Lefu Jantjie Bakane v The State

On 23 June 2004, Mr Johannes Albertus Maré was found dead in his house in Timsrand, Pretoria, strangled with a piece of curtain. Police recovered items near the deceased's house including television remote controls, a woollen cap, jacket and knife. The same day, the appellant and four co-accused were arrested. They were charged with murder and robbery with aggravating circumstances. The appellant pleaded not guilty and elected to remain silent. The defence objected to the admission of the appellant's statement (exhibit H) on the basis that it was not made by him, that the police invented the contents and forced him to sign without explaining it to him, and that his constitutional rights were not explained. The appellant testified that police found him at his girlfriend's house, assaulted him and his co-accused, forced him to point out the deceased's house, and made him sign documents he was not aware of. He denied exhibit H was made voluntarily. He raised an alibi that he was at work (Why Not Wood) until 18h00 when the offences were allegedly committed around 18h00-18h15. The trial court found some slapping and rough handling occurred but admitted exhibit H nonetheless. The trial court convicted the appellant on both counts and sentenced him to life imprisonment on count 1 and 15 years on count 2 (to run concurrently).

• Whether the trial court correctly admitted the appellant's statement (exhibit H) into evidence despite it being obtained through assault and constitutional violations
• Whether the admission of exhibit H rendered the trial unfair in terms of section 35(5) of the Constitution
• Whether the State discharged its onus to prove that the statement was made voluntarily
• Whether there was sufficient admissible evidence to convict the appellant absent exhibit H
• Whether the trial court properly dealt with the appellant's alibi defence

1. The appeal is upheld. 2. The order of the Full Court is set aside and substituted with: 'The appeal is upheld. The convictions and sentences are set aside and substituted with the following: "The accused is found not guilty and discharged on both counts."'

The binding legal principles established are: (1) Evidence obtained through assault and in violation of constitutional rights under section 35 of the Constitution must be excluded if its admission would render the trial unfair or be detrimental to the administration of justice (section 35(5)); (2) The State bears the onus under section 252A(6) of the CPA to prove on a balance of probabilities that a confession or admission was made freely and voluntarily; (3) Section 219A of the CPA is peremptory - evidence of an involuntary admission is inadmissible with no exception; (4) Where a trial court finds that police assault occurred during interrogation, this finding should ordinarily lead to exclusion of any statement obtained; (5) The right not to incriminate oneself, the right to legal representation, and the right not to be compelled to make a confession must be scrupulously protected, particularly during pre-trial processes; (6) In the absence of admissible evidence linking an accused to a crime, a conviction cannot stand regardless of the seriousness of the offense; (7) There is no onus on an accused to prove an alibi defence - the State must disprove it beyond reasonable doubt; (8) Persistent interrogation shortly after arrest, particularly within 24 hours, raises concerns about voluntariness that courts must carefully examine.

The Court made important non-binding observations expressing concern that constitutional rights violations by police remain common despite being "supposedly common knowledge in the police force since the advent of our democracy." The Court emphasized it is "more important now than ever, taking into account the violent history of our country, for trial courts to be more vigilant to uphold the rights enshrined in the Bill of Rights." The Court quoted with approval from S v Tandwa that "what differentiates those committed to the administration of justice from those who would subvert it is the commitment of the former to moral ends and moral means" and that "we forfeit that authority if we condone coercion and violence and other corrupt means in sustaining order." The Court noted that while the public interest in combating crime is substantial, this cannot justify admission of evidence obtained through compulsion or violence. The Court also noted deficiencies in the police investigation including failure to conduct fingerprint analysis or forensic testing on items recovered, though these observations were not essential to the decision.

This case is significant in South African jurisprudence for reinforcing the constitutional protections against self-incrimination and police misconduct in criminal investigations. It emphasizes that: (1) Trial courts must vigilantly uphold Bill of Rights protections even in serious crime cases; (2) Evidence obtained through assault or constitutional violations must be excluded when admission would render the trial unfair (section 35(5)); (3) The public interest in combating crime cannot justify condoning police violence and coercion; (4) Courts must maintain moral authority by rejecting evidence obtained through immoral means; (5) The State bears the onus to prove voluntariness of confessions/admissions and cannot benefit from its own constitutional violations; (6) Post-constitutional democracy, police are expected to know and respect constitutional rights; (7) The principle of bringing law into disrepute is relevant to exclusion, not admission, of illegally obtained evidence. The case serves as a strong reminder to law enforcement and courts about the primacy of constitutional rights in criminal procedure, particularly during the pre-trial investigative phase.