THE COURT OF APPEAL - SWAZILAND
the matter between:
APPELLANT : MR. MAMBA
CROWN : NGARUA
Crown has quite rightly conceded that there is only one issue to be
decided in this case; that is, was the confession made by the
Appellant admissable or not? If it was - so the defence also quite
rightly conceded - the appeal must fail. If it was not, the appeal
must be upheld.
above issue has been even further refined. On the evidence before it,
the court a quo had to determine only whether the Crown had proved
that Appellant's confession was not induced by any "undue
influence" that may have been brought to bear upon him. The
relevant provision is Section 226(I) of the CRIMINAL PROCEDURE AND
EVIDENCE ACT 67 OF 1938 which provides as follows:
confession of the commission of any offence shall, if such confession
is proved by competent evidence to have been made by any person
accused of such offence (whether before or after his apprehension and
whether on a judicial examination or after commitment and whether
reduced into writing or not), be admissible in evidence against such
that such confession is proved to have been freely and voluntarily
made by such person in his sound and sober senses and without having
been unduly influenced thereto;"
is not necessary for the purposes of this case to set out the facts
in any detail . I proceed therefore only to relate facts that are
relevant for the purposes of determining whether or not in the
circumstances of this case the Crown has proved beyond a reasonable
doubt that Appellant's confession was made freely and voluntarily and
without the Appellant having been unduly influenced to make it.
Appellant is alleged to have committed the crime of murder. According
to the indictment he did so on the 10th November 1995 by shooting the
deceased - who he believed to be a witch. He pleaded not guilty but
was found guilty - principally upon the contents of a statement
Appellant made to a Magistrate on the 7th December 1995.
is perhaps relevant to record that Appellant was traced by the police
in the Republic of South Africa and was brought back by them to
Swaziland without any extradition proceedings being conducted. He
made a statement to the police which was reduced to writing.
According to the investigating officer (PW1) he then "...asked
him that concerning what he wanted to give us, the statement, how
about going to give (a or the) statement to someone who is not a
Magistrate for example." His response according to PW1 was, "He
said he could go to the Magistrate." He was asked whether
anything else was said and he replied, "I do not remember such
occurring." He conceded in cross-examination however that he did
suggest to the Appellant that he should make a statement to a
that may be, it is common cause that when the Appellant appeared
before the Magistrate the following day and is asked by the
Magistrate, "Was any promise or threat made to you or was
anything said or done to you to induce you to make a statement to
me?", he replied: "I was not coerced but they (presumable
the police) said that if I talk this later may help me during the
Magistrate who recorded the statement did not pursue the matter or
enquire further during his interview with the Appellant. He confirms
that his understanding of what the Appellant was trying to say was
that he was not threatened, but that he was advised by the police
that it would be to his advantage at his trial if he made a
another police officer, PW3, denied that any such suggestion was
made, the Appellant did under oath confirm that he was told, "...
that when I made the statement (to the police) that would help me in
Court during the trial."
Counsel correctly conceded that in the light of the evidence as a
whole, the Court was obliged to accept that the Appellant had been
told by the police that if he made a statement to the Magistrate
doing so might help him at his trial. He also conceded - correctly in
my view - that this may indeed have influenced the Appellant to make
a statement to the Magistrate. However, he urged us to find that such
influence was not "undue"
pointed to the fact that the Appellant himself said that he did not
believe the police when they told him that it would help him at the
trial (if he made a statement to the Magistrate). This was indeed the
basis on which the learned trial Judge (Matsebula J) held the
confession to be admissable in evidence. This approach, i.e. that
simply because Appellant made this statement in evidence that he had
not believed the police, he was not unduly influenced, was in my
opinion correctly, challenged by Mr. Mamba on behalf of the
Appellant. The question still has to be answered whether it was
proved beyond a reasonable doubt that the inducement did not impact
significantly on his free will.
is one to approach the question whether the volition of the Appellant
was unduly influenced and what test does one apply when doing so.
HOFFMAN AND ZEFFERT SOUTH AFRICAN LAW OF EVIDENCE contend that the
approach must be to conjoin the two requirements of voluntariness and
undue influence. They, say the following at Page 217 of the 4th
is, indeed, artificial when discussion of the appropriate test, to
separate the requirement that a confession must be voluntary from the
requirement that it must be made without undue influence. As Olgivie
Thompson JA pointed out in S V RADEBE AND ANOTHER, the overall
inquiry is whether the words of the section have been satisfied. The
question is, therefore: was the confession freely and voluntarily
made without the accused's having been unduly influenced to make it?
Although "undue influence" and "voluntariness"
have separate meanings, this is no doubt what Van den Heever JA meant
in R V KUZWAYO when he said that these terms are "plainly
concepts ejusdem generis and relate to factors which are calculated
to negative the exercise of free will."
that may be, I do agree with the contention advanced by the learned
authors op cit when they say:
words "without having been unduly influenced thereto" tend
to be widely interpreted to include all cases in which external
influences have operated to negative the accused's freedom of
volition. Innes CJ in S V BARLIN said that they are elastic and may
operate to enlarge in some degree the area of exclusion."
is of fundamental importance is whether or not the fairness of the
hearing could be impugned by the admission of the statement which is
challenged. Thus e.g. Holmes JA, said in S V LWANE 1966(2) SA 443(A)
at 444 that:
pragmatist may say that the guilty should be punished and that if the
accused has previously confessed as a witness it is in the interests
of society that he be convicted. The answer is that between the
individual and the day of judicial reckoning there are interposed
certain checks and balances in the interests of a fair trial and the
due administration of justice. The rule of practice to which I have
referred is one of them, and it is important that it be not eroded.
According to the high judicial traditions of this country it is not
in the interests of society that an accused should be convicted
unless he has had a fair trial in accordance with accepted tenets of
also generally the seminal discussion in CROSS ON EVIDENCE 6TH ED.
533 - 555. See particularly the authors comments concerning the
origins of the exclusionary rule as formulated in R V WARWICKSHALL,
1783,1 LEACH CC 263 @264 where the reason for exclusion is because -
"a confession forced from the mind by the flattery of hope, or
by the torture of fear, comes in so questionable a shape when it is
to be considered as the evidence of guilt, that no credit ought to be
given to it, and therefore it is to be rejected."
to the importance of the preservation of a fair trial, see the
comments of Lord Salmon in SANG 1980 A.C. 402 @445 cited by Cross op
cit @537. See also generally SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE
VOL. V.870 - 871 and the cases cited there.
assessing the validity of Counsel for the Crown's argument that
Appellant, although possibly influenced by the police officers
statement - such influence was not "undue" - both the
policy considerations referred to above as well as certain subjective
factors need to be considered.
to the latter - Appellant is a young man. He said he was born in 1997
(I assume it was 1977 or alternatively 1979). He never went to
school. He was arrested across the border and brought back into
Swaziland by the police and was told that either it could or would,
help him at his trial if he made a statement to a Magistrate. The
onus is on the Crown to prove beyond a reasonable doubt that he was
not unduly influenced to make a statement by the promise (unspecific
as it might have been).
says he was. However, in fairness to the Crown it is clear that not
much weight can be attached to his evidence given at his trial.
Indeed he was a poor and unreliable witness. What is of the greatest
significance, however, is what this illiterate youth says in response
to the question as to whether any undue influence was brought to bear
upon him. His reply that he was not coerced but that he was told by
the police that an unspecified advantage would (or could) accrue to
him should he make a statement.
policy considerations outlined by CROSS and in the SOUTH AFRICAN LAW
cited above are important. Confessions as proof of commission of a
crime are the resort of the indolent police officer. Extracting
confessions were (and still are) the tools of authoritarian regimes
all over the world. They are questionable means of proving guilt when
no other proof can be found. The risks of contaminating fairness are
therefore always present when self-incrimination becomes the only
arrow in the state's quiver.
into account the subjective factors mentioned above, the incidence of
the onus as well as the policy considerations, it is my view that the
Crown failed to prove that the statement in question was not made
without undue influence being brought to bear on the Appellant. It
was accordingly wrongly admitted in evidence.
follows that because, as indicated above, had the confession been
excluded, the Crown conceded that it had no case, the Appellant was
appeal is upheld and the conviction and sentence are set aside.
on this...........day of September 1997
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