The State v Chamane

• Jurisdiction: South Africa
• Citation: 1962 (2) SA 428 (A)

The State v Chamane
1962 (2) SA 428 (A)

1962 (2) SA p428

Citation	1962 (2) SA 428 (A)
Court	Appellate Division
Judge	Steyn CJ, Ogilvie Thompson JA and Williamson JA
Heard	March 2, 1962
Judgment	March 12, 1962

Flynote : Sleutelwoorde E

Criminal procedure — Evidence — Witness — Joint trial — When an accused can call a co-accused as a witness — Admissibility F of a statement — Accused objecting thereto — Evidence given thereon — Accused seeking to call co-accused — Such co-accused's counsel objecting — Objection rightly upheld — Act 56 of 1955, sec. 227 (1).

Headnote : Kopnota

Under section 227 (1) of Act 56 of 1955 neither an accused nor a co-accused may be called as a witness for the defence at any stage of G the proceedings except upon his own application or expressed consent.

On the trial before a Judge and assessors of the appellant on a charge of murder the State tendered as evidence a statement made by the appellant after his arrest. The appellant's counsel objected to its admissibility on the ground that it had not been free and voluntary. The assessors retired: the State led the evidence of the investigating officer and the appellant gave evidence. At the conclusion of his H evidence the appellant applied to call the co-accused, the wife of the murdered man, as a witness on the preliminary issue. Counsel for the co-accused objected and the presiding Judge sustained the objection. In an appeal on a special entry,

Held, as the female accused, through her counsel, had declined to testify on the issue raised, that she was not a compellable witness and accordingly the decision was correct.

Case Information

Appeal on a special entry and a point of law reserved. The facts appear from the judgment of OGILVIE THOMPSON, J.A.

J. J. Boshoff, for the appellant (at the request of the Court): The

1962 (2) SA p429

origin and purpose of sec. 227 of the Code with its predecessors, are discussed in R v Razack, 1917 CPD at p. 257; R v Sas and Others, 1918 CPD 346; Gardiner & Lansdown, South African Criminal Law and Procedure, 6th ed., p. 505. It is established law that an accused person A when called during a trial can be asked and is compelled to answer questions which may be incriminating; see Gardiner & Lansdown, ibid, pp. 505 - 6; R v Faithfull & Gray, 1907 T.S. 1079; R v Bagas, 1952 (1) SA 437; R v Zawels and Another, 1937 AD 342. But an investigation into the admissibility of a confession has by practice been separated B from a trial proper; see R v Dunga, 1934 AD 223; R v Melozani, 1952 (3) SA 639; R v Mtabela, 1958 (1) SA 264; Gardiner & Lansdown, ibid, p. 600. Unlike an 'accused' person, Linah Sabela was in the position of a witness and could thus not be asked questions relating to her complicity in the crime. She could claim privilege; see C R v Ntshangela and Others, 1961 (4) SA at p. 598. The purpose of calling her was not to attack the 'credibility' of Munsami which could not be done; see R v Hendricks, 1952 (1) SA 138; R v Impey and Another, 1960 (4) SA at p. 562; Gardiner & Lansdown, ibid pp. 505 - 6; but to establish a system, course of conduct or modus operandi in regard to his investigation of the case and to determine the D truthfulness of the confession. In regard to the reservation of the question of law whether the confession was properly admitted and the question whether the limitation imposed by the Judge a quo in the special entry is correct or not, it is vital for appellant to have the question whether the confession was in any event properly admitted E determined by this Court. If appellant is not permitted to do so, leave is asked to extend the point of law; see R v Maseko, 1950 (1) SA at p. 588; R v Nzimande, 1957 (3) SA 772; R v Jacobs, 1961 (1) SA at p. 484. As to the effect of calling one witness in matters of this description, see R v Mokoena, 1956 (3) SA at pp. 85 - 6; Gardiner & Lansdown, ibid, pp. 637 - 8. As to untruths told by an accused person, F see The State v Smook, 1961 (2) P.H. H.228; R v Gumede, 1949 (3) SA 749. In the result the admissibility of the confession depended and devolved on the determination of two mutually destructive stories, as to the effect of which, see R v M., 1946 AD at p. 1026; The State v Smook, supra; May Evidence, 3rd ed., para. 49. The confession should G therefore have been rejected. Without the confession the Court would not have convicted appellant. As to the effect of an irregularity, see R v Piek, 1958 (2) SA at p. 497; R v Patel, 1946 AD at p. 905; R v Ntshangela and Others, 1961 (4) SA at p. 599.

C. M. S. Brink, for the State: If the competency, as a witness, of a H particular type of person is not specifically dealt with in Act 56 of 1955, recourse must be had to the law of England to ascertain whether such a person is a competent witness; see Ex parte Minister of Justice: In re R v Demingo, 1951 (1) SA at pp. 39, 44. An investigation into the admissibility of a confession falls within the ambit of sec. 227 and a co-accused can therefore only be called as a witness for the defence at such an investigation and then only with his consent. The wording of sec. 227 is exactly similar to that of sec.

1962 (2) SA p430

1 of the Criminal Evidence Act (1898) of England. According to the Common Law of England, persons interested in the event of the suit or question at issue were not competent to give evidence. The Evidence Act A of 1843 (Lord Denman's Act) abolished generally, 'incompetency from interest' but the Legislature retained an exception for the party individually named in the record. In 1851...