S v De Vries

• Jurisdiction: South Africa
• Judgment Date: 28 September 1988
• Citation: 1989 (1) SA 228 (A)

S v De Vries
1989 (1) SA 228 (A)

1989 (1) SA p228

Citation	1989 (1) SA 228 (A)
Court	Appellate Division
Judge	Joubert JA, Hoexter JA, Nicholas AJA
Heard	September 22, 1988
Judgment	September 28, 1988

Flynote : Sleutelwoorde B

Criminal procedure — Evidence — Confession — Admissibility of — Such clearly raised — Right of accused to have such question tried as a separate and distinct issue — Accused not to be exposed to a C general cross-examination on the issue of his guilt — Prosecution may not, as part of its case on main issue, lead evidence regarding accused's testimony at trial within a trial — Such testimony must also be disregarded when trier of fact comes to consider issue of guilt — Irregularity in this respect committed by trial court — Duty of the Court of appeal in regard thereto. D

Headnote : Kopnota

Where the question of admissibility of a confession is clearly raised, an accused person has the right to have that question tried as a separate and distinct issue. At such trial, the accused can go into the witness-box on the issue of voluntariness without being exposed to general cross-examination on the issue of his guilt. The prosecution may not, as part of its case on the main issue, lead evidence regarding the testimony given by the defendant at the trial within the E trial. Similarly, in a case where the trier of admissibility is also the trier of guilt (eg a magistrate or a Judge sitting without assessors), evidence given by an accused person in the trial within the trial must be disregarded when the issue of guilt comes to be considered. F

Where an irregularity in this respect has occurred in the trial court, what the Court of appeal has to do is to decide whether, on the evidence and on the findings of credibility unaffected by the irregularity or defect, there was proof of guilt beyond a reasonable doubt.

Case Information

Appeal from a decision in the Natal Provincial Division (Leon J and Didcott J) dismissing an appeal against a conviction in a magistrate's court. The facts appear from the judgment of Nicholas AJA.

G D A J Uijs for the appellant referred to the following authorities: S v Lebone 1965 (2) SA 837 (A) at 842; R v Dunga 1934 AD 221 at 226, 227; R v Meer and Others 1958 (1) SA 243 (N) at 244E - G; S v Talane 1986 (3) SA 196 (A) at 205E - I; S v Gaba 1985 (4) SA 734 (A); S v Anthony 1981 (1) SA 1089 (A) at 1096B; R v Blom 1939 AD 188.

C C W Engelbrecht for the State referred to the following authorities: H Criminal Procedure Act 51 of 1977 s 217; R v Dunga 1934 AD 221 at 226 - 7; R v Meer and Others 1958 (1) SA 243 (N) at 244E - H, 245A; S v Anthony 1981 (1) SA 1089 (A) at 1096B - C.

Cur adv vult.

Postea (September 28). I

Judgment

Nicholas AJA:

Over the period between October 1984 and February 1985 three men were tried together in the Durban magistrate's court: Fuad de Vries, aged 48 years, as accused No 1; Ebrahiem Mayman, aged 40 years, as accused No 2; and Leon Jaftha, aged 22 years, as accused No 3. J The main charge against them was dealing in a prohibited

1989 (1) SA p229

Nicholas AJA

A dependence-producing drug (methaqualone) contained in 9 860 Mandrax tablets in contravention of s 2(a) of Act 41 of 1971. Each pleaded not guilty, but was found guilty. De Vries and Mayman were each sentenced to seven years' imprisonment, and Jaftha to imprisonment for five years. De Vries and Jaftha appealed to the Natal Provincial Division against B their convictions and sentences, and Mayman appealed against sentence only. At the hearing of the appeal on 11 December 1986, Jaftha failed to appear and his appeal was struck off the roll. The Court (Leon J, with whom Didcott J concurred) dismissed the appeals of De Vries and Mayman. With the leave of the Court a quo, De Vries now appeals to this Court C against his conviction.

The main witness for the State was Detective Warrant Officer J C Engelbrecht of the South African Narcotics Bureau (SANAB) in Cape Town, who, together with other policemen, had one or more of the accused under surveillance in Cape Town and Durban on various dates during February 1981. In summary, the police evidence was this. D

At about 5 pm on 7 February 1981, Mayman and Jaftha took off in an aircraft bound for Durban from D F Malan Airport in Cape Town. The counterparts of their air-tickets showed that they were booked to travel on to Mauritius and Bombay.

E At about 3 pm on 15 February 1981, De Vries left D F Malan Airport on a flight to Durban. Upon his arrival at the Louis Botha Airport in Durban at 5.45 pm he claimed his suitcase and then wandered aimlessly about the entrance hall of the terminal building until 8.25 pm when the flight from Mauritius landed. De Vries walked to the foreign arrivals hall. It was clear to the man who had him under observation that he F was waiting for someone, but he did not make contact. At 9.05 pm he left the terminal building and departed by taxi. On the following morning, 16 February, he returned to the airport and took the 9.05 am flight to Cape Town.

At about 5 pm on 22 February 1981, De Vries arrived at the Louis Botha Airport in a Chevrolet motor car CA 240235, which was parked in G the parking area. The driver was Joseph Hercules. The flight from Mauritius landed and Mayman and Jaftha, who was carrying a large brown suitcase, disembarked. They were met by De Vries and together the three of them walked to the Chevrolet motor car. The luggage carried by Mayman and Jaftha was placed in the boot, and the car drove off. It was followed by Engelbrecht and other policemen in a police car. In a street H in Berea the Chevrolet drew up outside the house of Hercules. The occupants got out. The police surrounded the car, and arrested the three accused and seized the luggage. They were all taken to the offices of SANAB in Durban.

There the luggage was searched and the brown suitcase, which had I been carried by Jaftha, was found to contain 9 860 Mandrax tablets. At about midnight, Engelbrecht sent a detective to fetch De Vries's wife, Aza de Vries, who was at Hercules's house, and she was also detained. After questioning, the four suspects were locked up at various police stations in Durban. On 24 February they flew to Cape Town. Again they J were taken variously to different police stations. On 25 February, each of the three

1989 (1) SA p230

Nicholas AJA

A men made a statement before a magistrate, Mr Schrock, at the Cape Town magistrate's court. Mrs De Vries was released on the morning of 25 February.

When De Vries's statement was tendered in evidence at the trial its admissibility was challenged. His attorney informed the court that it had been made by De Vries as a result of threats made regarding his B own person and that of his wife, Aza de Vries, by Engelbrecht. This issue was accordingly tried in a trial within the trial, and evidence was given by De Vries and his wife Aza, and by Engelbrecht for the State.

In the course of his evidence in chief, De Vries described the circumstances leading up to his arrest and detention on 22 February, C and his transfer to Cape Town on 24 February. He said that Engelbrecht told him in Cape Town on 25 February that if he did not come out with the truth he and his wife would be detained under s 13 of the Act, and D that they would...