IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Case No. : 22/2005
In the matter between:
THE STATE
versus
THABISO JOHANNES MOLOI Accused 1
THULANI MOSES MOLOI Accused 2
SIAS HERRIE MOLOI Accused 3
OUPA WILLIAM MOLOI Accused 4
_____________________________________________________
HEARD ON: 6 – 10 JUNE 2005
_____________________________________________________
JUDGMENT BY: H.M. MUSI J
_____________________________________________________
DELIVERED ON: 03 November 2005
_____________________________________________________
[1] A trial within a trial was conducted to determine the
admissibility of the statements made by Thulani Moses
Moloi, (accused no. 2) and Oupa William Moloi,( accused no.
4,) respectively on 4 December 2003 and 8 December 2003
to Magistrates H.P. Mohosho and A.M. Schoeman. At the
conclusion thereof I ruled that the statement of each accused
was made freely and voluntarily whilst the accused was in
his sound and sober senses and without having been unduly
influenced thereto as is required by section 217 of the
Criminal Procedure Act 51 of 1977. I indicated that I would
give reasons for the rulings at the conclusion of the whole
trial. Such reasons follow hereunder.
[2] I shall deal first with the case of accused no. 4. Four
witnesses testified for the State and for the defence only the
accused testified. The most important evidence is that of the
investigating officer, Inspector L.P. Maseko, who is attached
to the Serious and Violent Crime Unit at Bethlehem. Briefly it
is to the effect that on 8 December 2003 he got a telephone
call from the police at Harrismith to the effect that someone
wanted to see him there. He went there and was led to an
office where he found the accused no. 4 (the accused). He
realised that it was a suspect he had been looking for. He
had already arrested some suspects, all of whom were the
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accused’s brothers. He says that the accused disclosed that
he knew about the incidents giving rise to the crimes being
investigated and wanted to relate what had happened, but
Maseko stopped him and told him he was being arrested in
connection with the crimes forming the subject of this trial.
Maseko says that he then proceeded to explain to the
accused his constitutional rights, inter alia the right to legal
representation, the right to remain silent and not to make any
statement and that if he said anything it will be recorded and
may be used against him in any subsequent trial. He had
got from the police at Harrismith a formal police document
containing an explanation of such rights which he completed
and explained contents thereof to the accused. He and the
accused were speaking in Sesotho and he says that the
accused understood all that was explained to him,
whereafter the document was signed by both of them. The
document was handed in as exhibit K.
[3] Maseko says that he also took the accused’s warning
statement right there at the Harrismith police station. He
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explained the contents of the statement which the accused
also understood and signed. In such warning statement, the
accused indicated that he would make a statement to a
magistrate. The warning statement was handed in as exhibit
L. Maseko says that the accused had been cooperating and
had indicated that he would make a full statement of what
had happened to a magistrate. The following statement
appears in the warning statement:
“Ek sal ‘n verklaring voor die landdros gaan aflê.”
Maseko says that the accused was thereby referring to
making a confession. He had then made arrangements to
take the accused to a magistrate at Harrismith to make the
confession that very same day.
[4] Maseko further says that the accused had of his own accord
disclosed that he had a firearm which he wanted to hand
over and for that reason he had accompanied the accused to
his place of residence in the informal settlements outside
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Harrismith. When they came back Maseko handed the
accused to Inspector Thipa Mofokeng and the latter took him
to Magistrate Schoeman for the confession.
[5] Inspector Maseko was extensively crossexamined by Miss
Ismail, for the accused, but he stuck to the gist of his version.
It was put to him inter alia that he had threatened the
accused with violence in order to coerce the accused to co
operate and further that Maseko had dictated to the accused
what to tell the magistrate. Significantly no actual act of
violence was alleged nor was it alleged that the accused
sustained any injuries. In his evidence, the accused could
only complain of being handcuffed as the only act of ill
treatment actually meted out to him.
[6] It was also put to Maseko that he had been in the company
of another police officer when he interrogated the accused
and that the interrogation and threats were made in the
presence of one Thembisile, the accused’s girlfriend.
Maseko disputed all this and maintained that he went to
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Harrismith alone and was alone when he interviewed the
accused and further that the accused himself had been alone
all along. It was further put to Maseko that he had personally
taken the accused to the magistrate and that he had
repeated the threats of violence on the doorstep on the
magistrate’s office and further that Maseko had stood outside
the magistrate’s office as the statement was being taken. He
denied all this.
[7] Now Inspector Maseko was fully corroborated by Inspector
Thipa Mofokeng on the following points:
7.1 That Maseko handed the accused to him and it was he
(Mofokeng) who took the accused to the magistrate for
the confession and fetched him afterwards;
7.2 That Maseko had left the magistrate court buildings
after handing the accused to him and was
telephonically contacted by Mofokeng to come and
fetch the accused after the confession;
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7.3 That Maseko did not stand next to the window of the
magistrate’s office whilst the confession was being
taken.
[8] Maseko is further corroborated by Mr. Gideon Msimanga, the
interpreter who interpreted for Magistrate Schoeman during
the taking of the confession, that Maseko was nowhere near
the magistrate’s office. Nor did Msimanga meet Maseko that
day. In paragraph 5.1 of the preamble to the confession,
exhibit F, Magistrate Schoeman also records that the
accused was brought to him by Inspector Thipa Mofokeng.
[9] Magistrate Schoeman testified and confirmed what he
recorded in the preamble to the confession, exhibit F. The
interpreter, Mr. Msimanga, also testified and confirmed that
he interpreted concisely and accurately the explanations
made and the questions posed by Mr. Schoeman from
Afrikaans to Sesotho, the language that the accused spoke
and also the accused’s responses from Sesotho to
Afrikaans.
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[10] The accused version was briefly that he had reported to the
police station at Harrismith only because he had heard that
the police were looking for him and was keen to know the
reasons therefor. He said that he had no knowledge of the
relevant crimes and had not wanted to hand himself over to
the police. He said that Maseko had threatened to take him
to his offices in Bethlehem to be tortured if he did not co
operate, that Maseko had then told him what had happened
and instructed him to repeat that to a magistrate. He agreed
to do so only due to the threats of assault. He said that
Maseko had taken him to the magistrate personally and had
then stood outside the magistrate’s offices as the statement
was being taken. He also claimed that he did not know that
it was a magistrate who was taking his statement, but
believed that it was a senior police officer, because Maseko
had told him that he was being taken to the head of the
police.
[11] Now all these state witnesses gave a favourable impression
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in the witness box and there were no material contradictions
in their evidence. Moreover they corroborated each other in
all material respects. I can find no reason to question the
reliability of the testimony of each of them, nor was any
suggestion to the contrary made during oral argument.
[12] The accused, on the other hand, was a poor witness. He
was generally vague and uncertain about his assertions.
The record teems with instances where simple and
straightforward questions had to be repeated. And there are
many instances where he would deny aspects of the state
evidence but when pressed he would resort to saying that he
could not recall. Miss Ismail was in fact candid when she
conceded in argument that the accused did not impress at all
as a witness.
[13] An aspect that further dented the accused’s version is the
following:
He had all along said that his girlfriend, Thembisile, was
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present during the interview with Maseko and would have
seen and heard what transpired. Thembisile reported at
court on 11 October 2005 presumably to testify on behalf of
the accused and Miss Ismail requested an adjournment in
order to consult with her. When the court resumed she was
inexplicably not called. In my view, it is clear that the
accused had been lying when he said that Thembisile and an
unknown police man were present. It is improbable that
Maseko, who is clearly an experienced police investigator,
would interrogate a suspect in such a serious case as
murder in the presence of his girlfriend. And, as Maseko
said, why would he conceal the presence of a colleague who
would have provided corroboration?
[14] In my view, the version of the State was overwhelming that
the accused no. 4 had wanted to make a statement of his
own accord.
[15] I now turn to consider the position of the accused no. 2.
Four witnesses testified on behalf of the State, whereas for
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the defence only the accused no. 2 (the accused) testified.
Inspector Maseko, the investigating officer, and Inspector
M.P. Bierman were involved in the arrest on 3 December
2003 of the accused on a farm outside Harrismith where the
accused was employed. The two officers corroborated each
other that Bierman only assisted in the arrest and did not
take part in the subsequent interrogation that afternoon, that
it is Maseko and Inspector N.D. Moshuaduba who together
interrogated the accused at the offices of the Serious and
Violent Crime Unit in Bethlehem. They corroborated each
other that the accused cooperated and was not assaulted or
in any way threatened. They both denied the accused’s
averment that he was tortured and that Bierman was
involved. Moshuaduba said that the accused’s indicated that
he knew what had happened in relation to the crimes and
wanted to relate that, but he stopped the accused and
suggested he tell that to a magistrate. Moshuaduba then
informed Maseko to make the necessary arrangements for a
magistrate to take the statement. Maseko had also taken the
accused’s warning statement that day and handed this as
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exhibit J. Therein the accused indicated that he would make
a statement to a magistrate. Maseko said that this referred
to the wish to make a confession. The officers say that they
spoke to the accused in Sesotho as all of them are Sesotho
speaking.
[16] Maseko is corroborated by Inspector P.A. Msimanga that the
accused was handed to the latter to take to the cells that
afternoon. Msimanga said he had then explained to the
accused his constitutional rights upon detention by way of a
document which he completed and contents of which were
explained to the accused in Sesotho. He handed in such
document as exhibit G. It is common cause that the
document was left in the accused’s possession. Exhibit H
was also handed in showing that the accused was handed to
the cells on 3 December 2003 at 18h20. Entry no. 107
records that the accused had no injuries when detained.
[17] In line with the accused’s wish to make a statement to a
magistrate, Maseko says that the following day, 4 December
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2003, he tried to arrange for a magistrate to take it, but could
find none available at Bethlehem and so he arranged,
through a public prosecutor, to take the accused to
Phuthaditjaba. The Accused and the erstwhile accused no.
1 and 3, had to appear in court in Harrismith that day, so
Maseko took them along via Phuthaditjaba. He was
accompanied by Inspector Msimanga. Msimanga
corroborated Maseko that no threats were made to the
accused that morning to influence him to make a statement
and that it was Msimanga who took the accused to
Magistrate Mohosho when they got to Phuthaditjaba and
fetched him after the statement was made. Both officers
denied that the accused had been misled into believing that
he was being taken to their superior.
[18] Magistrate Hlapane Paulus Mohosho testified that the
accused was brought to him on 4 December 2003 to take his
statement. He confirmed under oath contents of the
preamble to the confession, exhibit D. He confirmed in
particular that the explanations made and questions posed to
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the accused were all correctly interpreted to the accused in
Sesotho and that the accused understood these and further
that he accurately recorded his responses.
[19] Two aspects of the recording of the accused’s statements as
per the preamble to the confession, need to be dealt with.
Firstly, the responses to the explanations contained in
paragraphs 1.1, 1.2 and 1.3 of exhibit D were not recorded.
This provided a basis for the contention that the relevant
explanations were not made to the accused. The accused
had alleged that the police had told him that he was being
taken to their superior at Phuthaditjaba and warned that if he
did not do as they had instructed him, their superior would
tell them. He said that he had believed Mr. Mohosho to be
such senior police officer and that the latter did not tell him
that he had nothing to do with the police.
[20] Mr. Mohosho’s explanation was that he had not considered it
necessary to elicit any responses from the accused as the
relevant paragraphs contained only explanations and he had
been satisfied that the accused fully understood the
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explanations. He was adamant, however, that he had fully
made the relevant explanations to the accused. He went on
to state that he did not see it as his duty to simply inform the
accused of the contents of the document, but that he had to
ensure that the accused understood the position clearly.
And if there was any doubt in his mind whether the accused
wanted to make a statement he would not take it, so he said.
A perusal of the relevant document reveals that whatever is
not applicable throughout paragraphs 1.1, 1.2 and 1.3 have
been deleted. This shows that the magistrate did go through
these paragraphs. Mr. Mohosho came forth as a diligent,
conscientious judicial officer and I can find no reason to
doubt his bona fides. He did concede in hindsight that it was
an oversight not to record the answers and I accept his
explanation.
[21] I think that the accused was being opportunistic when he
denied that these paragraphs were explained to him, and
contradicted himself along the way. He conceded that the
right to legal representation was explained to him and yet
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such explanation is contained in the same paragraphs that
he claims were not read to him. He also admitted that Mr.
Mohosho did tell him that he was a magistrate, yet in the
same breath he insisted that he thought that Mohosho was a
senior police officer.
[22] The second issue is that the interpreter who interpreted for
the accused, Mr. Potsane, has died and could not testify to
confirm his role. Mr. Skibi, for accused no. 2, argued at the
conclusion of the trial within a trial that the magistrate’s
evidence as to what the accused said, is hearsay and
inadmissible. This raises an interesting legal question to
which I shall return in due course.
[23] As for the accused, his version was that he had been
threatened by the police and forced to agree to make a
confession. He gave details of what was allegedly done to
him by Inspectors Maseko and Bierman on 3 December
2003. He says that his head or face would be covered by
plastic bags whilst lying face down, wires connected to his
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feet and electric shocks administered to him. And that when
he felt pains, Maseko would stop the shocks and demand
that he talks. The process was repeated five times.
Significantly he did not say how Maseko would know that he
felt pains because he never said that he screamed. He
related this story as a matter of faitly and did not give any
sign of emotion as one would expect from someone who was
being made to relive a painful and traumatic experience. He
also suffered no injuries, nor did he complain of any when
admitted to the cells that day.
[24] He would also not tell in his evidence in chief what is it that
Maseko wanted him to relate to the magistrate or when was
this drilled into his head. The information had to be extracted
from him piece meal under crossexamination by Mrs.
Bester, for the State. He also claimed that he had no
knowledge of what was told to Magistrate Mohosho, as per
exhibit D, and said that he was hearing this for the first time
in court. But he soon changed that and said that all that he
told the magistrate was what he got from Maseko. In short,
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the accused no. 2 contradicted himself a lot and adjusted his
evidence. His version was neither convincing nor probable.
It simply has no ring of truth and cannot be accepted.
[25] On the other hand, all the state witnesses were credible.
There are of course some discrepancies in the evidence of
each of them, but these were not material and do not detract
from the credibility of each of them. I can cite as an example
one aspect of Inspector Moshuaduba’s evidence. He said
that the accused no. 2 was interrogated on 4 December
2003, but later he conceded that he did not recall this date,
but that he had taken it from the statement he had made long
after the incident. This was clearly a mistake, as it is
common cause that the interrogation took place on 3
December 2003. Most importantly, the state witnesses
corroborated each other in material respects. The
probabilities also favour the version of the state. I concluded
therefore that the State had discharged the onus resting on it
to prove beyond reasonable doubt that the accused made
the statement freely and voluntarily and without being unduly
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influenced thereto.
[26] I now turn to consider the legal question of whether what the
accused said to Magistrate Mohosho and recorded by him in
the preamble to the confession is hearsay and inadmissible.
If it is, that will mean that the entire evidence of the
magistrate and his role in the matter would have been an
exercise in futility and the statement that he ultimately took
would likewise be worthless as it would also be hearsay. It is
important to give a brief factual background to and evidence
in which the issue arises. Mr. Mohosho made it clear that he
is Sesotho speaking just like the accused and the interpreter,
the late Mr. Potsane, and that he understood not only what
the accused said but also the Sesotho translation of what he
(the magistrate) had said in English. He went on to explain
that he had gone out of his way to ensure that what he said
was fully and accurately interpreted to the accused and that
the accused understood it. Significantly the accused did not
dispute this portion of Mr. Mohosho’s evidence. Nor did the
accused suggest that his answers were not correctly
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recorded. He disagrees with some statements attributed to
him, not because they were incorrectly recorded, but
because he says that was what Maseko told him to say.
[27] It is interesting to note what the accused said when led by
his counsel:
“The Magistrate testified that there was an interpreter and you
were satisfied that everything was interpreted to you. What is
your comment about that? Yes, there was an interpreter. He
interpreted what I said and he also interpreted what was said to
me but I know nothing about this which is written down in this
document, …”
The accused was thereby saying: “Yes I said this, but it is not
my own story.” In fact no basis was laid for the legal point
raised.
[28] In support of his submission Mr. Skibi cited in S v MATHE
1976 (1) SA 233 (O). It was decided in this case that where
a magistrate had taken a confession through an interpreter
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what the magistrate recorded would be hearsay, unless the
interpreter was called to confirm under oath that he correctly
interpreted the accused. Though this is not stated, it can be
inferred that the magistrate concerned did not understand
the language of the accused and hence the rationale of the
decision that what the magistrate took down was in effect
what was said by the interpreter. This decision was in line
with the cases of R v MUTCHE 1946 AA 874 and R v
MAGOROSIE 1951 (2) SA 126 (T) both of which were cited
with approval. ( MUTCHE and MAGOROSIE are probably
misnomers respectively for MOCHE and MOGOROSI.)
[29] The above stated legal position is also in line with the
decisions of the estuarial Appellate Division in inter alia R v
MAKATANE 1948 (3) SA 384 (AD) and S v NAIDOO 1962
(2) SA 625 (AD). The judgment in S v NAIDOO dealt mainly
with the case of an interpreter who is not an official court
interpreter and had not been sworn in prior to interpreting. It
was held that the account of a witness given through such
interpreter is to be regarded as unsworn testimony. Strictly
21
speaking, the objection here is not that the evidence is
hearsay, but rather against the reception of unsworn
testimony. However, a clear indication of the basis on which
it was thought that the evidence would be hearsay, is given
at p. 632 A:
“If a witness states in Court that a person, an accused for
instance, previously made a statement to him in a language
which the witness did not understand but which was interpreted
to him then that witness’s evidence as to what was said is by
itself hearsay and not admissible as proof of what was said.
When, however, in addition the person who interpreted is called
to testify on oath that he correctly interpreted what was said
there is a completed chain of sworn testimony as to the terms of
the prior statement and this testimony can be accepted as
proper proof of such terms……….”
By implication if the witness understood the language of the
speaker, then his/her evidence of what was said would not
be hearsay and the presence of an interpreter becomes
irrelevant.
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[30] R v MAKATANE supra dealt with the provisions of section
284 of the old Criminal Procedure Act which required that a
conviction for perjury could only follow upon the evidence of
at least two witnesses. A magistrate had testified about a
statement allegedly made to him by an accused through an
interpreter and the interpreter had confirmed under oath that
he had correctly interpreted the accused. It was held that the
evidence of both counted as that of one witness for purposes
of the section. The rationale was that since the magistrate
did not understand what the accused had said, his evidence
alone would be hearsay and confirmation by the interpreter
was necessary to render it admissible. Significantly the
following is stated at the bottom of p. 389:
“But as correctly laid down in R v Charles (1942 CPD 179) and
a number of other cases by itself the evidence of the Magistrate
as to what was said before him by a witness through the
medium of an interpreter is mere as hearsay unless it be shown
that he understood the language spoken by the witness .”(my
own underlining)
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This is a clear indication that if the magistrate understood the
language of the deponent, what he/she recorded would not
be hearsay. That was the position in the instant case.
[31] S v PONYANA 1981 (1) SA 139 (Tk) may appear to
contradict what has just been said above. There the
interpreter had interpreted to the accused only what the
magistrate said from English to Xhosa but did not interpret
what the accused said in Xhosa because the magistrate
understood Xhosa. This was during a public hearing in open
court. The review court held that this was a gross irregularity
that vitiated the proceedings. The court remarked as follows
at p. 140 G – H:
“It is what is said in public and what is interpreted whether it be
evidence from one language into another or expert evidence,
that is the evidence which is given for practical purposes and
which is to be recorded. One can see all sorts of difficulties
arising should any other view be held. The first and foremost
which comes to mind is that the interpretation given by the
Magistrate is his own, as recorded by him and nobody in that
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court except the Magistrate knows what he has recorded in
English insofar as the accused or the witness’s version in Xhosa
is concerned.”
[32] PONYANA is clearly distinguishable from the instant case
and is, in my opinion, no authority for the view that where a
magistrate takes an extracurial statement like a confession
from a deponent whose language he/she understands, but
uses an interpreter, his/her record of what the deponent said
would be hearsay. The above passage is certainly valid
insofar as proceedings in open court are concerned. The
reasons why different considerations apply to the taking of
evidence in a public trial as opposed to the taking of an
extra curial statement are obvious and need not be stated.
In practice, where the magistrate is fluent in the language of
the accused no interpreter is ever used. In casu, Magistrate
Mohosho could easily have dispensed with the services of an
interpreter. He probably used the interpreter purely as a
matter of practice because the standard forms used are
written in either English or Afrikaans.
[33] I conclude that the recording by the Magistrate of what the
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accused no 2 said in this matter is not hearsay and needed
no confirmation by the interpreter.
___________
H.M. MUSI, J
On behalf of The State : Adv. A. Bester
On behalf of accused 2: Adv. N.L. Skibi
On behalf of accused 4: Me. S. Ismail
/sp
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