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[2009] ZAGPPHC 241
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S v Nyalunga (A 256/09) [2009] ZAGPPHC 241 (31 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
DATE:31/03/2009
CASE NO:A256/09
Magistrate’s Serial No: 86/08
Case No: A990/08
Supreme Court Ref No: 114
THE
STATE v MTHOKOZISI DONALD NYALUNGA
REVIEW JUDGMENT
DU
PLESSIS. J:
The
two accused in this automatic review case were convicted of
housebreaking with the intent to steal and theft. They were both
sentenced to a fine of R3000 or 12 months imprisonment. In addition
they were both declared unfit to possess a firearm.
The
state’s case against the two accused is, apart from
inadmissible hearsay, exclusively reliant upon confessions that the
accused respectively made to Captain Mbuyani of the SAPS. When they
respectively cross- examined him, each of the accused put it
to
Mbuyani that they had been assaulted in order to make the confession.
When the accused did so, the question whether the confessions
were
freely and voluntarily made, was put in issue.
Where
an accused contends that a confession was not made freely and
voluntarily, he is placing in issue the admissibility of the
confession as evidence. It is settled law that the issue of
admissibility of a confession is an issue distinct from the merit of
the case against the accused. Justice therefore requires that the
issue of admissibility be tried and resolved separately from
the
other issues. In our law that is done by way of a trial within a
trial. (See S v De Vries
1989 (1) SA 228
(A) at 233H to 234B) A court
that fails in such circumstances to conduct a trial within a trial
commits an irregularity. (S v Mdyogolo
2006 (1) SACR 257
(E) at 261g
to h and at 263c to g). It is an irregularity that ordinarily
constitutes an injustice and renders the trial unfair.
I
have pointed out that the state’s case against the accused is
completely reliant on the admissibility of the confessions.
Without
the confessions, there is no evidence that proves the case against
the accused. Had a trial within a trial been conducted,
the accused
might have been able to show that the confessions were inadmissible
without at the same time exposing themselves to
cross examination on
the merits of the case against them. The irregularity cannot be
condoned.
In
the result the following order is made:
1.
The convictions and sentences of both the accused are set aside.
2.
The orders declaring both the accused unfit to possess a firearm are
set aside.
B.R.
du Plessis
Judge
of the High Court
I
agree
E.
Jordaan
Judge
of the High Court