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[2016] ZAGPJHC 155
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S v Lekhwareni and Others (SS 073/2015) [2016] ZAGPJHC 155 (16 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS 073/2015
DATE:
16 MAY 2016
In the matter
between:
STATE
And
LEKHWARENI,
THIFHULUFHELWI
SANTY
..............................................................
Accused
no 1
MUENDA,
OLWETHU
.......................................................................................................
Accused
no 2
KHOROMBI,
LUFUNO
.....................................................................................................
Accused
no 3
MAKHUVHA,
RAMBANI
ERICK
...................................................................................
Accused
no 4
MOKGABUDI,
TSHEPO
...................................................................................................
Accused
no 5
LETSOELA,
TEME
.................................................................................................
Fourth
Respondent
RULING
ADMISSABILITY
OF STATEMENT AGAINST ACCUSED NO 4
SPILG,
J:
INTRODUCTION
1.
The State sought to introduce a written
statement made by the accused to the investigation officer, Sergeant
Magoro, on 24 March
2015. Both
Adv
Sinthumule
for the State and
Adv
Cindi
on behalf of Mr Makhuvha, who is
accused number four, informed the court that the contents of the
statement were neither a confession
nor admission but were
exculpatory. Adv Cindi however claimed that his client had not
made the statement freely and voluntarily.
2.
The prosecution argued that since the
statement did not amount to an admission it could simply be
introduced as evidence once the
accused admitted to his signature and
that he signed it either because he had read the statement or because
it was read back to
him. The relevance of the statement was to
demonstrate that the accused gave a different alibi to the one put on
his behalf to
the State witnesses. The State also contended that the
onus was on the accused to demonstrate on a balance of probabilities
that
the statement was not obtained freely and voluntarily.
3.
I was of the
prima
facie
view that the mere fact that the
statement was alleged not to be freely and voluntarily made was
sufficient to require a separate
hearing to first determine whether
these foundational requirements for the admission of an extracurial
statement were satisfied
before the statement itself could be used as
evidential material.
4.
A court cannot be bound by the view of the
litigants as to whether the contents of a statement amount to a
confession, an admission
or something else. In the present case it
was unnecessary to have sight of the statement since both parties
were agreed that the
statement was exculpatory but, according to the
State, contained an alibi defence which differed to that put by the
accused’s
counsel to the State witnesses.
5.
Prior to dealing with the evidence led it
appears preferable to consider whether the statement amounts to an
admission for purposes
of section 219A of the Criminal Procedure Act
51 of 1977 (‘
CPA’
)
and if not whether there would be any
a
priori
requirements for its
admissibility where the defence relies on absence of free volition.
The position taken by the State also requires
the question of onus to
be considered.
CLASSIFICATION
OF THE STATEMENT
6.
An exculpatory statement obviously cannot
amount to a confession. This is clear from the definition in
R
v Becker
1929 AD 167
at 171 of a
confession, which is an:
‘
unequivocal
acknowledgement of guilt, the equivalent of a plea of guilty before a
court of law’
[1]
7.
Less
clear is whether it constitutes an admission. The standard definition
of an admission is that it is ‘
a
statement or conduct that is adverse to the person from whom it
emanates’
.
[2]
A statement which does not admit a material fact in the State’s
case would nonetheless be adverse to an accused if it contradicted
his testimony in court.
8.
It
is therefore necessary to turn to section 219A of the CPA which was
introduced in June 1979
[3]
. The
provision reads:
219A
Admissibility of admission by accused
(1)
Evidence of any admission made extra-judicially by any person in
relation to the commission of an offence shall, if such admission
does not constitute a confession of that offence and is proved to
have been voluntarily made by that person, be admissible in evidence
against him at criminal proceedings relating to that offence:
Provided that where the admission is made to a magistrate and reduced
to writing by him or is confirmed and reduced to writing in the
presence of a magistrate, the admission shall, upon the mere
production
at the proceedings in question of the document in which
the admission is contained-
(a)
be admissible in evidence against such person if it appears from such
document that the admission was made by a person whose
name
corresponds to that of such person and, in the case of an admission
made to a magistrate or confirmed in the presence of a
magistrate
through an interpreter, if a certificate by the interpreter appears
on such document to the effect that he interpreted
truly and
correctly and to the best of his ability with regard to the contents
of the admission and any question put to such person
by the
magistrate; and
(b)
be presumed, unless the contrary is proved, to have been voluntarily
made by such person if it appears from the document in
which the
admission is contained that the admission was made voluntarily by
such person.
(2)
The prosecution may lead evidence in rebuttal of evidence adduced by
an accused in rebuttal of the presumption under subsection
(1).
9.
It is evident that the State seeks to
introduce the statement, not as to truth of content or as to an
admission of one of the factual
allegations relied on by the State as
to the time or place or acts committed by the accused but rather as a
prior inconsistent
statement going to credibility in respect of the
alibi defence put to the State witnesses in cross-examination.
10.
In
my view
R
v Valachia and Another
1945 AD 826
is dispositive of the point. The case determined that
once an admission is contained in an extracurial statement then the
entire
document becomes evidence before the court, the Appellate
Division in the course of its judgment distinguishing between an
admission
contained in the statement and the balance of the document
which may contain exculpatory statements
[4]
.
The distinction between an admission and an exculpatory statement was
also made by Grosskopf JA in
S
v Cloete
1994 (1) SACR 420
(A) at 425C-E.
See
also
S v Mhlongo; S v Nkosi
2015 (2) SACR 323
(CC) at para 33
where the court said:
“
The
distinction between confessions and admissions is determined solely
by the extent to which the statement implicates its maker.
This distinction becomes relevant in
determining the safeguards that are put in place to ensure the
voluntariness of the confession
or admission.”
11.
Moreover
our case law history regarding the admissibility of confessions and
admissions and the legislative provisions now set out
in section 217
and later 219A would suggest that an admission under section 219A is
limited to a statement which admits to one
or more of the facts
relied upon by the State in the indictment. See as to case law
R
v Burton
1946 AD 773
at 779-80
[5]
and see
generally
S
v Litako
2014 (2) SACR 431
(SCA) at paras 32-39. This may be contrasted with
Wigmore on Evidence (1972) which at para 1048 at the end of subpara
(2) and the
commencement of (3) explains why the subject of an
admission “
is
not limited to facts against the party-opponent’s interests at
the time of making it”
and
is in this sense to be contrasted with an assertion offered in that
person’s favour (which is not termed an admission).
12.
Within the limited time available I have
not been able to research the position further and therefore will
assume that section 219A
was introduced to deal with extracurial
admissions of one or more facts relied upon in the State’s
case. I will also assume
that the section was not intended to afford
broad protection to any statement that would ordinarily be admissible
but which is
not made freely and voluntarily. It may well be that
whatever the intention of the legislature in 1977 when section 219A
was introduced
its scope is now extended by the constitutional
protections afforded under the Bill of Rights.
13.
It is therefore out of caution that I
assume that the requirements of section 219A do not come to the
assistance of the accused
where his extracurial statement is sought
to be introduced in cases where it does not contain an admission of
one of the facts
relied upon by the State. If section 219A applied
then the following examination of the hearsay rule would be
superfluous.
THE
HEARSAY RULE
14.
The accused’s statement which the
State wishes to use would ordinarily be introduced during his
cross-examination on the basis
that it amounts to a prior
inconsistent statement affecting credibility.
15.
However the State seeks to introduce the
written statement through the investigating officer to whom it was
made. This may be as
a result of the view taken by the prosecution
that the accused may not give evidence, or possibly that he may apply
for a discharge
at the end of the State case.
16.
On basic principles the statement is one
which at this stage of the proceedings is hearsay because it was
allegedly made to the
person who is testifying about what was said to
him, that he reduced it to writing and that the accused signed it.
The accused
has yet to admit that he said the words alleged; even if,
as occurred here, he admitted subsequently under cross-examination
during
the trial within a trial that he signed the document.
17.
The statement is intended to be used
against the accused on the basis that it amounts to a prior
contradictory statement, the version
put to the State witnesses by
the accused’s counsel in the presence of the accused amounting,
in my view, to a statement
made by the accused’s representative
on his behalf, and not extracurially, but in his presence before
court.
18.
Admissibility cannot be tested by reference
to whether an accused will testify during a trial within a trial or
that he will admit
to his signature or to the circumstances under
which it was appended; bearing in mind that the accused retains his
right to silence
and may simply rely on an effective
cross-examination of the State’s witnesses.
19.
Accordingly
the two considerations for the reception of evidence based on their
probative value arise. The first is the obviously
strong probative
value to the other party of a statement made by a person against his
interest “
provided
it exhibits the quality of inconsistency with the facts now asserted
by him”
irrespective
of whether it amounts to an admission or because it “
exhibits
an inconsistency with his present claim, thus tending to throw doubt
upon it, whether he was at the time speaking apparently
in his own
favour or against his own interest”.
[6]
20.
The
other consideration is the hearsay rule of admissibility which is a
rule of law
[7]
as
reinforced by our constitutionally protected rights.
21.
At the stage the prosecution seeks to
introduce the statement into evidence prior to closing its case the
accused will not as yet
have testified and it cannot be assumed that
he will. Accordingly the statement cannot be admitted under
section
3(1)
(b) of the
Law of Evidence Amendment Act 45 of 1988
. It would
therefore have to meet the requirements of
section 3(1)
(c) in order
to qualify for admission into evidence, making it necessary to
consider the requirements of this provision.
22.
It is preferable to set out the entire text
of
section 3
, which reads:
3
Hearsay evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless-
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account, is of the opinion that such evidence should
be admitted
in the interests of justice.
(2)
The provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any ground other than that
such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of subsection
(1) (b) if the court is informed that the person upon
whose
credibility the probative value of such evidence depends, will
himself testify in such proceedings: Provided that if such
person
does not later testify in such proceedings, the hearsay evidence
shall be left out of account unless the hearsay evidence
is admitted
in terms of paragraph (a) of subsection (1) or is admitted by the
court in terms of paragraph (c) of that subsection.
(4)
For the purposes of this section-
'hearsay
evidence' means evidence, whether oral or in writing, the probative
value of which depends upon the credibility of any
person other than
the person giving such evidence;
'party'
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution.
23.
In
S v Ndhlovu
and Others
2002 (2) SACR 325
(SCA)
at
paras 27-34 Cameron JA (at the time) dealt comprehensively with the
dangers of trying to apply
section 3(1)(b)
and allow an accused’s
statement in provisionally on the basis that he may testify later.
Although the judgment was overturned
on appeal in respect of an
extracurial statement of an accused not being admissible against his
co-accused it appears that the
dictum
in
these passages remains unaffected. At para 33 the court said:
“
The
'probative value' of the accused's statements to the police did not
depend on their credibility at the time of the trial - which
the
Court rightly found totally lacking - but on their credibility at the
time of their arrest. And the admissibility of those
statements
depended not on the happenstance of whether they chose to testify but
on the interests of justice.”
24.
In order to be admissible the statement
would have to qualify under
section 3(1)
(c); the essential
consideration for its reception as evidentiary material (ie; without
considering its weight) under this subsection
is whether the
interests of justice require it.
I
proceed to consider whether the statement should be received into
evidence under this subsection.
25.
The nature of the evidence is an
extracurial statement purportedly made by the accused to the
investigating officer the contents
of which are sought to be used
against the accused.
26.
Under
common law such a statement was excluded. However through statutory
intervention confessions came to be admitted provided
they were made
freely and voluntarily
[8]
and
legislative measures were later introduced under
section 219A
to deal
with admissions provided they were freely made.
27.
Nonetheless the starting point
in our law remains the following statement by Innes CJ in Rex v
Barlin1926 AD 459 at 462:
"The
common law allows no statement made by an accused person to be given
in evidence against himself unless it is shown by
the prosecution to
have been freely and voluntarily made --- in the sense that it has
not been induced by any promise or threat
proceeding from a person in
authority. See Rex v Thompson (1893, 2 K.B at p. 12), and Ibrahim v
Rex
(111. L.T. 23).
"
28.
In
Burton
this statement was applied where the State sought to introduce an
exculpatory statement made by the accused in order to discredit
his
alibi- a case therefore very much in point. At 778 the court
set out the basis upon which the Crown sought to rely on
the
accused’s statement:
“
This
statement by the appellant was intended to be completely exculpatory.
He was obviously trying to account for the fact of his
having
suddenly left his employment, by showing that this did not occur
because he had stolen money, but by reason of something
of an
entirely different character, so that no inference of guilt could be
drawn from his disappearance, such as might ordinarily
well have been
drawn. But, in effect, it proved a most damaging statement, for the
learned Judge a quo drew from it the inference
that the appellant,
feeling an urgent necessity to get away, took the money in order to
pay his railway fare. It was prejudicial
to him in another way also,
because it contradicted the statement made in evidence by the
appellant that he only left to attend
to some private affairs and
that he had told his employer that he was leaving; it thus
corroborated the evidence of the employer
that he had in fact not
done so.”
29.
Despite being an exculpatory
statement the Appellate Division admitted the statement into evidence
after it was satisfied that it
had been made freely and voluntarily.
In
Barlin
at
463 Innes CJ had said as much as a general proposition in our law
after finding that any statement made by an accused to a person
in
authority was only admissible if made freely and voluntarily:
“
Statements
which, though not confessions of the commission of an offence, are
prejudicial to the accused fall to be dealt with under
the common
law, and not under the statute. The matter before us affords an
excellent example of such a statement.
”
30.
It
must therefore be accepted that where a statement made by the accused
is sought to be introduced into evidence, at least in the
case where
it is made to someone in authority, it must be made freely and
voluntarily. The
Law of Evidence Amendment Act did
not allow all
hearsay statements (as defined by
section 3(4))
into evidence if the
requirements of either
section 3(1)
(b) or (c) were met.
Section 3(2)
still expressly excludes the admission of evidence that would
otherwise have been inadmissibly but for the
section 3(1)
provisions
[9]
.
31.
It therefore appears that even if the
extracurial statement was to satisfy the other requirements of
section 3(1)
(c) it would still have to be freely and voluntarily
made before it could be admitted.
32.
The requirement that an extracurial
statement to someone in authority (and it is unnecessary to consider
the position if made to
someone not in authority but who could exert
pressure) must be made freely and voluntarily is reinforced by two
provisions in the
Constitution; most obviously section 35(3) under
subsections (h) and (j) which guarantee an accused the right to a
fair trial by
which is also included the right to remain silent
(which would be undermined if there is, for instance, coercion) and
the right not to be compelled to give self-incriminating evidence;
which I would understand from the passages referenced
in
Wigmore and the cases of
Barlin
and
Burton
to
include evidence that may damage the accused’s credibility.
33.
Moreover section 9(1) of the Constitution
provides that: “
Everyone is equal
before the law and has the right to equal protection and benefit of
the law.”
34.
In
Mhlongo
the
Constitutional Court dealt in depth with the equality provision in
relation to confessions and admissions. In my respectful
view the
same considerations apply to any extracurial statement made (at least
to someone in authority) which, for whatever reason,
may damage the
accused’s case.
The
reason is that our common law draws no distinction between such
extracurial statements, as is evident from a reading of
Barlin
and
Burton
.
The essential safeguard to allowing such statements into evidence is
the requirement of free volition on the part of the maker.
See
Mhlongo
at
para 35. The Constitutional Court found that there was no rational
basis for distinguishing a confession from an admission in
the case
of a co-accused against whom the statement was sought to be tendered
in evidence. The same considerations apply to an
extracurial
exculpatory statement sought to be used to challenge the accused’s
testimony on the basis of credibility as the
consequences are as
damaging.
35.
It appears to me that the purpose for which
the evidence is tendered, namely not as truth of content but to
challenge credibility,
would justify the introduction of the
evidence, since a prior inconsistent statement (for reasons given
earlier) can be used against
an accused.
36.
In one sense the probative value of the
evidence is high since it goes directly to credibility. On the other
it is dependent on
the court being satisfied that the inherent
dangers of receiving an extracurial statement made to a person in
authority can be
safeguarded against.
37.
At this stage it must be assumed that the
accused might not testify and if he does then it is unlikely that he
will give the same
evidence as contained in his statement if his
version remains that which was put by Adv Cindi to the State
witnesses.
38.
It is evident that the evidence will be
prejudicial to the accused and therefore it is essential to ensure
that if admitted, it
was freely and voluntarily made.
In
this regard in
S v Mangena and Another
2012 (2) SACR 170
(GSJ) at paras 31-33 I sought to demonstrate that
the word “
voluntarily”
in section 219A was broad enough to encompass that the statement had
to also be made freely. It also accords with our common
law
requirements in relation to any extra-judicial statement made to a
person in authority.
39.
In the result I am satisfied,
provided the statement was made freely and voluntarily, that it would
otherwise be in the interests
of justice to admit it into evidence.
40.
Before considering the evidence it is
necessary to deal briefly with the State’s contention that the
accused bears the onus
of demonstrating, on a balance of
probabilities, that the statement was made freely and voluntarily.
ONUS
41.
Adv Sinthumule submitted that the rule of
“
he who asserts must prove
”
applies and that the accused claimed that he had been coerced to make
the statement.
42.
Even
if it is possible for the rule to find application in an instances
where the State does not have to prove each element of its
case
beyond a reasonable doubt when dealing with the admission of
extracurial statements our law was clearly stated in
Burton
at
779; the Appellate Division expressly holding that in regard to onus
to prove that a statement was freely and voluntarily made
no
distinction can be drawn between admissions and exculpatory
statements
[10]
. Compare
S
v Zuma and others
1995(2)
SA 642 (CC) in relation to the presumptions contained in section
217(1)(b)(ii) and Zeffertt & Paizes at 520-521
under the
heading ‘
Onus
of proof’
43.
In my view it is trite that the State
must prove beyond a reasonable doubt that an extracurial exculpatory
statement was freely
and voluntarily made.
THE
EVIDENCE
44.
The trial within a trial commenced with Sgt
Magoro confirming that he advised accused number four (who I will
simply refer to as
the accused) of his constitutional rights when he
was arrested and whether the accused wished to make a statement. The
accused
then freely and voluntarily elected to make the statement.
45.
The sergeant testified that whatever the
accused said was reduced to writing and signed. As appears later this
is incorrect.
46.
Under cross examination the sergeant was
asked about the events after the accused was arrested. He replied
that the accused was
asked whether he wished to make a statement to
the sergeant, or in court or to a lawyer of choice.
47.
After electing to make a statement to the
sergeant the latter posed questions about where the accused was on
the day of the incident
and whether he knew anything about the death
of the deceased or participated in his killing. The sergeant also
asked whether he
knew the other accused. The statement was taken down
in the sergeant’s office.
48.
Magoro testified that he asked the accused
about the other offence, which was apparently then described as
assaulting a Mr
D Dlomo with the intent to do grievous bodily
harm (although the charges before the court are of attempted murder
and kidnapping).
Magoro conceded that this was part of the same
investigation with which he was entrusted and confirmed that the
accused had denied
assaulting Dlomo.
The
sergeant when asked whether the accused’s denial was reduced to
writing answered that it was not. Magoro offered as the
only
explanation that he was more concerned about the murder charge
despite the docket already including charges relating to Dlomo
and in
respect of which the other accused had already been charged, together
with that of murder, and been brought before court
to answer. As
Magoro put it; “
the assault was
important but not more important than the killing”
.
49.
The sergeant also could not explain why he
took down the statement when it was a simple matter of arranging for
the accused to be
taken to a ranking officer at another police
station unconnected with the investigation. Although the witness said
that he was
aware of the standing orders and judges rules regarding
the taking down of statements he testified that this is the usual way
he
takes statements of suspects in cases he is investigating.
50.
It also turned out that the accused
was arrested after his co-accused had appeared in court on four
earlier occasions and after
the Director of Public Prosecutions had
directed that the outstanding suspects be traced and arrested; such
instructions were noted
as early as 20 January 2015. The sergeant
could not dispute that he had received an instruction to obtain a
statement from the
accused in relation to the case.
51.
It also turned out from the sergeant’s
evidence that he knew the accused’s cellphone number as he had
called the accused
prior to the arrest to arrange a meeting although
no exact date was set. The sergeant however disputed that he had
visited the
accused’s shack on four earlier occasions to
interview him.
52.
The sergeant denied that he wanted the
accused to implicate three suspects (who are accused 1, 2 and 3
before the court) in the
killing of the deceased and the assault on
Dlomo. The sergeant also denied that he threatened to arrest and
detain the accused
if the latter did not make a statement or that the
accused would not be able to obtain bail (presumably because of the
charges
to be proffered and that bail would be vigorously opposed).
It was however admitted that the sergeant wrote down the statement
after questioning the accused and, as already mentioned, did not
write down every key thing that was said.
53.
The accused then testified and related how
the sergeant had visited him on four earlier occasions to ask whether
he had any knowledge
of the burning of the deceased and the assault.
The sergeant did not make notes during these interviews. The accused
claimed that
when he was asked to go to the police station on 24
March 2015 the sergeant said that he need not lock the shack or take
his crutches
as he would be returning soon. The accused also
alleged that he was not yet under arrest or charged when he
accompanied them
to the police station. He was then told that the
judge needed the statement regarding the other three suspects who had
already
been arrested. The accused refused to make a statement and it
was then that the sergeant allegedly threatened him with arrest and
detention. Under cross-examination the accused said that he made the
statement to avoid arrest and detention. He later said that
he would
not otherwise have made it. The accused also said that he
was just told to sign the statement but did not
have it read back to
him nor was he given it to read.
54.
When asked why the sergeant would visit him
on four previous occasions the accused said it was because the police
wanted him to
be a witness for the State against the other three
suspects.
WEIGHING
THE EVIDENCE
55.
The court cannot gain an impression of the
credibility of those who testified having regard to the brief nature
of their examination
and cross examination. Both come across as
credible witnesses.
56.
As stated earlier the test for accepting
evidence is not on a balance of probabilities but on whether the
State has proven beyond
a reasonable doubt that the statement was not
made freely and voluntarily.
57.
In this regard the court has the following
concerns which have not been dispelled;
a.
The fact that the accused’s
whereabouts and cellphone number was known to the police but despite
an instruction already on
20 January 2015 to trace and arrest the
outstanding suspects the accused was not arrested until two months
later. This objectively
speaking would be consistent with an attempt
to use the accused as a witness against the other three who had been
arrested some
time earlier;
b.
The explanation that a statement of this
nature is usually taken down by the investigating officer poses
problems if the suspect
then makes a confession since under section
217 it cannot be introduced into evidence. There are enough cases
that have come before
this court where an accused reconsiders his
position. It occurs where a legal representative has been appointed
or the accused
receives advice from other sources. The dangers of not
being able to use a confession genuinely made at the time which is
not “technically”
compliant with section 217 raises
sufficient concern for the court to question whether the police
appreciated that the accused
would have been unwilling to make a
statement if exposed to someone who was not part of the police team
which objectively heightens
the risk of a threat.
c.
The selective nature with which the
statement was taken down which objectively is inconsistent with the
purpose of a warning statement
in respect of a person who allegedly
was already facing two charges.
RULING
58.
In my view the risk of the statement being
made in the circumstances described by the accused is too great for
the State to have
satisfied the court that it was in fact made freely
and voluntarily, rendering it unnecessary to decide the extent
to which
its probative value precludes it being in the interests of
justice to receive the statement into evidence under section 3(1)(c).
59.
I accordingly exclude the statement of the
accused on that ground, as preserved by
section 3(2)
of the
Law of
Evidence Amendment Act.
SPILG
,
J
DATES
OF HEARING: 10, 11, 12 and 13 May 2016
DATE
OF RULING: 16 May 2016
LEGAL
REPRESENTATIVES:
FOR
THE STATE: Adv VS Sinthumule
FOR
ACCUSED no. 4: Adv L Cindi
[1]
See
also
S
v Molimi
2008(2)
SACR 76 (CC) at para 28
The
term ‘
unequivocal’,
at least in crimes where
mens
rea
is an element, means unequivocal if regard is had to the
statement as a whole and the surrounding circumstances from which
the
necessary implication can be drawn that the accused has
confessed. See
S v Yende
1987(3) SA 367 (A) at 374H. See also
The South African Law of Evidence
(2
nd
) Zeffertt &
Paizes at 525-6
[2]
Zeffertt
& Paizes (supra) at 475;
Principles
of Evidence
(3
rd
)
Schwikkard & van der Merwe at para 16 p 305
[3]
Section
14 of the Criminal Procedure Amendment Act 56 of 1979
[4]
See
at 837:
‘
'.
. . the rule is that when proof of an admission made by a party is
admitted, such party is entitled to have the whole statement
put
before the Court and the judicial officer or jury must take into
consideration everything contained in the statement relating
to the
matter in issue. . . . Naturally, the fact that the statement is not
made under oath, and is not subject to cross-examination,
detracts
very much from the weight to be given to those portions of the
statement favourable to its author as compared with the
weight which
would be given to them if he had made them under oath, but he is
entitled to have them taken into consideration,
to be accepted or
rejected according to the Court's view of their cogency.'
[5]
Burton
at
779-80:
“
.
But it sought to limit the statements to which the rule applied to
such statements as are in the nature of admissions and it
sought
particularly to exclude exculpatory statements; Wigmore par. 821 was
relied on. But it seems to me that there are weighty
reasons for
rejecting this contention. As was pointed out by INNES, C.J., in
Barlin's case, the statement by the accused in that
case, which was
that "the goods had been bought from various firms" was
intended to be purely exculpatory, but it "undoubtedly
prejudiced him because it was manifestly false"…. I can
see no ground for reconsidering the decisions in Rex v Barlin
and
Rex v Dunga which, as I have said, both definitely decided that even
a statement by an accused person which was intended
to be, and was
on the face of it, exculpatory, must be shown to have been made
freely and voluntarily.”
[6]
Both
extracts from Wigmore para 1048 subpara (1) (b) and (3).
[7]
Wigmore
at para 1048 subpara (1)(a) and (2)
[8]
Currently
section 217 of the CPA
[9]
S
v Mhlongo; S v Nkosi
2015 (2) SACR 323
(CC) at paras 28, 29 and 31
[10]
Burton
at
779:
‘
That
the onus was on the prosecution, wherever it is necessary to prove
that the statement was freely and voluntarily made, to
establish
this fact, was admitted by the Crown --- and rightly so. But it
sought to limit the statements to which the rule applied
to such
statements as are in the nature of admissions and it sought
particularly to exclude exculpatory statements; Wigmore par.
821 was
relied on. But it seems to me that there are weighty reasons for
rejecting this contention.’