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1990
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[1990] ZASCA 21
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S v Ngqandu and Others (611/88) [1990] ZASCA 21 (22 March 1990)
611/88
N v H
NGQANDU & TWO OTHERS v THE STATE
SMALBERGER, JA -
611/88
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
MTUTUSELI NGQANDU
First Appellant
MNCEDISI NIMROD
BIKA
Second Appellant
NKULULEKO RICHARD SODODO
Third Appellant
and
THE STATE
Respondent
CORAM
: VAN HEERDEN, SMALBERGER,
JJA,
et
NICHOLAS, AJA
HEARD
: 26 FEBRUARY 1990
DELIVERED
: 22 MARCH 1990
JUDGMENT
SMALBERGER, JA -
The three appellants, together with four other accused, appeared before
FOXCROFT, AJ, and two
/2
2 assessors in the South Eastern Cape Local Division on a
charge of murder. The charge arose from the death of one Lungele Nicholas
Manene
("the deceased") at Port Elizabeth on 22 September 1985. The appellants were
respectively accused 1, 3 and 4 at the trial.
At the conclusion of the trial the
first appellant was convicted of murder without extenuating circumstances and
sentenced to death.
The second and third appellants were both convicted of
assault with intent to do grievous bodily harm, and each was sentenced to
three
years' imprisonment wholly suspended. The remaining accused were acquitted (some
having been discharged at the end of the State
case). The appellants
unsuccessfully applied to the judge a
quo
for leave to appeal, but were
subsequently granted leave by this Court to appeal against their
convictions.
/3
3 It is not in dispute that on the night of 22 September 1985
the deceased, a policeman, who was off-duty at the time, was set upon
by a group
of people in a street in Soweto, a black township in Port Elizabeth, and
severely and brutally assaulted. The deceased's
attempts to excape from his
assailants were thwarted, and he was ultimately rendered helpless and set
alight. The cause of his death
was multiple injuries. The post-mortem
examination revealed,
inter alia
, that he had 90% burns to his body,
multiple stab wounds, including stab wounds of the heart, both lungs and the
abdomen, and fractures
of the jaw, nose and skull.
At the conclusion of a
protracted trial-within-a-trial, the trial court ruled admissible certain
confessions made by the three appellants,
notwithstanding their claims that the
confessions had not been freely and voluntarily made. In the case of
/4
4 the second and third appellants it is only their
confessions which link them to the events surrounding the deceased's death. The
first appellant is further implicated in such events by the evidence of one
Nkotove. He claimed that on the night the deceased was
killed the first
appellant came to a shop where he (Nkotove) was working. The first appellant had
blood spots on his face, and he
told Nkotove and others in the shop that "they
had just killed Manene". This was a reference to the deceased. The first
appellant
confirmed this on a visit to the same shop the following day when he
produced a newspaper cutting which contained a report about
the deceased's death
and a photograph of the deceased. The tracksuit top which Nkotove claimed the
first appellant was wearing on
the night in question was later found to have the
blood of a primate on it.
/5
5 The trial court accepted Nkotove's evidence. On the
strength of such evidence and the confession made by the first appellant, the
court held that the first appellant had actively participated in the attack upon
the deceased with the intention of killing him,
and was therefore guilty of
murder. It found, further, on the strength of their confessions, that the second
and third appellants
had during the course of the events immediately preceding
the deceased's death, assaulted the deceased by respectively hitting him
with a
stone and throwing stones at him, but that neither had had the necessary intent
to kill - hence their convictions of assault
with intent to do grievous bodily
harm.
The present appeal 'hinges mainly on the admissibility of the confessions
made by the three appellants, more particularly on the question
whether
/6
6 they were freely and voluntarily made. It was conceded by
Mr Kuny, for the appellants, that if the confessions were rightly admitted
the
appellants' convictions must stand and their appeals must fail. Mr Kuny also
abandoned, rightly in my view, any suggestion that
the confessions had not been
correctly interpreted. He contended, however, that the trial court erred in
holding that the confessions
admitted in evidence were freely and voluntarily
made. It therefore becomes necessary to consider the evidence at the
trial-within-a-trial
relevant to this contention.
A great deal of evidence was devoted to the events which occurred between the
night of 23/24 September 1985 and the time the three
appellants, and certain
other accused, made confessions. On the night in question police raids were
carried out at the homes of persons
suspected of having participated in
/7
7 the killing of the deceased. The homes of the three
appellants were amongst these. The police were supported by members of the
defence
force. Various suspects, including the three appellants and their
erstwhile co-accused, were taken from their homes and paraded in
front of the
lights of police vehicles with a view to their possible identification by
informers or potential witnesses (who remained
hidden from sight). Those who
were detained on suspicion of their involvement in the deceased's death were
thereafter taken to a
police station referred to in evidence as "Berry's
Corner". The appellants, their co-accused and the defence witnesses all
testified
to assaults upon them either during the course of the events that
occurred that night, or at Berry's Corner. Their individual experiences
differed, and the precise nature and extent of the assaults alleged by them
varied from
/8
8 person to person. Much of their evidence in this regard
stands unrefuted, because they were unable to identify the alleged culprits,
thereby creating difficulties in the way of the State in leading evidence in
rebuttal.
On the morning of 24 September 1985 the detained suspects were
handed over to detectives of the Murder and Robbery Squad responsible
for
investigating the circumstances of the deceased's death (the investigating
team). There appears to have been virtually no prior
contact between the
suspects (including the appellants) and the members of the investigating team.
The appellants (and others) were
taken to Louis le Grange Square. The
headquarters of the investigating team were situated there. They claim that they
were further
assaulted there in order to induce them to confess to the killing
of the
/9
9
deceased. Their allegations in this regard were denied by the policemen whom
they sought to implicate.
It was argued that the evidence before us
established that even before the appellants and others were taken to Louis le
Grange Sguare
they had been subjected to assaults on a systematic pattern with a
view to ultimately extracting confessions from them. This, it
was contended,
heightened the probability that they were similarly dealt with at Louis le
Grange Square. It can be accepted that
between the time of
their initial detention and when they were handed over
to the
investigating team the appellants and others were, regrettably, subjected to
heavy-handed treatment, and perhaps even assaults,
by certain members of the
police and defence forces. This must be borne in mind as part of the background
to the making of the confessions.
However, the evidence does not support
/10
10
the suggestion that there was a discernible pattern of assaults designed to
elicit confessions from the various suspects. The alleged
earlier assaults, with
one or two exceptions, did not involve members of the investigating team. The
witnesses who testified to such
assaults were, in the main, unsatisfactory
witnesses, and their allegations were denied by the members of the investigating
team
they sought to implicate. Although part of the overall picture, the
appellants do not seriously suggest that the earlier assaults
were instrumental
in making them confess. They claim that it was the assaults upon them at Louis
le Grange Square that caused them
to do so. The proper approach to follow to
determine whether each appellant's confession was freely and voluntarily made,
and therefore
correctly admitted in evidence, is to have regard to the
circumstances pertaining to the
/11
11 confessions made by each individual appellant. To this
end the following must be considered: the claims of assault made by each
appellant; contrary denials by the police witnesses; findings of credibility by
the court a
guo
; and the general probabilities. Regard must also be had
to the incidence of the onus of proof. It is common cause that the first
appellant was interrogated at Louis le Grange Square on the morning of 24
September (although the precise events that occurred there
are in dispute). In
the afternoon he was handed over to Captain Kriel ("Kriel"), to whom he made a
written statement. The following
morning he accompanied Kriel to the scene of
the crime where he allegedly pointed out certain spots. Shortly after he
returned from
doing so he was taken to a magistrate, Mr Smith ("Smith"), to whom
he made a further written statement. The admissibility of the
statements
made
/12
12
to Smith and Kriel, and the pointing out to the latter, were challenged at
the trial-within-a-trial.
It appears ex
facie
the statement made by
the first appellant to Smith (which amounted to a confession, and to which I
shall refer as such), that it
was freely and voluntarily made. It was common
cause that having regard to the provisions of
s 217(1)(b)(ii)
of the
Criminal
Procedure Act 51 of 1977
the onus rested upon the first appellant to prove the
contrary. In the case of the statement to Kriel the onus was on the State to
prove the necessary pre-requisites for its admissibility. (The trial court ruled
that the evidence in relation to the pointing out
to Kriel was inadmissible, and
nothing further need be said about the matter.)
The first appellant testified
that he had been assaulted at the time of his initial detention as
/13
13 a suspect, but not at Berry's Corner. When eventually
taken to Louis le Grange Square he was interrogated by Detective Warrant
Officer
Strydom ("Strydom") and Detective Constable Oliphant ("Oliphant"). He was shown
a newspaper cutting with a picture of a person
(presumably the deceased), and
was asked if he knew who the person was. When he denied that he knew the person
he was struck by Oliphant
with an open hand in the presence of Strydom. He was
told to undress, which he did. He was later again struck by Oliphant. By that
time Strydom had left. While being struck by Oliphant, Detective Sergeant
Ntabeni ("Ntabeni") entered the room where they were. While
attempting to ward
off Oliphant's blows the first appellant fell, whereupon he was kicked by
Ntabeni. He was told to tell the truth,
and that he would be beaten until he did
so. He was then taken to another room which had
/14
14 blood on the walls. There he was further assaulted by
Oliphant and Ntabeni. At that stage Detective Constable Ngoji ("Ngoji") arrived.
He told the others to leave the first appellant alone. Ngoji then took the first
appellant to Strydom. He denied having any knowledge
of the deceased's death,
but was told by Strydom that he should make a statement implicating himself, and
that he would be further
assaulted if he did not do so. He was not given details
of what he should say. He was then taken to Kriel to make a statement. He
was
warned beforehand not to tell Kriel, that he had been assaulted. He made a
statement to Kriel. He did so because of the assaults
upon him. He was not
assaulted again thereafter. The following day he made a statement to Smith. He
was again warned by Strydom before
going to Smith not to mention that he had
been assaulted. The statement to Smith was also
/15
15 made because of the assaults upon him, and the threat of
further assaults.
According to the first appellant, when he made his
statement to Kriel he had red marks or weals over the front of his chest and
stomach
and grazes on his elbows. Both his feet were swollen and visibly injured
as a result of his having been hit on his feet with sjamboks.
His feet were also
blistered where he had been burnt with cigarette ends. There was dried blood on
his feet as well. These marks
were allegedly caused during the assaults upon him
at the time of his initial detention. Because of the injuries to his feet he
could
not wear shoes, and walked with difficulty. When he made his confession to
Smith the following day he could still not walk properly,
and this must have
been obvious to Smith.
/16
16
The first appellant's evidence was
denied by
Strydom, Oliphant and Ntabeni. It was never put to
Ngoji that he had told
Oliphant and Ntabeni to stop
assaulting the first appellant. According to
Kriel he
asked the first appellant whether he had been assaulted
or
threatened by anyone to make a statement. To this
the first appellant replied
"No". When asked if he
had any injuries the first appellant replied that
he
had injuries to his back and right foot. He was asked
to point these out whereupon Kriel noted:
"Daar was 'n 2 sentimeter velkneusing op die linkerkant van die rug en h 2
sentimeter velkneusing op die kant van die
regtervoet."
He had no other visible signs of
injury. Kriel
enquired from the first appellant as to the cause of
his injuries. The first appellant told him that he
had been assaulted at the time of his initial detention
earlier that morning. He added that the fact that he
/17
17 had been assaulted had not influenced him to make a
statement.
Smith testified that when the first appellant came to his office
to make his confession he had no visible signs of injury. In the
course of
introductory questioning the first appellant denied that he had been assaulted
or threatened to make a statement, and disclaimed
having any injuries. He also
stated that he had not been influenced in any way to make a statement. Smith did
not observe any signs
of injury on the first appellant, although he did not
specifically examine him for injuries as the first appellant had not alleged
any. It was never suggested to Smith (who testified before the first appellant)
that the first appellant had walked with difficulty
and that he (Smith) must
have observed this.
The trial court gave a very brief judgment on
/18
18 the question of the admissibility of the contested
statements. It specifically refrained from dealing in detail with the
credibility
of the various witnesses. It ruled that the confession made by the
first appellant to Smith was admissible, holding that there was
"no doubt" that
the first appellant had failed to discharge the onus upon him of proving that
his confession was not freely and voluntarily
made. The statement made by the
first appellant to Kriel, and the subsequent pointing out, . were ruled
inadmissible. The reason
given was that "(w)e are not convinced that the
injuries which accused no 1 received at the time of the arrest, however slight,
played
no part in his making of a statement to Captain Kriel some hours later",
and that the same consideration applied to the pointing
out. In a later passage
in its judgment the trial court also makes mention of the statement having
/19
19 been made "only a matter of hours after accused no 1
was apparently ill-treated in some minor way at the time of his arrest".
I am unpersuaded that the trial court erred in admitting the first
appellant's confession to Smith. If anything the trial court was
unduly cautious
in excluding the first appellant's statement to Kriel, although undoubtedly that
was the better side on which to
err. The first appellant was an extremely poor
witness. His own counsel was obliged to concede that he was not a credible
witness.
He grossly exaggerated the extent of the assaults upon him at the time
of his detention, as well as the extent of his injuries. According
to him his
injuries were far more severe than recorded by Kriel. There is no reason why
Kriel would have noted some, and not all,
of his injuries. His claim that he
walked with difficulty when he went to
/20
20
make his confession finds no support in the evidence of Smith. Implicit in
the findings of the trial court is a rejection of the first
appellant's evidence
of the extent of the assaults upon him and their consequences. Reference was
made to the first appellant having
been "ill-treated in some minor way" and
having suffered "slight" injuries - a far cry from the first appellant's own
evidence on
this score. There was clearly never any acceptance of the first
appellant's evidence by the trial court, nor any rejection of that
of the State
witnesses. There are also contradictions, and improbabilities in the first
appellant's evidence. He contradicted himself
on the question whether Strydom
was present when he was first assaulted at Louis le Grange Square, and on the
details of the assault
upon him there. He claimed that he did not tell Smith
that he had been assaulted because he was told not to. Yet
/21
21 the same admonition did not prevent him from telling
Kriel that he had been assaulted. (In all probability the assault upon him
at
the time of his initial detention was a minor one, and its effects had worn off
by the time he saw Smith - hence the reason for
not mentioning it to Smith). He
also stated that he had refrained from telling Smith that he had been assaulted
because he was afraid
that the police would come to hear of it if he told him.
This contradicted his earlier evidence that he believed that the police
would
remain unaware of anything he told Smith. He claimed that Strydom had told him
to make a statement falsely implicating himself,
but never told him what to say.
This is highly improbable. Strydom had no means of knowing whether he would make
a statement which
remotely coincided with the facts, and if it did not, the
statement would have been worthless. One
/22
22
would therefore have expected Strydom to have told him what to say. In all
the circumstances the f irst appellant quite clearly failed
to discharge the
onus resting upon him. As previously mentioned, it is conceded that if the first
appellant's confession was correctly
admitted his conviction must stand. It
follows that his appeal must fail.
It will be convenient to deal next with the third appellant. It is common
cause that he made a statement to Lieutenant Jonker ("Jonker")
early on the
afternoon of 25 September, and that on the following day he accompanied Major
Oosthuizen ("Oosthuizen") to the scene
of the murder where he pointed out
certain spots to him. Although Jonker and Oosthuizen both testified before the
third appellant
I propose to deal with the latter's evidence first.
According to the third appellant, he was not
/23
23
assaulted at the time of his detention. Later, at Berry's Corner, he was
questioned about the deceased's death and thereafter assaulted.
A piece of tube
was placed over his face and he was suffocated. In addition he was hit and
kicked. He was unable to identify his
assailants. Later he was taken to Louis le
Grange Square. There he was initially questioned about the deceased's death by
Ngoji.
He denied all knowledge of it. He was ordered to undress and to lie down
on his stomach. He did so, with his head turned and one
cheek flat on the
ground. Ngoji held his hands behind his back, and ground with one foot on the
third appellant's other cheek. Two
other policemen, one white and one black,
then entered the room where the third appellant and Ngoji were. The third
appellant was
not able to identify either of them. The white policeman struck
him in the face twice with
/24
24
an open hand. He then left the room and returned with a knobkierie with which
he proceeded to hit the third appellant several blows
on each arm. The blows
were hard and caused the third appellant's forearms to swell visibly. Thereafter
Ngoji throttled him and threatened
to throw him out of the window. The white
policeman then placed a piece of tube over his face which suffocated him. This
was repeated
a number of times until he eventually agreed to make a statement.
The white policeman then apologised to him for the assaults. After
that he was
taken to Jonker by Ngoji. He was crying, and his face and body were red and
swollen in places as a consequence of the
assaults upon him. Jonker enquired
from Ngoji whether he (the third appellant) had been assaulted. Jonker himself
never assaulted
him. He then proceeded to make a statement to Jonker. He did not
do so freely and voluntarily
/25
25
but because he had been assaulted. He also claimed that he was f orced to go
and point out places to Oosthuizen, and denied that he
had directed Oosthuizen
to the scene of the crime. He further denied that Oosthuizen had asked him
whether he had been assaulted
or threatened to do a pointing out.
Jonker's
evidence was to the following effect. He interviewed the third appellant in his
office. After having been duly warned and
informed of his rights, the third
appellant elected to make a statement. He did so freely and voluntarily and
without being influenced
thereto in any way. When the third appellant was
brought to him he was not crying, nor did he have any visible signs of injury
apart
from a wound on his left side. When asked about it, the third appellant
stated that it had been caused by a fall from a bicycle.
(This was subsequently
confirmed
/26
26
by the third appellant when he testified.) The following day he handed the
third appellant over to Oosthuizen after he had declared
his willingness to go
and point out the scene of the crime. According to Oosthuizen the third
appellant confirmed to him his willingness
to do so. Asked if he had been
assaulted or threatened he replied "No". Thereafter the third appellant went and
pointed out certain
places. Throughout the third appellant was entirely at his
ease.
The trial court held that the State had discharged the onus of proving that
the third appellant's statement, and subsequent pointing
out, had been free and
voluntary. It rejected the third appellant's evidence on the basis that he had
not told the truth, and accepted
the evidence of the State witnesses. It
accordingly ruled both the statement and
/27
27 the pointing out admissible.
There are in my view no
grounds for interfering with the findings of the trial court. It has not been
shown that the court misdirected
itself in any respect. The third appellant was
a poor and demonstrably untruthful witness. Although he claimed that Ngoj i had
assaulted
and threatened him - to the extent that he was one of the main actors
in the whole drama - it was never put to Ngoji when he testified
that he had
done so. No explanation was forthcoming for this failure. The only inference to
be drawn is that the third appellant's
evidence in this respect was false and an
afterthought. Likewise Oosthuizen's evidence was never challenged, and it was
only when
the third appellant was cross-examined thereon that he sought to
dispute certain important aspects thereof. The third appellant grossly
exaggerated the assaults,
/28
28
if any, upon him. Jonker refutes his evidence as to the state he was in when
he made his statement. The trial court, having had the
advantage of seeing and
hearing the witnesses, accepted Jonker's evidence. The third appellant's
evidence that after having assaulted
him quite severely to extract a confession
from him, the unidentified white policeman apologised to him for doing so is
highly improbable.
Equally so is his evidence that when he appeared before
Jonker, obviously distressed and bearing clear marks of an assault, Jonker
would
have asked Ngoji if he had been assaulted. In the circumstances the third
appellant's appeal cannot succeed.
I come finally to the second appellant. He claimed that he was assaulted both
at the time of his detention and subsequently at Berry's
Corner. There he was
told to make a statement implicating himself.
/29
29 He was later taken to Louis le Grange Square. He was
placed in a room and left there all day handcuffed to a chair. The following
day
he was taken to a room with blood-spattered walls. There a black policeman
(probably Detective Constable Faleni ("Faleni")) assaulted
him with his fists.
He was then asked if he knew anything about "mice". This was apparently a
reference to a piece of electrical
equipment. He was told to lie down on the
floor. His hands and feet were handcuffed. Electric leads from a box were placed
on his
fingers and electric current was passed through them, shocking him. This
was later discontinued, and a piece of tube was placed over
his face. All this
was done in order to get him to make a statement. Eventually, because of the
treatment meted out to him, he agreed
to make one. He was then taken to
Lieutenant de Lange ("de Lange") to whom he made a
/30
30 statement. He was told not to tell de Lange that he had
been assaulted. Thereafter he accompanied de Lange to the scene of the
crime
where he pointed out certain spots. According to the second appellant the
pointing out was based not on his own knowledge of
the events surrounding the
deceased's death, but on what he had heard and his acquaintance with the area in
question. The following
day he was taken to a magistrate, Mr Lubbe ("Lubbe"), to
whom he made a further statement. This statement was also made because of
the
previous assaults upon him, and not freely and voluntarily.
The State led no evidence in rebuttal concerning the events at Berry's
Corner. The statement the second appellant allegedly made there
was never
produced or relied upon by the State. According to the State evidence, Detective
Warrant Officer
/31
31 Joubert ("Joubert") interrogated the second appellant on
24 September and again on the following day. After the second appellant
indicated his willingness to make a statement and point out the scene of the
murder, he was taken to de Lange. He made a statement
to de Lange, and
thereafter pointed out certain spots to him. On 26 September, after having
declared himself willing to repeat his
statement to a magistrate, he was taken
to Lubbe where he made a further statement. The State witnesses who had dealings
with the
second appellant, including Faleni, denied that he had been assaulted
at Louis le Grange Square.
According to de Lange the second appellant, when questioned in regard
thereto, denied that he had been assaulted in order to make
a statement. When
asked if he had any injuries the second appellant pointed out extensive burn
scars on his left arm and
/32
32
stomach, adding that he had been burnt there as a child. De Lange examined
his body but found no other injuries.
When asked the following day by Lubbe
whether. he had been assaulted the second appellant mentioned in some detail the
alleged assaults
upon him at Berry's Corner. He claimed,
inter alia
, that
he had been hit twice on the back with a rubber baton. On examination Lubbe
observed two linear weals on the second appellant's
back, and he noted down a
description of the injury. The second appellant did not complain of having been
shocked or assaulted at
Louis le Grange Square with a view to compelling him to
make a statement. Because of the second appellant's recorded complaints of
assault, and Lubbe's observations, the trial court held that it did not appear
ex
facie
the second appellant's statement to the magistrate (Lubbe)
/33
33
that the statement had been freely and voluntarily
made. It accordingly
held that the presumption in
s 217(1)(b)(ii)
of Act 51 of 1977 did not operate and
that the onus rested
on the State to prove that the
second appellant's statements to both de Lange and
Lubbe were freely and
voluntarily made. Although the
respondent sought to challenge on appeal the finding
that the onus in respect of the statement to Lubbe was
on it, the trial court's finding in this regard was in
my view clearly
correct.
In ruling that the statement made by the
second appellant to Lubbe was admissible the trial
court made the following observations:
"We have heard the evidence of the police officer who was allegedly involved
in various assaults upon accused no 3, and we have heard
the evidence of accused
no 3. While he clearly bore the marks of some kind of injury, if the mice as he
described the electric shock
system which had been used on his arms had been
used to the extent it was,
/34
34
on his version, (the Court, having had an opportunity to inspect him, his left
arm shows signs of extensive injuries, the skin being
puckered up and scarred
over a very wide area,) then we cannot accept that he would not have shown this
injury to a magistrate nor
even if he had not demonstrated it, that the
magistrate would not have seen if f or himself. If his arm had been burnt to
that extent
at that time as a result of this electric shock, the severe injuries
must have been patently obvious. Yet it was not noticed or referred
to by the
magistrate, despite the accused having shown his arm to Lieutenant de Lange on
the previous day. In this regard it is also
of significance that Lieutenant de
Lange in his evidence referred to these marks as being 'ou brandmerke' on the
left arm and cheek,
and not the very fresh burn wounds they must have been if
they had been caused a matter of days before.
One is left with a situation where an accused is clearly not telling the truth
about the treatment meted out to him and one cannot
then speculate how these
marks came to be there."
It is
apparent from these remarks that the
trial court totally misconceived the second appellant's
evidence. It
obviously laboured under the
/35
35
misapprehension that the second appellant had claimed that the old burn marks
visible on his lef t arm were caused by the electric
shocks he had been given.
This was clearly never his evidence. At no time did he claim that the appearance
and condition of his left
arm were due to the shock treatment he had received.
He went no further than to allege that the shock treatment had affected his
arm
to some extent. This misdirection (which the respondent conceded) appears to
have strongly influenced the trial court's finding
that the second appellant was
"clearly not telling the truth about the treatment meted out to him". There is
no knowing what conclusion
the trial court might have come to had it approached
the second appellant's evidence correctly.
Nor can one gauge the influence that this misdirection might have had on the
trial court's ruling
/36
36 that the second appellant's statement to de Lange was
admissible. It must needs have adversely affected its view of the second
appellant's credibility. Although de Lange claims to have examined the second
appellant and observed no fresh injuries or signs of
assault upon him, Lubbe
observed fresh linear weals on his back the following day. Either de Lange's
examination of the second appellant
was a very cursory one, or he was untruthful
in claiming that the second appellant bore no signs of fresh injury. One is left
with
the uneasy feeling that even though the second appellant clearly
exaggerated the extent of any assault upon him, the danger exists
that he was
influenced by the treatment he had been subjected to earlier when he made his
statement to de Lange.
There is a further factor indicative either of a lack of voluntariness on the
second appellant's
/37
37 part, or of a lack of knowledge of how the deceased was
killed. The place pointed out by the second appellant as being that where
the
deceased was killed did not coincide with what was, on the objective evidence,
the place of the killing. In fact, they differed
significantly. The trial court
apparently lost sight of this fact when considering the admissibility of the
second appellant's statement
and the question of his guilt.
In my view it is doubtf ul whether, but f or these misdirections, the trial
court would have come to the conclusion to which it did.
In my view, a
reasonable doubt exists on the evidence whether the second appellant's
statements were freely and voluntarily made.
The second appellant was entitled
to the benefit of such doubt, and his statements should not have been admitted
in evidence. Apart
from these
/38
38
statements there was no evidence to link him with the assault upon the
deceased. It follows that his appeal must succeed.
In the result the following order is
made:
(a)
The appeals of the first and third appellants (accused 1 and 4 in
the court a
quo
) are dismissed;
(b)
The
appeal of the second appellant (accused 3 in the court a
quo
) is allowed,
and his conviction and sentence are set aside.
J W
SMALBERGER JUDGE OF APPEAL
VAN HEERDEN, JA )
) CONCUR NICHOLAS, AJA )