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[2013] ZASCA 171
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Makhokha v S (258/13) [2013] ZASCA 171 (28 November 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 258/13
In
the matters between:
LUCKY
MASHUDU MAKHOKHA
…………………………………………………
APPELLANT
and
THE
STATE
…………………………………………………………………………
RESPONDENT
Neutral
citation: Makhokha v The State (258/13)
[2013] ZASCA 171
(28November
2013)
Coram: Brand, Lewis,
Cachalia JJA
Heard:
26
November 2013
Delivered:
28
November 2013
Summary:
A confession that does not meet the requirements of
s 217
(1) of the
Criminal Procedure Act 51 of 1977
is not admissible as evidence.
Conviction on the strength of it is irregular and vitiates trial.
Conviction set aside.
ORDER
On appeal from Limpopo
High Court, Thohoyandou (Lukoto AJ sitting as court of first
instance):
The appeal is upheld. The
convictions of the appellant are set aside.
JUDGMENT
Lewis
JA (Brand and Cachalia JJA concurring):
[1]On
19 January 2005 the appellant was convicted by the Limpopo High Court
(Thohoyandou) (Lukoto AJ) on one count of theft and
one of robbery,
and sentenced to imprisonment of six years and 15 years respectively,
the sentences to run consecutively. That
court (per Snyman AJ)
refused the appellant’s application for leave to appeal. Some
four years later this court granted leave
to appeal against both
conviction and sentence. The appellant has been imprisoned for the
past eight years.
[2]
The sole basis for the conviction was a statement made by the
appellant to an Inspector Ramovha. The statement was introduced
by
the State when Ramovha was giving evidence. He read it into the
record. The appellant did not, during the course of the trial,
contest the admissibility of the statement and no trial within a
trial was held to determine the issue. The statement, argued the
appellant on appeal, amounted to a confession. It was reduced to
writing on the standard form headed ‘Statement regarding
interview with suspect’. In it the appellant confessed to
stealing a vehicle and to robbing (hijacking) another. The only
argument raised by the State on appeal was that the statement did not
amount to a confession since the appellant did not admit
to all the
elements of the offences expressly in that he did not identify the
vehicle stolen or that robbed sufficiently. But the
State conceded
that if that were the case then the trial court could not have
convicted the appellant on the strength of the statement
as an
admission.
[3]
The appellant, in the written statement, said that “The engine
which was found at my home was of the Caravella which I
steal from .
. . .’ And he described the robbery similarly, saying he
intended to ‘hijack’ a Caravella or Microbus,
and
explained how he had gone about it with accomplices. The written
statement thus quite clearly amounted to a confession in respect
of
both charges.
[4]
The confession was not made to a peace officer (Ramovha was not a
commissioned officer) and it did not comply with the other
requirement s of
s 217
(1) of the
Criminal Procedure Act 51 of 1977
.
Under that section a confession is admissible in evidence if made to
a peace officer provided that it is confirmed and reduced
to writing
in the ‘presence of a magistrate or justice’. The
appellant’s confession was made only to a police
inspector who
had no power to take it, and was not confirmed in the presence of
either a magistrate or a justice. That in itself
made it
inadmissible.
[5]
Moreover, the statement was not handed in as an exhibit by the State
when Ramovha testified. And when the State cross-examined
the
appellant, the appellant’s legal representative suggested to
the court that the appellant should decide if he had any
objection to
the statement being handed in during the course of his evidence. The
appellant said that he did not object. His lawyer
said: ‘Well,
if he has no objection himself, then I shall not have any then.’
[6]
The statement was irregular in various other respects. It is not
necessary to deal with them. (The State explained that it was
for
this reason that it did not seek to admit the statement formally but
introduced it through the evidence of Ramovha.)
[7]
The appellant argued on appeal that the admission of the confession
in this manner was so grossly unfair that it rendered the
trial
irregular. I agree. The trial judge should not have permitted the
admission of the confession in this way or at all given
that it did
not meet the requirements of
s 217(1)
of the Act.
[8]
In my view, the trial was vitiated by this gross irregularity and the
convictions and sentences imposed must accordingly be
set aside.
[9]
The appeal is upheld. The convictions of the appellant are set aside.
C
H LEWIS
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: L M Manzini
Instructed
by:
M C Mogashoa,
Polokwane
Justice Centre,
Bloemfontein
For
the Respondent: A I S Poodhun
Instructed
by:
The
Director of Public Prosecutions, Limpopo
The
Director of Public Prosecutions, Bloemfontein