IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, PIETERMARITZBURG

Case No.: AR370/17

In the matter between:

SIFISO WISEMAN SITHOLE First Appellant
MDALUYAZI MTHETHWA Second Appellant

and

THE STATE Respondent


ORDER


On appeal from: the Regional Court for the Regional Division of KwaZulu-Natal held
at Durban (Magistrate ES Mthembu presiding):
1. The appeal against conviction and sentence is upheld.
2. The conviction and sentence of appellants 1 and 2 is set aside.


JUDGMENT


Harrison J (MOSSOP J concurring):

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[1] The admissibility of two confessions is the issue which is at the core of this
appeal. Those confessions by appellants 1 and 2 , who were the first and second
accusedrespectively, in the court a quo , relate to charges of robbery with
aggravating circumstances and rape. In writing this appeal, this court is mindful of
the old adage that law students are taught in the very first semester of their legal
studies, that ‘It is better to free ninety-nine guilty men t han convict one innocent
man’. That adage resonates in this appeal as we are not convinced of the innocence
of the two appellants, however, owing to the overzealous nature of the police in
seeking to secure confessions and the manner in which the regional magistrate
allowed the confessions to be admitted, we deem it unsafe for the court a quo to
have relied on those confessions. In making such comments, we are also mindful
that the justice system has also failed the complainant and victim through its failure
to properly uphold the constitutional values and adequate procedures which ensure
fair trials and sound convictions.

[2] The appellants , together with Lindelani Zamakuhle Khumalo ( ‘Mr Khumalo’)
(accused 3), faced th ree charges before Magistrate E S Mthembu in the Regional
Division in Nongoma. The charges were:
(a) count 1 – robbery with aggravating circumstances;
(b) count 2 – rape;
(c) count 3 – possession of an unlicensed firearm.
(On the charge of possession all three accused were discharged in terms of s 174 of
the Magistrates Court Act 32 of 1944, and it is unnecessary to deal further with this
count).

The trial and the confessions
[3] The complainant, S K, had come to Esikhawini area to stay at her uncle’s
homestead in order to school at the local high school. She arrived at the homestead
over the weekend. On the night of the incident in question, her half -brother had been
with her until just before midnight. He had left and after midnight, three men broke

with her until just before midnight. He had left and after midnight, three men broke
into the homestead, held her at gun point, initially placing a basin over her head and,
thereafter, covering her face with a scarf. The three men had removed her uncle’s
fridge and taken her outside. Whilst in the veld, she was gang raped by three men ,
the identities of whom were unknown to her.

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[4] She had subsequently contacted her uncle who had then called another
family member, who was a police officer.

[5] After SK had testified, the State called Mr BS Manzini, who had purchased the
stolen fridge from accused 3. When the fridge was sold to him, appellants 1 and 2
were in his presence.

[6] The uncle , who was the first report, thereafter testified , conf irming that SK
had called him.

[7] The trial then proceeded to a trial within a trial relating to the admissibility of
two confessions. The court dealt with the confessions in reverse order, namely, that
of appellant 2 before dealing with appellant 1 and it is appropriate that we deal with
the evidence in the same order.

[8] Captain Ntombela who took the confession of the second appellant, was from
the self-same police statio n as the investigating officer. Appellant 2 was brought to
him in order to record the confession. Captain Ntombela testified as to the answering
of the questions as well as his observations as recorded in the preamble to the
confession, which he read into the record.

[9] It is clear from the confession statement that Captain Ntombela was
approached by the investigating officer, Detective Warrant Officer Buthelezi, directly,
and asked to take the statement. The confession records that appellant 2 was
arrested at ‘+ 11h00’ and the statement was taken at ‘14h15’. The confession
records in pre-printed form that—
‘He stated that I was requested to record the statement, and not a Magistrate, because (set
out steps taken to secure the service of a Magistrate …’

[10] The recordal by Captain Ntombela was:
‘He informs me that he failed to get a Magistrate’.

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[11] One of the questions which is contained in the preamble to the confession
was question 10 which is set out as follows (the manuscript answers are recorded in
bold):
‘10. You also have the right to consult, before making of the statement , with a legal
representative of your choice, and if you cannot afford the services of such legal
representative, a legal representative can be appointed for you who is not in the
employment of the State and who’s services will be provided at no cost to yourself.
10.1 Do you understand these rights? Yes
10.2 Do you wish to exercise any of them?(sic) Yes
10.3 If so, how do you wish to do that? To employ a State legal representative at
Court.

[12] In cross-examination, Captain Ntombela was specifically asked:
‘And you asked him if he wishes to exercise any of the rights you explained to him, including
the one I’ve read to you just now, he said “Yes”?’
To which Captain Ntombela replied:
‘Yes’.

[13] It was further conceded by Captain Ntombela that appellant 2 had been
escorted to him by what was known as ‘the task team’.

[14] During cross -examination, Captain Ntombela, when asked as to why there
was a rush for him to take the confession and not wait for a magistrate to take it, he
suggested that it had to be done as:
‘three hours doesn’t have to lapse because that might lead him - to the change of mind’.

[15] Captain Ntombela also conceded that he asked appellant 2 to show him his
upper body, to see whether he had been assaulted, but then conceded that it was
not his duty to assess appellant 2, those were a doctor’s duties.

[16] The evidence of Captain Ntombela was the only evidence led as regards the
admissibility of the confession made by appellant 2.

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[17] The trial within a trial then turned to the admissibility of the confession made
by appellant 1. This confession was taken by Captain A M Zulu, who was, likewise, a
captain at the self-same Nongoma Police Station as the investigating officer.

[18] In the confession taken by Captain Zulu, the explanation why he was
requested to take the statement and not a magistrate, was answered with the
response:
‘The Magistrate was busy’.

[19] Captain Zulu had been approached by the investigating officer, Detective
Warrant Officer Buthelezi, personally, at 13h10, and proceeded to take the statement
at 15h30.

[20] Captain Zulu testified as to the contents of the preliminary questions which he
recorded, which mainly focussed on appellant 1 not having any injuries, and that he
had not been assaulted.

[21] During the testimony of Captain Zulu, it was elicited that appellant 1 was also
not taken to a district surgeon for any examination, either prior to , or post , the
confession being taken. During cross -examination it was put that appellant 1 was
assaulted, with injuries to the mouth and a tooth. This was denied.

[22] Appellant 1 was the only person to testify for the appellants in the trial within a
trial. Appellant 1 testified that he was arrested by the members of the TRT team. He
was placed in a bag and put inside a Quantum. He was taken to a dam where a
black municipal plastic bag was filled with pepper spray and placed over his head .
His head hit some stones and he broke a tooth. He was then taken to the police
station where he con tended that he was further assaulted and made to sign ‘many
papers’. He signed the papers before Captain Zulu, who did not say anything to him.

[23] The regional magistrate admitted the statements and indicated that he would
give reasons for the admission during the course of his judgment.

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[24] The trial proceeded and the appellants, together with accused 3, were
convicted of robbery with aggravating circumstances and rape.
[25] In his judgment, as regards the admission of the first confession made by
appellant 2, the regional magistrate reasoned as follows:
‘Accused 2 informed him he was going to require the services of a Legal Aid attorney in
Court and the accused 2 went on to say he still wished to continue making a statement
before him, despite the fact that he had been given the pr eceding information and warning. .
.’.

[26] The judgment, thereafter, proceeds to record that Captain Ntombela , having
undressed the second appellant , had not observed any injuries or any evidence of
him being assaulted.

[27] As regards appellant 1, the judgment records the evidence of appellant 1,
recording that:
‘The police continued assaulting him until one of his teeth broke after he had fallen with his
face onto the ground.’

[28] In analysing the aforegoing, the regional magistrate concluded that because
appellant 2 did not give evidence under oath to support his contention of an assault,
his credibility on that story co uld not be tested by the State. The judgment fails to
deal with the issue of the legal representation and the warnings in any fashion.

[29] As regards appellant 1, the regional magistrate reasoned that because
appellant 1 had not mentioned to the regional magistrate when he first appeared in
court that he needed to see a doctor, that he had not been assaulted. The court a
quo also found that there was no evidence of improper conduct by the police.

The law
[30] A useful starting point as to the admissibility of a confession is the evaluation
performed by Ponan J in Magwaza v S,1 which reads as follows:


1 S v Magwaza [2015] ZASCA 36; 2016 (1) SACR 53 (SCA) paras [13] to [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 Pillay (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

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,

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likewise, are 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 ( Pillay at 433 h). 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 ”. Pillay (at 433 d-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. . .”

this right promptly. . .”
Of those rights, Froneman J ( S v Melani and others 1996 (1) SACR 335 (E) at 347 e-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

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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. (Cf S v
Makwanyane (supra at [paras 49, 50 and 51]).)”
[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 t he right to silence) or of his

consequence of not remaining silent (the logical corollary of t he 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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[31] 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

[32] The analysis performed by Steyn J in Mchunu is useful as regards
appellant 1. 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.’

[33] I agree that there is a need for there to be independence between the
investigating officer, and/or investigating team, and the commissioned officer, as is
emphasised in Mchunu, where Steyn J quotes from the minority judgment of
Kruger J in S v Nzama and another.5

[34] Where Mchunu is applicable to appellant 1, the more recent judgment of S v
Ndlovu is apposite to appellant 2.

[35] 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

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

2 S v Mchunu and another 2025 (1) SACR 257 (KZP).
3 S v Ndlovu 2025 (1) SACR 506 (KZP).
4 R v Barlan 1926 AD 459 at 466, see Mchunu para 10.
5 S v Nzama and another 2009 (2) SACR 326 (KZP) paras 32-33, see Mchunu para 12.

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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 Mphala 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 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 question s 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
[36] The admission of the two confessions in the present matter was done in
circumstances where safeguards to ensure the independent manner in which the
confessions had been attained, were completely ignored by the police. It was unsafe
to admit these confessions where:
(a) The officers taking the confessions were from the same police station.
(b) The reason for the failure to take the arrested person before a magistrate is
vaguely stated as being the unavailability of a magistrate.
(c) The investigating officer and the officer taking the statement were interacting
with each other and not acting independently of each other.
(d) There was no examination pre- or post-confession by a district surgeon.
(e) There were other people present during the taking of the confessions.

(e) There were other people present during the taking of the confessions.
(f) The constitutional warnings in regard to appellant 2 were ignored.

[37] The regional magistrate, in ruling the confession admissible against
appellant 1, sought in part, to rely on the reasoning that because appellant 1 had not
told the magistrate at the bail application of his need to see a doctor , he did not do
so as he had not been assaulted. There is an obvious flaw in this logic, particularly
as the regional magistrate, in the trial, was equally aware of the allegation of assault

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and yet did not refer appellant 1 to the district surgeon to see whether hi s tooth had
been broken or not. The judgment is s ingularly silent on this point. It is not like a
tooth can regrow and the issue of the broken tooth could and should have been
independently verified with proper medical evidence, prior to t he admission of the
confession. The regional regional magistrate hearing the trial, was in no better or
worse position than the magistrate hearing the bail application in directing that
appellant 1 be medically examined. That no medical examination was performed
renders the admission of appellant 1’s confession unsafe.

[38] As regards appellant 2, it is clear that what was put to him by Captain
Ntombela is ‘you also have the right to consult, before making of the statement . . . ’
The very phrasing of the statement to which appellant 2 assented, was that he was
informed of his right to legal representatio n before making the statement. The
suggestion by Captain Ntombela ‘that the right was going to be exercised at a later
stage’, ignores the very constitutional warning that was given, namely, that
appellant 2 was informed of his right to consult before he made the statement.
Appellant 2’s constitutional right to consult with his legal representative before he
made the statement was not upheld. This is a clear breach of s 35(2)(b) of the
Constitution.

[39] The interview, and the taking of the statement of appellant 2, ought to have
ceased at the point when appellant 2 had indicated he wished to exercise the right of
having a legal representative present , and Captain N tombela should not have
continued with the taking of the confession. The taking of the confession after that
indication renders that confession unsafe and inadmissible again in terms of s 35(5)
of the Constitution.

[40] Once the confessions are excluded, the State’s case as regards appellants 1
and 2, and their identification, collapses. The State led no other evidence so as to

and 2, and their identification, collapses. The State led no other evidence so as to
connect appellants 1 and 2 to the crime of robbery with aggravating circumstances,
or the rape.

[41] Once the confessions are excluded, there is no basis for the conviction of
appellants 1 and 2. The regional magistrate, for all the reasons aforesaid, ought not

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to have accepted the confessions and, in addition thereto, the admission of those
confessions render the trial of appellants 1 and 2 unfai r in terms of the provisions of
s 35(5) of the Constitution and, for those reasons, the appeal by appellants 1 and 2
must succeed, and their conviction and sentences set aside.

[42] In light of these findings, this judgment needs to be brought to the attention of
accused 3, Mr Khumalo, who was not an appellant before this court.

[43] As a Parthian shot, whilst appellants 1 and 2 may have succeeded on appeal,
they have done so purely because this court considers it unsafe to have relied on the
confessions so obtained, based on the upholding of the principles of the Constitution.
The complainant victim has been let down by overzealous police and an overzealous
regional magistrate in seeking to admit inadmissible evidence.

[44] I, accordingly, propose the following order:
1. The appeal against conviction and sentence is upheld.
2. The conviction and sentence of appellants 1 and 2 is set aside.



________________
G M HARRISON J


I agree and it is so ordered;


_________________
RG MOSSOP J

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Appearances

For Appellants : EM CHILIZA
Instructed by: Legal Aid SA
Address Ground Floor
22 Dorth Nyembe Street
Durban

Tel: 031 304 0100
Email: EmmanuelC@legal-aid.co.za


For the Respondent: S MNCANYANA
Instructed by: The Deputy Director of Public Prosecutions
The Third Floor Court Building
301 Church Street
Pietermaritzburg


Email: CCander@npa.gov.za



Date reserved: 02 May 2025
Date of delivery: 20 June 2025