S v Qhinga
| Jurisdiction | South Africa |
| Judge | Dhlodhlo ADJP |
| Judgment Date | 10 September 2008 |
| Citation | 2008 JDR 1297 (Ck) |
| Docket Number | CC35/2007 |
| Court | Ciskei High Court |
Dhlodhlo ADJP:
In this case the fourth accused Mncedisi Titshala, hereinafter referred to as Titshala. He is a male person whose age is shown as 33 years. He is one of the seven accused in this case. They are charged with four counts of robbery with aggravating circumstances, two counts of attempted murder, two counts of contravening s3 read with ss1, 103, 117, 120(1)(a), read with schedule 4 of the Firearms Control Act [1] , and further read with s250 of the Criminal Procedure Act [2] (unlawful possession of a firearm) and two counts of contravening s90 read with the schedule 4 of the Firearms Control Act [3] , further read with s250 of the Criminal Procedure Act (Unlawful possession of ammunition).
The State intends to introduce evidence of a statement which Titshala is alleged to have made before police Captain Tommie Jafta on 22 August 2006. Titshala opposes the introduction of this evidence. The reason given is that, while it is not denied that the statement was made, it was not made freely and voluntarily and that he was unduly influenced by threats and promises which had been made to him before he made the statement. These are the reasons which were given
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at the commencement of the inquiry. No details of the alleged threats and undue influence were given that stage. The Court is called upon to rule whether or not the said statement is admissible in evidence.
According to the 'Confession of Suspect' form marked 'exhibit DD' which Captain Jafta completed, Titshala who had indicated that he was "comfortable to speak to you in English and had no problems" was informed that he was in the presence of a police officer who was as such, a Justice of the Peace. He was further informed that he had nothing to fear and that he could therefore speak freely and that, if necessary, protection against any irregularity could be provided for him. Titshala was further warned that he was not compelled to make any statement whatsoever, and that, should he make one, it would be written down and might be used as evidence.
According to the form, Titshala was further informed of his rights as contained in s35 of the Constitution of the Republic of South Africa Act. [4] His response was that he understood the warning and that he still wished to make a statement. Captain Jafta then proceeded to ask certain questions.
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I deem it necessary for reasons which will be apparent later, to refer to some of the questions and answers thereto:
Have you been assaulted or threatened by any person in order to influence you to come and make this statement?
Answer: No.
Were you in any influenced or encouraged by any person to make a statement?
Answer: Yes, the police asked me to make a statement and I made it but even if they did not said (sic) I must make it I will still tell them my role in the incident.
Have any promises been made to you (by) any person if you should make a statement?
Answer: Yes
If so, what are the promises?
Answer: If I talk the truth I may be out of it if I explain what happen.(sic)
To what extent, if at all, did these promises lead to your decision to make a statement?
Answer: I was going to tell them the truth any way without them promise (sic) me to be out.
Do you expect any benefits if you make a statement?
Answer: No
If so, what benefits?
Answer: N/A
To what extent, if at all, did the fact that you expect benefits influence you to make a statement?
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Answer: NONE
Have you at any time in the past made a statement, whether orally or in writing, to any person concerning this incident?
Answer: N/A
When were you arrested?
Answer: Yesterday 21/08/2006 at about 12h00."
Before the statement was made Captain Jafta observed that Titshala looked relaxed and calm and that he (Titshala) was at ease when he was talking to him. Responding to the question whether he was at that moment, under the influence of any liquor and / or drugs, Titshala answered in the negative. Captain Jafta observed that Titshala was in his sober senses. As it appeared to Captain Jafta that Titshala was in his sound and sober senses, had not been unduly influenced thereto and that he freely and voluntarily wished to make a statement, he informed Titshala that he may then proceed.
Captain Jafta told the Court that after he had taken the statement, he read it back to Titshala and then asked him whether he was satisfied that, that which he had stated had been noted down correctly, to which Titshala answered in the affirmative. He was further asked whether he had any complaints as to the manner in which Captain Jafta had taken down the statement. Titshala answered in the negative.
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Captain Jafta said that, since Titshala had indicated that he was 'comfortable to speak to you in English . . .' a police officer who would have been used as an interpreter was released.
On every page of the 'Confession of Suspect' form appears Titshala's thumb print and his signature.
Captain Jafta is a detective in Grahamstown. He took the statement from Titshala at the old army base in East London popularly known as Group 8. It will hereinafter be referred to as such. Captain Jafta was requested by Superintendent Maqashalala to travel from Grahamstown to Group 8 to obtain the statement. He said that he was not part of the investigators of the case and that he did not know the facts of the case.
On his arrival at Group 8 on 22 August 2006 he was shown an office which he would occupy while he was there on that afternoon. He said that Titshala was brought to him in that office by Sergeant Ngambu. Ngambu told the Court that he was then a member of what is known as the National Intervention Unit. Members of his group were based at
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Mthatha but they would work at different parts of the Eastern Cape Province. Their role was to assist investigators of some criminal cases in arresting suspects who were believed to be dangerous. Ngambu admitted that he was involved in the arrest of accused two and three in this case but denied that he was present when Titshala was arrested. He said that he in no way influenced Titshala to make a statement to Captain Jafta.
Captain Jafta said that, had it appeared to him that Titshala had been unduly influenced to make a statement and that he was unwilling to make it, he would not have obtained the statement from him. He said that on the whole it was clear to him that even if the police had asked Titshala to make a statement, he made it freely and voluntarily. Captain Jafta said that his home language is Afrikaans. He also...
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