Qhinga v State

On 12 July 2006, armed men entered a community hall in Newlands near East London where social grants were being paid. They robbed security guards of firearms and ammunition (shooting and injuring one), robbed an employee of money, took a vehicle to flee, and later fired shots at a policeman. Seven men, including appellant Qhinga (accused 1), were indicted on ten charges. The appellant was arrested on 1 August 2006 at 06:00. He was not taken to a police station but to Serious and Violent Crime Unit offices at an army base, detained in a motor vehicle until 15:00, and only taken to cells 12 hours after arrest. He was removed from cells at 03:30, returned at 05:10, and removed again at 07:05 when he made a pointing-out. He was denied food or given very little, and subjected to interrogation. He appeared in court on 4 August 2006 (not within 48 hours as required) and requested legal representation. Despite this, he was taken to a police officer and made a confession. Six accused were convicted by Dhlodhlo ADJP of four counts of robbery with aggravating circumstances and two counts of attempted murder. The only evidence against the appellant was the pointing-out and subsequent confession.

• Whether the content of the appellant's pointing-out was proved on the record
• Whether the pointing-out ought to have been admitted given the circumstances of the appellant's detention and treatment by police
• Whether the appellant's fair trial rights were violated by police conduct
• Whether the State discharged the onus of proving the pointing-out was made freely and voluntarily without undue influence

The appeal succeeded. The appellant's convictions and sentences were set aside. Paragraphs 2 and 3 of the full court order were altered to reflect that the appeal in respect of the first, third and fourth appellants was allowed and their convictions and sentences set aside, while the appeal in respect of the second, fifth and sixth appellants was dismissed.

Where evidence (such as a pointing-out) is ruled admissible after a trial-within-a-trial, but the content of that evidence is either not subsequently led at trial or is lost from the record and cannot be reconstructed, there is no admissible evidence proving that evidence. Without such proof on the record, a conviction based solely on that evidence cannot stand. The State bears the onus of proving that a pointing-out or confession was made freely and voluntarily without undue influence.

The court made significant obiter comments on police conduct: The facts of the case left grave doubts as to the fairness of the appellant's trial. The police conduct (detaining appellant in a vehicle for 9 hours, denying or minimizing food, removing him from cells in early morning hours, delaying court appearance beyond 48 hours, conducting interrogation, and obtaining confession after he requested legal representation) was strongly indicative of pressure being placed on the appellant and creating an environment conducive to self-incrimination. Such conduct demonstrates precisely how police should not conduct themselves when investigating offences. In a constitutional democracy founded on the rule of law and values of human dignity, equality and advancement of human rights and freedoms, such aberrant conduct is beyond the pale and cannot be tolerated. The policemen acted in defiance of the Constitution and the South African Police Service Act 68 of 1995, which requires police to exercise powers with due regard to fundamental rights of every person. The court noted it was unnecessary to decide whether Schoeman J was correct that the conviction could not stand on fairness grounds, as there was no admissible evidence against the appellant in any event.

This case is significant in South African criminal procedure law for: (1) emphasizing the foundational requirement that evidence must actually be on record to be admissible - even where a trial-within-a-trial rules evidence admissible, the content of that evidence must still be proved through testimony; (2) reinforcing constitutional protections for accused persons during detention and investigation, particularly the right to be taken to court within 48 hours and the right to silence; (3) condemning police conduct that violates constitutional rights and creates a coercive environment for obtaining confessions; (4) reaffirming that police must exercise powers with due regard to fundamental rights as required by section 13(1) of the South African Police Service Act 68 of 1995 and the Constitution; (5) demonstrating that convictions cannot stand without admissible evidence, regardless of other procedural compliance.