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[2021] ZAECMHC 4
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Kutu v S (CC124/2008) [2021] ZAECMHC 4 (26 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO:
CC124/2008
Heard
on: 14/01/21
Delivered
on: 26/01/21
In
the matter between:
BONGANI
KUTU
Applicant
and
THE
STATE
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
NHLANGULELA
DJP
[1]
This applicant was accused No. 1 at the trial that ended on 27 May
2015 with his convictions
for murder, unlawful possession of a
semi-automatic pistol, and unlawful possession of ammunition.
The applicant was sentenced
on 19 September 2016 to undergo life
imprisonment for murder, with sentences for the other offences to run
concurrently with the
sentence of life imprisonment. He now
applies for leave to appeal against both the convictions and
sentence. The application
for leave is opposed by the State.
[2]
To succeed in the application the applicant is saddled with a duty to
prove that a reasonable
prospect(s) of success on an appeal exists.
This test is expressed in
S v Smith
2021 (1) SACR 567
(SCA) as
follows at para [7]:
“
What the test
of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore,
the appellant must
convince this court in proper grounds that he has prospects of
success on appeal and that those prospects are
not remote, but have a
realistic chance of succeeding. Mote is required to be
established than that there is a mere possibility
of success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other
words, be a sound, rational
basis for the conclusion that there are prospects of success on
appeal.”
[3]
The grounds upon which the application relies upon for the grant of
the application can
be summarised as follows:
(a)
The finding that the applicant confessed guilt was not proved by the
evidence adduced in
the trial within-a-trial.
(b)
Even if the confession made by applicant does meet the requirements
of
s 217
of the
Criminal Procedure Act 51 of 1977
, it should have
been excluded as is envisaged in s 35 (5) of the Constitution, RSA.
(c)
The trial court
erred
in finding that the firearm that was
recovered from Xakuva Nobhekaphaya, which was linked balistically to
the murder of the deceased,
was the same faulty firearm that was
handed over by the applicant to accused No. 2.
(d)
The trial court
erred
in
finding that the evidence proved that the applicant and accused No. 2
had entered into a prior agreement or made common purpose
to kill the
deceased.
(e)
The trial court
erred
in finding that the applicant has an
intention or common purpose with accused No.2 to possess the firearm
and ammunition that were
used to kill the deceased.
[4]
At arguments stage, relevant to the issue of admissibility of the
applicant’s confession,
it was submitted that the evidence
proves that the applicant had visible injuries because Mvu confirmed
this in contra-distinction
to Hanise’s evidence that the
applicant had no injuries. Therefore, it was wrong for the
trial court not to find that
the version of the applicant that he was
assaulted in order to confess was reasonably possibly true. It
was submitted that
the applicant, as a fact, did tell Hanise and Mvu
that he wanted a legal representative to assist him during the
investigations
and, in particular, to be present when Hanise was
interrogating him.
[5]
It was submitted on behalf of the State that at the trial Hanise and
Mvu did not contradict
themselves in any way. Further, the
evidence does not show that the applicant made a request for the
legal representative
to participate in the investigations. The
applicant also sees faults in the evidence led in the main case that
the respondent could
not support. It was submitted that the
trial court should have come to the conclusion that the evidence of
Mr Mphuthumi Dyantyi
was not sufficient for the purposes of the
ultimate convictions in that his discussions with the applicant “were
nothing
more than an attempt by accused No. 1 to stop accused No. 2
and Mr Xolobile in their plan to kill the deceased.”
[6]
It was submitted further on behalf of the applicant that the mere
fact that the confession
was administered by the police was
intimidatory and influential to the applicant. Counsel for the
applicant also drew the
attention of the Court to the case of
S v
Majozi and Others
1964 (1) SA 68
(N) where it was stated that the
mere presence of a peace officer is seen by the accused as an
intimidating factor the confession
may nevertheless be excluded on
the ground of undue influence.
[7]
It was argued that the trial court should have found that the
admission of the confession
rendered the trial unfair and detrimental
to the administration of justice within the meaning of s 35 (5) of
the Constitution,
which reads:
“
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.”
[8]
Counsel for the appellant attacks the convictions on unlawful
possession of a firearm and
ammunition on the basis that the
applicant was not found at the scene of crime in actual possession of
these exhibits. In
other words, the argument is that the
applicant was found incorrectly to be the possessor with intention to
do so. The argument
goes further to say that the evidence does
not prove that the detentor (unidentified hitman) of the firearm and
ammunition had
the intention to possess these exhibits jointly.
The Court was referred to the cases, dealing with robbery as being
the authorities
on which Counsel’s contentions are based,
namely:
S v Gcam-Gcam
2015 (2) SACR 501
(SCA) at [30];
S v
Mbuli
2003 (1) SACR 97
(SCA) at [71].
[9]
However, it bears mentioning that the submission that visible
injuries on the body of the
applicant were proved by the evidence
during trial within-a-trial is not correct. That Mvu
contradicted Hanise on the issue
of the existence of bodily injuries
is also not correct. Further, that the applicant asked Mvu to
cause his legal representative
to be present in the investigations
and during the time of recordal of the confession is not correct.
The proved facts are
that the applicant expressed a wish to be
assisted by a legal representative in court. I remain
unpersuaded, just as I was
in the trial, that the applicant’s
constitutional rights to legal representative was breached.
[10]
The circumstances under which the policemen obtained the confession
of the applicant were canvassed
fully during the trial. On
objective facts I could not find anything untoward with regard to
investigations carried out by
Mvu and his colleagues. The same
can be said about the involvement of Hanise. The submission
that the facts state that
Hanise had played a role of the
investigator is not correct.
[11]
I refer to the portions of the judgment on trial within-a-trial at
paragraphs 23, 24, 25, 26, 27, 28,
29 and 30 as if specifically
incorporated herein which demonstrate that this application for leave
is, at its best, a show that
this case is capable of being argued on
appeal rather than a demonstration of existence of a reasonable
prospect(s) of success
on appeal.
[12]
The high water mark of this application for leave is the criticism of
the admissibility findings, it
being contended that the version of
the applicant ought to have been regarded as reasonably possibly
true,
albeit
without reference being made to the strength of
and the credibility of the state evidence. I am not persuaded
by this contention.
I re-iterate paragraphs 31 and 33 of my
judgment in the trial within-a-trial, which read:
“
[31]
State witnesses based the claim of non-violence on a number of
events, which are that,
inter
alia
,
the accused admitted killing the deceased as early as during their
first interaction with both accused; hence the arrangement
made to
involve Hanise, Verster, Mdepha, Mjindi and Kilili. There is no
need to recount full evidence on those events.
Suffice it to
say that the evidence of State witnesses is acceptable. Accused
1’s contradictory versions in this regard
may be summarised as
follows:
(a)
Hanise
assaulted the accused when he was together with other police
officials. At the same time the accused testified that
he met
Hanise for the first time being alone in the office when the
discussions about a confession took place.
(b)
Hanise
undressed the accused for the purpose of assaulting him. At the same
time the accused testified that he undressed himself.
(c)
It was put to State witnesses that the accused will testify that he
was ridden as a horse
as he lay down on the floor to force him to
confess guilt. On the contrary, he told the Court that he was
merely trampled
with feet on his body.
(d)
He did
not confirm the version put to State witnesses that he had been
forced to admit killing the deceased by means of being suffocated
with a plastic bag.
(e)
Whereas in this case the accused admitted committing murder due to
assault during
the present trial, in the Magistrates’ Court
during bail application he denied killing the deceased despite the
fact that
he had been assaulted to say so.”
…
[33]
I have no hesitation in accepting the submission made on behalf of
the State that the versions
of assault advanced by both accused is
fraught with material inconsistencies and contradictions. Their
versions cannot be
reasonably possibly true in the circumstances.
Even if they were true they would not, on the consideration of all
the evidence
led, be the proximate cause of making self-incriminatory
statements.”
[13]
I understood the submission that the trial court
erred
in
finding that the applicant was intimidated by the presence of the
police to be based on the fact that Hanise should not have
been the
person to administer the taking of the applicant’s confession
by reason merely that he is a policeman. However,
it was not
the applicant’s submission that the facts that are peculiar to
this case, which are different from the facts in
the case of
Gcam-Gcam,
proved biasness on the part of Hanise. My
findings on the issue trenched on the proved facts as is shown in the
judgment as
follows:
“
[34]
What remains is the legal submission made on behalf of the accused
that the confessions and admissions must
be rejected by reason that
Mvu, Hanise and Verster were justices of the peace who were
compromised by the fact that they served
in one and the same
Provincial Task Team concerned in combating organised crime.
There is uncontroverted evidence that these
officials served under 3
different commands, namely Zwelitsha, East London and Mthatha.
Mvu was a member of the Task Team
stationed in Zwelitsha but deployed
to Engcobo to investigate a murder case emanating from there.
The three seats of
the Task Team were completely detached from the
investigating unit that was rooted in Engcobo. The submission
cannot be sustained.
The Appellate Court in the case of
S
v Mbata En Andere
1987
(2) SA 272
(A) stated that in the absence of a genuine suspicion of
biasness towards the suspect, there is nothing irregular with the
practice
of an investigating officer in capacity of a peace officer
taking a confession from a suspect.”
[14]
Without regard to the proved facts the submission that the admission
of the applicant’s confession
should have been excluded by the
trial court in terms of s 35 (5) of the Constitution should not have
arisen. It had not
been demonstrated in this case that the
facts governing the manner in which Hanise went about to obtain the
confession were irregular.
Consequently, it is hard to see how
undue influence can arise. In the absence of objectively
determinable facts pointing
to a violation of constitutional right(s)
of the applicant the trial court could not willy-nilly exercise
discretion to exclude
the confession.
[15]
The grounds that the applicant did not enter into a prior agreement
to kill coupled with the other
ground that the murder weapon he
supplied in order to achieve the purpose to murder the deceased do
not raise reasonable prospects
of success on appeal. They are
merely arguable; moreso in that the facts of this case are
distinguishable from the facts
in the cases of
Gcam-Gcam
, and
Mbuli
. Quite correctly, proof of common purpose is not
the ingredient of joint possession for the purpose of conviction
under s
3 of the Firearms Control Act. In this case, however,
the supplying of the murder weapon for use by a hired-assassin that
was later ballistically linked to the murder made the applicant a
joint possessor of the weapon
. In
this case actual
possession of the exhibits by the applicant
at the murder scene is not a relevant factor or the reason for
conviction on unlawful
possession of the firearm and ammunition.
[16]
Therefore, the application for leave against the convictions must
fail.
AD
SENTENCE
[17]
The over-arching ground of appeal against sentence is not founded on
misdirection that was committed,
but it is that the sentence imposed
is shockingly inappropriate in that it is out of proportion with the
totality of the accepted
facts in mitigation; such as that the
applicant was a first offender, susceptible to rehabilitation and
that he had been in custody
for more than 8 years awaiting
finalization of his case. In a sense, this Court is urged to
grant leave by reason that it
erred
in not finding that the
factors referred to constituted substantial and compelling
circumstances which justify imposition of a
sentence lesser than life
imprisonment. These contentions must be given a short shrift.
There is no reasonable prospect
of success on appeal on those
grounds. The approach adopted by the trial court that the
offences involved in this matter
are serious is not challenged. In
terms of s 15 (1) of Act 105 of 1997 the offence of premeditated
murder here carries
a mandatory sentence of life imprisonment, or in
terms of s 51 (3) a lesser sentence if substantial and compelling
circumstances
are proved by the evidence. The list of factors
mentioned on behalf of the applicant are not such circumstances.
The
sentences under
sections 3
,
15
(2) and
90
of the
Firearms Control
Act 60 of 2000
are mandatory, meaning that the crimes created in
terms of that Act are also serious. Such circumstances as would
mitigate
the sentences under the
Firearms Control Act were
duly taken
into account. This Court is not being told that the trial court
had a room to do more than what it did.
Therefore, it is
unlikely that the appeal court will impose a different sentence other
than life imprisonment. On those considerations
the application
for leave to appeal against sentence must also fail
[18]
In the result the following order shall issue:
“
The
application for leave to appeal against both the convictions and
sentence imposed is dismissed.”
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
For
the Applicant
:
Adv. Halam
:
c/o LD Tsengiwe Attorneys
MTHATHA.
For
the Respondent
: Adv. M.
Siyo
:
The Director of Public Prosecutions
MTHATHA.