Levack and Others v Regional Magistrate, Wynberg and Another

Five accused were charged in the Wynberg Regional Court with dagga-related offences. Before they were called upon to plead, the regional magistrate granted an order under section 37 of the Criminal Procedure Act 51 of 1977 directing them, in the presence of their legal representatives, to provide voice samples to a state-appointed voice expert. The purpose was to compare these samples with existing tape recordings of telephone conversations for possible use at trial. The accused challenged this order on review in the Cape High Court, which dismissed the application. Leave to appeal was later granted to the Supreme Court of Appeal. By the time the appeal was heard, one accused had died and two others had dropped out, leaving only two appellants pursuing the appeal.

The appeals of the two remaining appellants were dismissed, and the order requiring the provision of voice samples was upheld. Appeals of the other appellants were dismissed for want of prosecution.

This judgment authoritatively confirmed that section 37 of the Criminal Procedure Act permits compelled voice sampling of accused persons. It clarified South African law on the distinction between physical (autoptic) evidence and testimonial evidence, reinforcing that the privilege against self-incrimination applies only to the latter. The case is significant for criminal investigations and prosecutions relying on voice identification evidence and for interpreting accused persons’ constitutional rights in relation to bodily evidence.