S v Qhinga

• Jurisdiction: South Africa
• Judge: Dhlodhlo ADJP
• Judgment Date: 28 January 2008
• Citation: 2008 JDR 0421 (Ck)
• Docket Number: CC35/2007
• Court: Ciskei High Court

Dhlodhlo ADJP:

1.

In this case the second accused Lungile Jamiso, a male person whose age is shown as 38 years, is one of the seven accused. They are charged with four counts of robbery with aggravating circumstances, two counts of attempted murder, two counts of contravening section 3 read with subsection 1, 103, 117, 120(1)(a) and section 121 read with schedule 4 of the Firearms Control Act 60 of 2000 and further read with section 250 of the Criminal Procedure Act 51 of 1977 (unlawful possession of a firearm) and two counts of contravening section 90 read with the schedule 4 of the Firearms Control Act 60 of 2000 and further read with section 250 of the Criminal Procedure Act (Unlawful possession of ammunition).

2.

The State intends to introduce evidence of a statement which the second accused Jamiso is alleged to have made before a Magistrate at Ngqamakwe on 22 August 2006. Jamiso opposes the introduction of this evidence. The reason is given as that, while it is not denied that the statement was made, it is contended that it was not made freely and voluntarily as Jamiso had been assaulted and threatened by the police and had been unduly influenced before he made the statement.

3.

The allegations of assault, threats and undue influence are briefly as follows:

2008 JDR 0421 p3

Dhlodhlo ADJP

Shortly after his arrest on 21 August 2006 Jamiso was taken to the offices of Serious Violent Crimes unit at a place known as Group 8 at Westbank in East London. There four police officers tortured him by suffocating him until he admitted that he knew something about an armed robbery which is alleged to have been committed at Nxarhuni (Newlands) outside East London. It is alleged that police officer Inspector Mzwandile Fose witnessed the torture and the suffocation. Jamiso was subsequently taken to Superintendent Bongani Maqashalala before whom he made a statement. Superintendent Maqashalala informed him that he would make a statement before a Magistrate at Ngqamakwe and warned him that if he did not repeat the statement before the Magistrate he (Maqashalala) would know about it and would cause him to rot in jail. Jamiso said that Inspector Foslara was always present in Maqashalala's office. While Jamiso was being accompanied by a police officer, namely Inspector Thobela Haward Tose, travelling in a motor vehicle between Butterworth and Ngqamakwe, Inspector Tose read from a paper what Superintendent Maqashalala had told Jamiso to say before a Magistrate in order to remind him (Jamiso). It is further alleged by Jamiso that Maqashalala promised him that if he...