S v Nyembe

• Jurisdiction: South Africa
• Judge: Wessels JA, Diemont JA and Cillié JA
• Judgment Date: 24 November 1981
• Citation: 1982 (1) SA 835 (A)
• Hearing Date: 02 November 1981
• Court: Appellate Division

S v Nyembe
1982 (1) SA 835 (A)

1982 (1) SA p835

Citation	1982 (1) SA 835 (A)
Court	Appellate Division
Judge	Wessels JA, Diemont JA and Cillié JA
Heard	November 2, 1981
Judgment	November 24, 1981

Flynote : Sleutelwoorde G

Criminal procedure — Trial — State case resting on confession to magistrate in terms of s 217 (1) of Act 51 of 1977 and admissions to police combined with pointings out — Accused denying either freely or voluntarily made — Onus on accused in respect of former and on State in respect of latter — Should be two separate 'mini-trials' — As a matter H of convenience both dealt with in same 'mini-trial' — By agreement accused leading evidence first — Such course might lead to error — Trial Judge however having avoided pitfalls — Question whether confession, once admitted, could be had regard to by Court in determining admissibility of statements made to police raised but not decided.

Criminal procedure — Evidence — Confession — Admissibility of — Confession to magistrate in terms of s 217 (1) of Acts 51 of 1977 — What constitutes — Document not specifically stating that 'freely and

1982 (1) SA p836

voluntarily' made or that deponent not 'unduly influenced thereto' — Mere statement that deponent 'apparently in his sound and A sober senses' — Necessary inference, however, from the introductory questions and answers contained in the confession that it had been both freely and voluntarily made and without being unduly influenced thereto — Onus therefore on accused to establish that this was not so in terms of s 217 (1) (b) (ii).

Headnote : Kopnota

B In an appeal against a conviction of robbery with aggravating circumstances it appeared that the State case had rested purely on a confession to a magistrate and certain pointings out accompanied by certain admissions made to a police captain. As to the confession, there was no express mention that it had been 'made freely and voluntarily', nor that the deponent had not been 'unduly influenced thereto', the C document merely stating that he was 'apparently in his sound and sober senses'. The appellant had denied that either the confession or the pointing out with its accompanying statement to the police had been freely and voluntarily made. The trial Judge had found that it was a necessary implication from the introductory questions and answers contained in the confession that it had been made both freely and voluntarily and without being unduly influenced thereto and accordingly D that it was a confession to a magistrate in terms of s 217 (1) (b) (i) of Act 51 of 1977 and admissible in evidence against the appellant in terms of ss (b) (ii) of the section unless the appellant was able to prove that it had not been freely and voluntarily made. Although the onus was thus on the appellant in relation to the confession and on the State in relation to the pointings out and accompanying statements and E there would have to be two separate trials within a trial, counsel had submitted that, as some of the witnesses would be involved in both enquiries, there should be only one trial within a trial, and that it would be convenient if the appellant led his evidence first and the State then led evidence in rebuttal. The trial Judge had adopted this procedure and held one 'mini-trial'.

Held, that, while this was a practical course for a trial Judge to adopt, it might lead to error.

F Held, further, however, that it was clear from the judgment that the Court a quo had been alert to the pitfalls inherent in the procedure adopted and had recognised that it was necessary to consider the admissibility of the confession separately.

Held, further, on an analysis of the evidence, that the appellant had failed to discharge the onus on him and that the confession had rightly G been admitted in evidence.

Held, further, that the State had discharged the onus on it of proving that the statement to the police had been freely and voluntarily made and that the trial Judge had rightly admitted the evidence of the pointing out as reliable and of strong probative value. Appeal dismissed.

H The question whether, once the confession had been admitted, the Court could have regarded it as a factor in determining the admissibility of the statement made to the police raised but not decided.

Case Information

Appeal against a conviction in the Witwatersrand Local Division (NESTADT J). Facts not material to this report had been omitted from the judgment of DIEMONT JA.

N Pandya for the appellant: As regards the confession made to the magistrate: The onus rested on the appellant, on a balance of probabilities, to show that he did not make it freely and voluntarily.

1982 (1) SA p837

Section 217 (1) (b) (ii) of Act 51 of 1977; Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 470. As regards the confession and pointing out the onus was on the State to prove that these were freely and A voluntarily made. Section 217 (1) (b) of Act 51 of 1977. Where the confession(s) is/are the only evidence implicating the appellant, great care and caution should be exercised in determining if it was freely and voluntarily made. S v Mkwanazi 1966 (1) SA at 746; S v Radebe 1968 (4) SA at 414. The mere fact that a confession has been admitted in evidence B does not necessarily mean that the deponent thereto must be convicted. In this regard the evidential weight to be attached to the confession still falls to be assessed and if the weight is negligible then it would be proper for the Court to pay no heed to the confession.

As to the evidence of pointing out, it is trite law that, where the guilt of the accused depends upon the inferences to be drawn from the established facts, a conviction would be improper unless it is C consistent with all the proved facts and incompatible with the innocence of the accused and, in fact, excludes all reasonable inferences other than the guilt of the accused. S v Khano and Others 1971 (1) SA at 344H - 345.

As regards any false evidence given by the appellant: The Appeal Court D has rejected the dictum falsum in uno falsum in omnibus. R v Gumede 1949 (3) SA at 756. As regards the approach to be adopted, see Maharaj v Parandaya 1939 NPD at 243; R v Du Plessis 1944 AD at 323; R v Nel 1937 CPD at 330.

As regards the confession to the magistrate, the appellant's version that he did not freely and voluntarily make the confession and that what E he told the magistrate had been told to him by the police, could reasonably possibly be true.

Miss T E Wait for the State: Die verklaring aan die landdros gemaak is tereg deur die Hof a quo as toelaatbaar bevind. S v Mkanzi 1979 (2) SA 757. Volgens beide die appellant en kaptein Viljoen het lg die appellant F na sy arrestasie met 'n verklaring deur Joel Letlatla gemaak, waarin hy die appellant inkrimineer, gekonfronteer. S v Zulu1965 (3) SA 802; S v Blanket 1978 (1) PH H17 te 25. Dit blyk dat hierdie aangeleentheid direk daartoe aanleiding gegee het dat die appellant homself bereidwillig verklaar het om sy verklaring aan 'n landdros te herhaal. Alhoewel die G appellant op daardie stadium reeds bewus was dat Joel Letlatla op vrye voet was, is dit nietemin waarskynlik dat hy geglo het dat alles verlore is en dat dit nie sou help om die misdaad te ontken nie. Sien ook S v Mahlala1967 (2) SA 401.

Die Hof a quo het tereg die tekortkominge in die Staatsaak en feiteomstandighede gunstig vir die appellant se weergawe in ag geneem. R H v Dhlumayo 1948 (2) SA 677. Wat die weersprekings in die Staatsaak betref, moet in gedagte gehou word dat die gebeure waaroor die polisie getuig het 'n paar maande...