S v BAKANE AND OTHERS 2017 (1) SACR 576 (GP)


Evidence — Confession — Admissibility — Undue influence — Slapping and rough handling by police amounting to assault but not torture — No automatic exclusion — Trial judge aware of accused’s constitutional rights and evidence examined in detail — Confessions and pointings-out properly admitted.


The four appellants were convicted in the High Court of murder and robbery with aggravating circumstances, and were sentenced to various terms of imprisonment. Their convictions were based on incriminating written warning statements and pointing-out reports which were ruled admissible as confessions or admissions after a trial-within-a-trial was held to determine such. They contended that they had been assaulted and threatened by the police to sign said statements and make the pointings-out and, since these were violations of their constitutional rights, the material produced ought to have been excluded. The main difficulty in the case, in the opinion of the majority of the court, was the remark by the court a quo, regarding the admissibility of this evidence, that: ‘We [the judge and single assessor] accept that some slapping and rough handling took place. The slapping could be classified as assault but not torture. Then exercise my discretion to accept the somewhat tainted evidence insofar as the assaults were concerned in the interests of justice and for fear that the administration of justice would otherwise be brought into disrepute.’

The majority of the court (per Prellerand Khumaloin separate judgments) held that the statement had to be seen in the context of the fact that a fifth accused was discharged because all of his statements were disallowed since his constitutional rights had not been adequately explained and respected by the police. This discharge took place despite a later remark by the court that the fifth accused was clearly also guilty of the same crimes as his co-accused. In the circumstances, it was clear that the court was well aware of the constitutional rights of all five accused and the discretionary nature of the exclusionary rule contained in s 35(5) of the Constitution (see [4] and [21]). The court had furthermore considered every detail of the relevant evidence very carefully and had come to the conclusion that it should be admitted. There was nothing wrong with the conviction and it had to stand (see [6]). The court also dismissed the appeal against sentence.

The minority (per Manamela AJ) found that although not every degree of influence would afford sufficient grounds for exclusion, once influence was considered to be undue the relevant threshold was reached for exclusion.That was not advocating for automatic exclusion of unconstitutionally obtained evidence. By admitting the confessions found to have been made by the appellants, the trial itself was rendered unfair and the administration of justice was brought into disrepute. The trial court ought to have excluded the statement based on its findings of the slapping and gloving. Besides, our courts had applied international conventions on confessions which held that torture could also be psychological, let alone slapping or gloving (see [67]). In the opinion of the judge, in these circumstances, the appeal against conviction ought to have been upheld.


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