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[2018] ZAGPJHC 136
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S v Sibiya (SS95/2009) [2018] ZAGPJHC 136 (20 April 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS95/2009
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
(3)
REVISED.
20
April 2018
…………………………….
SPILG
J
In the
matter between:
THE
STATE
and
SIBIYA,
JACOB
MIKE
Accused
J U D G M E N T
SPILG
J:
1.
Th accused was convicted of a number of offences
which occurred on 23 July 2005. The most serious was that of murder
for which he
received a sentence of 15 years imprisonment. The others
related to the unlawful possession of a firearm and ammunition for
which
he received sentences of 8 and 3 years imprisonment
respectively.
He
was also convicted of offences committed some two and a half years
later, on 17 December 2008. The most serious was that of rape
for
which he was sentenced to 8 years imprisonment. He was also convicted
of driving a motor vehicle without the owner’s
consent and of
depriving the rape victim of her freedom. For these latter offences
he received sentences of 6 months and 3 years
imprisonment. The court
also ordered that all sentences run concurrently save for the murder
and the rape convictions. Accordingly
the effective sentence was 20
years imprisonment.
2.
The accused seeks leave to appeal against all the
convictions and sentences imposed. . At the time of the hearing
before me he had
served the sentence for rape. I indicated at the
commencement of the hearing that the accused would have certain
insuperable difficulties
if the appeal against the rape conviction
was pursued and that an appeal court may take a harsher view of
sentence. . That part
of the appeal was abandoned.
3.
The application is therefore confined to the
murder conviction and sentence as well as the allied offences of the
unlawful possession
of a firearm and ammunition.
4.
At the outset it is necessary to indicate that I
was not the trial judge and therefore am at a distinct disadvantage.
As I have
indicated in previous leave to appeal applications from a
decision which was not mine, I would prefer to err on the side of the
caution. I am not sitting on appeal and I therefore must guard
against applying any test higher than asking whether I am of the
opinion that “
the appeal would have a
reasonable prospect of success
”.
5.
The grounds for seeking leave to appeal are
straight forward. The accused was effectively convicted on the
evidence of the brother
of the deceased who testified that some two
and a half years after the incident the accused, who he never knew
before, approached
him and said he wanted to apologise for having
shot the witness’ younger brother as “
the
thing did not sit well with him”
.
The
witness claimed to have replied that the accused was apologising to
the wrong person and that he should apologise to their mother.
The
witness pointed the accused out at an identity parade held on 28 July
2009.
6.
The only other evidence tendered was of the
incident when the murder occurred. It was during a night vigil when
the deceased came
running into the room where the witness and
(according to the judgment) about 18 other people were. The deceased
shouted for help,
saying that “
he wants
to kill me…”.
The deceased then
hid under the coffin. The assailant entered the room, went up to the
deceased and shot him first behind the ear
and, as the deceased
turned, the next shot struck him in the back. The assailant then
fled. No one could identify him. A spent
cartridge was found at the
scene and the accused admitted in court that he did not have a valid
licence to possess a firearm. Once
identity is proven that would
suffice for the unlawful possession convictions.
7.
Although not argued I am prepared to accept for
present purposes that on the evidence, in its context the statement
amounted to
a confession as to an intentional killing and not just to
the shooting.
8.
Two points are taken by counsel on behalf of the
accused against the judgment of Hattingh J.
9.
The first is that as a matter of law, while the
court could only convict on the single evidence of a confession if
the requirements
of
s209
of the
Criminal Procedure Act 51 of 1977
were satisfied, the only other evidence which was that of the
shooting itself. Counsel argues that this is insufficient to trigger
the operation of the section because a link must still be established
between the accused to the murder scene.
10.
S
209
reads:
Conviction
may follow on confession by accused
An
accused may be convicted of any offence on the single evidence of a
confession by such accused that he committed the offence
in question,
if such confession is confirmed in a material respect or, where the
confession is not so confirmed, if the offence
is proved by evidence,
other than such confession, to have been actually committed.
11.
The last part of
s 209
(the alternative leg)
indicates that an accused need not be linked to the crime scene. It
is sufficient if the crime to which the
confession relates was
actually committed. In the present case there can be little doubt
that the confession to which reference
was made could only have been
to crime which took place at the night vigil on 23 July 2005- bearing
in mind that on the evidence
the deceased was the only brother
(of the witness) who had been killed by gunshot wounds.
12.
The next question is whether the evidence of the
witness to whom the confession was made was sufficiently satisfactory
to constitute
proof beyond reasonable doubt.
13.
Not only does the State rely on a confession made
out of the blue some two and a half years after the event but there
is no corroboration
of the meeting and although the evidence is that
of a single witness which, in terms of
s208
is sufficient for a
conviction a court must treat such evidence with caution. The fact
that it allegedly took place on 14 December
2008 which was a few days
before the rape offence was committed may simply be
coincidental, but it should be born in
mind that the accused
was arrested on 17 December and had previously been incarcerated for
another offence.
14.
The trial judge did not deal separately with the
credibility of the witnesses. It is however clear that the accused
was disbelieved,
and there can be no quarrel with that, in relation
to the rape charge; the court finding that his version was “
so
improbable that it simply cannot be accepted”.
The
evidence of the deceased’s brother, to whom the confession was
allegedly made, was accepted as satisfactory.
15.
It must be accepted that the accused was found to
be a liar in regard to the rape and this must colour the view a court
takes of
the rest of his evidence. One must still bear in mind that
unlike most cases, the accused was being tried before the same court
for two completely different offences separated by a number of years
and with no common witnesses. .
16.
Furthermore, unlike most cases, aside from
admitting to know the deceased there was no link between the accused,
the deceased and
the murder- save of course for the confession which
itself occurred in rather unique circumstances and took place a
number of years
after the incident. In addition it was made to a
person who was not asked to explain, by the State nor tested by the
accused, as
to how the police came to know about the incident for him
to be called to an ID parade.
The
witness’ explanation of effectively ignoring the accused, of
making no enquiries because the accused was brazen enough
to be
carrying two firearm in each hand in broad daylight in an area where
policemen apparently frequent may also raise questions,
while none of
the 24 persons who were at the night vigil were asked to attend
the ID parade let alone describe the assailant’s
build . The
figure of 18 in the judgment excluded those who were already
there.
[1]
The
first State witness confirmed that there was an incident between the
deceased and the assailant immediately before which was
known to
other people
[2]
yet no evidence
linked the accused to that incident which must have been known to
those in the community, yet no one identified
what the incident was
about or who the other person involved was. Sufficiency of evidence
in the circumstances of a case may, when
s209
is applied, relate as
much to the evidence led as to evidence not led by the State (bearing
in mind the nature of the onus and
where it lies) if no
satisfactory explanation is provided as to the non-availability of
witnesses. Furthermore a proper application
of
s209
, where the only
other testimony relates to the commission of an offence, may require
some other evidence, even if it is only
as to motive which
ordinarily would be irrelevant.
17.
The issue comes down to the sufficiency of
evidence and the pragmatic need to allow a court to make findings, as
it does, on the
evidence of an extra-curial confession made to a
member of the public. However, in this case, I am at a distinct
disadvantage coming
into the case at this stage without the advantage
of having observing the witnesses when they testified and without an
indication
from the judgment regarding their general demeanour. The
accused is entitled to the benefit if regard is had to the test which
is applied at the leave to appeal stage.
18.
The appeal will be referred to the Supreme Court
of Appeal as the facts of the case possibly take the confluence of
s
208
and
s 209
to the boundaries of acceptable testimony capable of
sustaining a conviction on a statement that may amount to a
confession.
The
facts of the case may also expose possible risks inherent in a simple
statement allegedly made by an accused which amounts to
a confession
being capable of receipt as evidence under the last part of
s 209
,
where there are few practical safeguards against manufactured
testimony and where consideration may be given to some additional
cautionary measures as mooted earlier.
The
case may also engage the question of what constitutes proof beyond a
reasonable doubt in respect of one of the charges where
credibility
findings in relation to a completely unrelated charge for a
completely unrelated offence may inadvertently influence
its outcome.
ORDER
19.
Leave to appeal is granted to the Supreme Court
of Appeal.
________________
SPILG J
_________________________________________________________________________
DATE OF
HEARING:
18 April 2018
DATE OF
JUDGMENT: 20 April
2018
FOR THE
ACCUSED:
Adv S Nobangule
Legal Aid Bureau
FOR THE
STATE:
Adv Serepo
Director of Public Prosecutions
[1]
Record p12 ll 10 to 16
[2]
Record p14 ll 12 to 15