S v Motloba

• Jurisdiction: South Africa
• Judge: Stewart CJ
• Judgment Date: 07 August 1992
• Citation: 1992 (2) SACR 634 (BA)
• Hearing Date: 22 May 1992
• Counsel: Miss M M Leeuw for the appellant J J Smit SC (Attorney-General of Bophuthatswana) for the State
• Court: Bophuthatswana Appellate Division

S v Motloba
1992 (2) SACR 634 (BA)

1992 (2) SACR p634

Citation	1992 (2) SACR 634 (BA)
Court	Bophuthatswana Appellate Division
Judge	Stewart CJ
Heard	May 22, 1992
Judgment	August 7, 1992
Counsel	Miss M M Leeuw for the appellant; J J Smit SC (Attorney-General of Bophuthatswana) for the State

Flynote : Sleutelwoorde G

Evidence — Confession — Admissibility of — Whether a statement constitutes a confession — Test an objective one — Intention of person H making statement may, in certain circumstances (for example to resolve an ambiguity), be very important — Statement must nevertheless be looked at objectively to determine whether it amounts to a confession.

Evidence — Adequacy of proof — State, in trial on charge of murder, relying only on statement by accused containing certain admissions — Statement indicating that accused believed he was acting in self-defence I — Onus on State to negative defence of self-defence and to negative factors which led accused to believe he was acting in self-defence — Facts negativing such defence cannot be assumed against accused.

Evidence — Adequacy of proof — State, in trial on charge of murder, relying only on statement by accused containing certain admissions — State having to argue on basis that statement was true — To utilise portions of statement to incriminate accused and to disbelieve those J portions not incriminating

1992 (2) SACR p635

A accused requires sound reasons for so doing — Cannot be done if no such reasons advanced — Statement to be read as a whole.

Evidence — Failure of accused to testify — Effect — No prima facie case made out — Accused not obliged to lead evidence in rebuttal — No adverse inference can be drawn from his failure to testify. B

Headnote : Kopnota

The test as to whether or not a statement amounts to a confession is objective and not subjective. While the intention of the person making the statement may, in certain circumstances (for example, to resolve an ambiguity), be extremely important, nevertheless the statement should be looked at objectively to decide whether it amounts to a confession or not.

The dictum in S v Yende 1987 (3) SA 367 (A) at 374B-F approved and applied.

C Where the State, in a criminal trial in which the accused faces a charge of murder, relies only on a statement by the accused containing certain admissions but which discloses that the accused believed that, in killing the deceased, he was acting in self-defence, the onus is on the State to negative the defence of self-defence and to negative the factors which led the accused to believe that he was acting in self-defence. The factors D upon which the State relies in order to show that the accused's belief was unfounded or unreasonable cannot be assumed against him.

Furthermore, for the State, where it has to argue the case on the basis that the accused's statement was true, to utilise portions of the statement to incriminate the accused and to disbelieve those portions which do not incriminate him requires that there be sound reasons for doing so. Where no such reasons have been advanced, the statement must be E read as a whole without undue emphasis being placed upon any particular word and with each word bearing its ordinary meaning.

Where no prima facie case has been made out by the State, the accused is not obliged to lead evidence in rebuttal and no adverse inference can be drawn from the accused's failure to testify. F

Case Information

Appeal from a conviction and sentence in the General Division. The facts appear from the judgment of Stewart CJ.

Miss M M Leeuw for the appellant.

J J Smit SC (Attorney-General of Bophuthatswana) for the State.

G Cur adv vult.

Postea (7 August 1992).

Judgment

Stewart CJ:

The appellant was charged with the murder of a young man on the night of 30 September 1989, it being alleged that, on that night and H at Kanana Village in the district of Bafokeng, he wrongfully and unlawfully killed Peter Morobane by stabbing him with a knife. He was found guilty of murder with extenuating circumstances and was sentenced to imprisonment for 12 years. He was refused leave to appeal against his conviction and sentence but a petition for leave to appeal against both succeeded.

The appellant pleaded not guilty to the charge. In explanation of his I plea he handed in a statement in terms of s 115 of the Criminal Procedure Act 51 of 1977 (RSA) denying his guilt and stating the following:

'1.

The accused denies that he unlawfully and intentionally killed Peter Morobane by stabbing him with a knife on 30 September 1989.

2.

On 30 September 1989, at approximately between 21:00-22:00, the accused, whilst in the company of Shiela (sic) Mogopodi and Kgomotso, visited Lucky Kwele's shebeen. On their arrival there J there was music and

1992 (2) SACR p636

Stewart CJ

A lots of people, and dancing. The accused and his companions seated themselves and bought 3 x 340 ml of beer. Whilst they were drinking, the deceased arrived and joined his companions amongst whom was a certain Thabo. They also drank liquor.

3.

At some stage the accused got up to dance with Kgomotso and whilst the accused was dancing, the deceased appeared from the outside B and called out to Thabo saying that he, the deceased, had been stabbed. They all looked in his direction and noticed that he, the deceased, was bleeding. Thabo stood up, responded to the deceased and went outside and people all followed him outside. As the deceased was about to fall, Thabo caught hold of him. Lucky and Jack Mmolotsi came out from the house and enquired from the people C who had gathered there whether anyone had any knowledge of the person responsible for the assault upon the deceased. There was no response.

4.

The deceased was then taken away by Lucky and Thabo to the main road, to obtain transport to convey the deceased to hospital. When the transport arrived, a police bakkie also arrived and the police D stopped and loaded the deceased and they asked as to who was responsible for the condition of the deceased and Lucky said he did not know.

5.

The accused then left the shebeen which thereafter was closed to the public. He left in the company of Shiela, Kgomotso, and Shenene.'

The State did not call any witnesses to the murder. It handed in, by consent, the post mortem report recording that Morobane's death had been E caused by internal haemorrhage and bilateral haemothorax caused by three cut stabwounds in the left side of the chest which punctured the left lung and the ascending aorta. The defence admitted the identity of the deceased Morobane, and admitted that his injuries were sustained at a party on 30 September 1989 where the appellant was present. Also that the deceased sustained no further injuries from that time until the post mortem was conducted.

F Evidence was, however, led at a trial within a trial relating to a written statement allegedly made by the appellant to a police officer, Detective Constable Seemise, on 17 October 1989. This statement is quoted verbatim without any editing or correction:

'Saturday...