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[1994] ZASCA 106
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S v January, Prokureur-Generaal, Natal v Khumalo (341/92, 728/92) [1994] ZASCA 106; [1994] 4 All SA 354 (A) (8 September 1994)
CASE NOS 341/92 & 728/92
/mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
M P JANUARY
APPELLANT
and
THE STATE
RESPONDENT
and
PROKUREUR-GENERAAL: NATAL
APPELLANT
and
S M KHUMALO
RESPONDENT
CORAM
: VAN HEERDEN, SMALBERGER, NIENABER,
VAN DEN HEEVER et HARMS JJA
HEARD
: 22 AUGUST 1994
DELIVERED
: 8 SEPTEMBER 1994
JUDGMENT
VAN HEERDEN JA/
...
1
VANHEERDEN JA
:
These two matters were heard together because the same point of law arose in
each.
In
January v The State
the appellant was one of five accused who stood
trial in the Eastern Cape Division on
inter alia
two charges of murder.
These related to the death of two young men who had been abducted from a house
in the district of Uitenhage
during the evening of 8 November 1989. For some 16
days thereafter their whereabouts remained unknown to the police and their
families.
In the early hours of 24 November the appellant and others were
arrested. They were taken to a building known as the Ford Centre
where the
appellant was questioned by Warrant Officers Noyo and Moshara. Eventually the
appellant told his interrogators that he
wished to point something out. The
upshot was that the appellant and Warrant Officers Fourie and
2
Odendaal proceeded in a motor vehicle to a spot in an open area in the
district of Uitenhage. They arrived there because the Warrant
Officers had
followed directions given by the appellant. After the vehicle had stopped the
appellant pointed out a manhole with a
heavy lid. When the lid was removed the
decomposed bodies of the two young men were found inside the manhole. It was
later established
that they had been murdered before their bodies were dumped
into the hole.
On 25 November 1989 the appellant made a statement to a police captain. The
admissibility of this statement and the pointing out was
contested by the
appellant on the ground that they had been induced by assaults on him by Noyo
and Moshara at the Ford Centre. Predictably
they denied that they had assaulted
the appellant. At the end of a trial-within-a-trial the presiding judge
(Kannemeyer JP) ruled
that the statement was inadmissible because of the State's
failure to discharge
3
the onus of proving that it had been freely and voluntarily made. He held,
however, that the evidence relating to the pointing out
was admissible even if
it had taken place as a result of assaults on the appellant.
In the main judgment the court a
quo
drew certain inferences from the
pointing out and, for reasons not material to this appeal, found the appellant
guilty as an accessory
after the fact on the two capital charges. Subsequently
the appellant was sentenced to five years' imprisonment of which a period
of two
years was conditionally suspended on the two charges treated as one for purposes
of sentencing. With the leave of Kannemeyer
JP the appellant then appealed to
this court against his convictions.
At the hearing of the appeal it was rightly common cause that, if it was
necessary to do so, the State failed to prove that the
4
pointing out had not been induced by the assaults testified to by the
appellant, and that if the evidence relating to that conduct
of the appellant
was inadmissible the appeal must succeed. The crisp, but by no means easy,
question therefore is whether proof of
an involuntary pointing out by an accused
is admissible in a criminal matter if something relevant to the charge is
discovered as
a result thereof. (Since the assaults in question were allegedly
committed by policemen, I shall
confine myself to a pointing out which is involuntary because of
something said or done by a person in authority:)
Although we have been referred to various authorities, only
two require detailed consideration. They are the decisions of this court
in
Rv Sheehama 1991(2)
AD 608, and
S v Sheehama
1991(2) SA
860(A).
In
Samhando
the accused had been convicted on a charge of murder.
Shortly after the death of the deceased two so-called "policeboys" by the
5
use of considerable violence forced the accused to admit that he had killed
the deceased. The accused then showed them
inter alia
where the
blood-stained clothing of the deceased was concealed in the branches of an
orange tree. The presiding judge refused to
allow evidence as to the accused's
admission to be put before the jury, but allowed the policemen to testify about
the pointing out.
The matter came before this court after the presiding judge had reserved a
question of law, i e whether the evidence of the pointing
out was admissible.
Having referred to the general rule of the English law of evidence which
excludes a statement made by an accused
person unless it is shown by the
prosecution to have been freely and voluntarily made, Watermeyer ACJ said that
there had arisen
in England a modification of that rule, based upon what might
be called the theory of confirmation by subsequently discovered facts.
He
explained it as
6
follows (at p 613):
"The fundamental reason why admissions by an accused person made under an
inducement are not admitted as evidence against him is
because they are
untrustworthy as testimony. If, therefore, such admissions can be proved to be
true by other evidence, the reason
for their exclusion vanishes and they should
be admitted as evidence. Pushed to its logical conclusion that reasoning would
lead
to the admission of the whole of an otherwise inadmissible confession if it
be confirmed in material particulars by subsequently
discovered facts, but the
English Courts, while admitting a partial application of this reasoning, have
stopped short of carrying
it to its logical conclusion. At first only the facts
discovered by reason of an inadmissible confession were allowed to be proved
in
evidence, but subsequently the rigidity of the exclusionary rule was somewhat
relaxed."
Watermeyer ACJ proceeded to quote a
passage from East,
Pleas of the Crown
, and to refer to two English cases decided in
1809
and 1840. Without further analysis of the ambit of the exception to the
general rule, he then held that the evidence of the policemen had been
rightly admitted. It was no doubt for this reason that in
R v
Duetsimi
7
1950(3) SA 674(A) 678A Schrener JA said that the true
ratio
decidendi
of
Samhando
was not easy to discover.
Watermeyer ACJ based his judgment solely upon the
common law. He therefore
found it unnecessary to express an opinion
on the ambit of s 274 of the Criminal Law and Procedure Act 31 of 1917
("the 1917 Act"), That section was the predecessor of s 218(1) of the
Criminal Procedure Act 51 of 1977
("the
1977 Act") to
which I shall
return at a later stage.
In
Duetsimi
. Schreiner JA said the following (at p 678 F
-
G):
"On the whole it seems to me that the true basis of the decision in
Samhando's
case is that, in relation to statements not amounting to
confessions ..., the fact that the statements have not been shown to have
been
freely and voluntarily made does not prevent proof by the Crown not only of
facts discovered in consequence of such statements
(including the whereabouts of
things connected with the crime), but also of the fact that the accused pointed
out such
8
things."
It will be observed that Schreiner JA did not
specifically refer to the situation where something connected with a crime is
discovered
not as a result of a pointing out, but of information given by the
accused in a statement. In
Samhando
. however, Watermeyer ACJ (at p 614)
referred to two English cases which "permitted evidence to be received of the
words used by the
accused in relation to the articles discovered in consequence
of an inadmissible confession".
As has often been pointed out,
Duetsimi
gave rise to the amendment of
s 274 of the 1917 Act by s 42 of the Criminal Procedure and Evidence Amendment
Act 29 of 1955. (The
existing s 274 became s 274(1) and a new subsection (2) was
introduced.) In the same year the amended section became s 245 of the
Criminal
Procedure Act 56 of 1955 ("the 1955 Act"). With minor amendments it was
re-enacted as s 218 of
9
the
1977 Act.
In
R v Tebetha
1959(2) SA 337 (A) the question
arose
whether s 245(2) of the 1955 Act applied to
all pointings out or only to
those as a result of which something had been discovered. For
convenience I quote
s 218(2)
of the
1977 Act which
, as said, is in
substantially the
same terms as s 245(2) of the 1956 Act:
"(2) Evidence may be admitted at criminal proceedings that anything was
pointed out by an accused appearing at such proceedings or
that any fact or
thing was discovered in consequence of information given by such accused,
notwithstanding that such pointing out
or information forms part of a confession
or statement which by law is not admissible in evidence against such accused at
such proceedings."
In a majority judgment this court held that a pointing out
fell
within the ambit of s 245(2) of the 1956 Act whether or not it led to the
discovery of something material to the charge. However, the question
10
whether the subsection rendered admissible evidence of an involuntary
pointing out, did not arise and was therefore not considered.
No purpose would be served by dealing with a number of decisions, handed down
since 1965, in which the above question was expressly
or implicitly answered in
the affirmative. They were all referred to by this court in
Sheehama
. It
is important to mention, however, that a new s 219A was inserted in the
1977 Act
by
s 14 of the Criminal Procedure Amendment Act 56 of 1979. The introductory
provision ("the main provision") of subsection (1), which
is subject to a
proviso not material to this appeal, is in these terms:
"Evidence of any admission made extra-judicially by any person in relation to
the commission of an offence shall, if such admission
does not constitute a
confession of that offence and is proved to have been voluntarily made by that
person, be admissible in evidence
against him at criminal proceedings relating
to that offence."
11
In
Sheehama
it was held that the following two categories
of post
1964 decisions were clearly wrong; ,
(a)
decisions that a relevant
pointing out did not constitute an extra-curia admission,
and
(b)
decisions that evidence of an
involuntary pointing out was admissible under
s 218(2)
of the
1977
Act.
>The main reasoning of F H Grosskopf JA which
led to the
first of these conclusions appears from the following passages in the
judgment:
"In 1979 is art 219 A in die Strafproseswet opgeneem. Die gemeenregtelike
vereiste dat 'n buitegeregtelike erkenning vrywillig en
sonder dwang moet
geskied, is in hierdie artikel bevestig." (At p 878 H - I.)
"'n Aanwysing is in wese 'n mededeling deur gedrag en as sodanig 'n
verklaring van die persoon wat iets aanwys." (At p 879B.)
"Na my oordeel kan 'n aanwysing in 'n gepaste geval dus wel 'n
12
buitegeregtelike erkenning wees, en as sodanig moet dit in die lig van die
gemene reg, soos bevestig deur die bepalings van art 219A
van die
Strafproseswet, ongedwonge en vrywilliglik geskied." (At p 879 H
-I.)
F H Grosskopf JA went on to consider the provisions of
s
218(2) of the
1977 Act and
made the following
findings (at pp 880 -
881):
"Die artikel handel nie met die toelaatbaarheid van die getuienis van aanwysings
as sodanig nie; dit verwyder slegs een bepaalde
grond van ontoelaatbaarheid.
Ander gronde
van ontoelaatbaarheid word dus nie geraak nie
Na my
oordeel was dit nooit die bedoeling van die Wetgewer in art 218(2) om getuienis
van aanwysings wat andersins ontoelaatbaar is,
toelaatbaar te maak sodra
sodanige aanwysings deel uitmaak van 'n ontoelaatbare bekentenis of verklaring
nie. Die artikel bepaal
dat getuienis van 'n aanwysing toegelaat
kan
word
as dit deel uitmaak van 'n ontoelaatbare bekentenis of verklaring, en nie dat
dit toegelaat
moet
word nie. Deur gebruik te maak van die woord
kan
het die Wetgewer juis die moontlikheid oopgelaat dat getuienis van 'n
aanwysing om gegronde redes geweier kan word, selfs al maak
die aanwysing deel
uit van 'n ontoelaatbare bekentenis of verklaring. Daardeur wil ek
13
nie te kenne gee dat die artikel 'n diskresie aan die hof verleen om
getuienis van 'n aanwysing toe te laat of te weier nie ..., maar
dat die hof
getuienis van 'n aanwysing kan weier omdat dit om gegronde redes ontoelaatbaar
is. So gesien, bepaal die artikel dus
dat getuienis van 'n aanwysing
wat
andersins toelaatbaar is
. nie ontoelaatbaar sal wees bloot omdat dit deel
uitmaak van 'n ontoelaatbare bekentenis of verklaring nie. Anders gestel:
wanneer
getuienis van 'n aanwysing
andersins ontoelaatbaar is,
sal dit
nie toelaatbaar wees bloot omdat dit deel uitmaak van 'n ontoelaatbare
bekentenis of verlaring nie.
Indien dit in gedagte gehou word dat dit 'n kernbeginsel van ons reg is dat 'n
beskuldigde nie gedwing kan word om selfbeswarende
verklarings teen sy wil te
maak nie, is dit na my oordeel inherent onwaarskynlik dat die Wetgewer, met die
oog op gesonde regsbeleid,
ooit die bedoeling kon gehad het om getuienis van
gedwonge aanwysings ingevolge art 218(2) en sy voorgangers te
magtig."
In
Sheehama
nothing was discovered
as a result of the involuntary
pointings out and F H Grosskopf JA was at pains to make it clear that
he
was leaving the
Samhando
exception out of consideration.
Nevertheless, it is difficult to reconcile his reasoning at pp 878 - 879
14
with the recognition of that exception unless
s 219A
somehow preserved
the
common law as expounded in
Samhando,
or some other provision of
the
1977 Act renders
admissible an involuntary admission leading to the
discovery of a relevant thing.
In
S v Jordaan
1992(2) SACK 498(A) F H Grosskopf JA
once again had occasion to deal with pointings out, but this time with
such conduct which had led to the discovery of relevant objects. His
comments upon the admissibility of the pointings out appear in the
following terse passage (at p 502d):
"Die appellant beweer nie dat die uitwysings as gevolg van dwang of
onbehoorlike beinvloeding gedoen is nie; hy ontken eenvoudig enige
uitwysing.
Bowendien is die versteekte gewere slegs as gevolg van die uitwysings deur die
polisie ontdek, en is hierdie dus 'n uitsonderingsgeval
waar 'n gedwonge
uitwysing in elk geval toelaatbaar sou wees.
(R v Samhando
1943 AD 608
te
611 - 15;
S v Sheehama
[1991] ZASCA 45
;
1991 (2) SA 860
(A) te 877D - H en 878 D - H.) Die
getuienis dat die appellant die gewere uitgewys het, was dus toelaatbaar."
15
Since the admissibility of the evidence of the pointings out was not in
issue, the approval of the
Samhando
exception was undoubtedly
obiter
. It is not altogether clear, however, why reliance was placed on
Sheehama
since, as already said, in that case the learned judge
deliberately refrained from expressing a view on the admissibility of evidence
of a pointing out covered by the
Samhando
exception.
I now turn to the question whether that exception still
applies. In
S v Khumalo
1992(2) SACR 411(N) - the decision in
which
gave rise to the second appeal before us - Thirion J appears to have been
of the view that
Samhando
was wrongly decided. After referring to
a
number of English authorities he said (at p 424c):
"The 'theory of confirmation by subsequently discovered facts' which found
favour in
Samhando's
case seems to me, again with great respect, to have
been a rule of questionable growth which was authoritatively engrafted onto our
law of evidence from England where it had never firmly taken root and where it
might
16
well have become extinct before the turn of the century. It was accepted here in
disregard of two principles deeply rooted in our
law."
Thirion J nevertheless recognised that he was bound
by
Samhando
if the exception under
consideration is still extant. In the
event he found (at p 424h) that
recognition of the exception would be
inconsistent with
s 219A(1)
of the
1977
Act. (At
p 418f Levinsohn J
came to the same conclusion.)
For reasons which will appear, I find it unnecessary to consider whether the
decision in
Samhando
was clearly wrong. I shall therefore assume, in
favour of the respondent, that
Samhando
correctly gave effect to the
English law of evidence - at least as far as an involuntary pointing out was
concerned - and that that
law did not change before 31 May 1961 (see
s 252
of
the
1977 Act).
S
219 A of the
1977 Act does
not find a precursor in the
17
1917 and 1955 Acts. Nor did the
1977 Act as
originally enacted contain a
similar section. The main provision of
s 219
A(l) is couched in unambiguous
language. It says that evidence of an extra-judicial admission by an accused is
admissible in evidence
against him provided,
inter alia
, that it is
proved to have been voluntarily made. Clearly, therefore, evidence of an
involuntary admission is inadmissible. And as
found in Khumalo, linguistically
the subsection admits of no exception. It may be that the legislature's main aim
in enacting
s 219
A was to cast an onus on an accused to prove, provided that
certain requirements are met, that a written admission by him was not
voluntarily made, and that there is room for a restrictive interpretation of the
section in order to give effect to common law rules
(cf
S v Schultz,
1989(1) SA 465 (T) 468). However, a finding that
s 219
A(l) does not
preclude an application of the
Samhando
exception could not be
18
premised upon mere restrictive interpretation: it would have to involve a
recasting of the wording of the main provision. And since
that wording is
unambiguous, the presumption that a statute alters the common law as little as
possible cannot be invoked:
Glen Anil Finance (Pty) Ltd v Joint Liquidators.
Glen Anil Development Corporation Ltd (In Liquidation)
1981(1) SA 171 (A)
181 - 182.
Even if it were permissible to reformulate the subsection, it would be
difficult to decide upon the words or phrases which would have
to be read into
it in order to save the
Samhando
exception. This is so because it is not
at all clear whether the exception applies only to a pointing out. Assume that
an accused
made an involuntary statement to a magistrate in which he gave
detailed directions as to the place where a deceased person had been
buried.
Assume further that following those directions the police dug up the body. If
the theory of confirmation by
19
subsequently discovered facts is applied, there appears to be no logical
reason for excluding proof of the admission implicit in the
directions. It seems
clear, however, that such a statement is hit by
s 219
A(l) and therefore is
inadmissible. That being so, there is no rational explanation why the
legislature should have intended to exclude
from the ambit of the subsection an
involuntary pointing out, but to include involuntary directions, leading to the
discovery of
something connected with a crime. In passing I should mention that
a
dictum
in
S v Yolelo
1981 (1) SA 1002(A)
1009 C, does not assist
the respondent. It was there said that
s 219
A(l) in essence constitutes a
codification of a
principle
of the common law, i e that no admission or
statement made by an accused may be admitted in evidence against him unless it
is shown
by the prosecution to have been freely and voluntarily made. The
question whether this was an unqualified rule did not arise in
Yolelo
.
and
20
it was certainly not suggested that
s 219
A(l) codified the common law
relating to admissions, in contradistinction to the above principle.
In the
result I am of the view that
s 219
A(l) does not preserve the
Samhando
exception. And since it renders inadmissible evidence of any involuntary
admission, such exceptions as the common law may have recognised
cannot be
invoked by virtue of the provisions of
s 252
of the
1977 Act.
>I reach this conclusion without regret. In this century there has rightly
been a marked shift in the justification for excluding
evidence of involuntary
confessions and admissions, and it is now firmly established in English law that
an important reason is one
of policy. It is thus explained by Lord Hailsham in
Wong Kam-ming v The Queen
[1980] AC 247 (PC) 261:
"I have stated elsewhere .... that the rule, common to the law of
21
Hong Kong and that of England, relating to the admissibility of
extra-judicial confessions is in many ways unsatisfactory, but any
civilised
system of criminal jurisprudence must accord to the judiciary some means of
excluding confessions or admissions obtained
by improper methods. This is not
only because of the potential unreliability of such statements, but also, and
perhaps mainly, because
in a civilised society it is vital that persons in
custody or charged with offences should not be subjected to ill treatment or
improper
pressure in order to extract confessions. It is therefore of very great
importance that the courts should continue to insist that
before extra-judicial
statements can be admitted in evidence the prosecution must be made to prove
beyond reasonable doubt that the
statement was not obtained in a manner which
should be reprobated and was therefore in the truest sense voluntary."
The final question in whether another section of the
1977
Act permits proof of an involuntary pointing
out (or any other admission)
leading to the discovery of a relevant thing.
Counsel for the respondent
submitted that s 218(1) does just that, as did the similarly worded s 274
of the 1917 Act to which Watermeyer ACJ referred in
Samhando
. S
218(1) is in the following terms:
22
"(1) Evidence may be admitted at criminal proceedings of any fact otherwise
admissible in evidence, notwithstanding that the witness
who gives evidence of
such fact, discovered such fact or obtained knowledge of such fact only in
consequence of information given
by an accused appearing at such proceedings in
any confession or statement which by law is not admissible in evidence against
such
accused at such proceedings, and notwithstanding that the fact was
discovered or came to the knowledge of such witness against the
wish or will of
such accused."
Counsel's contention is met by the following passage in the
minority judgment of Schreiner JA in
R v Tebetha
1959(2) SA
337(A)
343A:
"All that sec 245(1) [of the 1955 Act], i e sec 274 [of the 1917 Act], does
directly is to declare admissible evidence of a fact
discovered in consequence
of information derived from a confession or other statement that is
inadmissible. In terms the provision
would only cover proof that the clothing in
Samhando's
case was in the tree on a certain date."
This
passage, with which I agree, has to my knowledge not been questioned in any
other case, and is not in conflict with anything
23
said in the majority judgment in
Tebetha
. On the contrary, Hoexter J
A,
who wrote that judgment commented at p 346 B - D:
"When a person points out a thing, the pointing out is his act and proves that
he has knowledge of some fact relating to that thing.
In the case of the
discovery by the police of a thing, there is no proof of knowledge of any fact
in relation to that thing on the
part of the person under trial unless there is
proof that the discovery was made in consequence of information given by such
person.
In my opinion sec. 245 (1) by itself did not make it clear that evidence
of knowledge on the part of the person under trial was
admissible."
At the risk of repetition it must
again be emphasized that s
218(1) of the
1977 Act does
not differ in a material respect from s
245(1) of the 1955 Act or s 274 (later s 274(1)) of the 1917 Act. Hence
s 218(1) also does no more than to declare admissible evidence of a
fact
discovered, or of which knowledge was obtained, in consequence of
information given (whether by conduct or otherwise) by the accused, and
not also of the information so given. In other words, the subsection does
24
not permit proof of a link between the accused and the discovery or knowledge
gained of such a fact.
I need not deal with
s 218(2)
of the
1977 Act, for
in
Sheehama
it was
clearly decided that this subsection does not apply to an involuntary pointing
out. Hence that subsection cannot accommodate
the Samhando exception. It follows
that January's appeal must be upheld.
I turn to the second appeal before us (
Prokureur-Generaal. Natal v
Khumalo
). The circumstances which led to the respondent's conviction of the
theft of two head of cattle in a regional court, and the reasons
why the
conviction and sentence were set aside on appeal to the Natal Provincial
Division, appear from the judgments in
Khumalo
and need not be repeated.
Subsequently, on 30 October 1992, the appellant was granted leave to appeal to
this court after the following
points of law
25
had been reserved:
"1. Is die beslissing van
R v Samhando
1943 AA 608 met betrekking tot die
toepassing van die leerstuk van 'confirmation by subsequently discovered facts'
as gevolg van
Artikel 219A van Wet 51 van 1977 nie meer van toepassing
nie?
2. Is die
Samhando
beslissing by
implikasie deur
S v Sheehama
1991(2) SA 860(A) omvergewerp?"
These questions related to one of the reasons why the court
a
quo
held that the State could not rely upon evidence of the
respondent's
pointing out of one neat ("the ox") to two policemen. The reason was
that such a pointing out, if involuntary, is inadmissible. At the time of
granting of leave to appeal it must therefore have been envisaged that
should the questions be answered in favour of the appellant this court
would in terms of
s 311(1)
of the
1977 Act partially
restore the
magistrate's verdict by substituting a conviction of theft of the ox, and
26
possibly reduce the sentence of Gve years' imprisonment.
In supplementary
heads of argument filed by the appellant it was brought to our notice that the
respondent had died on 25 September
1992. Counsel for the appellant nevertheless
contended that the appeal should be heard and adjudicated upon. This contention
is without
substance. Had the court a
quo
known that the respondent had
died, it would no doubt not have granted leave to appeal. The reason is that at
the death of a convicted
person all appeal proceedings lapse unless, possibly,
the conviction detrimentally affects his estate. See e g Voet 49.13.2,
SvP
1972(2) SA 513 (NC),
S v Molotsi
1976(2) SA 404 (O);
S v
Van Molendorff
. 1987(1) SA 135(T), and cf
R v Rowe
[1955] 2 All E R
234.
Admittedly these authorities deal with the effect of the death of a
convicted person on appeal proceedings initiated by him, but
there is no logical
reason why such proceedings brought by the State
27
should not also lapse at his death - save, possibly, should the State derive
some pecuniary benefit in the event of the appeal being
upheld. It follows that
the granting of leave to appeal was a nullity.
In passing I should mention that fortuitously the questions of law reserved
by the Natal Provincial Division have in effect been answered
in this
judgment.
Finally, I wish to record our appreciation of the fact that Mr Strachan, on
behalf of Lawyers for Human Rights, was prepared to appear
as
amicus
curiae
in order to support the judgment of the court a
quo
.
The following orders are made:
(1) In the matter of
January v The State
the appeal
succeeds and the appellant's convictions and sentence are set aside.
28
(2) In the matter of
Prokureur-Generaal, Natal v Khumalo
the appeal is
struck off the roll.
H JO VAN
HEERDEN
JUDGE OF APPEAL
SMALBERGER JA)
NIENABER JA) - Concur
VAN DEN
HEEVER JA)
HARMS JA)