Mthembu v The State

The appellant, a former police officer, was convicted in the Verulam Regional Court of theft of a Toyota Hilux (count 2), theft of a Toyota Corolla (count 3), and robbery of R60,000 and R8,450 from the Maidstone Post Office (counts 4 and 5) in early 1998. He was sentenced to an effective 23 years' imprisonment, reduced on appeal to 17 years. The chief state witness, Ramseroop, was an accomplice warned under s 204 of the Criminal Procedure Act. Ramseroop testified that the appellant brought stolen vehicles to him for panel-beating and spray-painting, and gave him a metal box taken from the post office robbery. Ramseroop was arrested on 19 February 1998 after police found the Corolla at his home, which he had voluntarily disclosed. After arrest, police severely assaulted and tortured Ramseroop, including electric shock treatment, from 19-21 February 1998. Following this torture, Ramseroop provided information leading to discovery of the Hilux at Mhlongo's home and the metal box hidden in his ceiling. Ramseroop testified at trial approximately four years after these events, disclosing the torture. Two other witnesses, Zamani Mhlongo and Ngcobo, also testified they had been tortured by police. An identification parade identifying the appellant was conducted with several procedural defects.

• Whether evidence obtained from an accomplice through torture is admissible when the accomplice testifies years after the torture occurred
• Whether real evidence (the Hilux and metal box) discovered as a result of torture-induced information is admissible
• The interpretation and application of section 35(5) of the Constitution regarding exclusion of unconstitutionally obtained evidence
• Whether evidence relating to one crime (the Corolla) remains admissible when discovered independently before torture, even though subsequently included in a torture-induced statement
• The application of the Convention Against Torture (CAT) in South African criminal proceedings
• The weight and reliability of identification evidence obtained through procedurally defective identification parades

The appeal was upheld in part. Convictions and sentences on counts 2 (theft of Hilux), 4 and 5 (post office robbery) were set aside. The conviction on count 3 (theft of Corolla) was confirmed. The sentence on count 3 was reduced from five years to four years' imprisonment. The Court directed the registrar to ensure the judgment reached the Minister for Safety and Security, National Commissioner of SAPS, Executive Director of the Independent Complaints Directorate, Chairperson of the Human Rights Commission, and National Director of Public Prosecutions regarding the police torture.

Evidence obtained as a result of torture, whether narrative or real evidence, must be excluded under section 35(5) of the Constitution and Article 15 of the Convention Against Torture. The prohibition against torture is absolute and non-derogable, representing a peremptory norm of international law and a fundamental constitutional value. Section 35(5) requires exclusion of evidence obtained in violation of Bill of Rights protections from any person, not only an accused, where admission would render the trial unfair or be detrimental to the administration of justice. "Detrimental to the administration of justice" encompasses broad public policy considerations, including the integrity of the judicial process and the propriety of investigative conduct, beyond individual trial fairness. Evidence remains inextricably linked to torture even when testified to years later if the information was originally extracted through torture and the witness remains bound by the torture-induced statement. To admit torture evidence would involve the judicial process in "moral defilement" and have a corrosive long-term effect on the criminal justice system. However, evidence discovered independently before any constitutional violation occurs remains admissible even if subsequently included in a statement induced by torture.

The Court made several important observations: (1) It noted the "marked shift" in the 20th century toward excluding involuntary confessions based on policy rather than merely reliability, citing pre-constitutional cases moving in this direction (S v Sheehama, S v January). (2) The Court observed that public policy in the constitutional context concerns not only holding the guilty accountable but also the propriety of investigative and prosecutorial conduct. (3) It stated that evidence obtained through deliberate or flagrant constitutional violations should be firmly excluded, while evidence obtained through reasonable and justifiable police conduct is less likely to be excluded. (4) The Court emphasized that the absolute prohibition in the CAT and Constitution requires exclusion in "any proceedings," not just criminal trials. (5) The Court noted that torture is inadmissible "irrespective of where, or by whom, or on whose authority it is inflicted," citing the House of Lords in A v Secretary of State. (6) The Court expressed regret that the appellant would escape full consequences due to police misconduct, and condemned the investigating officers for not following elementary identification procedures and for committing egregious crimes themselves through torture. (7) The Court directed that the judgment be sent to various officials to ensure police accountability, emphasizing that torture perpetrators must be held to account under the CAT's requirements for investigation and severe punishment.

This is a landmark post-constitutional case establishing that evidence obtained through torture is absolutely inadmissible in South African courts, including real evidence discovered as a result of torture. It represents a fundamental departure from the pre-constitutional approach that readily admitted relevant evidence regardless of how it was obtained. The judgment gives domestic effect to the Convention Against Torture and affirms that the prohibition against torture is a peremptory norm permitting no exceptions. It establishes that section 35(5) of the Constitution applies to evidence obtained from any person (not only an accused), including accomplices and third-party witnesses. The case emphasizes that admissibility determinations must consider broad public policy and the long-term integrity of the administration of justice, not merely trial fairness or reliability. It demonstrates the "fruit of the poisonous tree" doctrine in the constitutional context while recognizing that independently discovered evidence remains admissible even if later included in tainted statements. The judgment serves as a strong judicial rebuke to police torture and affirms the judiciary's role in protecting constitutional values even when it means guilty persons may escape conviction.