Brief Summary

Criminal law and procedure — Admissibility of evidence — Evidence obtained in violation of constitutional rights — Appellant's confession admitted despite claims of coercion and lack of legal representation — Onus on the State to prove voluntariness of confession — Trial court's admission of confession rendered trial unfair — Convictions and sentences set aside. The appellant was convicted of murder and robbery based on a confession obtained after alleged police assault and without proper explanation of constitutional rights. The trial court admitted the confession, finding it voluntary, despite the appellant's objections. The appellant appealed the convictions and sentences, arguing that the confession was inadmissible due to violations of his rights. The Supreme Court of Appeal held that the trial court erred in admitting the confession, as the State failed to prove its voluntariness. Consequently, the convictions and sentences were set aside, and the appellant was found not guilty and discharged.

Comprehensive Summary

Summary of Judgment

Introduction

This matter concerned a criminal appeal to the Supreme Court of Appeal (SCA) in which the appellant challenged his convictions and sentences for murder and robbery with aggravating circumstances. The appellant was Lefu Jantjie Bakane, and the respondent was the State.

The appellant and four co-accused were tried in the Gauteng Division of the High Court, Pretoria, before Ranchod J sitting with an assessor. They were convicted on count 1 (murder) and count 2 (robbery with aggravating circumstances). The appellant received life imprisonment on the murder count and 15 years’ imprisonment on the robbery count, with the sentences ordered to run concurrently.

With leave of the trial court, the appellant appealed to a full court of the Gauteng Division, Pretoria. The majority (Preller and Khumalo JJ) dismissed the appeal; Manamela J dissented and would have upheld it. The appellant then appealed to the SCA with special leave, challenging both conviction and sentence.

The dispute’s general subject matter was the admissibility and evidential reliability of a statement (referred to as exhibit H) allegedly made by the appellant to the police, in circumstances where the appellant contended that his constitutional rights were violated and that the statement was not made freely and voluntarily. The appeal ultimately turned on whether the admission of the statement rendered the trial unfair, and whether, absent the statement, there was sufficient admissible evidence to sustain the convictions.

Material Facts

On the morning of 23 June 2004, Mr Johannes Albertus Maré (the deceased) was found dead in his home in Timsrand, Pretoria. He had been strangled with a piece of curtain. The post-mortem report recorded the deceased’s date of death as 22 June 2004.

On 23 June 2004, police recovered items in nearby veld, including four television remote controls, a woollen cap, a jacket, and a knife. The police suspected these items were connected to the incident at the deceased’s house, and also suspected that the deceased (who ran a shop on his premises) had been robbed of money. On the same day, the appellant and his four co-accused were arrested.

At trial, the appellant and co-accused were legally represented, pleaded not guilty, and elected to exercise the right to remain silent. During the trial, the defence objected to the admission of purported statements by the accused, including the appellant’s alleged statement (exhibit H). In the appellant’s case, the defence position was that exhibit H was not made by him, that the police invented its contents, and that he was forced to sign without the contents being explained. It was also disputed that his constitutional rights (including the right to legal representation and not to incriminate himself) were explained to him. These disputes necessitated a trial-within-a-trial on admissibility.

During the trial-within-a-trial, the appellant testified that the police found him at his girlfriend’s home on the morning of 23 June (the judgment records the year as 2014 in this passage, though the events otherwise relate to 2004), assaulted him, and forced him to point out his friends. He testified that the group was assaulted and arrested, that a search of his girlfriend’s residence yielded no incriminating evidence, and that he was taken to point out the deceased’s house. He said that on returning to the police station he was made to sign documents without knowing what was written. He denied that exhibit H was made voluntarily, maintained it was concocted by police, and contended he was not informed of his constitutional rights nor given a copy of a Notice of Rights.

The trial court accepted that “some slapping and rough handling took place” and that this amounted to assault (though not torture). Despite that, it admitted exhibit H on the basis that it was made voluntarily, reasoning that its admission was in the interest of justice and that exclusion would bring the law into disrepute.

In the main trial, the appellant raised an alibi, asserting that around the time the offences were said to have occurred (about 18h00/18h15) he was not at the deceased’s house because he and his co-accused only finished work at 18h00 at a place called Why Not Wood. He did not call his employer to confirm the alibi, because (on his version) while in custody he was told by police that the employer had relocated and could not be traced.

A further feature noted by the SCA was that the State did not present evidence linking the recovered clothing and knife to the appellant through testing, and there was no evidence presented about fingerprint lifting from the scene or the knife.

Legal Issues

The central legal question was whether the trial court was correct to admit exhibit H (an alleged admission or statement by the appellant) and to convict him on the strength of that statement.

This required determination of (a) a legal question concerning the constitutional and statutory framework for admitting statements and admissions, (b) a factual and evaluative question about whether the statement was made freely and voluntarily and whether the appellant’s rights were violated in its procurement, and (c) an application-of-law-to-fact enquiry into whether the admission of the statement should have been excluded under s 35(5) of the Constitution because its admission would render the trial unfair or otherwise be detrimental to the administration of justice.

A closely related question was whether, absent exhibit H, there was sufficient admissible evidence to sustain convictions for murder and robbery, and whether the State had disproved the appellant’s alibi beyond reasonable doubt.

Court’s Reasoning

The SCA located the enquiry within the constitutional shift in the treatment of confessions and admissions following the advent of constitutional democracy. It emphasised that criminal trials must be conducted with basic fairness and justice, and that the admissibility of admissions is governed by the Criminal Procedure Act 51 of 1977, read with constitutional requirements.

The court highlighted s 219A of the Criminal Procedure Act, which makes admissibility of an extra-curial admission conditional on proof that it was voluntarily made. It treated this as peremptory, stating that involuntary admissions are inadmissible. The court further held it to be trite that when admissibility is challenged, the State bears the onus to prove admissibility on a balance of probabilities, namely that the statement was made freely and voluntarily. It also referred to s 252A(6) of the Criminal Procedure Act regarding the prosecution’s burden when exclusion is sought.

The SCA then turned to s 35(5) of the Constitution, which mandates exclusion of evidence obtained in violation of rights if its admission would render the trial unfair or be detrimental to the administration of justice. Referring to its earlier jurisprudence (including S v Magwaza and S v Tandwa), the court described the inquiry as one in which relevant circumstances must be considered and in which the administration-of-justice limb entails a value judgment balancing the public interest in combating crime with the imperative that law enforcement respects constitutional rights.

Applying these principles to the facts, the SCA closely analysed the content and procurement of exhibit H. The statement was in a question-and-answer format reflecting that the appellant allegedly placed himself at the deceased’s premises at 18h15, stated that he went to look for the deceased’s money, asserted “we killed the white man,” and implicated named co-accused. The court noted that Captain Spies, who questioned the appellant and completed exhibit H, conceded that he did not complete the portion of the form where a suspect would ordinarily make a narrative statement after preliminary questions, and that the questioning proceeded notwithstanding evidence that the appellant had elected not to make a statement but only to answer questions. The court viewed what occurred as contrary to the meaning and protection of the right not to incriminate oneself and inconsistent with the appellant’s desire to have legal representation present.

The court regarded the duty to explain constitutional rights as particularly important during pre-trial processes. It also treated the State’s inability to produce the appellant’s Notice of Rights as part of the broader context relevant to whether rights were properly explained and respected.

The SCA further reasoned that exhibit H had internal and contextual weaknesses. It found a lack of detail in the purported admissions about critical aspects of the crimes (including the circumstances of the deceased’s death and the appellant’s specific role). It also considered the timing: the appellant was arrested around 20h00 and exhibit H was produced at 08h00 the next morning. Even if it were accepted that the appellant said something, the SCA considered the inference unavoidable that there was persistent interrogation leading to admissions and pointings out within 24 hours of arrest, which should have been weighed by the trial court when deciding voluntariness and possible compulsion.

A decisive factor for the SCA was that it was common cause that the police assaulted the appellant, and the trial court itself accepted that assault occurred. The SCA concluded that the appellant was effectively “hoodwinked” into making a statement he did not wish to make, and that the probabilities supported his claim that he did not know what was written in exhibit H until confronted with it in court. The court pointed to cross-examination concessions that suggested problems in how interpretation and recording of answers occurred, reinforcing concerns about authenticity and voluntariness.

In the SCA’s view, the police conduct implicated multiple constitutional protections, including the right not to incriminate oneself, the right to legal representation, and the right not to be compelled to make a confession or admission that could be used in evidence.

The SCA also held that, independent of exhibit H, the State’s case was materially deficient. It found that the State failed to adduce evidence linking the clothing and knife found in the veld to the appellant (including by forensic testing), and it noted the absence of fingerprint evidence or evidence about forensic processing that might have connected the appellant to the crime scene or recovered items.

Turning to the appellant’s alibi, the SCA reiterated that there was no onus on the accused to prove the alibi. It held that the trial court erred in reasoning that the alibi should have been disclosed upon arrest and that failure to do so counted against the appellant. The SCA referred to evidence indicating that the appellant did give a work address (Why Not Wood, Laezonia) to police. It also held that even if the alibi was not disclosed at the commencement of the trial, that did not reduce the State’s burden to disprove it.

The SCA restated the general approach to criminal adjudication: the trial court must weigh all elements pointing to guilt against those indicative of innocence and only convict if the State’s case excludes reasonable doubt. It held that the trial court’s conclusion that the appellant and co-accused acted in pursuance of a conspiracy was not sustained on the admissible evidence once exhibit H was excluded.

Finally, the SCA held that once the trial court found that the appellant had been assaulted, it should have excluded exhibit H in line with s 35 of the Constitution. It held that the trial court’s reliance on the notion of “bringing the law into disrepute” was misdirected, because that consideration is material to exclusion of illegally obtained evidence rather than to its admission. Absent the admissions, there was no evidence on which the appellant could properly have been convicted.

Outcome and Relief

The SCA upheld the appeal.

It set aside the order of the full court and substituted it with an order upholding the appeal, setting aside the appellant’s convictions and sentences, and substituting them with a verdict that the accused was found not guilty and discharged on both counts.

The order as reproduced in the judgment did not include a separate costs order, and the relief granted was the setting aside of convictions and sentences with substitution of an acquittal.

Cases Cited

S v Gumede [2016] ZASCA 148; [2016] 4 All SA 692 (SCA); 2017 (1) SACR 253 (SCA).

S v Zuma & others [1995] ZACC 1; 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401.

S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801 (A).

S v Yolelo 1981 (1) SA 1002 (A).

S v Kotze 2010 (1) SACR 100 (SCA).

S v Magwaza [2015] ZASCA 36; [2015] 2 All SA 280 (SCA); 2016 (1) SACR 53 (SCA).

S v Pillay & others 2004 (2) SACR 419 (SCA).

Collins v The Queen (1987) 38 DLR (4th) 508 (SCC); [1987] 1 SCR 265; 28 CRR 122.

R v Brydges [1990] 1 SCR 190; 1990 CanLII 123 (SCC); 46 CRR 236.

S v Tandwa & others 2008 (1) SACR 613 (SCA).

S v Marx & another 1996 (2) SACR 140 (W).

S v Melani 1996 (1) SACR 335 (E).

S v Van Aswegen 2001 (2) SACR 97 (SCA).

S v Chabalala 2003 (1) SACR 134 (A).

S v Mthembu [2008] ZASCA 51; 2008 (2) SACR 407 (SCA).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 35(5), with further references in the judgment to section 35(1)(a), section 35(1)(b)(i) and (ii), section 35(1)(c), and section 35(2)(b).

Criminal Procedure Act 51 of 1977, sections 217 and 219, section 219A, and section 252A(6).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the trial court erred in admitting the appellant’s alleged statement (exhibit H) where the evidence showed violations of the appellant’s constitutional rights, including that the appellant was assaulted and that police nevertheless obtained a statement despite his election to remain silent, in circumstances undermining voluntariness and fairness.

The SCA further held that the State failed to discharge the onus of proving that the admission was made freely and voluntarily, and that, once exhibit H was excluded, there was no admissible incriminating evidence sufficient to sustain the appellant’s convictions on either count. The convictions and sentences were therefore set aside and replaced with an acquittal.

LEGAL PRINCIPLES

The admissibility of an extra-curial admission under s 219A of the Criminal Procedure Act 51 of 1977 is conditional upon proof that the admission was made voluntarily, and involuntary admissions are inadmissible.

Where admissibility of an admission is challenged, the State bears the onus on a balance of probabilities to prove admissibility, including that the statement was made freely and voluntarily.

Under s 35(5) of the Constitution, evidence obtained in violation of a right in the Bill of Rights must be excluded if admission would render the trial unfair or would otherwise be detrimental to the administration of justice, an inquiry that requires consideration of relevant circumstances and entails a value judgment balancing rights-compliance by law enforcement with public confidence in the judicial process.

An accused person bears no onus to prove an alibi; the State must disprove it beyond reasonable doubt, and non-disclosure at arrest or early in the trial does not reduce the State’s burden.

A criminal court must weigh all evidence pointing to guilt against that indicative of innocence and may convict only if the State’s case excludes reasonable doubt; where the State’s case depends on inadmissible admissions and lacks independent corroboration, a conviction cannot stand.

Bakane v S (1180/2016) [2017] ZASCA 182 (5 December 2017)