Recent Case: Law of evidence
| Jurisdiction | South Africa |
| Pages | 382-398 |
| Date | 06 September 2019 |
| Author | Nicci Whitear-Nel |
| Citation | (2011) 24 SACJ 382 |
| Published date | 06 September 2019 |
Law of evidence
NICCI WHITEAR-NEL
University of KwaZulu-Natal, Pieterm aritzburg
Admissibility of a confession
The case of S v Mkhize 2011 (1) SACR 554 (KZD) dealt with the
admissibility of a confession obtai ned from the accused during h is
unlawful detention by the police.
The accused was charged with two counts of murder, the first
arising out of an incident on 1 November 200 8, and the second from
an incident on 5 February 2009. The accused pleaded not guilty to
both charges. T he prosecution called w itnesses to support t heir case,
but the mai n evidence agai nst the accused was t he confession he
had allegedly made to one Captain Eva. The accused objected to the
admission of the confession on the ba sis that he h ad been forced to
make the confession by threats and assaults (at para 12). A trial within
a trial was (correctly) held to determine the matter.
Five witnesses testified for the prosecution. They testified that they had
followed the correct procedures, had properly explained the accused’s
rights to him, and that the accused had freely and voluntarily chosen to
make his confession to Captai n Eva. They conceded that although they
arrested and detained the accused on 27 August 2009, he was brought
to court for the first time only on 6 November 2009 (at paras 15-27). The
accused was thus in unlawf ul detention for well over 2 months.
The accused denied that his rights had been explained to him ,
and d enied that he h ad cho sen to confe ss. He test ified that he h ad
382 SACJ . (2011) 3
(2011) 24 SACJ 382
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been threa tened and t ortu red i nto m aking the confe ssion (at para s
30 -31) .
This was the evidence on which the court had to deter mine the
admissibility of the confession. The court started by referring to s 35 of
the Constitution of t he Republic of South Africa, 1996, which sets out
the rights of an arrested person, and s 50(1) of the Criminal Procedure
Act 51 of 1977, which provides that an accused has the right to be
brought to cou rt within 48 hours of his arrest. The court held that
this was the background against which the case should be assessed
(at para 39).
The court noted that the most shocking thing ab out the case was
the fa ct t hat t he acc used was no t broug ht to cour t wit hin 48 h ours
of his ar rest on 27 August 2009, nor wi thin 4 8 hours of 3 November
2009, when hi s warni ng statemen t was taken (at para 39). The
‘enormity of hi s unlawfu l detention was compounded by obtaining
a confession from him on 5 November 200 9, when he should rather
have been before a court ’ (at par a 42). The cour t held the police’s
conduct was rem inisce nt of t he dark days of apart heid, and had
no place in the present democ ratic order (at pa ra 52). The cour t
rejecte d t he explanat ions tendere d for fai ling to bri ng t he a ccused
to court with in 48 hours of his ar rest as nonsensical, and held that
none of t he exceptio ns to the 48 hour rule app lied (at par as 41, 43).
The court found that t he accus ed’s right s were flagrantly violated
and that his constituti onal protecti ons were made a mockery of
by exper ienced police officer s who should have know n bette r (at
para 43). The court held that this conduct called into question
the police’s moti ves and r eflected poorly on their credibilit y and
reliabi lity (at para 42). Again st this backgr ound, the cour t proceeded
to evaluate the evidence.
The cou rt he ld that the f act th at the police officers had fl agrant ly
disregarded the accused’s rights was a strong factor indicating t hat
the accused had a stronger clai m to cr edibil ity than they did (at
para 63). The police officers’ credibility, reliability and bona fides
was called int o qu estion by vir tue of their flouting the pro cedures
designed t o protect the accu sed agai nst im proper pol ice conduc t (at
para 4 2), which at best revealed poor and shoddy police work and at
worst was suspiciou s (at para 71). In contrast, the accuse d’s evidence
was satisfactory (at para 72). In addition, the court noted numerous
improbabi lities in the state’s version and found that there were
aspect s of the state’s evidence that actually suppor ted the version put
forward by the a ccused (at p ara 69). Th erefore, t he cour t conclude d
that the version of the accused was reasonably possibly true and was
accepted over that put forward by the state (at para 72).
Recent cases 383
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