Nzama and Another v S (AR 480/2007) [2009] ZAKZPHC 39 (2 April 2009)

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[2009] ZAKZPHC 39
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Nzama and Another v S (AR 480/2007) [2009] ZAKZPHC 39 (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
NTOKOZOMCHUNU
Second
Appellant
and
THE
STATE
Respondent
Delivered:
April 2009
J
UDGMENT
WALLIS
J.
[1]
As explained in the judgment of my brother Kruger J 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 the confessions taken from the appellants by Captain Hodgett.
Here was one further submission addressed to us,
albeit somewhat
faintly, on behalf oJ'the second appellant in regard to the murder
charge but it was, in my view, witliotit substance
and 1 will deal
with it briefly at a iater stage in this judgment Apart from that
point it is plain that the convictions and
sentences of the
appellants must stand if tile confessions are admissible and equally
plain that their convictions and sentences
must be set aside if the
confessions are not admissible.
[2]
I
t
is appropriate at the outset to state three principles governing the
present enquiry that, although trite, are nevertheless
Fundamental.
T
he
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 havin
g
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. Ft will
be aware that the absence of other evidence implicating the accused
may tempt those investigating the crime
to establish a case
hjLprocuring 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. On all these issues there is no
difference of view between my approach and that of Kruger J.
[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 thai 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 grou
n
ds
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
extraneousjactprs 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
1
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 13hl0 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 Mhiongo, 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 !h_e lust 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 the 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. Tt 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 away.
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? — 1 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 underpressure?
MR
VENTER
Was placed underpressure?
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
througlioLit
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 hive been present in the room but not
in
earshot
as his desk was by
the
door.
The fact
iha
"t
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, It certainly does not justify a finding that
Inspector Mhlongo was "in and out" of the "hig
hall"
as suggested by my colleague. 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 sonic
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 die room.
[10]
This summary of the cross-examination on behalf of the second
appellant reveals tat 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 bis
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 lie 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
inevitably 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 die outset he put to
the Captain
that the first appe
l
lant
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 Caplain 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. No point
at all was made about the environment
in which the confession was
taken being threatening or intimidating or being such as to impose
upon him some feeling of obligation
to make a confession.
[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 h
ad
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 die 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. Tt 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 It also renders
irrelevant any knowledge
that Captain Hodgett had of the circumstances of the crime, whether
arising from his own involvement
or from the briefings or what had
been reported to him by his subordinates. Once it was not the case
that he had created the
statement from his own knowledge, or had
added to or subtracted from it in order to make it fit a "police
version",
the fact that he had such knowledge had no bearing on
the statement's contents. It can never have had any bearing on the
question
whether it was made freely and voluntarily and free from
undue influence.
[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 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 at
which the confessions were taken
and the lime 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 informafori.
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
he
first
appellant, and seized certain goods. Thereafter all four suspects
were taken
hick
to
the Cato Manor police cells and detained.
[17]
One part of Inspector Mhlongo's evidence must be contrasted with
the evidence&f the second appellant, He testified
that he was
arrested in the early hours of
h&
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, after which he
took the police to Clermont and pointed out the places
where Ihcy
could find 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 all three 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 bth 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 CaplaiJi Hodgett when
the first appellant's statement was being
taken. It was put to him
Iheit 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
on the second appellant 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 the2
5
November,
when Inspector Mhlongo booked him out of the police cells. His
allegation was that thereafter until he made his statement
he was
beaten, slappedort the face and kicked on the stomach. All of these
allegations were put to and 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 "fonder 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
as
they
emerged from
the
cross-examination
was the following. The first appellant maintained that from the
time
of
his
arre
st
he was
assaulted
by the
police
and
he
identified I
nspector
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
in
consequence
of the assaults perpetrated upon him he merely repeated what he had
been
told
.
The second appellants 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
immediately afterhis arrest and then taken to the Cato Manor police
station where he was again assaulied for nearly
an hour. In addition
he further claimed that
on
the
Friday morning aftex 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
toe 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 kd
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. It is with respect
unclear to
me whether my brother takes a different view of the credibility of
the appella
n
ts
in paragraphs 11 to 18 of his judgment but if he does then I am with
respect unable to concur with that view,
[27]
The argument before us proceeded on the basis that,
notwithstanding the effective rebuttaJ 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, Hie
undesirability of taking a statement in the
presence of the
investigating office*, 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
.
It
is also so that if the accused simply testified that the environment
in which he found himself was so hostile and threatening
that he
felt obliged to confess, even though he did not want to, this would
serve to plant and nurture the seed of suspicion.
[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 us to whether the confession was made freely and
voluntarily and without imptoper 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
arid
S
v Mdluli & Others
6
,
However,
a suggestion that because a confession is taken b
y
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 ail 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 to remove that right, under the guise of
assessing whether the confessions so taken have been
freely and
voluntarily made without undue influence being exerted on the
accused. 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
(I), ie freely and
voluntarily and without undue influence.
[31All
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 whicbthe confession was taken or a pointing out
occurred displayed one or more of theundesirable 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 inrnlied
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
ttejai 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 Iwe so ugh I to save his own skin by making a
full breast of
matters to the police.
Secondl
y
some play was made in argument of the period of time on the morning
of Hie 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
appealing 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 membets 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 wolce. They went upstairs where the
other two members
of the gang viciously assaulted tfre deceased with a baseball bat
and a pool cue, There is no suggestion on
the part oittfe second
appellant that he did anything to prevent this assault or in any
vety 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
MARCH
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 (I) of the Crim inal Procedure Act 51 of 1977
2
Record
VoJ 3 p 217 lines 18-21
3
In
S v Dhlamini and Another,
1-971 (1) SA 807
(A) at 815 A-C.
4
1990
(2) SACR558 (A). See also S v MoFokeng and Another 1968 (4) SA 852
(W),
5
1968
(4) SA.8& (W) at 858 B.
6
1972
(2)
SA
839 (A) at 840 H-84 IB
7
S
v Mbele
1981
(2)
SA
738
(A)
at 743 C-G.
8
S
v Khoza en Andere 1984 (!) 57 (A) at 59 E-60A; S v Mbatha en Andcrc
1987 (2) SA 272
(A);
s
v
Mavela 1990 (I)
SACR
582
(A) at 589 f-590b
9
There
is indeed syoh an amendment to section 217 of the Criminal Procedure
Act enacted by Sectka I 1 of the Criminal Procedure
Amendment Act 3d
Of 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 68E-H
11
1994(1)
SACR 447 (A).