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[2013] ZASCA 121
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Managa and Others v S (118/13) [2013] ZASCA 121 (20 September 2013)
NOT REPORTABLE
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
118/13
In the matter between:
KEVIN NDIVHUWO MANAGA
........................................................
FIRST
APPELLANT
GODFREY MATHEBULA
...........................................................
SECOND
APPELLANT
RODNEY NETSHISAULU
...............................................................
THIRD
APPELLANT
and
THE STATE
..............................................................................................
RESPONDENT
Neutral citation:
Managa & 2 others v The State
(118/13)
[2013]
ZASCA
121
(20 September 2013)
Coram:
Ponnan,
Malan, Tshiqi and Petse JJA and Zondi AJA
Heard: 26 August 2013
Delivered: 20
September 2013
Summary: Evidence –
sufficiency of – evidence adduced by the State insufficient to
found a conviction.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
High Court, Limpopo (Lukoto J sitting as the court of first instance)
The appeal of all three
appellants is upheld.
The convictions of each
of the appellants and the sentences imposed pursuant thereto are set
aside.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TSHIQI JA (PONNAN,
MALAN AND PETSE JJA AND ZONDI AJA CONCURRING):
The first and third
appellants were indicted in the Limpopo High Court, Thohoyandou on
seven charges, being: count 1 - robbery
with aggravating
circumstances; count 2 - attempted murder; count 3 - robbery with
aggravating circumstances; count 4 - attempted
murder; count 5 -
theft; count 6 - unlawful possession of a firearm; and count 7 -
unlawful possession of ammunition. The second
appellant was indicted
on counts 3 to 7. All three pleaded not guilty before Lukoto J. They
were all acquitted on counts 6 and
7 and convicted on the remaining
counts as charged. They now appeal to this court, with the leave of
the trial court (per Ebersohn
AJ).
The first two counts
relate to an armed robbery and attempted murder at the Shayadima
Satellite Police Station in Thohoyandou.
It was alleged by the
State, in respect of those counts, that on 22 December 2000 the
first two appellants as part of what appears
to have been a group of
four, dispossessed Inspector Phalo, who was then on duty, of his
fire-arm and ammunition and further
during the course of
perpetrating that robbery that the appellants, shot at the said
Inspector Phalo thereby attempting to kill
him. In respect of counts
3 and 4, the State alleged that on 24 December 2000, the
appellants robbed Mr Yunus Patel, the
proprietor of the Manamani
Supermarket in Thohoyandou of R3000 and further that during the
course of that robbery they made an
attempt on his life by shooting
at him. Thereafter, and whilst still in the vicinity of Manamani
Supermarket, the appellants
stole a bicycle from one Sedzuluwani
Nebonde. That theft formed the subject of count 5.
During the course of his
evidence relating to counts 1 and 2, Inspector Phalo testified that:
'The court would like to know who
these two men were? --- I was told about their names while I was in
the hospital. They told me
that they had arrested Kevin Managa and
Godfrey Mathevula.
Inspector Phalo, are these two people
in court today? --- Yes, I believe they are here because I am also
here.
Can you point them out to the court?
--- I can point to them, but I might lie to the court, because I
first know them while I was
in court.
Can you just point them out to the
court? --- The first one is the one who is wearing a jacket. The
second one is the one who is
wearing a yellow t-shirt, the one in the
middle.
I gather or let me put it to you this
way, on the evening of the 22
nd
was the time that the two
men approached the door and shot you, was that time the first time
you had seen the two that evening?
--- While I already reported to
work at around past 19:00 they came at around 19:00.
. . . .
The shot that hit you when the two
people visited the satellite station, can you tell the court where
the bullet came from? ---
I cannot say who shot me because my aim was
that I was going to help them, because that is what they said when
they came that they
were looking for my assistance.'
There was thus no
reliable direct evidence implicating the first and third appellants
in counts 1 and 2. The same was true of
counts 3 and 4. Mr Patel
testified that:
‘
Yes, but
when they …, when they came out of the shop, at that stage did
you … were you able to recognise any of the
three people? ---
(Your lordship, he says when the shootout, his body got bullet wounds
and then he was falling down on the floor,
he does not recognise any
persons).'
And the evidence of Ms
Joyce Silima, Mr Patel’s shop assistant, went thus:
'Now let's proceed to paragraph 6 of
your statement: You said "I cannot be able to give the
descriptions of those four culprits
or to identify them, as by then I
was not aware that they are criminals”.
Now in your evidence in chief you said
… (intervenes).
Is that what you wrote in your
statement? --- Yes my Lord. Yes.
But now in your evidence in chief you
were quick to say the three accused persons who are before Court
today are the ones who were
at that scene and you could recognise
them. Now the question is, you said that the reason why you said that
is it because they
are the only accused persons before Court now? ---
Yes my Lord.'
The identification
evidence of Mr Nebonde in support of count 5 was not any better. He
testified:
'I said I could not recognise that
person because on my arrival there, there were many people who were
involved with assaulting
those people or those victims. That is the
reason which made me to fail to recognise those people.
. . . .
What I can tell the court that I was
sitting in the front seat and those people were full of blood and
that is the only reason for
me to fail or to recognise them properly.
. . . .
I cannot because I have already
explained or alluded to this court that on my arrival there I found
that those people were already
lying down and they were being
assaulted.
. . . .
So you cannot safely say exactly who
took the bicycle from your possession? --- Correct.'
Thus in respect of all
of the charges that had been proffered against the appellants there
was no direct evidence implicating
any of them. In addition, the
State case rested; in so far as the first appellant was concerned on
a warning statement that he
had allegedly made to a Captain
Ramukhadi and a pointing out to a Captain Mutsila; and, in respect
of the third appellant on
a statement that he had allegedly made to
an Inspector Shonisani.
In granting leave to the
appellants to appeal to this court Ebersohn AJ recorded:
‘
When hearing
the application the court pointed out to both counsel that
inadmissible statements by the accused were admitted in
evidence by
Lukoto J and other irregularities which were also committed by the
late Lukoto J. Mr Poodhun who appeared for the State
conceded the
irregularities, pointed out other irregularities too and he conceded
that the convictions and imposed sentences of
all the accused could
not stand in view of the fatal irregularities.’
What Ebersohn AJ
appeared to have in mind was, inter alia, the following evidence:
(a) Inspector Shonisani
stated:
'Did you ascertain whether this
assault had any influence in his making a statement or answering
questions that you put to him?
--- No.
. . . .
When you explained his right against
self-incrimination did you also take down the answer? --- No, I did
not.
When you explained his right to legal
representation, did you also take the answer down? --- I did not.
As you were informed of what he says
will be used as evidence against him, did he also still give you the
permission to take it
down? --- Yes, he did.
Did you write it down? --- I did not.
But now tell the court, how does the
honourable court know for sure that that is exactly what you said if
you did not take those
answers down? --- I have taken an oath when I
started my evidence. It is nothing new or nothing that I am just
talking.
Was is not procedural or was it not
obligatory for you to take down the answers? --- I have already said
that that warning was made
as a questionnaire.
But the question is was it not
necessary to write the answer down? --- It was necessary.
So now is it a mistake that you have
done? --- No, it is not a mistake.'
(b) Captain Ramukhadi
stated:
'Did you also ascertain whether the
suspect appear to be sound of mind and not under the influence of
liquor or any other intoxicating
substances, in a state of shock? ---
No.
. . . .
Is it not a requirement that when you
– as you read those rights to the accused one by one, you must
write down each and every
answer to your questions? --- No, not that
every answer must be written down.
When you advised the suspect on the
right to remain silent for instance, whether or not he understands
is, the answer thereof are
you not supposed to write it down to show
that he understands what you are saying to him? --- No.'
(c) Captain Mutsila
stated:
'What then happened? --- We drove to
Shayandima Satellite Police Station, where on our arrival he showed
me or pointed out what
I requested from him.'
Moreover, question 10 of
the standard form that was completed by Captain Mutsila was left
unanswered. It reads:
'Have you in any way been assaulted,
threatened or influenced to point out the scene(s) and/or point(s)?'
The pointing out itself
was not accompanied by any statements by the suspect, instead
Captain Mutsila simply noted with reference
to the seven photographs
that were adduced into evidence as part of the pointing out:
'01 Entrance to Satelite.
02 (blank)
03 Point where suspect was standing
when he shot the victim.
04 Point where victim was standing
when he was shot.
05 Building of Manaman Supermarket..
06 Entrance to Manaman Suptermarket.'
Confusing as that
evidence was, it was compounded by the photographer, Inspector
Nthangeni, who testified:
‘
And then?
--- Mr Mutsila then told me that this is the pointing out and that
person means that where he is standing is where he
was standing when
he, the shooting, or … (inaudible) the shooting.
. . . .
Now according to you, the person who
you were photographing there, according to your understanding, was
that person just posing
or pointing anything out? --- According to me
here he is not pointing anything.'
The trial court thus
ought not to have been satisfied that the statements and pointing
out had indeed been voluntarily made. It
was thus not permissible
for them to have been admitted into evidence simply upon their mere
production. In the heads of argument
filed on behalf of the State as
well as initially in argument in this court by counsel who had since
replaced Mr Poodhun, it
was sought to support the convictions,
despite concessions, before Ebersohn AJ that the convictions could
not stand. During the
course of argument however he conceded that no
reliance could be placed on any of that evidence. A perusal of the
record satisfies
me that Ebersohn AJ was correct in his assessment
of the matter. It follows that the convictions cannot stand.
In the result I make the
following order:
The appeal of all three
appellants is upheld.
The convictions and
sentences are set aside.
__________________________
ZLL TSHIQI
JUDGE OF APPEAL
A
PPEARANCES:
For Appellant: Mr M
Madima
Instructed by
Justice Centre,
Thohoyandou
Justice Centre,
Bloemfontein
For Respondent: Adv. A
Madzhuta
Instructed by
The Director of Public
Prosecutions, Limpopo
The Director of Public
Prosecutions, Bloemfontein