S v Lwane

• Jurisdiction: South Africa
• Judge: van Blerk JA, Ogilvie Thompson JA and Holmes JA
• Judgment Date: 24 March 1966
• Hearing Date: 18 March 1966
• Court: Appellate Division

F Ogilvie Thompson, J.A.:

On 9th December, 1965, appellant was, together with three others, charged before HENNING, J., sitting with assessors in the Natal Southern District Circuit Local Division, with having murdered one David Xulu near Ceza, in the district of Mahlabatini, on 18th January, 1965. The indictment contained an alternative charge of robbery with aggravating circumstances arising from the same facts as the murder G charge, and also a further, unrelated, charge of robbery with aggravating circumstances committed on 19th January, 1965. This last-mentioned charge (count 2 of the indictment) was, at the commencement of the hearing in the Court below, adjourned to a date to be determined by the Attorney-General. At the trial, appellant was H accused No. 3, while the first accused was one Eric Hambry. The fourth accused (Mapintshana Nala) was discharged during the course of the prosecution's case, and the second accused (Boy Shabalala) was found not guilty at the conclusion of the State's evidence. Appellant and Eric Hambry (No. 1 accused) were both convicted of murder and, no extenuating circumstances being found, were sentenced to death.

The evidence led at the trial disclosed that on 21st January, 1965 - that is to say, three days after the murder of David Xulu - Eric Hambry (No. 1 accused) had shot appellant in the stomach, causing serious injury

Ogilvie Thompson JA

which necessitated appellant's being taken to the Eshowe Hospital. Upon being discharged from hospital on 1st February, 1965, appellant - who was by now detained in connection with the Xulu murder charge - laid A a complaint of attempted murder against Hambry arising from the shooting on 21st January, 1965. In furtherance of that complaint, appellant on 1st February, 1965, made a statement to Detective Sergeant Viljoen. On 22nd September, 1965, a preparatory examination against Hambry in respect of the shooting episode of 21st January, 1965, was commenced at Mahlabatini before the then assistant magistrate of that B town, Mr. P. J. van der Merwe, and appellant was called as a witness.

Towards the end of the State's case at the trial before HENNING, J., the prosecutor tendered, as evidence against appellant, a copy of his deposition as given at the above-mentioned preparatory examination held C against Hambry on 22nd September, 1965. The admissibility of the deposition being challenged on the ground that it contained a confession, the learned trial Judge sat alone to hear the evidence, in relation to that issue, of the investigating officer (Detective Sergeant Viljoen). the interpreter (James Sindane), the magistrate (Mr. van der Merwe). and of appellant himself. After reserving judgment over a week-end. HENNING, J., ruled in favour of the State, at the same time D intimating that he would later file his reasons for that conclusion. The defence having formally admitted that the magistrate had on 22nd September, 1965, correctly recorded appellant's testimony, appellant's afore-mentioned deposition was thereupon admitted in evidence and the State closed its case. Thereafter both Hambry and appellant gave E evidence in their own defence.

In recording the trial Court's reasons for finding appellant guilty of murder, the learned Judge placed considerable reliance upon the terms of appellant's above-mentioned deposition. After sentence of death had been passed, HENNING, J., intimating that he would in any event have mero F motu raised the matter, acceded to a request by appellant's counsel for the reservation, in terms of sec. 366 (1) of the Code, of a question of law for the consideration of this Court. The question so reserved was expressed as follows:

'Whether the deposition of accused No. 3 at the preparatory examination G against accused No. 1 was correctly admitted in this Court as evidence against accused No. 3, having regard to the provisions of secs. 234 and 244 of the Act, and to the facts that accused No. 3 was not warned, before he commenced to make a statement to the police in connection with the matter, that he was not obliged to make any statement at all which H might incriminate him, and the absence of any warning at the preparatory examination referred to that he was not obliged to answer any questions put to him if the answers tended to incriminate him.'

As appears from his subsequently filed reasons for admitting the afore-mentioned deposition in evidence at the trial. HENNING, J., found the following relevant facts - almost all of which were, indeed, virtually common cause - duly established, viz:

(a)

Both appellant's statement to Viljoen on 1st February, 1965, and his evidence before the magistrate on 22nd September, 1965.

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were entirely voluntary, no inducement or compulsion whatever having operated upon appellant's mind on either occasion.

(b)

For the greater part of his evidence before the magistrate, appellant told his own story in response to introductory A questions from the prosecutor, who had before him the statement given by appellant to Viljoen on 1st February, 1965.

(c)

Although appellant throughout believed that he was obliged to answer all such questions as were put to him at the preparatory examination, even though such answers might tend to incriminate him, he was nevertheless - in the words of the learned Judge B - 'quite prepared to make a clean breast of everything'.

(d)

During his testimony at the preparatory examination against Hambry the appellant was not at any stage informed by the magistrate that he was entitled to refuse to reply to any question the answer to which might incriminate him.

(e)

C While so testifying, appellant did not at any time claim privilege or decline to answer any question on the ground that his answer might tend to incriminate him.

(f)

Appellant had, when giving evidence in the interlocutory proceedings at the trial, reaffirmed the truth of the content of his earlier deposition before the magistrate.

D While HENNING, J., made no specific findings to that effect, a fair reading of the evidence given during the interlocutory proceedings by Detective Sergeant Viljoen and by appellant himself, and of the learned Judge's afore-mentioned reasons, is that:

(i)

Although warned by Viljoen on 1st February, 1965, in relation to E the charges of murder and robbery against himself, appellant received no specific independent warning from Viljoen that, in relation to his complaint against Hambry, he was not obliged to answer any questions which might tend to incriminate him;

(ii)

that, as a result of Viljoen's warning, appellant had some appreciation that anything he said might be used against him, F but that he nevertheless voluntarily elected to make the statement to Viljoen; and

(iii)

that appellant's subsequent evidence before the magistrate was in substantial conformity with that statement.

In my opinion, the enquiry before us should be approached upon these three further premises.

G It is well established that - subject always to contrary statutory provision - evidence given on a previous occasion will ordinarily be admissible against the deponent in subsequent proceedings (Phipson, 10th ed., para. 811; Halsbury, 3rd ed., vol. 10, para. 874). In support of the submission that appellant's deposition was wrongly admitted in the H Court below, counsel for appellant sought - with the leave of this Court - to invoke the provisions of secs. 254 and 255 of the Code. Neither of those sections has, however, any application to the facts of this case. For, while appellant may well have been Hambry's accomplice in relation to the robbery charges, he was, quoad the shooting on 21st January, 1965, certainly not an accomplice of Hambry

'in the commission of the offence alleged in the charge or the subject of the preparatory examination'

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as those words are used in sec. 254 (1) of the Code. When deposing before the magistrate on 22nd September, 1965, appellant was giving evidence on behalf of the prosecution against Hambry in respect of the A offence of assault (by shooting) on 21st January, 1965. He...