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[2016] ZAWCHC 144
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Parkins v S (A113/16) [2016] ZAWCHC 144; 2017 (1) SACR 235 (WCC) (27 October 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
(Coram:
Henney, J
et
Smuts, AJ)
[Reportable]
Case
No: A113/16
In
the matter between:
BRADLEY
PARKINS
Appellant
and
THE
STATE
Respondent
JUDGMENT:
27 OCTOBER 2016
Coram
: HENNEY,
J et SMUTS, AJ
Judgment
by
: HENNEY,
J et SMUTS, AJ
For
the Appellant :
Adv John Van Der Berg
Instructed
by
:
R D
Roode Attorney
P O
Box 445
Kuils
River
CAPE
TOWN
c/o
: O
J Williams & Associates
1
Egham Road
Wynberg
7800
For
the Respondent
:
Adv G
Wolmarans
Instructed
by
:
Director of Public Prosecutions
Private
Bag X9003
CAPE
TOWN
Date(s)
of Hearing
:
14
OCTOBER 2016
Judgment
delivered on :
27
OCTOBER 2016
HENNEY,
J
et
SMUTS, AJ
Introduction
[1]
The Appellant was convicted in the Regional Court sitting at Wynberg
on the following charges:
1.1
Count 1: Murder committed on 23 February 2008 at Sandown Lane,
Athlone, in that the court found that he unlawfully and intentionally
killed Donovan Cupido (“the deceased”) by shooting him
with a 9 mm Tanfoglio semi-automatic pistol serial number no:
AB
02086 (‘the Tanfoglio’).
1.2
Count 2: Possession of the firearm, as mentioned above, without being
the holder of a licence to possess such firearm in contravention
of
section 3 of the Firearms Control Act
[1]
at
the same time, date and place mentioned in Count 1.
1.3
Count 3: Possession of one 9mm Norinco semi-automatic pistol
with serial number 408336 (‘the Norinco’) in
contravention of sec 3 of the Firearms Control Act, on the same time,
date and place as mentioned in count 1.
1.4
Count 4: Possession of 15 rounds of 9 mm rounds of ammunition in
contravention of
section 90
of the
Firearms Control Act 60 of 2000
,
also at the same time, date and place as mentioned in Count 1.
1.5
These charges emanate from a shooting incident where the deceased was
found to have been shot and killed by the Appellant. The
facts and
circumstances surrounding this incident, to which we will refer as
the
first shooting incident,
are set out below.
1.6
Two further charges emanated from an incident occurring on 29 May
2008 at 7 Barrowdale Close, Parklands, the residence of the
Appellant
at the time of his arrest. These are:
1.7
Count 5: A further charge in contravention of
section 3
of the
Firearms Control Act 60 of 2000
. He was found guilty of possession of
the same Tanfoglio as mentioned in Count 1 above except that in
respect of this charge, he
was found to be in possession thereof on
29 May 2008. In respect of this charge, he was also found guilty of
being in unlawful
possession of the Norinco and a 9 mm semi-automatic
Taurus pistol (‘the Taurus’).
1.8
Count 6: This is a further charge of possession of ammunition in
contravention of
section 90
of the
Firearms Control Act, also
committed on 29 May 2008 at 7 Barrowdale Close, Parklands. I will
refer to this as
the search and seizure incident
.
The
Appellant was convicted on all these charges on 9 December 2013 and
sentenced by Regional Magistrate Govuza on 23 April 2014.
[2]
During this time, the Appellant was also standing trial with two
other accused, also in the Regional Court sitting at Wynberg,
before
Regional Magistrate Langa, on the following charges:
2.1
Count 1: Murder committed on 22 April 2008 at Kudu Street,
Athlone. It was alleged that he killed EV, a female person,
by
shooting her with a firearm.
2.2
Count 2 : Possession of a firearm which the make and model were
unknown to the state, also in contravention of
section 3
of the
Firearms Control Act on
the same date, time and at the same place as
mentioned in the first charge, without holding a licence to possess
such firearm.
2.3
Count 3: Attempted murder. It was alleged that he
intended to kill RM by shooting at him with a firearm at the same
time, date and place as mentioned in count one.
2.4
Count 4: Possession of 7 rounds of 9 mm rounds of ammunition and 2 x
.40 Smith and Wesson calibre rounds of in contravention
of
section 90
of the
Firearms Control Act.
[3]
This trial started on 10 June 2009 before Regional Magistrate Langa
and on 20 October 2011 the Appellant was found not guilty
on all 4
charges by him. We will refer to this as the
second shooting
incident
.
[4]
It is common cause that the Tanfoglio, the Norinco that were found at
7 Barrowdale Close, the residence of the Appellant, were
linked by
means of ballistic evidence to the incident that happened on 23
February 2008 in which the deceased, Donovan Cupido was
murdered.
This was the matter in which Regional Magistrate Govuza found the
Appellant guilty on all 6 charges and against which
this appeal had
been lodged.
[5] It is also common
cause that these two firearms as well as the Taurus that was linked
by means of ballistic evidence were also
used in the first shooting
incident. The present appeal against conviction only relates to the
second shooting incident.
Grounds
of appeal
[6]
The first ground of appeal is based on the contention that the court
a quo
erred in admitting the evidence regarding the search and
seizure at the residence of the Appellant on 29 May 2008, which led
to
the finding of the Tanfoglio and the Norinco which were
ballistically linked to the murder committed on 23 February 2008, as
the
same evidence had already been found by Regional Magistrate Langa
to be unconstitutional and consequently inadmissible.
[7]
The Appellant contends that on the basis of
res judicata
and
more specifically issue estoppel, which is now a well-known defence
in civil law, this evidence should not have been admitted.
The plea
of
autrefios acquit,
he contends, is but an example of issue
estoppel in the narrow sense. The Appellant submits that this court
is enjoined by the constitution
to develop the common law in order to
recognise issue estoppel as part of our criminal procedure. In
essence, the Appellant submits
that the state was precluded from
relying on the same facts, relating to the same search, between the
same parties, which had been
previously been ruled inadmissable by a
court of parallel jurisdiction.
[8] The second ground of
appeal is that the hearsay statement that was made by the deceased to
a policeman in which he identified
the Appellant as the person who
shot him, should not have been admitted into evidence because it
rendered the trial unfair and
because it is unreliable.
The
facts of the first shooting incident relating to this appeal
[9]
On 23 February 2008, at around 18h00, the deceased, accompanied by
his mother Merle Cupido (“Merle”), walked along
Blossom
Street in Silvertown, Athlone. They met up with Trevor Jeptha
(“Trevor”) and walked down Durandt Street. Merle
decided
to turn back, whereupon the deceased and Trevor continued walking
down Durandt Street.
[10]
On her way home, Merle heard 7 shots going off and she immediately
ran down towards the direction of Durandt Street. At number
39
Durandt Street, she found the deceased lying on the sidewalk. He was
shot in the stomach. She then asked him who shot him and
he answered,
“
Dit was Kop
” (“It was kop”).
[11]
According to Trevor, he indeed accompanied the deceased as they
walked down Durandt Street into Sandown Lane. He observed a
white
motor vehicle driving past them. This vehicle stopped and a male
person got out of the vehicle, ran in the direction of the
deceased
and started chasing him. Trevor ran further down Sandown Lane. A
short while later he heard a few shots going off. When
everything was
quiet, he went back in the direction of Sandown Lane. On the
corner of Sandown Lane and Durandt Street, he
observed two males
moving away from the deceased, who was lying on the ground. They
jumped into the white motor vehicle and left.
[12]
Gadija Delport (“Gadija”) stays at number 39 Durandt
Street, Silvertown and her evidence is that at the time of
the
shooting, she was in her lounge, when she heard shots being fired.
She looked through the window and saw the deceased running
in the
direction of her house. She closed the front door, looked out of the
window and saw the deceased lying on the sidewalk in
front of her
house. She also observed two people walking towards a white car that
was parked in the road opposite the house. They
got into the car and
drove away. She was unable to identify these persons.
[13]
Deon Sheldon (“Sheldon”) was a Sergeant stationed at the
police station at that time and he attended the scene
of the shooting
at number 39 Durandt Road, Silvertown. There he found the deceased
lying on the sidewalk. The deceased, was still
conscious at that
stage. The deceased was known to him, as was the Appellant. The
Appellant was known by the nickname of
“
Kleinkop”
.
During the course of his duties as a policeman in the Athlone area,
he regularly met the Appellant at 79 Springbok Street in Kewtown,
Athlone.
[14]
According to Sheldon, the deceased was also known to the Appellant.
At times when in the course of his duties, he went to the
address of
the Appellant at 79 Springbok Street, he would find them in each
other’s company. He was however unable to say
whether they were
friends. Shell casings were also found at the scene. Sheldon says he
asked the deceased who shot him, to which
he answered, “
Dit
was Kleinkop
”. (“It was Kleinkop”). The
deceased also said to him that he and a friend named Trevor walked
from Sandown Lane
when he observed the Appellant and another two
persons in a white Fiat.
[15]
Sheldon further testified that the deceased said that the Appellant
jumped out of the Fiat with the other two persons and ran
towards him
(the deceased). Appellant then shot him in the stomach. The deceased
also said that he then proceeded to run in the
direction of 39
Durandt Road. When the deceased used the word “
Kleinkop
”,
he (Sheldon) asked him, “
Watter Kop
”, to which the
deceased answered, “
Bradley, jy moet jou nie dom hou
nie
”.
[16] Sheldon’s
evidence was that when the deceased spoke to him, he was awake and
conscious throughout. Sheldon said that,
given his experience of
working in that area, he knew other people with the nickname “
Kop
”
but none with the nickname “
Kleinkop
”. He
took down the deceased’s words on a piece of paper in his
pocket book, and later transferred it to his statement.
The
facts of the second shooting incident
[17]
The facts of this incident need not detain us unnecessarily. The
evidence was that the deceased, was sitting in a vehicle with
another
person when a vehicle drew up alongside the vehicle they were sitting
in. Immediately thereafter shots were fired at and
into the vehicle
in which the deceased and the other person were seated. The
deceased was fatally wounded and died
as a result of a gunshot wound
to the head. The court found that the evidence of the eyewitness that
was in the car with the deceased
was unconvincing and rejected his
evidence as to the identity of the assailants for reasons which are
not relevant to this appeal.
[18] It was common cause
that a bullet was found in the vehicle in which the deceased was
shot, as well as other cartridges that
were ballistically linked to
the firearms which were found on 29 May 2008 during the search of the
Appellant’s house at 7
Barrowdale Close, Parklands. Regional
Magistrate Langa found the evidence relating to the search and
seizure of these firearms
unconstitutional and subsequently
inadmissible.
Search
and Seizure incident
[19]
The evidence of the search and seizure, during the course of the
trial before Regional Magistrate Govuza, was that of Captain
Kinnear
(“Kinnear”), Detective Warrant Officer April (“April”),
Detective Warrant Officer September (“September”)
and to
a lesser extent that of Warrant Officer Thys. This evidence is
undisputed. The search and seizure occurred on 29 May 2008
at an
address in Parklands, Table View.
[20]
The police arrested the Appellant after he attempted to evade arrest
by climbing through a window from inside the house. This
was after
the police carried out an operation in order to affect the arrest of
the Appellant for which Captain Kinnear had a warrant.
He was being
sought by the police for some time. During the search of the house,
the police discovered 3 firearms and ammunition.
The evidence
revealed that 2 of these firearms were positively linked
ballistically to the murder of the deceased. The time period
between
the arrest of the Appellant and the murder was approximately 3
months.
[21]
Prior to the operation, on 28 May 2008, the police established a
possible location of the Appellant at 7 Barrowdale Close,
Parklands,
Table View. A Deeds Search revealed that the property was registered
in the name of Kim Parkins, the wife of the Appellant.
During the
course of the day the police went to the property and observed a
vehicle that could possibly be linked to the Appellant,
leaving the
house. They therefore decided not to approach the house because
they were afraid that should the Appellant not
be at the house, he
would be alerted about the fact that they were looking for him.
[22]
At approximately 1am on the morning of 29 May 2008, they went back to
the house. April and September climbed over a side wall
into the back
of the property. Kinnear then approached the front door and proceeded
to knock while shouting “
it is the police, open up
”.
He knocked and called about 5 times but heard nothing from inside the
house.
[23]
Kinnear then heard his colleagues at the back of the house shout
“
Staan polisie
”. Thereafter the garage door opened
and he observed Kim Parkins standing at the doorway inside the
garage. The garage provided
access into the house. Kinnear identified
himself as a police member and informed her that they were looking
for Bradley Parkins,
to which she responded by saying that they are
at the back in the yard and showed Kinnear to the patio door leading
to the yard.
At that stage he observed that April and September had
apprehended the Appellant.
[24]
Before they went back into the house, September told him that when he
saw the Appellant in the house, he was putting a black
bag in one of
the boxes in a room. They went back into the house. At that stage,
the Appellant was lying on the floor in the kitchen
of the house and
he was handcuffed. He then went to Kim Parkins and told her that he
had reason to believe that there were firearms
in the house and asked
her permission to conduct a search of the house. She gave the
permission.
[25]
September opened the trapdoor to the ceiling and found two phosphor
grenades that were hidden in the ceiling. Both the Appellant
and Kim
said that they did not have any knowledge of the grenades. Kinnear
then went to the bedroom where September had indicated
the Appellant
had placed a bag. In a toy box lying between the toys he could see
the black bag. He picked it up and could
feel that there was a
firearm in the bag. He opened it and took a black firearm from the
bag. This firearm was the Tanfoglio. He
showed the firearm to Kim
Parkins and she denied ever seeing the bag or having any knowledge of
the firearm in the bag. The firearm
contained a magazine filled with
bullets.
[26]
Back in the kitchen, Warrant Officer Thys opened the refrigerator and
found a red canvas bag in it. Thys handed the bag to
Kinnear, who
opened it and found a further 2 firearms in the bag. Upon seeing the
firearms, Kim Parkins appeared surprised and
told him that she did
not have any knowledge thereof. When asked about the firearms, the
Appellant also told him that he did not
know how it got there. The
firearms in the red bag were the Taurus and the Norinco. The Taurus
had 9 X .40mm rounds in the magazine
and the Norinco had 15 X 9mm
rounds in the magazine. The bag also contained 14 X 9 mm rounds
of ammunition lying loose. Apart
from the 14 X .40mm rounds that were
in the magazine, a further 9 X .40mm rounds were lying loose in the
bag.
[27]
He further testified that from all 3 scenes where shootings occurred
in respect of which the Appellant was allegedly involved,
spent
cartridges were found. He denied that after Kim Parkins opened the
garage door, he told her that he is from the police and
that he might
have reason to believe that there might be firearms in the house, and
that he would like to conduct a search. He
says at that stage April
shouted at the back and he immediately went to the back where he
found the Appellant, and only then decided
to conduct the search of
the property after September told him that he saw the Appellant
hiding something in the room.
[28]
April testified that from his position at the rear of the property,
he could look inside the open plan house. He testified
that before
Kinnear was knocking at the front door, the inside lights of the
house were on, but once Kinnear started knocking at
the door, the
lights were switched off. He observed a man, moving inside the house
with a lighted torch. After a while he heard
a window situated at the
back of the house open. From this window a man proceeded to a climb
out. This man, who proved to be Appellant,
was later arrested after
attempting to flee. Thereafter he and his colleague went into the
house with the now handcuffed Appellant
through the patio door, which
was opened by Kim Parkins.
[29]
September testified that he was also at the back of the house, but on
the opposite side from where April was. He observed
the
Appellant moving in the house at the time when Kinnear was knocking
on the front door and saying “
polisie maak oop
”.
At some stage, the Appellant moved out of sight and the light was
turned off. When he appeared again, he had a torch
and a black
moon bag with him. He moved out of sight again and the witness moved
to another window from which he could see the
Appellant standing in
the doorway. From there, he observed the Appellant placing the moon
bag into a box situated next to a door.
[30] The Appellant once
again moved away to the section of the house where his colleague
April was and he indicated to April that
the Appellant is moving in
his direction. Later, the Appellant was seen climbing out of a window
at a section of the house that
was between him and April. The
Appellant was apprehended and Kinnear came to them at the back of the
house where they were. All
of them later moved into the house where
they were joined by Kim Parkins. He, Kinnear and Kim went to the room
where the Appellant
had placed the black bag. He further confirms the
evidence of Kinnear regarding the search and seizure of the firearms
and ammunition
found in the house. The Appellant did not
testify during the trial and elected to remain silent.
Analysis
[31]
The evidence presented by the State remains undisputed. During the
course of the trial, a plea of
autrefois acquit
was raised on
behalf of the Appellant in respect of charges 5 and 6, which dealt
with the possession of three pistols and ammunition
found at the
house of the Appellant’s wife at the time of his arrest.
The Plea arose from the Appellant’s acquittal
on 11 October
2011 on similar charges, regarding the second shooting incident, by
Regional Magistrate Langa in the Wynberg Regional
Court.
[32]
However, from even a superficial perusal of the charge sheets in
relation to the charges relating to the second shooting incident,
it
is clear that the plea of
autrefois acquit
was ill-conceived.
For whereas these charges related to the possession of a firearm
‘make and model unknown to the
State; seven 9-mm rounds and two
.40 Smith & Wesson rounds found on 22 April 2008 at Kudu Street,
Athlone; the present charges,
relating to the first shooting
incident, relate to possession of three pistols and different
quantities of ammunition, found on
29 May 2008 at 7 Barrowdale Close,
Parklands.
[33]
The charges relating to the second shooting incident were coupled, in
the 2011 matter, with charges of murder and attempted
murder, alleged
to have been committed on the same date and place. From
Regional Magistrate Langa’s judgment it appears
that one of the
pistols linked ballistically to bullets found in the deceased’s
car in that matter was later found at the
Appellant’s wife’s
house during the search of 29 May 2008
[2]
.
But this is as far as the State’s case went, for no link was
made between this pistol and the bullets found in the
deceased’s
body.
[34]
It is therefore not surprising that the Appellant’s counsel
abandoned the plea of
autrefois acquit
during argument on the
charges relating to the first shooting incident. On appeal,
however, the Appellant sought to re-introduce
the idea of
res
judicata
under a different guise. He found his cause in Regional
Magistrate Langa’s finding, in the course of his judgment on
the charges
relating to the second shooting incident, that the search
of 29 May 2008 was unconstitutional and the evidence obtained during
it accordingly inadmissible.
[35]
The Appellant invited us, in his heads of argument, to develop the
common law in order to recognise issue estoppel as part
of South
African criminal law. The Appellant argued that if this is done
in the present instance, we had to find that because
the ‘issue’
of the constitutionality of the search had been decided between the
State and the Appellant before, the
Regional Magistrate in the
present case (the first shooting incident) should have disregarded
the evidence obtained during the
search. Absent this evidence,
the argument concluded, the State did not prove its case beyond
reasonable doubt, because a
link between the bullets found in the
deceased’s body and the Appellant could no longer be
established.
[36]
In considering the Appellant’s argument, the first question to
be answered is whether, on principle, issue estoppel should
be
recognised as part of South African criminal law. It is not a
question with an easy answer. For the principle of
res
judicata
is constitutionally entrenched in the criminal law as part of the
right to a fair trial. Thus section 35(3)(m) of the
Constitution
provides that every accused’s right to a fair
trial includes the right not to be tried for an offence in respect of
an act
or omission for which that person has previously been either
acquitted or convicted. Sections 106 (1)(c) and (d) of the
Criminal
Procedure Act
[3]
, which
deal with the pleas of
autrefois
convict
and
autrefois
acquit
respectively,
are statutory embodiments of this right.
[37]
But the
res
judicata
principle thus entrenched have its own features, which differ from
civil law. In civil law,
res
judicata
will
apply to a default judgment given in the absence of a Defendant;
[4]
criminal
law does not recognise the principle of default judgment given in the
absence of an accused. In criminal law, the
failures of justice
because of procedural irregularities are fairly common and do not as
a rule provide grounds for a plea of
autrefois
acquit.
[5]
In
civil law, such failures are much rarer and do not feature in the
development of the
res
judicata
principle. Finally, of course,
res
judicata
in civil law is a creature of common law; in criminal law it has
become a creature of statute.
[38]
In deciding to develop the common law in this instance, one should
therefore tread carefully, lest unintended consequences
follow. And
in doing so in such a clearly legislated context, one should not lose
sight of the imperative that ‘the major
engine for law reform
should be the Legislature and not the Judiciary’.
[6]
But
even on the assumption that we are able to do so, and we make no
finding in this regard, there are cogent reasons not to do
so in the
present instance.
[39]
First, it is evident from the treatment of the doctrine in specific
cases that issue estoppel finds application where the issue
previously decided was an indispensable, essential part of the cause
of action.
[7]
What
is the ‘cause of action’ in the present matter?
Murder, which is the unlawful, intentional killing of another
person.
[8]
The
essentials of the present cause of action do not include the evidence
arising from the search of the Appellant’s wife’s
premises – that is part of the
facta
probantia
,
not the
facta
probanda.
[40]
Secondly, we are of the view that the application of issue estoppel
in the present instance will lead to patently unfair consequences,
of
exactly the same kind which
Brand
JA
warned
against in
Prinsloo
NO and Others v Goldex 15 (Pty) Ltd and Another:
[9]
“
[…]
deviation from the threefold requirements of res iudicata should not
be allowed when it is likely to give rise to potentially
unfair
consequences in the subsequent proceedings [...] That, I believe, is
also consistent with the guarantee of a fair hearing
in s 34 of our
Constitution
.”
[41]
For Regional Magistrate Langa’s findings in the course of his
judgment regarding the search on the previous charges,
were
procedurally fatally flawed. He raised the matter
mero motu
and did not give the parties an opportunity to address him before
making the finding, in his final judgment, that it was inadmissible
because it was unconstitutional. Moreover, we are of the view that
for the reasons discussed below, that Kinnear obtained the permission
of the Appellant’s wife before commencing the search.
This means that section 22(a) of the Criminal Procedure Act was
complied with and that the search was perfectly regular.
[42]
The evidence of Kinnear regarding the reasons as to why he decided to
conduct a search of the premises was not disputed. His
evidence was
that after he was appraised by September, the report that the
Appellant had been seen hiding something in a box in
one of the
rooms, it had raised a reasonable suspicion on his part that there
may be firearms in the house. This, together with
the fact that the
Appellant was about to flee from the premises by jumping out the
window, not knowing that two policeman were
at the back of the house,
must have played a part in Kinnear forming a reasonable suspicion
prior to him conducting a search of
the house. It is for these
reasons that he requested permission from Kim Parkins to conduct such
a search.
[43] The search in our
view complied with the provisions of section 22 of the Criminal
Procedure Act which states the following:
“
A police official
may without a search warrant search any person or container or
premises for the purpose of seizing any article
referred to in
section 20-
(a)
if the person concerned consents to
the search for and the seizure of the article in question, or if the
person who may consent
to the search of the container or premises
consents to such search and the seizure of the article in question;
or
(b)
if he on reasonable grounds
believes-
(i)
that a search warrant will be issued
to him under paragraph (a) of section 21 (1) if he applies for such
warrant; and
(ii)
that the
delay in obtaining such warrant would defeat the object of the
search.”
[44]
Therefore, even though this was a warrantless search, the police had
the permission of the owner of the house to conduct the
search. This
was not disputed during the course of the trial, nor during this
appeal. The evidence of the police officers were
also that the
Appellant did not object to the search being conducted. Their
attitude was rather a denial of any knowledge of the
firearms and
ammunition found. It is therefore our view that the Regional
Magistrate was correct in admitting this evidence
against the
Appellant. According to section 23 of the Criminal Procedure Act, it
is also lawful to search a person who has been
arrested and to seize
any article which is found in the possession or in the custody or
under the control of the person arrested.
[45]
Mr Van den Berg, for the Appellant, was constrained to concede the
latter points during argument and it is then not surprising
that he
did not press his contentions regarding
res judicata
beyond
his heads of argument. The search of the premises in any event,
in our view, complied with the requirements of the
Constitution and
the law.
[46]
In dealing with the hearsay evidence, it is not the Appellant’s
case that the Regional Magistrate was wrong in admitting
the
evidence. The Appellant is rather of the view that the Regional
Magistrate was wrong in accepting the evidence which was, according
to the submission of Mr Van den Berg, not sufficient to sustain a
conviction against him. The complaint against the admission of
the
evidence rests squarely on the reliability of the utterances made by
the deceased to Sheldon and the other two witnesses.
[47]
In his heads of argument and in Court, the Appellant’s counsel
referred us to a number of cases in support of his submission
that
the hearsay evidence regarding the deceased’s identification of
the Appellant should either be ruled inadmissible or
that no weight
should be attached to it, which amounts to the same thing. He
cited these cases as authority for the proposition
that, as the
evidence regarding the identification ‘had a crack’ which
could not be subjected to the ‘chisel
of cross-examination’
of the deceased, it should not be allowed. The so-called
‘crack’ is dealt with below.
But in any event the
cases cited by the Appellant do not support his submission.
[48]
First, Mr Van den Berg cited a string of cases starting with
S
v Ndhlovu and Others,
[10]
dealing
with extra-curial statements made by co-accused and which implicate
the accused. Such cases, which are treated in
accordance with
their own set of principles, cannot give guidance in the present
instance, as they do not deal with the admission
of a dying
declaration in terms of section 3(1) of the Law of Evidence Amendment
Act.
[11]
[49]
Secondly, Mr Van den Berg quoted from a number of cases
[12]
which
dealt with uncompleted cross-examination due to the death of a
witness who had started testifying. The general statements
made
by the Judges in these matters should equally be seen against the
background of the particular situations they were analyzing
and are
not helpful in the present instance.
[50]
Thirdly, Mr Van den Berg quoted from two cases which, he submitted,
were comparable to the facts
in
casu.
But
in both of these cases
[13]
the
hearsay evidence constituted the only pieces of evidence on which a
Court could possibly convict the accused. The present
matter is
very different, for whilst the hearsay evidence is clearly an
important part of the State’s case, it is by no means
the only
part thereof. Furthermore, in both the quoted cases there were
factors which strongly mitigated against the allowing
of the hearsay
evidence - factors which are absent in the present instance.
[51]
The admission of dying declarations was confirmed by the Supreme
Court of Appeal as recently as March 2016, in
Van
Willing and Another v S.
[14]
The
treatment by the Court of the hearsay evidence in that matter
confirms that such statements must be considered in the usual
way, by
the application of the criteria set out in section 3(1). That
is what we propose doing in the present instance.
[52] The section confers
a discretion on the court to allow hearsay evidence if it is in the
interests of justice to do so. In considering
whether it is in the
interests of justice to admit such evidence, one should take into
account the factors set out in the subsection.
These factors are:
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is
tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by
the person upon whose credibility the probative value of such
evidence depends;
(vi)
any prejudice to a party which the
admission of such evidence might entail; and
(vii)
any other factor which should in the
opinion of the court be taken into account […].
[53] Although the court
a
quo
did not deal with these factors independently and in the
manner set out in the subsection, it nevertheless attached due weight
to the evidence. The attack in this court was not so much against the
fact that the court did not consider any of these factors,
either
collectively or individually, but rather against the weight the court
attached to this evidence in assessing the guilt of
the Appellant. We
must hasten to add that the State sought to introduce this evidence
by means of a trial within a trial, but the
parties agreed that the
court
a quo
should ultimately make a determination, as was
argued by Mr Van den Berg, that both “the admissibility and the
value of it
can be decided at one and the same time”. The
correct procedure, in our view, would have been as proposed by the
State to
have this evidence introduced by means of a trial within a
trial. We will now deal with the factors as set out in the
subsection
in relation to the evidence that was presented by the
State.
The
nature of the proceedings
[54]
Whilst the legislature was mindful of the type of proceedings in
which such evidence would be presented, it is trite that such
evidence may be allowed in criminal cases. Presiding officers should,
however, be mindful in criminal cases of the warning heeded
by
Schutz
JA
in
S
v Ramavhale
[15]
.
Further, in this particular case, given the totality of the evidence
to which we were referred to at a later stage, one should
also
consider
Van
Willing (supra)
with reference to the case of
S
v Shaik & Others
[16]
,
where
it was held that whatever the nature of the proceedings is, the true
test is whether it is in the interests of justice to
admit such
evidence. The evidence, in any event, would not conclusively point to
the guilt of the Appellant beyond reasonable doubt.
The
nature of the evidence
[55]
The nature of the evidence is that it implicates the Appellant as one
of the persons was involved in the shooting of the deceased.
The
probative value of the evidence depends on the credibility of the
deceased. Evidence of identification in a criminal trial
must be
accepted with caution. Such evidence is usually controversial where
there are eye witnesses to the commission of the crime.
Such evidence
should not only be honest but also reliable. See
S
v Mthetwa
[17]
.
We will refer in more detail to the nature of this evidence
when dealing with the probative value thereof at a later stage.
The
purpose for which the evidence was tendered
[56] As mentioned
earlier, the evidence was tendered by the State to prove the
involvement of the Appellant in the commission of
the crime.
The
probative value of the evidence
[57]
The probative value of the evidence depends, in our view, not only on
the credibility and reliability of the utterances made
by the
deceased, the credibility and reliability of the evidence of Sheldon,
the evidence of other witnesses on the scene, but
also on the other
circumstantial evidence relating to the search and seizure. This
includes the ballistic evidence linking the
weapons found at the
house of the Appellant and the spent cartridges found on the scene
where the deceased was killed. It is therefore
important to once
again have a look at the evidence of Sheldon. His version as to what
the deceased had told him was not disputed.
[58]
Sheldon was very clear and confident about who the deceased had
identified. There was no doubt in the mind of Sheldon that
the
deceased had identified the Appellant. He said he made sure that the
deceased, when he referred to “
Kop
” or “
Kleinkop
”,
knew who exactly he was referring to. This is borne out by evidence
of Sheldon that, “
Toe hy die woord Kleinkop gebruik het, het
ek hom gevra watter Kop en hy het gese Bradley, ek moet my nie dom
hou nie”
. This evidence in our view is a clear indication
that the deceased knew exactly who the person was that shot him. The
deceased’s
identification is further corroborated by Sheldon,
as the Appellant was known both to him (Sheldon) and the deceased.
Clearly,
this is an indication on the part of the deceased that
Sheldon should have known who he (the deceased) was talking about.
[59]
The version of the deceased as to the circumstances under which the
offence was committed and relayed to Sheldon is corroborated
by other
witnesses in the following respects: that two male persons driving a
white car were responsible for the shooting of the
deceased, is
confirmed by Trevor, who saw two male persons running away from the
deceased towards a white car after the deceased
was shot, and Gadija
who says she saw two male persons chasing the deceased, whereafter he
was shot.
[60]
Gadija later saw two male persons walking in the direction of a white
car after they shot the deceased. Merle says that she
left the
deceased at the time when Trevor joined them while they were walking
and later heard shots going off, whereupon she found
the deceased
lying on the pavement. When she asked him who shot him, he said, “
Dit
was Kop
”. Sheldon testified that the deceased also told him
that he was walking to Trevor when he saw a white Fiat motor vehicle
with the Appellant as occupant. The deceased also told him that the
Appellant and two males jumped out of the vehicle and started
shooting him. The evidence of Trevor and Gadija confirms this fact,
except that they were unable to point out the Appellant.
[61]
The further evidence strengthening the probative value of the
utterances made by the deceased to Sheldon, regarding the Appellant’s
involvement in the commission of crime, is the fact that at a later
stage two of the firearms that were used during the shooting
of the
deceased were found in the possession of the Appellant at his house.
[62]
Mr Van den Berg made much of the fact that the deceased were not
consistent in his report to Sheldon as to whether “
Kop
”
or “
Kleinkop
” was one of the persons involved in
the shooting of him. He referred to this as the so-called “crack
which could not
be subjected to the chisel cross-examination”
as in the case of a witness who would be subjected to
cross-examination when
making an inconsistent statement. While this
is true and would have been a factor that had to be considered in
examining the credibility
of the deceased, we are not convinced that
this so-called “crack”, if regard is to be had to the
totality of the evidence,
makes this evidence unreliable. We say this
for the following reasons. Firstly, as pointed out earlier, the
strength of the evidence
not only depended on the uncontested version
of the deceased, but also on the version of Sheldon, who also knew
exactly who the
deceased was referring to. Secondly, when Sheldon
asked him to which “
Kop
” he referred to, he said
“
Kleinkop
”. This was a description of the person
which he gave to Sheldon, and in doing so he was referring to a
specific person. This
is further confirmed by words used by the
deceased, “
Bradley, moet nie vir jou dom hou nie”
.
Thirdly, it is not in dispute that the Appellant is known by the name
of “
Kleinkop”.
Fourthly, there is ballistic
evidence that links the firearms that was found at the house of the
Appellant, also known as “
Kleinkop
”, to the
shooting incident of the deceased.
[63] In our view, no
amount of cross-examination of the deceased would have been able to
unsettle this corroborative evidence of
his version, especially not
in the absence of any evidence by the Appellant.
The
reason why the deceased did not give evidence
[64] This fact is
self-evident and needs no further discussion.
Prejudice
[65]
It goes without saying that in a criminal trial where evidence is
admitted against a person which implicates him or her in
the
commission of crime, such evidence might be prejudicial to such a
person, especially where such evidence is hearsay.
In
S
v Ndhlovu and Others
[18]
the
court held at
para
[50] at 328
:
“
The
suggestion that the prejudice in question might include the
disadvantage ensuing from the hearsay being accorded its just
evidential
weight once admitted must however be discountenanced.
A
just verdict, based on evidence admitted because the interests
of justice require it, cannot constitute 'prejudice'. In the
present
case, Goldstein J found it unnecessary to take a final view, but
accepted that 'the strengthening of the State case does
constitute
prejudice'
. That concession to
the proposition in question, in my view, was misplaced.
Where
the interests of justice require the admission of hearsay,
the resultant strengthening of the opposing case cannot count
as
prejudice for statutory purposes, since in weighing the
interests of justice the court must already have concluded that
the
reliability of the evidence is such that its admission is necessary
and justified. If these requisites are fulfilled,, the
very fact that
the hearsay justifiably strengthens the proponent's case warrants its
admission, since its omission would run
counter to the interests
of justice
.”
(our
emphasis)
[66] In our view, even
though the evidence is prejudicial to the Appellant, there is no risk
that his fair trial rights were infringed
if the court in the
interests of justice admits the evidence. It is under this overall
protection that any prejudicial evidence
is admitted during a
criminal trial, obviously with the added caution that such evidence
is hearsay and that the court should be
vigilant in admitting such
evidence without any good or compelling reason.
Any
other factor
[67] There is no other
factor which the parties or which the court considered to be taken
into consideration in deciding whether
the hearsay evidence should be
admitted.
[68]
We are of the view that having regard to all the factors set out in
the subsection and the totality of the evidence, the Regional
Magistrate was correct in admitting this evidence. As shown above,
and as will be shown later, the evidence completes the picture
and
strengthens the circumstantial evidence.
[69]
The next question to consider is whether, given the totality of the
evidence which includes the hearsay evidence, the court
a quo
was correct in concluding the Appellant was one of the people
involved in the shooting and subsequent killing of the deceased.
Mr Van der Berg argued that, given the long lapse of time between the
shooting incident that occurred on 23 February 2008, and
the finding
of the firearms on 29 May 2008, coupled, with the fact that these
firearms could easily have been moved from one person
to another
person during this time, it cannot be the only reasonable inference
that the court can draw that at the time of the
shooting, the
Appellant was in possession of the firearm.
[70]
We do not agree with this submission. In dealing with circumstantial
evidence in a criminal matter, the court will apply the
oft-quoted
dictum in
R
v Blom
[19]
where
the court in dealing with circumstantial evidence applied the two
cardinal rules of logic. These are, firstly, that the inference
sought to be drawn must be consistent with all the proven facts and,
secondly, that the proved facts should be such that they exclude
every reasonable inference from them save the one sought to be drawn.
See also
S
v Reddy
[20]
.
Most of the proven facts in this case are beyond dispute. These are:
1)
That on 23 February 2008 the deceased was
killed and he made a hearsay utterance to Sheldon that it was the
Appellant, to whom he
referred to as “
Kleinkop
”,
that shot him.
2)
That the Appellant whose name is Bradley,
is also known as “
Kleinkop
”,
and was known to Sheldon and the deceased.
3)
That on 29 May 2008 during the arrest of
the Appellant, the police found firearms (the Tanfoglio and the
Norinco) at the house of
the Appellant.
4)
That during the arrest the Appellant was
seen hiding away the Tanfoglio; and the Norinco was found hidden
together with the Taurus
in a refrigerator on the premises.
5)
That during this operation and prior to the
police finding these firearms, the Appellant attempted to flee from
the scene.
6)
That later it emerged that the Tanfoglio
and Norinco were linked by means of ballistic evidence to spent
cartridges found on the
scene of the shooting of the deceased.
7)
That there was no evidence tendered by the
Appellant to gainsay the strong evidence adduced by the State during
the trial.
[71]
These are the proven facts from which the court
a quo
was
requested to draw an inference of guilt. It is so unlikely that the
residence of the person to whom the deceased referred to
as
“
Kleinkop
” or Bradley, who he accused as the
person who shot him, two firearms would be found which were linked by
means of ballistic
evidence to that same shooting incident, that in
the absence of an answer it must be considered to be proven beyond
reasonable
doubt.
[72] In our view, the
Regional Magistrate was correct in drawing the inference that the
Appellant was the person or one of the persons
that was responsible
for the killing of the deceased.
Order
[73]
It is for the reasons stated above, that we make the following order:
“
The
appeal against conviction in respect of all of the charges is
dismissed.”
______________________
HENNEY,
J
Judge of the High Court
______________________
SMUTS,
AJ
Acting Judge of the High
Court
[1]
Act
60 of 2000.
[2]
However, according to the ballistic evidence all three firearms were
linked to this shooting incident.
[3]
51
of 1977.
[4]
Jacobson
v Havinga t/a Havingas
2001 (2) SA 177 (T).
[5]
See
the discussion in
Du
Toit et al
Commentary
on the Criminal Procedure Act
2016 Vol 1 15-33,36 and the authorities there quoted.
[6]
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC) par [36].
[7]
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995
(1) SA 653
(A) at 674C-D.
[8]
See,
for instance,
Milton
South
African Criminal Law and Procedure
1996 Vol II 3
rd
at 10.
[9]
2014
(5) SA 297
(SCA) par [26].
[10]
2002
(2) SACR 325 (SCA).
[11]
45
of 1988.
[12]
S
v Msimango
and
Another
2010 (1) SACR 544
(GSJ);
S
v Mothlabane and Others
1995 (2) SACR 528
(B);
S
v Khumalo
(110/12)
[2012] ZAGPJHC 141.
[13]
Mpungose
and Another v S
(460/10)
[2011] ZASCA 60
(31 March 2011);
Seemela
v S
2016
(2) SACR 125 (SCA).
[14]
(109/2014)
[2015] ZASCA 52
(27 March 2015).
[15]
(208/95)
[1996] ZASCA 14
(18 March 1996) where it was held at par [34-35]
“[…]
a
judge should hesitate long in admitting or relying on hearsay
evidence which plays a decisive or even significant part in
convicting an accused, unless there are compelling justifications
for doing so.”
[16]
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA) at par
[171]
.
[17]
1972
(3) SA 766
(A) at 768.
[18]
2002
(6) SA 305 (SCA).
[19]
1939 AD 188
at 202-3.
[20]
1996
(2) SACR 1
(A) at 8C-E.