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[2017] ZAGPPHC 45
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Langa and Others v S (A968/2014) [2017] ZAGPPHC 45 (10 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: A968/2014
10/2/2017
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ERIC
BHEKAHAHUBA
LANGA FIRST
APPELLANT
MHLETHULE
NORMAN NDLOVU SECOND
APPELLANT
SIBONELO
BONGINKOSI NTSELE THIRD
APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
TLHAPI
J
INTRODUCTION
[1]
This is an appeal against both conviction and sentence. The
appellants were convicted of the following offences:
Appellant
1 (accused 1):
Robbery
with aggravating circumstances (Count 1) and sentenced to 18
years imprisonment;
Appellant
2 (accused 3):
Robbery
with aggravating circumstances (Count
1)
and sentenced to 18 years imprisonment; Illegal possession
of a firearm (Count 3) and sentenced to 3 years imprisonment;
Illegal possession of ammunition (Count 5) and sentenced to 18
months imprisonment; the sentences of counts 3 and 5 to run
concurrently with the sentence in count 1;
Appellant
3 (accused 5):
Robbery
with aggravating circumstances and sentenced to 15 years
imprisonment;
BACKGROUND
[
2]
The alleged robbery occurred at
Jansen Meat Market, the butchery premises of the complainant, Mr
Sardinah. He was robbed of an amount
between R20 000.00 and R30
000.00 which included monies in the till of one of his employees, Ms
Lategan. She was assaulted with
the butt of a firearm. She sustained
injuries and was treated in Hospital. A customer Mr Naude, was robbed
of his wallet and cellular
phone. The assailants also took coins
contained in money bags from the office of Mr Sardinah.
[3] Mr Tyekela was a car
guard who had seen a combi park next to the butchery. After being
made aware that a robbery was taking
place at the butchery, he
noticed someone in possession of a firearm and a shot was fired. He
took down the registration numbers
of the combi. After the assailants
fled he gave the registration numbers to Mr Sardinah and the police.
[4]
The following facts were common cause:
(i) the police on patrol
in the area were alerted that a white combi with registration numbers
YRW 393 GP was involved in the robbery;
the police arrested a man
whom they had seen alight from the combi they were tracing and he had
been shot;
(ii) after the combi was
tracked down the driver, the first appellant, was arrested and money
bags and coins were found in the combi;
(iii) Five men were
arrested among them were the three appellants in this matter;
(iv) two police officers
patrolling in a marked police vehicle came across a group of men who
were on foot and were heavily armed;
shots were fired in the
direction of the vehicle killing one of the occupants.
[5]
The appellants pleaded not guilty and elected not to disclose
their defence. None of the victims were able to identify their
assailants.
The State relied on the statements made by the appellants
to the police as evidence against them. After close of the State's
case
the first and second appellant elected not to testify in their
own defence. The third appellant testified and closed his case
without
calling witnesses.
GROUNDS
OF APPEAL
[6]
The grounds of appeal against conviction in respect of all
three appellants related to the statements obtained from them by the
police which were handed in as exhibits 'F', 'G' and 'J'.
6.1 In respect of the
first appellant it was submitted that his statement, exhibit 'G,' was
not an admission but was a confession
to a lesser offence, that of an
accessory after the fact.
6.2 In respect of the
second appellant it was submitted that statement 'F' should not have
been admitted as a confession. It was
submitted that the procedure
adopted for determining the admissibility of the statement was
flawed. Therefore the trial court committed
a material irregularity
by first hearing testimony on the contents of the appellants
statement in the main trial and thereafter
ordering a trial
within- a trial. Furthermore, the competence and effectiveness' of
this appellant's counsel at trial was
challenged.
6.3 In respect of the
third appellant the procedure and enquiry engaged by the court in
determining the admissibility of his statement
'J', was questioned.
It was further submitted that the police officer taking down the
statement had not complied with the requirements
in the pro forma
form before and after obtaining the statement.
6.4 In respect of the
second and third appellants the conduct of the police in not
referring the appellants to a magistrate to take
a confession was
challenged. They had been in custody for two days and statements were
taken by the police before expiration of
the 48 hours of their
detention, and on the day they were due for their first appearance.
THE
LAW
[7]
Section 217 of the Criminal Procedure Act 51 of 1977 (the Act)
provides that a confession is admissible as evidence against an
accused
person in criminal proceedings if the 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,"
Section
219A of the Act provides that any admission made extra judicially,
and where such admission does not amount to a confession,
shall be
admissible in criminal proceedings against an accused person if
proved to have been voluntarily made.
[8]
It is trite that a confession means
"an unequivocal
acknowledgement of guilt, the equivalent of
a
plea of guilty
before
a
court of law",
R v Becker
1929
AD at 171. Where the admissibility of a statement as an admission or
a confession is in dispute, it is the duty of the prosecutor
'to
investigate the circumstances under which the statement was made' and
to inform the court of such fact. Where there is doubt,
it ultimately
becomes the duty of the court to determine first the nature of the
statement the State seeks to rely upon and the
objections raised in
order to determine whether it is necessary to hold a trial-within-a
trial,
S v Bontsi
1985 (4) SA 544(BG).
In
S
v Nkosi
1980 (3) SA 829(A)
Botha AJA at 844H-845 A-C
stated the following:
"It
seems to me that it is the duty of prosecuting counsel in cases where
evidence is available of an admission made by an
accused, and where
there is any possibility, flowing from information at counsel's
disposal, that such admission was part of an
inadmissible confession,
....
to investigate the surrounding circumstances in order to
satisfy himself of the propriety of proving the admission before he
tenders
evidence in that regard. If the matter is doubtful and
arguable, counsel should convey that to the trial Judge in order to
alert
him to the necessity of an enquiry into the relevant
circumstances. This is particularly important when the judge is
sitting with
assessors. When the evidence of an admission by an
accused is tendered without more, the presiding Judge should be
entitled to
assume that counsel for the State has satisfied himself
that there was no reason for thinking that the admission was linked
to
an inadmissible confession in such
a
way that the admission
itself was inadmissible. In no case should counsel for the State
leave it to the trial Judge himself to initiate
an enquiry into
circumstances surrounding the making of the admission when it appears
that it may have been part of an inadmissible
confession. Ultimately,
however, whether or not counsel for the State follows the correct
procedure, it remains the overriding
duty of the trial Judge to
satisfy himself that an admission was properly established to have
been admissible in evidence, before
reliance is placed upon it in
convicting the accused."
[9]
Since the State relied
solely on the statements made to the police to convict the
appellants, it is important first to consider
whether the statements
were properly admitted as confessions or admissions. It is my view
that the principles stated in Bontsi
and Nkosi
supra
were not adhered to in
respect of all the appellants. This is evident from the discussions
at trial which preceded the testimony
of the police officers who took
down the statements. The said discussions displayed some uncertainty
by the prosecution, the defence
and finally the trial court as to
which procedure to follow, alternatively, uncertainty as to what
needed to be considered by them
in order to determine admissibility
of such statements.
First
Appellant
[10]
Mr Matshego submitted that the first appellant's statement
amounted to a confession as an accessory after the fact and not to an
admission as found by the court. Mr Molokoane submitted on behalf of
the State that there was no evidence justifying that conclusion.
He
agreed with the trial court that the statement was an admission and
further submitted that it had not been proved that the statement
carried all the requirements at law for a conviction on the competent
verdict as an accessory after the fact and as required by
section 257
of the
Criminal Procedure Act.
[11
]
Snyman Criminal Law 5 ed
(2008) 278, states that a
person
'is an accessory after the fact to the commission of a
crime if, after the completion of a crime, he
unlawfully
and intentionally engages in conduct intended to enable the
perpetrator of,
or the accomplice in, the crime
to
evade liability for his crime or to facilitate such a person's
evasion of liability'
. (my
underlining)
I
am of the view that the first appellant's statement does not amount
to an admission of all elements of the offence. The offence
has not
been proved beyond a reasonable doubt.
[12]
In his judgment the trial Judge found that the appellant's
statement consisted of several admissions which did not in themselves
constitute a confession and that the only issue in dispute regarding
the statement handed in by agreement, was the appellant's
denial that
Mr Nkonyane had correctly recorded that he noticed the firearms when
the robbers got out of the combi. As shall be
seen below the record
reflects that there were more issues of dispute raised on behalf of
this appellant in his counsel's address
before evidence was led and
during cross examination. These are not addressed in the judgment.
[13]
Another factor considered in the judgment was that the
appellant elected not to testify 'about anything at all'. The
appellant pleaded
not guilty and offered no explanation for such
plea. After close of the State's case he elected not to testify. It
is trite that
an accused person has no obligation to testify in his
defence, he bears no onus, However, should he elect to testify, his
testimony
need only be reasonably possibly true. Furthermore, this
was not an instance where the court was entitled to draw an adverse
inference
due to his refusal to testify. I now return to the
appellant's statement.
[14]
The trial record reflects that
14.1
Mr Kgokane informed the court that although he did not have
proper instructions from the first appellant, there was no need to
hold
a trial within a trial because voluntariness was not in dispute.
He informed the court that to a large extent the statement was
in
line with the appellant's version, except for the fact that part of
the content was disputed, and that it would be a waste of
time to
challenge the statement.
14.2
After a postponement Mr Sibara who appeared for the state, had
discussions with the defence counsel and it was agreed that there
would be no trial within a trial in respect of the first appellant
and that the issue to be argued would deal only with the issue
of
credibility.
14.3
After another postponement, Mr Kgokane informed the court that
on reflection the first appellant's statement was exculpatory, which
does not amount to an admission, that he would request the court to
look at the statement first, in order to make a ruling whether
it
amounted to an admission or whether it was just an exculpatory
statement. The trial Judge then enquired what his response would
be
if, when looking at the document as a whole he should find that there
were admissions. Mr Kgokane responded that his instructions
were that
the appellant was forced or assaulted to make the statement. The
record reflects the following exchange, page 200:
"
Court
:
So in any way if those are admissions then they comply with the
requirements of
section 219(A)
Mr
Kgokane
: Yes
..
Court
:
Then it is not necessary to examine it
Mr
Kgokane
:
I am in the hands of the court.
Court
:
It is not for us to provide you with whether it is admissions or not
then it is admissible according to Section 219(A). You can
as the
case proceeds decide what you want to do about this statement call
witnesses or whatever.....whatever explanation has been
given by
accused 1...are we clear about this?
Mr
Kgokane: May I just have a word with my colleague regarding that
because I think the first witness he is going to call is going
to
testify in respect of accused 1's statement.
'
Court
:
Mr Sibara do you agree...
Mr
Sibara: A hundred percent
[15]
Mr Nkonyane read the first appellant's statement into the
record. The thrust of the complaint in cross examination pertained to
him not recording questions put to the appellant on the pro forma
form as he was required to do. Another issue related to him not
recording in the statement that he had questioned the appellant
whether Shezi referred to in the statement was accused 2. He
confirmed
that during the interview there was no interpreter and the
appellant communicated to him in the Zulu language and that he
recorded
the statement in the English language.
[16]
However in the interviewer's certificate it is not stated in
which language the statement was read back to the appellant. It was
put to this witness that the first appellant would deny that he
stated that he noticed the firearms 'for the first time when the
guys
were alighting the combi..with me keeping guard in the parking area'.
It was put to the witness that the first appellant's
version was that
he informed Mr Nkonyane that 'he noticed the firearms for the first
time when they came back to the combi', furthermore,
that the
statement was not read back to him.
[17]
The first appellant's statement reflects that Mr Nkonyane
observed injuries and that the appellant had informed him that he had
been assaulted during arrest, which in my view should have sounded
warning bells to the court. Firstly, the trial Judge should not
have
left it to Mr Kgokane without proper instructions to make an election
on behalf of the appellant not to hold a trial within
a trial.
Secondly, when later, before evidence was led, he informed the court
that he was instructed that the appellant had been
forced to make a
statement and was assaulted at arrest, the trial Judge should have
conducted a preliminary investigation to determine
whether a trial
within a trial was necessary and in fact should have ruled in the
affirmative.
Second
Appellant
[18]
It is common cause that the second appellant's statement was
treated as a confession. However, as I see it, this occurred where
the procedure engaged for its admission was irregular and where it
could be said that the appellant did not receive a fair trial.
[19]
Mr Matshego submitted that Mr Serepong incorrectly agreed with
the court on 1 August 2011 that voluntariness was not in dispute.
This was the basis upon which the court ruled that it was not
necessary to hold a trial within a trial and that the appellant would
be given an opportunity to testify when his turn came.
Mr
Molokoane submitted that the different versions of the appellant as
conveyed to the court by his counsel amounted to a fishing
expedition. He submitted that the court had correctly found that the
statement was freely and voluntarily made.
[20]
The record reflects that on 29 July 2011 Mr Serepong informed
the court that a trial within a trial had to be held because the
statement
was not freely and voluntarily made. It was alleged that
the appellant was tortured, assaulted and forced to make a statement
and
that the content of the statement was dictated to him. The
initial ruling was that a trial within a trial was necessary. When
the
court resumed on 1 August 2011 instead of proceeding with the
trial within a trial the subject was rehashed and by Mr Serepong
subsequently conceded that the statement was disputed only on grounds
that the appellant alleged that it was not his statement and
that it
was only the issue of voluntariness that had to be determined.
This
concession should not have persuaded the court to change its ruling
and not to hold a trial within a trial, especially because
there were
alleged assaults by police officials on two consecutive days prior to
the statement being taken.
[21]
Captain Masha testified and handed in two exhibits, "E"
the questionnaire and "F" the statement, and both were
read
into the record. Subsequently, the trial Judge expressed the view
that the statement constituted a confession. He enquired
from Mr
Seropong whether the statement had been freely and voluntarily made
and whether the appellant was assaulted between 1 and
3 March 2010
and he confirmed that it had not been freely and voluntarily made.
[22]
The trial judge acknowledged that irregularities had been
committed as appears on page 138 of the record:"
the
statement we have exhibit 'F' was clearly not voluntarily made.....it
cannot be admitted unless the state proves the contrary..
...
meaning
that evidence we have heard so far from this captain is not evidence
in the main trial......it was an irregularity so far
because there
was not proper instructions from accused 3 so we regard this evidence
as trial within
a
trial"
.
[23]
In the judgment it is stated that the appellant had not given
proper instructions to his counsel because the preliminary
discussions
were focused on the statement containing admissions. This
conclusion was incorrect because the instructions he was referring to
pertained to the first appellant. A request by Mr Serepong to expunge
the statement, exhibit "F", from the record was
declined.
[24]
As I see it the following was irregular, (a) The rulings that
the proceedings revert to a trial-within a trial, (b) the refusal to
expunge the statement from the record, (c) allowing Mr Serepong to
continue with the cross-examination of Mr Masha; (d) the calling
of
Mr Nkonyane and the appellant to testify and their cross examination
after exhibit "F" had been read into the record;
and (e)
finally ruling that the state had discharged its onus of proving that
the statement had been freely and voluntarily made
[25]
It is only after the court had made a finding in the trial
within a trial that the State has discharged its onus, and ruling
that
the statement is admissible, that the main trial is reverted to
and the statement is read into the record and handed in as an
exhibit.
Second
Appellant
[26]
Mr Matshego submitted that the court was not absolved from
holding a trial within a trial where an accused alleges that the
statement
was not his. Mr Molokoane submitted the decision not to
hold one was informed by the submission of his counsel that the
dispute
related to credibility, which was an issue to be dealt within
the main trial.
[27]
Before evidence was led, Mr Kgokane informed the court that the
appellant did not make any statement; that he was just given
documents to sign and that he did not know what was contained in such
documents. Furthermore, that although the appellant had been
assaulted at some stage and despite the content of the statement, it
was not necessary to hold a trial within a trial relating
to a
statement which the appellant did not make. This view he said was
subject to the correction and direction by the court. He
would
approach the court at the end of the trial to consider during
Judgement to use its discretionary powers to revisit the question
of admissibility if the court will deem it fit at that stage'
(page
113 of the record).
[28]
The statement was not taken by Mr Nkonyane who was the investigating
officer. He requested Mr Dlamini, a captain from another
station to
take down the statement. The prosecutor, Mr Sibara, without
indicating whether the statement was an admission or confession,
informed the court that he had agreed with Mr Kgokane not to lead
evidence relating to the preliminary questions in the pro forma
statement. The trial Judge did not at this stage make enquiries as to
the nature of the statement, as he was obliged to do,
Bontsi
and
Nkosi
supra.
Mr Dlamini was called and the statement
was read into the record. So, no trial within a trial was held. It
was only in cross examination
where the contentious issues were
raised.
[29]
In the judgment, the statement of the appellant and the evidence of
Mr Dlamini were analysed and the trial Judge arrived at
a conclusion
that the statement was a confession. He found that Mr Dlamini was a
credible witness in that he admitted to the mistakes
made when
recording the statement which stated that (a) he is the investigating
officer when he was not; (b) that he admitted that
he had booked the
appellant out of the cells, interviewed him, and charged the
appellant; and (c) that he had not recorded when
taking down the
statement the date on which the appellant alleged he was with a group
of men when the robbery was committed. The
trial Judge further found
that there was no evidence to suggest that Mr Dlamini had any reason
to falsely incriminate the appellant.
[30]
The appellant was the only one of the five accused who elected to
testify in his defence. It was during his testimony where
his version
of how the statement was taken came to light. Mr Dlamini testified
that he was requested by Mr Nkonyane to obtain a
statement from the
appellant. I do not understand how the trial court arrived at a
conclusion that the statement was a confession
when Mr Dlamini
admitted to having booked the appellant out of the cells and where he
conducted an interview for an hour regarding
the appellant's
participation in the robbery and, finally, being responsible for
charging the accused and for booking him back
into the cells.
[31]
It is improbable that Mr Dlamini would not have been in possession of
the docket during this interview. An interview conducted
by a police
officer for taking down a statement is not similar to the instance
when an accused informs an investigating officer
that he wishes to
make a confession and the accused is then taken before a justice of
the peace neutral to the investigation, or
to a magistrate. There
were issues in dispute being an alleged assault, and denial that the
statement was that of the appellant.
If the statement was a
confession and there was doubt as to its admissibility, the State had
to prove that it was freely and voluntarily
made by the appellant in
his sober senses and without undue influence.
[32]
Our courts are called upon to be vigilant and cautious in instances
where the State relies for conviction of an accused solely
on
statements in the form of admissions or confessions made to police
officers. The duty placed upon the prosecution and finally
the court
as stated in Nkosi
supra,
is to ensure that an accused
person's constitutional right to a fair trial is protected.
Allegations of assault, coercion and threats
should sound the warning
bell and should always be sufficient reason for the holding of a
trial within a trial in order to determine
properly whether such
statement should be admitted. There should be no room for uncertainty
as to the procedure to be followed
and the responsibility of making
such determination rests on the State and finally the Court.
[33]
In
S v Gearn- Gearn
2015 (2) SACR 501
(SCA) Cachalia JA
stated:
"[49]
When confronted with confessions made by suspects to police officers
whilst in custody
-
even when those officers are said to be
performing their duties independently of the investigating team
-
courts must be especially vigilant. For such people are subject to
the authority of the police, are vulnerable to the abuse of such
authority and are often not able to exercise constitutional rights
before implicating themselves in crimes. Experience of courts
with
police investigations of serious crimes has shown that police
officers are sometimes known to succumb to the temptation to
extract
confessions from suspects through physical violence or threats of
violence rather than engage in the painstaking task of
thoroughly
investigating a case.
This
is why the law provides safeguards against compelling an accused to
make admissions and confessions that can be used against
him in a
trial.
[50]
In addition courts must be sceptical when the state seeks to use a
confession against an accused where he repudiates it at
the first
opportunity he is given. Because ordinary human beings experience
shows that it is counter-intuitive for
a
person facing serious
charges to voluntarily be conscripted against himself. Often it is
said that the accused confessed because
he was overcome with remorse
and penitence,
'a
desire which vanishes as soon as he appears
in
a
court of justice'. That is sometimes true, but is usually
not."
In
light of the above I have no option but to recommend that the appeal
of all three appellants against their conviction and sentence
be
upheld and such convictions be set aside.
[34]
In the result the following order is given:
1. The Appellants'
appeals on conviction in respect of all counts are upheld;
2.
The convictions and sentences are set aside.
________________
TLHAPI
V V
(JUDGE
OF THE HIGH COURT)
I
agree,
________________
LOUW
J W
(JUDGE
OF THE HIGH COURT)
I
agree
________________
NOBANDA
L P
(ACTING
JUDGE OF THE HIGH COURT)