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S v Maasdorp (CA&R 83/07)  ZANCHC 21; 2008 (2) SACR 296 (NC) (4 April 2008)
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IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case No: CA&R 83/07
In the matter:
HERMANUS MAASDORP Applicant
THE STATE Respondents
In S v Meyer 1972(3) SA 480 (AD) at p481F Kotze JA remarked aptly that :
“Die vraag wat in hierdie appél ter beslissing val, is of die streeklanddros wat die verhoor waargeneem het dermate onreëlmatig opgetree het dat die fundamentele voorvereiste van `n billike verhoor van die appellant in gevaar gestel is – S v Alexander and Others (1), 1965 (2) SA 796 (A.D) op bl. 809D. Hierdie vraag moet teen die geheel agtergrond van ide saak beoordeel word – R v Baartman and Others, 1960 (3) SA 535 (A.D) op bl. 541G. n` Uiteensetting van die volle agtergrond volg.”
The relevance of this dictum will become clearer when I deal with the merits of this appeal, particularly in respect of the appellant.
This appeal is a sequel to a trial which took place in the Regional Court, Upington where the appellant stood trial together with two former co-accused on a charge of robbery with aggravating circumstances as defined in section 1(1) of the Criminal Procedure Act 51 of 1977 (CPA). At the end of a very long and protracted trial spanning over thirty-two months and producing 756 pages of the record, the former accused 1 was acquitted whilst the appellant together with the former accused 2 were convicted. They were both sentenced to imprisonment for twelve years each.
The appellant is now appealing against both his conviction and sentence with the leave of the court a quo. The appellant filed a detailed and comprehensive application for leave to appeal wherein he clearly and meticulously set out various grounds on which the judgment of the trial court is being impugned. I will deal with the various grounds of appeal when I deal with the merits hereunder.
I interpose to state that although the former accused 2 had lodged his application for leave to appeal, he never pursued it any further. Notwithstanding this, we decided, given the peculiar circumstances of this case, to invoke our inherent power of review to deal with the case of the former accused 2 as we were satisfied that our failure to do so would result in a serious travesty of justice.
Although the state called ten(10) witnesses to testify in this matter, the facts in issue are fairly simple and fall within a very narrow compass. The witnesses who testified for the state can be classified under four(4) categories viz. the victim/complainant and owner of the business; the police officers who effected the arrest and police investigations; the magistrates and other police officers who testified in respect of the alleged confession by accused 2 as well as one Mr Michael Selao who testified in terms of section 204 of the CPA.
Given the nature of the evidence which was adduced at the trial, it will not be helpful to give a detailed account of the evidence of each witness who testified. I therefore decided to give the general tenor of the whole evidence, with special emphasis on the salient features thereof. What emerges clearly from the evidence is that a vehicle belonging to one Mr Strydom was driven by his driver, Mr van Rensburg on the night of 12 December 2002. This vehicle together with its trailer and mobile refrigerator had the name GATTI clearly emblazoned on the sides. Van Rensburg’s task was to deliver ice-cream to Strydom’s various customers from which he would also collect the money. It appears from the evidence that a group of some criminals got information about Van Rensburg’s business itinerary. They then decided to way-lay him on 12 December 2002 as he returned from his rounds and to rob him of the loot. It is common cause that as he was approaching Upington from Keimoes, he drove over what the thought was a rope (`n tou’). However, soon after driving over “die tou” he felt that he had a puncture on one of his rear wheels. He duly stopped his vehicle to investigate what was happening. It was at approximately 21h00 and it was dark with no lights nearby. All of a sudden, whilst he was trying to replace his left rear-wheel which was punctured, he was surrounded by some men (approximately 4 – 6) who started to assault him severely. As a result, he fell to the ground and could not stand. However, as fate would have it, before he was attacked he had managed to report to his boss, Strydom that he had a puncture but quite importantly that he was surrounded by some strange men.
Sensing some imminent danger, Strydom responded quickly by telephoning the police, his wife and one of his acquaintances in Upington to alert them. In the mean time he drove to the scene. Upon his arrival, he found Van Rensburg who was badly beaten together with some police officers. He then took Van Rensburg to the hospital in his own vehicle. I find it necessary to state that neither Van Rensburg nor Strydom implicated the appellant and his co-accused in the commission of the robbery.
Inspector Van Heerden is the first police officer who arrived at the scene that night. Suffice to state that he could not identify any of the accused including the appellant as the robbers. When he arrived at the scene, he found no exhibits which could assist him in the investigation of this matter. Captain Maree is the person who received information from a police informer which led to the arrest of the three accused. In the course of his investigations, he obtained a search warrant which he used to search the appellant’s premises. Inside the appellant’s shack, he found a number of items including some old number plates, items of clothing, colloquially called a 2-piece; a crate which contained a big chain and some sharp-pointed pieces of iron, all of which he impounded. It is clear from Maree’s evidence that at the time when they discovered these items, the appellant had not been advised of his rights in terms of section 35(1) of the Constitution. According to Maree, the appellant told him in the course of his interrogation, that the chain was his and that he intended to use it for his fence. I deem it necessary to state that according to Maree it was only after their arrival at the police station, that he advised the appellant of his rights in terms of Section 35(1) of the Constitution, whereupon the appellant refused to make any statements until he had been allowed to see his legal representative. It emerged from Maree’s evidence that the person who implicated appellant and the other accused is Michael Selao, who was later made a state witness in terms of section 204 of the CPA. It also emerged from Maree’s evidence that, in addition to appellant and his two co-accused, Selao had also incriminated other people including one Eric Andries, alias Hora, who was also arrested. Suffice it to state that charges were later withdrawn against the said Andries. Of great significance, Maree conceded in cross-examination that he does not know how the chain together with pieces of steel-iron with sharp points came to the appellant’s premises.
The next crucial witness for the state against appellant was Micheal Selao. This witness was warned in terms of section 204 of the CPA. Selao sought to implicate the appellant, accused 1 and 2 in the commission of this robbery. It is important to recall that Selao had also implicated one Andries (Hola) in the commission of this robbery. It is noteworthy that charges against Andries were withdrawn whilst accused 1 was acquitted due to lack of evidence. This was after the regional magistrate found Selao unsatisfactory and unreliable as a witness. Suffice to state that Selao expressly conceded, on at least two occasions, that he had embellished his evidence to fit into the state’s case. It is clear from his evidence that Selao was not fair, candid and frank in his testimony. Of importance, he also conceded that he tried to minimize the role that he played in the alleged robbery. Even the trial court was very critical of Selao as a witness. The trial court had the following to say about Selao at p736 of the judgment:
“Mnr Selao is `n perd, by wyse van spreke, van `n ander kleur. Hy is `n medepligtige. Hy `n sogenaamde Artikel 204 getuie. Daar is baie rede tot kommer om sy getuienis net so te probeer aanvaar… Die Hof is alleen bereid om op sy getuienis `n skuldbevinding uit te bring, waar daar stawing is, waar daar onderskragings is vir sy getuienis. Met ander woorde, waar hy `n enkele getuie is en dit gaan hier pertinent oor die identiteit van die drie persone wat by die voorval betrokke was, is die Hof hoegenaamd nie bereid om sy ondergeskraagde getuienis te aanvaar nie. Hy weet baie meer van hierdie hele voorvalle as wat hy te kenne gee. Hy is nie heeltemaal eerlik met die Hof nie…”
(My own underlining).
Whilst testifying in his defence, the appellant denied any complicity in the robbery which took place on 12 December 2002. Concerning the chain that was impounded from his shack, by Maree, he explained that it was brought to him by Selao in a crate. This was at the time when Selao was returning Andries’ (Hola) vehicle which he had borrowed from the appellant. As Selao was going away on foot, he requested appellant to keep the crate for him. According to the appellant he did not know what was contained in the crate. He pertinently denied that he told Maree that the chain was his and that he had intended to use it for his fence.
In evaluating the evidence the trial court found that, although Selao proved to be selective, evasive and dishonest with the court whilst testifying as a section 204 witness, his evidence was amply corroborated by the chain which was found at the appellant’s premises, to the extent that this constituted proof beyond reasonable doubt of the appellant’s involvement in the robbery which took place on 12 December 2002. Based on the above, the trial court found that the guilt of the appellant had been proved beyond reasonable doubt. Furthermore the trial court was critical and in fact drew an adverse inference against the appellant for having failed to explain his possession of the chain to Maree at the time when Maree interrogated him after he had explained his rights in terms of section 35(1) of the Constitution.
In the Notice of Appeal filed on behalf of the appellant, the argument was clearly foreshadowed that the trial court erred by attaching any weight to Selao’s evidence and further by actively insisting, mero motu, that the chain that was found at appellant’s home be introduced as an exhibit. Furthermore it was contended that the trial court erred by finding that Van Rensburg positively identified that chain as the chain over which he drove the GATTI vehicle, when it was abundantly clear that he did not see it and was therefore unable to positively identify it. Lastly, it was submitted that the trial court erred by drawing an adverse inference against the appellant for refusing to explain where he got the chain from, particularly as he had been advised by Maree in terms of section 35(1) of the Constitution.
I find it necessary and expedient to state that Mr Mashuga, appearing for the respondent, had no answer to offer against the trenchant criticism unleashed against the trial court’s judgment. In fact, Mr Mashuga condeded that Selao, proved himself not to be an honest, reliable and credible witness and that he did not satisfy the threshold test laid down in section 204 of CPA. Concerning the chain, he conceded, based on a number of extracts from the record that the trial court in fact put words in Van Resnburg’s mouth to agree that the chain, which the magistrate introduced as an exhibit himself mero motu, is the actual chain which caused a puncture to his vehicle.
Given the concessions made by Mr Mashuga, which in my view, were correctly made, I would not have written a lengthy judgment in casu. However, given the serious irregularities which the trial court committed in particular, the serious and active discension into the arena of conflict by the magistrate impels me to make some few comments.
This case, in my view, is a classical example of how a presiding officer should not behave, particularly in a criminal trial with our predominantly adversarial system. It is a trite principle of our criminal justice system, which is deeply ensconced in our constitution that every accused person is entitled to a fair trial. Amongst others, this requires that presiding officers’ should not only be fair and impartial but must assiduously ensure that they are in fact seen to be impartial. Our criminal justice system operates from a basic premise of “equality of arms”. This suggests that where both the state and the accused are legally represented, the presiding officer should try by all means to restrain himself, exercise self-control and to give the parties the freedom and latitude to present their cases as best they can and without any undue interference. This is so because the assumption is that, both of them being legally trained and qualified, have prepared their cases properly and know what evidence they wish to present and how they wish to conduct their trial. It does not augur well for any presiding officer to become so involved in the case for one party to an extent where a perception is created that he/she has become partisan and partial. It is crucial in this context to bear in mind the telling remark made by Kotze JA in S v Meyer 1972(2) SA 480 (AD) at p 483H where he stated: “…Hierdie passassie word hieronder aangehaal en dui onteenseglik daarop dat die tradisie van regterlike selfbeheer wat die Howe in Suid Afrika met trots nastreef nie deurgans eerdiedig is nie. …”
A few examples will serve to demonstrate this point.
At the very early stage of the trial before Van Rensburg could give a description of the alleged chain, the magistrate mero motu, instructed the prosecutor to bring the chain to court so that the witness can identify it. After the chain was brought into court, the magistrate did not allow the prosecutor to lay a proper foundation for the introduction of the chain as an exhibit. Instead, the magistrate in a rather brusque manner, introduced and received it as Exhibit 1. The extract from p45 line 10 of the record gives a more lucid account:
“VOORSITTENDE BEAMPTE: Dit lyk my dit is `n vreeslike affêre, kan u dit vir my half uithaal. Is dit los stukke? U hoef dit nie heeltemal uithaal nie, as u daarby kyk meneer, is dit die ketting waarna u verwys het? --- Dis reg”
This positive reponse stands in stark contrast with what Van Rensburg conceded later on at p45 line 19 onwards where he conceded rather dramatically that:
“VOORSITTENDE BEAMPTE: U het dit nie gesien nie? – Nee
U weet nie waar dit vandaan kom nie, maar die ketting lui `n klokkie? – Hy lui `n klokkie ja.”
Equally important is the following exchange between Van Resburg and Mr Kruger during cross-examination of p58 line 10:
“… Verder, hou dit in gedagte, gesien in die lig daarvan dat u `n lang dag se werk in die donker nag oppad terug kom ry Upington toe … dat u nie hierdie ketting gesien het nie, dat u nie hierdie ketting kan identifiseer as die een waaroor u gery het nie, dat dit `n aanname is wat u agterna maak toe die polisie dit aan u toon. Is dit korrek as ek dit so beskryf? … Volgens hierso ja.”
To my mind the regional magistrate seriously erred in the manner in which he dealt with Exhibit 1. Firstly, he acted quite improperly in initiating, mero motu, that the chain be accepted as Exhibit 1 without the involvement of either the state or the defence. Secondly, it is abundantly clear from the extracts referred to above that Van Rensburg the victim was not in a position to positively identify Exhibit 1 as the chain over which he drove his vehicle and which caused a puncture to one of his wheels. In my view, this conduct by the regional magistrate calls for a remark like the one made by Kotze JA in S v Meyer (supra) at p484A where he stated: “…Dit was `n soeke na die waarheid. Maar in sy ywer daartoe het hy sy oogmerke verbygestreef en sy regterlike oordeel kwytgeraak of andersgestel, sy optrede het `n bevangendeid openbaar wat nie versoenbaar is met sodanige oordeel.”
Having already described Selao as an evasive and untruthful witness, what evidence remained on which the appellant could be convicted? In my view, there was none. The fact that the appellant refused to make a statement to Maree concerning this chain does not, to my mind, justify any negative inference against the appellant. Section 35(1)(a)and (b) of the Constitution declares that every arrested, detained or accused person has the right, inter alia, to remain silent, to be promptly informed of the right to remain silent, and quite importantly, of the consequences of not remaining silent. It is well known that one of the serious consequences of not exercising one’s right to remain silent is that whatever an accused person discloses to a police officer during interrogation will be reduced to writing and may be used against such an accused person in a subsequent trial. In my view, it would make a serious mockery of the rights enshrined in section 35(1)(a) and (b)(i) and (ii), if after having properly advised an accused of these rights, such and accused person would be visited with a negative inference precisely for exercising his constitutional right to remain silent. Faced with this seemingly intractable if not intriguing legal conundrum, Moseneke J expressed himself in his usual eloquent fashion as follows in S v Thebus and Another 2003(2) SACR 319 (CC) at p348 paras 57 and 58:
“ In our constitutional setting, pre-trial silence of an accused person can never warrant the drawing of an inference of guilt. This rule is of common-law origin. In R v Mashelele and Another, Tindall JA, relying on the English decision of R v Leckey formulated the rule thus:
‘(I)f the silence of the accused could be used as tending to prove his guilt, it is obvious that innocent persons might be in great peril; for an innocent person might well, either from excessive caution or for some other reason, decline to say anything when cautioned. And I may add that an accused person is often advised by his legal advisers to reserve his defence at the preparatory examination. It would, also, in my opinion, have been a misdirection to say that the silence of the accused was a factor which tended to show that their explanation at the trial was concocted.’
 It is well established that it is impermissible for a court to draw any inference of guilt from the pre-trial silence of an accused person. Such an inference would undermine the rights to remain silent and to be presumed innocent. Thus, an obligation on an accused to break his or her silence or to disclose a defence before trial would be invasive of the constitutional right to silence. An inference of guilt from silence is no more plausible than innocence. The majority of the US Supreme Court in Doyle v Ohio reminds us that ‘every post arrest silence is insolubly ambiguous’. To hold otherwise, the mandatory warning under s 35(1)(b) will become a trap instead of a means for finding out the truth in the interests of justice.”
The above dicta are not only persuasive by their sheer faultless logic but are authoritative and binding on me.
Based on the above dicta, it is self-evident that the regional magistrate erred in drawing an adverse inference against the appellant for exercising his constitutional right to remain silent. It requires to be emphasized that the right to remain silent is intended to act as a shield and bulwark against any form of legal compulsion on any accused to speak at a time when it is not prudent to do as this might turn out to be a trap to catch the unwary. Based on the above exposition, I am satisfied that, absent the evidence of Selao and the chain, Exhibit 1, that there is no scintilla or shred of evidence on which the appellant should have been convicted. It is abundantly clear that the chain Exhibit 1 played a cardinal role in the conviction of the appellant. In fact, the magistrate only accepted Selao’s evidence after he found the chain to have been corroborative of Selao. It follows ineluctably that, absent Exhibit 1, there would not have been any evidence to convict the appellant. I have found the dictum by Kotze JA in S v Meyer (supra) at p 484C to be both opposite and illuminating:
“Wanneer `n regterlike beampte optree soos hierbo aangedui gaan hy, na my mening, redelik perke te buite. Hy skep dan nie die indruk dat die doel van sy ondervraging is om duidelikheid te vind nie. Veel eerder word die indruk gewek dat die geskil vooraf beoordeel word en dat reg en regverdighied nie geskied nie (Solomon and Another, NN.O v de Waal, 1972(1) SA 575 (AA) op bl.580). In die onderhawige geval het die optrede van die landdros, volgens my mening, in sy geheel gesien, en veral sy gedrag teenoor die appellant terwyl hy getuig het, sulke afmetings aangeneem dat dit nie gesê kan word d thy vleklose onpartydigheid” gehandhaaf het nie (Rondalia Versekeringskorporasie van SA Bpk v Lira, 1971 (2) SA 586 (AA) op bl.589). Bygevolg moet bevind word dat hy nie sy funksie as regspreker na behore uitgeoefen het nie.
Afgesien van die meriete in hierdie saak is `n bevinding onvermydelik dat die landdros nie deurgaans `n onbevange oordeel bewaar het nie (Lira se saak bl.589) en dat sy optrede so ernstig afgewyk het van behoorlike en ordelike respraak dat die verhoor en uitspraak ongeldig is.”
The case concerning the former accused 2 stands on a completely different footing. As I alluded to in para 3 (supra), although accused 2 did not persist with his appeal, we are of the view, having read the record, that a gross injustice would be perpetrated if we do not deal with his appeal. We therefore decided in the interests of fairness and justice, to invoke our inherent powers of review to review his case. What is pivotal to the ultimate conviction of accused 2 is the alleged confession which he made to a magistrate, one Mr Van Zyl. As accused 2 directly disputed the admissibility of his alleged confession, a trial-within-a-trial was held. The state called five(5) witnesses to testify. Accused 2 also testified to prove that he did not make the alleged confession freely and voluntarily and without some undue influence. It is common cause that some days after his arrest, accused 2 was taken to Van Zyl for a confession. From the evidence it is clear that Van Zyl and Fielies (the police) contradicted each other directly as to how Van Zyl was appointed to take down the alleged confession. There is another serious and disturbing feature about the presence of Inspector Mona (the police officer who was in charge of the appellant) in the office where accused 2 made the confession whilst Van Zyl was busy taking down the confession. It is common cause that after the accused’s right to legal representation were explained to him, he opted for legal representation. Accused 2 was then taken to the local Legal Aid Office, and approximately ten minutes late, accused 2 returned with a local attorney, a certain Mr Human who had been appointed to assist him. Although there is evidence that Mr Human was present when the confession was resumed, the role which he played is not very clear. However, what is of cardinal importance is that when accused 2 was asked by Van Zyl at p248 line 1 onward:
“Verwag u enige voordele as u `n verklaring voor my aflê? He responded: “Ja –om nie gestraf te word om tronk toe te gaan nie, het nie voorheen crime gehad nie.”
It should be abundantly clear from the above extract that accused 2 told Van Zyl in clear terms that he agreed to make the confession because certain promises had been made to him. This disclosure should have alerted Van Zyl to the existence of some influence having been used on accused 2 to confess. To my mind, there must be a good and cogent reason why in terms of section 217 of the CPA, confessions made by accused persons to police officers must be repeated before a magistrate who shall reduce it to writing. Furthermore it is self-evident that the elaborate questions which precede the taking of any confession by a magistrate are intended to afford an accused person, who hitherto has been in the custody of the police, effective protection against any improper methods or undue influence, violence or improper promises being used to compel him to make a confession, which invariably will be to his detriment. Although, strictly speaking, a magistrate who takes a confession is not expected to act as an inquisitor or investigator, one does not expect him to act like a passive umpire who is simply there to ensure that formal rules are observed. Given the historical evolution of confessions in this country and the countless reported cases of incidents of abuse of their power and authority by the police, one expects that where there is some indication of improper conduct which could have had an undue influence on the accused to make a confession, that the magistrate who takes such a confession should investigate further the circumstances surrounding the alleged confession. Self-evidently, such conduct is congruent with the basic tenets of fairness to an accused person which underpins the rights of every accused person to be presumed innocent, the right to remain silent and the right not to be compelled to make any confession or admission that can be used in evidence against such a person. This is particularly important when viewed against our grim and horrible past history of torture and intimidation of accused persons whilst in police custody. It is not without significance that our constitution particularly section 35(1)(a) and (b) has elevated these rights to a higher status of fundamental rights deeply embedded in our Bill of Rights, which as section 7(1) of the constitution clearly articulates “is a cornerstone of democracy in South Africa…”
The importance and raison de’être of this panoply of fundamental rights is lucidly described as follows by Moseneke J in S v Thebus and Another (supra) at p 347 para 35:
“The protection of the right to pre-trial silence seeks to oust any compulsion to speak. Thus, between suspicion and indictment, the guarantee of the right to silence effectively conveys the absence of a legal obligation to speak. This distaste of self-incrimination, as Ackerman J puts it, is a response to the oppressive and often barbaric methods of the Star Chamber and indeed to our own dim past of torture and intimidation during police custody. It is therefore vital that an accused person is protected from self-incrimination during detention and police interrogation which may readily lend itself to intimidation and manipulation of the accused.”
Whilst confronted with the same legal conundrum, Froneman J expressed himself as follows in S v Melani & Others 1996(2) BCLR 174(E) at p191I:
“… Infringements of fundamental rights resulting in an accused being conscripted against himself through some form of evidence emanating from himself would strike at one of the fundamental tenets of a fair trial, the right against self-incrimination… ”
Suffice to state that I am in respectful agreement with the two dicta referred to above.
In his judgment the regional magistrate found that in the absence of any other independent corroboration of Selao’s testimony (section 204 witness), he would not be willing to accept his version. It is worth mentioning that the regional magistrate found Selao to be unreliable and dishonest. However, the regional magistrate sought and found corroboration for the evidence of Selao from the confession by accused 2. Without any doubt, this adequately demonstrate the importance of the accused 2’s confession to the state. Absent the confession, accused 2 would have been acquitted. It is against this factual backdrop that we have to determine whether the confession had been proved to have been made freely and voluntarily and without any undue influence which impacted on accused 2’s volition. I have already referred to a paragraph in the document embodying the confession where accused 2 in very clear terms told the magistrate that he made the confession because he had been promised that he will not be punished by being sent to prison. To my mind, the possibility that accused 2 was unduly influenced by this promise to make the alleged confession cannot be excluded. In the circumstances, I am of the view that it was never proved beyond reasonable doubt that accused 2’s volition was in no way unduly affected by this promise. In the result, I find that the confession made by accused 2 was improperly admitted against accused 2. In admitting this confession, I regret to state that the regional magistrate subverted accused 2’s constitutional right to a fair trial. I furthermore find that it would be inimical to the basic notions of fairness and justice and will in fact bring the administration of our criminal justice system into disrepute if evidence obtained in a manner which is in flagrant disregard of an accused’s right to a fair trial, is admitted and used to convict such an accused person.
As the regional magistrate correctly found, absent the evidence of this confession, there would not have been sufficient evidence to convict accused 2. I have already expressed my clear view regarding the conviction of the appellant.
Having given this matter careful and anxious consideration, I am of the view that the evidence on record is not sufficient to justify the conviction of both appellant and accused 2. As a result, the conviction and sentence of both appellant and accused 2 are hereby set aside.
L O BOSIELO
ACTING JUDGE PRESIDENT
Northern Cape Division
F E MOKGOHLOA
Northern Cape Division
Instructed by: KIMBERLEY JUSTICE CENTRE
On behalf of the Respondent: Adv. M. Mashuga
Instructed by: DIRECTOR PUBLIC PROSECUTIONS