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[2015] ZAGPPHC 633
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S v Ngwenya (CC73/15) [2015] ZAGPPHC 633 (30 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, EASTERN CIRCUIT, MIDDELBURG)
CASE
NUMBER: CC 73/15
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
(4)
30/07/2015
……………………
..
………………………...
DATE
SIGNATURE
In the
matter between:
THE
STATE
versus
PHUMLANE
FORTUNE NGWENYA
JUDGMENT: REASONS FOR ADMISSION OF
CONFESSION
LAMPRECHT,
AJ
(30/07/2015)
Introduction
[1]
The accused is charged with murder, rape and defeating the ends of
justice. During the course of the trial, Mr Coetzer, for
the state,
indicated that the state wants to present evidence of an extra-curial
confession that accused made to a magistrate.
Ms Fraser, for the
accused, indicated that the voluntariness of the statement is placed
in issue; and, upon enquiry from the court,
further indicated that
some of the contents of the statement is also placed in issue,
averring that the magistrate maliciously
recorded certain facts that
the accused did not convey to him. A so-called trial-within-a-trial
was then held after which I ruled
that the confession statement is
admissible and, accordingly ordered that it be admitted into
evidence. At the time, I did not
provide any reasons for my decision.
These are my reasons.
The
law and legal questions that arose during the trial-within-a-trial
[2]
Section 217 (1) of the Criminal Procedure Act 51 of 1977 (CPA)
provides as follows:
“
(1)
Evidence of any confession made by any accused person in relation to
the commission of any offence shall, if such 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, be
admissible in evidence against such person at criminal proceedings
relating to such offence: Provided–
(a)
that a confession made to a peace officer, other than a magistrate or
justice or, in the
case of a peace officer referred to in section
334, a confession made to such peace officer which relates to an
offence with reference
to which such peace officer is authorized to
exercise any power conferred upon him under that section, shall not
be admissible
in evidence unless confirmed and reduced to writing in
the presence of a magistrate or a justice; and
(b)
that where the confession is made to a magistrate and reduced to
writing by him, or is confirmed
and reduced to writing in the
presence of a magistrate, the confession shall, upon the mere
production thereof at the proceedings
in question –
(i)
be admissible in the evidence against such person if it appears from
the document
in which the confession is contained that the confession
was made by a person whose name corresponds to that of such person
and,
in the case of a confession made to a magistrate or confirmed in
the presence of a magistrate through an interpreter, if a certificate
by the interpreter appears on such documents to the effect that he
interpreted truly and correctly and to the best of his ability
with
regard to the contents of the confession and any question put to such
person by the magistrate; and
(ii)
...”
[1]
[3]
Section 35(1) of the Constitution of the Republic of South Africa,
1996, (Constitution)
inter alia
provides:
(1)
Everyone who is arrested for allegedly
committing an offence has the right–
(a)
to remain silent;
(b)
to be informed promptly–
(i)
of the right to remain silent; and
(ii)
of the consequences of not remaining silent;
(c)
not to be compelled to make any
confession or admission that could be used in evidence
against that
person;
(d)
to be brought before a court as soon as reasonably possible, but not
later than–
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court hours or on
a day which is
not an ordinary court day;
(e)
at the first court appearance after being arrested, to be charged or
to be informed of the
reason for the detention to continue, or to be
released; and
(f)
to be released from detention if the interests of justice permit,
subject to
reasonable conditions.
[2]
[4]
A few things become clear from a reading of these provisions of the
Constitution and the law.
4.1
Firstly, an extra-curial confession made by an accused person is
admissible as evidence
against that accused person at his trial for
the offence confessed to, provided that
(a)
it has been made freely and voluntarily by the accused, while in his
sound and sober senses
and without having been unduly influenced
thereto; and, further that
(b)
it has not been made to a police official, correctional official or a
peace officer referred
to in section 334 of the CPA who is not “a
justice of the peace under the provisions of the Justices of the
Peace and Commissioners
of Oaths Act, 1963 (Act 16 of 1963)”,
[3]
unless it has been confirmed and reduced into writing before a
magistrate or a justice of the peace.
[4]
A
confession made to a private person would therefore be perfectly
admissible provided that the other requirements of section 217(91)(a)
of the CPA have been met, namely, that it has been freely and
voluntarily made, by the accused person in his sound and sober senses
and without having been unduly influenced thereto.
4.2
Secondly, a confession made to any person besides the persons
excluded in section 217(1)(a)
of the CPA need not be reduced into
writing before it would be admissible into evidence.
[5]
However, where it has been reduced into writing by, or confirmed and
reduced into writing in the presence of a magistrate (not
a ‘justice
of the peace’), the document in which the confession is
contained may be admitted into evidence by the mere
production
thereof, provided that, it contains a name of the declarant which
corresponds to that of the accused person; and further
that, where an
interpreter was used, the interpreter has completed and signed what
has become known as the “interpreter’s
certificate”.
[6]
What Counsels for the state and defence and presiding officers
commonplace seem to forget is that only the so-called ‘reverse-onus’
provision contained in section 217(1)(b)(ii) of the CPA has hitherto
been declared unconstitutional,
[7]
and that section 217(1)(b)(i) has remained unscathed. Therefore,
where a magistrate took a confession statement, it is usually
unnecessary that the magistrate and / or interpreter be called as
witnesses to determine the admissibility of the confession, unless
their evidence are deemed necessary to prove that the other
requirements of section 217(1)(a) of the CPA have been met or, where
the contents of the statement are in dispute. In this matter, as we
have seen,
[8]
the contents of the confession have pertinently been placed in
dispute and the magistrate accordingly had to be called as a witness
to prove the correctness of the contents of the confession statement.
[5]
Another aspect of the law that surfaced during the
trial-within-a-trial and which produced uncertainty among Counsels
for the
state and defence, was whether the contents of the confession
could or should be disclosed to the court before the court has ruled
on its admissibility. The concerns raised by Ms Fraser were that the
presiding officer might be influenced by the contents of the
statement, which he has not yet ruled admissible; and, that it may
potentially be prejudicial to the accused if the court takes
cognisance of the contents of a statement that may later prove to be
inadmissible evidence. Therefore, Counsel for the state agreed
to
hide (or cover) the contents of the statement until such time that I
ruled on the admissibility thereof. I however questioned
this
practice at the outset as, to my mind, the law does not require such
approach. After I was addressed on this issue during
the evidence of
the magistrate, I ruled, without the supply of reasons, that the
contents of the confession may be disclosed during
the
trial-within-a-trial. My reasons are as follows:
5.1
There are divergent views as to
whether the presiding officer may read through the confession
statement before having ruled on its admissibility. Some courts hold
the view that the confession may not be perused by the presiding
officer before a decision on its admissibility has been given.
[9]
Others have taken the view that if the accused alleges that the
contents have been dictated to him by someone in a position of
power,
the court may examine the contents of the statement to determine
whether the statement is fictitious.
[10]
The matter is therefore still largely unsettled. In the light of what
follows, I am of the view that there is nothing that prohibits
a
presiding judicial officer to take cognisance of the contents of a
statement, even if it may later appear to be inadmissible
as evidence
against a particular accused person.
5.2
Generally speaking, the truth of the contents of the confession is
irrelevant to the question
of admissibility thereof, and the
prosecutor is usually not entitled to cross-examine the accused about
the truth of the contents
thereof. In some instances, however,
it is necessary to determine whether the contents of a confession are
the truth, because
an untrue confession can never be reliable.
An
expression often found in English common law decisions to refer to
what has in South Africa become known as a ‘trial-within-a-trial’
is the French expression
voir
dire
.
The word
voir
,
in this combination, comes from Old French and derives from the Latin
verum
(‘that which is true’). The word
dire
is Old French which derives from the Latin
dicere
(‘to say / tell’). In its usual meaning, the phrase is
often used in Anglo-American jurisprudence to denote ‘
a
preliminary investigation to determine the competency of a witness or
a juror to be able to tell the truth or to base a finding
on the
truth
’.
Bearing in mind that the verb
dire
appears in this combination in one of the past tense configurations
of the French language, the phrase can denote ‘
a
preliminary investigation to determine the truth of something that
has been said at some point in the past or to determine whether
an
earlier statement was intended to convey the truth
’.
To avoid a lay-jury being influenced by the contents of an
extra-curial statement by an accused person when otherwise it
should
in terms of judicial policy be regarded as inadmissible
evidence, it has become customary at common law for a Judge
to sit in
the absence of the Jury when determining the admissibility of
evidence concerning an extra-judicial confession by an
accused
person; and, to enquire into whether it is admissible into evidence
in order to allow the Jury to rely on it during its
determination of
the truth – this was called a
voir
dire
.
There was never any question as to whether the presiding judge could
take cognisance of the contents of the statement before ruling
on its
admissibility. This is more or less what the modern
‘trial-within-a-trial’ envisages in South African Law of
Criminal Procedure and Evidence. The main object of a
trial-within-a-trial is therefore to determine whether the
self-incriminating
extra-curial statement by an accused person can
reliably be regarded as a true statement by the accused of what
happened; or, whether
the statement has been induced through duress
and, therefore, unreliable or, at least, unjustly obtained, so that
it should be
excluded as evidence as a matter of judicial policy. It
would appear that the rationale for the exclusion of improperly
obtained
confessions (or, admissions, which are not confessions) in
terms of judicial policy at common law, as entrenched in the
Constitution
and the CPA, is threefold:
1.)
First
and foremost, the potential unreliability of such a confession;
2.)
Second,
to protect an accused person’s privilege against
self-incrimination; and,
3.)
Last,
but not least, to underscore the importance of proper behaviour by
the police to those in custody.
[11]
The reason why the
admissibility of a confession statement was usually determined in the
absence of the jury or, in modern times,
assessors, especially in the
lower courts where the courts sit with ‘lay-assessors’
was so that the laypeople of the
court could not be unduly influenced
by evidence which has not yet proven to be admissible. The presiding
officers, who are trained
judicial officers that know when and how to
exclude inadmissible evidence without being influenced thereby, could
however in the
absence of the laypeople of the court take cognisance
of the contents of a confession in order to determine its
admissibility.
In this regard A Kruger
Hiemstra’s
Criminal Procedure
[12]
states as follows:
[13]
“
It may
become necessary to call to the witness stand the magistrate or
interpreter who took the confession, and provision has to
be made by
the presiding officer for this.
It
was previously the practice to exclude assessors from the
trial-within-a-trial so that, if the confession should appear to be
inadmissible, they would not be aware of the contents thereof.
This procedure in high courts [but not the lower courts] has been
changed, as appears from the commentary under section 145.”
[14]
It would therefore
appear that it has always been the view that judges and modern-day
magistrates, trained judicial officers, are
deemed to be competent to
exclude and not take into account inadmissible evidence, even though
they might have inadvertently taken
cognisance of the contents
thereof.
5.3
It is also
of paramount importance for the court to determine whether the
statement by an accused person, the admissibility of which
is
disputed, amounts to a confession in the true sense of the word or to
only an admission or an exculpatory statement. For the
former the
admissibility requirements of section 217(1) need to be met before
the confession will be admitted. An admission can
be admitted into
evidence once it is proven that it has been freely and voluntarily
made by the accused person to whatever person,
even a police officer
who is not a justice of the peace.
[15]
Subject to the rule against hearsay evidence, an exculpatory
statement need not meet any requirements for its admission into
evidence.
A confession is regarded as an unequivocal admission of
guilt, with no defence remaining open to the accused person.
[16]
An admission is something less than a confession, containing an
admission of only one or more of the elements of a crime charged,
but
it does not amount to an unequivocal admission of guilt, which is
akin to a guilty plea. In an admission, a defence of some
kind is
still open to the accused person. An exculpatory statement does not
contain any admission by the accused person of any
of the elements of
the crimes charged. It may however contain something that is relevant
to the determination of the credibility
of an accused person on a
crucial point of a case, such as an alibi or an admission that he was
at the scene of the crime as a
witness and, if he later denies it,
the statement can be proven to discredit his version. Thus, in order
to determine what regime
governs the admission of a particular
statement, the court has to determine what kind of a statement it is.
Furthermore, the court
cannot simply rely on the say-so of a
prosecutor or a defence lawyer to determine in which category a
statement falls, since experience
has shown that all too often they
are mistaken. It is something that is for the presiding officer to
judge, not for the prosecution
or the defence; and, in the end, it
will be the presiding officer’s judgment that is taken on
appeal if necessary, not that
of the prosecution or the defence.
5.4
Magistrates are extremely busy people and should as a rule not be
called to give evidence
in matters before another court. This is
exactly the reason why section 217(1)(b)(i) provides that the
confession statement (including
the contents thereof) may be
proven upon mere production thereof at the proceedings. However,
where in a case, such as the
current, it is averred that the contents
of the statement are false, more especially that the contents of the
statement have been
made up by the magistrate and / or interpreter
and that something has been recorded which the accused did not say,
it is necessary
that the magistrate and interpreter be called to
testify to refute those averments. It is especially then that the
court has to
take cognisance of the contents of the statement and
compare the accused’s averments to the magistrate’s and
interpreter’s
responses to determine who is speaking the
truth.
[17]
[6]
A further proposition which has been explored by Ms Fraser in
cross-examination of the state’s witnesses is whether the
confession should be ruled inadmissible when there is doubt as to
whether the accused person had been properly informed of his
rights
or whether he properly understood them; or, where the confession was
obtained in violation of the accused person’s
other
constitutional rights, for example the right to be brought before a
court and charged within 48 hours after arrest –
the so-called
habeas corpus
concept. The fact that evidence of an
extra-curial statement has been obtained in violation of an accused
person’s rights
in the Bill does however not mean that such
evidence must be excluded
per se
. Section 35(5) of the
Constitution does not contain a constitutional imperative that all
evidence obtained in violation of the
Bill of Rights must be excluded
and that the court has no discretion whatsoever to allow such
evidence. Section 35(5) reads
“
Evidence
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.
”
[18]
This
much has been confirmed by the Constitutional Court under the Interim
Constitution, 1993, in
Key
v Attorney-General, Cape Provincial Division, and Another
:
[19]
“
At times
fairness might require that evidence unconstitutionally obtained be
excluded. But there will also be times when fairness
will require
that evidence, albeit obtained unconstitutionally, nevertheless be
admitted.”
[20]
[7]
The last legal issue that cropped up during the trial-within-a-trial
arose at the end of the accused’s own evidence. Towards
the end
of his evidence in re-examination he referred to an entry in his
diary that he had opened a case of assault against the
police
involved in his arrest and the circumstances surrounding his
confession to the magistrate. He even produced a CAS number
of the
docket that was opened and the name of the investigating officer.
Before closing the defence case in the trial-within-a-trial,
Ms
Fraser requested an adjournment of the matter to investigate the
issue whether such a case had indeed been opened and whether
that
fact should be introduced into evidence to determine the veracity of
accused’s version of duress and torture to induce
confession.
Without supplying reasons at the time, I curtly dismissed the
application because such a statement can normally not
be used to
corroborate the accused’s version that he had been assaulted
and placed under duress to induce him to confess.
I nevertheless
granted an adjournment for an early lunch so that Ms Fraser can, for
her own peace of mind, make enquiries to determine
whether such a
case had been opened and what the status thereof was, but indicated
that, in my view it amounts to nothing but a
fishing expedition and a
waste of time that will unnecessarily delay the matter’s
finalisation and, probably, result in the
matter having to be
postponed part-heard, which is to be avoided at all costs by an
acting judge on Circuit. At resumption, the
defence abandoned the
application for a further adjournment because the docket had
reportedly been closed as the Director of Public
Prosecutions
declined to prosecute. I would nevertheless have refused the
adjournment simply because it would in any event have
been
inadmissible for the defence to prove the existence of a previous
consistent statement in support of the veracity of the accused’s
version. Ashworth
[21]
explains that in terms of English Common Law there is a rule that a
witness cannot corroborate himself save for “one carefully
circumscribed set of circumstances where self-corroboration is
possible by means of the victim’s distressed condition after
the alleged incident”. Of course, in such a case, the court
must be satisfied that the emotional condition is not simulated
and,
if genuine, that it was indeed the result of the fact that the
witness was the victim.
[22]
Thus, it would have been inadmissible for the defence to prove that
the accused, some months after the alleged incident,
[23]
opened a case of assault against certain police officers, if the only
reason for presenting such evidence was to prove that the
accused
consistently averred that he had been assaulted and placed under
duress in order to confess.
The
facts
[8]
The state’s case in the trial-within-a-trial through the
evidence of nine witnesses, can be summarised as follows. Shortly
after the accused had reported to the police the find of a dead body
in a sewer manhole on the premises of his parental home and
after
clothing suspected to belong to the deceased had been found inside
his room, including a T-shirt draped over human faeces;
and after he
could not provide an acceptable explanation to the police, he was
arrested for murder and promptly informed of his
rights as required
by the Constitution. This happened on Friday 31 January 2014 before
11h00. During an interview afterwards,
he informed the
investigating officer that he was willing to confess before a
magistrate, after which arrangements were made that
he be taken to
the magistrate at Bethal for confession on Monday 3 February 2014. He
was indeed taken to confession on that date
between 11h50 and 13h50
when he was booked back into the cells. Unfortunately he was not
taken to court for his first appearance
before close of business on
that Monday and he was only taken for court appearance on Tuesday 4
February 2015, meaning that his
constitutional right to be brought
before court within 48 hours has been violated. This however had no
bearing on the accused confessing
to the magistrate and it cannot be
said that the confession was therefore obtained in a manner that
violated his constitutional
rights justifying an enquiry into whether
the confession should be excluded for having been obtained
unconstitutionally. Furthermore,
the investigating officer gave an
acceptable explanation for this state of affairs, namely that he
thought that the officer who
took the accused to confession would
have taken him for his first court appearance at the same time and
that he only found out
after court hours that it had not been done.
[9]
According to magistrate CF Nieuwoudt of Bethal and the interpreter Ms
BA Mafuse, after having been questioned and informed of
his rights to
silence and legal representation, the accused confessed, ostensibly
freely and voluntarily and without having been
unduly influenced
thereto
[24]
while being of sound and sober senses in the following fashion. On a
Sunday, two weeks before the date of the confession, he and
his
girlfriend, Ayanda the deceased, met in the presence of the latter’s
sister, Thando. They had visited him at his parental
place because he
had promised the deceased R250 should she come and visit him. He did
not give her the R250 as promised, but he
did give her R150 to go and
buy clothes. She however squandered the money on alcohol. When he
confronted her about the clothes,
she told him that she would poison
him if he continues questioning her in that way. The two of them
spent the next two nights at
his parental home because they were
afraid that their aunt would fight with them should they return
home. The Tuesday after
he came back from work, he found them
still there. When he confronted them, the deceased told him that they
did go home and that
the aunt they were afraid of was not there, so
they decided to come back to him. She again threatened to poison him
should he not
want them there. He lost his temper at this threat and
started throttling the deceased and he kept on doing so until she
died.
In the process she defecated herself. He then placed her in the
sewer manhole behind his parental home on the same premises. At
that
stage, Thando had already left and did not witness the incident. The
Wednesday he went to work, where his knee got injured.
The Thursday
he went to the hospital with his knee. The Friday, after he had
thought the whole thing through, he decided to go
and report the
matter to the police. The police accompanied him home and retrieved
the body of the deceased from the sewer manhole.
In his room they
found the faeces and the T-shirt draped over it as well as some other
clothes belonging to the deceased. They
then arrested him and, when
he refused to go into the cells, they assaulted him. When he killed
the deceased he was of sound and
sober senses and he throttled her to
death because he was angry at her for having said that she would
poison him. Therefore, the
murder took place on the Tuesday before
Friday 31 January 2014 when the body was pointed out to the police.
It is clear that this
was a complete confession to the crime of
murder with which accused was charged and that the requirements of
section 217(1) of
the CPA have to be met before the confession can be
allowed into evidence.
[10]
Every one of the five police witnesses implicated by the accused as
having assaulted and tortured him with a view to extract
a
confession, vehemently denied in their evidence that any of them
maltreated the accused. They, and the station commander, more
pertinently denied in their evidence that accused was booked out of
the cells the same Friday night after his arrest and that they
took
him to the station commander who instructed them to take him to a
place where they were to beat a confession out of him. They
further
denied that they severely assaulted and tortured him by dunking him
in a dam so as to drown him, and that they told him
that, if he did
not confess to the magistrate, he will be further tortured. The
relevant state witnesses all said that they were
working day shift
and that they were not on duty at night time when the alleged assault
took place. According to the magistrate,
the accused never informed
him of such assault and torture and, had that been the case, he would
not have taken the confession.
The magistrate also vehemently denied
the averment that the part in the confession statement dealing with
the deceased having defecated
herself and the faeces found by the
police was not told to him by the accused and that he had actually
sucked that information
out of his own thumb.
[11]
When the accused took the stand he was an appalling witness. At the
outset during his testimony in chief, he contradicted his
instructions to Counsel, saying that he was already assaulted by the
police in the Charge Office directly after his arrest and
after he
dared ask them what he was arrested for and when he demanded that his
rights be observed. He further testified contrary
to what was put to
the state’s witnesses that, when he was assaulted the Friday
night, he was not told to go and confess
before the magistrate. After
he was assaulted, so he said, did one of the policemen say that ‘this
one will confess’.
He said that the Saturday he was left
alone, but on Sunday, he was again assaulted and tortured in the
cells. This time by
unknown police officials but, as in the case of
the others, they did not induce him to go and confess. When a
police officer
came to the cells and asked who was to be taken to the
magistrate for confession, he merely accepted that it must be him and
he
accompanied the policeman to the magistrate for that purpose.
Moreover, the accused testified that the part of the confession
relating to the deceased having defecated herself and the faeces
found by the police did in fact come from his own mouth, not from
the
magistrate’s pen; but, so he said for the first time during his
evidence, the whole confession was dictated to him by
the
investigating officer. During cross examination he contradicted
himself even further pertaining to all these issues and about
the
time and the contents of the alleged dictation. Importantly though,
during cross-examination he boldly stated that he knew
about his
rights to silence and against self-incrimination and to legal
representation, even before he was arrested. It would therefore
have
made no difference had the police explained or not explained his
rights as required in terms of the Constitution. He also
affirmed
that the magistrate had properly explained his rights in this regard
before he confessed. he cold however not explain
why his proposition
that the investigating officer had dictated the whole
confession to him was never put to any of the state’s
witnesses
during cross-examination and conceded that he did not tell his
Counsel thereof.
[12]
During argument, Ms Fraser conceded that all the state’s
witnesses were good, credible, witnesses and that the accused
was an
untrustworthy witness who severely contradicted himself. She actually
conceded that the version of the accused was to be
rejected as false
and that the confession statement could be allowed into evidence.
These concessions were well and wisely made.
The state’s
witnesses and their evidence came across as credible and trustworthy
and I do not think that even a reasonable
possibility exists that
they might have been untruthful. The accused, to the contrary,
clearly concocted his story of duress.
[13]
I was at the time of my ruling and, I still am, of the opinion that
the state had succeeded in establishing that the confession
was made
freely and voluntarily by the accused, while in his sound and sober
senses and without having been unduly influenced thereto
and that he
confessed, apparently reliably, that he murdered the deceased in the
way alleged in the indictment and in the post
mortem report which was
admitted to be correct during plea. I accordingly allowed the
confession into evidence and, as I was not
swayed during further
evidence or argument to come to a contrary conclusion, the
interlocutory ruling to admit the confession became
a final ruling
and the confession will be assessed together with all the other
evidence on the merits.
____________________________
A
A LAMPRECHT
ACTING
JUDGE GAUTENG DIVISION OF THE HIGH COURT
Representation
for the state
:
Counsel
Adv PW Coetzer
Representation
for the accused
Counsel
Adv L Fraser (Ms)
Instructed
by
Legal Aid South Africa
[1]
Although sub-paragraph (ii) of this provision
still appears on the Statute Book, the Constitutional Court in
S
v Zuma and Others
1995 (1) SCAR 568
(CC) found section 217(1)(b)(ii) of the CPA unconstitutional because
it was in conflict with sections 25(2) and 15(3)(c) and
(d) of the
Interim Constitution. The implicated provision provides for a
so-called ‘reverse onus’ to be placed on
the accused to
prove, on a balance of probabilities, that it was not freely and
voluntarily made by the accused person in his
sound and sober senses
and without having been unduly influenced thereto, which is in
conflict with the presumption of innocence.
The provision is
therefore not quoted.
[2]
Paragraphs (d) to (f) contain and amplify the
so-called
habeas corpus
provisions at common law and is also provided for and further
amplified in section 50 of the CPA.
[3]
Section 1 of the CPA. All ‘Commissioned
Officers’ of the SAPS, in other words, Lt, Capt., Major, Col
or higher are
‘Commissioned Officers’ and, therefore,
ex
officio
justices of the peace.
[4]
Section 217(1)(a) of the CPA.
[5]
E.g., see
A Kruger
Hiemstra’s
Criminal Procedure
(Loose-leaf
annotated) 24-57 last paragraph.
[6]
Section 217(1)(b)(i) of the CPA.
[7]
Supra
fan (1).
[8]
Supra
paragraph
[1].
[9]
E.g.,
S v Machala
1967
(2) SA 401
(W) at 403B.
[10]
E.g.,
S v Leone
1965
(2) SA 837
(A) at 842C.
[11]
See
Lam Chi-Ming v R
[1991] 2 AC 212
(PC) at 220 {[1991]
3 All ER 172
at 178c-d/e};
S
v Khan
(308/96) [1997] ZASKAR 74, 18
September 1997 at p 26 of the pad version {[1997]
4 All SA 435
(A)}.
12
Supra
footnote 5.
13
At 24-60 –
last paragraph.
[14]
Accentuation added.
[15]
Section 219A of the CPA.
[16]
See
S
v Msweli
1980 (3) SA 1161
(D) at 1162E-F;
S
v Yende
1987 (3) SA 367
(A) at 372D, 374C-F, 375B-D;
S
v Eiseb
1991 (1) SACR 650
(Nm).
[17]
S v Leone supra loc cit
footnote
10.
[18]
Accentuation added.
[19]
[1996] ZACC 25
;
1996 (2) SACR 113
(CC) {1996 (4) SA 187 (CC)
[1996] ZACC 25
; ;
1996 (6) BCLR 788
(CC)} at paragraph
[13]
.
[20]
See
also
Ferreira
v Levin NO and Others
1996 (1) SA 984
(CC) at paragraphs [153], [186];
S
v Khan
(308/96)
[1997] ZASCA 74
, 18 September 1997, at p 16 of the pdf
version) {[1997]
4 All SA 435
(A)};
Director
of Public Prosecutions, Transvaal v Viljoen
2005
(1) SACR 505
(SCA) at paragraph [37]. Note that the
Viljoen
decision
overruled the earlier decision of the same case in the Transvaal
Provincial Division of the High Court in
S v
Viljoen
2003 (1) SACR 450
(T) [in which case it was
held that the court has no discretion but to exclude
unconstitutionally obtained confessions]. Therefore,
by implication,
S v Mkhize
2011(1)
SACR 554 (KZD), which relied heavily on
S v
Viljoen
has been wrongly decided for failing
to take cognizance of reigning precedent emanating from the SCA.
The recent SCA decision
in
Magwaza v S
(20169/2014)
[2015] ZASCA 36
(25 March 2015) available at
www.saflii.org.za
should
best be read against the background of
Key
and
Viljoen
as
decided in the same court and should not be seen as precedent that
all unconstitutionally obtained confessions must necessarily
be
excluded. The test remains whether the admission of the evidence of
a confession, albeit unconstitutionally obtained, would
render the
trial unfair or would otherwise be detrimental to the administration
of justice.
[21]
Ashworth ‘Corroboration and
Self-Corroboration’ in 1978
Justice
of the Peace
266 at 267.
[22]
See also Steph van der Merwe “Sexual
Offences, Corroboration, Self-corroboration and the Probative Value
of the Victim’s
Report” in 2014 Vol 1
Criminal
Law Review
at 7
et
seq
;
S v
Bergh
1976 (4) SA 857
(A) at 865-868.
[23]
According to the CAS no (22/11/2014) that the
accused gave during re-examination, the docket was opened in
November 2014, while
the confession that he made to the magistrate
was taken on the 4
th
of February 2014,
[24]
Although he said that he was assaulted by the
arresting police officers when he refused to go into the cells after
arrest, this
did not influence him in his decision to confess.
Furthermore, the only injury he had, namely a swollen knee, was
explained by
the accused as having been caused during an accident at
work and it also did not have any influence on his decision to
confess.