Criminal law and procedure

Use of illegally obtained evidence and failure by the State to appeal

In Pillay and Others v S [2007] 1 SA l l (SCA) a number of accused were found guilty of robbery with aggravating circumstances after a robbery committed at the premises of a company which was acting as an intermediary between the South African Reserve Bank and various commercial banks. Of interest for present purposes are the following three principles which were reiterated by Mpati DP and Motata AJA (Scott JA dissenting):

• Evidence which was obtained by illegally monitoring a person’s telephone conversation was an invasion of that person’s privacy. As such it ought to be excluded on the ground that its inclusion would bring the administration of justice into disrepute;

• The powers of a court of appeal were derived from s 22 of the Supreme Court Act 59 of 1959. In terms of the section the power to confirm, amend or set aside a judgment or order could be exercised only in respect of a judgment or order which was the subject of an appeal before the court and not otherwise. Therefore, a court of appeal would not alter a verdict in favour of the State on a matter not raised on appeal; and

• Section 322(1) of the Criminal Procedure Act 51 of 1977 dealt with the powers which a court of appeal could exercise in the event of an appeal against a conviction or where a question of law had been reserved for its consideration. The section did not give a court of appeal the power to alter an acquittal order or substitute it with a finding of guilt.

(Source: www.derebus.org.za)

Law of Evidence

Evidence regarding a Police Trap

The court in Govender v S [2006] 4 All SA 449 (N) formulated an important caveat regarding evidence of a police trap. The facts were that Govender was sentenced to eight years’ imprisonment after being convicted of dealing in drugs. Govender was arrested after the police had set a trap for him. Govender appealed against the sentence. He contended that although he was present at the illegal drug transaction, he had nothing to do with the transaction. Before hearing the appeal the court requested submissions on the question of whether the provisions of s 252(A) of the Criminal Procedure Act 51 of 1977 (the Act), superseded or otherwise modified the application of the common-law cautionary rule in relation to the evidence of a trap and if so, what yardstick, if any, applied to the evaluation of evidence surrounding a trap. (Read more...)

Weight of a report in withholding pension fund benefits

In Msunduzi Municipality v Natal Joint Pension/Provident Fund and others 2007 (1) SA 142 (N) Pillay J was asked to decide on two matters that are of relevance to the law of evidence. A detailed discussion of the facts is not necessary for purposes of this discussion.

The applicant sought to prevent, by way of an interdict, the paying out of certain pension fund benefits to four of the respondents. These four respondents (the employees) – who were former employees of the applicant – allegedly misappropriated the applicant’s money. Section 37D of the Pension Funds Act 24 of 1956 entitled the applicant to recover the loss it had suffered through the conduct of the employees through the payment of sums deducted from the pension benefits that had accrued to the employees. (Read more...)