The conduct of the police to suffocate a murder suspect into confessing that she had killed her husband, coupled with the fact that the SAPS then immediately rushed her off to obtain the written confession, without her first consulting her lawyer, led to her life imprisonment sentence being overturned.

The Pietermaritzburg High Court, on appeal, said it is not comfortable that the lower court last year convicted Hloniphile Ndlovu of murder and slapped her with a life sentence, purely based on the so-called confession.

The confession was the only evidence the regional court magistrate had against Ndlovu, who had denied that she shot her husband to death in their home. While she maintained that she was suffocated with a plastic bag over her head by the police before she “agreed to confess,” the magistrate chose to believe the SAPS 's account that this did not happen.

Both Ndlovu and her lawyer testified that the “confession” was made even though she had a lawyer to represent her. The SAPS claimed that her lawyer was told that she was going to confess that day, but that the lawyer did not bother to pitch at the police station to attend the confession proceedings.

The lawyer, in turn, testified that he had spoken to the police that day and that they never told him that she was going to confess. The trial magistrate, however, simply chose the evidence of the police over that of the accused and her lawyer.

In this regard, Judge Peter Olsen, on appeal, remarked that the magistrate’s reasoning for choosing the side of the SAPS is a “species of the age-old misdirection perpetrated when a judicial officer assumes that the police would not lie, as a result of which the accused’s evidence must be false".

During the trial, a trial-within-a-trial was held to determine the admissibility of the confession. It was the word of the accused and her lawyer against that of the police, and the magistrate chose the latter.

As there was no other evidence available, he convicted Ndlovu on the so-called confession, a post-mortem report in which it was said the husband was shot several times, and a photograph album containing photographs of the scene at which the deceased’s body had been found.

Ndlovu, meanwhile, testified that on the day of her arrest, she and her family were travelling to Ulundi to go to the mortuary. On the way, they received a message that they should stop off at the police station first, which is what they did.

She was questioned about her husband’s death and she said she knew nothing. But according to the police, she said she wanted to confess, as it “would set her free".

Ndlovu’s version was that during the interview she was held down by police in a room at the police station. Some plastic was placed over her face in order to suffocate her. She was told to signal when she was ready to confess. She did so when she found she was out of air, and for that reason said that she would make a statement.

“Her evidence on this score was typical of the type one hears frequently in court when confessions are repudiated,” the judge remarked.

He also questioned the fact that the SAPS took Ndlovu on a Saturday to see a magistrate to take down her confession. Judge Olsen said this could have been done on the following Monday, but it is clear the police wanted to obtain her confession before her lawyer became aware of it.

The result is that Ndlovu is now a free woman after serving a year and three months behind bars.

confession

Court overturns life sentence of woman who confessed under police duress