IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No.: AR 247/24
In the matter between:
• INNOCENT THABANI NGCOBO Appellant
and
THE STATE Respondent
ORDER
On appeal from: the KwaZulu-Natal Division of the High Court, Northeastern Circuit
Local Division, Mtunzini ( Ploos Van Amstel J sitting as court of first instance):
1. The appeal against conviction and sentence is upheld.
2. The conviction and sentence of 12 May 2022 is set aside.
JUDGMENT
Harrison J (Radebe and P Bezuidenhout JJ concurring)
Introduction
[1] The appellant in this matter, Innocent Thabani Ngcobo, was convicted in the
KwaZulu-Natal Division of the High Court, Northeastern Circuit Local Division,
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Mtunzini, on 12 May 2022 of three counts of murder and one count of attempted
murder. On the same day, he was sentenced to life imprisonment on two of the counts
of murder, 15 years on the third count of murder, and eight years for the attempted
murder. Leave to appeal was granted against conviction and sentence by the Supreme
Court of Appeal on 28 September 2023.
[2] On 30 May 2025, we heard argument in the appeal. At the close of oral
argument , we made an order upholding the appeal and setting aside the convictions
and sentences , indicating that reasons would be given later. These are the reasons
for that order.
[3] The core issue in this appeal is the admissibility of the confession which was
ruled admissible during the course of the trial. The appellant's conviction followed as
a direct consequence of the confession having been ruled admissible . Once that
confession was ruled admissible, the State tendered two statements , by SM Ngena
and ET Shandu, neither of which name nor identify the appellant as being implicated
in any of the four counts which the appellant faced. The conviction is entirely reliant
on the confession.
[4] The trial commenced with a trial within a trial to admit the appellant's
confession. That trial within a trial had been preceded by the appellant's counsel
clearly stating:
'Firstly, the statement was obtained in violation of the accused's constitutional rights. He had
indicated that he had an attorney and that he wanted to consult with his attorney and
subsequent thereto by means of threats and acts of violence he was taken to this
commissioned officer whereat he was further assaulted and told he had to make a statement
in favour of the State .. .'.
[5] Within that opening statement, there are two challenges to the admissibility of
the confession . The first is the constitutionality of the admissibility and the right to
consult an attorney, and the second aspect is the admissibility of the statement and
whether it was obtained under some form of duress.
The facts
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[6] The appellant, on Sunday, 11 November 2018, had received information from
his family that the police were looking for him. They had, apparently , been told that
should the appellant not report himself, the police would 'bury him'.
[7] The family organised an attorney, Mr Manzini, who accompanied the appellant
to the Empangeni Police Station. The investigating officer in the matter, Sergeant
('Sgt') Shange, then drove from Durban to collect the appellant in Empangeni and,
when the appellant was handed over, received a business card of the attorney, Mr
Manzini, who specifically advised Sgt Shange that he was representing the appellant,
and' ... that whenever a statement needs to be taken from him, then they will have to
call me because I will have to be there before the statement is taken from him .. .'.
That evidence from attorney, Mr Manzini, was led in the trial within a trial, and was
never challenged.
[8] Having collected the appellant at the Empangeni Police Station, Sgt Shange
proceeded to return to Durban. However, at the Umdloti Toll Plaza, turned around and
returned to Empangeni as, apparently , the appellant had decided to make a
confession. Sgt Shange had, whilst driving to Durban contacted his superiors who had
advised him that a magistrate was not available, but they had arranged for a Lieutenant
Colonel (Lt Col) Ngubane, from the Mtunzini Detective Branch, to take the confession
at the Empangeni Police Station.
[9] At the trial within the trial concerning the admissibility of the confession ,
Lt Col Ngubane testified that he was alone when the appellant was brought to him
and, furthermore, testified as to the taking of the statement.
[1 O] In cross-examination , he was specifically asked about the appellant having an
attorney and whether he was informed of this by Sgt Shange. In this regard:
'MR DLAMINI: Did Shange also tell you or not tell you that the accused person had also
indicated that he was going to consult with his attorney at his own time?
MR NGUBANE : No, M'Lord, I would have not continued if that information was made available
to me.
MR DLAMINI: Now, I put to you that the investigating officer who called you has in fact
completed a statement regarding an interview with the suspect, namely the accused person
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before Court, in which he confirms that the accused person had told him that before making a
statement he wanted to consult with his attorney and that he would do so in his own time.
What do you say to that?
MR NGUBANE : I've got no idea about that information .'
[11] Subsequent cross-examination elicited a different answer, that, according to Lt
Col Ngubane , the appellant had advised him that he was brought by his attorney and
that he knew he was making a statement.
[12] The next witness at the trial within a trial was S Mngomezulu , a constable ,
working at CSC at Empangeni . His evidence was that it was his responsibility to take
the appellant through to the room where Lt Col Ngubane was to take the statement.
When he took the appellant , there were others in the room, he did not know their
names but they were police officers.
[13] Sgt Shange thereafter testified that he was part of a political task team and that
they had been looking for the appellant. He confirmed that he came and collected the
appellant , and when he was there, Mr Manzini introduced himself as a legal
practitioner . Sgt Shange thereafter testified that during the drive back to Durban,
according to him, the appellant indicated he wished to make a statement , and having
called his superiors and unable to secure a magistrate , he returned to Empangeni as
a commissioner officer had been found to take the statement.
[14] Under cross-examination , it was put that Sgt Shange had also taken a
statement from the appellant , wherein it was recorded: 'I will consult with my legal
practitioner of my own choice'. When cross-examined on this, Sgt Shange suggested
that he was only going to require the legal practitioner's service upon appearance in
court, not at that stage as he was only making a confession . Sgt Shange denied the
allegations of assault.
[15] The final witness for the State in the trial within a trial was FN Makhaza , the
doctor, who performed the medical examination both before and after the confession
was taken. She denied that the appellant had been assaulted.
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[16] The appellant, thereafter , testified as to how he came to be arrested, how he
had received word the day before that the police were looking for him, and how his
family had arranged for an attorney. He confirmed that he was taken to the police by
Mr Manzini and, thereafter , testified that he was assaulted whilst on the drive back to
Durban, thus resulting in him making a confession .
[17] Mr Manzini thereafter testified. He is a practising attorney in Mtubatuba and he
specifically testified that:
'MR MANZINI: Yes, M'Lord, I told them I am representing the person and that whenever a
statement needs to be taken from him, then they will then have to call me because I will have
to be there before the statement is taken from him ... '.
[18] Mr Manzini had gone to Ngwelezane Court on the Tuesday in order to represent
the appellant at the first appearance , but the appellant was not there. He subsequently
met the family who advised him that they had engaged another attorney.
[19] The last witness at the trial within a trial was the appellant's brother, who
testified as to how the police had come to their homestead on the Sunday, demanding
to know the whereabouts of the appellant , and advising that if he did not hand himself
over, they were going to 'bury him'.
[20] Pursuant to the trial within a trial, the judge admitted the confession and, after
the admission of the confession together with two other above mentioned statements ,
convicted the appellant.
[21] Post-conviction and sentence , the appellant was granted leave to appeal by the
Supreme Court of Appeal, and it was this appeal that then presented before us.
The law
[22) A useful starting point is the evaluation performed by Ponnan J in S v
Magwaza , 1 namely:
1 S v Magwaza (2015) ZASCA 36; 2016 (1) SACR 53 (SCA) paras 13-17.
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'[13] In the later case of Thomson Newspapers Ltd et al v Director of Investigation and
Research et al (1990) 67 DLR (4th) 161, La Forest J stated:
"A breach of the Charter that forces the eventual accused to create evidence
necessarily has the effect of providing the Crown with evidence it would not otherwise
have had. It follows that the strength of its case against the accused is necessarily
enhanced as a result of the breach. This is the very kind of prejudice that the right
against self-incrimination , as well as rights such as that to counsel, are intended to
prevent. In contrast, where the effect of a breach of the Charter is merely to locate or
identify already existing evidence, the case of the ultimate strength of the Crown's case
is not necessarily strengthened in this way".
Canadian jurisprudence has since rejected a strict distinction between real and testimonial
evidence holding that the Collins distinction was unfounded (see R v Burlingham (1995) 28
CRR (2d) 244). For example R v Ross (1989) 37 CRR 369 at 379 emphasized that the
admissibility of evidence under s 24(2) depended ultimately not on its nature as real or
testimonial , but on whether or not it would only have been found with the compelled assistance
of the accused.
[14] In Pi/lay (at 432e-h), Mpati DP and Motata AJA summed up the Canadian position as
follows:
"What emerges from this is that evidence derived (real or derivative evidence) from
conscriptive evidence, ie self-incriminating evidence obtained through a violation of a
Charter right, will be excluded on grounds of unfairness if it is found that, but for the
conscriptive evidence, the derivative evidence would not have been discovered .
And Scott JA, who wrote separately , expressed himself thus at 445c-e:
"As noted by Martland J in R v Wray (1970) 11 DLR (3d) 673 at 691, there is a clear
distinction between unfairness in the method of obtaining evidence and unfairness in
the actual trial. The former does not necessarily result in the latter. Where the
infringement results in the creation of evidence which would not otherwise exist, for
example a self-incriminatory statement or, as it is sometimes called, conscriptive
evidence, it is generally accepted that the admission of such evidence will affect the
fairness of the trial. The reason, of course, is that without the infringement the evidence
would not have come into existence . But where, as in the present case, the
infringement results in the discovery of a fact, ie the presence of the money in the roof,
which would have existed whether there was an infringement or not, the impact on the
fairness of the trial, if any, is less obvious."
Both judgments appear to be at one in respect of the kind of evidence with which we are here
concerned , namely "self-incriminatory " or "conscriptive " evidence. Whether they, likewise, are
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at one in respect of the other category alluded to, namely 'derivative ' evidence, need not detain
us.
[15] Although s 35(5) of the Constitution does not direct a court, as does s 24(2) of the
Charter, to consider "all the circumstances " in determining whether the admission of evidence
will bring the administration of justice into disrepute , it appears to be logical that all relevant
circumstances should be considered (Pi/lay at 433h). Collins lists a number of factors to be
considered in the determination of whether the admission of evidence will bring the
administration of justice into disrepute , such as, for example: the kind of evidence that was
obtained; what constitutional right was infringed; was such infringement serious or merely of
a technical nature and would the evidence have been obtained in any event. In Collins (at
282), Lamer J reasoned that the concept of disrepute necessarily involves some element of
community views and "thus requires the Judge to refer to what he conceives to be the views
of the community at large". Pi/lay (at 433d-e) accepted that whether the admission of evidence
will bring the administration of justice into disrepute requires a value judgment , which inevitably
involves considerations of the interests of the public.
[16] To the extent here relevant s 35(1) and (2) of the Constitution provides:
"(1) Everyone who is arrested for allegedly committing an offence has the right -
(a) to remain silent;
(b) to be informed promptly -
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(2) Everyone who is detained, including every sentenced prisoner, has the right -
(b) to choose, and to consult with, a legal practitioner , and to be informed of this
right promptly;
(c) to have a legal practitioner assigned to the detained person by the state and at
state expense, if substantial injustice would otherwise result, and to be informed of this
right promptly ... "
Of those rights, Froneman J (S v Melani and others 1996 (1) SACR 335 (E) at 347e-h)
observed :
"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
8
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. (Cf S v Makwanyane (supra at [paras 49, 50
and 511).)"
[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 were models 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 Captain Eva. But what is readily apparent from the document introduced into
evidence, is that by the time the appellant had been warned by Captain 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 CR (4th) paras 144, 160
and 162).'
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[23] The issue of confessions has been subject to two recent decisions in this
Division in Mchunu and another v S ('Mchunu ')2 and S v Ndlovu ('Ndlovu').3
[24] The analysis performed by Steyn J in Mchunu is apposite to this appeal. In
quoting R v Barlan,4 Steyn J sought to emphasise
'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.'
(25] The facts in Ndlovu deal specifically with where the police were aware that the
declarant had a legal representative and that the legal representative had not had an
opportunity to consult with his client prior to the taking of the statement. As Olsen J
said:
'[21] Section 35( 1) of the Constitution provides that everyone who is arrested for allegedly
committing an offence has the right to remain silent and to be informed promptly of that right,
and of the consequences of not remaining silent. Section 35(2)(b) is to the effect that everyone
who is detained has the right -
"to choose, and to consult with, a legal practitioner and to be informed of this right
promptly". [Our emphasis.]
The word "promptly", when applied to the right to consult with one's legal practitioner , must be
taken to convey that the detained person must be informed of that right at least in reasonable
time to permit of its meaningful exercise. Rushing to secure a confession from a detained
person before there is an opportunity for such consultation is a material breach of the
constitutional right. Doing it intentionally brings the administration of justice into disrepute.
Section 35(5) of the Constitution applies on that account, and because Mfusi's conduct
breached the fair-trial rights of the appellant. The section reads as follows:
"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."
[22] For these reasons, and following the reasoning set out in S v Mpha/a and Another 1998
(1) SACR 388 (W) at 388-400, the magistrate ought to have refused to admit the confession
intoevidence . (See S v Magwaza 2016 (1) SACR 53 (SCA) ([2015] 2 All SA 280; [2015] ZASCA
36) (25 March 2015) paras 16-22.)Regarding para 22 of the judgment in Magwaza , we would
2 S v Mchunu and another 2025 (1) SACR 257 (KZP)
3 S v Ndlovu 2025 (1) SACR 506 (KZP).
4 R v Bar/an 1926 AD 459 at 466, see Mchunu para 10.
10
merely add that we experience little anxiety over the outcome in this case, given that the
alleged confession of the appellant raises a number of questions or issues which were within
the capacity of the state to investigate , and which would in all probability have generated
supporting evidence , if in fact what appears in the document is true. The statement contains
no information so personal to the appellant that only she could have provided it'
Analysis
[26) It is clear from the aforegoing and especially the manner in which the
preliminary questions to the taking of the confession are framed that the appellant had
the right to consult 'before' the making of the statement.
[27) Just like in the matter of Ndlovu, Sgt Shange and Lt Col Ngubane were aware
that the appellant had a legal representative and, crucially in this instance, the
evidence of Mr Manzini was never questioned . Mr Manzini was clear and unequivocal
that he had to be consulted and be present when his client made any statement.
[28) The judgment of the court a quo deals with Mr Manzini in a somewhat
perfunctory manner:
'Shange drove to the Empangeni Police Station where he found the accused and a Mr Manzini
in an office where they had been waiting for him. Manzini introduced himself as an attorney.
Shange told the accused that they had been looking for him. He explained to him that he was
a suspect in a murder case, read his rights to him and arrested him. He handcuffed him and
told him that he was going to take him to Durban.'
[29) The judgment goes further:
'The accused testified that he had been taken to the police station by attorney, Mr Manzini,
because he had been told that the police were looking for him and had threatened to kill him.
He confirmed that Sergeant Shange met them there, arrested him and said that he was going
to take him to Durban. He says Mr Manzini told Shange that the accused was not to make a
statement in his absence and if he needed anything from the accused, he should contact him.
Shange denied this and said that Manzini only said that he would see him at court for the first
appearance .'
[30) The judgment fails to deal with any of the evidence of the attorney, Mr Manzini,
and Mr Manzini's evidence that he was to be present when his client was to be
11
interviewed , was never rejected nor, in fact, dealt with in the judgment. Whilst the
judgment concentrates on the rejection of the appellant's version that he had been
assaulted, there is no credibility finding made against Mr Manzini, nor was his version
ever rejected.
[31] Just like in Nd/ovu, where the police were aware of the attorney of record, and
specifically, as testified to by Mr Manzini, that he was required to be present when
there was going to be examination of his client, the failure by the police to allow the
appellant to consult with his attorney prior to the making of the confession or, indeed,
have his attorney present whilst making the confession, results in, as Olsen J found in
Ndlovu, the confession being falling foul of being admissible in terms of s 35(5) of the
Constitution.
[32] In a similar vein, we consider the admission of the confession in the present
appeal to be unsafe.
[33] Where an accused person has an attorney of record, and where the police ask
the question whether an accused wishes to consult with their attorney 'before' the
making of a confession , then, it is unsafe for the court to rely on the confession where
no such consultation has taken place.
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Order
[34] Hence, the appeal succeeded and the following order was granted on 30 May
2025:
1. The appeal against conviction and sentence is upheld.
2. The conviction and sentence of the Court a quo is set aside.
I agree.
I agree
Appearances
For the Applicant:
Instructed by:
For the Respondent:
Instructed by:
Email: L BARNARD
PHUMZILE MS I MANGO ATTORNEYS
Ref: Mr B T Dlamini
Tel: 069 419 1121
Email: pmsimangoattorney@gmail.com
J M KHATHI
DIRECTOR OF PUBLIC PROSECUTIONS
ckander@npa .gov .za
Date of order granted with reasons to follow: 30 May 2025
12 June 2025 Date of delivery of reasons: 13