Badu v Minister of Police & another (4716/2014) [2021] ZAECGHC 53 (19 January 2021)

IN THE HIGH COURT OF

SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 4716/2014

Date heard: 20/11/2020

Date delivered: 19/01/2021

In the matter between:

BULELANI

BADU Plaintiff

and

MINISTER OF POLICE

First Defendant

NATIONAL DIRECTOR OF

PUBLIC

Second Defendant

PROSECUTIONS

JUDGMENT

ROBERSON J:

[1] It is common cause in this action that on 24 November 2012 the plaintiff was arrested by a member of the first defendant on a charge of rape. He appeared in the magistrate’s court Kirkwood on 26 November 2012. The granting of bail was opposed by the prosecutor. He was remanded in custody from time to time with the intention of applying for bail but eventually abandoned his bail application on 9 January 2013. His trial was heard in the Grahamstown High Court and during August 2013 he was found not guilty on charges of rape and housebreaking with intent to steal.

[2] The plaintiff’s claim against the defendants is for damages arising from his alleged unlawful detention from the time of his first appearance in court. He initially claimed for the period of detention from 26 November 2012 to 24 February 2013, but later reduced the period to 9 January 2013, the date on which he abandoned his bail application.

[3] The foundation of the plaintiff’s claim is the allegation that during the said period of detention, there was no admissible evidence in the police docket which implicated him. It was alleged that the detention was wrongful in that the investigating officer, Warrant Officer Ndoni, who was opposed to the plaintiff’s release and who advised the prosecution accordingly:

1. Knew or ought to have known that there was no admissible evidence in the police docket to identify the plaintiff as the person who had committed the rape;

2. Knew or ought to have known that no justification existed for the detention of the plaintiff;

3. Failed promptly to conduct a proper investigation in order to obtain admissible evidence;

4. Failed to inform the prosecutor that there was no admissible evidence justifying the detention of the plaintiff.

It was further alleged that the prosecutors who dealt with the matter against the plaintiff:

1. Failed to acquaint themselves with the contents of the police docket;

2. Failed to appreciate or ignored the fact that the docket contained no admissible evidence to identify the plaintiff as the person who had committed the rape;

3. Failed to withdraw the case against the plaintiff;

4. Failed to inform the presiding magistrate of the lack of admissible evidence implicating the plaintiff;

5. Failed to act objectively and impartially in accordance with the prosecutorial code of conduct;

6. Failed to take steps to ensure that the plaintiff was released from detention as soon as possible;

7. Acted unlawfully by applying for the detention of the plaintiff.

[4] The first defendant admitted the arrest and detention and pleaded as follows: Ndoni was satisfied that a prima facie case existed and advised the prosecutor accordingly. The plaintiff was legally represented at his first appearance in court and thereafter had agreed to his remand in custody on each occasion. The plaintiff was advised that the charge against him was a schedule 6 offence and the provisions of s 60 of the Criminal Procedure Act 51 of 1977 (the CPA) applied.[1] The police docket represented a prima facie case against the plaintiff and it was denied that the plaintiff was detained without the existence of any admissible evidence which identified him as the perpetrator of the rape. Prior to his arrest the plaintiff had admitted to one Constable Njwabule that he had committed the offence and after his arrest had admitted in his warning statement that he had committed the offence. The second defendant pleaded in a similar fashion as the first defendant and in relation to the specific allegations against the prosecutors, pleaded that they acquainted themselves with the contents of the police docket, gave proper consideration to the plaintiff’s release on bail or otherwise, were satisfied that a prima facie case existed, conferred with the investigating officer and at all times acted in the bona fide execution of their duties.

[5] It is useful at this stage to reproduce the relevant portion of the statement of Njwabule, as well as the plaintiff’s warning statement. The plaintiff’s stance was that the contents of these statements amounted to inadmissible confessions. These statements were in the police docket at the time of the plaintiff’s first appearance in court.

[6] Njwabule stated that on 24 November 2012 he was on duty when he received a complaint about a suspect who had been apprehended by members of the community. When he arrived at the scene he saw a number of people who called him and told him that they had a suspect who had raped a young girl the previous week. He went on to state (all sic):

“I asked the suspect his name and he told me that he is Bulelani Bhadu of Nsengeni. I asked him if does he know anything about these allegations about him. He said to me yes he did raped a young girl at her home on Saturday last week and he said to me he’s sorry about what he did because he was drunk. Bulelani did also told his friends during the week about what he did over the last weekend.”

Njwabule went on to mention the names and addresses of the friends.

[7] According to the warning statement, the plaintiff’s rights had been explained and he was informed by Ndoni that he, Ndoni, was investigating a case of housebreaking and rape and that he had information which implicated the plaintiff. The plaintiff’s statement read as follows (all sic):

“2012/11/17 the morning I open the door was locked with chain. Break in that house and inside I was with ‘Fofo’. I did not see something I could steal in the room there was 3 children in the room. There was 2x minor children and young girl +- 10 yrs in the room. The victim scream I closed her mouth with my hand not to make noise and I show her the big knife I had with me not to make noise. My friend ‘Fofo’ was standing outside and I was with the victim in the room. I tried to insitted my penis but could not get in and someone knock on the door and she open the door and she said to the man I am inside and raping her. He took out a knife I block and run out of the house but he did not manage to stop me. I am sorry of what I done by breaking in to their house and rape the minor child to I forgiveness of what I had done. State all freely not forced to state.”

[8] The plaintiff testified that he was 19 years old and a scholar at the time of his arrest. During his testimony in chief he was referred to the record of proceedings from his first appearance, when he was joined as accused no 2. The record reflects that he was represented by a Ms Keli and that the prosecutor informed the court that the charge was a schedule 6 offence and that she was opposing bail. The plaintiff was remanded to 5 December 2012 for further investigation and a formal bail application. Section 60 of the CPA was explained and it was recorded that the plaintiff understood. The plaintiff said that at his first appearance in court the right to apply for bail was explained. He initially said that he did not understand but eventually said that he did understand, as had been recorded by the magistrate. He also said that he knew what bail meant. On this date he spoke to Keli and told her that he wanted to apply for bail.

[9] The record of proceedings on 5 December 2012 reflected that accused no 1 was a minor and was to be referred for a preliminary enquiry. Keli was on record for accused no 1 and the plaintiff. The prosecutor requested a postponement of the bail application so that the preliminary enquiry could be concluded and then the matter could proceed in respect of both accused. Keli had no objection to the postponement and stated that both accused could apply together for bail. The matter was postponed to 7 December 2012. The plaintiff said that what took place was not explained to him. He waited for Keli to speak to him about bail but she did not speak to him and no-one told him that the case was going to be postponed.

[10] The further record reflects that the matter was postponed to 10 December 2012 on which date it was recorded that the State and the defence agreed that the bail application should be postponed to 10 December 2012 so that the preliminary enquiry in respect of accused no 1 could be finalised. Up to this point Keli was on record for both accused.

[11] The record reflects that on 10 December 2012 Mr Baatjie appeared for the plaintiff. The prosecutor informed the court that the case of accused no 1 had been postponed for him to be examined by a doctor with regard to his mental capacity. Baatjie informed the court that the mother of the plaintiff, accused no 2, wanted to be present at the bail application and that he, Baatjie, had no objection to a postponement. It was recorded that by agreement between the State and the defence that the matter was postponed to 21 December 2012. The plaintiff said that he did not speak to Baatjie about bail. It was not he who told Baatjie that he wanted his mother to be present and said that perhaps it was his mother who had said so.

[12] According to the record, on 21 December 2012 Mr Stander appeared for the plaintiff. The prosecutor informed the court that accused no 1 had been requisitioned to appear but had not been sent to court. Stander agreed and asked that the matter should be postponed to 28 December 2012 when accused no 1 could be present. By agreement the matter was postponed to 28 December 2012 for further investigation and a formal bail application. The plaintiff said that Stander had not explained to him what had taken place and that he did not speak to Stander.

[13] According to the record on 28 December 2012 Ms Goqo represented the plaintiff and by agreement between the State and the defence the matter was postponed to 9 January 2013 for further investigation and a formal bail application. The plaintiff said that Goqo did not speak to him.

[14] The record of proceedings of 9 January 2013 reflects that Keli again appeared for the plaintiff and that her instructions were to abandon the bail application and that the plaintiff confirmed his instructions. The plaintiff said that he had abandoned his bail application because he knew he was innocent and wanted his case to be heard. He had been in custody for a long time, the case had been dragging on and he decided to let the trial begin. He knew that if bail was paid he would be released.

[15] He was unhappy at the various postponements for the bail application. He was not able to write his grade 10 examinations and only completed grade 10 in 2014. He was detained at St Albans correctional centre and on his first day there he was forced to choose between the 26 and the 28 gangs and was also assaulted. He was always afraid. There were about fifteen persons in his cell and insufficient space. They had to wake up at 03h00 to wash. There was one toilet in the cell which was not clean and they had to clean it. Use of the toilet was not private because it was not closed off.

[16] His case was eventually transferred to the High Court and finalised during 2013. According to the record of proceedings in the High Court he was the only accused and was charged with housebreaking with intent to steal, and rape. The complainant in the rape charge was alleged to be a nine year old girl. The plaintiff was found not guilty on both charges on 13 August 2013.

[17] The plaintiff denied that it was his signature on the warning statement. He only saw the statement when it was shown to him by his lawyer. He denied being interviewed by Ndoni. He agreed he had admitted guilt to Njwabule but he did so because he was afraid of the community members who had assaulted him.

[18] The plaintiff was the only witness. The defendants closed their cases after the close of the plaintiff’s case.

[19] As already indicated, the grounds for alleging that there was no admissible evidence contained in the police docket at the relevant times were that the statement made by the plaintiff to Njwabule and his warning statement were inadmissible confessions.

[20] Section 217 of the CPA provides:

“217 Admissibility of confession by accused

(1) Evidence of any confession made by any person in relation to the commission of any offence shall, if 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, be admissible in evidence against such person at criminal proceedings relating to such offence: Provided—

(a) that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in section 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; and

(b) that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question—

(i) be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such person by the magistrate; and

(ii) be presumed, unless the contrary 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. If it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto.

(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under proviso (b) to subsection (1).

(3) Any confession which is under subsection (1) inadmissible in evidence against the person who made it, shall become admissible against him—

(a) if he adduces in the relevant proceedings any evidence, either directly or in

cross-examining any witness, of any oral or written statement made by him either as part of or in connection with such confession; and

(b) if such evidence, is in the opinion of the judge or the judicial officer presiding at such proceedings, favourable to such person.”

[21] It is common cause that Njwabule and Ndoni were not justices at the relevant times. Hence if the statements made by the plaintiff were confessions, they would not have been admissible.

[22] Du Toit et al Commentary on the Criminal Procedure Act state as follows at 24-53:

“No statutory definition of a confession is provided. It is therefore necessary to look at the common law. The courts have given the term a very narrow construction so as to restrict the effect of the strict statutory requirements governing its admissibility. In R v Becker 1929 AD at 171 De Villiers ACJ concluded that a confession could only mean 'an unequivocal acknowledgement of guilt, the equivalent of a plea of guilty before a court of law’. It is therefore an extra-curial admission of all the elements of the offence charged. As Wessels J put it in R v Hans Veren & others 1918 TPD 218 at 221, the accused must in effect have said 'I am the man who committed the crime’.”

The learned authors state further at 24-53 to 24-54:

“It is thus clear that in respect of crimes which require mens rea an admission of the actus reus will not normally amount to a confession, no matter how prejudicial such admission appears to be (see S v Mofokeng 1982 (4) SA 147 (T) at 149; S v Robiyana & others 2009 (1) SACR 104 (Ck) at 119-120; S v Engelbrecht 2017 (3) NR 912 (SC) at [22]). Thus an admission such as 'I killed X’ will not be a confession, whereas 'I murdered X’ will constitute a confession, as 'murder’ is a technical term relating to the intentional and wrongful killing of a human being (see R v Blyth 1940 AD 355). See, too, S v Njiva & another 2017 (1) SACR 395 (ECM) where this proposition was accepted by the court and where Nhlangulela DJP (Alkema J concurring) accepted for that reason that an acknowledgment by the accused that he had 'stolen’ the property in question amounted to a confession to the crime of theft. The word 'kill’ refers to the mere physical act, and it is still open to the accused to raise a defence such as insanity, mistake, compulsion, self-defence or automatism. It would also be open to the accused to raise the defence that the killing was negligent or even accidental: see the dissenting judgment of Manamela AJ in S v Bakane & others 2017 (1) SACR 576 (GP) at [108]. Nor does it matter that in the circumstances of the case the possibility of the accused’s being able to avail himself of such defence is remote, for, as Fagan JA said in R v Xulu 1956 (2) SA 288 (A) at 294:

'The fact that such defences would be hopeless in the light of the circumstances to which the police would testify does not provide the missing elements in the statement so as to make it a confession.’”

[23] It was submitted on behalf of the defendants that the two statements did not amount to confessions and if that was the case, the claim must fail.

[24] I deal firstly with what was said by the plaintiff to Njwabule. It is so that the plaintiff said that he had “raped” a young girl, thereby using the technical term relating to an intention to have sexual intercourse with a complainant without her consent. However I am of the view that the words “because [I] was drunk” could be interpreted as a defence of lack of criminal capacity at the time, alternatively a defence that he did not act voluntarily. That qualification of his admission of rape cannot be ignored. It may well be that such a defence might appear remote or hopeless in the circumstances and at a trial would not succeed. However, for the purposes of deciding whether or not to proceed with the prosecution on the basis of what the plaintiff said to Njwabule, in my view it was not unreasonable for Ndoni and the prosecutors objectively to be of the view that the statement to Njwabule was not an unequivocal admission of guilt.

[25] It was submitted on behalf of the plaintiff that the plaintiff’s mention of drunkenness was merely mitigatory. I do not agree. He did not just say that he was drunk. He effectively said that he committed the offence because he was drunk, thus implicitly not admitting criminal capacity or the requisite intention.

[26] It was further submitted on behalf of the plaintiff that the plaintiff’s statement to Njwabule could at least be a confession to a contravention of s 1 (1) of the General Law Amendment Act 1 of 1988. Section 1 of that Act provides:

“1 Acts committed under influence of certain substances to be punishable

(1) Any person who consumes or uses any substance which impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation, while knowing that such substance has that effect, and who while such faculties are thus impaired commits any act prohibited by law under any penalty, but is not criminally liable because his or her faculties were impaired as aforesaid, shall be guilty of an offence and shall be liable on conviction to the penalty which may be imposed in respect of the commission of that act.

(2) If in any prosecution for any offence it is found that the accused is not criminally liable for the offence charged on account of the fact that his faculties referred to in subsection (1) were impaired by the consumption or use of any substance, such accused may be found guilty of a contravention of subsection (1), if the evidence proves the commission of such contravention.”

I cannot agree with this submission. It is an element of a contravention of s 1 (1) of Act 1 of 1988 that an accused must have knowledge that the substance has the effect of impairing his or her faculties. The accused did not admit this element in his statement to Njwabule. Moreover, even if it was a confession to this lesser offence, the prosecutor would more likely have wanted to proceed with the far more serious charge of rape. If it turned out at a trial that the evidence did not prove rape but a contravention of s 1 (1) of Act 1 of 1988, that would be a competent verdict.

[27] This brings me to the importance in this matter of the stage of proceedings when the defendants were in possession of the statement made to Njwabule. This was not the trial stage. The contested admissibility of a statement by an accused is usually decided during the trial, in a trial-within-a-trial. It might be that even if it was decided that the statement was an admission only, it would not have been admissible because it was made when the plaintiff had been apprehended and assaulted by community members, ie it was not made voluntarily as required by s 219A of the CPA.

[28] It was in my view too early in the proceedings to go this far and require a decision by the prosecution on whether or not the statement to Njwabule, given the reasonable interpretation that a defence was being raised, was a confession and therefore inadmissible. For the purpose of proceeding with the prosecution and not withdrawing the charge of rape, there were in my view, objectively, sufficient grounds for the State to continue with the case. I do not mean by this to say that in the case of a clearly inadmissible confession being the only evidence in the docket, a prosecutor does not have a duty to disclose this to the court at the first appearance.

[29] Counsel for the defendants referred to the matter of S v Ngwenya [2015] ZAGPPHC 654 (30 July 2015) where the following was said at paragraph 5.3:

“Thus, in order to determine what regime governs the admission of a particular statement, the court has to determine what kind of a statement it is. Furthermore, the court cannot simply rely on the say-so of a prosecutor or a defence lawyer to determine in which category a statement falls, since experience has shown that all too often they are mistaken. It is something that is for the presiding officer to judge, not for the prosecution or the defence; and, in the end, it will be the presiding officer’s judgment that is taken on appeal if necessary, not that of the prosecution or the defence.”

[30] I also refer to the judgment of Van Oosten J in Kiviet v M and Others [2017] ZAGPJHC 368 (8 September 2017) where he stated at paragraph [28]:

“It is not a requirement that the State should have a perfect or irrefutable case as was in effect contended for by counsel for the plaintiff. Nor is the prosecutor required to usurp the role of the Magistrate or Judge in deciding whether reasonable and probable cause for continuing with the prosecution exists. Solid as a case may appear to be on paper and even so after consultation with witnesses, it does not guarantee a conviction, as this case clearly shows. Aspects such as cross-examination of witnesses are amongst the numerous unforeseen variables that determine the outcome of a case. The acquittal of the plaintiff followed upon uncertainties having arisen upon the trial court’s evaluation of the complainant’s version in court. The acquittal did not as counsel for the plaintiff sought to suggest, follow upon a state case that was doomed to failure right from the outset.”

Kiviet involved a claim for malicious prosecution where after a trial the plaintiff was acquitted but I think that these words are nonetheless apposite in the present case.

[31] These above dicta illustrate my view that the question of the admissibility of the plaintiff’s statement to Njwabule, if it was going to be used at the trial, was to be determined at trial stage by the trial court. Prior to trial stage it would have been premature for the prosecutors to decide whether or not the statement was a confession. In doing so they would have usurped the function of the trial court. In a given case, as I have said, if it was clear that a statement was indeed a confession, the position would be different. But in this case I am of the view that it was not so clear and there would have been reason for admissibility to be argued at a trial and for the trial court to make a decision on admissibility.

[32] The plaintiff’s case against the defendants is essentially that as described in Woji v Minister of Police 2015 (1) SACR 409 (SCA). In this matter a police officer had testified at a bail application that the appellant was visible in video footage which was the only evidence of involvement in a bank robbery. The magistrate relied on this evidence and refused bail. It transpired that the appellant was not clearly depicted in the video. At paragraphs [27] and [28] Swain JA described the appellant’s cause of action as follows:

“[27] In the present case the challenge raised to the lawfulness of Mr Woji's detention is directed at the manner in which the magistrate's discretion was exercised, influenced as it was by the erroneous view of Insp Kuhn that Mr Woji was the fourth robber in the video. In Isaacs and Zealand this court was concerned solely with the legal consequences of the detention orders issued by the respective magistrates and not the manner in which the magistrate's discretion was exercised prior to the grant of these orders. In the context of s 12(1)(a) of the Constitution and the decision by the Constitutional Court in Zealand, an examination, of the legality of the manner in which the magistrate's discretion to further detain Mr Woji was exercised, cannot be precluded simply by the existence of the magistrate's order. The Constitutional Court in Zealand did not require the decisions of the respective magistrates to be set aside, before the lawfulness of the appellant's detention could be determined. Once it is clear that the detention is not justified by acceptable reasons and is without just cause in terms of s 12(1)(a) of the Constitution, the individual's right not to be deprived of his or her freedom is established. This would render the individual's detention unlawful for the purposes of a delictual claim for damages.

[28] The Constitution imposes a duty on the state and all of its organs not to perform any act that infringes the entrenched rights, such as the right to life, human dignity and freedom and security of the person. This is termed a public law duty. See Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 CC (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22) para 44. On the facts of this case, Insp Kuhn, a policeman in the employ of the state, had a public law duty not to violate Mr Woji's right to freedom, either by not opposing his application for bail, or by placing all relevant and readily available facts before the magistrate. A breach of this public law duty gives rise to a private law breach of Mr Woji's right not to be unlawfully detained, which may be compensated by an award of damages. There can be no reason to depart from the general law of accountability, that the state is liable for the failure to perform the duties imposed upon it by the Constitution, unless there is a compelling reason to deviate from the norm. Mr Woji was entitled to have his right to freedom protected by the state. In consequence, Insp Kuhn's omission to perform his public duty was wrongful in private law terms. See Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565) paras 34 – 38 and 43.”

[33] At paragraph [32] the learned judge concluded as follows:

“The detention of Mr Woji, however, resulted from the order granted by the magistrate. In order to determine whether the conduct of Insp Kuhn was a sine qua non and therefore the factual cause of Mr Woji's detention, it has to be determined 'what the relevant magistrate on the probabilities would have done' had the application for bail not been opposed, or Insp Kuhn had revealed that Mr Woji was not clearly depicted on the video. See Carmichele (SCA) para 60. Because the video was the only evidence ostensibly linking Mr Woji to the crime, the magistrate more probably than not would have released him on bail. It is also clear that Insp Kuhn's wrongful conduct was sufficiently closely connected to the loss for liability to follow, hence it also constituted the legal cause of that loss. See Carmichele (SCA) para 71. The court a quo therefore erred in dismissing the appellant's claim for unlawful detention. The duration of his unlawful detention was accordingly from 12 December 2007 when bail was refused, until his release on 13 January 2009, a period of 13 months.”

[34] I also refer to what was said by van Zyl ADJP (as he then was) in Singatha and Another v Minister of Police and Another [2015] ZAECBHC 19 (26 March 2015) at paragraph [41] (footnotes omitted):

“The rights or duties of the police and the prosecutor which may arise from the position of the burden of proof in bail proceedings, must not be equated with their public law duties which may arise from the Constitution, and given content by the prosecutor’s special relationship with the Court and the role which he fulfills in criminal proceedings. Once an accused person is brought before a Court, the authority to detain him, which arises from the power to arrest a suspect, is exhausted. His further detention is then within the discretion of the Court. That discretion is subject to wide ranging statutory directions. Section 60(11)(a) provides that the Court must order that an accused person be detained in custody pending his trial, unless the accused satisfies the Court that exceptional circumstances exists which in the interests of justice permits his release. While section 60(11)(a) may shift the burden of proof to the accused, the issue remains essentially the same as in any other proceedings where a Court is called upon to decide the question of the release of an accused on bail, namely a judicial determination whether his release from detention is in the interests of justice. Because an order made in terms of section 60(11)(a) affects the freedom of the person concerned, it brings into play his entrenched right in section 12(1)(a) of the Constitution not to be deprived of his freedom arbitrarily or without just cause. That means, as in the case of Woji v Minister of Police, that the police and the prosecutor may be found to have a public law duty to assist the Court in giving effect to, and protecting the entrenched right of the accused in section 12(1)(a).”

[35] With particular regard to the allegations against the first defendant, and in the light of what was stated by Swain JA, I cannot find any wrongful causative conduct on the part of Ndoni. Njwabule’s statement was in the police docket and spoke for itself. There was no misleading of the prosecutor or the court. It was not for Ndoni to decide on the admissibility or otherwise of the plaintiff’s statement to Njwabule.

[36] Would it have made any difference to the magistrate’s decision to order the further detention of the plaintiff if the prosecutors had informed him of the contents of Njwabule’s statement? Would he more probably than not have released the plaintiff? I do not think so. Objectively he too might not have considered the statement of the plaintiff to Njwabule to be a confession and probably would have considered it a matter to be decided by a trial court.

[37] Counsel for the plaintiff relied on the judgment in S v Maliga 2015 (2) SACR 202 (SCA). In this matter at the trial the prosecutor had sought to have admitted the appellant’s warning statement which was an inadmissible confession. At paragraph [21] Pillay JA said the following:

“In this case the prosecutor was duty-bound to alert the presiding officer of the possible dangers which were lurking in admitting the warning statement. The prosecutor, who was the only person likely to know exactly what evidence he was about to place before court, ought to have at least sought a ruling on the admissibility of the warning statement and the statement allegedly made by the appellant to the policemen who arrested him. The written statement, as he himself now concedes, is a confession. It could not have been admitted, for lack of compliance with legal formalities. If the prosecutor were intent on having such evidence admitted, at the very least he should have requested a trial-within-a-trial in order to determine the admissibility of the warning statement. The same can be said about the evidence by the policemen who arrested the appellant. It must, however, be said that it is difficult to understand how anyone could mistake what is clearly a confession for a warning statement. The prosecutor failed in his duty. Had the proper procedure in regard to the admissibility of these statements been followed, the scenario which the appellant faced would have been quite different, as conceded. But for these inadmissible statements, there would be no case for the appellant to answer.”

In my view the present matter is distinguishable, in that the statement made by the accused to Njwabule was not clearly a confession.

[38] Accordingly I can find no wrongful causative conduct on the part of the prosecutors.

[39] It is not necessary for me to deal with the plaintiff’s warning statement in the light of my views on his statement to Njwabule. Even if it amounts to an inadmissible confession, the plaintiff’s statement to Njwabule was still in the docket and available to the prosecutors.

[40] There is also no need for me to consider the defendants’ alternative submissions in relation to the onus on the plaintiff to have pursued his bail application and the possibility that bail would have been granted. These submissions related to legal causation of further judicial detention as discussed in Mahlangu and Another v Minister of Police 2020 (2) SACR 136 (SCA) at paragraphs [37] to [41].

[41] The following order will issue:

The plaintiff’s claim is dismissed with costs.

_____

J M ROBERSON

JUDGE OF THE HIGH

COURT

Appearances:

Plaintiff: Adv A Hattingh, instructed by GP van Rhyn, Minnaar & Co, c/o Dullabh & Co, Makhanda.

Defendants: Adv K L Watt, instructed by Whitesides Attorneys, Makhanda.

[1] This would be s 60 (11) (a) of the CPA which provides that an accused charged with a schedule 6 offence must adduce evidence that exceptional circumstances exist which in the interests of justice permit his release on bail.

PROSECUTIONS _______________

_______________

It was further alleged that the prosecutors who dealt with the matter against the plaintiff:

“It is thus clear that in respect of crimes which require mens rea an admission of the actus reus will not normally amount to a confession, no matter how prejudicial such admission appears to be (see S v Mofokeng 1982 (4) SA 147 (T) at 149; S v Robiyana & others 2009 (1) SACR 104 (Ck) at 119-120; S v Engelbrecht 2017 (3) NR 912 (SC) at [22]). Thus an admission such as 'I killed X’ will not be a confession, whereas 'I murdered X’ will constitute a confession, as 'murder’ is a technical term relating to the intentional and wrongful killing of a human being (see R v Blyth 1940 AD 355). See, too, S v Njiva & another 2017 (1) SACR 395 (ECM) where this proposition was accepted by the court and where Nhlangulela DJP (Alkema J concurring) accepted for that reason that an acknowledgment by the accused that he had 'stolen’ the property in question amounted to a confession to the crime of theft. The word 'kill’ refers to the mere physical act, and it is still open to the accused to raise a defence such as insanity, mistake, compulsion, self-defence or automatism. It would also be open to the accused to raise the defence that the killing was negligent or even accidental: see the dissenting judgment of Manamela AJ in S v Bakane & others 2017 (1) SACR 576 (GP) at [108]. Nor does it matter that in the circumstances of the case the possibility of the accused’s being able to avail himself of such defence is remote, for, as Fagan JA said in R v Xulu 1956 (2) SA 288 (A) at 294:

JUDGE

OF THE HIGH COURT