S v Mavela

• Jurisdiction: South Africa
• Citation: 1990 (1) SACR 582 (A)

S v Mavela
1990 (1) SACR 582 (A)

1990 (1) SACR p582

Citation	1990 (1) SACR 582 (A)
Court	Appellate Division
Judge	Eksteen JA
Heard	May 7, 1990
Judgment	May 30, 1990
Counsel	W A King for the appellant at the request of the Court; T N Price for the State

Flynote : Sleutelwoorde

Evidence — Confession — Admissibility of — Confession made to a commissioned officer of SA Police — Criminal Procedure Act 51 of 1977 s 217 — Commissioned officer of the SA Police ex officio a justice of the peace in terms of s 4 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 read with First Schedule thereto — The right I conferred on such an officer by Criminal Procedure Act to take confession cannot be denied him by Court, even where he may be attached to unit investigating the offence to which confession relates — Primary test remains whether confession was made freely and voluntarily by accused whilst in his sound and sober senses and without having been unduly influenced thereto — Fact that an officer of the unit investigating offence, although not involved in the investigation of the offence, had J checked the police docket

1990 (1) SACR p583

A from time to time to see that investigations proceeding properly not constituting an irregularity justifying confession being held inadmissible.

Evidence — Privilege — Police docket containing witnesses' statements, notes by investigating officer and instructions and advice by a supervisory officer — Such prima facie privileged — State can either expressly or by conduct waive such privilege — For a disclosure of contents of privileged document to constitute a waiver of the privilege, B the disclosure must be such as to warrant inference that prosecutor no longer sought to rely on its secrecy — Prosecutor providing defence counsel, in order to assist defence counsel in cross-examination of police officer, with five dates reflected in docket as being occasions when docket was inspected by such police officer — Prosecutor thereafter C reluctantly agreeing, on insistence of defence counsel, that police officer himself check dates in the docket — Prosecutor's aforesaid concessions not amounting to a waiver of privilege in respect of docket.

Headnote : Kopnota

In terms of s 217 of the Criminal Procedure Act 51 of 1977 the criteria for the admissibility of a confession are that it must be proved to have been freely and voluntarily made, by a person in his sound and sober D senses, and without having been unduly influenced thereto. The section then goes on to provide that confessions made to a peace officer, other than a magistrate or a justice of the peace, shall in certain circumstances be inadmissible in evidence. In terms of s 4 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, read with the First Schedule to that Act, a commissioned officer of the South E African Police is ex officio a justice of the peace, and therefore entitled to take a confession. This right, conferred on such an officer by the Criminal Procedure Act, cannot be denied him by the Court, even where he may happen to be attached to the unit investigating the offence to which the confession relates. It has previously been held, in S v Mbatha F en Andere1987 (2) SA 272 (A), that it was not in itself an irregularity for the head of the investigation unit which performed its duties under his personal supervision to take a confession and that the primary test was still to determine whether the confession had been freely and voluntarily made by the accused whilst in his sound and sober senses and without having been unduly influenced thereto.

The Court accordingly held that the mere fact that an officer in the unit which investigated the offence to which a confession related, G although such officer was not himself involved in the investigation but was required from time to time as an officer to check the dockets of various investigations to see that they were proceeding properly and to offer advice where necessary, had taken the confession did not amount to an irregularity justifying such confession being held to be inadmissible, H even though such officer had from time to time checked the docket in the investigation as he was required to do.

The police docket in a criminal trial, containing as it does the statements of witnesses the prosecution intends to call, notes made by the investigating officer as to the nature and progress of his investigation, and the instructions and advice relating to the investigation inscribed I from time to time by some supervisory officer would be prima facie privileged. It would seem to be akin to the State's brief to the Attorney-General or the prosecutor that presents the case to the Court, and it is a well-recognised principle that 'as you have no right to see your adversary's brief, you have no right to see that which comes into existence merely as the materials for the brief'. A party can, of course, either expressly or by his conduct, waive the privilege, J in which case the opposite party would be entitled to see the

1990 (1) SACR p584

A document. Where disclosure of the contents of the docket is relied on as constituting such waiver, the disclosure must be of such a nature as to warrant the inference that the prosecutor no longer seeks to rely on its secrecy. This inference is an objective one, and the test is one of fairness in the circumstances of the case.

The Court, applying the principles set out above, held that the State B had not waived the privilege it had in respect of the police docket where the State prosecutor in the trial had provided defence counsel with five dates reflected in the docket as being the dates upon which the witness (an officer in the SA Police), then being cross-examined by defence counsel, had inspected the docket, such dates having been provided in C order to assist defence counsel in such cross-examination and not to advance the State case, and where the State prosecutor had thereafter, on the insistence of defence counsel, reluctantly conceded to allowing the same witness to look at the docket to confirm the aforesaid dates, the concession also having been designed to assist the defence case and not the case for the State. The Court held that the submission that these D concessions by counsel for the State amounted to a waiver of the privilege in the docket was quite untenable.

Case Information

Appeal from a conviction and sentence in the Eastern Cape Division (Van Reenen AJ). The facts appear from the judgment of Eksteen JA.

W A King for the appellant, at the request of the Court, referred to E the following authorities: As to the caution with which evidence of identification is to be treated, see R v Masemang1950 (2) SA 488 (A) at 493; R v Shekelele1953 (1) SA 636 (T) at 638G. As to whether the appellant's confession was made freely and voluntarily, see R v Manjonjo 1963 (4) SA 708 (FC) at 713A-C; S v Mujuru1976 (2) SA 900 (RA) at 902; R v Duetsimi1950 (3) SA 674 (A) at 678-9. As to the effect of the F confession being taken by a police officer of the investigating unit, see Schmidt Bewysreg 3rd ed at 511; Hiemstra Suid-Afrikaanse Strafproses 4th ed at 489; R v Barlin1926 AD 459 at 465-6; S v Mbele1981 (2) SA 738 (A) at 743C-G; S v Mpetha and Others1983 (1) SA 576 (C); S v Khoza en Andere1984 (1) SA 57 (A) at 59; S v Mbatha en Andere1987 (2) SA 272 (A). As to the question whether the State could claim privilege in respect of the G police docket, see S v Naicker1965 (2) SA 919 (N) at 934G; Van der Linde v Calitz1967 (2) SA 239 (A); Schmidt (op cit at 520 et seq, 540-2); Robinson v State of South Australia (2) 1937 AC 704; Ex parte Minister van Justisie: In re S v Wagner1965 (4) SA 507 (A); S v Fourie1972 (1) SA 341 (T); S v Davies and Another 1965 (3) SA 52 (A) at 59A; S v Green1962 (3) SA 899 (D) at 901H-902C; Schmidt (op cit at 544). As to the contention H that the trial Court had unfairly interfered with the cross-examination, see Lansdown and Campbell South African Criminal Law and Procedure vol 5 1st ed at 790. As to the contention that the trial Court had unfairly disallowed defence counsel sight of all the contents of a police officer's pocket book, see S v Nhlapo 1988 (3) SA 481 (A); Van der Linde v Calitz (supra); Ex parte Minister van Justisie: In re S v Wagner (supra at 514C-D); Schmidt (op cit at 538); Wigmore on Evidence vol 8 (McNaughten I Revision) para 2327; Robinson v State of South Australia (supra); Hoffmann and Zeffertt South African Law of Evidence 3rd ed at 207. As to when the Court will, on appeal, interfere with the sentence imposed by the trial Court, see S v Fazzie 1968 (4) SA 3 (A). As to the various factors to be taken into account on sentence, see S v Lehnberg1975 (4) SA 553 (A); S v Khumalo1968 (4) SA 284 (T); S v Mohlobane1969 (1) SA 561 (A); S v Theron1986 (1) SA 884 (A); S v Becker1968 (1) SA 18 (C); S v Mtshali J 1967(2)SA 509 (N).

1990 (1) SACR p585

A T N Price for the State referred to the following authorities: As to the evaluation of the evidence relating to the pointing out and the confession, see Miller v Minister of Pensions[1947] 2 All ER 372. As to the finding that the application for a special entry was frivolous and absurd, see S v Alexander (1)1965 (2) SA 796 (A); Hiemstra Suid-Afrikaanse Strafproses 4th ed at 772. Generally on the evidence, see S v Kruger1970 (2) SA 233 (N); S v Mthethwa1972 (3) SA 766 (A). As B to the admissibility of the pointing out and the confession, see S v Mbele1981 (2) SA 738 (A); S v Mbatha en Andere1987 (2) SA 272 (A) at 279F-H; S v Khoza en Andere1984 (1) SA 57 (A) at 59E-60A; S v Tsotsobe1983 (1) SA 856 (A); S v Nyembe1982 (1) SA 835 (A) at 842F-G; S v Tshomi1983 (1) SA 1159 (C); S v Mayo (an unreported judgment of Jones J, case No CC 54/89-ECD...