S v Sampson and Another

• Jurisdiction: South Africa
• Judge: Hoexter JA, Botha JA, Milne JA
• Judgment Date: 31 March 1989
• Citation: 1989 (3) SA 239 (A)
• Hearing Date: 21 March 1989
• Court: Appellate Division

Milne JA:

At about 1.30 pm on Friday, 17 June 1983, near the Edenmore Shopping Centre in Edenvale, a Mr Achamer was robbed of some R28 000 which he had drawn on behalf of his employers and which was in a black briefcase. The robbers initially used a Ford Cortina motor car, registration number BRL 081 T ('the Cortina') to get away from the scene. They then drove the Cortina to a car park on Tenth Avenue J in Edenvale. There they

Milne JA

A hurriedly transferred themselves and their loot to a blue and white Mercedes motor car ('the blue Mercedes'). Unbeknown to them, an alert and intelligent member of the public, Mrs Denise Brown, had observed this transfer and, concluding that a robbery had taken place, she made a note of the registration number of the blue Mercedes and gave it to B the police. The police found that it was registered in the name of one Geyser Mostert and found it in his possession later that night. This led to Mostert and a number of others being charged in the regional court with the robbery, the theft of the Cortina and another charge which is not relevant to this appeal. A number of the accused were found guilty C of the robbery and the theft. Amongst them were accused Nos 4 and 9. They appealed against their convictions and sentences to the Transvaal Provincial Division but the appeals were dismissed. With leave of that Court they appealed to this Court against their convictions.

During the trial the regional magistrate admitted the confessions which the appellants had made to a magistrate. For the sake D of convenience the two appellants were referred to as accused Nos 4 and 9 during the appeal in the Transvaal Provincial Division and in this Court and I shall continue to refer to them in that fashion when it is necessary to deal with them separately. After the confessions had been admitted a 'warning statement' made by accused No 9 was also admitted. It was common cause, both in the Transvaal Provincial Division and before us, that:

(a)

E the correctness or otherwise of the convictions depended on whether the confessions were rightly admitted by the trial court; and

(b)

in terms of s 217(1)(b) (ii) of the Criminal Procedure Act 51 of 1977 the onus of proving that the confessions were not made F freely and voluntarily and without the maker having been unduly influenced thereto lay upon the appellants.

The relevant factual background is set out in great detail in the judgment of the regional magistrate and accurately summarised in the judgment of Schabort J (with whom Van Zyl J concurred). I accordingly do not propose to repeat the facts save to the extent necessary to G provide the setting for a proper consideration of the points argued in the appeal.

At the outset I should mention that it is common cause that, at about the time when the robbery was being committed, accused Nos 4, 5 and 9 were together in a green Mercedes-Benz motor car in Voortrekker H Avenue, Edenvale, a few blocks away from where the robbery was being committed. They were twice stopped and questioned by the police but, nothing untoward having been discovered, they were allowed to go free. The significance of these events will appear later.

As already mentioned, Geyser Mostert, who later became accused No 10, was found in possession of the blue Mercedes late on the night of I 17 June. Accused No 10 gave information to the police and took them to accused No 2. Accused No 2, in turn, pointed out accused No 9 to the police. This was at about 5 am on Saturday, 18 June. Accused No 9 denied all knowledge of the robbery. About 30 minutes later he pointed out accused No 4 to the police. According to the evidence of accused No 4, when he was pointed out by accused No 9 he, accused No 4, told the J police that accused No 9 had given money to his lover Elizabeth Julius and

Milne JA

A accused No 9 did not deny this. Accused No 2 thereafter pointed out accused Nos 1, 3, 8 and 7 and one Cyril Brown. At about 11 am on the day of his arrest accused No 4 made the so-called 'warning statement'. On the evening of Sunday, 19 June, the appellants and other persons who had been arrested in connection with the robbery were questioned by the police and it appears that a substantial part of the Sunday night B was taken up with the police travelling to various places with the two appellants and other suspects. At 9.35 am on Monday, 20 June, accused No 9 made his confession to a magistrate and some three hours later accused No 4 made his confession to a magistrate. On the afternoon of the following day, that is to say, Tuesday, 21 June, all the accused C were taken to the district surgeon, Dr Chaplin, for medical...