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[1993] ZASCA 194
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S v Potwana and Others (66/91) [1993] ZASCA 194 (30 November 1993)
66/91 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
FREDDY ALFRED POTWANA
FIRST APPELLANT
EZEKIEL
MANDLAZI
SECOND APPELLANT
GIDEON KGASOANE
THIRD APPELLANT
RONNIE FAKUDE
FOURTH APPELLANT
and
THE STATE
RESPONDENT
CORAM
: BOTHA, HEFER et KUMLEBEN JJA
HEARD
: 15 NOVEMBER 1993
DELIVERED
: 30 NOVEMBER 1993
JUDGMENT
KUMLEBEN,JA
/...
2
KUMLEBEN
JA
During the evening of 26 July 1986 the deceased, Zeblon
Kunene, was attacked and killed in his home at Kanyamazane in Kangwane. He
had
extensive business interests in that area and was also prominent in civic
affairs. His assailants gained entry to his house on
the pretext of wanting to
buy liquor. He was overpowered and fatally shot, though armed with a pistol at
the time. This led to the
four appellants and a fifth person, Mr Moses Nxumalo,
being charged with murder. Since the pistol could not be found, it was the
subject of a second charge, one of robbery. The appellants were convicted on the
first count and sentenced to death, but were found
not guilty on the robbery
charge. (Nxumalo was acquitted on both counts.) Their convictions and sentences
are before us on appeal
in terms of s 316A of the Criminal Procedure Act 51 of
1977 (the "Act").
3
The matter was heard in the South
and
South Eastern Circuit Local Division of the
Supreme
Court before Curlewis DJP and assessors. The
trial
took the following course. The widow of the
deceased
explained, in more detail than I have sketched,
how
the deceased came to be killed. The State
then
sought to rely on two written confessions made by
the
first appellant and one by each of the others.
The
admissibility of these statements was contested
on
the grounds that they had been induced by threats
and
assaults. This led to an interposed and
separate
enquiry to resolve this issue. The court ruled
that
the State had proved beyond reasonable doubt
that
the statements had been freely and voluntarily
made
and they were received in evidence. Before
closing
its case, the State adduced no other evidence of
any
significance incriminating the appellants.
They
thereafter elected to testify and subject
themselves
4 to cross-examination: each merely stated in
evidence-in-chief that he knew nothing about the commission of the crimes. It
should
be mentioned that, according to the summary of material facts annexed to
the indictment, the State case was that the murder was planned
by the the third
appellant and Nxumalo and carried out by the other three appellants with perhaps
others involved. It was suggested
by State counsel during cross-examination that
the deceased and Nxumalo, who was also a well-known and influential business man
in
those parts, were competing applicants for the grant of a liquor licence and
that this gave rise to the commissioned killing of the
deceased.
The evidence adduced by the State at the enquiry was to the following
effect. Initially the local South African Police at Nelspruit
were entrusted
with the investigation of the case. When
5 no progress had been made
for some three months, the Brixton Murder and Robbery Unit, stationed at the
Brixton Police Station in
Johannesburg, was called in during October 1986 to
work on this case in conjunction with the Kangwane police. They too had no
success
in tracing suspects. In May 1988 the matter was again left in the hands
of the Kangwane police. In July 1989, three years after the
murder, the first
appellant was arrested at Nelspruit by Captain Oberholzer, who was a member of
the South African police seconded
to the Kangwane police force. Warrant Officer
Wessels of the Brixton police was informed of the arrest and interviewed the
first
appellant at Nelspruit. He denied all knowledge of the crime, but Wessels
felt that he was not telling the truth. On 21 August 1989
Brigadier Engelbrecht
instructed Wessels to take charge of the investigation. He was to operate from
Brixton with a
6 squad consisting of Detective Warrant Officer
Monene, Detective Sergeant Weyers and Detective Sergeant Makate. During the
ensuing
days this team was anything but idle. Their investigation can best be
recounted in diary form. And it is necessary to do so in some
detail since the
judgment of the court a
quo
does not systematically or comprehensively
set out the background facts which bear upon the issue and enable one to view it
in proper
perspective. I should also mention that precise references to time are
taken from the evidence of Wessels. He explained that he had
recorded events
contemporaneously in his pocket book and later transcribed them when preparing a
statement for the docket. He referred
to this statement when giving
evidence.
23 August 1989
: Wessels interviewed the first appellant at the
Nelspruit prison. He was told, or inferred, that the first appellant could not
make
any
7 disclosures at Nelspruit because he feared for his life.
Wessels did not pursue the matter further at that stage, but discussed
it with
Oberholzer. The latter decided to withdraw the charge against the first
appellant. (It is not clear whether this was done
with the approval of
Wessels.)
24
August 1989
: Wessels and Weyers returned
to
Johannesburg.
25
August 1989
: When the first appellant
was
discharged by the court, Monene and Makate,
as
instructed by Wessels before he left,
promptly
arrested the first appellant and escorted him
to
Johannesburg. At 15h50 Wessels interrogated the
first
appellant in the presence of Monene and Makate
in a waiting room at
the Brixton police station. The
first appellant confirmed what he
had said to Wessels
at Nelspruit and added that he feared being
detained
at Nelspruit if the persons named by him were to
be
8
arrested. When asked by Wessels, he said that he was prepared to repeat
what he had told him before a magistrate or justice of the
peace. At 16h30
Wessels arranged for Captain Olivier to interview him and record his statement.
This he did at 17hl5.
26
August 1989
: The first appellant agreed to
lead
them to where suspects might be found and
identified
by him. They left from Brixton shortly
before
midnight.
27
August 1989
: During the course of the day
the
first appellant led the investigating team to
places
in Kanyamazane where the fourth appellant and
later
the second appellant were found, identified by
the
first appellant and arrested. The second
appellant
was interrogated by Wessels and others at
the
Kanyamazane police station. He denied any
complicity
alleging that he was at the time in custody at
the
Nelspruit prison. He was taken to that prison
where
9 its records refuted his alibi. On their return to
Kanyamazane, Wessels instructed Monene and Makate to convey the second and
fourth
appellants to Middelburg and detain them there. Also on this day Wessels
arranged with Lieutenant van der Merwe to supervise a "pointing
out" exercise
which the first appellant was prepared to carry out. That evening he further
assisted Wessels and other policemen in
finding and identifying another suspect,
Mr Solly Masheane.
28
August 1989
: The third appellant was traced to
an
address in Witbank with the help of the
first
appellant and he too was arrested. Monene and
Makate
were instructed to take the second and
fourth
appellants to Brixton police station whilst
Wessels
and Weyers returned there with the third
appellant
and a further suspect, William Nkosi, who had
also
been arrested.
29
August 1989
: The investigating foursome
10
interrogated the second appellant from 14h30 to 14h53; the fourth
appellant from 15h05 to 15h20; the third appellant from 15h25 to
15h45; Nxumalo
from 15h52 to 16h07; and Solly Masheane from 16hl2 to 16h25. The three
appellants made certain disclosures to their
interrogators and were prepared to
repeat their statements and have them recorded. That same afternoon, after
Weasels had made the
necessary arrangements, Lieutenant Zeelie took the
statements of the second and fourth appellants at 17h20 and 18h04 respectively;
and Colonel Earle that of the third appellant at 18h36.
30 August 1989
: After a further discussion with Solly Masheane,
Wessels released him. The rest went to Nelspruit where the second and fourth
appellants
pointed out certain places with explanatory statements which were
recorded.
7 September 1989
: Wessels and Weyers took the first
11
appellant back to Nelspruit. On the way he expressed a desire to point
out another suspect. He led them to a house near Witbank but
this person was not
there. According to Wessels, as the investigation with the first appellant
progressed, he became more and more
friendly and co-operative and on this
journey made disclosures not contained in his initial statement. These comprise
his second
statement which was reduced to writing by Lieutenant Gouws.
9 September 1989
: Wessels arrested Nxumalo and within half an hour
started interrogating him. At his request he was allowed to summon his attorney.
After consulting with his legal representative, Nxumalo denied any involvement
in the crime and declined to say anything further.
No confession was forthcoming
from him.
As appears from the above chronicle of events, Wessels was the leading
figure in the Brixton
12
investigating squad. He, Meyers and Monene gave evidence at the enquiry.
Each denied that the appellants were threatened, assaulted
or any in way
influenced to make their statements. There is no need to refer to the other
State witnesses who gave evidence at this
enquiry. Their evidence was of a
formal nature and not challenged. The appellants explained on oath that they had
confessed involuntarily
and in support of this defence the third appellant
called a witness, Miss Rose Mahlanga.
On the State case relating to the admissibility of the statements the
following conclusions and comments are warranted and indisputable.
(i) The
statements made by the appellants amounted to confessions conclusively
implicating each in the murder of the deceased, (ii)
These confessions were
accurately recorded after the
13 customary preliminary questions had
been answered by each appellant. (iii) The "pointing out" exercise, and the
incriminatory statements
made at the time, need not be separately considered: if
the confessions are inadmissible, the pointing out and accompanying statements
must likewise be disregarded: cf
S v Sheehama
1991(2) SA 860 (A) 874 A -
B. (iv) It was in fact common cause that the correctness of the convictions
depends entirely on the admissibility
of confessions made in terms of s 217(1)
(a) of the Act. The appellants agree with the sequence of events as set out in
the State
case but allege, as I have said, that they were compelled or induced
to confess.
The first appellant explained that, after the charge against him had been
withdrawn at Kanyamazane, as he walked from the court he
was confronted by
Monene and Makate, He was grabbed from
14
behind and told to keep walking as he was
pushed
forward. One of the policemen pointed a firearm
at
him. He was taken to a Combi, handcuffed and
placed
in it. They drove off with him. On the journey
they
questioned him about the crime. He denied
any
knowledge but this was not accepted. He was
told
that if he did not admit his complicity he would
be
shot in the veld on the pretext that he had tried
to
escape. On their arrival at Brixton police station
he
was told that he was at the end of the line - at
"the last station"
- and that unless he confessed he
would be eliminated. At this stage
a letter written
by him was found in his pocket. It was intended
for
his family to tell them, should he disappear,
what
had happened. It was only under
cross-examination
that this letter was referred to and it was
not
produced or handed into court. He explained how
it
had come to be written: the day after his arrest
15 Oberholzer had interrogated him and said that he had better confess
otherwise he would be in trouble when the Brixton police arrived.
These threats,
he said, caused him to confess before Olivier. At a later stage he was told that
his statement needed amplification
and hence his second confession.
The evidence of the second appellant was to the following effect. On the
journey in the Combi from Nelspruit to Middelburg Monene
asked him how the
deceased had met his death. When he said he did not know, Monene said
"jongmanne, julle is bale jonk, ons gaan
nou na Brixton toe en as julle nie
doodgaan nie, gaan julle kruppel wees." Monene said that he should reflect on
this. The next morning
he was taken from his cell to a room on the top floor of
the Brixton police station building where he found Wessels, Weyers and two
other
policemen. He was stripped down to his underpants and tied to a chair.
Makate
16 threatened him with his life if he failed to tell the
truth and placed a wet sack over his head. Water was thrown on him and he
had
difficulty in breathing. He said "Ek net toe op my gemors as gevolg van die feit
dat ek nie asem kon haal nie." Electric shocks
were applied to his left leg and
genitals. Each time this did not elicit information from him, the procedure was
repeated. Ultimately
he succumbed and asked them what he was expected to say.
The details of the offence and his involvement, as ultimately recorded in
his
statement, were then furnished by them. He was told that when he confessed he
was not to tell that he had been assaulted: he
was to give the impression that
he was speaking voluntarily. His interrogators by clear implication said that if
he did not do so
he would be killed.
The fourth appellant confirmed in substance the threats made on the
journey from Nelspruit. That
17 same morning he too was taken from
his cell to a room in the Brixton police station building. He was shown the
second appellant,
who was asked by a policeman to explain to him, the fourth
appellant, the coercive treatment he had received. He said "hier is ek
dood" and
without more the second appellant was removed from his presence. A
"tokkelossie", as the electrical apparatus was described
to him by the police,
was produced and he was subjected to the same treatment as his brother. He could
not withstand the pain and
undertook to make a statement. What he told Zeelie
that same afternoon, he said, was not the truth but what had been related to him
by his interrogators. The electric shocks caused him to limp, but in the
presence of Zeelie he attempted to walk normally as he had
been warned not to
give any indication of having been assaulted.
The evidence of the third appellant was
18 that upon his arrest, Wessels asked whether he knew the first
appellant and Nxumalo. He admitted that he knew them but denied all
knowledge of
the crime. The next day he was taken from his cell to a room on the first floor
of the Brixton police station. Wessels,
Monene and Weyers were present. Wessels
produced some papers, which he, the third appellant, had seen the previous day
when Wessels
questioned him. He was told to admit that Nxumalo had instructed
him to kill the deceased. This he denied. He was thereupon tortured
in the
manner previously described. When he could no longer bear it, he responded to
their instruction to incriminate Nxumalo by
fabricating evidence against him.
They desisted from torturing him and said that he would be fetched to make a
statement. He was
warned not to deviate from what had been told to him by his
interrogators. He in due course "confessed" to Earle. His statement was
read
19 by Weasels and he was satisfied with it. When asked under
cross-examination why he had not told Earle about the coercion he gave
these
answers: "How could I have done that, because I was told that if I do not say
the same thing that they told me, I would have
to come back to them and been
assaulted, shocked again" and "Now, how could I have done that, reported that to
him, because he was
also a policeman, how can I report another policeman to
another policeman?"
The circumstances in which a court may during the course of such an
enquiry have regard to the substantive part of a confession are
well
established. As explained by Rumpff JA in
S v Lebone
1965(2) SA 837 (A)
841H - 842C:
"Die geskilpunt in die onderhawige saak was of voldoen is aan die
bepalings van art. 244 (1) van die Strafkode en of die appellant
die bekentenis
vrywillig en sonder onbehoorlike beinvloeding afgele het. Vir doeleindes van
daardie ondersoek is die waarheid van
die inhoud van die verklaring in die
algemeen
20
gesproke irrelevant en geen verhoorhof
sal
toelaat dat 'n aanklaer probeer om te bewys dat
die
inhoud waar is nie, 'n bewyslas wat hy
juis probeer kwyt deur die
bekentenis toegelaat
te kry. Kruisverhoor van 'n beskuldigde
deur
die Staatsaanklaer oor die waarheid van die
inhoud
van die bekentenis is derhalwe, in die
algemeen gesproke, nie
tersaaklik nie en sal
nie toegelaat word nie. Anders is die
geval
egter wanneer die beskuldigde self beweer dat
die
inhoud van sy bekentenis vals is en deur
die Polisie ingegee is en
hierdie feit gebruik
word as deel van sy saak dat hy deur
die
Polisie gedwing is om 'n verklaring te maak.
In so
'n geval moet die aanklaer die reg he om
die beskuldigde onder
kruisverhoor te neem oor
die inhoud van die bekentenis om aan te
toon
dat die beskuldigde self die bron van die
inhoud is
en nie die Polisie nie, soos deur die
beskuldigde beweer. Die
kruisverhoor word dan
gedoen met die doel om die
geloofwaardigheid
van die beskuldigde aan te tas, 'n
relevante
onderwerp, en nie om te bewys dat die
inhoud
waar is nie. Die inhoud van 'n bekentenis kan
dus
relevant word, in sekere omstandighede, in
verband met die vraag of
die verklaring
vrywillig afgele is en dan sal kruisverhoor
oor
die inhoud toegelaat word vir sover dit deur
die
omstandighede geregverdig is."
See too
S v Talane
1986(3) SA 196(A) 204H - 205E and
S V
Khuzwayo
1990(1) SACR 365(A) 371a - 374c. It is
21 therefore
only if and when the defence raises the issue of falsity that cross-examination
by the prosecutor, should he elect to
do so, is permitted on the contents of the
confession.
Mr Malan, who appeared for the respondent before us and at the trial, was
mindful of the correct procedure to be followed. At the
outset of the enquiry he
handed up two confessions, relating to the second and fourth appellants
(exhibits E and F), in order to
place the preliminary questions and answers and
the concluding notes before court, but with the substantive portion of the
confession
excluded. Curlewis DJP (the "court") reacted by saying:
"Well, you do not need at the moment, to exclude them at all because I
want to know what the cross-examination is. We will wait until,
if it is of a
certain nature, then of course my assessors and I will look at what he
said."
22
This was at the stage when Zeelie had been called as a witness formally
to state that he had recorded those confessions. As soon as
counsel for the two
appellants disclosed by questioning the witness that the defence was that they
were not voluntarily made, the
court intervened in the following
manner:
"COURT: But they say they were forced to say
that?
MR SAAIMAN
: That is so.
COURT
: Is that correct. So, there is no need to call the 'tolk.'
The other thing I want to know is this Mr Saaiman, please tell me, your
clients,
do they allege that that which is said there, was given them to say, or is it
their own words, their own?
MR SAAIMAN
: No, it was given to them.
COURT
: It was given
to them to say?
MR SAAIMAN
: Yes.
COURT
: Well you better, alright, he would not know about that
presumably, but then let me have it. If that is so, then I want to see those
statements please, and so do my assessors."
23
The same attitude was adopted when it was proposed to hand in the second
confession of the first appellant (exhibit G) with the substantive
portion
excluded. During the cross-examination of Gouws the following
occurred:
"MNR MORE
: Volledigheidshalwe en vir sover u daarop kan kommentaar
lewer wil ek dit aan u stel dat hy se dat hy voorgese is om die inhoud so
aan u
mee te deel? — Dit is ook nie aan my
meegedeel deur horn nie.
CROSS-EXAMINATION BY MR SAAIMAN
: No questions.
RE-EXAMINATION BY MR MALAN
: No questions.
COURT
: Is it admitted Mr More that that correctly reflects what
was said?
MR MORE
: Indeed.
COURT
: So, it is not necessary then to call the
interpreter.
MR MORE
: Yes
NO FURTHER QUESTIONS
COURT
: Let me have that as well then because
24
the 'inhoud' then becomes relevant. That will be G,
provisionally."
This conduct on the part of the court
was not restricted to the confessions. As I have said, the pointing out was
accompanied by incriminating
statements which were recorded. When Mr Malan
sought to restrict the evidence to the pointing out without any reference to the
statements,
the court insisted that they be placed before it. This appears from
the following passage when Mr Malan was leading the evidence
of Lt van der
Merwe:
"
MNR MALAN
: Sal u begin met die uitwysing wat deur nr. 1 gedoen
is?
COURT
: Have you got copies of that?
MR MALAN
: Yes, but these include the statements at the
moment.
COURT
: Statements of what?
MR MALAN
: Of what was said at the pointings out.
25
COURT
: Well, you want that, do you not?
MR MALAN
: I am not sure if my learned friends agreed ...
(intervenes)
COURT
: No, no, no, do not let us mess around, we are having a
trial within a trial about that and so, let it all go there, I mean let him
have
the entire thing that he took down.
MR MALAN
: Yes, he has that.
COURT
: Has he?
MR MALAN
: I thought your lordship wants it.
COURT
: No, I want to know first if counsel, 1 and 2, have you got, Mr
More have you got the pointing out?
MR MORE
: Yes.
COURT
: Yes. Well, now you can give me these to give a preliminary
number. That will be what, G
and H shall we call it? No, no, H and I."
and a
little later
"MNR MALAN
: Goed, ek dink die inhoud is op hierdie stadium nie ter
sprake nie.
HOF
: Nee, jy kan die inhoud uitlees, ons kan nie die ding so in die
wiele ry nie. Ons sal weet as dit nie toelaatbaar is nie, dan is
dit
26
nie toelaatbaar nie. Ek meen, net soos by die ander, daardie inhoud moet
ons sien weens die besondere weergawe wat hulle gee dat hulle
voorgese is. Mnr.
More, mnr. Saaiman, is dit nou u houding dat hulle gese is wat om te se en net
daar te staan en so meer?
MNR SAAIMAN
: Ja.
MNR MORE
: Inderdaad, ja.
HOF
: Ja ek verneem dit was die, ja u kan maar uitlees, laat ons nie
die ding ophou nie."
It is plain from the authorities
quoted that it was quite irregular for the court to have insisted on these
confessions and statements
being placed before court as part of or during the
State case. Only when each of the appellants elected to give evidence at the
enquiry,
could counsel for the State decide whether to cross-examine such
appellant with reference to any part or to the whole of his confession.
In the
former event only those portions referred to in cross-examination would become
part of
27
the record. The conduct of the court in this
regard
was therefore irregular and
potentially
prejudicial to the appellants (cf
S v Gaba
1985(4) SA
734(A) 749 H - I). Furthermore, the
apparent
avidity with which it sought to have the
confessions
and statements before it, must have created
an
impression of partiality. I leave the matter
there:
for reasons which will later emerge, it
is
unnecessary to decide whether this feature of
the
case in itself amounted to a fatal irregularity
or,
if not, whether the appellants were in the result
not
prejudiced thereby.
The trial court, as I have said, ruled that the confessions were
admissible. It is clear from the reasons for this conclusion stated
in the
judgment, that the principal - if not the decisive -ground for the rejection of
the evidence of the appellants on the critical
issue of whether they
had
28 confessed voluntarily, was their denial of the truth of their
confessions. The content, detail and length of each confession amply
demonstrate
that the appellants, despite their assertions to the contrary, spoke from
first-hand knowledge and were not fabricating
or recounting what was told to
them. After some introductory remarks in the judgment, a consideration of the
merits starts with the
following comment:
"Well, the whole issue as far as counsel were concerned, revolved round
the statements that were made to the police. We had a trial
within a trial and
we admitted these statements, we were satisfied beyond doubt that they were
freely and voluntarily made. I do
not know whether the accused think that we are
children to be imposed upon by the ridiculous stories they told. If they did
think
so, they are much mistaken. The version of no. 1 is much the same as the
version of the others, that they were told by the police
what to say in their
statements. It is a ridiculous postulate, one only has to look at the
statements, quite apart from the content,
just look at the length of the
statements to see what nonsense that is."
29
The judgment proceeds, if I may say so, to
emphasize the obvious: that each appellant in making his confession was speaking
from first-hand
knowledge and truthfully. The court returns to this criticism on
two further occasions by stating that :
"[T]he accused, all of them start off under the handicap of having told
lies concerning the method by which the statements were made.
Mr Jordaan said
no. 3' s statement is a short one, easy enough to fall in as it were, it could
have been as he states, because no.3,
it will be remembered said that he was
merely given a sort of outline of what he should say and for the rest he should
fill in as
he thought fit.
Mr Jordaan pressed upon us that he thought that no. 3 was a good witness.
Well, he is wrong, he may have thought so sitting where
he is, but as far as we
are concerned he was a bad witness, as was 1, 2, and 4 were bad
witnesses.
I may say, having to tell such a ridiculous tale as they had to tell
which they had made up, it is not surprising they appeared to
have little
confidence in what they were saying. But to get to Mr Jordaan's point that this
might well have been so in respect of
no. 3 because after all, he argued, if one
looks at the statement, it
30
could possibly be true that he filled out matters when he was simply given
an outline. This cannot go up. I mean, how was whoever
it was (whether it was
Weyers or Wessels or whoever) able to teach him to say that he was helped by no.
5 and therefore he was not
going to get any money. No one knew that except
himself."
and at a later stage in the judgment:
" [I] t is such an absurdity for the accused to say that these things were
all taught to them like a parrot, in which case they would
read that way, they
would all be the same."
There can be no doubt that the
court attached undue importance to this feature of their evidence. The fact that
they were lying in
this regard must be seen in context and assessed accordingly.
One may confidently conclude that these false assertions stem from
the
erroneous, though understandable, perception that a failure to dispute the
authorship or authenticity of a confession would,
31 or might, prove
prejudicial even though at the end of the enquiry the confession is ruled out.
After all, it requires a rather
sophisticated knowledge of the judicial process
and the objectivity of the presiding official to appreciate, and be confident,
that
no such risk of prejudice exists. For this reason it is a matter of common
experience for an accused person to give false evidence
in this respect. This is
not to say that this defect in their evidence is to be entirely disregarded. But
it cannot, and ought not,
to serve as a cogent reason for rejecting their
evidence on the pertinent question, namely, whether their confessions were as a
result
of assaults and threats. In
S v Mofokeng and Another
1968(4) SA
852(H) 854H - 855C, Colman J, after it was proved that the accused had falsely
denied the authorship of their confessions,
said:
"That, however, does not conclude the enquiry.
32
I may not receive in evidence a confession, even if I believe its
contents to be true, unless I am satisfied beyond reasonable doubt
that it was
freely and voluntarily made and that the accused person who made it was not
unduly influenced within the meaning of
sec 244(1)
of the
Criminal Procedure Act
to
make it. The fact that the accused are unreliable witnesses does not of
itself mean that the State's burden of proof has necessarily
been discharged. In
saying that I am not unmindful of the remarks of WILLIAMSON, J.A., in
S. v.
Mkwanazi
,
1966 (1) S.A. 736
(A.D.) at p. 747. Those remarks embody an
injunction against the rejection of a confession on the basis of mere conjecture
unsupported
by any evidence. But considered in their context they do not mean
that a trial Court, which has found the accused to be an unsatisfactory
witness,
is thereby relieved of the duty to weigh up the evidence as a whole in order to
decide whether the prerequisites to admissibility
have been proved beyond
reasonable doubt. It has to be remembered that, especially in a capital case, an
accused person has a most
powerful motive for seeking to have his confession
rejected. Because of that he may lie; but for the same reason he may exaggerate
or distort an event which has really taken place, and in so doing discredit
himself. It is my duty therefore to examine the Police
evidence about the
circumstances leading up to the confessions."
Other reasons relied upon by the court -
33
ancillary ones it would seem - are also open to criticism. I refer to the
following.
Rose Mahlanga said she was arrested at about 4h00 one morning in October
1987. She was taken to the Belfast police station where she
was handed over to
six policemen of the Brixton Murder and Robbery Unit. She had been arrested in
connection with this murder. She
was asked whether she knew Nxumalo and whether
the murder had not been planned in her home. This she denied. She was thereupon
driven
to a certain place where she was blindfolded, stripped down to her
underwear, and subjected to electrical shocks until she lost consciousness.
When
she recovered, she steadfastly maintained that she knew nothing about the
offence. Monene then took her to Brixton where a "white
policeman" interrogated
her and she was again tortured in the same manner until midnight. The
next
34
morning she was asked further questions
about Nxumalo not directly relating to the crime and these she did answer. She
was then released.
She proceeded to see a doctor in connection with the assaults
upon her and reported the matter to Nxumalo. He was well-connected
with certain
influential politicians. On his advice she reported the matter to the Member of
Parliament for Nelspruit. This led to
her seeing the Deputy Minister of Police
in Cape Town, to whom she reported the matter and provided him with a medical
certificate.
Her evidence was foreshadowed during the cross-examination of
Monene. He admitted that he was present when she was interrogated but
denied
that she was in any way maltreated. He said that Captain le Grange was one of
the policemen involved. This question by counsel
for the third appellant
followed: "You see the difficulty I have is that she cannot remember the names
of the people that asked all
the
35
questions, but she says you were present, so you have got to help us. So,
you were always present when she was asked questions?" Before
an answer was
given, counsel was diverted from this enquiry by the court interrupting and
saying "How can she answer that?" and no
more questions were asked to establish
the identity of her interrogators. The required information could in all
probability have
been furnished by Monene or else the members of the Brixton
unit involved in this case could have been brought into court to afford
her the
opportunity of identifying them. It is unfortunate, indeed surprising, that
neither counsel nor the court thought of reverting
to this question or of taking
steps to find out whether Wessels, Meyers or Makate numbered amongst the
policemen referred to by her.
However, what does emerge from her evidence, which
is to be accepted since it went unchallenged by any
36
cross-examination, is: that policemen of the Brixton unit were prepared to
employ third degree tactics to obtain information about
this murder; that Monene
was one of those involved in such unlawful pursuit; and that she was so severely
tortured that she took
the matter further in the manner described by
her.
The court referred to her evidence in the judgment saying:
"Now, Rose's evidence really had very
little
relevance to the whole matter, ... [that]
depends
in the first instance upon whether we
accepted what Rose had said .
. . that we are
quite satisfied that Rose did not tell the
truth
in this court, neither did she tell the truth
when
she was taken to Mr Marais, I believe he is
the National MP of this
town and through him,
was taken down to the Minister of Police,
she
did not tell the truth then. She was an
informer. We
accept unreservedly the evidence
of the police on these aspects; she
was an
informer and of course, the last thing that
the
police would ever want and she would ever want,
is
to have that known and particularly the last
thing that she would
want, is to have it known
that she had in fact informed about no
5
[Nxumalo]."
37
I have indicated the extent to
which her evidence
was
relevant. The court's reasoning for
rejecting it as
untruthful was that, being a police informer, she
had
voluntarily furnished information to
Wessels
concerning Nxumalo but to cover her tracks, as
it
were, she falsely told Nxumalo that she had
been
tortured and, one presumes, in some way managed
to
fabricate the medical evidence supportive of
this
excuse. Apart from the fact that this ground
for
concluding that she was untruthful is speculative
and
was never put to her, it is based on
a
misunderstanding of the evidence. Wessels said
that
she was a regular informer in the pay of the
local
police at Witbank
, as regards
other
offences
committed from time to time. It was,
however,
another informer in this sense who first put
the
Brixton and Robbery Unit on to Rose Mahlanga as a
38
person who could furnish information about
this offence
. This informer said that Rose was a "houvrou" of Nxumalo,
that when he visited Witbank he lived with her in her home and that a meeting
of
Nxumalo, William Nkosi and the third appellant took place in her house. When
Wessels was asked why she had been brought to the
Brixton police station, which
is not the way an informer would ordinarily be treated, Wessels said that she
was in fact a suspect
whom he might have decided to arrest and charge with this
murder. He described her as a "geleentheidsinformant" at one stage. In
context
this could only mean that she was a person from whom he expected to obtain or
perhaps exact information. Having regard to
her relationship with Nxumalo it is
highly unlikely that she would have voluntarily informed on him. Thus the court
manifestly misdirected
itself in rejecting her evidence and, in
39
any event, in considering it to be of no
relevance.
Defence counsel argued that the fact that none of the
appellants were brought before a magistrate to make their confessions was a
factor bearing out their contention that they were threatened and assaulted. The
court dismissed this submission saying:
"I am perfectly well aware of judgments which say that the police should
take people in front of a magistrate, but until the legislature
decides that the
law has to be changed policemen are entitled to take statements if they are of a
certain rank and the proper answer
was given by one of the officers in this
case."
It is so that an investigating officer has such a choice but it is
obviously preferable to bring a would-be confessor before a magistrate
when
practicable to do so - provided the decision to confess has been voluntarily
taken. For this reason it is legitimate and pertinent
to ask why this
course
40
was not followed. In this case no satisfactory
reason for not arranging for a magistrate to take the
confessions, especially those of second, third and
fourth appellants, was forthcoming. In fact the
excuse tendered by Wessels was a false one. When
questioned on behalf of the first appellant in this
regard at the outset of his cross-examination, he
explained that the police at Brixton at that time
encountered difficulties in finding a magistrate
after office hours and for that reason a police
officer would be used instead. However, during
cross-examination on behalf of the second appellant,
it was pointed out to him that according to his notes
this appellant's interrogation was completed by 14h53
which was well within office hours. The following
questions and answers followed:
"So, u kon hom nog na ' n landdros toe gestuur het indien u belang gestel
het om hom na 'n landdros toe te neem? — Daar was
ander persone wat ek wou
ondervra het.
41
Maar adjudant, u is die ondersoekbeampte, 'n ondersoekbeampte neem nie 'n
man wat 'n konfessie wil maak na 'n landdros toe nie, u
stuur iemand anders, is
dit nie die geval nie? -- Ek wou sy gedeelte ook bevestig met die ander
beskuldigdes."
One knows that it is a matter of
invariable practice for the investigating officer to instruct
some other
policeman
to take a suspect or accused willing to confess to the official
decided upon to act as scribe, and this was in fact the procedure
adopted by
Wessels in the case. His explanation for not attempting to bring this appellant
before a magistrate is therefore a wholly
unacceptable one. The interrogation of
the second appellant was completed by 14h30. There was no reason why he could
not have promptly
arranged for a magistrate to record this confession and any
further ones arising from the interrogations conducted immediately
afterwards.
42
This issue was also canvassed with Weyers. He could not explain why
Wessels had not even tried to obtain the services of a magistrate.
The court held that no adverse inference could be drawn from the failure
to call Makate and Oberholzer as witnesses. It said in answer
to a submission
that these two ought to have given evidence:
"Well, we have considered this: there is no merit in that at all. The
state calls people who are relevant and if it calls one witness
who it considers
to be a good witness, it is quite unnecessary to call a line of
witnesses."
It is the prerogative of the prosecution to decide on
how many witnesses to call, and for the court to decide at the end of the
case whether the onus of proof has been discharged. However,
it cannot be said,
as the court did, that Oberholzer's evidence would not have been relevant. It
was his threat
43
alluding to the Brixton police
which caused
the first appellant to fear for his life and write that letter. There are no
good grounds for concluding that this threat,
which was unchallenged in
cross-examination and not refuted by Oberholzer, was not at least a contributing
factor influencing him
to make his confession.
Apart from the misdirections and defective reasoning in the judgment, it
failed to refer to a number of countervailing considerations
and probabilities
in favour of the appellants' version.
It is inherently improbable that the appellants would have freely
confessed to a capital offence that had remained unresolved for
three years or
that, in the case of three of them, they would do so within a day or so of their
arrest on arrival at the Brixton
police station. Furthermore, the obvious
reasons, if not the only ones, for a confession
44 freely made are
contrition arising from remorse or the knowledge that the case for the
prosecution is a strong or unanswerable
one. In the present case there is no
indication that, apart from the confessions, other evidence might have led to a
conviction.
And the coincidence of all four appellants being spontaneously
prompted by self-reproach and repentance is to my mind an extremely
remote
one.
The detailed - and at times graphic account given by the appellants of
threats and assaults, was to all intents untested. The cross-examination
of each
appellant has this in common with the reasoning in the judgment: it concentrated
on the self-evident fact that their assertions
as regards the content of
confessions were untrue. For instance, of the 175 odd questions put to the first
appellant during cross-examination,
more than half
45 were directed
to this topic. By contrast, questions relating to the key issue (whether he had
been threatened by Oberholzer and
later by Monene and Makate) were restricted to
about a dozen. These numbers are no more than approximations and are referred to
only
to emphasize where the focus of the cross-examination lay. The
cross-examination of the other appellants followed the same pattern.
In the
result, if their testimony on the threats and assaults is viewed on its own
merits it cannot be said to be unsatisfactory
or unconvincing in any material
respect.
With reference to the evidence of the second appellant that he had been
assaulted, Zeelie before recording his confession noticed
and noted that he was
limping. Second appellant said in evidence that this was as a result of the
shocks he had received. This assertion
was not challenged or
46
tested during cross-examination, apart from the
general denial that any assault had taken place. This appellant told Zeelie,
according
to the latter's evidence, that he was suffering from cramp to explain
the limp which had been noticed. No reason for the onset of
cramp was suggested
and this debility observed by Zeelie therefore in a measure confirms his
evidence that electric shocks had been
administered to his one leg, that this caused him to
limp and that he had been admonished not to disclose
that he had been tortured.
To return to the judgment, the court
concluded that:
"The police were excellent witnesses, they gave their evidence well. I
have not the slightest doubt, nor have my assessors, that they
were telling the
truth."
As far as the key witnesses - Wessels, Monene and
47
Weyers - are concerned, for the reasons
stated, I am
unable to commend them in these terms. But in
any
event, a favourable impression of the witnesses
for
the State is in itself not a reason for
the
rejection of the evidence of the appellants (See
S
v
Singh
1975(1) SA 227 (N) 228 approved in
S v
Guess
1976(4) SA 715(A) 718H - 719A.) Taking
their
evidence into account, that of Rose Mahlanga and
the
probabilities and the defects in the State case,
I
have no doubt that the onus resting upon
the
respondent to prove that the confessions were
freely
made, was not discharged. The confessions ought
not
to have been admitted. It is therefore
unnecessary
to revert to the irregularity discussed at the
start
of this judgment, save to say again that
the
impression it must have created is most
unfortunate.
48
The appeal is allowed: the conviction and sentence in the case of each
appellant is set aside.
M E KUMLEBEN
JUDGE OF APPEAL
BOTHA JA
- CONCUR HEFER JA