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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

MBOKELI STUNKIE MAVELA Appellant

AND

THE STATE ....... Respondent

Coram: E.M. GROSSKOPF, STEYN et EKSTEEN, JJ.A. Heard: 7 May 1990 Delivered: 30 May 1990

JUDGMENT
EKSTEEN, J.A. :

During 1986 the deceased, one Petrus Jacobus

Fourie,was employed in Port Elizabeth by a construction
firm called Clifford and Harris. Early on the morning
of 7 July 1986 Fourie, acting in the course of his duty,
set out from the firm's premises in a van belonging to
Clifford and Harris, and bearing its logo on the door.
He was accompanied by one Jacobs who describes himself
as "the security". On the back of the van were some 9
or 10 labourers with their equipment. They proceeded
to the township of Kwazakhele where they were to construct
a manhole in one of the streets. They appear to have
arrived at their destination some time after 7 o'clock.

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The labourers got off the van and unloaded their tools and equipment. Fourie and Jacobs also got out, and Fourie went to show them where the manhole was to be constructed. Having given them their instructions Fourie returned to the van intending to go and fetch the bricks and other material needed for building the
manhole. At the door of the van, and just, before
getting in, he turned to speak to the labourers again, when a shot rang out, and he collapsed next to the van. This was between 7.30 and 7.45 a.m. and the sun was al-ready up. Jacobs, who was also about to get into the van, looked up in the direction from which the shot had come and saw a black man standing some 6 metres away next to one of the houses, pointing a firearm at him.

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Two more shots rang out in quick succession and Jacobs took cover behind the van. Later he walked round to where Fourie was lying and found that he was bleeding from his left arm and his left side. In fact it ap-pears from the post mortem report that Fourie sustained two entrance wounds on the outer aspect of the left
upper arm one centimetre in diameter and about half a
centimetre away from each other. One of these bullets went right through the arm, penetrating the thoracic cage between the 5th and 6th ribs, passing right through the left ventricle of the heart, and lacerating the right lung.

Jacobs says that all the labourers had fled, so he picked Fourie up, put him into the van and drove

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back to Clifford and Harris' premises. An ambu-lance was summoned but Fourie died as a result of his
wounds.
Jacobs described their assailant as being a shortish man of medium build, wearing a dark brownish or greyish woollen cap, similar to a balaclava cap, with a reddish stripe in it, a black lumber-jacket (similar to the exhibit before the Court), a pair of grey trousers, and a black pair of boots (similar to another exhibit before the Court).
Two of the labourers, Moolman and Schwartz, also gave evidence. Moolman says that when the first shot rang out and he heard the sound of the bullet, he ran for his life without so much as a backward glance.

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Schwartz says that on hearing the first shot he looked
up and saw a black man standing next to one of the houses
with a revolver in his hand. He wore a cap and a black

lumber jacket. After that he fell down and did not look
up again. Moolman says he thinks some four shots were

fired in all, but he could not be sure. Schwartz says
there were five shots.

The State also called a 19 year old young man

Big Boy Mtuntwana who lives within a few hundred yards
of the scene of the crime. He says that while he was
at home one morning he heard three shots ring out in
quick succession. He went outside to see what was hap-
pening. While standing next to his house, he says,

he saw the appellant (whom he knew) and two companions

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run past the street behind his house. The appellant wore a dark brownish balaclava-like cap and a black lumber-jacket similar to the one before the Court, and in his right hánd he held a firearm.
After an inspection-in-loco it was established that the appellant lived about 400 metres away from the
scene of the shooting, and it was common cause that

Mtuntwana's house was situated between the scene of the shooting and the appellant's house.
Another State witness was the 65 year old Petrus Miya, a relative of the appellant. He was a herbalist from Natal who was in the habit of visiting Port Eliza-beth periodically for a few months at a time. When in Port Elizabeth he stayed in Kwazakhele very close to

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where the appellant lived. During 1986 he says he
happened to be at his house in Port Elizabeth. At
about 8 o'clock one morning, as he was busy arranging
things in his house, he heard a shot. On hearing
the shot, he says he stopped what he was doing, stood
still listening for a while, and then walked out to see
what was happening. As he got to his front gate he
saw the appellant come running down the street. He
was alone, and wearing a black lumber-jacket similar to
the one before the Court, and a greyish-brown woollen
cap with a stripe in it. He did not notice any firearm

in the appellant's hands, but says that he may concei-
vably have had one.

Later that afternoon, towards sunset, the

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appellant came to his house, and asked him whether he could help him. Miya says he asked appellant what he wanted him to do. Appellant then told him that he had shot a white man and wanted Miya to give him "medicine" so that the police would not be able to find him. Miya asked him what the white man had done to him, where-
upon the appellant replied that they did not want white
people in their township. Miya then gave the appellant a stick to serve as a talisman although he knew full well that this would not safeguard him from arrest. Some time later Miya made a statement to the police.
Detective Warrant Officer Els, the investiga-ting officer, arrested the appellant on 1 March 1988 -
more than 18 months after the offence had been committed.

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Both the black lumber-jacket and the pair of black boots which were exhibits before the Court were found by Els at the appellant's home.

As a result of what the appellant told Els shortly after his arrest, Els arranged for Captain Gouws to take the appellant out to the scene of the crime on
2 March to point out certain spots. Before leaving for
Kwazakhele Captain Gouws duly informed the appellant that. he was a justice of the peace, and warned him that he was not obliged to point out anything but that if he did, what he pointed out and what he might say would be noted down and could be used in evidence against him. The appellant indicated that he understood the warning and was still prepared to point out certain spots. Gouws,

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being satisfied that the appellant was in his sound and sober senses, asked the appellant whether he had been assaulted, threatened or influenced in any way to agree to point out the spots, to which the appellant replied in the negative. Captain Gouws could see no signs of assault on the appellant, but in order to make doubly sure that there were. none,he asked him to remove his shirt. Gouws says that he noticed some tattoo marks on the appel-lant's chest but found no signs of any assault on him. As Captain Gouws was not conversant with the Xhosa language he asked Sgt. Yako to accompany them to act as interpreter. Neither Gouws nor Yako were in-volved in any way with the investigation of this offence. They then drove out to Kwazakhele. Yako drove the car

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while Gouws and the appellant sat at the back.
Captain Gouws described how the appellant had directed them to a spot where he said he had shot a white man. There they alighted and the appellant walked to a spot next to one of the houses and indicated that that was where he had stood. He told Gouws that black people had been working in the street and that two white men had been standing next to a van. He said that he had fired three shots at the white men. The black men then all ran away. The reason why he had fired at the white men was that the Comrades did not want white people in their area. He added that he had heard the next day that the white man was dead. He subse-quently sold the firearm to Lulamile for R30. Sgt.

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Yako gave corroborative evidence.
In his evidence the appellant denied all in-volvement in the killing of Fourie. He said he had been at home at the time and that he had only heard of the murder later on. He specifically denied running down the street with a gun in his hand, as Mtuntwana had testi-fied, and denied confessing to Miya in the way he had
deposed to. He conceded however that Miya was related to his mother.
After his arrest he says that he was assaulted by several policemen in order to get him to confess to the crime. He however steadfastly refused to concede any knowledge of the offence. The day after his arrest, he concedes, Captain Gouws and Sgt. Yako took him to

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Kwazakhele but he denies that he pointed anything out to them, or that he told them anything at all.

The trial Court rejected the evidence of the appellant as not being reasonably possibly true, and on a mere reading of his evidence this conclusion seems to be bóme out. The admissibility of the confession made
to Captain Gouws was contested by the appellant at the
trial, and its admissibility was thereupon decided in a separate investigation - a so-called trial within a trial. In the course of this investigation the appellant's alle-gations of protracted assaults at the hands of the police were specifically rejected as untrue. The trial judge pointed out that in view of the appellant's denial that he had pointed out any spots or made any confession

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the investigation was rather one to determine whether he had in fact made the confession than whether he had succumbed to the pressure of the alleged assaults to confess. In any event it was found that the confession had been made freely and voluntarily while the appellant was in his sound and sober senses and without him having
been unduly influenced thereto.
Mr. King, who appeared in the Court below, and before us, on behalf of the appellant, submitted that the trial Court had erred in accepting the evidence of Mtun-twana and of Miya. He submitted that both of them were unworthy of credence and were deliberately lying in order to falsely incriminate the appellant. The police wit-nesses - Warrant Officer Els and Sgt. Mngxekeze (who

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assisted Els in the investigation of the case) as well as Captain Gouws and Sgt. Yoko - he submitted had delibera-tely set out to mislead the Court and to this end had conspired together to concoct false evidence of a con-fession when in fact thêy had no evidence against the appellant at all. This conspiracy, as I understood him, extended to suborning Mtuntwana and Miya to perjure them-selves in order to secure a conviction. Such a sub-mission is a most serious one to make, and, in the cir-cumstances of the present case, a most improbable one. Moreover the trial Court, consisting of an experienced judge and two assessors, saw the witnesses, listened to their evidence, were able to consider their general demeanour and the way in which they gave evidence, and

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then believed them. The great advantage which the trial
Court has over a court of appeal in being able to observe
the general demeanour, appearance and indeed the whole
personality of the witnesses in assessing their credibi-
lity, has been dealt with fully by Davis A.J.A. in R. v.
Dhlumayo and Another 1948 (2) SA 677 (A) at pp. 695-700.
The learned judge, at p. 697, comments that

"It is often urged by counsel that, when the court below has made no comments on the demeanour of the witnesses, then the appellate court is in just as good a position to decide the case as was that lower court. But this can hardly ever be so .... The mere fact that the Judge did not comment on the de-meanour of the witnesses is not to say that he was not - perhaps even unconsciously - greatly influenced by the whole intangible atmosphere of the case he himself had tried. As was said by Lord Mac Millan in Watt v. Thomas (1947 (1) A.E.R. 582 at p 590)

'The Appellate Court had before it only the print-ed record of the evidence. Were that the whole evidence, it might be said that the appellate

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Judges were entitled and qualified to reach their own conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of the demeanóur of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to des-cribe which make up the atmosphere of an actual trial. This assistance the trial Judge possesses in reaching his conclusions, but it is not available to the appellate court.' It is because this atmosphere can never be adequately conveyed by the record that the appellate court must
inevitably in the great majority of cases be handi
capped; of that handicap it should never allow it-self tp be unaware."

It is for reasons such ás these that an appel-

late court will not readily depart from the trial court's
findings on credibility in the absence of some clear
misdirection on the evidence. In the present case Mr.
King has sought to persuade us that the trial court did
misdirect itself in arriving at certain conclusions,

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more particularly in rejecting the evidence of the appellant and not weighing the evidence of certain witnesses adequately. I am not persuaded however that any such misdirections have been shown. Mr. King's argument, in my view, amounted to no more than an attempt to argue the issue of the credibility of the
witnesses concerned, in much the same way that he did
at the trial. Nothing was advanced to indicate that these findings on credibility were not justified.

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His submission of a conspiracy to concoct evidence against the appellant is therefore devoid of any real substance and cannot be entertained for a moment. The appellant moreover was a bad witness. This is apparent on a mere reading of the evidence and I am mot prepared to say that the trial court was wrong
in rejecting it out of hand.
The trial court found that the appellant had taken Captain Gouws and Sgt. Yako to the scene of the shooting, and that he had made the confession to which

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Gouws deposed, and there is no reason to question this finding on appeal. Mr. King, however, sought to attack the admissibility of the confession on another ground. He submitted that inasmuch as Captain Gouws was a member of the Murder and Robbery unit to which the investigating officer belonged, and inasmuch as he had on five previous
occasions, in the course of his duty, checked the police
docket to ensure that the investigation was proceeding, he ought not to have taken the confession from the appellant; that this, as I understood his argument, amountéd to an ir-regularity; and that the trial court ought to have excluded the confession on these grounds.

In his evidence Captain Gouws denied that he had in any way been involved in the investigation of the

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offence, or that he was conversant with the facts of the case. He had never seen the appellant before Els had brought him to his office on the morning of 2 March 1988. He conceded, however, that in his capacity as an officer in the Murder and Robbery unit, he was required from time to time to check the dockets of the various investiga-
ting officers in the unit to see that the investigations
were proceeding properly and to offer advice where ne-cessary. When performing such duties he says he may be required to look at 60-80 dockets a month, and that it was therefore impossible for him to remember the details of all the cases. He conceded, too, that, according to entries on the docket, he had checked the docket in the present case on five occasions - the last occasion

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being on 26 January 1988, some 36 days before taking the

confession.: He consistently repeated his denial that,

in spite of these inspections, he could recall anything

about the case when he saw the appellant on 2 March.

The admissibility of confessions is governed by the provisions of section 217 of Act 51 of 1977.
The criteria fpr the admissibility of a confession in

terms of that section are that it must be proved to have been freely and voluntarily made, by a person in his sound and sober senses, and without having been unduly influenced thereto. The section then goes on to pro-vide that confessions made to a peace officer, other than a magistrate or a justice of the peace, shall in certain circumstances be inadmissible in evidence. A justice

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of the peace is defined in section 1 of the Act with
reference to the Justice of the Peace and Commissioners
of Oaths Act, 1963 (Act 16 of 1963). In terms of
section 4 of that Act, read with the first schedule, a
commissioned officer of the South African Police is ex
officio a justice of the peace, and therefore entitled
to take a confession. This right, conferred on such
an officer by the Act, cannot be denied him by the Court,
even where he may happen to be attached to the unit in-
vestigating the offence to which the confession relates

(S. v. Mbatha and Others 1987 (2) SA 272 (A) at 279 B -

280 B). In that case the officer who took the con-

fession was the head of the investigating unit which

performed its duties under his personal supervision.

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His duties also required him to go through the investigating officer's dockets and to give advice and instructions where necessary. The Court there held that the fact that he had taken the confessions involved could not in itself constitute any irregularity and that the primary test was still to determine whether the confessions hád been made freely and voluntarily by the accused while they were in their sound and sober senses and without them having been unduly in-fluenced thereto. (Cf. also S. v. Khoza and Others, 1984 (1) SA 57 (A) at 59 E - 60A.) Mr. King's submission therefore, that the mere fact that Captain Gouws had taken -the confession amounted to an irregularity cannot be sus-tained, nor does the fact that he checked the cdocket in the present case doubt on his credibility. The appellant's

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allegations of assaults perpetrated on him by the police prior to his being taken to the scene of the offence by Gouws and Yako, were rejected by the trial court as false, and this finding, as I have indicated, cannot successfully
be attacked on appeal. In any event the appellant does not suggest that any of the assaults alleged by him prompted him to make a confession. In fact he denied making any
confession at all. The trial court found that he did make a confession, and that he did so freely and voluntarily, without being unduly influenced thereto, and while he was in his sound and sober senses. No good reason has been advanced to show that this finding was wrong, and Mr. King's attack on the admissibility of the confession must therefore fail.

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In his appeal to this Court Mr. King also sought a special entry relating to an alleged irregular refusal by the trial judge to állow him to see Warrant Officer Els' pocket book. In raising this aspect during argument Mr. King conceded that he sought to rely solely on the record in elaborating his submissions. In such event a special entry-was not really necessary, (R. v. Nzimande 1957 (3) SA 772 (A) at 775 A - D; Sefatsa and Others v. Attorney-General, Transvaal and Another 1989 (1) SA 821 (A) at 843 H - I) and só Mr. King did not press this aspect. Furthermore, when it was pointed out to him that it appeared from the record that the trial judge had not in fact refused any such

application, but that the application itself had not been

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persisted in, Mr. King abandoned the point altogether. I need therefore not refer to this aspect any further.
Another alleged irregularity Mr. King sought to rely on related to the trial judge's refusal to allow him to have insight into the police docket or to elicit its contents from Captain Gouws. From the record it appears that during the investigation as to the admissibility of the confession the prosecutor, after referring to the police docket, informed Mr. King that it appeared that Captain Gouws had inspected the docket on five occasions prior to the pointing out. After the court had held the confession to be admissible, Captain Gouws was re-called to depose to its contents. In the ensuing cross-examination Mr. King again took up the issue of

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Gouws' knowledge of the case prior to taking the confess-ion, and he asked Gouws to refer to the docket in order

to ascertain the exact dates on which he had inspected

it. After an initial objection Mr. Price agreed to
allow Gouws to look at the docket and to inform the court

of the dates on which he had inspected it. Mr. King
then asked him to tell the court what instructions he
had written in the docket on each occasion. This Mr.
Price strenuously opposed on the grounds that the in-

formation in the docket was privileged. After argument
on this issue the trial judge ruled that

"the application that you may have insight into the docket is refused."

Before us Mr. King argued that the trial judge

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had "erred and misdirected itself in upholding the State's
objection", and that this constituted an irregularity.

The police docket in a criminal trial, contain-

ing, as it generally does, the statements of witnesses
the prosecution intends to call, notes made by the
investigating officer as to the nature and progress of
his investigation, and the instructions and advice re-
lating to the investigation inscribed from time to time
by some supervisory officer, would, in my vïew, be prima
facie privileged. It would seem to be akin to the
State's brief to the Attorney-General or the prosecutor
that presents the State's case to the court, and it is a
well recognized principle that "as you have no right to

see your adversary's brief, you have no right to see

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that which comes into existence merely as the materials for the brief" (per James L.J. in Anderson v. Bank of British Columbia L.R. 2 Ch. D 644 quoted with approval in R. v. Steyn 1954 (1) SA 324 (A) at 332 A - B). Steyn's case (supra) expressly held that statements made by wit-nesses to the police before the trial were so privileged.
In the same way,it seems to me, notes made by the investi-
gating officer in the docket, and the advice and instruct-
ions of a "checking officer" would be privileged as being
confidential communications, intended ultimately for the Attorney-General, and made for the purpose of getting evidence. (Cf. R. v. Steyn (supra) at p 332 E - 334 A). To ask Gouws to tell the court in evidence what he wrote in the docket on each occasionr would in effect be to deny

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the privilege and to render any protection of the infor-mation illusory (International Tobacco Co. (S.A.) Ltd. v. United Tobacco Cos. (South) Ltd. (3) 1953 (4) SA 251 (W) at p 255 H - 256 C).
Of course a party can, either expressly or by his conduct, waive the privilege, in which case the opposite party would be entitled__to see the document,
(cf. S. v. Fourie en 'n Ander 1972 (1) SA 341 (T)) and in the present case Mr. King contended that there had indeed been such a waiver by the State. He contended that the fact that Mr. Price had provided him with the dates on which Gouws had checked the docket, and had there-after allowed Gouws in evidence to look at the docket in order to verify those dates, constituted a waiver of any

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privilege there may have been. I cannot agree. In
Ex parte Minister van Justisie: In re S. v. Wagner 1965

(4) SA 507 (A) at 514 D - E Rumpff J.A. is reported as ,
saying:

"By stilswyende afstand van privilege moet daar altyd 'n element van publikasie van die dokument of 'n deel daarvan wees wat as grond kan dien vir die afleiding dat die litigant of aanklaer nie meer die inhoud van die stuk geheim wil hou nie. Wigmore beskryf die houding van die stilswyende afstanddoener soos volg in deel 8 van sy werk (3de uitg.) in para. 23:

'There is always also the objective considera-tion that when his conduct touches a certain point of disclosure, fairness requires that his immunity shall cease, whether he intended the result or not. He cannot be allowed, after disclosing as much as he pleases to withhold the remainder. He may elect to withhold or disclose, but, after a certain point, his election must remain final.'"
In order to substitute a waiver the disclosure

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of the contents of the privileged document must be of such a nature as to warrant the inference that the pro-secutor no longer seeks to rely on its secrecy. This inference is an objective one, and the test is one of fairness in the circumstances of the case. Here Mr. Price provided Mr. King with the five dates reflected
in the docket as being the occasions on which Gouws in-
spected it. This he did, not to advance his own case in any respect, but to assist Mr. King in his cross-examination of Gouws. Mr. King's subsequent insistence that Gouws himself should look at the docket to confirm those dates - reluctantly conceded to by Mr. Price -was once again designed to assist the defence case and not the case for the State. To submit that these concessions

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amount to a waiver of the privilege seems to me to be quite untenable. No considerations of fairness suggest such a conclusion, and the trial judge was fully justi-fied in upholding the privilege of the docket.
Mr. King's heads of argument contains reference to a further alleged irregularity namely that the trial

judge unfairly interfered with and limited cross-examina-
tion of State witnesses. This submission was not per-sisted in before us, and was expressly abandoned by Mr. King. I need therefore not refer to it any further.
The appellant was charged and convicted of the murder of Fourie, the attempted murder of Jacobs, Schwartz, and Moolman, and the illegal possession of a firearm. There was some suggestion in the heads of argument that

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the appellant ought only to have been convicted on one count of attempted murder and not on three. This point was not argued before us, and in any event I do not think that it could have prevailed. The three complainants were together at the van when the appellant deliberately fired in their direction, apparently reckless as to whether
any or all of them should be hit. In my view he was
correctly convicted on all three counts. The trial judge sentenced the appellant to 10 years' imprisonment on each of the three counts of attempted murder, and to two years' imprisonment on the count of being in illegal possession of the firearm, but ordered that all these sentences be served concurrently. On the first count viz of the murder of Fourie, the court found no extenuating circumstances

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and sentenced the appellant to death. An appeal was noted against the latter finding, as well as against the sentences in respect of each of the other counts.
The appellant was 21 years and 9 months old at the time of the commission of the offence, and had pro-gressed to Std. III at schoól. The court found that
although he was not a particularly intelligent person,
he was perfectly capable of realizing what was happening about him and that he appeared to have played an active and leading role in the activities of the Comrades. The offence itself was of a particularly despicable nature. The appellant shot and killed Fourie in cold blood without any form of provocation whatever. The only reason advanced by him was that Fourie was a white

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man and that he and his fellow Comrades did not want to see white men in the area where they lived. The dé-spicable nature of the offence was properly taken into account by the trial court (S. v. McBride 1988 (4) SA 10 (A)) and I can find no reason to differ from the trial court's finding that in all the circumstances of the case there were no extenuating circumstances.
The sentences in respect of the other offences do not strike me as being at all unreasonable, more parti-cularly in the light of the fact that they are all to run concurrently.

The appeal is dismissed.

J.P.G. EKSTEEN, J.A.

E.M. GROSSKOPF, J.A. )
concur
STEYN, J.A. )

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