‘What the Constitution demands is that the accused be given a fair trial. Ultimately, fairness is an issue which has to be decided upon the facts of each case, and the trial judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.’

A famous passage indeed for those versed in legal history. To understand why a ‘trial within a trial’ has emerged with the van Breda trial, consider this.

In light of the above, it is important to note that the right not to be compelled to incriminate oneself in criminal matters is a hallowed one and a fundamental tenet of a fair trial.

Things have started getting very interesting in the van Breda trial as of this week, and perhaps even more so for those of you in the legal profession. That’s because this court will now start this new chapter to decide on the admissibility of a statement Henri gave the police soon after the murders.

It’s going to be fascinating to watch both legal teams in action as they resolve this matter from within the criminal trial. The defence, because they made the objection, now becomes the applicant and the onus of proving that the statement is inadmissible rests on the Defence.

This is the reverse of the criminal trial, where the onus is on the state.

You don’t have to be a lawyer to find this interesting because it is cases like these where the law is made! The issue to be decided has been in our courts before, and Judge Desai will be guided by case law when making a finding. He will need to consider and afford the appropriate weight to cases presented to him by Advocate Botha and Advocate Galloway. When he makes a finding, applicable for future judges faced with the same or a similar issue, who will consider his finding in their judgments.  Hence my enthusiasm about witnessing law being made.

It is almost as if the criminal trial is set aside while this issue is heard, although we need not wait for the outcome of the’“trial within a trial’ to continue with the criminal trial. Any evidence regarding Henri’s initial statement made to police will simply be suspended until Judge Desai makes a finding – but we can continue to hear other evidence in the criminal matter.

Let me set this up for you, and then explain fully the importance of this new development.

The defence’s objection, which happened in court this week, is in respect of the admissibility of a statement given by Henri on the afternoon of 27 January when the police took Henri to the police station for questioning. The state wants to use this statement as evidence against Henri and Advocate Botha told the court that this statement is a huge part of the reason the state decided to prosecute Henri.

Advocate Botha told the court that the statement was given in circumstances where the police obviously considered Henri to be a suspect and as such should have, and did not, advise him of this fact. The Defense says the police should have advised Henri of his constitutional rights to a fair trial, including to fair pre-trial proceedings and to seek legal representation before saying anything to the police, never mind giving a statement to them, under oath.

In order to determine this (in Henri’s case), the court will need to hear evidence from the police officer/s who took the statement that day on whether or not they thought he was a suspect, treated him as one and whether prior to taking his statement informed him of this fact, as well as the protections afforded to him under section 35 of the Constitution.

If the police did think he was a suspect and didn’t complete a suspect interview form, as well as inform him of his rights, then they were misleading the accused and trying to obtain a statement unlawfully and it shouldn’t be admitted.

Officer Quinton Malan has already told the court in his evidence in chief (which has yet to be tested) that he thought Henri was an eyewitness. He treated him as a victim and took a statement from him because he was the only person on the scene when they arrived who could tell them what happened.

Henri will testify for the defence, but with his questioning being limited to the ‘trial within a trial context’ about whether or not he was told he was a suspect that day, and whether or not he was read his rights prior to giving his version to the police. Like any other witness, however, he will be cross-examined to test his version.

Only time will tell how he deals with this pressure as we assume that this statement could make or break his case. The defence will need to work hard to protect Henri from saying anything more than what is required to decide this issue. Henri’s evidence will be limited to what happened that day but neither party will introduce the content of the statement.



Central to this “trial within a trial” is Section 35 of our constitution.

The section protects fundamental rights enshrined in our constitution and it is well accepted in our law, although the constitution also expressly states that a detained, accused or arrested person is afforded these rights, the rights to a fair pre-trial procedure must be extended to a suspect. If this weren’t the case police officers could simply delay the arrest, detention or charging of suspects to first get a statement from them and circumvent the requirement to convey to them their fundamental constitutional rights to fair pre-trial procedures.

A suspect interview form expressly states that the officer must tell a suspect this.

Section 35(5) provides that evidence obtained in a manner violating 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.

However, we do have a limitations clause – section 36 in our Constitution – that allows for the limitation of the application of these rights if this is reasonable and justifiable in an open and democratic society that is based on human dignity, equality and freedom.

The protection afforded to persons in Section 35 of the constitution certainly does not extend to witnesses. This could never be in the interests of justice as witness accounts are crucial to the State’s ability to investigate and prosecute crime and this would hinder their ability to get witnesses versions.



In order to determine whether or not Henri’s statement is admissible, Judge Desai will also need to consider legal arguments presented by the state and defence teams.  He will also need to consider case law on the issue and any other law which the parties may place before the court during the “trial within a trial” in their ‘heads of argument’. This is a document compiled for him to make it easier to consid the argument.


The defence has already confirmed they’ll rely on a specific case to prove their position. There isn’t a lot of case law on this particular issue and the matter hasn’t been in front of the Constitutional Court yet.

Advocate Botha told the court he will rely on a case, S v Orrie, where the Judge considered the following questions:

i.        Was the accused a suspect and, if so, was he informed of his status as a suspect?

ii.        If the accused was a suspect, was he entitled to the rights of an arrested or detained person?

iii.        Was the accused adequately informed of his constitutional rights?

iv.        In light of the answers to the above questions, is the statement admissible against the accused?

In this case, S v Orrie, a matter which favours the defence, the Judge actually didn’t accept the accused’s version of events as given in his oral testimony, the judge also found that the accused must have known he was a suspect, yet still found the statement to be inadmissible for the following reason:

“although the disputed statement is apparently not confessional in nature, I must assume that it compromises the accused in some way. In my opinion, the admission of such a statement obtained without a warning that it may be used against the maker will inevitably taint the fairness of any subsequent trial. The statement in question was obtained from the accused in violation of the constitutional duty to inform him that any statement he made could be used against him in later proceedings. As such I hold it to be inadmissible against the accused.”

Judge Desai will have to consider all the oral testimony and argument placed before him to decide which version he should accept, that of the accused, or that of the police officers.

Ultimately, whether or not the statement should be admissible or not will depend on the version Judge Desai accepts to be the most believable but even then, if we go by S v Orrie, then he may still find it to be inadmissible because the State hasn’t disputed that Henri was not warned his statement could be used against him, because he was being treated like a witness.


So that gives you an idea of the incredibly difficult task ahead of Judge Desai in deciding this issue. There is nothing black and white about what Judge Desai will need to consider when he adjudicates this Trial Within a Trial. He will need to consider whether the admission would influence Henri’s right to a fair trial.

I expect Judge Desai to be exceptionally circumspect in making this finding as like any other finding either party will be able to take the matter on appeal and the way the state and defence are fighting over this and the obvious importance of this statement for them both, means that whatever call Judge Desai makes, the aggrieved party will likely seriously consider an appeal to a higher court.

The gloves are going to come off as these two seasoned legal teams have a tough battle ahead of them to try and achieve their respective outcomes.

We’ll continue to keep you posted with the latest developments in the van Breda trial. Keep following me on Twitter for live, to-the-minute updates from the courtroom.

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