S v Mthembu (379/07) [2008] ZASCA 51; [2008] 3 All SA 159 (SCA); [2008] 4 All SA 517 (SCA) ; 2008 (2) SACR 407 (SCA) (10 April 2008)

S v Mthembu (379/07) [2008] ZASCA 51; [2008] 3 All SA 159 (SCA); [2008] 4 All SA 517 (SCA) ; 2008 (2) SACR 407 (SCA) (10 April 2008)

The Supreme Court of Appeal held that evidence obtained from Ramseroop, the accomplice, through torture—including both his narrative testimony and real evidence (the Hilux and metal box)—was inadmissible under section 35(5) of the Constitution and Article 15 of the CAT. The court found an inextricable link between the torture and the evidence presented, rendering it irredeemably tainted. The exclusionary rule applies not only to accused persons but also to third parties such as accomplices. Without the tainted evidence, the remaining evidence was insufficient to sustain convictions on counts 2 (theft of the Hilux) and counts 4 and 5 (robbery at the post office). The conviction on count 3...

Citation
[2008] ZASCA 51
Parties
Appellant: Bongani Mthembu; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 April 2008
Case Number
379/07
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in the Verulam Regional Court, Confirmed and Varied by the Durban High Court, Now Before the Supreme Court of Appeal.
Outcome
Convictions and sentences on counts 2, 4, and 5 are set aside. Conviction on count 3 is confirmed. Sentence on count 3 is reduced to four years' imprisonment.
Judges
Cameron, Maya, Cachalia
Legal Topics
Admissibility of Evidence, Torture and Exclusion, Constitutional Rights, Real Evidence, Accomplice Testimony
Criminal Law Admissibility of Evidence Torture and Exclusion Constitutional Rights Real Evidence Accomplice Testimony

Case Brief

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Parties

Bongani Mthembu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence in the Verulam Regional Court, Confirmed and Varied by the Durban High Court, Now Before the Supreme Court of Appeal.

Legal Issues

  1. 1 Whether evidence obtained from an accomplice through torture is admissible against the accused.
  2. 2 Whether real evidence derived from torture-induced statements is admissible.
  3. 3 Whether the appellant's conviction for theft and robbery can stand absent the tainted evidence.

Ratio Decidendi

The Supreme Court of Appeal held that evidence obtained from Ramseroop, the accomplice, through torture—including both his narrative testimony and real evidence (the Hilux and metal box)—was inadmissible under section 35(5) of the Constitution and Article 15 of the CAT. The court found an inextricable link between the torture and the evidence presented, rendering it irredeemably tainted. The exclusionary rule applies not only to accused persons but also to third parties such as accomplices. Without the tainted evidence, the remaining evidence was insufficient to sustain convictions on counts 2 (theft of the Hilux) and counts 4 and 5 (robbery at the post office). The conviction on count 3...

Court Disposition

Convictions and sentences on counts 2, 4, and 5 are set aside. Conviction on count 3 is confirmed. Sentence on count 3 is reduced to four years' imprisonment.

Orders

  • The convictions and sentences on counts 2, 4 and 5 are set aside.
  • The conviction on count 3 is confirmed.