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[2015] ZAGPJHC 306
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S v Nkosi (CC98/2012) [2015] ZAGPJHC 306 (2 December 2015)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
CIRCUIT
LOCAL DIVISION FOR THE NORTHERN CIRCUIT COURT
MIDDELBURG
CASE
NO: CC98/2012
DATE:
02 DECEMBER 2015
In the matter
between:
THE STATE
And
NKOSI, MDUDUZI
ISAAC
SUMMARY
Criminal
law and procedure – murder and attempted murder –
committed on isolated plot/farm – crimes well-planned
and
executed – sentence – absence of substantial and
compelling circumstances – sentence of imprisonment for
life
only appropriate sentence.
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1]
There is no perfect judgment in any case, especially in circumstances
where the court is sitting on circuit, because of a lack
of resources
and other issues, but what follows hereafter is the judgment in this
matter.
Mr
Mduduzi Isaac Nkosi, (“
hereinafter
the accused
accused
”),
who was legally represented by different counsel throughout the
trial, is charged with the following four offences:
1.
Housebreaking
with intent to rob and robbery with aggravating circumstances,
allegedly committed at a farm at Plot [6……]
[K……],
[M…….] MP on 22 January 2010, (“
Count
1
”).
2.
Murder,
allegedly committed on the same date and place as mentioned in count
1. In this regard it is alleged that the accused killed
Johannes
Eldorus Venter, (“
the
deceased
”)
(“
Count
2
”).
The robbery victim is the deceased as well as his surviving wife, Ms
Emmarentia Katarina Venter, (“
the
complainant
”)
3.
Count
3 relates to the attempted murder of the complainant on the same
date, place and time as in court 1, the State alleging that
the
accused shot at the complainant with a firearm, (“
Count
3
”).
4.
Counts
4 and 5 allege the unlawful possession of a firearm and ammunition
respectively, on the same date and place mentioned in
count 1.
THE
HISTORY OF THE TRIAL
[2]
The history of the trial is significant. The annotations on the
court file show that on 17 September 2012 the trial was
postponed to
12 November 2012 for the accused to finalise arrangements for private
legal representation which he required.
On 12 November 2012,
the trial was postponed to 3 December 2012, again for the accused to
obtain legal representation. On
3 December 2012, the trial was
postponed to 15 April 2013, however, the latter date was thankfully
brought forward to 5 February
2013, when the trial eventually
commenced.
THE
COMMENCEMENT OF THE TRIAL
[3]
At the eventual commencement of the trial before me in February 2013,
the accused pleaded not guilty to all the charges.
He exercised
his constitutional right to remain silent and did not disclose his
defence in terms of the provisions of sec 115 of
the Criminal
Procedure Act, 51 of 1977 (“
the
Criminal Code
”). At that stage,
the accused was represented by Advocate Jacobs.
At
the same time of the plea, certain formal admissions were made and
recorded by the court in terms of the provisions of sec 220
of the
Criminal Code. These were essentially that the deceased
mentioned in count 1 and 2 died as a consequence of the injuries
sustained during the crimes in question, that the body of the
deceased sustained no further injuries on 22 January 2010 apart from
the injuries mentioned above, and until the post-mortem examination
was conducted on the body of the deceased by Dr Mahlangu on
26
January 2010, and that the facts and findings of Dr Mahlangu were
correct in finding that the cause of death was, “
Brain
injury
”. There were also
admissions relating to the photos and key thereto of the post-mortem
examination as well as of the
crime scene.
AT
THE CRIME SCENE
[4]
On the road between Middelburg MP and Stoffberg, about ten kilometres
outside Middelburg, is a farm or plot, [6……]
[K…..],
(“
the crime scene
”).
On Thursday night, 21 January 2010 the complainant, (“
Ms
Venter
”), her husband, the
deceased, as well as their adult son, Jaco Venter, (“
Jaco
”),
were at the crime scene. They had visitors that night, who later
left. Jaco went to sleep in his own bedroom at
about 21:00. At
about midnight the complainant and her husband, the deceased, aged
about 59 years, went to sleep in their main
bedroom.
The
doors and windows were closed and locked, according to Ms Venter. At
approximately 01:20, the morning of 22 January 2010, the
complainant
was awakened by some noise at the window. The cause of the
noise was apparently somebody at the window.
The window is
directly next to her husband, about one metre away. She then
shook the deceased, who was asleep, saying there
was an intruder in
their bedroom.
The
deceased immediately woke up and jumped off the bed. He was
confronted by an intruder. The complainant, however, could
not
see well as the lights were switched off in the bedroom. The
deceased grabbed the intruder by his arms. The complainant
also
jumped off the bed. A second intruder came through the same
window and shot the complainant on the arm. The bullet
entered
the one side of the arm and exited on the other side of it. As a
result, the complainant experienced excruciating pain
and bleeding
from her injuries. She lost consciousness briefly.
The
assailants demanded money. She handed over her handbag.
The handbag was recovered near the same window in the garden
the
following morning with all its contents in place. During the attack
in the bedroom, a second shot was fired which fatally struck
her
husband. Both shots were fired by the same intruder. The
complainant then ran down the passage from her bedroom in order
to
access what she called the Marnet that is a radio to contact farm
neighbours.
She
screamed, this after one of the assailants threatened to shoot her.
Her son, Jaco, whose bedroom was next to the Marnet,
appeared.
He was frightened, with a torch in hand. The complainant asked
for help through the Marnet. Jaco pressed
the panic button. Shortly
thereafter the police and the paramedics arrived on the scene. This
part of the evidence, or events,
relating to the arrival of the
paramedics, was, in fact, corroborated by one of the accomplices, or
co-accused, Mr Limini G Ralinala,
as discussed later below in the
judgment.
The
deceased was declared dead by the paramedics. The complainant was
transported to hospital where she underwent an emergency operation,
since it was discovered that the gunshot to her arm had also
penetrated her stomach. She remained in the intensive care unit,
(“
ICU
”)
for several days. In short, the complainant still had
after-effects and
sequelae
of the incident and other medical problems which lasted up to the
commencement of the trial.
THE
EVIDENCE OF MR JACO VENTER
[5]
When he testified, Jaco corroborated his mother’s evidence
about the uncontested events that night and the early hours
of the
following morning. He confirmed that, based on his observations, the
assailants gained entry to his parent’s bedroom
through the
window, as shown in photograph A of the crime scene photographs and
album. The particular window was fitted with burglar-proofing
which
were in place shortly before the incident. However, the
following morning, the burglar bars were not on the window
and were
later retrieved by Jaco in the garden not far from same window.
He said that he was not armed with any weapon that
night, as
suggested by parts of the evidence in the trial. He was awoken
by the screams for help of his parents, and shortly
thereafter he
heard two strange gunshots. Neither the complainant nor Jaco
could identify any of the assailants.
THE
EVENTS LEADING TO THE ARREST OF ACCUSED
[6]
The events leading to the arrest of the accused and three other
co-perpetrators were rather dramatic and somewhat divergent.
On
8 February 2010, the police at Middelberg received information that
the accused and another person were travelling in an Opel
motor
vehicle (“
the Opel
”).
The Opel was travelling from the direction of Groblersdal and heading
for Middelburg town on the main road.
As a consequence, several
police officials comprising a task team and the investigating officer
were assembled in order to intercept
the Opel in Middelburg.
However,
and on the version of the police, the Opel, upon observing the
police, made a U-turn and sped off in the direction whence
it came,
i.e. Groblersdal. The police, in their respective motor
vehicles, gave chase. The chase ended when the Opel
reached
what appeared to be a dead end on a side gravel road. The driver of
the Opel alighted and disappeared, whilst the accused
was arrested.
The
police officials involved in the arrest of the accused included
Constable Jabulani Shadrack Mndebele, (“
Mndebele
”),
Sergeant Pieter Stefanus Ferreira, (“
Ferreira
”),
Sergeaent Noah Pahle, (“
Pahle
”),
Sergeant Gerrit Johannes Maritz, (“
Maritz
”),
Sergeant KS Mahlangu, (“
Mahlangu
”),
and Captain Anadien Breedt, (“
Breedt
”),
the investigating officer.
Breedt
arrived at the scene after the accused was already captured.
Maritz drove immediately behind the Opel during the high-speed
chase,
whilst Ferreira followed behind in a separate motor vehicle. The Opel
turned off from the main road into a dirt road. Maritz
testified that
on reaching the dead end, the occupants of the Opel alighted and ran
away. The accused was, however, caught,
this after the accused
realised that he could run no further. This was after midnight.
Ferreira arrived. The accused
was placed under arrest and
placed in a police van. This after Breedt had identified him as
the wanted suspect. Later,
this accused was taken to the local
police station.
THE
DIVERGENCE IN EVIDENCE
[7]
The divergence in the evidence during the chasing episode occurred
firstly when the accused testified that the Opel was not
evading the
police, but merely took a turn off towards their destination.
This version is clearly misleading in the light
of the overwhelming
evidence to the contrary. The second diversion in the evidence
was the accused’s allegations that
he was not provided with the
reason for his arrest until much late, (he was told by Pahle later,
at the police station), and that
his constitutional rights were never
explained to him at all. In fact, when he testified, the court gained
the distinct impression
that that complaint of the accused was still
extant and I will deal with these allegations more fully later on.
Ferreira
testified that at the arrest scene, or where the accused was
captured, he saw Mndebele talking to the accused separately.
Pahle, on his turn, confirmed this. Mndebele testified that he,
himself, warned the accused fully of his constitutional rights
at the
arrest scene before the accused was driven to the Client Services
Centre (“
CSC
”)
commander’s office at the police station. The accused was
not assaulted in any way at the arrest scene.
Indeed, the names
of Mndebele, Pahle and Mahlangu feature prominently in this trial.
The foundation of the defence of the
accused, besides his alibi
defence, was that these witnesses had told him what to say later to
other police officials or authorities.
Ferreira testified that at the Middelburg police station he explained
to the accused his constitutional rights and handed him a
copy of the
SAP14A. This was about 04:07 on the morning of 8 February 2010.
Exhibit “L” shows that the accused
signed the notice of
rights in terms of the Constitution at that time and place, and the
date. Now, it is common practice
and knowledge that the
original of the notice is given to the detainee on being placed in
custody. A copy is placed in the docket
and a copy remains in the
book.
[8]
As I came to understand the defence counsel’s argument later,
not only were the rights of the accused not read to him,
but if they
were, the police officers who dealt with the accused were obliged to
explain these rights in a meaningful manner to
enable the accused to
make an informed decision, and more about this later.
The
evidence of the police officers as supported by the entry made in the
occurrence book, namely Exhibit “M”, on 8
February 2010
at 16:20 was that the accused was booked out of the cells by Pahle.
He had no injuries. Pahle was accompanied
by Mahlangu and not
Mndebele. This becomes significant later. The purpose of taking
the accused from the cells was to question
him, and this questioning
occurred in an office of the police about 70 metres from the cells.
The accused was questioned about a certain unspecified case involving
a motor vehicle, rape and murder. The interview lasted until
about
18:25, when the accused was booked back into the cells, once more
with an annotation that he had no injuries. However,
on the
version of the accused, it was at this interview that he was
questioned about his involvement in the present crimes. He
was told
that his accomplices were already in custody and they have ‘
come
clean
’. When the accused denied these allegations,
and of involvement in the crimes, on his version, he was severely and
variously assaulted by Mndebele, Pahle and Mahlangu, and he was
further told what version, which implicated him in the present
crimes, to convey to the other police officers, otherwise the
assaults would continue.
On
his version, the accused said that he opted to rather see a Senior
Prosecutor or Magistrate. He said he was then taken
to a
magistrate, who later turned out to be a Mr de Klerk, (“
de
Klerk
”). However, in the
course of taking a statement, de Klerk observed an injury on the
accused and promptly terminated
the interview, tearing up the paper
on which he had commenced writing a statement.
The
police witnesses involved, namely Mndebele, Pahle and Mahlangu
vehemently denied any assault or threat made to the accused as
alleged by him. The main basis of their denial was on the
contents of the occurrence book and that the cell officials would
never allow any injured suspect in, or back into the police cells. It
was also denied that Mndebele was present when the accused
was booked
out of the cells and interviewed as sketched above. The court
will, at the appropriate time, say more about de
Klerk.
There
was on other witness who testified for the State, apart from the
police. He was Mr Limini G Ralinala, (“
Ralinana
”),
an accomplice, whose evidence was not without controversy. I
prefer to deal with his evidence much later in the
judgment, save to
mention that the following undisputed facts occurred:
THE
ORIGINAL ACCUSED PERSONS
[9]
That there were originally, in this matter, four accused persons. The
first accused was Mr Mpumelo Given Chisiko, (“
Chisiko
”),
Mr Bheki Jacob Mthetwa, (“
Mthetwa
”),
Ralinala and the accused, before me. Chisiko previously
appeared in the high court. He pleaded guilty to four counts
under
discussion, except for count 3. He was duly convicted as
pleaded. Mthetwa, pursuant to his arrest, apparently
passed
away due to natural causes and whilst in custody. There is
clearly no need at this stage, deal in full detail with
these common
cause facts.
THE
TRIAL-WITHIN-A-TRIAL
[10]
Contrary to the assertions of the accused, that he was later, (9
February 2010), taken to a magistrate as alluded before, the
police
testified that the accused preferred to be interviewed rather by
Colonel Hall, (“
Hall
”),
who he knew. It is not in dispute that the accused met Hall,
however, when the State intended to lead the evidence
of Hall,
especially the introductory part of the interview he had with the
accused, and as to exactly what transpired during the
interview, the
defence, through previous counsel, Mr Jacobs, objected to such
evidence.
The
grounds of the objection, as explained later, were simply that the
intended evidence of Hall amounted to an inadmissible confession.
As a consequence, the court entered into a trial-within-a-trial.
It is more appropriate, once more, to deal with the proper
sequence
of the evidence in the trial-within-a-trial by deferring the evidence
of Hall until later. In its place comes into
immediate
consideration the evidence of the challenged pointing out made by the
accused to Colonel Moukangwe, (“
Moukangwe
”).
[11]
I must mention that, in addition to Hall and Moukangwe, the State
called several other witnesses in the trial-within-a-trial.
The
accused also testified in his defence as the only witness. At the
conclusion of the trial-within-a-trial, I made a ruling that
in
regard to the pointing out made by the accused to Moukangwe, as well
as the confession made to Hall, shall be admitted as evidence
in the
trial. The ruling was subject to review by the court at the end of
the whole evidence. At the same time, I undertook
to furnish
the reasons for the ruling as part of the main judgment. What
follow hereafter are such reasons.
[12]
Moukangwe was stationed at the Witbank detective services, with some
30 years’ service in the South African Police Service.
When he
conducted the pointing out at Middelburg on 9 February 2010, he
received a request from the investigating officer, Breedt,
on 8
February 2010, to do so. He testified in English throughout his
trial, and that he had no prior knowledge of the present
crimes, nor
was he part of the investigation in this matter. He also did
not know the accused. He too, like the accused,
was fluent in isiZulu
language, however, Moukangwe preferred to make use of an interpreter,
namely Constable Harry Molapo, (“
Molapo
”).
[13]
At the time of his evidence, Molapo was also stationed at the
detective branch of the South African Police Service at Witbank,
with
some 13 years’ of service. The photographer in attendance
was one officer AS Tierney, (“
Tierney
”).
The collective evidence of Moukangwe, Molapo and Tierney came to
this: The introductory formalities were completed
with the
accused in a room at Middelburg prior to the pointing out journey.
This was about 13:05.
[14]
The accused was asked questions based on the prescribed form. The
accused knew why he was there; that is to show the police
where the
deceased was killed, at his own instance; that he wanted to
co-operate with the police, and that he regretted his deeds.
His
constitutional rights were explained. When asked if he had been
assaulted by anybody and had injuries, the accused replied
in the
negative. The accused was asked to undress. He had no visible
injuries, and photos of him were taken.
What
was of significance in the context of this case is that the accused
had no visible injuries at that stage, or shown no hidden
injuries to
Moukangwe and his team, and did not request legal assistance after
such rights were explained to him. It was equally
significant that
the accused did not tell Moukangwe that he had been taken to the
crime scene earlier that day by Mndebele, Pahle
and Mahlangu, that is
on his version. Another further significant fact is that the
accused never told Moukangwe the version
he was instructed by the
police, i.e. Mndebele, Phale and Mahlangu, to tell other police
officers at the risk of continued assaults.
The same appears to
have been the case with Hall, as discussed later.
According
to Moukangwe, the accused then proceeded to the pointing of the crime
scene as well as a second scene, the relevance of
which is
questionable in this case. The pointing out was completed when the
police and the accused returned that day at about 14:20.
The pointing
out form was signed by all parties involved, including the accused.
Moukangwe and his team were cross-examined
closely. They
withstood the cross-examination and remained consistent in regards to
their co-version.
[15]
Moukangwe also denied, in cross-examination, that the accused told
him about a specific legal representative. The court
also
questioned Moukangwe intimately about the allegations often made by
suspects in cases of this nature. He gave the court
some
credible replies to the questions. There was truly no reason of
any substance advanced why the evidence of Moukangwe,
Molapo and
Tierney should not be accepted as credible and reliable.
[16]
Significantly, further, at this stage there was no mention of an
injury carried by the accused which was situated inside his
mouth, so
that the photographer clearly could at least have taken a photo of
such injury, which became the defence of the accused
throughout the
trial. However, in the light of subsequent formal admissions
made regarding the pointing out, this part of
the matter should have
no problems at all.
[17]
The evidence of Hall was somewhat lengthy, problematic and also
technical, and which at some stage required some expert input.
This
was largely due to the manner and circumstances under which he
interviewed the accused in the course of taking down a confession
after the pointing out on 9 February 2010 at about 17:29. This
interview lasted until shortly before 18:53, when the accused
was
booked back into the cells, “
free
from injuries and complaints
”.
It
appeared to me that the problem was not only how the accused came to
be with Hall, but also the nature of the interview. This
was that
Hall, over and above utilising the prescribed form in terms of sec
217 of the Criminal Code, simultaneously placed his
own recorded, an
Olympus, on the table. The recording was transcribed into
Exhibit “O”, and also listened to
by the court during the
trial. It was downloaded previously to his laptop and/or computer.
Hall
was requested by the investigating officer, Breedt, to conduct the
interview and take a statement from the accused. The more
credible
evidence was that it was the accused himself who preferred to be
interviewed by Hall, since the accused claimed that he
knew Hall from
previous interactions in 2007. However, the accused disputed
this aspect viciously later. He alleged that
he wanted to see a
Senior Prosecutor or Magistrate, but ended up with Hall. It was
common cause that the recording was taken down
in the Afrikaans
language throughout.
[18]
The objection of the accused, through his counsel, prior to the
evidence of Hall and the introductory part of the interview
came to
this: that the printed Exhibit “O” was taken down
in Afrikaans, which language the accused did not understand.
That it was taken down without the accused’s knowledge and
prepared by Hall alone and unilaterally. When he testified,
the
accused alleged that when he got to Hall, the latter, that is Hall,
realised that there was a communication problem between
them and Hall
left the room and returned shortly thereafter with a third person, an
interpreter, Malope.
The
interview continued with Malope interpreting. The accused never
had an interview alone with Hall, on his version.
I shall
revert to this version later on, as well as the State’s
contentions in regard thereto. Indeed, the manner in
which Hall
took down the statement from the accused, as well as what appeared to
be the impeccable manner in which Moukangwe interviewed
the accused,
immediately bring into consideration some applicable legal principles
which I prefer to deal with now, at this stage.
SOME
APPLICABLE LEGAL PRINCIPLES
[19]
Section 35(1) of the Constitution deals with the rights of arrested,
detained and accused persons. It provides,
inter
alia
, for the right to remain silent,
to be informed promptly of the right to remain silent, and for the
consequences of not remaining
silent, and more relevantly here, not
to be compelled to make any confession or admission that could be
used in evidence against
that person, etcetera, etcetera.
Section 35(2) entrenches the right to be informed promptly of the
reason for being detained, to choose and consult with a legal
practitioner and to be informed of this right promptly, and to have a
legal expense, if substantial injustice would otherwise result,
and
to be informed of this right promptly.
Finally,
on the Constitution in this regard, sec 35(3) deals with every
accused person having the right to a fair trial. In addition
to the
Constitution, sec 217(1) of the Criminal Code provides,
inter
alia
, that:
“
Evidence
of any confession made by any person in relation to the commission of
any offence shall, if such confession is proved to
have been freely
and voluntarily made by such person in his sound and sober senses,
and without having been unduly influence thereto,
be admitted in
evidence against such person at criminal proceedings relating to such
offence …
”
[20]
It is by now settled law that evidence of whatever nature, including
confessions and pointing outs obtained by unlawful means
must be
excluded by the courts in furtherance of the fair trial rights. In
S
v Zuma and Others
,
[1995] ZACC 1
;
1995 (2) SA 642
(CC), and in the process of considering the validity of sec 217(1) of
the Criminal Code, based on the predecessor of sect 35(3)
of the
Constitution, namely sec 25(3), the Court said that:
“
The
right to a fair trial … embraces a concept of substantive
fairness, but at the same time one should not neglect the language
of
the Constitution.
”
At
the end of paragraph 16 of the judgment, the Court went on to state
that:
“…
Since
that date, section 25(3) has required criminal trials to be conducted
in accordance with just those ‘notions of basic
fairness and
justice’. It is now for all courts hearing criminal
trials or criminal appals to give content to these
notions.
”
See also
Sipho Patrick Magwaza v The State
, (20169/14)
[2015]
ZASCA 36
(25 March 2015), particularly paragraph [11].
[21]
In applying the above principles to the facts of the present matter,
the conclusion that the evidence of the pointing out conducted
by
Moukangwe was not obtained unlawfully, became, irresistible. On
his version, the accused had his rights explained. He
did not have
any injuries. He did not tell Moukangwe that he had been taken
to the crime scene early that day by Mndebele,
Pahle and Mahlangu, or
other police. He did not tell Moukangwe the version alleged
prescribed to him by the police, and
inter
alia
, he did not tell Moukangwe about
the injury in his mouth.
[22]
Moukangwe was credible, and was materially corroborated by his crew
of Molapo and Tierney. As stated below, the version
of the
accused in the trial-within-a-trial was simply pathetic and
disingenuous, to say the least. It is, however, the confession
taken
by Hall, in my view, that continued to be problematic, and causing
this court some agonising moments. However, since
the closing
argument last Friday, and based on the above legal principles, this
reluctance to accept Hall’s evidence dissolved
gradually.
The reasons therefor are obvious. The proper approach would be
to separate the prescribed form from the
additional recorder, later
transcribed, used by Hall during the interview, depending on which
version is more credible, probable
and reliable.
[23]
On the version of the accused, the interview occurred by means of an
interpreter. As I said before, he never had a one-to-one
interview with Hall in Afrikaans. The version was highly
improbable. The recording which was played in court clearly
shows that there are only two persons’ voices coming out
throughout. This was confirmed by the expert witness, Fisher,
on behalf of the State, who also found that the recording was not
tampered with or edited subsequent to its original recording.
This evidence was not countered at all and the assertions of the
accused could not be sustained or taken further in closing argument
last week Friday.
There
is no evidence of an interpreter on the recording. It is so
that the recording is susceptible to various criticism such
as that
it is in Afrikaans, thus on occasion high-flown and technical or
legal terminology is used, and that some of the questions
asked by
Hall during the interview suggested the answers, however, and but all
of these are destroyed completely by the version
of the accused that
there was an interpreter involved, which was clearly not the case.
The recording was, of course, be listened
to and viewed in its
entirety and also in the light of all the other evidence. See, in
this regard,
Motata v Nair NO and
Another
,
(2008) JOL 22
291 (T).
[24]
When the contents of the recording is viewed as above, it became
evident that the accused, although not eloquently, understood
Afrikaans. For example, when Hall, at the end, read back to the
accused the statement, the accused ventured to correct Hall.
In
addition, the transcript does not support the assertion that Hall
omitted to explain to the accused his constitutional rights
fully or
properly. Neither does it show that Hall explained such rights
by asking leading questions, as contended for on
behalf of the
accused. At the very least, these rights were explained in simple
terms to the accused.
[25]
Furthermore, it was contended that, to demonstrate the accused’s
ignorance of the Afrikaans language, he did not reply
when asked by
Hall whether he was promised anything in order to make the statement,
but instead the accused responded that he was
assaulted in regard to
an unrelated incident. There was clearly no basis for such an
inference, especially if the transcript
is viewed in proper context
and holistically.
[26]
In any event, the main thrust of the version of the accused, as
stated before, was that he was “
schooled
”,
by the police as to what to say, and should he default, he would
again be assaulted. The assurance of Hall that the
recording
was not tampered with in any way cannot be discarded easily by this
court in this regard. As mentioned before, Hall was
corroborated by
Fisher. It follows that that being the case, there was clearly no
need for the State to lead any further evidence
of an expert nature
in regards to the recording.
Consistent
with his cautionary approach and fairness during the interview, Hall
did not ignore the allegations of the accused that
he was assaulted
previously by the police. He questioned the accused closely
about this at the end of the interview.
He required details of
the culprits. He encouraged the accused to help him, that is
Hall, helping the accused to lay criminal
charges. The accused was
reluctant. Hall took the accused to the charge office when he booked
him back to the cells for this purpose.
The
entry made in the occurrence book on that day at about 18:53 read in
parts as follows:
“
Prisoner
back from investigation … Mduduzi Nkosi, free from injuries
and complaints. Superintendent Hall reports to
Superintendent
Wasserman that the accused alleged he was assaulted. He did not want
to open a docket, but want the members to stop
the assault.
Incident also reported to Inspector Breedt, investigating officer.
”
From
this it was clear that Hall was not out to prejudice the accused
unnecessary. It was, in fact, Hall who asked the accused to
open his
mouth whereat the injury on his inside lip was observed.
Interestingly, the accused never opened his mouth to the
other police
officials, including Moukangwe. The court was satisfied that
Hall acted properly and in the interest of justice.
His evidence must
be accepted.
[27]
Properly viewed, Hall’s conduct in using the recorder over and
above the prescribed form was seen out of context and
exaggerated
incorrectly during the trial. On the contrary, the fact that the
accused did not want to press charges against his
alleged assailants
may easily be interpreted as lacking any credibility and substance.
His version, in the trial-within-a-trial,
that during the alleged
assault, Mndebele and others “
schooled
”
him and prescribed to him what version to tell the other police
officers was, in my view, an afterthought and excessively
incredible. He did not convey the prescribed version to either
Moukangwe nor to Hall.
As
a witness in the trial-within-a-trial, the accused was not an
impressive witness. He contradicted himself on occasion.
He was
evasive. He answered questions by questions. In
cross-examination, he pretended not to understand questions.
The
record speaks for itself. There are numerous other instances of
his unsatisfactory and incredible testimony.
THE
AGREEMENT BETWEEN THE PARTIES
[28]
At the end of the provisional ruling made in regard to the
trial-within-a-trial, agreement was reached between the parties
as
set out in Exhibit “A1”. In short, the agreement
was that all the relevant documents can merely be handed
in as
exhibits. That it was not necessary for the State to recall all
the witnesses to testify in the main trial. That
all the
evidence led in the trial-within-a-trial can be transported into the
merits of the case and to form part of the evidence
on the merits in
the main trial. The rationale behind this was to shorten the
proceedings by recognising that there was no prejudice
to the
accused.
Finally,
in regard to the agreement, the court was requested to note, in
accordance with the provisions of sec 220 of the Criminal
Code, that
it was admitted that during the pointing out conducted by Moukangwe,
the accused, in fact, pointed out the house of
the deceased in this
matter, as depicted on the pointing out photographs. Since
there is precedent and authority for the
proposition envisaged in the
agreement between the parties, Exhibit “A1”, the court
sanctioned it.
At
the end of the provisional ruling made in regard to the
trial-within-a-trial, agreement was reached between the parties as
set
out in Exhibit “A1”. In short, the agreement
was that all the relevant documents can merely be handed in as
exhibits.
That it was not necessary for the State to recall all
the witnesses to testify in the main trial. That all the
evidence led
in the trial-within-a-trial can be transported into the
merits of the case and to form part of the evidence on the merits in
the
main trial. The rationale behind this was to shorten the
proceedings by recognising that there was no prejudice to the
accused.
Finally,
in regard to the agreement, the court was requested to note, in
accordance with the provisions of sec 220 of the Criminal
Code, that
it was admitted that during the pointed out conducted by Moukangwe,
the accused, in fact, pointed out the house of the
deceased in this
matter, as depicted on the pointing out photographs. Since
there is precedent and authority for the proposition
envisaged in the
agreement between the parties, Exhibit “A1”, the court
sanctioned it.
THE
EVIDENCE OF RALINALA
[29]
It is convenient, at this stage, to deal with the evidence of the
accomplice, Ralinala. As was suggested, the nature
of his
evidence elicited extensive cross-examination, argument and debate
during the trial. The main objection or criticism raised
by the
defence counsel can be summarised as follows: that since
Ralinala was an accomplice, his uncorroborated evidence had
to be
approached with the requisite caution; that some safeguards are
required before accepting his evidence in order to reduce
the risk of
a wrong conviction. In this regard, reliance was placed on
S
v Artman & Another
,
1968 (3) SA 339
(A) 340.
It
was also argued that the evidence of Ralinala was unreliable since it
was infested with contradictions. Of course, the
cautionary
approach suggested by counsel for the defence as set out above was
the correct approach to be adopted by the court in
viewing the
evidence of Ralinala. But first the pertinent and relevant
parts of Ralinala’s evidence follow: he
made what
appeared to be a confession in a statement in support of his bail
application, Exhibit “E”, in regard to
the present
matter. I shall, for purposes of this trial, completely ignore
Exhibit “E” for obvious reasons, and
only have regard to
the oral evidence given by Ralinala in the trial.
[30]
His evidence extends over 107 pages of the transcript, of which some
23 pages consisted of cross-examination. He was arrested
on 28
January 2010 at Carolina, Mpumalanga, in this matter. He was in
custody at Carolina for some other case. Subsequent
to his
arrest, he pointed out co-accused, Chisiko, at the local township,
Mhluzi. He was also present when co-accused, Mthetwa,
was
arrested. Thereafter, the accused before the court was
arrested. All four appeared in the local magistrate’s court
in
regard to the present charges.
[31]
He testified that he was in the business of trading during 2010. From
his evidence, it was more than apparent that he knew
the accused from
late 2009. On his version, he rented a bakkie from the
accused. On the day of the commission of the
present crimes,
the accused came to his house. That was on 22 January 2010. He
acceded to the accused’s request to
drive him in the bakkie to
the vicinity of the crime scene. This, after the accused had
first requested to have Chisiko and
Mthetwa collected at Mhluzi.
The purpose of the visit to the crime scene, as told by the accused,
was that the accused and
the others were, “
going
to work
” at the crime scene.
Chisiko
and Mthetwa were unknown to the witness. The bakkie belonged to
the accused. The destination was preceded by
visits, including
a petrol station, where R100 worth of petrol was purchased. The
directions to the crime scene were provided
by the accused, who was
occupying the front seat with Chisiko and the witness, whilst Mthetwa
was seated at the back of the bakkie.
On the way, and along the main
road, the accused indicated to Ralinala where to drop off the
occupants of the bakkie, and the witness
made a U-turn, travelling
back towards Mhluzi. However, before the U-turn was made by
Ralinala, he observed that the accused
and Chisiko were producing
firearms and loading them with bullets in their respective firearms.
This
meant that each of the accused and Chisiko had their own firearms.
Chisiko had a 9 mm pistol whilst the accused had a
revolver.
Once more, before the U-turn, Ralinala asked the accused what was the
purpose of the visit to the crime scene.
The accused responded
that it was, “
to collect money
”.
Ralinala duly dropped off the trio at about 20:00 that evening, which
is significant in this case, or will become significant
later on.
The arrangement was that the accused would phone Ralinala later that
evening to collect the trio. Ralinala
departed from the scene.
[32]
He testified that between 02:00 and 03:00 the next morning, he
received a telephone call from the accused with the request
to be
collected, which he did. However, on the way there, he received
another telephone call from the accused to the effect that
Ralinala
must not collect the trio from exactly the same spot where he dropped
them off previously, but to instead drive past slightly
on the same
main road. The accused arranged to flicker a small light at the
agreed spot. This occurred, but only the accused
and Chisiko appeared
and boarded the bakkie. Mthetwa was said to have run away after
the crimes were committed. This
was in reply to a question by
Ralinala.
On
the way back, the accused freely and voluntarily, told Ralinala, on
being asked, that when the trio were trying to take the money
at the
crime scene, the deceased woke up and fought with them viciously.
When the accused noticed that the complainant, (Ms
Venter), appeared
to produce a firearm, the accused instantly shot her in the arm or in
the hand. The child of the house,
presumably Jaco, appeared in
possession of a big firearm which was pointed at the accused. The
accused in turn pointed the child
with a firearm. The child ran
away. The trio then, uncertain as to w hat the child would do
next, fled the scene.
Ralinala subsequently dropped off the
accused and Chisiko at Mhluzi and Witbank, respectively, that
morning. The charges against
him were subsequently withdrawn.
He received from the accused telephonic calls and the request not to
testify in this trial,
the last of such call being on the morning of
his testimony in this court.
[33]
The evidence that Jaco appeared with a firearm during the crimes was,
of course, and clearly contrary to what Jaco and his
mother, Ms
Venter, testified. This was, indeed, one of the criticisms levelled
against the evidence of Ralinala in cross-examination
and in closing
argument. However, in my view, the source of the information
and other details of the crimes remained the
accused. Ralinala was
clearly not present at the crime scene.
[34]
As pointed out before, Ralinala was cross-examined intimately about
his evidence and involvement in these crimes. The
cross-examination, as expected, revealed a number of questionable and
unsatisfactory features in his evidence. These included
certain
contradictions, as correctly conceded, in my view, by the State
counsel. Indeed, and as pointed to the defence counsel
during
closing argument, it is trite that an accomplice might have special
reasons to incriminate an accused person falsely.
See, in this
regard,
inter alia
,
S v Masuku,
1969
(2) SA 375
(M), 375-7. In
S v
Hlapezula and Others
,
1965 (4) SA 439
(A) 441, the court said:
“
It is
well settled that the testimony of an accomplice requires particular
scrutiny because of the cumulative effect of the following
factors:
First, he is a self-confessed criminal. Second, various
considerations may lead him to falsely implicate the
accused, for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third,
by reason of his
inside knowledge, he has a deceptive facility for convincing
description – his only fiction being the substitution
of the
accused for the culprit. Accordingly, … there has grown
up a cautionary rule of practice requiring (a) recognition
by the
trial Court of the aforegoing dangers, and (b) the safeguard of some
factor reducing the risk of a wrong conviction, such
as corroboration
implicating the accused in the commission of the offence, or the
absence of gainsaying evidence from him, or his
mendacity as a
witness, or the implication of the accomplice of someone near and
dear to him … Satisfaction of the cautionary
rule does not
necessarily warrant a conviction for the ultimate requirement is
proof beyond reasonable doubt, and this depends
upon a appraisal of
all the evidence and the degree of the safeguard aforementioned …
Where corroborated evidence implicating
the accused in the commission
of the crime is given by another accomplice, the latter’s
evidence, if regarded as reliable,
may, depending on the
circumstances, satisfactorily reduce the risk of a wrong conviction
…
”
[35]
In the context of the present matter, in spite of the shortcomings
exposed in the evidence of Ralinala, and also based on the
principle
that an accomplice’s evidence need not be perfect in all
respects to be reliable, I find that there are sufficient
safeguards
in place to accept his evidence. His evidence, in spite of all
its imperfections, placed the accused directly
and squarely on the
crime scene. It corroborated the contents of Hall’s
statement, as well as the pointing out contents
of Moukangwe.
He knew the accused too well, that is Ralinala, to want to implicate
him falsely and to deceive this court.
Ralinala,
throughout evidence-in-chief and in cross-examination stuck to his
co-version. The contradictions in his evidence
as pointed out
and argued during argument, in my view, did not render his entire
evidence unreliable. See, for example,
S
v Mkohle
,
1990 (1) SACR 95
(A).
He
was undisputedly not at the actual crime scene. This begged the
question how he came to know what was described above,
namely that
the woman, (the wife), was shot in the hand and that, (the husband),
was also shot, if the accused was not the source
of this
information. The accused admitted, although evasively, that he
never had any problems with Ralinala. They worked
together on
occasions. This being so, and as stated above, it was highly
unlikely and, in fact, improbable for Ralinala to
have made attempts
to falsely implicate the accused in these circumstances.
OVERVIEW
OF EVIDENCE OF POLIE WITNESSES
[36]
The evidence of the police witnesses overall, in spite of certain
shortcomings as well, as correctly conceded, was reliable
and
credible on the merits of the case. It must be remembered that
the events leading to the arrest of the accused occurred
hurriedly,
in a dramatic chase and a moving scene. To expect complete and
accurate recollection from them would be unreasonable
and impractical
in the circumstances of the events which date back to 2010.
THE
EVIDENCE OF THE ACCUSED ON MERITS
[37]
The accused himself, when he testified in the main trial and in the
process of rendering a version which was plainly false,
could not
remember exactly where he was on the day of the crimes in question.
He gave a vague rendition that he went to Matau,
KZN, during December
2009, and must have returned to Gauteng [indistinct] on some
unspecified time during January 2010. I
observed the accused
closely whilst in the witness stand. He was evasive,
argumentative, anticipating questions in cross-examination.
[38]
Even during evidence-in-chief, his counsel, Ms Fraser, was, at some
stage, bordering on cross-examining him on one occasion.
His
unsubstantiated alibi defence, which he did not have to prove at all,
and considered in the light of the totality of the evidence
was, in
my view, simply not credible. See, in this regard
S
v Malefo and Others
,
1998 (1) SACR 127
(W) 158a-e.
If
the version had to be reasonably, possibly true, the evidence of the
accused implied a spectacular occurrence. That is
that, there
was a well-planned and orchestrated conspiracy and an immense one,
for that, on the part of the police involved, including,
Moukangwe
and Hall, to falsely implicate him in the commission of the crimes
under discussion from the start to the end.
This is
demonstrated in his version that Mndebele, Pahle, Mahlango, desperate
to implicate him, thoroughly “
schooled
”
him to render a certain version to the rest of the police officers he
encountered. This, once more, was highly improbable,
since this
version was not relayed to either Hall or Moukangwe.
[39]
It was only in cross-examination that the accused miraculously
remembered that the names of Mthetwa and Mpumi Chisiko (Mthetwa
and
Chisiko), respectively, were previously also provided to him by the
police who influenced him unduly. Once more, it was
highly
unimpressive and improbable. The same applied to the initial defence
or assertion, that on his arrest the accused was drunk.
Thankfully,
this assertion was not taken any further in evidence or in closing
argument. The same applied to the allegation that
the accused’s
version, that on his arrest he was taken to a local magistrate.
There was simply no proof of this contention
at all. I could
put it no higher than that.
[40]
As to the standard of proof in criminal cases, it is trite law that
the
onus
of proof beyond reasonable doubt rests on the State, as was
enunciated in
S v van der Meyden
,
1999 (1) SACR 447
(W). In my view, the accused, and save as discussed
towards the end of this judgment, is as guilty as they come, and I am
convinced
that the State succeeded in proving its case beyond
reasonable doubt.
DUPLICATION
OF CHARGES
[41] The only debate and discussion which arose during closing
argument was further, there is a duplication of charges in respect
of
the robbery with aggravating circumstances as part of count 1 and the
attempted murder count, count 3, in the circumstances
of this case.
The defence counsel argued that there was indeed such a duplication
and relied, for this contention, on the unreported
decision in
Dyini
v The State
,
[2015] JOL 34428
(ECG). It was clear to me
that the offence of attempted murder was committed in the process of
the robbery. The robbery count
was therefore a duplication of the
counts. The State, if I remember correctly, conceded this much in
argument.
[42]
The evidence undoubtedly showed that it was the accused who shot the
complainant and her husband in a well-planned and premeditated
crime
spree. The question of the operation of culpability for the joint
possession of firearms and ammunition in respect of counts
4 and 5,
and in the context of
State v Mbuli
,
2003 (1) SACR 97
(SCA), did not arise in this case since the credible
evidence from Ralinala was that each of the accused and Chisiko had
their
own separate firearms which they loaded with bullets, as
described above.
[43]
The accused also clearly acted in the furtherance of a common purpose
with Chisiko and Mthetwa, as enunciated in
S
v Mgedezi and Others
,
1989 (1) SA 687
(A). It was he who contacted Ralinala. His bakkie was used in
transporting the perpetrators to the crime scene. He
furnished
directions to the crime scene. He loaded bullets into a firearm
he had. He arranged to be dropped off near the
crime scene and to be
collected later after the crimes were committed. He and his
co-perpetrators spent some time and must
have been observing the
occupants of the house at the crime scene. As the court pointed
out earlier, that on the version
of Ralinala, he dropped them off on
the main road at about 20:00 and there is a huge time lapse between
the dropping off and the
actual attack on the farmhouse. They must
have been observing when the occupants of the house went to sleep
before they struck.
These
were the particular factors showing the prevalence of common
purpose. The argument to the contrary was plainly without
merit. The contents of the pointing out and the confession, made the
participation of the accused in these crimes more than unequivocal
land proved beyond reasonable doubt by the State.
ORDER
[44] In the result, I make the following order:
44.1 Count 1, the accused
is found guilty of housebreaking and theft with intent to steal.
44.2 Count 2, the murder, the accused
is found guilty as charged.
44.3 Count 3, the
attempted murder, the accused is found guilty as charged.
44.4 Counts 4 and 5, that
is the unlawful possession of a firearm and the unlawful possession
of ammunition
respectively, the accused is found guilty as charged.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE ACCUSED ADV JACOBS AND
MS
L FRASER
INSTRUCTED
BY: LEGAL AID SA
COUNSEL
FOR THE STATE: F W VAN DER MERWE
INSTRUCTED
BY: DPP, PRETORIA
DATES OF HEARING: FEBRUARY 2013 AND 23
NOVEMBER 2015 TO 2 DECEMBER 2015
DATE
OF JUDGMENT: 2 DECEMBER 2015