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[2010] ZASCA 52
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Matlou and Another v S (479/09) [2010] ZASCA 52; 2010 (2) SACR 342 (SCA) ; 2011 (1) BCLR 54 (SCA) ; [2010] 4 All SA 244 (SCA) (31 March 2010)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
In the matter between:
Case No: 479/09
SHIKO PHINEAS MATLOU First
Appellant
WILLIAM SEKWATI SERUMULA Second Appellant
and
THE STATE
Respondent
Neutral citation:
Matlou v The State
(479/09)
[2010] ZASCA 52
(31 March 2010)
Coram:
CLOETE,
BOSIELO et LEACH JJA
Heard:
16
MARCH 2010
Delivered:
31
MARCH 2010
Summary:
Criminal
law – appeal against conviction on charges of murder and
robbery with aggravating circumstances ─ whether incriminating
statements were admissible – whether evidence of the
pointing-out of the deceased's body and a firearm was admissible.
ORDER
On appeal from:
the
North Gauteng High Court, Pretoria (Jordaan J sitting as court of
first instance).
1.
The
appeal by both appellants in respect of the count of murder is
upheld. The conviction and the sentence imposed on this count
are set
aside.
2.
1 The
appeal by both appellants in respect of the count of robbery with
aggravating circumstances is upheld to the extent that a
conviction
of theft of a Mazda bakkie (registration BCB 759 N), a welding
machine and an angle grinder is substituted.
2.2 The sentence imposed on both
appellants in respect of the count of robbery with aggravating
circumstances is set aside and substituted
with a sentence of
imprisonment for six years. The sentence is antedated to 25
April 2003 in terms of
s 282
of the
Criminal Procedure Act 51 of
1977
.
3.
The
appeal by the first appellant in respect of the count of unlawful
possession of a firearm is upheld and the conviction and the
sentence
imposed on this count are set aside.
JUDGMENT
BOSIELO
JA
[1]
This
appeal raises the perennial legal conundrum concerning the
admissibility of evidence of pointings-out obtained as a result
of
assault by police officers on arrested persons.
[2]
The
appellants were charged before Jordaan J in the North Gauteng Circuit
Court, sitting in Tzaneen on charges of murder, robbery
with
aggravating circumstances, theft of a firearm, unlawful possession of
a firearm to wit a 9mm Parabellum semi-automatic pistol
with serial
number 407409 and unlawful possession of an unknown quantity of
ammunition.
[3]
At
the end of the trial, the first appellant was convicted of murder,
robbery with aggravating circumstances and unlawful possession
of a
firearm, a 9 mm Parabellum semi-automatic pistol. He was sentenced to
life imprisonment in respect of murder, 15 years in
respect of
robbery with aggravating circumstances and three years in respect of
the unlawful possession of the firearm.
[4]
The
second appellant was convicted in respect of both the count of murder
and the count of robbery with aggravating circumstances.
He was
sentenced to life imprisonment in respect of murder and 15 year's
imprisonment in respect of robbery with aggravating circumstances.
Both appellants are appealing against all their convictions with the
leave of the court below.
[
5] The
appellants launched a two-pronged attack against their convictions.
The appellant's main attack is against the admission
by the court
below of the evidence of the pointing-out of the deceased's body and
a firearm by the first appellant to the police.
The essence of the
attack is that these pointings-out form part of the incriminating
statements made by the two appellants to a
magistrate which were
found to be inadmissible. The submission was that the evidence of the
pointings-out should have been excluded
with the confessions which
were made to the magistrate. The second attack is against the
admission of the incriminating extra-curial
admissions made by the
first appellant in the presence of the police to Mr Elvis Senyolo
(Elvis) and the deceased's widow.
[
6] In
order to facilitate an easy understanding of the legal issues
involved herein, a brief resumé of the salient facts
of this
case is necessary. On 13 March 2002, the deceased left his home at
Ga-Dikgale for his place of employment at Ga-Sekgopo.
The deceased stayed
there during the week, returning to his home during week-ends. When
he did not arrive home on Sunday 17 March
2002, his wife Mrs Mamaila
Lenah Sehlabana (Sehlabana) went to look for him at his place of
employment. The deceased was not there.
She discovered that some of
his property, namely, his vehicle, blankets, a mattress, welding
machine and a grinder were missing.
She tried to contact the deceased
via his cellular phone but without success. She then went to report
the fact that the deceased
was missing at a local police station.
[
7] On
Saturday 23 March 2002, one Captain Mainetja received some
information from an informer. He and Inspector Lephala commenced
a
search for the first appellant. They later arrested him in the early
hours of Sunday morning. They explained his rights to him.
As the
first appellant indicated that he did not want to have a legal
representative, they continued to interrogate him. He later
admitted
having killed the deceased but stated that he was not alone.
Mainetja's evidence is to the effect that notwithstanding
a further
advice by him to the first appellant, he persisted to refuse the
assistance of a legal representative. According to Mainetja,
the
first appellant told him that he and Mr Kgashare Elvis Senyolo
(Elvis) killed the deceased. The first appellant took the police
to
Elvis' home where they arrested Elvis who denied knowledge of the
killing of the deceased. The first appellant told the police
that
they were in fact three including accused 2. The first appellant
agreed to assist the family of the deceased to retrieve a
firearm.
[
8] On
the same Sunday morning the first appellant took the police to a
deserted place approximately 30-45 km away. It was in a bush.
However, as it was still dark they found nothing but smelt a bad
odour as if an animal had died. The first appellant then took
them to
another place, which was some 100 km away. He then told them that he
had hidden the firearm there and that only he knew
about it. Upon
arrival at that place they all alighted. The first appellant pointed
a spot out from where Mainetja retrieved a
firearm hidden under a
tree in a bush. He later took the police to where they retrieved the
missing welding machine and grinder,
which they impounded.
[
9] They
then returned to the original place where they had earlier failed to
find the deceased's body. Upon arrival they found a
spent cartridge.
The appellant then told the police that that is where he shot the
deceased on his chest to make sure that he is
dead. They later found
the deceased's decomposed body in a ditch deeper into the bush. The
deceased's spouse identified the body
to be that of deceased. As part
of the head of the body was missing she asked what had happened to
it. The police told her to ask
the first appellant, whereupon he
replied that when they threw the deceased's body there his head was
still intact.
[1
0] Elvis
testified that he knows both appellants. They are both his aunt's
sons. He confirmed that one Friday the two appellants
arrived at his
home. The first appellant was driving a vehicle, a Mazda bakkie. The
two appellants asked him to take them to a
traditional doctor at a
place called Shawela. After they had seen the traditional doctor, he
and Edwin drove with the second appellant,
apparently to go and look
for small change to pay the traditional doctor. The first appellant
remained behind as he had fallen
asleep. On the way the second
appellant lost control of the vehicle and it overturned. The second
appellant gave Elvis
R2 000 and a
cellular phone to Edwin.
On Saturday morning
the police came to arrest him. When he asked why the police were
arresting him, the police said he must ask
the second appellant,
whereupon the second appellant said it is because they both killed a
person. According to Sihlabana and Elvis,
the first appellant was
never assaulted or threatened to make the pointings-out as well as
the utterances which he made in their
presence.
[11
] As
the appellants disputed that their statements were made freely and
voluntarily, a trial-within-a-trial was held. At the end
of the
trial-within-a-trial, the learned judge excluded the evidence of
pointings-out relating to the deceased's body and firearm,
but found
that the discovery of the deceased's body and the firearm by the
police were admissible.
[12
] Mr
Phetole Manthakga (Manthakga) testified that the grinder was
retrieved by the police from him on 24 March 2002. The welding
machine was retrieved from Mr Mohale David Machete (Machete).
According to the police it is the first appellant who took them to
these people. It is not in dispute that the motor vehicle (Mazda
bakkie), the grinder and the welding machine were identified by
the
deceased's wife as the deceased's property.
[1
3] The
first appellant did not testify in his defence whilst the second
appellant did. The second appellant denied any involvement
in the
killing of the deceased. He furthermore denied ever driving in the
deceased's vehicle or giving some R2 000 to Elvis or
a cellular phone
to Edwin.
[1
4] In
his evaluation of the evidence, the learned judge rejected the second
appellant's version as false. The learned judge found
that there was
sufficient circumstantial evidence, in the absence of an acceptable
explanation, to come to the conclusion that
the appellants were
involved in one way or another in the killing of the deceased. He
also found that the deceased died a violent
death. Furthermore, the
learned judge found that both appellants were in possession of
property belonging to the deceased soon
after the deceased's death.
Concerning the first appellant the learned judge found further that
the fact that he pointed out the
firearm to the police is proof that
he possessed it.
[1
5] The
crisp issue in this appeal is whether the learned judge was correct
in admitting the evidence of the pointings-out regarding
the
deceased's body and the firearm by the first appellant,
notwithstanding the fact that they formed part of confessions and
admissions which had been found to be inadmissible because of the
assault perpetrated on the first appellant.
[1
6] Counsel
for the appellants submitted that the entre evidence of pointings-out
which include the discovery of the deceased's body
and the firearm
should have been excluded as they all formed part and parcel of each
other. This contention is based on the fact
that first appellant was
assaulted by the police during these pointings-out. Counsel contended
that all this evidence is tainted
by the assault by the police on
first appellant. Counsel argued further that if this evidence is
excluded, there would be no evidence
regarding the crucial aspects
concerning the place, date and cause of the deceased's death. In the
result this would mean that
the allegation that the deceased was shot
with a firearm when he was robbed of his belongings remained
unsupported by any evidence.
It follows, so it was argued, that the
only competent verdict in the circumstances would be simple theft of
the deceased's property
(Mazda vehicle, grinder and welding machine).
[1
7] On
the other hand, counsel for the respondent argued that the State had
adduced sufficient circumstantial evidence which proved
conclusively
that both appellants were involved in the killing of the deceased.
This submission was based on the evidence of both
the deceased's
spouse
and
Elvis
that
the first appellant was never assaulted in their presence when he
allegedly made the pointings-out, Accordingly it was contended
that
the court below was correct in accepting the evidence of
pointings-out of the deceased's body and the firearm. Counsel argued
further that the fact that both appellants were found driving the
deceased's vehicle coupled with the fact that they possessed
some of
his belongings soon after his death which they either gave away or
sold for a pittance, justify the conclusion that they
were both
involved in the killing of the deceased.
[1
8] The
following facts are either common cause or not seriously disputed:
the deceased was known to the appellants; the deceased
was killed
between 13 and 15 March 2002; some items of property belonging to the
deceased were stolen during the same period, both
appellants were
seen driving a Mazda vehicle, later identified to belong to the
deceased soon after the deceased's death; the first
appellant sold
the deceased's welding machine for R100 to
Machete
on 20 March 2002,
the first appellant
gave away the grinder to Manthakga
on 18 March 2002
for having helped him to tow away the deceased's stolen vehicle; the
second appellant gave the deceased's cellular
phone to Edwin. Of
great significance is the fact that all these items which were proved
to belong to the deceased were possessed
by the appellants soon after
the deceased's death.
[
19] I
am prepared to accept that the very fact that the appellants were in
possession of the deceased's stolen property soon after
his death,
might justify the inference that the appellants were involved in the
deceased's death. I must confess that such an inference
appears to be
both reasonable and compelling. However, it can hardly be said to be
the only reasonable inference consistent with
the proven facts. What
compounds the problem is that there is no evidence as to when and how
the deceased was killed. It is noteworthy
that, notwithstanding the
respondent's allegations that the deceased was shot, the post-mortem
report does not support such a finding.
It follows, in my view, that
such an inference cannot be drawn as it would be in conflict with the
salutary principles enunciated
in
R
v Blom,
1939 AD
188.
[2
0] I
find that the learned judge erred in accepting the evidence of the
pointings-out by the first appellant. I agree with appellants'
counsel that the fact that when the first appellant made a confession
to the magistrate on 26 March 2002, he still had injuries
which
appeared to be fresh, suggests strongly that the assault meted to him
must have been serious. I find the submission by respondent's
counsel
that it is possible that the second appellant was only assaulted by
the police after he had already made the pointings-out
to be without
merit. Why would the police assault him if he had already
incriminated himself by pointing-out highly incriminating
evidence.
To my mind, it makes perfect sense and accords with logic that the
first appellant could only have been assaulted by
the police before
the pointings-out in order to coerce him to do so. Undoubtedly, such
evidence would have been obtained in contravention
of the first
appellant's rights ensconced in s 35(1)(a); (b); and (c) of the
Constitution, Act 108 of 1996, which provides:
(a)
'Everyone
who is arrested for allegedly committing an offence has the right –
(a) to remain silent; (b) to be informed promptly
–
(i)
of
the right to remain silent; and
(ii)
of
the consequences of not remaining silent;
(c) not to be
compelled to make any confession or admission that could be used in
evidence against that person;'.
[2
1] The
question that instantly comes up for consideration is what should
happen to the first appellant's evidence of pointings-out.
This
aspect is governed by s 218(2) of the Criminal Procedure Act, 51 of
1977 (the Act) which provides that:
'Evidence may
be admitted at criminal proceedings that anything was pointed out by
an accused appearing at such proceedings or that
any fact o
r
thing was discovered in consequence of information given by such
accused, notwithstanding that such pointing out or information
forms
part of a confession or statement which by law is not admissible in
evidence against such accused at such proceedings.'
[22
] Undoubtedly,
there is a direct clash between s 218(2) of the Act and s 35(1)(a);
(b); and (c) read with s 35(5) of the Constitution.
It is this
conflict which we are required to resolve in this appeal. The answer
to this somewhat intractable legal conundrum lies
in s 35(5) of the
Constitution which provides:
'
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.'
[2
3] Relying
on the authority of
R
v Samhando
1943 AD
608
and
S v Sheehama
[1991] ZASCA 45
;
1991 (2) SA 860
(A)
the learned judge admitted the evidence concerning the alleged
discussion which the first appellant allegedly had with the
deceased's spouse during which, at the suggestion by the police, she
asked him where the deceased's missing head was and to which
he
replied that when he threw the deceased's body in the bush, it still
had its head intact. The learned judge found that this
conversation
is in a different category as opposed to a disclosure to the police.
He further found that the first appellant could
either have responded
or refused to respond to this question by the deceased's spouse. To
my mind, the learned judge erred in this
respect. It is clear that
the first appellant was under arrest and in the presence of more than
one police at this critical stage
of the investigation. It is the
police that instigated or prompted the deceased's spouse to ask the
first appellant this question
which elicited such an incriminating
response. The possibility that the first appellant was under the
undue influence of the police
at the time cannot be excluded. To my
mind, this negated any volition which he might have had to refuse to
answer. See
R v de
Waal
1958 (2) SA
109
(GW) at p 111A-112F.
[2
4] Secondly,
the learned judge admitted the evidence on the basis that, had it not
been for the pointings-out by the first appellant,
the police would
not have discovered the deceased's body. The same reasoning
underpinned the admission relating to the pointing-out
and discovery
of the firearm. Once again the learned judge ignored the fact that
these pointings-out happened at the instance and
in the presence of
the police. There is no evidence that the first appellant had been
advised of his right to remain silent, or
not to make any statement
that might incriminate him and what the purpose and legal
consequences of not remaining silent or making
pointings-out are.
Evidently all this was done in contravention of the rights of the
first appellant as embodied in s 35(1)(a);
(b); and (c) of the
Constitution.
[2
5] It
is unfortunate, if not regrettable, that the learned judge never
considered the applicability of s 35(1) read with s 35(5)
of the
Constitution and their impact on the admissibility of the impugned
evidence. It is furthermore regretable that it does not
appear from
the record that the learned judge's attention was drawn to the
approach adumbrated by Van Heerden JA in the seminal
judgment of
S
v January; Prokureur-Generaal, Natal v Khumalo
1994
(2) SACR 801.
[2
6] Cachalia
JA succinctly set out the legal position regarding the admissibility
of such evidence before and after our new Constitution
in
S
v Mthembu
[2008] ZASCA 51
;
2008 (2)
SACR 407
(SCA) at paras 22 and 23 as follows:
'[22]
In
the pre-constitutional era, applying the law of evidence as applied
by the English courts, the courts generally admitted all
evidence,
irrespective of how obtained, if relevant. The only qualification was
that "the judge always (had) a discretion
to disallow evidence
if the strict rules of admissibility would operate unfairly against
an accused." And where an accused
was compelled to incriminate
him or herself through a confession or otherwise the evidence was
excluded. However, real evidence
which was obtained by improper means
was more readily admitted (and also because its admission was
governed by statute). The reason
was that such evidence usually bore
the hallmark of objective reality compared with narrative testimony
that depends on the say-so
of a witness. Real evidence is an object
which, upon proper identification, becomes, of itself, evidence (such
as a knife, firearm,
document or photograph – or the metal box
in this case). Thus, where such evidence was discovered as result of
an involuntary
admission by an accused, it would be allowed because
of the circumstantial guarantee of its reliability and relevance to
guilt
– the principal purpose of a criminal trial. As a rule,
evidence relating to the "fruit of the poisonous tree" was
not excluded.'
[2
7] There
was however some resistance to this line of reasoning deriving from
normative considerations. In
S
v Sheehama,
Grosskopf
JA stated that it was a basic principle of our law that an accused
cannot be coerced into making a self-incriminating
statement. He thus
held that
s 218(2)
of The
Criminal Procedure Act 51 of 1977
did not
authorise evidence of forced pointings-out even though it arguably
did so. And in
S v
Khumalo
1992 (2)
SACR 411
(N) at 420 Thirion J said that involuntary statements made
by accused persons are inadmissible against them, not only because
they
are untrustworthy as evidence but, quoting Lord Hailsham, 'also,
and perhaps mainly, because in a civilized society it is vital
that
persons in custody or charged with offences should not be subjected
to ill-treatment or improper pressure in order to extract
confessions'.
1
With the advent of the new constitutional order looming Van Heerden
JA, in
S v January;
Prokureur-Generaal, Natal v Khumalo,
confirmed
this line of thinking when he observed that there has '(i)n this
century . . . rightly been a marked shift in the justification
for
excluding. . . involuntary confessions and admissions, and it is now
firmly established in English law that an important reasons
is one of
policy.'
2
In making this observation he was able to depart from the reasoning
in earlier cases, referred to above, which had placed their
emphasis
only on the relevance and reliability of the evidence. He thus held
that proof of an involuntary pointing-out by an accused
person is
inadmissible even if something relevant to the charge is discovered
as a result thereof.'
3
[2
8] What
comes forcefully to the fore is the ever-present tension between the
State's obligation or duty to see to it that people
who commit crimes
are arrested, investigated, prosecuted and held accountable for their
deeds and its equally important and onerous
duty to ensure that the
conduct of those saddled with the duty and responsibility to
investigate and prosecute offenders is proper
and above board. That
it is sometimes difficult to resolve this tension admits of no doubt.
This difficulty is described by Kriegler
J in
Key
v Attorney General, Cape Provincial Division And Another
[1996] ZACC 25
;
1996
(2) SACR 113
(CC) at para
[13]
as follows:
'In
any
democratic criminal justice system there is a tension between, on the
one had, 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 legislature 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 accused
be given a fair trial.
Ultimately, as was held in
Ferreira
v Levin,
fairness
is an issue which has to be decided upon the facts of each case, and
the trial Judge is the person best placed to take
that decision. At
times fairness might require that evidence unconstitutionally
obtained be excluded. But there will also be times
when fairness will
require that evidence, albeit obtained unconstitutionally,
nevertheless be admitted.'
See also
S
v Pillay & Others
2004
(2) SACR 419
(SCA) para [11].
[
29] Reverting
to the facts of this case, it is clear from the proven evidence that
the evidence of the pointings-out by the first
appellant and the
concomitant utterances made by him were crucial to the State's case.
Evidently the pointings-out led to the discovery
of the deceased's
body as well as the firearm. What is also clear is that these
pointings-out were made soon after the first appellant
had been
arrested. The first appellant alleged that he was seriously
assaulted, inter alia, by being repeatedly hit with an electric
cable
by the police throughout his arrest. The police denied any assault on
the first appellant. However, when the first appellant
appeared
before the magistrate to make a confession some two or three days
after his arrest, he exhibited to him some injuries
on his body. It
is noteworthy that the magistrate independently observed that the
injuries appeared to be recently sustained. It
is fair to conclude
that the injuries meted out on the first appellant were inflicted by
the police between the time of his arrest
and appearance before a
magistrate. To my mind, pure logic and common sense dictates that the
assault must have been perpetrated
with the primary purpose of
inducing the first appellant to co-operate and assist the police in
their investigation which led to
the discovery of the deceased's body
and the firearm.
[30
] There
is no suggestion that these pointings-out would have been made
without the assault. I agree with counsel for the first appellant
that this evidence was irredeemably tainted by the assault on the
first appellant. I have no doubt that admitting such evidence
would
not only render the trial unfair but would also, as Cachalia JA
quoting Lord Hoffman's remarks in
Mthembu's
case remarked at
para 36: '. . . it is tantamount to involving the judicial process in
"moral defilelment."' This 'would
compromise the integrity
of the judicial process (and) dishonour the administration of
justice.' I harbour no doubt that the evidence
should not have been
admitted. See
S v
Potwana & Others
1994
(1) SACR 159
(A) at p 164a-b;
S
v Tandwa & Others
2008
(1) SACR 613
(SCA) para [89].
[31] Both counsel were agreed that,
should we exclude the evidence of pointings-out, the counts of
murder, robbery with aggravating
circumstances (involving the alleged
shooting of the deceased with a firearm) and unlawful possession of a
firearm would have to
fall away. However, the evidence of Mathakga
about how the first appellant gave him a grinder on 18 March 2002
after he had towed
the Mazda vehicle for him; Machete about his
purchase of the welding machine on 20 March 2002 from the first
appellant for R100;
Edwin and Elvis about how both appellants came to
their home in the Mazda vehicle during or about 15 March 2002;
Edwin's evidence
that the second appellant gave him a cellular phone;
remains unaffected by the exclusion of the evidence of the
pointings-out.
[32] This evidence stands as an
unshakeable edifice against them. They failed to proffer any
reasonable explanation for their possession
of the deceased's
property soon after he was killed. To my mind, the fact that there is
no evidence regarding when and how the
deceased was killed, in
particular the failure by the doctor who did the post-mortem
examination to find any evidence of wounds
caused by bullets, leads
to the inexorable conclusion that the appellants could only be
legitimately convicted of theft of the
deceased's property as there
is no doubt that the items of property referred to above were
positively identified as belonging to
the deceased.
[33] It follows that the appeal must
succeed to the extent that the appellants are acquitted on all the
other counts except theft
of the Mazda vehicle, the grinder and the
welding machine. Evidently the fact that the appellants have now
been convicted of theft
demands that we interfere with the sentence
imposed on them and to replace it with a sentence that is balanced
and fair to both
the appellants and society in general and which is
commensurate with the gravity of the offence for which they have been
convicted.
[
34] Both
appellants were first offenders. Since their arrest they were both
held in custody. Crucially they have already served
a substantial
part of their sentence since they were sentenced on 25 April 2003.
Fairness and justice demand that we take these
factors into account
and accord them their proper weight in determining an appropriate
sentence. However, these should be balanced
against the following
facts. Both appellants worked with the deceased. The appellants
showed no respect for the deceased's property.
The welding machine
was sold for a paltry R100 whilst the grinder was given away for some
towing service. The vehicle belonging
to the deceased was damaged
when the second appellant capsized it. Thereafter they simply
abandoned it. To my mind this amounts
to sheer arrogance. In the
circumstances of this case, I think that a sentence of six years'
imprisonment would serve both the
interests of society as well as
remain fair and balanced.
[35
] In
the result the following order is made:
1. The appeal by both appellants in respect of the count
of murder is upheld. The conviction and the sentence imposed on this
count
are set aside.
2.1 The appeal by both appellants in
respect of the count of robbery with aggravating circumstances is
upheld to the extent that
a conviction of theft of a Mazda bakkie
(registration BCB 759 N), a welding machine and an angle grinder is
substituted.
2.2 The sentence imposed on both appellants in respect
of the count of robbery with aggravating circumstances is set aside
and substituted
with a sentence of imprisonment for six years. The
sentence is antedated to 25 April 2003 in terms of
s 282
of
the
Criminal Procedure Act 51 of 1977
.
3. The appeal by the first appellant
in respect of the count of unlawful possession of a firearm is upheld
and the conviction and
the sentence imposed on this count are set
aside.
___________________
L O BOSIELO
JUDGE OF APPEAL
CLOETE JA (Leach JA concurring):
[36
] I
have had the advantage of reading the judgment of my colleague
Bosielo JA. I have reached the same conclusion, but I prefer
to state
my own reasons.
[37
] The
two appellants were convicted of robbing and murdering the deceased
with a firearm and the first appellant was also convicted
of the
unlawful possession of that firearm. I should say at the outset that
the first appellant gave no evidence in the main trial
and the
rejection by the trial court of the second appellant's evidence was
not challenged on appeal.
[38
] It
was formally admitted by the appellants that the deceased died
between 13 and 15 March 2002 in consequence of injuries sustained
between those dates. The post mortem report, also formally admitted,
was inconclusive as to the cause of death as the body (which
was
admitted to be that of the deceased) was in an advanced state of
decomposition. The deceased had been partially decapitated
but there
was no evidence to suggest how this might have come about.
[39
] Both
appellants worked together with the deceased. The evidence led by the
State showed the following sequence of events. On Friday
15 March
2002 the appellants were seen together in the deceased's Mazda LDV
and they both drove it; it was damaged when it turned
over whilst the
second appellant was at the wheel; and the second appellant gave the
deceased's cellular telephone to Mr Edwin
Motlakale Senyolo. On
Monday 18 March, Mr Phetole Alfeus Manthakga towed the Mazda with his
tractor at the request of the first
appellant, for which the first
appellant gave him the deceased's angle-grinder. On Wednesday 20
March, the first appellant sold
the deceased's welding machine to Mr
Mohale David Machete for R100 to enable him to put petrol in the
Mazda. The conduct of the
appellants in dealing with the deceased's
property as they did gives rise to the inference that they were aware
of his death when
they did so.
[40
] The
first appellant was arrested at about 11 pm on Saturday 23 April
2002. Thereafter, during the same night, Mr Elvis Kgashane
Senyolo
('K S Senyolo') was arrested. When he asked why, the police told him
to ask the first appellant; and when he did so, the
first appellant
said that it was because the two of them had killed a person (which K
S Senyolo immediately denied). After K S
Senyolo had been arrested,
the first appellant took the police to a place where he attempted to
point out something, but it was
too dark to see. At about 6 am the
next morning (Sunday 24 April) the first appellant took the police to
Machete's home where they
took possession of the deceased's welding
machine and thereafter, approximately an hour later, he took them to
Manthakga's home,
where they took possession of the deceased's
angle-grinder. Later the same morning they returned to the place ─
termed by
the trial court ''n verlate plek' ─ where the first
appellant had earlier attempted to point out something and the first
appellant there pointed out the place where he said he had disposed
of the body of the person he had killed. There was an empty
cartridge
case on the scene. The deceased's widow was called by the police and
in her presence the deceased's body was found hidden
in a hole
amongst rocks. She asked what had happened to the deceased's head and
the first appellant replied that when he had thrown
the body there,
it had still had a head. Also on the Sunday morning the first
appellant pointed out to the police a hidden firearm.
Two days later,
on Tuesday 26 April, each appellant made an incriminating statement
to a magistrate.
[41
] After
a trial within a trial, the trial court found that the State had not
excluded the possibility that the first appellant had
been assaulted
and accordingly, that it had not established that his statement to
the magistrate had been freely and voluntarily
made. The principal
reason for this conclusion was the fresh injuries he showed the
magistrate which were inconsistent with the
State case that he had
never been assaulted. I am unpersuaded that there is any basis to
interfere with this finding. The second
appellant's statement to the
magistrate was excluded for different reasons. However, the trial
judge took into account the statements
made by the first appellant to
K S Senyolo and to the deceased's widow and the fact that it was he
who had pointed out the deceased's
body and a firearm to the police.
The trial judge relied on the decisions of this court in
R
v Samhando
4
and
S v Sheehama
5
as entitling him to
do so. Neither the decision of this court in
S
v January
;
Prokureur-generaal
Natal v Khumalo
6
nor the implications of s 35(1)(a) and (c) of the Constitution, were
apparently drawn to his attention. It is at least a reasonable
possibility that the assault on the first appellant, which the trial
court found may have occurred, commenced shortly after his
arrest and
in consequence, that all the pointings out and statements made by
him, up to and including his statement to the magistrate,
were not
freely and voluntarily made. All that evidence therefore falls to be
excluded.
[42
] I
find it unnecessary to consider whether the fact that the deceased's
body, angle-grinder and welding machine were found should
also be
excluded from consideration (contrast
S
v Tandwa
7
and
S v Mthembu
8
with the dissenting judgment of Scott JA in
S
v Pillay & others
9
).
It was the evidence of the police that none of these things would
have been found but for the first appellant's pointing out
their
whereabouts.
10
Even if the evidence is admitted in terms of s 35(5) of the
Constitution, there is not sufficient evidence to convict either of
the appellants of murder, robbery or possession of a firearm. So far
as the murder is concerned, there are several hypotheses consistent
with the proved facts and inconsistent with the appellants' guilt,
one being that the one appellant killed the deceased without
the
complicity of the other and then agreed to share the deceased's
possessions once the other found him out. So far as the robbery
is
concerned, there is no evidence that violence was used by either
appellant to deprive the deceased of his property, much less
(as
alleged in the indictment) that there were aggravating circumstances
present because a firearm was used. The finding of the
firearm is a
completely neutral fact. For that reason, the conviction of the first
appellant for possession of it must be set aside.
[43
] Counsel
for the appellants correctly accepted that the evidence established
that they were guilty of theft of the deceased's property,
including
his motor vehicle. Taking into account all the purposes which
underlie the imposition of sentence, and giving due weight
to the
personal circumstances of the appellants ─ particularly that
they were first offenders ─ I consider that a sentence
of six
years' imprisonment would be just.
[44] It is for these reasons that I
concur in the order made by my colleague Bosielo JA.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
For appellant: M K STEENEKAMP
Instructed by:
Legal Aid Board
For respondent: J H C VAN HEERDEN
Instructed by:
Director Public Prosecutions,
Pretoria
Director Public Prosecutions,
Bloemfontein
1
Quoting Lord Hailsham in
R
v Wong Kam-ming
[1980] AC 247
;
[1979]
1 All ER 939
(PC) at 261.
2
A 807g-h.
3
See generally DT Zeffertt, AP Paizes and A St Q Skeen T
he South
African Law of Evidence
(2003) at 500-505.
4
1943 AD 608.
5
[1991] ZASCA 45
;
1991 (2) SA 860
(A).
6
1994 (2) SACR 801
(A).
7
2008 (1) SACR 613
(SCA).
8
2008 (2) SACR 415
(SCA).
9
2004 (2) SACR 419
(SCA) para 8:
'I would
imagine, for example, that most fair-minded people, certainly in
South Africa with its high crime rate, would baulk at
the idea of a
murderer being acquitted because evidence of the discovery of the
victim's concealed body would render the trial
unfair.'
10
The significance of this evidence appears from
both the majority (paras 87 to 89) and minority (paras 7 to 9)
judgments in S v
Pillay & others, above, n 6.