THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 1148/2016

In the matter between:

NNDWAMBI MUDAU
FIRST APPELLANT

TSHIVHANGWALO RATHOGWA MUDAU
SECOND APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Mudau v The State (1148/2016) ZASCA 34 (29 March 2017)

Coram:

Tshiqi, Petse and Mbha JJA and Fourie and Mbatha AJJA

Heard:

15 February 2017

Delivered:

29 March 2017

Summary: Appeal against convictions and sentence: admissibility of confessions:
misdirections by trial court, right to a fair trial infringed: appeal upheld.

____________________________________________________________________
ORDER
____________________________________________________________________

On appeal from: Limpopo Local Division of the High court, Thohoyandou (Makgoba AJ
sitting as court of first instance):
1 The appeal against the convictions is upheld.
2 The convictions of both appellants on charges of murder, assault with intent to commit
grievous bodily harm and robbery with aggravating circumstances are set aside.
3 The order of the trial court is set aside in its entirety and replaced with the following:
„Both accused are found not guilty and discharged on all the charges.‟

______________________________________________________________________
JUDGMENT
______________________________________________________________________

Mbha JA (Tshiqi, Petse JJA and Fourie and Mbatha AJJA concurring):

[1] The appellants were charged in the Limpopo Local Division of the High Court,
Thohoyandou (Makgoba AJ), hereinafter referred to as the high court, with murder,
attempted murder and robbery committed with aggravating circumstances. On the first
count it was alleged that the appellants, acting in common purpose, unlawfully and
intentionally killed Mr Robert Mandiwana. On the second count it was alleged that they
attempted to kill Mr Raymond Lishivha, and on the third count it was alleged that they
assaulted Mr Lishivha and robbed him of R55.

[2] On 14 July 2003 the appellants were convicted of murder, assault with intent to
cause grievous bodily harm and robbery committed with aggravating circumstances.
They were sentenced to life imprisonment on the count of murder and 15 years‟
imprisonment on the counts of assault with intent to commit grievous bodily harm and
robbery with aggravating circumstances, which were taken together for the purpose of
sentencing. The appellants appeal against both conviction and sentence. Leave to
appeal was granted by the high court on 6 December 2012. It is pertinent at this
juncture to note that the appellants were initially charged with a third accused whose
conviction and sentence were subsequently set aside by this court on 1 April 2009.

[3] Two witnesses testified on behalf of the State, namely Mr Raymond Lishivha and
Ms Portia Budeli. They stated that they were inside a shack, which was used as a
workshop for Mr Lishivha‟s carpentry work, together with the deceased. Two unknown
males, one of them being tall and the other one short, entered the shack. The shorter of
the two males who was carrying a firearm fired two gunshots, one of which hit and killed
the deceased. The taller male person, who was carrying a knife at the time, searched
Mr Lishivha and took R55 from his pocket. He thereafter stabbed Mr Lishivha three
times in his back and shoulders. Thereafter the two assailants ran away from the scene.

[4] It is common cause that neither witness could identify the assailants. The State
then sought to hand in as evidence confessions of both appellants and a written
statement made by the third accused. The defence objected to the admissibility of the
confessions on the basis that they did not comply with the provisions of s 217 of the

Criminal Procedure Act 51 of 1977 (the CPA) in that the appellants were threatened,
assaulted and forced to make the statements, that these statements were not made
freely and voluntarily and, importantly, that the preamble forms of the confessions were
not completed in full.  This then necessitated the holding of a trial within a trial in order
to determine the admissibility of the two confessions and the statement made by the
appellants and the third accused respectively.

[5] Both appellants and their co-accused were required to testify first in the trial
within a trial. Thereafter the State called as witnesses, Mr Nditsheni Baldwing
Matamela, the magistrate who recorded the appellants‟ confessions on 2 December
2002 and 9 December 2002 respectively, the investigating officer Inspector Munyai and
another police officer, Inspector Musina. At the conclusion of the trial within a trial, the
court found that the appellants (and their co-accused) were not impressive witnesses
and rejected their evidence regarding the alleged incidents of assault. It concluded that
the accuseds‟ version that they were induced to make the statements could not be
accepted. It is common cause that both the appellants were convicted purely on the
basis of their confessions.

[6] The gist of the appeal against conviction, in respect of the first appellant, is briefly
that his statement in terms of s 217 of the CPA does not amount to a confession
because although he admits to having been at the scene at all relevant times, he never
implicated himself in any way and in fact exonerated himself from any guilt.

Furthermore, the trial court impermissibly convicted him on the basis of the confession
of the second appellant.

[7] In so far as the second appellant is concerned, his conviction is challenged on
the basis that his confession should not have been admitted because, it was not freely
and voluntarily made and he was unduly influenced into making the confession in that
he was told that a confession would „allow the matter to proceed quickly‟.

[8] The basis of the appeal against sentence is briefly that the trial court over-
emphasised the seriousness of the offence and the interests of society over the
personal circumstances of the appellants. Furthermore, the trial court ought to have
found that there were substantial and compelling circumstances that warranted a
deviation from the prescribed minimum sentence of life imprisonment.

[9] As the appellants contend that their confessions were wrongly admitted into
evidence, I deem it prudent to traverse, briefly, some of the relevant salient principles
governing confessions. The admissibility of evidence contained in a confession is
governed by s 217(1) of the CPA, which provides that such a confession shall be
admissible into evidence if it is proved to have been freely and voluntarily made by a
person in his sound and sober senses and without having been unduly influenced
thereto.

[10] It is trite that a confession must conform to the rigidly defined requirements
specified in s 217. Failure to satisfy any of the requirements will render it impermissible
to tender the statement as a confession. In R v Becker1 it was said that a confession
can only mean an unequivocal acknowledgment 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. Similarly in R v Hans Veren & others,2 it was said that the accused
must in effect have said „I am the man who committed the crime‟. Thus a statement will
not be regarded as a confession where it is made with an exculpatory intent. The
decisive factor is whether the accused has admitted all the essential elements of the
offence.

[11] A related provision is s 219 of the CPA which provides that „[N]o confession
made by any person shall be admissible as evidence against another person‟. A
confession made by one accused should be excluded when determining the guilt or
otherwise of his or her co-accused.3

[12] Whilst the admissibility of a confession is governed, in large measure, by the
provisions of s 217, it has become increasingly apparent that the question of
admissibility has significant constitutional implications. Section 35(5) of the Constitution
provides that:

1 R v Becker 1929 AD 167 at 171.
2 R v Hans Veren & others 1918 TPD 218 at 221.
3 S v Molimi 2008 (2) SACR 76 (CC) para 30.

„[E]vidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.‟
Examples that immediately come to mind are the duty to inform the accused of various
important constitutional rights, such as the right not to be compelled into making any
confession or admission that could be used against a person,4 the right to remain silent,
as well as to be informed promptly of that right, the consequences of not remaining
silent,5 the right to choose and to consult with a legal practitioner in a language that he
or she understands.6

[13] There are accordingly two separate but related inquires that have to be made in
determining the admissibility of a confession namely, whether the statutory
requirements referred to above have been satisfied, and whether in all the
circumstances the accused has had a fair trial.7 As can be seen, the Constitution has
significantly widened the grounds upon which the admissibility of a confession or
admission may be challenged in criminal proceedings.

[14] A confession made to and reduced to writing by a magistrate is, upon its mere
production, admissible in evidence provided that the requirements of s 217 are satisfied.
This means that a magistrate should ensure that the confession conforms to the
prescripts set out in the Constitution. Even before the advent of the Constitution, cases
are legion that emphasised the importance of informing the accused of his constitutional

4 Section 35(1)(c).
5 Section 35(1)(a) and (b).
6 Section 35 (4).
7 S v Chauke [2012] ZASCA 143 para 19.

rights to legal representation and the right to silence at every important stage during the
recording of a confession. Thus in S v Mpetha & others8 the court said at 408 E-H:
„Before the presumption comes into operation it must appear “from the document in which the
confession is contained” that such confession was made freely and voluntarily, etc. Normally no
confession of itself would refer to questions of voluntariness or undue influence. A person
making a confession is most unlikely to volunteer the fact that he is confessing freely and
voluntarily, that he is in his sound and sober senses and that he has not been unduly influenced
to make such confession. It is manifest therefore that implicit in the whole procedure envisaged
by the section is a questioning by the magistrate of the person confessing. These questions as
well as the answers must be recorded for it to be able to appear from the document that the
confession was made under the required conditions of voluntariness, etc. This, of course, is also
in accordance with long-standing practice. It is well known that over a period of many years
departmental instructions and the decisions of the Courts have built up a series of guidelines
designed to ensure that confessions are in fact freely and voluntarily made without the exercise
of undue influence ….‟
These rights have since the advent of the Constitution been entrenched in s 35.

[15] Contrary to what was stated in Mpetha, the recording of the confessions of both
appellants are replete with omissions, incoherent and contradictory recording of
answers by the appellants to questions, and serious non-adherence to some of the
fundamental principles governing confessions referred to above. I start with the
confession of the first appellant Mr Nndwambi Mudau.

8 S v Mpetha & others 1982 (2) SA 406 (C).

[16] Paragraph two of the form, setting out the accused‟s constitutional right to remain
silent and the right to legal representation, was left blank and not completed. Similarly,
paragraph three of the form which questions whether the deponent was in his sound
and sober senses and paragraph four which enquires whether the accused wished to
make a statement notwithstanding what had been explained to him, were also left blank.
Although the magistrate testified that he could still remember that the first appellant
answered in the affirmative to these questions, the correctness of his evidence in this
regard is seriously put in doubt as, when he was asked about the answer given in
relation to paragraph six which was also not completed, and how it came about that the
first appellant was brought to make a confession, he stated that he could not remember
the answer that was given. This must be viewed against the backdrop of the
magistrate‟s testimony that on the day in question he was extremely busy as he was
manning two courts on his own.

[17] Paragraph nine of the form was also left blank. The magistrate‟s viva voce
evidence when questioned on this was so convoluted and contradictory, that on this
ground alone this confession ought to have been excluded. I quote the magistrate‟s
testimony as it appears from the record:
„Makgoba M (J): He said he does not want to make a statement? Just repeat that one, the
question again and the answer? … The reply was no here.
Ja, just repeat the question for me again … Do you nevertheless wish to make a statement?
And the answer? … No.
So he said he does not want to make a statement? Is that what I understand? … Yes, I cannot
remember well there.‟ (My emphasis.)

[18] As can be seen from the exchange between the trial judge and the witness, it
should have been pertinently clear to the trial court that the first appellant undoubtedly
answered in the negative to the question whether or not he wished to make a
statement. Interestingly, the first appellant also repeated in paragraph 16 of the form
that he did not wish or prefer to make a statement.

[19] In my view the fact that the magistrate still proceeded to record the confession
and the fact that the trial court ruled that the confession was admissible resulted in a
serious miscarriage of justice and rendered unfair the first appellant‟s trial. The trial
court also ignored or overlooked, inexplicably, Inspector Munyai‟s testimony when he
conceded that he duly advised the first appellant of the advantages of making a
confession namely, that such confession was going to allow the matter to proceed
quickly. This in my view, amounted to unduly influencing the first appellant to make the
confession.

[20] The first appellant‟s so-called confession ought also to have been excluded on
another basis. The statement is not, in my view, an unequivocal admission of guilt as,
although he placed himself at the scene during the commission of the offences, he
nonetheless exculpated himself from any wrongdoing by averring that he was coerced
by his co-accused, the second appellant, to act in the manner in which he did. I quote
from the relevant parts of his statement:
„He then told me to enter inside. When I entered he ordered me to search two male persons
who live there. I searched that man and took R55.00 (Fifty five rand) from his pocket

…
He again called me and I was still frightened. There was a knife on the table. I took a knife and
stabbed another person at his back.‟
As not all of the elements of the offences were admitted, the first appellant‟s statement
did not amount to a confession and ought to have been excluded.

[21] This unfortunate trend about the poor completion of the pro-forma form continued
even with regard to the second appellant. The magistrate omitted for example, to record
the answer given to the question of whether the second appellant had wished to make a
statement and whether or not he had been assaulted or coerced into making a
statement. Although the magistrate later testified that he could recall that the answer
given was „yes‟, the correctness of his version to the questions posed  is doubtful as he
later stated that on the day concerned he was extremely busy and that he was manning
two courts by himself.

[22] The magistrate also omitted to record his observation whether the second
appellant was in his sound and sober senses with specific reference to anxiety,
nervousness, joviality and demeanour. This has to be considered against the backdrop
of the second appellant‟s evidence that when he was brought to the magistrate to make
the confession, he was dizzy because he felt he was being forced to admit an offence
which he did not commit. Even more disturbing is the fact that in reply to the question of
how it came about that the second appellant was brought to make a confession, the
magistrate simply recorded the answer given, namely, that he was advised by Inspector
Munyai, the investigating officer to report there. In my view, this was a red flag and is

something that should have alerted the magistrate and prompted him to make a follow
up to ensure that this accused was not influenced in any way into making any
confession.

[23] With regard to the conduct of the trial, specifically in relation to the trial within a
trial, the trial judge committed a number of serious irregularities and misdirections.
Firstly, he erroneously ruled at the commencement of the trial within a trial, that the
appellants had to first adduce evidence to prove that the confessions were not freely
and voluntarily made and without any undue influence. This, in my view, is a gross
misdirection because the onus to prove the admissibility of a confession rests, always,
on the State.9 The erroneous shifting of the onus to the appellants rendered their trial
unfair.

[24] The trial judge also ignored the fact that the same magistrate recorded both
appellants‟ confessions albeit on different dates ie 2 September and 9 September 2002
respectively. There is nothing in the record that indicates that the trial judge made any
attempt to check whether or not another magistrate was available to take down the
second appellant‟s confession later on. Whether or not magistrate Matamela was aware
that the second confession related to the same incident as that of the first appellant and
if so, whether he sufficiently warned and cautioned himself not to be in any way
influenced by what he already knew as emanating from the first appellant‟s earlier
confession, is doubtful.

9 S v Zuma & others 1995 (2) SA 642 (CC).

[25] After the second appellant had given his evidence-in-chief in the trial within a trial
and before the prosecutor could cross-examine him, the trial judge remarked and asked
the prosecutor: „Mr Nekhambela, I do not know if you would like to cross-examine this
witness. He made a very bad impression. I do not know, as a witness really. I do not
know whether would it be worth for you to cross-examine him, but you can have that
time. But he made a bad impression, really, I do not know. Do you have any questions
for the witness‟? Other than the fact that this unfortunate remark shows that the trial
judge had already decided that he was not going to accept the second appellant‟s
evidence, a perception of bias on the part of the trial judge by any reasonable person
was, in my view, in the light of the circumstances of this matter, inevitable.

[26] Our courts have persistently warned against the threat to the legitimacy of our
criminal justice system, created by perceptions of bias during hearings, given its
adversarial nature. In S v Basson,10  the Constitutional Court expressed itself in this
regard as follows:
„[27] The impartiality of a judicial officer is crucial to the administration of justice. So too is the
perception of his or her impartiality. These principles are recognised in many foreign
democracies. Thus in Van Rooyen & others v The State & others (General Council of the Bar of
South Africa Intervening)11 this court cited with approval the following reasoning of Le Dain J in
the Canadian Supreme Court in the case of Valente v The Queen:12
Both independence and impartiality are fundamental not only to the capacity to do justice in a
particular case but also to individual and public confidence in the administration of justice.

10 S v Basson 2007 (3) SA 582 (CC).
11 Van Rooyen & others v The State & others (General Council of the Bar of South Africa Intervening)
2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC)  para 32.
12 Valente v The Queen [1985] 2 SCR 673.

Without that confidence, the system cannot command the respect and acceptance that are
essential to its effective operation. It is, therefore, important that a tribunal should be perceived
as independent, as well as impartial,  and that the test for independence should include that
perception.‟

[27] This court has also expressed similar concerns. In S v Le Grange & others,13
Ponnan JA affirmed that the cornerstone of our legal system is the impartial adjudication
of disputes and that the law required „not only that a judicial officer must conduct the
trial open-mindedly, impartially and fairly, but that such conduct must be “manifest to all
those who are concerned in the trial and its outcome especially the accused”‟.14 In my
view, therefore, the conduct of the trial judge in this case sustains the conclusion that he
was not open-minded, impartial and fair during the second appellant‟s trial within a trial.

[28] The final misdirection that was committed by the trial court which, in my view, is
totally decisive of the fate of this appeal, occurred when the trial judge decided in his
reasoning  to apply the confessions and admissions by all three accused against one
another, in clear violation of s 219 of the CPA. I consider it appropriate to quote an
excerpt from the trial judge‟s judgment in this regard. He said the following:
„Whatever version they gave before the court, if one looks at the confession and the admissions
made, then the court is inclined to accept the version of the state. On count 1, that of murder,
the court makes a finding that it is indeed so, accused 3 wanted to get rid of the deceased
because he believed that the deceased would be a state [witness] against him.

13 S v Le Grange & others 2009 (1) SACR 125 (SCA) para 16.
14 S v Roberts 1999 (2) SACR 243 (SCA); 1999 (4) SA 915 (SCA) para 25, quoting S v Rall 1982 (1) SA
828 (A) at 831H-832A.

Then he wanted to get rid of him. He solicited the assistance of accused 2, who in turn solicited
the assistance of accused 1. In the circumstances then, the court finds that there was a
conspiracy to murder, between accused 2 and 3. Accused 1 joined in, realising and even
knowing fully well that there was a conspiracy to get rid of the deceased. In the circumstances I
make a finding that there was common purpose between the three accused and all three are
accordingly found guilty.‟
The trial court erred by not delineating and treating each confession separately as
against its specific maker, and instead treated all of them in blanket fashion against all
the accused.

[29] I am satisfied that the taking down of the appellants‟ confessions and the conduct
of their trial, especially the trial within a trial, were characterised by serious
misdirections, gross procedural irregularities and material non-observance of the
statutory requirements contained in ss 217 and 219 of the CPA, and other principles
governing confessions. Furthermore, there was a serious violation of the appellants‟
constitutional right to a fair trial as required by s 35(5) of the Constitution. The State
accordingly failed to discharge its onus of proving that the appellants‟ confessions were
made freely and voluntarily and without any undue influence. The confessions ought to
have been excluded but were wrongly admitted into evidence. Without the confessions,
there was no evidence to sustain the convictions. In the result this appeal must succeed
and both appellants‟ convictions must be set aside. In light of this finding, I do not deem
it necessary to consider the appeal against sentence.

[30] I accordingly make the following order:

1 The appeal against the convictions is upheld.
2 The convictions of both appellants on charges of murder, assault with intent to commit
grievous bodily harm and robbery with aggravating circumstances are set aside.
3 The order of the trial court is set aside in its entirety and replaced with the following:
„Both accused are found not guilty and discharged on all the charges.‟

________________
B H Mbha
Judge of Appeal

APPEARANCES:

For Appellants:

L M Manzini
Instructed by:

Thohoyandou Justice Centre, Thohoyandou

Bloemfontein Justice Centre, Bloemfontein

For Respondents:

N R Nekhambele
Instructed by:

The Director of Public Prosecutions, Thohoyandou

The Director of Public Prosecutions, Bloemfontein