S v Nyalunga (A 256/09) [2009] ZAGPPHC 241 (31 March 2009)
- Citation
- [2009] ZAGPPHC 241
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- B.R. du Plessis, E. Jordaan
- Case number
- A 256/09
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- B.R. du Plessis, E. Jordaan
- Case number
- A 256/09
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the State's case relied entirely on the confessions of the accused, which were challenged as not being freely and voluntarily made. The magistrate failed to conduct a trial within a trial to determine the admissibility of the confessions, which is a distinct issue from the merits. This procedural irregularity constitutes an injustice and renders the trial unfair. Without the confessions, there was no evidence to support the convictions. The irregularity could not be condoned, and the convictions and sentences, as well as the orders declaring the accused unfit to possess a firearm, were set aside.
Court disposition
Convictions, sentences, and orders declaring the accused unfit to possess a firearm are set aside.
Orders
- The convictions and sentences of both the accused are set aside.
- The orders declaring both the accused unfit to possess a firearm are set aside.
02
Material facts
Parties
The State
ApplicantMthokozisi Donald Nyalunga
RespondentAmounts and remedies
- Fine Imposed on Each Accused: ZAR 3,000
03
Procedural history
Posture
Criminal Review / Automatic Review After Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the confessions made by the accused were admissible as evidence.
- 02
Whether failure to conduct a trial within a trial constituted an irregularity rendering the trial unfair.
- 03
Whether the convictions and sentences based solely on the confessions should stand.
Party arguments
- Applicant
- The State's case was based exclusively on confessions made by the accused to Captain Mbuyani. The State did not present any other admissible evidence linking the accused to the offence.
- Respondent
- The accused contended during cross-examination that their confessions were obtained through assault and were not made freely and voluntarily. They challenged the admissibility of the confessions and argued that a trial within a trial should have been held to determine admissibility separately from the merits.
05
Court’s reasoning
Legal principles
- 01
S v De Vries 1989 (1) SA 228 (A) at 233H to 234B
Where an accused disputes the voluntariness of a confession, the admissibility of the confession must be determined separately from the merits by conducting a trial within a trial.
- 02
S v Mdyogolo 2006 (1) SACR 257 (E) at 261g to h and at 263c to g
Failure to conduct a trial within a trial in such circumstances constitutes an irregularity that ordinarily results in an injustice and renders the trial unfair.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the State's case relied entirely on the confessions of the accused, which were challenged as not being freely and voluntarily made. The magistrate failed to conduct a trial within a trial to determine the admissibility of the confessions, which is a distinct issue from the merits. This procedural irregularity constitutes an injustice and renders the trial unfair. Without the confessions, there was no evidence to support the convictions. The irregularity could not be condoned, and the convictions and sentences, as well as the orders declaring the accused unfit to possess a firearm, were set aside.
Obiter and limits
- Justice requires that the issue of admissibility of a confession be resolved separately from the merits to protect the rights of the accused.
- Had a trial within a trial been conducted, the accused might have been able to show the confessions were inadmissible without exposing themselves to cross-examination on the merits.
Court disposition
Convictions, sentences, and orders declaring the accused unfit to possess a firearm are set aside.
- The convictions and sentences of both the accused are set aside.
- The orders declaring both the accused unfit to possess a firearm are set aside.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
DATE:31/03/2009
CASE NO:A256/09
Magistrate’s Serial No: 86/08
Case No: A990/08
Supreme Court Ref No: 114
THE STATE v MTHOKOZISI DONALD NYALUNGA
REVIEW JUDGMENT
DU PLESSIS. J:
The two accused in this automatic review case were convicted of housebreaking with the intent to steal and theft. They were both
sentenced to a fine of R3000 or 12 months imprisonment. In addition they were both declared unfit to possess a firearm.
The state’s case against the two accused is, apart from inadmissible hearsay, exclusively reliant upon confessions that the
accused respectively made to Captain Mbuyani of the SAPS. When they respectively cross- examined him, each of the accused put it to Mbuyani that they had been assaulted in order to make the confession. When the accused did so, the question whether the confessions were freely and voluntarily made, was put in issue.
Where an accused contends that a confession was not made freely and voluntarily, he is placing in issue the admissibility of the
confession as evidence. It is settled law that the issue of admissibility of a confession is an issue distinct from the merit of
the case against the accused. Justice therefore requires that the issue of admissibility be tried and resolved separately from the other issues. In our law that is done by way of a trial within a trial. (See S v De Vries 1989 (1) SA 228 (A) at 233H to 234B) A court that fails in such circumstances to conduct a trial within a trial commits an irregularity. (S v Mdyogolo 2006 (1) SACR 257 (E) at 261g to h and at 263c to g). It is an irregularity that ordinarily constitutes an injustice and renders the trial unfair.
I have pointed out that the state’s case against the accused is completely reliant on the admissibility of the confessions. Without the confessions, there is no evidence that proves the case against the accused. Had a trial within a trial been conducted, the accused might have been able to show that the confessions were inadmissible without at the same time exposing themselves to cross examination on the merits of the case against them. The irregularity cannot be condoned.
In the result the following order is made:
1. The convictions and sentences of both the accused are set aside.
2. The orders declaring both the accused unfit to possess a firearm are set aside.
B.R. du Plessis
Judge of the High Court
I agree
E. Jordaan
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