S v Monyane and Others

• Judge: Borchers J
• Judgment Date: 11 August 1999
• Citation: 2001 (1) SACR 115 (T)
• Hearing Date: 11 August 1999
• Court: Transvaal Provincial Division

Borchers J:

A trial-within-a-trial was held in this matter to determine the admissibility of certain evidence which the State wished to lead. After the arrests of the four accused in the early hours of 13 July 1995, they were taken by the police C to the police station where they were all, briefly and separately, interrogated. These interrogations led to the making of certain statements or pointings out to other officials by the accused and these formed the subject matter of the trial-within-a-trial. Chronologically they are: D

1.

The contents of a verbal statement made by accused 4 to Sergeant Denny at the police station that morning during interrogation.

2.

A written confession made by accused 1 at about 8 am on 13 July 1995 to retired Colonel Du Pont.

3.

A pointing out of the scene of crime by accused 3 on 13 July 1997 at 9 am. E

4.

A pointing out of the scene by accused 1 at 10 am on 13 July 1997 to Captain Van Schalkwyk and, finally,

5.

A pointing out of the scene of the crime by accused 2 to Captain Van der Merwe at about 1:20 pm on 13 July 1995.

The State led the evidence of a large number of witnesses and from the F cross-examination thereof it became clear that the defence objections to the admissibility of these matters of evidence rested squarely on two grounds. Firstly, that the accused had not been informed of their rights to legal representation prior to making the statements or pointing out, alternatively, if informed, the full contents of such rights had at no stage been imparted to them. Secondly, that the G accused had been assaulted after their arrests, which assaults had induced them to make the said statements or pointings out.

The accused did not themselves testify. I was asked after the close of the State case to adjudicate the matter on the basis of the State evidence and the defence at this stage raised pertinently the fact that the full contents of the rights contained in s 25(1)(c) of H Act 200 of 1993, the interim Constitution, had not been imparted to the accused. I pause to mention that it became common cause that the matter was indeed governed by the interim Constitution though the defence initially submitted that the present Constitution, Act 108 of 1996 applied. Because of my view on the likelihood of the defence succeeding I on this narrow basis raised, I decided that it was an appropriate stage of the proceedings to hear argument on the issue and to make a ruling thereon. I ruled that the accused's constitutional rights had been breached and that to admit the evidence would result in an unfair trial within the meaning of s 25(3) of the interim Constitution. J

Borchers J

The accused did not testify in the trial-within-a-trial and the A factual issues must be decided solely upon the evidence presented by the State. It is not in my view necessary to summarise at length all the evidence and cross-examination placed before this Court. I shall deal only with that relevant to my ruling.

Captain Balfour testified that as each accused was arrested that B night in different places, he read to them a copy of s 25 which he had on his person, and that he made the contents thereof understandable to each accused. Thereafter the investigating officer, Sergeant Pretorius, took over. He testified that immediately after Captain Balfour had arrested the accused and explained their rights, before they had even arrived back at the police station, he again told the accused of their C s 25 rights. What he did, he said, was to read s 25 over and over again to them as he was concerned to be sure that they understood these rights.

During cross-examination he said he had told them that if they could not themselves afford legal representation they had the right to apply for such representation at State expense when brought before a court. I D interpose to stress the fact that these constant re-readings of s 25 and the elaboration thereon all took place in the early hours of Thursday 13 July 1995. The accused were not taken to court until Monday 17 July 1995, where at their first appearance they informed the court that they desired legal representation at State expense, but by then the disputed statements and pointings out had already been E made.

I return to the chronological summary of the events. On arrival at the police station accused 1 was interrogated by Captain Balfour. Whether the s 25 rights were again read to him is unclear but nothing turns on this. Accused No 2 was interrogated by Sergeant Pretorius who testified that here he yet again told accused 2 his rights and pointed F out that he could apply for legal representation at State expense if he could not afford such himself when he was taken to court.

Sergeant Oosthuizen interrogated accused 3. Sergeant Oosthuizen was a witness whose evidence was factually incorrect on a number of issues and who conceded that he had no independent recollection of the events. G He claimed, however, to have read the contents of s 25 to accused 3. It was Sergeant Denny who interrogated accused 4 and he stated only that in addition to other rights he informed accused 4 that he had 'die reg om 'n prokureur van sy keuse te sien'.

There is every reason to believe that the accused could not H themselves afford legal representation. They were squatter camp residents and the conditions under which they were arrested were described by the investigating officer as 'haaglik'. From what I have summarised, and based upon Pretorius's reiterated explanations that if they could not afford legal representation themselves, they could apply for such at court, at this stage of the I proceedings the accused were probably under the impression that until they appeared in court they had no recourse to legal representation because they themselves could not afford to pay for it. When at 08:00 on 13 July 1995 accused 1 was taken before retired Colonel Du Pont, this impression must have been confirmed. Mr Du Pont told him that he could have a legal representative of his choice present and that the proceedings at which the confession was shortly J

Borchers J

thereafter made, could be deferred or adjourned in order to obtain the A presence of his legal representative. He did not mention to accused 1 the possibility of legal assistance at State expense nor how it could be obtained nor that the proceedings could be deferred or adjourned for such purpose. When later, at 10:00 that day, accused 1 was handed over B to Captain Van Schalkwyk to make the pointing out, he was again only asked if he would like to consult a lawyer before proceeding. Captain Van Schalkwyk testified that he assumed that the possibility of obtaining legal assistance through the State had been explained to accused 1 by the investigating officer.

Mr Van der Merwe testified in-chief that although the form which he completed when accused 2 appeared before him and which he read to him C contained no reference to legal representation, he would have explained accused No 2's rights to him fully as the need to do this had been stressed in police circles shortly before this time, but he added that he could not be a hundred per cent certain that he had done so, and in cross-examination conceded the possibility that he may not have touched D on the subject at all.

As far as the pointing out by accused 3 is concerned, Captain Le Roux testified that he had not mentioned the subject before accused 3 made the pointing out.

I was invited by defence counsel to find that the evidence for the State was unreliable and indeed untrue. Accused 1's counsel submitted E that I should go further and find that no information of any nature regarding legal representation was given to the accused. I have not, however, heard the accused on this matter and the allegations to this effect, when put to the State witnesses in cross-examination, were denied by them.

The evidence presented by the State may well be open to criticism in F various respects but as it is not controverted by evidence for the defence, I believe I should adjudicate the matter on the evidence placed before the Court. It is in my view not necessary for the purposes of this judgment to come to findings of credibility.

Section 25(2) read with 25(1)(c) of the interim Constitution entitles an arrested person: G

'. . . 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'.

This information should be imparted to any arrested person as soon as possible after his arrest and certainly prior to his being invited H or requested to participate in any proceedings in which he may by word or deed incriminate himself. S v Melani and Others 1996 (1) SACR 335 (E) at 347e; S v Marx and Another 1996 (2) SACR 140 (W) at 148f - i and S v Mathebula en 'n Ander 1997 (1) SACR 10 (W) at 19f - h.

I have been referred also to S v Khan 1997 (2) SACR 611 (SCA); [1997] 4 All SA 435 (A) in which it was held that the failure I to inform an accused of his rights to legal representation prior to his making a confession, did not render that confession inadmissible. It is in my view important to note that the said confession in the Khan matter was made at a time prior to the date upon which the interim Constitution came into operation and the court expressly refrained from considering what the J

Borchers J

position would have been had the interim Constitution been in A operation. In short, in the Khan matter there was no question of a breach of the accused's constitutional rights as there is in the present matter.

The importance to the accused himself of his being made aware of his rights to legal representation prior to his engaging in self-incrimination was made very clear in the Melani, Marx and Mathebula cases...