S v Agnew and Another

• Jurisdiction: South Africa
• Judge: Foxcroft J
• Judgment Date: 05 March 1996
• Citation: 1996 (2) SACR 535 (C)
• Hearing Date: 05 March 1996
• Counsel: M A Broeksma for accused No 1, W A King for accused No 2 C A Cilliers for the State
• Court: Cape Provincial Division

S v Agnew and Another
1996 (2) SACR 535 (C)

1996 (2) SACR p535

Citation	1996 (2) SACR 535 (C)
Court	Cape Provincial Division
Judge	Foxcroft J
Heard	March 5, 1996
Judgment	March 5, 1996
Counsel	M A Broeksma for accused No 1, W A King for accused No 2; C A Cilliers for the State

Flynote : Sleutelwoorde

Fundamental rights — Right to remain silent and right to legal H representation — Statement taken from accused in violation of such right — Police taking statement from accused before his attorney had arrived — Such constituting a violation of accused's right to silence and his right to legal representation — Statement inadmissible.

Evidence — Admissibility of statement taken from accused in violation of fundamental rights to remain silent and to have legal representation I — Police taking statement from accused, having not waited for accused's attorney to arrive before taking such statement — Statement ruled inadmissible.

Headnote : Kopnota

During the course of a criminal trial in a Provincial Division the Court was required to rule on the admissibility of a statement made to a police captain. It appeared J

1996 (2) SACR p536

that the accused had been arrested at his home at about 3h15 in the morning. A The arresting officer telephoned the accused's attorney from his home and arranged that he would take the accused to the police station where they could meet. At the police station the accused made a statement to the police captain whereafter he was taken to a magistrate where the statement in question was made. The Court held on an examination of the evidence that the accused had not been taken to his attorney for fear that information would thereafter not B be forthcoming from the accused had his attorney been present. The Court held further that the statement made by the accused to the magistrate was inadmissible: the procedure adopted of not waiting for the accused's attorney to be present offended against the provisions of the Constitution, Act 200 of 1993, in particular the right to silence. The presence of an accused's attorney reinforced the right to silence as the mere presence of the attorney acted as a C safeguard in that respect. The Court held further that allowing the statement of the accused made to the magistrate would undermine the principles of a fair trial and the continuing protection afforded by the Constitution to the right of representation from the moment of arrest.

Case Information

D Ruling on a question of admissibility of evidence during a criminal trial.

M A Broeksma for accused No 1.

W A King for accused No 2.

C A Cilliers for the State. E

Judgment

Foxcroft J:

At the beginning of this trial, the State wished to introduce a statement by accused No 2 which had been made before a magistrate. Mr Cilliers, who appeared for the State, indicated that the defence was not prepared to accept that the statement in question had been made on a voluntary basis and evidence was led by the State, upon whom the onus rested in terms of the decision in S v Zuma and Others 1995 (1) SACR 568 (CC) F to establish that the document was admissible.

Captain Kotze testified in regard to the arrest of accused No 2 and obtaining of the statement which was made to a magistrate at about 3:15 in the morning. He had arrested the accused at his home and had spoken to his attorney, who had been telephoned from the accused's home. Kotze G conceded that he had spoken to the attorney, Mr Percy Choritz, and that an arrangement had been made that he would be taking the accused to the Bellville South police station and that he would meet Mr Choritz there. He added that Mr Choritz had not told him that he was not to take a statement from the accused.

This evidence was later contradicted by Mr Choritz, who testified on H behalf of accused No 2. He was adamant that he had told the accused over the telephone not to make any statement to Captain Kotze and that he had told Kotze that he had instructed his client not to make any statement to Kotze, and that he was not to take a statement from him.

Kotze's evidence was that after he had taken the accused to his car and I had exchanged a few words with him, the accused had said that he was prepared to tell him what had happened and started to give him certain information. He went on to say that the accused then suggested that they go and have a cup of coffee and he would then tell him what had happened, and that this then occurred. When it seemed that the information that he was getting sounded like a confession, Captain Kotze asked the accused J

1996 (2) SACR p537

Foxcroft J

whether he would be prepared to make a statement to a magistrate, and this A was then done. He said that he felt that he was not required to get in touch with Mr Choritz at that stage since the accused had told him that it would not make any difference to his statement and that he no longer wished the attorney to be present.

Accused No 2 gave evidence and denied this last proposition. His B evidence was that he had been frightened by the arrival of a large number of policemen at his home, waking him up from a deep sleep at about 1:15 in the morning and that he had been threatened by Kotze as to what would happen to him if he was put into police cells in Guguletu. He therefore made a statement to the magistrate. He did not tell the magistrate that an C attorney was waiting for him at Bellville South. The magistrate that he was taken to was attached to the Cape Town Magistrate's Court.

The accused felt that he had been prevented from seeing his attorney and said that Captain Kotze had fobbed him off with statements that once they had been to the magistrate they could then see the attorney.

We wished to limit credibility findings at that stage of proceedings, but D we were not impressed with Kotze's version in all respects. His evidence that Mr Choritz didn't seem to know anything about criminal cases was far-fetched and seemed to be designed to create a good impression of himself acting as the adviser to the accused's attorney.

While my assessors and I were by no means satisfied as to the truthfulness E of accused No 2's version of events, we were satisfied that he had been told by Kotze that there was a strong case against him. Indeed, Kotze said a number of times in the witness box that he had such a strong case against...