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[2014] ZAGPPHC 422
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Mashengoane v S (A102/2013) [2014] ZAGPPHC 422; 2014 (2) SACR 623 (GP) (21 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE
NO: A102/2013
DATE
OF HEARING: 16 APRIL 2014
DATE:
21 MAY 2014
In
the matter between:
KHOMOTSO DONALD
MASHENGOANE
.................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
J U D G M E
N T
MAKHOBA
AJ:
1.
THE APPEAL
This appeal
raises the perennial legal question concerning the admissibility of a
statement made by the Appellant in terms of section
217 (1)(b) Act 51
of 1977.
The Appellant
was charged before Makhafola J in the North Gauteng Circuit Court,
sitting in Polokwane on charges of murder, attempted
murder, unlawful
possession of firearm, unlawful possession of ammunition and
malicious damage of property.
At the
beginning of the trial there were three accused persons including the
appellant. At the end of the state case all other accused
persons
were discharged in terms of section
174 Act 51
of 1977 except the
Appellant. The trial proceeded and Appellant was eventually convicted
and sentenced to an effective term of
twenty years imprisonment.
2.
GROUNDS OF APPEAL
The appeal is
based on the admissibility of the statement by the Appellant. The
essence of the attack on the admissibility of the
statement is that
it was not made freely and voluntarily due to the assault on
Appellant by the police officers who arrested him.
The second attack
is that Appellant informed the magistrate that he was threatened with
assault should he refuse to make the statement
before the magistrate.
The third attack is that the magistrate despite recording the
Appellant’s injuries on the statement
proceeded to take down
the statement.
In addressing
this court, counsel for the Appellant informed us that during the
trial in the court
a quo
he did bring to the attention of state counsel that the statement in
question was flawed, and he pointed out the discrepancies
in the
statement. However counsel for the state insisted to nevertheless
request the court
a quo
to admit the statement as evidence against the Appellant.
Counsel for
the state who argued the appeal before us conceded to us that the
statement was not properly handled by all parties
in the court
a
quo
and it was improperly admitted as
evidence.
3.
THE FACTS
The facts are
in brief as follows:
On the night of the 18
th
November 2005 whilst some members of the Moila family were preparing
to sleep the state alleges that Appellant and other people
with him
unexpectantly invaded the Moila’s premises, shouting and
swearing at the members of the Moila family who were inside
the
shack. The assailants demanded that the door to the shack be opened
by the occupants of the shack. No one in the shack responded.
Thereupon a hail of bullets was fired into the shack. The deceased in
this case and another person were struck by the bullets.
The deceased
died on the scene. The injured person was taken to hospital. The
Appellant and three other persons were arrested for
killing the
deceased and injuring another person as well as damaging the shack.
Appellant was
taken to the magistrate to make a statement (confession) which
statement is the subject of this appeal. During the
trial within a
trial the statement marked exhibit “F” (the confession)
was admitted by the court
a quo
as evidence against the Appellant. The Statement Exhibit “F”
read as follows on page 2 Paragraph 9(a): “
Have
you been threatened with assault or any other prejudice. Should you
inform me of assault or threats against you prior to you
being
brought here?”
Reply: “
Certain police
men said they were coming to spray me with a substance if I fail to
make a statement”.
Paragraph 10(a) on page 3 of
Exhibit “F” reads as follows:
10(a) “
Have you been
assaulted by the police or anyone else?” Reply: “I was
sprayed with a substance and kicked on my body
and private parts”
Paragraph
11(c)
Magistrate observations of the
accused injuries: “Scratch marks on both legs, chest and face.
There are also scratch marks
on the fingers”.
The
magistrate who took the statement and the Appellant did not testify
in the trial within a trial.
In the main
trial Appellant testified that he was assaulted and forced to make
the statement marked exhibit “F” (confession).
In his
evaluation of the evidence the learned judge rejected the Appellant’s
version as false and ruled that the statement
exhibit “F”
is an admission and not a confession. The learned judge convicted the
Appellant on all counts as charged.
There is no other evidence
implicating the Appellant except the statement in question.
4.
THE LAW
The crisp
issue in this appeal is whether the learned judge was correct in
admitting the statement by Appellant to the magistrate
despite the
magistrate being told by the Appellant that he was threatened to be
assaulted further should he refuse to make the
statement. Furthermore
notwithstanding the fact that the magistrate noted the injuries he
observed from the Appellant in the statement
he proceeded to take the
statement. Counsel for the Appellant submitted to us that the entire
statement should have been excluded
by the learned Judge. In the
result this would mean that the allegations against the Appellant are
not supported by any evidence.
It follows, so it was argued, that the
Appellant should have been acquitted on all counts.
Section 217
(1)(a) act 51 of 1977 reads as follows: “(1) Evidence of any
confession made by any person in relation to the
commission of any
offence shall if such confession is proved to have been freely and
voluntarily made by such a 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
offences”.
Section
219A
Act 51
of 1977 reads as follows: “Evidence of any admission
made extra-judicially by any person in relation to the
commission
of an offence shall, if such admission does not constitute
a confession of that offence and is proved to have been voluntarily
made by that person be admissible in evidence against him at criminal
proceedings relating to that offence: Provided that where
the
admission 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
admission shall, upon the mere production at the proceedings in
question of the document in which the admission
is contained (a) be
admissible in evidence against such person…”
Section 35(1)
of the constitution reads as follows: “everyone who is arrested
for allegedly committing an offence has the
right – (c) not to
be compelled to make any confession or admission that could be used
in evidence against that person.”
Section 35 (1)
of the Constitution provides as follows: “everyone who is
arrested for allegedly committing an offence has
the right - (j) not
to be compelled to give self-incriminating evidence.”
It is clear
therefore that the Constitution and the
Criminal Procedure Act 51 of
1977
guarantee the right to remain silent and not to be forced to
make a statement. It is immaterial whether the statement is a
confession
or admission. In S v Zuma and others
[1995] ZACC 1
;
1995 (4) BCLR 401
(CC) the Constitutional Court held that the common law rules with
respect to the burden of proving that a confession was made freely
and voluntarily were an integral and essential part of the right to
remain silent after arrest, the right not to be compelled to
make a
confession and the right not to be compellable witness against
oneself.
In S v Mangena
and another
2012 (2) SACR 170
(GSJ) at paragraph 48 Spilg J said the
following: “No statement by an accused may be used in evidence
against him unless
it is proved beyond reasonable doubt that it was
freely and voluntarily made”.
In Matlou and
another v
S 2011
(1) BCLR 54 (SCA) the court stated that if the
magistrate or person taking the statement from a suspect notice
injuries, the statement
should not be taken. In paragraph 20 Bosielo
JA says: “I find the learned Judge erred in accepting the
evidence of the pointing
out by the first Appellant, I agree with the
Appellant’s counsel that the fact that when the first Appellant
made a confession
to the magistrate on 26 March 2002 he still had
injuries which appeared to be fresh suggests strongly that the
assault meted out
to him must have been serious…. To my mind,
it makes perfect sense and accords with logic that the first
Appellant could
have been assaulted by the police before the pointing
out in order to coerce him to do so. Undoubtedly, such evidence would
have
been obtained in contravention of the first Appellant’s
rights ensconced in
section 35
(1)(a), (b) and (c) of the
constitution.”
In S v Lebone
1965 (2) SA 837
(A)
at 884 the court said: “freely and voluntarily” and
without “undue influence”, in relation to
section 217
were distinct, each of which had to be complied with as a
prerequisite to admissibility.”
In Chauke and
another v S
[2012] JOL 29536
(SCA) paragraph 21 the court said: “the
admissibility of a statement has to be carefully and consciously
considered and ruled
upon, particularly where the statements in
question are the only evidence upon which a conviction is sought to
be premised.”
It is therefore my view that the
learned Judge in the court
a quo
should have been extremely
careful in admitting the statement (Exhibit “F”)
particularly when it was clear to him that
this was the only evidence
incriminating the Appellant in this case. It is immaterial whether
the learned judge considered this
statement as a confession or an
admission. Moreover the magistrate did not testify in either the
trial within a trial or the main
trial. The statement in my view was
not proved to have been made freely and voluntarily.
Before
concluding, there is one more issue to address. As I have mentioned,
in the court
a quo
counsel for the State was constrained to concede at the outset to the
court
a quo
and Appellant’s counsel that there are serious shortcomings in
the statement. This was despite counsel for Appellant having
pointed
out this to the State Counsel. In S v Jija and other
1991 (2) SA 52
(E) at page68 Erasmus J said the following: “A prosecutor,
however, stands in a special relation to the court. His paramount
duty is not to procure a conviction but to assist the court in
ascertaining the truth”.
In Chauke and
another v S supra at paragraph 26 the court said the following:
“Accordingly it goes without saying that when
it is manifest
that a conviction cannot be sustained on appeal it is expected of
counsel for the state not to defend what is by
all account
indefensible”.
It was
therefore incumbent upon counsel for the State in the court
a
quo
to immediately draw the learned
judge’s attention to the shortcomings in the statement in
question. It is also incumbent
upon the magistrate not to readily
take a statement where the suspect has injuries and complain about
threats of further assaults
if the statement is not taken.
5.
CONCLUSION
In this matter
before us it is clear that the learned Judge failed to carefully and
consciously consider and rule properly upon
the statement made by the
Appellant to the magistrate (Exhibit “F”) particularly
when the magistrate did not testify
in the trial within a trial.
Furthermore the Appellant informed the magistrate that he was
threatened with further assault should
he not make the statement to
the magistrate but the magistrate proceeded to take the statement.
It is
unfortunate that the learned Judge never considered the statement
properly and erred in not considering the applicability
of
section
35(1)
read with section 35 (5) of the Constitution and their impact
on the admissibility of the impugned evidence.
There is no
suggestion that the statement would have been made without the
assault and threats of assault. I am of the view that
the statement
was irredeemably tainted by the assault, threats of further assaults,
injuries and scratch marks on the body of the
applicant.
I have no
doubt that admitting such evidence would not only render the trial
unfair but would also, as Cachallia JA quoted Lord
Hoffman’s
remarks in S v Mthembu
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA) at paragraph 36: “…it
is tantamount to involving the judicial process in moral defilement’.
This would
compromise the integrity of the judicial process and
dishonour the administration of justice.
I therefore
conclude that the statement (exhibit “F”) should not have
been admitted by the learned Judge as it is inadmissible.
The state
failed to prove beyond reasonable doubt the elements of the offences
against the Appellant.
1.
ORDER
In the result the following order
is proposed:
1)
The
appeal against the convictions on all counts is upheld
2)
The
sentences are set aside
________________________________
MAKHOBA AJ
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, GAUTENG DIVISION, PRETORIA
I agree
________________________________
RAULINGA J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
________________________________
KOLLAPEN J
JUDGE
OF THE HIGH
COURT
OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
Representation
for the Applicant
:
Counsel:
Mr Mogashoa
Instructed
by: Legal Aid South Africa, Polokwane
Representation
for respondent
Counsel:
Adv: Ngcobo
Instructed
by: National Director of Public Prosecution