S v Ndzamela and Another

• Jurisdiction: South Africa
• Judge: Goldin JA
• Judgment Date: 01 February 1990
• Citation: 1990 (2) SACR 282 (TKA)
• Hearing Date: 01 February 1990
• Counsel: D A Kuny SC (with him M T K Moerane) for the appellants J du Toit for the State
• Court: Transkei Appellate Division

S v Ndzamela and Another
1990 (2) SACR 282 (TKA)

1990 (2) SACR p282

Citation	1990 (2) SACR 282 (TKA)
Court	Transkei Appellate Division
Judge	Goldin JA
Heard	February 1, 1990
Judgment	February 1, 1990
Counsel	D A Kuny SC (with him M T K Moerane) for the appellants; J du Toit for the State

Flynote : Sleutelwoorde B

Trial — Assessors — Absence of — Trial having proceeded to stage where judgment to be given on extenuating circumstances — Assessor not in Court when judgment thereon given — Judge stating in Court that assessor 'unable to be present today' but that assessor had agreed that no extenuating circumstances were present — Judge further declaring that in any event assessor 'unable to act' as assessor in terms of s 152 C of the Criminal Procedure Act 13 of 1983 (Tk) — Court on appeal holding that assessor only became functus officio after the pronouncement on extenuating circumstances — In absence of explanation for assessor's absence and opportunity for defence to be heard on further conduct of case irregularity committed. D

Headnote : Kopnota

The appellants were charged before a Judge and an assessor with two counts of murder and of terrorism in contravention of s 7(1) of the Public Security Act 30 of 1977 (Tk). The appellants were convicted on all three counts. At the stage when the Court reconvened to pass judgment on the question of extenuating circumstances, the assessor was not present in Court. The presiding Judge stated that the assessor was E 'unable to be present today' and proceeded to find that no extenuating circumstances were present, a finding, he said, with which the assessor had agreed after hearing evidence and argument thereon. The Judge did not give any reasons why the assessor was not at Court nor did he give the parties an opportunity to address the Court on the future conduct of F the case. The Judge merely stated that in terms of s 152 of the Criminal Procedure Act 13 of 1983 (Tk) he was of the opinion that the assessor had become unable to act as an assessor as from then. On appeal and, on this particular aspect of the case, by way of a special entry,

Held, that an assessor only became functus officio after pronouncement on the question of extenuating circumstances.

Held, further, that without having given reasons or affording counsel an G opportunity to address him thereon the Court was not entitled to make a finding that the assessor was unable to act.

Held, further, that in the absence of the assessor the Court was wrongly constituted and the finding that there were no extenuating circumstances was accordingly improper and had to be set aside.

Held, further, that in the circumstances of the present case where the H assessor had subsequently made an affidavit that he had not agreed that there were no extenuating circumstances and later retracted that affidavit, it was inappropriate to remit the matter to the Court as constituted before. Convictions and sentences in respect of the counts of murder set aside.

Case Information

Appeals from convictions and sentences in the Supreme Court. The facts I appear from the reasons for judgment.

D A Kuny SC (with him M T K Moerane) for the appellants.

J du Toit for the State.

Judgment

Goldin JA:

The appellants were charged with two counts of murder and count 3 being that of contravening the provisions of s 7(1) of the Public Security Act 30 of 1977, an offence which consists of an act of J terrorism. All the counts

1990 (2) SACR p283

Goldin JA

A concerned resulted from the placing of a bomb on 18 April 1986 at Mzamba in a toilet of the Wild Coast Casino. The two deceased were killed when the bomb exploded.

They were found guilty and each was sentenced to death on the two counts of murder and to imprisonment for 18 years on the count of terrorism. They appeal against the convictions and the sentences imposed.

The cases against both appellants are based entirely on three B statements which were alleged by the State and found by the Court, after two trials within the trial, to have been made freely and voluntarily as required to render them admissible.

The evidence against first appellant rests upon two statements made by him, one to the magistrate of Gulwa and the other to Lieutenant (who C later became Captain) Novuka. The second appellant made a statement to Captain Novuka. After the three statements had been admitted the defence closed their case and neither of the appellants gave evidence although each had given evidence in the trial within the trial.

Mr Kuny contended that the learned Judge misdirected himself on the question of onus, firstly on the ground that before the State is D entitled to hand in a statement made to a magistrate as prima facie proof of its contents, it must in the first place be proved that the person to whom the statement was made was indeed a magistrate. This could not be established, so it was submitted, merely by reference to the statement itself 'unless the statement itself contains his official stamp of office which the statement in the present case did not contain'. Counsel relied on the authority of the case of S v Dhlamini en E Andere 1981 (3) SA 1105 (W) for this contention.

I do not think there is merit in this contention. While he was not called before the statement was tendered, he was called during this aspect of the trial. There is no dispute that he is a magistrate and that the statement was made before him. In fact he was cross-examined concerning how he took the statement and for alleged failure to F investigate more fully whether or not the appellant was in his sound and sober senses.

It was further contended that the learned Judge misdirected himself on the question of onus on the ground that the magistrate failed to ascertain and fully enquire whether the statement was being made freely and voluntarily because the onus was on the State to establish this G before there was any shifting of the onus.

It was further contended that because at the time he made this statement appellant was in detention such detention 'vitiated the voluntariness of a statement'. Indefinite detention in terms of s 47 of the Public Security Act 1977 can affect and influence an accused to make a statement which would not be made freely and voluntarily. There is H interrogation and isolation during such detention which could induce a detainee to either make a statement which is neither done freely and voluntarily nor in his sound and sober senses. Some of the effects upon a detainee can be apparent while others may consist of factors and consequences only known to or felt by the detainee himself and therefore it would be for the detainee to prove such results in his evidence on the subject. As it was held in S v Mpetha and Others (2) 1982 (2) SA 406 I (C) that if it appears from the document in which the confession is contained that such confession was made by a person (a) freely and voluntarily, and (b) in his sound and sober senses, and (c) without having been unduly influenced thereto, it is presumed, unless the contrary is proved, that such confession was made in the manner set out in (a), (b) and (c) above.

J Williamson J said:

1990 (2) SACR p284

Goldin JA

A 'Subject to one exception, the questions and answers, as well as the confession itself, read as a whole must at face value exclude any reasonable possibility of the prerequisites for admissibility not being satisfied.

The exception I refer to is the requirement that the person concerned be in his sound and sober senses. Here I do not think that any questioning is normally necessary. The magistrate will see and B judge for himself. In my view the formal recording by the magistrate that the person concerned is "found to be in sound and sober senses" would normally be sufficient unless it appears elsewhere in the contents of the document that there is some doubt as to the accuracy of this finding. To require more than this would in my view be somewhat unrealistic.'

See also S v Mbonane 1979 (3) SA 182 (T) and S v Dhlamini (supra).

C The magistrate described how first appellant was brought in handcuffs and he 'ordered these handcuffs to be removed'. Only the interpreter was present besides the magistrate and the appellant. The appellant 'appeared to be relaxed and comfortable'. He appreciated the significance and importance of a statement made by him because it could possibly affect a conviction. In reply to a question whether he had been D 'assaulted by any person or threatened by any person for purpose of making a statement' first appellant replied: 'No - except an assault after arrest and not for purposes of this confession.' He had been taken into custody on 29 December 1986 and this confession to the magistrate is dated 8 January 1987. He had thus been in custody for 10 days when he appeared before the magistrate. In his evidence this appellant denied that he was willing to make a statement to a magistrate and alleged that E he had been coerced to do so by the police and that he had asked the magistrate 'to protect' him from the police. This evidence was denied by the police witnesses and by the magistrate. The first appellant agreed that he had told the magistrate, and this is written down in his confession to the magistrate, that he had been assaulted after arrest 'but not for purposes of this confession'. He also asserted that he had said so because he did not want an investigating officer to know that he F 'was assaulted in order to make a statement'. The appellant said that he was not afraid to say that he had been assaulted as...