INDEX

Section 1: Research Problem

Aims
Research Question

Section 2: Interview Schedule

Section 3: Literature Review

Section 4: Research Report

Section 5: Assignment 01

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 SECTION 1
Forensic Methods and Techniques IV (FOM 401F) – Assignment 2

Topic
Analyse and discuss the correct procedures to be followed during a pointing out.

Research Problem

The researcher has noted with concern, that evidence of pointings-out tendered by the
investigators from the Royal Swaziland Police have in most cases if no always be
excluded by the court. The courts had time and again criticized the procedure in which
our investigators employ in conducting pointing out. It is argued that if one could take
randomly ten cases which involve the pointing out evidence for the period of June1, 2009
to May31, 2010, three out of the ten would have its evidence of pointing out admitted in
court. This presents a serious challenge on the effectiveness of the police investigators. It
is indeed a course for concern.

The researcher has noted that the correct procedures of conducting a pointing out are; if
they are known, not applied. This is evident; in the case of Mhlongo and Others v Rex
unreported court of Appeal case 185 of 1992 a senior police investigator (Sub –
inspector) regrettably fail to give proper warning of the judges rule to the suspect who
agreed to point out some real evidence. The court had as a result of the in adequacy
decline to accept his evidence of pointing out. It is therefore important to do this research
for the investigators to realize their short comings. This will help to protect the police
profession which losing recognition. This research will explore the correct procedures of
conducting a pointing out and in the process; attention will also be drawn to the
discussion of admissibility and inadmissibility of pointing out evidence. It is in this way
that the investigator will be able to major his or capability in conducting a pointing out of
crime scene or physical evidence.

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Research Aims

• To determine what forensic investigation is.

• To define what is pointing out.
• To determine the value of pointing out in the investigation of crime.
• To determine the advantages and disadvantages of applying the correct
procedures of conducting a pointing out.

Research Questions

1. What is forensic investigation?

2. What is pointing out?
3. What is the value of applying the correct procedures of pointing out to the
investigation of crime?
4. What are the advantages and disadvantages of the application of correct
procedures of pointing out?

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 SECTION 2

Interview Schedule ( )

Topic: Anlyse and discuss the correct procedures to be followed during a pointing out.

1ST Section: Historical Information

1. What is your age?

2. What is your gender?
3. Are you an investigator?
4. What is your position /designation?
5. Do you conduct pointing out?
6. Did you receive any kind of training on conducting a pointing out?
7. How many years of investigation service do you have?

2ND Section Research Question One: Forensic Investigation

8. What is the meaning of criminal investigation?

9. What the meaning of forensic investigation?
10. What is the difference between criminal investigation and forensic investigation?
11. What are the different types of forensic science and your area of concern?
12. What are the objectives and purpose of investigation?

3RD Section Research Question Two: Pointing Out

13. What is pointing out?

14. How is pointing out linked to an admission and a confession?
15. Who are the role players in the pointing out process?

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4TH Section Research Question Three: The value of pointing out in the investigation
of crime.

16. What is the value of pointing out in the investigation of crime?

17. Who has got the mandate to conduct a pointing out?
18. What are the correct procedures of conducting a pointing out?

5TH Section Research Question Four: The advantages and disadvantages of pointing
out.
19. What are the advantages of pointing out?
20. What are the disadvantages of pointing out?
21. What type of evidence of pointing out is admissible and what is not admissible?

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 SECTION 3

AN INDEX OF THE SOURCES (REVIEW OF LITERATURE)

1. Berg, B.L.2008.Criminal Investigation 4th edition.New York: McGraw-Hill.
2. Geldenhuys, K. 2002. A Forensic Investigation Degree. Servamus Policing Magazine,
June:95.
3. Gilbert, J.N.1986.Criminal investigation 2nd edition.Columbus,Ohio: Charles E. Merill
Publishing Co.
4. Lushbaugh, C.A & Weston, P.B.2009.Criminal Investigation: Basic Perspectives 11th
edition. New Jersey: Prentice Hall.
5. Lyman, M.D.2008.Criminal Investigation: The art and The Science 5th edition. New
Jersey: Prentice Hall.
6. Miller, M.T.2006. Forensic Science: An Introduction to scientific and investigative
techniques (crime scene investigation). From: http:/www.feinc.net/criminal-
investigation.htm.
7. Petherick, W.A, Turvey, B.E & Ferguson, C.E. 2010. Forensic Criminology
Burlington, California. Elsevier Academic press.
8. Sorgdrager, A.M, Coertzen, E.J.S, Bezuidenhout, and Nel, F. 1993. Law of criminal
procedure and evidence casebook Volum 1. Durban: Butterwoths publishers
9. Swanson, C.R, Chamelin, N.C, & Territo, L. 2003. Criminal Investigation 8th edition.
New York: MacGraw- Hill.
10.Swanson, C.R, Chamelin, N.C, Territo, L, & Taylor, R.W, 2006. Criminal
Investigation 9th edition. New York: MacGraw-Hill.
11. Wilson, D.A. 2008. Forensic Procedures for Boundary and Title Investigation New
Jesery: John Wiley & Sons.
Cases
Mfikili v the State unreported appeal case no. CC56/01
Mhlongo and Others v Rex unreported case no. 185/1992
Mkhwanazi v.The king unreported case no.42/1993
Motlou v The State un reported(479/09/ [2010] ZASCA 52
Shekwa v The King unreported appeal case no.21/1994

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Statutes
The Constitution of Swaziland Act 1 of 2005
Section 21 (e)
Swaziland criminal procedure and evidence Act 67 of 1938
Section 47 (3)
Section 48 (1)
Section 226 (1)
Section 227 (2)
South African criminal procedure Act 51 of 1977
Section 218 (2)
Forms
Judge’s rules for the Royal Swaziland police - RSP 218

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 SECTION 4

THE

RESEARCH REPORT

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CONTENTS PAGE
1.0.Acknowledgments …………………………………………………………………..10
1.1. Introduction……………………………………………………………………….....11
Definitions………………………………………………………………………………..12
2.0. Research Question One: Forensic Investigation…………………………………….13
2.1. Forensic investigation……………………………………………………….13
2.2. Criminal investigation……………………………………………………….14
2.3. Differences between forensic investigation and criminal investigation…….15
2.4.The objectives and purpose of investigation……………………………........16
Findings………………………………………………………………………….16
Recommendations…………………………………………………………….….17
3.0. Research Question Two: What is pointing out in the Law of evidence……..………17
3.1. Pointing out………………………………………………………………….17
3.2. How is pointing out linked to an admission and a confession……………....18
3.3. The role players in conducting a pointing out………………………………18
Findings……………………………………………………………...…………..19
Recommendations………………………………………………………………..19
4.0. Research Question Three: The value of applying the correct procedures in of
pointing out in the investigation of crime………………………………………………..19
4.1. The value of pointing out…………………………………………………....19
4.2. The mandate to conduct a pointing out……………………………………...20
4.3. The procedure of conducting a pointing out………………………………...21
Findings………………..……………………..………………………………….21
Recommendations………………………………………………………………..21
5.0. Research Question Four: The advantages and disadvantages of pointing out……...22
5.1. The advantages………………………………………………………………22
5.2. The disadvantages…………………………………………………………...22
5.3. admissibility and inadmissibility of pointing out……………………………24
Findings………………………………………………………………………….27
Recommendations………………………………………………………………..27
Summary………………………………………………………………………………....27

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ACKNOWLEDGEMENTS

I would like to express my sincere gratitude to the following people:

 The Commissioner of police, Mr. Issac M. Magagula, The Hhohho regional
Commander and My Station Commander Mr. D. D. Dludlu for allowing me to
pursue my studies at UNISA.
 The course lecturer and support staff from UNISA
 Inspector Elias M. Mlangeni an instructor at the Royal Swaziland Police College.
 Sikelela Shabangu, my former colleague at the University of Swaziland Diploma
in Law course.
 The librarian at the Royal Police College.
 My colleagues at Lobamba Police Station; and of course,
 My family.
To all of you, I really appreciate your contribution, encouragement and support you have
offered me in preparation and progress of this project. It had not been so easy but through
your support now I celebrate a success.

I thank you all.

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1.0 Introduction
Policing today has changed than policing in a decade ago and it can be said that it would
be changed ten years of the present. The people of today are more civilized and more
conscious on the Human rights; hence the need to police dissent. One way of policing
dissent is to with the view of upholding the Bill of Rights as enshrined in the Constitution
and thereby upholding the rule of Law. We also ought to apply the investigative
techniques in accordance with the legal guidelines and natural justice. This includes the
proper application of the correct procedures of conducting a pointing out.

Investigators also have to develop the culture of performing a postmortem on the cases
that have been completed in court because this can provide a better lecture on the
requirements of the law and the court expectation in a given problem. This would
enhance the effectiveness in the investigatory work.

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1.1. Definitions
Forensic Investigation: the application of scientific methods and techniques needed in
the reconstruction of circumstances of an illegal act or omission in court.
Criminal Investigation: a police function with objectives of the prevention of crime, the
apprehension of criminals and the recovery of stolen property.
Crime scene: It is the place in which the crime was coomitted.
Real evidence: Is an object which upon proper identification, becomes of itself evidence.
i.e. Knife, firearm, document or photograph to mention the least.
Suspect: is person who is not formally charged of any crime but is suspected of having
committed a crime under investigation.
Accused: is a person who is formally charged with a crime

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2.0. Research Question One: Forensic Investigation

2.1. Forensic Investigation

Webster’s dictionary in Wilson (2008:30), defines forensic investigation as following-up

or making research by patient inquiry and observation and examination of facts.
According to Geldenhuys (2002:48) forensic investigation is the application of scientific
methods and techniques needed in the reconstruction of circumstances of an illegal act or
omission in court. In http://www.wisegeek.com/what-is-a-forensic-investigation.htm.
Forensic investigation is defined as “The practice of lawfully establishing evidence and
facts that are to be presented in court.” It further states that the word ‘forensic’ is derived
from the Latin word forensics and means “of or before the forum”. It was used as early as
the Roman Empire when people accused of crimes were brought before a public group
and allowed to argue their case.

Wilson (2008:1) shares the same sentiments in finding that forensics is the science of the
interest to the legal system. He stated that it is derived from the Latin word ‘forensic’
meaning ‘public’, from forum which is the principal meeting place in ancient Roman
cities. It is where legal disputes were settled at the time and the modern equivalent is
court. Wilson (2008) argues that to some the word ‘forensic’ is misused and politically,
the correct term is forensic science. He says forensic science is concerned with finding
out what happened in the past usually recent past.

In support to Geldenhuys (2002), Lushbaugh and Weston (2009:4) define forensic

investigation as the application of scientific techniques in collecting and analyzing
physical evidence. In view of the definitions provided by the different authors above, one
can say forensic investigation is a scientific approach of an investigation or an inquiry to
the commission of a crime or a civil matter. It is a systematical and methodical search of
the truth in accordance with the Law. Its primary objective is to convict the guilt and
acquit the innocent. It is a common cause that natural sciences such as chemistry and
biology are used in the process of determination, i.e. the use of DNA. According to a

13
research report done by the United States Department of Justice1, “investigators should
approach the crime scene investigations as if it will be their only opportunity to preserve
and recover any physical clues.” This is forensic investigation.

2.2. Criminal Investigation

According to Gilbert (1986:4, 97) criminal investigation is an inquiry involving possible
criminal activity, based upon logic objectivity and legal guidelines. Lyneburg (2005:35)
pointed out that criminal investigation is a police function with objectives of the
prevention of crime, the apprehension of criminals and the recovery of stolen property.

Lyman (2008:4) pointed out that criminal investigation involves probing several different
fields at once. Lushbaugh and Weston (2009:4), contends that criminal investigation is
the lawful search of people and things which could help to reconstruct a criminal act or
omission and the state of mind accompanying it. In analyzing the definition of Lushbaugh
and Weston(2009), it holds the same with the other writers in the sense that when making
an inquiry into a criminal activity you are searching possible suspects, witnesses , victims
and any evidence all which could help you as an investigator to successfully investigate
the commission crime and possible apprehend suspects. Berg (2008:6) has also offered
his attempt to define criminal investigation and said; it is a scientific and systematic
series of activities designed to use various piece of information and evidence to explain
the events surrounding a crime, identify a suspect, and link that suspect to a particular
crime or series of crimes.

It is worth noting that the authors above are in agreement that criminal investigation is an
inquiry into the commission or omission of a crime. The purpose of which is to
apprehend suspect(s) and recover property where possible. The focus of criminal
investigation is on criminal activity only and not focused to civil matters. As an
investigator, I will be performing criminal investigation when I am asking a victim
robbery case if she can identify the perpetrator.
_________________________
1. U.S Department of Justice: Crime scene investigation for Law enforcement: page 1

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2.3. Differences between Forensic investigation and Criminal Investigation
The difference between forensic investigation and criminal investigation is not wide; it
could be traced within the definitions provided above. One could take notice that criminal
investigation only concerns itself with investigation of matters of criminal nature only
whereas the Forensic investigation spreads out its wings to even investigate civil matters.
For example, to investigate that a child born in wedlock is actually child born out of the
marriage (a bustard) is outside the ambit of a criminal investigation but falls under
forensic investigation.

Forensic investigation is also different to criminal investigation in that it involves the use
of natural sciences such as the chemistry and biology. In most cases if not always
investigation of murder cases involve the application of forensic science. Forensic
investigation is organized, systematical and methodical, whereas criminal investigation is
haphazard. Below is an illustration of a scientific approach that should be used for
forensic investigation by Marilyn T. Miller’s Crime Scene Investigation.

Recognition

Scene survey
Documentation collection
And preservation

Identification

Comparison testing

Individualization

Evaluation
Interpretations

Reconstruction

Reporting and presentation

Figure 1: Steps to the scientific examination of crime scene by
Marilyn T.Miller

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2.4. The Objectives and Purpose of Investigation
According to Swanson, Chamelin, Territo and Taylor (2006:50), they are four objectives
of investigation and are as follows:
 To establish that a crime was actually committed.
 To identify and apprehend the suspect(s).
 To recover stolen property.
 To assist in the prosecution of person(s) charged with crime.
The same is said by Swanson, Chamelin, and Territo (2000) and Bennett and Hess (2000)
in Petherick, Turvey and Ferguson (2010:382), by suggesting the investigator need to
consider the following basic investigative principles during the course of the
investigation:
 To determine whether a crime has been committed (e.g. is death a murder or
accidental death as a result of some sexual behavior?)
 Identify the offender.
 Locate the offender.
 Identify and show a nexus between the offender and the victim and the crime (this
can be achieved in a number of ways, such as physical evidence, admissions, etc.
Findings
1. Forensic investigation is more systematic and it uses much application of the forensic
science. Whereas the criminal investigation though logic and sometimes use the forensic
science its focus is not very much in use of forensic science
2. There is a narrow difference between the two concepts and that is; in forensic
investigation there is an in-depth of criminal investigation. The Criminal investigation is
done scientifically, in the social science perspective. The crime is investigated like you
are conducting a social research. Hypotheses are developed through the information
gathered and they would be tested through the investigation.
3. Investigators tend to think that forensic investigation is confined to the lab
investigation only i.e. testing of blood samples.

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Recommendations
It is suggested that the topic of forensic investigation and criminal investigation should
be covered in the morning lectures, it should be covered. The investigators must be
reminded of their duties and traits of a good investigator.

3.0. Research Question two: What is Pointing out in the Law of evidence

3.1. Pointing out

Section 227(2) of the criminal procedure and evidence Act 67/1938 provides that
“Evidence that any fact or thing was discovered in consequence of the pointing out of any
thing by the accused person or in consequence of information given by him maybe
admitted notwithstanding that such pointing out or information forms part of a confession
or statement which by law admissible against. This provision is in identical terms to
section 218(2) of the South African Criminal procedure Act 51 of 1977.

These sections of law defines pointing out as anything of evidential value that has been
pointed out by the accused or have been recovered in consequence of information given
by the accused. It fallows then and it is so argued that pointing out is an admission y
conduct in that physical conduct of the accused or verbal communication about the
location of the crime scene and the whereabouts of the physical or real evidence.
Swanson, Chamelin, and Territo (2003:148) demonstrate what constitutes pointing out.
They stated that, a police officer was chasing a suspect. He caught him and discovered an
empty shoulder holster with him. After hand cuffing him, the officer asked the suspect
where the gun was. The suspect nodded in the direction of some empty cartons and
stated, “The gun is over there”. The police officer retrieved the gun. He was formally
arrested. This was a pointing out.

Tebbutt JA, Mkwanazi v The King unreported case no. 42/1993, held that evidence of
pointing out is sometimes used as means of linking an accused with a crime. However, he
argued that “It is the lazy investigating officer’s most convenient stand by and capable of
easy fabrication and difficult to refute. He suggests that it should be approached with
considerable caution – especially if it is the only evidence which link the suspect with the
commission of the crime.”

Pointing out evidence form part of an informal admission and confession. An admission
is an admission made out of court by the accused to his detriment. Sorgdrager, Coetzen,
Bezuidenhout and Nel (1993:394) said it is an acknowledgement that something is true or
not true. It was pointed out in S v Sheehama 1991 (2) SA 860, that “pointing out is
essentially a communication by conduct and, as such, is a statement by the person
pointing out. If it is a relevant pointing out unaccompanied by any exculpatory
explanation by the accused, it amounts to a statement by the accused that he has
knowledge of relevant facts which prima facie operate to his disadvantage and it can thus
in an appropriate case constitute an extra – judicial admission. As such the common law,

17
confirmed by the provision of section 219A of the South African criminal procedure Act
51 of 1977, requires that it be made freely and voluntary.”

It is in my synthetic view that to say a conduct if of pointing out nature, something of real
evidence must be recovered or if it is in respect of a crime scene, there must an indication
through the reconstruction of the crime scene that describe the scene as the scene of the
crime committed. There should be some form of corroborating evidence to the effect that
it is in fact probable that the commission of crime might have took place in that place as
pointed by the suspect; otherwise the courts may regard such alleged pointing out as
fabrication.

3.2. How is Pointing - Out linked to an Admission and a Confession?

The essence of section 227(2) read with Section 226(1) of the Swaziland criminal
procedure and evidence Act 67 of 1938 as said to identical to the South Africa criminal
procedure Act 51/1977, presents that pointing out is by and large part of an admission
and a confession. Pointing out like admissions and confessions is the conduct or
statement made by the suspect/accused to his detriment. When the suspect/accused makes
a pointing out of real evidence, he is by way, making an acknowledgement of his
knowledge of the crime. It is also a common course that a confession before magistrate
will follow a pointing out.

3.3. The Role players in Conducting a Pointing Out

It is evident that pointing out is done by the suspect/accused by showing the scene of
crime or some physical evidence. This denotes that there are some other personnel
involved in the process. I.e. To whom he will show his pointing out. The following
people therefore are role players in the process of pointing out crime scene or real
evidence:
o Peace officer (This includes any magistrate or justice of peace, sheriff, police
officer or any person carrying the duties of a police officer). However it usually
the police officer. He must not have the first hand information of the crime,
meaning he should not be the investigator of the case. This principle was followed
in the case Shekwa v The King unreported appeal case 21/1994. The appellants
were charged with the following accounts in total, house breaking and theft,
robbery, and escaping in a lawful custody. The investigating officer in this matter
was a detective inspector who made the arrest of the appellants. He handed the
accused to a detective sergeant; noteworthy is that he is of junior rank of the
investigator of the case. The sergeant interviewed them. It is found in the facts of
the case that a pointing was then conducted by this sergeant and as result some
items including a TV set and a Hi Fi were recovered. It is regrettable though that
proper procedures of conducting the pointing out were not followed as the appeal
court held that the pointing out was not free and voluntary in that the appellant
were not cautioned and thus the appeal was upheld.

18
 o The suspect or accused. This is the controlling agent of the whole process. He is
the one who is supposed to lead the all the other role players in the process to
scene of crime or where the physical evidence has been harbored.
o Legal representative of the suspect/accused. This conforms to the requirements of
The Constitution of the Swaziland Act 1of 2005, Section 21 (2)(e) where it states
that “a person who is charged with a criminal offence shall be permitted to be
present a defense before the court either directly or through a legal representative
chosen by that person.” It follows then that if the suspect so wishes his legal
representative will also be present when the pointing out is conducted. I suppose
and so argue that even if he is not legally represented he must have a witness of
his choose.
o An interpreter as the case may warrant. If the suspect does not understand the
language used by reason of tribe or race, an official interpreter must be engaged to
ensure that the suspect understands every step of the process.
o The investigating officer. It has been said that he is not supposed to be present in
the pointing out; his role is to find the officer who will conduct the pointing out.
o Personnel from the scenes of crime officers (SOCO) to capture the proceedings,
by taking pictures or video.

Findings
1. The courts are reluctant in accepting evidence of pointing out more so if it is the only
evidence that connect the suspect/accused with the commission of the crime.
2. Pointing out as tool of investigation tend to be abused by some lazy investigators who
are so determined to secure a confession.

Recommendations
The courts should accept the evidence of pointing out without caution, even if it is the
only evidence connecting the suspect and the commission of the crime because it has the
privilege of a trial within a trial where it will be able to access if the correct procedure of
conducting a pointing out was followed as well as if it satisfies all the requirements of an
admissible pointing out. All the questions which justify their caution to such pointing out
should be answered in the trial within a trial. In fact it is for such purpose.

4.0. Research Question Three: The value of applying the correct procedures of
pointing out in the investigation of crime.

4.1. The value of pointing out

It has been said that the purpose and objectives of criminal investigation is to establish if
crime was committed; to identify and apprehend suspects; recover stolen property; and to
assist in the prosecution of such suspect. The investigator is not limited to tools and
techniques to apply to achieve these objectives, as long as they fall within the ambit of
accepted legal guidelines of a given jurisdiction.

Conducting a pointing out is one weapon at the disposal of the investigator to help and
add value his case under investigation. When it has been properly conducted, it is

19
arguably that the investigator has a reason to take a sigh of breath. He is at this stage not
far from securing a conviction.

The use of pointing out technique ensures that right people are convicted for their wrong
acts. This is in line with the presumption that a person cannot choose to incriminate
himself with statement made by him against himself by acknowledging their truthfulness.
It follows and so argued that a conviction based on pointing out coupled with other
corroborating evidence, is less subject to criticism since the accused has personally and
independently acknowledged that he has committed such offense. The use of pointing out
also helps in great detail in the effectiveness of the criminal justice system. The judges
and magistrates are often faced with big work load because of the ever increasing of
crime rate. It is thought therefore that the use of pointing out will shortens the
investigation process and when the pointing out is not disputed in court, the court
proceedings may be shortened than it would take. For instance there is no need for the
accused to cross-examine himself and the court’s time is served.

4.2. The Mandate to Conduct a Pointing Out

In the Swaziland jurisdiction it is not clear as to who has got the mandate to conduct a
pointing out. However, in light of Section 47(3) of the criminal procedure Act 67/1938
(Swaziland) which states that “Any policeman of or above the rank of assistant
superintendent, and any policeman below that rank having a special written authority
from a magistrate or a policeman of or above the rank the rank of assistant
superintendent, may enter and inspect, without warrant, any drinking shop, gambling
house or other place of resort of loose and disorderly persons.” Read with Section 48(1)
of the same Act, which provides that “If a justice or any policeman of the rank of sub-
inspector, or above, has reason to suspect that any stolen stock or produce is upon any
premises or at any place, or that substance has been placed upon any premises or at any
place or is in the custody or possession of any person upon any premises or at any place,
in contravention of any law relating to intoxicating liquor or habit-forming drugs, he may
at any time enter upon and search that premises or place and search any person thereupon
or threat, or grant written authority to any person applying thereof to make such entry and
search.”

It can be argued that a pointing out has to be conducted by a police officer of the rank of
sub-inspector and above. The police sergeant and constables can only through
authorization by an officer of the above rank of sergeant conduct a pointing out.
Noteworthy though, the Shekwa case cited above, the investigating officer an inspector,
handed the docket and the suspects to a police sergeant who interviewed them and
conducted a pointing out. It may be said that he was giving the sergeant an authority to
conduct a pointing out. Though it was not clear if was ever put writing.

It is also considered that these sections of law are in respect of search with and without a
warrant. However, the argument is based on the fact that search and pointing out are in
my view of equal significance in as far as the rights of the suspect/accused are concerned.
Both put the liberty of the suspect at disadvantage.

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4.3. The Procedure of conducting a pointing out.

In the discussion above it has been stated that pointing out is part of an admission and a
confession. I have as well, outlaid the role players in the pointing out of real evidence and
the crime scene. It follows then that the requirements for admissibility of admissions and
confessions coupled with the role players in the pointing process, are determinants of the
correct procedure to be followed during a pointing out. Pointing out should be conducted
in the following procedure.

• It has to be conducted during the day.

• The pointing out should be free and voluntary without undue influence. With due
consideration of Section 226 (1) of the Swaziland criminal procedure Act 67 of
1938.
• The suspect should be cautioned against the judges’ rules. In the case of Mhlongo
and Others v Rex unreported case no. 185/1992, a police officer in the rank of
sub-inspector, regrettably failed to give proper warning of the judge’s rules before
conducting a pointing out and his evidence was to that extent excluded.
• The suspect’s right to legal representation must the communicated to him.
• The person conducting the pointing out should be someone not involved in the
investigation of the offense.
• The pointing out must be recorded or pictures must be taken.
• A confession before magistrate must follow the pointing out.
• The pointing out should be as a result of free will not of torture or degrading
treatment as stated in section 18 of the constitution of Swaziland.

Findings:
1. Investigators do take seriously the requirement of warning suspect against the judge’s
rules. They think that would be easy to contest it in court to say that the suspect was duly
warned.
2. The pointing out process is in our jurisdiction highly compromised. They are no
guidelines as to how pointings-out should be conducted.

Recommendations
It is recommended that lectures should be conducted on the procedures of conducting a
pointing out. The guidelines must be written down for every investigator to acquaint
himself or herself the correct procedures of conducting a pointing out. It should be made
clear as well as to who is mandated to conduct a pointing out as it is the case with
conducting an identification parade.

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5.0. The advantages and disadvantages of pointing out

5.1. The advantages

Unless it is disputed in court, pointing out is in most cases accepted in court because it is
presumed that a person cannot choose to incriminate himself when he is in fact innocent
of the offence. Even if the pointing out is disputed in court the investigator still have one
hope of the trial within trial which is normal engaged to determine if the pointing was
voluntary and free from an undue influence.

Another advantage is that it is conducted by a law enforcement agent, a person who

shares similar goal and objective of the investigation and purpose of the pointing out. Not
to put the suspect to unnecessary disadvantage or prejudice but he will conduct it
diligently and with due cautiousness. The pointing out is conducted in presence of other
people except the officer conducting it and suspect. This people will collaborate each
other in the event it is so required in the trial within a trial. Also the documentation
including video and pictures of the process of pointing out will collaborate the evidence
that pointing was conducted.

5.2. The disadvantages of pointing out

The courts are regrettable cautions in admitting the evidence of pointing out especial if it
is the only evidence that links the accused with the commission of the crime.

It is unfortunate, if not regrettable that the courts seem to approach the evidence of
pointing out with such caution where it is the only evidence which links the accused to
the commission of the offence. This was a demonstration in the unreported court of
appeal case of Mkhwanazi v.The king 42/1993 where in the dictum of Appeal Judge
Tebbutt, it was held that “evidence of pointing out as means of linking an accused with
crime should, in my view be approached with considerable caution especially when it the
only evidence which links the accused with the commission of a crime …it is capable of
easy fabrication and difficult to refuted.”

Such cautions are in my view unnecessary because it has been agreed as a general rule
that evidence of pointing out is admitted because of the presumption of the law that a
person cannot choose to give statement or conduct against himself or about himself
knowing very well that such is not true about himself. I argue that it is appropriate for the
court to concentrate on the procedure of conducting a pointing out to see to it that it must
be followed as well that all the requirements for admissibility of pointing out are
observed. I support the presumption of the law and in my view should reign. Since it is a
rebut table presumption the trial within a trial can help to prove it or disprove it and to
determine if proper procedure of conducting pointing out were followed or not; if all the
requirements were observed.

Another disadvantage of pointing out evidence is that it is dependant on the cooperation

of the accused. The accused has to cooperate and be proactive in the whole process

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because the investigator is controlled by him. It can be time consuming if the accused
will try some tricks like not pointing the exact seen of the crime when he knows that he
would eventually show the investigator the actual crime scene or the physical evidence.

It is also natural that some people are generally shy to the police. Such people when
interrogated are more prone of giving false information because they are scared of the
police. At one instance, for example, during a night shift which begins at 2200hrs to
00hrs, while I was at work we receive a report of a theft of a cell phone. This was a report
from a warder Sergeant of His Majesty’s Correctional Services in that a cell phone of his
sister in law who had visited them in their matrimonial home has been stolen at home.

According to his words the cell phone was stolen by his biological son, a form two
student at the nearby High School. We took the young innocent looking boy for
questioning. Surprisingly, he was giving positive information to what we had regarded as
connection to crime but was later transpired that he was not connected to the theft. We
had information that during the day he was seen having two cell phones in his possession.
One was similar or to say was described as the one which has been stolen. We were
informed that he said he was taking it to someone known for purpose of selling it. When
we interrogate him he first denied having stolen the cell phone and said he was during the
day in possession of (one) his cell phones only. The person to whom he took the cell
phones said the suspect came with two cell phone; one described positive to the stolen
one. He said the suspect asked him to look for a buyer.

The suspect latter admitted having stolen the cell phone and said he indeed took it that
person. First he said they sold it and he bought some sneakers which he hid near the river
bank below his homestead, we took him there to point out the alleged sneakers and
nothing was recovered. He changed his mind to say that he gave the cell phone to the
maid, when we got there the maid seemed to have no knowledge. This continued until
dawn. At last he said the two cell phones were not his but for someone else whom we did
not find in his homestead. However, his mother said she remembers seeing the suspect in
the morning hours of the day and was with his son. She said that she knows that his son
has two cell phones which he was selling and that he may have given the suspect to sell
on his behalf.

When I heard this, I began to think otherwise. At first I had not asked the suspect about
his family’s background; neither my colleague did. I then began to conduct an interview
about his family background and relation with family members. A lot was said and he
even showed us scares of beatings he normally receive at home. The words of his father
flashed back to my mind “you have to grill him, he is hard with facts”. These were the
words he gave to when we took the boy for questioning. I began to have many questions
and suspicion about the whole thing. The interview turned to counseling. We tried our
best to offer counseling to this boy

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5.3 .Admissibility and inadmissibility of pointing out

The foundation of admissibility and inadmissibility of pointing out may be traced back to
the case of R v Samhando 1943 AD 603 and that of S v Sheehama 1991 (2) SA 860(A).
Two cases, however, presents dissenting views as will be discussed below in detail.

In R v Samhando, the accused was convicted on a murder charge. It was testified that the
accused had shown the investigators where he had hidden the blood-stained clothing,
blanket and axe. The clothing was hidden in an orange tree and the axe a yard away from
the tree. This was pointing out. It is found in the judgment that the police officers
investigating the murder case had used force and as a result the accused admitted to
having killed the deceased and offered pointing out. Tindall JA and Centlivres JA
concurred in deciding that ‘… the fact that accused pointed out the clothing is evidence
from which can be inferred that the accused knew where the clothes were to be found,
and in the absence of any explanation by him it is very strong evidence of his complicity
in the crime. ‘They held that the pointing out was admissible.

The ratio decindi of this case evidence of pointing out is admissible even if no concrete
facts were discovered in consequence it only suffice if it is discovered as a result of the
pointing out that the accused had knowledge of some fact relevant to his guilt. This
principle was applied in R v Nhleko 1960 (4) SA 712 (A) where the appellant was
charged with murder, he had pointed out where he left the body of the deceased near
water infested with crocodiles, which could easily remove it. The body was not found.
The court found that the evidence of pointing out could not sustain because there was no
proof that the accused had relevant knowledge. Hence there was no foundation of its
inception. It was in admissible. Noteworthy, though is that these decisions were made
before the birth of Section 219A of the South African criminal procedure Act 51 of 1977.

In S v Sheehama 1991 (2) SA 860 (A) Grasskopf JA, held a considerable dissenting
view. In this case the appellant had pointed out things in two occasions to a police officer.
He was cautioned against the judge’s rules but it appeared that the interpreter interpreted
such cautions to mean that the appellant is being ordered to point every scene they would
require him. It was held that the pointing out was arbitrary and amounted to coercion and
was as a result not voluntary. The judge concluded that the evidence of the appellant’s
pointing out was inadmissible since the pointing out had not been made freely and
voluntarily.

The decision of the appeal judge in this case seemed to conform to the general rule that
statements by an accused must be free and voluntary; in contrast with the judgment in the
Samhando case which seemed to rely on the English law rule which provided an
exception to the general rule in that it allow admission of statements made involuntarily
as long as it can be proved that it is relevant and something was as a result of the
statement recovered. They argue that such guarantees truth and reliability.

Section 218 (2) of the criminal procedure Act 51 of 1977 which provides that:

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“ Evidence may be admissible in the criminal proceedings that anything was pointed out
by the accused appearing at such proceedings or that any fact or thing was discovered I
consequence of information given by such accused, notwithstanding that such pointing
out or information forms part of a confession or statement which by law is not admissible
in evidence against such accused at such proceedings” seemed to support the decision
held in Samhando case, however it presents a confusion when considering Section 35 (1)
(a); (b)and (c) of the South African Constitution Act 108 of 1996 which provides that;
Every person who is arrested for allegedly committing an offense has a right –
(a) To remain silent
(b) To be informed promptly –
(i) of the right to remain silent
(ii) of the consequences of not remaining silent;
(c) Not to be compelled to make any confession or admission that could be used
in evidence against him.
Evidently, the sheehama case is in conformity to he provisions of this constitution.
Coming to the confusion presented by the two legislations, the answer is as follows:
1. The constitution of South Africa is the supreme law of South Africa and any law
which is inconsistent with it shall to the extent of its consistency be void.
2. The case of Motlou v The State (479/09/ [2010] ZASCA 52 @ 9 paragraph [22],
Bosielo JA in answering this question held that “The answer to this somewhat
intractable legal conundrum lies in Section 35 (5) of the South African
Constitution which provides ‘Evidence obtained in a manner that violets 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’.”

In this case of Matlou, the appellants were charged with murder and robbery with
aggravating circumstances. Their appeal was in respect of admittance of the evidence of
the pointings-out regarding the deceased’s body and the firearm which was used,
notwithstanding the fact that they formed part of confessions and admissions which had
been found to be inadmissible because of the assault meted on the first appellant. The
court held that the trial court erred in accepting the evidence of pointing because it
formed part of the confession and admission he did not accept since when it was made
before the magistrate, the accused had visible injuries which were still fresh suggesting
that he may have been assaulted. Held further that there was no evidence that the accused
was advised to remain silent, or not to make any statement that might incriminate him
and what the purpose and legal consequences of not remaining silent or making
pointings-out are. The court held that all was done in contravening Section 35(1) (a) (b)
(c) and (5) of the constitution. The evidence of the pointings-out was excluded.

In Mfikili v the State unreported appeal case no. CC56/01, the appellant was charged
with robbery with aggravating circumstance. The appellant had been convicted of the
four counts of robbery with aggravating circumstances. In an appeal against conviction, it
was held in respect of the first two counts that the State had failed to prove the identity of
the appellant beyond reasonable doubt, the dock identification of the appellant having
been compromised by the police bringing the witnesses and the accused to court together

25
in the same vehicle. His appeal succeeded in this respect. It was held further that
evidence of a pointing out that connected him to the last two counts was admissible as his
rights had been sufficiently explained to him. His appeal in this respect was dismissed.

For purposes of this discussion, my discussion will focused on the judgment pertaining
count three and four which relates to pointing out. The judge have accepted evidence of
pointing out which was by law obtained through unconstitutional means. A brief
overview of how this evidence was obtained is demonstrated below:

The investigating officer in this matter constable Tile had soon after the arrest and after
the appellant had agreed to point out some items; gave the appellant the usual warning of
an arrested person’s rights in terms of the Constitution, he did not tell the appellant
specifically of his right to decline to point out anything if he did not wish to. When he
was asked in cross examination as to why he had not done so, he said that he saw no
reason to do so. He obviously took the view that the warning he had given was sufficient.
He told him however, the pointing out had to be done freely and voluntarily and that any
pointings out that he made could be used in evidence against him. Noteworthy, is that the
court of first instance did not hold a trial within a trial to determine the admissibility of
the pointing out.

The reason for his judgment, Plasket J, held that the omission of the specific warning that
the appellant has a right not to point out any thing did not render the evidence
inadmissible. He made reference to the case of S v Nombewu 1996 (2) SACR 396 (E) the
accused in this matter had pointed out car which he had been accused of stealing. The
police had warned him that he was not obliged to say anything in answer to the charge,
and that if he did so it could be used against him in evidence. The court held that an
appellant’s trial had not been unfair when, having been warned in terms of the Judges’
Rules but, not having been warned that admissions by conduct could be used against him.
Held further that to say the police did not give an explanation to the appellant that his
conduct amount to a statement, and that evidence of such conduct can also be used
against him in the same way as evidence of an oral or written statement does not mean
that the warning that they gave did not cover this situation, and that he has been unfairly
treated as a result. Any accused person in the position of the appellant would readily
understand that if he disclosed information to the police it could be used against him
whether or not the accused’s action was accompanied by an oral or written explanation.
The appellant could not have thought otherwise.

Plasket J in his on words put like this, “In my view, the failure on the part of Tile to give
the appellant a specific warning that he did not have to point out anything if he did not
want to, does not render the evidence of the pointing out inadmissible. The appellant was
warned of his right to refrain from making a statement and that if he did make a statement
it could be used against him. He was told that any pointing out had to be free and
voluntary and that any pointed out could be used against him. He must have understood
that he had the right not to incriminate himself by pointing out objects that might link him
to the robbery in question”.

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He further held that Section 35(5) of the constitution Act 108 of 1996 gives the court
discretion to admit evidence of this nature if it is not unfair and detrimental to the
administration justice. He held that admission of the evidence would not render the
appellant’s trial unfair or detrimental to the administration of justice. Exclusion of the
evidence would however tend to bring the administration of justice into disrepute. He
then exercised his discretion in favor of the admission of the evidence of the pointing out,
even though it was, unconstitutionally obtained.

In Mhlongo and Others v Rex unreported court of Appeal case 185 of 1992, Broede JA,
held that the evidence of pointing out was inadmissible in that it formed part of an
inadmissible confession which was mad to a police officer not to a magistrate and was
not repeated before the magistrate. The court held that it was not proved that they were
made freely and voluntarily. Held further that; the warning given by the police officer
before the interrogation was hopelessly inadequate. It was as follows: “…if there was
anything he knew about that (the killing and mutilation of the deceased) he should
disclose it. And that if … he was not obliged if he did not want to say anything about it.”
The judge this as well should have rendered the confession inadmissible. It was held
therefore that the evidence of pointing out was inadmissible.

Findings
1.Again the issue of improper issuance of warnings against the judge’s rule had come to
the fore which makes is a course for concern to our investigators not to be able caution
the accused persons.
2. Investigators tend to use violence in the process of investigations where as such
violence had in a number of cases detrimental to their case.

Recommendations
It is recommended that the judge’s rule form RSP 218 which we should be upgraded to
include pointings-out. It is suggested that it may be even presentable it may look like the
‘Miranda Warning Card’ used in the United States of America. Lectures about it should
then follow.

Summary

In this research has provided an in-depth discussion of pointed out. Pointing is the same
as admission. Hence the admissibility requirements in admissions as well apply in
pointing out. It has emerged in this discussion that pointing out is done after an arrest. It
follows that the rights of the suspect must be born in mind of the investigator in every
step of the process of pointing out. Pointing out like it has been said that it is the same as
admission has to be conducted freely and voluntary with undue influence by the
investigator or otherwise. It is argued that if the recommendations can be instituted, it
could also see a rise in conviction rates (guilty findings of suspects/accused in court) of,
especially, serious crimes committed.

27
The management of the Royal Swaziland Police Service should focus on training all its
officers. Members of the RSP should be informed and trained, from the rank of constable
upwards, in what a pointing out is and how it is conducted. A constable, sergeant, and an
inspector or any rank can conduct a pointing out, take photographs (without relying to the
Scenes of crime officers – SOCO), when pointing outs are conducted.

28
The Reference List
Berg, B.L.2008.Criminal Investigation 4th edition.New York: McGraw-Hill.
Geldenhuys, K. 2002. A Forensic Investigation Degree. Servamus Policing Magazine,
June:95.
Gilbert, J.N.1986.Criminal investigation 2nd edition.Columbus,Ohio: Charles E. Merill
Publishing Co.
Lushbaugh, C.A & Weston, P.B.2009.Criminal Investigation: Basic Perspectives 11th
edition. New Jersey: Prentice Hall.
Lyman, M.D.2008.Criminal Investigation: The art and The Science 5th edition. New
Jersey: Prentice Hall.
Miller, M.T.2006. Forensic Science: An Introduction to scientific and investigative
techniques (crime scene investigation). From: http:/www.feinc.net/criminal-
investigation.htm.
Petherick, W.A, Turvey, B.E & Ferguson, C.E. 2010. Forensic Criminology Burlington,
California. Elsevier Academic press.
Sorgdrager, A.M, Coertzen, E.J.S, Bezuidenhout, and Nel, F. 1993. Law of criminal
procedure and evidence casebook Volum 1. Durban: Butterwoths publishers
Swanson, C.R, Chamelin, N.C, & Territo, L. 2003. Criminal Investigation 8th edition.
New York: MacGraw- Hill.
Swanson, C.R, Chamelin, N.C, Territo, L, & Taylor, R.W, 2006. Criminal Investigation
9th edition. New York: MacGraw-Hill.
Wilson, D.A. 2008. Forensic Procedures for Boundary and Title Investigation New
Jesery: John Wiley & Sons.

Cases
Mfikili v the State unreported appeal case no. CC56/01
Mhlongo and Others v Rex unreported case no. 185/1992
Mkhwanazi v.The king unreported case no.42/1993
Motlou v The State un reported(479/09/ [2010] ZASCA 52
Shekwa v The King unreported appeal case no.21/1994

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Statutes
The Constitution of Swaziland Act 1 of 2005
Section 21 (e)
Swaziland criminal procedure and evidence Act 67 of 1938
Section 47 (3)
Section 48 (1)
Section 226 (1)
Section 227 (2)
South African criminal procedure Act 51 of 1977
Section 218 (2)
Forms
Judge’s rules for the Royal Swaziland police - RSP 218

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 SECTION 5
Declaration of Authenticity
Self-Assessment checklist: Assignment 2
Marked Assignment 1

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