S v Yengeni and Others (3)

• Jurisdiction: South Africa
• Judge: Selikowitz J
• Judgment Date: 10 December 1990
• Citation: 1991 (1) SACR 387 (C)
• Hearing Date: 10 December 1990
• Counsel: H G Klem SC (with him J van Vuuren and S Swart) for the State D P de Villiers QC (with him M Donen and J H de Lange) for the accused
• Court: Cape Provincial Division

Selikowitz J:

Ms Schreiner is one of six accused who are arraigned before this Court on charges of terrorism. As part of its case, the State has tendered a confession made by Ms Schreiner to a magistrate on 25 January 1988. Ms Schreiner contests the admissibility of her confession. She denies that her statement to the magistrate was made D either freely and voluntarily or without undue influence. The admissibility of the confession is at present being decided in a trial within a trial. As I have not excluded my assessors as provided for in s 145(4)(a) of the Criminal Procedure Act 51 of 1977, they form part of the Court hearing the trial within the trial.

Ms Schreiner is at present giving evidence in the trial within the E trial. She has told the Court that she made her confession to the magistrate whilst she was in detention in terms of s 29 of the Internal Security Act 74 of 1982. She says that her decision to make a statement to the magistrate was not taken freely nor voluntarily, but as a result of the effects upon her of her detention, which had by that time lasted for a period exceeding four months. She was specifically influenced in her decision by her fear that she would again be interrogated by a F certain Lieutenant Mostert. She has explained that he had manhandled and assaulted her during interrogation sessions at the beginning of December 1987. At that time he had threatened her with further violence, including, as she understood him, with rape. The return of Lieutenant Mostert became the subject of subsequent threats aimed at encouraging Ms Schreiner to comply with the requests that she furnish information to the security police. She says that she was also induced to make her G statement to the magistrate by threats that, if she did not do so, her detention would be extended, but that if she did, there would be a speedy end to her detention as well as an immediate improvement in her amenities.

During her evidence-in-chief, Ms Schreiner testified that she had not intended to answer any questions nor make any statements to the police, H but that circumstances led her to 'make concessions' and 'compromise'. Asked by her counsel to explain, she said:

'Well initially, after being manhandled and threatened by Mostert, I answered questions. In January, after being threatened that if I didn't write an autobiographical statement, that I would be handed over to Mostert, I proceeded to do that, and then on 20 January, a week after being threatened by security police, and with the threat of I extension of s 29 and further interrogation if I didn't make a statement to a magistrate, I went ahead and made a statement to a magistrate.'

Dealing in more detail with the factors which played a role in her 'compromise', Ms Schreiner referred to her arrest at her flat during the early hours of the morning of 17 September 1987. She was asked to tell J the Court what in particular affected her during her arrest. She replied:

Selikowitz J

A 'Firstly, the fact that the arrest took place at that time of the morning, at a time where one is in one's deep sleep, and as a result of that is completely disorientated, combined with the way in which the squad of security men with automatic weapons swarmed into that flat and took over the entire flat. The effect of that was to make me scared, to make me disorientated and to make me very angry. The manner B in which the flat was searched, the way things were upturned, clothes were dumped on the floor, the railing of the wardrobe was broken, made me realise that I was dealing with people who had no respect for people or for people's property.'

Ms Schreiner described how she had refused to sit on the floor when told to do so by Captain Liebenberg, who was the officer in charge. I quote:

'I felt that the way that they had come into the flat and taken C over the flat, that I would be in a very vulnerable position if I sat down on the floor surrounded by a group of men armed and very aggressive.'

She knew from working in detainees support work that Captain Liebenberg had, I quote:

'A reputation for assaulting people at the point of arrest, even in their own homes.'

D After explaining that she had seen Mr Yengeni, who is also an accused before this Court, in her flat, and that he appeared to have been seriously assaulted, Ms Schreiner was asked:

'Now you have already commented on your reaction to the security police's behaviour. Is there anything you wish to add about how their behaviour made you feel?'

E She replied:

'I think what I haven't said is the extent to which it made me feel anxious about what was actually lying in store for me.'

During his cross-examination, Mr Klem challenged Ms Schreiner on her statement that she felt intimidated by the manner in which the police entered her flat and took control of the situation at the time of her F arrest. When she stood by her evidence, Mr Klem put it to her that she was not the type of woman to be affected by armed police swarming into her bedroom to arrest her. Ms Schreiner repeated that she felt vulnerable.

It was at this stage that Mr Klem asked Ms Schreiner whether she conceded that

'a whole range of weapons, amongst others automatic weapons, were G found in your flat'.

Mr Donen objected to the question on the ground that Mr Klem was

'going into the merits and asking Ms Schreiner to make an admission on the main charge'.

I ruled that Ms Schreiner was not obliged to answer what I characterised as a self-incriminating question, nor was she obliged to admit that H weapons were found in her flat.

That was some days ago. Mr Klem has now applied formally for a ruling that 'the State should be allowed to cross-examine the accused as to her knowledge and/or possession of the trunk of arms and explosives that were...