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[2015] ZASCA 60
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Machaba and Another v S (20401/2014) [2015] ZASCA 60; [2015] 2 All SA 552 (SCA) ; 2016 (1) SACR 1 (SCA) (8 April 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20401/2014
Reportable
In
the matter between:
BUSHI
MIKE
MACHABA
...............................................................................
FIRST
APPELLANT
ELVIS
BOY
MBUYANE
..............................................................................
SECOND
APPELLANT
and
THE
STATE
.................................................................................................................
RESPONDENT
Neutral
citation:
Machaba & another v
The State
(20401/2014)
[2015] ZASCA 60
(8 April 2015)
Coram:
Mpati P, Majiedt JA and Schoeman AJA.
Heard:
16 March 2015
Delivered:
8 April 2015
Summary:
Admissibility of hearsay evidence by
co-accused contained in extra – curial statement – record
incomplete – import
of presiding judge or registrar
administering the oath in terms of
s 162
of the
Criminal Procedure
Act 51 of 1977
.
ORDER
On
appeal from:
The North Gauteng High
Court, Pretoria (Louw AJ sitting as court of first instance).
1. The appeal
against the convictions of the appellants is dismissed.
2. The appeal
against the sentences imposed on the appellants is upheld and the
sentences are set aside and substituted with the
following.
‘
Count
1: 20 years’ imprisonment; and
Count
2: 10 years’ imprisonment.’
3. It is ordered
that the sentences imposed in respect of count 2 will run
concurrently with the sentences imposed in count
1.
4.
The sentences are antedated to 15 December 2006.
JUDGMENT
Schoeman
AJA (Mpati P and Majiedt JA CONCURRING)
[1]
The two appellants were accused one and three respectively in the
high court when they, and a co-accused, were convicted of
murder and
robbery with aggravating circumstances and sentenced on 15 December
2006. The erstwhile second accused has passed away
in the interim.
All three accused were sentenced to life imprisonment on the murder
charge and 15 years’ imprisonment
in respect of the robbery
charge. With leave of the court below the appellants appeal to this
court against their convictions and
the sentences imposed.
The
record
[2]
It is common cause that the record is not complete as the recording
of the last week of the proceedings have not been fully
transcribed.
The recording can now not be traced. Attempts to reconstruct those
portions of the record were unsuccessful. The record
does not deal
with the evidence relating to a trial-within-a-trial in respect of
the second accused (who is not an appellant),
the evidence relating
to the sentencing proceedings and part of the judgment on the merits.
[3]
It was argued on behalf of the appellants that due to the incomplete
record, the appeal in respect of the conviction cannot
properly be
adjudicated and therefore the convictions and sentences must be set
aside.
[4]
In
S
v Chabedi
[1]
Brand
JA said the following regarding the record on appeal:
‘
[5]
On appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole
basis of
the rehearing by the Court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as
a rule, lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper
consideration of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed
out in previous cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible (see,
eg,
S
v Collier
1976 (2) SA 378
(C) at 379A - D and
S
v S
1995
(2) SACR 420
(T)
at
423
b
- f
).
[6]
The question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be
answered in
the abstract. It depends,
inter alia,
on the nature of the defects in the particular record and on the
nature of the issues to be decided on appeal.’
[5]
As will become clearer later in this judgment, I am of the view that
the adjudication of this appeal on the record as it stands
will not
prejudice either of the appellants. The appellants’ convictions
and sentences can, therefore, not be set aside merely
on the basis of
the record being incomplete.
The
administration of the oath in terms of
s 162
of the
Criminal
Procedure Act 51 of 1977
[6]
The issue pertaining to the proper administration of the oath was not
raised by counsel for the appellants during the trial
or during the
application for leave to appeal, nor was it mentioned in the heads of
argument. At the eleventh hour supplementary
heads of argument were
filed on the morning of the appeal, raising alleged non-compliance
with s 162 of the Criminal Procedure
Act 51 of 1977 (the CPA).
[7]
Section 162 of the CPA provides:
‘
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.”
(2)
If any person to whom the oath is administered wishes to take
the oath with uplifted hand, he shall be permitted to do
so.’
[8]
In light of an unreported decision of the North West Division,
Mahikeng,
Nkoketseng
Elliot Pilane v The State
[2]
it was argued on behalf of the first appellant that the record
does not reflect that the witnesses for the State were duly
sworn in,
in terms of s 162 of the CPA. In
Pilane
all
the witnesses were sworn in by the interpreter and not the presiding
magistrate. The record reflects that the magistrate said:
‘Let
her take the oath’; ‘Please administer the oath’
and ‘Administer the oath please’. The
record thereafter
reflects the following after the witnesses’ names: ‘d.u.o.’,
which probably is an abbreviation
for: ‘declares under oath’.
[9]
It is peremptory in terms of s 162 that all witnesses be sworn in by
either the presiding judge or the registrar in the case
of a superior
court. It was emphasised in
The
State v Matshivha
[3]
para 10 that:
‘
.
. . the reading of s 162(1) makes it clear that, with the exception
of certain categories of witnesses falling under either s
163 or 164,
it is peremptory for all witnesses in criminal trials to be examined
under oath. And the testimony of a witness 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 the status and character of evidence and is inadmissible.’
(footnotes omitted)
[10]
Matshivha
dealt
with the failure of a presiding judge properly to ascertain whether
young witnesses understood the import of the oath. The
judge in that
instance also instructed the interpreter to administer the oath. This
conduct was not addressed on appeal. However,
due to the peremptory
wording of s 162 the requirement that it is the presiding judge, or
the registrar of the court, that must
administer the oath, cannot be
dispensed with.
[11]
Counsel for the first appellant relied on the appearance of the
abbreviation ‘(d.s.s.)’ after the names of witnesses,
followed by the words ‘(through interpreter)’, as a basis
for the argument that the oath was not properly administered.
It is
accepted that ‘d.s.s.’ is an abbreviation for ‘does
solemnly swear’ or ‘duly sworn states’.
There is no
indication that the judge had instructed the interpreter to
administer the oath or that the judge, or registrar of
the court, did
not themselves administer the oath through the interpreter.
Significantly, only the abbreviations ‘d.s.s.’
and
‘v.o.e.’ (which stands for ‘verklaar onder eed’)
appear after the names of those witnesses who testified
in the
English and Afrikaans languages respectively. In the absence of any
clear evidence that the judge left it to the interpreter
to
administer the oath, no deduction can be made that the oath had not
been properly administered. This argument accordingly
fails.
Background
[12]
None of the accused testified in the trial. No valid reason was
raised as to why the uncontested testimony of the State witnesses
should not be accepted, barring the identification of the appellants
by Ms Christa Sonto Ndebele. Therefore, the accepted evidence
of the
events of the evening of the incident and of the subsequent police
investigation was the following.
[13]
On 3 May 2002, at 21h00, Mr Cyprian Mthembu (the deceased) and his
girlfriend, Ms Ndebele, were walking in a street in Soshanguve.
They
were accosted by three men, one of whom was armed with a firearm. One
of these men grabbed Ms Ndebele’s handbag and
another pushed
her, whilst the third man pointed a firearm at her and the deceased.
Ms Ndebele fled from the scene when a shot
was fired into the air and
she heard a further shot as she was running away. When she returned
to the scene she found that the
deceased had a gunshot wound to his
chest and that he had passed away. His cell phone was missing
and a spent cartridge was
found at the scene.
[14]
More than two years later, in May 2004, the investigating officer,
Inspector Cronje, traced and found the cell phone. This
find led to
the arrest of the first appellant and the second accused for the
commission of these crimes. This in turn led
to the arrest of
the second appellant in Pretoria. The second appellant led the
police to his home where his firearm was
seized. The firearm was
ballistically linked to the spent cartridge found at the scene.
[15]
Captain Sithole of the South African Police Service took the first
appellant’s warning statement. The fact that the first
appellant’s constitutional rights were explained to him and
that the statement was freely and voluntarily made was not placed
in
issue, although it was denied that the statement was made at all.
Whether the first appellant made the statement or not,
was a
credibility issue and the fact that he did not testify meant that
there was nothing to counter the evidence of Captain Sithole
that the
statement was freely and voluntarily made. The import of this
statement was that the first appellant placed himself
on the scene of
the incident whilst knowing that a certain ‘Boikie’ was
armed with a 9mm pistol. The statement was
exculpatory in that the
first appellant said that he had attempted to separate the deceased
and ‘Boikie’, who were
involved in an argument, when
‘Boikie’ fired two shots.
[16]
Further evidence was led that during May 2002 the first appellant and
the second accused sold a cell phone to a Ms Lebese.
The evidence
established that this was the cell phone of the deceased that was
taken from the scene where the deceased was shot.
[17]
The appellants and the second accused testified in their application
to be released on bail. The record of the proceedings
in the bail
application was handed in by consent and it was admitted that the
contents of the record were correct.
The record of the bail
proceedings demonstrates that the magistrate warned the appellants in
terms of s 60(11B)
(c)
of the CPA that if they testified their
testimony could be used against them in their trial.
[18]
At the bail proceedings the first appellant placed himself on the
scene when he testified that he had picked up the phone,
while the
second appellant testified that he never shot the deceased. The
latter testified further that during 2002 he lost his
firearm, which
had apparently been taken by his younger.
I
proceed to deal with the State’s case against each of the
appellants.
The
first appellant
[19]
Ms Ndebele testified as to how all three persons at the scene were
involved in the violence perpetrated against her and the
deceased.
Her dock identification of the appellants and the second accused as
the perpetrators and her evidence on the role each
played were
correctly rejected by the trial court,
primarily
because two years earlier she had failed to identify the three
accused at an identity parade.
However, her
evidence that all three young men present took part in the robbery
and that one of them had pointed a firearm at her
and the deceased,
was neither gainsaid nor disputed during cross-examination.
[20]
The first appellant was linked to the commission of the crimes by the
following facts: shortly after the incident, the first
appellant
handed the deceased’s cell phone to a certain Laka to sell and
he was present when the sale took place; he placed
himself on the
scene in his warning statement to Captain Sithole and, in his bail
application, he further admitted that he took
the cell phone from the
scene.
[21]
In the exculpatory portion of the warning statement and in the bail
application the first appellant distanced himself from
the murder and
the armed robbery. However, to determine whether the State had proved
the guilt of the first appellant beyond reasonable
doubt, the whole
mosaic of evidence must be considered. It is clear from the
uncontested evidence of Ms Ndebele that there
were three men who all
partook in the robbery. It is apparent that they acted with a common
purpose as one of the unarmed men pushed
her and the other took her
bag, while the third assailant pointed a firearm at her and the
deceased. When she returned to
the scene the deceased’s
cell phone was gone. The version of the first appellant that he only
picked up the cell phone after
a shot had been fired may well be
factually correct. But insofar as he thereby wished to distance
himself from the robbery and
the murder, the impression he wished to
create that he innocently picked up the cell phone cannot reasonably
possibly be true.
The evidence of Ms Ndebele contradicts this.
The evidence of the subsequent events also contradicts his version,
in that
he was the person who gave the cell phone to Laka to sell. In
my view, the first appellant was correctly convicted of murder and
robbery with aggravating circumstances as defined in s 1 of the CPA.
The
second appellant
[22]
The State’s case against the second appellant is premised
mainly on the fact that he was the owner of the firearm that
killed
the deceased and that he was still in possession of that firearm in
2004 when he was arrested. Furthermore, the court
below found
that the hearsay evidence testified to by Captain Sithole relating to
the admissions made by the first appellant and
contained in his
warning statement, was admissible evidence against the second
appellant. This statement made by the first appellant
to Captain
Sithole was that the second appellant fired the shots at the scene of
the crime. Likewise the hearsay evidence relating
to what the second
accused allegedly had said during the pointing out namely, that they
were all three at the scene of the incident
and that the second
appellant was the shooter, was admitted as evidence against the
second appellant.
[23]
This court has now authoritatively held that the extra-curial
confession or admission of one accused is inadmissible as evidence
against another accused.
[4]
This
has the result that the statements made by the first appellant and
the second accused were inadmissible against the second
appellant and
could not be used as evidence against him.
[24]
The only remaining evidence against the second appellant, therefore,
is the fact that he was the owner of the firearm with
which the
deceased was shot and killed. As stated before, this firearm was in
his possession in 2004.
[25]
During cross-examination of the second appellant in his bail
application he testified that he had not been in possession of
his
firearm during 2002 as he had lost it and that his younger brother
had taken it. He also testified that he did not report
the loss
of the firearm but thereafter testified that he did report it, but
not in 2002. This aspect ended with the second appellant
testifying
that he did not report the loss. He furthermore denied that he was
involved in the shooting of the deceased.
[26]
What is the importance of the evidence of the second appellant during
his bail application and what weight must be given to
it? In
Director
of Public Prosecutions, Transvaal v Viljoen
para
33,
[5]
Streicher JA held:
‘
It
does not follow from the fact that the record of the bail proceedings
forms part of the record of the trial that evidence adduced
during the bail proceedings must be treated as if that evidence had
been adduced and received at the trial. The record of the bail
proceedings remains what it is, namely a record of what transpired
during the bail application.’
[27]
The handing in of the bail application in terms of s 60 (11B)
(c)
[6]
is a shortcut to achieving the same object as provided for in s 235
of the CPA.
[7]
This has the
effect that the record is prima facie proof that any matter recorded
on the record was properly recorded. But, the
‘. . . record
does not, however, constitute prima facie proof of any fact it
contains.’
[8]
[28]
In the bail application the second appellant admitted that he was the
owner of a firearm that was found in his possession.
His defence that
he did not shoot the deceased is before court by way of the bail
application.
[29]
In
R
v Valachia & another
[9]
it was held that when the State proves that an accused made an
admission in a statement, the whole statement must be assessed
including the exculpatory portions. It is the duty of the court to
‘weigh the credibility of such portion and to give such
weight
to it as in its opinion it deserves. . . .’
And
further:
[10]
‘
Naturally,
the fact that the statement is not made under oath, and is not
subject to cross-examination, detracts very much from
the weight to
be given to those portions of the statement favourable to its author
as compared with the weight which would be given
to them if he had
made them under oath, but he is entitled to have them taken into
consideration, to be accepted or rejected according
to the Court’s
view of their cogency.’
[30]
Can the
Valachia
principle
be applied to the record of bail proceedings? In
S
v Cloete
[11]
this court asked whether the principle could be applied to a plea
explanation that was made in terms of s 115 of the CPA. EM
Grosskopf JA held at 428A-G that:
‘
.
. .it is clear that the evidential value of informal admissions in s
115 statements derives from the ordinary common law of evidence.
That
being so, there would appear to be no reason of principle why the
rule enunciated in
R v Valachia (supra)
should not be applicable also to such
statements. . . .And I can think of no other reason why a court
should be entitled to have
regard to the incriminating parts of such
a statement while ignoring the exculpatory ones.
There
is, of course one practical difference between an extra-curial
statement and an explanation of plea. It is in general the
prerogative of the State to decide whether or not to lead evidence of
an extra-curial statement by the accused. If, on balance,
the
statement may weaken the State case, the State may decide not to
introduce it into evidence. An explanation of plea is different.
There it is the accused who decides what to say, and whatever he says
is recorded. In this way he may more readily place self-serving
exculpatory material before court. This objection to the according of
evidential value to a statement pursuant to s 115 was considered
in
S
v Malebo
[
en
Andere
1979 (2) SA 636(B)]
(
supra
at 642H-643A)
and
regarded as invalid. I agree with this conclusion but not entirely
with Hiemstra CJ’s reasons. It seems to me that the
true answer
to this objection is that the Legislature has, in s 115, provided a
procedure whereby material can be placed before
the court. It is true
that an accused may try to abuse it, but the court should ensure that
such an attempt does not succeed by
refusing to attach any value to
statements which are purely self-serving, and, generally, by
determining what weight to accord
to the statement as a whole and to
its separate parts.’
[31]
Section 60(11B)
(c)
is
in the same vein. It has been introduced as part of the record of the
trial, subject to the qualification that it was essential
that the
accused had to be warned of the consequences of testifying in the
bail application, prior to its acceptance as part of
the record. As
with s 115, as stated in
Cloete,
‘the
Legislature has provided a procedure whereby material can be placed
before court.’ I am of the view that the
Valachia
principle is applicable in this context
as well.
[32]
By way of the bail proceedings the second appellant had placed the
defence he relied on before court. The issue was what weight
should
have been accorded to it. It must be kept in mind that the
evidence presented in the bail application is centred on
the
applicant being granted bail and not on the merits of the matter. In
the present matter there was perfunctory cross-examination
on the
merits during the bail application. This is understandable because
the aim of the prosecutor was not to secure a conviction.
Thus the
testimony of the second appellant in the bail application cannot be
equated to testimony given during a trial, which would
in all
probability have attracted more rigorous cross-examination, to
determine whether his version was reasonably possibly true
in light
of all the evidence presented.
[33]
In
S
v Boesak
[12]
the
following was said.
‘
The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision
to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent in
the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation
to prove the
guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence.
What
is stated above is consistent with the remarks of Madala J, writing
for the Court, in
Osman
and Another v Attorney-General, Transvaal
,
when he said the following:
“
Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a
prima
facie
case, an accused who fails to produce evidence to rebut that case is
at risk. The failure to testify does not relieve the prosecution
of
its duty to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal, the prosecution's
case may be sufficient to prove the elements of the offence. The fact
that an accused has to make such an election is not a breach
of the
right to silence. If the right to silence were to be so
interpreted, it would destroy the fundamental nature of
our
adversarial system of criminal justice.”'
(footnotes
omitted)
[34]
In my view, there was a prima facie case against the second
appellant. He did not testify during the trial to explain that
he had
not been in possession of the firearm at the time of the commission
of the offences and, more importantly, when in 2002
did he lose it.
Ms Ndebele’s evidence established that three people accosted
her. The evidence has shown that two of the
three were the first
appellant and the erstwhile second accused, while the third person
had a firearm in his possession. The licensed
owner of the weapon
that killed the deceased is the second appellant who, according to
his own testimony was in possession of it
in 2004. In evaluating the
weight that must be accorded to the defence of the second appellant
as contained in the bail application,
the following factors are
important. There is the objective evidence that the second
appellant’s firearm fired the fatal
shots that killed the
deceased. The firearm was in his possession two years later when the
investigating officer’s investigation
led him to the second
appellant. The investigating officer by chance discovered that
the second appellant was a licensed
firearm holder and had the
firearm in his possession. The second appellant’s version
that his brother had taken the
firearm in 2002 must be considered
against the backdrop that he did not report such loss; there is no
indication when in 2002 he
lost his firearm, when his firearm was
returned to him and how it came about that he was again in possession
thereof in 2004. Furthermore,
he contradicted himself on whether or
not he reported the loss.
[35]
I am of the view that the State sufficiently proved the elements of
the crimes against the second appellant. There was a prima
facie case
against the second appellant and his failure to rebut it had the
effect that the State proved all the elements of the
charges against
the second appellant beyond reasonable doubt.
Sentence
[36]
The provisions of s 51 of the Criminal Law Amendment Act 105 of 1997
(the Act) would ordinarily apply to the sentencing regime.
The murder
charge, where the perpetrators acted with a common purpose and the
murder was committed during an armed robbery, would
attract a
prescribed minimum sentence of life imprisonment, unless substantial
and compelling circumstances exist to justify the
imposition of a
lesser sentence.
[13]
The
prescribed minimum sentence for robbery with aggravating
circumstances is 15 years’ imprisonment.
[14]
[37]
However, the indictment does not refer to the provisions of s 51 of
the Act at all. Furthermore, the record does not reflect
that the
presiding judge brought the provisions of s 51 of the Act to the
notice of the appellants before they pleaded to the charges
or at any
time during the trial before sentencing commenced.
[38]
In
S
v Ndlovu
[15]
the following was said regarding the duties of a presiding officer to
ensure that an accused has a fair trial:
‘
The
enquiry, therefore, is whether, on a vigilant examination of the
relevant circumstances, it can be said that an accused had
had a fair
trial. And I think it is implicit in these observations that where
the State intends to rely upon the sentencing regime
created by the
Act a fair trial will generally demand that its intention pertinently
be brought to the attention of the accused
at the outset of the
trial, if not in the charge-sheet then in some other form, so that
the accused is placed in a position
to appreciate properly in
good time the charge that he faces as well as its possible
consequences. Whether, or in what circumstances,
it might suffice if
it is brought to the attention of the accused only during the course
of the trial is not necessary to decide
in the present case. It is
sufficient to say that what will at least be required is that the
accused be given sufficient notice
of the State's intention to enable
him to conduct his defence properly.’
[39]
This was not done in the instant matter and thus the sentencing
regime of s 51 of the Act is not applicable. On account of
the
paucity of information regarding the appellants’ personal
circumstances contained in the judgment on sentence and the
absence
of the record of the pre-sentencing proceedings, I am constrained to
revert to the information furnished during the bail
application
proceedings.
[40]
I take into consideration as held in
S
v Vilakazi
[16]
that in respect of
‘
.
. . serious crime the personal circumstances of the offender . . .
recede into the background. Once it becomes clear that the
crime is
deserving of a substantial period of imprisonment the questions
whether the accused is married or single, whether he has
two children
or three, whether or not he is in employment, are in themselves
largely immaterial to what that period should be .
. . .’
[41]
At the time of the commission of the crimes the first appellant was a
23 year old first offender. At the time of his bail application
he
was single, unemployed and lived with his father and four siblings.
He had been in custody for a period of approximately 30
months as an
awaiting trial prisoner when sentence was imposed.
[42]
The second appellant was also 23 years old at the time of the
incident. He had no previous convictions. At the time of the
bail
application he was a single father and he and his child resided with
his parents. The mother of the child was also alive.
He was employed
at the time of his arrest.
[43]
Unfortunately we have no information regarding the victims of these
crimes. We do not know Mr Mthembu’s age, whether
he was a
father and whether he was employed and maintained a family. We do not
know if he had any dependants and, if so, how many.
None of this is
evident from the judgment on sentence. I can only repeat what was
said in
S
v Matyityi:
[17]
‘
I
hazard that the value of the sum of his life must have been far
greater than the crime statistic that he has come to represent
in
death. It surely would therefore be safe to infer that in some way or
the other his death must have had devastating consequences
for
others.’
We
similarly do not know what effect the crimes have had on Ms Ndebele.
The judgment on sentence is silent on that too.
[44]
The community demands that consistent and, if necessary, severe
sentences be handed down for serious crimes. In this instance
the
motive was clearly to rob the victims. There was no need to injure or
kill any of the victims as the perpetrators outnumbered
them and Ms
Ndebele had run away when the fatal shot was fired.
[45]
Taking into consideration all the known factors I am of the view that
a sentence of 20 years’ imprisonment on the charge
of murder is
appropriate, while a sentence of 10 years’ imprisonment is
suitable for the charge of robbery with aggravating
circumstances.
The cumulative effect of these sentences must be taken into
consideration, as well as the fact that the first
appellant had
already spent more than two years in custody at the time of
sentencing.
[46]
Accordingly the following order is made.
1. The appeal
against the convictions of the appellants is dismissed.
2. The appeal
against the sentences imposed on the appellants is upheld and the
sentences are set aside and substituted with the
following in
respect of each of the appellants.
‘
Count
1: 20 years’ imprisonment; and
Count
2: 10 years’ imprisonment.’
3. It is ordered
that the sentences imposed in respect of count 2 will run
concurrently with the sentences imposed in count
1.
4.
The sentences are antedated to 15 December 2006.
______________________
I
Schoeman
Acting
Judge of Appeal
APPEARANCES
For the Appellants:
F van As (First Appellant)
L
Augustyn (Second Appellant)
Instructed
by:
Legal
Aid South Africa, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent: P Vorster
Instructed by:
Director of Public
Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
S
v Chabedi
2005
(1) SACR 415
(SCA) paras 5 and 6.
[2]
Nkoketsent
Elliot Pilane v The State
(NWM)
unreported case no CA10/2014 (5 March 2015).
[3]
S
v Matshivha
;
2014 (1) SACR 29
(656/12);
[2013] ZASCA 124
(SCA) para 10.
[4]
S
v Litako & others
2014
(2) SACR 431;[2014] ZASCA 54 (SCA).
[5]
Director
of Public Prosecutions, Transvaal v Viljoen
2005(1)
SACR 505 (SCA) para 33.
[6]
S
60(11B)
(
c)
reads as follows: ‘(c) The record of the bail
proceedings, excluding the information in paragraph (
a
),
shall form part of the record of the trial of the accused following
upon such bail proceedings: Provided that if the accused
elects to
testify during the course of the bail proceedings the court must
inform him or her of the fact that anything he or
she says, may be
used against him or her at his or her trial and such evidence
becomes admissible in any subsequent proceedings.’
[7]
S
v Dlamini; S v Dladla &others; S v Joubert; S v Schietekat
1999(2)
SACR 51 (CC) para 87.
[8]
Du Toit et al
Commentary
on the
Criminal Procedure Act
Volume
2 24-110 [Service 49, 2012].
[9]
R
v Valachia & another
1945
AD 826
at 835.
[10]
Valachia
at
837.
[11]
S
v Cloete
1994
(1) SACR 420
(A) 428a-g.
[12]
S
v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
; [2000] ZACC (CC) 25 para 24.
[13]
Section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
read
with
Part I
of Schedule 2 of the Act.
[14]
Section 51(2) of the Act read with Part II of Schedule 2 of the Act.
[15]
S
v Ndlovu
2003
(1) SACR 331
;
[2002] ZASCA 144
(SCA) para 12.
[16]
S
v Vilakazi
2012
(6) SA 353
;
[2008] ZASCA 87
(SCA) para 58.
[17]
S
v Matyityi
2011
(1) SACR 40
;
[2010] ZASCA 127
(SCA) para 15.