S v Nene and Others (2)

• Jurisdiction: South Africa
• Judge: Broome J
• Judgment Date: 10 November 1978
• Citation: 1979 (2) SA 521 (D)
• Hearing Date: 10 November 1978
• Court: Durban and Coast Local Division

Broome J:

Before me today are seven accused. Originally there were nine accused but charges were withdrawn against accused Nos 4 and 5. The B original numbering has been retained. So before me today I have accused Nos 1, 2, 3, 6, 7, 8 and 9. They have all pleaded not guilty to the charges of murder and robbery, offences which are alleged to have taken place at the same time at the Izwelihle Service Station, Umlazi, on Saturday, 3 June this year.

Accused Nos 2, 6 and 7 are alleged to have made confessions to C magistrates. The admissibility of these confessions is disputed. I sat alone, in what is generally known and described as a trial within a trial, to decide these issues of admissibility. Each of these confessions was made to a magistrate. Mr Theron, who appears with Mr Butler and who has been handling this part of the case, relied on the provisions of s 217 of D Act 51 of 1977 and simply handed them in. Mr Hill, who appears for accused Nos 2 and 6, contended that, as regards accused No 6, the requirements of the relevant section had not been fulfilled. I ruled against him.

Accused Nos 2, 6 and 7 each gave evidence to the effect that they were assaulted and intimidated and did not make the statement freely and voluntarily.

E Before I deal with the evidence, I must first consider the arguments advanced to the effect that in a case such as this the onus at the end of the day is still on the prosecution to prove beyond reasonable doubt that the statements were made freely and voluntarily by the accused in their sound and sober senses without being unduly influenced thereto. Section 217 reads:

"(1)

F 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 admissible as evidence against such person at criminal proceedings relating to such offence:

Provided

(a)

G that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in s 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; and

(b)

H that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question -

(i)

be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person; and

(ii)

be...