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[2017] ZASCA 34
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Mudau and Another v S (1148/2016) [2017] ZASCA 34 (29 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 1148/2016
In
the matter between:
NNDWAMBI
MUDAU FIRST
APPELLANT
TSHIVHANGWALO
RATHOGWA MUDAU
SECOND
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Mudau
v The State
(1148/2016) ZASCA 34 (29
March 2017)
Coram:
Tshiqi, Petse and Mbha JJA and Fourie
and Mbatha AJJA
Heard:
15 February 2017
Delivered:
29 March 2017
Summary
:
Appeal against convictions and sentence: admissibility of
confessions: misdirections by trial court, right to a fair trial
infringed:
appeal upheld.
ORDER
On
appeal from:
Limpopo Local Division of
the High court, Thohoyandou (Makgoba AJ sitting as court of first
instance):
1
The appeal against the convictions is upheld.
2
The convictions of both appellants on charges of murder, assault with
intent to commit grievous bodily harm and robbery with aggravating
circumstances are set aside.
3
The order of the trial court is set aside in its entirety and
replaced with the following:
‘
Both
accused are found not guilty and discharged on all the charges.’
JUDGMENT
Mbha
JA (Tshiqi, Petse JJA and Fourie and Mbatha AJJA concurring):
[1]
The appellants were charged in the Limpopo Local Division of the High
Court, Thohoyandou (Makgoba AJ), hereinafter referred
to as the high
court, with murder, attempted murder and robbery committed with
aggravating circumstances. On the first count it
was alleged that the
appellants, acting in common purpose, unlawfully and intentionally
killed Mr Robert Mandiwana. On the second
count it was alleged that
they attempted to kill Mr Raymond Lishivha, and on the third count it
was alleged that they assaulted
Mr Lishivha and robbed him of R55.
[2]
On 14 July 2003 the appellants were convicted of murder, assault with
intent to cause grievous bodily harm and robbery committed
with
aggravating circumstances. They were sentenced to life imprisonment
on the count of murder and 15 years’ imprisonment
on the counts
of assault with intent to commit grievous bodily harm and robbery
with aggravating circumstances, which were taken
together for the
purpose of sentencing. The appellants appeal against both conviction
and sentence. Leave to appeal was granted
by the high court on 6
December 2012. It is pertinent at this juncture to note that the
appellants were initially charged with
a third accused whose
conviction and sentence were subsequently set aside by this court on
1 April 2009.
[3]
Two witnesses testified on behalf of the State, namely Mr Raymond
Lishivha and Ms Portia Budeli. They stated that they were
inside a
shack, which was used as a workshop for Mr Lishivha’s carpentry
work, together with the deceased. Two unknown males,
one of them
being tall and the other one short, entered the shack. The shorter of
the two males who was carrying a firearm fired
two gunshots, one of
which hit and killed the deceased. The taller male person, who was
carrying a knife at the time, searched
Mr Lishivha and took R55 from
his pocket. He thereafter stabbed Mr Lishivha three times in his back
and shoulders. Thereafter the
two assailants ran away from the scene.
[4]
It is common cause that neither witness could identify the
assailants. The State then sought to hand in as evidence confessions
of both appellants and a written statement made by the third accused.
The defence objected to the admissibility of the confessions
on the
basis that they did not comply with the provisions of s 217 of the
Criminal Procedure Act 51 of 1977 (the CPA) in that the
appellants
were threatened, assaulted and forced to make the statements, that
these statements were not made freely and voluntarily
and,
importantly, that the preamble forms of the confessions were not
completed in full. This then necessitated the holding
of a
trial within a trial in order to determine the admissibility of the
two confessions and the statement made by the appellants
and the
third accused respectively.
[5]
Both appellants and their co-accused were required to testify first
in the trial within a trial. Thereafter the State called
as
witnesses, Mr Nditsheni Baldwing Matamela, the magistrate who
recorded the appellants’ confessions on 2 December 2002
and 9
December 2002 respectively, the investigating officer Inspector
Munyai and another police officer, Inspector Musina. At the
conclusion of the trial within a trial, the court found that the
appellants (and their co-accused) were not impressive witnesses
and
rejected their evidence regarding the alleged incidents of assault.
It concluded that the accuseds’ version that they
were induced
to make the statements could not be accepted. It is common cause that
both the appellants were convicted purely on
the basis of their
confessions.
[6]
The gist of the appeal against conviction, in respect of the first
appellant, is briefly that his statement in terms of s 217
of the CPA
does not amount to a confession because although he admits to having
been at the scene at all relevant times, he never
implicated himself
in any way and in fact exonerated himself from any guilt.
Furthermore, the trial court impermissibly convicted
him on the basis
of the confession of the second appellant.
[7]
In so far as the second appellant is concerned, his conviction is
challenged on the basis that his confession should not have
been
admitted because, it was not freely and voluntarily made and he was
unduly influenced into making the confession in that he
was told that
a confession would ‘allow the matter to proceed quickly’.
[8]
The basis of the appeal against sentence is briefly that the trial
court over-emphasised the seriousness of the offence and
the
interests of society over the personal circumstances of the
appellants. Furthermore, the trial court ought to have found that
there were substantial and compelling circumstances that warranted a
deviation from the prescribed minimum sentence of life imprisonment.
[9]
As the appellants contend that their confessions were wrongly
admitted into evidence, I deem it prudent to traverse, briefly,
some
of the relevant salient principles governing confessions. The
admissibility of evidence contained in a confession is governed
by s
217(1) of the CPA, which provides that such a confession shall be
admissible into evidence if it is proved to have been freely
and
voluntarily made by a person in his sound and sober senses and
without having been unduly influenced thereto.
[10]
It is trite that a confession must conform to the rigidly defined
requirements specified in s 217. Failure to satisfy any of
the
requirements will render it impermissible to tender the statement as
a confession. In
R
v Becker
[1]
it was said
that a confession can only mean an unequivocal acknowledgment of
guilt, the equivalent of a plea of guilty before a
court of law. It
is therefore an extra-curial admission of all the elements of the
offence charged. Similarly in
R
v Hans Veren & others,
[2]
it was said
that the accused must in effect have said ‘I am the man who
committed the crime’. Thus a statement will
not be regarded as
a confession where it is made with an exculpatory intent. The
decisive factor is whether the accused has admitted
all the essential
elements of the offence.
[11]
A related provision is s 219 of the CPA which provides that ‘[N]o
confession made by any person shall be admissible as
evidence against
another person’. A confession made by one accused should be
excluded when determining the guilt or otherwise
of his or her
co-accused.
[3]
[12]
Whilst the admissibility of a confession is governed, in large
measure, by the provisions of s 217, it has become increasingly
apparent that the question of admissibility has significant
constitutional implications. Section 35(5) of the Constitution
provides
that:
‘
[E]vidence
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.’
Examples
that immediately come to mind are the duty to inform the accused of
various important constitutional rights, such as the
right not to be
compelled into making any confession or admission that could be used
against a person,
[4]
the right to
remain silent, as well as to be informed promptly of that right, the
consequences of not remaining silent,
[5]
the right to
choose and to consult with a legal practitioner in a language that he
or she understands.
[6]
[13]
There are accordingly two separate but related inquires that have to
be made in determining the admissibility of a confession
namely,
whether the statutory requirements referred to above have been
satisfied, and whether in all the circumstances the accused
has had a
fair trial.
[7]
As can be
seen, the Constitution has significantly widened the grounds upon
which the admissibility of a confession or admission
may be
challenged in criminal proceedings.
[14]
A confession made to and reduced to writing by a magistrate is, upon
its mere production, admissible in evidence provided that
the
requirements of s 217 are satisfied. This means that a magistrate
should ensure that the confession conforms to the prescripts
set out
in the Constitution. Even before the advent of the Constitution,
cases are legion that emphasised the importance of informing
the
accused of his constitutional rights to legal representation and the
right to silence at every important stage during the recording
of a
confession. Thus in
S
v Mpetha
&
others
[8]
the court
said at 408 E-H:
‘
Before
the presumption comes into operation it must appear “from the
document in which the confession is contained”
that such
confession was made freely and voluntarily, etc. Normally no
confession of itself would refer to questions of voluntariness
or
undue influence. A person making a confession is most unlikely to
volunteer the fact that he is confessing freely and voluntarily,
that
he is in his sound and sober senses and that he has not been unduly
influenced to make such confession. It is manifest therefore
that
implicit in the whole procedure envisaged by the section is a
questioning by the magistrate of the person confessing. These
questions as well as the answers must be recorded for it to be able
to appear from the document that the confession was made under
the
required conditions of voluntariness, etc. This, of course, is also
in accordance with long-standing practice. It is well known
that over
a period of many years departmental instructions and the decisions of
the Courts have built up a series of guidelines
designed to ensure
that confessions are in fact freely and voluntarily made without the
exercise of undue influence ….’
These
rights have since the advent of the Constitution been entrenched in s
35.
[15]
Contrary to what was stated in
Mpetha
, the recording of the
confessions of both appellants are replete with omissions, incoherent
and contradictory recording of answers
by the appellants to
questions, and serious non-adherence to some of the fundamental
principles governing confessions referred
to above. I start with the
confession of the first appellant Mr Nndwambi Mudau.
[16]
Paragraph two of the form, setting out the accused’s
constitutional right to remain silent and the right to legal
representation,
was left blank and not completed. Similarly,
paragraph three of the form which questions whether the deponent was
in his sound
and sober senses and paragraph four which enquires
whether the accused wished to make a statement notwithstanding what
had been
explained to him, were also left blank. Although the
magistrate testified that he could still remember that the first
appellant
answered in the affirmative to these questions, the
correctness of his evidence in this regard is seriously put in doubt
as, when
he was asked about the answer given in relation to paragraph
six which was also not completed, and how it came about that the
first
appellant was brought to make a confession, he stated that he
could not remember the answer that was given. This must be viewed
against the backdrop of the magistrate’s testimony that on the
day in question he was extremely busy as he was manning two
courts on
his own.
[17]
Paragraph nine of the form was also left blank. The magistrate’s
viva voce evidence when questioned on this was so convoluted
and
contradictory, that on this ground alone this confession ought to
have been excluded. I quote the magistrate’s testimony
as it
appears from the record:
‘
Makgoba
M (J): He said he does not want to make a statement? Just repeat that
one, the question again and the answer? … The
reply
was no
here.
Ja,
just repeat the question for me again … Do you nevertheless
wish to make a statement? And the answer? …
No
.
So
he said he does not want to make a statement? Is that what I
understand? … Yes,
I
cannot
remember well there.’
(My
emphasis.)
[18]
As can be seen from the exchange between the trial judge and the
witness, it should have been pertinently clear to the trial
court
that the first appellant undoubtedly answered in the negative to the
question whether or not he wished to make a statement.
Interestingly,
the first appellant also repeated in paragraph 16 of the form that he
did not wish or prefer to make a statement.
[19]
In my view the fact that the magistrate still proceeded to record the
confession and the fact that the trial court ruled that
the
confession was admissible resulted in a serious miscarriage of
justice and rendered unfair the first appellant’s trial.
The
trial court also ignored or overlooked, inexplicably, Inspector
Munyai’s testimony when he conceded that he duly advised
the
first appellant of the advantages of making a confession namely, that
such confession was going to allow the matter to proceed
quickly.
This in my view, amounted to unduly influencing the first appellant
to make the confession.
[20]
The first appellant’s so-called confession ought also to have
been excluded on another basis. The statement is not, in
my view, an
unequivocal admission of guilt as, although he placed himself at the
scene during the commission of the offences, he
nonetheless
exculpated himself from any wrongdoing by averring that he was
coerced by his co-accused, the second appellant, to
act in the manner
in which he did. I quote from the relevant parts of his statement:
‘
He
then told me to enter inside. When I entered he ordered me to search
two male persons who live there. I searched that man and
took R55.00
(Fifty five rand) from his pocket
…
He
again called me and I was still frightened. There was a knife on the
table. I took a knife and stabbed another person at his
back.’
As
not all of the elements of the offences were admitted, the first
appellant’s statement did not amount to a confession and
ought
to have been excluded.
[21]
This unfortunate trend about the poor completion of the pro-forma
form continued even with regard to the second appellant.
The
magistrate omitted for example, to record the answer given to the
question of whether the second appellant had wished to make
a
statement and whether or not he had been assaulted or coerced into
making a statement. Although the magistrate later testified
that he
could recall that the answer given was ‘yes’, the
correctness of his version to the questions posed is
doubtful
as he later stated that on the day concerned he was extremely busy
and that he was manning two courts by himself.
[22]
The magistrate also omitted to record his observation whether the
second appellant was in his sound and sober senses with specific
reference to anxiety, nervousness, joviality and demeanour. This has
to be considered against the backdrop of the second appellant’s
evidence that when he was brought to the magistrate to make the
confession, he was dizzy because he felt he was being forced to
admit
an offence which he did not commit. Even more disturbing is the fact
that in reply to the question of how it came about that
the second
appellant was brought to make a confession, the magistrate simply
recorded the answer given, namely, that he was advised
by Inspector
Munyai, the investigating officer to report there. In my view, this
was a red flag and is something that should have
alerted the
magistrate and prompted him to make a follow up to ensure that this
accused was not influenced in any way into making
any confession.
[23]
With regard to the conduct of the trial, specifically in relation to
the trial within a trial, the trial judge committed a
number of
serious irregularities and misdirections. Firstly, he erroneously
ruled at the commencement of the trial within a trial,
that the
appellants had to first adduce evidence to prove that the confessions
were not freely and voluntarily made and without
any undue influence.
This, in my view, is a gross misdirection because the onus to prove
the admissibility of a confession rests,
always, on the State.
[9]
The
erroneous shifting of the onus to the appellants rendered their trial
unfair.
[24]
The trial judge also ignored the fact that the same magistrate
recorded both appellants’ confessions albeit on different
dates
ie 2 September and 9 September 2002 respectively. There is nothing in
the record that indicates that the trial judge made
any attempt to
check whether or not another magistrate was available to take down
the second appellant’s confession later
on. Whether or not
magistrate Matamela was aware that the second confession related to
the same incident as that of the first appellant
and if so, whether
he sufficiently warned and cautioned himself not to be in any way
influenced by what he already knew as emanating
from the first
appellant’s earlier confession, is doubtful.
[25]
After the second appellant had given his evidence-in-chief in the
trial within a trial and before the prosecutor could cross-examine
him, the trial judge remarked and asked the prosecutor: ‘Mr
Nekhambela, I do not know if you would like to cross-examine
this
witness. He made a very bad impression. I do not know, as a witness
really. I do not know whether would it be worth for you
to
cross-examine him, but you can have that time. But he made a bad
impression, really, I do not know. Do you have any questions
for the
witness’? Other than the fact that this unfortunate remark
shows that the trial judge had already decided that he
was not going
to accept the second appellant’s evidence, a perception of bias
on the part of the trial judge by any reasonable
person was, in my
view, in the light of the circumstances of this matter, inevitable.
[26]
Our courts have persistently warned against the threat to the
legitimacy of our criminal justice system, created by perceptions
of
bias during hearings, given its adversarial nature.
In
S v Basson,
[10]
the
Constitutional Court expressed itself in this regard as follows:
‘
[27]
The impartiality of a judicial officer is crucial to the
administration of justice. So too is the perception of his or her
impartiality. These principles are recognised in many foreign
democracies. Thus in
Van
Rooyen & others v The State & others (General Council
of the
Bar
of South Africa Intervening)
[11]
this
court cited with approval the following reasoning of Le Dain J in the
Canadian Supreme Court in the case of
Valente
v The Queen
:
[12]
Both
independence and impartiality are fundamental not only to the
capacity to do justice in a particular case but also to individual
and public confidence in the administration of justice. Without that
confidence, the system cannot command the respect and acceptance
that
are essential to its effective operation. It is, therefore, important
that a tribunal should be perceived as independent,
as well as
impartial, and that the test for independence should include
that perception.’
[27]
This court has also expressed similar concerns. In
S
v Le Grange & others,
[13]
Ponnan JA
affirmed that the cornerstone of our legal system is the impartial
adjudication of disputes and that the law required
‘not only
that a judicial officer must conduct the trial open-mindedly,
impartially and fairly, but that such conduct must
be “manifest
to all those who are concerned in the trial and its outcome
especially the accused”’.
[14]
In my view,
therefore, the conduct of the trial judge in this case sustains the
conclusion that he was not open-minded, impartial
and fair during the
second appellant’s trial within a trial.
[28]
The final misdirection that was committed by the trial court which,
in my view, is totally decisive of the fate of this appeal,
occurred
when the trial judge decided in his reasoning to apply the
confessions and admissions by all three accused against
one another,
in clear violation of s 219 of the CPA. I consider it appropriate to
quote an excerpt from the trial judge’s
judgment in this
regard. He said the following:
‘
Whatever
version they gave before the court, if one looks at the confession
and the admissions made, then the court is inclined
to accept the
version of the state. On count 1, that of murder, the court makes a
finding that it is indeed so, accused 3 wanted
to get rid of the
deceased because he believed that the deceased would be a state
[witness] against him.
Then
he wanted to get rid of him. He solicited the assistance of accused
2, who in turn solicited the assistance of accused 1. In
the
circumstances then, the court finds that there was a conspiracy to
murder, between accused 2 and 3. Accused 1 joined in, realising
and
even knowing fully well that there was a conspiracy to get rid of the
deceased. In the circumstances I make a finding that
there was common
purpose between the three accused and all three are accordingly found
guilty.’
The
trial court erred by not delineating and treating each confession
separately as against its specific maker, and instead treated
all of
them in blanket fashion against all the accused.
[29]
I am satisfied that the taking down of the appellants’
confessions and the conduct of their trial, especially the trial
within a trial, were characterised by serious misdirections, gross
procedural irregularities and material non-observance of the
statutory requirements contained in ss 217 and 219 of the CPA, and
other principles governing confessions. Furthermore, there was
a
serious violation of the appellants’ constitutional right to a
fair trial as required by s 35(5) of the Constitution. The
State
accordingly failed to discharge its onus of proving that the
appellants’ confessions were made freely and voluntarily
and
without any undue influence. The confessions ought to have been
excluded but were wrongly admitted into evidence. Without the
confessions, there was no evidence to sustain the convictions. In the
result this appeal must succeed and both appellants’
convictions must be set aside. In light of this finding, I do not
deem it necessary to consider the appeal against sentence.
[30]
I accordingly make the following order:
1 The appeal against the convictions
is upheld.
2 The convictions of both appellants
on charges of murder, assault with intent to commit grievous bodily
harm and robbery with aggravating
circumstances are set aside.
3 The order of the trial court is set
aside in its entirety and replaced with the following:
‘
Both accused
are found not guilty and discharged on all the charges.’
________________
B H Mbha
Judge of Appeal
APPEARANCES:
For
Appellants:
L M Manzini
Instructed
by:
Thohoyandou Justice Centre, Thohoyandou
Bloemfontein
Justice Centre, Bloemfontein
For
Respondents:
N R Nekhambele
Instructed
by:
The Director of Public Prosecutions, Thohoyandou
The
Director of Public Prosecutions, Bloemfontein
[1]
R v
Becker
1929 AD 167
at 171.
[2]
R v Hans
Veren & others
1918 TPD 218
at 221.
[3]
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) para 30.
[4]
Section 35(1)(
c
).
[5]
Section 35(1)(
a
)
and (
b
).
[6]
Section 35
(4).
[7]
S v Chauke
[2012] ZASCA 143
para 19.
[8]
S v
Mpetha & others
1982 (2) SA 406 (C).
[9]
S v Zuma & others
1995 (2) SA 642 (CC).
[10]
S v Basson
2007 (3) SA 582
(CC).
[11]
Van
Rooyen & others v The State & others (General Council of the
Bar of South Africa Intervening)
[2002] ZACC 8
;
2002
(5) SA 246
(CC);
2002 (8) BCLR 810
(CC) para 32.
[12]
Valente
v The Queen
[1985] 2 SCR 673.
[13]
S v Le
Grange & others
[2008] ZASCA 102
;
2009 (1) SACR 125
(SCA)
para 16.
[14]
S v Roberts
1999 (2) SACR 243
(SCA);
1999 (4) SA 915
(SCA) para 25, quoting
S
v Rall
1982 (1) SA 828
(A)
at 831H-832A.