S v Nzama and Another

JurisdictionSouth Africa
Citation2009 (2) SACR 326 (KZP)

S v Nzama and Another
2009 (2) SACR 326 (KZP)

2009 (2) SACR p326


Citation

2009 (2) SACR 326 (KZP)

Case No

AR 480/2007

Court

KwaZulu-Natal High Court, Pietermaritzburg

Judge

Levinsohn DJP, Kruger J and Wallis J

Heard

February 23, 2009

Judgment

April 2, 2009

Counsel

Z Anastasiou for the first appellant, instructed by the Legal Aid Board, Pietermaritzburg.
A Khan for the second appellant.
ME Mthembu for the State.

Flynote : Sleutelwoorde

H Evidence — Confession — Admissibility of — Confession made to police officer — Officer and interpreters both members of same unit as investigating officer — Other police officers present in room — Undesirability of taking statement in presence of investigating officer and other police officers manifest — Such environment possibly inhibiting accused from mentioning inducements or misconduct to person taking confession — However, where I evidence of improper inducement lacking or not credible, no authority for holding that undesirable environmental features on their own constituting sufficient basis for reasonable doubt as to whether or not confession freely and voluntarily made.

Evidence — Confession — Admissibility of — Confession made to police officer J — Not correct to suggest that it was per se irregular for confession to

2009 (2) SACR p327

be taken by member of same unit as investigating officer — Statutory A authority for certain police officers to take confessions — Not open to courts to remove that right.

Headnote : Kopnota

The two appellants were convicted of housebreaking with intent to rob and robbery with aggravating circumstances, and of murder. Their convictions B rested largely on confessions they had both made to a police officer and, on appeal before a full bench, it was accepted that the convictions would stand if it were determined that these confessions had been correctly admitted; equally, if the confessions were found to have been inadmissible, their convictions and sentences would have to be set aside. Both confessions had been taken by a police captain, H, of the Serious and Violent Crimes Unit, and two inspectors of the same unit had acted as interpreters. The C investigating officer was a member of the same unit. It was argued on behalf of the appellants that the confessions should not have been admitted because of the environment in which they had been taken. Reliance was placed on the facts that the investigating officer was a subordinate of H, and that certain other police officers, including the investigating officer, might D have been in the room at the time the confessions were taken. It was accordingly contended that it could not be safely concluded that the confessions had been freely and voluntarily made; the environment must inevitably have operated upon the minds of the accused as a threat or inducement to confess.

Held (per Wallis J, Levinsohn DJP concurring), that the undesirability of taking E a statement in the presence of the investigating officer and other police officers was manifest. This was an environment that could provide fertile soil in which the accused could plant a seed of suspicion regarding the police's behaviour in obtaining the confession. Such an environment might also inhibit the accused from speaking his or her mind, or from telling the person recording the confession about any misconduct or inducements that F had been employed in order to compel the confession. However, it was necessary for the accused to sow the seed of suspicion, for example, by testifying credibly that prior to making the confession he had been assaulted or threatened or subjected to improper inducements. In such a case the fertile soil afforded by the environment in which the confession was taken might allow that seed to grow to the point where it might reasonably be G doubted that the confession had been freely and voluntarily made. But where evidence of improper inducement was lacking or was not credible, there was no authority for holding that undesirable environmental features on their own constituted a sufficient basis for reasonable doubt as to whether or not the confession had been freely and voluntarily made. In particular, the suggestion that it was per se irregular for a confession to be H taken by a police officer who was a member of the same unit as the investigating officer had been rejected by the courts. There was statutory authority for certain police officers to take confessions and it was not open to the courts, under the guise of assessing the free and voluntary nature of such confessions, to remove that right. (Paragraphs [28]–[30] at 338g–340c.)

Held, further, that it had been in principle undesirable both for the appellants to I have been taken to H for their confessions to be recorded, and for two other officers of the unit to have acted as interpreters. Furthermore, it was possible that the circumstances in the room where the confessions had been taken were not ideal, in that other police officers may have entered and exited the room, and the investigating officer may have been at his desk elsewhere in the room for some of the time. However, neither appellant had J

2009 (2) SACR p328

A claimed that any of these factors had operated on their minds as an inducement to make a confession, or as an implied threat detracting from the voluntariness of the confessions. Rather, both had claimed to have been assaulted or threatened and told what to say prior to making their confessions. These claims were clearly untenable and had been rightly rejected by the trial court. In the circumstances, the decision of the trial B court to admit the confessions could not be faulted. (Paragraph [32] at 340f–i.)

Appeals dismissed. Convictions and sentences confirmed.

Annotations:

Cases cited

Reported cases

R v Gumede and Another 1942 AD 398: referred to C

S v Brown en 'n Ander 1996 (2) SACR 49 (NC) (1996 (11) BCLR 1480): referred to

S v Dhlamini and Another 1971 (1) SA 807 (A): followed

S v Dlamini 1973 (1) SA 144 (A): referred to

S v Khoza en Andere 1984 (1) SA 57 (A): referred to D

S v Latha and Another 1994 (1) SACR 447 (A): referred to

S v M 1963 (1) PH H88: referred to

S v Mafuya and Others (1) 1992 (2) SACR 370 (W): referred to

S v Mahlabane 1990 (2) SACR 558 (A): referred to

S v Mathebula and Another 1997 (1) SACR 10 (W) (1997 (1) BCLR 123): referred to E

S v Mavela 1990 (1) SACR 582 (A): referred to

S v Mazibuko and Others 1978 (4) SA 563 (A): dictum at 568E-H applied

S v Mbatha en Andere 1987 (2) SA 272 (A): referred to

S v Mbele 1981 (2) SA 738 (A): referred to

S v Mdluli and Others 1972 (2) SA 839 (A): referred to F

S v Mgcina 2007 (1) SACR 82 (T): referred to

S v Mofokeng and Another 1968 (4) SA 852 (W): referred to

S v Mokoena and Others 2006 (1) SACR 29 (W): referred to

S v Mphalele and Another 1982 (4) SA 505 (A): referred to

S v Mvelase 1997 (2) SACR 445 (N): referred to

S v Nene and Others 1979 (2) SA 521 (D): referred to G

S v Zulu and Another 1998 (1) SACR 7 (SCA): referred to

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to.

Case Information

H Appeal against a conviction handed down by the Durban and Coast Local Division (Maharaj AJ). The facts appear from the judgment of Wallis J, in which Levinsohn DJP concurred. Kruger J delivered a dissenting judgment.

Z Anastasiou for the first appellant, instructed by the Legal Aid Board, Pietermaritzburg.

A Khan for the second appellant. I

ME Mthembu for the State.

Cur adv vult.

Postea (April 2). J

2009 (2) SACR p329

Judgment

Wallis J:

[1] The outcome of these appeals against the conviction of the two appellants on charges of housebreaking with intent to rob and robbery with aggravating circumstances and murder depends upon the admissibility of confessions taken from the appellants by Captain Hodgett. There was one further submission addressed to us, albeit somewhat B faintly, on behalf of the second appellant in regard to the murder charge, but it was, in my view, without substance and I will deal with it briefly at a later stage in this judgment. Apart from that point it is plain that the convictions and sentences of the appellants must stand if the confessions are admissible and equally plain that their convictions and sentences must be set aside if the confessions are not admissible. C

[2] It is appropriate at the outset to state three principles governing the present enquiry that, although trite, are nevertheless fundamental. The first is that the onus rests upon the prosecution to prove beyond reasonable doubt that the confessions were made freely and voluntarily D by the appellants whilst in their sound and sober senses and without having been unduly influenced thereto. [1] Secondly, in considering whether the prosecution has discharged the onus of proof resting upon it the court has regard to all the evidence led before, that is, not only the evidence of the persons concerned in the taking of the confessions, but E also the evidence of the circumstances in which the confessions were taken and such evidence as may be advanced by or on behalf of the accused. It will be aware that the absence of other evidence implicating the accused may tempt those investigating the crime to establish a case by procuring a confession, and this can lead to the adoption of improper means. Thirdly, the mere fact that an accused's evidence during the F course of a trial-within-a-trial concerning the admissibility of a confession is rejected, does not mean that the prosecution has necessarily discharged the onus resting upon it, although its task may be substantially enhanced thereby.

[3] Whilst the onus of proving the admissibility of a confession rests G upon the prosecution, that onus ordinarily falls to be discharged in the...

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3 practice notes
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...280-281, 286S v Nyathi 2005 2 SACR 273 (SCA) ...................................................... 137S v Nzama and Anotherr 2009 2 SACR 326 (KZP) ............................... 470S v Oktober 2009 1 SACR 291 (C) ........................................................ 278S v Owies and An......
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...437S v Nzama and Another 1997 (1) SACR 542 (D) ........................................ 366S v Nzama and Another 2009 (2) SACR 326 (KZP) ............................. 151-155S v Nzo 1990 (3) SA 1 (A) ............................................................................ 124S v Odugo 2......
  • S v Ngcobo
    • South Africa
    • KwaZulu-Natal Division, Pietermaritzburg
    • 18 March 2016
    ...and the deceased had finished watching 'Generations'. [12] S v Dhlamini and another 1971 (1) SA 807 (A) at 815A–C. [13] S v Nzama 2009 (2) SACR 326 (KZP). [14] 2009 (2) SACR 326 (KZP) para [15] See footnote 12 of this judgment. [16] 1958(2) SA 562 E. [17] See para 6 of S v Nzama fn 14. [18]......
1 cases
  • S v Ngcobo
    • South Africa
    • KwaZulu-Natal Division, Pietermaritzburg
    • 18 March 2016
    ...and the deceased had finished watching 'Generations'. [12] S v Dhlamini and another 1971 (1) SA 807 (A) at 815A–C. [13] S v Nzama 2009 (2) SACR 326 (KZP). [14] 2009 (2) SACR 326 (KZP) para [15] See footnote 12 of this judgment. [16] 1958(2) SA 562 E. [17] See para 6 of S v Nzama fn 14. [18]......
2 books & journal articles
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...280-281, 286S v Nyathi 2005 2 SACR 273 (SCA) ...................................................... 137S v Nzama and Anotherr 2009 2 SACR 326 (KZP) ............................... 470S v Oktober 2009 1 SACR 291 (C) ........................................................ 278S v Owies and An......
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...437S v Nzama and Another 1997 (1) SACR 542 (D) ........................................ 366S v Nzama and Another 2009 (2) SACR 326 (KZP) ............................. 151-155S v Nzo 1990 (3) SA 1 (A) ............................................................................ 124S v Odugo 2......

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