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[2011] ZAGPPHC 113
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Mbhungi v S (A1068/10) [2011] ZAGPPHC 113 (10 June 2011)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
HIGH COURT, PRETORIA)
CASE NO: A1068/10
DATE:10/06/2010
In
the matter between:
TSHEPO
MBHUNGI
...............................................................................................
APPELLANT
And
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
[1]
The appellant an adult male 44 years old was on convicted by Els J on
one count of murder, attempted possession of firearms
and ammunition
in contravention of s2 and 36 of Act 75 of 1969. He was sentenced to
43 years imprisonment.
[2]
The appellant was after eleven years granted leave to appeal against
conviction only by Van der Merwe DJP. The grounds of Count
5 unlawful
possession of ammunition at or near Schoeman Street in Pretoria on 28
June 1996, in contravention of Act 75 of 1969;
[4]
The appellant was through out the trial duly legally represented by
pro deo
counsel Mr. C.E. More. Accused 1 was legally
represented by counsel Mr. W R Malan. The appellant and accused 1
both pleaded not
guilty to all the counts including the alternative
counts to count 3. They exercised their right of silence. Various
admissions
in terms of s220 were made. These were in respect of the
identities of the deceased and that they died as a result of gun shot
wounds sustained at the scene of crime on that particular date. The
correctness of the two post mortem reports were admitted as
exhibits
B and C. The admission document itself was accepted as exhibit A.
[5]
The conviction of the appellant is a sequel to an abortive attempted
robbery in the gun shop of the deceased Mr. Antonin Mirolsav
Gottried
at Schoeman Street in Pretoria on 28 June 1996. A shooting ensued in
the shop, resulting in the fatal gun Count 5 unlawful
possession of
ammunition at or near Schoeman Street in Pretoria on 28 June 1996, in
contravention of Act 75 of 1969;
[4]
The appellant was through out the trial duly legally represented by
pro deo Mr. C.E. More. Accused 1 was legally represented
by counsel
Mr. W R Malan. The appellant and accused 1 both pleaded not guilty to
all the counts including the alternative counts
to count 3. They
exercised their right of silence. Various admissions in terms of s220
were made. These were in respect of the
identities of the deceased
and that they died as a result of gun shot wounds sustained at the
scene of crime on that particular
date. The correctness of the two
post mortem reports were admitted as exhibits B and C. The admission
document itself was accepted
as exhibit A.
[5]
The conviction of the appellant is a sequel to an abortive attempted
robbery in the gun shop of the deceased Mr. Antonin Mirolsav
Gottried
at Schoeman Street in Pretoria on 28 June 1996. A shooting ensued in
the shop, resulting in the fatal gun shot wounding
of Mr. Antonin
Mirolsav Gottried and Mr. Zachariah Tladi.
[6]
Sergeant JVR Van Zyl and Sergeant L Coetzee fortuitously happened to
arrive in the vicinity of the shop and were looking for
parking when
they were attracted by gun shots from the direction of the shop. At
that point in time they saw a man stumbling out
from the shop and
collapsed at the door. This man was later identified as the late Mr.
Zachariah Tladi. At the very moment they
observe the appellant with
hands outstretched forward walking backwards out of the shop and
tripping over the deceased at the door.
Sergeant Coetzee with his
firearm drawn, rushed to the door and instructed the appellant who
fired a shot inside the shop, to drop
his firearm. Once the appellant
was neutralized, sergeant Coetzee observed in the shop the deceased
Mr. Antonin Mirolsav Gottried
was lying on the floor. He observed
accused 1 and instructed him to open the door from inside. The latter
after some hesitation
and shouting by both Coetzee and Van Zyl
eventually pressed the opening knob that unlocked the door.
[7]
Mr. Doctor Stemmer Tlaka testified for the State. He testified about
the conspiracy between the appellant, accused 1, himself
and the
deceased Tladi to rob the shop of the deceased in Pretoria Central.
Only the appellant, accused 1 and Tladi went to the
shop. Mr. Tlaka
arrived later as he did not use the same transport with the others to
get to the shop. When he was in the vicinity
of the shop he observed
the appellant and accused 1 being placed in the police vehicle. He
returned home to report the arrest of
the accused 1. He did not know
the appellant but had met him only once when the conspiracy took
place.
[8]
The version of the appellant in chief was very brief. He said that
the shooting started when he was entering the shop. He pressed
the
door bell and heard the door opening and entered He pulled the door.
Just as he was entering the shop but still at the door
but inside
steel door in the shop, the door closed and he immediately heard
shots. He immediately squatted in front of the steel
door before he
set next to the gate. He was asked whether he heard the evidence that
he had conspired with other
people
to rob the place. He denied this. He further denied that he had a
firearm at the shop. That completed his evidence in chief.
[9]
Under cross examination the appellant stated that he knew Zacharia by
his name only but did not know his surname. He knew him
because he
used to wash his motor vehicle. On the day in issue he walked into
the shop because he saw Zacharia going into the shop.
He was looking
for work and went into the shop so as to speak to Zacharia about
that. When asked whether he would have gone into
the shop had he not
seen Zacharia getting therein, he said that he could neither deny nor
admit same. He further explained that
while in the shop, he heard
someone entering the shop and immediately thereafter there was
shooting. He squatted next to the door.
He denied having fallen over
the deceased. While he was between the wooden door and the burglar
door two armed men came in and
pointed him with firearms. Later
police came and arrested him. Needless to state that his version was
rejected thus the
conviction.
The version of accused 1 was equally rejected. He was as a matter of
fact arrested inside the shop.
[10]
The appellant was duly legally represented through out the
proceedings at the court a quo. assailing the conviction of the
appellant Mr. Striydom has submitted that the legal representative of
the appellant only posed three questions to the State witness
Mr. van
Zyl and a terse version of the appellant to this witness. The cross
examination of State witness Mr. Doctor Tlaka consisted
of only three
short questions and that the appellant denies the conspiracy. The
cross examination of the State witness Mr. L Coetzee
consisted of
short version that the appellant did not possess the firearm. Mr.
Strijdom has further submitted that whereas the
identification of the
appellant by the State witnesses is premised on his height, being the
shorter of the two persons in the dock,
this was not challenged by
his counsel. The Court pointed out that both the appellant and
accused 1 were seemingly of the same
height. It is submitted that
this is just another indication that the appellant did not receive a
fair trial because of the inadequate
handling of his trial.
[11]
It is further submitted that the cross examination of the State
witness did not measure to the demands of s35(3) because the
legal
representative of the appellant was not real but illusory and the
appellant did not have proper and effective and competent
legal
representative. In this regard we have been referred to the matter of
S v Haigryn (2) SACR 211 SCA and S Mafu and Others
(2) SACR 653 WLD
at 654 and S Chabedi (1) SACR 477 (WLD). It is further submitted that
it is the duty of the appeal court to objectively
inquire whether the
appellant has had a fair trial. We are edged to find that the
appellant did not receive a fair trial and therefore
set the
conviction aside.
[12]
Mr. Roberts who appears on behalf of the State submitted that the
Court must place itself in the position of the counsel who
represented the appellant at the time, who had the prime
responsibility of conducting the defense of the appellant. He
further
quite correctly submitted that the test to be applied is an objective
one, to determine whether the defence counsel had
acquitted himself
properly of his instructions. In this regard he too referred us to
the matter of S v Halgryn supra. will cite
in detail this authority
herein below.
[13]
Mr Roberts has further submitted that the fact of the matter is that
the appellant was duly represented. The appellant did
not raise any
complaint about his legal representative during the trial. In the
matters where the conviction was set aside because
of the alleged
"incompetence" of counsel, the complaint was raised during
the trial, which is not the case in casu.
[14]
It brooks no argument that the appellant, like any accused person has
the right to legal representation. Section 35 provides
inter alia,
that:
"(3)
Every accused person has aright to a fair trial, which includes the
right― (f) to chose and be represented by,
a legal
practitioner and to be informed of this right promptly;
(i)
to adduce and challenge evidence."
[15]
Indeed, for an accused person to realize the protection envisaged by
affording him legal representative, even at the State's
costs, s35
presupposes that the legal counsel will not be perfunctory but
effective in acquitting himself of his task of defending
the accused.
It presupposes competency on the part of the legal representative.
This aspect is, with respect, aptly stated in the
matter of S v
Haigryn (supra) 216h-217c which I find myself obliged to cite in
detail where the Supreme Court of Appeal stated:
"The
constitutional right to counsel must be real and not illusory and an
accused person has, in principle the right to a proper
effective or
competent defence. Compare S v Majola
1982 (1) SA 125
(A) at 133 D-E.
a defence was so incompetent that it made the trial unfair is once
again a factual question that does not depend
upon the degree of ex
facto of the litigant. Convicted persons are seldom satisfied with
the performance of their defence counsel.
The assessment must be
objective, usually, if not invariably, without the benefit of
hindsight. Compare S Louw (3) SA 116 (A) at
125D-E. Court must place
itself in the shoes of dence counsel, bearing in mind that the
responsibility in conducting the case is
that of counsel who has to
make decisions, often wit little tie to reflect (cf R v Matonsi (2)
SA 450 (A) at 456 as explained in
S v (supra)). failure to take
certain basic steps, such as failing to consult, stands on a
different footing from the failure to
cross-examine effectively or
the decision to call or not to call a particular witness. It is
relatively easy to determine whether
the right to counsel was
rendered nugatory in the former type of case but in the latter
instance, where counsel's discretion is
involved, the scope for
complaint is limited As the Supreme Court noted in v Washington US
668 (1984) at 689:
'Judicial
scrutiny of counsel's performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel's
assistance
after conviction or adverse sentence, and it is all too easy for a
court, examining counsel's defense after it has been
unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable.'
[16]
The question of the competence or lack thereof of the appellant's
counsel cannot be determined on the basis of the number of
questions
he asked, nor these in isolation. The crucial questions is what
prejudice has the appellant suffered. The answer to all
these
questions must be sought in the matrix of all the evidence that was
lead, bearing in mind that it is for the appellant to
demonstrate the
prejudice that resulted on the basis result of the alleged
incompetence of his counsel; vide Hlantlalala and Others
v Dyantyi
N.O an Another (2) SACR 541g
1
.
I do bear in mind that at no stage during the trial did the appellant
raise any complaint about his counsel.
[17]
In the matter of May S Alt SA November
[2005] 4 All SA 334
(SCA)
338d Supreme Court of Appeal stated that:
"Whether
or not prejudice has resulted from lack of legal representation is
really a question that can be determined only by
having regard to the
whole trial, and the way in which it was conducted by the judicial
officer; and the ability, as shown during
the course of the trial, of
the accused to represent himself adequately; and to whether the
evidence adduced has led justifiably
to the conviction and sentence."
In my view, this finds true also where the complaint is about the
lack of competency or incompetence
of the appellant's legal
representative.
[18]
The submission on behalf of the appellant that his legal
representative failed to challenge the identification of the
appellant
as the shorter person of the two accused, is in my view of
no consequence. Sergeant Van Zyl did not identify the appellant only
on height. He also identified him on built because he said 'the
smaller one'. If the appellant disputed that he was not the person
who fell over Zacharia at the door and had instructed his counsel
otherwise, certainly this would have been challenged, but it
was not.
[19]
In any event, counsel for accused 1 extensively canvassed with the
State Van Zyl the aspect of who fell over the deceased at
the door
2
.
The witnesses was adamant that it was the appellant who fell over the
deceased. I agree with the submission made by Mr. Robert
that counsel
for the appellant simply rode on the back of the counsel for accused
1. It was never disputed that appellant fell
over the deceased. The
only issue disputed was possession of the appellant of a firearm.
[20]
The witness Mr. Tlaka who testified about the conspiracy, placed the
appellant in the scene where the conspiracy to rob was
discussed and
the appellant being the originator of the robbery
3
.
Counsel for accused 1 cross examined this witness about this aspect
4
.
Indeed this aspect was disputed on behalf of the appellant, although
in not so many words
5
.
It did not require any much cross examination to put the simple
statement that the appellant dispute that he was part of the
conspiracy.
[21]
The appellant was also afforded an opportunity to present his defence
under oath. His version was very terse. He preferred
to confine
himself to the essentials and say as less as possible. Nothing
precluded the appellant from being more elaborate in
detailing his
defence. He denied the essential facts and this robbery and that he
had a firearm. He denied these allegations
6
.
[22]
In my view, it does not seem to me from the record that the appellant
has in any way been prejudiced by the brevity of the
question posed
by his counsel. If there was any prejudice in brevity by counsel,
this was neutralised by the very fact that the
appellant was afforded
an opportunity to relate his version. If appellant also choose to
resort in brevity in answering questions,
he simply cannot complain
that he was not afforded an opportunity and that he had unfair trial.
The question of unfair trial depends
must be determined on case by
case. There is no blanket yardstick for unfair trial.
[23]
The trial court evaluated the evidence presented to it, by both the
State and the defence. The trial court also made value
judgment on
the impressions of the State witnesses and accused 1 and the
appellant. It found the State witnesses to be credible
witnesses. It
nonetheless appreciated that the appellant and accused 1 were terse
in the respective versions. The trial court decided
the guilt of the
accused and the appellant on the improbabilities of their versions
and concluded that their respective versions
are contradictory and
rejected both their versions and preferred the evidence of the State
witnesses. The version of accused 1
was that he was first to enter
the shop and the door closed behind him. Then the door bell rung once
and then someone stood next
to him and said "Here I am" the
shooting started. On the version of the appellant, it would mean that
accused 1 was the
first to gain entry into the shop and the door
closed behind him. The door would have then rung for the second time
to allow Zacharia.
On the third occasion the door bell would have
rung to allow the appellant in. When the door opened the appellant
was still at
the door when the shooting started. The trial court
found that the version consequently rejected both of them.
[24]
What is of importance, is that the trial court gave proper
consideration of the version of the appellant. In my view, it does
not seem from the record that the appellant has in any way been
prejudiced by the manner his counsel conducted his defence. What
is
significant, is that the trial court judge carefully applied his mind
to the totality of the evidence before him, including
the version of
the appellant. In the result 1 am of the view that the appeal must
fail.
[25]
In the result 1 make the following order:
That the appeal against conviction is
dismissed;
That
the conviction of the appellant on all the counts is confirmed.
N.
M MAVUNDLA
…....................................
Delivered
on 10 June 2011
JUDGE
OF THE HIGH COURT
I
agree
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
Agree
K
E MATOJANE
JUDGE
OF THE HIGH COURT
1
'
Vide
Hlantlalala and Others v Dyantyi N.O an Another
1999 (2) SACR 541
(SCA) at 545g where Mpati AJA (as he then was) said:
"The
crucial question to be answered is what legal effect such
irregularity had on the proceedings at the appellant's trial.
What
needs to be stressed immediately is that failure by presiding
judicial officer to inform an unrepresented accused of his
right to
legal representation of his right to legal representation, if found
to be an irregularity, does not
per
se
result
in an unfair trial necessitating the setting aside of the conviction
on appeal (See S v Radebe; S v Mbonani
1988 (1) SA 191
(T) at 1961;
S v Mabaso and Another
1990 (3) SA 1851
(A) at 205 D-E, compare also
S v Shikunga and Another
1997 (2) SACR 470
(Nm) at 431(i))"
2
Page 24 ttyped record line-8
3
Page
19 of the record line 10-18.
4
Page
30 of the record line 19-22.
5
Page
37 linel4-17.
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Page 56 line 22-25.