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[2016] ZASCA 29
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Mabaso v S (200/2015) [2016] ZASCA 29; 2016 (1) SACR 617 (SCA) (23 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 200/2015
In
the matter between:
THEMBANI
MABASO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mabaso
v The State
(200/2015)
[2016] ZASCA 29
(23 March 2016)
Coram:
Leach
and Zondi JJA and Fourie AJA
Heard:
2
March 2016
Delivered:
23
March 2016
Summary:
Pointing
out by accused person in terms of
s 218
of the
Criminal Procedure Act
51 of 1977
─ flagrant disregard of accused’s
constitutional right to legal representation ─ unlawful
production of a confession
in the guise of a pointing-out ─
handwritten notes of pointing-out not read back to accused ─
notes not constituting
admissible probative material ─
conviction and sentence set aside.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg
(Sishi
J sitting as court of first instance):
The
appeal is upheld and the conviction and sentence imposed pursuant
thereto are set aside.
JUDGMENT
Fourie
AJA (
Leach
and Zondi JJA
concurring):
[1]
The appellant, Thembani Mabaso, was indicted in the KwaZulu-Natal
Division, Pietermaritzburg, on a charge of murder. He pleaded
not
guilty to the charge. In his written statement in terms of s 115(1)
of the Criminal Procedure Act 51 of 1977 (the CPA), he
recorded that
he had been interrogated and assaulted by members of the South
African Police Service, resulting in him making a
formal pointing-out
to the police which was not done freely and voluntarily.
[2]
At the commencement of the trial before Sishi J, the prosecutor
informed the court a quo as follows:
‘
My
lord, the only evidence that I have linking the accused to this
offence is a pointing [out] to which he refers, so we will have
to
proceed with a trial-within-a-trial when I get to the evidence.’
[3]
In the event, a trial-within-a-trial was held with several police
officers and the appellant testifying under oath. At issue
was the
admissibility of a pointing-out made by the appellant to Captain E G
van Rensburg (Van Rensburg) at Estcourt, KwaZulu-Natal
on 14 July
2005, during which the appellant made certain statements amounting to
a confession. At the conclusion of the trial-within-a-trial
the
pointing-out evidence was ruled admissible and the main trial
proceeded. The court a quo subsequently convicted the appellant
of
murder, solely on the strength of the utterances made by him during
the course of the pointing-out.
[4]
The trial court proceeded to sentence the appellant to imprisonment
for life. His application for leave to appeal was refused
by the
trial court but, on petition to this court, he was granted leave to
appeal against his conviction and sentence.
[5]
It was common cause that the deceased had been murdered, having been
shot execution style while in his vehicle on the outskirts
of
Estcourt. There were no witnesses to the murder, but some five months
later a number of police officers, members of the Serious
and Violent
Crime Unit at Cato Manor, arrived at the appellant’s residence
in Estcourt and arrested him on a count of murdering
the deceased.
The appellant denied all knowledge of the murder, but was taken into
custody by the police who transported him to
the Cato Manor Police
Station, about two hours away from Estcourt. The appellant travelled
in a police vehicle with Captain Dladla
(Dladla), the arresting
officer. According to Dladla the murder of the deceased was not
discussed at all during the journey. However,
he testified that, soon
after their arrival at Cato Manor, the appellant suddenly indicated
that he had been involved in the murder
of the deceased. According to
Dladla he warned the appellant that what he said amounted to a
confession and therefore he was not
going to continue questioning
him. Dladla then asked the appellant whether he would be prepared to
do a pointing-out in regard
to the aspects that he had mentioned to
him. The appellant agreed.
[6]
A strange feature of Dladla’s evidence was his failure to
record the fact that the appellant had allegedly given him this
information. He said that his diary contained a note to this effect,
but he was unable to produce the diary. It is also strange
why, had
the appellant provided Dladla with information regarding the murder,
which Dladla considered amounted to a confession,
Dladla did not
suggest to the appellant that he should make a formal confession to a
magistrate. He chose rather to arrange a pointing-out
by the
appellant under the auspices of a member of the police, Van Rensburg,
stationed at the provincial headquarters in Durban.
After all, the
purpose of a pointing-out under s 218(2) of the CPA is not to extract
a confession, but to obtain evidence of something
pointed out by the
accused or discovered as a consequence of information given by the
accused.
[7]
Be that as it may, Van Rensburg conducted the pointing-out at
Estcourt on 14 July 2005, with Inspector S C Zondo (Zondo) as
the
interpreter. A formal record of the pointing-out was kept by Van
Rensburg, which served as Exhibit E in the court a quo. The
document
contains a number of prescribed questions to be put to the person
making the pointing-out and provides space for a written
note of the
actual pointing out. At the outset, one asks why the appellant had
developed this sudden urge to do a pointing-out.
The events following
his arrest, as described by Dladla, provide no indication why the
appellant, after initially denying all knowledge
of the murder, would
now wish to implicate himself by pointing out features related to the
murder. When the appellant was asked
by Van Rensburg what was said to
him by the police when he was approached to do the pointing-out, he
said that they had asked if
he can assist them with a pointing-out in
the Estcourt area. This rather begs the question as to why he had the
sudden change of
heart.
[8]
Several entries made by Van Rensburg on Exhibit E tend to fuel one’s
sense of disquiet. Strangely enough, Van Rensburg
not only recorded
the date of the pointing-out as 13 July 2005 (while it was 14 July
2005), but he also indicated that he had met
the appellant in person
at the Estcourt Police Station, while it was in fact at Cato Manor,
whereafter they departed for Estcourt.
Also, with regard to the right
of the appellant to consult a legal representative, the entries made
by Van Rensburg raise concern.
When asked whether he wished to avail
himself of legal representation, the initial answer of the appellant
was recorded as ‘N/A’
[not applicable]. Then follows the
following recordal by Van Rensburg:
‘
Accused
requests to speak to Mrs Mabaso at Estcourt Police Station to arrange
money for an attorney. But don’t want him now
only for court.’
This
indicates that the appellant wished to be assisted by a legal
representative. It is difficult to understand why he would have
added
that legal representation would only be required at court. By all
accounts the appellant is an intelligent person who was
on the brink
of pointing out matters which could incriminate him, yet he refrains
from obtaining legal representation to protect
his rights. I should
add that, in his evidence, the appellant reiterated that he wished to
have immediate legal representation,
but that his request was
refused.
[9]
Exhibit E further records that the appellant was then asked whether
he wished to continue with the pointing-out. His answer
is recorded
as ‘yes’. However, the following appears immediately
thereafter:
‘
[The]
person requested again that he want to speak to Mrs Mabaso so that
she knows that he is arrested. Request was honoured.’
I
should add that Mrs Mabaso is the sister-in-law of the appellant and
that she is a captain in the South African Police Service,
stationed
at Estcourt Police Station.
[10]
It is alarming that Van Rensburg, well-knowing that the appellant
wished to contact Mrs Mabaso for the purpose of obtaining
legal
representation, then proceeded with the pointing-out. Even more
alarming, is the fact that the entry ‘request was honoured’
is incorrect. The entry conveys that the request to speak to Mrs
Mabaso was honoured at that point in time, however, it is common
cause that the appellant was only afforded an opportunity to speak to
Mrs Mabaso after the pointing-out had taken place. This amounted
to a
flagrant disregard of the appellant’s constitutional right to
legal representation.
[11]
Van Rensburg kept handwritten notes of the pointing-out by the
appellant. The notes show that the appellant firstly pointed
out a
tuck shop where he and two others drank some beer and then he pointed
out another spot, saying ‘[h]ere the mayor Mr
Bhengu was shot’.
Thereupon Van Rensburg asked him ‘who shot Mr Bhengu?’
The appellant is recorded as answering
‘I did’. This
constituted the evidence upon which the appellant was found guilty of
the murder of the deceased (Mr
Bhengu).
[12]
As already mentioned, a pointing-out by an accused is regulated by s
218(2) of the CPA. This subsection entitles the prosecution
to adduce
evidence of the pointing-out by an accused notwithstanding that the
pointing-out forms part of an inadmissible confession.
However, our
courts have often warned that s 218(2) does not authorise the
production of a confession in the guise of a pointing-out.
See
S
v Mbele
1981
(2) SA 738
(A) at 743C;
S
v Magwaza
1985 (3) SA 29
(A) at 36 and Du Toit
et
al Commentary on the
Criminal Procedure Act
(loose-leaf
) vol 2 at 24-67.
[13]
In this court the State correctly conceded that the circumstances
giving rise to the pointing-out, as well as the manner in
which Van
Rensburg questioned the appellant and obtained the damning answer
from him, constituted a confession being elicited from
him. The issue
then becomes whether evidence of either the pointing-out itself,
without regard being had to the appellant’s
answer to the
question he was asked, or such answer was admissible.
[14]
In the light of the failure of the police to allow the appellant to
obtain legal advice from his sister-in-law before the pointing-out,
serious doubt must exist as to whether either the pointing-out or the
appellant’s utterance was admissible in the light of
his right
to a fair trial guaranteed by s 35(3) of the Constitution. This is
particularly so as we know that the following day,
after seeing his
sister-in-law, the appellant refused to make a formal confession when
taken to another senior police officer to
do so. The inference is
irresistible that this was due to the advice she had given him and
that, if he had seen her before the
pointing-out, he would have
remained silent or not done the pointing-out at all. Bearing that in
mind, it can hardly be said that
the admission into evidence of the
confession at the pointing-out, made only after the appellant had
been denied legal assistance
and questioned by Van Rensburg, was not
detrimental to the administration of justice.
[1]
In these circumstances both the pointing-out and the confession
probably fell to be excluded under s 35(5) of the Constitution.
[15]
But no final decision on that issue needs be taken as it is not the
sole difficulty facing the State. In keeping the written
notes of the
pointing-out, Van Rensburg was assisted by the interpreter, Zondo.
When considering these notes it has to be borne
in mind that the
ipsissima
verba
of the appellant, recorded in English, is the product of a
translation by Zondo from isiZulu to English. This includes the
crucial
part of the notes, which records the appellant as stating
that he had shot Mr Bhengu, the deceased. Van Rensburg
testified
that, upon the conclusion of the pointing-out, he read the
notes back to the appellant, with Zondo translating, and that the
appellant
indicated that the notes were correct. Zondo, however,
testified that they did not go through the written notes with the
appellant.
When it was put to him that Van Rensburg testified that he
did read the notes back to the appellant with the assistance of Zondo
as the interpreter, the latter responded, ‘[n]o it never, it
did not happen’.
[16]
If one has regard to the pointing-out record, and in particular
questions 6, 7 and 8 dealing with the reading back of the
pointing-out notes to the appellant, there is no recordal of any
reply to those questions by the appellant. This corroborates the
version of Zondo, namely that the handwritten notes of Van Rensburg
were not read back to the appellant. It follows that the appellant,
who denied that he had made the alleged incriminatory statements, at
no stage confirmed the correctness of Van Rensburg’s
pointing-out notes. The result is that the handwritten notes of Van
Rensburg did not constitute admissible probative material.
In fact,
the notes constituted no more than inadmissible hearsay statements.
On this basis alone the evidence of the confession
allegedly made by
the appellant ought not to have been admitted.
[17]
As the confession was the sole evidence against the appellant, and
ought not to have been admitted, he should not have been
convicted.
Therefore the appeal must succeed.
[18]
The following order is made:
The
appeal is upheld and the conviction and sentence imposed pursuant
thereto are set aside.
________________________
P B FOURIE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:
C B Mann SC
Instructed
by:
S P
Mncwango and Associates, Durban
Ponoane
and Associates, Bloemfontein
For
Respondent:
D A Paver
Instructed
by:
The
Director of Public Prosecutions, Pietermaritzburg
The
Director of Public Prosecutions, Bloemfontein
[1]
Cf
S
v Mthembu
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA) paras 25-26.