CASE NO.  AR 480/2007

 IN THE HIGH COURT  OF SOUTH AFRICA 
THE KWAZULU-NATAL HIGH COURT, 
PIETERMARITZBURG

In the matter between

and

Delivered:   April 2009

J UDGMENT

WALLIS J.

[6] Counsel for the second appellant was the first to cross-examine Captain Hodgett. He explored with him the circumstances in which the confession was taken and the physical surroundings of the room where it was taken. He established that Captain Hodgett was one of the most senior members of the Serious and Violent Crimes Unit and that he oversaw the dockets handled by Inspector Mhlongo, the investigating officer. This was one of between 500 and 1000 dockets for which he had ultimate responsibility at the time. The confession was taken at Captain Hodgett's desk, which is situated in a large hall-like room containing a number of desks where the various members of the unit work. Captain Hodgett accepted that there are daily briefings for the unit and that it would have been reported to him that an arrest had been effected in this case. He had already volunteered in his evidence-in-chief that he could possibly have been -present during the arrest. In addition he accepted that he would have known the details of the murder, although the precise extent of his knowledge was not explored with him. It was however established that he might have gone to the scene of the crime after it was committed in August 2005.

[7] A portion of the evidence of Captain Hodgett on which considerable attention was focussed related to the possible presence of other policemen and in particular the investigating officer, Inspector Mhlongo, whilst the statement by the second appellant was being taken. Tt is appropriate therefore to set out the passage from the evidence in full. It reads as follows:

"The accused is taken to your desk? — That is correct, M'Lord,

Where you sit and write?     That is correct.

And obviously the interpreter is present? ---- Yes, M'Lord.

And in this office obviously there are various other policemen that sit around? — That is correct.

And Mr Mhlongo is there within earshot? — In and out, M'Lord, yes - or not in earshot, he would have been at least - his desk is by the front door., so it's quite away.

Yes, yes, It's about half the size of the courtroom, I'd say, maybe bigger? A little bit longer, yes, M'Lord.
In any event, when I speak, as I'm speaking now, this whole [inaudible --- interference] — That; is correct, M'Lord.

But most certainly, when the accused made statements, Mr Mhlongo was present? — 1 cannot confirm that, M'Lord, he could have been outside. Sometimes it's - the office is open, people walk in and out the whole time.

Would you agree with me if - I'm not saying it did happen, I'm just putting it as an if at this stage — Yes, M'Lord?

if the accused were placed under pressure by Mhlongo to make statements .., [intervention]

[9] Counsel acting for the second appellant suggested to Captain Hodgett that it was improper for him to have taken the statement as he was a captain in the same Unit and from the very same office as the investigating officer and had prior knowledge of the case and had been involved in the arrest of his client, Captain Hodgett's response was to say that it was not advisable but that there was no reason for him not to take a warning statement from the accused. He had not participated in the interrogation of the second appellant. It was then put to him that the first appellant was sitting sonic four to .five metres away in the same room whilst he took the second appellant's statement and he accepted that this was possible but that he would have been somewhat further away than four to five metres, He did not accept that anything said at his table would have been audible in view of the noise levels in die room.

[10]  This summary of the cross-examination on behalf of the second appellant reveals tat it was directed entirely to the environment in which the second appellant found himself when making the statement to Captain Hodgett.   What is significant, however, in my view is that it was never suggested to Captain Hodgett that the second appellant had been intimidated by this environment or induced by bis surroundings to make his statement.   Notwithstanding the detail in which the environment was explored counsel did not suggest that it had influenced his client to make the statement. Instead he put his client's case in clear and express terms in the following passage from his cross-examination :
"And accused No.2 informs me that when he was brought to you, he was made to put his thumbprint on a typed page and there was no writing on it when lie put his thumbprint on it.----M'Lord that is incorrect."

[11]   The picture that emerges from this cross-examination is that the basis upon which the second appellant intended to challenge the admissibility of the confession was that he had been brought by the investigating officer into a situation where he was surrounded by policemen from the Serious and Violent Crimes Unit including the investigating officer's superior, Captain Hodgett, and required to place his thumbprint on a blank document. The necessary inferences from this were that Captain Hodgett was lying when he said that he had taken the statement from the second appellant and that he and Inspector Mhlongo had conspired to place the second appellant in a situation where he could be induced to put his thumbprint on a document even though nothing was written on it.   A further necessary implication was that the entire confession must then have been written up afterwards by Captain Hodgett with the benefit of the knowledge that he already had of the circumstances of this particular crime and possibly the assistance of Inspector Mhlongo. This proposition was not put expressly to him by counsel but it inevitably flowed from the .suggestion that, the document to which the second appellant's fingerprints had been affixed.was blank at the time.

"Has this statement been read back to the suspect by an interpreter?" and the affirmative answer. In other words it was suggested to the inspector that he had in fact read the statement back to the second appellant.

[14]    This question is extremely significant-   It involves an acceptance by die second appellant that he had in fact told a story to Captain Hodgett and that this had been recorded at the time.   In other words the proposition that he had affixed his thumbprint to a blank form and by implication that the statement was the product of Captain Hodgett's knowledge of the crime, whether or not supplemented by Inspector Mhlongo, necessarily fell away. That is confirmed by the fact that it was expressly put to Inspector Ngcongo that the only truthful statement in the questions and answers dealing with the formalities surrounding the taking of the confession was the statement that after the confession had been recorded it was read back to the second appellant by Inspector Ngcongo. Tt was not suggested that the statement actually made had not been properly recorded or that it either included material not provided by the second appellant or omitted material that he had volunteered, This may have been consistent with the subsequent evidence of the second appellant that he simply recited what he had been told to say by Inspector Mhlongo, but it is destructive of the version put to Captain Hodgett and reflects ill on the second appellant's credibility It also renders irrelevant any knowledge that Captain Hodgett had of the circumstances of the crime, whether arising from his own involvement or from the briefings or what had been reported to him by his subordinates. Once it was not the case that he had created the statement from his own knowledge, or had added to or subtracted from it in order to make it fit a "police version", the fact that he had such knowledge had no bearing on the statement's contents. It can never have had any bearing on the question whether it was made freely and voluntarily and free from undue influence.

[15]    Inspector Shandu was only briefly cross-examined on behalf of the first appellant, Consistent with the latter's contention that he had been assaulted the inspector was asked whether he could comment on that allegation and he simply said that if it happened it did not happen in front of him. It was then put to him that the first appellant would say that during the course of the interview with Captain Hodgett he had been taken outside and assaulted and this was denied. On behalf of the second appellant it was put that he had been present during the latter's arrest but he denied that. Two other items of information that are relevant: emerge from his evidence. The first is that the two appellants and two others arrested on the same night had been detained by him as suspects at 5.40am on Thursday 24 November 2005. The other is that all four suspects were booked out by Inspector Mhlongo at 7.40am on Friday 25 November 2005 and the two detainees other than the appellants were returned to detention at 11.30am. This timing is consistent with the evidence of Captain Hodgett and the interpreters as to the time at which the confessions were taken and the lime taken to record the confessions by the two appellants.

[18]    Bearing in mind that the arrests took place on the morning of the 24 November 2005 only three weeks prior to the longest day of the year, when it gets light at about 5.00am it seems likely that the first appellant was arrested somewhere between 4.00 and 4.30am. That would be consistent with his mother already having left for work and having to travel some distance to reach her place of employment. However, it posts a question mark against the veracity of the second appellant's version for the simple reason that there hardly seems to be sufficient time for him to have been arrested at Ntuzuma; brought from Ntuzuma, which is situated to the north of Durban, to Cato Manor on the south-western side of the city, a substantial distance not easily traversed; assaulted for forty-five minutes to an hour and then taken to Clermont, which is situated to the north and west of Pinetown, where he pointed the places where the other suspects could be found and all three were arrested. These points are not joined by major public roads and for everything that the second appellant gave evidence about to have occurred in the limited time available would have been extremely difficult.

[19] The cross-examination of inspector Mhlongo by Mr Magigaba was brief. He simply put to him that he had assaulted the First appellant from the time he was arrested bth at the police station and at the time when he was being interviewed by Captain Hodgett- Inspector Mhlongo denied having been present, in the room with CaplaiJi Hodgett when the first appellant's statement was being taken. It was put to him Iheit the first appellant appeared, frightened and he explained that this was due to the attitude of the other two suspects towards him and to the second appellant. This had been sufficiently marked that they had had to be separated in the cells. Inspector Mhlongo explained that this was because the first appellant wished to make a statement and did not want news of that fact to reach the other two suspects.

[20] I should mention at this stage that the court adjourned whilst Mr Magigaba was still cross-examining Inspector Mhlongo. However the printed record furnished to the court for the purposes of this appeal does not contain any record of any further cross-examination by Mr Magigaba and the reconstruction of the record furnished to us for the purposes of the appeal contains only some fairly terse cross-examination by Mr Venter on behalf of the second appellant and some questions by the trial judge. This is not a satisfactory state of affairs particularly as we are not even informed of how long the missing section of the record is, All that one can say is that the typed record resumes with the evidence of Captain Lockem which covers a mere fifteen pages after which the court took the long adjournment. We can accordingly infer that the missing section of cross-examination endured for at least an hour and fifteen minutes from the sitting of the court that morning until the short adjournment and probably for some period after the short adjournment. The terse notes with which we have been furnished as constituting the reconstruction of the record are clearly an inadequate reflection of the full cross-examination of Captain Mhlongo.

[25]   The second appellant fared no better.  I have already mentioned the difficulty in fitting the story of being assaulted by Inspector Mhlongo at the Cato Manor police station prior to his taking of the police to Clermont into the time available between his arrest and his detention in the police cells. He embroidered his story about the assaults effected on him by saying that Inspector Mhlongo proffered as an inducement to his confessing the proposition that toe first appellant had already implicated him in the commission of the offence. He abandoned his story that on the morning of 25 November he had been taken from the cells and assaulted until the time when he was taken to Captain Hodgett to make his statement.  Instead he claimed that he had only been threatened. Although he described the earlier alleged assault by Inspector Mhlongo in graphic detail, including the statement that the inspector pressed his knee into his chest, none of this had emerged in prior cross-examination, He alleged that Inspector Mhlongo had pulled out his firearm,, cocked it and pointed it at him but this also was a novel proposition. He claimed that he made this statement in an endeavour to prove his innocence and that Inspector Mhlongo kd promised to assist him if he said what he (Mhlongo) told him to say even though he had nothing to do with the crimes of which he was being charged.  Again the? difficulty with this is that his statement contained information regarding the prior attempt to break into the deceased's house of which Inspector Mhlongo would have? been unaware.

[28] Our courts have over many years repeatedly drawn attention to the undesirability of having a confession taken by a police officer in the same unit as the investigating officer. They have equally deprecated the use as interpreters of officers in the same unit as the investigating officer and the person taking the confession, Hie undesirability of taking a statement in the presence of the investigating office*, however, remote, and other policemen is manifest.  The reason is, as Jansen JA pointed out, that these factors provide fertile soil in which the accused can plant a seed of suspicion against the conduct of the police and the propriety of their behaviour in obtaining the confession. Such an environment can also, as the learned judge pointed out, plant suspicion in the mind of the accused that he or she is not free to speak their mind and tell the person recording the confession of misconduct or inducements brought to bear upon them in order to compel the confession.

"... that it is not a question of impugning in any way the integrity of responsible police officers in carrying out their duties as justices of the peace. But the practice may plant suspicion in the mind of an accused, with much time spent judicially in determining the issue of admissibility, as in the present case, with several members of the police in attendance as witnesses for long periods. In our opinion it would be preferable to enlist the services of an experienced magistrate; but, if this is not practicable in a given case, the justice of the peace should not be a member of the police unit or station which is investigating the crime, particularly if his office is in the same premises".
The presence of this feature of undesirability in a given case is of course not without legal significance, It is a circumstance to be considered in conjunction with other relevant circumstances, if any, by a court of law in making the ultimate decision whether or not the State has proved beyond a reasonable doubt that the confession in question was made in conformity with s 244 (I), ie freely and voluntarily and without undue influence.

[35] Although leave to appeal was sought and granted in respect of sentence no submissions were advanced before us that the sentences were inappropriate. In the circumstances I propose that the appeals of both appellants be dismissed and that their convictions and sentences be affirmed.

INSTRUCTED BY THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS