S v Mahlala and Others

• Jurisdiction: South Africa
• Judge: Margo AJ
• Judgment Date: 06 March 1967
• Citation: 1967 (2) SA 401 (W)
• Hearing Date: 06 March 1967
• Court: Witwatersrand Local Division

Margo, A.J.:

The five accused are charged with the murder of a European storekeeper. The trial has been proceeding before a Court consisting of two assessors and myself.

B On Monday, 20th February, 1967, which was the third day of the trial, Mr. Viljoen, on behalf of the State, gave notice that he intended to lead evidence of certain confessions by Nos. 1, 2, 4 and 5 accused. The assessors thereupon withdrew from the proceedings, pending the determination of the admissibility of this evidence.

Although the question of admissibility must be resolved separately in regard to each accused, the 'trials within a trial' have been C consolidated because of the considerations of convenience referred to in S v Letsoko, 1964 (4) SA 768 (AD) at p. 774A. Where, as in this case, each of several accused in a joint trial alleges duress and/or undue influence in relation to a confession sought to be proved against him, a consolidated hearing has obvious advantages in providing the D Court with a conspectus of all relevant aspects of the police investigation and the reactions of all the accused concerned.

Mr. Viljoen, in presenting the State's case on the confessions, led the evidence of three justices of the peace, all of whom are police officers. These witnesses were Captain Coetzee, who took the respective confessions of Nos. 1 and 2 accused, Lieutenant E le Grange, who took No. 4's confession, and Colonel Kruger, who took No. 5's confession. Mr. Viljoen then led the evidence of three interpreters on the circumstances in which the confessions of Nos. 1, 2 and 4 accused were taken. No. 5 accused did not need an interpreter. This evidence was followed by that of Lieutenant van der Linde, the police officer in charge of the F investigations, who testified that none of the accused had been subjected to any assault, threat, promise, inducement or influence, and that each had freely and voluntarily decided to make a confession. In the crossexamination of Lieutenant van der Linde, the defence made allegations of assaults, ill-treatment and threats by the police.

Mr. Viljoen concluded by calling Dr. Pieterse in rebuttal of G allegations made on behalf of No. 1 accused, that he had been denied proper medical treatment for gunshot wounds sustained in connection with his arrest. It was then pointed out that, in the cross-examination of the State witnesses, no attempt had been made by the defence to identify all the various policemen or H detectives who were alleged to have assaulted, ill-treated or threatened the respective accused. Counsel for the accused then agreed that they should lead all their evidence, and that the State should then have an opportunity of calling evidence in rebuttal. After the defence had called all its witnesses, including Nos. 1, 2, 4 and 5 accused, and at Mr. Viljoen's request, all the police witnesses then available were brought into Court, and each of the accused was recalled in turn to identify those whom he alleged had assaulted or ill-treated or threatened him. Thereafter the State called as a witness every member of the police who, in addition to Lieutenant van der

Margo AJ

Linde, had been associated with the arrest or investigation of the case, save only for one, a Bantu detective constable, Cleophas, who was not available. The State also called a medical officer, Dr. B. A. Hellman. A All these witnesses testified directly or indirectly in rebuttal of the alleged assaults, ill-treatment and threats. Lieutenant van der Linde and the three justices of the peace were also recalled in rebuttal. In all, 25 witnesses testified on the issue of the confessions.

The statements described as confessions have not been adduced in evidence and I have not seen them. This is not a case in which the State has found it necessary to refer to the contents of any of these B statements on the issue of admissibility. Cf. S v Lebone, 1965 (2) SA 837 (AD). I am left to assume, for the purposes of deciding admissibility, that each of the statements in law amounts to a confession.

It is trite that the onus of proof rests upon the State in each case to C prove the requirements of admissibility laid down by the first proviso to sub-sec. (1) of sec. 244 of the Criminal Procedure Act, viz. that the confession was made by the accused freely and voluntarily, in his sound and sober senses, and without having been unduly influenced thereto. S v W, 1963 (3) SA 516 (AD) at p. 521A; S v Loate, 1962 (1) SA 312 (AD) at p. 316B. D

Mr. Dennett, on behalf of accused No. 2, cited two English decisions in support of the proposition that the onus resting on the prosecution in this class of case is heavier than that necessary for proof of guilt. This submission is contrary to principle; and in any event there is conclusive authority that the onus on the prosecution in establishing the requirements of sec. 244 is...