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[2014] ZASCA 161
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Maliga v S (543/2013) [2014] ZASCA 161; 2015 (2) SACR 202 (SCA) (1 October 2014)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 543/2013
Reportable
In
the matter between:
TAKALANI
DAVID
MALIGA
.........................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Maliga v The State
(543/13)
[2014] ZASCA 161
(01 October 2014).
Coram:
Bosielo, Pillay JJA et Schoeman AJA
Heard:
11 September 2014
Delivered:
01 October 2014
Summary:
Murder – Inadmissible statements
admitted – Relied upon to dismiss application for discharge
after State’s case
closed – Appellant lured into
testifying because of that – Convicted – But for
inadmissible statements application
for discharge ought to have been
granted – Conviction and sentence set aside.
Trial
– Without forgoing objectivity, presiding officers are obliged
to manage proceedings in order to achieve a fair and
just conclusion
– S 35 of the Constitution of South Africa, 1996 obliges all
officers of the court to contribute to the proper
administration of
justice – Presiding officer obliged to discharge an accused
before he testifies if State has not made out
a prima facie case for
him to answer, whether represented or not.
ORDER
On
appeal from:
Limpopo High Court, Thohoyandou (Lukoto J sitting as
court of first instance)
1
The appeal is allowed and the conviction and sentence set aside.
2
The registrar of this court is directed to send a copy of this
judgment to:
(a)
The National Director of Public Prosecutions, Pretoria;
(b)
The Director of Public Prosecutions, Thohoyandou; and
(c)
Legal Aid South Africa, Thohoyandou.
JUDGMENT
Pillay
JA (Bosielo JA and Schoeman AJA Concurring)
[1]
The appellant and Eunice Matodzi Maliga (the deceased) were husband
and wife. On 18 February 2000, at about 9 am, the deceased
was
fatally wounded by a gunshot during a domestic argument between the
two of them. They were alone at their home at Tshino Residential
Area, in the District of Vuwani. The appellant was subsequently
charged with murder in the High Court of South Africa, Venda
Provincial
Division on 19 January 2000, before Lukoto J. He was
convicted of murder and sentenced to 48 years’ imprisonment.
The appeal
is with the leave of the court below and is directed at
both conviction and sentence.
[2]
At the time of the incident, the appellant had been employed by the
South African National Defence Force for approximately 10
years. He
was stationed at Potchefstroom under 12 SAI Battalion. He used to
commute home regularly. There had been tension between
them over some
period relating to the appellant’s suspicions as to the
legitimacy of their last born child and also maintenance
for the
deceased and the children. On 17 February 2000, the appellant arrived
home earlier than anticipated. The next morning an
argument
concerning their problems ensued during which the deceased sustained
a fatal gunshot wound.
[3]
The appellant was charged with her murder and pleaded not guilty. His
legal representative tendered a plea explanation in terms
of s 115 of
the Criminal Procedure Act 51 of 1977 (the Act). Briefly, he stated
that in an attempt to relieve her of possession
of his firearm which
she had taken from him, a struggle ensued during which a shot was
discharged as a result of which the deceased
died.
[4]
The State called approximately nine witnesses. Having perused the
record, it is in my view, not necessary to deal with their
evidence
extensively as it does not implicate the appellant and in the light
of the approach adopted in this appeal.
[5]
Ndulafe Matamela testified that she heard a female calling for help
and screaming that she was dying. The call came from the
appellant’s
home and she proceeded towards it. Before she got there she heard a
gunshot. She then went to call the police.
[6]
Kelvin Thambulani Maliga, the appellant’s brother, testified
that he had earlier visited the appellant and on his way
back there
later that morning, he overheard talk in the street about a shooting
at the appellant’s home. He went there and
met the appellant
who told him a gunshot had been discharged. Shortly after he left the
appellant, he approached the police who
asked him what had happened.
He directed them to the appellant’s home.
[7]
The investigating officer, Sergeant Tshiwane, testified that on 18
February 2000, after receiving a report, he went to the appellant’s
home in the company of Sergeant Mudau. On their arrival, they met
Kelvin Maliga outside. Kelvin allegedly reported to them that
the
appellant had said that he had shot the deceased. They then went to
the appellant’s home and Mudau asked him what had
happened. He
allegedly responded that he had shot his wife during an argument. The
appellant was then arrested. Their search of
the inside of the house
produced a single empty cartridge. The State also called Inspector
Shabane Mudau. He confirmed most of
what Sergeant Tshiwane had
testified. He added that he thought that the appellant would escape
and since he did not have handcuffs,
he bound the appellant with wire
and rope on arresting him and took him to the police station.
[8]
Inspector Shadrack Freddy Masiwelele testified that a day or two
after the appellant’s arrest, he asked the appellant
if he
could take down a warning statement from him. He said that he had
with him a set of the usual documents required for recording
a
warning statement. It contained certain formal questions to be asked
of the deponent and provision for the responses thereto
prior to
dealing with the actual body of the proposed statement. Inspector
Masiwelele testified that the appellant then willingly
made a
statement about how his wife had died. These formalities are designed
to generally protect the rights of the deponent, including
his or her
constitutional rights in particular against self-incrimination. I
will refer to these presently.
[9]
Mr Poodhun who appeared for the State in the trial sought to have the
statement admitted as evidence in the court below. The
document,
headed ‘warning statement’ was admitted provisionally as
a warning statement and marked Exhibit ‘D’.
It is
necessary however to refer to important aspects in exhibit ‘D’.
[10]
Firstly, one of the formal questions read together with the
appellant’s answer thereto is as follows:
‘
2.3
Question: You have the right to be assisted by a legal representative
of your choice. Do you wish to exercise this right, and
would you
like to contact him? Who is this person?
Answer:
To be represented by the lawyers from Law Clinic.’
It
is clear from paragraph 2.3 of the statement that the appellant,
after being alerted to his right to representation had elected
to be
represented by a ‘lawyer from the law clinic’. This was
in compliance with s 35 of the Constitution of the Republic
of South
Africa, 1996 (the Constitution). This request was ignored and
Masiwelele proceeded to take down a confession whilst the
appellant
was unrepresented. This in itself would render the statement
inadmissible.
Secondly,
in the body of the statement, the appellant allegedly stated:
‘
When
I came back home I enquired from her about the way in which the money
was . . . There was no sufficient the (sic) information
received from
her.
Since
that she could not even respect me and that I could see that she was
having an extra marital status with [another] man I then
became
aggressive and produced my personal firearm and shot her once on her
person. I noticed that she was left in a pool of blood.’
This
latter quote from the body of the statement is clearly an unambiguous
admission of guilt to the charge and is therefore a confession
as
envisaged by s 217(1)
(a)
of the Act.
[11]
The State then closed its case after which the appellant brought an
application in terms of s 174 of the Act for his discharge.
The
application was dismissed on the basis of what was stated in the
appellant’s plea explanation; what he allegedly said
to the
policeman when he was arrested; on the evidence of Matamela to the
effect that the deceased was saying that she was dying
and that she
thereafter heard a shot from the house and finally the contents of
what Lukoto J referred to as a statement to which
the appellant
deposed to freely and voluntarily.
[12]
The evidence of Tshiwane and Mudau that the appellant had shot his
wife during an argument was illicited by them without warning
him of
his constitutional rights as envisaged in s 35 of the Constitution.
It is therefore inadmissible. Also whatever Kelvin said
to them
regarding what the appellant might have said to him about the
latter’s alleged utterances is rendered inadmissible
because
Kelvin did not confirm that under oath. Furthermore s 217(1)
(a)
stipulates that a confession made to a peace officer other than to
one referred to in s 334 (a commissioned officer), shall not
be
admissible, unless confirmed and reduced to writing in the presence
of a magistrate or justice. His confession was not confirmed
or
reduced to writing in the presence of a magistrate or justice and is
simply inadmissible on that ground alone.
[13]
When the appeal was heard, counsel for the State was asked whether
the court below was correct, given the quality of the evidence
of the
State to refuse the s 174 application. Specifically he was also asked
whether the court below was correct in admitting into
evidence the
statements by the appellant to Masiwelele and to the policemen who
arrested him.
[14]
In response, Mr Poodhun who appeared in the appeal as well, conceded
the following:
(i)
The statement, though seemingly not considered in finding the
appellant guilty, was in fact a confession and was clearly, on
the
face of it, inadmissible because it was made to a non-commissioned
officer;
(ii)
Whatever was said to the policemen by the appellant at the time of
his arrest was also not admissible;
(iii)
That in the circumstances, the appellant could possibly have been
snared into testifying, and but for evidence in the statements,
the
State had not produced evidence to prove his guilt beyond reasonable
doubt.
[15]
The law regarding the admissibility of a confession seems to have
escaped the trial judge and as a result an inadmissible confession
and inadmissible statements made to the arresting officers were
admitted into evidence. This failure to rule the aforementioned
statements inadmissible constituted a serious irregularity and this
leaves this court at large to deal with the matter as the court
below
should have.
[16]
South African criminal law has traditionally incorporated the notions
of fairness and justice though it was qualified from
time to time.
However since the advent of a democratic dispensation, the right to a
fair and just trial has been enshrined in the
Constitution – s
35(3) (and its predecessor). In
S v Zuma
[1995] ZACC 1
;
1995 (1) SACR 568
(CC), at para 16, Kentridge AJ (as he then was) said:
‘
The
right to a fair trial conferred by that provision is broader than the
list of specific rights set out in paras
(a)
to
(j)
of
the subsection. It embraces a concept of substantive fairness which
is not to be equated with what might have passed muster
in our
criminal courts before the Constitution came into force. In
S
v Rudman and Another; S v Mthwana
1992
(1) SA 343
(A), the Appellate Division, while not decrying the
importance of fairness in criminal proceedings, held that the
function of a
Court of criminal appeal in South Africa was to enquire
“
whether
there has been an irregularity or illegality, that is a departure
from the formalities, rules and principles of procedure
according to
which our law requires a criminal trial to be initiated or
conducted.”
A
Court of appeal, it was said (at 377)
“
does
not enquire whether the trial was fair in accordance with "notions
of basic fairness and justice", or with the "ideas
underlying the concept of justice which are the basis of all
civilised systems of criminal administration.”
That
was an authoritative statement of the law before 27 April 1994. Since
that date s 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 appeals to give content to those notions.’
[1]
(See also
S
v Khan
1997 (2) SACR 611
(SCA).)
[17]
In
Key v Attorney-General, Cape Provincial Division
[1996] ZACC 25
;
1996 (4)
SA 187
(CC) para 13, the following was stated:
‘
In
any democratic criminal justice system there is a tension between, on
the one hand, the public interest in bringing criminals
to book and,
on the other, the equally great public interest in ensuring that
justice is manifestly done to all, even those suspected
of conduct
which would put them beyond the pale. To be sure, a prominent feature
of that tension is the universal and unceasing
endeavour by
international human rights bodies, enlightened legislatures and
courts to prevent or curtail excessive zeal by State
agencies in the
prevention, investigation or prosecution of crime. But none of that
means sympathy for crime and its perpetrators.
Nor does it mean a
predilection for technical niceties and ingenious legal stratagems.
What the Constitution demands is that the
accused be given a fair
trial.’
[18]
This court, in dealing with a similar situation In
S v Legote
2001
(2) SACR 179
(SCA) held at 184d-i that the court, without
compromising objectivity, has a duty to manage a criminal trial
within the law governing
criminal procedure. For example, the court
has a duty to ensure that the accused is properly defended and that
his or her constitutional
rights are not negatively affected either
by commission or omission. If at the end of the State’s case,
the State has not
made out a prima facie case, in other words there
is nothing for the accused to answer, the presiding officer must
raise this question
mero motu, especially in the absence of an
application for discharge. It seems that this duty is not dependent
on whether the accused
is represented or not. See:
R v Hepworth
1928 AD 265
at 277.
[19]
Section 35(3) of the Constitution compels presiding officers and
indeed all officers of the court to play a role during the
course of
a trial in order to achieve a fair and just outcome. As was said in
Hepworth
at 277 (supra) ‘
a
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
judge's position in a criminal trial is not merely that of an umpire
to see that the rules of the game are observed
’. A
judge’s role is to see that justice is done. Assuming that the
learned judge in the court below had for some reason
indeed been
mistaken or neglected to rule these statements inadmissible, there
are others who could and should have ‘reminded’
him of
the dangers involved in admitting certain evidence. This is what was
expected of both the prosecutor and the defence representative.
[20]
It is unclear and indeed perplexing that the appellant’s
representative did not object to the admission of the written
statement and the other evidence which also amounted to inadmissible
evidence. Even more important is the role of the prosecutor.
A
prosecutor stands in a special position in relation to the court. The
paramount duty of a prosecutor is not to procure a conviction
but to
assist the court in ascertaining the truth. (
S v Jija
1991 (2)
SA 52
ECD at 67J-68A). Implicit herein is the prosecutor’s role
in assisting a court to ascertain the truth and dispense with
justice.
This, not surprisingly, gels with the stringent ethical
rules by which all legal representatives have to conduct themselves
in
their professional lives.
[21]
In this case, the prosecutor was duty bound to alert the presiding
officer of the possible dangers which were lurking in admitting
the
warning statement. The prosecutor who was the only person likely to
know exactly what evidence he was about to place before
court ought
to have at least sought a ruling on the admissibility of the warning
statement and the statement allegedly made by
the appellant to the
policemen who arrested him. The written statement, as he himself now
concedes, is a confession. It could not
have been admitted for lack
of compliance with legal formalities. If the prosecutor was intent on
having such evidence admitted,
at the very least he should have
requested a trial-within-a-trial in order to determine the
admissibility of the warning statement.
The same can be said about
the evidence by the policemen who arrested the appellant. It must
however be said that it is difficult
to understand how anyone could
mistake what is clearly a confession for a warning statement. The
prosecutor failed in his duty.
Had the proper procedure in regard to
the admissibility of these statements been followed, the scenario
which the appellant faced
would have been quite different as
conceded. But for these inadmissible statements, there would be no
case for the appellant to
answer.
[22]
Faced with this evidence, the appellant was clearly lured into
testifying and consequently he did not receive a fair trial
as
enshrined by s 35 of the Constitution. Absent the inadmissible
evidence he ought to have succeeded in his application for discharge
after the State’s case. The conviction therefore falls to be
set aside. It follows that the sentence should also be set aside.
[23]
The tragedy in this specific matter is that a person who ought to
have been discharged after the State’s case in 2002
is now free
– some 12 years on. There was no explanation offered for this
delay when the parties were asked about it. One
can only imagine the
disastrous effects on his life. It emphasises the need for the
administration of justice, especially from
the area over which the
Venda High Court has jurisdiction, to be vastly improved as quickly
as possible. This is not the first
time that this court has found it
necessary to comment on these problems and their effects on the lives
of ordinary South Africans
in that region.
[24]
In the result, the following order is made:
1
The appeal is allowed and the conviction and sentence set aside.
2.
The registrar of this court is directed to send a copy of this
judgment to;
(a)
The National Director of Public Prosecutions, Pretoria;
(b)
The Director of Public Prosecutions, Thohoyandou; and
(c)
Legal Aid South Africa, Thohoyandou.
R
PILLAY
JUDGE
OF APPEAL
APPEARANCES:
FOR
APPELLANT: Mr A L Thomu
Instructed
by:
Legal
Aid South Africa, Thohoyandou
Legal
Aid South Africa, Bloemfontein
FOR
RESPONDENT: Mr A I S Poodhun
Instructed
by:
The
National Director of Public Prosecutions, Thohoyandou
The
National Director of Public Prosecutions, Bloemfontein
[1]
Section
25(3) was contained in the Interim Constitution of 1993. The
equivalent section is now to be found in s 35 of the Constitution.