S v Mkwanazi

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson JA, Holmes JA and Williamson JA
• Judgment Date: 02 June 1965
• Hearing Date: 25 May 1965
• Court: Appellate Division

H Williamson, J.A.:

The appellant in this matter was charged before KENNEDY, J., and two assessors in the Durban and Coast Local Division with robbery with aggravating circumstances. He was found guilty as charged and sentenced to eight years' imprisonment and a whipping of four strokes. Leave to appeal was thereafter granted by KENNEDY, J., on the basis that this Court might reasonably come to the conclusion that he had wrongly admitted in evidence a confession made by the accused to a magistrate.

Williamson JA

The complainant in this matter, Miss Vera Taylor, lives on a small farm at Cowie's Hill near Pinetown, Natal, with her stepfather, Mr. William Roadknight, aged 90. They gave evidence which established that they were A assaulted by a young African man at about 11 a.m. on Sunday morning October 25th, 1964. They were at the time alone on this small farm, their two Zulu male servants being away for the day. The details of the story as to how they were separately overpowered and locked in two different rooms, how they were eventually released by neighbours after B they had managed to attract the attention of some young Africans in the road near the house, and how this intruder had, in the meantime, ransacked the house for money and had decamped with about R150, a metal cash box and a revolver, are not presently material; suffice it to say that the fact that the crime as charged was committed by some young African man on the Sunday morning in question, was convincingly proved C by the evidence of these two persons; they were both found by the trial Court to be honest and reliable witnesses. The Court also very rightly remarked on the courage and presence of mind exhibited by Miss Taylor and on the remarkably clear recollection of events by a man of 90 years of age, who incidentally was quite severely assaulted and for a short period rendered unconscious.

D Unfortunately, however, neither of these witnesses could in any way materially assist in the identification of their assailant. Miss Taylor said that she never had a proper opportunity of seeing his face in such E a way that she could subsequently recognise him; she in fact failed to identify the appellant or any other person on an identification parade held subsequently. She had described the man in question as being of slim build; she said in Court that his build was very similar to that of the appellant, but that she could not recognise the appellant's face. She had given the police, and repeated in Court, a description of the F man's clothes; he had on grey flannel trousers and an open necked checked shirt, the checks being alternately white and dark brown or very dark red in colour. She had at a late stage in the events of that morning's intrusion seen, through the window of the bathroom in which she was locked, the man near her servants' rooms putting his hand into a G grass bank behind the rooms in which her servants were wont to hide the keys of their rooms when they went out; at that stage he was wearing a dark coloured jacket. Old Mr. Roadknight said in evidence that he could not confidently point out anyone on the identification parade. When asked in examination-in-chief if he knew the appellant, he answered

'No, I can't identify that one - not certainly. I should say it was H not that boy.'

One of the complainant's servants, Hezolon Manqele, was called by the State to say that he knew the appellant as a person who, until shortly prior to the Sunday of the robbery, had been employed by the Central News Agency to deliver newspapers and who during that time had delivered the daily paper to the complainant's home. For a period just before the Sunday in question, estimated by him as about ten days, he noticed that the newspaper was being delivered by an Indian man instead of the appellant. He remembered the appellant coming to

Williamson JA

his room at the complainant's home on only two occasions; once when he noticed that the appellant was pushing his bicycle because of a puncture, he asked the appellant into his room and gave him some tea and once the appellant came to his room about 4 p.m. and asked for a drink A of water. He was sure he had never discussed his employers' affairs with the appellant nor had he ever shewn the appellant where he hid the key of his room when he went out; he hid the key under the grass bank near his room and placed a brick over it to conceal it. He had numbers of friends who visited him and he did not know if anyone of them or B anyone else might not at some time have seen him concealing his key under the bank. Miss Taylor had described to him the person who had robbed her and her stepfather; but he could not recognise anyone he knew from her description.

The only evidence led by the State additional to that of the three C witnesses above mentioned, was evidence in regard to the making by the appellant of an alleged confession to a magistrate. Objection being raised to the admissibility of this confession, the presiding Judge duly conducted the enquiry in regard thereto in the absence of his assessors. Evidence was led therein in the first place from a detective constable, Germishuyzen, who testified to the arrest by him of the appellant at a D Bantu kraal at Mtunzini in Zululand, about 100 miles from Pinetown, in the early hours of the morning of November 4, 1964. To accompany him on the trip from Pinetown to make this arrest, Germishuyzen had taken a Bantu constable, Mshabani. He found the appellant asleep, woke him, informed him that he was suspected of being involved in the robbery of E the complainant and 'warned him according to Judges' Rules'. He spoke to the appellant through Mshabani and told him of the date and place of the robbery; he also searched inside and outside the kraal thoroughly but could not find anything incriminating. The appellant denied all knowledge of the robbery and was then brought back by car to Pinetown; they travelled in a four-seater two-door car, the appellant in the back F and Germishuyzen and Mshabani sitting in front; they discussed the case during the trip. When they arrived at Pinetown at about 4 a.m. the appellant was placed in a cell at the police station. He took him out of the cell about 9 a.m. and interrogated him for about one and a half to two hours, again using Mshabani as his interpreter.

G After the whole of the facts had been put to the appellant and he had been asked all about his own movements and whereabouts and similar matters, he made a statement which would have been inadmissible in evidence. He was then asked if he would make the statement before a H magistrate and at the same time was told he was not bound to do so, unless he wished to. After a few minutes reflection, he said he would make a statement before a magistrate. He was then taken by Germishuyzen and Mshabani to the magistrate, Mr. Hickman, and left alone with the magistrate and his interpreter. Thereafter he was returned to the custody of Germishuyzen who at the same time was handed by the magistrate a statement he had taken from the appellant. Germishuyzen stated that no force, threats or inducements were at any stage used or made to the appellant, either by himself or by Mshabani

Williamson JA

in his presence. He was cross-examined in some detail on allegations to be made by the appellant (a) that he and Mshabani had assaulted the A appellant on two occasions when they stopped the car on the two hour journey during the night from Mtunzini to Pinetown, and (b) that they had also continuously and seriously assaulted him during the so called interrogation for an hour and a half to two hours in the morning, just prior to his being taken to the magistrate. These allegations were denied by...