S v Colt and Others

• Jurisdiction: South Africa
• Judge: Kroon J
• Judgment Date: 08 April 1992
• Citation: 1992 (2) SACR 120 (E)
• Hearing Date: 16 March 1992
• Counsel: N Henning for the State G G Goosen for the accused at the request of the Court
• Court: Eastern Cape Division

Kroon J:

As part of the State case against accused No 3 who, together with his three co-accused, A had been arraigned on a charge of murder, Mr Henning, who appeared for the State, tendered evidence of a statement made by the accused to Captain Van Heerden, an officer in the South African Police. Mr Goosen, who appeared for the accused at my request and to whom we are indebted for his assistance, objected to the admissibility of the evidence. A trial-within-a-trial to determine this issue was accordingly B held. For this purpose my two assessors remained members of the Court. In the result it was ruled that the statement was not admissible in evidence. At the time I intimated that reasons for that ruling would be handed down later. Those reasons now follow:

The statement itself was not placed before the Court during the trial-within-a-trial, but we were advised by Mr Henning that the provisions of s 217 of the Criminal Procedure Act 51 of 1977 were of C application. The statement therefore constituted a confession to either the charge of murder or another crime, a conviction of which would have been a competent verdict on the charge of murder.

The grounds on which Mr Goosen sought to resist the admission of the statement were the contentions that it had not been made freely and voluntarily and that it had been procured by undue influence. Counsel were D agreed, and correctly so, that the onus rested on the State to disprove these contentions beyond a reasonable doubt. That the statement was made by the accused while in his sound and sober senses was not in issue.

Four witnesses were called on behalf of the State, viz Van Heerden, Sergeant Stefane who assisted him as interpreter (both of whom were stationed at Uitenhage), Constable Brown, the then investigating officer, E and Constable Ndevu who assisted Brown (both of whom were stationed at Humansdorp). Van Heerden testified that prior to minuting the statement he duly warned the accused and asked him a number of prefatory questions, the answers to which all indicated that the accused was willing to make a statement and had not been induced or influenced to do so. One of these questions was the following:

F 'Is u deur enige persoon op enige wyse beïnvloed of aangemoedig om 'n verklaring af te lê?'

The answer thereto was in the negative. I will return to this aspect later in this judgment.

Another aspect relating to Van Heerden's evidence to which I feel constrained to refer is what I consider to have been the inadequacy of the G questioning of the accused with which he contented himself prior to minuting the latter's statement. In the matter of S v Jika and Others 1991 (2) SACR 489 (E) I expressed the view which is reflected in the portion of the headnote reading as follows:

'Where an accused person is brought to a magistrate for the purpose of making a confession and it appears that he has already made a H statement, it is necessary that the questioning of the accused by the magistrate be such as, firstly, to pierce the veil adverted to in S v Gumede and Another 1942 AD 398 at 433, ie the "veil between the previous interrogations by the police and the subsequent appearance of the interrogated person before the magistrate", and, secondly, to ensure that the result of such piercing is that the Court is satisfied beyond reasonable doubt that whatever possible untoward circumstances may have I prevailed at the time the accused made the statement to the police were no longer operative at the time when the accused appeared before the magistrate. The reason for this is that there is a danger that by reason of untoward conduct on the part of the police the accused might have been brought to a confessing state of mind which might persist at the time of his appearance before the magistrate and which might give rise to an apparent but deceptive voluntariness on his part to make a J statement to the magistrate.

Kroon J

A The magistrate should, therefore, enquire of the person appearing before 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". (S v Gumede and Another (supra at 400).)

The Court further held that two of the statements tendered in evidence by the State in the instant case did not comply with the B requirements of s 217(1)(b)(ii) of the Act as, although it appeared that the two accused who had made the statements had previously made statements to the police, the magistrate had not made adequate enquiries of the accused in order to exclude the reasonable possibility that the accused had been unduly influenced to make the statements in question to him or that he was not doing so freely and voluntarily. The Court C accordingly held that, in the event of the State proving the making of the statements, the onus would be on the State to establish the admissibility of the statements/confessions.'

In my judgment the principle enunciated in that case with reference to the position where a deponent states that he has previously made a statement to the police, should be extended to enjoin a magistrate or police officer, who has been requested to minute a statement, in all cases D to properly investigate, by appropriate questioning of the deponent, the events and circumstances which led to the deponent appearing before him and to record the results of such investigation. Such a procedure would go a step further in assisting the Court which may later be called upon to adjudicate on the admissibility of the statement and would work against injustice to an accused. It would, for example, probably obviate the E situation, as in fact occurred in casu, where a deponent, for whatever reason, wrongly states that he has not made a previous statement and that answer is accepted at face value. Although I am not called upon to decide the point in the present matter, it seems to me, depending of course on the whole factual picture, that a persuasive argument could be made out that in a case where the State seeks to invoke the terms of s 217(1)(b) to saddle an accused person with the onus of disproving the admissibility of F a statement, a failure on the part of the magistrate to properly investigate the events which preceded the deponent's appearance before him should result in a finding that, ex facie the document, it does not appear that the statement was made freely and voluntarily and without the deponent having been unduly influenced thereto. In the present matter Van Heerden acknowledged that it would have been preferable if he had G conducted such an investigation, but he explained that the roneoed form which he utilised made no provision therefor. The present is therefore yet another case illustrating the undesirability of magistrates and police officers restricting themselves to a pre-prepared roneoed form.

Brown's evidence, which was in substance supported by that of Ndevu, was in essence to the following effect: On the afternoon of 5 September 1990 H he and Ndevu arrested accused No 3 at his house. The accused was taken to the workplace of certain of the State witnesses in order for him to be identified as the correct suspect. On the accused being so identified he was formally charged and warned in terms of the Judges' Rules. He was then taken to Brown's office where Brown, with the assistance of Ndevu as interpreter, questioned him. The accused was thereafter left in a cell I while Brown and Ndevu went to arrest accused No 1. It was conceded by Brown that the name of accused No 1 might have been mentioned by accused No 3 when he was being questioned. After accused No 1 had been arrested and questioned, Brown resumed the questioning of accused No 3. At this second questioning session accused No 3 was confronted with what accused No 1 had told Brown, a version which differed from that which accused No 3 had earlier given Brown. Accused No 3 was required to respond to what J accused No 1 had said. The upshot was that

Kroon J

A accused No 3 resiled in certain respects from his earlier version and his new version conformed substantially to that of accused No 1. Thereafter the questioning ceased. The second questioning of accused No 3 was not prefaced by a repeat of a warning in terms of the Judges' Rules. The following morning Brown merely enquired of the accused whether he would be prepared to make a statement to a magistrate or a police officer. On receiving an affirmative answer Brown endeavoured to enlist the services B of a magistrate to minute such statement. These endeavours proved to be unsuccessful and Brown thereupon contacted Van Heerden. The statement was minuted before lunch on that day. Brown denied that either he or any other policeman had assaulted the accused or that the accused had in any other way been induced or influenced to make the statement. He did not consider that he acted irregularly in confronting the accused with the version of C the latter's co-accused in questioning him thereon and in requiring his response thereto, a mode of investigation which, he said, was his wont.

Accused No 3 testified as follows: He was arrested on the morning of 5 September 1990 by Brown, Ndevu and two white policemen. After having been taken to the place of employment of the State witnesses, he was removed to the detectives' offices where he was questioned by Brown with Ndevu D interpreting. The two white policemen were present. He could not remember having been warned in terms of the Judges' Rules. The answers which he gave during the questioning were not acceptable to the police and he was assaulted in a variety of ways. By reason of the assault he eventually gave the police a version of the events of the night in question. He was later subjected to a second session of questioning, this time in E connection with the version which one Tom, another suspect whom...