S v Mphalele and Another

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Miller JA, Trengove JA and Viljoen JA
• Judgment Date: 28 July 1982
• Citation: 1982 (4) SA 505 (A)
• Hearing Date: 03 May 1982

Miller JA:

B The appellants, together with another (Alton Mahlangu - No 1 accused), stood trial in the Witwatersrand Local Division on two charges: (1) murder and (2) robbery with aggravating circumstances. Each of them pleaded not guilty, but was convicted, on both charges. In respect of the second charge, each was sentenced to 10 years' imprisonment. On the first charge, extenuating circumstances were found C in the cases of No 1 accused and the first appellant, but not in the case of the second appellant, who was sentenced to death. Number 1 accused was sentenced to eight years' imprisonment on the murder charge, to run concurrently with the sentence for robbery, and the first appellant to 15 years' imprisonment with which the sentence for robbery D was to run concurrently. With leave of the trial Judge (VAN DIJKHORST J) the appellants come before us on appeal, the first appellant against the convictions only and the second appellant against the convictions and sentences. Number 1 accused did not apply for leave to appeal.

The evidence established that on the morning of 23 October 1980, an E elderly man, employed by Fotheringham's Bakery (Fotheringham's) at Johannesburg as a security officer, was carrying an open, wooden tray containing a number of 'pay packets' which in turn contained money totalling approximately R4 000. He was walking along a corridor on the ground floor of the building when he was attacked and shot, his F assailant, accompanied by another man, thereupon making off with the tray and its contents. These two men, who had shortly before been seen loitering in the corridor near the pay office, one wearing a blueand the other an orange-coloured dustcoat, were seen to run with the booty towards the parking area outside the building, where they entered a G Valiant motor car, maroon-coloured save for the right front door which was white, in which was seated a man who was apparently awaiting them. The car drove off but not before one of the witnesses had written down its registration number. Medical evidence established that the deceased suffered 'a gunshot wound' of the head and that this was the cause of his death. The bullet entered the deceased's head just below the right H eye and in its course damaged the brain. It was removed from the brain when the post-mortem examination was carried out.

It is apparent from the very brief summary I have made that three men were involved in the commission of the crimes. The problem in this case arises from the absence of reliable, direct evidence relating to the identification of the participants in the commission of the crimes. It is clear that one of the two men seen in the corridor carried and used a revolver. There was also direct evidence, by one Jacobs, that the other man carried a long knife. Whether the man who shot the deceased

Miller JA

wore a blue or an orange dustcoat was the subject of conflicting evidence by the eye-witnesses. Moreover, none of such witnesses was able to identify by their appearance either of the appellants as a participant in the commission of the crimes.

A After their arrest, each of the three men charged with the commission of the offence made a statement to a magistrate. Number 1 accused had also made a statement to a police officer. All of these statements were received in evidence at the trial despite strenuous opposition to their B admission by each of the accused persons. They contended that the statements were not freely and voluntarily made by them in that they had been assaulted, threatened and intimidated by the police and that in several instances they had been told by the police what they should say in their statements. These allegations were denied by the police. For the purpose of deciding the issue of admissibility, the trial Judge sat C without the assessors and a very lengthy 'trial within-a-trial' was heard by him. The lengthy judgment a quo reflects in great detail the evidence given by the accused persons and the policemen concerned, relating to the alleged assaults and other malpractices; it also reflects the views of the learned Judge on the credibility of each of D the witnesses and the findings of fact on the contentious issues. I do not find it necessary for purposes of this judgment to repeat, even in summarised form, the voluminous evidence relating to the alleged assaults and other malpractices.

The statements made by No 1 accused do not, of course, constitute evidence against the appellants, but the evidence given by No 1 accused E at the trial does. To that extent, the Court a quo took into account what was said by No 1 accused relative to the alleged complicity of the appellants in the commission of the offences charged. And what each of the appellants said in his statement to the magistrate was relied on by the Court a quo for his convictions.

F The major part of the arguments advanced on appeal, more particularly on behalf of the second appellant, related to the admissibility of the statements. I shall deal first with the case of the first appellant.

The brief statement made by the first appellant clearly constituted a confession. He said that he went to Fotheringham's on the day in G question together with No 1 accused and the second appellant. Number 1 accused remained in the car while he and second appellant went into the building. The second appellant was armed with a.38 firearm and he (first appellant) carried a hunting knife, about one-third of a metre long, with which he threatened the deceased. The second appellant shot the deceased in the course of taking the money-laden tray from him and H both appellants then ran to the waiting car, the engine of which was running. The three men drove off in that car. It was not disputed that the vehicle was a Valiant motor car which answered to the description of it given by witnesses for the State. (The document containing the statement was exh BB at the trial and I shall so refer to it.) As I have mentioned, first appellant said that he was, in effect, forced by violent and other means to make the statement, which he did because of fear of the police, but he conceded in his evidence at the trial that the statement in exh BB was true to the extent that he accompanied

Miller JA

the two men to Fotheringham's, that he witnessed the assault upon the deceased and that he drove off together with the men he had accompanied. A His defence at the trial was that he accompanied these men in complete ignorance of their true purpose. He said that those parts of his statement that implicated him in the crimes were made at the instigation of the police, who told him precisely what to say. He denied that he carried a knife or any other weapon.

B It appears on the face of exh BB that the statement was freely and voluntarily made by the first appellant while in his sound and sober senses, and it appears to have been correctly interpreted to and recorded by the magistrate. Section 217 (1) (b) (ii) of Act 51 of 1977 ('the Act') was therefore invoked by the State, with the result that, upon challenge of the admissibility of the confession on the grounds C alleged by the first appellant, the onus was on him to show on the balance of probabilities that the statement he made was not freely and voluntarily made. Failure to discharge such onus would render the statement legally admissible. (S v Nyembe 1982 (1) SA 835 (A) at 840 - 41.) After examination of the evidence relevant to this issue, the Court a quo found that two of the police witnesses involved, Ruben D Ranaka and Jonas Ndlovu, (the first, an adjudant officer, and the second, a sergeant) were far from satisfactory. Concerning Ndlovu, the learned trial Judge said that he regarded him as 'a totally unreliable witness' and, although not rejecting Ranaka's evidence in toto, he found that his evidence was 'not truthful in all respects' and that in one E respect he had told 'a blatant untruth'. First appellant fared no better at the hands of the Court a quo. Although the learned Judge regarded him as a 'better' witness than No 1 accused or the second appellant, this was faint praise indeed because he regarded both No 1 accused and second appellant as 'lying witnesses' and found that first appellant's evidence was untruthful in several respects and highly F improbable in others. In the result, the finding was that the first appellant had not discharged the onus of showing that the statement in exh BB was not freely and voluntarily made; as I read the judgment of the Court a quo its finding was that the probabilities on this issue were evenly balanced - hence the conclusion that the statement in exh BB was admissible against the first appellant.

G I have given careful consideration to the argument by first appellant's counsel that the Court a quo ought to have found that first appellant established on the balance of probabilities that the statement was not freely and voluntarily made, but am unable to find that the Court a quo was mistaken when finding that the probabilities were evenly H balanced on that issue. Such a conclusion is sometimes unavoidable when the evidence on both sides is unsatisfactory and unreliable. It was contended in the Court a quo that on such a finding, despite the legal admissibility of the statement in terms of s 217 (1) (b) (ii), the Court could and should in the exercise of its discretion refuse to admit the statement - presumably on the ground that its prejudicial effect 'would be out of proportion to its true evidential value'. (Per SCHREINER JA in R v Roets and Another 1954 (3) SA 512 (A) at 521.) This contention was rejected by the learned Judge, who cited S v

Miller JA

Mkanzi en 'n Ander 1979 (2) SA 757 (T) in support of his view that s 217 (1) (b) left no room for the exercise of a judicial discretion in any case in which an accused person failed to discharge the onus...