S v Ndlovu and Others (CC90/2017) [2018] ZAECGHC 123 (26 November 2018)

S v Ndlovu and Others (CC90/2017) [2018] ZAECGHC 123 (26 November 2018)

The court found that the police entry and search of the chalet without a warrant was unlawful and violated the accuseds' constitutional rights. However, the evidence obtained was real evidence, the existence of which would have been revealed independently had the police entered lawfully with a warrant. The police acted in good faith, under urgent circumstances, and not as part of a deliberate policy to violate rights. The admission of the evidence would not render the trial unfair nor be detrimental to the administration of justice. On the contrary, exclusion of the evidence would bring the administration of justice into disrepute, especially given the seriousness of rhino poaching and...

Citation
[2018] ZAECGHC 123
Parties
Applicant: The State; Defendant: Jabulani John Ndlovu; Defendant: Forget Ndlovu; Defendant: Sibusiso Sani Ndlovu
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
26 November 2018
Case Number
CC90/2017
Procedural Posture
Criminal Law Trial / Trial Within a Trial
Outcome
The evidence obtained from the search of chalet 8 at Makana Resort is admissible.
Judges
Pickering
Legal Topics
Admissibility of Evidence, Unlawful Search and Seizure, Protected Species Poaching, Derivative Real Evidence, Constitutional Right to Privacy, Exclusionary Rule
Criminal Law Environmental Law Admissibility of Evidence Unlawful Search and Seizure Protected Species Poaching Derivative Real Evidence Constitutional Right to Privacy Exclusionary Rule

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Parties

The State

Applicant

Jabulani John Ndlovu

Defendant

Forget Ndlovu

Defendant

Sibusiso Sani Ndlovu

Defendant

Procedural Posture

Criminal Law Trial / Trial Within a Trial

Legal Issues

  1. 1 Whether the evidence obtained from the search of chalet 8 at Makana Resort without a warrant is admissible.
  2. 2 Whether the police conduct in entering and searching the chalet violated the accuseds' constitutional rights.
  3. 3 Whether the admission of the evidence would render the trial unfair or be detrimental to the administration of justice.

Ratio Decidendi

The court found that the police entry and search of the chalet without a warrant was unlawful and violated the accuseds' constitutional rights. However, the evidence obtained was real evidence, the existence of which would have been revealed independently had the police entered lawfully with a warrant. The police acted in good faith, under urgent circumstances, and not as part of a deliberate policy to violate rights. The admission of the evidence would not render the trial unfair nor be detrimental to the administration of justice. On the contrary, exclusion of the evidence would bring the administration of justice into disrepute, especially given the seriousness of rhino poaching and...

Court Disposition

The evidence obtained from the search of chalet 8 at Makana Resort is admissible.

Orders

  • The State is permitted to lead evidence relating to the items found in chalet 8 at Makana Resort as listed in paragraph 6 of Exhibit G.