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[2015] ZAWCHC 49
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S v Mini and Others (B325/2013) [2015] ZAWCHC 49 (30 April 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
High Court Ref No:
141178
Kuilsriver Case No:
B325/2013
Magistrate’s
Serial No: 79/2014
DATE: 30 APRIL 2015
In the matter of:
THE STATE
And
SONGEZO
MINI
.......................................................................................................
FIRST
ACCUSED
MZIWETHU
SOBOYISI
.....................................................................................
SECOND
ACCUSED
ZAMIKHAYA
APRIL
..............................................................................................
THIRD
ACCUSED
ANELE
MADOLO
...............................................................................................
FOURTH
ACCUSED
SPENATHI
TONO
.....................................................................................................
FIFTH
ACCUSED
Coram: LE GRANGE & ROGERS JJ
Delivered: 30 APRIL 2015
JUDGMENT
ROGERS J
(LE GRANGE concurring):
[1] This matter comes before court by
way of automatic review. The accused were charged in the Kuilsrivier
Magistrate’s Court
with the theft of two bags of chickens from
County Fair, the one bag containing five chickens the other six. They
chose to conduct
their own defences. They pleaded not guilty. Each
testified in his own defence. The magistrate convicted accused Nos 1,
2 and 4
of the theft of the bag containing five chickens and
convicted accused Nos 3 and 5 of the theft of the bag containing six
chickens.
The magistrate considered there to be insufficient evidence
to link all of the accused to the theft of both bags.
[2] None of the accused had previous
convictions. Nos 1, 3 and 5 were sentenced to a fine of R2000 or ten
months’ imprisonment,
suspended for five years. Nos 2 and 4 was
sentenced to a fine of R1500 or six months’ imprisonment
suspended for five years.
The distinction in sentencing was based on
the fact that the accused Nos 1, 3 and 5 were employees of County
Fair whereas accused
Nos 2 and 4 were not.
[3] The automatic review initially came
before Van Staden AJ. He directed an enquiry to the magistrate
regarding assaults apparently
perpetrated on No 1, 2 and 4 by
security officers of County Fair. He asked whether the voluntariness
of statements made by these
accused had been sufficiently examined.
Since the statements made by Nos 2 and 4 led to the apprehension and
questioning of No
1, and since the statements made by No 1 following
his apprehension and questioning led to the identification and arrest
of Nos
3 and 5, Van Staden AJ asked whether – if the said
statements were excluded as having been coerced – Nos 1, 3 and
5
should not have been discharged at the end of the State’s
case.
[4] The magistrate has provided a
detailed response, for which she is thanked.
[5] The State called two witnesses, Mr
Komandisi, the County Fair Farm Manager, and Mr Tembela, the County
Fair Foreman. Their evidence
can be summarised thus. Tembela saw
someone on the inside of the County Fair fence pass a bag to two
people on the other side of
the fence. He phoned Komandisi who came
to the scene. Nos 2 and 4 were the two people on the outer side of
the fence. Komandisi
saw No 2 and then No 4 dragging the bag. They
were apprehended. Five dead chickens were found in the bag. Upon
being questioned
by Komandisi, Nos 2 and 4 said that No 1 had phoned
them to come and collect something from him at County Fair. Komandisi
instructed
Tembela to fetch No 1. Upon their return, Komandisi
questioned No 1. The latter said that the chickens in the bag were
his and
that Komandisi should let Nos 2 and 4 go. Komandisi did not
agree. All three of them were handcuffed by County Fair security
officers.
[6] Komandisi and Tembela found another
bag at the fence, this one containing six dead chickens. Upon
questioning, No 1 said that
he had seen Nos 3 and 5 taking this bag
out through the County Fair gate. No 3 was fetched from the County
Fair hostel. Upon being
questioned he said that three of the chickens
were his and three belonged to No 5. No 5, who was no longer at the
County Fair premises,
was arrested the next day.
[7] Since the accused were
unrepresented, the magistrate was under a duty mero motu to discharge
them at the end of the State’s
case if there was no prima facie
case against them unless there was a basis for exercising the
discretion described in S v Lubaxa
2001 (2) SACR 703
(SCA) paras
20-21 and S v Nkosi & Another
2011 (2) SACR 482
(SCA) paras 24-27
. That discretion exists where there is a reasonable basis for
believing that an accused against whom there is
a prima facie case
might testify and incriminate his co-accused against whom there is no
prima facie case. If the statements made
by the accused at the scene
were admissible, there was a sufficient basis not to discharge any of
them. Nos 2 and 4 had been caught
red-handed and there was thus a
prima facie case against them even without their statements to
Komandisi. No 1, upon being questioned,
made a confession, as did No
3. There were reasonable grounds for thinking that if No 1 or 3
testified they would implicate No
5.
[8] Matters stand differently if the
statements made by No 1 to 4 were inadmissible as having been coerced
by violence. The evidence
of Komandisi and Tembela would still have
been sufficient as against Nos 2 and 4, because they were seen in
possession of one stolen
bag of chickens. However, it was only
because of their statements to Komandisi that No 1 was identified for
questioning and only
because of Komandisi’s questioning of No 1
that a confession from the latter was extracted. By the end of the
State’s
case there was no evidence against No 1 apart from his
confession. There was also no basis, apart from the statements made
at the
scene by Nos 2 and 4 and then by No 1, for thinking that Nos 2
and 4 would implicate No 1. Neither No 2 nor No 4 put to Komandisi
or
Tembela during their very brief cross-examination that No 1 had been
involved. A trial court, excluding from its mind the admissions
and
confessions made by Nos 1, 2 and 4, would thus in my view have been
bound to discharge No 1 at the end of the State’s
case.
[9] In the case of Nos 3 and 5, they
were only identified because of the statements made at the scene by
No 1. It might be said
that the subsequent answers given by No 3 in
response to Komandisi’s questioning should not be excluded as
‘fruit of
the poisoned tree’. However, if No 3’s
confession were itself excluded as having been coerced, there was no
basis at
the end of the State’s case for believing that any of
the accused would implicate Nos 3 and 5. No 1, in his
cross-examination
of the State witnesses, did not make any suggestion
regarding the involvement of Nos 3 and 5.
[10] I turn thus to the admissibility
of the admissions and confessions made by Nos 1 to 4. In terms of
ss
217
and
219A
of the
Criminal Procedure Act 51 of 1977
evidence of a
confession or admission is only admissible if it is proved to have
been made voluntarily. The State must prove such
voluntariness beyond
reasonable doubt. Because the accused in the present case were
unrepresented, they did not object to the admissibility
of the
confessions and admissions. The magistrate did not mero motu embark
upon a trial within a trial to establish the admissibility
of the
material in question. The result is that some of the evidence bearing
on the question of admissibility only emerged during
the evidence of
the accused. In my view, basic fairness and the standards imposed by
s 35(3) of the Constitution require that if,
having regard to all the
evidence relevant to admissibility, it is concluded that the
confessions and admissions were inadmissible,
the question of
discharge at the end of the State’s case should be assessed as
if these confessions and admissions had already
at that stage been
found to be inadmissible (as would have occurred had there been a
trial within a trial). In other words, the
accused should not be
disadvantaged by evidence they tendered and admissions they made
during oral testimony in circumstances where
they would have been
entitled to a discharge had there been a timeous investigation into
and ruling on the confessions and admissions.
[11] The present case differs from the
situation often encountered where there is a factual dispute as to
whether the suspect was
assaulted or threatened. It is common cause
that Nos 1, 2 and 4 were assaulted by County Fair security officers.
And No 5, when
asked in oral evidence why No 3 had implicated him,
said that it was because No 3 had been assaulted.
[12] The magistrate, in response to Van
Staden AJ’s query, said that on her view of the evidence Nos 2
and 4 were only assaulted
after making their statements and
implicating No 1 and that No 1 in turn was only assaulted after
confessing his involvement in
the theft of the one bag and
identifying Nos 3 and 5 as the thieves in respect of the other bag.
Having carefully read the evidence,
I do not believe that this
conclusion is justified beyond reasonable doubt.
[13] As I have said, the fact that
County Fair security officers resorted to assaulting the suspects is
regrettably not in dispute.
When No 1, in his cross-examination of
Komandisi, asked what the security officials had done to them (the
accused) that day, he
replied that the security officers had
handcuffed them but had not done anything else to them. No 1 then put
to Komandisi that
when he (No 1) was brought to the scene, Nos 2 and
4 were already bleeding at the wrists and that the security officers
then began
hitting him with a baton. It was only because of being
assaulted that he decided to say that the chickens were his. The
magistrate
asked Komandisi whether he had seen Nos 1, 2 and 4 being
assaulted. He replied affirmatively but added that this occurred only
after they had been handcuffed. His evidence as a whole was to the
effect that the accused were only handcuffed after they had made
their statements. The magistrate then said to No 1 (in Afrikaans),
‘Next question’. The cross-examination by the accused
was
in general perfunctory, which is not surprising given that they were
unrepresented. No 4, for example, initially said that
he had no
questions for Komandisi. When the magistrate asked whether he had
listened to the testimony and whether he really had
no questions, No
4 said (I translate), ‘All that I know is that Komandisi
arrested us and called the security officers and
we were assaulted.
And it helped that the police arrived because they were assaulting us
continually.’ No other questions
regarding the assaults were
put to Komandisi by the accused, the prosecutor or the magistrate.
[14] On Komandisi’s evidence,
Tembela was present when the assaults occurred. Despite this fact,
Tembela was asked no questions
about the assaults and their timing in
relation to the statements made by the various accused.
[15] The five accused proceeded to give
evidence. No 1 testified that upon his arrival at the scene he could
see that Nos 2 and
4 had been assaulted. He himself was immediately
handcuffed and told to tell the truth. The security officers struck
him on top
of the handcuffs with a baton. His skin was broken open.
He only made a confession because of the assault.
[16] No 2 did not in chief refer to the
assault. However, in cross-examination by the prosecutor he said that
he and No 4 had been
assaulted after being handcuffed. He also said
that they were only questioned after being handcuffed. The prosecutor
asked whether
they had been assaulted by the time No 1 arrived. He
said yes. Unfortunately the prosecutor did not ask whether they had
been assaulted
before implicating No 1 and the magistrate did not
clarify the matter.
[17] It is convenient to deal next with
No 4’s evidence. He said that after they were accosted by
Komandisi, he and No 2 were
handcuffed and repeatedly hit and told to
tell the truth. After they implicated No 1, the latter was also
assaulted with a baton.
He described a scene of ongoing assault until
the police arrived. On No 4’s evidence, they only identified No
1 after being
hit.
[18] If the assaulting of Nos 1, 2 and
4 occurred before they made their respective admissions and
confessions, it is self-evident
that the admissions and confessions
would be in inadmissible. If one confines one’s attention to
the evidence relevant to
admissibility (as would have occurred if
admissibility had been tested in a trial within a trial), I do not
think it is possible
to reject as false beyond reasonable doubt the
evidence of No 4 that he and No 2 were assaulted before identifying
No 1 or the
evidence of the latter that he was assaulted before
confessing and identifying Nos 3 and 5. The evidence that they were
assaulted
was not a fabrication. The timing of the assaults in
relation to the admissions and confessions was not fully canvassed
with Komandisi
and not raised at all with Tembela. The evidence of No
2 regarding the timing of the assaults was likewise not clarified by
the
prosecutor or the magistrate. It is possible that the security
officers assaulted the accused only after they had confessed, as
a
sort of extra-curial punishment (which is what the magistrate seems
to have thought). But if the security officers were willing
to resort
to assaulting suspects (as is unfortunately the case), and if
Komandisi and Tembela were willing to stand by while it
happened (as
is also the case), there is no reason to discount the possibility
that the security officers used violence to extract
information from
the suspects.
[19] In my opinion, therefore, the
evidence of the statements made by Nos 2 and 4 and then by No 1 were
not admissible against themselves
or against each other. At the end
of the State’s case there was other admissible evidence against
Nos 2 and 4 but not against
No 1. The only basis for thinking that
Nos 2 and 4 would, if they testified, incriminate No 1 were their
inadmissible statements.
Since no regard could permissibly be had to
those statements, No 1 should have been discharged.
[20] Apart from the inadmissible
statement made by No 1, the only evidence at the end of the State’s
case regarding Nos 3
and 5 was the confession made by No 3. He was
only identified as a suspect because of information supplied by No 1,
information
which, for reasons I have explained, could reasonably
possibly have been extracted from No 1 by unlawful coercion. It could
thus
be said that No 3 was only brought to the scene and questioned
because of information inadmissibly extracted from No 1 and that
No
3’s confession was therefore ‘fruit of the poisoned tree’
and itself inadmissible. Section 35(5) of the Constitution
states
that evidence obtained in a manner that violates any right in the
Bill of Rights must be excluded if the admission of that
evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice. The extracting of information
from
suspects by physical violence is something which the courts abhor and
which is fundamentally detrimental to the administration
of justice.
Such evidence stands on an entirely different footing from evidence
obtained, for example, pursuant to the bona fide
execution of an
invalid search warrant. In S v Pillay & Others
2004 (2) SACR 419
(SCA) Scott JA said that the admission of derivative evidence
obtained in circumstances involving some form of compulsion or as
a
result of torture ‘however relevant and vital for ascertaining
the truth, would be undeniably detrimental to the administration
of
justice’ (para 9 and 11). In S v Tandwa & Others
2008 (1)
SACR 613
(SCA) evidence of a coerced pointing-out and real evidence
discovered in consequence of the pointing-out of (a buried bucket of
money) were held to be inadmissible because the accused were
assaulted before making the pointing-out (paras 87-89 and 113-121;
and see also S v Mthembu
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA)).
[21] If there was satisfactory evidence
that No 3’s confession was freely and voluntarily made, there
might be a case for
saying that the inadmissibility of No 1’s
statement should not be allowed to taint No 3’s confession.
However, I do
not feel confident on that score. It is true that No 3
did not say that he had been assaulted. On the other hand, he was not
asked
the question. Since the accused were unrepresented and
unsophisticated, they probably did not appreciate the legal
significance
of coercion. No 2, for example, only mentioned the
assaults after being cross-examined by the prosecutor. If No 3 was
not assaulted,
he would have been the only one of the four questioned
on that day to have escaped violence. No 5, who denied any
involvement in
theft, was asked why No 3 had implicated him. He
replied that No 3’s explanation to him had been that he had
been assaulted.
Even if No 3 was not assaulted, he was brought to the
scene at a time when Nos 1, 2 and 4 had already been assaulted. It is
entirely
plausi
le that he saw their condition and the
conduct of the security officers. This would have been such as to
instil in him an apprehension
for his own safety. The circumstances
of the case as a whole called for further investigation into the
confession made by No 3.
The State witnesses and No 3 should have
been recalled and questions should have been directed to this
particular issue.
[22] Since this was not done, and since
there was no other admissible evidence against Nos 3 and 5 of the end
of the State’s
case, I think they should have been discharged.
Their convictions, based on what No 3 thereafter said under oath,
cannot in the
interests of justice be allowed to stand.
[23] In the result, the convictions of
Nos 1, 3 and 5 must be set aside. The convictions of No 2 and 4 are
justified by admissible
evidence and will thus stand.
[24] This judgment will hopefully serve
as a reminder to persons involved in investigating crime, whether
from the public or private
sector, that the courts will not tolerate
the extraction of information by violence or threats of violence. As
the present case
illustrates, the use of unlawful coercion at an
early stage of investigation may taint information which might
otherwise have been
elicited by more careful and restrained means and
may make it very difficult for the State to secure convictions. In
Tandwa supra
the court made the following observation (para 121):
‘We accept that the public
flinches when courts exclude evidence indicating guilt…. But
in this country’s struggle
to maintain law and order against
the ferocious onslaught of violent crime and corruption, what
differentiates those committed
to the administration of justice from
those who would subvert it is the commitment of the former to moral
ends and moral means.
We can win the struggle for a just order only
through means that have moral authority. We forfeit that authority if
we condone
coercion and violence and other corrupt means in
sustaining order…’
And in Mthembu supra Cachalia JA added
(para 26):
‘ … Public policy, in this
context, is concerned not only to ensure that the guilty are held
accountable; it is also
concerned with the propriety of the conduct
of investigating and prosecutorial agencies in securing evidence
against criminal suspects.
It involves considering the nature of the
violation and the impact that evidence obtained as a result thereof
will have, not only
on a particular case, but also on the integrity
of the administration of justice in the long term. Public policy
therefore sets
itself firmly against admitting evidence obtained in
deliberate or flagrant violation of the Constitution…’
[25] The following order is made:
(a) The convictions and sentences
imposed on the first, third and fifth accused are set aside.
(b) The convictions and sentences
imposed on the second and fourth accused are confirmed.
.
LE GRANGE J
ROGERS J