Rex v Gumede and Another

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 30 September 1942
• Hearing Date: 18 September 1942
• Citation: 1942 AD 398
• Court: Appellate Division

De Wet, C.J.:

The Court is much indebted to Mr. De Villiers who, at the request of the Court, appeared for the accused and ably argued the case on their behalf.

The difficulty which I felt in considering this case is caused by the fact that the evidence of what occurred before the magistrate shows that the confessions, which he took down in writing, were freely and voluntarily made and by the fact that the evidence given by the two accused as to the circumstances which led up to those confessions is so untrustworthy that it is difficult to see how much credence can be given, to it where it is in conflict with that given for the Crown. On the whole, however, I feel myself constrained to agree with the conclusion of my brother FEETHAM who, I think, has shown by his careful analysis of the whole of the evidence that even on the evidence of Ferguson, especially taken into conjunction with the fact that none of the native detectives were called as witnesses, the Crown has failed to prove that the confessions were freely and

Tindall, J.A.

voluntarily made and without the accused having been unduly influenced thereto. I therefore concur that the appeal should be allowed and the convictions and sentences set aside.

I also wish to associate myself with the concluding remarks of my brother FEETHAM on the second proviso to sec. 273. This proviso was no doubt inserted for the protection of the accused, but I am afraid that in some cases its practical working hag had the contrary effect. The evidence as to how the confession was made before the magistrate is, as a rule, entirely satisfactory, but one's experience shows that in the case of natives the formal warning and caution by the magistrate seldom bring out the fact, where such is the case, that there have been antecedent threats or promises to induce the accused to make the confession. I would suggest very earnestly for the consideration of the Minister of Justice the desirability of issuing instructions to all magistrates and justices of the peace that, when an accused is brought before them for the purpose of making any statement in the nature of a confession, they should in the first place inquire from him whether he has already made a statement and if so the nature of such statement and especially the reasons actuating him in wishing to repeat the statement.

WATERMEYER, J.A and CENTLIVRES, J.A., concurred.

Judgment

Tindall, J.A.:

The two appellants, who are natives, were convicted by the Natal Native High Court of the murder of a European storekeeper, named Collier, who carried on business in the country at Nibela Store in Zululand. The crime was committed on the evening of 9th November, 1941. Early in the following week the police caused a number of natives from the neighbourhood, including the second accused, to be brought to the store and detained there for the purpose of investigation. Among the police officials who took part in the investigation at Nibela Store and the neighbourhood were Colonel Coetzee and Major Coetzee, both of whom left Nibela on 15th November Detectives Ferguson and Cook, four native detectives and four natives in civilian clothes. The European police officials mentioned did not remain continuously at the store, but there were always two native policemen posted there and part of their duty was to see that the second accused and the first accused, who was brought there on the 14th, were kept apart from each other and from Popo,

Tindall, J.A.

a native who was detained there from the 13th or 14th and that none of these three communicated with each other. The second accused was first brought to the store on 11th November, the first accused not until 14th November. On the morning of 18th November, Ferguson, who had been in charge of the investigations at the store and in the vicinity, save during the presence of his superior officers, took the two accused in a police van to Ubombo, 80 miles from the store, where there is a police station and a magistracy, in order that they might make statements before the magistrate there. The statements were taken down by the magistrate, who took the precaution of having a local storekeeper, Hoff, present who had a thorough knowledge of the Zulu language and was able to check the interpretation of the interpreter of the magistrate's court named Hawes.

At the trial Ferguson gave evidence as to the circumstances under which the two accused came to make the statements, and Hawes, Hoff and the magistrate gave evidence as to what was said when the accused made the statements to the magistrate. After this evidence the Attorney-General tendered the statements (which I shall refer to as the confessions) as evidence against the accused, whereupon counsel for both accused objected to the admission of the confessions on the ground that they were "induced by fear and also by an inducement of bail both by Detective Ferguson and other members of the police force." The evidence of the two accused on this issue was then heard and the Crown called Major Coetzee and recalled the magistrate, Hawes and Ferguson. In the result the Court's finding was that it was "satisfied that the statements were made freely and voluntarily and without undue influence having been used to induce the accused to make them," and it held that the requirements of sec. 273 of Act 31 of 1917 had been met and that the statements were admissible. The present appeal turns on the question whether the confessions were rightly admitted.

Before taking the statements of the two accused (who were dealt with separately and not in each other's presence) the magistrate gave each accused the usual warning that he was not obliged to make a statement but that any statement he might make would be reduced to writing and might be used against him at his trial. He also asked each whether in making the statement he was acting freely and voluntarily and without having been influenced

Tindall, J.A.

thereto. The interpreter's evidence was that he translated the question whether they had been influenced by asking each accused whether anything had been said to him that had caused him to make the statement, and that each accused replied in the negative. After recording the statements the magistrate, in each case, before getting the accused to make his mark, told him that if he did not wish the statement to stand, he (the magistrate) was prepared to tear up the statement. This intimation from the magistrate ended with a remark the exact phraseology of which is left somewhat obscure in the evidence. The magistrate's first version of the remark is that he added: "that they were free to go if they did not wish them to stand!" In cross-examination he assented to the suggestion that he did not suggest that they would be free from custody, but when cross-examining counsel asked if he could remember how he phrased it he gave the following answer: "Yes, I told them that nobody could actually force them to say anything they did not wish to say, nobody on earth, judge or magistrate and so on, and I said afterwards 'If you wish now and you say you don't wish it to stand, then I am prepared to take it and actually tear it up and then, of course, you are free to go back to wherever you come from.' I did not know where they came from," (Question): "You really indicated to them that you were prepared to tear up the statement and allow them to go back, as you have said, to where they came from? - Yes, that is so."

"That they were free from custody?" - "Yes."

Neither Hawes nor Hoff was questioned about this remark. It is unfortunate that none of the Judges of the trial Court took the precaution of interrogating the magistrate further and putting the direct question to him whether he knew that the police had brought the accused to Ubombo or that they were in the custody of the police. On the evidence as it stands it is not certain that the remarks of the magistrate now under the discussion conveyed anything more to the accused than that, if they did not wish to adhere to their confessions, he was prepared to destroy what he had written down. But even if that be so, each accused must have realised that his adherence to the statement taken down by the magistrate would inevitably result in his having to stand his trial for the murder of Collier, and would supply very strong evidence against him.

Tindall, J.A.

From the facts I have stated it is clear that no pressure was exercised on or inducement offered to either of the accused before the magistrate. But the contention on behalf of the accused was that their experiences at the hands of the police and inducements held out to them by Ferguson during their detention at the store ought to have influenced the trial Court to have a reasonable doubt whether the confessions were free and voluntary and made by the accused without having been unduly influenced thereto. Before discussing the effect of sec. 273 it will be convenient to mention the effect of the evidence relating to the treatment of the accused during their detention before they were taken to Ubombo. Both accused in their evidence made a number of allegations against Ferguson and other members of the police which the trial Court rejected as false. McCORMICK, J.P., in his reasons on the question of the admissibility of the confessions, stated that the two accused were not impressive witnesses and that the. Court was satisfied that the story told by each accused was an invention. Ferguson did not dispute repeated interrogation of both accused, but the first accused gave the exaggerated version that Ferguson interrogated him on the 15th, 16th and 17th the whole day except when he was allowed to go and have his food. He also complained of assaults by Ferguson and two of the natives, and a threat by Ferguson to kill him. He stated that Ferguson told him that if he made a confession he would be freed, that he would speak an his behalf to the Judges and...