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[2018] ZAWCHC 129
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Namzi v S (06/2017) [2018] ZAWCHC 129 (9 October 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
(Coram:
Henney, J et Loots, AJ)
Appeal
No:
06/2017
Lower
Court Appeal No:
HS24/2013
DPP
Ref No:
10/2/5/1/3-30/18
In
the matter between:
SIBUSISO
NAMZI
Appellant
And
THE
STATE
Respondent
Heard:
7 September 2018
Delivered:
9 October 2018
JUDGMENT
Henney,
J et Loots, AJ
INTRODUCTION
[1]
The appellant was charged in the Strand Regional Court with having
committed
the offences of robbery with aggravating circumstances as
defined in section 1 of the Criminal Procedure Act No. 51 of 1977
(“
the CPA
”), as count 1, and murder (read with the
provisions of Section 51(2), 52(2) and 52B of the Criminal Law
Amendment Act 105
of 1997 (“
the CLAA
”), as count
2.
[2]
The appellant, who was legally represented throughout the
proceedings,
pleaded not guilty to the charges.
[3]
Following an extended trial in which he participated fully, the
appellant
was convicted on both counts, following which he was
sentenced to 15 years direct imprisonment in respect of count 1, and
life
imprisonment in respect of count 2.
[4]
The appellant has exercised his rights granted in terms of section 10
of the Judicial Matters amendment Act, No 42 of 2013, and has
prosecuted an appeal against both his conviction and sentence.
AD
CONVICTION
[5]
The particulars in respect of count 1 (as reflected on the charge
sheet)
are that on or about 11 September 2012, at or near [..],
Hermanus, in the regional division of the Western Cape, the appellant
unlawfully and intentionally assaulted the 72 year old Hendrika Maria
Maree (“
the deceased
”), with violence, taking a
safe containing R700.00 in cash, a cheque book, and an identity
document, all owned by the deceased,
or in the lawful possession of
the deceased. The aggravating circumstances in respect of the
robbery are recorded to be that
the appellant strangled and
suffocated the deceased.
[6]
The particulars contained in the charge sheet in respect of count 2
are
that, on or about 11 September 2012, at or near […],
Hermanus, in the regional division of the Western Cape, the appellant
unlawfully and intentionally killed the deceased by strangling and
suffocating her.
[7]
Given the formulation of the charges in respect of the commission of
the
offences, and the fact that (on a proper construction of the
charge sheet) the commission of the murder was alleged to have
occurred
pari passu
with the robbery, the appeal in respect of
the conviction on both counts 1 and 2 were dealt with together.
[8]
Thus, the grounds of appeal advanced in respect of the conviction in
respect
of both counts 1 and 2 were, therefore, that:
a.
The Regional Magistrate erred in holding that the State had
discharged the onus of proving beyond a reasonable doubt that the
appellant was the perpetrator of the offences.
b.
The Regional Magistrate, in holding that the State had discharge
the
onus resting on it, erred:
i.In that she had failed
to properly evaluate the evidence tendered;
ii.In that she had
concluded that the evidence tendered justified reaching the
conclusion (as the only reasonable conclusion) that
the appellant was
the perpetrator of the crimes with which he was charged;
iii.In that she found the
appellant’s version to be so improbable that it could be
rejected beyond a reasonable doubt;
iv.In that she concluded
that the evidence tendered was sufficient to justify the finding that
the appellant’s confession
statement regarding his commission
of the robbery and the murder of the deceased, was made freely and
voluntarily.
Evaluation
of the evidence tendered in light of the grounds of appeal
Formal
Admissions
[9]
The conviction of the accused was based on the totality of the
evidence
presented to the Regional Magistrate; which was mostly
circumstantial in nature. These included admissions made by the
accused
in terms of Section 115 (2) (b) read with Section 220 of the
CPA, which admissions related to the usual chain evidence, as well
as
including an admission that the appellant’s fingerprints were
lifted from the scene of the crime (however, contending
that have
been placed there under different circumstances than those alleged by
the State).
[10]
In addition to the admissions referred to above, on 16 October 2012
(the day following
his arrest), the appellant had confessed to the
murder of the deceased before Captain DJ Rautenbach of the South
African Police
Service (“
SAPS
”). Captain DJ
Rautenbach is the branch commander of the Gansbaai detective branch
and a commissioned officer in the
SAPS.
[11]
The process of making the statement containing the appellant’s
confession was recorded
on video, and the statement itself was
reduced to writing. The appellant’s statement,
furthermore, indeed amounts to
a confession of the murder of the
deceased at the time of the commission of the robbery with which he
was also charged.
[12]
The admissibility of confessions is governed by the provisions of
section 217 of the CPA.
In terms of section 217 the primary and
indispensable requirement for the admission of a confession is that
it be made freely and
voluntarily by a person in sound and sober
senses who was not unduly influenced into making it. Should the
State wish to
rely on a confession, the
onus
is it to show
that there has been compliance with the prescripts of section 217.
[13]
The appellant attacked the admissibility of the confession, alleging
that he was assaulted
by members of the SAPS, and coerced into making
the confession against his will, the content of which was dictated to
him.
[14]
In support of his case that the confession was not made freely and
voluntarily the appellant
alleged that, prior to making the
confession, he was taken to a beach by the investigating officer and
two other members of the
SAPS, one of which was a woman. There,
inter alia
, he was carried by his testicles and had a plastic
bag put over his head to cut off his supply of oxygen. He was
allegedly
also threatened.
[15]
Against the allegations of the appellant are juxtaposed the evidence
of the investigating
officer, as corroborated by Warrant Officer
Coetzee, as well as the process Captain Rautenbach followed in
respect of the appellant’s
confession.
[16]
Captain Rautenbach, who was in no way connected to the investigation
(even being from a
different police station and town) testified that,
prior to him agreeing to receive the appellant’s confession, he
insisted
that the appellant be medically examined and that a
so-called J88 medical examination form be submitted to him following
the examination.
The appellant was duly examined by a medical
practitioner, who found no signs of assault. Captain Rautenbach
then insisted
that a videographer be present during the proceedings
and that the proceedings be recorded. Again, nothing untoward
is found
in the process, including that the appellant made no mention
of any assault or coercion. It would therefore appear that
Captain
Rautenbach was acutely aware of the duties resting on him in
respect of recording the confession, and that he was studious in
following
these duties.
[17]
To the manner in which the confession was recorded must be added the
fact that the details
provided by the appellant during the confession
would not ordinarily be details provided by someone who had been
coerced into making
a confession in respect of a crime he did not
commit.
[18]
Having regard to what is stated above, we are satisfied that the
State has discharged the
onus
resting on it prescribed by the
provisions of section 217 of the CPA, and that there has been
compliance with the
dicta
in
S v Mofokeng
1986
(4) SA 852(W)
,
S v Dhlamini
1971 (1) SA 807
(A) and
S v Mpetha
1983 (1) SA 576
(C).
[19]
We are therefore also satisfied that the court a
quo
was
correct in accepting into evidence the appellant’s confession
to having committed the crimes reflected in the charge
sheet.
Further
evidence
[20]
The other circumstantial evidence the Regional Magistrate relied on
was the evidence of
the deceased’s daughter-in-law, Ms Maree,
and of the deceased’s sister, Ms Marx. Ms Marx stated
that she had
regular telephonic contact with the deceased, including
on the morning of 11 September 2012. On this morning the
deceased
could not speak to Ms Marx because she had to dish some food
for “Simon”. Ms Maree confirmed that the appellant
was known as “Simon”, and that he worked for her and her
husband before working for the deceased. Ms Maree’s
evidence, furthermore, corroborated the evidence of Ms Marx to the
extent that she testified that there were two plates and a cup
on the
table in the house of the deceased. One plate still contained
part of a meal. The evidence of the telephonic
contact between
the deceased, Ms Maree, and Ms Marx was confirmed by the production
of relevant telephone records;
[21]
The destruction of the appellant’s alibi (that he was already
working in the Strand
as from 26 August 2012) by the evidence of Ms
Moshi, his life partner, and Mr Lingawuthu, his former landlord (to
both of whom,
according to their testimony, he had also admitted the
commission of the offences with which he had been charged (although,
during
the trial, the appellant disputed having done so).
[22]
Considering the evidence as a whole we are satisfied that the trial
court was correct in
finding that, not only based on the appellant’s
confession, but also based on the surrounding circumstantial
evidence, it
was proven beyond reasonable doubt that the appellant
had committed the offences in question.
AD SENTENCE
Consideration
of the question regarding the competency of the Regional Court to
have imposed the sentence of life imprisonment
[23]
As regards sentence, the first question to consider in this appeal is
whether it was competent
for the Regional Court to sentence the
appellant to life imprisonment in respect of count 2.
[24]
Regardless of the narrative thereof, the charge sheet (incorrectly,
it was submitted during
the argument of the appeal) only referred to
section 51(2) of the CLAA.
[25]
Before sentencing, the appellant’s legal representative however
conceded that, despite
the charge sheet referring to section 51(2) of
the CLAA, the provisions of section 51(1) thereof apply in
casu
.
[26]
Notwithstanding the apparent concession by the appellant’s
counsel, we are of the
view that, if it is found that the Regional
Court could not have sentenced the appellant in terms of section
51(1) of the CLAA
in the circumstances, the sentence of life
imprisonment imposed falls to be set aside, and is to be replaced by
a sentence which
falls in Part 2 Schedule 2, read with Section 57 (2)
of the CLAA.
[27]
In
S v Mashinini
2012 (1) SACR 582
(SCA) Mhlantla JA
(for the majority), having,
inter alia
, considered the
dicta
in
S v Legoa
2003 (1) SACR 13
(SCA),
S v Ndlovu
2003 (1) SACR 582
(SCA) and
S v Makatu
2006 (2) SCAR
582
(SCA), the following is stated in paragraph 28 of the judgment:
“
There is one
aspect that I am constrained to address. In my view this is a type of
case where imprisonment for life would have been
appropriate but for
the careless manner in which the staff in the office of the National
Director of Public Prosecutions handled
the matter. The relevant
officials did not approach the matter with the requisite degree of
diligence and seriousness. They were
aware of the facts - having
obtained a statement from the complainant and had DNA evidence. The
four suspects had been arrested
– clearly indicating that this
was an allegation of a gang rape. Had they applied their minds
properly, it would have been
clear to them that the accused persons
ought to be charged either in terms of s 51 or s 51(1) of the Act if
they desired to be
specific. The outcome of the case is unjust to the
complainant and society at large but that is as a result of the State
failing
to perform its duties properly. This is made even more
reprehensible by the fact that starting from Legoa and
ending
with Makatu, this court has sounded a salutary warning
that care be exercised in drafting and preparing charge-sheet(s) and
indictment(s) to ensure that they correctly and adequately reflect
all the necessary averments. A situation of this nature cannot
be
countenanced.”
[28]
Relying on this
dictum
the State’s counsel conceded that
the State had erred in charging the appellant in terms of section
51(2) of the CLAA and
submitted that, because of the error, the
regional court was limited to imposing a sentence of 20 years
imprisonment in respect
of count 2. Interestingly, counsel for
the appellant did not advance this argument.
[29]
Following
Mashinini
the Supreme Court of Appeal, in
S v
Mhlongo
2016(2) SACR 611 (SCA) and
Tshoga v S
2017 (1) SACR 420
(SCA), again considered the question of similar
incorrect statutory references in charge sheets.
[30]
In
Mhlongo
the SCA found that substance is to trump
form when considering whether or not an accused’s right to a
fair trial had been
infringed by the failure of the prosecuting
authority to formulate the charge sheet in such a way that it refers
to the correct
subsection 51 of the CLAA, or (at the outset of the
trial) to have been informed of the relevant provisions of the CLAA.
The court again emphasised that every case must be treated and judged
on its own facts before any decision to set aside the proceedings
can
be taken. On the facts serving before the SCA in
Mhlongo
the court held that, upon reading the record as a whole, it could not
be said that the accused had been deprived of his right to
a fair
trial despite reference incorrectly having been made to Part 2 of
Schedule 2 to section 51 of the CLAA. The substance
was that
the charge the accused pleaded to unambiguously fell within the ambit
of section 51(1) of the CLAA, the accused was made
aware of his
rights within the purview of the CLAA at the commencement of the
trial, the accused was aware of the seriousness of
the charge
(seeking a postponement of the trial to consult his parents in this
regard), and the accused was legally represented
throughout the
proceedings. In any event the SCA, at paragraph 17 of the
judgment reaffirmed that:
“
It
will not be essential to inform [the accused person] that he is
facing the possibility of a substantial prison sentence or a
sentence
which may be “materially prejudicial” if he can
reasonably be expected to be aware of this’.”
[31]
The SCA’s analysis in
Tshoga
also finds
application in the present instance; where, at paragraphs [22] and
[23] of the judgment, the court reaffirmed that,
in considering
prejudice to the accused due to irregularities in the charge sheet
relating to the applicability of a minimum sentence
regime, substance
overrides form. The court, furthermore, reiterated that every
case is to be approached on its own facts
and that it can only be
decided whether an accused had a fair trial or not after a diligent
examination of all the facts.
We mention that, on the facts
governing
Tshoga
, the court found that the accused’s
right to a fair trial had not been prejudiced by the failure to have
mentioned the relevant
provisions of the CLAA in the charge sheet.
[32]
Subsequent to
Mhlongo
and
Tshoga
, the
Constitutional Court, in
Ndlovu v S
2017 (2) SACR 305
(CC), considered the question of whether the regional courts
sentencing jurisdiction was curtailed by the reference to the
incorrect
section of the CLAA in the charge sheet when formulating
the charge. In
Ndlovu
the appellant had been charged
with rape, as read with section 51(2) of the CLAA. In the
circumstances of that matter the
Constitutional Court found that the
Regional Court had overstepped the boundaries of its statutory
competence because the accused
was found “guilty as charged”,
having simply been charged with rape read with section 51(2) of the
“Minimum Sentencing
Act”. The charge was not rape
involving the infliction of grievous bodily harm and evidence alone
could not make it so.
[33]
A comparison between the formulation of the charges in the present
matter, and the facts
of
Ndlovu
, readily confirms the
distinction between the two cases, as well showing why
Ndlovu
is to be distinguished from
Mahlongo
and
Tshoga
.
[34]
Whereas in the case of
Ndlovu
the appellant was charged
only with rape
simpliciter
, being rape as read with section
51(2) of the CLAA with no nothing added, it appears, to bring the
offence within the ambit of
section 51(1) of the CLAA, the appellant
in the present instance was charged with robbery with aggravated
circumstances and murder
where, upon a reading of the narrative of
the count 2 in the context of the narrative of count 1, the death of
the deceased was
caused by the accused in committing, or after having
committed robbery with aggravated circumstances. In fact the
aggravating
circumstances in respect of count 1 are the strangulation
and suffocation (thus the murder) of the deceased.
[35]
Furthermore, in the matter before us, as in
Mhlongo
and
Tshoga
, the appellant was charged with and pleaded to
offences which clearly fall within the ambit of section 51(1) of the
CLAA.
[36]
There is also no doubt that the appellant, who was legally
represented throughout the trial,
was acutely aware of the
seriousness of the offences with which he had been charged, actively
participating in the trial proceedings.
[37]
In addition the facts satisfying the definitional requirements for
the imposition of a
life sentence in terms of section 51(1) of the
CLAA are established by the evidence as a whole, as well as forming
part of the
appellant’s very confession admitted into evidence.
[38]
We are thus satisfied that, despite the fact that the charge sheet in
respect of count
2 provides for the provisions of a sentence to be
imposed in terms of section 51(2) of the CLAA, the appellant as well
as his legal
representative, were at all times aware that a
conviction on count 2 would attract the imposition of a sentence in
terms of the
provisions of section 51(1) of the CLAA.
[39]
Notwithstanding the above finding, and before finally disposing of
this issue, it would
be prudent for this court to comment about the
continuous carelessness of prosecutors in drafting charge sheets and
indictments
in matters where the provisions of the CLAA finds
application.
[40]
As can be seen from the various cases cited, and cases which have
gone through our courts,
it has become a regular occurrence that
Regional Courts as well as the High Court are confronted with the
situation where prosecutors,
through negligence or some oversight in
drafting charge sheets or indictments (as the case may be), fail to
refer to the proper
statutory provision of the CLAA on which the
State the wishes to rely in respect of sentencing of an accused.
[41]
This may result in unfairness to an unsuspecting accused, even if he
or she is legally
represented. As happened in
Mashinini
,
it may also result in a person being sentenced to a lesser term of
imprisonment even though, on the facts of the case, such a
person has
been proven to have committed an offence to which the provisions of
section 51(1) (which calls for a higher sentence)
are applicable,
instead of the provisions of section 51(2). Such a situation
would be untenable and not be in the interests
of justice and should
be avoided at all costs.
[42]
It would therefore be a sound practise for prosecutors, in terms of
the provisions of section
150 of the CPA, at the outset of the
proceedings, to inform the court whether the State would, upon
conviction of an accused, rely
on either the provisions of section
51(1) or the provisions of 51(2) of the CLAA. The court should then
briefly confirm with the
accused that the provisions of the CLAA had
been brought to his or her attention, and explained.
[43]
The reason for recommending the practice set out in the immediately
preceding paragraph
is that it is doubted whether the charge sheet or
indictment would invariably be capable of amendment or rectification
at a later
stage in terms of the provisions of section 86 or 88 of
the CPA. The
obiter
reference in
Mhlongo
(at paragraph [17] of the judgment) that the fact that the charge
sheet had a defect which was never rectified in terms of s 86(1)
of
the CPA, did not of its own vitiate the sentencing proceedings, must
be seen in the context of the factual matrix applicable
to that case.
It does not confer a blanket power to, without more, “amend”
a defective charge sheet. If
such a situation were to be
permitted it could result, not in the amendment of charge sheets, but
in the substitution of charges.
[44]
In
Ndlovu
(as did the SCA in
Mashinini
)
the Constitutional Court, therefore, declined to allow the appellant
to be sentenced as if he had been charged under section 51(1)
of the
CLAA when he had been charged under section 51(2) thereof.
Appropriateness
of the sentences imposed
[45]
The next question to consider is whether the sentence imposed in
respect of each of the
charges was appropriate. In dealing with this
issue, there has to be a consideration as to whether the court
a
quo
was correct in coming to the conclusion that there were no
substantial and compelling circumstances to deviate from the
prescribed
sentences. Therefore, having regard to the totality
of the evidence in this case, this court must, satisfy itself whether
or not such circumstances are present.
[46]
During his address in mitigation of sentence the appellant’s
legal representative
acknowledged and submitted that the offences of
which the appellant had been convicted are very serious and gruesome
offences affecting
the safety and security of ordinary citizens,
making them scared to stay in their own homes and in their own
country. He continued
to state that the offences affect, not only
individuals, but also the country as it affects international trade.
[47]
Notwithstanding, the foregoing, and the fact that he faced life
imprisonment, the appellant
did not himself testify in mitigation of
sentence, nor was any witness called to testify on his behalf.
[48]
The following personal circumstances were, however, placed on record
by the appellant’s
legal representative on his behalf:
a.
The appellant was born on […] 1983 (and was thus 29 years
old
at the time of the commission of the crimes).
b.
He has a life partner and two children (born in 2006 and 2011
respectively) with whom he was still in contact at the time of
sentencing;
c.
He was not the primary caregiver although he maintained the
children
when he was working.
d.
He attained a grade 9 education and attended the Zion church
in
Zwelihle in Hermanus.
[49]
The appellant has one previous conviction for housebreaking and theft
committed on 10 June
2002.
[50]
At the time of the sentencing the accused had been in custody since
15 October 2012, a
period of roughly 2 years and 8 months.
[51]
As was recently reaffirmed by the SCA in
DPP v Booysen
(580/2017)
[2018] ZASCA 07
(23 February 2018) at paragraph [13];
where minimum sentence regimes apply the court must impose the
minimum sentence unless there
are substantial and compelling reasons
for imposing a lesser sentence.
[52]
Not only was the trial court alive thereto that substantial and
compelling reasons for
a deviation from the statutory prescribed
sentences had to exist before a lesser sentence than such a sentence
could be imposed,
on several occasions she reminded the appellant’s
legal representative that substantial and compelling reasons had to
be
advanced should he wish to argue for a lesser sentence.
[53]
It was not disputed that the mode of the robbery rendered the
appellant liable for conviction
of robbery with aggravating
circumstances.
[54]
In respect of the murder of the deceased, the appellant callously
murdered an elderly lady,
living alone, in her home, under
circumstances where he was employed by her and therefore stood in a
relationship of trust with
her. He accomplished this by
strangling and suffocating her when she had refused to open the
safe. The appellant murdered
the deceased so that he could
complete his theft of the safe (containing, as he himself stated in
his confession: R 700.00, a cheque
book, and the deceased’s
identity document).
[55]
Considering the principles set out above in the context of the
factual matrix applicable
in this case, and against the background of
the well-known triad identified in
S v Zinn
1969 (2) SA
537
(SA), together with the fact that there appears to be no
substantial or compelling reason that was put forward as to why the
minimum
sentences should not be imposed, I am of the view that the
sentence imposed, although on the face of it harsh, was appropriate
given the circumstances of the case.
[56]
Accordingly, the appeal in respect of both conviction and sentence is
dismissed.
[57]
ORDER
1.
The appeal against conviction and sentence is dismissed.
2.
That a copy of this judgment be distributed to the Offices of
the
Regional Court President and the D.P.P. Western Cape.
JH
LOOTS
Acting
Judge of the High Court
I
agree.
RCA
HENNEY
Judge
of the High Court