S v Ndzamela and Another

• Jurisdiction: South Africa
• Judge: Mitchell J
• Judgment Date: 01 June 1988
• Citation: 1989 (3) SA 361 (TkS)
• Hearing Date: 31 May 1988
• Court: Transkei Supreme Court

Mitchell J:

Mr Du Toit, who appears for the State, indicated that he intended tendering as evidence a statement made by accused No 1 to the magistrate at Bizana. Both Mr Kuny, who appears with Mr Moerane for D both accused, and Mr Du Toit, appear to regard such statement as amounting to a confession and were agreed that the provisions of s 222 of the Criminal Procedure Act 13 of 1983 apply to the question of whether or not such statement could be produced at all at this stage. The document which was handed in, or a copy of which was handed in, by consent, omitted, also by consent, the actual content of the statement E allegedly made by the accused to the magistrate. The rest of the document was handed in. It is in the usual roneoed form used for confessions. It is headed 'Confession Form' and has a reference number - Bizana CR179/4/86 and it reads as follows:

'On this 8th day of January 1987 and at Bizana in the district of F Bizana before me, E M Gulwa, magistrate of the said district, in the presence of Mr Ntwanambi, hereinafter called the interpreter, as interpreter, and no one else, appears Ndibulele Ndzamela, hereinafter called the declarant, apparently in his sound and sober senses, and after he was properly warned that he is not obliged at all to make any statement but that if he makes a statement it will be reduced to writing and can later be used as evidence against him, furnished the G following replies to the questions appearing below.'

Now I stop here to say that at the top of this form in capital letters, written apparently by the magistrate, appears the following: 'THE DECLARANT IN HANDCUFFS WHICH LEFT FAINT MARKS ON REMOVAL ON MY INSTRUCTION.' So that it would appear that he came to him in H handcuffs and he, the magistrate, ordered that such handcuffs be removed.

Then appears the following:

'Question: Do you understand the warning that I have just given you (which I have just read)?

Reply: Yes.

Question: I Do you nevertheless wish to make a statement?

Reply: Yes.

Question: Do you realise that you are now in the presense of a magistrate and that you have nothing to be afraid of and that you can speak frankly, freely and openly?

Reply: Yes.

Question: Have you been assaulted by any person or threatened by any J person for the purpose of influencing you to make a statement?

Mitchell J

Reply: A No, except an assault after arrest and not for purposes of this confession.

Question: Have you been encouraged by any person to make a statement?

Reply: No.

Question: Have any promises been made to you to induce you to make a statement?

Reply: No.

Question: B Do you expect any advantages if you make a statement?

Reply: No.

Question: Have you previously made a statement of the same nature and, if so, when and to whom?

Reply: Yes, to the police two days after my arrest.

Question: When were you taken into custody?

Reply: C 29 December 1986.'

Then the form continues:

'After the above questions were put to him, the defendant made the following statement freely and voluntarily, which statement was taken down in his presence and in his own words at the time the statement was made without any questions having been put to him, except questions that are necessary to clarify obscure and unintelligible D statements.'

Now in the body of his statement it is common cause that there appeared after the first sentence of that statement the words 'declarant talks in English' and this is signed by the magistrate and there appears what is not altogether legible, but there is a typewritten copy thereof - it is 'Magistrate' and signed by him and then witness - I will E come back to that:

'Statement was read back to declarant in English, the language in which it was made, and the declarant affirmed it by signing it. Mr Ntwanambi (the man referred to as the interpreter) was also present.'

There is also attached to it a certificate - a document F called certificate by interpreter - headed 'Certificate by Interpreter'. It says:

'In terms of s 225(1) of the Criminal Procedure Act 13 of 1983, I hereby certify that in the confession made in my presence by Ndibulele Ndzamela, I interpreted truly and correctly to the best of my ability with regard to the contents of the admissions and replies by him to G questions put by the magistrate from Xhosa to English and vice versa.'

And it is signed, and it is clear to me that the signature of the interpreter is the same signature as that which appears on the body of the document handed in, as witness after the declarant's signature, and the magistrate's signature.

H Now the relevant parts of s 222(1) of the Criminal Procedure Act 13 of 1983 in the Transkei read as follows:

'Evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be I admissible in evidence against such person at criminal proceedings relating to such offence provided....'

And the relevant provision thereafter is:

'(b)

(t)hat where the confession is made to a magistrate and reduced to writing by him, or...