S v Nzama and Another (AR 480/2007) [2009] ZAKZPHC 14 (2 April 2009)

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[2009] ZAKZPHC 14
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S v Nzama and Another (AR 480/2007) [2009] ZAKZPHC 14 (2 April 2009)

CASE
NO. AR 480/2007
IN THE HIGH COURT OF SOUTH
AFRICA
THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
In the matter between
NJABULO MATHEWS PHILANI
NZAMA
First Appellant
NTOKOZO MCHUNU
Second
Appellant
and
THE STATE
Respondent
Delivered : 2 April 2009
J U D G M E N T
WALLIS J.
[1] The outcome of these appeals
against the conviction of the two appellants on charges of
housebreaking with intent to rob and
robbery with aggravating
circumstances and murder depend upon the admissibility of confessions
taken from the appellants by Captain
Hodgett. There was one further
submission addressed to us, albeit somewhat faintly, on behalf of the
second appellant in regard
to the murder charge but it was, in my
view, without substance and I will deal with it briefly at a later
stage in this judgment.
Apart from that point it is plain that the
convictions and sentences of the appellants must stand if the
confessions are admissible
and equally plain that their convictions
and sentences must be set aside if the confessions are not
admissible.
[2] It is appropriate at the
outset to state three principles governing the present enquiry that,
although trite, are nevertheless
fundamental. The first is that the
onus rests upon the prosecution to prove beyond reasonable doubt that
the confessions were
made freely and voluntarily by the appellants
whilst in their sound and sober senses and without having been unduly
influenced
thereto.
1
Secondly in considering whether the prosecution has discharged the
onus of proof resting upon it the court has regard to all the

evidence led before, that is, not only the evidence of the persons
concerned in the taking of the confessions, but also the evidence
of
the circumstances in which the confessions were taken and such
evidence as may be advanced by or on behalf of the accused.
It will
be aware that the absence of other evidence implicating the accused
may tempt those investigating the crime to establish
a case by
procuring a confession and this can lead to the adoption of improper
means. Thirdly the mere fact that an accused’s
evidence during the
course of a trial within a trial concerning the admissibility of a
confession is rejected does not mean that
the prosecution has
necessarily discharged the onus resting upon it, although its task
may be substantially enhanced thereby.
[3] Whilst the onus of proving
the admissibility of a confession rests upon the prosecution that
onus ordinarily falls to be discharged
in the context of specific
challenges by the accused directed at whether the confession was made
freely and voluntarily and without
the accused having been unduly
influenced thereto. This is not to say that any evidential burden
rests upon the accused. It is
perfectly proper in the conduct of the
accused’s defence for the accused to confine him or herself to an
investigation and analysis
of the circumstances in which the
confession was taken and a close scrutiny of the evidence of the
relevant police officers on
the basis that a submission will be made
that the prosecution has failed to discharge the onus of proving that
the confession was
given freely and voluntarily and without undue
influence being exerted. However, that is not an easy course to
adopt and the usual
experience where the admissibility of a
confession is challenged is that the accused person advances specific
grounds for their
challenge. When that appears the trial within a
trial necessarily tends to revolve around the grounds so advanced.
[4] The fact that the trial court
may reject the evidence of the accused in a trial within a trial and
hold that the allegations
made by the accused in challenging the
confession are false, does not relieve the court of the burden of
determining whether the
confession was freely and voluntarily made
without undue influence being exerted on the accused. However, where
the accused has
made specific allegations in challenging the
confession but not advanced others this must have an impact on the
judicial decision-making
process. If the accused has given evidence
and levelled certain charges of misconduct against the police but not
claimed that
other actions by the police or the circumstances in
which they found themselves had any influence or bearing on the
making of the
confession, it would be an extremely unusual situation
for the court nonetheless to determine that the confession was
inadmissible
because of the matters not relied on by the accused. It
is extremely difficult to conceive of a situation where that would be
the case and ordinarily for that to happen one would expect there to
be some extraneous factors indisputable on their face that
left the
court with reservations about the voluntariness of the confession or
the presence of undue influence, notwithstanding
that the accused had
placed no reliance thereon. Such cases must necessarily be rare. It
is not for the court to speculate as
to possible external influences
operating on the mind of the accused or even to rely on its own
experience, whether within or outside
the courtroom, when this has no
foundation in the evidence as this removes the court from its proper
role of deciding cases on
the basis of the evidence actually placed
before it.
[5] Against that background I
turn to deal with the evidence in the present case. Both confessions
were taken before Captain Hodgett
of the Serious and Violent Crimes
Unit in Cato Manor, a police officer of twenty years’ experience
during which he had held the
rank of captain for thirteen years.
Both confessions were taken on 25 November 2005 in the offices of the
Serious and Violent
Crimes Unit situated behind the Cato Manor Police
Station. That of the second appellant was completed at 13h10 on that
day. Immediately
after Captain Hodgett had taken the second
appellant’s confession he proceeded to record the confession of the
first appellant.
That task was completed at 14h04. According to
Captain Hodgett, both accused were brought to him by the
investigating officer,
Detective Inspector Mhlongo, for the purpose
of having a statement taken. Detective Inspector Ngcongo, also a
member of the Serious
and Violent Crimes Unit, acted as interpreter
in respect of the second appellant whilst Detective Inspector Shandu,
from the same
unit, acted as interpreter in respect of the first
appellant.
[6] Counsel for the second
appellant was the first to cross-examine Captain Hodgett. He
explored with him the circumstances in
which the confession was taken
and physical surroundings of the room where it was taken. He
established that Captain Hodgett was
one of the most senior members
of the Serious and Violent Crimes Unit and that he oversaw the
dockets handled by Inspector Mhlongo,
the investigating officer.
This was one of between 500 and 1000 dockets for which he had
ultimate responsibility at the time.
The confession was taken at
Captain Hodgett’s desk, which is situated in a large hall-like room
containing a number of desks
where the various members of the unit
work. Captain Hodgett accepted that there are daily briefings for
the unit and that it would
have been reported to him that an arrest
had been effected in this case. He had already volunteered in his
evidence-in-chief that
he could possibly have been present during the
arrest. In addition he accepted that he would have known the details
of the murder,
although the precise extent of his knowledge was not
explored with him. It was however established that he might have gone
to the
scene of the crime after it was committed in August 2005.
[7] A portion of the evidence of
Captain Hodgett on which considerable attention was focussed related
to the possible presence of
other policemen and in particular the
investigating officer, Inspector Mhlongo, whilst the statement by the
second appellant was
being taken. It is appropriate therefore to set
out the passage from the evidence in full. It reads as follows:
“The accused is taken to your
desk? --- That is correct, M’Lord.
Where you sit and write? ---
That is correct.
And obviously the interpreter is
present? --- Yes, M’Lord.
And in this office obviously
there are various other policemen that sit around? --- That is
correct.
And Mr Mhlongo is there within
earshot? --- In and out, M’Lord, yes – or not in earshot, he
would have been at least –
his desk is by the front door, so it’s
quite a way.
MAHARAJ
AJ
There’s no
partitions? --- Yes, we’re in one big hall, M’Lord.
MR
VENTER
Sorry? ---
We’re in a big hall.
Yes, yes. It’s about half the
size of the courtroom, I’d say, maybe bigger? --- A little bit
longer, yes, M’Lord.
In any event, when I speak, as
I’m speaking now, this whole [inaudible – interference] ---
That is correct, M’Lord.[
But most certainly, when the
accused made statements, Mr Mhlongo was present? --- I cannot
confirm that, M’Lord, he could have
been outside. Sometimes it’s
– the office is open, people walk in and out the whole time.
Would you agree with me if –
I’m not saying it did happen, I’m just putting it as an if at
this stage --- Yes, M’Lord?
If the accused were placed under
pressure by Mhlongo to make statements … [intervention]
MAHARAJ
AJ Were placed under
pressure?
MR
VENTER
Was placed
under pressure?
MR
VENTER
By Mr Mhlongo
to make statements … [intervention]
MAHARAJ
AJ
By the
investigating officer?
MR
VENTER
The
investigating officer to make statements.
MAHARAJ
AJ
Yes.
MR
VENTER
His presence
would have (been) daunting, not so? --- I suppose so, yes, M’Lord.”
[8] Both Counsel who appeared
before us on behalf of the appellants urged on the basis of this
passage in the evidence that the
investigating officer was present
throughout the taking of the two confessions and that, apart from
Captain Hodgett and the two
interpreters, other policemen from the
Serious and Violent Crimes Unit were present working in the room and
coming and going about
their ordinary activities. In my view this
passage does not go far enough to support either of those
conclusions. In regard to
the presence of Inspector Mhlongo Captain
Hodgett’s statement goes no further than saying it was possible
that Inspector Mhlongo
might at some stage have been present in the
room but in earshot as his desk was by the door. The fact that
Captain Hodgett admitted
of that possibility, whilst making it clear
that Inspector Mhlongo was nowhere near his desk where he was taking
the confessions,
is insufficient to form the basis for a positive
finding as to the situation particularly in the face of the emphatic
denials by
both Inspector Mhlongo and the two interpreters that he
was at any stage present during the taking of the confessions. As
regards
the other point the question was phrased in general terms
concerning the layout of the room and was never pursued on the basis
that other policemen were in fact present whilst the confessions were
taken, although it was accepted that there could have been
some
coming and going..
[9] Counsel acting for the second
appellant suggested to Captain Hodgett that it was improper for him
to have taken the statement
as he was a captain in the same Unit and
from the very same office as the investigating officer and had prior
knowledge of the
case and had been involved in the arrest of his
client. Captain Hodgett’s response was to say that it was not
advisable but
that there was no reason for him not to take a warning
statement from the accused. He had not participated in the
interrogation
of the second appellant. It was then put to him that
the first appellant was sitting some four to five metres away in the
same
room whilst he took the second appellant’s statement and he
accepted that this was possible but that he would have been somewhat

further away than four to five metres. He did not accept that
anything said at his table would have been audible in view of the

noise levels in the room.
[10] This summary of the
cross-examination on behalf of the second appellant reveals that it
was directed entirely to the environment
in which the second
appellant found himself when making the statement to Captain Hodgett.
What is significant, however, in my
view is that it was never
suggested to Captain Hodgett that the second appellant had been
intimidated by this environment or induced
by his surroundings to
make his statement. Notwithstanding the detail in which the
environment was explored counsel did not suggest
that it had
influenced his client to make the statement. Instead he put his
client’s case in clear and express terms in the
following passage
from his cross-examination :
“And accused No.2 informs me
that when he was brought to you, he was made to put his thumbprint on
a typed page and there was
no writing on it when he put his
thumbprint on it. ---- M’Lord that is incorrect.”
[11] The picture that emerges
from this cross-examination is that the basis upon which the second
appellant intended to challenge
the admissibility of the confession
was that he had been brought by the investigating officer into a
situation where he was surrounded
by policemen from the Serious and
Violent Crimes Unit including the investigating officer’s superior,
Captain Hodgett, and required
to place his thumbprint on a blank
document. The necessary inferences from this were that Captain
Hodgett was lying when he said
that he had taken the statement from
the second appellant and that he and Inspector Mhlongo had conspired
to place the second appellant
in a situation where he could be
induced to put his thumbprint on a document even though nothing was
written on it. A further
necessary implication was that the entire
confession must then have been written up afterwards by Captain
Hodgett with the benefit
of the knowledge that he already had of the
circumstances of this particular crime and possibly the assistance of
Inspector Mhlongo.
This proposition was not put expressly to him by
counsel but it necessarily flowed from the suggestion that the
document to which
the second appellant’s fingerprints had been
affixed was blank at the time.
[12] The cross-examination of
Captain Hodgett by Mr Magigaba proceeded on a different footing.
Right from the outset he put to
the Captain that the first appellant
would tell the court that he was assaulted and threatened prior to
making the statement that
was made to Captain Hodgett. It was also
put that he would say that the investigating officer, Inspector
Mhlongo and other policemen
were responsible for perpetrating this
assault and that Captain Hodgett had seen it occur. Furthermore it
was put to Captain Hodgett
that whilst he was taking the statement
from the first appellant the latter was taken out of the office by
Inspector Mhlongo and
further assaulted, after which he was returned
to the Captain for the purpose of completing his statement.
[13] Inspector Ngcongo gave
evidence about his acting as an interpreter between Captain Hodgett
and the second appellant. He insisted
that no one else was in the
room at the time. It was put to him by counsel for the second
appellant that he had been present when
his client he was arrested
but he denied that. He also denied that he had assaulted the second
appellant before the latter made
his statement. There are two
significant aspects of this cross-examination . Firstly it was not
put to Inspector Ngcongo that
the second appellant had simply affixed
his thumbprint to a document that was otherwise blank. Secondly
counsel expressly put
to Inspector Ngcongo that none of the
preliminary questions reflected on the form embodying the statement
had been put to the second
appellant and all that happened was that
when he arrived there and sat with Captain Hodgett “he was just
told to tell his story”.
It was suggested that the only thing that
was correct on the form in regard to any of the formalities was the
statement :
“Has this statement been read
back to the suspect by an interpreter?”
and the affirmative answer. In
other words it was suggested to the inspector that he had in fact
read the statement back to the
second appellant.
[14] This question is extremely
significant. It involves an acceptance by the second appellant that
he had in fact told a story
to Captain Hodgett and that this had been
recorded at the time. In other words the proposition that he had
affixed his thumbprint
to a blank form and by implication that the
statement was the product of Captain Hodgett’s knowledge of the
crime, whether or
not supplemented by Inspector Mhlongo, necessarily
fell away. That is confirmed by the fact that it was expressly put
to Inspector
Ngcongo that the only truthful statement in the
questions and answers dealing with the formalities surrounding the
taking of the
confession was the statement that after the confession
had been recorded it was read back to the second appellant by
Inspector
Ngcongo. It was not suggested that the statement actually
made had not been properly recorded or that it either included
material
not provided by the second appellant or omitted material
that he had volunteered. This may have been consistent with the
subsequent
evidence of the second appellant that he simply recited
what he had been told to say by Inspector Mhlongo but it is
destructive
of the version put to Captain Hodgett and reflects ill on
the second appellant’s credibility.
[15] Inspector Shandu was only
briefly cross-examined on behalf of the first appellant. Consistent
with the latter’s contention
that he had been assaulted the
inspector was asked whether he could comment on that allegation and
he simply said that if it happened
it did not happen in front of him.
It was then put to him that the first appellant would say that
during the course of the interview
with Captain Hodgett he had been
taken outside and assaulted and this was denied. On behalf of the
second appellant it was put
that he had been present during the
latter’s arrest but he had denied that. Two other items of
information that are relevant
emerge from his evidence. The first is
that the two appellants and two others arrested on the same night had
been detained by
him as suspects at 5.40am on Thursday 24 November
2005. The other is that all four suspects were booked out by
Inspector Mhlongo
at 7.40am on Friday 25 November 2005 and the two
detainees other than the appellants were returned to detention at
11.30am. This
timing is consistent with the evidence of Captain
Hodgett and the interpreters as to the time taken to record the
confessions by
the two appellants.
[16] Inspector Mhlongo, the
investigating officer, testified that he had received certain
information from Captain Lockem of the
Tracing Unit which gave an
address for a suspect and apparently his name. In consequence of
that information he and a team of
officers, including Captain Lockem,
proceeded to a house in Ntuzuma where he said the second appellant
lived. Inspector Mhlongo
and Captain Lockem entered the yard of the
premises, knocked on the door and woke the second appellant’s older
brother, who took
them to a shack where the second appellant was
sleeping with a girl. He was then arrested and taken out to the
vehicle. As a
result of information furnished by the second
appellant the police then proceeded to Clermont to some shacks
situated on a steep
hill where they arrested three other people,
including the first appellant, and seized certain goods. Thereafter
all four suspects
were taken back to the Cato Manor police cells and
detained.
[17] One part of Inspector
Mhlongo’s evidence must be contrasted with the evidence of the
second appellant. He testified that
he was arrested in the early
hours of the morning and then assaulted at his place of residence by
a white police officer and that
as he was taken away from the
premises towards the motor vehicles he was slapped by Captain Lockem.
He says that Captain Hodgett
was present and intervened and that he
was then put into one of the police vehicles and taken to the Cato
Manor police station.
There he claims to have been assaulted for
some forty-five minutes to an hour by Inspector Mhlongo only after
which he took the
police to Clermont and pointed out three others,
being the other three who were arrested and detained that night.
This evidence
must be seen in the light of the evidence of the first
appellant who testified that he was arrested that night in the early
hours
of the morning. It was dark at the time but his mother had
already left for work.
[18] Bearing in mind that the
arrests took place on the morning of the 24 November 2005 only three
weeks prior to the longest day
of the year, when it gets light at
about 5.00am it seems likely that the first appellant was arrested
somewhere between 4.00 and
4.30am. That would be consistent with his
mother already having left for work and having to travel some
distance to reach her
place of employment. However, it posts a
question mark against the veracity of the second appellant’s
version for the simple
reason that there hardly seems to be
sufficient time for him to have been arrested at Ntuzuma; brought
from Ntuzuma, which is situated
to the north of Durban, to Cato
Manor on the south-western side of the city, a substantial distance
not easily traversed; assaulted
for forty-five minutes to an hour and
then taken to Clermont, which is situated to the north and west of
Pinetown, where he pointed
the places where the other suspects could
be found and they were arrested. These points are not joined by major
public roads and
for everything that the second appellant gave
evidence about to have occurred in the limited time available would
have been extremely
difficult.
[19] The cross-examination of
Inspector Mhlongo by Mr Magigaba was brief. He simply put to him
that he had assaulted the first
appellant from the time he was
arrested both at the police station and at the time when he was being
interviewed by Captain Hodgett.
Inspector Mhlongo denied having been
present in the room with Captain Hodgett when the first appellant’s
statement was being
taken. It was put to him that the first
appellant appeared frightened and he explained that this was due to
the attitude of the
other two suspects towards him and to the second
appellant. This had been sufficiently marked that they had had to be
separated
in the cells. Inspector Mhlongo explained that this was
because the first appellant wished to make a statement and did not
want
news of that fact to reach the other two suspects.
[20] I should mention at this
stage that the court adjourned whilst Mr Magigaba was still
cross-examining Inspector Mhlongo. However
the printed record
furnished to the court for the purposes of this appeal does not
contain any record of any further cross-examination
by Mr Magigaba
and the reconstruction of the record furnished to us for the purposes
of the appeal contains only some fairly terse
cross-examination by Mr
Venter on behalf of the second appellant and some questions by the
trial judge. This is not a satisfactory
state of affairs
particularly as we are not even informed of how long the missing
section of the record is. All that one can say
is that the typed
record resumes with the evidence of Captain Lockem which covers a
mere fifteen pages after which the court took
the long adjournment.
We can accordingly infer that the missing section of
cross-examination endured for at least an hour and
fifteen minutes
from the sitting of the court that morning until the short
adjournment and probably for some period after the short
adjournment.
The terse notes with which we have been furnished as constituting
the reconstruction of the record are clearly an
inadequate reflection
of the full cross-examination of Captain Mhlongo.
[21] Notwithstanding these
obvious deficiencies the brief reconstruction of the record was
accepted in the course of argument before
us and a careful perusal of
the judgment by the trial judge does not suggest that anything
emerged in the course of that cross-examination
that might be
material to the proper determination of this appeal. It appears,
although this does not emerge from the reconstruction,
that
allegations of assault were put to Inspector Mhlongo. The allegation
appears from the judgment on the admissibility of the
confessions
2
to have been that after he had been detained he was not further
assaulted until the morning of the 25 November, when Inspector

Mhlongo booked him out of the police cells. His allegation was that
thereafter until he made his statement he was beaten, slapped
on the
face and kicked on the stomach. All of these allegations were denied
by Inspector Mhlongo.
[22] Captain Lockem testified
that he was present when the appellants were arrested. He had
provided the information leading to
the arrest of the second
appellant and he accompanied a group of policemen who effected the
arrest. Captain Hodgett was the commander
of this group and a
Captain van Tonder was also present. Inspector Mhlongo, as the
investigating officer, was also part of the
group. It was put to him
that he had assaulted the second appellant by slapping him across the
face and he denied that. It was
also put to him that Inspector
Mhlongo and other policemen assaulted the second appellant in his
presence and he intervened to
stop them. He denied this.
[23] By the time the appellants
came to give evidence in the trial within a trial their respective
standpoints in regard to the
voluntariness of their confessions was
the following. The first appellant maintained that from the time of
his arrest he was assaulted
by the police and he identified Inspector
Mhlongo and Inspector Shandu as the perpetrators of the assaults. He
claimed that the
contents of his statement to Captain Hodgett had
been given to him by Inspector Mhlongo and that he merely repeated
that in consequence
of the assaults perpetrated upon him. The second
appellant’s case had already become somewhat protean. Initially
his counsel
had explored the environment in which the statement was
made and put it to Captain Hodgett that the second appellant had
simply
affixed his thumbprint to a blank document. The latter
contention had been abandoned by the time Inspector Ngcongo was
cross-examined
and it was specifically put to him that what he had
interpreted was the statement that the second appellant had made to
Captain
Hodgett and that he had read back this statement to the
second appellant. By the end of the prosecution case in the trial
within
a trial it was being suggested that he had been assaulted
after his arrest and taken to the Cato Manor police station where he
was again assaulted for nearly an hour. In addition he further
claimed that on the Friday morning after Inspector Mhlongo took
the
suspects from the police cells he was repeatedly assaulted until the
time came for him to make his statement.
[24] It is unnecessary to explore
in any detail the evidence of the first appellant at the trial within
a trial. It was riddled
with contradictions and rejected by the
trial judge. There was no attempt before us to suggest that he had
been a credible witness.
His version of his assaults after his
arrest was inconsistent with the evidence of his father. His claim
that during the course
of his giving his statement to Captain Hodgett
he had been taken out of the room and assaulted was clearly fanciful
as on his own
version such an assault was entirely unnecessary
because he was in the process of making a confession. The suggestion
that all
that he told Captain Hodgett was a story in which he had
been schooled by Inspector Mhlongo foundered on the fact that the
statement
contained information that could not on any conceivable
basis have emanated from Inspector Mhlongo. (This related to a prior
abortive
attempt to break into the deceased’s house, which no-one
suggested that Inspector Mhlongo could have been aware of.) His
evidence
was rightly rejected.
[25] The second appellant fared
no better. I have already mentioned the difficulty in fitting the
story of being assaulted by Inspector
Mhlongo at the Cato Manor
police station prior to his taking of the police to Clermont into the
time available between his arrest
and his detention in the police
cells. He embroidered his story about the assaults effected on him
by saying that Inspector Mhlongo
proffered as an inducement to his
confessing the proposition that the first appellant had already
implicated him in the commission
of the offence. He abandoned his
story that on the morning of 25 November he had been taken from the
cells and assaulted until
the time when he was taken to Captain
Hodgett to make his statement. Instead he claimed that he had only
been threatened. Although
he described the earlier alleged assault
by Inspector Mhlongo in graphic detail, including the statement that
the inspector pressed
his knee into his chest, none of this had
emerged in prior cross-examination. He alleged that Inspector
Mhlongo had pulled out
his firearm, cocked it and pointed it at him
but this also was a novel proposition. He claimed that he made this
statement in
an endeavour to prove his innocence and that Inspector
Mhlongo had promised to assist him if he said what he (Mhlongo) told
him
to say even though he had nothing to do with the crimes of which
he was being charged. Again the difficulty with this is that his

statement contained information regarding the prior attempt to break
into the deceased’s house of which Inspector Mhlongo would
have
been unaware.
[26] As with the first appellant
it is unnecessary to give further examples. The second appellant was
a totally unsatisfactory
witness and his evidence was rejected by the
trial court. There was no endeavour before us to resuscitate it.
[27] The argument before us
proceeded on the basis that notwithstanding the effective rebuttal of
the claims by the appellants to
have been assaulted and schooled by
Inspector Mhlongo in what to say their confessions should still not
be admitted because of
the environment in which they had been taken.
Reliance was placed on the fact that Inspector Mhlongo, the
investigating officer,
was Captain Hodgett’s subordinate and
ultimately Captain Hodgett oversaw his work. Reliance was also
placed on the fact that
the two interpreters were part of the same
unit. Particular play was made of the concessions made by Captain
Hodgett that it was
possible that there were other policemen in the
room at the time, including Inspector Mhlongo, and that the two
appellants might
have been in the room at the same time. On the
basis of this “environmental” evidence it was submitted that the
court could
not safely conclude beyond a reasonable doubt that the
confessions had been freely and voluntarily made and without any
inducement
being given to the appellants to confess. The contention
was that taking all of these factors cumulatively the environment
surrounding
the taking of the confessions was such that it must
inevitably have operated upon the minds of the accused as a threat or
inducement
to confess. Accordingly it was submitted that the
confessions should not have been admitted.
[28] Our courts have over many
years repeatedly drawn attention to the undesirability of having a
confession taken by a police officer
in the same unit as the
investigating officer. They have equally deprecated the use as
interpreters of officers in the same unit
as the investigating
officer and the person taking the confession. The undesirability of
taking a statement in the presence of
the investigating officer,
however, remote, and other policemen is manifest. The reason is, as
Jansen JA. pointed out,
3
that these factors provide fertile soil in which the accused can
plant a seed of suspicion against the conduct of the police and
the
propriety of their behaviour in obtaining the confession. Such an
environment can also, as the learned judge pointed out,
plant
suspicion in the mind of the accused that he or she is not free to
speak their mind and tell the person recording the confession
of
misconduct or inducements brought to bear upon them in order to
compel the confession.
[29] There is, however, an
important qualification that Jansen JA added, namely that it is
necessary for the accused to plant that
seed of suspicion in the mind
of the court. That can readily be done where the accused testifies
of assaults and threats and that
evidence could reasonably possibly
be true. In such a case, where there is potentially credible
evidence that prior to making
the confession the accused was
subjected to an improper inducement, the seed of suspicion is planted
in the fertile soil afforded
by the environment in which the
confession is taken and “readily sprouts and burgeons to the
stature of a reasonable doubt”.
An example of such a case is
provided by
S v
Mahlabane
4
.
[30] However, where the accused
fails to sow the seed of suspicion because his or her complaint is
about something else or where
their evidence of an improper prior
inducement is properly rejected as being wholly untruthful and
incapable of credence, I am
unaware of any case where these
undesirable environmental features have been held on their own to
constitute a sufficient basis
to give rise to a reasonable doubt as
to whether the confession was made freely and voluntarily and without
improper inducement.
The general nature of the problem was
identified in
S v
Mofokeng & Another
5
and endorsed by the
then Appellate Division in
Dhlamini’s
case
supra
and
S v Mdluli &
Others
6
.
However, a suggestion
that because a confession is taken by a police officer who was a
member of the same unit as the investigating
officer this constitutes
a
per se
irregularity
7
has been rejected in a number of cases.
8
In all of these cases it has been stressed that there is statutory
authority for certain police officers to take confessions and
it is
not open to the courts, under the guise of assessing whether the
confessions have been freely and voluntarily made without
undue
influence being exerted on the accused, to remove that right. It can
only be removed by way of a challenge to the constitutionality
of
this provision on the basis that it amounts to a denial of the
accused’s right to a fair criminal trial or by way of statutory

amendment.
9
I conceive that the legal position remains as set out in S
v Mazibuko
10
namely that:
In
S
v Mdluli and Others
1972 (2) SA 839
(A) HOLMES JA observed at 841 A - C:
"... that it is not a
question of impugning in any way the integrity of responsible police
officers in carrying out their
duties as justices of the peace. But
the practice may plant suspicion in the mind of an accused, with much
time spent judicially
in determining the issue of admissibility, as
in the present case, with several members of the police in attendance
as witnesses
for long periods. In our opinion it would be preferable
to enlist the services of an experienced magistrate; but, if this is
not
practicable in a given case, the justice of the peace should not
be a member of the police unit or station which is investigating
the
crime, particularly if his office is in the same premises".
The presence of this feature of
undesirability in a given case is of course not without legal
significance. It is a circumstance
to be considered in conjunction
with other relevant circumstances, if any, by a court of law in
making the ultimate decision whether
or not the State has proved
beyond a reasonable doubt that the confession in question was made in
conformity with s 244 (1), ie
freely and voluntarily and without
undue influence.
[31] All the cases to which I
have referred stress that the ultimate question is not whether the
environment in which the confession
was taken was undesirable but
whether the statement was freely and voluntarily made without the
accused having been unduly influenced
thereto. In all the cases I
have mentioned the circumstances in which the confession was taken or
a pointing out occurred displayed
one or more of the undesirable
features that exists in this case. Nonetheless in all of them save
those of
Mahlabane
and
Mofokeng,
the
confessions were admitted as having been freely and voluntarily made.
The same is true of the confession in the most recent
decision, that
of
S v Letha &
Another.
11
In a number of those
cases, as in this one, the court was faced with an accused who
contended that he had been assaulted and that
the assault was what
had caused him to confess. In each case once the allegation of
assault was rejected as being untruthful the
confession was admitted.
[32] In my view the present case
falls squarely within the principles set out in the authorities that
I have quoted. It was in
principle undesirable for the appellants to
be taken to Captain Hodgett for the purpose of having their
confessions recorded and
it was undesirable for Inspectors Ngcongo
and Shandu to act as interpreters. It is possible (although a
positive finding cannot
be made on the evidence), that the
circumstances in the room where the confessions were taken were not
ideal in that other policemen
were able to come in and out and
Inspector Mhlongo may on occasions have come in and out and gone to
his desk near the door. However,
neither appellant said that any of
these factors operated on their minds as an inducement to make a
confession or as an implied
threat detracting from the voluntariness
of their confessions. Instead both advanced claims of prior assault
or threats that were
clearly untenable. Both contended that they had
been schooled to say what they did and these contentions were rightly
rejected.
In those circumstances and consistent with the decisions
in those authorities I am unable to fault the decision by the trial
court
to admit the confessions on the basis that they were freely and
voluntarily made and that the appellants had not been induced to
make
these confessions.
[33] I would add only two points
to that conclusion. The first is that the evidence supports the
notion that the second appellant,
once arrested, was minded to give
as much assistance to the police as possible. That is consistent
with his conduct in taking
them to Clermont and identifying the
places where the other three suspects could be found. It is also
consistent with the terms
of his confession in which he says that he
did not himself perpetrate an assault on the deceased. He is a young
man with no prior
criminal record and I find nothing improbable in
the proposition that he might have sought to save his own skin by
making a full
breast of matters to the police. Secondly some play
was made in argument of the period of time on the morning of the 25
November
between 7.40 am, when Inspector Mhlongo requisitioned the
suspects from the police cells, until the confessions were taken.
However,
the other two suspects were returned to the police cells by
11.30 am and there was no evidence that they had been assaulted. The

period from 11.30 am until 14.04 pm when the first appellant finished
making his confession is consistent with the evidence as
to the time
taken to record the confessions and is consistent with the length of
those documents. Accordingly the unexplained
period is only four
hours. The reconstructed record shows that Inspector Mhlongo was
asked about this period and said, without
challenge, that he had
endeavoured to find a police officer other than Captain Hodgett to
take the confessions but had been unable
to do so and had also
endeavoured, with an equal lack of success, to make arrangements to
take the appellants to a magistrate for
that purpose. That evidence
was not challenged nor is there anything in the record to suggest
that it was even explored in any
detail to show that there were
substantial periods of time for which there was no explanation during
which the suspects were in
the custody of Inspector Mhlongo. In my
view there is nothing in the lapse of this period that supports the
notion that the confessions
should be excluded.
[34] As mentioned at the outset
there was an endeavour by counsel appearing for the second appellant
to suggest that on his own
version as embodied in his confession he
was not guilty of murder because he had not participated in the fatal
assault on the deceased
and there was no common purpose between him
and the other members of the gang. In my view there is no merit in
that submission.
His evidence is that the gang went to the
deceased’s home firmly intent on the criminal enterprise of
housebreaking or robbery.
They were aware because the television was
playing of the likelihood that someone was in the house. Two of them
went upstairs
to the loft where they found the deceased sleeping.
They informed the other two (including the second appellant) of this
fact
and according to the second appellant he and his partner in
crime, who were downstairs busy making preparations to steal things,

armed themselves with pool cues to defend themselves if the occupant
of the house woke. They went upstairs where the other two
members of
the gang viciously assaulted the deceased with a baseball bat and a
pool cue. There is no suggestion on the part of
the second appellant
that he did anything to prevent this assault or in any way
disassociated himself from it. On his own version
he intervened only
after a number of blows had been struck. I have no doubt that his
conviction on the charge of murder was proper.
[35] Although leave to appeal was
sought and granted in respect of sentence no submissions were
advanced before us that the sentences
were inappropriate. In the
circumstances I propose that the appeals of both appellants be
dismissed and that their convictions
and sentences be affirmed.
DATE OF HEARING 23 FEBRUARY
2009
DATE OF JUDGMENT 2 APRIL
2009
FIRST APPELLANT’S
COUNSEL MS Z ANASTASIOU
INSTRUCTED BY THE JUSTICE
CENTRE
SECOND APPELLANT’S
COUNSEL MR A KHAN
INSTRUCTED BY THE JUSTICE
CENTRE
COUNSEL FOR RESPONDENT MR
M.E. MTHEMBU
INSTRUCTED BY THE NATIONAL
DIRECTOR
OF PUBLIC PROSECUTIONS
1
See
s 217
(1) of the
Criminal Procedure Act 51 of 1977
2
Record Vol 3 p 217 lines 18-21
3
In S v Dhlamini and Another.
1971 (1) SA 807
(A) at 815 A-C.
4
1990 (2) SACR 558
(A). See also S v Mofokeng and Another
1968 (4)
SA 852
(W).
5
1968 (4) SA 852
(W) at 858 B.
6
1972 (2) SA 839
(A) at 840 H-841B.
7
S v Mbele
1981 (2) SA 738
(A) at 743 C-G.
8
S v Khoza en Andere 1984 (1) 57 (A) at 59 E-60A; S v Mbatha en
Andere
1987 (2) SA 272
(A); S v Mavela
1990 (1) SACR 582
(A) at 589
f-590b.
9
There is indeed such an amendment to
section 217
of the
Criminal
Procedure Act enacted
by Section 11 of the Criminal Procedure
Amendment Act 86 0f 1996, but it has not as yet been brought into
force, which suggests
that there are logistical problems in
implementing its provisions.
10
1978 (4) SA 563
(A) at 568E-H
11
1994 (1) SACR 447
(A).