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[2014] ZASCA 219
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Bamba v S (20089/14) [2014] ZASCA 219 (11 December 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 20089/14
In
the matter between:
THEMBANI
BAMBA
.......................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Bamba v S
(20089/14)
[2014] ZASCA 219
(11 December 2014)
Coram:
Shongwe and Swain JJA and Mocumie AJA
Heard:
27 November 2014
Delivered:
11 December 2014
Summary:
Criminal law and procedure –
circumstantial evidence – failure by the State to prove factual
link between exhibits allegedly
collected at scene and tested at
ballistics laboratory – utmost care required of police in
recovering, storing, recording
and conveying exhibits – duty on
prosecution to prove these elements.
ORDER
On
appeal from
Western Cape High Court,
Cape Town (Nyman AJ, (Louw J
concurring) sitting
as court of appeal);
1 Special leave to
appeal to this court against conviction is granted.
2 The appeal is
upheld.
3 The order of the
court a quo is set aside and substituted with the following:
‘
(a)
The appeal is upheld.
(b)
The order of the trial court is set aside and substituted with the
following
order:
“
The
accused is found not guilty and discharged”.’
JUDGMENT
Mocumie
AJA (Shongwe and Swain JJA concurring):
[1]
This is an appeal against the conviction coupled with an application
to lead further evidence. The appellant was charged in
the Wynberg
Regional Court with one count of murder. The State alleged that the
appellant shot and killed Ludwe Golotile (the deceased),
a 23 year
old young man, on 20 January 2007. The appellant was legally
represented at the trial and pleaded not guilty. In spite
of his plea
he was, however, convicted as charged and sentenced to 10 years’
imprisonment. Not satisfied with his conviction
and sentence, the
appellant thereafter appealed against both conviction and sentence to
the Western Cape High Court (Nyman AJ,
Louw J). On 3 September 2013,
the court a quo dismissed his appeal against the conviction, but
altered the trial court’s
finding that he possessed the
requisite intention to murder in the form of dolus directus to that
of dolus eventualis. As a result,
the court a quo remitted the matter
to the trial court for sentencing afresh. However, before this
process was completed, inexplicably,
the court a quo entertained and
granted an application by the appellant for leave to appeal to this
court against his conviction,
on 28 August 2013. By virtue of the
fact that the Superior Courts Act 10 of 2013 (the Act) repealed the
Supreme Court Act 59 of
1959, as at 23 August 2013, the court a quo
did not possess the requisite jurisdiction to do so. The special
leave of this court
was required.
[1]
Before us counsel for the appellant applied for special leave to
appeal on the ground that the prospects of success were so strong
that the refusal of leave would result in a manifest denial of
justice. For the reasons set out below, dealing with the merits
of
the appeal, the grant of special leave to appeal is justified.
[2]
I turn to the merits of the appeal. The appellant, Constable
Khunjulwa Koboni and Constable Lulamile Galela (Galela) together
with
a number of other policemen, were on crime prevention
operation/patrol duty in Samora Machel an informal settlement in
Nyanga
township, on the night in question. They came across a group
of people standing in the street who then scattered in different
directions
into shacks along the street. Some of the people in the
group threw rocks at the police. Galela testified that he lost sight
of
the appellant who had disappeared in amongst the shacks when he
heard a gunshot. He then met up with the appellant in between the
shacks and asked him whether he had fired a shot. The appellant
replied that he had not, but there was an individual hiding amongst
the shacks. They found this person seated behind one of the shacks.
The appellant searched him but found nothing. They then returned
to
the road where the truck they were travelling in was parked. As they
gathered with other police officers, Inspector Sebola,
the team
leader that night, asked them whether anyone of them had fired a
shot. They all replied that they had not and then continued
with
their patrol of the area.
[3]
Mr Mondi Golotile (Golotile), the brother of the deceased, stated
that he and the deceased had run away from the police into
different
directions when he heard a gunshot. Shortly thereafter he saw the
police coming from the direction the deceased had ran.
A neighbour,
Mr Themba Fondezi (Fondezi) told him that the police had shot his
brother. Fondezi stated that after he saw the deceased
run past his
shack he heard a gunshot. When he looked out of the door, he saw two
policemen walking in the direction the deceased
had ran. After the
police left, he went out of his shack and found the deceased seated
and he lifted the deceased’s head
and a bullet head fell from
the deceased’s shirt. The deceased then gave a gasp and passed
away, whereafter Golotile arrived
on the scene.
[4]
In his defence the appellant stated that he together with Galela had
followed some of these people in amongst the shacks. As
he entered
the shacks he heard a gunshot. Because it was dark he could not tell
from which direction the shot had come, he retreated
to an open area
to get to safety. Under cross-examination he stated that after he
heard the gunshot he saw a person sitting down
whom he thought was
drunk. He asked this person who he was but he received no response.
He did not search the person but instead
said to Galela they must
leave, which they did.
[5]
A report made later that night to the station commander of Nyanga
Police Station was that the deceased had been shot by the
police. All
the police officers who were on duty in that area were questioned and
their firearms and magazines were confiscated
by the operation
commander, Captain Stephen Brian McEvoy. The matter was then handed
over to the Independent Crime Directorate
(ICD)
[2]
the following day for further investigations, by principal
investigator Nkosiyedwa Booi (Booi).
[6]
Seven semi-automatic firearms and six magazines which had been
confiscated from the police officers concerned were handed to
Booi
which he placed in a safe at the ICD headquarters in Bellville. Booi
then visited the crime scene on 21 January, but did not
find
anything. He revisited the area on 22 January where he met Golotile,
who gave him a spent bullet which he referred to as a
’bullet
point’. Golotile also pointed out where the bullet head, which
Booi referred to as a ‘cartridge
case’, was located
as pointed out in photo A, on the photo of the scene, handed in as an
exhibit.
[7]
I turn to consider the manner in which Booi dealt with the exhibits
he received, which were to be taken for ballistic examination.
It
must be accepted that the object of the ballistic examination was to
ascertain whether the bullet head or cartridge was fired
from any of
the firearms belonging to the police officers concerned. The
appellant’s legal representative in the trial court
did not
challenge the conclusion made in the ballistic report that the
projectile (bullet head) and cartridge examined by ballistics
were
matched to the appellant’s firearm. What was challenged,
however, was the link between these exhibits and the scene
of the
crime and specifically the reliability of the evidence connecting the
projectile to the scene.
[8]
Booi said he took the ‘bullet point’ to his unit
headquarters at Bellville where he placed it in a safe and entered
it
in the ICD 1 register. He said it would have been placed in an
exhibit bag with a serial number but he could not remember the
number. He later identified a document as a copy of the ICD firearm
register and said that the number in respect of the firearms,
6
magazines and ’a projectile and a fired cartridge’
was ICD 46/2007 as well as Nyanga case number 52201/2007.
He then
repeated that ICD 46/2007 included ’a projectile and a fired
cartridge’. He said he placed the firearms in
one bag and ‘the
fired cartridge’ in a different smaller plastic bag. He took
these bags to the ballistic laboratory
for a ballistic comparison
between the firearms and the cartridge and the bullet head which
Golotile gave to him.
[9]
It is difficult to understand why Booi said he placed the cartridge
in a separate plastic bag to take to ballistic laboratory,
if he had
already placed it in an exhibit bag, when he placed it in the safe.
If this was not done, the real danger arises of confusion
with other
exhibits which may have been in the safe before. It is for this
reason that exhibits must be sealed in exhibit bags
with a specific
reference number for safekeeping. The unreliability of Booi’s
evidence concerning the preservation and conveyance
of the exhibits
to the ballistic laboratory is starkly illustrated when the
ballistics report is examined. This report was admitted
by the trial
court in terms of
s 212
of the
Criminal Procedure Act 51 of 1977
without calling the author. The relevant parts of this report read:
‘
On
2007-02-12 during the performance of my official duties I received a
sealed exhibit bag with number
ICD-10230
marked inter alia “NYANGA CAS 522\01\07,” “07WC 70”
from Case Administration of the Ballistic Section,
containing the
following exhibits:
3.6 One (1) 9mm
Parabellum calibre Republic Arms RAP401 semi-automatic pistol, serial
number R 04275.
3.9 One (1) 9 mm
Parabellum calibre Republic fired cartridge case, marked by me
“13556/07 A”.
3.10 One (1) 9mm
calibre fired bullet, marked by me “13556/07 B”.
8.1
There is sufficient agreement of class characteristics and individual
characteristics, therefore the bullet and cartridge case
mentioned in
paragraph 3.9 and 3.10 were fired from/in the firearm mentioned in
paragraph 3.6…’ (My own emphasis).
The
report patently makes no reference to ICD 46/2007. In addition
contrary to Booi’s evidence there was no separate bag for
the
projectile and cartridge. When the disparity between the ICD numbers
was brought to the attention of counsel who appeared for
the State,
she fairly and properly conceded that no reliance could be placed
upon the ballistic evidence.
[10]
On the facts of this case this evidence was crucial in establishing
the guilt of the accused beyond a reasonable doubt. In
this regard,
the trial court erroneously concluded that it was common cause that
‘the fired bullet as well as the fired cartridge
found at the
scene were linked to and proved to have been fired by a firearm which
had been issued to the accused by the South
African Police’.
The court a quo simply stated that ‘a spent bullet head and
cartridge that were allegedly found in
the vicinity of the shooting,
were handed to the investigating officer. Ballistic evidence linked
the bullet head and cartridge
to the appellant’s firearm’.
It did not, however, consider the reliability of the evidence to
prove that these were
the same exhibits which were subjected to
ballistic testing.
[11]
I turn to consider the remaining evidence led by the state. None of
the witnesses saw the appellant or any police officer shoot
the
deceased. Although the appellant did not dispute that he was in the
vicinity where the deceased was found shot, he denied that
he had
discharged his firearm that night. He maintained that when he
surrendered his firearm and magazine at the end of the operation,
his
firearm still contained its full complement of ammunition issued to
him prior to the operation. As is evidenced from the record,
there is
no direct evidence to gainsay his version.
[12]
In rejecting the appellant’s denial that he was the person who
shot the deceased, the trial court relied mainly
─ if not
exclusively ─ on the results of the ballistic examination,
concluding that the fired bullet head which
killed the
deceased, as well as the cartridge case were fired from the
appellant’s firearm. The trial court also made a finding
that
the only reasonable inference that could be drawn from the
established and proven facts was that the person who fired the
shot
at the scene caused the death of the deceased; and that it was the
appellant who fired this shot. The trial court also accepted
the
evidence of Golotile that he found the projectile and the cartridge
at the scene of crime. It surmised that it would have been
impossible
for Golotile to have found the cartridge and projectile from anywhere
else unless he had access to the appellant’s
firearm. For the
reasons set out above, the trial court erred in concluding that the
link between the exhibits subjected to ballistic
testing and those
allegedly found at the scene, had been established.
[13]
What happened on the night in question is common cause. What is in
issue is who shot and killed the deceased. The crux of the
matter is
then about drawing a reasonable inference from the proven facts. In
R
v Blom
[3]
this court observed:
‘
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1) The inference
sought to be drawn must be consistent with all the proved facts. If
it is not, the inference cannot be drawn.
(2) The proved facts
should be such that they exclude every reasonable inference from them
save the one sought to be drawn. If they
do not exclude other
reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.’
[14]
Applying the test to the facts of this case, in the absence of the
ballistic evidence linking the appellant’s firearm
to the
bullet head and fired cartridge allegedly found at the scene, in
substance,
the inference that the trial
court sought to draw was not the only inference to be drawn from the
proven facts.
[15]
It is trite that the prosecution must prove its case beyond a
reasonable doubt. Equally trite is the observation that, in view
of
this standard of proof in a criminal case, a court does not have to
be convinced that every detail of an accused’s version
is true.
If the accused’s version is reasonably possibly true, in
substance, the court must decide the matter on the acceptance
of that
version.
[4]
For the reasons set
out above the appellant’s version is reasonably possibly true.
Simply put, a reasonable doubt exists
as to the appellant’s
guilt and the appellant must be afforded the benefit of that doubt
[16]
This brings me to the application by the appellant for the matter to
be remitted to the trial court for the hearing of further
evidence.
After counsel for the State conceded that no reliance could be placed
upon the ballistic evidence, counsel for the appellant
abandoned the
application. This was because the further evidence was aimed at
establishing that the appellant had in the past fired
several warning
shots in the informal settlement, to explain the alleged presence of
the bullet head and cartridge at the scene.
[17]
Lastly, what this case illustrates is that the utmost care must be
taken by the police particularly investigating officers
in the
recovery, storing, recording and conveying of ballistic exhibits
which is to be subjected to ballistic examination. In addition,
the
state must ensure that the requisite evidence to prove these
requirements is led. This is to avoid material discrepancies seen
throughout the entire proceedings in the trial court.
[18]
In the light of the conclusion I have reached, the appeal ought to
succeed.
[19]
In the result, the following order is granted:
1 Special leave to
appeal to this court against conviction is granted.
2 The appeal is
upheld.
3 The order of the
court a quo is set aside and substituted with the following:
‘
(a)
The appeal is upheld.
(b)
The order of the trial court is set aside and substituted with the
following
order:
“
The
accused is found not guilty and discharged”.’
________________________
B
C MOCUMIE
ACTING
JUDGE OF APPEAL
Appearances
For
the Appellant: P V Higgo
Instructed by:
Parker & Khan
Inc, Lansdowne
E
G Cooper Majiedt Inc, Bloemfontein
For
the Respondent: Ms M Engelbrecht
Instructed by:
The Director of
Public Prosecutions, Cape Town
The
Director of Public Prosecutions, Bloemfontein
[1]
Van
Wyk v The State
(20273/2014) and
Galela
v The State
(20448/2014)
[2014] ZASCA 152
(22 September 2014).
[2]
Independent
Crime Directorate is now known as the Independent Police
Investigative Directorate (IPID).
[3]
R
v Blom
1939
AD 188
at 202-203.
[4]
S
v Shackell
2001
(4) All SA 279
(A).