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[2021] ZASCA 98
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Mabaso v S (677/2020) [2021] ZASCA 98 (9 July 2021)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 677/2020
In
the matter between:
THERESA
FORTUNATE MABASO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mabaso v The State
(677/2020)
[2021] ZASCA
98
(09
July 2021)
Coram:
MBHA and MBATHA JJA and CARELSE, PHATSHOANE
and MABINDLA-BOQWANA AJJA
Heard
:
12 May 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email,
publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00
on 09 July 2021.
Summary:
Criminal Law – a confession by an accused shall not be
admissible as evidence against his or her co-accused – a
previous
inconsistent statement by a hostile witness is only
admissible to discredit that witness – no other evidence
implicating
appellant in the murder of the deceased – appeal
upheld and conviction for murder set aside.
ORDER
On
appeal from:
Mpumalanga Division of the High Court, Mpumalanga
(Ngobeni AJ, sitting as court of first instance):
1
The appellant’s application for condonation for the late filing
of her Notice
to Appeal, is granted.
2
The respondent’s application for condonation for the late
filing of the respondent’s
heads of argument, is granted.
3
The appeal is upheld. The appellant’s conviction for murder is
set aside, and
the order of the high court is replaced with the
following order:
‘
Accused
2 is found not guilty of murder as charged and is acquitted.’
JUDGMENT
Mbha
JA (Mbatha JA and Carelse, Phatshoane and Mabindla-Boqwana AJJA
concurring):
[1]
On 25 April 2018, the appellant, Ms Theresa Fortunate
Mabaso, who was
accused 2, was convicted of murder by Ngobeni AJ in the high court,
Circuit Local Division of the Eastern Circuit
Division, Mbombela, now
called the Mpumalanga Division (the high court). On
21 September 2018, the appellant and her
co-accused,
Mr Wiseman Mlamuli Ngomane (Mr Ngomane), who was accused 1,
were both sentenced to life imprisonment for
murder, after the high
court found that there were no substantial and compelling
circumstances justifying the imposition of a lesser
sentence. Mr
Ngomane was also sentenced to various periods of imprisonment for
housebreaking with intent to commit murder, robbery
committed with
aggravating circumstances and for unlawful possession of a firearm
and ammunition, which were ordered to run concurrently
with the term
of life imprisonment. This appeal, which is with leave of the high
court, is against the appellant’s conviction.
There is no
appeal by Mr Ngomane.
[2]
The parties have given their written consent for the
disposal of this
appeal on the papers without oral argument in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
. There are two preliminary
applications by the respective parties that must first be disposed of
before delving into the appeal.
First, the appellant applies, in
terms of
rule 12
of the Rules of the Supreme Court of Appeal
(the rules), for condonation for her failure to comply with
rule 7(1)
(b)
of the rules, by not filing a notice to
appeal within the prescribed one month period after leave to appeal
against her conviction
for murder was granted by the high court.
Second, the respondent applies for condonation for the late filing of
its heads of argument.
The parties are opposing each others
respective application.
[3]
The appellant’s notice to appeal was filed simultaneously
with
the application for condonation on 19 August 2020. As leave
to appeal against the conviction was granted on 21 September 2018,
the appellant’s notice was filed approximately 23 months
out of time.
[4]
The appellant has explained that she was convicted for
murder on
25 April 2018 but that the high court did not provide
reasons for its order on that day. The matter was then
adjourned to
24 July 2018, and the high court ordered that she remain in
custody. The high court handed down judgment
and its reasons on
24 July 2018. The appellant subsequently decided to obtain
new legal representation, which necessitated
procuring a
transcription of the entire proceedings to enable her new attorneys
to familiarise themselves with the case.
[5]
The appellant has furnished correspondence showing that
her new
attorneys started writing to the Registrar, Pretoria, from
18 July 2018 requesting a transcript of the recordings.
No
less than 20 letters were sent to the office of the registrar in this
respect. It was only on 23 March 2020 when the
registrar
informed the appellant’s attorneys that the transcription was
ready for collection. However, this unfortunately
coincided with the
announcement and proclamation of the national state of disaster and
the Alert Level 5 lockdown (the lockdown),
which was put into place
due to the Covid-19 pandemic. The appellant’s attorneys were
thus only able to obtain the record
on 20 July 2020.
[6]
In my view, whilst the period of non-compliance for the
filing of the
notice was extraordinarily lengthy, the appellant has furnished a
reasonable explanation for the delay. Furthermore,
in light of the
view I take of this appeal, which will be demonstrated later in the
course of this judgment, and the fact that
the respondent has not
shown that it will suffer prejudice if the application was granted, I
am accordingly of the view that it
is in the interests of justice
that the appellant’s non-compliance should be condoned.
[7]
The respondent’s heads of argument were filed three
months out
of time. Part of the explanation given is that there was an honest
mistake that occurred in the respondent’s office
relating to
the allocation of the matter, which was exercebrated by the lockdown.
It has not been shown that granting the condonation
requested by the
respondent will cause the appellant any recognisable prejudice. In
the circumstances, I am satisfied that the
respondent’s
application for condonation ought likewise to be granted.
[8]
The background facts and the circumstances in relation
to the count
of murder, which is the subject matter of this appeal, are largely
common cause. They are briefly as follows. During
the early hours of
the morning on 8 November 2013, three male persons, armed
with a firearm and ammunition, approached
the house of the deceased,
Mr Sifiso Michael Mabuza, at stand number 1376, Langeloop Trust,
Tonga, Mpumalanga. At the time, the
deceased, who was a member of the
South African Police Service (the SAPS) holding the rank of
constable, and a minor child
were sleeping in one of the bedrooms.
[9]
Two of the assailants forcefully gained entry into the
house through
a window whilst one of them remained outside and kept a lookout.
After a physical struggle with the deceased, one
of the two
assailants shot him in the chest. The assailants robbed the deceased
of his official SAPS issued firearm, after which
all three fled the
crime scene. The deceased died of a gunshot wound to the chest.
[10]
Mr Ngomane was indicted with Mr Sindi Richman Mvubu (Mr Mvubu)
and Mr Victor Sibiya
(Mr Sibiya) as accused 1 to 3
respectively, on all the five counts referred to in paragraph 1.
Mr Sibiya died before the commencement
of the trial. Mr Mvubu
was, on 8 June 2016, convicted on all five charges
consequent to his plea of guilty amplified
by his statement, that was
tendered in terms of
s 112(2)
of the Criminal Procedure Ac 51 of
1977 (the CPA). He was subsequently sentenced to 28 years’
imprisonment for the offences,
10 years of which were suspended for a
period on certain conditions. Effectively, he had to serve 18 years’
imprisonment
for the crimes.
[11]
In his statement in terms of
s 112(2)
of the CPA, marked exhibit
‘F’, Mr Mvubu implicated the appellant in the murder
of the deceased. He stated that
on the day before the incident, the
appellant summoned him, together with Mr Ngomane and Mr Sibiya,
to her place where she
requested him to kill the deceased. The reason
she had wanted the deceased killed was because the deceased had
arrested her and
confiscated her drugs and vehicle. He said the
appellant gave him a deposit of R10 000 to execute the killing
and promised
to give him a further R16 000 when the deceased was
killed.
[12]
On the day after he had been sentenced, and having agreed to testify
as a State witness
in the subsequent criminal trial of Mr Ngomane
and the appellant, Mr Mvubu was brought before Captain Madala
Nwele
Ndlovu (Captain Ndlovu) of the SAPS, to whom he gave a
further statement marked exhibit ‘E’, detailing his
involvement
in the crimes. In this statement, Mr
Mvubu
again implicated the appellant saying that on 7 November 2013
she phoned him and said that she wanted him to kill
the deceased. He
then met the appellant who explained to him that the deceased had
arrested her and locked her up in the cells.
He said the appellant
told him she was prepared to pay him a sum total of R46 000,
inclusive of a deposit of R10 000. She
then paid him the deposit.
Thereafter, he met Mr Ngomane and Mr Sibiya at a tavern
where they planned the murder of the
deceased.
[13]
Before the high court, a confession made on 6 January 2014 by Mr
Ngomane, before
a magistrate, Mr O E Moletsane, was handed in
and accepted as an admission in terms of
s 220
of the CPA. In
this statement, which was marked exhibit ‘D’, Mr Ngomane
implicated the appellant in the crime of murder
by stating that she
was the one who hired Mr Mvubu to kill the deceased and paid him
R10 000 as a part payment of the
total sum of R46 000,
which she undertook to pay him for the killing. Mr Ngomane stated
that the appellant’s reason
for wanting to have the deceased
killed was that the deceased had impounded her vehicle when it was
found transporting dagga and
illicit cigarettes.
[14]
The State led the evidence of various witnesses who gave
viva voce
evidence, none of which directly implicated the appellant. The State
also led the evidence of Mr Mvubu in an attempt to corroborate
the contents of both his plea statement in terms of
s 112(2)
of
the CPA, and the statements he gave to Captain Ndlovu on
8 June 2014, marked ‘E’and ‘F’respectively.
[15]
It transpired that Mr Mvubu had also made another statement
under oath marked
exhibit ‘G’, to Warrant Officer M L
Bhembhe on 30 November 2013. In this statement, Mr Mvubu
alleged
that the appellant undertook to pay him R60 000 if he
killed the deceased. The appellant further undertook, according to
this
statement, to procure the murder weapon and then provided him
with her cell phone numbers. However, he said that he never called
the appellant. Later he received a call from another person advising
him that the deceased had been killed.
[16]
The contents of Mr Mvubu’s statement marked exhibit ‘G’
are markedly
in contrast to those in his statement marked exhibit
‘E’. In exhibit ‘E’, Mr Mvubu stated that the
appellant
offered him a total sum of R46 000, which included a
R10 000 deposit that he shared with Mr Ngomane and Mr Sibiya.
Importantly, he stated unequivocally, in contrast to what he said in
exhibit ‘G’, that he was involved when they went
to the
deceased’s homestead where he was killed. Mr Ngomane was the
person, according to Mr Mvubu, who entered the deceased’s
house
through the window and fired the fatal shot killing the deceased. The
contract killing amount changes remarkably in Mr Mvubu’s
plea statement marked exhibit ‘F’, where he mentioned the
total amount to be paid by the appellant to be R26 000.
[17]
When Mr Mvubu testified, he denied that he ever pleaded guilty
previously. On
being questioned about his plea statement marked
exhibit ‘F’, he said he could not remember his statement
being reduced
to writing and being read into the record before he was
convicted and sentenced. Although he admitted to having taken part in
the
killing of the deceased, he stated in contradiction to both his
statements marked exhibits ‘E’ and ‘F’,
that
Mr Ngomane was not present at the time and that it was instead the
latter’s brother, Mr Mantinti Innocence Ngomane,
who was the
third person involved, and is the person who actually unlawfully
entered the deceased’s home through a window.
Furthermore, Mr
Mvubu testified that their purpose for entering the deceased’s
home was to steal and obtain firearms and
not, as was recorded in
both his statements, at the initiation of the appellant.
[18]
After a trial within a trial, after which the statement marked ‘E’
was
ruled admissible, Mr Mvubu was declared a hostile witness in
terms of the provisions of
s 190
of the CPA. Under
cross-examination by the State, Mr Mvubu denied that he was hired by
the appellant to kill the deceased. He said
that it was the police
who insisted that he should say that the appellant was the person who
hired him to commit the murder.
[19]
The appellant on the other hand testified that she was actively
involved in dealing
in dagga and that she was arrested and convicted
on two occasions. She confirmed that on the last occasion when she
was arrested,
her Hyundai i20 motor vehicle, which she used to convey
the dagga, was impounded. Upon her release, the deceased visited her
at
her home and told her that he was the person who had provided the
information concerning her dealing in dagga to other police officals,
as a result of which she was arrested and her vehicle was impounded.
The deceased then suggested that they work together in illicitly
selling the dagga, but she turned down his overtures. She further
testified that the deceased even undertook to assist her to have
her
impounded vehicle released back to her. She denied ever instructing
or hiring Mr Mvubu or anybody to carry out the murder
of the
deceased.
[20]
The high court accepted that the contents of exhibit ‘E’
consisted of
direct evidence on how the murder of the deceased was
committed by Mr Mvubu, Mr Ngomane and Mr Sibiya, and the
role played
by the appellant in the matter. It also found that Mr
Mvubu had repeated the contents of exhibit ‘E’ in his
guilty
plea marked ‘F’, which was accepted into evidence,
and that it was highly unlikely that he could have repeated what
he
knew to be false in his guilty plea, having regard to the
consequences thereof about which he had been adequately warned.
[21]
The high court took into consideration the testimony of the appellant
namely, that
she was a self-confessed dealer in dagga, that she was
arrested and as a result her vehicle was confiscated, and that the
deceased
had made overtures to assist her in receiving her vehicle
back. The high court then concluded that the previous inconsistent
statement
was interlinked with all the evidence which proved the
guilt of the appellant.
[22]
In its evaluation of the evidence, the high court
correctly accepted that the State did not lead direct evidence
implicating the
appellant in the killing of the deceased. The high
court also accepted as trite law, the common law principle that a
previous inconsistent
statement was only admissible to discredit the
witness, but not as the evidence of the facts stated therein. The
question that
had to be answered, the high court reasoned, was
whether a statement made by a hostile witness had sufficient
evidential value,
when evaluated and assessed with all the evidence
tendered in its totality. The high court placed reliance in the
matter of
S v Mathonsi
,
[1]
where a full bench of the KwaZulu-Natal High Court, Pietermaritzburg,
held that a court is entitled to make substantive use of
the previous
statement by a hostile witness and give the statement, as evidence,
the appropriate weight, provided sufficient guarantees
of reliability
are present. The full bench further found that the statement could
also be utilised for substantial purposes as
an exeption to the
hearsay rule, the basic principles being that a conspectus of all the
evidence was required.
[23]
The only evidence that implicated the appellant in the deceased’s
murder is
that contained in Mr Mvubu’s statement marked
exhibit ‘E’ and his plea of guilty made in terms of
s 112(2)
of the CPA, marked exhibit ‘F’, both made
on 8 June 2016.
[24]
In my view, the high court, with respect,
mischaracterised the reasoning of the full bench in
Mathonsi
.
[2]
In
Mathonsi
the full
bench held that evidence contained in a prior inconsistent statement
is such that it would only be admissible if given
in court. The high
court failed to follow this important guideline prior to admitting
Mr Mvubu’s prior inconsistent
statements.
[25]
Furthermore, the statement marked Exhibit ‘E’
is a confession in which Mr Mvubu implicated the appellant.
Section 219
of the CPA states in explicit language that ‘no
confession made by any person shall be admissible as evidence against
another
person’. This rule has been applied consistently in
various cases in this Court and the Constitutional Court. In
Makhubela v S; Matjeke v S
,
[3]
the Constitutional Court confirmed that extra-curial confessions and
admissions tendered by an accused are inadmissible against
a
co-accused and, therefore, cannot be used against a co-accused. In
Nndwambi v S
,
[4]
this Court stated the following:
‘
As
the State has conceded, the admission incriminating the appellant
should not have been sufficient to discharge the State’s
onus
of proving the appellant’s guilt beyond a reasonable doubt. The
appellant denied any involvement in the commission of
the offences
and no evidence was led by the State other than that of the accused
who incriminated his co-accused.’
[26]
It follows that the high court clearly misdirected itself by failing
to recognise
that Mr Mvubu’s previous statement marked
exhibit ‘E’, was only admissible to discredit him. It was
not
admissible as evidence against the appellant.
[27]
The admission that Mr Mvubu made in his plea statement in terms
of
s 112(2)
of the CPA, exhibit ‘F’, in which he
implicated the appellant must suffer the same fate. The high court
ought not to
have admitted it against the appellant.
[28]
There is another aspect which in my view should
have been regarded as an insurmountable obstacle for the State,
namely that Mr Mvubu
was a single witness as against the
appellant, as well as an accomplice. A reading of the judgment
reveals that the high court
failed to exercise the caution it was
enjoined to do in evaluating Mr Mvubu’s evidence. It is a
widely acknowledged
rule that the evidence of an accomplice should be
treated with extreme caution.
[5]
[29]
The contradictions in all three statements made by Mr Mvubu and his
testimony, which
are obviously material, should have alerted the high
court to be on its guard and find Mr Mvubu to be an
untrustworthy witness.
Being a single witness, the high court ought
to have found Mr Mvubu’s evidence to be unsatisfactory.
[30]
The only other evidence that implicated the appellant was the
confession by Mr Ngomane
marked exhibit ‘D’, in which the
Mr Ngomane stated that he was recruited by Mr Mvubu to partake
in the killing
of the deceased. Other than being clearly inadmissible
in terms of
s 119
of the CPA, and on the basis of the case
authority referred to earlier, this was hearsay evidence not
corroborated by any other
evidence.
[31]
In light of what I have stated above, the appellant’s
conviction was improper
and falls to be set aside. The appellant’s
conviction has also been attacked on other bases, for example, that
the appellant
never received a fair trial as
inter alia
, the
trial judge unnecessarily entered the arena by subjecting the
appellant to unfair cross-examination. I see no reason to delve
into
the other complaints having already found that the conviction must be
set aside.
[32]
In the circumstances, I make the following order:
1
The appellant’s application for condonation for the late filing
of her notice
to appeal, is granted.
2
The respondent’s application for condonation for the late
filing of the respondent’s
heads of argument, is granted.
3
The appeal is upheld. The appellant’s conviction for murder is
set aside, and
the order of the high court is replaced with the
following order:
‘
Accused
2 is found not guilty of murder as charged and is acquitted.’
__________________
B
H MBHA
JUDGE
OF APPEAL
Appearances:
For
appellant: C G Jordaan
Instructed
by: Coert Jordaan Attorneys Inc,
Nelspruit
Giorgi & Gerber Attorneys, Bloemfontein
For
respondent: M R Molatudi with C V Mkhulise
Instructed
by: Director of Public
Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein
[1]
S v Mathonsi
2012 (1)
SACR 335
(KZP).
[2]
See fn 1 above.
[3]
Makhubela v S; Matjeke v S
[2017]
ZACC 36
;
2017 (12) BCLR; 2017
(2) SACR 665 (CC) para 29.
[4]
Nndwambi v S
[2018]
ZASCA 99
para 3. See also Du Toit
et al
Commentary on the Criminal Procedure Act
para 23-22 J.
[5]
Mulaudzi v S
[2016]
ZASCA 70
para 11.