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[2019] ZAECBHC 11
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S v Ngqaleni (CC28/18) [2019] ZAECBHC 11 (9 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO: CC28/18
THE
STATE
Versus
MSONDEZI
NGQALENI
ACCUSED
JUDGMENT
STRETCH
J.:
[1]
The 43 year old accused, who was legally represented throughout his
trial,
has been charged with the rape and murder of his 12 year old
niece, NN.
[2]
It is alleged that the offences took place at Rhayi West in the
Zwelitsha
district between 4 and 9 April 2018.
[3]
The accused pleaded not guilty and elected not to give a plea
explanation.
[4]
On Wednesday the 4
th
of April, the deceased and her
brother
Sophephela
who had both contracted chicken pox,
visited Grey Hospital in King William’s Town for treatment.
Sophephela left the deceased
at the hospital to collect a referral
form. When he returned, she was no longer there. He remained at the
hospital until 7pm when
he was given medical treatment. The deceased
was still missing. She was also not at home. That night he and the
accused searched
for her. According to Sophephela the accused
eventually abandoned the search and went to a shebeen. Sophephela
however, persevered
until late that night, but there was no trace of
the deceased. He went back to the accused’s home, where he used
to live
before. Everything was in darkness. He found this strange
because the accused usually left the front light of the house on at
night.
He knocked at the front door. No response. He knocked at the
bedroom window and again at the front door. There was still no
answer.
He went to the kitchen and tried to unlock that door with his
key, but the door was bolted from the inside. This too he found
strange.
The door was not usually bolted from the inside. He pushed
at the door and it opened slightly. He heard the accused’s
voice
coming from the inside. The accused asked him what he wanted.
He told the accused that the deceased was still missing. The accused
did not comment. Instead, he said:
‘
Go
to your gran. She is looking for you.’
[5]
Sophephela returned to his grandmother’s place where he and the
deceased had been staying and resumed the search the next morning.
When he passed the accused’s home the accused enquired
whether
they had found the deceased yet. He told the accused that according
to one Awonke, the accused and the deceased had been
seen leaving the
tavern together the previous night.
[6]
The search continued for the rest of that week, but to no
avail.
[7]
That weekend the deceased’s neighbour, one
Zonke Haya
saw the accused trying to erase a stain from his khaki trousers which
the accused alleged had been left there when he slaughtered
a goat.
[8]
On Monday, 9 April, a woman from a neighbouring locality who
was
looking for stray livestock came across the deceased’s
lifeless body near the local cemetery. Members of the community and
the police gathered at the scene. The accused was also there but just
stood a distance away, smoking.
[9]
That night a vigil was held at the deceased’s home. According
to
Zonke Haya, when he asked the accused whether he was attending,
the accused said:
‘
Why,
are you suggesting that I killed my sister’s child?’
[10]
The accused did not attend the service held to grieve the
shocking death of his deceased
niece. He was seen observing the
proceedings through the window of his home.
[11]
According to Zonke Haya, the accused threatened him with violence the
following day when
he suggested that the accused had killed the
deceased. This prompted Haya to call the investigating officer (Sgt
Dastile). They
managed to find a key for the accused’s home and
gained entry. According to Haya they observed blood spots in the
deceased’s
home.
[12]
During cross examination it was put to Haya that the
accused would deny having
threatened him, and would also deny having
said words to the effect that Haya was suggesting that the accused
had killed the deceased.
[13]
On Wednesday, 11 April 2018 the accused accompanied one Lt Col Mhluzi
to his home and to
the place where the deceased’s body was
found on which occasion it is alleged he pointed out certain things
and made certain
admissions. It was indicated on the accused’s
behalf by his lawyer that the accused disputed the admissibility of
this evidence
and that the information which he gave to the police
was not tendered “freely and voluntarily” on the
following grounds:
a. His
constitutional rights were not explained to him.
b. He
was promised bail.
c. He
was handcuffed tightly to a chair and left on his own for about three
hours. During this period he was not
permitted to use the bathroom.
He was told to “do his business in his pants”.
d. He
was “verbally” assaulted in the sense that he was
“threatened”.
[14]
The State accordingly embarked upon a trial within a trial to prove
the admissibility of
that which transpired at the so-called pointing
out.
The
trial within a trial
[15]
The investigating officer, detective sergeant
Dastile
has been
a member of the SAP for 11 years, having served nine of these as a
detective. He arrested the accused on a charge of murder
after three
on the afternoon of Tuesday, 10 April 2018. He was a constable at
that time. By 16:20 he had already advised the accused
of all his
constitutional rights as set forth in section 35 of the Constitution
and as reflected in a notice of rights in terms
of the constitution
(commonly known as form SAPS 14A). The form provides for the detainee
to be informed of the reasons for his
detention. Thereafter his
rights (as both a detainee and an arrestee) are listed in full,
ending with an invitation in bold print
which reads:
‘
You
can exercise all the abovementioned rights at any stage during your
detention.’
[16]
This portion is followed by what is headed ‘certificate by
detainee’ and then
a third section headed ‘certificate by
third person as witness (if required). The middle section reads as
follows (the manuscript
portions are in italics):
CERTIFICATE
BY DETAINEE
I,
Msondezi Ngqaleni
(name of detainee) hereby certify that I
have been informed in
English
(state language) of my rights in
terms of the Constitution as set out above by
D/Cst P. Dastile
(name of person who informed the detainee) and that I understand the
contents thereof.
DATE
(informed)
2018-04-10
TIME (informed)
16:20
PLACE
(informed)
Zwelitsha
SIGNATURE/THUMBPRINT
OF DETAINEE
SIGNATURE
OF PERSON WHO INFORMED THE DETAINEE
[17]
It is common cause that both Dastile and the accused signed this
portion of the notice,
which explains why a third person was not
required to complete the third section.
[18]
It is clear
ex facie
the form itself that the
third section caters for the situation where a detainee refuses to
sign for the certificate, in which
case a third party is required to
confirm the following:
a. The
identities of the third party, the detainee and the person who
informs the detainee of his rights;
b. The
language of communication;
c. The
rights which were communicated to the detainee;
d. The
fact that the entire form was explained to the detainee;
e. The
fact that the detainee refuses to sign;
f.
The date, time and place;
g. The
signature of the third person.
[19]
According to Dastile he explained the accused’s rights to him
in full for the second
time on the following day (Wednesday, 11
April) at 10:25am when he obtained the accused’s warning
statement. These once again
included the right to remain silent and
the consequences of waiving such right, the right to legal aid or a
lawyer of his choice,
the right to consult with a lawyer, and the
right to apply for bail. He also explained to the accused that this
was a serious matter
and that he should be careful about what he
chooses to say.
[20]
The accused nevertheless made a statement to him which was of such a
nature that he arranged
for Lt Col Kananda to hand the matter over to
an independent commissioned officer. This was where Lt Col
Mhluzi
came into the picture. This also happened to be the third
occasion (according to the prosecution), that the accused was fully
appraised
of his constitutional rights.
[21]
At the time of giving evidence Mhluzi had been a policeman for 33
years. When he took charge
of the pointing out he held the rank of a
captain and was stationed at King William’s Town. He said that
he was familiar
with the procedure as he had conducted quite a number
of pointings out before. He meticulously and carefully took the court
through
a detailed six page form which he had completed before
and after the pointing out itself. According to the form, and on 11
April 2018, he was telephoned to take charge of a pointing out for
Sgt Dastile by one Lt Col Kananda. He agreed and the accused
was
brought to his office.
[22]
It was put to the witness on the accused’s behalf that
“the form was
just given to him and he was told to sign without
the contents being explained.” In particular, the accused’s
rights
in terms of the constitution were not explained to him. The
witness explained that he strictly complied with each and every point
reflected in the form. It was his first meeting with the accused. He
knew nothing about the case as it did not fall within his
policing
precinct.
[23]
The State also presented the evidence of the person who escorted the
accused to and from
the pointing out, as well as unchallenged medical
evidence that the accused was free of injuries both before and after
the pointing
out.
[24]
The
accused
thereafter took the stand in the trial within a
trial. He said that on Tuesday, 10 April his sister-in-law had
summoned the police
in connection with a protection order which she
had against him. It was then that the police were also informed that
the accused
had said that he had killed a child. He was arrested.
This was between 9 and 10am. He was taken to Zwelitsha police station
where
Dastile obtained bucal swabs from him. Thereafter Dastile
handcuffed him and abandoned him in a back room for two to three
hours.
Four policemen returned and demanded the truth, accusing him
of having killed “this child”. He denied this. They said
“Listen to us. We know you are coming from prisons.”
Thereafter they just said “sign here” without explaining
his rights to him. Because they were knocking off, Dastile had taken
him to the charge office and had asked another policeman to
produce
the document “with the rights on it”. This other
policeman completed the document, tore out the accused’s
copy
thereof, and instructed him to sign without explaining anything to
him. He did not do the pointing out “freely and voluntarily”.
He did it because Dastile had said that if he made a confession
Dastile would give him bail.
[25]
During cross-examination the accused conceded that he was not
restrained in any manner
when Dastile escorted him to the police
station. Indeed, Dastile even allowed him to leave the police station
to go out and buy
cigarettes. This was between 10 and 11 that same
morning. Dastile then asked him to come with them to a back room.
They locked
him in this room and left, promising to return soon. He
sat in this room. He waited and waited. After about an hour another
policeman
arrived and asked what he was doing there. This policeman
then handcuffed him (not Dastile at all). He stayed there for another
two hours.
[26]
He also conceded that there was no bad blood between him and Dastile.
He agreed that he
could speak and read English, and that the notice
reflecting his constitutional rights was given to him when he was
charged on
Tuesday, 10 April. He confirmed having signed the second
page of his warning statement (setting out his rights), as well as
the
constitutional notice which he signed when he was arrested on 10
April and which he kept in his pocket for several days. Despite
this,
and his sound command of the English language, he declined to read
this form which he had been carrying on his person day
in and day
out. Significantly, his final words were that if he had read the
notice, he would have elected to remain silent.
Returning
to the main trial
[27]
For reasons which I will deal with in due course, I ruled the
evidence pertaining
to the pointing out admissible and Lt Col Mhluzi
was recalled in the main trial to place evidence before the court as
to what was
said and done during the actual pointing out. In
short, Mhluzi testified from his contemporaneous notes that the
accused
first took him and the official photographer to a certain
house. When they parked outside this house, he had a further
conversation
with the accused which is recorded as follows:
‘
Q:
Do you still want to continue with the pointing out?
A:
Yes.
Q:
Are you sure?
A:
Yes.
Let
me remind you that you are not obliged to do this and whatever you
say will be taken down in writing and will be used as evidence
against you.
A:
Yes you told me in the office.’
[28]
Thereafter the accused lifted the crime scene tape and led them to
the bedroom where he
pointed out the bed where he had committed the
alleged offence. He then took them to an open field where he pointed
out a spot
between the trees where he had dumped the deceased’s
body. He made a verbal statement which Lt Col Mhluzi recorded
as follows:
‘
On
Wednesday 2018/04/04 at about 00:00am I was sleeping in my room alone
at Rhayi West Location, Kingwilliamstown. I heard a knock
at the door
and I woke up to open the door. My nephew (sic) Nomabhelu Ngqaleni
came in and said she wanted to sleep in my bed.
The
two of us slept together in my bed. After some time, I touched her
genitals. She woke up and asked me as to what I was doing.
She said
she doesn’t want to be touched and she was going to report me
to he (sic) mother. She tried to stand up but I held
her fast. She
resisted but I held by her throat and strangle her for a long time.
When
I stopped I noticed that her body was weak. I could realise that she
was already dead. I started to become nervous and I dress
up myself.
I lifted her body up and went out of the house. I crossed the main
tarmac road and I went to the open field. I dumped
her body under the
tree and went back to my room and slept.
I
am now feeling sorry of what I did because that day I was under the
influence of liquor.’
[29]
Thereafter they returned to base where Lt Col Mhluzi allowed the
accused to read his notes
and the statement which the accused had
made during the course of the pointing out.
[30]
He did so without translating from the recorded English as it was
obvious to him that the
accused had a good command of the English
language. After reading through all the documents the accused said
that he was satisfied
and left.
[31]
Mhluzi added that during the course of this trial (on 1 May 2019) he
and Dastile paid a
visit to the spot where the deceased’s body
was found on Monday, 9 April 2018. It was the same spot which the
accused had
pointed out to him on 11 April 2018, as the place where
he (the accused) had dumped the deceased’s body in the early
hours
of the morning of Thursday 5 April 2018. This evidence was
confirmed by Dastile.
[32]
It was put to both these witnesses that the reason the accused
pointed out the spot in
the field was because he and the local
community went there when it was announced that the deceased’s
body was lying there.
He denied having said to Mhluzi that that was
the spot where he had dumped the deceased’s body. Mhluzi
reiterated that he
was not aware of the point where the deceased’s
body had been found until the accused pointed it out and admitted
that he
had dumped the deceased’s lifeless body there. It was
further put to Mhluzi that the accused simply took Mhluzi to his room
to point out where he stayed, but that he at no stage confessed to
Mhluzi that he had committed a crime there.
[33]
It was again put to Mhluzi that the accused’s
instructions were that he was
“mistreated” by the
investigator and promised bail if he did the pointing out.
[34]
It is common cause that
Dr Stuart Dwyer
performed an autopsy
on the deceased’s body in Grahamstown on 11 April 2018,
coincidentally on the same day on which the
accused did the pointing
out. Dr Dwyer recorded his chief post mortem findings as “decomposed
remains” and “fractured
hyoid bone”. He concluded
that the cause of death was not inconsistent with hypoxia owing to
extrinsic upper airway obstruction.
The body presented with secondary
post-mortem changes such as rigor mortis, slipping and discoloured
skin, putrefaction, and multiple
maggots. The brain tissue was
liquified. The genital organs presented with lacerated lesions of the
labia minora, which were possibly
aggravated by decompositional
changes. He could not exclude “post vaginal penetration”.
The genitalia also presented
with a bloody discharge which could also
have been related to decompositional changes.
[35]
The external appearance of the body as described by the doctor is
confirmed in material
respects by the
photos
which were taken
of the child’s body where she was found in the field. The
photos present the maggot-riddled decomposing
and bloated body of a
young female, fully clothed in a denim jacket and jeans, a white
T-shirt, underwear and Nike running shoes.
The fly of the jeans is
unbuttoned, and the zipper appears to be pulled all the way down.
The
defence case
[36]
The
accused
testified in his defence. He confirmed that the
deceased was his niece and said that he last saw her on Tuesday 3
April 2018. He
confirmed the evidence of her brother about the search
which was conducted for her when she did not return from the hospital
on
Wednesday 4 April, in all material respects, save for denying that
he went to the shebeen after having abandoned the search. The
accused
says he went straight to bed. On the following day (Thursday, 5
April) the deceased’s brother passed his house a
couple of
times and reported that they had still not found the deceased.
[37]
That following Monday afternoon (9 April) a neighbour reported that
“someone”
had been found on the other side of town. He
went there with the community members and saw that it was the
deceased. He says he
was shocked.
[38]
The following day (Tuesday, 10 April) Dastile arrived at his
house at about 9am in
the company of his brother, his sister-in-law
and three other policemen. They were there about a protection order
which his sister-in-law
had against him. At some stage, his
sister-in-law mentioned that the accused had confessed that he had
killed the deceased. His
sister Anathi had also mentioned to
him that his sister-in-law was spreading the word that the accused
had been going around saying
that he had killed the child.
[39]
According to the accused his sister-in-law was spreading these
rumours because she wanted
him to be arrested so that she could take
over his big house, and because he had complained to her husband
about the way she dressed.
He was also of the view that Dastile and
his sister-in-law were conspiring against him because they attended
the same church. Dastile
had apparently informed him that a dog had
been taken to his house and that the dog had proved that he killed
the deceased. He
was arrested and threatened by four policemen at
their offices and was told that he would not be released until he
confessed that
he had killed the child. They said that they would
deprive him of his rights and assault him until he defecated himself.
They did
not accuse him of rape at all.
[40]
They abandoned him in a locked office for two to three hours. During
this period another
policeman entered the office and handcuffed him
to a chair. His rights were never read to him. He eventually admitted
that he had
killed the deceased because the police threatened to
detain him indefinitely. When they asked him how he killed the
deceased,
he said that he assaulted her.
[41]
He was told to say at the pointing out that he had killed the child
in his room. However,
when he pointed out his room, he merely said
that this was where he slept. Mhluzi then said: “How did you
assault the child?”,
to which the accused responded that he
slapped her with an open hand. Mhluzi was writing when he said this.
Mhluzi asked him what
happened after he slapped the child. He said,
“The child died”. He did not tell Lt Col Mhluzi that he
touched the deceased’s
genitalia and that he had strangled her
thereafter (as recorded by Mhluzi). He said that this information
must have come from Dastile.
This, despite the fact that Dastile
later testified that the post mortem results (confirming that death
was caused by oxygen deprivation
to the upper airway and that the
deceased has sustained a neck fracture) were not known to the police
at the time of the pointing
out.
[42]
According to the accused Mhluzi then told him to point out the spot
where the deceased’s
body was found. Dastile had also
instructed him to point out this spot. He did not say that this was
where he had dumped the deceased’s
body. Mhluzi also never read
his notes back to the accused. He also did not give the notes to the
accused to read by himself as
he testified.
[43]
The accused alleged that the entire pointing out had been pre-planned
by Dastile and Mhluzi
and that they had decided in advance what was
going to be recorded in Mhluzi’s notes. He was however, unable
to explain why
Mhluzi questioned him at all as to what had
transpired, if Mhluzi knew what he was going to record in advance.
[44] During
my questioning of the accused to obtain clarity on certain aspects,
he told
me (in response to a totally unrelated query), that after he
had made the pointing out Dastile sent him to a “judge”
in Zwelitsha to make a confession. Just before he went into the
judge’s office, Dastile reminded him that he would get bail
of
R500. He told the “judge” that Dastile had promised him
bail and that he had been threatened, whereafter the “judge”
aborted the proceedings without taking his statement. He said that
when he did the pointing out, he did not know the cause of death,
as
Dastile was still waiting for the autopsy results.
[45]
Finally, when the prosecutor put to him that he had touched the
deceased’s private
parts, and that she had objected in response
to which the accused strangled her and dumped her lifeless body in a
field, his reply
was: “That is what I was told by the Colonel”.
[46]
The new feature of the accused’s evidence (that he was
taken to a judicial
officer in Zwelitsha, having had a number of
previous opportunities to raise this both through his lawyer and
particularly when
he testified in the trial within a trial) came as a
surprise. In order to obtain clarity on this aspect, I recalled Sgt
Dastile
. Dastile confirmed that the accused voluntarily went
to make a confession to a magistrate in Zwelitsha (Twani Esq.) the
day after
he did the pointing out and confessed, but that no
statement was taken, because the accused had apparently told the
magistrate
that he was threatened by the police. Dastile said that he
was surprised that the accused had said this and asked him why he was
now making this averment. According to Dastile the accused simply
ignored him and treated him with a different attitude. Dastile
confirmed for the fourth time that the accused was aware of his
rights when he did so, and that no promises had been made to him.
He
produced a standard typed form ex facie its contents intended to be
the preamble to an envisaged statement in terms of section
217(1)(b)
of the Criminal Procedure Act 51 of 1977 (the Act).
[47]
It is common cause that the form reflects that the accused was seen
by Twani Esq in his
private office in Zwelitsha on Thursday, 12 April
2018 at 2:25pm. His constitutional rights to legal
representation were
explained to him in full. When asked
whether he understood the explanation, his response was:
‘
I will make a
statement without legal assistance… It is because I know what
I have done.’
[48]
He was also advised fully of his right to remain silent, and
that if he waived this
right, anything he elected to say could later
be used as evidence against him in a court of law. Significantly, he
again confirmed
that he understood the explanation.
[49]
Thereafter the magistrate recorded that the accused was calm and
collected and appeared
to be in his sound and sober senses. He was
again asked whether he still wished to make a statement,
notwithstanding that it had
been specifically explained to him that
the statement could be used in evidence against him. He replied yes.
He was asked whether
he had any injuries, to which he replied no.
[50]
The following questions and answers are of significance, and I record
them verbatim:
6.4 Did any person,
including the police, assault you or threaten you to make a
statement? Reply: I was threatened by
the police.
6.5 Have you been
influenced by any person to make a statement? Reply: Yes.
6.6 Were you encouraged
by any person to make a statement? Reply: Yes.
6.7 Were any promises or
inducements made to you if you should make a statement?
Reply: I was told if I
confess the matter will be quickly disposed of.’
[51]
Thereafter the questioning was prematurely terminated. The following
is recorded on the
last page of the preamble:
‘
Court abandoned
the confession in view of what the deponent has said in paragraph 6.4
that he was threatened by the police.’
The
admissibility issue
[52]
It
goes without saying that what was recorded by Lt Col Mhluzi amounts
to both a confession that the accused sexually assaulted
the deceased
whereafter he killed her in his home and tried to secrete her body
elsewhere.
[1]
In order for me to
receive this as evidence against the accused I must find that the
State has proved beyond a reasonable doubt
that the relevant
provisions of section 217 of the Act have been satisfied. They read
as follows:
(1)
Evidence of any confession made by any person in relation to the
commission of any offence, if such confession is proved
to have been
freely and voluntarily made by such person in his sound and sober
senses and without having been unduly influenced
thereto, be
admissible in evidence against such a person at criminal proceedings
relating to such offence: Provided –
(a)
That a
confession made to a peace officer, other than a magistrate or
justice… shall not be admissible in evidence unless
confirmed
or reduced to writing in the presence of a magistrate or justice.
[2]
[53]
At the commencement of the
voir dire
the accused admitted to
having made a pointing out and to having made a confession to Lt Col
Mhluzi, but disputed the admissibility
of this evidence (on the basis
that it was not parted with freely and voluntarily) on four grounds:
a. His rights
were not explained to him.
b. He was
promised bail.
c. He was
handcuffed, left on his own for three hours and deprived of toilet
privileges, by Dastile.
d. He was
threatened.
[54]
However, when Dastile testified a different version was put to him,
namely, that Dastile
simply gave the accused a bunch of papers, and
told him that if he signs the papers he will get bail. Dastile did
not even explain
to the accused what he was signing. It was only once
he had signed the “papers” that he was permitted to go to
the
toilet. Prior to this Dastile had kept him handcuffed to a chair
in a locked room on his own for three hours. Dastile also did not
read his rights to him.
[55]
A similar version was put to Lt Col Mhluzi, namely that a form was
just given to him and
he was told to sign, without Mhluzi having
explained the contents to him. It was put to the Colonel that Dastile
had also told
the accused that if he signed Lt Col Mhluzi’s
forms, he would get bail. The part about signing the Colonel’s
papers
was not put to Dastile for his comment.
[56]
When the accused testified in the trial within a trial, a third
bouquet of versions was
introduced, namely:
a. That
he was left in the locked room for two to three hours;
b. That
thereafter Dastile took him to the charge office and asked another
policeman to “take out the document
with rights on it”.
c. That
this policeman then filled out a document, tore out the accused’s
copy and told him to sign without
explaining to him what he was
signing.
d. That
Dastile had told him that if he made a confession, Dastile would give
him bail.
e. He
explained in some detail how Dastile had cuffed his hands behind his
back, which were pressing tightly into
the chair where he was seated.
He said it felt as if his hands were being “choked”
and his arms were swelling
up.
[57]
However, during cross examination it transpired that Dastile did
not handcuff him
at all, but that he was handcuffed by a completely
different policeman who had seen him sitting quite freely in a back
room waiting
for Dastile to return. It also transpired that the form
which Dastile had apparently ordered him to sign upon his arrest and
in
exchange for bail, which later became a form which someone in the
charge office had made him sign, was the SAPS14A form which Dastile
confirmed he himself had signed after he had explained the accused
rights to him, and that the accused signed acknowledgment that
Dastile had explained his rights to him and that he understood them.
[58]
In response to my questions the accused presented a fourth version
about this document,
namely that the form had already been completed
and he was simply told by Dastile to sign it. Be that as it may, it
is in any event
common cause that the accused kept a copy of this
form for himself and on his person for at least a day before he made
the pointing
out. In my view, it is highly improbable (in the light
of his proficiency in the English language) that he would not, in any
event,
have acquainted himself with the contents thereof.
[59]
In my view both Dastile and Mhluzi acquitted themselves extremely
well when they testified
in the trial within a trial. Both
witnesses were well dressed and groomed, and addressed the court
calmly, quietly, confidently
and respectfully. They were not moved
during cross-examination. I have no doubt that they explained
the accused’s rights
to him in accordance with their testimony.
By the same token, I do not believe that Dastile induced the
accused to make a
pointing out and a confession with a mere promise
of bail. If this had been the position, it is highly likely that he
would have
told this to the magistrate (whom he apparently trusted)
in no uncertain terms. If he had been deprived of ablution facilities
over a lengthy period of time and if he had been told that he could
simply defecate himself, I have no doubt that he would have
told the
magistrate this as well.
[60]
The accused insisted, during the trial within a trial on stressing
that he had not read
the constitutional warning form. He added, quite
spontaneously and without having been prompted to do so, the
following words before
he stepped out of the witness box:
‘
If I had read this
(referring to the SAP14A) I would have elected to remain silent’.
[61]
To my mind these words have significant implications for the accused,
particularly in view
of the magistrate’s recording that he did
not take a confession from the accused because the accused told him
that he had
been threatened. I mention but a few:
a. The
accused’s instructions regarding the nature, the significance
and the impact of these alleged threats,
which in part induced him to
make a pointing out and a confession are not at all clear. Indeed,
despite having had a number of
opportunities to describe these
threats in the trial within a trial, and despite having raised his
hand on a number of occasions
to give his lawyer instructions during
the trial within a trial, the accused failed to describe any threats,
and particularly not
threats which were sufficiently serious to
induce him to make a pointing out and a confession.
b. The
accused’s attorney would have this court accept that the
accused opened up to the magistrate because
the magistrate was not
affiliated with the police. This suggestion is highly improbable. If
the accused had a pressing need to
tell someone independent about
threats he could have done so when he was examined by two different
health care practitioners before
and after the pointing out. It is
not suggested that he did so. The undisputed reports from the
hospital strongly suggest the contrary.
c.
Indeed, he did not even explain the nature and extent of these
threats to the magistrate, and on top of that
he completely forgot to
tell the magistrate that he was promised bail if he did a pointing
out and confessed, even though, on his
version, Dastile had reminded
him about the bail immediately before he entered the magistrate’s
office.
d. The
accused’s evidence during the trial within a trial was really
very simple and hinged to a large degree
on his lack of knowledge
that he had a right to remain silent. On his own version, he
confessed because he was not aware of the
fact that he had a choice,
and for no particular other reason. Yet, when the magistrate not only
informed him of the right to remain
silent and the implications of
not remaining silent, he not only indicated that he understood, but
elected to nevertheless proceed
with the statement.
[62]
As I have
said, I ruled the pointing out and the confession admissible at the
end of the
voir
dire.
In
general, such a ruling is provisional and conveys an interlocutory
decision: should new facts bearing on the admissibility of
the
confession come to light at a later stage (as has transpired in this
case), it is the court’s duty to reconsider the
issue, and if
necessary, overrule its own decision.
[3]
[63]
For the reasons which I have already mentioned, I am not however
inclined to do so. It
is clear to me that the bald allegation that he
was threatened by the police was either not seriously made by the
accused, or was
mentioned on the spur of the moment. Differently put,
the requirements for the admissibility were, in my view, properly
satisfied
at the time when the accused made the pointing out and the
confession. The vague mention of threats thereafter to a different
justice
of the peace does not, in the particular circumstances of
this case, taint the pointing out and the confession.
[64]
The accused
has been an appalling witness throughout this trial, frequently
changing his version. I have alluded to examples. His
attempt to
approbate and reprobate in this regard is yet another example of his
fickleness. In short, courts are required to make
a fair-minded
practical judgment of these situations based on the unique facts and
circumstances of each case.
[4]
[65]
The ruling regarding the voluntariness of the pointing out and the
confession accordingly
stands.
[66]
That is not the end of the matter however. The issue of voluntariness
having been insulated
and ruled upon, I now turn to the issue of the
accused’s guilt.
[67]
As I have said, the accused deviated materially from his initial
version that he did make
a pointing out and a confession, to a
diluted rendition that he simply pointed out his home and where
members of the public found
the body, and that any information
reflected in Lt Col Mhluzi’s notes must have come from Dastile
and/or Mhluzi. I have some
difficulty with that proposition for
several reasons. For one, it is common cause that the deceased’s
body was bloated, badly
decomposed and covered in maggots when she
was discovered. This is clear from the photograph album. It would
have been virtually
impossible for any lay person to express a
reliable view as to the cause of death. It is also not in dispute
that the autopsy on
the deceased’s body was conducted virtually
simultaneously with the time that the accused is recorded to have
said the following:
‘
She
tried to stand up but I held her fast. She resisted but I held her by
the throat and strangle her for a long time. When I stopped
I notice
that her body was weak. I could realised that she was already
dead’.
[68]
In short,
the cause of death recorded by Col Mhluzi was clinically confirmed
and dovetailed perfectly with the findings of the pathologist.
In my
view, this is no mere coincidence. The factually correct explanation
given for the deceased’s death was recorded by
Mhluzi because
that is what the accused told him. The accused who, at that stage,
was the only person who could say how she met
her death. The
suggestion by the accused’s attorney that Dastile and Mhluzi
could have taken a calculated guess which transpired
to have been
correct, is in my view irresponsible and speculative. In any event,
if Dastile and Mhluzi were cohorts in setting
the accused up, one
would have expected them to wait out the post mortem results before
contriving a statement purported to have
come from the accused.
[5]
[69]
Secondly, the accused’s confession records that he touched her
genitals and that
she objected to that and threatened to tell her
mother so he strangled her to silence her. Again, this information
could only have
emanated from the accused. It is highly improbable
that police attempting to create a murder motive would mention mere
touching
of the genitals, particularly when the body was found with
the trouser zipper having been pulled completely down.
[70]
Thirdly, the statement recorded as the accused’s closing
statement is one of remorse
or at the very least regret. It reads:
‘
I
am now feeling sorry of what I did because that day I was under the
influence of liquor.’
[71]
Once again, it is highly improbable that malicious policemen would
opt for mitigatory statements
in a confession. Significantly
also, whilst the accused for some reason denies that he visited the
tavern after abandoning
the search, and denies having imbibed liquor
that night, Sophephela’s spontaneous evidence and
uncontradicted evidence was
that the accused indeed visited the
shebeen that night, and that Awonke had said that the accused and the
deceased were seen leaving
the shebeen together.
[72]
The confession and the pointing out made by the accused form the
high-water mark of the
State’s case against him. This being the
case, this court ought to make its best endeavours to search for
corroboration and
circumstantial evidence (other than the
probabilities which I have already referred to) to attach sufficient
weight to the confession
to support a finding that the only
reasonable inference to be drawn in the circumstances is that the
accused sexually violated
and murdered the deceased. Such may be
found in the following:
a.
Sophephela’s unchallenged evidence regarding the accused’s
strange and out of character conduct
late on the night of the
deceased’s disappearance. It was most unusual for the accused
to switch all the lights off and to
bolt the door from the inside. He
never bolted the door and he always left the front light burning.
b. The
accused’s initial silence in the dark house when Sophephela
repeatedly attempted entry, only responding
when Sophephela managed
to push the door open.
c. The
accused nonchalant and neutral reaction to the fact that his little
niece was still missing. Instead he
merely told Sophephela that his
grandmother was looking for him.
d. The
accused’s reluctance to gather close to the deceased’s
body when it was found, as described
in the undisputed evidence of
Zonke Haya.
e. The
deceased’s failure to attend the night vigil held on behalf of
his niece.
f.
The accused’s feeble attempt at suggesting that his
sister-in-law was saying that he had confessed
to the deceased’s
murder because she did not take kindly to his comments about her
clothes and because she wanted him arrested
so she could take over
his house.
[73]
For all these reasons I am satisfied that the confession is
sufficiently reliable (as supported
by the circumstantial evidence,
the probabilities and the mere fact that the accused presented as a
very poor witness) for convictions
to follow.
[74]
There is one further aspect which I need to address. Section
209 of the Act specifies
that an accused may be convicted of any
offence on the single evidence of a confession by such accused that
he committed the offence
in question, if such confession is confirmed
in a material respect or, where the confession is not so confirmed,
if the offence
is proved by evidence, other than such confession, to
have been actually committed.
[75]
As stated in
R v Blyth
1940 AD 355
at 364, confirming evidence
means evidence outside of the confession which corroborates it in
some material respect. In
Blyth’s
case the accused’s
confession that she had murdered her husband by arsenical poisoning
was held to be confirmed by the presence
of arsenic in the body. In
the matter before me, the accused’s confession that he
strangled the deceased until she died,
has been confirmed by the
clinical evidence that the body presented with a fractured hyoid bone
and that the cause of death was
not inconsistent with hypoxia owing
to extrinsic upper airway obstruction.
[76]
The prosecutor has informed me that he is not pressing for a
conviction on rape, but on
the statutory competent verdict of sexual
assault in contravention of section 5 of the Criminal Law (Sexual
Offences and Related
Matters) Amendment Act 32 of 2007 (the Sexual
Offences Act).
[77]
This section states that any person who unlawfully and intentionally
violates a complainant
without his/her consent, is guilty of the
offence of sexual assault. Section 1 of the Sexual Offences Act
describes sexual violation
as (inter alia) any direct or indirect
contact between the genital organs (in this case the deceased’s
genital organs) of
one person, and any part of the body of another
person (in this case the finger or fingers of the accused). The
deceased’s
body was found with the zipper of her trousers
completely down and her underwear exposed. The clinical findings
confirm lacerated
lesions of the labia minora, a bloody discharge to
the genital organs and the comment that post vaginal penetration
cannot be excluded.
[78]
To my mind this is sufficient evidence aliunde to confirm the offence
of sexual assault
(in the common law described as indecent assault).
[79]
In the premises I make the following order:
On
count one, the charge of murder, I find the accused guilty.
On
count two, the charge of rape, I find the accused not guilty.
On
the competent verdict of sexual assault in contravention of
section 5
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
, I find the accused guilty.
_________________
I.
T. STRETCH
JUDGE
OF THE HIGH COURT
9
May 2019
Counsel
for the State:
Mr Kruger
Counsel
for the defence: Mr Erasmus
[1]
See for e.g S v Makhaye
2007 (1) SACR 369
(N) at 374. There the
statement by the appellant that he had ‘killed’ his
girlfriend was held to constitute a confession,
even though the
statement standing alone did not preclude the raising of a defence
such as private defence. This was so because
the appellant had not
(as in the case before me) raised any such defence and had in his
evidence maintained that he had not harmed
the deceased at all.
[2]
It is common cause that Lt Col Mhluzi was then a captain and such a
justice of the peace.
[3]
See S v Mkwanazi
1966 (1) SA 736
(A) 743
[4]
See S v Mpetha & others 1983 (1) SA 576 (C) 588
[5]
Affidavits and evidence in the B-clip of the docket is usually filed
chronologically, A1 being the first document and so forth.
Further
corroboration for Dastile’s version that they obtained the
autopsy results some time after the pointing out is
found in the
fact that the pointing out is marked A17 whereas the post mortem
report is marked A28.