S v HUMA AND ANOTHER*1996 (1) SA 232 (W) PDF

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S v HUMA AND ANOTHER* 1996 (1) SA 232 (W) 1996 (1) SA pCitation 1996 (1) SA 232 (W)Case No 234/Court Witwatersrand Local Division AJudge Claassen JHeard May 4, 1995Judgment May 4, 1995Counsel G Nel for the State. D B Tshabalala for accused No 1 at the request of the Court.Annotations Link to Case An...

Description

S v HUMA AND ANOTHER* 1996 (1) SA 232 (W) 1996 (1) SA p232

Citation

1996 (1) SA 232 (W)

Case No

234/94

Court

Witwatersrand Local Division A

Judge

Claassen J

Heard

May 4, 1995

Judgment

May 4, 1995

Counsel

G Nel for the D B Tshabalala for accused No 1 at the request of the Court.

Annotations

Link to Case Annotations

State.

Flynote : Sleutelwoorde Criminal procedure - Evidence - Ascertainment of bodily features of accused - Taking of fingerprints of B accused in terms of ss 37 and 225 of Criminal Procedure Act 51 of 1977 - Such not constituting an impairment of C accused's right to dignity in terms of ss 10 and 11 of Constitution of the Republic of South Africa Act 200 of 1993 nor an infringement of his right to remain silent in terms of s 25(3)(c) and (d).

Headnote : Kopnota During the course of a criminal trial, the State indicated that it wished D to take the fingerprints of accused No 1 so as to enable its expert witness to compare them with fingerprints found on a vehicle. Accused No 1, through his counsel, refused to submit himself for this purpose, claiming that the taking of fingerprints impaired his right to dignity as provided for by ss 10 and 11 in chap 3 of the Constitution of the Republic of South Africa Act 200 of 1993 and infringed his right to remain silent in s 25(3)(c) and (d) of the Constitution. Held that the taking of fingerprints was not inhuman nor degrading: the E practice was accepted worldwide as a proper form of individual identification; the taking of fingerprints per se in private could not lower a person's self-esteem or bring him into dishonour or contempt; it did not constitute an intrusion into a person's physical integrity; if taken in terms of s 37 of the Criminal Procedure Act 51 of 1977, they would be destroyed if the person was found not guilty; and the taking of fingerprints could potentially be a helpful procedure to the benefit of an F accused in proving his innocence. (At 236F/G-237D, paraphrased.) Held accordingly, that the taking of fingerprints did not amount to an infringement of the accused's dignity, but, even if it did, s 33(1) of the Constitution allowed such infringement as a permissible limitation as it was a reasonable and necessary limitation for the administration of justice. (At 237D-F, paraphrased.) Held, further, that the privilege against self-incrimination did not apply to procedures relating to the ascertainment of bodily features such as G those involved in identification

parades, the taking of finger- and footprints, blood samples and the showing of bodily scars: in that process there would be no communicative act by the accused, either orally or in writing. (At 237J-238A/B and 239H/I.) Held, accordingly, that the taking of accused No 1's fingerprints was not in conflict with his right to remain silent in terms of s 25(3)(c) or (d) of the Constitution. (At 240B.) Held, accordingly, that accused No 1 should be ordered to submit himself for the taking of finger- and palmprints. (At 240C.) H The following decided cases were cited in the judgment of the Court: Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76 (NmS) Denmark et al v Greece (European Commission on Human Rights 3321-3/67; 3344/67 YB 12bis Ex parte Minister of Justice: In re R v Matemba 1941 AD 75 I Nkosi v Barlow NO en Andere 1984 (3) SA 148 (T) R v Hellberg 1933 NPD 507 S v Binta 1993 (2) SACR 553 (C) S v Mkize 1962 (2) SA 457 (N) Schmerber v State of California 384 US 757 (1966). 1996 (1) SA p233

CLAASSEN J Case Information Application during the course of a criminal trial for an order directing an accused to submit himself for the taking of A fingerprints. The facts appear from the reasons for judgment. G Nel for the State. D B Tshabalala for accused No 1 at the request of the Court. B

Judgment Claassen J: In this matter accused No 1 is charged with several counts of murder, attempted murder and contraventions of the Arms and Ammunition Act 75 of 1969. He is represented by Mr Tshabalala. The prosecutor is Mr Nel. C The State has not yet finished its case. The evidence thus far tendered by the State reveals that on 30 May 1994 a robbery took place in Baker Street, Rosebank, in front of the Trust Bank building. It appears from the oral evidence, as well as photographic evidence, that a white light delivery van was used by the robbers in the execution of the robbery. I am told by Mr Nel that the State intends to produce evidence of D fingerprints found on the bakkie referred to above. The State now wishes to take the fingerprints of accused No 1 so as to enable the State expert witnesses to prepare a comparative chart of the accused's fingerprints and the fingerprints found on the bakkie. With this view in mind accused No 1 was requested to submit himself for purposes of taking fingerprints. Through his legal counsel, Mr Tshabalala, this request by the State was E refused. As a result of this refusal the State has now launched an application before me for an order directing accused No 1 to submit himself for purposes of taking his finger- and palmprints so as to enable the State to prepare this comparative chart. The basis of the State's application for this relief is to be found in s 37, as read with s 225 of the Criminal F Procedure Act 51 of 1977. The relevant portions of s 37 are as follows: '37(1) Any police official may (a) take the fingerprints, palmprints or footprints, or may cause any such prints to be taken -

(i)

of any person arrested upon any charge ...

G

(b) make a person referred to in para (a)(i) or (ii) available or cause such person to be made available for identification in such condition, position or apparel as the police official may determine; (c) take such steps as he may deem necessary in order to ascertain whether the body of any person referred to in para (a)(i) or (ii) has H any mark, characteristic or distinguishing feature or shows any condition or appearance ... (d) take a photograph or may cause a photograph to be taken of a person referred to in para (a)(i) or (ii). (2) . . . I (3) Any court before which criminal proceedings are pending may -

(a) in any case in which a police official is not empowered under ss (1) to take fingerprints, palmprints or footprints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such proceedings or that the steps, including the taking of a blood J sample, be taken which such court may deem necessary in 1996 (1) SA p234 A

CLAASSEN J order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance. (b) . . . (4) . . . (5) Fingerprints, palmprints or footprints, or a photograph, and the B record of steps taken under this section, shall be destroyed if the person concerned is found not guilty at his trial or if his conviction is set aside by a superior Court. . . .'

It would therefore appear from ss (3) that a court is authorised, while proceedings are pending, to order a police official to take fingerprints from the accused, where such police official is not otherwise empowered C under ss (1) to take such fingerprints. In my view ss (1) has a wider reach than ss (3) and would also allow a police official to take fingerprints while a criminal trial is pending. Subsection (1) covers the exigency that fingerprints may be taken of any person arrested upon any charge which proceeds to trial. Subsection (3) is intended to cover only those limited instances where an D accused was not arrested before proceeding to trial (see Nkosi v Barlow NO en Andere 1984 (3) SA 148 (T) at 155B). I need not, however, make any definitive finding on the analysis of s 37 because that section has to be read in the light of s 225 of the Criminal Procedure Act. This section reads as follows: E '225(1) Whenever it is relevant at criminal proceedings to ascertain whether any fingerprint, palmprint or footprint of an accused at such proceedings corresponds to any other fingerprint, palmprint or footprint, or whether the body of such an accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, evidence of the fingerprints, palmprints or footprints of the accused, or that the body of the accused has or had any mark, characteristic or F distinguishing feature or shows or showed any condition or appearance, including evidence of the result of any blood test of the accused, shall be admissible at such proceedings. (2) Such evidence shall not be inadmissible by reason only thereof that the fingerprint, palmprint or footprint in question was not taken or that the mark, characteristic, feature, condition or appearance in question was G not ascertained in accordance with the provisions of s 37, or that it was taken or ascertained against the wish or the will of the accused concerned.'

It would appear to me that s 225 in plain and simple language provides for the very situation relied upon by the State in its application for an order directing that the fingerprints and palmprints of accused No 1 H should be taken. It would also appear that, even if s 37 does not apply, s 225 will cover the present situation. Mr Tshabalala has submitted that his client, accused No 1, is entitled to object to his fingerprints being taken on two grounds. The first is that the taking of fingerprints impairs the dignity of a person and is therefore a contravention of the constitutional right to dignity contained I in ss 10 and 11 of the Constitution of the Republic of South Africa Act 200 of 1993. The second ground of objection is based on the constitutional right to remain silent as contained in s 25(3)(c) and (d) of the interim Constitution. In colloquial terms this is called 'the privilege against self-incrimination'. J Mr Tshabalala did not argue that either s 37 or s 225 conflicts with the 1996 (1) SA p235

CLAASSEN J A Constitution nor did he seek any relief to refer the constitutionality of these sections to the Constitutional Court as is provided in s 102 of the Constitution. Dignity B I will now deal with the first ground of his objection, ie the question of dignity. Let me say immediately that this ground of objection was not based on an allegation that the taking of fingerprints impairs the constitutional right to privacy. The question which has to be decided is whether or not the taking of a person's fingerprints conflicts with the entrenched protection of a C person's dignity referred to in ss 10 and 11 of the Constitution. Sections 10 and and 11 read as follows: '10. Every person shall have the right to respect for and protection of his or her dignity. 11(1) . . .

(2) No person shall be subject to torture of any kind, whether physical, D mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.'

For the purposes of this judgment I will accept that ss 10 and 11(2) jointly entrench a person's right to his dignity and that such dignity may not be impaired by the State through any conduct which can be described as E cruel, inhuman or degrading treatment. Let me say at the outset that I do not regard the taking of a person's fingerprints as a form of punishment. The taking of fingerprints cannot therefore be dealt with in the same way as inhuman, cruel or degrading punishment have been dealt with by the Courts in the past. Taking fingerprints cannot fall into the same category as, for instance, corporal punishment or incarceration or other F kinds of punishment. The relevant inquiry for purposes of this judgment is therefore whether or not fingerprint-taking constitutes cruel, inhuman or degrading treatment impairing a person's dignity in contravention of ss 10 and 11(2) of the Constitution. Mr Tshabalala did not argue, nor could he justifiably have argued, that the taking of fingerprints constitutes G cruel or inhuman treatment. Cruel treatment has been defined by the Collins English Dictionary as 'causing or inflicting pain without pity'. See also Hellberg v R 1933 NPD 507 at 510. Similarly, in the case of Denmark et al v Greece (3321-3/67; 3344/67 YB 12 bis) as cited in Cachalia et al Fundamental Rights in the H New Constitution at 38 and 39, inhuman treatment has been defined as constituting treatment which deliberately causes severe suffering, mental or physical, which in a particular situation is unjustifiable. By no stretch of imagination can the taking of fingerprints fall into this category. What is to be regarded as inhuman and degrading treatment was also the subject of a decision by the Namibian Supreme Court in the case I of Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76 (NmS) at 86. Article 82(b) of the Namibian Constitution has a similar provision, which reads as follows: 'No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.' J

Mahomed AJA, as he then was, held that this provision seeks to

1996 (1) SA p236

CLAASSEN J A protect citizens from seven different conditions, namely: torture; cruel treatment; cruel punishment; inhuman treatment ; inhuman punishment; degrading treatment ; and degrading punishment. For the purposes of this judgment the fourth and sixth of the aforesaid conditions, namely inhuman or degrading treatment, are of relevance. At 86GH the learned Judge held the following: B 'What is the meaning of the words "inhuman" and "degrading"? According to The Oxford English Dictionary "inhuman" means "destitute of natural kindness or pity; brutal, unfeeling, cruel; savage, barbarous". "To degrade" means "to lower in estimation, to bring into dishonour or contempt; to lower in character or quality; to debase". . . . The C question as to whether a particular form of punishment authorised by the law can properly be said to be inhuman or degrading involves the exercise of a value judgment by the Court.'

The learned Judge then goes on at 87D-E to decide that the relevant considerations for such a value judgment in deciding whether or not corporal punishment constitutes an inhuman or degrading punishment are, D inter alia, the following: '1. Every human being has an inviolable dignity. A physical assault on him sanctified by the power and the authority of the State violates that dignity. His status as a human being is invaded. 2. The manner in which the corporal punishment is administered is attended by, and intended to be attended by, acute pain and physical E suffering "which strips the recipient of all dignity and self-respect". It "is contrary to the traditional humanity practised by almost the whole of the civilised world, being incompatible with the evolving standards of decency".'

It will immediately be noticed that the taking of fingerprints can obviously never fall within the category of inhuman or degrading treatment F as defined in the aforesaid judgment, where Mahomed AJA was dealing with the question of whipping. However, I have to make a similar value judgment to decide whether or not the taking of fingerprints constitutes such inhuman or degrading treatment. In my judgment it does not constitute inhuman or degrading treatment for the following reasons: 1. The taking of fingerprints is accepted worldwide as a proper form of G individual identification. It is throughout the world used for the issuing of identity documents and passports. The same holds true for South Africa. The act of making one's fingerprints available for purposes of issuing an identity document or a passport can never be regarded as inhuman or degrading treatment. H 2. The taking of fingerprints per se in private and not in Court or a public place (see S v Mkize 1962 (2) SA 457 (N) at 460) can in no way lower a person's self-esteem or bring him into dishonour or contempt, or lower

his character or debase him. The definition of 'inhuman' or 'degrading' as referred to above in the judgment of Mahomed AJA therefore cannot, in my view, apply to the mere act of taking one's I fingerprints. 3. The process of taking one's fingerprints does not, in my view, constitute an intrusion into a person's physical integrity. No physical pain of any kind accompanies this process. By comparison, the taking of a blood sample constitutes more of an intrusion into a J person's physical integrity than the mere taking of one's 1996 (1) SA p237 A

CLAASSEN J fingerprints. When a blood sample is taken the skin is ruptured and it is accompanied by a small element of pain. Pain and violation of a person's physical integrity are also associated with corporal punishment and other forms of punishment. By comparison, in my judgment, the taking of fingerprints is on par with the mere taking of a photograph, which does not, in my view, violate the physical B integrity of a person. 4. When fingerprints are taken pursuant to the provisions of s 37 it has to be borne in mind that those fingerprints will be destroyed in the event of the accused being found not guilty. There is therefore an additional safeguard built into the application of the provisions of C this section. 5. The taking of fingerprints can potentially be a helpful procedure to the benefit of the accused in proving his innocence. If, after the fingerprints have been taken, a comparative chart is made and it is found that the necessary requirements for purposes of comparison are lacking, then the whole process of taking fingerprints would actually D have redounded to the accused's benefit.

For the above reasons I have come to the conclusion that the value judgment which I have to make is such that the taking of fingerprints does not constitute a contravention of a person's dignity, protected and enshrined in ss 10 and 11(2) of the Constitution. E However, even if I am wrong in this finding, I am of the view that s 33(1) allows a limitation to a person's constitutional right to dignity which is reasonable and necessary in a democratic society in respect of fingerprint-taking for purposes of compiling a comparative chart in criminal proceedings. This limitation is reasonable and necessary to F enable the administration of justice to run its proper course. In my view, the fact that fingerprints are to be taken for purposes of a criminal investigation is a reasonable and necessary step in a democratic society to ensure that justice is done and is reasonable and necessary to balance the interests of justice against the interest of individual dignity. I therefore find that s 33(1) does limit the right to dignity for purposes G of the taking of fingerprints as contemplated in s 37 and/or s 225 of the Criminal Procedure Act. Self-incrimination I now come to the second objection raised by Mr Tshabalala. In this H regard Mr Tshabalala relied on the provisions of s 25(3)(c) and (d), which read as follows: '25. . . . (3) Every accused person shall have the right to a fair trial, which shall include -

... (c) to be presumed innocent and to remain silent during plea proceedings of trial and not to testify during trial; (d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself.' I

In my view, this objection is entirely without substance. The privilege incrimination does not apply to procedures relating to the

J

against self-

1996 (1) SA p238

CLAASSEN J A ascertainment of bodily features such as the procedures involved in identification parades, the taking of finger- and footprints, blood samples and the showing of bodily scars. These procedures relate to the furnishing of what has been termed 'real' evidence, as opposed to the furnishing of oral or testimonial evidence by the accused. (See S v B Binta 19...