S v Mazibuko and Others

• Jurisdiction: South Africa
• Judgment Date: 25 March 1977
• Citation: 1978 (4) SA 563 (A)

S v Mazibuko and Others
1978 (4) SA 563 (A)

1978 (4) SA p563

Citation	1978 (4) SA 563 (A)
Court	Appellate Division
Judge	Trollip JA, Rabie JA and Joubert AJA
Heard	February 28, 1977
Judgment	March 25, 1977

Flynote : Sleutelwoorde

H Criminal procedure — Evidence — Confession recorded by police officer in charge of unit investigating the case — Statements interpreted by constable investigating case — Not practical to bring appellants before an independent justice of the peace — Circumstances peculiar — Confessions properly admitted.

Headnote : Kopnota

The appellants had been convicted of murder with extenuating circumstances and theft. While under arrest each appellant had made a confession which was recorded

1978 (4) SA p564

by the police officer in charge of the unit investigating the case and each statement was interpreted by a constable who was investigating the case. The police unit was situated in a camp which was pitched 120 kilometres from the nearest town where a magistrate was likely to be available. The appellants had contended that the confessions had not been A voluntarily made but the trial Court, after holding a trial within a trial, had admitted the confessions. In an appeal,

Held, regard being had to the geographical isolation of the camp and as nothing sinister had been suggested in the way the confessions had been recorded, that in the circumstances the confessions had been rightly admitted. B

Case Information

Appeal from a conviction and sentence in the Witwatersrand Local Division (VERMOOTEN AJ and assessors). Facts not material to this report have been omitted.

C P van Vuuren for the appellants, at the request of the Court: It was unwise to have admitted the statements made by the appellants. See R v C Majozi and Others 1954 (1) SA 68; S v Mofokeng and Another 1968 (4) SA 852; S v Mdluli 1972 (2) SA 839; S v Mahlala and Others 1967 (2) SA 401; R v Kleinbooi 1924 GWLD at 10; S v Freddie Lebea 1975 (4) SA 337; S v Dhlamini 1971 (1) SA 807. Taking all factors into account and the manner in which the killings occurred on the spur of the moment with no premeditation and taking into account the tribal nature of the persons D involved and the fact that there was perhaps some degree of provocation and that the killings were not for gain, the sentences are severe to the extent that they cause a sense of shock. See S v Narker and Another 1975 (1) SA 583; S v De Maura 1974 (4) SA 204; S v V 1972 (3) SA 611; S v Kumalo 1973 (3) SA 697; S v Nel 1974 (1) SA 29; S v Sibiya 1973 (2) SA 51; E S v Rabie 1975 (4) SA 855; S v Revill 1974 (1) SA 743; S v Reddy 1975 (3) SA 757.

N Fleischak for the State: It is conceded that, as a general rule, it is undesirable that confessions be taken by members of the police force who are actually concerned in the investigation of a case and the arrests of F prisoners apprehended by them, but there are circumstances where the relaxation of this general rule is justified. S v Mdluli and Others 1972 (2) SA 839. In the instant case, the circumstances and conditions were such that the general rule should be relaxed. It was not practical, in the circumstances prevailing, to bring the appellants before a magistrate or an independent justice of the peace for the purpose of reducing the G confessions to writing. The learned Judge a quo gave much thought to the question of the admissibility of the confessions. He was alive to the undesirability of members of the police force concerned in the investigation of a crime taking down a confession, and acting as an interpreter in the taking down of a confession, and he was aware of and had considered the authorities in this regard, and he thus cautioned H himself before admitting the confessions in evidence. The appellants merely denied that they ever made confessions. There was no denial of the State evidence that no undue influence was brought to bear on them, nor did they controvert the State evidence that the confessions were freely and voluntarily made and the evidence that they were in their sound and sober senses was not controverted. In the circumstances the confessions were correctly admitted in evidence. See R v Mubvumba and Another 1962 (3) SA 57; R v Ananias 1963 (3) SA 486; S v Mkwanazi 1966 (1) SA 736; S v Dhlamini 1971 (1) SA 807.

1978 (4) SA p565

Punishment is "pre-eminently a matter for the discretion of the trial court". See R v Mapumulo and Others 1920 AD at 57. The Appeal Court has no general discretion to ameliorate the sentences of trial Courts, and a Court of appeal will only interfere if the sentence is vitiated by A irregularity or misdirection or is disturbingly inappropriate. See S v De Jager 1965 (2) SA at 629; S v Rabie 1975 (4) SA 855.

Van Vuuren in reply.

Cur adv vult.

Postea (March 25). B

Judgment

Joubert AJA:

The appellants were convicted in the Witwatersrand Local Division by VERMOOTEN AJ and two assessors, on two counts of murder, ie C counts 1 and 2, with extenuating circumstances and on one count of theft, ie count 4. The first appellant was sentenced to 15 years imprisonment on each of the two counts of murder, which sentences were ordered to run concurrently, and one year's imprisonment on the count of theft. The second and third appellants were each sentenced to 12 years' imprisonment on each count of murder, which sentences were to run concurrently, and one D year's imprisonment on the count of theft. The trial Judge granted the appellants leave to appeal to this Court against their convictions only, but in the light of the decision in S v Shenker and Another 1976 (3) SA 57 (A) E at 59G this Court is also empowered to deal with the question of their sentences.

The two deceased, Zwelanile Maswazi and Sotabo Mkize, were inmates of bungalow 74 in Mzimhlope Hostel at Meadowlands. Between 7 and 7.30 pm on Good Friday, 12 April 1974, their bungalow was surrounded and attacked by an armed group of men who, after having broken the windows and door, succeeded in forcing their way inside. These assailants were Zulus who F came from the Kranskop area in Natal, whereas the Zulu inmates of bungalow 74 originated from the Makandla area of Natal. The Kranskop and Makandla groups were apparently not kindly disposed towards each other. When the Kranskop group launched their armed attack on bungalow 74 some of its inmates managed to escape, but the two deceased were less fortunate. After G the assailants withdrew from the scene of violence, Zwelanile Maswazi (to whom count 1 relates) was left dying outside the door of the bungalow. He died that night as the result of a very severely fractured skull and very severe brain injuries which had been caused by numerous blows on his head. According to the undisputed medical evidence these blows could have been H inflicted by instruments such as iron bars, kieries or stones. The other deceased...