THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  379/07
REPORTABLE

In the matter between:

BONGANI MTHEMBU                                                         APPELLANT

v

THE STATE                                                                         RESPONDENT

Coram: Cameron, Maya et Cachalia JJA

Heard:
19 February 2008
Delivered:     10 April 2008

Corrected:
3 September 2008

Summary:  The evidence of an accomplice extracted through torture, (including real
evidence derived from it), is inadmissible, even where the accomplice testifies
years after the torture.

Neutral citation:  This judgment may be referred to as Mthembu v The State
(379/2007) [2008] ZASCA 51 (10 April 2008).

JUDGMENT

CACHALIA JA

[1] This appeal, in the main, concerns the admissibility of evidence,
obtained through the use of torture, from an accomplice. The question
arises because the chief state witness against the appellant implicated him
in several crimes through narrative and real evidence – but disclosed,
when testifying at the trial more than four years later, that he had been
beaten and tortured before leading the police to crucial evidence. The
point at issue is whether that evidence can be used against the appellant.

[2] The appellant, a former a police-officer, was convicted in the
Verulam Regional Court (Mrs Pillay) of theft of a Toyota Hilux motor-
vehicle on 5 January 1998 (count 2), theft of a Toyota Corolla motor-
vehicle on 3 February 1998 (count 3) and robbery of a steel box
containing R60 000 in cash and also of a further amount of R8450 from
the Maidstone Post Office at Tongaat (counts 4 and 5) on 10 February
1998. For the theft of the two vehicles, taken together, he was sentenced
to eight years’ imprisonment, and for the robbery to 15 years’
imprisonment – effectively 23 years’ imprisonment.1

[3] He appealed to the Durban High Court against his convictions and
sentence. That court confirmed the convictions but reduced the sentence
on counts 2 and 3 to five years’ imprisonment and that on counts 4 and 5
to 12 years’ imprisonment. The effective sentence was reduced to
17 years’ imprisonment.2 Leave to appeal was granted to this court.

1 The appellant originally faced seven charges. Only four are relevant to this appeal.
2 The order indicates that the sentence is 12 years’ imprisonment. And counsel for the State accepted
that this was so. It is however clear from the judgment that the effective sentence imposed was 17
years’ imprisonment.

[4] At the trial, the following witnesses testified for the State:
Mr Sudesh Ramseroop, Sergeant Selvan Govender, Mr Luke Krishna,
Mr Zamani Mhlongo and Mr Dorasamy Pillay. In addition to testifying
himself, the appellant also called Mr Nkosinathi Zondo and
Mr Sithembiso Philip Ngcobo to testify on his behalf. Not all their
evidence is relevant for this appeal. The foundation upon which the
convictions rest is the evidence of Ramseroop, who was warned as an
accomplice in terms of s 204 of the Criminal Procedure Act 51 of 1977.

[5] Ramseroop was 32 years old at the time of these incidents. He had
lived in the Emona area of Tongaat all his life and conducted business as
a panel-beater from his home. He became acquainted with the appellant,
who had left the police service to start a business as a taxi operator. The
appellant often brought vehicles to him for panel-beating. He testified
that towards the end of January 1998 the appellant, accompanied by
Ngcobo, brought the Hilux in count 2 to him. The appellant asked him to
repair and spray-paint the vehicle. They agreed on a price of R500. Two
days later the appellant returned with a Mr D K Mhlongo, who he
introduced to Ramseroop as his uncle from Hambanathi. The appellant
informed him that Mhlongo wished to buy the vehicle. Two days later
they returned to inspect it and the day thereafter they came back to collect
the vehicle in return for payment of the agreed amount.

[6] On 5 February 1998 the appellant brought another vehicle to
Ramseroop’s home. This was the Corolla in count 3. On this occasion an
unknown male accompanied him. Ramseroop noticed that the vehicle’s
ignition switch had been damaged. The appellant removed the
registration-plates and placed them in the boot. He also asked Ramseroop
to spray-paint the vehicle. At the appellant’s request Ramseroop parked

the vehicle in his sunken lounge thereby concealing it. A few days later
the appellant and his companion returned. He appeared, Ramseroop said,
to be in a hurry. The appellant attached the registration-plates to the
Corolla and drove the vehicle away. He returned later, parked the vehicle
in the lounge and again removed the registration-plates. In the presence of
Ramseroop’s wife he also handed Ramseroop R300 in note
denominations of R20. The appellant removed a metal box from the
vehicle’s boot and handed it to Ramseroop for disposal. After the
appellant’s departure, Ramseroop inspected the contents of the box and
found that it contained paper clips and rubber bands. He decided to keep
the box and hid it in the ceiling of his house.

[7] On 19 February 1998, at about midday, Sergeant Govender, who
was stationed at the Tongaat Police Station arrived at Ramseroop’s home.
He was accompanied by five other police officers from the field unit.
They were acting on information concerning a stolen vehicle.
(Ramseroop’s evidence was that this occurred on 10 February, but he was
probably mistaken in this regard.) Ramseroop was outside his house at
the time. Govender testified that he told Ramseroop that he was
investigating the whereabouts of a stolen vehicle. In response Ramseroop
spontaneously began telling him how the appellant had brought the
vehicle to his home. Govender stopped him from completing his story
and requested Ramseroop to first show him the vehicle. Ramseroop
obliged and escorted him to his sunken lounge where the vehicle had
been parked. After inspecting the vehicle and establishing that it had been
stolen, Govender seized it, arrested Ramseroop and took him into
custody. The main substance and sequence of this interaction Ramseroop
confirmed in his evidence.

[8] Following Ramseroop’s interrogation at the police station he
disclosed information regarding the Hilux to the police. As a result of this
disclosure, Govender accompanied other members of the field unit and a
few detectives to Mhlongo’s home at Hambanathi. Ramseroop was
present. Mhlongo was not at home. Instead they found his son Zamani,
who directed them to another residence. There they found Mhlongo and
the Hilux which, according to the testimony of Dorasamy Pillay, the
complainant in count 2, had been taken from him at gun-point. Mhlongo
was arrested and the Hilux seized. The State was able only to prove a
case of theft against the appellant as there was no evidence linking him to
the actual robbery of the Hilux.

[9] On 21 February at 7 am, acting on further information from
Ramseroop, Govender again accompanied some officers and Ramseroop
to the latter’s residence. There, Ramseroop removed the hidden metal box
from the ceiling and handed it to them. This was the very box that had
been taken from the post office during the robbery. Ramseroop was
released later that day, after making a written statement to the police
concerning these events.

[10] To sum up, Ramseroop’s evidence implicated the appellant in the
thefts of the Hilux and Corolla. His evidence regarding the metal box
linked the appellant to the Maidstone post office robbery described
below. To the circumstances leading to the discovery of the Hilux and the
metal box, which assumed critical importance before us, I will return.

[11] The appellant denied involvement in any of the crimes. Regarding
the Hilux, the appellant testified that he had merely been helping
Mhlongo, who had since died, to facilitate a business deal with

Ramseroop for the repair of the vehicle. He asserted that Ramseroop had
falsely implicated him in the crimes because the police had tortured him.
[12] Mr Luke Krishna’s eye-witness testimony regarding the events at
the post office placed the appellant at the scene of the robbery. He had
been employed at the post office at the time of the robbery. He attended
an identification parade at the police station on 20 May 1998, three and a
half months after the incident, where he identified the appellant, from a
line-up of 11 persons, as one of two persons who had participated in the
robbery. He testified that the appellant entered the post office with one
other person who stood at the door. He himself was behind the counter.
The appellant was well-spoken and was wearing a blue cap, jacket and
pants. The appellant approached him and asked him for five stamps. He
then produced a firearm and demanded money, which had been delivered
to the post office for the payment of pensions. At this stage the appellant
was facing him. Krishna then went to the back of the post office to fetch
the money, which was in a metal box. He returned and handed the box
containing the money to the appellant. The appellant asked for more
money and Krishna returned with two other boxes, but these were empty.
The appellant then pointed his firearm at Krishna’s assistant Mr Yugan
Reddy, who was also behind the counter, and ordered him to hand over
the money that was in the drawer. Reddy complied by throwing the
bundled money at the appellant. The appellant and his accomplice then
left with the money. The incident lasted approximately five minutes.

[13] The appellant confirmed that Krishna had identified him at the
identification parade. But he denied that he had been one of the robbers.
He claimed that Krishna was able to identify him at the parade only
because he had seen him at the police station in the charge office on an
earlier occasion. The learned magistrate rejected this claim, with good

reason. The identification parade, however, had several unsatisfactory
features; to mention a few: the appellant was denied the presence of his
legal representative; Krishna’s evidence whether the other persons in the
parade were of similar build, height, age and appearance to the appellant
was unsatisfactory; there is no evidence that the persons on the parade
were similarly dressed and Krishna was not told that the suspect may not
be present. There was no evidence that Krishna had made a prior
description of the robbers, which bore any resemblance to the appellant.
The State, without explanation, failed to lead any other evidence
regarding the circumstances under which the identification parade was
held. The parade’s reliability was not tested and therefore had little
evidential weight.3 For as Van den Heever JA stated:4

‘[W]here such identification rests upon the testimony of a single witness and the
accused was identified at a parade which was admittedly conducted in a manner
which did not guarantee the standard of fairness observed in the recognised
procedure, but was calculated to prejudice the accused, such evidence, standing alone,
can have little weight.’

[14] The learned magistrate and the court below were alive to the
difficulty of relying only on Krishna’s identification of the appellant. But
they found that Ramseroop’s testimony that the appellant had given him
the metal box, which was proved to have been the very one taken during
the robbery, constituted sufficient corroboration to link the appellant
conclusively to the robbery.

[15] With respect to the theft of the Corolla (count 3), counsel for the
appellant urged us to find that Ramseroop’s evidence was insufficient to

3 S v Daba 1996 (1) SACR 243 (E) at 249d-e.
4 R v Masemang 1950 (2) SA 488 (A) at 493-494.

establish the appellant’s guilt. He advanced two reasons for his
submission: first that Ramseroop, as an accomplice, had an interest to
falsely implicate the appellant, and secondly, because the state had failed
to call Ramseroop’s wife, who was clearly a material witness regarding
the circumstances under which the appellant had brought the vehicle to
their home, to testify.

[16] The fact that Ramseroop’s wife did not testify does not mean that
Ramseroop’s evidence was inadequate to prove the case against the
appellant on this count. When Ramseroop, before his arrest,
spontaneously told Sergeant Govender that the appellant had brought the
vehicle to his home, neither he nor the appellant were suspects. He had no
reason to implicate the appellant at that stage. The appellant was well-
known to him and had also provided him with an income from the
vehicles which he had brought for repairs. The magistrate analysed the
evidence carefully before concluding that the appellant was guilty on this
count. I have no reason to reject her reasoning on this aspect. It follows
that the appellant was correctly convicted on this count.

[17] I return to the circumstances leading to the discovery of the Hilux
and of the metal box. It is common cause that after Ramseroop was taken
into custody on 19 February, the police at Tongaat assaulted him
severely. The assaults included torture through the use of electric shock
treatment. Ramseroop’s uncontested evidence was that he received a
‘terrible hiding’ on the evening after he had been taken into custody.
Thereafter assaults continued until the morning of the 21st when he took
the police to his home to show them where he had hidden the metal box.
Regrettably, the magistrate did not investigate the extent, frequency and
duration of his unlawful treatment. Ramseroop’s cursory cross-

examination on this aspect was aimed only at establishing his
unreliability as a witness, not whether the assaults and torture rendered
his testimony inadmissible.

[18] The learned magistrate and the court below found that the assault
and torture did not render Ramseroop’s testimony unreliable – a
conclusion I think was correct. However, neither the magistrate nor the
court below was asked to consider the admissibility his evidence even
though it is beyond dispute that the chain of events which resulted in the
discovery of the Hilux and of the metal box was precipitated by his
unlawful treatment.

[19] In this court the parties were requested to address us on the
admissibility of Ramseroop’s evidence. The appellant submitted that the
evidence relating to the discovery of the Hilux and the metal box must be
excluded because it was obtained in violation of Ramseroop’s right not to
be tortured. Counsel for the State conceded that the evidence revealed
that Ramseroop had been tortured but she made no submissions regarding
the admissibility of his evidence.

[20] It is necessary to record that Mr Zamani Mhlongo, who was called
as a witness for the State, and Mr Sithembiso Philip Ngcobo, who gave
evidence on behalf of the appellant, both testified that they had been
tortured and assaulted as a result of which they made false statements to
the police. Zamani was 16 at the time. His court testimony departed
materially from the statement he had made to the police. This resulted in
the court declaring him a hostile witness. Ngcobo testified that the police
applied electric shocks to his testicles. The magistrate found that their

evidence could not be relied on because of their close relationship with
the appellant.
[21] Ramseroop’s oral testimony four years after these events was,
though given under statutory compulsion, manifestly not given under
duress. In cross-examination he denied that he implicated the appellant
only because of the ‘terrible hiding’ the police had given him. The
question that faces us is whether his evidence relating to the discovery of
the Hilux and of the metal box was nevertheless ‘obtained’ within the
meaning of s 35(5) of the Constitution and must, for that reason, be
excluded. The section reads as follows:

‘Evidence obtained in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or otherwise
be detrimental to the administration of justice.’

[22] In the pre-constitutional era, applying the law of evidence as
applied by the English courts, the courts generally admitted all evidence,
irrespective of how obtained, if relevant.5 The only qualification was that
‘the judge always (had) a discretion to disallow evidence if the strict rules
of admissibility would operate unfairly against the accused’.6 And where
an accused was compelled to incriminate him or herself through a
confession or otherwise the evidence was excluded. However, real
evidence which was obtained by improper means was more readily
admitted (and also because its admission was governed by statute).7 The
reason was that such evidence usually bore the hallmark of objective
reality compared with narrative testimony that depends on the say-so of a

5 S v Pillay 2004 (2) SACR 419 (SCA) para 6 of the judgment by Scott JA.
6 This statement of Lord Goddard in Kuruma v R [1955] 1 All ER 236 at 239, was approved by Rumpff
CJ in S v Mushimba 1977 (2) SA 829 (A).
7 See s 218 of The Criminal Procedure Act 51 of 1997 and its predecessors, s 274 of The Criminal
Procedure and Evidence Act 31 of 1917 and s 245 of The Criminal Procedure Act 56 of 1955.

witness. Real evidence is an object which, upon proper identification,
becomes, of itself, evidence (such as a knife, firearm, document or
photograph – or the metal box in this case).8 Thus, where such evidence
was discovered as result of an involuntary admission by an accused, it
would be allowed because of the circumstantial guarantee of its reliability
and relevance to guilt – the principal purpose of a criminal trial.9 As a
rule, evidence relating to the ‘fruit of the poisonous tree’ was not
excluded.

[23] There was however some resistance to this line of reasoning
deriving from normative considerations. In S v Sheehama Grosskopf JA
stated that it was a basic principle of our law that an accused cannot be
coerced into making a self-incriminating statement. He thus held that
s 218(2) of The Criminal Procedure Act 51 of 1977 did not authorise
evidence of forced pointings out even though it arguably did so.10 And in
S v Khumalo11 Thirion J said that involuntary statements made by
accused persons are inadmissible against them, not only because they are
untrustworthy as evidence but ‘also, and perhaps mainly, because in a
civilized society it is vital that persons in custody or charged with
offences should not be subjected to ill-treatment or improper pressure in
order to extract confessions’.12 With the advent of the new constitutional
order looming Van Heerden JA, in S v January; Prokureur-Generaal,
Natal v Khumalo, confirmed this line of thinking when he observed that
there has ‘in this century . . . rightly been a marked shift in the

8 S v M 2002 (2) SACR 411 para 31.
9 R v Samhando 1943 AD 608; R v Duetsimi 1950 (3) SA 674 (A).
10 1991(2) SA 860 (A); Section 218(2) provides: ‘Evidence may be admitted at criminal proceedings
that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was
discovered in consequence of information given by such accused, notwithstanding that such pointing
out or information forms part of a confession or statement which by law is not admissible in evidence
against such accused at such proceedings.’
11 1992 (SACR) 411 (N).
12 Quoting Lord Hailsham in Wong Kam-ming v The Queen [1980] AC 247 (PC) at 261.

justification for excluding . . . involuntary confessions and admissions,
and it is now firmly established in English law that an important reason is
one of policy’.13 In making this observation he was able to depart from
the reasoning in earlier cases, referred to above, which had placed their
emphasis only on the relevance and reliability of the evidence. He thus
held that proof of an involuntary pointing out by an accused person is
inadmissible even if something relevant to the charge is discovered as a
result thereof.14

[24] Evidence of statements emanating from third parties, unless
confirmed through oral testimony, was excluded as hearsay. And when
those persons did testify, the question whether they had been ill-treated or
improperly induced to make statements was relevant only to the weight of
their evidence, not its admissibility. I am not aware of any case where
evidence of a third party’s statement was held inadmissible because it
was illegally obtained.

[25] I return to s 35(5) of the Constitution. In S v Tandwa15 Cameron JA
observed the clear and unmistakable departure from the pre-constitutional
approach to the exclusion of improperly obtained in these terms:

‘The notable feature of the Constitution’s specific exclusionary provision is that it
does not provide for automatic exclusion of unconstitutionally obtained evidence.
Evidence must be excluded only if it (a) renders the trial unfair; or (b) is otherwise
detrimental to the administration of justice. This entails that admitting impugned
evidence could damage the administration of justice in ways that would leave the
fairness of the trial intact: but where admitting the evidence renders the trial itself

13 1994 (2) SACR 801 (A) at 807g-h.
14 See generally D T Zeffertt, A P Paizes and A St Q Skeen The South African Law of Evidence (2003)
p 500-505.
15 [2007] SCA 34 (RSA) para 116.

unfair, the administration of justice is always damaged. Differently put, evidence must
be excluded in all cases where its admission is detrimental to the administration of
justice, including the sub-set of cases where it renders the trial unfair. The provision
plainly envisages cases where evidence should be excluded for broad public policy
reasons beyond fairness to the individual accused.’

[26] To those observations I would add: public policy, in this context, is
concerned not only to ensure that the guilty are held accountable; it is
also concerned with the propriety of the conduct of investigating and
prosecutorial agencies in securing evidence against criminal suspects. It
involves considering the nature of the violation and the impact that
evidence obtained as a result thereof will have, not only on a particular
case, but also on the integrity of the administration of justice in the long
term.16 Public policy therefore sets itself firmly against admitting
evidence obtained in deliberate or flagrant violation of the Constitution. If
on the other hand the conduct of the police is reasonable and justifiable,
the evidence is less likely to be excluded – even if obtained through an
infringement of the Constitution.

[27] A plain reading of s 35(5) suggests that it requires the exclusion of
evidence improperly obtained from any person, not only from an accused.
There is, I think, no reason of principle or policy not to interpret the
provision in this way. It follows that the evidence of a third party, such as
an accomplice, may also be excluded, where the circumstances of the
case warrant it. This is so even with real evidence. As far as I am aware,
this is the first case since the advent of our constitutional order where the
issue has pertinently arisen.

16 R v Collins [1987] 1 SCR 265 para 31.

[28] I turn to how the evidence of torture should be approached in the
light of the Constitution. On this matter the Constitution speaks
unequivocally. Section 12 states that:

‘(1)
Everyone has the right to freedom and security of the person, which includes
the right –
(a)
. . .
(b)
. . .
(c)
to be free from all forms of violence from either public or private sources;
(d)
not to be tortured in any way;
(e)
not to be treated or punished in a cruel, inhuman or degrading way.’

[29] There can be no doubt that the police violated all these rights in the
manner that they treated Ramseroop, and probably other witnesses, after
his arrest. On the face of it, the evidence obtained as a result of these
violations ought to be excluded because of its ‘stain’ on the
administration of justice.17 For present purposes it is necessary to deal
only with the electric shock treatment that Ramseroop was subjected to.

[30] The Convention Against Torture (CAT), which South Africa
ratified on 10 December 1998, defines torture18 to include:

‘. . . [A]ny act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession . . . when such pain and suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public official or any
other person acting in an official capacity . . ..’

17 S v Tandwa above para 120; S v Pillay 2004 (2) SACR 419 (SCA) paras 9 and 11 of the judgment of
Scott JA.
18 Article 1.

It is important to emphasise that the definition requires the act to be
performed for the purpose of obtaining ‘information or a confession’.
This is the mischief at which the CAT is aimed.

[31] The CAT prohibits torture in absolute terms and no derogation
from it is permissible, even in the event of a public emergency. It is thus a
peremptory norm of international law. Our Constitution follows suit and
extends the non-derogation principle to include cruel, inhuman and
degrading treatment.19 The European Convention on Human Rights does
likewise.20 The prohibition against torture is therefore one of our most
fundamental constitutional values. Having regard to this country’s
inauspicious pre-constitutional history, when the treatment of criminal
suspects and other detainees often involved the use of torture, this is
hardly surprising – for it is one of the most egregious of human rights
violations. And it is a crime that the CAT requires all member states to
investigate thoroughly and to ensure that perpetrators are severely
punished.21

[32] In regard to the admissibility of evidence obtained as result of
torture, Article 15 of the CAT cannot be clearer. It requires that:

‘Each State shall ensure that any statement which is established to have been made as
a result of torture shall not be invoked as evidence in any proceedings, except against
a person accused of torture as evidence that the statement was made.’

19 Section 37(5)(c).
20 Article 3 and Article 15.
21 Article 4 of the CAT provides:
‘1.
Each State Party shall ensure that all acts of torture are offences under its criminal law. The
same shall apply to an attempt to commit torture and to any act by any person which
constitutes complicity or participation in torture.
2.
Each Party shall make these offences punishable by appropriate penalties which take into
account their grave nature.’

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’.22 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’.23 The reason is because of its ‘barbarism, illegality and
inhumanity’.24 In People (at the suit of the A-G) v O’Brien,25 the Supreme
Court of Ireland held that ‘to countenance the use of evidence extracted
or discovered by gross personal violence would . . . involve the State in
moral defilement’. Lord Hoffman, in A v Secretary of State (No 2) had no
doubt that that the purpose of the exclusionary rule is to uphold the
integrity of the administration of justice.26

[33] I revert to the facts of this case. The Hilux and the metal box were
real evidence critical to the State’s case against the appellant on the
robbery counts. Ordinarily, as I have mentioned, such evidence would not
be excluded because it exists independently of any constitutional
violation. But these discoveries were made as result of the police having
tortured Ramseroop. There is no suggestion that the discoveries would
have been made in any event. If they had the outcome of this case might
have been different.

22 Although s 35(5) is concerned with the admissibility of evidence in criminal proceedings, the CAT’s
peremptory requirement that such evidence be excluded ‘in any proceedings’ is also applicable to our
law. The absolute prohibition against torture in s 12 of the Constitution, which is not confined to
criminal proceedings, also requires that the exclusionary rule be applied to ‘any proceedings’ in this
country.
23 A v Secretary of State for the Home Department (No.2) [2005] UKHL 71 para 51. This case involved
the admissibility, before a Special Immigration Appeals Commission, of torture evidence acquired
from a foreign intelligence agency without the complicity of British authorities.
24 Nicolas Grief ‘The Exclusion of Foreign Torture Evidence: A qualified Victory for the Rule of Law’
[2006] EHRLR Issue 2 at 206.
25 [1965] IR 142 at 150.
26 A v Secretary of State for the Home Department (No.2) [2005] UKHL 71 para 91.

[34] Ramseroop made his statement to the police immediately after the
metal box was discovered at his home following his torture. That his
subsequent testimony was given apparently voluntarily does not detract
from the fact that the information contained in that statement pertaining
to the Hilux and metal box was extracted through torture. It would have
been apparent to him when he testified that, having been warned in terms
of s 204 of the Act, any departure from his statement would have had
serious consequences for him. It is also apparent from his testimony that,
even four years after his torture, its fearsome and traumatic effects were
still with him. In my view, therefore, there is an inextricable link between
his torture and the nature of the evidence that was tendered in court. The
torture has stained the evidence irredeemably.

[35] It is important to point out this. Although the information regarding
the Corolla was probably also contained in Ramseroop’s statement, this
evidence was discovered independently – before any constitutional
violation.27 It was as Ramseroop testified, and Govender confirmed,
volunteered by the former. This evidence was therefore not obtained
improperly. And in argument before us there was no suggestion that it
was. This is so even though the statement containing the information
about the Corolla, in addition to information on the other counts, was
induced by torture. The Corolla evidence thus remained untainted.

[36] To admit Ramseroop’s testimony regarding the Hilux and metal
box would require us to shut our eyes to the manner in which the police
obtained this information from him. More seriously, it is tantamount to
involving the judicial process in ‘moral defilement’. This ‘would
compromise the integrity of the judicial process (and) dishonour the

27 Ramseroop’s statement is not part of the record.

administration of justice’.28 In the long term, the admission of torture-
induced evidence can only have a corrosive effect on the criminal justice
system. The public interest, in my view, demands its exclusion,
irrespective of whether such evidence has an impact on the fairness of the
trial.

[37] For all these reasons I consider Ramseroop’s evidence relating to
the Hilux and metal box to be inadmissible. Without this evidence the
remaining evidence that the State presented is insufficient to secure
convictions on count 2 (theft of the Hilux) and counts 4 and 5 (post office
robbery).

[38] What remains is only count 3 (theft of the Corolla). Turning to the
appropriate sentence: the appellant was sentenced to five years’
imprisonment. However, he spent 23 months in custody awaiting trial,
which must be taken into account in deciding on an appropriate sentence.
I consider four years on this count to be appropriate.

[39] What has happened in this case is most regrettable. The appellant,
who ought to have been convicted and appropriately punished for having
committed serious crimes, will escape the full consequences of his
criminal acts. 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 torturing Ramseroop and
probably also Zamani Mhlongo and Sithembiso Ngcobo, themselves
committed crimes of a most egregious kind. They have treated the law

28 Per Lord Hoffman in A v Secretary of State for the Home Department (No.2) 2005 [UKHL] 71 para
87.

with contempt and must be held to account for their actions. I will
accordingly request the registrar to ensure that this judgment reaches the
following persons:
•
The Minister for Safety and Security;
•
The National Commissioner of the South African Police
Service;
•
The Executive Director of the Independent Complaints
Directorate;
•
The Chairperson of the Human Rights Commission;
•
The National Director of Public Prosecutions.

[40] In the result the following order is made:

(i)
The convictions and sentences on counts 2, 4 and 5 are set aside;
(ii)
The conviction on count 3 is confirmed;
(iii) The sentence on count 3 is set aside and replaced with a sentence
of four years’ imprisonment.

__________________
A CACHALIA
JUDGE OF APPEAL

CONCUR:
CAMERON JA
MAYA JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
10 April 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

Mthembu v the State

The Supreme Court of Appeal (SCA) today, in the first case of this kind since
the advent of our constitutional democracy, ruled that evidence obtained
through the use of torture is inadmissible – even when the evidence was
reliable and necessary to secure the conviction of an accused facing serious
charges. It held that the Constitution prohibits torture absolutely and that the
use, by the police, of electric shock treatment for the purposes of obtaining
evidence fell within the prohibition. It ruled further the admission of such
evidence would compromise the integrity of the judicial process and bring the
administration of justice into disrepute. This is because torture was barbaric,
illegal and inhumane and was one of the most serious of human rights
violations.

The SCA has referred the matter, for further action, to:
• The Minister for Safety and Security;
• The National Commissioner of the South African Police Service;
• The Executive Director of the Independent Complaints Directorate;
• The National Director of Public Prosecutions;
• The Chairperson of the Human Rights Commission.

The accused, Bongani Mthembu, is a taxi operator and former police officer.
Among the charges he faced in the Verulam Regional Court were the theft of
two motor-vehicles and armed robbery of approximately R70 000 of pension
money from the Maidstone Post Office at Tongaat in 1998. The magistrate
sentenced Mthembu to 23 years’ imprisonment (eight years for the theft of the
two vehicles and 15 years for the robbery). The Durban High Court reduced the
sentence to 17 years’ imprisonment (five years for the two vehicles and 15
years for the robbery.)

The evidence showed that Mthembu brought both vehicles to Mr Sudesh
Ramseroop, a panel-beater from Tongaat, for repairs. Mthembu also handed
him an empty metal box, which he used to carry the money that had been taken

from the post office during the robbery. Ramseroop hid the empty box in the
ceiling of his home.

The evidence also showed that a post office employee identified Mthembu as
one of the robbers at an identification parade. The identification parade had,
however, not been properly conducted. This resulted in the SCA holding that
the failure to hold a parade with adequate safeguards made this evidence
unreliable.

The police discovered one of the stolen vehicles at Ramseroop’s home after he
admitted that Mthembu brought the vehicle to his home. This was before his
arrest. However, the police discovered the second vehicle and the metal box
only after beating and torturing Ramseroop at the Tongaat Police Station. The
SCA ruled that because Ramseroop had been tortured his evidence relating to
these discoveries had to be disregarded. It therefore set aside his convictions
for the robbery and the theft of the second motor vehicle.

The SCA, however, confirmed Mthembu’s conviction on the theft of the first
vehicle, but reduced his sentence on that count from five years’ imprisonment to
four years because he had spent 23 months in custody awaiting trial.

The SCA concluded that the police had not only failed in their duty to investigate
the case properly by conducting an irregular identification parade, but by
torturing Ramseroop and probably two other witnesses, had themselves
committed serious crimes. The consequence has been that Mthembu will
escape the full consequences of his criminal acts and the police must be held
accountable for theirs.