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Evidence obtained by torture is inadmissible
11 April 2008, 11:28
Evidence obtained through the use of police torture is inadmissible, the Supreme Court of Appeal (SCA) held in a judgment delivered on Thursday.
The court held that even when the evidence was reliable and necessary to secure the conviction of an accused facing serious charges, it was inadmissible.
It follows an appeal by Bongani Mthembu, a taxi operator and former police officer, who was convicted in the Verulam regional court for the theft of two vehicles, some R60 000 in cash and a further R8 450 from the Maidstone Post Office at Tongaat in 1998.
He was sentenced to an effective 23 years in prison on the charges.
On appeal, the Durban High Court confirmed the convictions but reduced the effective sentence to 17 years.
Mthembu had denied, throughout, all charges, arguing that the state’s main witness had falsely implicated him in the crimes because the police had tortured him.
During trial, the court heard that the man had been “assaulted severely”, receiving a “terrible hiding” after being taken into custody.
The assaults included electric shock treatment.
Two other witnesses were apparently also tortured.
On Thursday the SCA held that the Constitution prohibited torture “absolutely” and that the use of electric shock treatment for the purposes of obtaining evidence by police fell within the prohibition.
“The absolute prohibition on the use of torture in both our law and in international law therefore demands that ‘any evidence’ which is obtained as a result of torture must be excluded ‘in any proceedings’,” the unanimous judgment by three appeal judges read.
Justice Azar Cachalia said the police action was “most regrettable” because the appellant, Mthembu, ought to have been convicted and appropriately punished.
Appeal judges Edwin Cameron and Mandisa Maya concurred. – Sapa
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‘Torture-induced evidence is inadmissible’
10 April 2008, 13:48
Evidence obtained through the use of police torture is inadmissible, the Supreme Court of Appeal (SCA) held in a judgment delivered on Thursday.
The court held that even when the evidence was reliable and necessary to secure the conviction of an accused facing serious charges, it was inadmissible.
It follows an appeal by Bongani Mthembu, a taxi operator and former police officer, who was convicted in the Verulam regional court for the theft of two vehicles, some R60 000 in cash and a further R8 450 from the Maidstone Post Office at Tongaat in 1998.
He was sentenced to an effective 23 years in prison on the charges.
On appeal the Durban High Court confirmed the convictions but reduced the effective sentence to 17 years.
Mthembu had denied, throughout, all charges – he argued that the state’s main witness had falsely implicated him in the crimes because the police had tortured him.
During trial, the court heard that the man had been “assaulted severely”, receiving a “terrible hiding” after being taken into custody.
The assaults included electric shock treatment.
Two other witnesses were apparently also tortured.
On Thursday the SCA held that the Constitution prohibited torture “absolutely” and that the use of electric shock treatment for the purposes of obtaining evidence by police fell within the prohibition.
It also found that the admission of such evidence, through torture, would compromise the integrity of the judicial process and bring the administration of justice into disrepute.
“The absolute prohibition on the use of torture in both our law and in international law therefore demands that ‘any evidence’ which is obtained as a result of torture must be excluded ‘in any proceedings’,” the unanimous judgment by three appeal judges read.
“As the House of Lords has recently stated, evidence obtained by torture is inadmissible, ‘irrespective of where, or by whom, or on whose authority it is inflicted’. The reason is because of its ‘barbarism, illegality and inhumanity’.”
However, the Bloemfontein court only dismissed part of the charges faced by Mthembu, due to the tortures.
The court confirmed his conviction on one of the vehicle theft charges but his sentence of five years’ imprisonment was reduced to four years because he had spent 23 months in custody awaiting trial.
Justice Azar Cachalia said the police action was “most regrettable” because the appellant (Mthembu) ought to have been convicted and appropriately punished.
“The police officers who carried the responsibility of investigating these crimes have not only failed to investigate the case properly by not following elementary procedures relating to the conduct of the identification parade, but have also, by torture, themselves committed crimes of a most egregious kind,” he said.
Judge Cachalia said that the police involved had treated the law with contempt and should be held to account.
He ordered that the judgment be sent to the Minister for Safety and Security, the National Commissioner of the SA Police Service, the Independent Complaints Directorate, the Human Rights Commission and the National Director of Public Prosecutions.
Appeal judges Edwin Cameron and Mandisa Maya concurred with the judgment. – Sapa