S v Qhinga

• Jurisdiction: South Africa
• Judge: Dhlodhlo ADJP
• Judgment Date: 10 November 2008
• Citation: 2009 JDR 0001 (Ck)
• Docket Number: CC35/2007
• Court: Ciskei High Court

Dhlodhlo ADJP:

1.

In this case the fifth accused Luvuyo Mcaphukisi, hereinafter referred to as Mcaphukisi, a male person whose age is shown as 34 years, 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] , 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).

2.

The State intends to introduce evidence of a pointing out alleged to have been made by Mcaphukisi at Newlands near East London on 23 August 2006 before Captain Frederick Johannes Kotze. Mcaphukisi objects to the introduction of the evidence on the following grounds:

"(1)

The constitutional rights of accused No. 5 were not explained.

2009 JDR 0001 p3

Dhlodhlo ADJP

(2)

He was denied his legal right to legal representation despite his specific request.

(3)

Promises were made to him by Inspector Fose in particular that if he co-operated and made a pointing out of a place which he had no knowledge of, it would be arranged that police officers would show him the place – if he did this he would be used as a State witness and testify against the accused.

(4)

He felt threatened because on the day of his arrest – the day preceding the pointing out, he was assaulted by Inspector Fose with an open hand at Cambridge police station. He felt that he had an obligation to involuntarily comply with instructions given to him.

(5)

Finally he was threatened by Inspector Webb with assault if he failed to do as instructed. An example was made of a thorny tree which would be used to assault him if he failed to co-operate. (There was undue influence – he was shown what to point out – he did not do it voluntarily. A police officer known as Sityoshwana was organised to show him)"

2009 JDR 0001 p4

Dhlodhlo ADJP

3.

Section 218 of the Criminal Procedure Act [4] provides:

"218 Admissibility of facts discovered by means of inadmissible confession

(1)

Evidence may be admitted at criminal proceedings of any fact otherwise admissible in evidence, notwithstanding that the witness who gives evidence of such fact, discovered such fact, or obtained knowledge of such fact only in consequence of information given by an accused appearing at such proceedings in any confession of statement which by law is not admissible in evidence against such accused at such proceedings, and notwithstanding that the fact was discovered or came to the knowledge of such witness against the wish or will of such accused.

(2)

Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by such accused, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against such accused at such proceedings."

4.

At this stage it is uncertain whether the alleged pointing out was accompanied by statements. Statements could constitute a confession or admissions. Section 217(1) of the Criminal Procedure Act [5] provides:

2009 JDR 0001 p5

Dhlodhlo ADJP

"(1)

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 in evidence against such person at criminal proceedings relating to such offence . . ."

5.

Mcaphukisi was arrested at his place of employment at Morningside in East London on 21 August 2006. He was arrested by Inspector Robert Allan Webb who was in the company of Sergeant Foslara...