Cabinet Approves Changes to Lethal Force Law

The long-awaited changes to the law governing the use of lethal force have at last been approved by the Cabinet and will shortly be made public, chief government spokesman Themba Maseko said yesterday. The government announced more than a year ago its intention to revise section 49 of the Criminal Procedure Act in the middle of a welter of intemperate statements from members of the executive that police should shoot to kill and fight fire with fire.

It is understood that the substance of the provisions for when and how police may use lethal force will remain unchanged as there is a Constitutional Court ruling on this. The changes are apparently mainly the language in the Criminal Procedure Act.

At present, the law provides that lethal force may be used in defence of one's life or the lives of others but not to stop a fleeing suspect unless there is a probability that the individual has committed violent crimes or is likely to commit such crimes.

Mr Maseko said: "The bill aims to amend section 49 of the Criminal Procedure Act, that regulates the use of force when effecting the arrest of a suspect in a criminal matter, in order to bring the section in line with the judgment of the Constitutional Court in the Walters case. "The court stated, among other things, that shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances. The bill strives to provide greater legal certainty to police regarding circumstances under which force may be applied when attempting to make an arrest, and the nature of the force that may lawfully be used in the process."

Mr Maseko said the Cabinet had welcomed the crime statistics that were released last week by Police Minister Nathi Mthethwa. The crime statistics for 2009-10 showed a drop in the murder rate but also that house and business robberies had continued to rise. "The statistics highlighted the progress the country was making in the fight against crime and were a tangible indication of government's commitment to create a safe society," he said. "Government will continue to work tirelessly to ensure the safety of our citizens. Government acknowledges and welcomes the role played by communities, civil society and the business community in the fight against crime."

The collaboration between the police and the various partners in the fight against crime, Mr Maseko said, should be strengthened in order to achieve the target of reducing the crime rate by 7% a year.

Source: All Africa

Arrested journo fears for safety of news sources

INVESTIGATIVE journalist Mzilikazi wa Afrika fears that his confidential sources may be in danger after Hawks investigators seized 11 years' worth of reporter notebooks and research documents. The boxes of documents were seized from his Johannesburg home immediately after his arrest on Wednesday morning, when plain-clothes investigators combed through his house without a search warrant. “The notebooks they took have nothing to do with the fake letter issue. The notebooks date back more than 11 years, to when I still worked for African Eye News Service in Nelspruit. They contain detailed notes on all the investigations I have done over the years," said Wa Afrika. "I am really concerned that they will use the notebooks to trace and intimidate sources or even people who have spoken to me in their official capacity over the years. It feels like a witch-hunt."

Hawks spokesman Musa Zondi initially insisted on Thursday evening that investigators had used a warrant to seize the notebooks, but conceded late on Thursday night that police had neglected to obtain court sanction for the search. "The original arrangement was for Mzilikazi to voluntarily surrender to investigators, so we did not need a warrant. But, plans changed, and we arrested him instead. There is, however, allowance in the Criminal Procedure Act for search and seizure without a warrant," Zondi explained. He was unable to say why plans changed, but did confirm that the confiscated notebooks had been handed over to police in Mpumalanga itself for "further investigation". "I cannot speak about the scope of the investigation, but it definitely does not stretch back 11 years. As a former journalist I can see where you are going [with questions about the safety of the notebooks]. I cannot comment. I am stumped," said Zondi.

In addition to the notebooks, Hawks investigators carted off scores of personal records and documents, as well as work-related research notes connected with the Mpumalanga Tourism & Parks Agency (MTPA) and an old public commission report into the apartheid military's secret activities -- plus his teenage son's laptop. “I don't have a clue what they would want with my son's laptop. The other documents are also completely unrelated to the fake letter issue,” said Wa Afrika.

The 'fake' letter at the apparent root of the drama is a supposedly fraudulent resignation letter, on an official Mpumalanga government letterhead, from Premier David Mabuza to President Jacob Zuma. Mabuza issued a statement shortly after Wa Afrika's arrest claiming that the journalist was part of a wider plot to destabilise the province. Wa Afrika and his lawyers are, however, still unclear exactly what the charges against him are. Although he appeared briefly in the Nelspruit regional court on Friday morning for a bail application, the Hawks have yet to release the detailed charge sheet or any other information about his supposed criminal conduct.

Wa Afrika was initially said to be facing charges for fraud and defeating the ends of justice. But, two hours after he was released on R5,000 bail, the charges were amended to fraud, forgery, and 'uttering' (which means the attempt to pass off something fake as genuine). "We've asked for the charge sheet, so we can understand what exactly he is accused of, but I have yet to receive it," says the Sunday Times attorney Eric van den Berg. Wa Afrika also reports that while in detention he was woken at 2am and interrogated by about whether he was part of a group or faction trying to destabilise the African National Congress (ANC) in Mpumalanga. "I wasn't asked about destabilising the provincial government or the country. I was asked about destabilising the ruling party," he says.

South African National Editors' Forum (SANEF) media freedom spokesman Raymond Louw said on Friday that confiscation of any reporters' notebooks or confidential research notes by police was a “serious transgression” of their rights and needed to be challenged. “It looks like a fishing expedition. Unfortunately there is little SANEF can do right now about Mzilikazi's situation, until our meeting with national Police Commissioner Bheki Cele on Tuesday. We will definitely raise the issue of the notebooks with Cele,” said Louw.

The Freedom of Expression Institute (FXI) also expressed outrage on Friday, saying police had no right to seize notebooks or records that do not directly relate to the charges against Wa Afrika. "We strongly advise Mzilikazi and his attorneys to argue that the search and seizure at his house was illegal, especially if the notebooks have nothing to do with this case,” said FXI attorney and media freedom expert, Mbali Cele.

National Prosecuting Authority spokesperson Mthunzi Mhaga, however, insisted on Friday that investigators have prima facie evidence to substantiate the Hawks actions. “We have overwhelming evidence against the accused. The reason we did not oppose their bail application though, is because we do need additional time to gather more evidence,” said Mhaga.

Wa Afrika and a deputy director in Mpumalanga's housing department, Victor Mlimi, were both released on R5,000 bail each and told to return to court on November 8. A third suspect who was arrested with Mlimi on Tuesday afternoon, an unnamed teacher at Mganduzweni Primary School near White River, was released without being charged after being questioned by police. She was originally accused of faxing the fake letter to various journalists, including Wa Afrika, and President Zuma's office.

Mlimi has also not yet received a copy of the detailed charge sheet. Premier Mabuza's spokesman Mabutho Sithole, who camped out at court both on Thursday and Friday, continues to insist that the two are pawns for "powerful people" who are bankrolling a plot to oust Mabuza from office. Sithole insists that the case extends beyond the resignation letter: he claims that the recent arrests are linked to the arrest of former ANC Youth league leader and current regional COPE chairman, James Nkambule, on March 25.

Nkambule was charged for fraud and defeating the ends of justice for allegedly fabricating and circulating a supposed hit-list of prominent public figures, including the assassinated speaker of the Mbombela Local Municipality, Jimmy Mohlala. Mohlala was executed in front his teenage son in January 2009 one day before he was scheduled to speak publicly about suspected tender irregularities relating to the 2010 FIFA World Cup Stadium in Mbombela. Nkambule insists that the hit-list and an accompanying affidavit were written by a Mozambican hitman, identified only as 'Josh', after his Mpumalanga paymasters tried to kill him.

Wa Afrika was one of a number of journalists who wrote about the allegations, and about Nkambule's subsequent arrest. Nkambule is currently on R8,000 bail awaiting trial on October 14.

Source: Capital

New law may force reporters to reveal sources

The government was finalising proposals regarding a section of the Criminal Procedure Act which could force journalists to reveal confidential sources, Justice Minister Jeff Radebe said in Johannesburg on Saturday night. Speaking at the annual general meeting of the SA National Editors' Forum (Sanef), Radebe emphasised that the government would not treat the media in the manner it had been treated during the apartheid years. "As a minister of justice I want to assure you that any [new] law must be in conformity with the Constitution," the minister said.

Radebe was speaking against the backdrop of increased concerns at the ANC's proposed introduction of a state appointed media appeal tribunal to adjudicate complaints against the press. Radebe said the ANC had been deliberating on various issues in preparation for its national general council meeting in Durban later this year. "One of these is that of information communication technology and the media." Referring to an ongoing discussion of Section 205 of the Criminal Procedure Act and other sections affecting journalists, Radebe said: "We are in the process of finalising proposals in this regard."

The SA Law Commission would also soon present its finding of research on this and other laws that the media found problematic.

Source: Mail & Guardian

Right to Life: S v Makwanyane and Another

CHASKALSON P: The two accused in this matter were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appellate Division of the Supreme Court against the convictions and sentences. The Appellate Division dismissed the appeals against the convictions and came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible according to law.

Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11(2) of the Constitution.

The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. See: S v Makwanyane en ‘n Ander [1994] ZASCA 76; 1994 (3) SA 868 (A). Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. Although there was no formal reference of these issues to this Court in terms of section 102(6) of the Constitution, that was implicit in the judgment of the Appellate Division, and was treated as such by the parties.

The trial was concluded before the 1993 Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. Because evidence which might possibly be relevant to that issue would not have been led, we asked counsel appearing before this Court to consider whether evidence, other than undisputed information placed before us in argument, would be relevant to the determination of the question referred to us by the Appellate Division. Apart from the issue of public opinion, with which I will deal later in this judgment, counsel were not able to point to specific material that had not already been placed before us which might be relevant to the decision on the constitutional issues raised in this case. I am satisfied that no good purpose would be served by referring the case back to the trial court for the hearing of further evidence and that we should deal with the matter on the basis of the information and arguments that have been presented to us.

It would no doubt have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law. This, however, was not done and it has been left to this Court to decide whether the penalty is consistent with the provisions of the Constitution. That is the extent and limit of the Court's power in this case.

Source: SAFLII

S v Zuma and others

Section 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977 provides that where a confession by an accused person has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate it shall be admissible in evidence against the accused. The subparagraph further provides that the confession shall be presumed, unless the contrary is proved, to have been freely and voluntarily made by the accused in his or her sound and sober senses and without having been unduly influenced to make the confession.

The accused were indicted on two counts of murder and one of robbery. At their trial before Hugo J in the Natal Provincial Division they pleaded not guilty. Two of the accused had made statements before a magistrate which were tendered by the prosecution as admissible confessions. The question arose whether s 217(1)(b)(ii) of the Criminal Procedure Act was inconsistent with the provisions of the Constitution. Counsel for the defence and the prosecution consented in terms of s 101(6) of the Constitution to the trial judge deciding the issue. Notwithstanding the consent, Hugo J refrained from deciding on the validity of the section, referring the matter to the Constitutional Court for decision and adjourning the trial sine die. The Attorney-General of Natal sought direct access to the Constitutional Court in terms of s 100(2) of the Constitution on the grounds that it was in the interests of justice that a binding decision be given as soon as possible on the validity of s 217(1)(b)(ii).

The Court granted the application for direct access. The Court found s 217(1)(b)(ii) to be in violation of s 25(3) of the Constitution (right to a fair trial). It held it to be a longstanding principle of English and South African law of evidence that the prosecution should prove that any confession on which it wished to rely was freely and voluntarily made. Section 217(1)(b)(ii) of the Criminal Procedure Act places on the accused the burden of proving on a balance of probabilities that a confession recorded by a magistrate was not free and voluntary. It is not sufficient for the accused merely to raise a doubt. The section therefore creates a legal burden of rebuttal on the accused -- a so-called 'reverse onus'.

The Court considered the common law rule requiring the prosecution to prove that a confession has been freely and voluntarily made to be inherent in the rights specifically mentioned in s 25(2), s 25(3)(c) and (d) of the Constitution and forms part of the right to a fair trial. These rights are the necessary reinforcement of the principle that the prosecution must prove the guilt of the accused beyond reasonable doubt. Reversing the burden of proof seriously compromises and undermines these rights. It followed that s 217(1)(b)(ii) violates these provisions.

The Court held that the tests of reasonableness, justification and necessity for limitation of fundamental rights set out in s 33(1) of the Constitution are not identical, and in applying each of them individually one will not always get the same result. But in the present case, it was held, reasonableness, justification and necessity may be looked at and assessed together. The rights interfered with are fundamental to concepts of justice and forensic fairness and have existed in South Africa for over 150 years. A drastic consequence of the alteration to the law brought about by s 217(1)(b)(ii) is the possibility that an accused may be convicted over the reasonable doubt of the court. It was not shown by the state that it was impossible or unduly burdensome for the prosecution to discharge its onus under the common law rule. Nor was it shown that the common law rule caused substantial harm to the administration of justice. Even if it were assumed that the reverse onus may in some cases obviate or shorten a trial within a trial on the admissibility of a confession, and released the prosecution from the inconvenience of marshalling and calling their witnesses before the accused gave evidence, these advantages do not outweigh and justify the substantial infringement of fundamental rights that are the result of the application of the subparagraph. Accordingly s 217(1)(b)(ii) does not meet the criteria laid down in s 33(1) of the Constitution. It is declared inconsistent with the Constitution and invalid.

In the absence of a specific order by the Constitutional Court in the interests of justice and good government giving retrospective effect to a declaration that a law is invalid, s 98(6)(a) provides that a declaration of invalidity shall not invalidate anything done or permitted in terms of that law before the coming into effect of the declaration of invalidity. The Court held that the likely result of ordering the declaration of invalidity of s 217(1)(b)(ii) to have full retrospective effect, invalidating earlier rulings on admissibility, would be numerous appeals with the possibility of proceedings de novo. In proceedings de novo the necessary evidence of voluntariness may no longer be available. The Court considered s 98(6)(a) to be intended to ensure that the invalidation of a law existing at the commencement of the Constitution should not ordinarily have retrospective effect, so as to avoid the dislocation and inconvenience of undoing transactions, decisions or actions taken under that law. The Constitutional Court's power to order otherwise in the interests of justice and good government should be exercised circumspectly. In some cases the interests of individuals must be weighed against the interest of avoiding dislocation to the administration of justice and the desirability of a smooth transition from the old to the new. The application of the subparagraph may well have caused injustice to accused persons, but the court cannot repair all past injustice by a simple stroke of the pen. In the present case, it was held, a proper balance could be struck by invalidating the admission of any confession in reliance on s 217(1)(b)(ii) of the Criminal Procedure Act before the date of the declaration of invalidity of the section, but in respect only of trials begun on or after 27 April 1994 and in which the verdict had not been given at the date of the declaration.

The judgment of the Court was delivered by Kentridge AJ and was concurred in by all the other members of the Court.

Source: SAFLII