S v Letsoko and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Beyers JA, Holmes JA and Williamson JA
• Judgment Date: 24 September 1964
• Citation: 1964 (4) SA 768 (A)

Holmes, J.A.:

The five appellants were charged before DE VOS, J., H sitting in the Witwatersrand Local Division, with a contravention of sec. 21 (1) of the General Law Amendment Act, 76 of 1962 (sabotage). The first, second, and fourth appellants were found guilty on the main count. The gist of it was that they and others conspired on 8th and 9th April, 1963, near the Orlando Location in regard to the commission of various unlawful acts whereby the safety of the public would be endangered, the supply of light would be put out of action, and property would be damaged. The envisaged acts related to the possession of explosives, fire-arms, or weapons, the killing of members of the

Holmes JA

police force and of the White population, the damaging or destroying of the Orlando power station, and the setting on fire and destroying of certain buildings in Johannesburg, including those of M. E. Stores (Pty.) Ltd., Safric's (Pty.) Ltd., the Gray's, and Shell (S.A.) (Pty.) Ltd.

A The third appellant was found guilty on the first alternative count, which particularised the actual commission of the unlawful acts of damaging property by breaking the glass display window of M. E. Stores (Pty.) Ltd., entering the building, and setting it on fire.

The fifth appellant was found guilty on the second alternative count. It alleged that he aided, advised, encouraged, or procured certain persons B to commit unlawful acts whereby damage to property would be caused, to wit the breaking of the glass display window of Safrics (Pty.) Ltd., the setting fire to the building, and also the setting on fire of the building of Shell (S.A.) (Pty.) Ltd., and motor vehicles nearby.

At the trial, the State case consisted of evidence in relation to C meetings near Orlando on 8th and 9th April, 1963, evidence as to events in Johannesburg on the night of 9th April, and confessions by all the appellants save the third. There is some question whether the fifth appellant's statement amounts to a confession, and I shall deal with that later. No evidence was given or called by any of the appellants D (save in regard to the admissibility of the confessions). Nor did any of them make an unsworn statement at the end of the State case. They were represented by counsel who, according to the trial Judge, left no stone unturned on their behalf.

The trial Court convicted the first, second, fourth, and fifth appellants on their confessions as confirmed by proved facts. In the case of the third appellant, who did not confess, the Court held that E there was sufficient circumstantial evidence, to which I shall refer more fully later, to warrant a conviction.

In this Court Mr. Chaskalson, for the appellants, arrayed a phalanx of points against the convictions. He attacked first the trial Court's F admission of the four confessions (i.e. by the first, second, fourth and fifth appellants). It is of course axiomatic, and no authority is needed therefor, that a confession is not admissible unless the State proves beyond reasonable doubt that the accused made it freely and voluntarily, in his sound and sober senses, and without having been unduly influenced thereto; see sec. 244 (1) of the Code.

G With regard to the fifth appellant, it may be that his statement is not a confession, in which event sec. 244 (1) would not apply. But the point is of no consequence in regard to its admissibility because, assuming that it is not a confession, the question whether it was made freely and voluntarily was raised at the trial, and the prosecution was H thereupon obliged by the common law to prove that it had been so made; see R v Burton, 1946 AD 773 at pp. 779 to 781. It is therefore not necessary in this case, in deciding its admissibility, to pronounce upon its status. As a matter of convenience I shall refer to it as a confession, as did counsel.

In regard to the admissibility of the confessions, the trial Court held a 'trial within a trial'; see R v Dunga, 1934 AD 221 at p. 226. Each confession was dealt with separately save that, by consent, the

Holmes JA

State first called the magistrate and interpreters in regard to all of them. Thereafter, in each case, the relevant appellant testified to his ill-treatment and, in each case, the State called rebutting evidence. In all, 13 police officers were called. It would have been far more A convenient and practical in this case to consolidate these 'trials within the trial'. However, nothing turns on the procedure adopted. In the end the trial Court held that the confessions were not induced by assaults and threats, and were made freely and voluntarily.

During the first of this series of trials within the trial, counsel for B the defence intimated to the Court that...