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[2018] ZAWCHC 97
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S v Herrings (SS77/2017) [2018] ZAWCHC 97 (16 August 2018)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case No: SS
77/2017
In
the matter between
THE
STATE
and
JAPHTA
HERRINGS
Coram:
Rogers J
Heard
:
6-8 and 13-15 August 2018
Delivered:
16 August 2018
ORDER
The
judgment of the court is as follows:
(a) On
count 1, the accused is convicted of murder, such murder falling, for
purposes of sentencing, under Part II of Schedule
2 of Act 105 of
1997.
(b) On
count 2, the accused is convicted of the theft of the items mentioned
in the indictment.
JUDGMENT
ON CONVICTION
Rogers
J:
Introduction
[1]
The accused is charged with murdering Ms [X] in her home on Thursday
3 March 2016 and of robbing her of various electronic goods
and a
Toyota Corolla vehicle. He pleaded not guilty to both charges,
offering no plea explanation.
[2]
There was a trial within a trial (TWT) at the conclusion of which I
ruled two documents admissible as confessions. The first
was a
handwritten document prepared by the accused which he handed to the
investigating officer, W/O Arendse. The second, arising
from the
first, was a formal confession made to a justice, Col Brits. The
accused testified in the TWT. He later testified in his
defence, his
counsel asking for the evidence he gave in the TWT to stand as his
evidence in chief.
[3]
Since the accused may wish to challenge my ruling admitting the
confessions, I shall first deal with the evidence without reference
to the confessions.
Evidence
at end of State’s case, excluding confessions
[4]
The deceased died from manual strangulation and from suffocation
caused by two plastic bags tied over her head. Her body was
placed in
a domestic freezer chest in her home.
[5]
Defence counsel’s cross-examination of the deceased’s
husband, Mr [X], and of the deceased’s friend, Ms [HS],
neither
of whom was a TWT witness, was to the effect that the accused had
been having an affair with the deceased. The accused
formally
admitted that the deceased gave him a handwritten letter (exhibit
“G”) which he in turn gave to the police
after his
arrest. The letter confirms a relationship of some intimacy. The
deceased said in this letter that the relationship had
been
pleasurable but that it was better that they now put an end to it as
things could turn ugly. From Mr [X’s] evidence
it seems
probable that this affair was able to develop because he had been
posted to Durban during 2015 and was undergoing training
in the Cape
Peninsula during the first three months of 2016. He wrote his last
examination on 3 March 2016, so would have been
due to return to the
couple’s home in Saldanha Bay.
[6]
Defence counsel’s cross-examination of Mr [X] placed his client
in the deceased’s home at the time of the murder.
It was put to
Mr [X] that a holdall containing firearms was stored in the ceiling
of [the Xs] home; that while the accused was
visiting the deceased on
the morning of 3 March, three men with balaclavas entered the home;
that they retrieved the holdall from
the ceiling; that they were
responsible for the deceased’s death; and that they forced the
accused to place her body in the
freezer. Mr [X] said he did not
believe this nonsense. The only thing in the ceiling was the geyser;
he had been up there several
years before when the geyser was giving
trouble.
[7]
I should add that the accused’s fingerprints were found on a
glass in the kitchen in the deceased’s house. This
appears from
the accused’s formal admissions as read with the report by the
affidavit by the SAPS fingerprint expert. However,
I do not attach
any weight to this, because his fingerprints may have got onto the
glass on an earlier occasion.
[8]
From the evidence of Ms [HS] and Cecilia Arendse, it is clear that
the deceased must have been killed before 08:30 on the morning
of
Thursday 3 March 2016. The white Toyota Corolla, which was usually
parked under a tree outside the deceased’s house, was
not in
its usual place when Ms [HS] arrived there at around 08:30. While
walking towards the house, she had seen a white Toyota
Corolla
driving away at speed but the car turned into another road before
reaching her. She was unable to identify the driver.
[9]
Because the deceased had been due to meet Ms [HS] at 08:30 so that
they could take a taxi to Vredenberg, she was puzzled to
see the
deceased’s car racing away from the home. On arriving at the
house, she was surprised to find the front door unlocked.
She phoned
the deceased on the latter’s mobile device but the call was not
answered. Ms [HS] sent a WhatsApp message, to
which she received a
reply, purportedly from the deceased (who by now was actually dead),
that her husband wanted to divorce her.
In further WhatsApp
exchanges, the deceased purportedly stated that she was going to see
her attorney and wanted to do so alone
but eventually she agreed that
she would meet Ms [HS] in town at butchery called Cartol. When Ms
[HS] arrived at this place, the
deceased was nowhere to be seen. Ms
[HS] went home and sent her a further WhatsApp query, to which the
deceased purportedly replied,
“
God, ek gaan
somme weg
”.
[10]
At some stage during the morning Ms [HS] phoned the accused to ask if
he knew anything about the deceased’s whereabouts.
He replied
that he had seen her that morning chatting with a servant. She
testified that the accused later phoned her to say that
if she heard
anything about the deceased she should let him know.
[11]
Ms [HS] knew that the deceased collected her youngest daughter, [CD],
from school at 12:45. She thus went to the place where
the deceased
normally met [CD], hoping to find the deceased there. When the
deceased did not arrive, Ms [HS] went into the school
and found [CD]
still in her classroom. She took [CD] home to her own house.
[12]
In the meanwhile, the accused drove in the deceased’s car to
Robertson, where he stopped at the home of his uncle, Mr
Petrus
Davids. Mr Davids found him there at around 17:45. He asked the
accused whose car it was. The accused replied that it belonged
to a
friend. The accused asked Mr Davids whether he would lend him his car
as he needed to go to Riversdale. Mr Davids replied
that his car was
not in fit state for a long trip. In the Toyota Corolla was a
flatscreen TV, a laptop and a tablet. It is common
cause that these
items were removed from the deceased’s home on 3 March 2016.
[13]
The accused spent the Thursday evening at the Davids’ home. He
also spent the day there on the Friday. Since the accused
wished to
sell the laptop, and since Mr Davids’ niece was apparently
willing to buy it, they drove to her house where she
paid the accused
R800 and took the laptop. (The police later recovered it from her.)
[14]
On the Friday evening the accused received a telephone call at around
21:00. After taking the call, he reported to Mr Davids
that he needed
to travel straightaway to Riversdale. He went off in the deceased’s
Toyota Corolla, taking with him the flatscreen
TV and tablet (which
had been stored in the Davids’ home overnight for safety). He
returned to the Davids’ home early
the next morning (Saturday).
He still had the tablet but the TV was gone. He accompanied the
Davids into town where he bought a
cover and SIM card for the tablet.
They left him at the taxi rank where he was to catch a taxi back to
Vredenberg. He asked to
leave the Toyota Corolla at their house for a
week, saying he would fetch it the next Friday.
[15]
On the afternoon of Monday 7 March the Davids read in
Die Son
about the deceased’s murder and the theft of her Toyota
Corolla and electronic goods. Mr Davids had already become suspicious
and had looked inside the car (the keys of which the accused had left
with them). He had come across credit card slips and other
documents
containing the surname “[X]” and an address in [DM]
Street, Saldanha Bay (the [Xs] lived at [… DM]
Street). When
he read the report in
Die Son
, he was convinced that the
accused was the perpetrator. He immediately phoned the accused,
confronting him with the words, ‘
Jy het
wragtig die vrou vrek gemaak. Dit staan in
Die Son
’.
The accused abruptly terminated the call without responding.
[16]
Mr Davids reported the matter to the police in Robertson and took the
Toyota Corolla to them. He made two further calls to
the accused.
During the first call he asked the accused what his plan was with the
car. The accused replied that he should remove
the license plates and
that he was on his way to fetch it. In a second call, made shortly
after the first, the accused said that
a friend was on his way to
collect the car. In fact, nobody arrived in Robertson for the car.
[17]
At around 05:00 the following morning (Tuesday 8 March), the accused
was arrested at his wife’s home at 59 Fink Street,
Vredenberg.
Although they were still married, they were separated and divorce
proceedings were pending. The accused handed the
deceased’s
tablet to the police at the time of his arrest. The flatscreen TV and
a DVD player were recovered from the SAPS
in Riversdale, and the
Toyota Corolla from Robertson.
[18]
The version put by defence counsel to various State witnesses (not
during the TWT) regarding the accused’s possession
of the car
and electronic goods was this. The deceased was planning a trip for
some children to Ratanga Junction. She approached
the accused because
he was a driver at the Saldanha naval base’s transport depot.
Money had to be raised to fund the trip.
The deceased gave him the
electronic goods to sell for this purpose, and lent him the car.
[19]
When this version was put to Ms [HS], she confirmed that a trip was
being planned to Ratanga Junction. This was to celebrate
the [Xs’]
oldest daughter’s birthday. The people who were to be part of
the trip were the [Xs’] three children
and Ms [HS]’s
three children, the children – particularly the oldest
daughters – being good friends. Although
the accused’s
name was mentioned as a person who might be approached to assist with
transport, she knew nothing of a plan
by the deceased to raise money
by selling household goods. She stated in evidence that she did not
believe the accused’s
version. Ms [HS] testified that the
deceased told her that the cost of the trip (ie entry to Ratanga
Junction and entertainment
there) would be R100 per child. Ms [HS]
had told the deceased that she would pay for her own children. The
only issue was transport.
The deceased and her children would be able
to use official transport which shuttled daily between Saldanha Bay
and Cape Town.
The transport issue related only to Ms [HS]’s
children.
[20]
When the accused’s version was put to Mr [X], he likewise knew
nothing of a plan by the deceased to sell electronic goods
to raise
money for the trip. He said that he got paid on the 15
th
of each month. In March 2016 he was earning around R8000 per month
after deductions. His daughter’s birthday was on 17 March.
He
would have been able to pay whatever was needed for the trip. As to
the sale of the electronic goods, he pointed out that all
of them
apart from the tablet belonged to him, as did the Toyota Corolla. His
wife would never have lent the car to a third party,
certainly not
without telling him. In regard to the tablet, he testified that his
wife used it as her mobile telephone and as a
camera. She had no
other mobile telephone and the home did not have a landline.
[21]
Disregarding the confessions, this was the evidence before the court
when the State closed its case. The evidence I have summarised
above
from the State witnesses was largely uncontested. The State witnesses
made a favourable impression on me. The accused’s
version as
put to the State witnesses, to the extent that they were against his
own interest, were admissions regarding his affair
with the deceased
and his presence in her house when she was murdered.
[22]
In my view, the evidence I have summarised represented a strong case
against the accused, one which was bound to lead to a
conviction if
he chose not to testify. Although there was no forensic evidence
tying him to the murder, there was a very powerful
circumstantial
case, fortified by the utter implausibility of the version he put to
the witnesses. In that regard I note the following:
(i) On his own version, as put to the
defence witnesses, the accused was at the crime scene at the time of
the murder.
(ii) On his own version, as put to the
defence witnesses, he drove off in the deceased’s car in
possession of electronic goods
taken from her house.
(iii) He was still in possession of
the car and of the electronic goods when he arrived at his uncle’s
house in Robertson
on the afternoon of the murder.
(iv) He sold the laptop as if it were
his own.
(v) His conduct in leaving the Toyota
Corolla at his uncle’s house, rather than driving it back to
Vredenberg, suggests that
he did not wish to be seen in it.
(vi) His version as to why he was in
possession of the electronic goods was utterly implausible. The trip
to Ratanga Junction would
not have been so expensive that Mr [X] and
Ms [HS] could not have funded the costs. The deceased would not have
given away goods
belonging to her husband for sale, at any rate not
without first clearing it with him.
(vii) The flatscreen TV and DVD player
came from the couple’s bedroom where, it is reasonable to
assume, it was in frequent
use by both husband and wife.
(viii) The laptop, according to Mr
[X], was used mainly by the children for playing computer games.
Again, it is unlikely that an
item in frequent use by the children
for their amusement would be disposed of to fund a once-off trip to
Ratanga Junction.
(ix) The tablet was the deceased’s
only means of telephonic communication with her husband and others.
It also contained her
photographs. It is inconceivable that she would
have allowed this item to be sold for any purpose at all, let alone
for the trip
to Ratanga Junction.
(x) The deceased would not have lent
the accused the Toyota Corolla. Apart from the fact that it did not
belong to her, she needed
it to ferry her children to and from
school. On the very day on which the accused took the car, the
deceased would have needed
it to collect her youngest daughter, [CD],
from school.
(xi) The deceased had recently
terminated her relationship with the accused, quite possibly on the
very morning he visited her.
It is improbable that she would have
entrusted a car and goods to such a person for sale, particularly
since she would not be able
to avoid telling her husband to whom she
had lent the car and given the goods. Her husband knew nothing of the
affair, and from
exhibit “G” it seems that the deceased
was anxious that he should remain ignorant of it.
(xii) Since on the accused’s own
version the deceased was dead when he left the house, any purpose for
which she had lent
him the car or entrusted electronic goods to him
for sale ceased to exist while he was still in the house, yet he took
the car
and the electronic goods and proceeded to try and sell them.
(xiii) In the light of the above
circumstances, the accused’s version regarding an invasion of
the home by three masked men
is simply not credible. There is no
evidence suggesting that either the deceased or her husband had
access to firearms or that
a holdall containing firearms was stored
in their ceiling. The evidence that the three men were masked in
balaclavas and dressed
in identical navy blue overalls seems to be a
convenient way of avoiding any description which would enable his
version to be investigated
and tested.
(xiv) The accused did not disclose to
anyone that a murder had been perpetrated by three unknown men. He
did not report the matter
to the police. He did not tell his uncle,
Mr Davids, the truth. When Ms [HS] phoned him during the morning of
the murder, he lied
to her. Since the tablet was in his possession,
it is an unavoidable inference that he sent the false WhatsApp
messages to Ms [HS]
from the deceased’s tablet. (In the TWT the
accused said that he refrained from disclosing the truth because of
threats made
by the three men. He also claimed that the WhatsApp
messages were sent by masked intruders. However, for the moment I am
assessing
the evidence as it stood at the end of the State’s
case. At that stage, the evidence given in the TWT could not be
regarded
for any purpose other than determining the admissibility of
the confessions.)
Evidence
at end trial, excluding confessions
[23]
Accordingly, and whether or not the confessions were admitted into
evidence, the accused would have been convicted if he did
not
testify. He elected to testify on the basis that his evidence in the
TWT would stand as evidence on the merits. He was cross-examined
further by counsel for the State.
[24]
The accused’s version in his evidence was an elaboration on the
version put to the State witnesses. The following additional
features
emerging from his evidence may be noted:
(i) He confirmed that he went to visit
the deceased at her house on the morning of 3 March 2016.
(ii) He was in the house for about
eight minutes before the masked men arrived.
(iii) During this period he placed the
electronic goods, wrapped up in a duvet, in the boot of the Toyota
Corolla, this being in
accordance with the alleged arrangement
reached with the deceased for raising funds for the Ratanga Junction
trip. (When the implausibility
of the deceased’s having handed
these goods over to him, he could provide no satisfactory
explanation. He acknowledged, in
particular, that he could not
explain why the deceased would have been prepared to dispose of her
only telephonic device.)
(iv) During this period (ie before the
arrival of the masked men), the deceased handed him the letter,
exhibit “G”.
He put it in his pocket without reading it.
(This is implausible.)
(v) When the masked men invaded the
house, one of them required him to kneel down in the lounge. The
other two men retrieved the
holdall from the ceiling and were busy
with the deceased in the bedroom.
(vi) Later he was instructed to go to
the bedroom, where the deceased was lying, apparently lifeless, on
the bed. He was told to
tie plastic bags over her head, which he did.
He was then instructed to place her in the ceiling through the
trapdoor in the passage.
Because she was too heavy for him, they told
him instead to put her in the freezer. (If the masked men for any
reason wanted the
body in the ceiling, they themselves could have put
it there if it was too heavy for the accused.)
(vii) While he was in the house he
received a call from Ms [HS] but was unable to answer because the men
were already there. (This
seems to have been a confused attempt to
explain the unanswered call about which Ms [HS] had testified.
However, the call which
Ms [HS] made at that stage was not to the
accused but to the deceased. On the accused’s version, he could
not have known
about Ms [HS]’s call to the deceased because the
latter’s tablet was in the boot of his car. The call which Ms
[HS]
made to the accused was later in the morning and he indeed
answered it.)
(viii) The three men then led him out
to the car. Two of them got in the backseat and lay flat. The third
man pushed the front passenger
seat as far back as it could go and
crouched down in the front with a firearm in the accused’s
side. They gave him instructions
as to where to drive. As he was
driving from the house, he saw Ms [HS] approaching but they
instructed him to turn off onto another
road. (This version seems to
have been designed to explain why Cecilia Arendse and Ms [HS] did not
see multiple persons in the
car. The accused was at some difficulty
in explaining how the three men could have given him directions when
they were below the
line of the windows. And on his version, the
three men must have arrived on foot because they did not have a
getaway car. If they
were willing to walk to the house, one may
wonder why they were so anxious when leaving it.)
(ix) While he was driving, he heard
the characteristic sound of a WhatsApp message arriving on the
deceased’s tablet. The
bogus answers which Ms [HS] received,
purportedly from the deceased, were given, he claimed, by one of the
three masked men. (It
is not apparent why, on the accused’s
version, the three men had access to the deceased’s tablet. The
accused said
that the electronic goods were wrapped in a duvet and
placed in the boot of the car. And if the three men were in
possession of
the tablet, it is passing strange that they did not
take it with them when they got out.)
(x) The three men told him to stop
alongside some open veld. They took a photograph of him. When they
got out, they told him that
he would see what would happen to his
family, in particular his brother who was a policeman in Saldanha, if
he talked or did anything
further. He understood from this that if he
went to the police or took anyone into his confidence his brother
would be harmed.
(I should mention, here, that the final message sent
from the deceased’s tablet to Ms [HS] – the message sent
after
Ms [HS] had walked home after failing to find the deceased in
town – must, even on the accused’s version, have been
sent after the three men got out of the car. The conclusion is
unavoidable that the accused was the person who sent this bogus
message.)
(xi) While he was driving back to
Vredenberg, he received a call from his wife to say that their son
[AB] was sick and needed to
be fetched from school. He parked the
Toyota Corolla at the wife’s residence in Fink Street and
walked to the primary school,
which was a couple of blocks away. He
walked with their son to his mother-in-law’s house but because
she was not there he
left [AB] with a neighbour. (If his son was sick
– and this part of the story might be true –, it is very
surprising
that he did not drive in the car to the school. It was put
to him in cross-examination that this would have been the obvious
thing
to do and that his decision instead to park the car at the
house was explicable only on the basis that he did not want the car
to be seen at the school. The accused was evasive in responding to
these questions and could provide no satisfactory answer.)
(xii) The accused did not, in his
evidence, deny receiving Ms [HS]’s call or giving her the false
answer I have previously
mentioned. He also did not deny phoning her
back and asking her to let him know if she heard anything more about
the deceased.
His response to these calls was clearly designed to
avoid any suspicion falling on him.
(xiii) He then put petrol in the car
with money provided by the deceased (at first he said this was at the
Total garage, later he
said the Caltex garage) and drove to
Robertson. He claims to have told his uncle about the three men and
that they had told him
to sell the car. (This version, which is
directly in conflict with Mr Davids’ testimony, was never put
to Mr Davids. The
accused struck me as a man of reasonable
intelligence. He displayed a close interest in the evidence, making
notes from time to
time. He also conferred with counsel as required.)
(xiv) He did not materially dispute
the rest of Mr Davids’ evidence. He indeed sold the laptop and
tried to sell the tablet.
(He could not explain why he thought
himself still entitled to dispose of these items following the
deceased’s death.)
(xv) He
did not dispute that he responded to Mr Davids’ three telephone
calls in the way alleged by the latter.
In other words, he
acknowledged that when his uncle confronted him in the first
telephone call, he did not deny the charge and
instead terminated the
call. He likewise did not dispute that in the second and third calls
he told his uncle that he would arrange
for the car to be collected.
[25]
The accused made an unfavourable impression in the witness box. He
struck me as a forceful character with a certain measure
of cunning.
When difficulties in his version were put to him, he was evasive,
though sometimes he eventually came up with answers
which were
clearly recent fabrications. Particularly when cross-examined after
the closure of the State’s case, he repeatedly
gave surly
denials without apparent concern for the truth.
[26]
So far from his explaining away the State’s case, his evidence
as I have summarised it above adds to the difficulties
confronting
him and the implausibility of his account. I would thus have no
hesitation in convicting him of the deceased’s
murder, even
leaving the confessions out of account (as I have done up to now).
Admissibility
of confessions
[27]
Turning to the confessions, the accused’s counsel challenged
their admissibility on two grounds: (i) that the confessions
were made as a result of undue influence exerted on him by the three
masked intruders and were thus inadmissible in terms of s 217(1)
of the Criminal Procedure Act; (ii) that the confessions were
obtained as a result of a violation of the accused’s right
to
legal representation and thus inadmissible in terms of s 35(5) of the
Constitution. It was these two matters which were investigated
in the
TWT.
[28]
I approached the admissibility of the first confession (exhibit “H”,
the letter handed to the investigating officer)
on the basis that, if
the confession made to Col Brits was inadmissible, the confession
contained in the handwritten letter was
also inadmissible. I did so
on the basis that a confession made to a peace officer who is not a
magistrate or justice is inadmissible
unless it is reduced to writing
and confirmed before a magistrate or justice. The investigating
officer, W/O Arendse, is a peace
officer but not a justice. Counsel
for the State argued that the confession letter was not ‘made
to’ a peace officer.
The letter was not addressed to Arendse or
to anyone. It was simply a document in which the accused had burdened
himself. It would
not matter whether it came into the State’s
hands through a fellow prisoner, a cleaner or a policeman.
[29]
There is authority that the restriction placed on the admissibility
of confessions ‘made to’ a peace officer should
be
narrowly interpreted (
R v
Tshetaundzi
1960 (4) SA 569
(A) at 572H). Nevertheless, in the present case the
accused wrote out the confession while he was in police custody and
with the
obvious intention of handing it to a policeman. It so
happened that the policeman who came to his cell on the morning of
Wednesday
9 March to take his warning statement was W/O Arendse and
it was to him that the accused chose to hand his confession. Having
regard
to the purpose presumably underlying the statutory provision
in question, I think the confession should be regarded as having been
made to Arendse within the meaning of s 217(1)(a) (see
S v
Lotter
1964 (1) SA 229
(O) at 231B-232E; see also
R v Burgess
1947 (1) SA 560
at 566).
Lack
of voluntariness/undue influence
[30]
As to the first ground (lack of voluntariness and undue influence),
the onus rested on the State to prove beyond reasonable
doubt that
the confessions were made voluntarily and without undue influence.
The accused’s first ground depended on his
version that the
murder was perpetrated by the three masked intruders who had
subsequently threatened him if he were to talk. For
reasons I have
already explained, by the end of the State’s case I was
satisfied beyond reasonable doubt that the accused’s
version in
that respect was false. The unsatisfactory impression he made on me
already existed at the end of the TWT. Of course,
a final decision on
the accused’s guilt would have to await an assessment of all
the evidence, including evidence adduced
on behalf of the accused.
However, for purposes of the TWT I was satisfied beyond reasonable
doubt that the story about the three
men was false, from which it
followed that the assertion of undue influence was also false.
[31]
Furthermore, the accused at no stage testified that the three men
told him that he or his family would be harmed unless he
confessed to
the crime. The highwater mark of the threat was that he should not
say anything about them. Given the accused’s
version that they
were masked by balaclavas and wearing identical blue overalls, it is
difficult to know how he could have identified
them – he
certainly was unable to be of any help in the witness box in that
respect. Be that as it may, if the threat was
that he should not
disclose that three men had invaded the house and stolen a holdall
containing firearms, it would not follow
that he was under any
pressure to confess to the crime. He could have claimed to know
nothing about the deceased’s death;
or he could have alleged
that the crime was perpetrated by an unknown intruder. In response to
my questions, he gave no satisfactory
answer as to why the threat
uttered by the three men induced him to make a confession. And if he
felt the need to confess because
of the threats, why did he not do so
immediately – for example when Ms [HS] phoned him or when his
uncle confronted him?
[32]
Accordingly, when the accused told Col Brits that he had not been
assaulted or threatened in order to influence him to make
a
confession, and that he had not been influenced or encouraged by any
person to make a confession, I am satisfied beyond reasonable
doubt
that he was telling Col Brits the truth.
[33]
I must mention that Col Brits was an excellent witness. He is
recently retired but at the time was a colonel in the Defence
Force.
He has and had no connection with the police. He has a law degree and
qualified as an attorney. He used to teach criminal
procedure at the
Military Academy (forming part of the University of Stellenbosch) and
has served as a prosecutor, defence counsel
and judge in military
tribunals. He testified that he is very meticulous and careful when
taking confessions, something that he
did only two or three times a
year. At the slightest sign that something was wrong, he would
terminate the process and send the
suspect back to the police. He
does not go through the prescribed questions simply as a matter of
form.
[34]
One of the preliminary matters canvassed before a confession is taken
down is an encouragement to the accused to take the senior
officer
into his confidence and tell him if anything untoward has occurred to
influence him to make a confession; and an assurance
by the senior
officer that any such allegations will be investigated and that the
accused will be provided with the necessary protection.
Col Brits
canvassed this with the accused, and I am satisfied that he did so in
a genuine endeavour to discern whether anything
was amiss.
[35]
Col Brits’ assessment of the accused in this case was that he
was a man who really wanted to unburden himself. He detected
no
hesitancy. He was perfectly satisfied at the genuineness of the
accused’s answers. At the end of the confession, the accused
was weeping and overwrought. Col Brits offered him a handkerchief and
almost shared the emotional catharsis with him. My assessment
of Col
Brits’ demeanour and manner was that he is a kindly gentleman,
the sort of fatherly figure in whom a person in distress
could
confide. If the accused really had been threatened by three unknown
men, Col Brits was just the sort of person to whom to
explain the
dilemma.
[36]
I was thus satisfied beyond reasonable doubt that the confession
letter and the formal confession were made voluntarily and
without
undue influence.
Denial
of access to legal representation
[37]
The second ground of attack was that the accused was denied access to
his lawyer, Mr Kaptein, before making the confessions.
The
confessions were thus said to have been obtained in violation of his
right to legal representation as guaranteed by s 35(2)
of the
Constitution. Section 35(5) the Constitution states in this
connection:
‘
Evidence obtained
in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would
render the trial
unfair or otherwise be detrimental to the administration of justice.’
[38]
During argument in the TWT the question arose as to the burden of
proof, having regard to the conflicting evidence given by
the accused
and Mr Kaptein on the one hand and the police witnesses on the other.
Unfortunately counsel were unable to refer me
to the relevant
authorities. Prior to giving my ruling, and based on my own research,
I concluded that it would be prudent for
me to approach the matter on
the basis that the State bore the onus of proving beyond reasonable
doubt that the accused had not
been denied access to legal
representation and thus whether the evidence had been
unconstitutionally obtained. I also concluded
that if the evidence
was unconstitutionally obtained, the State would need to satisfy me
that the admission of the confessions
would nevertheless not render
the trial unfair or be detrimental to the administration of justice.
[39]
Differing views have been expressed on this question. In
S v
Naidoo
1998 (1) SACR 479
(N) McCall J held that the onus in
respect of these matters rested on the accused on a balance of
probability (522c- 523b). This
view was followed in
S v
Gumede & others
[1998] 5 BCLR 530
(D) at 538D and
S v
Lottering
[1999] 12 BCLR 1478
(N) at 1483D, though in the latter
two cases the proposition was mentioned only in regard to whether the
admission of the unconstitutionally
obtained evidence would render
the trial unfair or be detrimental to the administration of justice.
In
S v Mathebula & another
1997 (1) SACR 10
(W)
Claassen J held that the onus of proving that his constitutional
rights had been infringed rested on the accused (16e-j). In
S v
Soci
1998 (2) SACR 275
(E) Erasmus J held that that there was no
onus on the State to disprove the fact of an alleged violation of an
accused’s
constitutional rights (289d). A contrary view was
expressed by Buys J in
S v Brown & another
1996 (2) SACR
49
(NC) at 73b.
[40]
However, in
S v Mgcina
2007 (1) SACR 82
(T) a full court in
Gauteng (per Du Plessis J) held that, consistently with the onus of
proof in respect of the matters contained
in s 217(1) of the
Criminal Procedure Act, the onus rested on the State to prove beyond
reasonable doubt that the evidence
was not unconstitutionally
obtained (93-96) and this view was approved by a full court in
KwaZulu Natal in
S v Nzama
[2009] ZAKZPHC 13 paras 33-35. It
was in deference to these full court decisions, which though not
binding on me have strong persuasive
value, that I decided –
not without considerable doubt – to approach the matter on the
assumption that the onus rested
on the State to prove beyond
reasonable doubt that the evidence had not been unconstitutionally
obtained. In regard to the further
question as to whether, if the
evidence was unconstitutionally obtained, its admission would render
the trial unfair or otherwise
be detrimental to the administration of
justice, it does not seem to me that the matter is strictly one of
onus. The court makes
a value judgment in accordance with the
principles recently rehearsed in
S v Gumede
2017 (1) SACR 253
(SCA) paras 19-25.
[41]
My reasons for doubting the correctness of
Mgcina
(and thus
Nzama
) were, and remain, the following. Where one is concerned
with the burden of proof in relation to statutory requirements, the
question
is one of statutory interpretation. This flows from the
principle that the incidence of onus is a matter of substantive law:
‘Any
rule of law that annexes legal consequences to a fact . .
. must, as a necessary corollary, provide for which party is supposed
to prove that fact’ (D T Zeffertt and A P Paizes
The South
African Law of Evidence
2 ed 45-46, a repetition of a an
identical proposition in an earlier edition cited with approval in
During NO v Boesak & another
[1990] ZASCA 51
;
1990 (3) SA 661
(A) at
672H-I). Naturally constitutional values and public policy are of
great importance in interpreting statutes but the language
of the
enactment is the starting point and may be decisive. Even where the
Constitution itself must be interpreted, ‘it cannot
be too
strongly stressed that the Constitution does not mean whatever we
might wish it to mean’. Its language must be respected.
If its
language is ignored ‘in favour of a general resort to
“values”’, the result ‘is not interpretation
but divination’ (
S v Zuma & others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) paras 17-18).
[42]
In the case of s 217(1) of the Criminal Procedure Act, the
statutory requirements are framed as conditions in order for
evidence
to be admissible. A confession ‘shall … be admissible’
‘if such confession is proved …’
etc and if, in
the case of a confession made to a peace officer, it has been
confirmed and reduced to writing in the presence of
a magistrate or
justice. Since s 217(1) specifies conditions to be proved before
a confession may be admitted into evidence,
it is obvious that the
onus must rest on the party seeking to have the confession admitted
to prove that the conditions of admissibility
are satisfied. This
will invariably be the State. And where the State bears a burden of
proof in criminal proceedings, the burden
is proof beyond reasonable
doubt unless the statute states otherwise.
[43]
Section 35(5) of the Constitution is differently framed. It sets
conditions for the exclusion of evidence, not for its admission.
If
evidence is obtained in a manner that violates any right in the Bill
of Rights, it must be excluded if the admission of the
evidence would
render the trial unfair or otherwise be detrimental to the
administration of justice. As a matter of language, the
person
seeking to exclude the evidence (ie the accused) would bear the
burden of proving that the conditions for exclusion are
satisfied,
namely that the evidence tendered by the State (being evidence
otherwise relevant and admissible, including in terms
of s 217(1))
was obtained in a manner that violated the accused’s
fundamental rights and that its admission would render
the trial
unfair or be detrimental to the administration of justice. And where
an onus rests on an accused person, the onus is
on a balance of
probability.
[44]
The ordinary rule is that where a statute creates an offence, a
statutory exception to liability must be proved by the person
setting
up the exception (ie the accused) on a balance of probability. In
South Africa the rule has been embodied in the provision
currently
found in s 90 of the Criminal Procedure Act. In
Zuma
supra
the Constitutional Court emphasised that its judgment did not purport
to apply to exceptions, exemptions or provisos to statutory
offences
(para 42). See also
R v Hunt
[1987] AC 352
, where the House of
Lords (per the majority speech of Lord Griffiths) held that a
provision similar to our s 90 merely stated
‘the orthodox
principle . . . that exceptions, etc., are to be set up by those who
rely on them’ (373H) and that the
person setting up the
exception must discharge his burden on a balance of probability
(374A-B).
[45]
In the present case we are not concerned with an exemption or
exclusion from conduct which would otherwise constitute a crime
but
with the exclusion of evidence which would otherwise be admissible.
This seems to me to be an a fortiori case for placing the
burden on
the person setting up the exclusion, since the burden does not relate
to his guilt but only to the admissibility of evidence.
If the
evidence is admitted, the State still needs to prove the accused’s
guilt beyond reasonable doubt. The accused may
seek to controvert the
evidence. At the end of the case the court must still determine
whether the admitted evidence is true or
reliable and what weight to
attach to it.
[46]
Placing the onus on the accused person on a balance of probability
does not seem to me to be less calculated to promote the
spirit,
purport and objects of the Bill of Rights than placing the onus on
the State to prove the contrary beyond reasonable doubt.
In the
ordinary course, a person who seeks to obtain the benefit of a remedy
because of an alleged violation of his constitutional
rights must
prove the violation on a balance of probability. Although the
exclusion of evidence in terms of s 35(5) may not
be a remedy in
the conventional sense, it is a beneficial result which the violated
party achieves in consequence of the violation
of his fundamental
rights. Section 35(5) is a statutory mechanism for vindicating the
fundamental right, even though the evidence
excluded might be very
reliable and highly probative. Why should this outcome be available
for the benefit of an accused and to
the detriment of society where
it is merely a reasonable possibility, but not a probability, that
the accused’s fundamental
rights were violated in the obtaining
of the evidence, and where – if the evidence were received –
it would still need
to be weighed with all the other evidence in
order to determine whether the State has proved the accused’s
guilt beyond reasonable
doubt?
[47]
I mention these considerations for such value as they may have if and
when the issue of onus needs to be authoritatively determined.
As I
have said, I was willing to approach the present case on the basis
that the State needed to prove beyond reasonable doubt
that the
accused’s fundamental rights were not violated in the obtaining
of the confessions.
[48]
The accused’s evidence was that as he was being arrested early
in the morning on Tuesday, 8 March 2016, his wife said
that she would
contact Mr Kaptein, the attorney acting for him in the divorce
proceedings. The accused said that during the course
of the Tuesday
he mentioned the fact that he was expecting a visit from Mr Kaptein
to Sgt Bara and to Sgt Michelle Davids. These
police officers
categorically denied that the accused had told them any such thing. I
was impressed by both of them and have no
reason to doubt their
honesty. Conversely, the accused has shown himself over and over
again to be a dishonest witness.
[49]
The accused was orally warned of his rights when he was arrested at
Fink Street and was again warned in writing, by way of
the standard
SAP 14A notice, when he was processed into the Saldanha Bay police
cells a little later in the morning. These rights
included his right
to silence and his right to an attorney, including an attorney at
State expense if he could not afford one.
[50]
The accused testified that his wife visited him during the evening of
8 March. She brought him a Bible and a juice. She told
him that she
had contacted an attorney, Mr Kaptein, who would come and see him the
next morning. The accused’s wife, who
could have corroborated
this assertion, was not called by the defence.
[51]
The accused was collected from his cell by W/O Arendse at around
09:30 on the Wednesday morning, 9 March, with a view to taking
his
warning statement. This was when the accused handed him the
confession letter which he had evidently written overnight. Arendse
read the letter and then asked the accused whether he wished to make
a confession to a justice, which the accused confirmed. Arendse
reported this to his commanding officer, Capt Carosini, who set up
the interview with Col Brits and arranged for Sgt van Dyk to
take the
accused to Col Brits.
[52]
It is common cause that W/O Arendse was not expecting to receive a
confession from the accused. The accused also admitted that
he did
not tell Arendse that he had an attorney, or that he had expected an
attorney to arrive the previous day or that he was
expecting to
receive a visit from an attorney that same day, or that he wanted to
talk to an attorney before making a confession.
[53]
Sgt van Dyk testified that when he went to collect the accused in
order to take him to Col Brits, he again explained his rights
to the
accused. He particularly emphasised to the accused his right to
remain silent and his right to an attorney, rights which
he regarded
as of particular importance at that juncture. The accused told Van
Dyk that he wanted to go ahead with the confession.
Van Dyk then
drove him to Col Brits’ office He dealt with the accused in a
sympathetic way: he cuffed the accused’s
hands in front rather
than behind; the handcuffs were concealed by a tracksuit; while they
were waiting for Col Brits, he offered
the accused a cigarette, and
they chatted in a friendly fashion.
[54]
There was virtually no challenge to Sgt van Dyk’s evidence. In
cross-examination the accused’s counsel told Van
Dyk that his
instructions from Mr Kaptein were that the police prevented him from
consulting with his client. Van Dyk said he knew
nothing about that,
his involvement being limited to what he had told the court.
[55]
However, when the accused testified in the TWT, he claimed that as
they were driving to Col Brits he told Sgt van Dyk that
Mr Kaptein
was his lawyer. Van Dyk allegedly replied that Kaptein was a good
attorney. He also told the accused that it was a good
thing to
confess. None of this had been put to Van Dyk. The accused could give
no satisfactory explanation for the omission. I
have no reason to
doubt the evidence of Van Dyk, who made a favourable impression on
me. He was completely unconnected to the investigation
of this case;
indeed, he was not at this time involved in ordinary criminal
investigations at all but in gang operations. I have
already
summarised the humane way in which he dealt with the accused. He had
no reason to conceal anything to the accused’s
advantage. I
thus reject as false beyond reasonable doubt what the accused claimed
to have said to Sgt van Dyk.
[56]
During his interview with Col Brits, the accused was clear that he
did not want to consult with an attorney. He made no mention
of
having an attorney. Col Brits testified – and I have no
hesitation in accepting this evidence as true – that if
he had
detected the slightest hesitancy in this regard on the accused’s
part, he would terminated the interview and advised
the accused to
take the precaution of consulting a lawyer. I asked the accused why,
if he had been willing (as he claimed) to mention
that he had a
lawyer to Sgt Bara, Sgt Davids and Sgt van Dyk, he had refrained from
telling Col Brits the same thing. He could
not answer.
[57]
I was and thus remain satisfied beyond reasonable doubt that the
accused was fully aware and understood his right to refrain
from
making a confession and his right to consult with an attorney at any
time after his arrest; and that he took a considered
and deliberate
decision to make a confession in order to unburden his guilty
conscience. It is gratifying in this case to have
no hint whatsoever,
even from the accused, of undue pressure applied on him by the police
to make a confession. The handwritten
confession which he prepared
overnight was entirely of his own volition and came as a surprise to
W/O Arendse. The formal confession
to Col Brits followed logically
from the informal confession. The process followed by Col Brits was
impeccable, and by the end
of the interview the accused was observed
to be in a condition entirely consistent with his having unburdened
himself of a terrible
truth and entirely inconsistent with his having
made the confession under compulsion or in the face of a denial of
his fundamental
rights.
[58]
If, by the time he made his confession to Col Brits, the accused was
aware of steps taken by his wife to procure the services
of Mr
Kaptein as his attorney, I am satisfied that he took a deliberate
decision to proceed with the confession despite knowing
that he was
entitled to keep his silence and to refrain from making a confession
until he had consulted his attorney. In fact,
however, I do not
believe that the accused had the knowledge about Mr Kaptein’s
engagement which he professed in evidence.
I have rejected as false
beyond reasonable doubt his testimony of mentioning an attorney to
Sgt Bara, Sgt Davids and Sgt van Dyk.
He made no mention of having an
attorney when he handed his confession letter to Arendse or when he
made his formal confession
to Brits.
[59]
Mr Kaptein’s evidence gives rise to greater difficulties. He
testified that on the morning of the arrest, which he said
was Monday
7 March 2016, he was contacted by the accused’s wife and told
of the arrest. He asked her to come to his office,
which she did. She
paid him a retainer of R500 to cover initial work by him to ascertain
the accused’s whereabouts and to
have a first consultation with
him. He telephoned Capt Carosini, who was known to him as the
commanding officer at Saldanha Bay
SAPS, and introduced himself as
the accused’s attorney. Carosini replied that W/O Arendse was
the investigating officer and
that Mr Kaptein should deal with him.
Kaptein asked Carosini whether he could speak with Arendse. Carosini
replied that Arendse
was not at the station at that time. Kaptein
obtains Arendse’s mobile number from Carosini.
[60]
He phoned Arendse who told him that he was still in the process of
charging the accused and that he could see his client later
in the
day. Kaptein told Arendse that this was unacceptable, that he was the
accused’s lawyer and wanted to see him. Arendse
would not
relent. Kaptein thus got into his car and drove from Vredenberg to
the Saldanha Bay police station. There he spoke with
the duty
constable (whose name he could not recall). The constable told him
that Arendse and the accused were not at the police
station but were
together at the crime scene.
[61]
According to Mr Kaptein, all the events described above occurred
before ten o’clock in the morning on Monday 7 March.
After
receiving the report from the unidentified constable, he drove back
to Vredenberg and phoned the accused’s wife to
say that her
husband was not at that time at the Saldanha Bay police station. He
then phoned Arendse again. According to Kaptein,
Arendse told him
that the accused was ‘in the process of making a confession’
though in the same conversation Arendse
also supposedly said that the
accused did not need an attorney as he had already made a confession.
[62]
The accused’s first appearance in court was in Vredenberg at
around 14:00 on Wednesday 9 March. Mr Kaptein did not, during
his
evidence in chief, mention that he was at court on that occasion and
spoke with the accused. His testimony in chief was that
he first
consulted with the accused at Malmesbury Prison on 14 March. In
cross-examination, however, he disclosed that he had been
at court on
9 March. He had not mentioned this because at that time the accused
was represented by a legal aid lawyer. Kaptein
had not yet come on
record. This was because the initial deposit paid by the accused’s
wife did not extend thus far. The
accused apparently had legal
insurance with Legal Wise, and his wife was in the process of
obtaining authority from the insurer
to fund Mr Kaptein’s fees.
This authority had not yet been forthcoming at the time of the
accused’s first appearance.
[63]
Capt Carosini testified that he had no recollection whatsoever of
talking with Mr Kaptein about this case. He was acquainted
with Mr
Kaptein because he (Carosini) played bowls with Kaptein’s
father. He could not recall whether he had ever spoken
with Kaptein
on the phone in connection with any cases but he had certainly met
him from time to time at court. When asked how
he would have reacted
had Kaptein phoned him as alleged, his initial answer was that he
would have put an end to further dealings
with the accused until the
accused had an opportunity to consult Kaptein. In response to a
question from me, however, he said it
was possible that he might have
responded by referring Kaptein to the investigating officer.
[64]
The deceased’s murder was a big case for the Saldanha Bay SAPS
and my impression is that Carosini would have remembered
a call from
Kaptein had it taken place. However, Carosini seemed reluctant to
assert this, perhaps being uncomfortable about stating
categorically
that an attorney was not telling the truth. I assessed Carosini to be
an honest witness.
[65]
Arendse categorically denied having ever spoken with Mr Kaptein over
the telephone. In the main, I was satisfied with the way
Arendse gave
evidence. However, and perhaps by long experience as a policeman, he
answered only the questions asked and gave short
answers, providing
no elaboration in an attempt to make what he said more convincing. To
some extent, therefore, he was inscrutable.
On the other hand, when
he and Sgt Bara were recalled at my request to testify regarding the
custody register, occurrence book
and Arendse’s pocket-book,
there was nothing inconsistent in these documents with their
evidence.
[66]
Except for his failure to mention meeting and talking with the
accused at his first appearance on 9 March, there was nothing
about
the manner in which Mr Kaptein gave his evidence which I can
criticise. He did not come across as an untruthful witness.
[67]
Objectively speaking, however, his evidence is subject to two serious
criticisms. The first is that the events he described
could not have
occurred on Monday 7 March. The accused was only arrested early in
the morning on Tuesday 8 March. Furthermore,
the events he described
all occurred, according to him, during the course of the same
morning. The last of those events –
his second telephone
conversation with W/O Arendse – could not have occurred until
Wednesday 9 March, because it was not
known until the morning of 9
March that there would be a confession.
[68]
Furthermore, and assuming that the interactions in question happened
on 8 or 9 March, on neither of these days was the accused
absent from
the police station in order to attend with Arendse at the crime
scene. The custody register and occurrence book showed
that the
accused was in the police cells for the entire period until he was
booked out at 10:45 on 9 March to accompany Van Dyk
to Col Brits.
Furthermore, Arendse testified that he did not attend at the crime
scene on either 8 or 9 March 2016. His pocket-book,
which I asked him
to produce, recorded that in the early hours of 8 March he assisted
in the accused’s arrest in Vredenberg.
He went back to
Vredenberg at around 09:30 to interview the accused’s wife and
to make other investigations, only returning
to Saldanha Bay at
13:00. His pocket-book entries for the morning of 9 March likewise
did not reflect a visit to the crime scene.
[69]
It thus seems very unlikely that the unidentified constable with whom
Mr Kaptein says he spoke could have told Kaptein that
Arendse and the
accused were not at the police station because they were together at
the crime scene.
[70]
The second criticism, which is connected with the first, concerns Mr
Kaptein’s note-keeping. I asked him about his file
notes. He
said that it was not possible to make them available without
disclosing privileged information. His notes concerning
his dealings
with Carosini and Arendse were intermingled with notes regarding his
conversations with the accused’s wife in
which, among other
things, she conveyed to him information she had obtained from the
accused.
[71]
I asked him to read the portions of the notes recording his
interactions with the police. He confirmed that his notes
specifically
recorded the interactions with the police as occurring
on the morning of 7 March. At one point he said that the date came
from
the accused’s wife. On the other hand, he claimed that he
was making the notes more or less contemporaneously. If that was
the
case, he would not have needed to rely on the accused’s wife
for the date, since on his evidence he was making the notes
on 7
March.
[72]
In regard to his file note of the second conversation with W/O
Arendse, Mr Kaptein said that it simply recorded Arendse telling
him
that the accused had already made a confession. The recordal did not
mention that the accused was on his way to make a confession.
[73]
Since the date recorded in the notes was obviously wrong, and since
the date would not have been incorrectly recorded had the
notes been
made contemporaneously, there must have been a greater delay between
the alleged events and the making of the notes
than Mr Kaptein
claimed and that to some extent the notes must constitute a
reconstruction. Kaptein withdrew as the accused’s
attorney not
long after 14 March 2016 and was only required to revisit this matter
when asked to testify at the TWT more than two
years later. His
recollections may have been inaccurate.
[74]
If the accused were required to prove on a balance of probability
that he was denied access to Mr Kaptein before making the
confessions, I would find that the onus was not discharged. However
it would be going very far to say that Mr Kaptein’s account
of
events is in all respects false beyond reasonable doubt. While there
may be material errors of recollection and reconstruction,
it is
unlikely that an officer of the court would fabricate an entire
account.
[75]
I must thus find it to be reasonably possible that interactions of
the kind described by Mr Kaptein took place. However, for
the reasons
I have explained, it is not reasonably possible that those events
took place on 7 or 8 March. They must have occurred
on the morning of
9 March, the day on which the accused made his confessions. If
Kaptein was told by a constable on that morning
that Arendse and the
accused were not at the police station, this may have been because
the accused had already been booked out
by Sgt van Dyk in order to
make his confession and because W/O Arendse had left the station for
purposes unrelated to the case.
(According to his pocket-book, at
10:30 he went to the prosecutor’s office to fetch unspecified
dockets.)
[76]
Kaptein’s notes do not indicate the times when the alleged
conversations with Arendse took place. His only written recordal
of
the second conversation was that Arendse told him that the accused
had already made a confession. I thus cannot find it to be
reasonably
possibly true that this conversation happened before the interview
with Col Brits was completed. If it happened only
after the formal
confession was completed, it can have no bearing on the admissibility
of the confession.
[77]
As to the first conversation, Mr Kaptein stated that Arendse told him
that he was in the process of charging the accused. According
to the
custody register and occurrence book, Arendse charged the accused at
12:15 on 9 March, which would have been after the accused
returned
from Col Brits but before he was booked back into the cell at 12:30.
If so, the first call was made after the second confession
was
completed.
[78]
On the other hand, placing the first call at around 12:15 would not
account for the intervening trip which Mr Kaptein says
he made to
Saldanha Bay and the information given to him by the unidentified
constable. I must thus find it reasonably possible
that the call
happened earlier, perhaps at around 09:30 when Arendse was preparing
to charge the accused and take his warning statement.
[79]
Although it is possible that Kaptein is mistaken as to the identity
of the policeman with whom he spoke, I think I must assume
it to be
reasonably possibly true that he spoke with Arendse. On that basis,
it is reasonably possible that Arendse told Kaptein
that he was in
the process of charging the accused and that Kaptein could see him
later in the day. Since Arendse made no mention
at that stage of a
confession, this must have been before the accused handed him the
confession letter. Arendse had no reason to
believe that the accused
was on the verge of making a confession.
[80]
On the facts as I find them to be as a reasonable possibility,
Arendse’s failure to halt the process after receiving
the first
call from Kaptein was a violation of the accused’s right to
legal representation. It is possible that the accused
would then not
have handed Arendse the confession letter until consulting with
Kaptein, and that after consulting Kaptein he would
have refrained
from making any confession.
[81]
I must thus consider whether admitting the confessions, which were to
this extent obtained in violation of the accused’s
fundamental
right to legal representation, would result in an unfair trial or
bring the administration of justice into disrepute.
I do so by
considering the factors and weighing the competing considerations as
explained in
S v Gumede
supra.
[82]
On the one hand, Arendse’s conduct prevented the accused from
consulting with an attorney who had been engaged for him
by his wife.
On the other hand, the accused was well aware of his right to silence
and of his right to an attorney. On the facts
as I find them to be,
he did not know that an attorney had been engaged for him. With full
knowledge of his right to an attorney,
and in order to unburden his
guilty conscience, he chose to make a confession. His first
confession, the handwritten one, was prepared
before Kaptein made
contact with Arendse, even though it was only handed to Arendse after
Kaptein’s first call.
[83]
The accused did not testify that, if Arendse had told him that
Kaptein wanted to see him, he would not have handed Arendse
the
confession letter or would not have proceeded with the formal
confession. Kaptein was entitled to see the accused if the latter
want to consult him; Kaptein could not insist on seeing him. The
accused was anxious to unburden himself. Having already written
out a
confession (which he had headed, ‘The truth will set you
free!!!’), he may well have decided to carry through
with his
intention of confessing, either without consulting Kaptein or after
consulting him. Mr Kaptein did not testify that he
would have advised
the accused against making a confession if the accused’s
instructions to him were that he had committed
the crime.
[84]
Although Arendse should have put things on hold, he did not refuse to
allow the accused to see an attorney. At a time when
Arendse was not
expecting to receive a confession, he simply told Kaptein that he was
processing the accused and that Kaptein could
see him later. Arendse
can be criticised for not getting back to Kaptein once it appeared
that the accused wanted to make an incriminating
statement, but the
violation of the accused’s rights does not go beyond this.
[85]
There is no evidence of a concerted or systemic endeavour by the
police to deprive the accused of his rights. One particular
officer
made what might be regarded as an error of judgment in dealing with
the accused. The accused himself had a remedy in his
own hands. He
could have told Arendse or Brits that he wished to consult with an
attorney.
[86]
For the reasons I have already explained, the State had a strong case
against the accused. By Wednesday 9 March the Toyota
Corolla and some
of the electronic goods had already been recovered and the police
would have had statements from the accused’s
uncle and Ms [HS].
The accused’s confession was consistent with evidence already
available to the State. For reasons I have
explained, the accused’s
conviction does not depend heavily on the admission of the
confessions. Indeed, I consider that
the accused would be convicted
even if the confessions were excluded.
[87]
I was thus of the opinion when I made my ruling, and am still of the
opinion, that the admission of the confessions, despite
the
irregularity mentioned above, would not result in the accused’s
having an unfair trial and would not bring the administration
of
justice into disrepute.
The
confessions as additional evidence
[88]
The handwritten confession and the formal confession (exhibits ‘H’
and ‘I’) are mutually consistent
though sometimes there
is a point of detail which is on the one and not the other. They are
also largely consistent with the other
evidence tendered by the
State. In the confessions the accused says that after the deceased
handed him her break-up letter darkness
came over him. He put his arm
around her neck and strangled her. He tied the plastic bags over her
head. He tried to put her body
into the ceiling but she was too heavy
so he placed her in the deep-freeze and covered the body with frozen
meat (this is how the
body was found). In the confession letter he
said that he was crying and saying, ‘I am sorry, it was not my
intention to
harm you’. In the formal confession he said that
after strangling her he put her head in his lap, cried her name
repeatedly,
and was talking to himself, asking God what he (the
accused) had done. After he had placed the body in the freezer, he
took the
electronic goods to the car and drove off.
[89]
He confirms in the confessions having seen Ms [HS] approaching. He
also refers to the WhatsApp messages, stating in exhibit
‘H’
that he sent a message on the deceased’s tablet purporting to
say that the deceased wished to be alone and
then that Ms [HS] should
meet her at Cartol. When he testified in his defence, I asked the
accused how he could have known this
information since on his version
the messages were sent by one of the three masked intruders. His
initial answer was that he could
hear the characteristic sound of the
arrival of a WhatsApp message. I said that this would not enable him
to know what reply was
sent. He then claimed that he heard the men
discussing how to reply to Ms [HS] – another recent fabrication
to extricate
himself from difficulty.
[90]
The confessions have a level of detail quite inconsistent with a
person fabricating a false confession under threat of harm.
They also
contain information which he would not have known if he were not the
perpetrator. Apart from the WhatsApp messages mentioned
in the
confession, there is the fact that on his evidence he was not present
in the room when the deceased was killed. He acknowledged
in
cross-examination that he did not know how the accused had died. His
confession about applying force to her neck with his arm
is
consistent with the pathologist’s report which concluded that
the deceased had been manually strangled and had suffered
inter alia
a fracture of the hyoid bone.
Conclusion
[91]
In all the circumstances, the accused must be convicted on the first
count of murder. Before considering whether the murder
falls within
Part 1 of Schedule 2 of Act 105 of 1997, it is necessary to consider
whether, on the second count, the accused should
be convicted of
robbery (in which case it would undoubtedly be robbery with
aggravating circumstances) or of theft. The critical
issue here is
whether the violence which resulted in the deceased’s death was
directed at enabling the accused to take the
goods (as to which, see
Snyman
Criminal Law
6 ed 508-510).
[92]
The State is required to prove robbery beyond reasonable doubt. It
would have been much wiser for the accused in this court
to have
maintained the openness he did in his confessions. However, the fact
that he chose instead to recant and give dishonest
evidence does not
entitle me to make assumptions favourable to the State if it remains
a reasonable possibility that the circumstances
in which events
unfolded did not constitute robbery.
[93]
If the accused had been a stranger to the deceased and her home, it
may have been easy to infer – in the absence of some
other
reasonably possible explanation – that the motive for killing
the deceased was to take goods from her house. However,
the accused
was having an affair with the deceased, a relationship which she
apparently broke off by handing him the letter, exhibit
‘G’.
And although the State is not obliged to accept the truth of
everything said in the confessions, the State nevertheless
has asked
me to receive them as evidence. In those confessions the accused
links the ‘darkness’ which descended over
him to the
deceased’s handing to him of the break-up letter. He also
describes being distraught at having found he had killed
her.
[94]
In the circumstances, I think it is reasonably possible that the
accused inflicted violence on the deceased, not with any idea
of
taking her goods but, to use a colloquial expression, in a moment of
madness brought on by the termination of their relationship.
He could
not have taken her goods without incapacitating her but the
possibility remains that she was incapacitated for reasons
unrelated
to the taking of her goods and that the accused then took advantage
of her incapacitation to take her goods.
[95]
He has not told us why he did so. It is reasonably possible that he
hoped to throw the police off the scent by creating the
impression of
an all-too-familiar home invasion accompanied by robbery. If so, he
swiftly changed course, adopting the mercenary
approach of selling
the goods for his own benefit. Alternatively, he may, after killing
the deceased, have decided while still
in the house to take advantage
of her death by stealing her goods. Either way, there is not that
connection between the violence
and the taking of the goods which the
law demands before a person can be convicted of robbery.
[96]
Counsel for the State referred me to
S v Yolelo
1981 (1) SA
1002
(A) where Van Heerden AJA said that in every case one must
consider whether, in the light of all the circumstances, and
particularly
the time and place of the accused’s acts, there is
such a close connection between the theft and the violence that the
two
acts can be seen as inextricable components of what is
essentially one course of conduct (1015 G-H). The context of the
learned
judge of appeal’s remarks was the case where violence
comes after, rather than before, the taking of the goods. Although
the timing and location of the violence and the taking are important
elements in determining whether a sufficient connection exists,
the
judge of appeal did not say that such connection exists merely
because the violence and the taking are very closely connected
in
point of time and location. The question always is whether one can
infer that the violence was inflicted either in order to
take or to
retain possession of the goods.
[97]
I thus find that the State has not proved robbery beyond reasonable
doubt, from which it follows that on count 2 there must
be entered
the competent verdict of theft.
[98]
Returning to count 1, the finding on count 2 means that the murder
cannot be brought within the ambit of Part I of Schedule
2 on the
basis of having been perpetrated in committing robbery with
aggravating circumstances. The other basis alleged in the
indictment
is that the murder was premeditated. However, counsel for the State
conceded, correctly in my view, that one could not
find beyond
reasonable doubt that the accused went to the deceased’s home
with the intention of killing her. Put differently,
one could not
exclude as a reasonable possibility that the murder occurred on the
spur of the moment.
[99]
The judgment of the court is thus as follows:
(a) On count 1, the accused is
convicted of murder, such murder falling, for purposes of sentencing,
under Part II of Schedule
2 of Act 105 of 1997.
(b) On count 2, the accused is
convicted of the theft of the items mentioned in the indictment.
______________________
O L
Rogers J
APPEARANCES
For
the State
Mr
C Burke
Office
of the Director Of Public Prosecutions, Western Cape
For
the Accused
Mr
Caiger