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[2014] ZASCA 45
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Tshakwata and Another v S (522/13) [2014] ZASCA 45 (31 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 522/13
Not Reportable
In
the matter between:
TSHAKWATA
GERSON
..............................................................................
FIRST
APPELLANT
MATORO
NTHATHENI
COLBERT
.....................................................
SECOND
APPELLANT
and
THE
STATE
...........................................................................................................
RESPONDENT
Neutral
citation:
Tshakwata v The State
(522/13)
[2014] ZASCA 45
(31 March
2014)
Coram:
Navsa, Theron and Petse JJA
Heard:
5 March 2014
Delivered:
31 March 2014
Summary:
Appeal against conviction and sentence on charge of murder. ─
Hearsay evidence ─ statements made by two co-accused
to a
magistrate ─ not admissible ─ statements in any event in
conflict. ─ Evidence insufficient to sustain a
conviction.
ORDER
On
appeal from:
Limpopo High Court, Thohoyandou (Makgoba J sitting as court of first
instance):
The
appeal is upheld and both the convictions and resultant sentences are
set aside.
JUDGMENT
Petse
JA (Navsa and Theron JJA concurring):
[1]
The two appellants ─ together with four others who do not
feature in this appeal ─ were convicted in the Limpopo
High
Court (Makgoba J) on one count of murder. Each was subsequently
sentenced to imprisonment for life. They each appeal against
their
convictions and resultant sentences with leave of the high court
(Ebersohn AJ).
[2]
The appellants who were accused 5 and 6 at the trial (and their four
co-accused) pleaded not guilty and elected not to disclose
the basis
of their defence. The death of the deceased was not in dispute. It
appears that her death was as a result of a ritual
killing. This is
evident from the extreme mutilation of the body. What was in issue
was the identity of the persons who caused
her death. Several
witnesses were called to testify on behalf of the State. None gave
evidence directly implicating the appellants.
During the course of
the State’s case the State sought to tender evidence of the
statements alleged to have been made by
accused 3 and 4 which, inter
alia, it was submitted, incriminated the appellants. The State also
sought to tender evidence relating
to pointings out that accused 3
and 4 were alleged to have made. The admissibility of those
statements and the pointings out was
contested by the affected
accused on the grounds that they were not made freely and
voluntarily. Consequently a trial-within-a-trial
was held to
determine their admissibility.
[3]
At the conclusion of the trial-within-a-trial the high court ruled
that the statements were admissible. Following the admission
of the
statements the State called two more witnesses, Mr Mutshelembele, who
was employed at Mutale in the Environmental Affairs
Division and
Captain Mphaphuli, the Investigating Officer. The evidence of
Mutshelembele was in substance aimed at discounting
any possibility
that the deceased might have been killed by a crocodile. As to the
evidence of the investigating officer, the State
sought to establish
that the appellants were some of the persons implicated in the
statements made by accused 3 and 4.
[4]
The admissible evidence tendered at the trial by the State was
briefly to the following effect. On 16 January 2001 the accused
were,
at different stages during the day, seen at the homestead of Ms Maria
Thivhuleli Ndou at Tshikundamalema drinking traditional
beer. Accused
1 and 2 were in the company of the deceased. Later in the day the
appellants and accused 3 and 4 who had been drinking
together left. I
pause to record that accused 3 was married to the deceased. Before
sunset accused 1 departed and shortly thereafter
accused 2 and the
deceased who had been drinking together also left. On 18 January
2001, Mr Josias Corombi Radzilani, then residing
at Tshikundamalema,
discovered the deceased’s body floating in a puddle of water
next to a river and summoned the police
who retrieved the body which
was subsequently identified by accused 3’s elder brother. On 24
January 2001 Doctor Akut conducted
a post-mortem examination on the
body of the deceased but was unable to determine the cause of death
because of the body’s
advanced state of decomposition and
because of the number of major organs that were missing.
[5]
As alluded to above, accused 3 and 4 made statements, the former to a
magistrate at Mutale and the latter both to a magistrate
at Mutale
and to Captain Mphaphuli. In his statement accused 3, inter alia,
said that on 16 January 2001 he left his home in search
of his wife,
the deceased, when told that the deceased had gone to the bar. When
he arrived at the bar he did not find the deceased
but remained there
drinking liquor until 17h00. Thereafter he left to return home with
accused 4 but discovered on arrival that
the deceased was still not
at home. He then went to Murangwe where he drank more liquor together
with accused 4. Later he left
with accused 4 and when they reached a
river they found the appellants drinking. He was called by accused 1
and then instructed
(he does not state by whom) to blindfold accused
4. He then heard a loud bang after which there was silence. He and
accused 4 left
the scene to return home to sleep. This statement is
meaningless in that it does not connect any of the appellants with
the killing
of the deceased. Indeed it does not connect anyone of
them to any wrongdoing.
[6]
In his statement, accused 4 starts off by saying that he ‘admits
that he directly participated in the killing of the deceased
Vho-Mudangawe’, which, on the face of it appears to be a
confession to participating in a killing. However, later in the
statement he says the following:
‘
[l]
complied under duress or coercion. I have never seen or witness as to
what was being done to the deceased since my eyes were
closed or
shut.’
[7]
It is noteworthy that, in the statement, there is reference only by
surname to individuals who were involved in ‘grabbing’
a
deceased who is named in the terse manner described in para 6 above.
The surname of accused 3 does not appear in the statement.
[8]
In order to overcome the obvious problem relating to the
identification of participants, the State resorted to calling the
investigating officer to explain who accused 4 was referring to in
his statement. The investigating officer testified that accused
4 was
referring to all the accused. There was no basis for permitting the
investigating officer to do so.
[9]
All six accused did not testify at the trial. The high court placed
much store on the fact that the appellants (and their erstwhile
co-accused) did not testify in their defence. It held that the
consequence of such failure was that the State’s case against
them remained unchallenged. Consequently, the high court concluded
that nothing militated against the acceptance of such evidence
more
particularly having regard to the statements made by accused 3 and 4.
[10]
Whilst the failure of the accused to testify may in appropriate
circumstances be a factor in deciding whether their guilt has
been
proved beyond a reasonable doubt by the State, this is permissible
only when the State has at least established a prima facie
case. (See
eg
S v Francis
1991 (1) SACR 198
(A) at 203f-i.) In this case the State’s case
came nowhere near establishing a prima facie case against the
appellants. Thus
there was no need for the appellants to lead any
evidence in rebuttal. See eg
S v
Chabalala
2003 (1) SACR 134
(SCA) para
21. Accordingly the failure of the appellants to testify at the trial
did not avail the State in discharging the onus
resting upon it.
[11]
If indeed the statement by accused 4 was a confession, as it
purported to be, it was not, in terms of s 219 of the Criminal
Procedure Act 51 of 1997, admissible against anyone other than
himself. The problem, however, is that the statement ultimately
exonerates him and it is unclear who was named therein and, indeed,
it is difficult to establish what those ‘named’
actually
did. There was no application or ruling in terms of
s 3(1)
of the
Law
of Evidence Amendment Act 45 of 1988
to have the statements admitted
on any other basis. That they were admissible at all is highly
questionable. In any event, as demonstrated
above, they are virtually
meaningless and do not contribute to the State’s case.
Consequently, it is clear that the State
failed to prove the guilt of
the appellants beyond a reasonable doubt.
[12]
Faced with the foregoing insurmountable hurdles counsel for the State
was constrained to concede that the conviction of the
appellants is
plainly insupportable.
[13]
Accordingly the appeal is upheld and both convictions and resultant
sentences are set aside.
X M PETSE
JUDGE OF APPEAL
APPEARANCES:
For
the Appellants:M J Manhwadu
Instructed
by:
Justice
Centre, Thohoyandou
Justice
Centre, Bloemfontein
For
the Respondent: R J Makhera
Instructed
by:
Director
of Public Prosecutions, Thohoyandou
Director
of Public Prosecutions, Bloemfontein