Brief Summary

Criminal Procedure — Confession — Admissibility of confession obtained under duress — Appellant convicted of multiple murders and related charges based on confession made while in police custody — Appellant contended confession was involuntary due to torture — Trial court ruled confession admissible after "trial-within-a-trial" — Appeal focused solely on the correctness of the admissibility ruling — Court upheld trial court's decision, finding sufficient evidence to support the confession's admissibility despite claims of coercion.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an appeal in the former Supreme Court of South Africa (Appellate Division) arising from a criminal trial in the Witwatersrand Local Division. The appellant, Charles Bongani Zwane, had been convicted on multiple counts of murder, attempted murder, arson, and contraventions of the Arms and Ammunition Act 75 of 1979, relating to a series of violent attacks in Soweto and surrounding areas. The respondent was the State.

The trial court found that the appellant’s complicity was proved in respect of three of four incidents relied upon by the prosecution. It convicted him on nine counts of murder, eight counts of attempted murder, one count of arson, and two contraventions of the Arms and Ammunition Act. For each of the murder convictions, the death penalty was imposed.

The murder convictions and death sentences served before the Appellate Division as of right in terms of section 316A(1) of the Criminal Procedure Act 51 of 1977. The trial court granted leave to appeal against the convictions on the non-capital counts. Although the factual commission of the offences was not in dispute, the appeal turned on whether the appellant was criminally liable as a participant, which in turn depended entirely on the admissibility of a single confession.

The general subject-matter of the dispute was the admissibility of a confession made by the appellant while detained under security legislation, and whether it was made freely and voluntarily, without undue influence, as required by the statutory framework governing confessions.

Material Facts

It was common cause throughout that the underlying offences were committed; the dispute concerned only whether the appellant was implicated. The prosecution alleged participation by the appellant in three incidents, each involving firearm attacks (using AK-47 rifles) and, in one instance, arson. A fourth incident formed part of the narrative because it led to the appellant’s arrest and the recovery of a relevant firearm, but the appellant was acquitted on charges arising from that fourth incident.

The first incident occurred at about midnight on 26/27 December 1988 at 1674 Orlando East (the “Orlando East incident”), premises used as a shebeen and partly occupied by policemen. The house was attacked with automatic gunfire directed into occupied rooms from more than one position. Sixty-four 7,62 mm cartridge cases were found, indicating use of AK-47 rifles, and it was clear that there were at least two assailants who fired indiscriminately. The attack resulted in five deaths and multiple serious injuries, giving rise to the appellant’s convictions on five counts of murder and five counts of attempted murder linked to this incident.

The second incident occurred on the evening of 20 January 1989 in Meadowlands, where three uniformed municipal policemen on foot patrol were ambushed and shot at from near parked vehicles (the “Meadowlands incident”). Two policemen were killed, one policeman survived with an injury, and a bystander was also killed. Evidence indicated that at least one assailant fled while continuing to fire and escaped in a vehicle. This incident formed the basis for convictions on three counts of murder and one count of attempted murder.

The third incident took place on the night of 22 February 1989 at the home of Mrs Dudu Chili in Orlando West (the “Chili house incident”). Two children were sent to the Chili house after a telephone call prompted concern, and the house was reportedly surrounded by members of the “Winnie Mandela Soccer Club”. Shots were heard, followed later by further shots and a muffled explosion; the house caught fire. Two children escaped with burn injuries, while Finkie Marcia Msomi (aged 13) was fatally shot in the head and later found in the burning house. The attack was linked, on the evidence accepted in the background narrative, to revenge for the death of a member of the “Winnie Mandela Soccer Club”, Maxwell Madondo, allegedly killed by Mrs Chili’s son. The trial court convicted the appellant on one count of murder, two counts of attempted murder, and one count of arson arising from this incident.

A fourth incident occurred on the night of 1 April 1989 at a shebeen at 8139 Orlando West, involving an altercation, a knife, and the subsequent throwing of a hand grenade into a room, causing deaths and injuries. The appellant was present earlier in the shebeen, but he was acquitted of the charges arising from this incident. Despite the acquittal, the incident was material in that it led to the appellant’s co-operation with police in pointing out Sonwabu’s house, where a shootout occurred and an AK-47 (serial number 3213) was recovered. That weapon was linked to the earlier shootings.

The appellant was arrested on 3 April 1989 and detained in custody under section 29 of the Internal Security Act 74 of 1982 at the Protea Police Station. On 28 April 1989, while so detained, he made a confession to a magistrate, recorded as exhibit N. On appeal it was accepted, due to concessions, that if exhibit N was admissible it proved guilt on all counts of conviction, while without it no conviction could stand. The case therefore depended entirely on whether the confession was properly admitted.

The appellant alleged in a trial-within-a-trial that the confession was not voluntary because he had been assaulted and tortured by police, including being subjected to electric shocks and threats that he should repeat the inculpatory account before a magistrate and not disclose the assault. The State, primarily through Warrant Officer Havenga and Captain Badenhorst, denied any assault, torture, or undue influence, and maintained that the appellant volunteered incriminating information during interrogation and thereafter elected to confess.

Legal Issues

The central legal question was whether the confession (exhibit N) was admissible under the statutory requirements regulating confessions, specifically whether it was made freely and voluntarily and without undue influence.

The dispute required the court to determine questions that were primarily factual, namely the reliability of the competing versions regarding alleged torture and threats, and whether the appellant had discharged the statutory onus. It also involved the application of law to fact, because the factual findings as to voluntariness and influence had to be measured against the requirements of section 217(1)(b) of the Criminal Procedure Act 51 of 1977.

A further issue, contingent upon the confession being admissible and the convictions standing, concerned sentence: whether, in the circumstances, the death penalty was the only proper sentence for each of the nine murder convictions. This involved an evaluative sentencing judgment balancing aggravating and mitigating features.

Court’s Reasoning

The Appellate Division treated the admissibility of exhibit N as dispositive. It approached the matter on the basis that, under section 217(1)(b) of the Criminal Procedure Act 51 of 1977, the appellant bore the onus of proving that the confession was not made freely and voluntarily or that it was induced by undue influence.

The court evaluated the appellant’s evidence critically and acknowledged that certain criticisms advanced against his case were, in the circumstances, either of limited weight or required contextual caution. In particular, it considered that a detainee who had in fact been tortured might predictably deny assault when questioned by a magistrate, because of fear of further police control or retribution. In this regard the court referred to authority recognising that a failure to complain to an official does not necessarily disprove coercion where fear persists.

At the same time, the court identified substantial weaknesses in the appellant’s version. It noted serious contradictions in his testimony, including passages in which he appeared to state under cross-examination that the confession was made voluntarily, which could not readily be reconciled with his primary allegation that torture caused him to confess. The court observed that these contradictions were not explained through re-examination or by clarification from the trial court, and while it did not treat them as conclusively destroying the defence, it regarded them as inconsistent with confident and truthful testimony on a vital issue.

The court also considered, and placed in perspective, other weaknesses in the appellant’s case. Evidence from the appellant’s relatives and associates about whether he complained of torture while in custody was conceded on appeal to be flawed and worthless, and the court treated it as such. The court further held that the absence of visible rope marks did not necessarily carry decisive weight in the absence of evidence that the rope had been tied directly against his skin.

However, the court found a more compelling improbability in the appellant’s narrative concerning the alleged conduct of Warrant Officer Havenga. On the appellant’s own version, the relationship between himself and Havenga had previously been cooperative and even friendly, and Havenga’s evidence confirmed the cooperative relationship and was not challenged. Against that background, the court regarded it as improbable that Havenga would have abruptly assaulted the appellant and proceeded to torture him without first questioning him in a manner that coherently related to information supposedly in police possession. The court also found the appellant’s description of the second day’s alleged torture preparation unconvincing, especially given that the appellant maintained he was not afraid upon entering the room where the torture machine had allegedly been used the previous day, and could not satisfactorily explain why Havenga would immediately accuse him of non-cooperation and proceed to torture him despite the prior day’s purportedly satisfactory collaboration.

Having weighed the evidence as a whole, the court concluded that the appellant’s evidence was contradictory, improbable in material respects, and unreliable. By contrast, the trial court had found the State witnesses to be good witnesses, and appellate counsel could not point to inherent shortcomings warranting rejection of their testimony. The Appellate Division therefore held that the appellant failed to discharge the statutory onus, and the confession was correctly admitted.

The court separately addressed the argument that detention under section 29 of the Internal Security Act 74 of 1982 and sustained interrogation might itself constitute undue influence. While acknowledging that admissions or confessions by persons detained under such provisions warranted special scrutiny, the court held there was no substance to the submission on the facts. It emphasised that the appellant had not contended that detention conditions (apart from the alleged assault and electric shocks) caused the confession, and had expressly confirmed under cross-examination that solitary confinement did not influence his making of the statement.

On sentence, the court considered whether the death penalty imposed for each murder count was the only proper sentence. It emphasised the manifest aggravating features: the attacks were premeditated, executed with lethal automatic weapons, and directed either indiscriminately at occupants of a shebeen associated with policemen, at uniformed policemen with a view to robbery of firearms, or as revenge resulting in the death of a child and burning of a house. It treated the appellant’s youth (19½ at the time) as the only valid mitigating factor, but held that it was outweighed by the gravity and circumstances of the offences, requiring emphasis on retribution and deterrence and rendering the death penalty the only proper sentence on each murder count.

Outcome and Relief

The Appellate Division dismissed the appeal. The confession (exhibit N) was held to have been properly admitted, with the result that the convictions dependent upon it stood. The death sentences imposed for each of the nine murder convictions were upheld as the only proper sentences in the circumstances. The judgment, as provided, does not record any separate or additional costs order.

Cases Cited

S v Mbonane 1979(3) SA 182(T)

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

S v Dladla 1980(1) SA 526(A)

S v Hassim and Others 1973(3) SA 443(A)

Legislation Cited

Arms and Ammunition Act 75 of 1979

Criminal Procedure Act 51 of 1977 (section 316A(1); section 217(1)(a); section 217(1)(b))

Internal Security Act 74 of 1982 (section 29; section 29(9))

Rules of Court Cited

No rules of court were cited. The Judges’ Rules were referenced in relation to the warning administered before taking an admission/confession.

Held

The court held that the appellant failed to discharge the onus under section 217(1)(b) of the Criminal Procedure Act 51 of 1977 of proving that the confession (exhibit N) was not made freely and voluntarily or was induced by undue influence. The confession was therefore admissible, and it was accepted on appeal that its admissibility sustained the convictions.

The court further held that, given the nature and seriousness of the murders, the premeditated and destructive character of the attacks, and the limited mitigation (the appellant’s youth), the death penalty imposed on each of the nine murder convictions was the only proper sentence. The appeal was dismissed.

LEGAL PRINCIPLES

A confession is admissible only if the statutory requirements for voluntariness and absence of undue influence are met; where section 217(1)(b) of the Criminal Procedure Act 51 of 1977 applies, the accused bears the onus of proving that a confession was not freely and voluntarily made or was induced by undue influence.

Where an accused alleges coercion, a court must assess credibility and probabilities on the evidence as a whole, and contradictions, improbabilities, and demonstrable untruthfulness may justify a finding that the accused’s version is unreliable, with the result that the onus is not discharged.

The fact that an accused, particularly one in custody, denied assault or failed to complain to officials does not necessarily negate coercion; fear of further police control may explain silence or denial, and such confessions require careful scrutiny, especially where detention occurs under security legislation.

In sentencing for multiple premeditated murders involving indiscriminate lethal attacks, robbery-motivated killings, and revenge attacks causing extreme harm, a court may regard deterrence and retribution as predominating over mitigation; youth may be a relevant mitigating factor but can be outweighed by exceptionally grave aggravating circumstances such that the death penalty is considered the only proper sentence on each murder count.

S v Zwane (444/90) [1993] ZASCA 116 (9 September 1993)