S v Mooi and Another

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Kumleben JA
• Judgment Date: 30 May 1990
• Citation: 1990 (1) SACR 592 (A)
• Hearing Date: 14 May 1990
• Counsel: D A Kuny SC (with him D Chetty) for the appellants G J Bursey for the State

Kumleben JA:

The two appellants stood trial with 14 other accused in the Eastern Cape Division of the Supreme Court on a charge of murder. The first appellant was accused No 2 and the second appellant accused No 1: for convenience I shall continue to refer to them as such. Both were I convicted of murder. No extenuating circumstances having been found, the death penalty was imposed. The Court a quo, however, granted leave to accused No 2 to appeal to this Court against his conviction and sentence (the finding that there was no extenuation); and this Court gave leave to accused No 1 to appeal against sentence only.

The charge arose from the death of Thozamile Michael Dondashe in or near the Kwa Nobuhle township, Uitenhage district, on 24 October 1985. J The events

Kumleben JA

A leading to his death were described by his mother and his sister, Tozama Dondashe, who were State witnesses. Late that afternoon the deceased ran into his home injured. As he was washing his wounds his pursuers arrived. They demanded that he be released to them, alleging that he was a police informer. A crowd gathered outside the house. Eventually, after the house had been damaged, set alight by a petrol bomb and entered into by some of B the crowd, the deceased's father instructed him to accompany those who had come for him. The following evening his body was found about one kilometre from his home at a spot on the outskirts of Kwa Nobuhle. His skull had been crushed and his head, face and body burnt. The indications were that the head injury caused his death before the burning took place.

I turn to consider, first, whether accused No 2 was correctly found C guilty of murder.

The grounds for his conviction are thus stated in the judgment:

'According to Tozama he (accused No 2) too was one of those who entered the home of the deceased and removed him therefrom. In his confession to the magistrate, exh K, he described how they went into the home of the deceased and how he was taken out of the house. He goes on to describe how the deceased was taken to the spot where he D was put to death and how on the way to that spot he struck the deceased over the back with a piece of copper piping. He also described how other members of the group assaulted the deceased and how he was set alight.

Accused No 2's abbreviated statement to Captain Köhne, exh X2, is much to the same effect as exh K. What is more, accused No 2 pointed out to Captain Köhne on 14 February 1986 a spot which was only some 10 E paces from the spot where the body of the deceased was found by Warrant Officer Meiring. His knowledge of the spot taken with the other evidence against him is a further factor pointing to the guilt of accused No 2.'

The conviction was thus based primarily on the confession to the magistrate (exh K) and a statement (exh X2) made to Captain Köhne. The judgment, one notes, does not indicate whether, should these two F statements be left out of account, the other two considerations (the pointing out per se and the evidence of Tozama Dondashe) were considered sufficient, jointly or severally, to justify the conviction.

The correctness of the reception of these two statements must in the first place be examined. In fact the enquiry can be further restricted to the question of the admissibility of the confession to the magistrate G (exh K). I say this since, if it was admissible, the other statement to the police officer takes the matter no further; if it was not - for reasons which at this stage need not be given - exh X2 must also be held to have been incorrectly admitted. The admissibility of two similar statements made by accused No 1 was also contested at the trial. The Court, quite correctly, decided that the admissibility of all four statements should be considered at one separate interim hearing, a trial H within a trial, since the evidence relating to each might interpenetrate. As it happens, however, the evidence on the statements made by accused No 1 does not bear upon the question whether the confession and statement of accused No 2 were correctly admitted. Such evidence may therefore be left out of account and need not be referred to. (As a matter of fact the I statements made by accused No 1 were also held admissible.)

With this somewhat protracted prelude, I turn to consider whether exh K ought to have been received in evidence.

The following undisputed facts relate to this enquiry. Accused No 2 was arrested on 21 November 1985. He was not questioned by the police until 17 December 1985 when Warrant Officer Pentz interviewed him in his office at the Uitenhage police station. He made a statement which was J recorded by Pentz.

Kumleben JA

A The accused that afternoon was taken before a magistrate, Mr Steyn, at Uitenhage. He was accompanied by Detective Sergeant Masiba. The magistrate put the customary preliminary questions to the accused to satisfy himself that the accused was acting freely and voluntarily. The questions and answers included the following:

'Het die polisie of enige ander persoon u aangerand of gedreig om die B verklaring af te lê? - Nee.

Is u deur enige persoon beïnvloed om die verklaring te maak? - Nee, maar hulle het gesê ek moet kom sê wat ek hulle gesê het. Hulle het gesê hulle sal lees wat ek gepraat het en as ek nie sê wat ek hulle gesê het nie, gaan ek kak.

As hulle nie so gesê het nie, sou jy uit jou eie wil 'n verklaring wou kom maak? - Nee, dan sou ek nie gekom het nie, want daar was iemand C wat hulle voor my geslaan het en ek het toe bang geword, want ek wil nie so geslaan word nie.

Maar ek het jou mos nou verduidelik dat jy onder geen verpligting is om 'n verklaring te maak nie, verstaan jy? - Ja, ek verstaan, maar ek sal maar liewer praat anders word ek geslaan.

Het iemand gesê jy sal geslaan word as jy nie praat nie? - Ja, mnr D Pentz het so gesê.

As jy nie bang is nie, sou jy 'n verklaring afgelê het? - Nee, ek sal nie. Ek wil praat omdat ek bang is.

Wil jy uit jou eie 'n verklaring aflê of net omdat jy bang is? - Nee, maar ek is bang.

Verklaarder meegedeel dat hy nie verplig is om 'n verklaring te maak E nie, en hy verkies om nie 'n verklaring te maak nie.'

In the light of these answers, no statement was made or recorded. The form (exh M), on which the preliminary questions and answers appear, was signed by the magistrate and given to Masiba. On his return to the police station he handed it over to Pentz in the presence of the F accused. When Pentz read it he was angry. He instructed Masiba to take the accused back to the cells.

The next morning, 18 December 1985, he was again taken by Masiba to the same magistrate. On this occasion Mr Steyn recorded inter alia the following on exh K, before the confession was taken down:

'Ek vra vervolgens die verklaarder om in sy eie woorde aan my te vertel hoe dit gebeur het dat hy na my kantoor gekom het om sy verhaal G aan my te vertel. Die volgende was sy verduideliking (neergeskryf in sy eie woorde) - Ek het nou self besluit om hierheen te kom en ek het die speurder gesê ek wil 'n verklaring kom doen by die landdros en toe sê hy, hy sal my afstuur toe bring hulle my.

Het die polisie of enige ander persoon u aangerand of gedreig om die verklaring af te lê? - Nee, Sien bladsy 4 en 3.

H Is u deur enige persoon beïnvloed om die verklaring te maak? - Nee.

Is u deur enige persoon aangemoedig om die verklaring af te lê - Nee, maar ek het verlede nag met my mede-beskuldigde gesels en ons het nou besluit om die klagtes te erken.

U het weliswaar aan my gesê dat u nie deur enigiemand aangerand, gedreig, aangemoedig, beïnvloed of beloftes aan u voorgehou is nie ten I einde u te oorreed om die verklaring te maak. Ek wil u egter nogtans vra om my in u vertroue te neem en as daar na u oordeel enigiets onbehoorlik gebeur het wat u beïnvloed het om na my toe te kom om die verklaring te maak, dit nou aan my te openbaar. Verstaan en begryp u wat ek so pas aan u verduidelik het? - Ek verstaan maar niks het plaasgevind nie.'

The confession proper follows. It was handed to Pentz on their return to J the police station.

Kumleben JA

A The admissibility of this confession was disputed on the ground that the accused was threatened and that it was consequently not voluntarily made. The Court, relying on the provisions of s 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977 ('the Act'), held that the accused had not discharged the onus of proving that the confession was induced by any threat and it was ruled admissible.

B That he was threatened was as strenuously denied by Pentz as it was persistently asserted by the accused. Although a number of other witnesses were called on behalf of the State at the interim trial, the determination of this issue depends essentially on the evidence of these two key witnesses. For this reason it is necessary to refer in some detail to each account of the events leading up to the confession.

According to the accused, when he was brought to Pentz' office by C Masiba on 17 December 1985, Detective Constable Faleni was also present. The accused was questioned about the murder. Pentz opened the interview by saying that he (the accused) was in his (Pentz') 'stomach' and that he should do exactly as Pentz instructed him. (This rather perplexing answer was furnished through the interpreter. In the course of the questioning D which followed the accused stated that it was said to him in Afrikaans: 'Jy moet weet jy is in my maag en jy gaan doen wat ek wil hê jy moet doen.' It then transpired that there was a misunderstanding and that 'maag' should read 'mag'.) Pentz spoke Afrikaans to him at this interview, but with Faleni present to interpret if necessary. At a certain stage Faleni and Pentz left the office, leaving him with Masiba. They returned with a young man whose head was bleeding. He was unknown to the accused E and, more particularly, was not...