Ngcobo and Another v S (AR40/15) [2016] ZAKZPHC 28 (18 March 2016)

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[2016] ZAKZPHC 28
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Ngcobo and Another v S (AR40/15) [2016] ZAKZPHC 28 (18 March 2016)

IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO.: AR40/15
DATE: 18 MARCH
2016
In
the matter between:
THEMBELANI
NGCOBO
.............................................................................................
First
Appellant
(Accused
1 in the Court
a quo
)
BHEKUYISE
SHANGE
..............................................................................................
Second
Appellant
(Accused
3 in the Court
a quo
)
And
THE
STATE
............................................................................................................................
Respondent
Coram:
Koen J, Seegobin J
et
Henriques J
Heard:
26 February 2016
Delivered:
18 March 2016
ORDER
On
appeal from the High Court of South Africa, KwaZulu-Natal Division,
Pietermaritzburg (Potgieter AJ, sitting as a court of first

instance)
:
1.
The appeal is upheld.
2.
The conviction and sentences imposed on accused 1 and 3 by the court
a quo
in
respect of count 3 are set aside, and substituted with a finding that
both accused 1 and 3 are found NOT GUILTY and are discharged
on that
count.
JUDGMENT
KOEN
J
(SEEGOBIN
et
HENRIQUES JJ concurring)
[1]
The Appellants, respectively accused 1 and 3 in the court
a
quo
,
[1]
were convicted of the murder of the deceased, Lindeni Angel Mthalane
(count 3) and each sentenced to a period of life imprisonment.
They
appeal, with the leave of the court
a
quo
,
against only that conviction.
[2]
Accused 1 was also convicted of assaulting Bawinile Khethiwe Mthalane
(‘Khethiwe’) with the intent to cause her grievous
bodily
harm by stabbing her on the arm with a knife (count 1).
[3]
Count 1 will be referred to in passing in this judgment, but it is
not part of this appeal.
[2]
The evidence adduced before the court
a
quo
is a matter of record and will not
be repeated in detail herein. Reference will only be made to salient
features thereof as may
be required.
[3]
The only evidence implicating Accused 1 and 3 on the murder count
were:
(a)
a statement made by accused 1 to Lieutenant Colonel Mlangeni
(‘Mlangeni’) on 19 December 2010;
[4]
and
(b)
a statement made by accused 3 to Captain Mncwabe (‘Mncwabe’)
on 21 December 2010.
[5]
Mlangeni
and Mncwabe are both commissioned officers and accordingly Justices
of the Peace.
[4]
It was common cause, correctly so, that both the statements amount to
confessions. Accordingly, in order to be admissible they
had to
comply with the provisions of
s 217
of the
Criminal Procedure Act No.
51 of 1977
which, inter alia, require that they had to have been made
freely and voluntarily, by the accused in their sound and sober
senses,
and without having been unduly influenced thereto.
[5]
The admissibility of these confessions was attacked on a number of
grounds.  In the case of accused 1 he contended that
he had been
severely assaulted by the community at the time of his arrest and
that was why he admitted to the charges, that he
was also assaulted
by the police officers at the police station and despite being
previously injured was only taken to hospital
after he agreed to make
the statement, that the statement was never explained to him despite
his signature appearing on the document,
and that the contents of the
statement never came from him. In the case of accused 3 the
admissibility of the confession was disputed
on the grounds that
Mncwabe failed to use an interpreter, that the form used to record
the confession was not completed properly,
that Mncwabe failed to
explain to him the difference between the legal concept of a
confession and an admission, that accused 3
was assaulted at Taylor’s
Halt Police Station by overzealous and angry police officers, that
Mncwabe effectively had written
the statement and merely requested
accused 3 to place his signature at different places, and that
accused 3 was threatened that
if he did not sign the form at the
various places, he would know what was ‘in store’ for
him.
[6]
A trial-within-a-trial followed to determine the admissibility of the
confessions.  Accused 1 and 3 did not testify.
At the end
of the trial-within-a-trial the confessions were provisionally
admitted in evidence. By agreement, the evidence led
during the
trial-within-a-trial also became evidence in the main trial.
Accused 1 and 3 both testified in their defence during
the main trial
stating that they had been assaulted also by the police prior to the
statements being obtained. The learned Judge
correctly recorded that
his ruling in respect of the admissibility of the confessions against
accused 1 and 2 was interlocutory
and that it could be revisited at
any stage if the evidence so required. The learned Judge, however,
concluded as a matter of fact
that the police had not assaulted the
accused, therefore that the confessions were made voluntarily, that
the murder was proved
by evidence
aliunde
and that accordingly on the strength of their confessions, accused 1
and 3 should be convicted.
[7]
Before arriving at the aforesaid conclusion, the learned Judge drew
attention to differences between what was put in cross-examination
on
behalf of the accused during the trial-within-a-trial and their
evidence.  As regards the suggestion that the police had

completed the statements and that the accused were simply asked to
sign, attention was drawn to the fact that in the statement
of
accused 1 there were exculpatory portions, and that it further
contained details of his cell phone number, the names of persons
he
had been drinking with on the evening of the assault appeared, which
could not have been within the knowledge of Mlangeni. Further
the
learned judge also recorded that Lieutenant Colonel Mlangeni would
not have been aware of the derogatory term that Khethiwe
used,
calling accused 1 a ‘skhotheni’, because on her evidence
the affidavit which he took from her did not include
this remark.
Similarly in respect of accused 3 the learned Judge found that it was
significant that the name ‘Sigodo’,
a name used by
accused no. 1, appears in the statement of accused 3 as well as
details of the school he attended which Mncwabe,
would not have been
aware of and which could only have come from accused 3. To determine
whether the trial court was justified
in concluding that the
confessions were admissible it is necessary to refer briefly to the
relevant factual background.
[8]
Ex facie
the record, the relevant evidence in chronological
sequence was as follows:
(a)
Accused 1 was known to Khethiwe for a period of about 2 months.
She also knew him by the name of Sigodo. On the evening
of 17
December 2010 she and a number of her friends had proceeded to Mortel
Store. They were dancing and she accepted that she
was intoxicated
although she disputed being drunk.  Accused 1, erstwhile accused
2 and accused 3 as well as accused 1’s
brother and others in
their company, were also drinking at the Mortel Store that evening.
It is not in dispute that some
disagreement developed between
Nabuthla Sibisi who had accompanied Khethiwe and a male referred to
as ‘Remember’;
(b)
According to accused 1, Khethiwe referred to him and/or his friends
as ‘skhothenis’. At some stage while he was
outside the
store he was attacked by Khethiwe.  He warded off this attack
and in the process she was stabbed;
[6]
(c)
Khethiwe disputed that version, particularly that she used any
derogatory term to refer to accused 1 and/or his friends. She

testified that she left Mortel Store at about midnight.  On her
way home, not very far from the Mortel Store, she was accosted
by
accused 1 who, without any reason, stabbed her on her right arm and
in the process also caused an abrasion on her thumb. No
words were
exchanged during this altercation. Thereafter she continued on her
way home.  After she was joined by some of her
friends, she
telephoned her mother and asked her mother to meet her on her way
home, which her mother subsequently did;
(d)
When Khethiwe met her mother she noticed that she was accompanied by
another person, who she thought was her (Khethiwe’s)
brother.
It was only when they arrived back home, and used a light generated
from her cell phone, that she realised the person
who had accompanied
her mother to meet her was not her brother but accused 1. In the
presence of accused 1 she advised her mother
that he was the one who
had stabbed her earlier that evening. Extremely surprisingly, her
mother however did not say or do anything
although the injury on her
arm was visible and accused 1 was present;
(e)
later, after that exchange, Khethiwe’s grandmother returned and
asked Khethiwe’s mother where the deceased said
‘she was
going’.  Khethiwe testified that her grandmother had at
that stage not located the deceased.  Accused
1 left their
company thereafter;
(f)
Ms Mthalane the mother of the deceased and Khethiwe testified that on
the 17
th
December 2010 after arrival at home at 16h00 she and the deceased
were watching a programme on TV called ‘Generations’,

which ended at approximately 20h30. It was shortly after Generations
ended that she received a telephone call from Khethiwe requesting
her
to fetch her from Sis Dombi’s residence. At some stage before
she left a person knocked on the door and identified himself
as
Sigodo Ngcobo. She had not met accused 1 before. He told her that he
was there to help as Khethiwe had been stabbed and she
was with
friends from Mpophomeni. He then accompanied her to meet Khethiwe.
After meeting Khethiwe they all returned home. She
noticed that
Khethiwe had been stabbed on the left arm.
[7]
She further confirmed that when accused 1 was at their home the
deceased was not present;
(g)
The brother of accused 1 testified that accused 1 was heavily
intoxicated as a result of his drinking at Mortel Store, to the

extent that he, Siphelele Wiseman Ngcobo who had witnessed accused 1
fighting with Khethiwe and accused 2 took accused 1 home,
put him in
bed, locked the door and he put the key in his pocket. He returned to
the store to drink but a short while later again
returned to the room
where accused 1 was still sleeping. This was some time after 22h00.
(h)
The body of the deceased was discovered on the morning of the 18
th
December 2010 at approximately 5h30. She had been stabbed repeatedly
and cut from the area of her vagina up to her chest. Part
of what
looks like her intestines protrude from this cut. It was a
particularly gruesome killing;
(i)
After the police had arrived at the scene, accused 1 was brought to
the scene having been apprehended by members of the community.
He had
been assaulted severely. Members of the community were present and
there was a real danger of further harm to him, so much
so that he
was placed in a police vehicle and subsequently removed from the
scene;
(j)
Mlangeni was the senior officer on duty that weekend. A number of
police station areas in the greater Pietermaritzburg area
fall under
his control. These include Plessislaer and Taylor’s Halt, the
latter being the police station for the area where
the crime
occurred. He attended the scene of the murder, interviewed witnesses,
also interviewed Khethiwe and recorded a statement
from her. He
testified that after arriving at the scene:
‘
I
observed and I preserved some evidence, marked whatever I could mark
and pointed out to the photographer. I interviewed the policemen
who
were in attendance and also some identified witnesses.’
He
said he was concerned about the involvement of the community and that
they would take the law into their own hands. Accordingly,
he
maintained:
‘
In
this case I was there to verify if the suspects were not falsely
implicated.  I had to interview them. If there were other

witnesses I was going to interview them as well, but with the
interview with them I established that one of them told me the story

what happened and the stories that he gave me, I was happy that he
was the right suspect’
( referring to
accused 1).
Apart
from attending this scene of the crime and preserving evidence
Mlangeni also pointed out certain things to the photographer,

identified witnesses and marked whatever points he could find.
He oversaw the proceedings at the scene;
(k)
Khethiwe did not see the body of the deceased, but Mlangeni did;
(l)
Accused 1 was arrested by the police and after being taken to
Plessislaer police station,
[8]
was later taken to Edendale Hospital for treatment for his various
injuries.  He was thereafter again detained;
(m)
The next day, 19 December 2010 at approximatly 9h20, accused 1 was
taken to Dr Soni at St Anne’s hospital. Dr Soni recorded
that
accused 1 was ‘allegedly assaulted by many people from
community and further that he was assaulted with gun and sticks
and
kicked’;
(n)
According to the occurrence book entry for the Plessislaer Police
Station, accused 1 was re-detained there at 16h45 when brought
back
to the police station. The confession taken from accused 1 by
Mlangeni was allegedly completed at 16h20;
(o)
Accused 3 was arrested on 20 December 2010 by a number of policemen
including constable Madlala.
[9]
The relevant occurrence book entry on the 20 December 2012 at 18h00
recorded that he was the policeman who detained accused
3 as a
suspect;
(p)
Dr Soni saw accused 3 at 15h30 on 20 December 2010;
(q)
Mncwabe is the officer in charge of the detectives at Taylors Halt.
The investigating officer, Warrant Officer Mthembu, fell
under his
command.  Mncwabe was not on duty over the weekend of 18 and 19
December 2010. The matter was however a ‘high
profile’
one which would immediately have come to his attention on Monday, 20
December 2010, when he returned to work. He
was requested by Warrant
Officer Mthembu to take a statement from accused 3 which he completed
at 19h33 on 21 December 2010. He
said,
inter alia,
the
following in evidence in response to various questions:
‘
Captain,
apart from taking down the warning statement from the accused did you
have anything to do with the actual investigation
of the docket up to
that stage?  … Not at all, My Lord.
I
understand as the head of the detective branch at Taylors Halt,
dockets of your subordinates would pass through your hands at
some
stage, is that right? … That is so.
And
is it so that you would have had course [cause] to peruse this docket
during the course of the investigation? … That
is so M’Lord;
Mncwabe
confirmed that he knew of the murder and its details.  He had
heard that the community had arrested a person on the
Saturday.
He had heard that the body of the deceased was mutilated, at least by
the Monday when he returned to work.
He had also heard that
there were other suspects that were arrested as well. As this was a
particularly gruesome murder everybody
in the detective branch was
talking about the incident
(r)
Mncwabe further said in his evidence that if accused 3 had wished to
exercise his right to a legal representative that he ‘would
not
have carried on in taking the statement, however I would have still
asked him some questions regarding this matter’.
When asked
‘what questions do you mean’, he confirmed that it would
be ‘questions regarding the crime itself
or what’ and
that he would have ‘done it right there on that time’.
This
is a startling misunderstanding of an accused person’s right,
inter alia,
to silence and not to incriminate himself. It must inevitably
influence other statements that the accused’s rights were duly

observed.
[9]
It is against that evidence that the versions of the two accused as
contained in their respective confessions must be contrasted
and
compared. Obviously in assessing a confession, experience has taught
that it is not uncommon for the deponent to down play
his involvement
in a particular crime.  I am very mindful of that pitfall as
well as the others that one encounters from time
to time in presiding
over criminal trials, when considering confessions.
[10]
The material portion of the confession by accused 1 reads as
follows:
‘
I
admit having killed the deceased in this case but I did not rape her.
She was raped by Bhekumuzi.Ntshele and Siphokuhle Mkhize.
On
2010/12/17 at about 19h00. I was at Mortel Store. I was together with
Siphokuhle Mkhize, Muzi (Bhekumuzi) Ntshele, Sihle Ntshele,
Thanda
Ntshele, Mondli (surname unknown) and one Mr Khumalo who stays at the
place with Taxis at Mafakatini and who is slender
built. We were busy
drinking liquor which was two bottles of Smirnoff and some beers.
While
busy drinking now and again we stood up to dance to some females. I
do not know their names. One of these females kept on
telling others
not to dance with us saying that “SINGOSKHOTHENI”. I
warned her not to call me ‘USKHOTHENI”.
One
Male person who was drinking with these female told me to move away
from them of which I did. At a later stage I saw the same
females
walking out of the shop while I was also outside. When she walked
pass me she said here is this “SKHOTHENI”.
I got upset
and I drew the okapi knife that was in my possession (but which
belonged to Muzi) and I stabbed her on her hand. I
went back to the
shop and I told Muzi and Siphokuhle that I had stabbed the female who
called me “USKHOTHENI”.
Muzi
took his knife from me and he said: “Let us follow them.”
I wasn’t to stab her my hole as well. Siphokuhle
also said he
wanted to stab her. We followed them but we did not see as to what
direction they took. Muzi said he knew where one
of them stayed as he
used to walk pass her house when going to the soccer gymnasium. We
followed.
When
we came to that house we saw a female who came out of the toilet. She
walked into a one roomed out building and she closed
the door. We
thought it was the same female who insulted us calling us
“oskhotheni”.
Muizi
knocked at the door and he said: “I am Muzi, please open”.
The said female opened the door without asking any
questions. Muzi
grabbed her and closed her mouth. I told her to point out to us her
sister who is fair in complexion. Muzi started
to stab her. He gave
me the knife to stab her and also gave the same knife to Siphokuhle
to stab her. She apealed to us not to
kill her. She promised to point
out where the sister was. She led us down the road but she turned
around and said she did not know
where the sister was.
We
then decided to rape her as we thought she was fooling us arround. It
was Muzi who said she had to be raped. Muzi started to
rape her.
Siphokuhle was next to rape her. I also tried to rape her but my
penis failed me. We all agreed that we had to cut her
and kill her in
order to silence her.
We
did stab her several times. She was also cut but I do not recall as
to who cut her on the stomach from her vagina. That is all
I wish to
state
QUESTION
1: Some blood stains were found on the photo in the house and on the
door?  Can you tell me how this blood got there?
ANSWER
1: After the said female was cut I realised that my skiper was
missing from me. Muzi also said his shoes were missing. We
therefore
went back to the deceased’s house to look for my skiper and
Muzi’s shoes. Muzi did find his shoes but I did
not find my
skiper. It is possible that we touched few things in the house while
having blood on our hands
QUESTION
2: There was a pair of push in sandals that was found near the gate
at the deceased’s house. Whose sandals were these?
ANSWER
2: May be if I can see them, I will tell you because I know what my
friends used to wear.
QUESTION
3: I see that you are injured. How did you sustain these injuries?
ANSWER
4: The community who caught me assaulted me. I did admit to them as
well that I killed the female.
QUESTION
5: Is there anything else you would like to say.
ANSWER
5: No; That is all’.
Thereafter
followed the signature of accused 1 and the signature of Mlangeni.
The statement continued:
‘
I
forgot to mention something.
QUESTION:
What is it that you forgot to say?
ANSWER:
I wish to state that Sihle Ntshele did not participate in the killing
and raping of the deceased, but it was his brother
Muzi (Bhekumuzi)
who participated. Muzi is not yet arrested as he ran away. That is
all.’
[11]
The material portions of the confession made by accused 3 to Mncwabe
read as follows:
‘
I
understand the allegations against me and I admit the charges.
The
incident started when myself and my friends namely (Sgodo) Thembela
Ngcobo and (Spho) Sphokuhle Mkhize were on our way to look
for a
certain female person who had had an argument with Sgodo earlier that
evening. I do not know the name of that female person
but she resided
at Mafakatini location.
It
was at about 23:00 when we reached at the homestead of that female
person. I stood at the verandah of the house and the other
two went
in to the room of that female person because they knew where she
slept. They spend approximately five minutes inside that
room and
shortly thereafter there was a female person who came out of the room
holding the shoulder and bleeding. I realized that
she had been
stabbed by one of the two friends of mine. I do not know as to where
the female person went to.
While
I was stil waiting, my friends came out with another female person.
We all went out of the premises and when we we out they
started to
rape the woman one by one and they also told me to rape her. I raped
the woman after having instructed by my friends
and also due to the
fact that I was drunk.
When
we had finished, Sgodo instructed me to stab the woman with an okapi
knife which he gave me. I stabbed the woman once on the
chest and I
stood aside. I returned the knife to Sgodo and they both also stabbed
the woman until she died. We then left and took
separate routes to
our homes. I was at home and I did not report to anybody of what had
happened.
I
should say that what caused us to commit the crime was that we were
heavily drunk. We had been drinking at Motel store.
We were
drinking a case (dozen) of beers and three bottles of Smirnorff
Vodka.
I
did not intend to raped, murder the woman but due to being under
influence of liquor I found myself under the situation of commiting

the crime.
That
is all I can say’.
[12]
The trial court correctly found that Khethiwe’s evidence that
she had been stabbed out of the blue (as she described)
whilst on her
way home, could not be the truth. The probabilities and the
inferences to be drawn from the surrounding circumstances
clearly
point to there being some altercation, most probably of the nature
described by accused 1, during which Khethiwe was probably
the
antagonist and which resulted in her being stabbed. Whether the
court’s finding of guilt on count 1 was nevertheless
correct
does not arise in this appeal and I shall not comment on it any
further.
[13]
It also seems highly improbable, where accused 1 had stabbed Khethiwe
for whatever reason, that he would proceed to her home
and then
accompany her mother to go and meet up with Khethiwe. As much as the
trial court accepted Khethiwe’s mother’s
evidence, the
concern is that the community, and probably she and Khetihiwe, had
concluded that accused 1 must have been involved
in the killing of
the deceased because he had stabbed the deceased’s sister,
Khethiwe, earlier that evening. They would therefore
have a reason to
want to place him at or near their home. Mlangeni had also concluded
similarly,
[10]
for probably
similar reasons.
[14]
However, at the time accused 1 was still with Khethiwe and her mother
on their version, which must have been after midnight
as Khetiwe’s
evidence was that she had only left the Mortel Store at around 24h00,
the deceased (according to the question
posed by Khethiwe’s
grandmother) had already left their homestead.  This was said to
have been at approximately 23h00.
However, on Khethiwe’s
version she had not at that stage yet been stabbed and was not at her
home. Accused 3’s confession
is totally irreconcilable with
this version.
[15]
The explanation by accused 1 in his confession also suffers from a
similar time line problem. Accused 1, accused 3 and the
erstwhile
accused 2 would on accused 1‘s version have proceeded to the
home of the deceased and Khethiwe at approximately
23h00, whereas
Khethiwe says she only left the store at approximately 24h00. If
accused 1 was part of the killing, at around 23h00,
then Khethiwe was
not yet at home, but he, on Khethiwe’s mother’s
evidence,
[11]
was already at
Khetiwe’s home. If the estimations of time are wrong and the
murder had by then already been committed, then
accused 1 would have
accompanied Khethiwe’s mother to fetch Khetiwe, having murdered
her other daughter possibly minutes
before, and in the process would
be placing himself near the scene. The version of accused 3 according
to his confession is in
direct conflict and cannot be reconciled with
the version of Khethiwe or accused 1. On his version Khethiwe was
back home and in
the company of the deceased in a room when Khethiwe
was stabbed. As much as one is alive to the mendacity of potential
co-perpetrators
or accomplices when recording confessions and the
natural tendency to down play their involvement, the significant
contradictions
between these versions is a matter of considerable
concern.
[16]
On the version of accused 3, Khethiwe was stabbed in the room at her
homestead where she had been with the deceased, she thereafter

emerged from the room and the deceased was then brought out of the
room and attacked. During all this, accused 3 was waiting on
the
“veranda” of the structure in which Khethiwe and the
deceased had  been, which structure
ex
facie
the photographs which were
produced in court does not have a veranda at all.
[17]
Even attaching very little, if any, probative value to the factual
circumstances set out in the confessions of accused 1 and
3, on the
State’s own version, more particularly the time frame emerging
from Khethiwe’s evidence, the crimes could
not have been
committed as alleged.
[18]
A further disconcerting aspect of the case is that the confession of
accused 1 was recorded by Mlangeni, who was intimately
involved with
the initial investigations at the scene, who interviewed witnesses
and who, in fact, obtained a statement from Khethiwe.
Mncwabe
likewise was the officer in charge of the detective branch at
Taylor’s Halt under which the investigation was conducted.
The
investigating officer, Warrant Officer Mthembu reported directly to
him.
[19]
The law is clear regarding confessions recorded by a police officer
in the same unit as the investigating officer or by officers
in the
same unit.  It is undesirable that such confessions be taken by
any such police officers.
[12]
It is also trite that the fact that it is undesirable, does not mean
that such confessions are inadmissible
per
se
.
[13]
The issue of undesirability however goes hand in hand with the danger
that exists or which is perceived that there is a potential
for
improper inducement, personal knowledge of the officer to find its
way into the narrative, or that the confessions otherwise
might
result from undue influence.
[20]
Ultimately each case must be decided on its own facts.  In the
minority judgment of Kruger J in
S
v Nzama
and
Another
[14]
he referred to
S
v Dhlamini
(supra)
[15]
where Holmes JA in regard to the analogous provisions to
s 217
in the
Criminal Procedure Act of 1955 referred to the following statement of
De Villiers J P in
R
v Ndoyana and Another
[16]
namely that:
‘
Where
the only evidence for the Crown implicating an accused person is an
alleged confession it is immediately suspect.’
Reference
was also made to the comment by Innes CJ in
Rex v Barlin
1926
AD 459
at 465 where it was said:
‘
A
police officer who has charged or arrested a person, or has him in
his custody, occupies in regard to that person a very special

position of authority – one which may in itself strongly affect
a weak or ignorant man.’
[17]
Following
S
v Magwaza
[18]
if a rights infringement results in the creation of evidence which
would otherwise have not existed, then the use of evidence that
could
not have been obtained but for the participation of an accused in the
construction of the evidence for the purposes of a
trial would tend
to render the trial process unfair.
[21]
Mlangeni had clearly concluded at a very early stage that accused 1
was correctly considered as a suspect. For this he could
only have
been influenced by what was reported him by the community, who
themselves seemingly concluded that accused 1 must have
been involved
in the murder probably on the basis that earlier during the evening
he had stabbed the sister of the deceased (no
other basis for the
community suspecting him to be complicit was advanced), thus
suggesting some motive (which remains uncertain)
to murder her
sister. These circumstances would have tainted and influenced his
entire approach to the interview with and the recording
of accused
1’s confession.
[22]
The trial court sought to find some support and safeguard for its
ruling that the confessions were admissible in the fact that
they
contain statements which accord with objectively established facts
which the two police officers would not have known personally,

therefore that the communication of the existence of these facts
could only have emanated from the accused.  Clearly, for
example
in the case of accused 1, details of his cellphone number and the
names of the friends he was drinking with, could probably
have
emanated from him, although also known to others at the Mortel Store
and who would know him, but it is also not surprising
that these
details would have been given to Mlangeni as they were also relevant
to the stabbing of Khethiwe, which was not disputed
by accused 1.
In
regard to the murder, no such peculiar objective facts which could
only have been known to the murderer of the deceased appear
in the
confession. The confession of accused 1 refers to the deceased having
been cut open along the front of her body, a fact
which would be
known to her murderer, but it is also a fact known to Mlangeni who
witnessed the deceased for himself, investigated
the scene and
conducted various interviews, and could have made its way into the
confession even inadvertently from his personal
knowledge. It is also
somewhat improbable that where the evening was apparently so dark
that Khethiwe could not see that the person
who accompanied her
mother to fetch her was not her brother but in fact accused 1 who had
stabbed her earlier, that accused 1 if
he was one of the
co-perpetrators would not have been able to observe the extent of the
cut on the deceased having regard to the
darkness in the area where
her body was found.
It
is also improper that after recording what was allegedly volunteered
by accused 1, specific questions not aimed at clarifying
any
ambiguous statement, but amounting to an interrogatory, were posed by
Mlangeni to accused 1.  Significantly, answer 4
records that it
was ‘the community who caught me, assaulted me. I did admit to
them as well that I killed the female’.
On that version the
confession to the community followed upon a assault (confirmed by the
objective evidence of extensive injuries
suffered by accused 1 and
which required medical treatment at hospital), which could hardly
make that confession free and voluntary
and not without undue
influence.
[23]
Similar considerations apply in respect of the confession made by
accused 3 to Mncwabe.  At the stage he made his alleged

confession the threat of violence by the community would have been
paramount in the mind of accused 3, hardly making any thing
he might
say incriminating to the offences freely and voluntary and without
undue influence.  In addition, his description
of the relevant
circumstances fly directly in the face of the events described by
Khethiwe as to how she came to be stabbed.
Effectively the
state’s version, the version of accused 1 and that of accused 3
are in conflict to such an extent that they
are irreconcilable and
contradictory. All that remains in the confessions are the simple
statements admitting that accused 1 and
3 were responsible for the
murder, but the aforesaid contradictions as to the events and
circumstances regarding the murder are
such that these conclusions of
alleged complicity have insufficient evidential value as to persuade
me of the guilt of the accused
beyond a reasonable doubt.
[24]
Certainly following so shortly after a vicious assault by the
community and/or the real danger of further possible assaults,
I have
concerns and misgivings as to the voluntariness of the two
confessions, whether they were free of undue influence and whether

they in fact record information which could only have come from the
accused. Having regard also to the zeal in securing suspects
to avoid
the community resorting to self-help as expressed by the two
officers, in the case of Mlangeni that he was satisfied he
had ‘the
right suspect’ (it seems based mainly on what the community had
concluded) and in the case of Mncwabe, that
he would have continued
questioning the accused even if accused 3 wished to avail himself of
the right to legal representation,
coupled with their intimate and
detailed knowledge of the facts and circumstances surrounding the
murder, thus being able to contribute
descriptions of the
nature of the injuries and the like, the trial court in my view erred
in concluding that these confessions
passed the test for
admissibility. I am certainly left with a distinct feeling of unease
for the convictions to depend solely on
the confessions obtained in
these circumstances.
[25]
There are also other aspects of concern such as the alleged failure
by accused 1 when initially making his confession to specifically

implicate accused 3. This was seemingly added as an afterthought. It
is not without significance in the sequence of events, that
accused 3
is then arrested on the very next day, probably in the main based on
the confession of accused 1, which would in the
ordinary course be
inadmissible as against accused 3, thus introducing the need for a
separate confession by accused 3 to the crime.
[26]
The case in favour of the admissibility of the two confessions is in
my view weaker than that which confronted the court in
S
v Nzama
. The reasoning and concerns
expressed in that minority judgment are even more prominent in the
context of the facts of this matter
and leave me to conclude that the
State had not proved the guilt of the accused beyond a reasonable
doubt.
[27]
Accordingly, the following order will issue:
(a)
The appeal is upheld;
(b)
The conviction of accused 1 and 3 on count 3, and consequently the
sentences of life imprisonment imposed on each of the accused
by the
court
a quo
are
set aside and substituted with a finding that both accused 1 and 3
are found NOT GUILTY and are discharged on that count.
KOEN
J
SEEGOBIN
J
HENRIQUES
J
Date
of hearing: 26 February 2016
Date
of Judgment: 18 March 2016
Appellant’s
counsel: Mr X Sindane
Instructed
by: Justice Centre: Pietermaritzburg
Respondent’s
counsel: Ms P Ngcobo
Instructed
by: DPP: Pietermaritzburg
[1]
The appellants shall in this judgment be referred to as in the court
a
quo
.
[2]
An
application for leave to appeal against sentence was refused by the
trial court.
[3]
In
respect of that count (count 1) accused 1 was sentenced to 3 months’
imprisonment wholly suspended for 5 years on condition
that he did
not commit an offence which has an element of violence (presumably
committed during the period of suspension). The
accused were also
charged with the rape of the deceased (count 2) but were acquitted
by the trial court.
[4]
Exhibit
‘M’ before the court
a
quo.
[5]
Exhibit
‘N’ before the court
a
quo
.
[6]
The
erstwhile accused 2 testified that he did not witness any
altercation at Mortel Store where he had been drinking on the

evening of the 17
th
December 2010. He left at about 23h00 with his brother and went
home.
[7]
Khethiwe had testified she was injured on the right arm.
[8]
Accused 1 was detained at the Plessislaer police station because the
Taylor’s Halt police station, within whose area the
crime was
committed, only has holding cells but don’t have facilities to
detain accused persons overnight.
[9]
It seems that the arrest of accused 3 probably followed from accused
1 implicating him in his confession – see paragraph
10 below.
[10]
See paragraph 8(j) above.
[11]
Save that Khethiwe’s mother’s evidence was that the call
from Khethiwe for her to meet her came earlier, after she
and the
deceased had finished watching ‘Generations’.
[12]
S
v Dhlamini and another
1971
(1) SA 807
(A) at 815A–C.
[13]
S
v Nzama
2009
(2) SACR 326 (KZP).
[14]
2009
(2) SACR 326
(KZP) para 6.
[15]
See
footnote 12 of this judgment.
[16]
1958(2)
SA 562 E.
[17]
See
para 6 of S v Nzama fn 14.
[18]
2016 (1) SACR 53
(SCA) at 66 para 18.