S v Maasdorp (CA&R 83/07) [2008] ZANCHC 21; 2008 (2) SACR 296 (NC) (4 April 2008)

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[2008] ZANCHC 21
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S v Maasdorp (CA&R 83/07) [2008] ZANCHC 21; 2008 (2) SACR 296 (NC) (4 April 2008)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA&R 83
/07
Heard:
17/03/2008
Delivered:
04/04/2008
In
the matter:
HERMANUS
MAASDORP Applicant
and
THE
STATE
Respondents
Coram: Bosielo AJP
et
Mokgohloa AJ
JUDGMENT ON APPEAL
BOSIELO
AJP
INTRODUCTION
In
S
v Meyer
1972(3)
SA 480 (AD)
at p481F
Kotze JA remarked aptly that :
“
Die
vraag wat in hierdie appél ter beslissing val, is of die
streeklanddros wat die verhoor waargeneem het dermate onreëlmatig
opgetree
het dat die fundamentele voorvereiste van `n billike verhoor
van die appellant in gevaar gestel is – S v Alexander and Others
(1),
1965 (2) SA 796
(A.D) op bl. 809D. Hierdie vraag moet teen die
geheel agtergrond van ide saak beoordeel word – R v Baartman and
Others,
1960 (3) SA 535
(A.D) op bl. 541G. n` Uiteensetting van die
volle agtergrond volg.”
The relevance of this dictum will
become clearer when I deal with the merits of this appeal,
particularly in respect of the appellant.
This appeal is a sequel to a trial
which took place in the Regional Court, Upington where the appellant
stood trial together with
two former co-accused on a charge of
robbery with aggravating circumstances as defined in section 1(1) of
the Criminal Procedure
Act 51 of 1977 (CPA). At the end of a very
long and protracted trial spanning over thirty-two months and
producing 756 pages of
the record, the former accused 1 was
acquitted whilst the appellant together with the former accused 2
were convicted. They were
both sentenced to imprisonment for twelve
years each.
The appellant is now appealing
against both his conviction and sentence with the leave of the court
a quo
.
The appellant filed a detailed and comprehensive application for
leave to appeal wherein he clearly and meticulously set out
various
grounds on which the judgment of the trial court is being impugned.
I will deal with the various grounds of appeal when
I deal with the
merits hereunder.
I interpose to state that although
the former accused 2 had lodged his application for leave to appeal,
he never pursued it any
further. Notwithstanding this, we decided,
given the peculiar circumstances of this case, to invoke our
inherent power of review
to deal with the case of the former accused
2 as we were satisfied that our failure to do so would result in a
serious travesty
of justice.
Although the state called ten(10)
witnesses to testify in this matter, the facts in issue are fairly
simple and fall within a very
narrow compass. The witnesses who
testified for the state can be classified under four(4) categories
viz. the victim/complainant
and owner of the business; the police
officers who effected the arrest and police investigations; the
magistrates and other police
officers who testified in respect of
the alleged confession by accused 2 as well as one Mr Michael Selao
who testified in terms
of section 204 of the
CPA
.
Given
the nature of the evidence which was adduced at the trial, it will
not be helpful to give a detailed account of the evidence
of each
witness who testified. I therefore decided to give the general
tenor of the whole evidence, with special emphasis on the
salient
features thereof. What emerges clearly from the evidence is that a
vehicle belonging to one Mr Strydom was driven by his
driver, Mr van
Rensburg on the night of 12 December 2002. This vehicle together
with its trailer and mobile refrigerator had the
name GATTI clearly
emblazoned on the sides. Van Rensburg’s task was to deliver
ice-cream to Strydom’s various customers from
which he would also
collect the money. It appears from the evidence that a group of
some criminals got information about Van Rensburg’s
business
itinerary. They then decided to way-lay him on 12 December 2002 as
he returned from his rounds and to rob him of the
loot. It is
common cause that as he was approaching Upington from Keimoes, he
drove over what the thought was a rope (`n tou’).
However, soon
after driving over “die tou” he felt that he had a puncture on
one of his rear wheels. He duly stopped his
vehicle to investigate
what was happening. It was at approximately 21h00 and it was dark
with no lights nearby. All of a sudden,
whilst he was trying to
replace his left rear-wheel which was punctured, he was surrounded
by some men (approximately 4 – 6)
who started to assault him
severely. As a result, he fell to the ground and could not stand.
However, as fate would have it,
before he was attacked he had
managed to report to his boss, Strydom that he had a puncture but
quite importantly that he was surrounded
by some strange men.
Sensing some imminent danger,
Strydom responded quickly by telephoning the police, his wife and
one of his acquaintances in Upington
to alert them. In the mean
time he drove to the scene. Upon his arrival, he found Van Rensburg
who was badly beaten together
with some police officers. He then
took Van Rensburg to the hospital in his own vehicle. I find it
necessary to state that neither
Van Rensburg nor Strydom implicated
the appellant and his co-accused in the commission of the robbery.
Inspector Van Heerden is the first
police officer who arrived at the scene that night. Suffice to
state that he could not identify
any of the accused including the
appellant as the robbers. When he arrived at the scene, he found no
exhibits which could assist
him in the investigation of this matter.
Captain Maree is the person who received information from a police
informer which led
to the arrest of the three accused. In the
course of his investigations, he obtained a search warrant which he
used to search
the appellant’s premises. Inside the appellant’s
shack, he found a number of items including some old number plates,
items
of clothing, colloquially called a 2-piece; a crate which
contained a big chain and some sharp-pointed pieces of iron, all of
which
he impounded. It is clear from Maree’s evidence that at the
time when they discovered these items, the appellant had not been
advised of his rights in terms of section 35(1) of the Constitution.
According to Maree, the appellant told him in the course
of his
interrogation, that the chain was his and that he intended to use it
for his fence. I deem it necessary to state that according
to Maree
it was only after their arrival at the police station, that he
advised the appellant of his rights in terms of Section
35(1) of the
Constitution, whereupon the appellant refused to make any statements
until he had been allowed to see his legal representative.
It
emerged from Maree’s evidence that the person who implicated
appellant and the other accused is Michael Selao, who was later
made
a state witness in terms of section 204 of the CPA. It also emerged
from Maree’s evidence that, in addition to appellant
and his two
co-accused, Selao had also incriminated other people including one
Eric Andries, alias Hora, who was also arrested.
Suffice it to
state that charges were later withdrawn against the said Andries.
Of great significance, Maree conceded in cross-examination
that he
does not know how the chain together with pieces of steel-iron with
sharp points came to the appellant’s premises.
The next crucial witness for the
state against appellant was Micheal Selao. This witness was warned
in terms of section 204 of
the CPA. Selao sought to implicate the
appellant, accused 1 and 2 in the commission of this robbery. It is
important to recall
that Selao had also implicated one Andries
(Hola) in the commission of this robbery. It is noteworthy that
charges against Andries
were withdrawn whilst accused 1 was
acquitted due to lack of evidence. This was after the regional
magistrate found Selao unsatisfactory
and unreliable as a witness.
Suffice to state that Selao expressly conceded, on at least two
occasions, that he had embellished
his evidence to fit into the
state’s case. It is clear from his evidence that Selao was not
fair, candid and frank in his testimony.
Of importance, he also
conceded that he tried to minimize the role that he played in the
alleged robbery. Even the trial court
was very critical of Selao as
a witness. The trial court had the following to say about Selao at
p736 of the judgment:
“
Mnr
Selao is `n perd, by wyse van spreke, van `n ander kleur. Hy is `n
medepligtige. Hy `n sogenaamde Artikel 204 getuie. Daar
is baie
rede tot kommer om sy getuienis net so te probeer aanva
ar…
Die Hof is alleen bereid om op sy getuienis `n skuldbevinding uit te
bring, waar daar stawing is, waar daar onderskragings is
vir sy
getuienis. Met ander woorde, waar hy `n enkele getuie is en dit gaan
hier pertinent oor die identiteit van die drie persone
wat
by
die voorval betrokke was, is die Hof hoegenaamd nie bereid om sy
ondergeskraagde getuienis te aanvaar nie.
Hy
weet baie meer van hierdie hele voorvalle as wat hy te kenne gee
.
Hy is nie heeltemaal eerlik met die Hof nie
…”
(My own underlining).
Whilst testifying in his defence,
the appellant denied any complicity in the robbery which took place
on 12 December 2002. Concerning
the chain that was impounded from
his shack, by Maree, he explained that it was brought to him by
Selao in a crate. This was at
the time when Selao was returning
Andries’ (Hola) vehicle which he had borrowed from the appellant.
As Selao was going away
on foot, he requested appellant to keep the
crate for him. According to the appellant he did not know what was
contained in the
crate. He pertinently denied that he told Maree
that the chain was his and that he had intended to use it for his
fence.
In evaluating the evidence the
trial court found that, although Selao proved to be selective,
evasive and dishonest with the court
whilst testifying as a section
204 witness, his evidence was amply corroborated by the chain which
was found at the appellant’s
premises, to the extent that this
constituted proof beyond reasonable doubt of the appellant’s
involvement in the robbery which
took place on 12 December 2002.
Based on the above, the trial court found that the guilt of the
appellant had been proved beyond
reasonable doubt. Furthermore the
trial court was critical and in fact drew an adverse inference
against the appellant for having
failed to explain his possession of
the chain to Maree at the time when Maree interrogated him after he
had explained his rights
in terms of section 35(1) of the
Constitution.
In the Notice of Appeal filed on
behalf of the appellant, the argument was clearly foreshadowed that
the trial court erred by attaching
any weight to Selao’s evidence
and further by actively insisting,
mero
motu
, that the chain
that was found at appellant’s home be introduced as an exhibit.
Furthermore it was contended that the trial
court erred by finding
that Van Rensburg positively identified that chain as the chain over
which he drove the GATTI vehicle, when
it was abundantly clear that
he did not see it and was therefore unable to positively identify
it. Lastly, it was submitted that
the trial court erred by drawing
an adverse inference against the appellant for refusing to explain
where he got the chain from,
particularly as he had been advised by
Maree in terms of section 35(1) of the Constitution.
I find it necessary and expedient
to state that Mr Mashuga, appearing for the respondent, had no
answer to offer against the trenchant
criticism unleashed against
the trial court’s judgment. In fact, Mr Mashuga condeded that
Selao, proved himself not to be an
honest, reliable and credible
witness and that he did not satisfy the threshold test laid down in
section 204 of CPA. Concerning
the chain, he conceded, based on a
number of extracts from the record that the trial court in fact put
words in Van Resnburg’s
mouth to agree that the chain, which the
magistrate introduced as an exhibit himself
mero
motu
, is the actual
chain which caused a puncture to his vehicle.
Given the concessions made by Mr
Mashuga, which in my view, were correctly made, I would not have
written a lengthy judgment
in
casu
. However, given
the serious irregularities which the trial court committed in
particular, the serious and active discension into
the arena of
conflict by the magistrate impels me to make some few comments.
This case, in my view, is a
classical example of how a presiding officer should not behave,
particularly in a criminal trial with
our predominantly adversarial
system. It is a trite principle of our criminal justice system,
which is deeply ensconced in our
constitution that every accused
person is entitled to a fair trial. Amongst others, this requires
that presiding officers’ should
not only be fair and impartial but
must assiduously ensure that they are in fact seen to be impartial.
Our criminal justice system
operates from a basic premise of
“equality of arms”.
This suggests that where both the state and the accused are legally
represented, the presiding officer should try by all means
to
restrain himself, exercise self-control and to give the parties the
freedom and latitude to present their cases as best they
can and
without any undue interference. This is so because the assumption
is that, both of them being legally trained and qualified,
have
prepared their cases properly and know what evidence they wish to
present and how they wish to conduct their trial. It does
not augur
well for any presiding officer to become so involved in the case for
one party to an extent where a perception is created
that he/she has
become partisan and partial. It is crucial in this context to bear
in mind the telling remark made by Kotze JA
in
S
v Meyer
1972(2) SA 480
(AD) at p 483H where he stated:
“…Hierdie
passassie word hieronder aangehaal en dui onteenseglik daarop dat
die tradisie van regterlike selfbeheer wat die Howe
in Suid Afrika
met trots nastreef nie deurgans eerdiedig is nie
.
…”
A few examples will
serve to demonstrate this point.
At the very early stage of the
trial before Van Rensburg could give a description of the alleged
chain, the magistrate
mero
motu
, instructed the
prosecutor to bring the chain to court so that the witness can
identify it. After the chain was brought into court,
the magistrate
did not allow the prosecutor to lay a proper foundation for the
introduction of the chain as an exhibit. Instead,
the magistrate in
a rather brusque manner, introduced and received it as Exhibit 1.
The extract from p45 line 10 of the record
gives a more lucid
account:
“
VOORSITTENDE
BEAMPTE:
Dit lyk my dit is `n vreeslike affêre, kan u dit vir my half
uithaal. Is dit los stukke? U hoef dit nie heeltemal uithaal nie,
as
u daarby kyk meneer, is dit die ketting waarna u verwys het? --- Dis
reg”
This
positive reponse stands in stark contrast with what Van Rensburg
conceded later on at p45 line 19 onwards where he
conceded
rather dramatically that:
“
VOORSITTENDE
BEAMPTE
:
U het dit nie gesien nie? – Nee
U weet nie waar dit
vandaan kom nie, maar die ketting lui `n klokkie? – Hy lui `n
klokkie ja.”
Equally important is
the following exchange between Van Resburg and Mr Kruger during
cross-examination of p58 line 10:
“…
Verder,
hou dit in gedagte, gesien in die lig daarvan dat u `n lang dag se
werk in die donker nag oppad terug kom
ry
Upington toe … dat u nie hierdie ketting gesien het nie, dat u nie
hierdie ketting kan identifiseer as die een waaroor u gery
het nie,
dat dit `n aanname is wat u agterna maak toe die polisie dit aan u
toon. Is dit korrek as ek dit so beskryf? … Volgens
hierso ja.”
To my mind the regional magistrate
seriously erred in the manner in which he dealt with Exhibit 1.
Firstly, he acted quite improperly
in initiating,
mero
motu
, that the chain be
accepted as Exhibit 1 without the involvement of either the state or
the defence. Secondly, it is abundantly
clear from the extracts
referred to above that Van Rensburg the victim was not in a position
to positively identify Exhibit 1 as
the chain over which he drove
his vehicle and which caused a puncture to one of his wheels. In my
view, this conduct by the regional
magistrate calls for a remark
like the one made by Kotze JA in S v Meyer (supra) at p484A where he
stated:
“…Dit
was `n soeke na die waarheid. Maar in sy ywer daartoe het hy sy
oogmerke verbygestreef en sy regterlike oordeel kwytgeraak
of
andersgestel, sy optrede het `n bevangendeid openbaar wat nie
versoenbaar is met sodanige oordeel.”
Having already described Selao as
an evasive and untruthful witness, what evidence remained on which
the appellant could be convicted?
In my view, there was none. The
fact that the appellant refused to make a statement to Maree
concerning this chain does not,
to my mind, justify any negative
inference against the appellant. Section 35(1)(a)and (b) of the
Constitution declares that every
arrested, detained or accused
person has the right, inter alia, to remain silent, to be promptly
informed of the right to remain
silent, and quite importantly, of
the consequences of not remaining silent. It is well known that one
of the serious consequences
of not exercising one’s right to
remain silent is that whatever an accused person discloses to a
police officer during interrogation
will be reduced to writing and
may be used against such an accused person in a subsequent trial.
In my view, it would make a serious
mockery of the rights enshrined
in section 35(1)(a) and (b)(i) and (ii), if after having properly
advised an accused of these rights,
such and accused person would be
visited with a negative inference precisely for exercising his
constitutional right to remain
silent. Faced with this seemingly
intractable if not intriguing legal conundrum,
Moseneke
J
expressed himself in
his usual eloquent fashion as follows in
S
v Thebus
and Another
2003(2) SACR 319 (CC) at p348 paras 57 and 58:
“
[57]
In our constitutional setting, pre-trial silence of an accused
person can never warrant the drawing of an inference of guilt.
This
rule is of common-law origin.
In
R v Mashelele and Another
,
Tindall JA
,
relying on the English decision of R v Leckey formulated the rule
thus:
‘
(I)f
the silence of the accused could be used as tending to prove his
guilt, it is obvious that innocent persons might be in great
peril;
for an innocent person might well, either from excessive caution or
for some other reason, decline to say anything when cautioned.
And I
may add that an accused person is often advised by his legal advisers
to reserve his defence at the preparatory examination.
It would,
also, in my opinion, have been a misdirection to say that the silence
of the accused was a factor which tended to show
that their
explanation at the trial was concocted.’
[58]
It is well established that it is impermissible for a court to draw
any inference of guilt from the pre-trial silence of an
accused
person. Such an inference would undermine the rights to remain
silent and to be presumed innocent. Thus, an obligation
on an
accused to break his or her silence or to disclose a defence before
trial would be invasive of the constitutional right to
silence. An
inference of guilt from silence is no more plausible than innocence.
The majority of the US Supreme Court in
Doyle
v Ohio
reminds
us that ‘every post arrest silence is insolubly ambiguous’. To
hold otherwise, the mandatory warning under s 35(1)(b)
will become a
trap instead of a means for finding out the truth in the interests of
justice.”
The
above dicta are not only persuasive by their sheer faultless logic
but are authoritative and binding on me.
Based on the above dicta, it is
self-evident that the regional magistrate erred in drawing an
adverse inference against the appellant
for exercising his
constitutional right to remain silent. It requires to be emphasized
that the right to remain silent is intended
to act as a shield and
bulwark against any form of legal compulsion on any accused to speak
at a time when it is not prudent to
do as this might turn out to be
a trap to catch the unwary. Based on the above exposition, I am
satisfied that, absent the evidence
of Selao and the chain, Exhibit
1, that there is no scintilla or shred of evidence on which the
appellant should have been convicted.
It is abundantly clear that
the chain Exhibit 1 played a cardinal role in the conviction of the
appellant. In fact, the magistrate
only accepted Selao’s evidence
after he found the chain to have been corroborative of Selao. It
follows ineluctably that, absent
Exhibit 1, there would not have
been any evidence to convict the appellant. I have found the dictum
by Kotze JA in
S v
Meyer
(supra) at p
484C to be both opposite and illuminating:
“
Wanneer `n
regterlike beampte optree soos hierbo aangedui gaan hy, na my mening,
redelik perke te buite. Hy skep dan nie die indruk
dat die doel van
sy ondervraging is om duidelikheid te vind nie. Veel eerder word die
indruk gewek dat die geskil vooraf beoordeel
word en dat reg en
regverdighied nie geskied nie (
Solomon
and Another, NN.O v de Waal,
1972(1)
SA 575 (AA) op bl.580). In die onderhawige geval het die optrede van
die landdros, volgens my mening, in sy geheel gesien,
en veral sy
gedrag teenoor die appellant terwyl hy getuig het, sulke afmetings
aangeneem dat dit nie gesê kan word d thy vleklose
onpartydigheid”
gehandhaaf het nie (
Rondalia
Versekeringskorporasie van SA Bpk v Lira,
1971 (2) SA 586
(AA) op bl.589). Bygevolg moet bevind word dat hy
nie sy funksie as regspreker na behore uitgeoefen het nie.
Afgesien
van die meriete in hierdie saak is `n bevinding onvermydelik dat die
landdros nie deurgaans `n onbevange oordeel bewaar het
nie (
Lira
se
saak bl.589) en dat sy optrede so ernstig afgewyk het van behoorlike
en
ordelike
respraak dat die verhoor en uitspraak ongeldig is.”
The case concerning the former
accused 2 stands on a completely different footing. As I alluded to
in para 3 (supra), although
accused 2 did not persist with his
appeal, we are of the view, having read the record, that a gross
injustice would be perpetrated
if we do not deal with his appeal.
We therefore decided in the interests of fairness and justice, to
invoke our inherent powers
of review to review his case. What is
pivotal to the ultimate conviction of accused 2 is the alleged
confession which he made
to a magistrate, one Mr Van Zyl. As
accused 2 directly disputed the admissibility of his alleged
confession, a trial-within-a-trial
was held. The state called
five(5) witnesses to testify. Accused 2 also testified to prove
that he did not make the alleged confession
freely and voluntarily
and without some undue influence. It is common cause that some days
after his arrest, accused 2 was taken
to Van Zyl for a confession.
From the evidence it is clear that Van Zyl and Fielies (the police)
contradicted each other directly
as to how Van Zyl was appointed to
take down the alleged confession. There is another serious and
disturbing feature about the
presence of Inspector Mona (the police
officer who was in charge of the appellant) in the office where
accused 2 made the confession
whilst Van Zyl was busy taking down
the confession. It is common cause that after the accused’s right
to legal representation
were explained to him, he opted for legal
representation. Accused 2 was then taken to the local Legal Aid
Office, and approximately
ten minutes late, accused 2 returned with
a local attorney, a certain Mr Human who had been appointed to
assist him. Although
there is evidence that Mr Human was present
when the confession was resumed, the role which he played is not
very clear. However,
what is of cardinal importance is that when
accused 2 was asked by Van Zyl at p248 line 1 onward:
“
Verwag u enige
voordele as u `n verklaring voor my aflê?
He
responded
:
“Ja –om nie gestraf te word om tronk toe te gaan nie, het nie
voorheen crime gehad nie.”
It should be abundantly clear from
the above extract that accused 2 told Van Zyl in clear terms that he
agreed to make the confession
because certain promises had been made
to him. This disclosure should have alerted Van Zyl to the
existence of some influence
having been used on accused 2 to
confess. To my mind, there must be a good and cogent reason why in
terms of section 217 of the
CPA, confessions made by accused persons
to police officers must be repeated before a magistrate who shall
reduce it to writing.
Furthermore it is self-evident that the
elaborate questions which precede the taking of any confession by a
magistrate are intended
to afford an accused person, who hitherto
has been in the custody of the police, effective protection against
any improper methods
or undue influence, violence or improper
promises being used to compel him to make a confession, which
invariably will be to his
detriment. Although, strictly speaking, a
magistrate who takes a confession is not expected to act as an
inquisitor or investigator,
one does not expect him to act like a
passive umpire who is simply there to ensure that formal rules are
observed. Given the historical
evolution of confessions in this
country and the countless reported cases of incidents of abuse of
their power and authority by
the police, one expects that where
there is some indication of improper conduct which could have had an
undue influence on the
accused to make a confession, that the
magistrate who takes such a confession should investigate further
the circumstances surrounding
the alleged confession.
Self-evidently, such conduct is congruent with the basic tenets of
fairness to an accused person which
underpins the rights of every
accused person to be presumed innocent, the right to remain silent
and the right not to be compelled
to make any confession or
admission that can be used in evidence against such a person. This
is particularly important when viewed
against our grim and horrible
past history of torture and intimidation of accused persons whilst
in police custody. It is not without
significance that our
constitution particularly section 35(1)(a) and (b) has elevated
these rights to a higher status of fundamental
rights deeply
embedded in our Bill of Rights, which as section 7(1) of the
constitution clearly articulates “is a cornerstone
of democracy in
South Africa…”
The importance and raison de’être
of this panoply of fundamental rights is lucidly described as
follows by
Moseneke J
in
S v Thebus and
Another
(supra) at p
347 para 35:
“
The protection of
the right to pre-trial silence seeks to oust any compulsion to speak.
Thus, between suspicion and indictment, the
guarantee of the right
to silence effectively conveys the absence of a legal obligation to
speak. This distaste of self-incrimination,
as Ackerman J puts it,
is a response to the oppressive and often barbaric methods of the
Star Chamber and indeed to our own dim past
of torture and
intimidation during police custody. It is therefore vital that an
accused person is protected from self-incrimination
during detention
and police interrogation which may readily lend itself to
intimidation and manipulation of the accused.”
Whilst confronted with the same
legal conundrum,
Froneman
J
expressed himself as
follows in
S v Melani &
Others
1996(2) BCLR
174(E) at p191I:
“…
Infringements
of fundamental rights resulting in an accused being conscripted
against himself through some form of evidence emanating
from himself
would strike at one of the fundamental tenets of a fair trial, the
right against self-incrimination… ”
Suffice to state that I am in
respectful agreement with the two dicta referred to above.
In his judgment the regional
magistrate found that in the absence of any other independent
corroboration of Selao’s testimony
(section 204 witness), he would
not be willing to accept his version. It is worth mentioning that
the regional magistrate found
Selao to be unreliable and dishonest.
However, the regional magistrate sought and found corroboration for
the evidence of Selao
from the confession by accused 2. Without any
doubt, this adequately demonstrate the importance of the accused 2’s
confession
to the state. Absent the confession, accused 2 would
have been acquitted. It is against this factual backdrop that we
have to
determine whether the confession had been proved to have
been made freely and voluntarily and without any undue influence
which
impacted on accused 2’s volition. I have already referred
to a paragraph in the document embodying the confession where
accused
2 in very clear terms told the magistrate that he made the
confession because he had been promised that he will not be punished
by being sent to prison. To my mind, the possibility that accused 2
was unduly influenced by this promise to make the alleged
confession
cannot be excluded. In the circumstances, I am of the view that it
was never proved beyond reasonable doubt that accused
2’s volition
was in no way unduly affected by this promise. In the result, I
find that the confession made by accused 2 was
improperly admitted
against accused 2. In admitting this confession, I regret to state
that the regional magistrate subverted
accused 2’s constitutional
right to a fair trial. I furthermore find that it would be inimical
to the basic notions of fairness
and justice and will in fact bring
the administration of our criminal justice system into disrepute if
evidence obtained in a manner
which is in flagrant disregard of an
accused’s right to a fair trial, is admitted and used to convict
such an accused person.
As the regional magistrate
correctly found, absent the evidence of this confession, there would
not have been sufficient evidence
to convict accused 2. I have
already expressed my clear view regarding the conviction of the
appellant.
Having given this matter careful
and anxious consideration, I am of the view that the evidence on
record is not sufficient to justify
the conviction of both appellant
and accused 2. As a result, the conviction and sentence of both
appellant and accused 2 are hereby
set aside.
_____________________
L
O BOSIELO
ACTING
JUDGE PRESIDENT
Northern
Cape Division
I
concur
_____________________
F
E MOKGOHLOA
ACTING
JUDGE
Northern
Cape Division
On behalf of the Applicant
:
Adv J J Schreuder
Instructed
by: KIMBERLEY JUSTICE CENTRE
On
behalf of the Respondent
:
Adv. M. Mashuga
Instructed
by: DIRECTOR PUBLIC PROSECUTIONS