The cautionary approach is effectively summed up in the case of S v Mthetwa where the presiding officer noted that the honesty of the identifying witness should be considered in isolation. The identification of a witness depends on the lighting, visibility, eyesight, proximity of the witness, the extent of his prior knowledge of the accused etc. The list mentioned is by no means exhaustive and each factor cannot be weighed in isolation but must be considered in light of the totality of the evidence available.
The power to hold parades is specifically vested in SAPS officials. Section 37(1)(b) of the Criminal Procedure Act 51 of 1977 provides that any SAPS official may make any person alleged to have been involved in a crime available, or cause such person to be made available, for identification in such condition, position or apparel as the SAPS official may determine. The Act and section provide the only legislative basis for the conducting of a parade. A suspect who has been identified to take part in a parade may not refuse such participation.
Certain rules have been developed to ensure the fairness of an identification parade. These rules are by no means requirements for the admissibility of conducted identification parades, it merely serves as guidelines to ensure the enhancing and reinforcing of evidential cogency of the parade.
Rule 1 is that the proceedings of the parade should, at the time of the parade, be recorded by the SAPS official officiating the parade. The record should preferably be kept on a Form SAP 329. This rule is of vital importance in ensuring that an accurate account of the event can later be furnished to the court, as human memory cannot retain all the detailed information which would be required at a subsequent trial. Rule 2 is that the SAPS official in charge of the parade should not be the investigating officer in the same case. This Rule minimises the possibility of collusion between the investigating officer and the witness pointing out the suspect in the identification parade.
Rule 3 is that suspects participating in the identification parade should be informed of the purpose of the parade and the allegation against them and should be given an opportunity to obtain a legal representative that will be present at the parade. Rule 5 stipulates that a parade should consist of at least eight persons, while a greater number of participants is more desirable. The greater the number of participants in the parade, the greater the evidentiary value of the parade. This affords greater protection to the innocent. Rule 8 states that suspects and individuals in the parade should be of the same build, height, age, appearance and should have more or less the same occupation and be similarly dressed. Rule 9 states that it is preferable that at least one photograph should be taken of all the persons at the parade, depicting them as they appeared in the line-up and standing next to each other.
Rule 10 provides that the official in charge of the parade should inform the suspect that he/she may initially take up any position and change his/her position before any other identifying witness is called. This rule also serves to guard against collusion between witnesses. Rule 11 provides that a participating suspect should be asked whether he/she has any requests to make, upon which Rule 12 then follows, providing that the official should accede to any reasonable requests. Rule 13 states that the witnesses should be kept separate and not be allowed to discuss the case prior to the identification while Rule 14 seeks to prevent witnesses from seeing any member of the parade before they are brought in for purposes of identification. Rule 17 provides that the official in charge should inform each identifying witness that the person whom the witness saw may or may not be on the parade and if he/she is unable to provide positive identification, he/she should refrain from doing so. Rule 18 states that the officiating official should request the witnesses to identify suspects by touching their shoulders and that such acts shall be photographed.
The above-mentioned Rules should not be considered as a rigid set of requirements but rather a guideline to ensure that fairness prevails in all conducted parades. Non-compliance with these Rules will not affect the admissibility of the parade but rather have a bearing on how much weight the parade and the witness’s identification carries.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)