Director of Public Prosecutions, Transvaal v Viljoen

• Jurisdiction: South Africa
• Judge: Streicher JA, Navsa JA, Van Heerden JA, Erasmus AJA and Ponnan AJA
• Judgment Date: 02 December 2004
• Citation: 2005 (1) SACR 505 (SCA)
• Docket Number: 411/03
• Hearing Date: 12 November 2004
• Counsel: E C J Wait for the State. G Wagenaar (attorney) for the respondent.
• Court: Supreme Court of Appeal

Streicher JA:

[1] The respondent was charged with the murder of his wife. When he appeared in the magistrate's court and during proceedings in terms of s 119 and s 121 of the Criminal Procedure Act 51 of 1977 ('the Act' and J

Streicher JA

'the s 119 plea proceedings') he pleaded guilty. Questioned in terms of s 121(1), he explained that the murder was A premeditated and how it was executed. However, at his trial in the Transvaal Provincial Division (the Court a quo) the respondent pleaded not guilty. The Court a quo held that the respondent's fundamental rights had been violated and ruled that evidence of a confession and pointing-out and of the s 119 plea B proceedings be excluded by virtue of the provisions of s 35(5) of the Constitution of the Republic of South Africa Act 108 of 1996. At the close of the State's case and in the absence of any evidence implicating the respondent, the Court a quo acquitted him. The State thereupon applied in terms of s 319 of the Act for the reservation of several questions for the consideration of this Court. The Court a quo refused the application but a subsequent C application to this Court was referred to us for oral argument. At the same time, the parties were advised that they should be prepared, if called upon to do so, to address us on the merits of the appeal.

[2] Immediately after the s 119 plea proceedings the respondent applied to be released on bail. The application was D refused, as was a subsequent application to the Court a quo and an appeal to this Court. In terms of s 60(11B)(c) of the Act the record of the bail proceedings (the bail record), excluding certain parts not presently relevant, formed part of the record of the trial. The following documents were handed in during the E bail application:

(1)

A document headed 'Aantekening van uitwysing van toneel (tonele en/of punt(e))'. This document consists of four pages (the main document) plus an annexure (the annexure) numbered pages 5 and 6. A confession is annexed to this document. The annexure purports to be F signed by a Senior Superintendent E Viljoen at 13h40 on 29 August 2001. According to it the respondent was informed of his right to a legal practitioner, that he was not obliged to make a confession or an admission and of various other rights. In the main document it is recorded that the respondent appeared before Viljoen at 13h44 on G 29 August 2001; that he was warned that 'hy nie verplig is om enige toneel (tonele) en/of punt(e) op die toneel (tonele) aan te wys of om enigiets daaromtrent te sê nie' and that he was informed of various other rights. It is further recorded that the respondent H stated that he understood what his rights were and that he nevertheless wished to point out 'die toneel'. It is also recorded that the respondent and Viljoen departed at 14h17 and returned at 15h40. The confession purports to have been signed at 16h00 on 29 August 2001.

(2)

A 'Notice of rights in terms of the Consitution' which purports to be signed by the respondent and an Inspector van Rensburg at 17h25 at 29August 2001. According to this document the I respondent was told that he had various rights, inter alia 'the right to consult with a legal practitioner of (his) choice or, should (he) so prefer, to apply to the Legal Aid Board to be provided by the State with the services of a legal practitioner' and 'the right to remain silent'. J

Streicher JA

(3)

A 'Waarskuwingsverklaring deur verdagte' which purports to be A signed by the respondent and a Captain Fabricius. According to this document the respondent was told at 11h05 on 30 August 2001 why he had been arrested and also that he had a right to remain silent and to consult a legal practioner of his choice or that he could apply to be provided with the services of a legal practitioner at the State's expense. B

[3] At the trial the State tendered the evidence of four witnesses, none of whom implicated the respondent. The State then requested that a trial-within-a-trial be held in order to determine whether the confession and pointing-out, which formed part of the bail record, had been made freely and voluntarily and at the same time to determine whether the respondent acted freely and voluntarily C during the s 119 plea proceedings. At that stage Mr Wagenaar, an attorney who represented the respondent, was in agreement that the matter should proceed by way of a trial-within-a-trial. However, a discussion, which covered 26 pages of the record, ensued between the Judge a quo and the parties. In order to properly understand D the State's complaints against the exclusion by the Court a quo of evidence of the confession and plea proceedings it is necessary to refer in some detail to what was said during the discussion.

[4] Wagenaar indicated that there would be a legal argument to the effect that the presiding officer at the s 119 proceedings had not adhered to the prescribed requirements. Asked by the Court a E quo whether the respondent had been advised of his right to legal representation, he replied that that was going to be a 'massive issue' at the trial-within-a-trial. Counsel for the State, Mr Mosing, indicated that the State contended that the respondent had been told of his right to legal representation. Wagenaar proceeded to F insinuate in very vague terms that other irregularities were committed during the s 119 plea proceedings and during the bail application in the magistrate's court, to which the Judge a quo responded: 'Yes I know where you are getting to, I think I am beginning to read your mind.' Precisely what the Judge a quo was reading into the insinuations he did not say. G

[5] Asked to state in a nutshell what the respondent's objection was, Wagenaar stated:

'I am objecting to the State presenting statements by the accused whether in or outside any court to be allowed.' H

[6] Mosing then suggested:

'M'Lord the issue of the plea proceedings it also may be a subject of a trial-within-a-trial. As I have indicated earlier, my understanding was it could be conducted in one trial-within-a-trial, only as far as the voluntariness and the sound and sober senses of the accused. The other issues M'Lord which has now been pointed out, perhaps in the light thereof, it would be feasible to have a separate I trial-within-a-trial for the plea proceedings.'

[7] The Court a quo interpreted the objection by the respondent to be an objection to the Court a quo proceeding with a trial-within-a-trial. Thereupon the following interchange between Mosing and the Judge a quo followed: J

Streicher JA

'Mr Mosing: I do not understand that it has been opposed M'Lord, I am sorry. A

Court: He objected, it is objected, right there has been an objection.

Mr Mosing: The objection is to the admissibility of that statement made by the accused, but it has got to be tested in a trial-within-a-trial M'Lord if the State is proceeding with it.

Court: No what I have recorded here is an objection by the defence, right. The objection of the defence raises various issues. I will not skirt around it, and say right lets plunge into a B trial-within-a-trial, but to give the defence a fair opportunity I will consider the objection. Then to rule accordingly I am not simply going to capitulate the rights of this Court to the prosecuting authority. There is an objection and I have to deal with it.

Mr Mosing: Yes M'Lord.

Court: In as much as it may be necessary to have the trial-within-a-trial, but I have to hear and it is a fundamental C principle of natural rule, audi alteram partem. I have to hear to the objection which is the reason why I listen to him. But to plunge into a trial-within-a-trial would be the easiest way, but I have to accord the defence their right to be heard in this Court.

. . .

There is an objection and I will deal with it tomorrow morning. If either of you have any authorities to support your proposition you can D raise it with me tomorrow.'

[8] My understanding of the position emerging from a discussion that must have lasted more than an hour is that the respondent objected to the admissibility of the statement and pointing-out as well as the plea proceedings; the State wanted to E resolve the issue by way of a trial-within-a-trial; the respondent had no objection to proceeding with a trial-within-a-trial but the Judge a quo insisted that there was an objection by the respondent to proceeding with a trial-within-a-trial.

[9] In the light of the Judge a quo's attitude, one would have thought that the argument was going to be whether the F admissibility of the statement and pointing-out and the plea proceedings should be determined by way of a trial-within-a-trial. However, the next day the Judge a quo opened the proceedings as follows:

'Since the objection is taken by Mr Wagenaar I will give him the first opportunity to address the Court. I understand that he will be G citing various authorities as well.

If I may crystallise very briefly from yesterday. The State contended that it would conduct the trial-within-a-trial, regarding the statement made by the accused, as well as the pointing-out as one component and then to deal with the plea proceeding. Whereas on the other hand Mr Wagenaar's objection, if the Court understand it correctly, was simply H that a trial-within-a-trial should be a single exercise bringing the two components the first, that is the statement made by the accused and pointing-out, together with the plea proceedings, because the defence regards that as one process.

This brings to the point that there are two different positions taken by the two sides in this matter. Therefore in fairness to the accused, in the interest of justice, the Court will deal with this aspect in some detail to listen to argument.' I

[10] Unfortunately...