About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2019
>>
[2019] ZAECMHC 76
|
|
Macingwane v S (CA&R20/18) [2019] ZAECMHC 76 (20 November 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION-MTHATHA)
CASE NO. CA &
R20/18
In
the matter between:
SIMFUMENE
MACINGWANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
GWALA
AJ
1.
The appellant was charged, together with two other co-accused
who do
not feature in this appeal, with one count of malicious damage to
property. The appellant was found guilty on that
charge and
sentenced to 10 years imprisonment. Now he is appealing to this court
and the appeal lies against both the conviction
and sentence.
2.
The factual
matrix against which the appellant was convicted and sentenced is
that, on 03 May 2015, and at Mphemba, a village situated
at
kwaBhaca,
[1]
Eastern Cape, the
appellant and the two co-accused set alight two motor vehicles which
belonged to a certain Mr Msindwana who,
apparently, is a police
officer. They all pleaded not guilty to the charge. To prove
its case the state called four witnesses
namely Mr Silulami
Msindwana
[2]
(Silulami), one
Aphiwe Sobetshe (Aphiwe), Lungile Sobetshe (Lungile) and the
investigating officer who also happened to be the
arresting officer,
Phumzile Ntando.
3.
Silulami was the first to give evidence. He testified that on
the
night in question he was at home sleeping. Sometime between 01h00 and
02h00 in the morning, he was awakened up by a gunshot
like sound. He
peeped through the window and saw that the vehicles parked outside in
front of his house were on fire.
4.
He crawled out of the house to go and observe the incident.
He
noticed that there was a white Hyundai parked outside his yard. He
saw three people who appeared from the direction of the burning
vehicles. He could not identify them. They were at a distance when he
saw them. They got into the back of the Hyundai after which
it
drove-off.
5.
Under cross-examination he testified that he managed to identify
one
of those persons, the one who was light in complexion, by the name
Aphiwe. He came across him few months before the trial when
someone
whom he was chatting to next to Sollis Spar mentioned that “
here
is Aphiwe”.
None of the sort was mentioned in the statement
he made to the police or in the evidence in chief. Silulami estimated
the value
of one vehicle at R200.000.00.
6.
The second witness to give evidence was Aphiwe. He testified
that on
03 May 2015, the appellant arrived at his homestead in Sofaya driving
a Hyundai. He said the appellant stated that he had
“
started
the
job”
that he had talked about to Lungile.
Lungile was Aphiwe’s brother. He said they were to burn
Msindwana’s vehicles.
He promised to pay them R8000,00 of which
R 4000.00 would be paid as a deposit. They boarded the Hyundai and
drove to the scene.
The Hyundai was driven by the appellant.
7.
They found alcohol, namely a case of beer and a brandy, at the
back
of the Hyundai where they were seated which the appellant had
come with. They consumed that alcohol on the way. On their
way they
passed by a filling station known as Spargs where 10 litres of petrol
were bought and loaded at the back of the Hyundai.
Their
transport proceeded to the scene where the complainant’s
vehicles were.
8.
They arrived at the scene at approximately 17H30 to 18H00. On
arrival
they were shown the vehicle that they were going to set alight. They
did not immediately execute the assignment. They waited
for a moment
but not much time. While waiting they continued to drink some
alcohol.
9.
After some time, estimated to be less than an hour from the
time they
arrived, they proceeded into the yard where the targeted vehicles
were parked. The appellant entered the premises first.
He was
followed by the accused number two (again, a person who does not
feature in this appeal), then followed by his brother,
Lungile, and
he (Aphiwe) was the last to enter the premises.
10.
On entering the premises Lungile poured petrol on the vehicles whilst
he (Aphiwe)
was guarding if any person would come out from the house.
On the other hand, accused number two torched the vehicles after
which
they went back to board the Hyundai and left.
11.
Under cross-examination, he stated that when the appellant arrived at
his homestead,
he did not get inside the yard, instead he stood
outside the gate and spoke to Lungile. At that time when the
discussion took place
between Lungile and the appellant, he (Aphiwe)
was inside the house. The appellant did not speak to him, so to
speak, instead he
spoke to his brother, Lungile only.
12.
He was arrested together with his brother, accused number one and two
as well
as the appellant. They were interrogated by the police at the
charge office. In that process the police tortured them. He
was
suffocated with a plastic bag which covered from head to neck. This
was done because he was denying the commission of the offence.
He
admitted the commission of the offence pursuant to the torture. He
stated that he was tortured with accused number one
who also admitted
the involvement in the commission of the offence.
13.
Under re-examination he said the cars were put alight by accused
number two,
appellant and his brother.
14.
The third witness, Lungile, testified that the appellant arrived at
his homestead
driving a Hyundai. On that day Aphiwe and himself, had
already been consuming some alcohol which he had bought for a sum of
R300.00
even before the arrival of the appellant. The appellant took
them. He did not tell them where they were going.
15.
First, they went to Spargs filling station where the appellant bought
10 litters
of petrol and put it at the back of the Hyundai where they
were sitting. Then they proceeded to the scene in a location unknown
to him. When they arrived the appellant told them they were
going to burn the motor vehicles of Mr Msindwana. They entered
the
yard and he poured the petrol on the two vehicles. Accused number two
set them alight. They went back to the Hyundai
and drove off.
16.
According to him, he entered the yard together with Aphiwe and
accused number
two only. The appellant remained in the Hyundai.
17.
When the appellant arrived at their home and spoke to him, Aphiwe was
inside
the room. Lungile called Aphiwe and told him that the
appellant wanted them to go and he would give them money. According
to him
the amount they would be paid for the execution of the job was
R4, 000.00 and not R8, 000.00 as stated by Aphiwe.
18.
He told the court that he had consumed liquor even before the arrival
of the
appellant. On their way to the scene the appellant bought them
alcohol, a case of beer and brandy. According to Lungile the
appellant
brought the alcohol on the way contrary to what Aphiwe said
that when they got into the Hyundai the alcohol was already there.
19.
Still under cross-examination Lungile testified that on arrival at
the scene
only accused number two and his brother, Aphiwe, as well as
himself, alighted from the vehicle. He poured petrol on the vehicles
which were identified by accused number two. He disputed that the
appellant identified the vehicles to be burnt as Aphiwe had
testified.
20.
The Investigating officer was also called to testify for the state as
the last
witness. He stated that when they interviewed accused number
one, he told them that whilst he was in custody the appellant and
himself planned to burn the subject vehicles. To carry out this plan
they asked the two state witnesses, Aphiwe and Lungile.
21.
After those witnesses the state closed its case. Accused number one
attempted
to apply for a discharged in terms of Section 174 of the
Criminal Procedure Act 51 of 1977 (Criminal Procedure Act). The
application
was refused without ado. He testified in his defence. He
denied that he gave any information to the investigation officer as
alleged
by him.
22.
He stated that the police took him to the police station where they
assaulted
him and forced him to sign a statement. Suffice to say at
the conclusion of the trial, accused number one was acquitted.
23.
Accused number two also testified. He told the court of his treatment
by the
police at the police station. He testified that after his
arrest, whilst he was kept in the police vehicle, a certain “young
boy” unknown to him was brought and was asked if he (the boy)
knew him. The boy’s response was that he did not know
him.
24.
He was taken to a room or office by one Makhunga, a police official
where he
found two young men who were handcuffed and chained. The
police by the name of Msindwana asked the young men if he was the
person
suspected. They confirmed. He was cuffed with chains. He was
assaulted by Msindwana (the police officer whose cars were burnt) and
other police officers, Makhunga, and the Ntando, the investigating
officer.
25.
He was also covered with plastic bag head to face which was tightened
and held
at the back of his head. He could not breathe. The police
demanded that he should “
tell the truth
” that he
burnt the subject vehicles. He persisted with his denial that he was
not involved in the commission of the crime.
26.
During the assault, the arresting officer instructed him to implicate
the appellant
with the commission of the crime in question which he
did. When he implicated the appellant, the assault stopped.
27.
The appellant also testified in his defence. He testified that he is
a taxi
driver. On the day in question he was at his home and never
went to the scene. He could not remember how and when did he meet
Aphiwe
and Lungile. He denied though that he had discussed with
Lungile that they would go and burn the subject vehicles. He denied
that
he promised Lungile any money and that he went to fetch them
from their homestead.
28.
It is against the above evidence that the accused, including the
appellant,
were found guilty and convicted. The magistrate in his
judgment stated thus:-
“…
The
state called section 204 witnesses to prove the case. Those witnesses
were people who said they were there when this was happening.
And
section 204 specifies that these people before they testify, they
have to be warned by this court. Indeed the court warned
those people
who testified under section 204… I have no reason not to find
accused No2 and 3 guilty of malicious damage
to property. What was in
issue when the defence were addressing the court, was the time of the
offence. They were saying the witnesses
said those 204 witnesses said
it was about 7 PM, whereas [the] Msindwana witness said it was
quarter to 11PM. The bottom line there
is that it was after sunset,
then that is what we take home. Because none of those witnesses said
it was in the morning, and one
says in the evening, therefore the
cars were burnt in the evening, by accused No2 and 3. Therefore I
find both of you
GUILTY
of malicious damage to
property”.
29.
First, it does not appear from the record that Aphiwe was warned in
terms of
section 204
of the
Criminal Procedure Act as
the Magistrate
suggest in his judgment. Second, it does not appear that any
pronouncement was made whether any of the two, Aphiwe
and Lungile,
were indemnified in terms of
section 204
of the Criminal Procedure
Act at the end of the trial. It does appear though that Lungile was
warned. To the extent that the Magistrate
regarded Aphiwe as a
section 204 witness, then an irregularity occurred in the proceedings
because such witness was not warned
at all.
30.
The
magistrates' court is a court of record. Whatever is done which is
directly related to the proceedings has to be recorded in
the record
of the proceedings. It cannot just be accepted that a procedure,
which is not recorded, was followed purely on the magistrate's
ipse
dixit
.
[3]
This, though, is not the turning point in this matter.
31.
It is difficult to understand the reasoning for the judgment. The
evidence was
not analysed and no proper reasons for judgment were
given. All that is said is that the so-called section 204
witnesses
said “they were there when this was happening”.
And that “
they said it was at 7PM, whereas [the] Msindwana
witness said it was quarter to 11”
. It does not appear
where the Magistrate get “quarter to 11 PM”. The
evidence of Silulami was that the incident
occurred between 01h00 and
02h00. According to Aphiwe and Lungile it took place at
approximately 19h00.
32.
There is a
plethora of authorities
[4]
to the effect that in the process of reasoning and analysis of
evidence presented before the court, in reaching its conclusion
(whether it be to convict or to acquit) the court must account for
all the evidence. Some of the evidence might be found to be
false;
some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable; but none
of it may
simply be ignored.
33.
The Magistrate did not account for the judgment he gave. He did not
analyse
the evidence before arriving at his conclusion. He did not
explain why the evidence of the accused persons was not accepted and
why that evidence did not meet the standard of being reasonably
possibly true. He did not even explain on what basis he found
that the state had discharged its onus of proof and why its evidence
was accepted.
34.
He accepted the evidence of the state, apparently, despite the fact
that it
was replete with internal conflicts and contradictions. Even
worse, Aphiwe, one of the state witnesses, stated in no uncertain
terms that they were tortured by the police as a result of which they
admitted the commission of crime. That they were tortured
was
confirmed by accused one and two. No evidence was put through
the investigating officer to deny torture notwithstanding
that he was
also implicated in the torture meted out to accused number one and
two as well as Aphiwe. The Magistrate did not engage
on this at all.
It does not appear from the judgment why this torture did not render
the evidence unreliable.
35.
Whilst it is accepted that the Magistrates Court is generally a busy
court, justice still
requires that he or she who sits to make
judgment about the lives of the people must account for his or her
judgment. A presiding
officer, accounts for his or her judgment by
giving an analysis of the facts before him or her leading to a
conclusion ultimately
reached. This is fair to both the complainant
and the accused. Certainly, the accused person is entitled to know on
the basis of
what evidence is he or she found guilty and by what
evidence did the state managed to discharge the onus resting on it.
Sadly,
it does not appear from the judgment of the Magistrate how the
court was satisfied that the guilt of the appellant was proved beyond
a reasonable doubt.
36.
It is not unreasonable to require the judicial officer to give proper
reasons
for his or her judgment for the judicial officer does not
preside over a matter for merely going through motions. Absent the
reasons,
there is no accountability. In such a case the affected
person remains in doubt about the finding made against him.
37.
The obligation to give reasons for a decision fulfils a variety of
functions.
Giving reasons is an opportunity for the judicial officer
to account. The reasons will inform the person affected by the
decision
as to the justification thereof and enable him or her to
take a decision whether he or she should abide the decision or take
steps
to have it corrected either on appeal as in a case like the
present or corrected and set aside by way of review.
38.
Baxter: Administrative Law at 228
puts it thus:
‘
In the first
place a duty to give reasons entails a duty to rationalize the
decision. Reasons therefore help to structure the exercise
of
discretion, and the necessity of explaining why a decision is reached
and requires one to address one’s mind to the decisional
referents which ought to be taken into account. Secondly, furnishing
reasons satisfies an important desire on the part of the affected
individual to know why a decision was reached. This is not only fair-
it is also conducive to public confidence in the administrative
decision-making process. Thirdly, - and probably a major reason for
the reluctance to give reasons - rational criticism of a decision
may
only be made when the reasons for it are known…’
[5]
[footnotes
omitted)
39.
In my view it is irregular for a Magistrate not to give reasons for
his or her
judgment. It is also unfair to the accused person.
It creates doubt whether the trial was fair or not.
40.
In any event there were internal conflicts and contradictions in the
evidence
of the state witness. Aphiwe in his evidence in chief
stated that the appellant arrived at his homestead and said there was
a job to be done. He promised to pay them R8000.00 for that job. He
testified that the appellant said they were going to burn cars.
41.
Under cross-examination it transpired that he was not even present
when that
was allegedly mentioned as he conceded that he was inside
the house when the discussion took place. In fact, when Lungile
testified
he stated that when the appellant took them, he did not
tell them where they were going and what they were going to do. He
only
told them when they were at the scene that they were going to
burn the vehicles. Lungile disputed that they were promised a sum
of
R8000.00. According to him they were promised R4000.00.
42.
According to Aphiwe, all four occupants of the Hyundai, namely the
appellant,
accused number two, Lungile and himself alighted
from the Hyundai and went into the yard where they set the vehicles
alight.
According to Lungile, the appellant did not alight from that
car and thus did not get into the yard. Lungile denied that the
appellant identified the cars that were to be burnt.
43.
It was Aphiwe, the state witness who confirmed that they were
tortured and forced
to admit their involvement which they did. As a
result of this torture they implicated among others the appellant.
That they were
tortured was confirmed by accused number two who was
tortured with them and forced to implicate the appellant. The torture
was
also confirmed by accused number one.
44.
The sole evidence upon which the appellant was convicted was
extracted from
witnesses through unlawful means, namely torture.
45.
Even if the evidence of third parties obtained through torture was
admissible,
the circumstances of the present matter would call for
exclusion thereof because the admission of that evidence rendered the
trial
itself unfair especially given the contradictions in the
evidence of the state witnesses. The appellant then had to contend
himself
with the contradictions and had to sift his defence through
those contradictions.
46.
Section
35(5) of the Constitution
[6]
is
important in this regard. The section reads as follows:
“
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”.
47.
In
S
v Tandwa
[7]
Cameron
JA observed that section 35(5) of the Constitution marked a clear and
unmistakable departure from the pre-constitutional
approach regarding
the exclusion of improperly obtained evidence and remarked in the
following terms:
“
The
notable feature of the Constitution’s specific exclusionary
provision is that it does not provide for automatic exclusion
of
unconstitutionally obtained evidence. Evidence must be excluded only
if it (a) renders the trial unfair; or (b) is otherwise
detrimental
to the administration of justice. This entails that admitting
impugned evidence could damage the administration of
justice in ways
that would leave the fairness of the trial intact: but where
admitting the evidence renders the trial itself unfair,
the
administration of justice is always damaged. Differently put,
evidence must be excluded in all cases where its admission is
detrimental to the administration of justice, including the sub-set
of cases where it renders the trial unfair. The provision plainly
envisages cases where evidence should be excluded for broad public
policy reasons beyond fairness to the individual accused”
.
48.
In S v
Mthembu
[8]
the Supreme Court of
Appeal put the debate whether the evidence of third parties extracted
by way of torture was admissible beyond
clarity. It held:-
“
[27]
A plain reading of s 35(5) suggests that it requires the exclusion of
evidence improperly obtained from any
person, not only from an
accused. There is, I think, no reason of principle or policy not to
interpret the provision in this way.
It follows that the evidence of
a third party, such as an accomplice, may also be excluded, where the
circumstances of the case
warrant it. This is so even with real
evidence. As far as I am aware, this is the first case since the
advent of our constitutional
order where the issue has pertinently
arisen…
[32]
In regard to the admissibility of evidence obtained as result of
torture, Article 15 of the CAT
cannot be clearer. It requires that:
‘
Each State
shall ensure that any statement which is established to have been
made as a result of torture shall not be invoked as
evidence in any
proceedings, except against a person accused of torture as evidence
that the statement was made.’
The absolute
prohibition on the use of torture in both our law and in
international law therefore demands that ‘any evidence’
which is obtained as a result of torture must be excluded ‘in
any proceedings’. As the House of Lords has recently
stated,
evidence obtained by torture is inadmissible, ‘irrespective of
where, or by whom, or on whose authority it is inflicted’.
The
reason is because of its ‘barbarism, illegality and
inhumanity’. In People (at the suit of the A-G) v O’Brien,
the Supreme Court of Ireland held that ‘to countenance the use
of evidence extracted or discovered by gross personal violence
would
. . . involve the State in moral defilement’. Lord Hoffman, in
A v Secretary of State (No 2) had no doubt that that
the purpose of
the exclusionary rule is to uphold the integrity of the
administration of justice.”
[footnotes excluded]
49.
I am of the view the fact that the evidence was extracted through
unconstitutional
means rendered the trial unfair to the appellant.
Such evidence should have been excluded and could not be relied upon
for
the conviction of the appellant.
50.
Even if the evidence was not excluded by virtue of it having been
extracted
through torture, the state still had problems in its case.
The evidence of Silulami did not prove anything. The evidence
of the investigating officer was equally unhelpful. The
evidence of Aphiwe and Lungile was replete with contradictions and
thus unreliable.
51.
There was yet another contradiction in the evidence of the state. Mr
Msindwana
said he was asleep when he heard a gunshot like sound.
According to him, it was between 01h00 and 02h00 when the incident
occurred.
52.
According to the state witnesses they set the vehicles alight at
approximately
19h00 in the early evening. The gap between these times
mentioned by the state witnesses is too wide. In fact, Mr Msindwana
was
even asleep when it occurred such that he was awakened up from
sleep. He could not mistake early evening with the morning.
53.
The contradictions that appear from the testimony of the state
witnesses compels
one to conclude that the two state witnesses,
Aphiwe and Lungile, made up the story to save themselves from the
assault and torturing
at the hands of the police. The police were on
a mission to find a solution to the damaged property of one of their
colleagues,
Mr Msindwana. They tortured witnesses and other accused
persons to admit to the commission of the offence. Aphiwe and Lungile
did
not even know the actual time in which the incident occurred.
They concocted the story based on their own imaginations just to save
themselves from torture.
54.
The evidence is suspect such that there is no way it could establish
the guilty
of the accused persons beyond reasonable doubt.
55.
The conviction of the appellant was dependant solely on the evidence
of Aphiwe
and Lungile. I am of the view that this evidence should
have been excluded, first, on the principle of S v Mthembu referred
to
above. Second, it should have been excluded in view of the
contradictions.
56.
Since there was no other evidence linking the appellant to the
commission
of the offence, he was entitled to the benefit of doubt.
The state did not prove its case beyond a reasonable doubt.
57.
In view of the conclusion I have reached, it serves no purpose to
deal with
the issue pertaining to sentence.
58.
Accordingly, I am of the view that the appeal should succeed. In the
result
I propose the following order:-
58.1
the appeal is upheld;
58.2
the conviction and sentence of the appellant are set aside.
58.3
the prison authorities are directed to release the appellant from
custody forthwith.
_________________
M
Gwala
Judge
of the High Court of South Africa (Acting),
Eastern
Cape Division, Mthatha
I
agree, and it is so ordered.
____________________
RWN Brooks
Judge
of the High Court of South Africa,
Eastern
Cape Division, Mthatha
Counsel
for the Appellant: Mr Manitshana
Counsel
for the Respondent: Adv. Trietsch
Date
of Hearing: 18 November 2019
Date
of Judgment: 20 November 2019
[1]
Otherwise
known as Mount Frere
[2]
This
is not the same person whose cars were set alight
[3]
Section
4(1)of the Magistrates’ Court Act 32 of 1944 as amended
provides:”
(1)
Every court shall be a court of record.”
[4]
S v Van
der Meyden
1999 (1) SACR 447
(W)
(1999 (2) SA 79)
at 449j -
450c; S v Magadla
2010 (2) SACR 316
(ECM) para.14; S v
Alam
2011 (2) SACR 553
(WCC)para.34; Haarhoff and Another v
Director of Public Prosecutions, Eastern Cape 2019 (1) SACR 371
(SCA)para.37
[5]
See
also Nkondo and Others v Minister of Law and Order and Another;
Gumede and Others v Minister of Law and Order and Another;
Minister
of Law and Order v Gumede and Others
1986 (2) SA 756
(A) at 772I -
J).
[6]
Constitution
of RSA, Act 1996
[7]
[2007]
SCA 34 (RSA) para 116
[8]
[2008] ZASCA 51
;
[2008]
3 All SA 159
(SCA);
2008 (2) SACR 407
(SCA)