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In the matter between:

FUZILE HOWARD TSEWU . . . FIRST APPELLANT
NONTEMBISO ESLINA NDABENI SECOND APPELLANT
BUKIWE GETRUDE SOFUTE THIRD APPELLANT

AND

PRESIDENT OF THE REGIONAL COURT
FOR THE REGIONAL DIVISION OF THE
EASTERN CAPE FIRST RESPONDENT

ATTORNEY GENERAL, EASTERN CAPE
DIVISION SECOND RESPONDENT

SENIOR STATE PROSECUTOR THIRD RESPONDENT

CORAM : VILJOEN, HEFER , VIVIER, JJA, BOSHOFF et

STEYN, AJJA
HEARD : 10 MARCH 1987
DELIVERED : 25 MAY 1987

JUDGMENT

2. While the appellants were being detained

in terms of section 29 of the Internal Security Act
No 74 of 1982 (hereinafter referred to as the Internal
Security Act) they made statements which were reduced
to writing before a magistrate. In the court below
they applied, for reasons which will be referred to
presently, for a mandamus directing the first respondent

(the regional magistrate) to order the third respondent

(the senior state prosecutor of the regional court, Port
Elizabeth), to furnish the appellants with copies of the
aforesaid statements. The application was dismissed but

the court a quo, Kannemeyer & Kroon JJ, granted the
appellants leave to appeal to this Court.

The reasons why they required copies of these stat

ments were the following: Subsequent to the making of the state-

ments/
3. ments referred to criminal proceedings were insti-

tuted against the appellants. They were charged
on count 1 with having contravened section 54(1)
read with certain other sections of the Internal
Security Act; on count 2 with a contravention of
s 32(1) read with certain other sections of the
Arms and Ammunition Act No 75 of 1969; on count
3 of being members of an unlawful organisation in
contravention of s 13(l)(a)(iv) read with certain
other sections of the Internal Security Act and
on count 4 of a contravention of s 28(1) read
with certain other sections of the Expiosives Act
No 26 of 1956.

They aver in their various founding

affidavits/
4. affidavits that they assumed, on good grounds

which they set out but which need not be detailed
here, that the statements made by them would be
used against them by the State in their criminal
trial.They had requested the State to make the
statements available to them but their requests
were refused. They said that without their state-
ments they could not be of any assistance in the
application of the provisions of sections 115, 122 A
and 220 of the Criminal Procedure Act No 51 of 1977
to any court before which they might be required to
plead and they would be seriously handicapped and
prejudiced in the preparation of their defence and

in the trial. Particulars of the prejudice which

they/

5. they would suffer were not supplied.

The State's refusal to make the state-

ments available to the appellants is based on
s 29(8) of the Internal Security Act which pro-
vides:

"The provisions of section 335 of the Criminal Procedure Act, 1977 (Act No 51 of 1977) shall not apply in respect of any statement by any person detained in terms of the provisions of this section, made during such detention: Provided that if in the course of any subsequent criminal proceedings re-lating to the matter in connection with which the said person mace chat statement, any part of such statement is put to him by the prosecutor, any person in possession of the statement shall at the request of such first-mentioned person furnish him with a copy of the said statement."

Section 335 of the Criminal Procedure

Act/
6. Act No 51 of 1977 (hereinafter referred to as the

Criminal Procedure Act) which is referred to in

s 29(8) of the Act quoted above provides as follows:

"Whenever a person has in relation to any matter made to a peace officer a statement in writing or a statement which was reduced to writing, and criminal procceedings are thereafter instituted against such person in connection with that matter, the per-son in possession of such statement shall furnish the person who made the statement, at his request, with a copy of such statement."

On behalf of the appellants it is sub-

mitted by counsel that a fair trial is a fundamen-
tal right and one that is accorded to every accused
person by che high judicial traditions of South
Africa. They cite S v Lwane 1966(2) SA 433(A) and

refer to what Ogilvie Thompson JA said at 444 D - E

concerning/
7. concerning the duty of a judicial officer to warn

a witness in crimihal proceedings that he is not
obliged to give evidence which might have a tendency
to expose him to a criminal charge. The learned
Judge said:

"According to the high judicial traditions
of this country it is not in the interests
of society that an accused should be con-
victed unless he has had a fair trial
in accordance with the accepted tenets of
adjudication."

Counsel further submit that,apart from

statute, and in the absence of section 335 of the
Criminal Procedure Act,a person awaiting crial
would ordinarily be entitled on request to a copy

of a statement relating to the subject matter of

his trial made by him co a magistrate, or at least

the/.......

8. the court has a discretion to order chat he be

furnished with such copy. This, contend counsel,

is in the interest of fairness and justice and

they cite S v Mpetha and Others (1) 1982(2) SA

253(C) at 257A where Williamson J said:

"To my mind it is only fair and just that a person who makes a statement to the police, and who is thereafter prosecuted in connection with some matter referred to in that statement, should be entitled to see that state-ment when preparing his defence."

This principle, submit counsel, is recog-

nised in the systems of most western countries and they

refer co the Canadian case of R v Savion and Mizrahi

1980(52) CCC, (2nd) 276 cited in Re Kristman and the
Queen 12 DLR (4th) 283, 301/2 and to Cases and Anno-

tations 10 ALR (4th) 1092 (USA). This annotation

counsel/
9. counsel contend, speaks of a changed attitude

in the area of criminal discovery so that the
court has a discretion,which it will exercise,
in the interests of justice and for good cause
shown or when necessary for the due administra-
tion of justice, in favour of pre-trial discovery
of documents in the possession of the State. The
onus is, however, acknowledged counsel, on the
accused to show that the document is nacessary for
the preparation of his defence and in the interests
of a fair trial and is not simply part of a "fishing
expedition". Another decision t o which we were
referred was the Australian case Regina v Chin 59
ALR 1. Chin and another gentleman by the name of

Choo/

10. Choo were tried before a judge and jury. After the

defence case had been closed, the prosecution was

allowed to introduce evidence, not in rebuttal but

in supplying an element which should have been proved

by the prosecution in presenting its case in the

first instance. On appeal to it by the Crown the

High Court of Australia upheld a decision of the

Court of Criminal Appeal which had found in the
appellant's (Chin's) favour and had ordered a new

trial on the ground that there had been a miscarriage

óf justice in the original trial. Apparently,

according to the law of procedure applicable in

Australia, or at least in New South Wales where Chin

and Choo were tried, a criminal trial was normally

preceded/....

11.
preceded by committal proceedings. What that proce-
dure entailed is uncertain but I deduce that such pro-
ceedings serve to apprise the defence of the case
the prosecution would be presenting tc the trial court.
In the course of his judgment Dawson J said:

"As with Chin's form, there is nothing to warrant the conclusion that the prosecution could not have proved and tendered in evi-dence Choo's visa application form in the course of the presentation of its case. Such indications as there are suggest that it could have done so and, if thac were so, the proper course would have been for the prosecution to have so tendered it, having previously given notica of its intention to adduce additional evidence. Such notice was necessary becauss of che absence of any reference to the document in the committal proceedings. The effect of permitting the prosecution to tender the document by way of reply was to allow

it to/....

12.

it to split its case in circumstances
which, on the material before us, were
unexceptionai and did not warrant any
departure from the rule that the prose-
cution must offer all its proofs during
the progress of the prosecution case."

In the joint judgment of Gibbs CJ and

Wilson J it was said:

"The evidence that Choo had used the respondent's telephone number in his application form was so material that fairness dictated that the prosecution should have given notice to the respon-dent of its intention to adduce the application forms in evidence. Had such notice been given, it would have been proper for the judge to have allowed the Crown Prcsecutor to cross-examine the respondent rsgarding this matter, notwithstanding that the matters to which the cross-examination was directed could have been proved in chief if evidence was available. How-ever, if such notice had been given,

it is/....

13.

it is possible that neither the respondent

nor Choo wouid have entered the witness box. Moreover, the evidence was elicited, not by the cross-examination of the respondent, but, after his case had closed,in the cross-examination of Choo. Kad the respon-dent been asked whether Choo had used his telephone number, and if so why he had done so, he would have had an,opportunity to furnish his explanation during the or-dinary course of cross-examination and re-examination. As it was, he had to return to the witness box to give his explanation, thus fixing the jury's attention on what was undoubtedly damaging evidence, and giving it an emphasis that it would not have had if the trial had taken its regu-lar course."

Relying on these cases counsel submit that

the court a quo had a discretion, to be exercised
in the interest of fairness, to order production
of the said statements, but, owing to its misunder-
standing of the relevant law, it failed to exercise

that/
14. that discretion, and that this Court should make the order which the court a quo should have made.
Even if the court had a discretion as sub-mitted by counsel I fail to see what, in the present case, there was before the court a quo which could have been considered by it in the exercise of that discretion. As I have pointed out, no reason was advanced why and for what purposes the statements were required. It was said generally that they would be seriously handicapped and preju-diced in the preparation of their defence and in the trial but they did not state in what respect.

In my/

15. In my view, however, it is not a matter of

discretion which has to be exercised by the court
in the interests of fairness. The ccurt has a duty,
generally, to observe the rules and principles de-
signed to ensure that every accused person has a
fair trial. I am not aware of the requirements in
regard to disclosure in criminal cases in other legal
systems, but the changed attitude in the area of
criminal discovery referred to by counsel has cer-
tainly not taken root in the South African system.
The admissibility of and the procedure relating to
statements made by accused persons are extensively

regulated by the Criminal Procedure Act and in so

far/
16. far as the right of accused persons to be provided

with copies of a statement or statements made by
them is concerned, section 335 quoted above is the
governing provision.

I have no quarrel with the general prin-

ciple of fairness enunciated in the Chin, Lwane and
Mpetha cases supra. Neither Chin's nor Lwane's case
dealt with a statement made by an accused person.
It is, of course, a long-standing principle in S A
law that, in the interests of fairness, a witness who

testifies in a criminal trial should, as was reiterated

in Lwane's case, be warned against incriminating himself.
Such self-incriminating evidence is per se prejudicial

to such person's interests which cannot be said of

the/
17. the refusal to supply an accused person with a state-

ment he has made himself and of the contents of which
he must prima facie be aware.

As far as Chin's case is concerned, our
law also recognises the principle that the State
should not, subject to certain exceptions or safe-
guards, be allowed to introduce new evidence to bolster

its case which should have been proved before the
closure. Whether, if facts similar to those in Chin's
case presented themselves in our courts, the judgment
would have been the same, is nct necessary to decide.
I emphasise the fact that Chin's case was a jury case
which enhances the possibility of potentiai prejudice

to an accused person - a possibility which is less

likely to occur in our courts where a reasoned

judgment/

18. judgment is delivered by the court. From this judg-

ment the views of both judge and assessors would
clearly appear and any prejudice to the accused would

be ascertainable. The inquiry in our law would be
whether any irregularity which occurred amounted to
a failure of justice - see s 322 of the Criminal
Procedure Act.

In any event, I do not agree with the

implication contained in counsels' argument that the
appellants will necessarily be deprived of a fair

trial in the event of s 29(8) of the Internal Security
Act being applicable. In terms of s 335 of the Crimi-
nal Procedure Act an accused person is entitled to a
statement made by him, whether such statement is in-

tended to be used by the State, or not. That is the only

privilege,/...

19. privilege, as I shall later demonstrate, which he
would forfeit if he were precluded from relying on
s 335 of the Criminal Procedure Act.
Assuming, however, that the withholding of a statement from an accused person who made it could be said to be prejudicial or potentially pre-judicial to such person, the inquiry in the present matter is not whether an accused person would be deprived of a fair trial but simply whether, as a matter of interpretation, s 29(8) of the Internal Securlty Act is applicable.
In Mpetha's case supra the accused were charged under certain sections of the Terrorism Act 1983 of 1967 (hereinafter referred to as the Terrorism Act) and the State claimed i a a specific privilege from disclosure by reason of the provisions of s 6(6) of that Act which provides:

"No person, other than the Minister or an

official/

20.

official in the service of the State acting in the performance of his official duties shall have access to any detainee or shall be entitled to any official information relating to or obtained from any detainee."

Williamson J, approving of the decisions

in S v Hassim 1971(4) SA 120 (N) and S v ffrench-
Beytagh 1971(4) SA 333 (T) to the effect that S v Ndou
1970(2) SA 15 (T) was wrongly decided, came to the
conclusion that the accuseds' rights under s 335
of the Criminal Procedure Act were not defeated
by s 6(6) of the Terrorism Act. In Hassim's case

supra James JP dealt at 123 with an accused's rights

under s 380 of the Criminal Procedure Act 56 of 1955

(the precursor of s 335 of the present Criminal

Procedure Act) and said at G - H on that page ( I

omit/
21. omit words which are not reievant for present

purposes):

"If the Legislature intended that any
person who became an accused
in a trial under the Terrorism Act should be denied the right to claim a copy of the written statements he made to the police, it would have been easy enough to say so in un-equivocal terms. It has not done so and this is a pointer to the fact that it did not intend to take away this right."

As far as section 29(8) of the Inter-nal Security Act is concerned the Legislature has taken the cue and has expressly exciuded the ope-ration of s 335 of the Criminal Procedure Act.

But, argue counsel for the appellants, section 29(8) is not applicable to the facts of the

present/
22. present case. In this regard they advance a two-foid

argument. Firstly, they submit, when the
appellants made their statements to the magistrate
they were pro tem taken out of detention and these
statements were therefore not made "during such de-
tention" as required by the subsection and secondly,
they argue, the subsection is not applicable because
the statements made before a magistrate are not the
type of statement contemplated by the subsection.
Developing their first submission, counsel point out
that the provision is in terms limited to a statement
made by any person detained in terms of the provisions
of s 29 which is made "during such detention". It

is accordingiy contemplated by the iegislature, sub-

mit/
23. mit counsel, that a person detained under section

29 might make a statement otherwise than during
such detention; if not, the words "made during
such detention" are redundant. The subtle purport
of this submission seems to be that the dete'ntion
may,for some reason or other, be interrupted, and
for the duration of such interruption the person
concerned would not be under detention and the provi-
sion would not apply. In support of this submission
counsel referred to a passage in the judg-
ment in Schermbrucker v Klindt NO 1965(4) SA 606(A)
at 619 D - H. In that case an urgent application
was heard by Snyman J in the motion court of the
Witwatersrand Local Division for an interdict re-

straining the S A Police from continuing with an

alleged/
24. alleged unlawful method of interrogating the appli-

cant's husband who was a detainee in terms of Act
37 of 1963. When it became apparent that a dispute
of fact had arisen on the papers in the light of
the affidavits filed on behalf of the respondent,
counsel for the applicant requested the learned
judge to order, in the exercise of his discretion
in terms of rule 9(a) of the Transvaal Rules of Court,that
appellant's detained husband appear personally in
court to be examined and cross-examined. Rule 9(a)
provided that tne court may, in any motion proceedings
before it, order any person to appear personally to
be examined and cross-examined. The application was

refused by Snyman J. There followed an appeal to the

full court of the Transvaal and eventually the matter

came/....
25. came to this Court. In the course of the judgment

of Botha JA the latter said (619C) that no court
has power to order anything to be done which would
be in conflict with an Act of Parliament. It
follows,he said, that no court can issue any order
or process the effect of which would be to require
or authorise an interference in any manner whatsoever
with the kind of detention prescribed by the relevant
section of the said Act or which would be likely to
defeat the purposes of that section. There then

follows the following dictum upon which counsel rely

(D - H):

"Now it seems to me that, if a detainee were to be required to comply with an order by a Court requiring his personal attendance before it, the manner of his detention as prescribed by sec. 17 would be interfered

with/

26.

with in more ways than one,and the pur-poses of the section may be defeated. In the first place, the detainee would be re-quired to depart, albeit temporarily, from the place of his detention, for during the period during which he is compiying with the order, he is cieariy not being detained at the place determined by the commissioned officer of police as required by sec. 17. In the second place, the detainee would be brought out of isolation and into contact with the outside world, where access to him could not be effectively controlled or pro-hiblted. The prohibition against access to the detainee can, having regard to the pro-visions of sec. 17(2), be effectively en-forced only while he is being detained in isolation from contact with the outside world at the place deemed fit by a commissioned officer of police, for no other effective machinery is provided for its enforcement and no sanction is prescribed for a contra-vention thereof. The absence of any such provision in sec. 17 is, in my view, a clear indication that the Legislature did not con-template the possibility of any temporary absence of a detainee from the piace of his detention. Such a possibility could in any

event/

27.

event hardly have been contemplated having

regard to the fact that the detention, though temporary, was clearly intended to be continuous in order to induce the de-tainee to speak. Finally, it seems to me that compliance by a detainee with an order requiring his personal attendance in a Court would result in an interrup-tion of his detention and interrogation designed to induce him to speak. Such interruptions, especially lengthy inter-ruptions, may therefore clearly defeat the purpose of the section. The purpose of the detention, though it temporarily de-prives the detainee of his liberty, is intended to induce him to speak, and any interference with that detention which may negative the inducement to speak is likely to defeat the purpose of the Legislature."

The reasoning of Botha JA makes it quite

clear that the Court did not decide that the court of

first instance correctly refused the application
because any appearance of the detainee in court to

give/

28.
give evidence wouid suspend the detention. The ratio
was that it would defeat the purpose of the detention.
It is not submitted in the present case that the
removal of the appellants from the place of their de-
tention to the magistrate's quarters for the purpose
of making statements before the magistrate defeated
the purpose of the detention. In fact, it was the
police officers concerned in the interrogation who
caused the appellants to be taken to the magistrate.
The appellants were not discharged from detention
for the period during which they were escorted to

the magistrate, remained with the magistrate while
making their statements and were escorted back to

the place of detention. Subject to the directions

of the Minister the Commissioner of Police only orders

the/

29. the release of a detained person in terms of s 29(1)(a)(i

when he is satisfied that such person has satisfactoriiy
replied to all questions at the interrogation or that
no useful purpose will be served by his further deten-
tion. The word "interrogation" in this section figures
very strongly in the appellants' second submission
which I shall consider in due course. What I wish
to emphasize in the context of the first submission
is that a formal act by the Commissioner of Police
is required for the detainee's release and the
Commissioner had not performed such an act when the
appellants were taken to the magistrate for the
purpose of making statements.

In support of their second submission

counsel/
30. counsel argue that persons detained under s 29 of
the Internal Security Act are so detained with the
object of being interrogated during their detention.
This interrogation, they argue, may be at length and
recurrent. It would accordingly be difficult for
the State, they submit, to be required to produce all
statements made by a detainee during detention if that
detainee were eventually charged with a criminal offence.
The provision is, in their submission, designed to
obviate the necessity for such production. The avowed
purpose, they contend, of detention in terms of s 29

is to obtain information as to certain offences by

interrogation in confinement until the detainee has,

in the opinion of the Commissioner of Police

replied/
31. replied satisfactorily "to all questions" whilst

being interrogated, not by the magistrate but by
the police, during his detention in terms of s 29.
S 29(8) does not, the argument proceeds, cover'
statements made to magistrates in circumstances
where such magistrates have to comply with the pro-
visions of s 217 and 219(A) of the Criminal Proce-
dure Act. In view of the fact that the magistrate
is an independent official who has nothing to do
with the interrogation of a detainee, such state-
ments, they submit, are not privileged.

It is true that s 29 is designed for the

purpose of interrogating detainees and that in the

case of a detainee who declines to speak or who fails,

in the/
32. in the opinion of the Commissioner of Police, to

"reply satisfactorily to all questions", the con-
tinued detention is designed to induce him to speak.
See Rossouw v Sachs 1964(2) SA 551(A) 56 A - B. It
is equally true that a magistrate has nothing to do
with the interrogation of a detainee. Non constat,
however, that s 29 does not apply to a statement made
by a detainee who is prepared to make a clean breast
of things and to make a statement before a magistrate.
S 29(8) does not refer to a statement made during the
interrogation of a detainee. It refers in terms to
any statement made by him during detention and, as I
have already demonstrated, he remains in detention
while making a statement to a magistrate. Obviously,

should/

should charges thereafter be brought against him

as contemplated in the proviso to s 29(1) (b) (i)

of the Internal Security Act, such statement will
only be admissible in evidence against 'him if the
requirements of s 217 of the Criminal Procedure Act
can be met. That does not, however, remove the state-
ment from the purview of s 29(8) of the Internal Security.
Act.

Such evidence may include a statement made

before either a commissioned police officer or a ma-
gistrate. The police officer, even though not one
of the interrogating team, may be housed in the same

premises where the detainee is detained. Even though the statement made before the police officer must,

before it can become admissible, be proved to have

been/
34. been freely and voluntarily made, it has not been

submitted, and, in my view, correctly so, that such
statement is made otherwise than "during such deten-
tion". Subject to considerations relating to the
onus of proof in terms of the Criminal Procedure Act,
such a statement would be of the same type as that
made before a magistrate.

I agree with respect with the interpreta-

tion by Cloete JP of s 29(8) of the Internal Security
Act in the matter of State v Nzo and Others 1985(2)
SA 170 (E) which is reflected in the headnote as

follows:

"It follows from the provisions of ss (8) of s 29 of the Internal Security Act 74 of 1982 that an accused person detained
under the provisions of s 29 is deprived

of/

35.

of the right to have a copy of any statement he has made whilst under such detention by the explicit pro-visions of ss (8) which nullifies the rights granted to him by s 335 of the Criminal Procedure Act 51 of 1977. The only circumstances in which an accused will be entitled to a copy of such a statement is determined in the proviso to ss (8) of s 29, namely where, in the course of any subsequent criminal procee-dings relating to the matter in connection with which the person made that statement, any part of such statement is put to him by the prosecutor."

In spite of an indication in this case

during preliminary skirmishes between the State and
the defence, in an application for bail, that
the State had a strong case because it was in
possession of confessionsmade by the detainee

appellants/

36.

appellants, the State could always decide not to

use those confessions in the trial. I agree, with

respect, with the following reasoning of the

court a quo:

"It may be that, for instance, the State considers on more mature consideration that the disclosure of some information contained in a statement would be so deleterious to the public weal that it would be better not to use the state-ment even if its case were weakened by such a decision."

The appeal is dismissed with costs.

JUDGE OF APPEAL

HEFER JA)

VIVIER JA)

agree
BOSHOFF AJA) STEYN AJA)

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