Brief Summary

Criminal Law — Murder — Robbery with aggravating circumstances — Accused charged with robbery, murder, and unlawful possession of firearms and ammunition — Evidence of witnesses insufficient to identify participants in robbery — Trial-within-a-trial held to determine admissibility of accused's statement — Accused claimed statement was made under duress and without proper legal representation — Court found that the statement was admissible as it was made voluntarily after the accused was informed of his rights.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings were a criminal trial in the High Court of South Africa, Eastern Cape Division (Mthatha), sitting as the Bizana Circuit Court. The matter concerned an indictment alleging robbery with aggravating circumstances, murder (with minimum-sentence implications), and unlawful possession of a firearm and ammunition.

The parties were the State as prosecuting authority and three accused persons who stood trial in these proceedings, namely Camangu Zimele (Accused 2), Siphelo Mase (Accused 3), and Samkelo Mkhutshwa (Accused 4). The indictment had initially included an Accused 1, but charges against Accused 1 were withdrawn in separate proceedings on the basis that the State had insufficient evidence to prosecute him.

All three accused were legally represented throughout the trial. They confirmed awareness of the minimum sentence provisions and their alleged applicability to the murder charge. Each pleaded not guilty to all counts and elected not to provide a plea explanation.

A significant procedural feature of the trial was a trial-within-a-trial (a separate admissibility inquiry) regarding a statement the State sought to introduce against Accused 3 under section 217 of the Criminal Procedure Act 51 of 1977. After the court ruled the statement inadmissible, the State closed its case, and all three accused brought applications for discharge in terms of section 174 of the Criminal Procedure Act. The State conceded it could not oppose the applications.

The general subject-matter of the dispute was whether the State could prove the accused persons’ involvement in a robbery and subsequent events, including the death of a police officer, and whether a contested statement could be admitted to strengthen the State’s case.

2. Material Facts

The indictment alleged that on or about 15 December 2018 at or near the Pick and Save Store in Main Street, Lusikisiki, the perpetrators assaulted several persons by shooting them with firearms, and then forcibly took two cases of Corona beer and an amount of R170 000. The indictment further alleged that firearms were used before, during, or after the robbery, constituting aggravating circumstances.

The indictment also alleged that on or about 15 December 2018 at or near Mrotshozeni in the district of Lusikisiki, the perpetrators unlawfully and intentionally killed Alfred Vila Vutulula, who was a member of the South African Police Service at the time, which was the basis for the alleged applicability of section 51(1) of Act 105 of 1997 to the murder count.

On the evidence presented in the main trial (as summarised by the court), witnesses described a sequence in which, following the robbery, a vehicle attempted to escape under cover of darkness and the deceased was shot by a person travelling on a bakkie in front of the vehicle in which the deceased was travelling. However, none of the State witnesses could identify any of the participants in the robbery or the attempted escape.

It was further established that on 13 September 2019 a firearm was recovered from Accused 2, and ammunition was also recovered. The firearm was linked forensically to a cartridge that had been picked up by a police member along the route taken by the vehicle during the attempted escape.

A disputed factual issue arose concerning a statement dated 15 September 2019 that the State sought to introduce against Accused 3 as a confession under section 217 of the Criminal Procedure Act. Accused 3’s position, as advanced by counsel and later supported by his own testimony in the trial-within-a-trial, was that the statement was not obtained in compliance with constitutional protections and was not made freely and voluntarily. In particular, Accused 3 contended that after his arrest on 13 September 2019 and an interview on 14 September 2019 with Sergeant Ceba, he had indicated he wanted to contact his legal representative, did so, and then elected to make no statement; he contended that this election was not respected when he was later fetched by DPCI members and taken for further questioning on 15 September 2019, and that he was caused to sign a statement without being the author of its contents or being properly informed of his rights at that stage.

The State led evidence from police witnesses, including Sergeant Ceba, Warrant Officer Diko, and Captain Mdepha, to establish that Accused 3 had been advised of constitutional rights and had freely elected to make a confession recorded by Captain Mdepha. The court, however, identified difficulties in the State’s corroboration, including concerns about the reliability of diary notes (EXHIBIT J) said to record the interview process, and it evaluated the police approach to warning statements and constitutional-rights advisements as revealed in the evidence.

After the court excluded the statement dated 15 September 2019, the remaining evidence against the accused consisted largely of the non-identification evidence about the robbery and escape, the observation of Accused 4 near the shop shortly before the robbery (as described by a police witness), and the later recovery from Accused 2 of a firearm linked to a cartridge found along the escape route.

3. Legal Issues

A central legal issue was whether the statement dated 15 September 2019 was admissible against Accused 3 under section 217 of the Criminal Procedure Act 51 of 1977. This required the court to determine whether the State had proved, to the requisite standard, that the statement was made freely and voluntarily and in a manner consistent with constitutional protections relied upon by the defence, including those associated with section 35(1) of the Constitution of the Republic of South Africa, 1996 as raised in argument.

This dispute concerned a combination of fact (what occurred during police interactions and what rights were explained), the application of legal standards to those facts (whether the statutory and constitutional requirements for admissibility were met), and an evaluative assessment of reliability, particularly in relation to corroborative records and police practices described in evidence.

Following the exclusion ruling, the court had to determine whether the accused were entitled to discharge under section 174 of the Criminal Procedure Act. The legal question at that stage was whether there was evidence upon which a court, applying its mind reasonably to such evidence, could convict the accused on any of the counts. This required evaluation of the sufficiency and probative value of circumstantial evidence, particularly the presence of Accused 4 near the robbery scene and the later recovery from Accused 2 of a firearm linked to a cartridge case associated with the events of 15 December 2018.

4. Court’s Reasoning

In the trial-within-a-trial, the court approached the admissibility question on the basis that the State bore the burden of proving that the statement sought to be admitted under section 217 was obtained freely and voluntarily and consistently with the constitutional-rights framework relied upon by the defence. The court considered the evidence of Sergeant Ceba, Warrant Officer Diko, and Captain Mdepha, as well as the testimony of Accused 3, and assessed whether the State’s version was proved beyond a reasonable doubt.

A significant component of the court’s evaluation was its scrutiny of the documentary corroboration offered by the State, particularly Warrant Officer Diko’s desk diary entry (EXHIBIT J). The court identified features of the entry that, in its view, created a suspicion of later alteration, especially concerning the recording of constitutional-rights advisements. The court contrasted handwriting styles and the spatial arrangement of entries, and it considered whether the appearance of additions undermined the State’s attempt to corroborate Diko’s evidence that Accused 3 was properly advised of rights at the outset. The court stated that EXHIBIT J did not corroborate Diko’s evidence and instead created a distinct impression that Diko’s evidence could be unreliable on the rights-warning point, leaving a reasonable possibility that Accused 3’s complaint had merit.

The court also assessed Captain Mdepha’s evidence regarding the pro forma completed for the statement. While the pro forma, read as a whole, prima facie supported the proposition that constitutional rights were explained and that Accused 3 elected to make a statement, the court examined evidence about prevailing police practices concerning “warning statements” and their relationship to interviews and confessions. The court described difficulty with the rationality of the approach advanced by Captain Mdepha, namely that a confession could be obtained first and a warning statement taken later, and it noted that a similar approach had been criticised in another matter mentioned in the judgment. The court’s reasoning emphasised the importance of a process that ensures suspects are appraised of constitutional rights at the earliest opportunity, and it treated the avoidance or perfunctory use of warning statements as undermining the fairness inquiry that courts must conduct when confessions are tendered.

The court further considered Sergeant Ceba’s testimony about warning statements and interviewing practices, including the proposition that interviews may be conducted “in any manner to get what you want,” and his view of warning statements as primarily procedural docket requirements rather than necessarily preceding confessions. The court treated this evidence as indicative of an attitude within the police that could inhibit proper constitutional safeguarding and could, in turn, justify deeper suspicion when police rely mainly on viva voce assertions that rights were explained.

In evaluating the defence version, the court placed weight on the broader context of Accused 3’s conduct and earlier elections. It rejected the State’s argument that Accused 3’s earlier election (during the East London-related interview with Sergeant Ceba) was irrelevant, holding that the relevant inquiry included Accused 3’s state of mind regarding giving a self-incriminating statement to the police. The court reasoned that, once Accused 3 had expressed an election not to make a statement and had sought legal involvement, there was an obligation for that election to be conveyed and respected by subsequent officers engaging with him.

The court additionally considered concerns about the “independence” of the commissioned officer who recorded the statement. It reasoned that the use of a commissioned police officer closely connected institutionally to the investigative environment could undermine the purpose of section 217 in providing a sufficiently safe and independent space in which improper conduct could be disclosed. This formed part of the court’s overall assessment of whether the State had discharged its burden to prove free and voluntary making of the statement.

Against this combined evidentiary and contextual background, the court concluded that the State had failed to prove beyond a reasonable doubt that the statement dated 15 September 2019 was obtained freely and voluntarily, and it ruled that the statement could not form part of the case against the accused.

After this ruling, the court turned to the section 174 applications. It accepted the State’s concession that the applications could not be opposed and explained why discharge was inevitable on the evidence that remained.

On the robbery count, the court emphasised the absence of direct evidence implicating any accused and treated the observation of Accused 4 standing on the sidewalk opposite the shop shortly before the robbery as circumstantial evidence only. Even adopting a generous view that the evidence might be consistent with involvement, the court held that it did not exclude other reasonable inferences, such as innocent presence as a bystander or passer-by. On that basis, the circumstantial evidence did not have the requisite probative value to sustain a conviction.

On the murder count, the court found that there was neither direct nor circumstantial evidence implicating any of the accused before it.

On the firearm and ammunition counts, the court accepted that the evidence showed the recovery of a firearm and ammunition from Accused 2 on 13 September 2019 and that a cartridge case connected to the events of 15 December 2018 was linked to that firearm. However, it treated this as circumstantial evidence which, given the substantial time gap (approximately nine months) and the different location of recovery, did not exclude the inference that another person possessed the firearm on 15 December 2018. As a result, the State’s evidence remained insufficient to require the accused to answer on those counts.

The court accordingly held that it could not be expected of the accused to enter the witness box to supplement deficiencies in the State’s case.

5. Outcome and Relief

The court ruled that the statement dated 15 September 2019 tendered against Accused 3 under section 217 of the Criminal Procedure Act 51 of 1977 was inadmissible and could not form part of the State’s case.

Thereafter, following applications under section 174 of the Criminal Procedure Act, the court found Accused 2, Accused 3, and Accused 4 not guilty and discharged on Counts 1, 2, 3, and 4.

The judgment, as provided, did not include any separate order as to costs.

Cases Cited

S v Siphiwo Morris Jula and Others (Case No 17/2020) (Eastern Cape Division, Mthatha) unreported judgment delivered 19 October 2021.

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 35(1) as referenced in the judgment; sections 25(1) and 25(2) also referred to in the discussion of the warning statement form).

Criminal Procedure Act 51 of 1977 (section 217; section 174).

Criminal Law Amendment Act 105 of 1997 (section 51(1)).

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held that the State failed to prove beyond a reasonable doubt that Accused 3’s statement dated 15 September 2019 was made freely and voluntarily as required for admissibility under section 217 of the Criminal Procedure Act, particularly in light of the evidentiary concerns regarding the recording of constitutional-rights warnings, the context of police practices described in evidence, and the need to respect an earlier election by Accused 3 not to make a statement and to seek legal assistance. The statement was accordingly excluded.

With the statement excluded, the court held that the remaining evidence did not establish a case requiring an answer from any of the accused on any count. The robbery case lacked identification evidence and the circumstantial evidence against Accused 4 did not exclude innocent explanations. The murder count lacked evidence implicating any accused. The firearm and ammunition counts rested on later possession by Accused 2 and a forensic link to a cartridge case, but the time and location gap meant the evidence did not exclude the reasonable inference that another person possessed the firearm at the time of the offences. All accused were accordingly discharged under section 174 and acquitted on all counts.

LEGAL PRINCIPLES

The judgment applied the principle that where the State seeks to rely on a confession under section 217 of the Criminal Procedure Act 51 of 1977, the State must establish, to the requisite standard, that the confession was made freely and voluntarily and consistently with the constitutional-rights framework invoked in the proceedings. The court treated the fairness of the investigative process and the meaningful communication of constitutional rights as central to the admissibility inquiry.

The court further applied the principle that an accused person’s expressed election to remain silent and to seek legal assistance is relevant to assessing subsequent police conduct and the voluntariness of any later purported confession, and that such an election should be respected by police officers subsequently dealing with the suspect.

In relation to discharge at the close of the State’s case, the judgment applied section 174 of the Criminal Procedure Act on the basis that an accused is entitled to discharge where the evidence is insufficient to sustain a conviction and the accused cannot be required to testify in order to repair deficiencies in the State’s case.

The judgment also applied the approach that circumstantial evidence must possess sufficient probative value to sustain the inference of guilt; where the evidence permits other reasonable inferences consistent with innocence, it cannot suffice to ground a conviction and cannot justify requiring an accused to answer.

S v Zimele and Others (CC16/2020) [2022] ZAECMHC 55 (24 March 2022)