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[2018] ZAWCHC 120
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Armstrong v S (A265/16) [2018] ZAWCHC 120; 2019 (1) SACR 61 (WCC) (17 September 2018)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
Number:
A265/16
In
the matter between:
WAYNE
GAVIN
ARMSTRONG
Appellant
and
THE
STATE
Respondent
DATE:
17 September 2018
J U D G M E N T
MACWILLIAM
AJ:
[1]
On 21 September 2011, the Appellant
was convicted of murder and sentenced to 18 years direct
imprisonment for the murder
of Jubilus Mngomezulu (“the
deceased”) who was shot and killed on 3 February 2001.
[2]
On 29 May 2015, the Appellant was
granted leave to appeal against both his conviction and sentence.
This appeal was enrolled
on 17 June 2016, but due to the
Appellant’s failure to prosecute the appeal, it was removed
from the roll. The
Appellant thereafter applied for the appeal
to be re-enrolled and that order was subsequently granted.
[3]
At that time, the Appellant’s counsel
noted that prior to the witnesses testifying (save for one witness),
the court
a quo
had said the following words to the witnesses:
“
Do
you swear the evidence you are about to give will be the truth,
nothing but the truth, so help me God?”
And
in respect of an Afrikaans witness:
“
Sal
u sweer die getuienis wat u nou gaan aflê
sal
die waarheid wees, net die waarheid, so help my God
?”
[4]
The State, in addition, ascertained that
one of the witnesses, Ms Matoti, had not been sworn in at all.
SECTION
162(1) OF THE CRIMINAL PROCEDURE ACT
[5]
Section 162(1) of the Criminal Procedure
Act, 51 of 1977 (“the CPA”) states as follows:
“
162
Witness to be examined under oath
(1)
Subject to the provisions of sections 163 and 164, no person
shall be examined as a witness in criminal proceedings unless
he is
under oath, which shall be administered by the presiding judicial
officer or, in the case of a superior court, by the presiding
judge
or the registrar of the court, and which shall be in the following
form:
‘
I
swear that the evidence that I shall give, shall be the truth,
the
whole truth
and nothing but the truth, so help me God’
”
(emphasis added).
[6]
Section 163(1) of the CPA provides
that where an affirmation is to be made, that affirmation shall be in
the following words:
“
I
solemnly affirm that the evidence that I shall give, shall be the
truth,
the
whole truth
and nothing but the truth”
(emphasis
added).
[7]
Section 164 of the CPA deals with
unsworn or unaffirmed evidence. In terms of that section, the
witness shall, in lieu
of the oath or affirmation, be admonished by
the Presiding Judge or Judicial Officer to speak the truth.
THE
APPELLANT’S SUBMISSIONS
[8]
The
Appellant submitted that all of the
viva
voce
testimony presented at the trial was inadmissible. For this
submission he relied on S v
Matshiva
[1]
where the Supreme Court of Appeal stated that:
“
The
reading of section 162(1) makes it clear that, with the
exception of certain categories of witnesses either falling, and
I
repeat, either falling under section 163 or 164, it is
peremptory
for all witnesses in criminal trials to be examined under oath.
The testimony of a witnesses who has not been placed under
oath
properly
,
has not made a proper affirmation or has not been properly admonished
to speak the truth as provided for in the Act, lacks a status
and
character of evidence and is
inadmissible
”
(underlining added by the Appellant).
[9]
In addition, and without referring to the
cases in his Heads of Argument, or identifying the paragraphs or
principles on which he
relied, the Appellant attached copies of an
additional 7 cases to his Heads of Argument (the case reference being
taken from the
copies in question):
[a]
S
v Anthony
;
[2]
[b]
S
v Rammbuda
;
[3]
[c]
S
v Gallant
;
[4]
[d]
S
v B
;
[5]
[e]
S
v N
;
[6]
[f]
S
v Maseti
;
[7]
[g]
D
v Ndhlovu and Others
.
[8]
[10]
In
Anthony’s
case, this Court concluded that where a witness had not been sworn in
at all, that error was such a grievous one, that it vitiated
the
proceedings as whole.
[9]
In that matter, after the State had closed its case, the defence
closed its case without leading any evidence. The
Magistrate
thereafter, acting in terms of Section 186 of the CPA caused a
further witness to be subpoenaed and testify.
It is that
witness who was not sworn in.
[11]
This Court held that:
“
[8]
The Magistrate presiding in the instant matter was thus perfectly
within his rights to act in terms of section 186 in order
to
secure the evidence he thought would enable him to administer justice
properly in the case before him. Where he made a
mistake is
that he then failed or omitted to act in terms of section 162 in
respect of this particular witness. I venture
to say it is
indeed a fatal mistake. For all intents and purposes, the
evidence of that particular witness, because it is
unsworn, is
vitiated by that error. It must be regarded as though it never
existed. The evidence in criminal proceedings
may only be
adduced under oath, under affirmation and under warning.”
[12]
In
the result, the Court concluded that the error was so material that
it qualified to vitiate the proceedings as a whole
[10]
and the proceedings before the Magistrate were reviewed and set
aside.
[13]
It seems clear that in that matter the
evidence of that particular witness was crucial to the accused’s
conviction and the
Court was requested by the Magistrate himself to
set aside the accused’s conviction.
[14]
In my opinion, that case is not authority
for the proposition that merely because a witness has not been sworn
in, the conviction
of the accused in that matter must necessarily be
set aside. In my opinion, one must have regard to the remainder
of the
evidence as well as the impact of the unsworn evidence, on the
outcome of the case, before deciding whether or not the conviction
should be set aside.
[15]
The next 5 cases attached (which included
S
v Matshivha
supra
all related to the evidence of young witnesses who had testified when
the prerequisites set out in Section 164 of the CPA
had not been
followed. In each of those cases that evidence was ultimately
rejected. These cases did not address the
specific issue which
arises in this matter in relation to the omission of the words “the
whole truth” when all of the
witnesses, apart from Mrs Matoti,
were sworn in.
[16]
The seventh case related to the improper
splitting of charges and the proper approach to that evidence, while
the eighth case related
to the admissibility of hearsay evidence.
These cases too do not bear on the present issue.
THE
STATE’S ARGUMENT
[17]
On
behalf of the State it was conceded that it was peremptory for all
witnesses in criminal trials to be examined under oath and
that the
testimony of a witness who has not been sworn in lacks the status and
character of evidence and is inadmissible.
In addition to
Matshivha’s
case
supra
the State referred us to
The
State v Raghubar
[11]
and
The
State v Pilane
.
[12]
[18]
In the result, the State correctly conceded
that the evidence of Ms Matoti was inadmissible.
[19]
However, insofar as the remaining witnesses
are concerned, where the Magistrate in the court
a
quo
had omitted to include the words
“
the
whole truth”
in
administering the oath to the witnesses, the State submitted that
omission of the words
“
the
whole truth”
from the oath
did not make the witnesses’ testimony any less reliable.
The State further submitted that the words
“
the
whole truth”
and
“
nothing
but the truth”
should be
interpreted to have the same meaning.
[20]
The
State referred to
S
v Ndunyunu
[13]
where Dolamo J stated:
“
The
reason for giving evidence under oath (see section 162),
affirmation (see s 163) or admonishment (see s 164)
is to
ensure that the evidence given is reliable”
[14]
[21]
The State argued that there was no reason
to suggest that the evidence of the witnesses who testified in this
matter was any less
reliable because the words
“
the
whole truth”
had been
omitted when the oath was administered.
[22]
The
State also referred to
S
v Baadjies
[15]
where Gamble J and Fortuin J held that:
“
Experience
shows that even in cases where witnesses are much older than the
complainant the word ‘oath’ remains a nebulous
concept,
whereas the invocation to tell the truth is more readily appreciated
and understood. The transcript demonstrates
unequivocally that
the judge was satisfied that the complainant comprehended the
difference between truth and falsehood, and his
admonishment that she
speaks the truth was in my view sufficient to render the
complainant’s evidence admissible.”
[23]
Finally
in this regard, the State referred to
S
v Elton Moses
[16]
where Binns-Ward J stated, in a different context, that
“
the
application by the court of the recent trend in statutory
construction, is to have regard, in respect of the practical
application
of statutory provisions, less to the characterisation of
the language in which a provision has been couched (whether as
‘peremptory’
or ‘directory’), and more to
whether on the facts of the given case the evident substantive
purpose of the provision
has been achieved or not.”
[17]
EVALUATION
[24]
The Court in
S
v Moses
supra
had regard to two judgments, one of the
Supreme Court of Appeal in
Weenen
Transitional Local Council v Van Dyk
[2002 (4) SA 653
(SCA),
[2002] 2 All SA
482
at para. 13, and the other of the Constitutional Court in
Allpay
Consolidated Investment holding (pty) Ltd and Others v Chief
Executive Officer of the South African Social Securit Agency
and
Others
,
2014 (1) SA 604
(CC);
2014
(1) BCLR 1
, at para. 30. The first of these matters related to
the interpretation of section 166 of the Local Authorities Ordinance
25 of 1974 (KZN) and the second to compliance with the state
procurement process. In the latter, the Constitutional Court
held that:
“
[30]
Assessing the materiality of compliance with legal requirements in
our administrative law is, fortunately, an exercise unencumbered
by
excessive formality. It was not always so.
Formal
distinctions were drawn between ‘mandatory’ or
‘peremptory’ provisions on the one hand and ‘directory’
ones on the other, the former needing strict compliance or even
non-compliance. That strict mechanical approach has been
discarded
.
Although a number of factors need to be considered in this kind of
enquiry,
the
central element is to link the question of compliance to the purpose
of the provision
.
In this court O’Regan J succinctly put the question in ACDP V
Electoral Commision as being ‘whether what the
applicant did
constituted compliance with the statutory provisions viewed in the
light of their purpose”.
(Emphasis
added)
[25]
Insofar
as the interpretation of Section 162(1) of the CPA is concerned,
one must necessarily have regard to the approach to
the
interpretation of legislation enunciated in the two judgments in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[18]
and
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
.
[19]
[26]
The language of the section itself, makes
it clear that in terms of Section 162(1) and 163(1) of the CPA
it is peremptory that
a witness must either take the oath or
affirmation in order to render his or her evidence admissible. This
was conceded by the
State and, as was made clear in
S
v Mashivha
supra,
this concession is not contentious.
[27]
In enacting the 2 sections, the purpose of
legislature was to make it clear to a witness who is about to
testify that he should
speak the truth.
[28]
As I see it, the question for decision is
whether that purpose has been satisfied in this matter,
notwithstanding that the words
“the whole truth” were
omitted when the witnesses were sworn in.
[29]
It is to be noted that Section 162(1)
of the CPA provides that the oath
“
shall”
be in the
“
following
form
”
(emphasis added), whereafter the specific words
are set out. The fact that the oath must be in that
“
form”
is an indication that although the specific words
which make up the oath are set out between quotation marks, the
precise words
do not have to be used and that the exact use of those
words is not peremptory. If, for example, the word
“
complete”
was utilised instead of the word
“
whole”,
the oath would still be in that
“
form”
.
[30]
Having said that, I do not agree with the
State that the words
“
the
truth, the whole truth, and nothing but the truth”
must be interpreted to have the same meaning.
A witness can tell the truth without telling the whole truth. A
witness
can also embroider on, and speculate, while at the same time
telling the truth. Thus, in my opinion, the two additional
phrases
do indeed have a distinct meaning.
[31]
However, when interpreting the section, I
agree with the approach of Binns-Ward J in
S
v Elton Moses
supra
that the section should be interpreted
in a practical way. In particular, the Court should have regard
to the evidence given
by the witness in order to make an assessment
whether the omission of the words
“
the
whole truth”,
when the
oath was administered, could have detracted from the veracity,
truthfulness and value of the evidence which the witness
has given.
[32]
I
doubt whether witnesses who take the oath or affirm their evidence
listen carefully to the specific words when the oath is
administered.
Furthermore, I doubt whether anyone, apart from
an eagle eyed advocate, would have noticed that in this case the
words
“
the
whole truth”
had been
omitted when the oath was administered to each witness. Not
only that, but it seems that this was the standard wording
used by
the Magistrate and he may well have had countless other cases in
which the same oath was administered by him. In
the case of )
DPP
v Minister of Justice and Constitutional Development
2009 (2) SACR 130
(CC) the Constitutional Court was called upon to
interpret section 164(1) of the CPA in terms of which a person, who
does not understand
the nature or the importance of an oath or a
solemn affirmation, may give evidence without taking an oath or
making an affirmation.
[20]
[33]
It is instructive that although the
Constitutional Court was there dealing with a separate section which
specifically requires the
Presiding Judge or Judicial Officer to
admonish the witness “to speak the truth” the Court held
that:
“
What
the section requires is not the knowledge of abstract concepts of
truth and falsehood. What the proviso requires is that
the
child will speak the truth”
[21]
.
[34]
The Court then went on to hold:
“
[166]
The reason for evidence to be given under oath or affirmation or for
a person to be admonished to speak the truth
is
to ensure that the evidence given is reliable
.
Knowledge that a child knows and understands what it means to tell
the truth gives the assurance that the evidence can be
relied upon”.
(Emphasis added)
[35]
In
the present matter the requirement that the witnesses should tell the
truth was satisfied by the administration of the oath albeit
without
the words “the whole truth” included. In the case of
S
v Vumazonke
2000 (1) SACR 619
(CPD), the complainant was 10 years old by the time
of giving evidence and was a mildly retarded child with Down
Syndrome.
[22]
In that case it was argued that the warning to be conveyed to the
witness in terms of section 164(1) did not comply with the provisions
of that section, in that the words used were not in accordance with
the formula, namely “to speak the truth, the whole truth
and
nothing but the truth”.
[23]
Jali J (with whom Van Zyl J concurred) rejected this argument in the
following terms:
“
[14]
It is my view that when a witness is being warned in terms of s
164(1), it was not the intention of the Legislature that
exactly the same words should be used as prescribed in s 162(1).
If that was the intention of the Legislature it would have
been
prescribed or conveyed in s 164(1) as in s 162(1), where the words to
be used when the oath is administered are quoted.
I am saying
this without making any finding as to what the failure to use the
exact words quoted in s 162(1) would result in.
In my view
there is no merit in the submission that the oath should be in the
same words or form as set out in the Act.
It
is the substance of what is being said which matters and not the
form
”.
[36]
In the present matter I
have come to the conclusion that “the substance” of the
oath which was sworn to by the witnesses,
apart from this Mrs.
Matoti, was sufficient to satisfy the requirement of section 162(1)
and that the use of the exact words quoted
in section 162(1) is not
pre-emptory. Conversely the failure to use the exact words quoted in
section 162(1) was not sufficient,
on its own, to render the evidence
of the witnesses unreliable.
[37]
My approach accords with the approach taken
in two cases where an oath was improperly administered when an
affidavit was signed.
[38]
In
S
v Munn
[24]
the deponent had signed the affidavit before taking the oath.
It was accordingly argued that this defect invalidated the
affidavit
as the oath should first have been administered by the Commissioner
of Oaths before the deponent signed the affidavit.
The issue
for decision was whether the relevant regulations were peremptory or
directory.
[25]
[39]
The Court analysed this issue in the
following terms:
“
I
do not propose to analyse the various aids to interpretation of
statutes, and cases dealing with these referred to by counsel.
One who concentrates or whether the Legislature has chosen to use
‘shall’ instead of ‘may’ or clothed its
wishes in a positive or negative form in the regulations in issue is
in my view one
qui
haeret in cortice
.
Sec. 10 of Act 16 of 1914 empowered the Governor-General to make
regulations prescribing
‘
...
(c) the form and manner in which oaths and declarations shall be
taken, when not prescribed by any other law’
;
but
the taking of the oath was part of our procedure long before this.
I ignore the oath under previous practice when it was
regarded as the
equivalent of a iudicum Dei; but since the time when oral
testimony was, apparently reluctantly, permitted
in addition to
circumstantial evidence as having probative value, courts have
attempted to provide a stimulus to truthfulness in
witnesses in
judicial proceedings by the sanction of punishment, in this world or
the next, for falsity. An oath is no more
than a calling on God
to punish you if you say what is not true;
and,
if it is to be clothed with any efficacy, it can matter little what
words or ceremonies are used in imposing it, provided the
witness
regards his conscience as bound thereby. The purpose of
administering an oath - normally before a witness testifies
- is to
ensure that he does not speak lightly and frivolously, but weighs his
words; to impress on him the solemnity of the
occasion, and
above all to provide a sanction against untruthfulness.
Originally the sanction lay solely in fear of deferred punishment by
God. This subjective potency of the oath has tended
to diminish
and been reinforced by the sanction of more immediate punishment by
the State, as well as being extended to extrajudicial
proceedings by
statute. And courts and commissioners of oaths have inclined in
modern times to fritter away the effect of
the spiritual sanction by
administering the oath in irreverent and perfunctory fashion, without
giving its theoretical reinforcement
effect, by informing or
reminding witnesses of the temporal one. See Wigmore, secs.
1815 et seq. The valid criticism
of
‘
the
thoughtless, trivial, and degenerate modern practice’
by
Wigmore, vol VI, p. 295, in all probability led to the
promulgation, in terms of Act 16 of 1963, of the new regulations
contained in Government Notice
R.1258
published in Government Gazette
dated
21.7.1972.”
[26]
(Emphasis
added)
The
court thereafter concluded that:
“
In
my view both the 1961 and 1972 regulations are directory only and the
reasoning in cases such is Ex parte Vaughan,
1937 C.P.D. 279
;
Mtembu v. R.,
1940 N.P.D. 7
; and R. v. Sopete,
1950 (3) S.A.
769
(E), irrefutable. These deal with the directive that the
commissioner is to certify in the jurat
that
the deponent
‘
knows
and understands’
the
contents of the relevant document. But they are in my view
equally applicable to the question of signature by the
deponent.”
[27]
[40]
The Court also had regard to the history
and purpose of the administration of the oath:
“
A
study of the history and purpose of the administration of the oath
leads to the view that the purpose of obtaining the deponent’s
signature to an affidavit is twofold: to add to the dignity or
impressiveness of the occasion (cf.
Wigmore
,
vol. VI, sec. 1819, pp. 296-7) but primarily to obtain
irrefutable evidence that the relevant disposition was indeed sworn
to. The former aim would be frustrated were the signatory to
sign an unsworn statement; and for the latter purpose
the
signature is valueless to prove that the deponent swore to the
affidavit if admittedly signed before the oath was taken.
But
if uncontradicted evidence were to be adduced that he was indeed
aware of the solemnity of the occasion and voluntarily took
the oath
as to the veracity of the contents of the document, it would in my
view be to place form before substance to allege that
the document
produced is nevertheless invalid
.
Compliance
with the regulations provides a guarantee of acceptance in evidence
of affidavits attested in accordance therewith, subject
only to
defences such as duress and possibly undue influence.
Where
an affidavit has not been so attested, it may still be valid provided
there has been substantial compliance with the formalities
in such a
way as to give effect to the purpose of the legislator as outlined
above
.
And
whether there has been such
‘
substantial
compliance’
is
a matter of fact, not of law.
Where
a man, fully aware of the solemnity of the occasion and fully
intending to be bound by his words, signs before swearing, it
would
place form above substance were his affidavit to be nullified for
such chronological irregularity
.”
[28]
(Emphasis added)
[41]
S
v Msibi
[29]
was a decision of the full bench of the then Transvaal Provincial
Division. In that matter Viljoen J held:
“
Daar
word op talle terreine van die samelewing beëdigde verklarings
vereis en indien die nie-nakoming van die vormvereistes
soos
voorgeskryf, nietigheid van die verklaring sou beteken, sou dit in
vele opsigte ontwrigtend op die samelewing inwerk.
As ‘n
persoon wat valslik ‘n verklaring beëdig het, later straf
vir meineed sou kon vryspring bloot op grond daarvan
dat die
vormvereistes soos voorgeskryf nie stiptelik nagekom is nie, sou dit
nie gevolg gee aan die bedoeling van die Wetgewer
nie. Vgl.
Sopete
se saak,
supra
op bl.
772H-773A-D.
Daar
bestaan dicta
in
gewysdes wat daarop dui dat al die regsprekers in die verlede nie
eners gedink het oor die aangeleentheid nie. Hierdie
gewysdes
is R. v. Pietersen,
1944 C.P.D. 340
te bl. 341; Swart v.
Swart,
1950 (1) S.A. 263
(O). In hierdie verband wil ek my
graag, met eerbied, vereenselwig met die opmerkings van REYNOLDS, R,
in Sopete
se
saak, supra, waar hy die mening huldig dat om te beweer dat die
betrokke voorskrifte aanwysend is, nie beteken dat hulle beskou
moet
word as skeurpapier (
‘
waste
paper’) (soos wat die suggestie is in Pieterse se saak nie),
want soos ook later in hierdie uitspraak sal blyk is hierdie
voorskrifte van groot waarde en het die Hof ‘n diskresie om ‘n
beëdigde verklaring ten aansien waarvan die voorgeskrewe
vereistes nie nagekom is nie, in ‘n gepaste geval as waardeloos
te beskou.
Ek
het dus tot die gevolgtrekking gekom dat die huidige voorskrifte soos
vervat in regulasies 1, 2, 3 en 4 van R.1258 gedateer 21
Julie 1972,
nie gebiedend is nie, maar slegs aanwysend.
Dit
beëindig egter nog nie die ondersoek nie. Soos ek reeds
hierbo in die vooruitsig gestel het kan ‘n hof, in
‘n
gepaste geval waar die voorskrifte nie nagekom is nie, weier om die
betrokke beëdigde verklaring as sulks te aanvaar
of om enige
gevolg daaraan te heg. Ook dit is herhaaldelik in die verlede
deur Howe benadruk. In Vaughan
se
geval, supra, sê
CENTLIVRES, R.
(soos hy toe was):
‘
So
it seems to me that in the circumstances of this case I should accept
the affidavits which have been filed; but in accepting
the
affidavits in this case I do not wish to suggest for a moment that
there may not be cases in which the Court will refuse to
accept
affidavits which do not comply with the provisions of para. (e)
of the regulation to which I have referred ...’
”
[30]
[42]
See
also
Cape
Sheet Metal Works (Pty) Limited v JJ Calitz Builder (Pty)
Limited
.
[31]
Accordingly,
in the circumstances of this case, it seems to me that we should have
regard to the evidence given by all of the witnesses,
apart from
Ms Matoti. There is, with respect, nothing in their
evidence which indicates that they did not take the oath
seriously
and undertake to tell the truth, or to put it differently, that the
omission of the words
“
the
whole truth”
served in
any way to detract from the reliability of their evidence.
HEARSAY
EVIDENCE
[43]
In argument the Appellant’s counsel
submitted that the trial court had misdirected itself by having
regard to was said by
the deceased to Patrick Mngomezulu.
Patrick Mngomezulu spoke to the deceased after had been shot and
shortly before he died.
His evidence was as follows:
“
Did you
speak – did you get a chance to speak to your brother at that
stage? --- Yes
What did you speak to him? --- and
I asked him what had happened and he told me that the person with
whom I left him – him
with at home is the one who shot him.
Did he give you
a name? --- Yes
What was the
name Sir? --- Wayne
[44]
The Appellant’s legal representative
did not challenge the admissibility of that evidence at the time and
when the evidence
was led.
[45]
Before relying on this evidence, the
Court
a quo
had regard to
section 3(1)
of the
Law of Evidence Amendment Act 45 of
1988
and the factors listed in
section 3(1)(c)
thereafter. It
then concluded that the evidence was admissible.
[46]
The Appellant’s counsel referred us
to Antoinio Van Willing and Another v State (109/2014)
[2015] ZASCA
52
(27 March 2015) . In that case the Supreme Court of Appeal
stated at paragraph 26 that:
“
The
probative value of the hearsay evidence depends on the credibility of
the deceased. The question must thus be asked whether
his
evidence identifying the perpetrators would be reliable”.
[47]
In this matter there are no grounds to
believe that the statements made by the deceased were unreliable. It
was not suggested either
in the course of cross examination or in
argument before us that the deceased had any reason to falsely
identify the Appellant.
[48]
In my opinion, the court
a
quo
correctly had regard to the hearsay
statements made by the deceased to Patrick Mngomezulu.
ALIBI
[49]
In the course of the oral argument it was
submitted that the Appellant had raised an alibi and that it was
incumbent on the State
to prove that the alibi was false. The
submission was made with reference to the
S
v Liebenberg
(156/2003)
[2005] ZASCA 56
(31 May 2005) and more specifically para [14] thereof.
[50]
The highwater mark of the evidence to which
we were referred as constituting the alibi, was the following
evidence which was given
in chief by the Appellant:
“
Now
the witnesses that have testified alleges that an incident occurred
on the 3
rd
of February 2001. Can you tell the court, can you recall where
you were the morning of 3 February 2001 --- Ja. I think
it was
on a Saturday, that day I was at home.
HOF:
“Tolk --- Yes I can recall I was at home.
Where
is home? --- In Guguletu NY 71.
The
Appellant also stated in his evidence in chief that if he had to
travel from his home to the place where the deceased was shot
by taxi
it could be 10 mins”.
[51]
In cross-examination he stated that that to
walk, it would take 30 or 40 mins.
[52]
Furthermore it was not suggested in
evidence that the Appellant was at home that entire day or that the
fact that the Appellant
had been at home for some of the day
precluded him from being at the scene of the murder when the deceased
was shot.
[53]
Even if this evidence could be regarded as
constituting an alibi, it was not sufficient to cast doubt on the
State case.
THE
CONVICTION
[54]
It was most unfortunate that the evidence
in this matter was heard some 10 years after the incident. In
the result one must
be cautious when assessing the evidence given by
the witnesses in order to take into account that they were testifying
about events
which took place 10 years earlier.
[55]
Having said that, it seems plain that the
witnesses were not to blame for the delay. The fact is that the
initial police investigation
appears to have been woefully inadequate
and the police appear to have been largely responsible for the
inordinate delay.
[56]
Insofar as the unsworn evidence of
Ms Matoti is concerned, that evidence was largely irrelevant and
of little assistance one
way or the other. If her evidence is
disregarded, the State’s case remains a convincing one and
there is no prejudice
to the appellant.
[57]
It is the compelling evidence of
Nomathandayo Ntolwana (who was referred to by the witnesses as
“
Norma”
)
which is the cornerstone of the State’s case. Her
evidence was clear and straightforward. She testified that
the
Appellant had unequivocally told her that it was he who had shot the
deceased as he laboured under the impression that the
deceased was in
a relationship with her. As it turned out, the Appellant
belatedly conceded that he had shot the wrong man.
Her evidence
with regard to the events preceding the murder and the difficulties
which she was experiencing with the Appellant,
his wish to continue
the relationship and her determination to end it was plausible and
fitted in well with the totality of the
evidence presented.
[58]
It is striking that much of the Appellant’s
evidence coincided with that of Norma’s, save that he denied
that he had
told Norma that he had shot the deceased. In this
situation it seemed clear that the Appellant was constrained to
fabricate
grounds for Norma to falsely accuse him of the shooting.
His version was that Norma was attempting to frame him in order to
get back at him arising out of her discovery that he was having an
affair. This version was simply not credible. Norma
was
the mother of his son and the Appellant continued to phone Norma on
her birthday every year and did not appear to have any
malice towards
Norma arising out of her falsely implicating him in so heinous a
crime.
[59]
The Appellant has criticised the evidence
of Chester and Patrick, the deceased’s brothers. However,
that criticism fails
to take into account that save for the
Appellant’s identification, they were giving evidence about an
actual murder which
actually occurred and in relation to which any
inconsistencies were entirely irrelevant. The only question for
determination
is whether their identification of the Appellant as the
murderer falls to be disregarded.
[60]
While no identification parades were held
and they both testified some 10 years after the shooting, in
circumstances where
they had more recently seen the Appellant in
court where he was already identified as the accused, the fact is
that some weight
must be given to their identification of the
Appellant as the murder. Even if little weight is given to that
evidence, it
nonetheless serves to corroborate Norma’s
evidence.
[61]
Insofar as identification is concerned, the
Appellant referred us to
S v
Matshivha
supra
at
para [28] and following. It is not clear how that reference
advanced the argument in anyway.
[62]
During the course of cross-examination of
Chester in particular, and to a lesser extent Patrick, the defence
made much of the fact
that they had not made statements to the police
at an early stage. However, this is hardly something for which
they can be
blamed, in circumstances where the then investigating
officer was not available to testify as he had apparently died in the
meanwhile
and it is quite evident that the police investigation and
their preparation of the evidence was particularly poor. No
crime
scene forensics were conducted, no photo/identification parades
were held and Norma herself only appears to have been contacted
by
the police with regard to the whereabouts of the Appellant in 2007.
[63]
In any event, the Appellant was shown to be
an unreliable witness. He contradicted his own version which
was put to Norma
by his legal representative, namely that Norma had
called him on the Monday after the shooting. The Appellant’s
testimony
in fact supported Norma’s in that he alleged that he
had called Norma. Not only was his explanation why Norma would
falsely implicate him wholly implausible, but what was put by his
legal representative to Norma was that she was angry with the
Appellant because he had had a relationship with a woman in
Johannesburg and with one Zanelle in Cape Town. However, in
evidence he sought to embroider this by adding the fact that Norma
was allegedly upset because he had two older children that she
was
unaware of. As against that, Norma’s conduct in
distancing herself physically from the Appellant and leaving her
home
was confirmed by the Appellant.
[64]
It is difficult to believe that Norma would
want the father of her child to be imprisoned for a murder which he
had not committed
on the flimsy basis alleged by the Appellant,
particularly as it is also highly improbable that she would continue
to falsely accuse
the appellant 10 years after their relationship had
ended, in circumstances where there was no evidence to suggest that
she could
still be angry with the Appellant.
[65]
In the circumstances, there are no grounds
to set aside the Appellant’s conviction.
SENTENCE
[66]
The court
a
quo
not only found no substantial and
compelling circumstances, but also found aggravating circumstances to
be present. The deceased
was shot a number of times in
circumstances where he offered no resistance and did not in any way
provoke the Appellant.
He was deputy principal at a school, a
respected member of the community who had made a positive
contribution to society.
His father, who was seriously ill, and
his brothers, lost their son and brother in this, a cold-blooded
murder.
[67]
In the circumstances, I find that there are
no grounds to interfere with the sentence.
MACWILLIAM AJ
I
agree and both the appeal against the Appellant’s conviction
and sentence is dismissed.
ALLIE
J
Date
of Hearing: 07 September 2018
Date
of Judgment: 17 September 2018
APPEARANCES
For
the Appellant: Adv. R Liddell
Instructed
by: Liddell, Weeber & Van Der Merwe Inc., Wynberg
For
the Respondent: Adv. M L Mabiya
Instructed
by: State Attorney, Cape Town
[1]
2014 (1) SACR 29
(SCA) at paragraph 10
[2]
(SHF 27/14)
[2014] ZAWCHC 30
(20 March 2015)
[3]
(156/14)
[2014] ZASCA
146
(26 September 2014)
[4]
(CA&R 69/06) Date of judgment 19 July 2007 (Eastern Cape
Division), being an unreported judgment of Revelas J
[5]
(22/02) 2003 (1) SACR 52 (SCA)
[6]
1996 (2) SACR 225 (C)
[7]
(353/13)
[2013] ZASCA 160
(25 November 2013)
[8]
(327/01) 2002 (2) SACR 325 (SCA)
[9]
See paragraph [10] of the judgment
[10]
See paragraph [10] thereof
[11]
2013 (1) SACR 398 (SCA)
[12]
(559/16)
[2017] ZASCA 71
(1 June 2017)
[13]
(A487/2010)
[2013] ZAWCHC 43
(28 February 2013)
[14]
At paragraph [12]
[15]
2017 (2) SA
CR 366 (WCC)
[16]
(R48/2018) ZAWCHC 14 June 2018
[17]
At paragraph [13]
[18]
2012 (4) SA 593
(SCA) at para [18]
[19]
2014 (2) SA 494
at paras [10] to [12]
[20]
See para [164] at p. 186 b-c
[21]
At 186 g-h
[22]
See p. 620 d
[23]
See p. 623 e
[24]
1973 (3) SA 734 (NCD)
[25]
At p. 736E
[26]
At 736E-737C
[27]
Munn
supra
at p. 736F - 737F
[28]
Munn
supra
at p. 737F - 738A
[29]
1974 (4) SA 821 (T)
[30]
Msibu
supra
at p. 828H-829E
[31]
1981 (1) SA 697
(O) at 699A-C