Levack, Hamilton Caesar and Others v Regional Magistrate, Wynberg and Another

In November 1997, five accused were charged with dagga-related offences in the Wynberg Regional Court. In March 1998, before pleading, the Magistrate granted an order under s 37(3) of the Criminal Procedure Act 51 of 1977 requiring the accused to give voice samples to a State voice expert in the presence of their legal representatives. The purpose was to compare these samples with tape recordings of telephone conversations in the State's possession for possible use at trial. The accused challenged this order in the Cape High Court on review. Davis J (with Hlophe DJP concurring) dismissed the review in June 1999. Leave to appeal to the SCA was granted in October 1999. By the time of the SCA hearing, one accused had died, two were untraceable, leaving only Hendricks and Le Roux as appellants.

• Whether s 37 of the Criminal Procedure Act 51 of 1977 empowers courts to order accused persons to provide voice samples
• Whether the human voice constitutes a 'mark, characteristic or distinguishing feature' of the body within the meaning of s 37
• Whether an order compelling voice samples violates the privilege against self-incrimination and the right to a fair trial
• Whether the Magistrate had power to grant the order under s 37(1)(c) or s 37(3)(a)
• Whether the delay in prosecuting the appeal should be condoned
• Whether review of unconcluded proceedings was justified

The appeals of appellants 1 and 2 (Levack and Lebola) were dismissed for want of prosecution. The application for condonation by appellants 3 and 4 (Hendricks and Le Roux) was dismissed. The effect was to uphold the Magistrate's order requiring the provision of voice samples.

The human voice is a 'characteristic or distinguishing feature' of the body within the meaning of s 37 of the Criminal Procedure Act 51 of 1977, as it is a sound formed in the larynx and uttered by the mouth that emanates from and is distinctively formed by the body. An order compelling an accused to provide voice samples does not violate the privilege against self-incrimination or the right to a fair trial, because voice samples constitute autoptic evidence (physical characteristics) rather than testimonial or communicative evidence - when providing such samples the accused remains passive. Courts have the power under s 37(1)(c) to reinforce and supplement police powers by ordering accused persons to comply with requests to provide voice samples or other autoptic evidence, and s 37(1), (2) and (3) do not operate exclusively of one another.

Cameron JA made critical observations about the appalling delays in the case, noting they reflected poorly on everyone involved and brought discredit to the criminal justice system. The explanation that the attorney was ignorant of appeal rules because he 'specialises in criminal matters' was characterized as completely unacceptable. The judgment deplored the lack of monitoring by the Cape High Court Registrar and the Western Cape DPP, emphasizing that close monitoring is essential and responsibility rests on the DPP, particularly where appellants are out on bail and may have little incentive to finalize appeals. The Court awaited a report on steps to ensure future appeals would not disappear from view. The judgment also noted in passing that eventual defiance of a s 37 order would found a charge of contempt of court, and that awareness of the decision in S v Binta (regarding inability to charge obstruction of justice for refusing blood samples) likely induced the DPP to seek the court order in this case.

This case authoritatively establishes in post-constitutional South Africa that voice samples fall within s 37 of the Criminal Procedure Act and can be compulsorily obtained from accused persons. It reinforces the long-established distinction between testimonial/communicative evidence (protected by the privilege against self-incrimination) and autoptic evidence (physical characteristics of the body). The judgment confirms that the right to silence and fair trial rights are not violated by orders requiring accused persons to provide voice samples, fingerprints, blood samples or other bodily samples, as these constitute physical characteristics rather than testimonial evidence. The case resolved conflicting approaches in lower courts regarding such orders. It also addresses important procedural issues regarding the interaction between police powers under s 37(1) and court powers under s 37(3), and the limited grounds for review of unconcluded proceedings.