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1999
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[1999] ZAWCHC 3
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S v Kannemeyer and Another (SS50/99) [1999] ZAWCHC 3 (8 July 1999)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO: SS50/99
DATE: 8-7-1999
In
the matter of:
THE
STATE
versus
GIOVANNI
KANNEMEYER
RICARDO
VAN VUUREN
JUDGMENT
IMMERMAN,
AJ:
Mr
Tarental, for the State, in calling his next witness to testify in
this matter, namely police Inspector Adolf Johannes Jonker,
very
correctly and properly, in accordance with his duty as prosecutor,
warned the Court that he was about to introduce through
this witness
evidence of the making to this witness of a statement by accused
number 2 and that it was the contention of the State
that the
statement constituted an admission by accused number 2.
At
this juncture Mr Newton, counsel for accused number 2, objected to
the admission of the statement as evidence against accused
2 on the
grounds that the statement constituted a confession which was
inadmissible by reason of the operation of the provisions
of
section
217(1)(a)
of the
Criminal Procedure Act No. 51 of 1977
.It therefore
appears that the statement in question may amount, on the one hand,
to an admission as contended by the State or,
on the other hand, a
confession, as contended on behalf of accused 2. During the course of
argument on the matter it was made clear
to me by both prosecuting
and defence counsel that it is common cause between them:
1.
That police Inspector Jonker, to whom the statement was made, is a
Peace Officer within the meaning of
section 217
of the
abovementioned Act.
2.
That police Inspector Jonker is neither a magistrate nor justice
within the meaning of
section 217
of that Act.
3.
That the statement was not confirmed and reduced to writing
in the presence of a 10 magistrate or justice.
It
follows therefore that if the statement in question is a confession,
it is, pursuant to the provisions of
section 217(1)(a)
of the said
Act, not admissible in evidence. In objecting to the admission of the
statement as evidence against accused 2 in this
trial, Mr Newton, on
behalf of accused 2, also indicated that it was his client's case
that the statement was not freely and voluntarily
made and that
certain portions of the written document containing the statement did
not correctly record what accused number 2
had 2C stated to police
Inspector Jonker.
In
the light of the aforegoing Mr Tarental, on behalf of the State, in
his able argument, contended that the correct procedure to
be adopted
with regard to the written document was to determine, in a
trial-within-a-trial, the admissibility of the document in
accordance
with whether or not the statement was freely and voluntarily made by
accused 2 while in his sound and sober senses and
without having been
unduly influenced to make the statement, and whether or
not it was
correctly recorded. Only if the document is found within such
trial-within-a-trial to be so admissible, so he argues,
would the
document be receivable by the Court and only then would it be the
correct occasion for the determination to be made as
to whether or
not it constitutes an admission or a confession.
The
trial-within-a-trial procedure is, of course, one designed to cater
for the accused's right to a fair trial in order to ensure
that
questions of admissibility and of guilt are distinguished from each
other and decided separately.
At the end of the State case an
accused is entitled to know exactly what evidence will be put into
the scale against 10 him, albeit
that he is not entitled to know the
weight the Court would attach to the evidence. An accused needs to
have the freedom to decide
whether he wants to testify on the merits
in the main trial and the only mechanism which to questions of
admissibility is a trial-within-a-trial
(see S v Mhlakaza en Andere
1996 (2) SACR 187
(C) . In his argument that the
trial-within-a-trial procedure is the procedure to which resort has
in the first instance to
be ' had in this case, that is before
determination as to whether 20 or not the document constitutes a
confession which is inadmissible,
Mr Tarental did not refer the Court
to any direct authority on the matter but argued as he did by analogy
on the strength of the
decisions in S v Yolelo 1981(1) SA 1002 (AD);
S v Dhlamini en Andere 1981(3) SA 1105 (W) ; S v Dlamini 1988(3) SA
784 (AD) and
S- v. Potwana & Others 1994(1) SACR 159 (AD). He
also relied on the text in the first paragraph on page 565 of
Hiemstra Suid-Afrikaanse
Strafproses 5th ed.
Mr
Newton, on behalf of accused 2, has argued that it 30 is the
correct procedure in the circumstances of this matter and in fact
the
wish of accused 2 that the Court investigate and determine first
whether the statement is an inadmissible confession or not
and that
the Court do so by sitting without the assessors and receiving and
considering the content of the statement in question.
I should
mention that it was made clear during argument by both prosecuting
and defence counsel that it is determinable from the
document alone
whether or not its content constitutes a confession or an admission
and that neither counsel wished to lead any
evidence with regard to
the construction of the document. In support of his argument Mr
Newton relied on direct authority in the
form of the decision in S v
Bontsi .1985(4) SA 544 (BGD) . In that case the Court was concerned
with a statement to a policeman
which, if it constituted a
confession, would be inadmissible by reason of the operation of
section 217(1)
(a) of the
Criminal Procedure Act.' At
page 547B-F of
the judgment His Lordship Stewart, JP stated as follows:
"The
duties of a prosecutor and a judicial officer when the prosecutor
wishes to lead evidence of a statement made by an accused
which may
amount to a confession or an admission are set out in Hiemstra
Suid-Afrikaans Strafproses, 3rd ed. at 463. It is the
duty of the
prosecutor first to investigate the circumstances under which the
statement was made and to establish whether it may
amount to a
confession or whether it is an admission which is coupled to an
inadmissible confession. If the prosecutor is in doubt
it is his duty
when raising the issue in open court to warn the presiding judicial
officer in regard to what he is about to do.The
judicial officer must
then investigate firstly, whether or not the accused made the
statement and if so, whether it is a confession
or not.If it is a
confession then it is not admissible for any purpose by the
prosecution unless there has been compliance with
the proviso set out
in
section 217.If
it is an admission then it is only admissible if
the prosecution first proves that it has been voluntarily made unless
there has
been compliance 10 with the proviso set out in
section
219A.
In the present case accused 3 admitted that she had made a
statement to the police but said that she had done so because she
was afraid. The prosecutor did not indicate whether the
statement was a confession or an admission and the magistrate did
not
enquire. This was wrong. The prosecutor should have indicated to the
magistrate what his views were and the' magistrate
should have
established whether the statement was or was not 20 an inadmissible
confession. If,after proper enquiry, he was
satisfied that the
statement was not a confession but an admission, he should have
established whether or not it was freely
or voluntarily made."
Bontsi1s case in this regard is cited with .apparent approval in Du
Toit & Others Commentary on
the
Criminal Procedure Act at
page
24.51. Hiemstra in the latest edition of his work Suid-Afrikaanse
Strafproses 5th ed., while not referring to Bontsi' s case,
expresses
at page 553 a view which is 3C essentially the same as that
enunciated in the Bontsi case, namely:
"Dit
is die plig van 1n aanklaer in gevalle waar hy 'n erkenning van die
beskuldigde wil aanvoer en daar volgens sy inligting
'n moontlikheid
is dat so 'n erkenning deel vorm van 'n ontoelaatbare bekentenis om
die omringende omstandighede te ondersoek en
te bepaal of hy die
erkenning mag gebruik. As dit twyfelagtig is, moet hy die
voorsittende beampte op sy hoede stel. Wanneer 'n
erkenning sonder
meer bewys word, moet die Hof kan aanvaar dat die erkenning nie
gekoppel is aan 'n ontoelaatbare bekentenis nie.
Die aanklaer moet
dit nie aan die Hof oorlaat om ' n ondersoek te open ten einde vas te
stel of die erkenning nie miskien deel
is van 'n ontoelaatbare
bekentenis nie. Dit bly nietemin die oorkoepelende plig van die
voorsittende beampte om horn te vergewis
dat 'n erkenning behoorlik
toelaatbaar is voordat hy dit as deel van die bewyse aanvaar." S
v Nkosi
1980 (3) SA 829
(A) 844-845.
S
v Nkosi supra provides further support for the proposition that the
Court has first to be satisfied that the statement which the
State
wishes to tender as an admission is not an inadmissible confession or
part of an inadmissible confession at 844H-845:
"It
seems to me that it is the duty of prosecuting counsel in a case
where evidence is available of an admission made by an
accused and
where there is any possibility flowing from information at counsel's
disposal that such admission was part of an inadmissible
confession,
for example where the admission accompanied a pointing out following
upon a report to the police to investigate the
surrounding
circumstances in order to satisfy himself of the propriety of proving
the admission before he tenders evidence in that
regard. If the
matter is doubtful and arguable, counsel should convey that to the
trial judge in order to alert him to the necessity
of an enquiry into
the relevant circumstances, this is particularly important when the
judge is sitting with 10
assessors. When evidence of an accused
is tendered without more the presiding judge should be entitled to
assume that counsel
for the State has satisfied himself that there
was no reason for thinking that the admission was linked to an
inadmissible
confession in such a way that the admission itself
was inadmissible.In no case should counsel leave it to the trial
judge himself
to initiate an enquiry into the circumstances
surrounding the making of an admission when it 2 0 appears
that it
may have been part of an inadmissible confession.
Ultimately, however, whether or not counsel for the State follows
the correct
procedure it remains the overriding duty of the trial
judge to satisfy himself that an admission was properly
established
-to have been admissible in evidence before reliance is
placed upon it in convicting the accused."
It
is a trite principle of our law that the prosecution is not entitled
to question a witness about an inadmissible 30 confession
(see S v
Sebeian & Others 1997(1) SACR 626 (W) at 630C and cases there
cited).Mr Newton also relied upon this principle
in arguing against
the procedure contended for by the State inasmuch as he submitted
that there was a risk, which was likely to
eventuate in this case,
that in a trial-within-a-trial cross-examination of accused 2 would
be permitted, in accordance with the
exceptions enunciated in cases
such as S v Gxokwe & Others 1992(2) SACR 355 (C) at 357G-J on the
content of the document, with
regard to the question as to whether it
correctly recorded what accused 2 had stated to the policeman with a
view to testing the
10 accused's credibility thereon. He contended
that this would be irregular and highly prejudicial to the accused if
the document
was in fact an inadmissible confession. It therefore
had, so he argued, to be determined first whether or not the document
is or
is not a confession.
There
is force and merit in the submissions of Mr Newton
and I am persuaded thereby.
On
an analysis of the abovementioned decisions relied upon by Mr
Tarental for the State, it is clear that the Court in each of those
cases was dealing with a situation in 20 which the status of the
document there, either as being a confession or an admission as
the
case might be, was not an issue. These cases are therefore
distinguishable from the present one. Nor does it appear on analysis
of the text in Hiemstra's work at page 545, which was relied upon by
Mr Tarental, that the learned author is there dealing with
the
procedural question which presently concerns this Court.
The
ruling which I make therefore is that in the
circumstances of this matter, the determination should first be
made
as to whether the document constitutes a confession 3 0 or not. I
accede therefore to the request made on behalf of accused
2 in this
regard. Having heard counsel for accused 2 I am further persuaded
that in the circumstances of this case I should sit
at this stage
alone, without the presence of the assessors, in determining whether
or not the document constitutes a confession.
IMMERMAN,
AJ