S v Molangeni (312/2001) [2001] ZANCHC 14 (22 June 2001)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2001
>>
[2001] ZANCHC 14
|

|

S v Molangeni (312/2001) [2001] ZANCHC 14 (22 June 2001)

6
Verslagwaardig:
Ja/Nee
Sirkuleer
aan Regters: Ja/Nee
Sirkuleer
aan Landdroste: Ja/Nee
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
CASE
NUMBER:312/2001
DATE
DELIVERED: 22-06-2001
In
the matter between:
The State
and
Jamloti
Simon Molangeni
Accused
Coram: Kgomo J et Majiedt J
REVIEW JUDGMENT
MAJIEDT
J:
The accused was
convicted of a contravention of section 5(b) of Act 140 of 1992
(dealing in dagga).
He was sentenced to a
fine of R6000 or 4 years imprisonment.
On
review of the matter, I had queried the conviction on several
grounds. I do not deem it necessary to repeat the queries or the
magistrate’s response thereto. I need, however, to make one
observation and that is it is quite disconcerting to note how the
magistrate has allowed evidence of dubious relevance and
admissibility to be introduced at the trial.
The
crux of the matter in this review concerns the admissibility of
evidence which forms the only basis for the conviction of the
accused. This evidence was admitted at the trial on the basis that
it amounted to an admission and had been made freely and voluntarily
to a peace officer (a sergeant in the SAPS).
The
crisp question for decision is simply this: was the magistrate
correct in his finding that the oral statement of the accused
amounted to an admission only? If in fact this statement amounts to
a confession, the evidence would fall foul of the provisions
of
section 217(1)(a) of the Criminal Procedure Act, 51 of 1977 (
“the
Act”)
.
The
first witness for the State was the sergeant in question, one Willem
Klaaste, who is attached to the Narcotics Division of the
SAPS. He
testified that on 8 June 2000 he had been on duty with
Superintendent Botha on the national road between Kathu and
Olifantshoek.
They had stopped a Kombi and found in the trailer
thereof 5 bags of dagga.
The driver of the Kombi
had no knowledge of the dagga. The passengers of the Kombi were all
taken to the police station at Olifantshoek
and were requested to
position themselves next to their own luggage. Botha enquired as to
the ownership of the 5 bags in question
and nobody responded. Upon a
further search of the kombi, a purse containing dagga was also found.
Botha
then informed the passengers that they were all under arrest and
explained their rights to them. The record does not specify
what
rights were explained to the passengers. There was no luggage next
to the accused.
The following then
appears on the record: -
“
I
asked the accused where his bag is, he answered freely and
voluntarily, no promises were made to him. Accused pointed out the
bag
that was found in the taxi and said these other bags he was
taking to somebody in Upington.”
The above quoted
extract is the subject of the enquiry as to whether we are dealing
with a confession or an admission.
To continue with the
facts and the evidence – on the basis of this declaration the
accused was convicted. The dagga was weighed
in the presence of the
accused and was found to weigh 146.77 kilogram.
Superintendent
David Botha, also attached to the Narcotics Division of the SAPS,
testified next. He confirmed Klaaste’s evidence
about having
stopped the Kombi and having found the bags containing dagga.
At the Olifantshoek
police station none of the passengers were prepared to admit that the
bags with dagga belonged to them. He found
a parcel with a small
quantity of dagga and dagga seeds when he had conducted a further
search of the Kombi. He placed all the passengers
under arrest and
explained their rights to them (again one is left in the dark about
what these rights were).
Botha
confirmed the evidence of Klaaste as to what the accused had said,
when he was asked where his luggage was.
In
cross-examination, repeated in his evidence, the accused denied that
he was aware that dagga had been found in the Kombi or that
he had
admitted that the dagga was his. He claimed that he did not
understand Afrikaans, that a soldier had been used as an interpreter
and may have interpreted incorrectly.
It is not necessary,
given the conclusion which I have reached herein, to make a finding
as to whether the accused’s version is
reasonably possibly true.
It
is now trite law that, in considering whether an accused’s
statement amounts to a confession, one is required to adopt an

objective approach.
See:
S
v Yende
1987(3)
SA 376(A) at 372 D-E;
S
v Motloba
1992(2) SACR 634 (BA) at 638f.
A
confession is generally accepted to be
“an
unequivocal acknowledgment of guilt, the equivalent of a plea of
guilty before a court of law”,
per de Villiers ACJ in
R
v Becker
1929
AD 167
at 171.
See
also:
S
v Yende,
supra
at 372C-F.
In considering
whether the statement amounts to a confession, regard must be had to
the surrounding circumstances;
See: R
v Duetsimi
1950(2) SA 674(A) at 678-679.
Such surrounding
circumstances must, however, only be considered so as to place the
words of the accused in its correct perspective;
See: Hiemstra:
Suid-Afrikaanse Strafproses, 5
th
ed at 545.
The
statement of the accused
in
casu
is to be considered in
conjunction with the
following surrounding circumstances to place it in proper
perspective:
a
substantial quantity of dagga had already been discovered;
no
one had accepted ownership of the bags in question at the time the
statement had been made;
as
requested all passengers, except the accused, were standing next to
their luggage – the accused had no luggage.
Given these
circumstances, I am of the view that the statement and accompanying
pointing out by the accused amounted to a confession
and is
inadmissible as evidence, in terms of the provisions of section
217(1)(a) of the Act.
I
must express my appreciation for the well researched and
thorough legal opinion
furnished by Adv. C.G. Jansen of the Office of the Director of Public
Prosecutions. It has been of considerable
assistance in this matter.
The
conviction is unsound in law and cannot stand.
The accused’s
conviction and sentence is set aside.
___________________________
S.A. MAJIEDT
JUDGE
I
agree
__________________________
F.D.
KGOMO
JUDGE