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LEVACK AND OTHERS v REGIONAL MAGISTRATE, WYNBERG, AND ANOTHER 2004 (5)
SA 573 (SCA)
2004 (5) SA p573

Citation

2004 (5) SA 573 (SCA)

Case No

403/2000

Court

Supreme Court of Appeal

Judge

Harms JA, Scott JA, Farlam JA, Cameron JA and Jones AJA

Heard

November 1, 2002

Judgment

November 28, 2002

Counsel

H Raubenheimer SC for the third and fourth appellants.

J Slabbert for the second respondent.

Annotations

Link to Case Annotations

Flynote : Sleutelwoorde
Criminal procedure - Evidence - Ascertainment of bodily features of accused - Provisions of s 37 of
Criminal Procedure Act 51 of 1977 - 'Bodily features' - What constitutes - Human voice - Voice
'characteristic' of human body - Each human voice distinctive (though by no means C always capable
of assured discernment) - Voice therefore also 'distinguishing feature' of body - Voice accordingly
falling within scope of s 37 - Nothing in provision suggesting that 'distinguishing features' envisaged
limited to those capable of apprehension through senses of touch and sight (or even taste or smell). D
Constitutional law - Human rights - Right to remain silent - Ascertainment of bodily features - Human
voice - To require accused persons to submit voice samples not infringing right either to remain silent
in court proceedings against them or not to give self-incriminating evidence - Rule against
self-incrimination forbidding forcing person to give self-incriminating evidence - It is not merely
compulsion that is kernel of privilege, but testimonial
E compulsion - Person's features (eg
complexion, stature, mutilations, or marks on body) may be relevant, and she or he may be
compelled to show them to Court - Such evidence constituting autoptic evidence (perceived by Court
itself) which Court has right to see - 'Autoptic evidence' derived from accused's bodily features not
infringing right to silence nor right F not to be compelled to give evidence - This applying also to
human voice - Constitution of the Republic of South Africa Act 108 of 1996 s 35(1)(a), Criminal
Procedure Act 51 of 1977, s 37.
Criminal procedure - Evidence - Ascertainment of bodily features of accused - Provisions of s 37 of
Criminal Procedure Act 51 of 1977 - Order by Court in G terms of s 37 - Police powers to act under s
37(1) ending only when accused convicted - As long as police retain s 37(1) powers, court before
which criminal proceedings pending lacking power to make orders contemplated under s 37(3) - This
not meaning that Court not entitled to do so under s 37(1) - Power of police under s 37(1)(c) including
power to request accused to supply H voice samples - Such power may be supplemented by court
order requiring accused to do so - Order would make refusal to co-operate subject to sanction for
contempt of court - Subsections (1), (2) and (3) not operating exclusively of one another - Precise
source of Court's power best located as deriving from s 37(1)(c). I

Headnote : Kopnota
There can be no doubt that the voice is a 'characteristic' (in the sense of a distinctive trait or
quality) of the human body. That each human voice is distinctive (although by no means
always capable of assured discernment) is also clear. The voice, therefore, is also a
'distinguishing feature' of the body. The conclusion that the voice falls within the scope of s 37
of J
2004 (5) SA p574

the Criminal Procedure Act 51 of 1977 must follow. The section does not expressly mention the

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voice. But A this is because it is one of innumerable bodily features that the wording expressly
contemplates. It is true that the voice, unlike palm or other prints, is not itself part of the body.
It is a sound. But the sound is a bodily emanation. And the body from which it emanates
determines its timbre, volume and distinctive modulations. Nothing in the provision suggests
that the 'distinguishing features' it envisages should be limited to those capable of
apprehension through B the senses of touch and sight (or even taste or smell). (Paragraphs
[8], [9] and [13] at 579F/G - I and 581A - C.)
It is wrong to suppose that requiring accused persons to submit voice samples infringes their
right either to remain silent in the court proceedings against them or not to give
self-incriminating evidence. While no one can be compelled to give evidence incriminating
herself or C himself, it is necessary to confine the doctrine within its proper limits. What the
rule forbids is compelling a person to give evidence that incriminates herself or himself. It is
not merely compulsion that is the kernel of the privilege, but testimonial compulsion. A person
may be compelled, when in court, to do what she or he would rather not. Her or his features
may be of importance, and she or he may be made to D show them; complexion, stature,
mutilations, or marks on the body, may be relevant points, and she or he may be compelled to
show them to the Court. That is autoptic evidence which is perceived by the Court itself, and
which it has a right to see. In such cases the person is really passive. 'Autoptic evidence' evidence derived from the accused's own bodily features - does not infringe the right to silence
nor the right not to be compelled to give E evidence. This applies in all details to the human
voice. It falls within the same category as complexion, stature, mutilations, marks and prints.
There is no difference in principle between the visibly discernible physical traits and features of
an accused and those that under law can be extracted from her or him through syringe and vial
or through the compelled provision of a voice sample. In neither case is the accused required to
provide evidence of a testimonial or F communicative nature, and in neither case is any
constitutional right violated. (Paragraphs [17], [19] and [21] at 582D, 583C - D and 583G - H.)
While police powers to act under s 37(1) come to an end only when an accused has been
convicted, and, by corollary, so long as the police retain their s 37(1) powers, a court before
which criminal proceedings are pending has no power to make the orders contemplated under
G s 37(3), this does not mean that such a court cannot do so under s 37(1). The power which
the police have under s 37(1)(c) to take steps as they might deem necessary to ascertain the
characteristic or distinguishing features of the appellants' voices includes the power to request
the accused to supply voice samples. This power, in turn, can properly be supplemented by a
court order requiring H the accused to do so. The court order would make refusal to co-operate
subject to sanction for contempt of court. In short, ss (1), (2) and (3) do not operate
exclusively of one another. A court has the power to issue an order requiring an arrested
person (or any other person contemplated in ss (1) and (2)) to comply with a request from any
of the officials named to supply the autoptic evidence sought. The precise source of the Court's
power is best located as deriving from I s 37(1)(c). (Paragraphs [25] and [26] at 584E/F 585A.)
Cases Considered
Annotations
Reported cases
Ex parte Minister of Justice: In re R v Matemba 1941 AD 75: applied

2004 (5) SA p575

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others1996 (1) SA
984 (CC) (1996 (1) BCLR A 1): referred to
Gilbert v California 388 US 263 (1967): applied
Ismail and Others v Additional Magistrate, Wynberg, and Another1963 (1) SA 1 (A): referred to
B

Key v Attorney-General, Cape Provincial Division, and Another1996 (4) SA 187 (CC) (1996 (2)
SACR 113; 1996 (6) BCLR 788): referred to
Levack and Others v Regional Magistrate, Wynberg, and Another1999 (4) SA 747 (C) (1999 (2)
SACR 151): confirmed on appeal
Nkosi v Barlow NO en Andere1984 (3) SA 148 (T): referred to
R v Brown 1935 CPD 286: referred to

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R v Camane and Others 1925 AD 570: applied

R v Galiswe 1925 GWLD 23: referred to

R v Gericke 1941 CPD 211: referred to

R v M1963 (3) SA 183 (T): referred to
S v Binta 1993 (2) SACR 553 (C): referred to
S v Huma and Another1996 (1) SA 232 (W) (1995 (2) SACR 411): referred to
S v Joshua 2003 (1) SACR 1 (SCA): referred to

S v M1963 (3) SA 183 (T): applied

S v Maphumulo 1996 (2) SACR 84 (N): referred to
S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401):
referred to
US v Dionisio 410 US 1 (1973): applied
US v Wade 388 US 218 (1967): applied

Wahlhaus and Others v Additional Magistrate, Johannesburg, and Another1959 (3) SA 113 (A):
referred to.
Statutes Considered
Statutes
The Criminal Procedure Act 51 of 1977, s 37: see Juta's Statutes of South Africa 2003 vol 1 at
1-328. F
Case Information
Appeal from a decision in the Cape High Court (Hlope DJP and Davis J), reported at 1999 (4)
SA 747 (C) and at 1999 (2) SACR 151. The facts appear from the reasons for judgment.
H Raubenheimer SC for the third and fourth appellants.
J Slabbert for the second respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties
referred to the following:
Brink v Kitshoff1996 (4) SA 197 (CC) in para [11]
Carmichele v Minister of Safety and Security2001 (4) SA 938 (CC) in paras [33] - [35]

Chokolingo v Attorney-General, Trinidad and Tobago [1981] 1 All ER 244 (PC)

Davis v Tip NO1996 (1) SA 1152 (T) at 1156H
Harksen v Lane NO and Others1998 (1) SA 300 (CC) (1997 (11) BCLR 1489) in para [54]
Mendes v Kitching NO and Another 1995 (2) SACR 634 (E) at 644c - g

Nortje and Another v Attorney-General, Cape, and Another1995 (2) SA 460 (C) (1995 (1)
SACR 446; 1995 (2) BCLR 236)
R v Cameron 5 CRR 36 (Alberta)
R v Francois 18 CRR (2d) 187 (Ontario)
R v Ritter 8 CRR 278

2004 (5) SA p576

Re Bird and Peebles and The Queen 9 CRR 69

Re Blackwoods Beverages Ltd et al and The Queen et al 19 CRR 49 (ManCA)

Re Skis Rossignol Canada Ltd 15 CRR 184 (FC)
S v Attorney-General of the Western Cape and Others 1999 (2) SACR 13 (C) at 21 - 2

S v Boesak2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36) in para [11]

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S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat1999 (4) SA 623 (CC) (1999 (2)
SACR 51; 1999 (7) BCLR 771)
S v Duna1984 (2) SA 591 (Ck) at 596A - B
S v Friedman (2) 1996 (1) SACR 196 (W) at 202a - g

S v Lawrence; S v Negal; S v Solberg1997 (4) SA 1176 (CC) (1997 (2) SACR 540; 1997 (10)
BCLR 1348)
S v M1985 (1) SA 1 (A)
S v Meaker 1998 (2) SACR 73 (W) at 79e - f
S v Mhlungu1995 (3) SA 867 (CC) in para [59]

S v Pietersen1987 (4) SA 98 (C) at 100B - D

S v Steyn2001 (1) SA 1146 (CC) (2001 (1) SACR 16; 2001 (1) BCLR 52)
Sapat and Others v Directorate for Organised Crime 1999 (2) SACR 435 (C) at 443b
US v MacDonald 435 US 850

Walker v Stadsraad van Pretoria1997 (4) SA 189 (T) at 203E - G.

Chambers Twentieth Century Dictionary sv 'body'
Corpus Iuris Secundum vol 22A ss 650 - 2
Du Toit et al Commentary on the Criminal Procedure Act at 3-1, 3-12, 3-13

HAT - Verklarende Woordeboek van die Afrikaanse Taal sv 'eienskap', 'onderskei'

Herbstein and Van Winsen The Civil Procedure of the Superior Courts in South Africa
Hiemstra SA Strafproses 5th ed at 75, 80

Steyn Uitleg van Wette 5th ed at 4

The Shorter Oxford English Dictionary sv 'characteristic', 'distinguishing'
Websters Third International Dictionary sv 'characteristic', 'distinguishing'.

Cur adv vult.

Postea (November 28).
Judgment
Cameron JA:

[1] The Criminal Procedure Act 51 of 1977 gives wide powers to police, doctors and courts to
ascertain the bodily features of arrested or accused persons. At issue in the appeal is s 37. This
empowers police and other officials, and courts before which criminal proceedings are pending,
to take steps, or to order that steps be taken 'to ascertain whether the body' J
2004 (5) SA p577

CAMERON JA
of an arrested or accused person 'has any mark, characteristic or distinguishing feature or
shows any A condition or appearance'.1 The main question is whether this provision covers the
human voice. B
2004 (5) SA p578

CAMERON JA
[2] In November 1997 five accused were charged with dagga-related A offences in the Wynberg
(Cape) regional court. They were not asked - and have still not been asked - to plead. This is
because at the end of March 1998 the magistrate granted an order under s 37(3) that the
accused in the presence of their legal representatives give the State voice samples as specified
by a named 'voice expert'. The object was to compare the samples with tape recordings of
telephone conversations in the State's possession, for B possible later use during the trial. The
five then challenged the order in the Cape High Court. Davis J (Hlophe DJP concurring)
dismissed their review application in June 1999,2 and later refused leave to appeal. This Court

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granted the necessary leave in October 1999.

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[3] One of the accused died in July 2000. Two of the others (Messrs Levack and Sebola) are no
longer traceable at their home addresses and have dropped out of the proceedings. Their
appeals must be dismissed for want of prosecution. The two remaining, Messrs Hendricks and
Le Roux, persist in the appeal, in which the presiding magistrate is the first respondent. He did
not oppose the proceedings D and abides the Court's decision. The second respondent, the
Western Cape Director of Public Prosecutions, opposed the application and resists the appeal.
Condonation

[4] The first issue is the appalling delay that has occurred. The magistrate granted the order
four and a half years ago. This Court granted leave to appeal more than three years ago. The
record was lodged in the Cape High Court in April 2000 - more than two and a half years ago.
Thereafter both the notice of appeal and the appeal record were filed late in this Court. Later
also the F appellants' heads of argument were filed late. The appellants seek to have these
lapses condoned. Delays of this kind reflect poorly on everyone involved, and bring discredit to
the criminal justice system. The lapses here, which cumulated, are egregious. What is more,
the explanation tendered - that the attorney was ignorant of the rules for civil appeals because
he 'specialises in and deals G almost exclusively with criminal matters' - is by the avowal of the
appellants' own counsel completely unacceptable.
[5] Whether condonation should be granted is therefore open to serious question, and the fate
of the application must in these circumstances H
2004 (5) SA p579

CAMERON JA
depend on the merits of the appeal itself. These it is desirable for us to address because, we
were told, uncertainty in the A lower courts pre-dated the decision in the Court below, and
regional magistrates took conflicting approaches to whether such orders can be granted. The
appeal therefore requires disposal on the main point in issue.
[6] Before I turn to this, there is a further troubling point. The B appellants' neglect persisted
without intervention from the office of either the Registrar in the Cape High Court or the
Western Cape Director of Public Prosecutions (DPP). In S v Joshua3 this Court recently had
occasion to deplore a similar (though much longer) lapse where an appeal, also from the Cape
High Court, lay in limbo for years with the appellant out on bail. Appellants in such
circumstances may have little C incentive to bring appeals to finalisation. Close monitoring is
therefore essential, and responsibility for it must rest on the DPP. In this case, we await a
report the DPP's representative promised on steps to ensure that future appeals will not
disappear from view in this way.
Grounds of review

[7] The grounds of review the appellants relied on in their founding papers were that (a)

the voice samples the State required did not fall within s 37;

(b)

an order that voice samples be provided under compulsion would effectively breach
the appellants' privilege against E self-incrimination and result in an unfair trial;
and

(c)

the magistrate had no power to grant the order under s 37(1)(c), nor had the State
laid a basis for bringing the application within s 37(3)(a).

I consider these grounds in turn.

A Is the voice a 'characteristic or distinguishing feature' of the body?

[8] Basic definition is always a good starting point in the search for statutory meaning. In the
present case it provides a conclusive solution.
The Concise Oxford English Dictionary defines 'voice' as:

'1. Sound formed in larynx etc and uttered by mouth, especially human utterance in speaking, shouting,
singing, etc. 2. Use of voice, utterance. 3. (Phonetic) Sound uttered with resonance of vocal chords, not with
mere breath.'

The voice is thus a sound formed in the larynx and uttered by the mouth. It emanates from and
is formed by the body. There can therefore be no doubt that it is a 'characteristic' (in the sense

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of a distinctive trait or quality) of the human body.

[9] That each human voice is distinctive (although by no means always capable of assured
discernment)4 is also clear. The voice is therefore also a 'distinguishing feature' of the body.
The conclusion that the voice falls within the scope of s 37 must follow. I
[10] Davis J thus rightly held that a voice 'represents a defining
2004 (5) SA p580

CAMERON JA
characteristic of a human being'.5 As he also pointed out, this conclusion accords with both
South African and United A States authority. In S v M6 Bresler J thought it 'perfectly plain'
that a voice 'cannot fail but to be included within this category of ''a mark, characteristic or
distinguishing feature'''. The Supreme Court of the United States has for decades regarded the
voice of an accused as 'an identifying physical characteristic'.7 The contrary view, Davis J
rightly observed, is clearly untenable.8 B
[11] However, Davis J considered that this result could be achieved only by applying a
purposive approach to s 37. By this he meant that the provision's wording is ambiguous, and
that to reach the conclusion that 'voice' is covered, it is necessary to go beyond its perceived
verbal signification. I disagree. In my view, the literal meaning of 'characteristic or
distinguishing feature' amply covers the human C voice.
[12] The decision of this Court in Ex parte Minister of Justice: In re R v Matemba,9 in which
Davis J considered an early example of purposive statutory interpretation, was, I think, more
modest in its purport. The question was whether a palm-print was a 'mark, characteristic or
distinguishing D feature'. Because the then applicable provision10 expressly mentioned fingerand footprints, it was argued that palm-prints were excluded. Watermeyer JA (De Wet CJ,
Tindall JA, Centlivres JA and Feetham JA concurring), affirming the majority decision (to which
he was himself party) in R v Brown,11 held that the general words obviously encompassed
palm-prints. He said: E
'It is quite possible that the Legislature did not have the markings on a palm particularly in mind when they
used the words ''mark, characteristic or distinguishing feature'' possibly because it may not have been
generally known at the time the Act was passed that the marks on the palm of a hand are distinguishing
features. But in my judgment it was for the very reason that there may exist F innumerable kinds of marks,
characteristics and distinguishing features which cannot be set out in detail that generic words were used
wide enough to embrace all. In a similar way no attempt was made to specify in detail the exact acts which
the police may perform in order to ascertain whether or not the body of an accused person bears a mark,
characteristic or distinguishing feature, because an incomplete enumeration of such acts might handicap the
police in the performance G of their duty. Inspection of the body may reveal distinguishing marks of one kind,
but other distinguishing marks may require for their revelation one or other of the resources of science such as
microscopic or chemical examination,
2004 (5) SA p581

CAMERON JA
photography, X-ray photography, prints, etc.'12

[13] Exactly the same applies here. The section does not expressly mention the voice, but this
is because it is one of 'innumerable' bodily features that the wording expressly contemplates. It
is true that the voice, unlike palm or other prints, is not itself part of the body. It is a sound.
But the sound is a bodily emanation. And the body from which it emanates determines its
timbre, volume and distinctive modulations. Nothing in the provision B suggests that the
'distinguishing features' it envisages should be limited to those capable of apprehension
through the senses of touch and sight (or even taste or smell).
[14] Hearing is as much a mode of physical apprehension as feeling or seeing. For the sightimpaired it is indeed the most important means of C distinguishing between people. It would
therefore be counter-literal to interpret the section as though the ways of 'ascertaining' bodily
features it contemplates extend only to what is visible or tangible.
B Self-incrimination and the appellants' fair trial rights

[15] Appellants' counsel contended that s 37 deviated from the common-law principle, now
enshrined in the Constitution of the Republic of South Africa Act 108 of 1996,13 that an
accused was entitled to be 'passive' in criminal proceedings. He developed this argument (as
the second ground of review portends) by contending that the order granted violated the
'notions of basic fairness and justice'14 the Constitution now requires of E our criminal

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proceedings and that it would thus inevitably result in an unfair trial.

[16] The argument involves a muddle with two fallacies. But in one form or another it has
proved tenacious. Hence it is necessary first to point out the muddle and then to repel the
fallacies. This Court has F previously dealt authoritatively with the muddle. In Matemba,15
Watermeyer JA drew attention to a trial Judge's misformulation of issues arising from the
non-voluntary taking of an accused's palm-print. He said:
2004 (5) SA p582

CAMERON JA
'That statement appears to lay down two separate and distinct propositions - A
(a)

that in the absence of statutory provision an accused person cannot be compelled to furnish evidence
against himself;

(b)

that evidence obtained under compulsion cannot be used against an accused person.

The terms in which those propositions are stated tend to obscure the real issues which are involved, and I do
not think that either of them can be accepted as accurate expositions of the law. The legality B of the
methods used to obtain the palm print is one matter; the use of the palm print as evidence is another, and
these two questions must be kept separate and not combined with one another, as is done when it is said
that an accused person cannot be compelled to furnish evidence against himself.'16

(Emphasis added.)

[17] Applying the same approach to the present argument, the first fallacy is that evidence
derived from an accused's physique violates the right against self-incrimination. Differently put,
it is wrong to suppose that requiring the appellants to submit voice samples infringes their right
either to remain silent in the court proceedings against them or not to give self-incriminating
evidence. In D R v Camane and Others,17 Innes CJ analysed and exposed the same fallacy a
decade and a half before Matemba:
'Now, it is an established principle of our law that no one can be compelled to give evidence incriminating
himself. He cannot be forced to do that either before the trial, or during the trial. The E principle comes to us
through the English law, and its roots go far back in history. Wigmore, in his book on Evidence (vol IV, s
2250)18 traces very accurately the genesis, and indicates the limits of the privilege. And he shows that,
however important the doctrine may be, it is necessary to confine it within its proper limits. What the rule
forbids is compelling a man to give evidence which incriminates himself. ''It is not merely F compulsion'' says
Wigmore (s 2263)19 ''that is the kernel of the privilege, but testimonial compulsion''. It is important to bear
this in mind, because a man may be compelled, when in Court, to do what he would rather not. His features
may be of importance, and he may be made to show them; his complexion, his stature, mutilations, or marks
on his body, may be relevant points, and he may be compelled to show them to the Court. That is what
Wigmore calls autoptic evidence (vol G II, s 1150)20 which is perceived by the Court itself, and which it has a
right to see. In such cases the man is really passive. But he cannot be forced to go further and to give
evidence against himself.'21
J
2004 (5) SA p583

CAMERON JA
[18] Despite the clarity of Innes CJ's pronouncement, the fallacy has endured. Fifteen years
later, Watermeyer JA had to rebut it A again, at length, in Matemba.22 He concluded:
'Now, where a palm print is being taken from an accused person he is, as pointed out by Innes CJ in R v
Camane 1925 AD at 575, entirely passive. He is not being compelled to give evidence or to confess, any more
than he is being compelled to give evidence or B confess when his photograph is being taken or when he is
put upon an identification parade or when he is made to show a scar in Court. In my judgment, therefore,
neither the maxim nemo tenetur se ipsum prodere nor the confession rule make inadmissible palm prints
compulsorily taken.' C

[19] Notwithstanding the authority of these expositions, the task of explaining that 'autoptic
evidence' - evidence derived from the accused's own bodily features - does not infringe the
right to silence nor the right not to be compelled to give evidence has continued to fall upon
Judges.23 The explanations given in these cases apply in all details to the human voice.24 It
falls within the same category as complexion, stature, mutilations, marks and prints. D
[20] It is of course true that to take a palm or fingerprint, or to draw blood from an accused, or
to require him to supply a voice sample, goes further than merely observing his features or
complexion when he appears in court. Our legal system recognises the distinction. It is for this
reason that Ackermann J held in E S v Binta25 that a person who refuses a request to submit
to the taking of a blood sample under s 37 cannot, by the mere refusal, be guilty of obstructing
the course of justice or of attempting to defeat the ends of justice. The additional means of
compulsion that the provision licenses may have to be employed. In the present case, it was no
doubt awareness of Binta that induced the DPP to seek the order. Eventual F defiance of it
would found a charge of contempt of court.

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[21] Despite this added feature, there is no difference in principle between the visibly
discernible physical traits and features of an accused and those that under law can be extracted
from him through syringe and vial or through the compelled provision of a voice sample. G In
neither case is the accused required to provide evidence of a testimonial or communicative
nature,26 and in neither case is any constitutional right violated.
2004 (5) SA p584

CAMERON JA
[22] The second fallacy in the argument is this. It is wrong to suggest that the order
intrinsically violates the appellants' fair A trial rights. At present the only question before us is
whether an order requiring an accused to supply, in the presence of defence lawyers, voice
samples indicated by a State-designated 'expert' is competent. Those samples have not yet
been procured. The 'expert's' report has not yet been prepared. Its value and the weight that
should properly be accorded it have not arisen for determination. B
[23] All these are issues for determination at the trial, which has not even begun. Once the
appellants have pleaded, the trial court will be vigilant to ensure observance of their rights.
This will demand scrutiny not only of the methods and procedures applied in procuring the
voice samples, but of the quality, reliability and value of the C expert evidence about them. The
argument that an incipient and inevitable breach of fair trial rights has occurred is therefore
untenable.
C The interrelation between s 37(1) and s 37(3)

[24] The review grounds suggested also that the magistrate had no power to grant the order
under s 37(1)(c), and that the State had laid no basis for bringing the application within s
37(3)(a). This attack, too, is misconceived. The magistrate in fact omitted to specify under what
subsection he granted the order. But that he had the power to make an order requiring the
appellants to supply voice samples cannot be doubted. E
[25] It has rightly been held that police powers to act under s 37(1) come to an end only when
an accused has been convicted, and that, by corollary, so long as the police retain their s 37(1)
powers, a court before which criminal proceedings are pending has no power to make the
orders contemplated under s 37(3).27
F This does not mean, however, that such a court
cannot do so under s 37(1). In the present case, the police retained the power under s 37(1)(c)
to take steps as they might deem necessary to ascertain the characteristic or distinguishing
features of the appellants' voices. This included the power to request the appellants to supply
voice samples. This power, in turn, could properly be supplemented by a court order requiring
the appellants to do so. G
[26] The regional court's order that the appellants supply the voice samples in question thus
reinforced and underscored the powers of the police, by making refusal to co-operate subject to
sanction for contempt of court. In short, ss (1), (2) and (3) thus do not operate exclusively of
one another. A court has the power to issue an order H requiring an arrested person (or any
other person contemplated in ss (1) and (2)) to comply with a request from any of the officials
named to supply the autoptic evidence sought. In the present case, therefore, the police
retained the power to request the appellants to supply the voice samples,
2004 (5) SA p585

CAMERON JA
and the regional court had the power to order that they do so. The precise source of the court's
power is therefore A best located as deriving from s 37(1)(c).28
Review of unconcluded proceedings
[27] As is well established, the Supreme Court Act 59 of 1959 permits intervention by Superior
Courts in the unconcluded proceedings of B inferior courts only on limited grounds.29 I agree
with Davis J in the Court below that no case at all was made out that this is one of the rare
cases where intervention was warranted.30 Appellants' counsel sought to argue that the order
requiring the provision of voice samples was of such a radical nature, comparable to the
imposition of corporal punishment, that it was final in effect. The argument is not C persuasive.
As explained above, the provision of voice samples is no different in principle from the
provision of a blood sample or a fingerprint. The order granting it cannot, at this stage of the
proceedings constitute the sort of gross irregularity that would justify intervention. D

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Order
1.

The appeal of appellants 1 and 2 is dismissed for want of prosecution.

2.

The application for condonation of appellants 3 and 4 is dismissed.

Harms JA, Scott JA, Farlam JA and Jones AJA concurred.

Appellants' Attorneys: R M Liddell and Weber Inc, Wynberg; E G Cooper and Sons,
Bloemfontein. F

1
Section 37 provides:
'Powers in respect of prints and bodily appearance of accused
(1) Any police official may (a) take the finger-prints, palm prints or foot-prints or may cause any such prints to be taken (i) of any person arrested upon any charge;
(ii) of any person released on bail or on warning under s 72;
(iii) of any person arrested in respect of any matter referred to in para (n), (o) or (p) of s 40(1);
(iv) of any person upon whom a summons has been served in respect of any offence referred to in Schedule 1 or any
offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the
disqualification in respect of any licence or permit is permissable or prescribed; or
(v) of any person convicted by a court or deemed under s 57(6) to have been convicted in respect of any offence
which the Minister has by notice in the Gazette declared to be an offence for the purpose of this subparagraph;
(b) make a person referred to in para (a)(i) or (ii) available or cause such person to be made available for
identification in such condition, position or apparel as the police official may determine;
(c) take such steps as he may deem necessary in order to ascertain whether the body of any person referred to in
para (a)(i) or (ii) has any mark, charcteristic or distinguishing feature or shows any condition or apperance: Provided
that no police official shall take any blood sample of the person concerned nor shall a police official make any
examination of the body of the person concerned where that person is a female and the police official concerned is
not a female;
(d) take a photograph or may cause a photograph to be taken of a person referred to in para (a)(i) or (ii).
(2)(a) Any medical officer of any prison or any district surgeon or, if requested thereto by any police official, any
registered medical practioner or registered nurse may take such steps, including the taking of a blood sample, as
may be deemed necesssary in order to ascertain whether the body of any person referred to in para (a)(i) or (ii) of ss
(1) has any mark, characteristic or distinguishing feature or shows any condition or appearance.
(b) If any registered medical practioner attached to any hospital is on reasonable grounds of the opinion that the
contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at
any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such
sample to be taken.
(3) Any court before which criminal proceedings are pending may (a) in any case in which a police official is not empowered under ss (1) to take finger-prints, palm-prints or
foot-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or
distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such
proceedings or that the steps, including the taking of blood sample, be taken which such court may deem necessary
in order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or
distinguishing feature or shows any condition or appearance;
(b) order that the steps, including the taking of a blood sample, be taken which such court may deem necessary in
order to ascertain the state of health of any accused at such proceedings.
(4) Any court which has convicted any person of any offence or which has concluded a preparatory examination
against any person on any charge, or any magistrate, may order that the finger-prints, palm-prints or foot-prints, or
a photograph, of the person concerned be taken.
(5) Finger-prints, palm-prints or foot-prints, photographs and the record of steps taken under this section shall be
destroyed if the person concerned is found not guilty at his trial or if his conviction is set aside by a Superior Counrt
or if he is discharged at a preparatory examiniation or if no criminal proceeding with reference to which such prints or
photographs were taken or such record was made are instituted against the person concerned in any court or if the
prosecution declines to prosecue such person.'
2 Reported: 1999 (4) SA 747 (C) (1999 (2) SACR 151).
3 S v Joshua 2003 (1) SACR 1 (SCA) in para [55] per Mpati JA.
4 Difficulties in organising reliable 'voice identification parades' are alluded to in R v Gericke 1941 CPD 211 at
214 and in R v M1963 (3) SA 183 (T) at 184F - H. In R v Galiswe 1925 GWLD 23 the trial court excluded evidence of a
voice identification procedure because the accused was not warned or told why he was being questioned.
5 1999 (4) SA 747 (C) at 752C (1999 (2) SACR 151 at 155g - h).
6 1963 (3) SA 183 (T) at 184E - F.
7 US v Wade 388 US 218 (1967) at 222 - 3 (Brennan J for the Court); Gilbert v California 388 US 263 (1967) at
266 - 7 (Brennan J for the Court); US v Dionisio 410 US 1 (1973) (a voice has 'physical properties', which can be
measured) (Stewart J for the Court).
8 1999 (4) SA 747 (C) at 753B (1999 (2) SACR 151 at 156f).
9 1941 AD 75.
10 Criminal and Magistrates' Courts Procedure (Amendment) Act 39 of 1926, s 2.
11 1935 CPD 286.
12 1941 AD 75 at 79 - 80. That the conclusion is 'obvious' is stated at 80.
13 The Bill of Rights provides that everyone who is arrested for allegedly committing an offence has the right to
remain silent and not to be compelled to make any confession or admission that could be used in evidence against
that person (s 35(1)(a) and (c)), and that every accused person has a right to a fair trial, which includes the right 'to
be presumed innocent, to remain silent, and not to testify during the proceedings' and not to be compelled to give
self-incriminating evidence (s 35(3)(h)); considered in S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR
568); 1995 (4) BCLR 401) in paras [29] - [32] (Kentridge AJ) and Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others1996 (1) SA 984 (CC) (1996 (1) BCLR 1) in paras [23] and [91] - [100]. Steenkamp
and Nugent in Cheadle, Davis and Haysom South African Constitutional Law: The Bill of Rights (2002) chap 29 at

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680 observe that:

'It is difficult to see what is added by the express right not to be compelled to make a confession or an admission,
for the right to remain silent, and the right not to testify have, in any event, the effect of prohibiting compulsion to
make confessions or admissions.'
14 S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401) in para [16].
15 1941 AD 75.
16 1941 AD 75 at 77 - 8.
17 1925 AD 570 at 575.
18 See now Wigmore on Evidence, McNaughton Revision (1961) vol 8 para 2250.
19 See now Wigmore on Evidence, McNaughton Revision (1961) vol 8 para 2263.
20 See now Wigmore on Evidence, revised by Chadbourn (1972) vol 4 para 1150.
21 Cited with approval in S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401) in
para [31] and in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others1996 (1) SA 984 (CC)
(1996 (1) BCLR 1) in paras [23] and [96].
22 1941 AD 75 at 80 - 3.
23 Nkosi v Barlow NO en Andere1984 (3) SA 148 (T) at 151 - 2 (Spoelstra J, Eloff J concurring); S v Binta 1993
(2) SACR 553 (C) at 562d - e (Ackermann J, Conradie J concurring); S v Huma and Another1996 (1) SA 232 (W) at 237
- 40 (1995 (2) SACR 411 at 417 - 19) (Claassen J); S v Maphumulo 1996 (2) SACR 84 (N) at 87 - 90 (Combrink J).
24 This is also the position in the United States of America (US v Wade 388 US 218 (1967); Gilbert v California
388 US 263 (1967); US v Dionisio 410 US 1 (1973)).
25 1993 (2) SACR 553 (C) (Conradie J concurring).
26 The Corpus Juris Secundum vol 22A para 652 puts it thus:
'The privilege against self-incrimination is not violated by compelled participation in identification procedures, and
the compelled display of identifiable physical characteristics infringes no interest protected by such privilege against
self-incrimination protects only against evidence of testimonial or communicative nature, and compulsion to speak
does not violate it.'
27 Nkosi v Barlow NO en Andere1984 (3) SA 148 (T) at 154I - 155E (Spoelstra J, Eloff J concurring).
28 It follows that the order in S v Huma and Another1996 (1) SA 232 (W) (1995 (2) SACR 411), should have
been granted in terms that made it clear that the accused were ordered to co-operate with the police in the exercise
of the powers of the latter to take fingerprints under s 37(1)(c).
29 Act 59 of 1959 provides:
'24 Grounds of review of proceedings of inferior courts
(1) The grounds upon which the proceedings of any inferior court may be brought under review before a Provincial
Division, or before a Local Division having review jurisdiction, are (a) absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;
(c) gross irregularity in the proceeding; and
(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.'
30 1999 (2) SACR 151 (C) at 157e - 158a (1999 (4) SA 747 at 754A - 755A), citing, inter alia, Wahlhaus and
Others v Additional Magistrate, Johannesburg and Another1959 (3) SA 113 (A), Ismail and Others v Additional
Magistrate, Wynberg and Another1963 (1) SA 1 (A) and Key v Attorney-General, Cape Provincial Division, and
Another1996 (4) SA 187 (CC) (1996 (2) SACR 113; 1996 (6) BCLR 788).

2005 Juta and Company, Ltd.

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