Business Day (Johannesburg)

11 April 2008

South Africa: Landmark Court Ruling On Torture

Johannesburg — IN THE first case of its kind since the advent of the constitution, the Supreme Court of Appeal ruled yesterday that evidence obtained through the use of torture was inadmissible, even when the evidence was reliable and necessary to secure the conviction of an accused facing serious charges.

It set aside three convictions and the sentences of Bongani Mthembu. The evidence secured to convict Mthembu was obtained from an accomplice, Sudesh Ramseroop, who was tortured.

"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," Judge Azhar Cachalia said in his judgment.

"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 ... themselves committed crimes of a most egregious kind."

Mthembu, a taxi operator and former policeman, was sentenced by the Verulam Regional Court to 23 years for stealing two vehicles and for an armed robbery of a post office 10 years ago.

The evidence showed that Mthembu brought both vehicles to Ramseroop, a panel-beater, for repairs. Mthembu also gave Ramseroop an empty metal box, which he had 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.

Police discovered one of the stolen vehicles at Ramseroop's home after he admitted that Mthembu brought the vehicle to his home.

The police discovered the second vehicle -- a Toyota Hilux bakkie -- and the metal box only after beating and torturing Ramseroop at the Tongaat police station.

Mthembu appealed to the Durban High Court against his convictions and sentence. The court confirmed the convictions but reduced the sentence to 17 years' imprisonment.

Cachalia said though the magistrate and the judge had found that the assault and torture did not render Ramseroop's testimony unreliable, neither of them was asked to consider the admissibility of his evidence, even though it was beyond dispute that the chain of events that resulted in the discovery of the bakkie and the metal box was precipitated by his unlawful treatment.

"In the pre-constitutional era the courts generally admitted all evidence, irrespective of how it was obtained, if it was relevant," Cachalia said.

Cachalia said a plain reading of section 35(5) of the constitution suggested that it required the exclusion of evidence improperly obtained from any person, not only from an accused.

Cachalia said the constitution stated that everyone had a right to be free from all forms of violence from either public or private sources and not to be tortured in any way.

"There can be no doubt that the police violated all these rights in the manner that they treated Ramseroop."

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