S v Jabulani John Ndlovu and Others

Three accused faced charges relating to multiple rhino poaching incidents across Eastern Cape districts. The specific incident before the court occurred on 17-18 June 2016 at Bucklands Farm, Albany district, where a white rhino named Cambell was darted with a tranquilizer and its horn removed, resulting in death. Police conducted surveillance of a white Audi linked to the accused under Operation Full Moon. On 17 June 2016 at 22h35, the three accused were arrested at chalet 8, Makana Resort, Grahamstown. During a warrantless search of the chalet, police found a freshly removed rhino horn, tranquilizer dart gun, five tranquilizer darts, Etorphine (M99) tranquilizer, a yellow bow saw, .22 blank ammunition, two knives, side cutter pliers, a cordless drill, and six cellular phones. DNA testing confirmed the horn and saw were connected to the rhino Cambell. The accused challenged the admissibility of evidence obtained through the warrantless search, claiming it was unconstitutional and unlawful.

• Whether the warrantless search of chalet 8 at Makana Resort violated the accused's constitutional rights
• Whether evidence obtained through an unlawful search should be excluded under section 35(5) of the Constitution
• Whether the admission of real evidence obtained through constitutional violations would render the trial unfair
• Whether the admission of the evidence would be detrimental to the administration of justice
• Whether the police conduct was reasonable and justifiable in the circumstances
• The application of section 22(b) of the Criminal Procedure Act, 51 of 1977 regarding searches without warrant

The court ruled that the evidence relating to the items found in chalet 8 at Makana Resort (rhino horn, dart gun, tranquilizers, ammunition, and other items listed in paragraph 6 of Exhibit G) is admissible in the trial despite the unlawful warrantless search.

Evidence obtained through an unlawful search in violation of constitutional rights must be excluded only if its admission would render the trial unfair or be detrimental to the administration of justice (section 35(5) of the Constitution). Real evidence that exists independently of the constitutional violation and would have been discovered lawfully through a search warrant does not render a trial unfair merely because it was initially discovered unlawfully. Where police officers act in good faith without deliberate or flagrant violation of rights, make snap decisions under operational pressure rather than following a settled policy of rights violations, and the crime investigated is serious, the admission of such evidence will not be detrimental to the administration of justice. The court must balance the protection of constitutional rights against the state's duty to prosecute serious crime and maintain public confidence in the justice system.

The court made several notable observations: (1) Courts must ensure that protection of privacy rights does not hamper the state's ability to prosecute serious and complex crime; (2) Police officers in the field must make 'snap decisions' on constitutional issues 'without the benefit of learned counsel' and courts should bear in mind that errors are not necessarily deliberate attempts to circumvent rights; (3) Public confidence in the judicial system is eroded when courts exclude conclusive evidence on 'technicalities'; (4) In the current state of endemic violent crime, it is unacceptable to the public that conclusive evidence be excluded, causing 'shock, fury and outrage'; (5) There is a danger of creating a perception that the criminal justice system 'frees' serious criminals on account of a constable's blunder; (6) Real evidence is generally more readily admitted than testimonial evidence because it possesses objective reliability and does not 'conscript the accused against himself'. The court also observed that the failure to make contemporaneous statements by senior officers (Viljoen and McLaren) was concerning but did not amount to manufacturing evidence or violating the accused's trial rights where no adjournment was requested.

This case provides important guidance on the application of section 35(5) of the Constitution regarding the exclusion of unconstitutionally obtained evidence. It demonstrates that evidence obtained through rights violations is not automatically excluded, but requires a careful balancing exercise. The judgment affirms that real evidence existing independently of the violation may be admitted where: (1) police acted in good faith without deliberate violation; (2) the violation was not severe or flagrant; (3) the evidence would have been discovered lawfully; (4) the crime is serious; and (5) exclusion would undermine public confidence in the justice system. The case is significant in the context of serious environmental crimes like rhino poaching, balancing constitutional protections against the state's duty to prosecute serious crime. It establishes that 'snap decisions' by police officers in the field, while potentially unlawful, may be excused where there was no deliberate policy to violate rights and the officers acted under pressure.