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[2012] ZASCA 143
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Chauke and Another v S (70/12) [2012] ZASCA 143 (28 September 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 70/12
Not reportable
In
the matter between:
CHAUKE HLAYISANI RONNY
........................................................
FIRST
APPELLANT
NHLEKO LUNGELO JACKSON
.................................................
SECOND
APPELLANT
and
THE
STATE
..............................................................................................
RESPONDENT
Neutral citation:
Hlayisani
Chauke v The State
(70/12)
[2012] ZASCA 143
(28 September
2012).
Coram:
Navsa, Malan,
Bosielo, Tshiqi and Petse JJA
Heard:
17 September 2012
Delivered: 28 September 2012
Summary: Criminal law ─
murder ─ liability ─ no admissible evidence placing
accused at the scene of crime ─
no basis upon which accused
could be convicted. Extra-curial statement ─ admissibility ─
when contested ─ must
be established by trial-within-a-trial.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Limpopo High
Court, Thohoyandou (Hetisani J sitting as court of first instance):
The appeal of both appellants is
upheld and their convictions and the sentences are set aside.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PETSE JA (Navsa, Malan, Bosielo and
Tshiqi JJA concurring):
[1] The appellants were indicted
before Hetisani J in the Limpopo High Court, Thohoyandou on a charge
of murder of a taxi-owner,
Mr Mihloti Foster Mukhari. They were both
convicted as charged and subsequently sentenced to 27 years’
imprisonment.
[2] On 28 November 2006, Hetisani J
refused the appellants leave to appeal which was subsequently granted
by this court on 22 July
2008 both against the convictions and the
related sentences.
[3] Before considering the merits of
this appeal it is necessary to say something about some disturbing
features of the case. First,
it took almost five and a half years for
the appellants to have their application for leave to appeal heard.
This was in no way
attributable to any fault on their part.
[4] It appears from the record that
the appellants endeavoured, initially without legal assistance, to
seek leave to appeal their
convictions and sentences as early as 10
August 2001. Pursuant to letters written by the appellants to the
Registrar of the High
Court, the latter referred the matter to an
attorney, who had represented them at the trial, with a request that
he prosecute their
applications for leave to appeal.
[5] In 2003, disgruntled at the lack
of progress, the appellants solicited the assistance of the
Inspecting Judge of Prisons who
advised them that their complaint
fell outside of the mandate of his office. The appellants then
resorted to communicating with
the Minister of Justice, whose
administrative officer acknowledged receipt of the letter on behalf
of the minister and further
indicated that the matter had been
referred to the Registrar of the High Court for urgent attention.
There was no response from
the registrar. The absence of a response
by the registrar prompted a reminder on 10 February 2004 in
which the registrar was
again urged to report to the appellants on
the current status of their appeal. This prompted the registrar to
write to the second
appellant on 22 April 2004 reporting that a
response was still awaited from their erstwhile attorney.
[6] Nothing resulted from this
correspondence. During 2005 letters went back and forth between the
appellants, the registrar and
the minister’s office. Meanwhile,
a new Minister of Justice took office and she too took up the
appellants’ cause with
the registrar. Ultimately some headway
was made when, on 28 November 2006, the appellants’ application
for leave to appeal
was heard and refused by Hetisani J.
[7] Following the refusal of the
application for leave to appeal in the high court, the appellants
approached this court for such
leave which, as already mentioned in
para 2 above, was granted on 22 July 2008. Once leave to appeal had
been granted, further
delays in prosecuting the appeal occurred. It
took a little more than four and a half years before this appeal was
heard. When
the record of appeal was eventually filed with this court
it incorporated material which was entirely unnecessary and in breach
of the rules of this court governing the preparation of records. In
the result a period of some eleven years, a greater part of
which the
appellants have been incarcerated, has elapsed since the appellants’
conviction. Thankfully, they had in the interim
been released on
bail.
[8] In general terms, an appellant
ought rightly to take the necessary steps to ensure a full and
complete record is lodged within
the prescribed time-limits, to
enable a proper appeal hearing. However, the circumstances of this
case and the inexcusable lapse
of time cannot be ignored. The
appellants struggled for years to obtain a date for their application
for leave to appeal to be
heard in the high court. For years, they
struggled to engage the necessary institutions for assistance,
including the minister
and the Prosecuting Authority. In these
circumstances the State ought to have been of assistance,
particularly since they were
unrepresented for a lengthy period
whilst they sought assistance in the prosecution of their appeal.
[9] It goes without saying that the
inordinate delays experienced in this matter are entirely
unacceptable for obvious reasons.
In terms of s 35(3)(o) of the
Constitution, the appellants have a right to a fair trial which
included the right of appeal or review
to a higher court. Moreover, s
34 of the Constitution accords to everyone the right of access to a
court. Accordingly the delays
of the extraordinary duration
experienced in this case clearly undermine or compromise such rights
in circumstances where there
can be no justification therefor in an
open and democratic society.
[10] I now turn to the merits of the
appeal. The prosecution of the appellants arose out of an incident
which occurred on 1 November
2000 at Mukondeni, Limpopo. It was
alleged that the appellants, acting in the furtherance of a common
purpose, intentionally and
unlawfully shot and killed the deceased.
The State called several witnesses to support its case against the
appellants. The State’s
case, accepted by the high court, is
summarised in this and the following paragraphs. The principal State
witness, Inspector Frederick
Nesengani, a member of the South African
Police Service, attached to the organised crime unit had, pursuant to
a report that he
had received on 20 November 2000, travelled to Elim
Hospital where he found the deceased at the outpatient department at
20h00.
The deceased informed him that he had been shot by two unknown
young men who had robbed him of his motor vehicle.
[11] According to Nesengani he
interviewed the first appellant on 10 January 2001 who, having been
informed of his constitutional
rights, told him that:
(a) he (the first appellant) and his
accomplice (the second appellant) had robbed the deceased of his
motor vehicle;
(b) his accomplice then shot the
deceased;
(c) when they could not start the
vehicle they abandoned it and fled the scene;
(d) the first appellant communicated
all of this freely and voluntarily, saying that he was not the one
who had shot the deceased.
[12] Ms Grace Chauke, the first
appellant’s stepmother, also testified. The gist of her
evidence was that the first appellant
arrived at his father’s
home in Limpopo during November 2000 accompanied by the second
appellant. Soon after they arrived
she left. She saw the first
appellant again on 11 January 2001 when he was brought to her home
escorted by seven police officers.
The first appellant told her that
he ‘is said to have killed someone’. All of this time,
the first appellant was in
handcuffs and ‘was crying’.
She denied that there was bad blood between her and the first
appellant.
[13] Ms Agnes Matzivhandile also
testified. Her evidence was that at approximately 19h30 on 30 October
2000 she met two men unknown
to her, at the crossroad leading to
Mashamba. They enquired of her if taxis to Mashamba were available
and she told them that they
were ‘very scarce’. Whilst
waiting for transport the two men told her that they were from
Soshanguve. They then moved
away from her and walked across the road.
Later, a Venture motor vehicle appeared and when she could no longer
see them she assumed
that they had boarded the Venture. She could not
identify the two men.
[14] Mr Ronnie Tshiphiwa Mokola, the
deceased’s neighbour, testified that early during the evening
of 1 November 2000, the
deceased, who was travelling to Mukondeni,
offered a lift to two young men. When the deceased reached Mukondeni,
the two young
men requested him to convey them to their destination.
Hence he decided to alight from the deceased’s motor vehicle
and to
walk to his home. As he was walking away he heard the sound of
a gunshot. He returned to where he had parted with the deceased and
on his way, saw two young men standing at a distance. Fearing for his
life, he dithered, and by the time he arrived at the crime
scene, the
deceased had already been removed. He too could not identify the two
men who were with the deceased when he parted ways
with the latter.
[15] The appellants testified in their
own defence. It should be stated that, at least in respect of the
first appellant, at the
outset when he was asked to plead, he
informed the high court through his legal representative that he had
been assaulted by the
police. His attorney supplied particulars of
the alleged assault as well as providing at least one location at
which it was alleged
he had been assaulted. Thus the court was put on
its guard early on that in respect of any communication between the
first appellant
and the police the very basis of the communication
being made freely and voluntarily was being challenged. It is
unnecessary to
analyse their evidence in any great detail. In essence
they denied responsibility for the murder of the deceased. They both
said
that they were at Soshanguve on 1 November 2000. In
particular the first appellant denied that when he was taken to his
home
by the police he ever admitted to Grace Chauke that he had
murdered the deceased in collaboration with the second appellant. He
further testified that he was subjected to sustained assaults at the
hands of the police orchestrated by Nesengani and that an
attempt was
made to extract a confession from him. He added that when he was
taken to a magistrate in Waterval for that purpose
he refused to make
a statement and instead informed the magistrate that he had been
assaulted by the police. Hence the magistrate
declined to take a
statement from him.
[16] Despite their denials, the
appellants were nonetheless convicted as charged. In summing the case
against the appellants the
high court said the following:
‘
It
is commonly known in our criminal law in South Africa that the court
can convict an accused, solely based on an inference which
the court
can have made from the evidence before it. In this case the court
feels that there is no any other inference that can
be made other
than the fact that the two accused have indeed committed the crime
they are facing. This is possibly so because the
court has no
difficulty in rejecting their defence that on 1 November they were
not around in and around Whayene, which rejection
is based on the
evidence of Agnes Matzivhandile, as well as the testimony of Ronnie
Makola and Thomas Thangwane.’
More will be said about this passage
later.
[17] There was no analysis or debate
about whether the alleged statements to the police and to Grace
Chauke were confessions or
admissions. What is clear is that the
court below failed to take into account what it was informed about at
the outset, namely,
that the alleged statement to Nesengani was
contested on the basis that it had not been made freely or
voluntarily and that the
statement allegedly made in the presence of
Grace Chauke, with the police in attendance, was denied.
[18] Section 217(1) and s 219A
respectively govern the admissibility of confessions and admissions
by accused persons. The relevant
part of s 217(1) reads as follows:
(1)
Evidence of any confession made by any person in relation to the
commission of any offence shall, if such confession is proved
to have
been freely and voluntarily made by such person in his sound and
sober senses and without having been unduly influenced
thereto, be
admissible in evidence against such person at criminal proceedings
relating to such offence.’
It is, for present purposes,
unnecessary to deal with the proviso that a confession made under
certain circumstances shall not be
admissible unless reduced to
writing before a magistrate. Section 219A provides the following:
‘
(1)
Evidence of any admission made extra-judicially by any person in
relation to the commission of an offence shall, if such admission
does not constitute a confession of that offence and is proved to
have been voluntarily made by that person, be admissible in evidence
against him at criminal proceedings relating to that offence.’
Similarly, for present purposes, it is
unnecessary to deal with the proviso to this section.
[19] The following is stated by Du
Toit
et al
in
Commentary of the Criminal Procedure Act
at 24-55:
‘
It
is clear, now, that there are two separate yet, potentially, related
inquiries that have to be carried out in determining the
admissibility of a confession or admission; first, whether the
requirements of, respectively, ss 217 and 219A have been satisfied,
and, secondly, whether in all the circumstances, the accused has had
a fair trial . . .’
[20] In
S v Lebone
1965 (2) SA
837
(A) 844 this court expressed the view that the requirements of
‘freely and voluntarily’ and ‘without undue
influence’,
in relation to s 217 were distinct, each of
which had to be complied with as a prerequisite to admissibility.
[21] The question whether a statement
was freely or voluntarily made, is usually determined at a
trial-within-a-trial. The admissibility
of a statement has to be
carefully and consciously considered and ruled upon, particularly
where the statements in question are
the only evidence upon which a
conviction is sought to be premised. In this regard see
S v
Mkwanazi
1966 (1) SA 736
(A);
S v Radebe
1968 (4) 410 (A)
414D-E;
S v Zulu
1998 (1) SACR 7
(SCA) 13d-f and
Commentary
on the Criminal Procedure Act
24-57.
[22] The statement allegedly made to
Nesengani, is arguably a confession, at least to robbery. The
statement testified to by Grace
Chauke is arguably a confession to
murder. I shall deal with it in context in due course. Hetisani J,
notwithstanding that he had
been put on his guard earlier on, paid no
attention to the nature of the statement nor did he consider that he
ought to have paid
special attention to its admissibility, whether as
an admission or a confession. Before us the State was constrained to
concede
that this omission was fatal to its case. The court below was
content to allow evidence to be led on statements in the most
unstructured
manner, the admissibility of which was challenged at the
most fundamental level, namely, whether the statement to Nesengani
had
been made freely and voluntarily, and the same applied to the
statement to Grace Chauke, with the added factor as to whether it
was
made at all.
[23] Not only did the court below
falter in permitting evidence on the contested statements to be led
haphazardly, and without making
a ruling upfront, concerning its
admissibility, it compounded that error by rejecting, without proper
consideration, the appellant’s
version of events and not
considering at all the dangers attendant upon accepting unreservedly
the evidence of Nesengani and Grace
Chauke. Grace Chauke was a
single witness whose testimony was not satisfactory in all material
respects and on which no reliance
could be placed (see eg
S v
Sauls
1981 (3) SA 172
(A) at 180). Secondly, the circumstances in
which the alleged statement was made to her were not fully explored.
It was, for example,
not explained how it came about that the first
appellant was taken to her. Nor was it explained why the first
appellant was tearful
when he made the alleged statement. Thirdly,
the suggestion by the first appellant that Grace Chauke was falsely
implicating him
because there was bad blood between them, was simply
not explored nor adverted to by the high court in its evaluation of
the evidence.
[24] There is nothing inherently
improbable about the first appellant’s version of events, nor
can it be said that the first
appellant’s version of how he was
assaulted lacks credibility and that Nesengani’s version of
events is to be preferred
above his. Insofar as the second appellant
is concerned, there is no direct evidence or sustainable
circumstantial evidence on
which his guilt could be based.
[25] In my view, counsel on behalf of
the State reluctantly, but correctly, accepted that the convictions
and related sentences
ought to be set aside.
[26] Before concluding, there is one
issue to address. As I have already mentioned, at the hearing of this
appeal counsel for the
State was constrained to concede at the outset
that the convictions of the appellants were unsupportable. This was
despite the
fact that counsel, in his heads of argument, had adopted
the stance that the convictions were unassailable. What I wish to
highlight
here is the need to underscore the dictum of Erasmus J in
S
v Jija & others
1991
(2) SA 52
(E)
1
at 68 where the following is stated:
‘
A
prosecutor, however, stands in a special relation to the Court. His
paramount duty is not to procure a conviction but to assist
the Court
in ascertaining the truth.’
Accordingly, it goes without saying
that when it is manifest that a conviction cannot be sustained on
appeal it is expected of counsel
for the State not to defend what is
by all accounts indefensible.
[27] In the result the following order
is made:
The appeal of both appellants is
upheld and their convictions and the sentences are set aside.
__________________
X M PETSE
JUDGE OF APPEAL
Appearances:
Appellants: A L Thomu
Instructed by:
Justice Centre, Thohoyandou
Justice Centre, Bloemfontein
Respondent: A I S Poodhun
Instructed by:
Director of Public Prosecutions,
Thohoyandou
Director of Public Prosecutions,
Bloemfontein
1
Also
reported in
[1991] All SA 188
(E) at 203.