Brief Summary

Criminal Law — Confession — Admissibility of confession — First appellant's confession ruled admissible despite allegations of police assault — Trial court's finding that first appellant failed to prove confession was involuntary challenged — Evidence of injuries and lack of corroboration for police version raised doubts about voluntariness — Court held that trial court erred in ruling on the onus of proof regarding the confession's voluntariness, leading to the conclusion that the confession should have been excluded.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment of the Supreme Court of South Africa (Appellate Division) concerned two related criminal appeals arising from convictions for the murders of Mr and Mrs Booysen, committed during a robbery at their farmhouse near Hofmeyr in the Eastern Karoo on the night of 30 November/1 December 1990. The proceedings were appellate in nature and involved challenges to conviction and sentence.

The appellants were Vuyo Manqindi (first appellant, accused 1 at trial) and Donald Ndlele (second appellant, accused 4 at trial). Both had been tried together with two other accused in the court a quo on charges including two counts of murder, robbery with aggravating circumstances, housebreaking with intent to commit robbery, and (in the case of the second appellant) unlawful possession of firearms and ammunition.

Both appellants were convicted of two counts of murder and sentenced to death on each murder count. The first appellant had also been convicted on other counts; leave to appeal in respect of those was granted to him. In contrast, leave to appeal against the convictions and sentences on the non-murder charges was refused in the case of the second appellant, with the consequence that the Appellate Division was concerned, as regards the second appellant, only with the murder convictions and the death sentences imposed for them.

The general subject matter of the dispute differed for each appellant. For the first appellant, the appeal turned primarily on the admissibility of a confession and whether it was made freely and voluntarily. For the second appellant, the appeal focused on whether the circumstantial evidence established participation in the robbery and liability for the murders on the basis of common purpose and dolus eventualis, as well as whether the death sentence was appropriate.

2. Material Facts

It was common cause, and not in dispute on appeal, that the two deceased were murdered in their farmhouse and that the murders were committed with a robbery motive. The deceased were elderly and were subjected to a brutal assault with a heavy blunt instrument, described as a “tommy-bar” and appearing to be a crowbar. The court accepted that whoever inflicted the injuries did so with the intention of causing death, and that a number of articles were stolen in the course of the incident.

Facts material to the first appellant

The court identified two sources of evidence implicating the first appellant: the evidence of Elsie Gwegwana and a confession made by the first appellant to a magistrate on 10 December 1990.

Elsie Gwegwana testified that on 1 December 1990 she saw the two appellants, the person who had been accused 3 at trial, and another person in her house in Steynsburg. They had a radio/TV combination set which they were selling, and she bought it for R300 cash obtained from others. The trial court accepted her evidence, and the set was satisfactorily identified as property of the deceased. However, both the trial court and the Appellate Division considered that this evidence, taken alone, did no more than create suspicion of the first appellant’s involvement and would not justify conviction in the absence of admissible confession evidence.

The confession was taken at about 4 p.m. on 10 December 1990. The first appellant had been arrested on Thursday 6 December 1990, questioned on Thursday and Friday, and did not make admissions until the Monday. The first appellant’s version was that the confession was induced by repeated assaults and threats by police, including an alleged threat by the investigating officer, Capt Grobbelaar, that he would be assaulted again if he did not make a statement.

The objective facts relied on by the Appellate Division included the prison admission records showing that at 6 p.m. on 10 December 1990, shortly after the confession, the first appellant had visible marks recorded by prison staff. These included, among other entries, fresh injuries to the left arm and hand and a mark consistent with chafing from handcuffs. The court treated as significant that the police evidence did not explain how injuries sustained after arrest had been caused, and that a State witness who interpreted at the confession-taking corroborated that a fresh injury was present.

The State called, during the trial-within-a-trial, the magistrate who took the confession, the interpreter, Lt Labuschagne, and Capt Grobbelaar. The first appellant alleged assaults by multiple policemen, but only Grobbelaar testified in response to those allegations.

Facts material to the second appellant

The trial court made factual findings, largely upheld on appeal, concerning the second appellant’s conduct before and after the murders.

A few days before the murders, on 27 November 1990, the second appellant (with another unidentified person) visited the deceased’s farmhouse, ostensibly enquiring whether the deceased had goats for sale. This was proved through the evidence of the deceased’s domestic servant, Mirriam Homse, whose identification of the second appellant was accepted as reliable.

On 1 December 1990, the second appellant and accused 3 were, on their own version, in possession of a black airways bag, a TV-tape combination, a submachine gun, an automatic pistol, and ammunition. It was common cause that the airways bag, firearms, and ammunition had been stolen from the deceased on the night of their murder. The second appellant’s explanation that these items had been found in a culvert near the road was rejected as wholly improbable and shown to be untrue.

On 4 December 1990, the second appellant and accused 3 handed to the State witness Sipho Jacobs for safekeeping the black airways bag containing the above items, as well as a brown linen bag containing other items which, on the trial court’s assessment of probabilities, had also been stolen from the deceased on the night of the murders. The second appellant admitted handing over items for safekeeping (though there was a dispute as to what exactly was handed over), and the evidence of other State witnesses supported Jacobs’s version on this aspect.

Fingerprint evidence also featured. A thumbprint identified as that of the second appellant was found on a standing lamp in the passage of the farmhouse. The defence attacked the fingerprint comparison methodology and reliability, and called an expert witness. The Appellate Division ultimately considered it unnecessary to reach a definitive conclusion on the fingerprint issue, because it held that, even without that evidence, the remaining facts established the second appellant’s presence at the farmhouse and participation in the robbery.

The court further relied on evidence indicating that a crowbar not belonging to the deceased was present in the house after the incident, and concluded on the probabilities that it had been brought into the house by one of the perpetrators and used in the fatal assaults.

3. Legal Issues

In relation to the first appellant, the central legal issue was the admissibility of the confession in terms of section 217(b)(ii) (as referred to in the judgment). The appeal raised, first, a question of law regarding the applicable onus under the statutory presumption, and second, a mixed question of fact and application of law to fact as to whether the first appellant had discharged the onus (on a balance of probabilities) of showing that the confession was not made freely and voluntarily.

In relation to the second appellant, the central legal issue was whether the established facts supported liability for murder on the basis of common purpose coupled with dolus eventualis, particularly whether the second appellant foresaw and reconciled himself to the possibility of death occurring during execution of the robbery. This was largely a question of applying legal standards (common purpose and foresight) to a set of circumstantial facts and probabilities, including the presence of weapons and the nature of the attack. A further legal issue arose on sentence: whether, given the mitigating and aggravating factors, the death sentence was the appropriate punishment.

4. Court’s Reasoning

The first appellant: admissibility of the confession

The court first rejected the submission that the presumption and onus under section 217(b)(ii) did not apply. Although certain answers in the confession form were relied upon to argue that the State should have borne the onus of proving voluntariness, the court held that there was no substance in that contention and proceeded on the basis that the first appellant bore the onus to show, on a balance of probabilities, that the confession was not freely and voluntarily made.

The court then examined whether the first appellant discharged that onus, emphasising that the issue required careful assessment in circumstances where the investigating officer admitted recognising that the only way to implicate the first appellant was to obtain self-incrimination through a statement. The court referred to authority indicating the need for particular caution in evaluating confession voluntariness in such a context.

Although the court acknowledged that the first appellant was a poor witness and that there were serious improbabilities in aspects of his account, it considered that these credibility concerns did not resolve the voluntariness enquiry. The court considered that a set of objective facts and probabilities supported the allegation of assault-induced confession. Among these were the following: the first appellant’s continued refusal to make admissions over several days followed by a sudden confession on the Monday; the inherent improbability, on the court’s view, that merely advising the appellant of a “right” to speak to a magistrate would explain the sudden change; and, most significantly, the unexplained injuries recorded when he was admitted to prison shortly after the confession, including injuries described as fresh by prison personnel and supported by the interpreter’s observation.

The court criticised aspects of the trial court’s reasoning where it appeared to treat earlier alleged assaults as “relatively minor” and to regard consideration of why the confession was made only on the Monday as “pure speculation”. The Appellate Division did not accept that the alleged earlier assaults, if they occurred, could be discounted in evaluating whether a later threat of further assault could induce a confession. It also held that the trial court’s reliance on a district surgeon’s alleged report (which was not produced and was not supported by the surgeon’s testimony) was misplaced and could not properly be treated as evidence countering the prison injury records.

In sum, the court held that, despite the appellant’s poor performance in the witness box, the cumulative objective factors and probabilities established, on a balance of probabilities, that the confession was not freely and voluntarily made and should have been excluded. Given that the remaining evidence (Elsie Gwegwana’s evidence) was insufficient by itself to ground conviction, the first appellant’s convictions could not stand.

The second appellant: participation, common purpose, and dolus eventualis

In relation to the second appellant, the court approached the matter primarily through circumstantial evidence and the trial court’s factual findings. It upheld the acceptance of Mirriam Homse as a reliable witness and rejected the contention that her identification was unreliable merely because the second appellant had distinctive features on the identification parade. The court held that the inference drawn by the trial court—that the second appellant’s earlier visit to the farm was consistent with reconnaissance or the sowing of the robbery plan—was a valid inference on the accepted facts.

The court treated as decisive the second appellant’s possession (with accused 3) of property and weapons that were common cause stolen from the deceased on the night of the murders, coupled with the rejection of the culvert explanation as false. The court also considered that the presence of additional stolen items in Jacobs’s custody, and the improbability of coincidental similarity of items identified by witnesses, reinforced the conclusion that the goods were the proceeds of the robbery.

Although a substantial attack was mounted on the fingerprint evidence, the court held it unnecessary to decide the fingerprint issue definitively. It reasoned that, even assuming the thumbprint was not proved to be the second appellant’s, the other established facts proved beyond reasonable doubt that he was present at the farmhouse and participated in the robbery on the night of the murders.

On the murder counts, the court accepted that the second appellant was a party to a common purpose to rob, and that the trial court’s finding on foresight and recklessness aligned with the formulation that the accused foresaw and reconciled himself with the risk that an associate might kill in executing the robbery. The court rejected the argument that foresight of death could not be established because there was no proof that the perpetrators were armed when they embarked on the venture. On the evidence, a crowbar not belonging to the deceased was found at the scene, there were no signs of forcible entry requiring its use as an entry tool, and the probabilities overwhelmingly indicated that it had been brought into the house by the perpetrators and used as an assault weapon.

The court further reasoned that the second appellant knew, from his prior visit, that the farmhouse was occupied and that the occupants could interfere with the robbery. Given the nature of the weapon and the violent manner in which the attack unfolded, and the absence of any evidence suggesting an intention merely to immobilise the victims without serious harm, the court held that the inference of foresight of fatal consequences was justified. It also relied on authority that post-offence conduct (including sharing in the spoils) may serve as an indication of state of mind at the time of the offence, while recognising that such inference is not automatic in every case.

Sentence: the second appellant

On sentence, the court considered the second appellant’s age (almost 23 at the time) and his prior convictions, including convictions for theft, housebreaking with intent to steal and theft, rape, and assault. It endorsed the trial court’s identification of a range of aggravating circumstances, including that the murders were committed for gain during a robbery, that the victims were an elderly solitary couple attacked at night in bed, the savage nature of the attack, the planning element in cutting telephone wires, and the prevalence of such attacks in isolated rural areas with the deterrent aspect of punishment accordingly prominent.

The court accepted that dolus eventualis was the form of intent proved and recognised that this can be a mitigating factor, but stressed that the decisive consideration is the degree of risk of death foreseen. Where the likelihood of death is high, the absence of direct intent or personal participation does not necessarily mitigate. On the facts, the court found no basis to infer that the second appellant did not appreciate a substantial risk of death, particularly given the anticipated possibility of resistance by Mr Booysen.

Having weighed the purposes of punishment, the court concluded that the case was sufficiently extreme that deterrence and retribution were dominant considerations and that the death sentence was the only appropriate punishment.

5. Outcome and Relief

The appeal of the first appellant was upheld. His convictions and sentences on all counts were set aside, the court having held that the confession should have been excluded and that the remaining evidence was insufficient to sustain conviction.

The appeal of the second appellant was dismissed. His convictions for murder and the death sentences imposed in respect of each murder count were upheld.

The judgment as provided did not set out a separate costs order.

Cases Cited

S v Mkwanazi 1966(1) SA 736 (A)

S v Hoosain 1987(3) SA 1 (AD)

S v Majosi & Others 1991(2) SACR 532 (A)

S v Petersen 1989(3) SA 420 (A)

S v Goosen 1989(4) SA 1013 (A)

S v Khundulu & Ano 1991(1) SACR 470 (A)

S v Dlamini 1991(1) SACR 128 (A)

Legislation Cited

Section 217(b)(ii) of the Criminal Procedure Act 51 of 1977

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the first appellant discharged the statutory onus (under section 217(b)(ii) as applied in the case) of showing on a balance of probabilities that his confession was not made freely and voluntarily, principally because objective probabilities and unexplained injuries supported his allegation of assault-induced confession. With the confession excluded, the remaining evidence merely raised suspicion and was insufficient for conviction. The first appellant’s convictions and sentences were therefore set aside.

The court held that the second appellant’s participation in the robbery was proved by strong circumstantial evidence, including possession of property and weapons stolen from the deceased on the night of the murders and the falsity of his explanation for such possession, together with other contextual facts. The court further held that, in the execution of the common purpose to rob, the second appellant foresaw and reconciled himself with the risk of death ensuing, rendering him liable for murder on the basis of dolus eventualis. The court also held that, given the aggravating circumstances and absence of meaningful mitigation, the death sentence was appropriate and should be confirmed.

LEGAL PRINCIPLES

A confession that appears to comply with section 217(b)(ii) triggers the statutory allocation of onus, requiring the accused (in the circumstances addressed in the judgment) to prove on a balance of probabilities that the confession was not freely and voluntarily made. The voluntariness enquiry is fact-sensitive and must be approached with particular caution where the police recognise that a confession is the only route to implicating a suspect.

In assessing voluntariness, credibility findings about the accused as a witness do not exhaust the enquiry; objective facts and probabilities, including unexplained injuries recorded shortly after confession and inherent improbabilities in the State’s narrative of how the confession came about, may cumulatively support a finding that the onus has been discharged and require exclusion of the confession.

For liability under common purpose coupled with dolus eventualis, participation in a joint robbery enterprise may ground murder liability where the accused foresaw and reconciled himself with the risk that an associate might kill in executing the robbery. The foreseeability assessment may be supported by the nature of the intended offence, knowledge of the likely presence of victims, the bringing of a weapon capable of causing death, the violent execution of the offence, and post-offence conduct indicative of reconciliation with outcomes.

In sentencing for murder where intent is established as dolus eventualis, the form of intent may be potentially mitigating, but the degree of foreseen risk of death is critical. Where the circumstances demonstrate a high risk of death and the offence is characterised by severe aggravating features (including vulnerability of victims, brutality, planning, and the prevalence of similar crimes), the absence of direct intent or proof of personal participation in the killing may not constitute meaningful mitigation, and the most severe sentence may be upheld.

S v Manqindi and Another (176/92, 638/92) [1993] ZASCA 107 (2 September 1993)