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[2013] ZASCA 132
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Gama v S (127/13) [2013] ZASCA 132 (27 September 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 127/13
Not Reportable
In the matter between:
BONGANI GAMA
...............................................................................................
Appellant
and
THE STATE
....................................................................................................
Respondent
Neutral citation
:
Gama v State
(127/13)
[2013] ZASCA132 (27/09/ 2013)
Coram:
MALAN, THERON, MAJIEDT, SALDULKER JJA and
VAN DER MERWE AJA
Heard:
9 September 2013
Delivered:
27 September 2013
Summary: Criminal Law and Procedure:
Section 217(1)
of the
Criminal Procedure Act 51 of 1977
– whether confession
made by a suspect to undercover policeman, a captain in the SAPS, in
regard to an offence is admissible
against an accused without a trial
within a trial.
_____________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (Du Plessis and Louw JJ, sitting as
court of appeal):
The appeal is upheld
The order of the court below is set aside and
substituted with the following:
‘
(a) The appeal succeeds.
(b) The appellant’s convictions and sentences are
set aside.’
JUDGMENT
SALDULKER JA(MALAN, THERON, MAJIEDT JJA and VAN DER
MERWE AJA concurring):
[1] The appellant,Mr Bongani Gama, and his co-accused
(accused two), were convicted on 17 February 2006 in the Regional
Court, Benoni,
on one count of housebreaking with the intent to
commit a crime unknown to the State (count 1), four counts of robbery
with aggravating
circumstances (counts 2 to 5), one count of unlawful
possession of firearms (count 6) and one count of unlawful possession
of ammunition
(count 7). They were each sentenced to five years’
imprisonment on count 1, fifteen years’ imprisonment on counts
2
to 5 (taken together for the purpose of sentencing), and five
years’ imprisonment on counts 6 and 7 (taken together for the
purpose of sentencing).
[2] The appellant’s appeal to the North Gauteng
High Court (Du Plessis and Louw JJ) on 9 March 2009 was partially
successful
in that the convictions and sentences on counts 6 and 7
were set aside. The effective sentence of 25 years’
imprisonment
imposed by the Regional Court was reduced to 20 years’
imprisonment. On 6 December 2011 the appellant was granted leave to
appeal by the North Gauteng High Court against the convictions and
sentences on counts 1 to 5.
The facts
[3] The issue in this appeal is whether the evidence
alleging that a confession had been made to an undercover operative,
being
a captain in the South African Police Service (SAPS), should
have been tested by way of a trial withina trial to determine its
admissibility. The salient features relevant to this appeal are as
follows. On the evening of 3 April 2005, at the business premises
of
Sparta Foods, Benoni, four security guards were overpowered by masked
robbers and robbed of personal belongings as well as property
belonging to the business. An office on the premises was broken into
and cash and cheques were removed from a safe.Therobbers were
able to
open a drawer in the drop safe from which they managed to ‘fish’
out cheques and money, that is, they extracted
them by using a wire
or similar object.
[4] The most important incriminating evidence against
the appellant was adduced by Touch, a captain in the SAPS, who was an
undercover
agent investigating a drug syndicate at the time. That
evidence concerned an alleged oral confession made to him by the
appellant.
Touch testified that he met accused two and they developed
regular telephonic contact with each other. On 6 April 2005, accused
two contacted him in connection with a ‘job’, and
informed Touch that the appellant would also be involved. A meeting
was arranged with accused twoand the appellant. At that meeting,
cheques to the value of some R70000 were shown to him, and their
origin divulged by the appellant. As a result of the information
imparted to him by the appellant, Touch carried out his own
investigation.
He found out that a business, Sparta Foods, had, in
fact, been robbed on 3 April. He contacted Inspector Zwane, the
investigating
officer in that matter, and made arrangements to bring
the appellant and accused two to a pre-arranged meeting place where
the
appellant and his co-accused were arrested by Inspector Zwane and
his men. Both the appellant and his co-accused denied knowledge
of
the stolen cheques and the firearms, blaming the policemen for
conspiring against them.
[5] During the trial, there were discrepancies in the
testimony of the police officers regardingin whose possession the
stolen cheques
were found. The trial court dealt with them, correctly
preferring the evidence of Inspector Zwane that the stolen items were
found
in the possession of accused two and not the appellant. They
were, however, both implicated in their possession, and the trial
court found the appellant guilty on the basis of the doctrine of
recent possession. It is of some significance that the trial court
did not place any reliance on the confession allegedly made to Touch
by the appellant.
[6] However, when the matter came before the North
Gauteng High Court on appeal, Du Plessis J (Louw J concurring) found
that the
appellant had been erroneously convicted on the basis of the
doctrine of recent possession, and held that the conviction of the
appellant was completely dependent on the truth of the confession
that he had made to Touch. The court below confirmed the conviction
of the appellant on the housebreaking and robbery counts on the basis
that the confession made by the appellant to Touch,
ex
officio
a justice of the peace, was
admissible as it was freely and voluntarily made, and corroborated
the evidence of the State witnesses
as to the events during the
robbery. It is necessary to record at the outset that the State did
not alert the trial court at all
that it would be tendering evidence
which may amount to a confession. This was a fundamental miscarriage
of justice. While the
high court was correct in finding that the
appellant had been wrongly convicted on the basis of the doctrine of
recent possession,
it also erred in confirming the conviction on the
basis of the appellant’s confession. If there had been any
doubt as to
whether the appellant’s statement amounted to a
confession, the prosecutor was duty bound to inform the trial court
accordingly.
The magistrate should in those circumstances have
conducted the preliminary inquiry to determine firstly whether the
appellant
had made the statement and, if so, the nature thereof. If
the finding was that it did amount to a confession, a trial within a
trial had to be held to determine its admissibility.
1
If the proper procedure had been followed, the State
would have had to prove the admissibility requirements, which is the
aspect
that I turn to next.
Admissibility of confession
[7] The principles underlying the admissibility of a
confession are set out in s 217 of the Criminal Procedure Act 51 of
1977 (the
Act), which provides that:
‘
(1)
Evidence of any confession made by any person in relation to the
commission of any offence shall, if such confession is proved
to have
been freely and voluntarily made by such person in his sound and
sober senses and without having been unduly influenced
thereto, be
admissible in evidence against such person at criminal proceedings
relating to such offence: Provided -
(a)
that
a confession made to a peace officer, other than a magistrate or
justice or, in the case of a peace officer referred to in
section
334, a confession made to such peace
officer
which relates to an offence with reference to which such peace
officer is authorized to exercise any power conferred upon
him under
that section, shall not be admissible in evidence unless confirmed
and reduced to writing in the presence of a magistrate
or justice;. .
. .’(My emphasis.)
[8] Thus, a confession made to a magistrate or justice
does not fall within the scope of the proviso and is therefore
admissible
provided the requirements of s 217(1) relating to
voluntariness are satisfied. A ‘peace officer’ is defined
in s 1,
as including ‘any magistrate, justice, police official,
correctional official as defined in section 1 of the Correctional
Services Act, 1959 (Act 8 of 1959). . .’A commissioned officer
of the SAPS is a member holding the rank of lieutenant or
higher, and
isin terms of s 4 of the Justices of the Peace and Commissioners of
Oaths Act 16 of 1963
2
read
with the First Schedule to that Act,
ex
officio
a justice of the peace and therefore
entitled to take a confession.The underlying rationale of s 217(1) is
based on the fundamental
principle that no inducement or coercion be
brought to bear on an accused person to confess. The confession made
by the appellant
to Touch raises the issue whether it was properly
obtained.
The evidence
[9] No trial within a trial was held to determine the
admissibility of the confession. Prior to leading evidence of the
confession,
the State informed the court that it was presenting the
evidence of an informer who was willing to testify on the basis that
his
real name not be used. No objection was raised against this.
Without saying anything further, the State called Touch, who
identified
himself. The State commenced with his examination in chief
by asking whether the accused knew at the time of their meetingthat
he was a police officer. He answered that they did not.
[10]
The following further evidence
emerged:
‘
Okay.
So now how did it came about that you learnt about this case? - - On
04 April 2005 I received a call from Justice [accused
2].
Was there anything that gave,
that led up to him giving you this call or was it just out of the
blue?
-- He phoned me as we used to
communicate, he just phoned me on that day, on 04 April 2005.
And you say you used to
communicate, did you communicate with him often? - - Yes he was
phoning me, and then I was phoning him sometimes,
but mostly he was
the phone who was phoning me.
In your communications with him,
did you ever tempt him or entice him regarding the commission of any
crime? - - Not at all sir.
Regarding any crime which was
already under way, did you ever egg (sic) him on to carry on with it
or encourage him to be more involved
than what he already was? - -
No, I never encouraged him, but he is the one who told me what they
have already done most of the
time.
At any stage in your
communication with him, did he ever indicate that he wants to
withdraw from any participation in any crime?
- - He never did so
sir.
Okay, so he phoned you on the
04
th
you say? - -
Yes sir, on 04 April 2005.
What did he say? - - He told me
that he has a job to be done and he wants me to be part of that job.
He said Bongani [the appellant]
will also be part of that job.
Did you know who Bongani is? - -
Yes, by that time I already met him.
Who is Bongani? - - He is the
guy, it is accused 1, I am not sure, the other one on the other side.
And how did you meet Bongani? -
- I met him when I was in Actonville, he came with Justice.
Did you ever entice Bongani
to be involved in any crime? - - No I never enticed him.
Did you ever encourage him to
be more involved than what he was in any way? - - I never even
communicated with him except
when I saw him with Justice.
Okay, he said that he has a job
and Bongani will be a part, what else did he say, that is now
Justice? - - He told me that we should
set up an appointment if
possible the following day, 05 April 2005 at 16:00. He told me that I
should meet them at a shopping centre
next to Actonville Hospital.
How did you know it was Justice
you were talking to? - - I know the number that he was using, the
cellular phone number, it was
0835266411.
Did you often communicate with
him on this number? - - Yes I often, but other days he used to use a
public phone.
Did he tell you what this
meeting at the hospital was about? - - He did not tell me
specifically what the meeting was about, but
he only told me that,
he
also told me that he has cheques that they got of about R70 000.00.
Then I told him that if possible he must bring them
along the
following day so that I can see them.
Did you meet him on the 05
th
?
- - Yes I did meet Justice and Bongani on the 05
th
,
it was round about 16:10 in the afternoon.
Were you alone with them? - -
Yes I was alone.
And what happened at that
meeting? - - Justice showed me the two cheques that he had.
Do you recall those cheques at
all? - - Yes I do remember them. One cheque it was an ABSA cheque, it
was ABC East Gate Vereeniging
branch. The amount was written on the
cheque, it was R35 967.71. The date on the cheque written it was
01 April 2005. The
second cheque it was a Standard Bank cheque
Fourways Crossing. The date on the cheque it was 31 March 2005. Both
cheques were addressed
to Sparta Foods Pty Ltd.
Why do you remember that? -
-
I remember that because I did write that information from a piece of
paper, because I told them that I have got a contract who
might cash
the cheques.
Who were you talking to about
the fact that you have this contact? - - It was both of them, I was
just, because the aim when I told
them they must bring them that I
have got a contact, the aim was to see the information on those
cheques so that I can see the
origin of them.
Who is the one who possessed
the cheques? - - It was Justice that had those cheques.
Why did they show you these
cheques? - - Because I requested Justice the previous day to bring
those cheques so that I can see them
as my contact might be in a
position to cash them.
Was anything else told to you
about these cheques? - - Come again sir?
Was anything else told to you
about these cheques? - - Eh, I will continue, thenBonganiKhumalo said
those they have got them at
a certain shop in Petit.
Who said that? - - Bongani.
He said on 03 April 2005 they went to rob that shop in Petit. They
broke into a safe whereby they used
a wire to pull out the money from
the safe. These two cheques was part of the money that came out of
that safe.
Did they tell you anything
else about that robbery, any other details? - - Yes sir, Bongani
further said that one of their friends
took guard of the security
guards whom they found at that shop
.
. . ’(My emphasis.)
[11] Towards the end of Touch’s examination in
chief, when questioned in regard to the voluntariness of his
statement, the
following evidence emerged:
‘
Okay.
Did
they say that to you voluntarily
?
- -
Yes sir.
Was it a
spontaneous
statement or did you elicit this information from them
?
- - No,
the one who
told me what has happened, how did they got those cheques.
Is that all you asked them? - -
Yes, it is what they told me.
Did you promise them anything
if they should tell you this? - - Nothing at all sir.
Did they appear sober when
they spoke to you? - -
They were sober sir.
Did you threaten them in any
way? - - Not at all sir.
They did not know at that
stage that you were employed in the police? - - They did not
know
.’(My
emphasis.)
[12] It is apparent from Touch’s testimony that
neither the court nor the appellant’s legal representative
raised any
objection to the evidence relating to the confession or
suggested that its admissibility be dealt with in a trial within a
trial.
The appellant, in his own evidence, denied that he had made
the confession.
[13] The admissibility of a confession where the
question is whether it was freely and voluntarily made and where it
is disputed
on the ground that it was obtained in violation of other
fundamental rights, and where the facts are not common cause between
the
parties, is to be adjudicated upon at a trial within a trial, an
insulated enquiry where only the admissibility of a confession
is
determined independently of the question of guilt.
3
The defence is entitled to lead evidence in rebuttal. It
was for the prosecutor to inform the court and the defence that it
intended
to lead evidence of a confession made by the accused as part
of the State’s case. If the defence had raised an objection a
trial within a trialwould have had to follow. In admissibility
challenges the State has the onus of proving that the evidence of
the
confession has been obtained in a constitutional manner, and that no
pressure has been brought to bear on an accused person
which will
corrode his free will.
4
[14] It is a disquieting feature of this case that the
prosecution at no stage told the court that evidence would be led of
the
confession made by the appellant. As demonstrated above, this
constituted a fundamental miscarriage of justice on its own.No
challengesweremadeby
the appellant, nor was a trial within a trial
held. In the absence of a trial within a trial it was improper for
the State to lead
evidence of a confession in the manner that it
did.Although the trial court did not rely on the confession in
convicting the appellant,
the high court did and convicted him on
that basis.
[15] In
Director of Public
Prosecutions, Transvaal v Viljoen
2005(1)
SACR 505 (SCA)para 39 the following was said by Streicher JA:
‘
A
trial within-a-trial is, as the phrase indicates, a trial held while
the main trial is in progress in order to determine a factual
issue
separately from the main issues. Such a procedure is not unfair to
the accused. On the contrary, it is a procedure that evolved
in the
interests of justice and in fairness to the accused. In
R
v Wong Kam-Ming
[1980]
AC 247
(PC) [1979] 69 Cr App Rep 47;
[1979] 1 All ER 939)
at 261 B-C
Lord Hailsham of St Marylebone said:
“
(A)ny
civilised system of criminal jurisprudence must accord to the
Judiciary some means of excluding confessions or admissions
obtained
by improper methods. This is not only because of the potential
unreliability of such statements, but also, and perhaps
mainly,
because in a civilised society it is vital that persons in custody or
charged with offences should not be subjected to
ill-treatment or
improper pressure in order to extract confessions. It is therefore of
very great importance that the courts should
continue to insist that
before extra-judicial statements can be admitted in evidence the
prosecution must be made to prove beyond
reasonable doubt that the
statement was not obtained in a manner which should be reprobated and
was therefore in the truest sense
voluntary. For this reason it is
necessary that the defendant should be able and feel free either by
his own testimony or by other
means to challenge the voluntary
character of the tendered statement.”
In
S
v De Vries
[1989 (1)
SACR 228
(A)] Nicholas AJA, after having referred to this passage,
said:
“
It is
accordingly essential that the issue of voluntariness should be kept
clearly distinct from the issue of guilt. This is achieved
by
insulating the enquiry into voluntariness in a compartment separate
from the main trial . . . In South Africa (the enquiry)
is made at a
so-called “trial within the trial”. Where therefore the
question of admissibility of a confession is clearly
raised, an
accused person has the right to have that question tried as a
separate and distinct issue. At such a trial, the accused
can go into
the witness-box on the issue of voluntariness without being exposed
to general cross-examination on the issue of guilt.
(See
R
v Dunga
1934
AD 223
at 226.)”’
An accused person has a right to a fair trial to be
conducted in accordance with ‘notions of basic fairness and
justice’.
5
The
admission of a confession in the absence of a trial within a trial in
the circumstances of this case offends against these notions.
[16] The criminal justice system is built on the tenets
of justice and fairness. A fair trial requires an impartial judicial
officer
and a scrupulously fair prosecutor. The state prosecutor has
a public duty to perform his or her duties impartially and fairly,
with honesty and integrity, consistently performing his or her
functions independently and objectively, with lawful authority,
and
at the same time upholding human rights and protecting human dignity.
He or she cannot use irregular and improper means to
secure a
conviction. The injustice of placing before the trial court the
confession of the appellant, without first alerting the
court of this
fact, the effect it would have, the undesirability of doing so and
the potential prejudice to the appellant should
have been plain to
see. It follows that evidence of the confession should not have been
admitted. It follows that the appeal must
be upheld and the
convictions and sentences set aside.
[17] In the result the following order is made:
The appeal is upheld.
The order of the court below is set aside and
substituted with the following:
‘
(a) The appeal succeeds.
(b) The appellant’s convictions and sentences are
set aside.’
____________________
H K SALDULKER
JUDGE OF APPEAL
APPEARANCES
For Appellant:
LeanaAugustyn
Instructed by:
Pretoria Justice Centre,
Pretoria
Bloemfontein Justice
Centre, Bloemfontein
For Respondent: G J C
Maritz
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
1
See:
E du Toit ,FJ de Jager, A Paizes, A St Quintin Skeen& S van der
Merwe
Commentary on the
Criminal Procedure Act
(
2013) at
24-51;
S v Nkosi
1980 (3) SA 829
(A) at 844F-845B.
2
Section
4
of the Justices of the Peace and Commissioners of Oaths Act No 16
of 1963 provides as follows:
‘4.
Ex officio
justices of the peace.-The holder of any
office specified in the First Schedule shall be a justice of the
peace for the Republic
and shall possess all such powers and perform
all such duties as are conferred or imposed on justices of the peace
by any law.’
The First Schedule to that Act outlines that the following
office-holders are
ex officio
justices of the peace:
‘Any office mentioned in Column II of Schedule 1 to the Public
Service Act, 1994 (Proclamation No. 103 of 1994), any office
of
Deputy Director-General, Chief Director, Director, Deputy Director
or Assistant Director of a department referred to in Column
I of
that Schedule and any office … which corresponds with any of
the said offices….
Chief of the South African National Defence Force….
Attorney-General, Deputy Attorney-General, Senior State Advocate and
State Advocate.
Commissioned Officer of the South African Police Service.
Commissioned Officer of the Department of Correctional
Services….’(My emphasis.)
3
Director
of Public Prosecutions, Transvaal v Viljoen
2005 (1) SACR 505
(SCA) paras 40-41.
4
R
v Dunga
1934 AD 223
at 226-7;
S v de Vries
1989 (1) SA 228
(A) at 233H–I.
5
S
v Zuma& others
[1995] ZACC 1
;
1995 (1) SACR 568
(CC) para 16;
S v Marx &
another
1996 (2) SACR 140
(W) at 144b-145a.