S v Khan

• Jurisdiction: South Africa
• Judge: Howie JA, Scott JA and Streicher AJA
• Judgment Date: 18 September 1997
• Citation: 1997 (2) SACR 611 (SCA)
• Hearing Date: 26 August 1997
• Counsel: P V Higgo for the appellant A Immelman for the State
• Court: Supreme Court of Appeal

Howie J A:

Appellant was convicted in the Cape Provincial Division on two counts of murder and sentenced to B 15 years' imprisonment on each. With the leave of the trial Judge (Lategan J) he appeals against the convictions and the cumulative effect of the sentences.

In 1992 a man by the name of Ismail Collison was shot dead at Belhar in the Western Cape. One Leon Davids was charged with his murder and due to stand trial in the Cape Town Supreme Court on 3 November 1993. Two C people whom the State intended calling as alleged eyewitnesses at that trial were Collison's sister, Fatima, and another woman, Gadija Adams. On 29 October 1993 David's girlfriend, Karen Groenewald, accompanied by members of a well-known gang in the Belhar area, unsuccessfully made enquiries as to Fatima's whereabouts. Two D evenings later a young couple arrived at the Collison home. The occupants did not recognise them. They proffered the story to Fatima's mother Solega that Fatima's boyfriend was being held at Bellville police station and that if Fatima and Gadija went there they could secure his release. Fortunately for Fatima she was out but Solega offered E to show the visitors where Gadija lived. Solega then accompanied the couple to Gadija's home. When Gadija came into the street she was shot four times. Solega Collison was shot twice. They died on the spot. The State's allegation was that the couple in question were Karen Groenewald and appellant and that appellant was responsible for the shootings. Why Solega was murdered is not clear. Unlike Gadija, she was not due to be a witness in the F Davids' case so the inference would seem to be that she was silenced because she could have testified to the killing of Gadija. Appellant was charged together with Groenewald with the double murder. Groenewald was acquitted for lack of evidence.

The sole incriminating evidence against appellant is a confession he made before a magistrate on the day after his G arrest on the charges in question. It reads as follows:

'Die verklaring wat ek nou gaan aflê gaan oor iets wat op Sondag 31ste van die tiende maand gebeur het, toe ek in Belhar was. Ek en Marlon was in die extension in Belhar om 2 (twee) vroumense te gaan skiet. Daar was 'n vroumens saam met ons in die rooi kar om vir ons te gaan wys waar die twee vroumense woon, en toe sy vir ons H klaar gewys het, het ons uit die kar uit geklim. Ons het die twee vroumense gaan soek by die huis . . . en hulle twee toe geskiet. Ons het daar weggehardloop van die toneel af. Die rooi kar het ons opgetel en het ons huis toe gevat. Dit is al.'

The confession was ruled admissible pursuant to an interlocutory trial in the course of which appellant testified. He I admitted having made the confession but alleged that its making was the result of an assault on him by the investigating officer and various improper and undue influences which the latter exercised upon him. He also claimed that its contents were the product of someone else's knowledge, not his own. In all those respects it is unnecessary for present purposes to say more than that his evidence was rejected as beyond reasonable doubt false and that the J trial

Howie J A

Court's credibility findings in this regard, although the relevant prosecution evidence was the subject of some A criticism in counsel's heads of argument, were not attacked on appeal.

It also requires mention that a submission in appellant's heads that, if the confession was indeed admissible, the additional evidence required for a conviction by s 209 of the Criminal Procedure Act 51 of 1977 ('the Act') was B lacking, was not persisted in at the hearing. The evidence on record dehors the confession shows clearly enough that the confessed crimes were proved and, furthermore, the confession was confirmed in material respects.

The essential contention in support of the appeal against conviction was based on an aspect of appellant's evidence C that was not rejected, namely that at no stage before making the confession was he informed of the right to legal representation, that he was ignorant of such right and that had he been so informed he would have requested legal representation. Significantly, soon after making the confession, and on the same day, he was brought before a magistrate's court for formal remand. He was then told of the right in question and responded by saying that he D wanted to apply for legal aid.

In the light of these facts counsel for appellant argued that the failure to inform appellant of his right to legal representation before he made the confession constituted, firstly, undue influence within the meaning of s 217 of the Act and, secondly, an infringement of the right to legal representation conferred by s 73(1) of the Act and the right E afforded by s 25(1)(c) of the Constitution of the Republic of South Africa Act 200 of 1993 ('the interim Constitution'), to be informed of the right to such representation. The further result, so the argument proceeded, was that admission of the confession in evidence infringed the right to a fair trial granted by s 25(3) of the interim F Constitution.

In weighing these submissions one must have regard to the following evidence, which was either undisputed or the finally accepted evidence. Acting on information, the investigating officer, Detective Sergeant Jordaan, arrested G appellant, then 19 years old, at his parents' home at Elsies River at 00:30 on 11 November 1993. He told appellant he was arresting him on a charge of murder and that anything he wished to say might be used in evidence against him in court. He also told him that he could remain silent and had no need to speak at all. There was no response from appellant. I should add that they communicated at all times in Afrikaans. Appellant was then placed in a police vehicle. Jordaan said he had been shown appellant's home by one Stevens who had already been arrested in H connection with the same case. Stevens had been brought to the scene in another vehicle but was kept out of sight and, according to Jordaan, appellant could not have seen Stevens that night. Jordaan then drove to other areas to make arrests unconnected with the present matter. He eventually had appellant admitted to the police cells at I Kraaifontein at 1:55 the same night, nothing relevant having passed between them since the arrest. Other suspects in the case were detained at other police stations.

The next contact that Jordaan had with appellant was on 12 November at 8:55 when he went to take him from the cells to interview him. Before J

Howie J A

A they had left the cells on the way to the patrol van appellant made a spontaneous comment to Jordaan. The latter put it thus:

'. . . toe ek hom uithaal by Kraaifontein-selle het hy spontaan gesê dat niemand ken hom in Belhar nie en dat hy weet sy vriende het sy "game" weggegee en dat hy...