Brief Summary

Criminal Procedure — Admissibility of confessions — Appellants convicted based primarily on written confessions, the admissibility of which was contested on grounds of alleged police assaults — Trial court admitted confessions, finding them voluntary based on appellants' admissions — Appellants presented with injuries at the time of confession, raising doubts about the voluntariness of their statements — State failed to prove injuries were not inflicted to elicit confessions — Court held that the trial court erred in admitting the confessions due to insufficient evidence regarding their voluntariness.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a set of criminal appeals to the Supreme Court of Appeal brought by five accused persons against their convictions and sentences imposed by the Transvaal Provincial Division. The appeal was pursued with the trial judge’s leave.

The parties were Harry Banneng Zakade (first appellant), Simon Siphiue Peter (second appellant), Nicolaas Kamqua (third appellant), Johannes Dabula (fourth appellant), and Eric Mokoena (fifth appellant) as appellants, and the State as respondent. The matter was heard in the Supreme Court of Appeal before Nestadt, Howie and Scott JJA, with the judgment delivered by Howie JA.

The procedural history was central to the appeal. The appellants (together with other accused) were tried in the Transvaal Provincial Division before Goldblatt J and assessors. The five appellants were convicted and sentenced on various counts, while three co-accused were acquitted. At trial, the only incriminating evidence against each appellant was a written confession. Admissibility was contested in an interlocutory (trial-within-a-trial) hearing, after which the trial court admitted the confessions as having been properly proved in terms of section 217 of the Criminal Procedure Act 51 of 1977.

The general subject-matter of the dispute on appeal concerned whether the trial court was correct in admitting the confessions, given the allegation that they were the product of police assaults, and given that (on the record) the confessions were the only incriminating evidence against each appellant.

2. Material Facts

The alleged offences were committed in the Boipatong area in the district of Vanderbijlpark on 26 September 1993, and included an offence involving the killing of a Boipatong policeman. The appellants were arrested nine days later, during the early hours of 5 October 1993. Their confessions were made at various times between 14h00 and 16h00 on the same day.

The admissibility challenge rested on an allegation formally advanced by the appellants’ attorney that the confessions were obtained through police assaults. In the interlocutory hearing, the State relied on oral evidence from Sergeant Michael Kolokoto and Constable Nkosi Ngubo, both described as municipal policemen attached to the Boipatong police station, together with the documentary confession forms (containing the prefatory questions and answers) and extracts from police Occurrence Books.

From the defence side, no viva voce evidence was led, but two formal admissions were made. First, it was admitted that the appellants’ answers as reflected in the confession forms were correctly recorded. Second, it was admitted that the appellants were not assaulted by the police officials who took them to make their respective confessions (which implied that the allegation was not directed at those particular officials, but did not dispose of alleged assaults earlier in the period of custody).

A key set of facts concerned injuries observed when the appellants made their confessions. The first appellant had multiple injuries (including swelling on the back of the head, weals on the thighs, a swollen upper lip and swollen hands) and gave differing accounts in the prefatory answers as to where the assaults occurred (municipal police at arrest, and later that he was assaulted at Boipatong police station). The second appellant had an open head wound and signs of blows to the body; he was not asked by the recording magistrate how the injuries were sustained, but later added that he was assaulted by the police at arrest. The third appellant had an open head wound, a swollen left arm and painful ribs; he attributed the injuries to police striking him after a confrontation during arrest. The fourth appellant had a swollen upper lip and attributed it to a tavern fight before arrest. The fifth appellant had no injuries and made no assault allegation, but the Supreme Court of Appeal treated the implications of the other appellants’ injuries as potentially relevant to him as well, and recorded that the State accepted that any reasonable doubt arising from the pattern of injuries should, in fairness and logic, also benefit him.

The State evidence about how injuries were sustained was internally problematic. Kolokoto initially testified in the main case that none of the arrested persons had injuries when handed over at Vanderbijlpark police station and that they were not assaulted before that handover. After an adjournment, and in the trial-within-a-trial, Kolokoto added a new explanation that some injuries were sustained during a fight among detainees in the Boipatong police station forecourt, based on what Ngubo reported to him rather than on his own observation. He then weakened that explanation by also stating that he observed no wounds, and ultimately conceded that he had no explanation and that the injuries must have been caused while in detention at Vanderbijlpark. He also admitted he failed to record the alleged fight in the Boipatong Occurrence Book.

Ngubo’s evidence about the alleged brawl was also inconsistent. He began with a broad claim that “the accused” were involved, then reduced the number of participants, and later suggested only the third appellant and his brother were involved, with the added assertion that police allowed the hostilities to develop because they hoped to hear incriminating information. Both Kolokoto and Ngubo denied that police assaulted the appellants.

The documentary Occurrence Book extracts formed part of the material relevant to admissibility. The Boipatong entries recorded the arrests at various times. A Vanderbijlpark entry at 05h05 recorded the detention of a group including the second, third and fourth appellants and noted (in Afrikaans) that they had no complaints or injuries. A later Vanderbijlpark entry at 07h25 recorded that “Harry Zagadi ...” and others complained of assault and that a statement was obtained and they were taken to the district surgeon. An 08h50 entry recorded an investigation and “complaints and injuries as already reported.” On the record, the Supreme Court of Appeal treated these entries as accepted as true and accurate evidence of what was officially recorded regarding arrest and detention.

The trial court, despite “unhesitatingly” rejecting Kolokoto and Ngubo and expressing the impression that they had not told the whole truth, nonetheless admitted all confessions on the basis that in the prefatory questions and answers the appellants had unequivocally confirmed voluntariness and the absence of undue influence, and there was no evidence contradicting those recorded admissions.

3. Legal Issues

The central legal question was whether the State had proved, in terms of section 217 of the Criminal Procedure Act 51 of 1977, that each written confession was made freely and voluntarily and without undue influence, in circumstances where the defence alleged that the confessions were the product of police assaults and where physical injuries were present in most cases.

A related question, framed by the Supreme Court of Appeal as an “essential enquiry,” was whether the recorded prefatory admissions of voluntariness constituted sufficiently reliable prima facie material on the facts of this case to justify admission of the confessions, particularly where the State’s own evidence and documents generated doubt about whether assaults occurred in custody and whether they were linked to obtaining confessions.

The dispute predominantly concerned the application of legal standards to the facts and the drawing of inferences from the accepted evidential material. It also involved an evaluative determination of whether, on the totality of the State’s evidence, there remained a reasonable doubt as to voluntariness, thereby preventing the State from discharging its onus. The appeal did not turn on whether the confessions were factually true, but on whether their making met statutory admissibility requirements.

4. Court’s Reasoning

The Supreme Court of Appeal proceeded from the premise that the State bore the onus of establishing the requisites for admissibility of a confession under section 217, including that it was made freely and voluntarily and without undue influence. The Court accepted that the prefatory questions and answers contained clear admissions by the appellants that the statements were made voluntarily and without undue influence, and it assumed in the State’s favour that the trial court could properly have regard to those admissions for purposes of deciding admissibility. The Court nonetheless emphasised that the critical enquiry was whether those admissions were sufficiently reliable, in context, to amount to prima facie evidence capable of carrying the State’s burden (especially where the defence led no evidence).

A substantial part of the reasoning concerned the implications of the injuries and detention records. The Court considered it significant that by about 05h00 the detainees were recorded as having no complaints or injuries, yet by approximately 07h25 there were recorded complaints of assault and a contemplated district surgeon referral, and later that day (when confessions were made) four appellants showed injuries consistent with assault. In the Court’s view, that sequence compelled an inference that injuries were due to police assaults. The Court reasoned that, on these facts, there were at least two equally strong possible motives for such assaults: reprisal connected to suspicion about the killing of a police colleague, or intimidation aimed at eliciting confessions. The State had not led evidence to clarify the true position, despite the likelihood that various Vanderbijlpark police officials could have shed light on the appellants’ treatment during detention. On the Court’s assessment, the State therefore failed to exclude, at the very least, the reasonable possibility that the appellants were assaulted in order to make them confess.

The Court rejected as erroneous the trial court’s approach that effectively placed an obligation on the appellants to give evidence of a causal link between assaults (or injuries) and the decision to confess. The Supreme Court of Appeal held that this misplaced the onus, because it was for the State to establish admissibility, and therefore for the State to show that any assaults were not causally connected to the making of confessions. The trial court’s view that only the accused could know whether a causal link existed was rejected as inconsistent with the State’s burden to prove voluntariness beyond reasonable doubt on the evidence presented.

The Court further held that the trial court’s reliance on the absence of evidence showing that the confessions (or the prefatory admissions) were untrue did not resolve the admissibility problem. Even assuming that truthfulness was relevant in this context, the Court considered that the State’s own oral and documentary evidence cast doubt on the reliability of the prefatory admissions. The Court reasoned that if there was a reasonable possibility that someone sought to force the appellants to confess, that person would likewise have had an interest in ensuring that the appellants gave pro-prosecution answers to the preliminary questions about voluntariness. In that setting, the Court concluded, the admissions could not serve as independent, reliable material capable of overcoming the reasonable doubt arising from the broader evidential picture.

An additional consideration was the caution required when a confession constitutes the only incriminating evidence. The Court held that the trial court overlooked the caveat expressed in earlier appellate authority that, in such circumstances, admissibility must be particularly carefully investigated. The Court clarified that this does not increase the State’s onus, but it affects the cautious and commonsense evaluation of whether the onus has been discharged, making it more likely that doubt will arise in the reasonable mind where the evidentiary foundation is unsatisfactory.

On the totality of the evidence, the Supreme Court of Appeal concluded there was no logically defensible basis for treating the prefatory admissions as sufficient to neutralise the reasonable doubt created by the injuries, the occurrence book entries, and the inadequacy and untruthfulness concerns surrounding the State witnesses’ attempted explanations. It followed that the confessions were wrongly admitted, and since they were the only incriminating evidence against each appellant, the convictions could not stand.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeals of all five appellants. It set aside all convictions and sentences imposed on them.

No separate or express order as to costs appears from the reported order.

Cases Cited

S v Mkwanazi 1966 (1) SA 763 (A). S v Radebe 1968 (4) SA 470 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 217 and section 217(1). Criminal Procedure Act 51 of 1977, section 219A.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the State failed to prove beyond reasonable doubt that the appellants’ confessions were made freely and voluntarily and without undue influence as required by section 217 of the Criminal Procedure Act 51 of 1977. The Court held that, given the injuries present on four appellants, the official detention records indicating complaints of assault shortly after detention, and the inadequacy and unreliability of the State’s explanation, there was at least a reasonable possibility that the appellants were assaulted in custody and that such assaults were linked to obtaining confessions.

The Court further held that the trial court erred by effectively shifting the burden onto the appellants to establish a causal link between assault and confession, and by treating the prefatory admissions of voluntariness as sufficient, independent proof in circumstances where the surrounding evidence undermined their reliability. Because the confessions were the only incriminating evidence, their wrongful admission required that all convictions and sentences be set aside.

LEGAL PRINCIPLES

The State bears the onus of proving the admissibility of a confession under section 217 of the Criminal Procedure Act 51 of 1977, including that it was made freely and voluntarily and without undue influence. Where there is evidence suggesting assault or intimidation, it is for the State, not the accused, to establish that the confession was not induced by such improper influence.

Prefatory admissions recorded as part of the confession process (that the accused speaks voluntarily and without undue influence) are not automatically decisive. Their evidential weight depends on context, and where surrounding evidence reasonably suggests coercion, the same factors that generate doubt about the confession’s voluntariness may also undermine the reliability of those prefatory admissions.

When a confession is the only incriminating evidence against an accused, the court must approach admissibility with particular care and caution. This does not increase the State’s onus in law, but it affects the careful evaluation of whether the onus has been discharged on the totality of the evidence, with caution and common sense tending to more readily generate reasonable doubt where the evidential foundation is weak or inconsistent.

S v Zakade and Others (129/96) [1996] ZASCA 129 (18 November 1996)