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[2024] ZAKZPHC 92
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Mchunu and Another v S (AR39/2022) [2024] ZAKZPHC 92; 2025 (1) SACR 257 (KZP) (11 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR39/2022
In
the matter between:
THABANI
CYPRIAN MCHUNU
FIRST
APPELLANT
PRETTY
KHANYISILE KHUZWAYO
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Durban (Henriques J sitting as court of first
instance):
The
convictions of the first and second appellants and the sentences
imposed pursuant to the convictions are set aside.
JUDGMENT
STEYN
J (VAHED J and SINGH AJ concurring):
Introduction
[1]
Pivotal to this appeal is the admissibility of extra-curial
statements (“the statements”)
made by the two appellants
to Captains Lockem and Titus, two commissioned officers of the South
African Police Services. We are
called upon to determine whether the
court
a quo
was misdirected in its findings on the
admissibility of the statements. It is common cause that the
statements constituted confessions
and that the State, in the main,
relied on them to implicate the appellants in
the
crimes with which they were charged.
[2]
The appellants were accused 2 and 3 respectively during the trial.
They were convicted on two
counts: one of robbery with aggravating
circumstances and one of murder. They were each sentenced to 15
years’ imprisonment
on count 1 and to life imprisonment on
count 2
.
[3]
Leave to appeal against the convictions and sentences was granted by
the court
a quo
on 2 December 2016. The hearing of the appeal
was delayed due to a defective record which took some time to be
reconstructed.
[4]
When the appeal was heard, the following grounds of appeal were
raised by the appellants:
(a)
That the statements were made to the Cato Manor Serious Violent Crime
Unit and that the court
a quo
failed to critically evaluate
this fact in determining the admissibility of the statements;
(b)
That in assessing the statements, the court
a quo
ought to
have approached the evidence in the trial-within-a-trial more
cautiously;
(c)
That the evidence of the State witness, Mr Mdletshe, ought to have
established the probability
that the appellants were assaulted. His
evidence is indicative of how the members of the said unit dealt with
persons in their
custody. Mr Mdletshe’s evidence strengthened
the version of the appellants that they were assaulted whilst in
custody;
(d)
That the court
a quo
erred in overemphasising the poor quality
of the evidence adduced by the appellants during the
trial-within-a-trial;
(e)
That the statements of both the appellants ought to have been ruled
inadmissible by the court
a quo
as the requirements of s 217
of the Criminal Procedure Act 51 of 1977 (‘the Act’) had
not been met; and
(f)
In relation to the sentences, it was contended, inter alia, that the
court
a quo
underemphasised the personal circumstances of the
two appellants.
First
appellant
[5]
It was submitted on behalf of the first appellant that he had made a
statement to Captain Lockem,
but that what was overlooked by the
court
a
quo
was
that Captain Lockem had been briefed by the investigating officer,
Warrant Officer Ganess, about the case before he took the
statement
of the first appellant. Captain Lockem was a member of the very same
unit. Counsel for the first appellant submitted
that it was
undesirable for Captain Lockem to have taken the statement. Reliance
was placed on
S
v Gcam-Gcam
[1]
as well as on the dissenting judgment of Kruger J in
S
v Nzama and another.
[2]
It was submitted that Captain Lockem ought to have referred the first
appellant to a magistrate immediately upon realising that
the first
appellant wanted to make a confession. It was further submitted that
the court
a
quo
ought to have found that there was a thread of assaults being
committed by the unit running through this matter, and that the first
appellant ought to have been taken to a district surgeon before and
after the statement had been made. Importantly, so it was argued,
there were no safeguards in place to guard against a wrongful
conviction. The State failed to discharge the onus resting upon it
to
show that the requirements of s 217 of the Act had been met, in
particular that the first appellant made the statement freely
and
voluntarily.
[3]
[6]
It was further submitted that the first appellant’s failure to
testify on the merits in
the main trial and his election to remain
silent added nothing to the State’s case. His convictions ought
to be set aside.
In relation to the question of sentence, the first
appellant submitted that the court
a quo
ought to have found
that he was a good candidate for rehabilitation and ought not to have
imposed the prescribed sentences.
Second
appellant
[7]
On behalf of the second appellant, it was submitted that the court
a
quo
misdirected itself in ruling the statement of the second appellant as
being admissible. The second appellant had been assaulted
after her
arrest, and Inspector Magwaza, from the same unit, ought not to have
acted as interpreter when her statement was taken,
as he had also
acted as an interpreter for Captain Eva when he took the statement of
another accused. The second appellant made
similar submissions as the
first appellant regarding the State witness, Mr Mdletshe. It was
submitted that any evidence given by
him was illegally obtained and
in breach of s 35 of the Constitution,
[4]
given that he had also been assaulted at the time of his arrest. In
respect of the convictions, it was submitted that apart from
the
confession and the evidence of Mr Mdletshe, there was no evidence to
prove her guilt. In relation to the sentences imposed,
the second
appellant submitted that her personal circumstances were substantial
and compelling and the court
a
quo
ought
to have departed from the prescribed minimum sentences.
Respondent
[8]
The respondent, in its written heads of argument, submitted that the
convictions and sentences
of both appellants were in order and that
the court
a quo
had not misdirected itself on the facts or the
law. When the appeal was argued Ms
Xulu
, appearing on behalf
of the respondent, conceded that the statements were taken under
duress and that the evidence of Mr Mdletshe
ought to have been
critically evaluated. It was conceded that the court
a quo
failed to do so. In fact, so it was argued, no safeguards existed in
accepting the evidence of Captains Lockem and Titus and rejecting
the
versions of the appellants.
Facts
[9]
I turn now to summarise the salient facts of the case:
(a)
In 2009, the SAPS Joint Operations Centre (‘the JOC’),
situate at Boscombe Terrace,
Durban was robbed. Two men, one being
armed, entered the JOC and robbed Sergeant Thusi (‘the
deceased’) and Constable
Dlamini of 15 pistols, two Nokia cell
phones, and a set of keys. After accused 1, Mr Petros Sithole, was
arrested, an identification
parade was held and conducted by Officer
Van der Looy, where the deceased identified accused 1. Constable
Dlamini could not identify
anyone at the parade. The prosecution
alleged that after the identification, the appellants, together with
Ms June Rose Dlamini
(Ms June Dlamini), decided to kill the deceased
and in the early hours of the morning of 8 May 2009 they, together
with Ms June
Dlamini, went to the home of the deceased. It was
further alleged that the second appellant and Ms June Dlamini waited
outside
the home whilst accused 1 and the first appellant entered the
deceased’s home and fired several shots at him. He succumbed
to
his injuries.
(b)
The State contended that the first and second appellants, together
with accused 1 and 4, and Ms
June Dlamini killed the deceased. The
second appellant and Ms June Dlamini were arrested on 8 May 2009, ie.
the day of the murder
of the deceased.
(c)
After her arrest Ms June Dlamini surrendered the firearm which was
used in the murder of the deceased.
(d)
Constable Dlamini was an eyewitness to the robbery and testified
during the trial. The evidence
of Mr Mdletshe (who is the first
appellant’s cousin) was that he met the second appellant and Ms
June Dlamini at his home
in February 2009. Both women were dressed in
police uniform and they, together with the first appellant, had six
firearms in their
possession. His evidence was that the second
appellant took two of those firearms, whilst a person known to him as
Mbali took three
firearms. Mr Mdletshe was taken in for questioning
by the police in the early hours of the morning. He initially, during
cross-examination,
denied being assaulted by the investigating
officer and the officers of the Cato Manor Organised Crime Unit but
later admitted
that he suffered injuries to his knees and wrists and
a ruptured eardrum. When confronted with the injuries he suffered, he
implicated
the officers of the Unit, who had detained him for
questioning.
(e)
A trial-within-a-trial was held to determine the admissibility of the
statements. The challenge
to the admissibility of the statement made
by the first appellant was that he made it under extreme duress and
had been assaulted
by the investigating officer and Inspector
Thabethe. It was contended that he also signed a document which had
already been completed.
(f)
The second appellant challenged the admissibility of her statement on
the basis that she
too had been severely assaulted in the presence of
the investigating officer, Warrant Officer Ganess. She alleged that
she was
made to sit on the floor handcuffed while being suffocated.
She was forced to sign the statement.
(g)
Inspector Makhanya confirmed during the trial-within-a-trial that it
is customary for suspects
and arrested persons to be photographed
before and after they had made a statement to a commissioned officer.
He, in addition,
confirmed that it is also practice for the police to
take them to be examined by a doctor before and after the statement
is taken.
He confirmed that the second appellant was not taken to a
doctor for any examination, nor were any photos taken of her before
or
after she had made a statement to Captain Titus.
The
law
[10]
The
locus
classicus
in dealing with the admissibility of statements of accused persons
remain
R
v Barlin
.
[5]
What the court stated about the conduct of the police in obtaining a
statement in a fair manner is still relevant today. The learned
Chief
Justice held:
‘
Whether the
statement of an accused person to a police officer can be used
against him at the trial depends upon
whether
it is shown to have been freely and voluntarily made, and that is a
point to be decided by the trial Judge upon the facts
of each case.
The absence or presence of a prior caution; the fact that the
statement was elicited by questions, and the nature of those
questions;
the stage at which the statement was made, whether before
or after arrest, all these are circumstances to be taken into account
by the Judge in arriving at a conclusion. The rule rests upon a
satisfactory basis for it is founded on principle… A police
officer who has charged or arrested an accused person, or who has him
in his custody,
occupies
in regard to that person a very special position of authority - one
which may in itself strongly affect a weak or ignorant
man.
If the
Judge, bearing that fact in mind, considering the conduct of the
officer, and weighing all the circumstances, is not satisfied
that
the element of duress or undue inducement was absent, he will exclude
the statement. He will reject a relevant and important
piece of
evidence, but he will do so by the application of a well-recognised
judicial principle.
Whereas if he were to reject it because on general grounds he
disapproved of the conduct of the police officer and desired to
prevent such conduct in future, then he would be sacrificing legal
principle to administrative reform… For though a police
officer should be unhampered in the prosecution of enquiries while
investigating a crime, it is not desirable that he should question
those whom he has definitely decided to arrest or has arrested. The
right of interrogation at that stage is apt to be abused, and
questions are likely to be put, not to investigate the offence, but
to manufacture evidence against the person whom it has been
decided
to charge. The promulgation and enforcement of such regulations,
however, is a matter for administrative authority. They
cannot be
laid down by the courts as rules of law.
Our
duty in the case of any departure from the standard of conduct
desirable to be observed by police officers is to weigh that
departure in connection with all the facts of the case in arriving at
a decision as to the voluntariness of the statement thus
obtained.
’
[6]
(My emphasis.)
[11]
In my view the rights to remain silent and to be legally represented
are important pre-trial rights to be
adhered to when a confession is
made. I will return to these rights when I deal with the manner in
which the two police officers
informed the appellants of their
constitutional rights, but for now wish to endorse the
ratio
in
S v
Melani and others
[7]
regarding legal representation at the pre-trial stage:
‘
The
right to consult with a legal practitioner during the pre-trial
procedure and especially the right to be informed of this right,
is
closely connected to the presumption of innocence, the right of
silence and the proscription of compelled confessions
(and
admissions for that matter) which ‘have for 150 years or more
been recognised as basic principles of our law, although
all of them
have to a greater or lesser degree been eroded by statute and in some
cases by judicial decision’ (in the words
of Kentridge AJ in
Zuma’s
case).
In a very real sense these are
necessary procedural provisions to give effect and protection to the
right to remain silent and the
right to be protected against
self-incrimination. The failure to recognise the importance of
informing an accused of his right
to consult with a legal adviser
during the pre-trial stage has the effect of depriving persons,
especially the uneducated, the
unsophisticated and the poor, of the
protection of their right to remain silent and not to incriminate
themselves.
This offends not only the concept of substantive
fairness which now informs the right to a fair trial in this country
but also
the right to equality before the law. Lack of education,
ignorance and poverty will probably result in the underprivileged
sections
of the community having to bear the brunt of not recognising
the right to be informed of the right to consultation with a lawyer.’
(My emphasis.)
[12]
I align myself with the minority judgment of Kruger J in
S
v Nzama and another
,
[8]
especially when he said:
‘
[32]
The assistance by fellow police officers in assisting to take a
confession, particularly one from the same
unit as the investigating
officer, has been repeatedly criticised -
S v Latha and Another
1994 (1) SACR 447
(A);
S v Mafuya and Others (1)
1992 (2) SACR
370
(W); and
S v Khoza en Andere
1984 (1) SA 57
(A). That
approach is all the more applicable
in casu
. Captain Hodgett
(often in the presence of Inspector Mhlongo) took both accused’s
confessions in a single room, whilst both
sat together, and this was
done shortly after their arrest, and after both the accused had been
taken on an almost four-hour journey,
where the accused contended
that they were assaulted. Neither the investigating officer nor
Captain Hodgett who were assisted,
offered to take the accused to the
magistrate for the recording of such confessions, notwithstanding
accused 2 having specifically
requested to be taken to one.
[33]
The court a quo accepted that the overall onus rested on the State to
prove the admissibility of the confessions
beyond a reasonable doubt.
That apart, and arising from the accuseds’ attack on the
confessions on constitutional grounds,
the court
a quo
,
relying on the dicta in
S v Mathebula and Another
1997 (1)
SACR 10
(W)
(1997 (1) BCLR 123)
, held that the onus rested on the
accused to show that their constitutional rights actually existed and
were indeed infringed.
No finding was, however, made on whether this
onus was discharged or not, inasmuch as the court found that their
constitutional
rights were not infringed, and that they were indeed
appropriately advised of their rights. The eventual decision to admit
the
confessions appears to have been reasoned largely on the weighing
of the testimony heard in the trial-within-a-trial, and on the
credibility of the witnesses.’
[13]
In the present matter the confessions are the sole evidence
implicating the appellants. Our courts have repeatedly
called for a
cautious assessment by the presiding judge when that is the case.
[9]
[14]
The court
a
quo
relied on the evidence of Mr Mdletshe. However a critical analysis of
his evidence ought to have resulted in a finding that he
had been
severely assaulted by the officers from the Unit, and that he was in
a state of fear when he tendered the information.
This is evident
from his cross-examination when he was asked about being fearful. His
response was, ‘…if you go to
the police station and you
are with police officers at night, there is no way you cannot be
afraid…’. The circumstances
surrounding the obtainment
of his statement strengthen the view that the statement was part of
the fruit of the poisoned tree.
[10]
[15]
The court
a
quo
ought
to have cautiously considered the manner in which the police obtained
information from Mr Mdletshe. Mr Mdletshe could only
have been a
suspect and he ought to have been informed of his right to remain
silent. No ordinary witness would be brought to the
police station in
the early hours of the morning and be interrogated in those
circumstances. I have serious misgivings of the timing
of Mr
Mdletshe’s questioning. The Supreme Court of Appeal in
Komane
v S
,
[11]
referring to
S
v Sebejan,
[12]
held that an accused’s right under s 35(1) of the Constitution,
i.e. not to be compelled to make a confession or admission
applies
‘from the inception of the criminal process’.
[16]
In
S v
Magwaza
,
[13]
the Supreme Court of Appeal echoed the importance of a fair criminal
process. Ponnan JA stated the following:
‘
[17]
It is clear that the rights in question exist from the
inception of the criminal process, that is, from arrest,
until its
culmination (up to and during the trial itself). In the case of the
appellant’s co-accused, accused 1, the state
produced what was
described as a standard constitutional-rights warning form, to which
was appended his signature as proof that
he had indeed been warned.
Not so in respect of the appellant. Neither Mbatha nor Govender was a
model of clarity as to exactly
what was conveyed to the appellant.
But, even were it to be accepted that the cumulative effect of their
evidence is that there
was a warning of sorts, it appears to have
been woefully inadequate. For, whilst there is some reference in the
evidence of
Govender and Mbatha to the
rights to silence and legal representation, there is no
indication
that the appellant was warned of the consequence of not remaining
silent (the logical
corollary
of the right to silence) or of his entitlement to the services of a
legal representative at state expense.
There
was some suggestion in argument from the bar in this court that such
deficiencies as there were came to be cured by the rather
detailed
warning by Capt Eva. But what is readily apparent from the document
introduced into evidence is that, by the time the
appellant had been
warned by Capt Eva, he had already confessed to the robbery. It is
important to appreciate that a constitutional
right is not to be
regarded as satisfied simply by some incantation which a detainee may
not understand.
The purpose of making a
suspect aware of his rights is so that he may make a decision whether
to exercise them, and plainly he cannot
do that if he does not
understand what those rights are
(
R
v Cullen
(1993) 1 LRC 610 (NZCA) at
613G – I). It must therefore follow that the failure to
properly inform a detainee of his constitutional
rights renders them
illusory. What must govern is the substance of what the suspect can
reasonably be supposed to have understood,
rather than the formalism
of the precise words used (
R v Evans
(1991) 4 CRR (4th) paras 144, 160 and 162).
[18] If
it is accepted, as I think it must be,
that the appellant was not
properly warned of his constitutional rights, then it must follow
that there was a high degree of prejudice
to him because of the close
causal connection between the violation and the conscriptive
evidence. For, plainly, the rights infringement
resulted in the
creation of evidence which otherwise would not have existed.
And
as it was put in
R v Ross
supra at 379 –
‘
the
use of any evidence that could not have been obtained but for the
participation of the accused in the construction of the evidence
for
the purposes of the trial would tend to render the trial process
unfair’.’
[14]
(My
emphasis.)
[17]
I turn now to the relevant exhibits placed before the court
a quo
.
It is those that contain the confessions and deal with how the
officers informed the appellants of their rights. Exhibit “V”
was the confession form that was completed for the first appellant.
It reads as follows:
‘
I have been
informed and understand that:
3.1
I have the right to remain silent.
3.2
The consequences of making a statement are that anything I say may be
taken down in writing and may
be used as evidence in court.
3.3
I have the right to consult with a legal practitioner of my choice.
3.4
I have the right to be provided with the services of a legal
practitioner by the State, where substantial
injustice would
otherwise result.
3.5
I have the right to try to arrange to consult with a legal
practitioner to assist me to decide what
to do.
3.6
I have the right to institute bail proceedings.
3.7
This is a serious matter and I must be careful with what I choose and
what I say.’
[15]
[18]
It is clear from the content of the document that the first appellant
was not given an opportunity to consider
each of the said rights, nor
given a chance to respond to each warning. In fact, no room is left
for any answer on the form. Instead,
it is noted that he was informed
and that he understood. What then follows is simply a range of
answers. In my view, given the
ramifications of any statement made at
the pre-trial stage, the appellant, at the very least, ought to have
been given an opportunity
to answer each question.
[19]
The form allows for a list of possible answers. A careful analysis of
the options show that there is no separate
option to elect and choose
a legal practitioner:
‘
After being warned
as I have acknowledged above, I elect to:
4.1
Remain silent.
4.2
Remain silent now and consult with a legal practitioner.
4.3
Make a statement which will be taken down in writing below.
4.4
Answer questions which will be taken down in writing below.’
[16]
The officer marked 4.3
but none of the other options. It is not clear to me what is meant by
option 4.2. If this option was intended
to deal with the accused’s
right to choose and exercise his right to a legal practitioner, it
makes a mockery of the right.
[20]
I now turn to the evidence of the officer who completed the form, ie.
Captain Lockem. He stated the following
in his evidence:
‘
Well, I explained
his rights first and that was done at 13h08. I then asked him what
happened, spoke to him in English,
and
then he just told me the story what happened
,
he told me his story, and then I started to write it down.’
[17]
(My emphasis.)
In
cross-examination, the following was asked:
‘
Question:
Was there particular questions that you put to the accused in terms
of eliciting information from
him?
Answer:
When I first interviewed him?
Question:
Yes.
Answer:
I would say, “Where did you go,” or certain things like
that but not
when I was writing. I don’t think I put questions
to him when I was writing it down.’
[18]
It
is evident from Captain Lockem’s
viva voce
evidence that
he had put questions to the first appellant to commence the process.
However, no questions were written down by him,
nor did he write down
the answer to each of his questions. The confession form should
reflect the entire procedure followed and
what was said. Whatever was
said should be contemporaneously noted. If the questions put are not
noted, it is not possible for
the court to determine whether any
undue influence was exerted over the accused.
[21]
What is more disturbing from Captain Lockem’s evidence is that
he knew about the facts of the case
prior to the first appellant
making the confession. In cross-examination, he was asked:
‘
Question:
Prior to accused 2 being handed to you by Inspector Ganess, were you
aware of the background of
this matter?
Answer:
I knew that there was a robbery at Boscombe Terrace or that firearms
were taken
and I knew that a witness in that matter was killed in
Inanda, yes.’
[19]
[22]
Once more, the impression was created by Captain Lockem that he had
no idea that the statement might, in
actual fact, amount to a
confession. According to him, he merely went to the office to assist
the investigating officer and was
then requested to take down a
warning statement. Not only is the version tendered by Captain Lockem
highly improbable, but there
is also no explanation as to why he did
not stop in taking down the statement when he realised that it
amounted to a confession
and realised that the proper procedures were
not in place.
[23]
I now turn to the statement of the second appellant as per Exhibit
“W”. It is evident from the
document completed by Captain
Titus that he, at least, identified himself and explained to the
second appellant that he is not
part of the investigating team.
Ex
facie
the document, the second appellant was informed that if she
had been assaulted by the police, then she could declare by whom and
under what circumstances. Reference is made to the various rights
that had been explained to her. At para 10.2 of the form, it
is then
noted: ‘Do you wish to exercise either of the rights,’
and her answer is ‘No’. What then follows
on the form is
information regarding a minor, which was apparently answered by the
appellant, who is a major. The answers were
then deleted. No
explanation was given as to why it was completed in the first place.
At least the form used by Captain Titus had
more options. This form
again provides a question about any assault, which he then asked her,
and she responded in the negative.
She was also asked whether she had
previously made a statement of a similar nature. She answered again
in the negative. Despite
her answer, she was asked why she wished to
repeat the earlier statement.
[24]
Importantly, given the fact that the confession was challenged as not
being made freely and voluntarily,
the court
a quo
ought to
have looked for safeguards, eg. the medical examination before and
after these confessions.
[25]
I am mindful that Judges’ Rules are regarded as administrative
directives to be observed by the police.
They are, however, not
without effect. A breach of these Rules may influence the court as to
whether an incriminating statement
(in this instance a confession)
had been made freely and voluntarily.
[20]
[26]
In the absence of any photographs taken of the appellants and not
being medically examined, it is not possible
to determine whether the
kind of clothing worn by them would have obscured any visible
injuries. Usually, a medical report would
either have supported the
allegations of any assault or refuted it. In
casu
, no such
examinations ever took place. No explanation was given as to why the
appellants were not taken to a medical doctor both
before and after
their confessions.
[27]
I have considered the conduct of the commissioned officers most
anxiously, especially having regard to the
current state of crime in
our country, but absent the voluntariness of these confessions that
were tendered to the police, they
ought to have been excluded as
being inadmissible evidence before the court. The court
a quo
nevertheless ruled that the statements were admissible. In my view,
Captains Lockem and Titus paid lip service to the constitutional
rights of the first and second appellants. Had Mr Mdletshe’s
evidence been critically evaluated, the court
a quo
would not
have arrived at the conclusion it did when it held:
‘
The evidence of
the State witnesses in the trial-within-a-trial was credible and
there were no inherent improbabilities in their
version. It was for
these reasons that the confession was ruled admissible.’
[21]
[28]
Lastly, it deserves mention that it is regrettable and unfortunate
that the amendment to s 217(1)
(a)
has not as yet come into operation, because if it had, it would have
impacted upon the conduct of the officers investigating this
case.
[22]
The amendment, in
all likelihood, would have resulted in a procedure that aids and
supports due process by not allowing police
officials, albeit
commissioned officers, to take any confessions.
[29]
In my view, given the finding that the confessions were not
admissible evidence, there is no evidence to
sustain the convictions
of both appellants. Consequently, I need not deal with the challenges
to the sentences imposed.
[30]
Accordingly, the appellants’ appeals against their convictions
and sentences succeed. In the result,
the following order is issued:
The
convictions of the first and second appellants and the sentences
imposed pursuant to the convictions are set aside.
STEYN
J
VAHED
J
SINGH
AJ
CASE
INFORMATION
Date
of Hearing: 2 August 2024
Date
Delivered: 11 October 2024
Appearances
Counsel
for the First Appellant:
Ms
D Barnard
(Heads
of Argument prepared by Mr L Barnard)
Cell:
084 596 2016
Counsel
for the Second Appellant :
Mr
T P Pillay
Instructed
by:
Durban
Justice Centre
Cell:
082 925 2689
Counsel
for the Respondent:
Ms
G E Xulu
Instructed
by:
Deputy
Director of Public Prosecutions
Southern
Life Building
DURBAN
Tel:
031 – 334 5114
[1]
S
v Gcam-Gcam
[2015]
ZASCA 42
;
2015 (2) SACR 501
(SCA) para 49.
[2]
S
v Nzama and another
2009
(2) SACR 326
(KZP) para 32.
[3]
Section
217(1) of the Act reads: ‘(1) Evidence of any confession made
by any person in relation to the commission of any
offence shall, if
such confession is proved to have been
freely
and voluntarily
made by such person in his
sound
and sober senses
and without having been
unduly
influenced
thereto, be admissible in evidence against such person at criminal
proceedings relating to such offence…’ (My emphasis).
[4]
The
Constitution of the Republic of South Africa, 1996 (hereinafter
‘Constitution’).
[5]
R
v Barlin
1926
AD 459.
[6]
Ibid
at 465-466.
[7]
S
v Melani and others
1996 (1) SACR 335
(E) at 347e-h.
[8]
S
v Nzama and another
2009
(2) SACR 326 (KZP).
[9]
See
S
v Zulu and another
1998 (1) SACR 7
(SCA) at 13d-e;
S
v Radebe and another
1968
(4) SA 410
(A) at 414D-E.
[10]
See
s 35(5) of the Constitution which reads: ‘Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render
the
trial unfair or otherwise be detrimental to the administration of
justice.’
[11]
Komane
v S
[2022]
ZASCA 55
para 29.
[12]
S v
Sebejan and others
1997 (1) SACR 626
(W) at 633f-g where Satchwell J stated: ‘The
crux of the distinction between the arrested person and the suspect
is that
the latter does not know without equivocation or ambiguity
or at all that she is at risk of being charged.’
[13]
S
v Magwaza
[2015]
ZASCA 36; 2016 (1) SACR 53 (SCA).
[14]
Ibid
paras 17-18.
[15]
Volume
7 at 512, lines 3-13.
[16]
Volume
7 at 512, lines 18-22.
[17]
Volume
3 at 181, lines 5-9.
[18]
Volume
3 at 181, lines 13-17.
[19]
Volume
3 at 188, lines 13-16.
[20]
S
v Sampson and another
1989
(3) SA 239 (A).
[21]
See
record at 605, lines 9-11.
[22]
See
s 217(1)
(a)
of the Act and the amendment to it by
s 11
of the
Criminal Procedure
Amendment Act 86 of 1996
.