Mudau v The State

The appellants were charged in the Limpopo Local Division of the High Court with murder, attempted murder, and robbery with aggravating circumstances. The charges arose from an incident on an unspecified date where two unknown males entered a carpentry workshop shack. One assailant, who was shorter and armed with a firearm, fired two gunshots, one killing the deceased Mr Robert Mandiwana. The taller assailant, armed with a knife, robbed Mr Raymond Lishivha of R55 and stabbed him three times in the back and shoulders. Two State witnesses, Mr Lishivha and Ms Portia Budeli, were present but could not identify the assailants. The appellants were initially charged with a third accused whose conviction was set aside by the Supreme Court of Appeal on 1 April 2009. On 14 July 2003, both appellants were convicted of murder, assault with intent to cause grievous bodily harm, and robbery with aggravating circumstances. The first appellant was sentenced to life imprisonment for murder and 15 years for the other offences. The convictions were based solely on confessions made by the appellants to Magistrate Matamela on 2 December 2002 and 9 December 2002 respectively. The defence objected to the admissibility of the confessions, alleging they were obtained through threats, assault, and force, and that the preamble forms were not properly completed.

• Whether the appellants' confessions were admissible under section 217 of the Criminal Procedure Act 51 of 1977
• Whether the confessions were made freely and voluntarily without undue influence
• Whether the statutory requirements for recording confessions were complied with
• Whether the first appellant's statement constituted a confession or an exculpatory statement
• Whether the trial court improperly applied the confession of one appellant against the other in violation of section 219 of the CPA
• Whether the appellants' constitutional right to a fair trial under section 35 of the Constitution was violated
• Whether the trial judge's conduct during the trial within a trial created an apprehension of bias

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.'

The binding legal principles established in this case are: (1) A confession must be an unequivocal acknowledgment of guilt admitting all essential elements of the offence charged; a statement made with exculpatory intent does not constitute a confession (applying R v Becker 1929 AD 167 and R v Hans Veren 1918 TPD 218). (2) Under section 217 of the CPA, a confession is only admissible if proved to have been freely and voluntarily made by a person in sound and sober senses without undue influence; the State bears the onus of proving admissibility. (3) Advising an accused that making a confession will "allow the matter to proceed quickly" constitutes undue influence rendering the confession inadmissible. (4) Material omissions in the pro-forma confession form, particularly regarding constitutional rights, voluntariness, and the accused's wish to make a statement, render the confession inadmissible, and such omissions cannot be remedied by the magistrate's uncertain recollection at trial. (5) Under section 219 of the CPA, a confession made by one accused is inadmissible as evidence against a co-accused and must be excluded when determining the guilt of the co-accused. (6) Under section 35(5) of the Constitution, evidence obtained in violation of Bill of Rights protections must be excluded if admission would render the trial unfair or be detrimental to the administration of justice. (7) The impartiality of a judicial officer and the perception of impartiality are fundamental to the administration of justice; judicial comments suggesting predetermined conclusions create apprehensions of bias and violate the right to a fair trial.

The court made several non-binding observations: (1) It noted that even before the Constitution, cases emphasized the importance of informing accused persons of constitutional rights at every important stage during the recording of confessions, citing S v Mpetha 1982 (2) SA 406 (C). (2) The court observed that the Constitution has significantly widened the grounds upon which admissibility of confessions may be challenged in criminal proceedings by entrenching rights such as the right not to be compelled to make confessions (section 35(1)(c)), the right to remain silent and be informed of that right (section 35(1)(a) and (b)), and the right to legal representation (section 35(4)). (3) The court noted with concern the practice of the same magistrate recording confessions of co-accused relating to the same incident, suggesting that inquiry should be made whether another magistrate was available to avoid potential contamination. (4) The court emphasized that the cornerstone of the legal system is impartial adjudication and that judicial officers must not only be impartial but must be perceived as impartial, citing Van Rooyen v The State 2002 (5) SA 246 (CC) and the Canadian case Valente v The Queen. (5) The court noted that it did not need to consider the appeal against sentence given that the convictions were set aside, implicitly suggesting that sentence appeals become moot when convictions are overturned.

This case is significant in South African criminal law and procedure for several reasons: (1) It reinforces the strict requirements for admissibility of confessions under section 217 of the CPA and the constitutional protections under section 35 of the Constitution; (2) It emphasizes that magistrates must properly complete all pro-forma questions when recording confessions and that omissions cannot be remedied by vague recollections during testimony; (3) It confirms that the onus to prove admissibility of confessions always rests on the State, not on the accused; (4) It highlights the constitutional requirement that accused persons must be informed of their right to silence, right to legal representation, and that they should not be unduly influenced (such as being told a confession will expedite matters); (5) It demonstrates that confessions obtained in violation of constitutional rights render the trial unfair under section 35(5) of the Constitution; (6) It reinforces section 219 of the CPA, which prohibits using one accused's confession against a co-accused; and (7) It addresses judicial impartiality and the danger of creating apprehensions of bias through inappropriate judicial comments during trial. The case serves as an important reminder of the constitutional and procedural safeguards that must be observed in criminal trials, particularly in capital cases.