S v Mcasa and Another

• Jurisdiction: South Africa
• Citation: 2005 (1) SACR 388 (SCA)

S v Mcasa and Another
2005 (1) SACR 388 (SCA)

2005 (1) SACR p388

Citation	2005 (1) SACR 388 (SCA)
Case No	638/2002
Court	Supreme Court of Appeal
Judge	Zulman JA, Farlam JA, Mthiyane JA, Conradie JA and Lewis JA
Heard	August 18, 2003
Judgment	September 15, 2003
Counsel	C Y Louw SC (with R B Engela) for the appellants.; N J du Plessis (with M W Siyo and N Mnqokoyi) for the respondent.

Flynote : Sleutelwoorde G

Evidence — Confession — Admissibility of — Officer before whom a confession is made H not expected to embark upon the interrogation of a person wishing to make a statement — Officer has to ensure that person who wishes to make statement is in his or her sound and sober senses, wishes to make the statement freely and voluntarily and has been apprised of his or her rights.

Headnote : Kopnota

An officer before whom a confession is made, be it a commissioned officer or magistrate, is not expected to embark upon interrogation of I person wishing to make a statement. Nor is it desirable or permissible to encourage the deponent to speak, although aspects which are unclear should of course be clarified. After ensuring that the person who wishes to make a statement is in his or her sound and sober senses and wishes to make the statement freely J

2005 (1) SACR p389

and voluntarily, without having been unduly influenced thereto, the taking of the statement can then be A proceeded with. The caveat to consider at all times is that the person wishing to make a statement has to be apprised beforehand of his or her rights, and most importantly the right to remain silent. (Paragraph [15] at 394c - d.)

Annotations:

Cases cited

Reported cases

R v Blom 1939 AD 188: dictum at 202 - 3 applied B

S v Mehlape 1963 (2) SA 29 (A): applied

S v Mthetwa 1972 (3) SA 766 (A): applied

S v Reddy and Others 1996 (2) SACR 1 (A): followed

S v Van Aswegen 2001 (2) SACR 97 (SCA): applied. C

Case Information

Appeal against conviction and sentences imposed by the Transkei High Court (Jafta J) and confirmed by the Full Bench of the Transkei Division. The facts appear from the reasons for judgment.

C Y Louw SC (with R B Engela) for the appellants. D

N J du Plessis (with M W Siyo and N Mnqokoyi) for the respondent.

Cur adv vult.

Postea (September 15). E

Judgment

Mthiyane JA:

[1] The two appellants were convicted in the Transkei High Court (before Jafta J) of kidnapping and extortion in contravention of ss 94 and 156 of the Transkei Penal Code, Act 9 of 1993 (Transkei). They were sentenced to periods of imprisonment of ten and 15 years respectively. F The first appellant was also convicted of possession of a firearm in contravention of s 2 of Act 75 of 1969 and sentenced to 12 months' imprisonment. All of the sentences were ordered to run concurrently. With the leave of the trial Court the appellants appealed to the Full Court of the Transkei Division against their convictions and sentences on the kidnapping and extortion charges. The appeal failed. The matter G is now before us with special leave granted by this Court.

[2] The convictions are founded on events which took place at about 16h15 on 31 March 1995 in Blue Gum Street, Fort Gale, a residential area in Umtata. The events relating to the kidnapping and extortion are not in dispute. They are briefly the following. Miss Rena H Pitsiladis, the complainant, who was then 18 years old, was driving her motor vehicle towards her home in Fort Gale when her progress was abruptly cut off by two persons in a white Golf motor vehicle. One of them, the passenger, alighted from the vehicle and forcibly removed the complainant from her car and bundled her into the Golf vehicle. They drove away with the complainant and kept her hostage while they I telephoned her father to demand a ransom. After payment by the complainant's father of a substantial sum of money (approximately R1 800 000) she was found at a deserted spot outside Umtata later that night. Although traumatised and crying, she was unhurt. J

2005 (1) SACR p390

Mthiyane JA

[3] Three witnesses claimed to have witnessed the kidnapping and to have identified the first appellant as one of the kidnappers. The A three witnesses were the complainant, Mr Andile Mgaqelwa and Miss Thandiwe Mayeza, who will be referred to hereinafter as Andile and Thandiwe as was the case in the courts below. None of the three witnesses was able to identify the second appellant or to link him to any of the relevant events. The conviction of the second appellant was based on a confession made by him. B

[4] Both the appellants gave evidence in their defence. Their defence was that of an alibi. The evidence of the appellants was rejected as being false by both Courts. On a conspectus of their evidence as a whole I cannot find fault with that conclusion. Indeed, counsel for the appellants did not attempt to persuade us otherwise. C

[5] As to the identification of the first appellant by the three witnesses the evidence of the complainant and Thandiwe was accepted by the trial Court. No reliance was placed on the evidence of Andile whom the trial Judge found to be unsatisfactory. The Full Court had reservations whether it could safely rely upon the D complainant's identification of the first appellant in the light of the fact that she had previously indicated that someone else (a Mr King) was one of her kidnappers. In view of the fact that she subsequently identified the first appellant as one of the kidnappers at a properly conducted identification parade and that the evidence as a E whole points irresistibly to his guilt, the doubts entertained by the Court concerning the complainant's evidence of identification would not appear to be well founded.

[6] Turning to Andile, neither Court placed reliance upon his evidence, mainly because after coming out of the identification parade, he told Thandiwe that he was not sure that he had pointed out the right F person. This does not mean, however, that Andile's evidence should be rejected where it is corroborated by other evidence. A court is enjoined to take a holistic view of the evidence in coming to a conclusion whether to...