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1993
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[1993] ZASCA 106
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S v Maphike (172/93) [1993] ZASCA 106 (31 August 1993)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
THEBOGO HAROLD MAPHIKE
Appellant
AND
THE STATE
Respondent
Coram
: SMALBERGER, MILNE et EKSTEEN, JJ A
Heard
: 19 August 1993
Delivered
: 31 August 1993
JUDGMENT
EKSTEEN
, JA
:
The appellant was convicted in the Wit-watersrand Local Division of robbery
with aggravating circumstances and of murder. He was 16
years old at the time of
the commission of the offences, and this was largely the reason for the
comparatively lenient sentence passed
on him. He was sentenced in respect of the
robbery charge to six years' imprisonment of which three years was conditionally
suspended,
and in respect of the murder charge to nine years' imprisonment of
which three years was suspended. The two
/ 2
2
sentences were ordered to run concurrently. On an
application for leave to appeal against both convictions, and sentences the
trial
judge granted the appellant leave to appeal to this Court against the
convictions only.
The appeal turns entirely on fact, and quite apart from the
consideration that it had no reasonable prospect of success, it seems
to me that
even if the learned trial judge was of a mind to grant leave to appeal, it could
hardly be said that this appeal was of
such a nature that it required the
attention of this Court. Any leave granted ought, therefore, in terms of
section
315(2)(a)
of the
Criminal Procedure Act no 51 of 1977
("the
.... / 3
3
Act") to have been granted to the full court of the division from which it
came..
It was not disputed at the trial that at about 9 o'clock on the
morning of 16 November 1990 the 51 year old Mr Ivan Leo Utian ("the
deceased")
was in his jeweller shop known as Geneva Watch Co situated in Eloff Street,
Johannesburg when three men entered the shop
with the apparent intention of
robbing the deceased. The deceased succeeded in setting off the alarm system
with which his shop was
equipped. He was thereupon shot in his neck and chest,
and expired shortly afterwards. The three men ran out of the shop in a bid
to
make good their escape.
.../ 4
4
At more or less the same time Mr Nell, the retail manager of a clothing
company, was walking down Eloff Street and stopped to look
at the display window
of the Geneva Watch Co. As he walked past the main door of the shop he saw a
black man dressed in a pair of
dark navy blue pants, a navy blue jersey and a
white shirt standing in the door. As Nell walked past this man closed the door.
Nell
then stood looking at the goods displayed in the next window of the same
shop. Suddenly he heard the sound of a gunshot and at the
same time became aware
of the fact that the shop's alarm was going off. He walked back to the door of
the shop and saw the
.../ 5
5
man, whom he had noticed at the door, running into the street, followed by
another man who had also come out of the shop. As Nell
got right up to the door
a third man emerged and ran off. Nell says that as this man came out he looked
straight at him and noticed
that he had pimples on his face. As the man ran away
he noticed that he was wearing a green jacket, knee-length pants or shorts with
turnups rolled up, redbrick coloured socks and green and brown shoes. He also
had his hand inside his jacket pocket. Nell tried to
phone the police from the
deceased's shop, but before he could get through to them, two business watch
policemen
.... / 6
6
who had been patrolling the area came into the shop. Shortly afterwards more
policemen and the ambulance arrived. Nell, who says he
is very observant and has
a "photographic" memory, gave the policemen a detailed description of the man in
navy blue and of the third
man in the green jacket. Sgt Mphago and Const
Thamangane thereupon set out to see if they could find anyone in the streets
answering
this description. They did not have to wait long before they came up
to the appellant. His general appearance as well as the clothes
he was wearing
seemed to correspond to the description of the man in the green jacket whom Nell
had seen running out of
.../ 7
7
the shop - except for the fact that the appellant was not wearing any socks.
The two policemen apprehended appellant and on searching
him, found a white
alarm transmitter - or "panic button" -in his jacket pocket. On being asked what
it was, appellant replied that
it was his, whereupon the policeman gave it back
to him. They summoned assistance to fetch the appellant and Const Leishman
turned
up in his motor car. Thamangane and the appellant got in and Leishman
drove back to the Geneva Watch Co. Nell was still there and
as soon as he saw
the appellant he recognized him as one of the men who had run out of the shop.
After some investigation at the
shop
.... / 8
8
Leishman and Thamangane took the appellant to the Brixton Police Station
where he was held in custody. Sgt Mphago seems to have made
his own way to the
same police station at more or less the same time. Mphago and Thamangane both
made written statements of the events
at the police station, and while Leishman
was making his statement the two of them went to wait for Leishman in his car.
There, on
the floor behind the left front seat, Mphago picked up the white alarm
transmitter that he had earlier found in the appellant's jacket
pocket. When
Leishman joined them Mphago gave it to him and Leishman immediately recognized
it as the deceased's transmitter.
.../ 9
9
Leishman testified that he was a member of the business watch in that area
and that he had often gone into the deceased's shop. The
deceased, he said,
always wore this transmitter on his belt. It was about the size of a packet of
20 cigarettes and thus very conspicuous.
Leishman also said that he was the
first policeman to arrive on the scene after the deceased had been shot and.
that he immediately
noticed that the deceased was not wearing the transmitter at
the time.
One Frost, an installation supervisor of Security Centre, with which
deceased's shop had been registered, was summoned to the shop
and asked whether
he could identify the trans-
.../ 10
10
mitter. He recognized it as an old type of trans
mitter
which had been issued by his firm, but of which
very few were still in
existence. From his eviden
ce it appears that all the transmitters which
they
issue to their clients are individually and differently
coded to the
premises concerned, so that when the sec
urity centre receives an alarm call
they know ex
actly from which premises it eminates. He tested
the
transmitter the police handed to him - i e the
one found by Sgt Mphago - on
two separate occa- . -
sions by activating the alarm button, and on each occasion the security
centre confirmed that the signal came from the Geneva Watch
Co. The transmitter
found in the appellant's possession
.../11
11
was therefore shown to have been coded to the Geneva Watch Co and must have
come from that shop.
At about 4 o'clock on the afternoon of the same day the
appellant was interviewed by Warrant Officer Gous who was the investigating
officer at the time. As a result of what the appellant told him, Gous decided to
arrange for a formal confession to be taken from
appellant. He tried to arrange
for a magistrate to take the confession, but as it was a Friday afternoon after
4 o'clock he was unable
to find a magistrate. So he decided to use the services
of a police officer from another police station. He phoned Captain Steyn
(who at
that time was
../12
12
still a lieutenant) at the Krugersdo-rp Police Station and arranged for him
to take the confession. The appellant was taken over to
Krugers-dorp where he
made a confession to Captain Steyn in which he admitted having taken part in the
robbery together with two
of his friends, and having been present in the shop
when one of his friends shot the deceased. He told Captain Steyn that one of
his
friends had taken the alarm transmitter from the deceased and subsequently
dropped it as they were running away. Appellant then
picked it up and put it in
his pocket. When he was arrested and searched the transmitter was found in his
pocket.
.../13
13
At the trial the appellant-contested the admissibility of the confession
alleging that it had been extorted from him after a series
of assaults by
various policemen, and that he had been instructed to say what he had, by Gous.
In a separate hearing to determine
the admissibility of the confession the trial
judge disbelieved the appellant and accepted the evidence of the policemen the
appellant
had sought to incriminate. Several of them denied having had anything
to do with the appellant, or said not to have been present
at the police station
at the relevant time. Others denied having assaulted appel-lantin any way. The
trial judge scrutinized the
../14
14
evidence carefully, and, in his questioning took Warrant Officer Gous to task
for not having been more assiduous in looking for a
magistrate to take the
confession rather than using a police officer. Warrant Officer Gous, however,
explained the difficulties attendant
upon finding a magistrate and an
interpreter over a weekend - difficulties which he himself had experienced in
the past. From the
recorded confession, together with the questions and answers
which preceded it, and the evidence of Captain Steyn, it appears that
Steyn was
very meticulous in seeking to ensure that the confession was being made by the
appellant freely and voluntarily, while
in his sound and sober
.../15
15
senses, and without having been unduly influenced thereto by anyone, as is
required by
sec 217(1)
of the Act. This explanation satisfied the trial judge.
He found Gous to have been a good witness and accepted his evidence. He also
accepted the denials of the other police witnesses that they had assaulted or
threatened the appellant in any way. The appellant
on the other hand was found
to have been a dishonest witness and his evidence was rejected as false beyond a
reasonable doubt. The
reasons for these findings were well set out by the trial
judge and they are supported by the record. There is no reasons for us
to
interfere with them.
.... / 16
16
There is however one aspect which was touched upon very cursorily in
cross-examination, and not adverted to at all by the trial judge,
which warrants
some consideration. The appellant, on his evidence, was 16 years old at the
time. This was not contested and must
therefore be accepted. Warrant Officer
Gous however says that the appellant appeared to him to be 20 years of age, or
even in his
early twenties. He did . not ask appellant how old he was before he
sent him off to Captain Steyn. In the course of the meticulous
and extended
questioning by Steyn directed to ensuring the free and voluntarily nature of the
statement he was about to record,
/ 17
17
as well as to satisfy himself that the appellant
had considered the
advisability of making such
a statement, Steyn asked the appellant how
old
he was. When appellant told him that he was
16 years old, Steyn was
surprised as appellant
had seemed to him to be older than that. So
he
asked appellant whether he could produce proof
of his age. When
appellant replied that he
could produce a birth certificate Steyn
accepted
that he was only 16 and recorded the following
question and
answer:
"Vraag. Noudat u beweer dat u 16 jaar oud
is stel ek dit aan u dat u geregtig is om bygestaan te word deur u ouer of
voog. Wat is u kommentaar daar-op?"
../ 18
18
"Antwoord: Ek wil my verklaring gee en
klaar kry. Wk wil nie enig-iemand he wat bystaan nie."
Appellant was thereupon invited to proceed with any statement he wished to
make. In his evidence at the trial Steyn indicated that
he had considered it to
be in the interests of the appellant to be assisted by his parents and had in
fact invited the appellant
to obtain such assistance. Appellant however
declined, and insisted on making his statement forthwith.
It seems to be that
as a matter of general principle a young person in such circumstances ought to
be afforded the assistance of a
parent wherever this is reasonably possible.
../19
19
Our common law has always recognized the inherent intellectual immaturity and
inexperience of youth, and made allowances for them
(see e g Voet 4.4.42 and 45;
48.19.7 and
S v Lehnberg en 'n Ander
1975 (4) SA 553
(A) at 560 C - 561
F).
Sec 73(1)
of the Act entitles any person who has been arrested to have the
assistance of his legal adviser as from the time of his arrest,
and sub-section
(3) of the same section allows an accused who is under the age of 18 years to be
assisted by his parent or guardian
at criminal proceedings. In fact
sec 74
goes
on to make it imperative for the parent or guardian to be warned to attend such
criminal proceedings whenever he or she
../20
20
"can be traced without undue delay", and makes it an offence for them to fail
to attend and to "remain in attendance unless excused
by the court. The
conjunction of sub-sections (1) and (3) of
section 73
in the same section would
seem to indicate that a person under the age of 18 years would at least be
entitled to the assistance of
his parent or guardian as from the time of his
arrest, in the same way as an adult would be entitled to the assistance of his
legal
adviser. In
S v Gibson N O and Others
1979 (4) SA 115
(D & CLD)
at 138 B-C, Milne J had occasion to remark on the "unwisdom of allowing a 17
year-old unrepresented accused, who is
not assisted by his
../21
21
parents or guardian, to plead to serious criminal charges." (See also
S v
H and Another
1978 (4) SA 385
(E).
I have made these remarks as
pertaining to a general principle. There may of course be exceptions where a
youthful offender has, by
virtue of the life he has led, acquired such a degree
of wordly wisdom and maturity that he in fact requires no assistance or comfort
from his parents, but is shrewd enough to fend very well for himself. These are
features which a trial court would be entitled to
take into account when faced
with such a state of affairs. The
../22
22
degree of maturity of a young person together with other surrounding
circumstances may well outweigh, to a greater or lesser extent,
the general
consideration of his youthfulness. (See in this regard
S v Mohlobane
1969
(1) SA 561.
(A) at 567 F - H and
S v Petrus
1969 (4) SA 85
(A) at 95 H -
96 B.) Depending therefore on the circumstances, the failure to afford a young
person the assistance of a parent or
guardian where this is reasonably possible
before taking a confession from such person, could conceivably lead to the
conclusion
that the confession was not made freely, voluntarily, or without
undue influence.
.../22(a)
22(a)
In the present case Captain Steyn recog-nized the desirability of the
appellant having the assistance of his parent or guardian before
making his
statement. He duly informed appellant of the right to have such assistance and
recommended to him that he get it. Appellant,
however, refused. It seems to me
though that Captain Steyn could ex
abudante cautela
, have enquired
further into the matter and investigated the possibility of contacting his
parents and procuring their attend-ance
without undue delay. From the evidence
it appears that appellant's parents were in or near Johannesburg, as it seems to
be common
cause that his mother was present at his first
.... / 23
23
appearance in court on the Monday and subsequently visited him on several
occasions at the Brixton Police Station where he was being
held in custody. On
the probabilities therefore one or other of appellant's parents my well have
been able to come to his assistance
at the Krugersdorp Police Station without
unduly delaying the recording of the confession.
On the other hand, in the
circumstances of the present case, it does not seem to me that any real harm has
resulted from Captain Steyn's
failure to take further steps in the matter. As I
have indicated he seems, on the evidence, to have been meticulously careful and
fair to the
../24
24
appellant in taking his statement. The
appellant,
who was in Standard VII at the time, and there
fore reasonably
intelligent, appeared both to
Gous and to Steyn to be older than 16. In
the
circumstances, therefore, it would appear that,
despite the fact that
Captain Steyn could possibly
have done more in attempting to obtain the
at
tendance of appellant's parent or guardian, the
admissibility of the
confession has not been
affected on that account.
In any event I am of the
view that the conviction would still have been well founded even without the
confession. The appellant, on
a mere reading of the record, was a bad witness
and
../25
25
patently dishonest. The case put by counsel to the State witnesses was either
not deposed to by the appellant when he came to give
evidence, or flatly
contradicted. The trial court was clearly entitled to reject his evidence, as it
did, as being false beyond a
reasonable doubt. The State witnesses, the court
found, were honest and their evidence was accept- ed. On this evidence the
appellant
was found in possession of the alarm transmitter which undoubtedly
came from the Geneva Watch Co, and in all probability from the
body of the
deceased, shortly after the deceased had been shot. He preferred no explanation
for such possession
../26
26
but sought to dispose of the transmitter by dropping it on the floor of Const
Irishman's car in which he was conveyed to the police
station, and then falsely
denied that it had ever been in his possession. Over and above this he was
positively identified by Mr
Nell as having been one of the robbers.
The
convictions were therefore well founded.
The appeal is dismissed.
J P G EKSTEEN, JA
SMALBERGER, JA )
concur
MILNE, JA )