S v Jika and Others

• Jurisdiction: South Africa
• Judge: Kroon J
• Judgment Date: 03 August 1988
• Citation: 1991 (2) SACR 489 (E)
• Hearing Date: 02 August 1988
• Counsel: L Jordaan for the State E A S Ford (with him A D Schoeman) for the accused
• Court: Eastern Cape Division

Kroon J:

The three accused stand charged with the crime of murder, the E allegation being that on 8 March 1986, and at Jansenville, they unlawfully and intentionally killed one Solomon Mgibe. According to the summary of substantial facts annexed to the indictment the alleged crime was committed during the afternoon of the day in question, and it is further reflected that the deceased had been employed by the Eastern Cape Development Board as a constable in the Community Guard at Jansenville.

F As part of the State case against the accused Mr Jordaan, for the State, has tendered in evidence statements made by the three accused. While admitting that the statements in question were made by the respective accused, Mr Ford, for the accused, placed the admissibility thereof in issue. From the tenor of the arguments presented by counsel on the preliminary question of where the onus lay in regard to the admissibility or otherwise of the statements, an aspect which will G receive full attention presently, it was implicit that the statements in question constituted confessions to either the charge of murder or some lesser offence a conviction in respect of which would be a competent verdict on the charge of murder.

The provisions of s 217 of the Criminal Procedure Act 51 of 1977 are accordingly of application. This section reads as follows:

H '(1) Evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence: Provided -

(a)

I that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in s 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorised to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate J or justice; and

Kroon J

(b)

A that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question -

(i)

be admissible in evidence against such person if it appears from the document in which the confession is contained that B the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put C to such person by the magistrate; and

(ii)

be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto.' D

The effect of the provisions set out in ss (1)(b) is that, where the State proffers in evidence a statement contained in a document which complies with all the requirements set out in the subsection, such statement is admissible in evidence on the mere production thereof and, unless the accused proves the contrary, is deemed to have been made E freely and voluntarily by the deponent in his sound and sober senses without his having been unduly influenced thereto. I will later deal separately with the requirements set out in the introductory portion of the subsection, but at this stage it may be pointed out that whether the document is one which complies with all the requirements referred to in ss (1)(b)(i) and (ii), is something which must appear from the document beyond a reasonable doubt, a question which must be decided on a F consideration only of the contents of the document itself. Specifically in regard to ss (1)(b)(ii), if the document is reasonably capable of a construction other than that the deponent made the statement freely and voluntarily and without being unduly influenced thereto, and while in his sound and sober senses, the accused will not be burdened with any onus, and same would rest squarely on the State. Where, by reason of the operation of the provisions of the section, the accused is saddled with G the onus, same may be discharged on a balance of probabilities. In other cases where the admissibility of a statement is contested, the State is burdened with the onus of establishing the requisites for the admissibility thereof beyond a reasonable doubt. Finally, it should be noted that because of the drastic consequences of a shift in the onus to the accused, the document must be strictly construed. (See generally in regard to the above principles the following decisions: S v Dhlamini en H Andere1981 (3) SA 1105 (W); S v Mpetha and Others (2)1982 (2) SA 406 (C); S v Mpumlo and Others (ECD, 4 June 1986); S v Yolelo1981 (1) SA 1002 (A); S v Nene and Others (2)1979 (2) SA 521 (D); S v Mkanze1979 (2) SA 757 (T); S v Nyembe1982 (1) SA 835 (A); S v Mkwanazi1966 (1) SA 736 (A); S v Mbonane1979 (3) SA 182 (T); S v Kekane and Others1986 (4) SA 466 (W).)

I It was the contention of Mr Jordaan that the documents containing the statements in question did indeed comply with all the requisites set out in s 217 and that accordingly the statements were admissible on their mere production and that the accused were saddled with the onus of disproving their admissibility. Mr Ford, for the accused, contended to the contrary and it is that issue which falls to be decided at this stage. To that end the documents containing the statements were J provisionally received and accorded provisional

Kroon J

A exhibit numbers, namely B, C and D in respect of the documents relating to accused Nos 1, 2 and 3 respectively. Those portions of the documents containing the actual statements were covered, however, and the contents thereof have not been disclosed.

In deciding the issue referred to above it is necessary to discuss only those requirements which Mr Ford placed in issue and it is unnecessary to refer to those provisions of the section which, it was B common cause, were satisfied, namely that the documents in question do reflect that the statements were made by persons whose names correspond to those of the accused, that the accused were in their sound and sober senses when they made the respective statements and that in those cases where an interpreter was used, namely exhs B and C, the certificate of the interpreter was in proper form. The contentions which were relied C upon by Mr Ford related to (i) the question whether it had been established that the statements contained in the documents had been made to magistrates and (ii) the question whether the documents reflected that the statements had been made freely and voluntarily and without the accused having been unduly influenced thereto. These two questions will be discussed in turn.

In regard to the first question, it was common cause between counsel, D and correctly so, that before the State is entitled to invoke the provisions of the subsection to contend that the accused are saddled with the onus, it has to be established as a fact that the confession had been made to a magistrate. Kekane's case supra; Dhlamini's case supra; cf Yolelo's case supra at 1009.

In casu the forms utilised for the recording of the prefatory warnings given to the accused and the answers given by them to prefatory questions - which forms appear to be roneoed forms - state in terms E that the person who minuted the statement of each of the accused was Mr A J Oosthuizen, the magistrate for the district of Graaff-Reinet, and the forms further reflect at the end thereof that under his signature Mr Oosthuizen describes himself as a magistrate.

It was the contention of counsel for the State that, inasmuch as it appeared ex facie the documents that the person who recorded the F statements of the accused was a magistrate, the prerequisite provided for in the introductory portion of s 217(1)(b) for the documents to be admissible on their mere production and for the accused to be visited with the onus, ie the prerequisite that the confession be made to a magistrate, is satisfied. In essence therefore the submission was that it is sufficient merely if the document in question reflected that the G statement had been made to a magistrate. I am unable to agree and in my opinion the contrary submission of Mr Ford that something more than a mere statement in the document that the person by whom the confession was recorded was a magistrate is required, must be upheld. In my judgment a clear distinction must be drawn between the provisions of the introductory portion of s 217(1)(b) and the provisions of s 217(1)(b)(ii), albeit that the latter follow and are dependent on the H former. In contradistinction to the wording of s 217(1)(b)(ii), which provides for a presumption to operate on the mere strength of what is set out in the document in question, there is no provision in the introductory portion of the subsection for any presumption to come into operation by reason of the wording of the document under consideration. In the absence of any such presumption I know of no principle of law I which permits the mere statement in the document that the confession was recorded by a magistrate to prove the fact that it was...