S v Yawa and Another

• Jurisdiction: South Africa
• Judge: Nepgen J
• Judgment Date: 26 May 1994
• Citation: 1994 (2) SACR 709 (SE)
• Hearing Date: 16 May 1994
• Counsel: G J Cillier for accused No 1 at the request of the Court. K N Harvey for accused No 2 at the request of the Court G Buchler for the State
• Court: South Eastern Cape Local Division

Nepgen J:

During the course of the trial, Mr Buchler, who appears on behalf of the State, informed us that on 5 August 1993 accused No 1 pointed out certain places to a Captain Hickman of the South African H Police, that he wished to lead evidence of such pointings out, but that the defence disputed the admissibility of such evidence. We, therefore, proceeded to hear evidence on the issue of whether or not the evidence was admissible.

Before dealing with the evidence that was led in this regard, it is I necessary to record that it is common cause that the pointings out were in each instance accompanied by explanatory statements made by accused No 1. It is also common cause that these statements, taken as a whole, constitute a confession. Counsel were, therefore, in agreement that the pointings out and the accompanying explanatory statements were inseparable for purposes of the present enquiry. For the sake of convenience I shall J hereinafter refer to them collectively as 'the pointing out'. The

Nepgen J

A provisions of s 217(1) of Act 51 of 1977 are therefore applicable. This subsection provides that:

'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 B senses and without being unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence.'

Counsel were further in agreement that the onus rests upon the State to prove that the pointing out was done by accused No 1 freely and C voluntarily in his sound and sober senses and without having been unduly influenced thereto.

I propose to set out briefly the relevant facts which are not in dispute. Accused No 1 was arrested at his home in KwaNobuhle (also referred to as Tjoksville) during the early hours of the morning and while it was still D dark, on 5 August 1993. He was in fact woken up by the police when they arrived at his home. Accused No 1 estimated the time of his arrest as being 02:00, whereas Warrant-Officer Johnson, the investigating officer in the case, recorded in his pocketbook that the time of the arrest was 04:08. After his arrest accused No 1 was placed in a Ford Husky motor vehicle, which was being used by the police in the course of their E investigations. Thereafter further investigations were carried out, and eventually at about 06:00, the vehicle in which accused No 1 was a passenger arrived at Louis le Grange Square. Some time thereafter accused No 1 was taken to an office on the seventh floor of the building. In this office accused No 1 was questioned by one Dicker, who at the time was a F sergeant attached to the Murder and Robbery Squad, but who is no longer a member of the South African Police. During the course of the questioning of accused No 1, a Constable Oliphant acted as an interpreter. After Dicker had completed his questioning of accused No 1, he was taken to another office on the seventh floor of the building and handed over to G Captain Hickman. There Captain Hickman completed a form headed 'Uitwys Van Tonele' which was handed in as exh Q. It was placed on record that the defence makes no allegations of improper conduct on the part of Captain Hickman in recording the answers as reflected on exh Q, and that it was admitted by the defence that the questions, as they appear on exh Q, and H the answers given thereto, were correctly recorded in this document.

The relevant portion of exh Q reads as follows:

'2.

Om 09:40 op hierdie 5de dag van Augustus 1993 en te Kamer 714, Louis le Grange Plein, voor my Kaptain J C Hickman, vrederegter aangestel in die Republiek van Suid-Afrika, verskyn Khulile King George Jawa. Geslag: Manlik. Ouderdom: 23 jaar. Adres: 35 I Nkumastraat, Tjoksville, Uitenhage.

Volgens my by sy oënskynlike gesonde en volkome verstand. Die genoemde persoon is na my privaatkantoor No 714, Louis le Grange Plein gebring en in die kantoor is daar slegs ek, die tolk, Sers Jafta, wat van die Afrikaanse taal na Xhosa oorvertolk en J andersom, sowel as die genoemde persoon en niemand anders nie.

Nepgen J

A Ek toon aan hom my aanstellingsertifikaat en sy reaksie is as volg: Hy is tevrede.

3.

Die genoemde persoon word meegedeel dat hy in die teenwoordigheid van 'n vrederegter is wat 'n offisier in die Suid-Afrikaanse Polisie is. Hy word gewaarsku dat hy nie verplig is om enige B tonele en/of punte op die tonele uit te wys of om enigiets daaromtrent te sê nie. Die genoemde persoon word voorts gewaarsku dat, wat hy ookal uitwys of sê genoteer sal word, en foto's van die uitwysings geneem sal word wat later tydens 'n verhoor as getuienis aangebied mag word.

4.

C Hy word gevra of hy die waarskuwing wat nou aan hom gegee is verstaan en begryp. Sy antwoord daarop is soos volg: Hy verstaan dit.

5.

Hy word verder gevra of hy nog begerig is om uitwysings te doen en sy antwoord daarop is: Hy wil die uitwysings doen.

6.

Aangesien u steeds bereid is om voort te gaan met die uitwysings D wil ek net van u verneem waar u die kennis opgedoen het omtrent die beoogde uitwysings wat u wil gaan maak. Sy antwoord is as volg: Ek ken die plek want ek was daar gewees.

7.

Het u vantevore punte van dieselfde aard uitgewys? - Nee.

8.

Is u deur enige persoon aangerand, gedreig of beïnvloed om die E uitwysing te gaan doen? - Nee.

9.

Het u enige beserings of kneusings van welke aard ookal en indien dit vertoonbaar is, wys dit aan my. - Geen beserings.'

It is further noted in this form that Captain Hickman himself observed no injuries.

F After this portion of the form was completed, accused No 1 accompanied Captain Hickman to the scene of the crime where the pointing out was done. Once this had...