providing the prosecution with all evidence required to convict him.

Needless to say, all this was done freely, voluntarily and without any undue influence whatsoever from the police.

Reasons for being on trial.

Obviously if the defense agreed with all of this we would not be on trial. The defense, all 6 accused, contest the evidence and the manner in which it was obtained.

That is why we are on trial. The defense is saying that the evidence was obtained in violation of the accused constitutional rights.

Their rights were never explained to begin with and was never waived.

And now for all our questions and issues.....

I honestly don’t think so. A lot of bad things have been said about the apartheid regime, the SAPS, their way of investigating matters, but very little of that has changed. The courts are there to uphold law and order and call everyone to order, including the police. But is that what is happening? Or is the police calling the courts to order – whatever they like the court to order?

So where are we now? Something like mmmmmm 16 years down the line? We have a new constitution. We have a new government, but oh boy do we love our unconstitutionally obtained evidence. And even more important than that, do we love admitting it!

Yes we have found all lovely kinds of ways of justifying it. We call it in the interest of justice. We call it in the interest of society. We call it in the interest of aaaghhh - whatever.

How about trying to call it - in the interest of a successful prosecution? That might be more correct, more aptly put. And most importantly more honestly put too!

If you say you are admitting evidence in the interest of justice or society, who’s justice are you talking about (accused or complainant). If you are saying in the interest of society. Which society are you referring to? The one the complainant comes from or the one the accused comes from?

Both accused and complainant have family, relatives and people whom want their loved ones to be protected by the law. So who are you referring to?

It certainly cannot be in both the complainants and accused interest when the accused was to be assaulted, humiliated, beaten and then God knows what else being done to. After which we then use that evidence that was so obtained.

Can we then say that such evidence that was obtained was in the best interest of both of them? – at the very same time?

Clearly not! We are distinguishing here. There is a difference. One set of rights clearly is swayed in favor of another. The accused rights are a little over looked, in favor of a ….mmmmmm… a successful prosecution.

It is either in the best interest of complainant or the accused. Someone’s rights got violated – in all cases where evidence where obtained unconstitutionally it was the accused rights that had to be violated. So it can only be to the accused detriment and the complainants benefit. There simply is no other way to look at it.

So all that said and done, what are we doing? Why all these nice tests? Why all these tests to determine if something is in the interest of this or that if in the end we are going to admit the evidence anyway? Why having a constitution, at all, if no effect is going to be given to the rights in it?

I have attached the heads of argument of a case where the court is asked this very same question. What happened in this case makes you think we do not have a new constitution. Stepping into court in this matter makes you feel like you are back in the 1970’s somewhere……

I must clarify this statement, I am referring to the manner in which the police investigated this matter. And what the prosecution is asking the court to do now, which is admitting the unconstitutionally obtained evidence….