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[2017] ZASCA 22
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Mazina v S (494/2016) [2017] ZASCA 22 (24 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 494/2016
In the matter between:
DONOVAN
MAZINA APPELLANT
and
THE STATE RESPONDENT
Neutral
Citation:
Mazina v The State
(494/2016)
[2017] ZASCA 22
(24 March 2017)
Coram:
Ponnan,
Zondi and Mathopo JJA and Nicholls and Coppin AJJA
Heard:
15 February
2017
Delivered:
24
March 2017
Summary:
Evidence:
sufficiency of: statement in terms of
s 115
of the
Criminal Procedure
Act 51 of 1977
.
ORDER
On appeal from
Eastern Cape Division of the High Court, Grahamstown (Beshe and
Majiki JJ sitting as court of appeal):
The appeal succeeds. The
appellant’s conviction and sentence imposed pursuant thereto
are set aside.
JUDGMENT
Zondi JA (Ponnan and
Mathopo JJA concurring):
[1] The appellant
appeared in the regional court, Kirkwood, on a charge of murder read
with
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
. He was
alleged to have killed one Jeremy Swartbooi (the deceased) on 14
April 2012 by stabbing him with a knife. The appellant
pleaded not
guilty to the charge. In support of his plea of not guilty, he made a
statement in terms of s 115 of the Criminal Procedure
Act 51 of 1977
(the Act) in which he stated that he had stabbed the deceased only
once with a knife but contended that he had acted
in self-defence. He
was convicted and sentenced to 15 years’ imprisonment.
[2] The appellant
appealed against his conviction and sentence to the Eastern Cape
Division, Grahamstown (Beshe and Majiki JJ).
That court dismissed the
appeal against conviction, but upheld the appeal against sentence. It
set aside the sentence imposed by
the trial court and replaced it
with a term of 10 years’ imprisonment. The appeal against
conviction is with the special
leave of this Court.
[3] The State case was
based on the evidence of two witnesses, namely Mr Johnny Visagie
(Visagie) and Mr Andile James Tyokela (Tyokela),
both of whom did not
witness the actual stabbing of the deceased. Moreover Tyokela was not
even present when a verbal altercation
between the deceased and the
appellant occurred.
[4] According to
Visagie, who was in the company of the appellant and the deceased
shortly before the fatal incident occurred,
the appellant and his
friend Wayne were smoking an ‘okka pipe’ outside the
tavern. The deceased arrived and asked them
if he could smoke the
pipe. The appellant told him to wait for his turn. The deceased, it
would seem, did not take kindly to being
told to wait. He taunted the
appellant, calling him a ‘gans’. This resulted in a
verbal altercation between the deceased
and the appellant. The
deceased’s friends restrained the deceased when he approached
the appellant. Realising that a fight
was about to occur, Visagie and
his friend decided to go inside the tavern. Up to that point,
Visagie did not see any weapon on
either of the two. The deceased
appeared to be intoxicated. Visagie only learnt later that the
deceased had been stabbed and had
been removed to hospital.
[5] The
evidence adduced by two State witnesses did not advance the State
case. The appellant did not testify in his defence. What
remained was
his statement in terms of s 115
1
read together with the formal admissions under s 220 of the Act. To
the extent relevant his s 115 statement provides:
‘
6. Ek
erken dat ek die oorledene een (1) keer met ‘n mes gesteek het,
toe hy my wou aanval, omdat ons vroeër in ‘n
mondelingse
stryery betrokke was.
7. Ek
het op daardie stadium eerlikwaar geglo dat my lewe in gevaar was
en/of dat ek ernstige liggaamlike leed sou opdoen.
8. Ek
voer aan dat ek myself verdedig het.
9. Ek
ontken dat my optrede wederregtelik was.
10. Na
die steekwond toegedien is, het die oorledene omgedraai en die toneel
verlaat.
11. Ek
het later verneem, en ek aanvaar dit as korrek, dat die oorledene
dood is as gevolg van die een (1) steekwond wat ek hom
toegedien
het.’
[6] The basis of the
trial court’s finding was the following:
‘
Die
erkennings wat aan die hof gemaak is voor die tyd het dit alles erken
wat daar gebeur het, dat daar onderskeidelik dan volgens
die
pleitverduideliking ‘n rede was waarom hy die oorledene se dood
veroorsaak het naamlik dat hy in selfbeskerming opgetree
het deurdat
hy geglo het volgens die pleitverduideliking dat sy lewe in gevaar
was, dat hy ernstige liggaamlike leed sou opdoen.
Dit is dus
gemenesaak beskuldigde het op die tyd en plek gemeld in die klagstaat
hy het die oorledene se dood veroorsaak deur hom
een hou met die mes
in die nek te steek wat gelei het tot sy dood as gevolg van die wond
wat beskryf word in the bewysstuk “C”
voor die hof, die
geregtelikedoodsondersoek.’
[7] The trial court went
on to state the following:
‘
Die
natuurlike gevolg van ‘n handeling is normaalweg dat dit wat
intree was bedoel om in te tree. In hierdie geval is ‘n
meswond
deur die beskuldigde toegedien aan die nek van die oorledene, dit het
tot sy dood gelei. Ek kan nie ‘n ander afleiding
maak as dat hy
die bedoeling gehad het en die gevolg wat ingetree het te
bewerkstellig nie. Sonder om sy weergawe te oorweeg is
daar nie ‘n
weergawe anderste as die natuurlike gevolg sal intree as ‘n
persoon ‘n sekere handeling uitvoer nie.
By gevolg het hy die
opset gehad om die oorledene se dood te veroorsaak, en vind ek hom
SKULDIG
op die aanklag van moord soos aangekla.’
[8] On appeal the court
below endorsed the findings of the trial court and confirmed the
conviction. It held that it was common
cause during the trial that
the appellant admitted in terms of s 220 that he had stabbed the
deceased and that the deceased died
as a result of the stab wound.
The court below reasoned that given that it is unlawful to kill a
person, the appellant’s
admissions amounted to prima facie
proof of the fact that the appellant murdered the deceased and that
required him to place some
evidence to support the existence of his
defence.
[9] In my view, the court
below misdirected itself. After the s 115 statement had been received
into evidence, Mr Diedrich, who
was representing the appellant,
intimated that the latter was willing to make certain formal
admissions. In that regard the record
reads:
‘
Edelagbare
daar is verder ook die normale 220 erkennings wat deur die
beskuldigde gemaak is. Aangeheg is ook die lykskouingsverslag.
Wil
die hof dat ek dit ook inlees in die rekord?
Hof: Asseblief
ja.
Mnr
Diedrich: Erkennings in terme van art. 220 van Wet 51 van 1977. Die
beskuldigde maak hiermee die volgende erkennings, dat die
oorledene
tydens sy leeftyd Jeremy Swartbooi was, dat hy korrek geidentifiseer
is as die person genoem in die klagstaat. Dat die
oorledene op 14
April 2012 as gevolg van ‘n steekwond aan die nek oorlede is.
Dat die oorledene geen verdere beserings opgedoen
het vanaf die
verwydering van die toneel totdat Dr. Jan Antonie de Beer op 17 April
2012 ‘n nadoodseondersoek op sy liggaam
uitgevoer het nie. Dat
die inhoud van die post mortem verslag asook die korrektheid en
bevindings daarvan erken word as bewysstuk.
Dit is dan geteken ook
deur die beskuldigde op vandag se datum sowel as ekself. Ek wens ook
dit in te handig by die Agbare Hof
as verdere bewysstuk.
Hof
aan beskuldigde: Mnr Mazina bevestig u dan die inhoud van die
verklaring uitgelees wat waarskynlik u handtekening het wat u
ook
geparafeer het dat dit korrek is? . . . – Ja
Ek
merk dit dan as bewysstuk “A” in die verrigtinge. Die
formele erkennings wat u daarin maak sê u, u is bereid
dat die
hof dit so erken. Soos wat die ander erken word, word dit dan in
terme van art. 220 genotuleer as erkennings wat u gemaak
het, met
ander woorde die staat hoef dit nie te bewys nie u erken dit. Dan
word die ander dokument ook ontvang, bewysstuk “B”
en in
dit word verwys na bewysstuk “C”, die verslag, die
nadoodseondersoek, met die erkennings vooraf gemaak. U bevestig
dit
ook as korrek. - - - Ja.
U
kan dan maar sit meneer die saak gaan op daardie basis voort.’
[10] It is
immediately apparent that the formal admission ‘die oorledene
op 14 April 2012 as gevolg van ‘n steekwond
aan die nek oorlede
is’, differs markedly from the statement made by the appellant
during the s 115 proceedings.
The material portion of his s 115 statement
provides:
‘
Ek
erken dat ek die oorledene een (1) keer met ‘n mes gesteek het,
toe hy my wou aanval, omdat ons vroeër in ‘n
mondelingse
stryery betrokke was’. The s 220 admission is in the passive
voice. There is thus no formal admission by the
appellant to the
effect that he did anything, much less that he had stabbed the
deceased. Given the quality of the evidence adduced
by the State and
absent a formal admission by the appellant, there was simply no basis
for a conviction. In fact the State appreciated
as much when he
informed the trial court that the appellant must be found not guilty.
[11] I have
read the judgment prepared by Coppin AJA.
My
colleague states (para 19): ‘But for erroneously describing the
admissions as formal admissions before noting them as such,
the
Magistrate, otherwise, acted correctly in terms of s 115(2)(
b
)
of the Act’. With respect to my learned colleague that
erroneous description goes to the heart of the matter. For, it is
upon that erroneous description and the conceptual confusion it
causes that the conviction is founded.
An
admission in terms of s 220 constitutes sufficient proof of the fact
to which it has reference. Where it has such cogency the
State is
relieved of the burden of adducing evidence concerning that
particular fact. An accused is not obliged to consent to a
formal
admission being recorded as such. Where he does not so consent, the
onus remains on the State to prove by admissible evidence
all the
facts which were put in issue by a plea of not guilty. In this case
both the trial court and the court below wrongly regarded
the
appellant’s statement in his s 115 plea explanation as an
admission of fact under s 220 of the Act. It was not. The onus
thus
remained on the State to adduce admissible evidence concerning the
stabbing of the deceased. That, the State failed to do.
A conviction
could accordingly not follow.
[12] In the result the
appeal succeeds. The appellant’s conviction and sentence
imposed pursuant thereto are set aside.
________________
D H Zondi
Judge of Appeal
Coppin AJA (Nicholls
AJA concurring):
[13] I
have had the benefit of reading the judgment prepared by my colleague
Zondi JA. For the reasons set out herein I am not able
to agree with
the reasoning and conclusion reached in that judgment. A fundamental
point on which I differ with my colleague is
whether the trial court
incorrectly regarded the admissions made by the appellant, in his s
115 of the Criminal Procedure Act
51 of 1977 (the Act) plea
explanation, as formal admissions of fact as contemplated in s 220. I
am of the view that the trial court
did not err in that regard for
the reasons I shall briefly traverse. Consequently, the appeal stands
to be dismissed.
[14] At
the outset of the trial the appellant, who was legally represented,
made a written statement in terms of s 115 of the Act
in which he
indicated that he was pleading not guilty to the charge of murder. In
the statement he admits that he was in the presence
of the deceased
on the date the incident occurred, i.e. 14 April 2012. He further
admits that he stabbed the deceased once with
a knife and accepted
that the deceased died as a result of a stab wound inflicted by him.
[15] In
the statement he raises self-defence as a justification for the
stabbing. He states that he and the deceased earlier had
an argument
and that the deceased wanted to attack him. He further states that he
genuinely believed that his life was in serious
danger and that he
was going to suffer serious bodily harm. He specifically denied that
in stabbing the deceased and causing his
death he acted unlawfully.
[16] Of
significance is that in the s 115 statement, he goes on to state the
following concerning the admissions which he made:
‘
E
k
stem toe dat die erkennings hierbo gemaak deur die Abgare Hof
aangeteken mag word as formele erkennings. Maar behalwe vir sodanige
erkennings plaas ek die Staat ten bewys van die ander elemente van
die misdrywe my ten laste gelê.’
The
appellant confirmed his s 115 statement and it was admitted as
‘Exhibit A’.
[17] The
State also produced a written document of other admissions made by
the appellant in terms of s 220 of the Act, relating
to the identity
of the deceased, the cause of death and the chain from the time of
the deceased’s fatal injury to the post-mortem
examination
conducted on his body and also relating to the post mortem report
itself. This written document was admitted as ‘Exhibit
B’
and the post- mortem report as ‘Exhibit C’.
[18] The
record reflects that the Magistrate then engaged the appellant as
follows regarding his s 115 statement (‘Exhibit
A’):
‘
Ek
merk dit dan as Bewysstuk “A” in die verrigtinge. Die
formele erkennings wat u daarin maak sê u, u is bereid
dat die
hof dit so erken. Soos wat die ander erken word, word dit dan in
terme van art. 220 genotuleer as erkennings wat u gemaak
het, met
ander woorde die Staat hoef dit nie te bewys nie u erken dit.’
[19] The
appellant agreed to this, and further agreed to the correctness of
‘Exhibit B’ and ‘Exhibit C’.
But for
erroneously describing the admissions as formal admissions before
noting them as such, the Magistrate, otherwise, acted
correctly in
terms of s 115(2)(
b
)
of the Act.
2
There is no indication on the record that the appellant, who was
legally represented, did not understand what admissions the
Magistrate
was referring to, but clear indication to the contrary.
[20] There
can, therefore, be no doubt as to what the appellant formally
admitted. The only element of the crime of murder that
the appellant
put in issue was that of unlawfulness. The effect of the formal
admissions made by the appellant was that the State
did not have to
adduce evidence to prove the facts formally admitted.
3
[21] The
State then proceeded to adduce the evidence of two witnesses, Mr
Johnny Visagie (Visagie) and Mr Andile James Tyokela (Tyokela),
who
were present at the tavern where the fatal stabbing of the deceased
took place on 14 April 2012. The two witnesses testified
concerning
the peripheral circumstances of the stabbing, but did not witness the
actual stabbing and the events that immediately
preceded it. Their
evidence was very brief.
[22] Visagie
admitted that he had not been sober at the time of the incident and
that he was at Porsha tavern (the tavern) in Aquapark,
Kirkwood, on
14 April 2012, just before 22h00. He and his friend, Frederick, were
smoking an ‘okka pipe’ when they
were approached by the
appellant and his friend, Wayne, and they requested to also smoke the
pipe. Visagie knew the appellant through
friends. The appellant and
his friend smoked the pipe, after Visagie and his friend had
finished. The deceased arrived and asked
the appellant whether he
could also smoke the pipe. The appellant told him to wait a ‘minute’.
[23] According
to Visagie, the deceased was drunk and had tattoos on his arm.
Apparently offended by the appellant’s response
to his request,
the deceased then started taunting the appellant, calling him ‘gans’.
Visagie testified that the deceased
was restrained by his friends,
and that it is at that stage that he realised that ‘trouble’
was imminent, and on his
recommendation, he and his friend,
Frederick, left the scene and went into the tavern. When Visagie was
pointedly asked in cross-examination
whether the appellant’s
plea of self-defence was true, Visagie pleaded ignorance. He answered
as follows:
‘
.
. .
Ek sal nou nie weet
nie, ek het nie gesien dat hy steek hom nie so ek kan nie ‘n
ding in die hof gaan praat wat ek nie van
weet nie. Dan lieg ek vir
myself en ek lieg vir die hof mos nou.’
[24] Tyokela’s
evidence was no better. He prefaced his evidence by stating, in
effect, that he did not know who stabbed the
deceased. He testified
that he saw the deceased standing at the gate where a large group
were smoking an ‘okka’ pipe.
He then saw the deceased
running towards the tavern and that blood was coming from the
deceased’s neck. The deceased ran
to a tap and then onto the
road, where he subsequently collapsed next to a ‘danger box’.
Tyokela readily conceded that
he did not witness the stabbing
incident.
[25] After
Tyokela’s evidence, the State closed its case. The appellant’s
case was closed his case without him testifying,
or calling any
witnesses. The appellant’s representative was apparently
content with the State’s closing argument,
that due to the lack
of evidence and in light of the appellant’s plea explanation
that he had acted in self-defence, the
appellant ought to be given
the benefit of the doubt and acquitted.
[26] Notwithstanding
those submissions, the Magistrate found that the evidence before him
was sufficient and convicted the appellant
of the murder of the
deceased. The basis of the appellant’s appeal in the court
below was that the evidence of the State
was circumstantial, and that
the magistrate erred in concluding that the only reasonable inference
to be drawn from the proven
facts is that the killing of the deceased
was unlawful. Particularly, because the appeal was based on the fact
that the appellant
had raised self-defence as justification in his
plea explanation, and because the State bears the onus to prove the
guilt of the
appellant beyond a reasonable doubt, while the appellant
bore no onus to prove his innocence.
[27] The
court below found that the appellant had a case to answer and that
his failure to give evidence sealed his fate. As to
whether the State
had, notwithstanding the shortcoming of the evidence of the State
witnesses, discharged its onus, the court below
(Beshe J) stated:
‘
It
became common cause during the trial that [the] deceased died as a
result of having been stabbed by the appellant. The appellant
made an
admission in this regard in terms of Section 220 of the Act, thereby
placing this fact beyond issue. Given that it is unlawful
to kill
another; in my view this amounted to prima facie proof that he
murdered the deceased. Although there was no obligation
on the
appellant to prove the defence he had raised in his plea explanation,
the fact that there was a prima facie case against
him required that
he places some evidence to support the existence of the defence he
relies upon before court. By failing to do
so he ran the risk of the
court concluding on the available evidence, that the prosecution had
discharged its burden of proof beyond
reasonable doubt…’
[28] Having
correctly found that the appellant’s plea explanation, and what
had been put to the State witnesses, could not
be taken into
consideration as evidence on oath, the court below concluded that
there was no evidence under oath supporting the
appellant’s
plea of self-defence and that he had been correctly convicted by the
trial court. In my view, the reasoning and
conclusion of the court
below, including that which relates to the formal admissions made by
the appellant, cannot be faulted.
[29] It
is trite that where there is prima facie evidence implicating an
accused in the commission of a crime, there is an evidentiary
burden
imposed on him and evidence, sufficient to give rise to a reasonable
doubt, is required to prevent a conviction.
4
If the accused does not adduce such evidence he runs the risk of
being convicted.
[30] At
the close of the State case the trial court had before it the
evidence of the two witnesses, albeit peripheral to the stabbing.
It
also had before it the formal admissions made by the appellant, inter
alia, that he had stabbed the deceased intentionally
and that the
deceased had died as a result. In circumstances where there was no
evidence given under oath indicating that the appellant
acted in
self-defence, this constituted prima facie evidence implicating the
accused in the commission of the offence and the appellant
had an
evidentiary burden to adduce evidence which was sufficient to create
a reasonable doubt about whether he had indeed acted
in self-defence.
This did not imply that he had an onus to prove his innocence. The
State still bore the onus to prove his guilt
beyond a reasonable
doubt.
5
[31] The
failure of the appellant to adduce the necessary evidence under oath
strengthened the State case and, what was only prima
facie proof,
became proof beyond a reasonable doubt.
6
[32] In
this court the appellant’s legal representative submitted in
his heads of argument, essentially, that everything
that the
appellant stated in his s115 statement,
both
unfavourable and favourable (i. e., including his explanation that he
acted in self-defence), was part of the formal admissions
he made.
Furthermore, that the effect thereof, so it was argued, was to create
reasonable doubt as to whether the appellant had
acted in
self-defence; and that the appellant ought to have been given the
benefit of the doubt and acquitted. Those submissions
are without
merit. A formal admission can only be made in respect of unfavourable
facts and must be an admission, properly so called.
7
The appellant’s statement that he acted in self-defence,
squarely put in issue the unlawfulness of his conduct and cannot
possibly be regarded as an admission of what the State was required
to prove.
[33] The
appellant also relied on what was held in
S
v Cloete
,
8
namely, that the
exculpatory parts of a plea explanation, made in terms of s115 of the
Act, was evidential material that should
not to be ignored. Even
though the exculpatory part of a plea explanation may not be ignored
in determining, at the end whether,
in light of all the evidence, the
State had discharged its onus, it did not have to be given any weight
as it was not repeated
under oath and the State had had no
opportunity to test it in cross-examination.
9
Accordingly, the court below cannot be faulted in its approach to the
appellant’s plea explanation and its ultimate conclusions
concerning it.
[34] In
the result I would dismiss the appeal.
____________________
P Coppin
Acting Judge of
Appeal
APPEARANCES:
For appellant: H Bakker
Instructed by:
Shaun Masimla Attorneys,
Port Elizabeth
Symington & De Kok
Attorneys, Bloemfontein
For respondent: D Els
Instructed
by:
The Director of Public
Prosecutions, Grahamstown
The Director of Public
Prosecutions, Bloemfontein
1
Sections 115(1) and (2) provide as follows:
‘
(1)
Where an accused at a summary trial pleads not guilty to the offence
charged, the presiding Judge, regional magistrate or
magistrate, as
the case may be, may ask him whether he wishes to make a statement
indicating the basis of his defence.
(2)
(a)
Where
the accused does not make a statement under ss (1) or does so
and it is not clear from the statement to what
extent he denies or
admits the issues raised by the plea, the court may question the
accused in order to establish which allegations
in the charge are in
dispute.
(b)
The
court may in its discretion put any question to the accused in order
to clarify any matter raised under ss (1) or this
sub-section, and
shall enquire from the accused whether an allegation which is
not placed in issue by the plea of not guilty,
may be recorded as an
admission by the accused of that allegation, and if the accused so
consents, such admission shall be recorded
and shall be deemed to be
an admission under s 220.’
2
‘(2)
(a)
Where
an accused does not make a statement under subsection (1) or does so
and it is not clear from the statement to what
extent he denies or
admits the issues raised by the plea, the court may question the
accused in order to establish which allegations
in the charge are in
dispute.
(b)
The
court may in its discretion put any question to the accused in order
to clarify any matter raised under subsection (1)
or this
subsection, and shall enquire from the accused whether an allegation
which is not placed in issue by the plea of not
guilty, may be
recorded as an admission by the accused of that allegation, and if
the accused so consents, such admission shall
be recorded and shall
be deemed to be an admission under section 220.’
3
S v Sesetse en ‘n ander
1981 (3) SA 353
(A) at 374.
4
Scagell and others v Attorney-General, Western
Cape & others
[1996] ZACC 18
;
1997 (2) SA 368
(CC) para 12;
Osman & another v
Attorney-General, Transvaal
1998 (4)
SA 1224
(CC) para 22;
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) para 24.
5
DT Zeffertt and AP Paizes
The
South African Law of Evidence
2nd ed.
(2009) at 120-129 and the cases cited therein.
6
S v Mthetwa
1972
(3) SA 766
(A) at 769D - 770B.
7
See Du Toit, et al (eds)
Commentary
on the
Criminal Procedure Act
(1987
)
at 18-11/18-12
; S v Kuzwayo
1964 (3) SA 55
(N) at 57A;
S v Dingoos
1980 (1) SA 595
(O) at 596G-597C.
8
S v Cloete
1994
(1) SACR 420
(A).
9
S v Van Niekerk
1972 (3) SA 711
(A) at 723B;
S v Cloete
(
supra
)
at 428b-g.