Case No 154/93, 381/93
E du P
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
BERNARD MTWANA LATHA	First Appellant
MBUSO SADAM SIBISI	Second Appellant
and
THE STATE	Respondent
Coram: NESTADT, F H GROSSKOPF et NIENADER JJA
Heard:	Delivered:
25 February 1994	24 March 1994.

2
JUDGMENT F H GROSSKOPF JA:
The two appellants were convicted of murder, robbery with aggravating circumstances and rape in the Durban and Coast Local Division by Combrinck J sitting with two assessors. The appellants were both sentenced to death on the murder count and to twelve and eighteen years imprisonment respectively on the robbery and rape counts. The appellants appeal against their convictions and sentences on all three counts. On the counts other than the murder count they appeal with leave of the Court a quo.
There was a further suspect, one Mzo Nxumalo, ("Mzo"), who is alleged to have played a major role in the commission of these crimes. Forensic tests showed that: he was present at the scene of the crime, but he died before the trial commenced.

3
The deceased was a 38 year old housewife who
lived with her husband and three daughters in a house in Pinetown. During the morning of 12 February 1992 the deceased was alone at the house. The evidence clearly shows that she was attacked by somebody armed with a firearm. It is common cause that she died as a result of a gunshot wound of the abdomen. Apart from the fatal wound the deceased sustained another injury which was consistent with a bullet wound. It perforated the deceased's scalp in two places but did not penetrate the skull. There was also a superficial laceration of her right arm which could have been caused by a glancing bullet. The deceased's hat was found next to the laundry sink outside the kitchen door. In the hat were two holes which coincided with the two perforations found in the deceased's scalp. There were other clear indications as well that a shot or shots had been fired at the deceased while she was still outside the house. It appears that she then entered the house through the kitchen. Her

4 assailants thereafter raped her, ransacked the house and
stole a radio, two wristwatches and a few other articles.
The deceased's body was later found inside the house in
the passage next to the kitchen.
The main issue in the case was the identity of
the deceased's assailants. Each of the appellants made a
confession in which he implicated himself in the
commission of the crimes in question. The State also
relied on certain pointings out by both appellants at the
scene of the crime. The admissibility of these
confessions and pointings out was contested by the
appellants in the Court a quo on the basis that they were
not made freely and voluntarily. A trial within the
trial was held to determine this aspect of the case. At
the conclusion thereof the learned trial judge ruled that
the confessions by both appellants as well as the
pointing out by the first: appellant were admissible. The
pointing out by the second appellant on the other hand
was held to be inadmissible because the Court a quo was

5 not satisfied that the constable who acted as interpreter
on that occasion had sufficient knowledge of the
languages used to give a proper interpretation.
The appellants testified in the trial within the trial, but they both elected not to give evidence in the main trial. The only witness who testified on behalf of the defence was the investigating officer, and his evidence was of a purely formal nature.
The Court a quo considered the evidence, other than the confessions by the two appellants and the pointing out by the first appellant, in order to determine whether the requirements of s 209 of Act 51 of 1977 had been met. The Court found that there was conclusive evidence aliunde that the crimes in question had actually been committed, and that there was also cogent evidence confirming the confessions in material respects. In my view these findings cannot be controverted. The first appellant in fact accepted that the commission of these crimes had been properly proved

6 by evidence aliunde. Although the second appellant did
not make any concession in this regard, he did not
seriously contest these findings. In my view there is
indeed no basis for challenging these findings. The
crucial question that has to be decided, therefore, is
whether the confessions and the first appellant's
pointing out were properly admitted by the Court a quo.
The confessions of both appellants were made to
police officers and the onus was accordingly on the State
to prove beyond reasonable doubt that such confessions
were freely and voluntarily made by the appellants in
their sound and sober senses and without having been
unduly influenced thereto (s 217(1) of Act 51 of 1977).
The same principle applies to the incriminating
statements made to the police officer by the first
appellant in the course of his pointing out. The
State also had to show that the pointing out as such
was freely and voluntarily made. (S v Sheehama 1991(2)
SA 860 (A) at 878C-879I, 880H-881G.)

7 The first appellant made his confession to
Colonel Roux of the murder and robbery branch of the
Durban police station. The investigating officer in this
case, Warrant Officer Prinsloo, was a member of that
branch. The second appellant's confession was taken by
Captain van der Mescht of the same murder and robbery
branch. The sergeant who interpreted for van der Mescht
was also a member of that branch. Counsel for appellants
complained that members of the murder and robbery branch
were used to record the confessions. They submitted that
where a magistrate was readily available it was
undesirable to take the appellants to police officers to
make their confession, particularly where those police
officers were members of the same unit which was
investigating the case. This Court has held in a number
of cases that although it would not be irregular for a
police officer attached to the particular unit which
investigated the matter to take a confession, it would be
preferable in such a case to take the suspect to a

8
magistrate or a police officer who was a member of
another unit. (S v Mdluli and Others 1972(2) SA 839(A) at 840H-841D; S v Mbatha en Andere 1987(2) SA 272(A) at 279a-280b; S v Mahlabane 1990(2) SACR 558(A) at 561h-563a.)
In dealing with this problem the Court has often stressed 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. It has been pointed out, however, that the undesirable practice of taking an accused for a confession to a police officer who is, or who is perceived to be, part of the investigating team, "constitutes fertile earth for an accused in which to plant the seed of suspicion", or "may plant suspicion in the mind of the accused". (S v Dhlamini and Another 1971(1) SA 807(A) at 815A-C; Mdluli's case, supra, at 841 A-B. ) This in turn often leads to a protracted inner trial to determine the issue of admissibility.

9
The evidence of the investigating officer in
this case shows that he unfortunately failed to heed the repeated judicial remarks in this regard. In the result he burdened the State with the onus of proving that the confessions were freely and voluntarily made, whereas the State could otherwise have relied on the presumption provided for in s 217(1)(b) of Act 51 of 1977.
A redeeming feature is that it was apparently not envisaged by the police at the outset that the appellants were going to make full confessions. As soon as it became evident in the case of each appellant that he was incriminating himself, the police officer taking the statement immediately warned the appellant and gave him the opportunity to proceed before a magistrate.
I shall deal firstly with the circumstances surrounding the first appellant's confession. Although Colonel Roux was the commanding officer of the murder and robbery branch he was not part of the investigating team. The sergeant who acted as interpreter was similarly not

10
part of the investigating team. He was on special duty
at the time and only subsequently joined that particular unit. Roux testified that he was asked by Prinsloo to take an ordinary statement and not a confession. According to Roux only those suspects who wished to make a confession were taken to a magistrate.
The veracity of Roux's evidence is borne out by the wording of the printed form which he used, and by his subsequent conduct when the first appellant proceeded to incriminate himself. The particular form which Roux utilized was certainly not the usual form for taking down a confession. The form was headed "statement by suspect". At the end thereof it made provision for the signature of the investigating officer as the person who took the statement. The crimes which the first appellant was alleged to have committed were set forth in an annexure to this so-called "warning statement". The printed form required the interrogator to inform the suspect that he may prove his innocence by answering the

11
questions put to him. One would hardly have expected such an instruction in a form making provision for a confession. When reading the actual statement of the first appellant it will be observed that Roux immediately stopped him when he started to implicate himself in the commission of the crimes. It appears that Roux then warned the first appellant that his statement could amount to a confession and that Roux further informed him that he was not obliged to continue, but if he wished to do so he could proceed before a magistrate. The first appellant replied that he wanted to tell Roux what had happened.
The pointing out by the first appellant was done in the presence of Captain Prinsloo of the child protection unit who had nothing to do with the investigation of the case.
The second appellant's confession was made to a police officer in similar circumstances. Captain van der Mescht testified that he was a member of the murder and

12 robbery branch, but that he had his own unit while the
investigating officer was a member of a different unit.
Van der Mescht made it quite clear that he was not
involved in any way in the investigation of the case.
The same applies to the sergeant who acted as interpreter
for van der Mescht. Van der Mescht testified that he was
asked by Prinsloo to take down a so-called
"onderhoudsverklaring" of the second appellant. He then
used the same printed form as Roux, and the observations
which I have made with regard to that form apply equally
to the second appellant's confession. When the second
appellant started to incriminate himself van der Mescht,
like Roux, informed him that his statement might amount
to a confession. Van der Mescht warned him that he was
not obliged to go any further, but if he preferred to do
so, he could proceed before a magistrate. The second
appellant intimated that he understood what had been
explained to him, but that he wished to continue with his
statement before Captain van der Mescht.

13
I find it unlikely that both police officers
would have used the wrong form if the appellants had been brought to them for confessions. It is even more improbable in my view that both police officers would have added the piece about warning the particular appellant midway through his statement if such warning had not in fact taken place. In all the circumstances I can find nothing sinister in the way in which these confessions were taken by police officers of the murder and robbery branch. There is no justification in my view for suggesting that it was done in this manner to cover up alleged police assaults on the appellants. But seeing that these confessions were taken by police officers of the murder and robbery branch, though not of the same unit which investigated the matter, the trial Court looked more closely at the evidence to establish whether the confessions were indeed freely and voluntarily made. The judgment of the Court a quo confirms that the

14 question of admissibility was approached with added
caution for that very reason.
At the conclusion of the evidence in the trial
within the trial, counsel then appearing for the first
appellant informed the Court a quo that he did not wish
to address the Court on the admissibility issue - not
surprisingly if one considers the extremely poor quality
of the first appellant's testimony. According to his
evidence he was assaulted and tortured by the police
under Sergeant Fitchat after Fitchat had arrested him
during the night of 24 February 1992. He was taken to
the office of Colonel Roux the next day to make a
statement, but nobody informed him of the alleged charges
against him. He told Roux that he was not willing to
make a statement, whereupon Sergeant Fitchat was called
in. Fitchat removed him from Roux's office and assaulted
him, causing an injury to his finger. On his return to
Roux's office the first appellant still refused to make a
statement. Roux then took out some paper and started

15 writing something down without asking the first appellant
any questions. When Roux had finished writing he asked
the first appellant to place his thumbprint on the paper,
which he did. This version was entirely different from
the one which his counsel had put to the various State
witnesses during cross-examination, namely that the
interpreter read to him what was allegedly contained in
the second appellant's statement, and that he was obliged
to repeat the same story to Colonel Roux. On both these
versions the conduct of the police was completely
irrational as well as grossly improper. It is hard to
believe that the police would have used such methods to
obtain the first appellant's confession. The first
appellant's evidence relating to the pointing out was
equally unconvincing, all the more so because he kept on
changing his version.
The first appellant's statement was dated 25
February 1992 while the pointing out was done during the
morning of 26 February 1992. That same afternoon the

16
first appellant was examined by a medical practitioner in
the office of the district surgeon at Durban. The doctor found no sign of any recent injuries. The first appellant did not draw the doctor's attention to the injury to his finger allegedly sustained during Fitchat's assault the previous day. He conceded that he should have complained to the doctor, but that he had failed to do so. This failure on the part of the first appellant seriously reflects on his credibility, more particularly with regard to the alleged assault.
The second appellant's evidence is that he was assaulted and tortured over a period of many hours after he had been arrested by Fitchat during the afternoon of 24 February 1992. One of the policemen allegedly hit him on the mouth causing a bleeding cut to the left side of his upper lip. The next morning Fitchat told him that he must make a statement, and he was then taken to Captain van der Mescht. The second appellant however refused to make a statement, whereupon van der Mescht allegedly

17 threw his pen down and told Fitchat to hit him.
According to the second appellant Fitchat took him down
the passage, bumped him against the wall and took him
back to van der Mescht. By then the second appellant had
decided to make up a story. On his evidence van der
Mescht did not ask him any of the preliminary questions
set forth in the printed form, but merely told him that
he was going to make a statement. The police had
previously told him what the charges against him were and
in what circumstances the crimes had been committed, but
nobody had told him what to say. His evidence is that
the actual contents of the statement were all lies made
up by him as he went along.
During the cross-examination of the second
appellant the Court a quo ruled that in view of the
second appellant's defence that the contents of the
statement were false, it was permissible for the State to
cross-examine him on what was contained therein. Counsel
for the second appellant submitted that the court a quo

18 misdirected itself in allowing such cross-examination.
It has been held by this Court in S v Khuzwayo 1990 (1) SACR 365(A) at 371g-374d that where an accused alleged that the contents of a confession were false and that he had been told by the police what to say in the confession, the State prosecutor was entitled to cross-examine him on the contents of the confession. (See also S v Lebone 1965(2) SA 837(A) at 841H-842C; S v Talane 1986(3) SA 196(A) at 205E-206B; S v Potwana and Others 1994(1) SACR 159(A) at 165h-166d.) In my opinion the same principle applies in the present case where the second appellant alleged that the contents of his statement were false inasmuch as it was all lies made up by him. As was pointed out in Lebone's case, supra, at 842B-C, the cross-examination of an accused is allowed in such a case not to prove that the contents of the statement are true, but in order to test the credibility of the accused in respect of the issues raised by him in the trial within a trial. In my judgment there was

19 accordingly no misdirection on the part of the learned
trial judge in allowing the State to cross-examine the
second appellant on the contents of his statement.
The Court a quo found that it was impossible
for the second appellant to have invented the detailed
story contained in his statement. The Court a quo
observed that the second appellant could give no
reasonable explanation as to why it was necessary falsely
to implicate the first appellant in this made-up story.
The Court a quo further found that the second appellant's
evidence that he was assaulted on the mouth on the
evening of 24 February 1992 was manifestly false. He was
examined by the same doctor as the first appellant, also
on the afternoon of 26 February 1992. The doctor found
no sign of any recent injury and he was adamant that the
scar on the second appellant's upper lip was not a recent
wound at the time. A number of photographs of the second
appellant had been taken immediately prior to his

20 pointing out. on 25 February 1992. These photographs
do not show any such injury.
The trial Court considered all the evidence
which was given in the trial within a trial and came to
the conclusion that the two appellants were not credible
witnesses. The evidence of both the appellants was
rejected as false on substantial grounds. The trial
Court had no hesitation on the other hand in accepting
the evidence of the State witnesses "who had made a good
impression on us and who gave their evidence in a clear
and forthright manner." In S v Francis 1991(1) SACR
198(A) at 204a-e this Court once again emphasized that
the powers of a Court of appeal to interfere with the
findings of fact of a trial Court are limited. In the
absence of any misdirection the trial Court's
conclusions, including its acceptance or rejection of a
witness' evidence are presumed to be correct. In order
to succeed on appeal, the appellant must therefore
convince the Court of appeal on adequate grounds that the

21 trial Court was wrong in either accepting or rejecting
the witness' evidence. "Bearing in mind the advantages
which a trial Court has of seeing, hearing and appraising
a witness, it is only in exceptional cases that this
Court will be entitled to interfere with a trial Court's
evaluation of oral testimony." (204e.) Counsel for the
appellants were unable to convince us that the Court a
quo was wrong in its evaluation of the witnesses, its
acceptance of the evidence of the State witnesses and its
rejection of the appellants' evidence in the trial within
the trial. In my judgment the Court a guo was therefore
correct in holding that the confessions of the appellants
as well as the pointing out by the first appellant and
his accompanying statements were admissible.
Counsel for the appellants submitted however
that their confessions did not go far enough to justify
their convictions on the murder count. 1 do not agree.
The first appellant said in his confession that he, the
second appellant, Mzo and another unidentified man went

22 to the deceased's house. They found her outside the
house at the washing line. The first appellant knew at
that stage that the second appellant was armed with a
firearm. He admitted that he himself was armed with a
screwdriver. The second appellant demanded money from
the deceased. When she replied that she had no money the
second appellant fired a shot at her. She ran into the
house and they followed her. The first appellant
admitted that he raped her and that he took a radio from
the lounge. At one stage he saw Mzo holding the firearm.
While still in the house he heard a shot. At the time of
the pointing out he told the police officer that he
actually heard two shots. He went to look for his three
companions and found them standing next to the deceased.
He then saw that she had been shot, but he could not say
who had done it.
The second appellant gave a somewhat different
version in his confession. According to him he and the
first appellant had decided to break into the deceased

23
house. Mzo accompanied them. Before they ' reached the
house Mzo produced a firearm and said that "if anyone inside this house which we are about to break into becomes stubborn he, Mzo, will shoot them". He admitted that he raped the deceased and that he took a radio. He left Mzo inside the house with the deceased, who was then still alive. While he and the first appellant were already outside he heard two shots from inside the house.
On the first appellant's version as set out in his confession he was a party to a common purpose to commit certain crimes. He knew from the outset that one of his companions was armed with a firearm. Thereafter he witnessed this person actually using the firearm to shoot at the deceased. Despite that knowledge he associated himself actively with the criminal conduct of the others. At the same time he personally committed rape and robbery. He clearly foresaw the possibility of the deceased being killed in the process. The necessary

24
intent to kill in the form of dolus eventualis was
therefore present in his case. I am therefore satisfied that he was a party to a common purpose to kill the deceased.
The same principle applies to the second appellant who was a party to a common purpose arising from prior agreement to commit housebreaking with intent to commit other crimes. Before he and his companions reached the house of the deceased Mzo made it quite clear to them that he was in possession of a firearm and that he intended using it in the event of any resistance by the occupants of the house. Notwithstanding that knowledge the second appellant associated himself actively with the criminal conduct of the others, while he personally committed rape and robbery. In those circumstances he too had the requisite mens rea in the form of dolus eventualis to kill the deceased. In my judgment he too was a party to a common purpose to kill the deceased. The fact that he was already outside the

25 house and busy running away when the shots were fired,
does not show that he intended to dissociate himself from
the existing common purpose. The only reason why he ran
away was because one of his companions had sounded a
warning to the effect that he should make his escape.
On the facts admitted in their respective confessions the appellants are in my judgment guilty of the murder. In this regard it should also be borne in mind that the appellants chose not to give evidence in the main trial. Their failure to testify tended to strengthen the State case.
There remains the question of sentence. As I have said, the appellants were both sentenced to death on the murder count. This Court must now consider, having due regard to the mitigating and aggravating factors as well as the main objects of punishment, whether the death sentence is the only proper sentence in respect of both appellants.

26 The first appellant was 27 years of age, while
the second appellant was 25 years old. The first
appellant had a number of previous convictions, including
one for culpable homicide for which he received a
suspended sentence of imprisonment in 1983, and one for
assault with intent to do grievous bodily harm where a
fine and a suspended sentence were imposed in 1984. He
did, however, subsequently serve three terms of
imprisonment for housebreaking with intent to steal and
theft. Although the first appellant appears to be a
recidivist one cannot rule out the possibility of
rehabilitation in his case. The chances of
rehabilitation may be better in the case of the second
appellant whose previous convictions are less serious
and less frequent than those of the first appellant.
One should not lose sight of the fact that
there was no evidence to show that either of the two
appellants had a hand in the actual killing of the
deceased. They were both convicted of murder on the

27 basis of common purpose. But that does not necessarily
mean that the death sentence should not be imposed.
There are serious aggravating features which ought to be
considered. The evidence shows that it was a
premeditated attack on a defenceless woman in the privacy
of her own home by armed intruders with greed as their
initial motive. They started off by shooting her in the
head without any warning. This was followed by a cruel
and sustained attack on a women who had been seriously
injured. In the end there was the senseless killing of
the deceased, probably executed with the sole object of
preventing identification.
This Court has expressed itself in a number of
cases on such attacks on defenceless victims in their own
homes, and has held that the interests of society demand
that deterrence and retribution may well outweigh
considerations of reformation in such cases. (s v Khiba
1993(2) SACR 1(A) at 4c-5b, and cases there cited.)

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In view of these considerations I am of the opinion that the death sentence is the only proper sentence for the murder of the deceased in the instant case. This applies to both appellants.
The sentences of imprisonment imposed by the Court a quo in respect of the robbery and rape counts were not ordered to run concurrently. This would result in the appellants having been sentenced to a total period of thirty years imprisonment for those two crimes. It seems to me that such a sentence is so harsh that interference by this Court is justified. In my judgment these sentences should be ordered to run concurrently.
The appeals of both appellants against their convictions and sentences are accordingly dismissed, save that it is ordered that their sentences of twelve

29
years imprisonment (in respect of the robbery) and
eighteen years imprisonment (in respect of the rape) are to run concurrently.
F H GROSSKOPF JA
NESTADT JA)
NIENABER JA) Concur.