S v Mafuya and Others (1)

• Jurisdiction: South Africa
• Judge: Stegmann J
• Judgment Date: 14 February 1992
• Citation: 1992 (2) SACR 370 (W)
• Hearing Date: 13 February 1992
• Counsel: Miss E Kilian for the State H A Knopp for accused No 1 at the request of the Court Miss G Y Sidwell for accused No 2 ant the request of the Court Miss R M Robinson for accused No 3 at the request of the Court
• Court: Witwatersrand Local Division

Stegmann J:

A trial within a trial has been held to determine the admissibility in evidence of a document provisionally marked exh G. Miss J Kilian, who is

Stegmann J

A prosecuting the matter on behalf of the State, produced exh G with a portion of it (evidently that portion containing the substance of an alleged confession) covered over, so that the Court could determine the question of admissibility without regard to the contents of the alleged confession. From those parts that have remained exposed it is apparent that exh G is a statement made by Patrick Mkosana Langa (a person whose name corresponds with that of accused No 2); that it was made to Mr N H B Acker, a magistrate at Meyerton; and that it bears the certificate of one J N Malende that he translated the contents of the document, and of such questions as were put by the magistrate, truly, faithfully and to the best of his ability from the Zulu language used by the deponent to the Afrikaans language used by the magistrate, and vice versa. It also appears from exh G that the statement it contains was made by the deponent freely and voluntarily in his sound and sober senses and without having been C unduly influenced thereto.

In these circumstances it was common cause between Miss Kilian and Miss Sidwell, who appears on behalf of accused No 2, that exh G meets the requirements of s 217(1)(b) of the Criminal Procedure Act 51 of 1977 for admissibility in evidence on its mere production, unless accused No 2 should discharge the onus of proving that it was not made freely and D voluntarily by him in his sound and sober senses and without having been unduly influenced thereto. Miss Sidwell informed the Court that accused No 2 would seek to discharge the onus in question.

In the exercise of my discretion, and having regard to the experience of the assessors, I determined that they should remain present during the trial within a trial, and I have discussed the evidence and the legal issues with them and they have assisted me in coming to a decision in the E matter.

For the purposes of the trial within a trial, and to rebut the presumption in s 217(1)(b)(ii), Miss Sidwell led the evidence of accused No 2, and then closed his case.

In rebuttal of accused No 2's case Miss Kilian thereafter led the evidence of the investigating officer, Warrant Officer J C Smit; and of F Warrant Officer B Denner; Sergeant M Motloutse (also referred to as Moses and Moss); Reservist Constable D Dikgobo (also referred to as Kompass); Detective Constable Samuel Mogalanyane; the magistrate, Mr N H Acker; and the interpreter, Mr J N Malende. There were a number of sharp conflicts of fact. I shall recount the disputes in the context of the facts which were common cause or undisputed.

G The investigating officer in the matter was Warrant Officer J C Smit of the Murder and Robbery Unit at Flora Gardens, Vanderbijlpark. In 1977 Warrant Officer Smit had been involved in a motor-car collision and had suffered fractures of the neck, back, left forearm and right wrist. He has been disabled and in pain ever since. He continued his work in the police, but under circumstances of increasing disability owing to a steady calcification at the injured sites. He was finally declared medically H unfit and had to leave the police force in June 1991. In February and March 1990 he was still active, but in circumstances of some disability. On operations he was always accompanied by other members of the force. On doctors' orders he was not taking part in any sport, and he had to look after himself carefully and could make no strenuous use of his own limbs on police duties.

I At some unspecified time before 14 March 1990 accused No 1 had been arrested, and the police had obtained a statement from him. It led to Warrant Officer Smit's deciding to arrest accused No 2, Seun Jantjie, John Kwamande and Vincent Lebowa. During the night of 13-14 March 1990, Warrant Officer Smit put together a detachment that was to effect these arrests and they went out in three police vehicles. The detachment included Warrant Officer Smit, Warrant Officer Denner, Sergeant Motloutse, J Sergeant Sigwapa and a number

Stegmann J

A of other members of the police force who were not identified, save that one of them was referred to both as Shorty and Hendrik. Accused No 1 went with them for the purpose of identifying the suspects who were to be arrested.

At 03:45 on 14 March 1990 they came to the house at 66a Zone 7, Meadowlands, which is the address of accused No 2. The police left their vehicles in the street and surrounded the house. They were all armed, some B of them with handguns drawn and ready. Smit and Denner went to the front door with accused No 1 between them, to identify accused No 2. They knocked at the door. Accused No 2, aroused from sleep, opened the door. Accused No 1 pointed to accused No 2 and said: 'This is the one.' Smit thereafter directed one of the members of the police party to return to the car and to take accused No 1 with him.

C At this stage accused No 2 was dressed only in his trousers. He had no shoes or shirt on. The first dispute in the matter is as to what happened next.

Accused No 2 testified that Smit had slapped him on the right side of his face. Accused No 2 said that, although it was not a hard blow, it was sufficient to cause him to fall to the floor but he was not injured. Accused No 2 testified that one of the policemen, a black policeman whom D he could not identify, had asked him about some unspecified goods without explaining what he was talking about, and that accused No 2 had replied that he knew nothing about them. Thereupon accused No 2 said that he was taken away by the police. He gathered that he was being arrested but he was at that stage not informed what it was for.

The police version of this event was quite different, the relevant evidence being given by Warrant Officer Smit, Warrant Officer Denner and E Sergeant Motloutse. All three witnesses denied that Warrant Officer Smit had slapped accused No 2 as alleged, and Smit testified further that ever since his serious injuries in 1977 he had not been in a physical condition to strike such a blow. To have attempted it would evidently have caused him pain and the risk of damage to his own disabling injuries. With Sergeant Motloutse interpreting, Smit was said to have warned accused No 2 F according to the Judges' Rules; to have informed accused No 2 that he would have to accompany the police; to have ordered him to go and dress himself; and to have instructed Sergeant Motloutse and Sergeant Sigwapa to accompany him to his room while he did so.

It emerged later that what was meant by the so-called warning according to the Judges' Rules was that Smit had identified himself to accused No 2 as a warrant officer in the South African Police stationed at the Murder G and Robbery Unit, Vanderbijlpark; that he had told accused No 2 that he had information according to which accused No 2 had been pointed out as one who had taken part in the robbery on the toll road south of Grasmere toll gate on Thursday, 25 January 1990, when two drivers of a truck had been robbed of their truck; and also as the person who had shot and killed Titus Masiloane on the night of Saturday 27/Sunday 28 January 1990; and H that accused No 2 would accordingly have to accompany the police. Smit admitted candidly that he had not informed accused No 2 that accused No 2 was not obliged to say anything in answer to the allegations made against him. Smit did not claim to have informed accused No 2 that it was a serious matter or, that if he chose to say anything, he should be careful.

Sergeant Motloutse, however, went rather further than Warrant Officer I Smit. Sergeant Motloutse claimed to remember that Warrant Officer Smit had indeed warned accused No 2 to be careful. Sergeant Motloutse did not claim that Warrant Officer Smit had informed...