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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, April 11, 2008

Let Us Live And Strive For Freedom: South African Supreme Court Finds Evidence Obtained By Torture Inadmissible

In what is being described as the first case of its kind since the advent of the Constitution of the Republic of South Africa in 1996, the Supreme Court of Appeal of South Africa has held that evidence obtained through the use of police torture is inadmissible.  According to Judge Azhar Cachalia in his judgment, "[i]n the pre-constitutional era the courts generally admitted all evidence, irrespective of how it was obtained, if it was relevant."  Judge Cachalia, however, found that all of this changed with the adoption of Section 35(5) of the Constitution, which provides that "[e]vidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice."  Cachalia determined that a plain reading of this section suggested that it required the exclusion of evidence improperly obtained from any person, not only from an accused.

This broad reading of Section 35(5) was essential to the case being heard by the Supreme Court because it involved a defendant being convicted based upon evidence obtained by the torturing of an accomplice.  Taxi operator and former policeman Bongani Mthembu was sentenced by the Verulam Regional Court to 23 years for stealing two vehicles and for an armed robbery of a post office 10 years ago.  Mthembu allegedly committed the crime with Sudesh Ramseroop, and Ramseroop incriminated Mthembu only after he was "assaulted severely" by his interrogators, with the assaults including electric shock treatment.  Two other witnesses against Mthembu were also allegedly tortured

The magistrate and trial judge in Mthembu's case found that the assault and torture did not render Ramseroop's testimony unreliable, but Judge Cachalia reversed them with an eloquent denunciation of torture:  "The absolute prohibition on the use of torture in both our law and in international law therefore demands that 'any evidence' which is obtained as a result of torture must be excluded 'in any proceedings.'"  My first thought on hearing this news was that Lowell Weicker, my former professor at UVA who played a large role in ending apartheid in South Africa, will be extreemly pleased with this result.

-CM

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