Du Toit v Ntshinghila and others [2016] 2 All SA 328 (SCA)

Criminal procedure – Prosecutorial disclosure – Appellant charged with possession of child pornography – Whether prosecution obliged to furnish appellant with copies of images said to constitute child pornography as part of pre-trial disclosure – Court finding countervailing interests of significance that warranted a departure from the normal method of disclosure by copies – Rights of children in images requiring protection.

In May 2010, members of the South African Police Services, armed with a search warrant, conducted a search of the home of the appellant. Various items including four mobile phones, compact discs, memory sticks and a laptop were seized. On 9 November 2010, the appellant was charged with the possession of child pornography in contravention of the Films and Publications Act 65 of 1996. Before the commencement of his trial, the appellant sought an order from the regional court that the prosecution be directed to furnish him with copies of the images said to constitute the offence charged. Although the prosecutor offered to put arrangements in place for him, his legal representatives and any expert for the defence to view the images at an office at either the local police station or the court, the appellant rejected that offer, contending that he was entitled, without more, to be provided with copies of the images which were alleged to constitute child pornography. The magistrate ruled that the arrangement proposed by the prosecution was sufficient and accordingly dismissed the application. An appeal to the High Court was also dismissed. The appellant and the Director of Public Prosecutions (“DPP”) sought and were granted leave to appeal to the present Court. However, the appellant did not prosecute his appeal and it lapsed. The DPP’s appeal only concerned the correctness of the High Court’s order reviewing and setting aside the magistrate’s order to the effect that the prosecutor did not have to furnish the appellant with copies of the images constituting the charge.

Held – An allegation that prosecutorial disclosure is inadequate is an assertion that an accused person’s right to make full answer and defence – a right afforded protection under section 35(3) of our Constitution – has been infringed. In considering the question of entitlement to disclosure, what is essentially required is a judicial assessment of the balance of risk not wholly dissimilar to the function which a judicial officer performs in weighing the balance of convenience in cases pertaining to interdicts pendente lite. A broad and flexible approach is envisaged against which to measure the opportunity of the defence in each particular case to present its case effectively to the court.

In this case, the prosecution argued that its alternative proposal for a private viewing at a mutually convenient time at an office in the police station or court satisfied the prosecutor’s disclosure obligations in a way that permitted the appellant to make full answer and defence, yet did not further compromise any of the privacy interests of the persons portrayed on the images. This was thus a case where it was necessary to determine whether there were countervailing interests of significance that warranted a departure from the normal method of disclosure by copies. The Court had regard to the constitutional protection given to children in all matters concerning them in terms of section 28(2) of the Constitution and in terms of numerous treaties to which South Africa is party such as article 3(1) of the United Nations Convention on the Rights of the Child, 1989 and sections 10, 14and 15 of the Children’s Act 38 of 2005. It found that there existed in this case the reasonable privacy interests of the children who were depicted in the images. There was also a significant public interest in ensuring that no duplication or distribution occurred in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what was reasonably necessary to give effect to the appellant’s constitutional right.

The Court was satisfied that on the approach of the DPP, the desired result and necessary balance had been achieved in this case. The appeal was thus upheld and the order of the High Court was set aside and replaced with an order dismissing the appellant’s application.


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