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[2015] ZASCA 42
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Gcam-Gcam v S (1034/2013) [2015] ZASCA 42; 2015 (2) SACR 501 (SCA) (25 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1034/2013
In
the matter between:
ALFRED
ZWELIDUMILE
GCAM-GCAM
..................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
Citation:
Gcam-Gcam v The State
(1034/13)
[2015] ZASCA 42
(25 March
2015)
Coram
:
Cachalia and Shongwe JJA and Gorven AJA
Heard:
2 March 2015
Delivered:
25 March 2015
Summary:
Criminal Law – Conspiracy and
common purpose to commit robbery of a pay-point. Two vehicles
involved – Plan abandoned
but one vehicle proceeds to rob
another pay-point – Whether occupants of the other vehicle
guilty of common purpose to rob
second pay-point. Confessions –
Courts to be sceptical when suspects in police custody make
confessions to police implicating
themselves in serious crimes.
ORDER
On
appeal from:
Eastern Cape High Court,
Mthatha (Smith J sitting as court of first instance):
The
appeal is upheld and the convictions and sentences imposed on the
appellant are set aside.
JUDGMENT
Cachalia
JA (Shongwe JA and Gorven AJA
concurring)
[1]
The appellant was one of four accused indicted on ten counts in the
Eastern Cape Division – Mthatha, following an armed
robbery of
a social-grant pay-point in the Mpozolo district of Willowvale on 4
June 2009. The robbers made off with an amount of
R509 970. A
police officer and four robbers lost their lives in an incident later
that day.
[2]
The appellant, who was accused three in the trial that followed, and
his co-accused Vuyisa Velelo (accused 1), Elias Dotwana
(accused 2)
and Ntuthuzelo Ndabeni (accused 4) were charged with conspiracy to
commit robbery in contravention of s 29 of Act 9
of 1983 of the
Transkei Penal Code, robbery, five counts of murder and the unlawful
possession of automatic firearms, other firearms
and ammunition in
contravention of the
Firearms Control Act of 2000
. They were
convicted on all of the counts, and sentenced to ten years’
imprisonment each for the conspiracy, twelve, eight
and five years’
imprisonment for each of the firearm related offences and to life
imprisonment for the murders. The appellant,
Dotwana and Ndabeni
received 15 years’ imprisonment for the robbery, and Velelo
twenty for his part in it. They are all serving
effective sentences
of life imprisonment. Only the appellant’s appeal is before us,
with leave of this court.
[3]
The appellant and his co-accused were convicted mainly on the
strength of confessions they made to police-officers following
their
arrest, and also on the testimony of an accomplice. The appellant’s
case is that he was wrongly convicted because the
police improperly
coerced and induced him to confess to these crimes, the accomplice’s
evidence against him was unsatisfactory,
and his alibi defence was
incorrectly rejected.
[4]
The State sought to prove that the offences were committed in the
following circumstances. In June 2009, the appellant and nine
others
agreed and conspired to rob a company contracted by the government to
pay pension and social grants. Among the ten conspirators
were three
of the appellant’s co-accused, four others who died in an
incident after the robbery, a ninth person who became
a witness for
the State, and a tenth who went missing after the event. The company
sets up various pay-points to make these payments
to beneficiaries.
The pay points that are the subject of this appeal were set up in the
Mpozolo Adminstrative Area situated in
the Willowvale district of the
Eastern Cape.
[5]
On 2 June 2009 two of the conspirators travelled to Willowvale to
reconnoitre the pay-point they were planning to rob. The ten
conspirators, including the appellant, then met at the home of
Valephatwa Jam-Jam (one of the deceased suspects) in Ngolo village,
Mthatha, the following evening, where they put the final touches to
the plan.
[6]
On 4 June, at about 03h00, they departed from Jam-Jam’s home in
two vehicles. The first vehicle, a Toyota van, had been
hijacked the
previous day to be used in the robbery. It was driven by Thembela
Mayisela, who became a state witness and was granted
immunity from
prosecution. There were seven passengers in this vehicle some of whom
were armed. The second vehicle, a GWM ‘bakkie’,
was
driven by the appellant. Dotwana (accused 2) was a passenger. The GWM
was to be used for their get-away after the robbery.
The conspirators
were armed with three automatic rifles (an R1 and two R5’s) an
Uzzi, a 9mm pistol and a .38 revolver.
[7]
The two vehicles made their way to Willowvale, which is apparently
some distance from Ngolo, and arrived at the pay-point later
that
morning. The passengers in the Toyota alighted and opened fire. The
security guards, who were guarding the pay-point, returned
fire, as
did a police officer who was also in the vicinity. But they were
overpowered and ran away. The robbers got hold of the
money and drove
off. Where the GWM driven by the appellant was during the robbery was
not mentioned in the summary of substantial
facts.
[8]
Mayisela and his co-robbers drove for some distance when they
realised that there was a police helicopter nearby. They stopped,
abandoned the vehicle and fled into the forest, separating into two
groups that went in different directions.
[9]
The police discovered the abandoned vehicle and entered the forest to
search for the suspects. The robbers opened fire on the
police
killing Officer Mziwamandla Alfred Sibeko. The police returned fire
killing one entire group comprising four of the robbers:
Mthobeli
Ndamase, Thoko Sigwinta, Elliot Puwana and Valephatwa Jam-Jam. The
State invoked the common purpose doctrine in seeking
to hold the
appellant and his co-accused criminally responsible for the deaths of
the police officer and the four robbers.
[10]
The police found a R1 rifle, an LM5 and a 9mm pistol and cartridge
cases in the forest. Only R71 120 of the amount stolen
was
recovered. A R5 rifle was also recovered from Dotwana the following
day.
[11]
On the evening of 4 June 2009, the second group of four robbers,
including Mayisela, emerged from where they had been hiding
in the
forest. They phoned the appellant who, accompanied by Dotwana,
arrived to collect them in his GWM. He drove them home to
Mthatha.
[12]
As I have said earlier the evidence against the appellant was a
confession he made to the police and the evidence of Mayisela.
The
appellant confessed, following his arrest, to having been present on
the evening of 3 June 2009, with the other conspirators
before he
drove to Willowvale to assist in the robbery. He had been promised an
amount of R10 000. And further, that he had
collected some of
the people ‘very late’. He surmised that something had
gone wrong and that the others may be dead.
He then drove the others
back to Mthatha. For reasons I give later in this judgment, this
evidence was inadmissible.
[13]
In his testimony, Mayisela confirmed that the appellant had been
present at Jam-Jam’s home on the evening of 3 June,
that he had
driven the GWM vehicle behind the vehicle in which the others had
been travelling to Willowvale, when they departed
at 03h00 on the
morning of 4 June 2009, and that he had arrived with Dotwana to
collect the survivors later that evening.
[14]
But of crucial importance to the murder and robbery convictions
against the appellant was Mayisela’s evidence on what
happened
soon after daybreak as they arrived at the pay-point they had planned
to rob in Mpozolo. The pay-point was a short distance
from the gravel
road on which they were travelling. The men in Mayisela’s
vehicle noticed a police vehicle driving towards
them. The GWM of the
appellant had stopped nearby. Those in Mayisela’s vehicle
decided that the presence of the police made
it risky to go ahead
with the robbery. They, therefore, abandoned the plan to rob that
pay-point and decided to drive home on the
same road. Mayisela only
saw the appellant’s GWM again, at about 20h00 that evening,
twelve hours later.
[15]
Mayisela testified that the Toyota vehicle he was driving then headed
home. En route they came across another pay-point, fortuitously
it
seems. They decided to rob this pay-point on the spur of the moment.
They noticed a police vehicle parked amongst the other
cars near the
pay-point, but this did not deter them. Mayisela testified that he
drove up to the vehicles and stopped. His passengers
alighted and
began firing, presumably in the direction of the pay-point. A police
officer or several officers returned the fire.
(It was not clarified
whether the other ‘police’ may have been security-guards
employed to protect the pay-point).
Mayisela was struck twice, on the
left arm and on his right leg, whilst still in the vehicle. The
‘police’ then fled
from the scene. The robbers packed the
money into a blue sports bag, got back into their vehicle and fled
the scene, with Mayisela
again at the wheel.
[16]
They drove for some time and covered some distance in this rural
area. For how long they drove and what distance they covered
was
regrettably never clarified in the evidence. Be that as it may,
Mayisela noticed that his vehicle was running out of fuel,
and a
helicopter was hovering in the vicinity. So, they decided to abandon
the vehicle, split into two groups, and make their way
into the
forest nearby. Mayisela was accompanied by Velelo, Ndabeni (accused 1
and 4) and Bodi, who disappeared after these events.
The other group
of four made off in another direction with the bag of money. I shall
return to Mayisela’s evidence later.
[17]
Later that day – again, we do not know the time – the
police arrived and went in pursuit of the group with the
loot. The
evidence of the police officers about what transpired thereafter is
far from clear. First, the dog unit consisting of
five police
officers entered the forest and after an exchange of fire they
retreated and called for reinforcements from the National
Intervention Unit (NIU).
[18]
Captain Herston Thengiza Gwadiso from the NIU testified that he
entered the forest with his team and called out to the suspects
to
surrender. He heard a sound of gunfire from inside the forest. The
police responded by shooting, which was followed by an exchange
of
fire. The NIU penetrated further into the forest and came across two
people who had been shot, but he did not check whether
or not they
were alive. There was a bag of money and a pistol next to them. They
walked for another 500 meters and heard more shots
being fired.
Warrant-Officer Sibeko was struck by a bullet. He was carried out of
the forest by Captain Gwadiso’s group,
and airlifted by
helicopter, but succumbed to his injuries.
[19]
A second group of NIU members arrived and, after helping the first
group airlift the injured Sibeko, they also entered the
forest. This
group was led by Captain Pumlani Lumbe. He also announced his arrival
by calling on the suspects to surrender. More
gunfire was heard and
the NIU returned the fire. They proceeded further into the forest and
noticed two more persons lying on the
ground with R1 and
a
R5 rifles next to them. They appeared to be alive. Lumbe kicked away
the firearms as a safety precaution and continued to look
for other
suspects, but found none.
[20]
I pause to mention that it is troubling that there was no evidence at
all on whether the four suspects were alive for any period
after they
had been shot or whether there was any attempt to obtain medical
assistance for them. It appears that they died at the
scene.
[21]
I return to Mayisela’s testimony. His group of four hid in the
forest, apparently far removed from the events that had
occurred in
the other part of the forest. Later that evening, they emerged from
where they were hiding. They walked until they
reached a bridge from
where Velelo phoned the appellant for assistance. The appellant, in
his GWM, arrived with Dotwana at about
20h00. They left to search for
their missing colleagues but found no evidence of their whereabouts.
The appellant then drove them
back to Mthatha.
[22]
Assuming, only for present purposes, that Mayisela’s evidence
was correctly accepted, the question is whether the court
was also
correct in finding the appellant guilty on the robbery and the five
murder counts. I shall deal with the remaining counts,
namely the
firearms and ammunition charges, and the conspiracy charge
separately.
[23]
The high court rejected a submission by counsel for the defence that
the robbery of the second pay-point and the subsequent
events on the
day were not part of the common purpose, and that therefore the
appellant could not be held responsible for the robbery
or the five
counts of murder. The learned judge made the following finding:
‘
I
agree with Mr Siyo [the prosecutor] that they had planned to rob a
pension pay-point on the day in question in the vicinity of
Willowvale. They had all formed common purpose in this regard and
this is exactly what they had achieved. The evidence has in my
view
clearly established that all of the accused were involved in the
planning and execution of the robbery to a greater or lesser
extent.
They all had clearly defined roles and they persisted to act in
accordance with this common purpose until after the shootout
in the
forest where four of their co-perpetrators and a police officer were
killed.’
[24]
It appears from the learned judge’s reasoning that the
appellant was convicted on these counts because he was found to
be
party to the prior agreement to rob a pay-point in the vicinity of
Willowvale and that he actively associated with the plan,
presumably
by driving the GWM to the first pay-point, and collecting the four
survivors afterwards.
[25]
In regard to the robbery conviction the judge seems to have
misconstrued the evidence. The judgment records that Mayisela
testified that after they had decided that it was too risky to rob
the first pay-point they decided to drive towards another pay-point.
But as I have said earlier, Mayisela’s evidence was that they
had decided to drive home – not to another pay-point
–
and fortuitously came across the second pay-point, which they decided
to rob on the spur of the moment. It is common ground
that the
appellant was not party to the decision to rob the second pay-point,
and was not present when the robbery took place.
[26]
Before us Mr Siyo, who appeared for the State submitted, as he had in
the high court, that even though the first pay-point
was the agreed
target of the robbery, the second pay-point was located in the same
area and was robbed at about the same time.
The second robbery, he
submitted, therefore fell within the ambit of the common purpose –
a submission, as previously mentioned,
that found favour in the high
court.
[27]
But I think the submission is devoid of merit. First, the State did
not establish that the second pay-point was anywhere near
the first
pay-point. Second, even if one accepts that the two pay-points were
in the same vicinity, the group’s mandate was
to rob the first
pay-point, and not any other pay-point: they explicitly abandoned the
plan to rob the first pay-point; and finally,
the appellant was not
aware of and played no role in the decision to rob the second
pay-point or in any way actively associate
with the group in carrying
out the robbery, much less the events later in the forest when the
police officer and the four robbery
suspects lost their lives. He
could therefore not have foreseen, and by implication did not
foresee, that a second pay-point would
be robbed or that anyone would
lose their lives in the course of that robbery. The convictions on
the robbery and murder counts
therefore cannot stand.
[28]
I should add that it is questionable whether the events in the
forest, which gave rise to the murder charges can be said to
have
occurred in the course of the robbery, but this is not an issue I
need decide in this appeal.
[29]
Regarding the convictions on the arms and ammunition charges the
court stated perfunctorily that the accused, including the
appellant,
‘possessed these jointly as a group and it therefore matters
not which of them had carried the firearms on the
day of the
robbery’. It is not clear whether, in so finding, the learned
judge had the principles of joint possession or
the doctrine of
common purpose in mind.
[30]
It was not alleged in the indictment that they had a common purpose
to possess the arms and ammunition. The common purpose
or conspiracy
pertained to the robbery. The fact that parties planning a robbery
share a common state of mind that some of them
will carry or use arms
to achieve their objective is not sufficient to make them joint
possessors under the
Firearms Control Act 60 of 2000
. This can only
be established by inference, and it must be the only reasonable
inference. In my view this was not established in
this case.
[1]
[31]
In addition, it is not at all clear from the evidence whether the
arms and ammunition used in the robbery were the same as
those on
which forensic tests were done. There was simply no proper ‘chain
evidence’ to support this finding. So, the
convictions on these
counts cannot stand either.
[32]
In preparing for this appeal I requested the parties to make written
submissions on whether or not the appellant should nevertheless
have
been convicted as an accessory after the fact on either the robbery
count or the five counts of murder on the ground of that
he may
unlawfully, and intentionally, after the completion of the crimes,
have associated himself with the commission of these
crimes by
helping the perpetrators to evade justice. It will be recalled that
he assisted Mayisela’s group to leave the area
where they had
been hiding and drove them back to Mthatha later that evening.
[33]
Section 257
of the
Criminal Procedure Act 51 of 1977
provides that
where the evidence against an accused does not prove the commission
of the offence of which he has been charged but
proves his guilt as
an accessory after that offence he may be found guilty as an
accessory after that offence.
[2]
For present purposes the offence may be treated as a competent
verdict for robbery and murder.
[34]
In
S
v Morgan & others
[3]
Corbett CJ explained that intention or dolus is an essential element
of the offence of being an accessory after the fact. The prosecution
must therefore show that the alleged accessory knew that the person
whom he had helped had committed a crime. And for this purpose
dolus
eventualis would be sufficient to render the accused liable. However,
it must be shown that the accused was aware of the
facts indicating
the possibility that a crime had been committed by the person to whom
he had rendered assistance, and nonetheless
proceeded, reckless of
what the position was and with the required object.
[4]
[35]
We have now established that the appellant was not present either
during the robbery or the events following the robbery after
Mayisela’s group had abandoned their vehicle. It is also
apparent from Mayisela’s testimony that when the appellant
arrived to collect them later that evening none of them had any idea
that their colleagues and a police officer had been killed.
So –
assuming that the high court was correct in its finding that those
who participated in the robbery were also guilty
of murder, which as
I have said earlier, is questionable – the appellant would not
have had knowledge of the relevant facts
when he arrived in his
vehicle with Dotwana to assist them later that evening.
[36]
It seems likely though that at least one of those in Mayisela’s
group whom the appellant had come to help would have
informed him of
the robbery. But this was not explored during Mayisela’s
evidence. And there was no obvious indication that
they had been
involved in a robbery. In these circumstances I cannot find that the
only reasonable inference is that the appellant
had knowledge of the
robbery when he assisted Mayisela’s group to make their way
back to Mthatha. It follows that the appellant
cannot be found guilty
as an accessory after the fact of murder or robbery either.
[37]
What remains is the conspiracy charge. The high court found all the
accused, including the appellant, guilty of both conspiracy
to commit
robbery and robbery on the basis of a common purpose. In this regard
it erred because once a person conspires to commit
a crime and then
commits the crime he cannot be guilty of both since the two crimes
merge.
[5]
By convicting the
accused, including the appellant, of both crimes the high court
incorrectly duplicated the convictions. I have
held that the robbery
conviction cannot stand. So it is necessary to consider whether the
evidence established a conspiracy to
commit robbery.
[38]
There are two critical pieces of evidence pointing to the appellant’s
involvement in the conspiracy: the appellant’s
confession and
Mayisela’s testimony that the appellant was present at
Jam-Jam’s house with the other conspirators on
the evening
before the robbery. As I have indicated earlier the appellant takes
issue with both. The confession, he says was obtained
improperly and
Mayisela’s evidence on this aspect cannot be accepted in the
face of his alibi that he was working as an ambulance
driver on
night-shift that evening.
[39]
I turn to consider whether his confession was properly held to be
admissible against him. In this regard it is trite that for
a
confession to be admissible, the prosecution bears the onus to prove
beyond a reasonable doubt that the accused made it freely
and
voluntarily, in his sound and sober senses, and in the absence of
undue influence. In addition, even if a confession meets
these
requirements, it may still be excluded under s 35(5) of the
Constitution if its reception would render the trial unfair or
otherwise be detrimental to the administration of justice. This would
occur, for example, if an accused is not informed of his
constitutional right to remain silent and of the consequences of not
remaining silent, and he then makes a confession that the
prosecution
seeks to use in evidence against him.
[6]
[40]
From the evidence adduced to determine the admissibility of the
confessions it emerged that the appellant was arrested by members
of
the NIU at his home in Tsolo two days after the robbery at about
01h00 on 6 June 2009, which was a Saturday. Velelo and
Dotwana
were also arrested in the early hours of that morning. The three
suspects were then driven to Mthatha where they were taken
into the
Embassy building used by the police. The appellant was interrogated
briefly there and thereafter booked in at the Central
Police Station
with his co-suspects.
[41]
Later that morning Mayisela was also arrested in Tsolo. It is of some
significance that in his testimony he conceded under
cross-examination that the police had assaulted him at the time of
his arrest whilst they were interrogating him about the robbery.
Ndabeni (accused 4) was arrested more than a month later, on 28 July
2009. All of the accused, including Mayisela, made confessions.
And
all of them, except Mayisela who testified for the State, contested
their admissibility on various grounds, including the ground
that
they had been severely assaulted. Dotwana contested the admissibility
of his confession only on the ground that the police
led him to
believe that he would be released on bail if he put his thumbprint on
a document (the confession).
[42]
The appellant’s testimony on the admissibility of his
confession was briefly this: After being booked in at the Central
Police Station he was booked out some time later on the afternoon of
6 June and driven to Butterworth by police officers. At the
police
station he was questioned by Warrant-Officer Duncan Thembinkosi
Bambalele, who did not advise him of his constitutional
rights. He
explained that a document that he had signed purporting to
acknowledge that his rights had been explained to him, he
was told,
was for the return of his belt and shoelaces that were taken from him
before he was detained in the cells. Bambalele
refused to allow him
to contact his lawyer. He was then taken back to his cell at
Butterworth.
[43]
Later that evening he was brought back to an office at the Sanlam
Building where Bambalele asked him to sign a document. He
signed it,
he says, without reading it. This was the first written statement he
made. The document was part of a pro-forma ‘Statement
Regarding
Interview with Suspect’ which the police are required to use
when questioning suspects. It appears to be dated
7 June 2009, but
the date 6 June 2009 also appears on the document twice. The document
contains the usual information regarding
the suspect being informed
of the allegations against him, his constitutional rights and whether
he is willing to make a statement.
His recorded answers indicate that
he understood what was being put before him and nevertheless wished
to make a statement. It
is recorded that the interview commenced at
17h40 and was completed a mere 15 minutes later, at 17h55. He was
then taken back to
his cell.
[44]
Even later that evening, he testified that he was brought back to the
Sanlam Building, and interrogated again. During the course
of this
interrogation, he says, he was hooded repeatedly with a plastic bag
containing a white powdery substance. In the process
he urinated in
his pants. In the early hours of the morning they returned him to his
cell. None of the police officers who were
involved in the
investigation were present on this occasion. He believes that they
were from the NIU because of the red badges
they had over their right
breasts. He remained in his cell all of Sunday, 7 June 2009.
[45]
On the morning of 8 June 2009 – Monday – Bambalele
collected the appellant from his cell and took him to Captain
Luyanda
Sandile Mahobe’s office at the Sanlam Building. There, he
testified, Mahobe instructed him to sign a document and
affix his
thumbprint thereon. Mahobe told him that it was getting late and that
he had to appear in court soon. He was told that
he would not be
granted bail without affixing his thumbprint to the document. The
appellant says that he believed Mahobe and, because
he wanted to be
released on bail, he complied with the instruction without reading
the document.
[46]
As with the first document he signed, this one was also a pro forma
form indicating that the ‘deponent’ had his
constitutional rights explained to him and that he wished to make a
statement. Of some significance is his response to the question
why
he wished to make a statement as he had already made one to
Bambalele. His recorded answer was that he wanted the statement
to be
written down. This response makes no sense as his statement to
Bambalele earlier had also been written down. This document
was also
attached to the two-page written confession that the court held
admissible as evidence. The documents record that the
appellant was
brought to Mahobe’s office at 08h10 and left at 09h02.
[47]
The evidence of the police, briefly, was that the appellant was
booked out for questioning in Butterworth on two occasions,
ie, on
Sunday morning, 7 June 2009 and again on Monday morning, 8 June 2009
before he appeared in court. He was fully informed
of all of his
constitutional rights and he made a statement to Bambalele on Sunday
and another to Mahobe on Monday morning, voluntarily
and without
being unduly influenced to do so.
[48]
It is not necessary to deal with the evidence of the police in any
detail. And I accept that the learned judge was correct
in finding
that much of the appellant’s evidence was untrustworthy. But, I
think he too readily accepted all the evidence
of the police without
properly analysing it, and did not properly consider those aspects of
the appellant’s evidence that
were reasonably possibly true
despite his mendacity. In fact the judge misdirected himself by
approaching the evidence of the appellant
on the basis that he (and
his co-accused) needed to ‘put up credible versions’ to
refute the ‘overwhelmingly
strong and convincing evidence’
of the police regarding the admissibility of the confessions. All
that was required of the
appellant was to present a version that was
reasonably possibly true, even if it contained demonstrable
falsehoods.
[49]
When confronted with confessions made by suspects to police officers
whilst in custody – even when those officers are
said to be
performing their duties independently of the investigating team –
courts must be especially vigilant. For such
people are subject to
the authority of the police, are vulnerable to the abuse of such
authority and are often not able to exercise
their constitutional
rights before implicating themselves in crimes. Experience of courts
with police investigations of serious
crimes has shown that police
officers are sometimes known to succumb to the temptation to extract
confessions from suspects through
physical violence or threats of
violence rather than engage in the painstaking task of thoroughly
investigating a case. This is
why the law provides safeguards against
compelling an accused to make admissions and confessions that can be
used against him in
a trial.
[50]
In addition, courts must be sceptical when the State seeks to use a
confession against an accused where he repudiates it at
the first
opportunity he is given. Because ordinary human experience shows that
it is counter-intuitive for a person facing serious
charges to
voluntarily be conscripted against himself. Often it is said that the
accused confessed because he was overcome with
remorse and penitence;
‘a desire which vanishes as soon as he appears in a court of
justice’.
[7]
That is
sometimes true, but is usually not.
[51]
In this case not even that explanation was advanced for why the
appellant confessed. It was simply said that the appellant
was asked
during his questioning whether he wished to make a statement, and he
agreed. The statement was taken from him and reduced
to writing. And
when he was asked whether and why he wished to make a second
statement, (which the State used against him in the
trial) having
already made one, the answer appearing on the police record of what
was said was that he wanted it to be ‘written
down’. This
nonsensical answer should have caused the court to approach the
matter with heightened scepticism.
[52]
There are several reasons why the appellant’s complaint that
his confession was improperly obtained from him rings true.
First,
three of the accused, testified that they had been severely assaulted
before making confessions. Mayisela, whose evidence
the court
accepted as satisfactory in all material respects, said that he too
had been assaulted at the time of his arrest. The
fact that four of
the five suspects who were arrested all claimed to have been
assaulted indicates that the appellant’s testimony
on this
aspect may be true.
[53]
Secondly, the three accused, who contested their confessions in the
‘trial-within-a-trial’ all said that they were
not warned
of their constitutional rights. The police version was that the
appellant’s rights were explained to him on four
separate
occasions: first, when he was booked out of his cells and made to
sign a document explaining his rights; second when he
was first
interrogated by Inspector Nombe, and Warrant-Officers Maneli and
Bambalele, third when Bambalele took the appellant to
his office to
reduce what he had said earlier to writing, and finally on the
morning when Mahobe took his statement before he appeared
in court.
[54]
The appellant’s testimony, which is not unlikely, was that on
the first occasion when he was booked out of the cells,
the document
he signed purporting to explain his rights, he was told, and he
believed, he was signing for the return of his belt
and shoe laces.
[55]
On the second occasion, before the three officers questioned him, it
was Nombe’s evidence that when he asked the appellant
whether
he wanted an attorney before they commenced interrogating him, he
responded by saying that he would only require one when
he appeared
in court, which is also what Nombe testified that Velelo had said.
And Bambalele’s evidence was that Ndabeni
also responded in
this way. It seems odd, and unlikely, that three suspects who are
being told that they are entitled to the services
of a lawyer would
all respond in exactly the same manner. The evidence of the police in
this respect seems contrived.
[56]
But Bambalele’s evidence as to what happened after the
appellant had apparently freely admitted his involvement in these
offences is even more unlikely: he testified that immediately after
the appellant had confessed orally he took the appellant to
his
office to write down his statement. And before the appellant made the
statement, he produced his appointment certificate to
identify
himself as a police officer, and again explained his rights to him.
But, on the police version the appellant had already
been warned of
his rights and Bambalele was present during the questioning. So what
would the purpose of this testimony be unless
the Bambelele was
trying to embellish his evidence?
[57]
The third reason why I think the high court was wrong to admit the
confession is because of what it was recorded the appellant
had said
in Mahobe’s office on the morning of 8 June 2009. I find it
improbable that the appellant would have told Mahobe
that he wished
to make this statement so that it could be written down, when he
previously had a statement written down by Bambelele.
And there is
nothing improbable in his testimony that Mahobe said he was in a
hurry because the appellant had to appear in court
and that he would
not get bail if he did not affix his thumbprint to the document. It
bears mentioning that Dotwana challenged
the admissibility of his
statement on the same basis.
[58]
Because the evidence of the appellant was unsatisfactory in several
respects, I am unable to find – and I do not find
as a fact –
that he was assaulted in the manner he claims to have been, that his
rights were not explained to him before
he made his confession or
that he was unduly influenced to make the written confession before
he went to court. But I do find that
his version on each of these
aspects is reasonably possibly true. Accordingly, I hold that the
high court erred in admitting the
statement against the appellant.
[59]
This then disposes of the first piece of evidence implicating the
appellant in the conspiracy. The second piece of evidence,
as
mentioned earlier, was given by Mayisela who testified that the
appellant was present at Jam-Jam’s house on the evening
before
the robbery, and when they departed at 03h00 the following morning.
[60]
The appellant denied this. He testified that he was an ambulance
driver at St Lucy’s Hospital in Tsolo, where he
was on
duty on the night of 3 June 2009. When he is on night shift, as he
was on that night, he commences work at 19h00 and finishes
at 05h00
the following morning, but on that morning he finished off at 07h00.
He also testified that an Emergency Medical Services
register, which
is readily available, would show that he was on duty that night. It
is common cause that he was employed at the
hospital.
[61]
The high court rejected his alibi because, in the learned judge’s
view, the appellant could not explain why he had not
made this
evidence available to the court and inform the police of its
existence. But again, the judge incorrectly cast the onus
on the
appellant to disprove his alibi, whereas the onus remained on the
State throughout, not on the appellant.
[8]
[62]
The appellant raised a concrete verifiable alibi, the details of
which he disclosed during the State case. The prosecution
failed to
adduce any evidence to disprove the alibi. It could and should have
applied for an adjournment to investigate the alibi
and in particular
the existence and entries of the Emergency Medical Services register
before concluding its cross-examination.
And if necessary it could
have applied to reopen the State case once the appellant had
furnished more detail of the alibi during
his cross-examination. Its
failure to do so meant that the appellant’s alibi could not
have been summarily rejected, and
the court erred in doing so. So,
the conspiracy conviction against the appellant also falls to be set
aside.
[63]
It follows that the appeal succeeds and the convictions against the
appellant on all counts must be set aside. I regret this
result
because it is not at all clear that the appellant is innocent on all
the charges against him. What is even more regrettable
is that the
case against him and his co-accused was poorly investigated and
prosecuted. There was very little evidence of a proper
investigation;
instead the State relied mainly on confessions extracted from the
accused in dubious circumstances, and the evidence
of an accomplice,
who himself had been assaulted by the police.
[64]
The appellant and some of these conspirators knew each other,
according to Mayisela, and communicated with each other by cell
phone. Those cell phones were taken by the police when they were
arrested. But no explanation was given as to why the records of
the
cell phone communication between them and the other alleged
conspirators were not produced in evidence. This would have been
the
simplest and clearest way to negate the protestations of innocence of
the appellant and his co-accused.
[65]
Another troubling aspect of the matter was the evidence that only
R71 120 of the R509 970 that was stolen was recovered
in
the bag. This was after the police had gone into the forest in
pursuit of the robbers when five people lost their lives. Mr Siyo,
who appeared before us for the State, was not able to tell us what
happened to the money.
[66]
Even more troubling is that there was evidence that some of the
deceased may have been alive after they had been shot, despite
which
there appears to have been no attempt by the police to secure any
medical assistance for them as they had done in the case
of
Warrant-Officer Sibeko, who died after he was airlifted from the
scene. The suspects all died at the scene.
[67]
I shall therefore ask the registrar of this court to make this
judgment available to the Minister of Police and the Independent
Police Investigative Directorate for further investigation.
[68]
I make the following order:
The
appeal is upheld and the convictions and sentences imposed on the
appellant are set aside.
_________________
A
CACHALIA
JUDGE
OF APPEAL
APPEARANCES
For
Appellant: D J Taljaard
Instructed
by:
Mdledle-Malefane
& Associates, Mthatha
Messrs
Webbers Attorneys, Bloemfontein
For
Respondent: M W Siyo
Instructed
by:
Director
of Public Prosecutions, Mthatha
Director
of Public Prosecutions, Bloemfontein
[1]
S
v Mbuli
2003
(1) SACR 97
paras 71-72.
[2]
‘
Accessory
after the fact
If
the evidence in criminal proceedings does not prove the commission
of the offence charged but proves that the accused is guilty
as an
accessory after that offence or any other offence of which he may be
convicted on the offence charged, the accused may
be found guilty as
an accessory after that offence or, as the case may be, such other
offence, and shall, in the absence of any
punishment expressly
provided by law, be liable to punishment at the discretion of the
court: Provided that such punishment shall
not exceed the punishment
which may be imposed in respect of the offence with reference to
which the accused is convicted as
an accessory.’
[3]
S
v Morgan & others
1993
(2) SACR 134 (A).
[4]
Ibid
174E-G.
[5]
C
R Snyman
Criminal
Law
5
ed (2008) p 295.
[6]
Sections
35(1)
(a),
(b)
and
(c)
of the Constitution.
[7]
Rex
v Nchabeleng
1941
(A) 502 at 507 citing the remarks of Cave J in
Queen
v Thompson
1893
(2) QBD 12
at 18.
[8]
R
v Hlongwane
1959
(3) SA 337
(A) at 340F-340B.