S v Gasa and Others

• Jurisdiction: South Africa
• Judge: Howard JP
• Judgment Date: 17 March 1997
• Citation: 1998 (1) SACR 446 (D)
• Hearing Date: 17 March 1997
• Court: Durban and Coast Local Division

Howard JP:

A trial-within-a-trial has been held to determine the admissibility of a C pointing-out by accused No 1 and statements made by accused No 2 to a commissioned police officer, and by accused No 3 to a magistrate.

Accused No 1 disputed the admissibility of the pointing-out and accused Nos 2 and 3 D disputed the admissibility of their statements on the basis that they were not done or made freely and voluntarily, but had been induced by assaults committed by the police.

Without going into any detail at this stage, the Court rejects the evidence of assaults and finds it proved beyond reasonable doubt that accused No 1 pointed out the scene of the crimes, and accused Nos 2 and 3 made their statements freely and voluntarily and without having been E unduly influenced thereto.

In particular, we reject the preposterous evidence of accused No 2, that Superintendent Havenga did not take any statement from him. That exh E, and the statement which F accompanied it, were concocted by Havenga without reference to him, and the two black policemen then forced him to sign and place his thumbprint on each page of the document.

We likewise reject the patently absurd evidence of accused No 3 that the police concocted the largely exculpatory statement, exh D, and schooled him to repeat it to the magistrate.

It has been contended on behalf of accused No 1, that the admissions made by way of G pointing-out, and by accused No 2 that his confession, are inadmissible because they were not duly informed of their Constitutional right, to legal representation and did not waive that right.

Section 25(1)(c) of the interim Constitution, Act 200 of 1993, provided that every person who is detained shall have the right -

'(c) To consult with a legal practitioner of his or her choice, to be informed of this right promptly, and H where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the State.'

The accused say that they were not told anything at all about legal representation, but that is clearly false. However, on the occasion when Captain Munro interviewed accused No 1 and conducted the pointing out procedure, he was not informed of his rights in terms of s 25(1)(c) I of the interim Constitution. All he was told then was that if he was represented by an attorney, he could request that attorney to be present.

Inspector Miller had interviewed accused No 1 earlier and had told him that...