S v Mathebula and Another

• Jurisdiction: South Africa
• Judge: Claassen J
• Judgment Date: 08 August 1996
• Citation: 1997 (1) SACR 10 (W)
• Hearing Date: 08 August 1996
• Counsel: J McKelvey for the State G E Kerr-Phillips for the defence
• Court: Witwatersrand Local Division

Claassen J:

In this matter two accused are being charged with having committed various H offences, to wit murder, robbery with aggravating circumstances, attempted murder and two contraventions of the Arms and Ammunitions Act. Accused No 1 is a 19 year old male residing at 593 Mavimbela Section, Katlehong. Accused No 2 is a 27 year old male residing at 115 Zuma, Katlehong. Both pleaded not guilty to all the I charges. On behalf of accused No 1 Mr Kerr-Phillips explained that an alibi defence will be raised. No 2 gave no plea explanation.

During the course of the trial it became necessary to conduct two trials within a trial. In the first I allowed a statement in evidence made by accused No 2. In the second I disallowed the photographs taken and the notes made during a pointing out by accused No 1. Shortly thereafter the State closed its case whereupon Mr J

Claassen J

Kerr-Phillips applied for the discharge of accused No 1 in terms of s 174 of the A Criminal Procedure Act 51 of 1977.

This judgment deals in the main with two questions:

1.

My reasons for disallowing in evidence the pointing out by accused No 1; and

2.

My judgment in regard to the application for the discharge of accused No 1 in terms of s 174. B

A. THE POINTING OUT BY ACCUSED NO 1

Mr Kerr-Phillips raised two objections to the admissibility of the pointing out by accused No 1: C

(i)

It was alleged that accused No 1 was assaulted and unduly influenced in making the pointing out, thus rendering it not freely and voluntarily made.

(ii)

The evidence derived from the pointing out was unconstitutionally obtained in that accused No 1's fundamental rights in terms of s 25 of the interim Constitution, Act 200 of 1993, were infringed. D

1. Undue influence

In short, accused No 1's complaint in this regard boiled down to the following: when he was arrested on the morning of 11 November 1994 he was pulled to the awaiting police motor vehicle and in the process of being placed into it an unidentified E policeman pressed the butt of a firearm against his chest causing him difficulty in breathing. As a result of actions of the police during his arrest, he became confused, which confusion lasted up to and including the time the pointing out was made. It was further denied that the police explained why accused No 1 was arrested or that his rights were explained to him either at the arrest or at all. The investigating officer, F Sergeant Brits, and his interpreter, Sergeant Nkomo, vehemently denied all these allegations.

In evaluating the evidence of the State witnesses and the accused, the merits of the former and demerits of the latter are abundantly clear. To say the least, accused No 1 was a pathetic witness in the trial within the trial. The record will show that the was G vague and evasive; he evaded simple questions and was vague about what he could and could not remember; he remembered that which suited him and conveniently forgot that which may have incriminated him; he could remember great detail concerning the police's alleged unlawful behaviour but could not remember any detail concerning obvious lawful behaviour on their part; he was able to remember in great H detail what did not happen but was vague as to what did happen; he elaborated and exaggerated his evidence of the alleged undue influence at the hands of the police; he contradicted himself in material respects. I can go on and on but it seems unnecessary I to do so. When it was pointed out to Mr Kerr-Phillips in argument that accused No 1 was an obvous and unmitigated liar he did not seek to counter the correctness of this observation. In his written heads of argument he virtually admitted that the State had discharged its onus in proving the admissibility of the pointing out insofar as the provisions of the Criminal Procedure Act are concerned and he limited himself to the constitutional issues. I will not therefore detain myself any further with J

Claassen J

regard to the first issue save to say that I accept the evidence of the State witnesses A vis-á-vis the circumstances surrounding the arrest of accused No 1 and I find that there was no undue influence which could otherwise have caused me to disallow the evidence of the pointing out.

2. The constitutionality of the pointing out B

Mr Kerr-Phillips raised two objections in this regard. At the time of the pointing out accused No 1 was firstly not informed of his right to legal representation and secondly not informed that he was not obliged to make any admissions or confessions. Although I am not aware of the contents and import of the photographs taken and information C given by accused No 1 at the pointing out, it was common cause in argument that it amounted to a confession to the crimes mentioned in the indictment. In support of his argument Mr Kerr-Phillips referred me to the relevant subsections in s 25 of the interim Constitution, ie s 25(1)(c), 25(2)(c) and 25(3)(c) to (e). For ease of reference I shall quote these sections: D

'25.(1) Every person who is detained, including every sentenced prisoner, shall have the right -

...

(c)

to consult with a legal practitioner of his or her choice, to be informed of this right promptly and, where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the State; E

...

(2) Every person arrested for the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right -

... F

(c)

not to be compelled to make a confession or admission which could be used in evidence against him or her;

...

(3) Every accused person shall have the right to a fair trial, which shall include the right -

.. G

(c)

to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial;

___________

(d)

to adduce and challenge evidence, and not to be a compellable witness against himself or herself; H

___________

(e)

to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at State expense, and to be informed of these rights.'

It is common cause that Captain Prinsloo from the Brixton Murder and Robbery Unit I was asked to come over to the East Rand Murder and Robbery Unit to conduct the proposed pointing out by accused No 1. It is further common cause that he used a standard form handed in as exh I. He conducted the preliminary questioning of accused No 1 strictly in accordance with the contents of exh I. As such it is common cause that he did not immediately prior to the actual pointing out apprise accused No J

Claassen J

1 of his constitutional right to legal representation or his right not to be obliged to make A any admission or confession.

Mr Kerr-Phillips submitted that the above failures rendered the pointing out unconstitutional and that it should therefore be disallowed in evidence. In response hereto Mr McKelvey, for the State, referred me to the facts of this case and submitted that the aforesaid failures are not fatal in that approximately one and a quarter hours B prior to Captain Prinsloo commencing his preliminary questioning of accused No 1, in terms of exh I, the accused was duly informed of his right to legal representation as well as the right not to be compelled to make any admission or confession. This warning was conducted by the investigating officer, Sergeant Brits, at approximately 10:16 on 11 November 1994 when he took a warning statement ('waarskuwingsverklaring') from accused No 1. This latter document was handed in as C exh M. Brits testified that he also closely followed the prescribed warnings as they appeared on the standard form, exh M. According to him these warnings were read out and interpretedinto Zulu by Nkomo and the accused acknowledged his understanding thereof. I quote verbatim from exh M: D

'Die verdagte word soos volg met betrekking tot die bepalings van art 25 van die Grondwet ingelig:

1.

Die rede vir sy arrestasie meegedeel het (sic).

2.

Hom verwittig het dat hy die reg het om te swyg en hom gewaarsku het dat enigiets wat hy sê in 'n geregshof teen hom gebruik mag word. E

3.

Dat hy die reg het om met 'n regsverteenwoordiger van sy keuse te konsulteer. Indien hy nie 'n regsverteenwoordiger kan bekostig nie kan hy aansoek doen vir regsverteenwoordiging verskaf deur die Staat.

4.

U is nie verplig om 'n bekentenis of 'n erkenning te maak wat later teen u gebruik kan word nie. F

VRAAG: Verstaan u dit?

ANTWOORD: Ja, ek verstaan.'

It is common cause that accused No 1 then signed the document. A right-hand G thumbprint also appears thereon and although accused No 1 could not say whether it was his thumbprint, I accept the evidence of Brits and Nkomo that it is indeed accused No 1's right-hand thumbprint. Exhibit M then continues with a further question:

'Ek gaan sekere vrae aan u stel en deur die beantwoording daarvan kan u sekere punte verduidelik waardeur u moontlik u onskuld kan bewys.

VRAAG: Wat is u keuse: wil u 'n verklaring maak, slegs op vrae antwoord of u swygreg uitoefen? H

ANTWOORD: Ek sal die toneel wys en 'n verklaring maak.'

This portion of exh M was again signed by accused No 1 and a right-hand thumbprint also appears on the document at that point. Again I accept this as the signature and right-hand thumbprint of accused No 1. (I shall return to a detailed analysis of Brits' I evidence and a proper interpretation of exh M but for present purposes I assume the correctness of this evidence.)

In the light of this evidence Mr McKelvey submitted that:

(i)

an accused need not be warned of his constitutional rights prior to every pre-trial procedure; and J

Claassen J

(ii)

that the due warning which...