About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2018
>>
[2018] ZAKZPHC 2
|
|
Ngubane and Others v S (AR158/17) [2018] ZAKZPHC 2 (2 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
APPEAL
CASE NO:
AR158
/17
In
the matter between:
THEMBELA
ARNOLD NGUBANE FIRST
APPELLANT
MENZIWA
AFRIKA MDAKANE
SECOND APPELLANT
SIFISO
RICHARD MDAKANE
THIRD APPELLANT
SIFISO
HANDSOME KHUBEKA
FOURTH APPELLANT
SIBONGENI
SYDNEY MSIBI
FIFTH APPELLANT
SPHELELE
LALELANI DUBAZANE
SIXTH APPELLANT
SIPHIWE
MABIZELA
SEVENTH APPELLANT
MUTHIKABANI
NASON BUTHELEZI
EIGHTH APPELLANT
MTHENJWA
ERNEST BUTHELEZI NINTH
APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
(Delivered on 2 March
2018)
THE
COURT:
[1]
The Appellants were all convicted, in the Pietermaritzburg High
Court, of the following offences:
1.
Count 1 – Robbery with aggravating circumstances.
2.
Count 2 – Contravening Section 27(1) read with Section 1 of the
Explosives Act (26 of 1956)
– causing an explosion.
3.
Count 4 – Attempted Murder.
4.
Count 5 – Robbery with aggravating circumstances.
5.
Count 6 – Contravening Section 27(1) read with Section 1 of the
Explosives Act (26 of 1956)
– causing an explosion.
6.
Count 8 – Attempted Murder.
7.
Count 9 – Attempted Murder.
8.
Count 10 – Attempted Murder.
9.
Count 11 – Theft.
10.
Count 12 – Contravening Section 27(1) read with Section 1 of
the Explosives Act (26 of 1956) –
causing an explosion.
11.
Count 14 – Attempted Murder.
12.
Count 15 – Attempted Murder.
13.
Count 16 – Attempted Murder.
14.
Count 17 – Murder.
15.
Count 18 – Contravening Section 28(1) read with Section 1 of
Act 26 of 1956 – unlawful possession
of explosives.
16.
Count 19 – Robbery with aggravating circumstances.
17.
Count 20 – Contravening Section 27(1) read with Section 1 of
the Explosives Act (26 of 1956) –
causing an explosion.
18.
Count 22 – Murder.
19.
Count 23 – Murder.
20.
Count 24 – Robbery with aggravating circumstances.
21.
Count 25 – Causing an explosion.
22.
Count 27 – Attempted Murder.
[2]
In addition thereto, the Second to the Ninth Appellants were
convicted of the following offences;
Count 28 – Unlawful
possession of a machine rifle.
Count 29 – Unlawful
possession of a prohibited firearm.
Count 30 – Unlawful
possession of ammunition.
Count 31 –
Contravening Section 28(1) read with Section 1 of Act 26 of 1956 –
Unlawful possession of explosives.
[3]
The following sentences were imposed:
Count 1 – Fifteen
years’ imprisonment.
Count 2 – Ten
years’ imprisonment.
Count 4 – Ten
years’ imprisonment.
Count 5 – Fifteen
years’ imprisonment.
Count 6 – Ten
years’ imprisonment.
Count 8 - Ten
years’ imprisonment.
Count 9 – Ten
years’ imprisonment.
Count 10 – Ten
years’ imprisonment.
Count 11 – Fifteen
years’ imprisonment.
Count 12 – Ten
years’ imprisonment.
Count 14 – Ten
years’ imprisonment.
Count 15 – Ten
years’ imprisonment.
Count 16 – Ten
years’ imprisonment.
Count 17 – Life
imprisonment.
Count 18 – Five
years’ imprisonment.
Count 19 – Fifteen
years’ imprisonment.
Count 20 – Ten
years’ imprisonment.
Count 22 – Life
imprisonment.
Count 23 – Life
imprisonment.
Count 24 – Fifteen
years’ imprisonment.
Count 25 – Ten
years’ imprisonment.
Count 27 – Ten
years’ imprisonment.
Count 28 – Five
years’ imprisonment.
Count 29 – Five
years’ imprisonment.
Count 30 – Fifteen
years’ imprisonment.
Count 31 – Ten
years’ imprisonment.
[4]
The matter comes before us with leave to appeal having been granted
by the Court
a quo
on conviction and sentence in respect of
all counts. In his heads of argument, Mr Paver, for the State,
conceded that there
was insufficient evidence to sustain a
conviction, against the various Appellants, in respect of the
following counts:
APPELLANT
CONVICTION
1
st
Appellant
Counts 11,12,14,15,16,17,18,19,20,22
& 23
2
nd
Appellant
Counts 1,2,4,5,6,8,9 &
10
3
rd
Appellant
Counts 1,2,4,11,12,14,15,16,17,18,19,20,22
& 23
4
th
Appellant
Counts 1,2,4,5,6,8,9,10,11,12,14,15,16,17,18,19,
20,22
& 23
5
th
Appellant
Counts 5,6,8,9,10,11,12,14,15,16,17,18,19,20,
22,
23,24,25 and 27
6
th
Appellant
Counts 11 & 12
7
th
Appellant
Counts 5,6,8,9 &
10
8
th
Appellant
Counts 1,2,4,5,6,8,9,10,11,12,14,15,16,17,18
24,25
& 27
9
th
Appellant
Counts 1,2,4,5,6,8,9,10,11,12,14,15,16,17,18,
24,25
& 27
What
is surprising is his statement that he did not seek the aforesaid
convictions against the said Appellants in the Court
a quo
.
Nevertheless, the Appellants were all convicted of the charges as set
out in paragraphs [1] and [2]
supra
.
[5]
In the preamble to the indictment, the State alleged that the
Appellants and others conspired to form a syndicate “with
the
common purpose to target automatic teller machines (ATMs) of banks
located in various locations in KwaZulu-Natal. Their
aim was
primarily to cause explosions of ATMs in order to steal the cash
contained in them.” The State further alleged
that the
crimes “were all perpetrated or committed in furtherance of the
execution of the aforesaid common enterprise decided
and embarked
upon by all the accused and their co-assailants”.
[6]
It is immediately noted that none of the Appellants were charged with
contravening the provisions of Section 2(1)(e) and (f)
of Act 121 of
1998, that is the management of an enterprise through a pattern of
racketeering; or while managing an enterprise
through a pattern of
racketeering activities, they knew or ought to have known that others
in the same group were involved in activities
which could be termed
forming a pattern of “racketeering”. Perhaps this
omission from the indictment led the
Court
a quo
to hold that
“the question before the Court is whether it was the accused
before Court who committed these offences”.
[7]
In convicting the Appellants however, the Court
a quo
held as
follows:
“
This Court has
also found that the accused before Court acted in furtherance of a
common purpose. They all live or work in
Johannesburg and the
offences that they are indicted for were committed in KwaZulu-Natal.
This on its own shows that they
had planned their missions to commit
these offences. The trend in all the scenes of the crime show
that the same firearms
were used in the commission of the crimes, the
same type of explosives, the use of the stolen motor vehicles and
commercial explosives,
that all these indicate the preplanning in
furtherance of a common purpose. It is clear to this Court that
all the operations
were committed by a group who only had a single
objective, to get money from the ATMs and that if any people are
found to be guilty
or have participated in these offences, that they
acted with a common intention to gain from these operations.
This was not
a kind of activity like people when they are rioting and
other people just join in randomly, it is a planned operation.
This Court accepts that
the State has proved its case beyond any reasonable doubt.”
[8]
Despite it being a lengthy trial with 65 witnesses testifying, most
of the evidence was not in dispute. It was not in
dispute that:
(a)
That certain ATMs situated at the various scenes were in fact
“bombed”.
(b)
That property was damaged in the process of the “bombings”.
(c)
That money was taken from the damaged or destroyed ATMs.
(d)
That passers-by were injured.
(e)
That various complainants were robbed of their belongings
(f)
That Mr Vidhur Jadu; Miss Bongakuhle Nkosi and Mr Sizwe Gule were
killed in the process.
[9]
All the Appellants denied any knowledge or involvement in any of the
alleged offences. At the conclusion of the State’s
case,
they all elected not to testify. None of the Appellants were
directly implicated in any of the alleged offences.
The Court
a
quo
relied on circumstantial evidence and evidence of similar
facts in order to convict all of the Appellants.
[10]
It is accordingly necessary to examine the evidence led by the State
and which was accepted by the Court
a quo
as linking the
Appellants to the offences as alleged in the indictment.
[11]
The evidence against the Appellants can be categorised into four main
areas. These are:
(a)
The arrest of the Appellants and the subsequent recovery of firearms
and explosives at the homestead
of Mr Sibusiso Fakude;
(b)
The linkage of certain of the firearms referred to in (a) above to
certain of the crime scenes in Counts
1 to 27;
(c)
Cellular telephone data and evidence;
(d)
The statements of the intended Section 204 witnesses, Zazi Duma and
Wiseman Mahlobo, which were admitted
in terms of Section 3(1)(c) of
the Law of evidence Amendment Act, 45 of 1988.
(A)
THE ARREST OF AND RECOVERY OF FIREARMS AND EXPLOSIVES
[12]
On the 13
th
January 2013, Warrant Officer Graham,
Constable Stock and certain members of the Tactical Response Team,
acting on a tip-off, stopped
a kombi motor vehicle, with registration
number PSB 762 GP, in the Mtubatuba area. The Appellants (save
for the First Appellant)
were passengers in this kombi which was at
the time driven by Wiseman Mahlobo.
[13]
Upon enquiring what they were doing in the Mtubatuba area, the
Appellants responded that they were on their way
to the funeral of
the late Aaron Buthelezi. (This was subsequently confirmed by a
letter, admitted into evidence by consent, from
the relevant
Ward Councillor, Mr M Q Mkhwanazi, who confirmed that the 8
th
and 9
th
Appellants were known to him and that the funeral
of the late Aaron Buthelezi took place on the 13
th
January
2013).
[14]
The Appellants were all searched and no firearms or explosives were
found in their possession. The kombi
was also searched,
yielding the same result. The personal belongings of each
Appellant, including the cellular phones, were
placed into a “ziplock
bag” allocated for each Appellant. The Appellants were
all thereafter arrested.
After questioning a few of the
Appellants, the police, together with the Second, Eighth and Ninth
Appellants, proceeded to the
Jozini area where the Eighth Appellant
pointed out the homestead of Mr Sibusiso Fakude. He told the
police that all the occupants
of the kombi had spent the previous
night (12
th
January 2013) at the said homestead.
[15]
The rooms at the Fakude homestead were searched and in one of them
three AK47 rifles, a .45 Colt semi-automatic
pistol and 119 rounds of
ammunition were found wrapped in a sheet and concealed under a bed.
(Other items – oil, crowbars,
tape and flex cord were also
found). There was a Ford Bantam bakkie parked in the yard.
A hidden compartment in the
bin of the bakkie was found and in it the
explosives referred to in Count 31 were discovered.
[16]
There is conflicting and contradictory evidence relating to the
discovery of the firearms and explosives.
Colonel Botha,
Warrant Officer de Wet and Warrant Officer Thaver all claim to have
been the first to discover the firearms and
explosives.
Although this may cast some doubt relating to the entire search and
recovery process, we are of the view that
it does not take the matter
any further as it was not challenged that the firearms and explosives
were indeed found.
[17]
The question which the Court
a quo
was faced with related to
the possession of the said firearms and explosives. The
firearms and explosives were not found
in the physical possession of
any of the Appellants. The State relied on the evidence of Mr
Fakude and the statement of Mr
Mahlobo (which will be discussed later
in this judgment), to the effect that all the Appellants (save for
the First Appellant)
spent the night at Mr Fakude’s homestead.
However, scrutiny of Mr Fakude’s evidence reveals that he did
not know
the Appellants, save for the Eighth and Ninth Appellants,
and accordingly did not know who occupied the room in which the
firearms
and ammunition were found. He testified that he and
the Eighth Appellant occupied one room and that some of the
Appellants
slept in the room where the firearms were found whilst
others slept in the kombi. The Court
a quo
held that the
Appellants jointly possessed the firearms and explosives and
accordingly convicted them. This finding is based
on the
reasons of the Court
a quo
referred to earlier in this
judgment (
Para [7])
.
[18]
Where the Appellants were not in actual physical possession of the
items and where joint possession by them was
alleged, the legal
requirements for a conviction are clear. We do not propose
outlining the development of the law on this
subject. This has
been clearly and concisely set out in the recent judgment of the
Constitutional Court in
Makhubela v The State; Matjeke v The
State
2017 (2) SACR 665
(CC)
. The Constitutional
Court approved the test which was established in
State v Nkosi
1998 (1) SACR 284
(W) at 286 H-I
, namely:
“
The issues which
arise in dealing whether the group …… possessed the
guns must be decided with reference to the answer
to the question
whether the State has established facts from which it can properly be
inferred by a Court that:
(a)
The group
had the intention (
animus
)
to exercise possession of the guns through the actual detentor and
(b)
The actual
detentors had the intention to hold the guns on behalf of the group.
Only if both requirements
are fulfilled can there be joint possession involving the group as a
whole and the detentors, or common
purpose between the members of the
group to possess all the guns.”
[19]
It was noted by the Constitutional Court that this test has been
cited with approval in numerous judgments of the
High Court and
Supreme Court of Appeal – see for example
State v Mbuli
2003 (1) SACR 97
(SCA)
;
State v Molimi and
another
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA)
and
State v Kwanda
2013 (1) SACR 237
(SCA)
.
[20]
When applying the test set out in
Nkosi
(
supra
)
to the facts in the present case, there is no evidence from which it
can be inferred that the Appellants had the intention to
exercise
possession of the firearms and explosives through the actual detentor
or that the actual detentors had the intention to
hold the firearms
and explosives on behalf of all the Appellants. There is also
no evidence of who the “actual detentors”
are.
[21]
We are accordingly of the view that the Court
a quo
erred in
finding the Appellants (excluding the First Appellant) guilty
of Counts 28, 29, 30 and 31. It follows that
the convictions in
respect of the unlawful possession of firearms, ammunition and
explosives must be set aside.
(B)
THE LINKAGE OF CERTAIN OF THE FIREARMS RECOVERED IN (A)
SUPRA
TO CERTAIN OF THE CRIME SCENES IN COUNTS 1 TO 27
[22]
The Court
a
quo
relied on the ballistic evidence relating to the firearms found at Mr
Fakude’s homestead to link the Appellants to the commission
of
all the offences in Counts 1 to 27
[1]
.
This despite the Court finding that the evidence showed that “the
firearms found at Fakude’s place were used
in most of these
robberies”.
[23]
The Court
a quo
failed to provide an analysis of the ballistic
evidence to justify its findings as aforesaid. A careful
analysis of the ballistic
evidence reveals the following:
(a)
The firearms found at Fakude’s homestead were Exhibits 22 –
an AK47 rifle; Exhibit 23 –
an AK47 rifle; Exhibit 24 –
an AK47 rifle and Exhibit 25 – a Colt .45 pistol.
(b)
In respect of Counts 1 to 4, only Exhibit 25 – the Colt .45
pistol – was found to have fired
shots at the scene.
(c)
In Counts 5 to 10 only Exhibits 24 – an AK47 rifle and Exhibit
25 a Colt .45 pistol were found
to have fired shots on the scene.
(d)
In Counts 11 to 13, none of the firearms recovered at the Fakude
homestead were found to have fired
shots at this crime scene.
(e)
In Counts 14 to 18 only Exhibit 24 – an AK47 rifle – was
found to have fired shots at the
scene.
(f)
In Counts 19 to 23 only Exhibit 23 – an AK47 rifle – was
found to have fired shots
at the scene.
(g)
In Counts 24 to 27, none of the firearms recovered at the Fakude
homestead were found to have fired
shots at the crime scene.
[24]
In any event, we are of the view that given that the State has failed
to prove who actually possessed the said
firearms, the ballistic
links to some of the crime scenes does not lead to the conclusion
that all the Appellants were present
at those crime scenes. The
Court
a quo
erred in relying on this evidence in concluding
that the only inference to be drawn was that the Appellants were part
of a syndicate
and therefore responsible for the commission of the
various crimes.
(C)
CELLULAR
TELEPHONE DATA AND EVIDENCE
[25]
In convicting the Appellants, the Court
a quo
relied on the
cellular phone records alleged to relate to each of the Appellants.
It is common cause that when the Appellants
were arrested, they all
had cellular phones in their possession. The State relied
heavily on the cellular phone evidence
presented by Ms Theresa Botha,
an expert in analysing cellular phone data. Ms Botha analysed
the calls made from the phones
allegedly in the possession of each of
the Appellants and cross-referenced their location and communication
with each other at
the time when the various crimes, referred to in
the indictment, took place. Her analysis was presented in
Exhibit “NN”
in the Court
a quo
. The Court
a
quo
noted that the analysis revealed that the Appellants
travelled from their “respective places of abode shortly before
each
crime scene in which they were involved and to the crime scene
and then directly back to the original place of departure”.
In summarising Ms Botha’s evidence, the Court
a quo
concluded:
“
Her evidence, she
informed the Court that it also showed that various members of the
syndicate, all the accused before Court, having
devices in their
possession, were on various occasions not only in close proximity of
each other but also in close proximity of
the scenes of the crime
mentioned in the indictments, and at times actually communicating at
the respective scenes.”
[26]
The Court
a quo
described the analysis in Exhibit “NN”
as:
“…
the
existence of a complete web of information of numbers and/or names of
all the accused, which confirms the notion that they were
very well
interconnected to communicate and even bared (sic) different names to
assist the secretive nature of an organisation
of this nature.
The data indicates that at least half of the members of the gang of
the accused were present at Utrecht on
5 December 2012 and more of
the same members present at the next crime scene which was in
Greytown on 5 January 2013.”
[27]
In the light of Ms Botha’s analysis, the Court
a quo
concluded that all of the Appellants were guilty on all counts.
The Court
a quo
however failed to properly analyse the
cellular phone data evidence before it. A perusal of
Exhibit “NN”
reveals that not all of the Appellants’
cellular phones were present in the areas where the crimes were
committed.
[28]
An analysis of this evidence reveals that the undermentioned
Appellants were not linked to the undermentioned crimes
by virtue of
the absence of their cellular phones in the particular area:
APPELLANT
COUNTS
1
st
Appellant
1,2,4,5,8,9,10,11,12,14,15,16,17,18,19,20,
22 & 23
2
nd
Appellant
1,2,4,5,6,8,9 & 10
3
rd
Appellant
1,2,4,5,6,8,9,10,11,12,14,15,16,17,18,19,20,22,
23,24,25 & 27
4
th
Appellant
1,2,4,5,6,8,9,10,11,12,14,15,16,17,18,19,20,
22 & 23
5th
Appellant
1,2,4,5,6,8,9,10,11,12,14,15,16,17,18,19,20,
22,23,24,25 & 27
6
th
Appellant
11 & 12
7
th
Appellant
5,6,8,9,10,19,20,22 &
23
8
th
Appellant
1,2,4,5,6,8,9,10,11,12,14,15,16,17,18,24,25
& 27
9
th
Appellant
1,2,4,11,12,14,15,16,17,18,24,25
& 27
Notwithstanding
this, the Court a quo convicted all the Appellants of all the crimes.
[28]
In respect of the remaining counts, the Court
a quo
relied on
evidence that Exhibit “NN” showed that their cellular
phones were used within the range of a particular cellular
phone
tower near the scenes of the various crimes. This was
notwithstanding evidence that the reception of some of the cellular
phone towers had a range of up to 34kms. Even if one were to
accept that some of the Appellants’ cellular phones were
found
to have been used within the range of a particular cellular phone
tower, the mere presence of their cellular phones within
the area,
cannot, without more, form the basis for drawing an inference that
they were involved in the commission of the offences
as set out in
the indictment.
[29]
The caution in solely relying on cellular phone evidence, without
corroboration, was alluded to by Jappie DJP (as
he then was) in
State
v Green-Thompson & Others
(unreported) Case No.
63/2011
,
(30
th
August 2013)
where
the accused were charged with a number of robberies and where there
was little direct evidence identifying each accused
as being
present at the various robberies. Whilst one of the accused was
placed in the vicinity of a police station which
had been robbed of
certain firearms, and where the accused was later found in possession
of one of the firearms stolen, coupled
with an unsatisfactory
explanation for his presence in the area, the Court was satisfied
that there was sufficient evidence to
convict him of robbery.
On the other hand, the Court went on to say the following about the
remaining counts:
“
On Counts 4 and 5
the only evidence that implicates Accused 1 are the cellphone records
which places him in the vicinity of the
Pump House Pub on 28
th
January 2010 and at the Pit Stop Pub on 30
th
January 2010. Suspicious as this cellphone evidence may be and
that it may well establish an association with the other accused,
there is no physical evidence linking him directly to the robberies
at these two pubs. In regard to these offences, we come
to the
conclusion that the evidence is insufficient to prove beyond
reasonable doubt that Accused 1 was involved to the degree
that the
law requires with these robberies. We therefore find that the
accused is not guilty on Counts 4 and 5.”
[30]
Similar views were echoed by Cachalia AJA (as he then was) in
State
v Molimi & Another
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA), at paragraph
16
, where the following is stated:
“…
The only
evidence against the Appellants were the abovementioned cellphone
records that linked the three accused and, in the case
of the Second
Appellant, his own statement that had been found to be admissible
against him.”
The
Court concluded at paragraph 22 that:
“…
While
incriminating, creating a strong suspicion of his complicity in the
events of the day, the (cellular phone) records would
not, in my
view, without any further evidence, have created a sufficient basis
to convict him.”
[31]
When the matter presented before the Constitutional Court –
State v Molimi & Another
[2008] ZACC 2
;
2008 (2) SACR 76
(CC)
, it upheld the finding of the Supreme Court of Appeal,
noting that:
“…
The
evidence contained in the cellphone records, while incriminating,
would not, without further evidence, having created a sufficient
basis upon which to convict the Applicant.”
[32]
We are accordingly of the view that the Court
a
quo
erred in accepting the cellular phone evidence as sufficient proof
that the affected Appellants were at all the various scenes
where the
crimes were committed. On its own the evidence relating to the
various cellphones suggests complicity where it
links an Appellant to
a significant area; but in our view the other available evidence does
not create an evidential framework
which, in combination with the
cellphone evidence generates proof beyond a reasonable doubt.
(D)
THE
STATEMENTS OF THE SECTION 204 WITNESSES
[33]
On the 29
th
December 2012, Mr Zazi Duma (“Duma”)
signed a statement under oath concerning his activities in connection
with the
ATM bombings and robberies. He did so under the
protection of Section 204 of the Criminal Procedure Act. On the
23
rd
January 2013, Mr Wiseman Mahlobo (“Mahlobo”)
also signed a statement under oath concerning his involvement in the
criminal
activities, also under the protection of Section 204 of the
Criminal Procedure Act. These statements described events which
were included in the indictment. It was the intention of the
prosecution to call both Duma and Mahlobo to testify in support
of
its case against the Appellants. However, sadly both Duma and
Mahlobo died before the trial commenced.
[34]
During the trial the prosecution made an application to admit the
statements of Duma and Mahlobo into evidence.
This application
was made in terms of
Section 3
of the
Law of Evidence Amendment Act,
45 of 1988
. Notwithstanding opposition from defence counsel,
the learned Judge granted the application. The learned Judge
was
of the view that as the State had offered “to block the
names of the accused or any other person that may be mentioned or
stated in those statements,” this eliminated the element of
prejudice to the Appellants. Despite this undertaking from
the
State to block or delete the names of persons mentioned in the
statements of Duma and Mahlobo, the record reveals that this
was not
completely fulfilled. It is necessary, before dealing with the
application and the role that the statements played
in the trial, to
briefly consider the extent of the said statements
[35]
Duma’s statement comprises a confession to his involvement and
participation in the events which gave rise
to Counts 1 to 18. This
involved three ATM bombings, three counts of attempted murder, one of
murder and one of the possession
of explosives. His description
of the
modus operandi
of the gang of which he said he was a
part, supports a conclusion that he participated in a continuous
enterprise involving joint
possession of firearms, ammunition and
explosives, as alleged in respect of all the accused in the
indictment on Counts 28 to 31.
In furnishing an account of the
events he described in his statement, Duma identified his alleged
co-participants by name on numerous
occasions. Those names were
removed from the copy of the statement handed in. One assumes
that the resultant blank
spaces signify the presence of the names of
persons who were the accused before the trial Court because the names
of other people
involved in Duma’s account of the events were
not blanked out.
[36]
Mahlobo’s statement is in much the same vein as that of Duma.
In his statement Mahlobo confessed his
guilt with regard to Counts 1
to 4, 11 to 13, 19 to 23 and 24 to 27. He dealt extensively
with his participation in the possession
of firearms, ammunition and
explosives which would support the basis upon which the State
advanced its case in respect of Counts
28 to 31 – i.e. that
there was common continuing joint possession of firearms and
explosives by the gang.
[37]
Mahlobo’s statement also incorporated numerous references to
the names of his co-perpetrators and save in
one respect, these names
were removed from the copy handed in. As with Duma’s
statement, the identities of other players
in Mahlobo’s account
of events were not expunged. The exception in Mahlobo’s
statement lies in the fact that
the names of persons who were the
accused in the Court
a quo
appear in a list of persons who
were arrested together with Mahlobo when the kombi in which they were
travelling, driven by Mahlobo,
was stopped by the police. That
might have been considered unremarkable, given that it is not
disputed that those persons
were arrested on that occasion, but for
the fact that the statement conveys that those arrested in the kombi
slept the night before
in the house in which the firearms and
ammunition were later recovered and were associated with the other
vehicle from which the
explosives were extracted from behind a secret
panel.
[38]
In presenting his argument in the Court
a quo
for the
admission of the statements under
Section 3(1)(c)
of the
Law of
Evidence Amendment Act, counsel
for the prosecution acknowledged that
the statements were confessions and that they fell within the
provisions of Section 219 of
the Criminal Procedure Act.
Section 219 provides:
“
No confession made
by any person shall be admissible as evidence against another
person”.
Counsel
pointed out that the section draws no distinction between extra
curial confessions made by co-accused and extra-curial confessions
made by anyone else. He described the decisive points to be
decided by the learned Judge as the issues as to whether the
“device
of removing the names which may point to persons who may or may not
be in this Court” would answer an objection
under Section 219
of the Criminal Procedure Act and negate any prejudice which would
otherwise be caused to the accused through
the admission of the
statements.
[39]
When furnishing her reasons for admitting the statements in the
edited form, the learned trial Judge made no reference
to Section 219
of the Criminal Procedure Act. The learned Judge noted that
defence counsel had objected upon the basis that
admitting the
statements would prejudice the accused’s fair trial rights
guaranteed in terms of Section 35 of the Constitution.
She held
that she had a wide and flexible discretion in terms of
Section
3(1)(c)
of the
Law of Evidence Amendment Act when
the admission of
the evidence was in the interests of justice. This was contrary
to the decision of
State v Ndlovu and Others
2002
(2) SACR 325
(SCA) at paragraph 22
where it was held that a
decision on the admissibility of hearsay is one of law and not
discretion. The learned Judge then
held that it was in the
interests of justice to admit the statements in truncated form
because the exclusion of the names of persons
would eliminate any
element of prejudice.
[40]
The learned trial Judge revisited the issue in her judgment.
Concerning the role of those statements in the
decision as to whether
the accused should be convicted, the learned Judge
a quo
recorded that the Court had decided “to accept the evidence of
Zazi Duma and Mahlobo only in so far as it relates to executive
statements and where such executive statements are confirmed by
evidence aliunde. We have steered completely off and did
not
rely on the versions that they have given in their statements in
consideration of the evidence in this case”. The
difficulty we experience in considering this approach to the
statements is that both of them are entirely narrative in nature.
[41]
The exception to the inadmissibility of hearsay evidence which is
allowed by
Section 31(c)
of the
Law of Evidence Amendment Act is
qualified by the opening words of the Section which render its
provisions subject to the provisions of any other law. The
Criminal Procedure Act is such another law and Section 219 of that
Act is a provision which forbids the admission of an extra-curial
confession against any person except its maker. The exclusion
of the names of the accused persons from the statements of
Duma and
Mahlobo did not make the statements anything other than the
confessions they were in their unredacted condition.
[42]
Furthermore
Section 3(2)
of the
Law of Evidence Amendment Act
qualifies
the provisions of sub-section 1, stating that those
provisions “shall not render admissible any evidence which is
inadmissible
on any ground other than that such evidence is hearsay
evidence”. The confessions of Duma and Mahlobo were
inadmissible
for reasons beside their hearsay nature. (See
State
v Mhlongo, State v Nkosi
2015 (2) SACR 323
(CC) at
paragraph 29
. To the extent that any passages in the
statements might be regarded as admissions (with or without the
deletion of the names
of the alleged co-perpetrators), Mhlongo’s
case (at paragraph 30) establishes that
Section 3(1)
of the
Law of
Evidence Amendment Act would
be equally unavailable as a device to
have the statements admitted in evidence against the Appellants. (See
also
State v Litako
2014 (2) SACR 431
(SCA) at
paragraphs 53 and 54
).
[43]
The case sought to be presented against the Appellants was based
exclusively on circumstantial evidence.
Because of shortcomings
in that evidence, something else was needed to bolster the case.
The prosecution sought to achieve
this by a process of comparing
other circumstantial evidence (such as the cellphone evidence) with
the descriptions of the events
which appear in Mahlobo and Duma’s
statements, to conclude that the statements are consistent with the
inferences sought
to be drawn by the State from the circumstantial
evidence before the Court. Such consistencies might arguably
justify an
inference of guilt which might not be the only reasonable
one to be drawn from the other evidence on its own.
[44]
It seems to us that whilst expungement of the names of the alleged
co-perpetrators from the extra curial statements
might avoid the
error of relying upon such statements as identifying particular
co-perpetrators, the usefulness of the statements
depended upon the
Court accepting the confessed guilt of Duma and Mahlobo as proved
against the Appellants. (Indeed it is not possible
to lend any weight
at all to the description of the events in Duma and Mahlobo’s
statements without accepting that they were
guilty as they confessed
to be). The conclusion is inescapable that in seeking the
admission of the statements, the prosecution
invited the Court
a
quo
to fall into the error of relying on the confessions of Duma
and Mahlobo as admissible against the other Appellants. – See
Rex v Nkosi and Zulu
1959 PH H91 (AD)
and
R
v Baartman and Others
1960 (3) SA 535
(A)
.
[45]
Notwithstanding extensive references to the statements of Duma and
Mahlobo in his heads of argument, counsel for
the State conceded that
he was unable to advance any argument in support of the proposition
that the statements were properly admitted
into evidence against the
Appellants. For the reasons stated above, we are of the view
that this concession was properly
made. The trial Court erred
and the statements must be left out of account in considering the
appeal against the convictions.
Counsel for the State was
unable to advance an argument that the other evidence presented was
on its own sufficient to justify
the convictions.
CONCLUSION
[46]
In conclusion, there was no reliable evidence before the Court
a
quo
to sustain a conviction on any of the counts and the
Appellants ought to have been acquitted.
[47]
Counsel for the State has confirmed that in the Court
a
quo
he
did not seek a conviction against the Appellants in respect of the
counts set out in paragraph [4]
supra
.
Notwithstanding this the learned Judge convicted the Appellants on
those counts. No reasons were given why she disagreed
with the
submissions and concessions made by the State. In fact the
judgment did not record the concessions made by the State
at all.
They were ignored. In our view a Court declining to act in
accordance with such concessions made by the State
is duty bound to
explain where the State erred. In this case this was not done.
As a consequence, the First, Third,
Fourth and Fifth Appellants were
sentenced to three life terms of imprisonment in circumstances where
the State had conceded that
there was insufficient evidence
against them. It is indeed so that the evidence presented in
the Court
a
quo
raises strong suspicions against the Appellants. However, it is
trite that suspicions do not amount to proof beyond reasonable
doubt.
[48]
We accordingly make the following order:
1.
The appeal against the convictions and sentences of the Appellants is
upheld.
2.
The convictions and sentences imposed are set aside.
______________
______________
________________
KRUGER
J
OLSEN J
CHETTY J
DATE
OF HEARING:
2 February 2018
DATE
OF JUDGMENT:
2 March 2018
FOR
THE 1
st
, 5
th
, 8
th
& 9
th
APPELLANTS: Z Anastasiou
INSTRUCTED
BY:
Legal Aid SA
FOR
THE 2
nd
APPELLANT:
J E Howse
INSTRUCTED
BY:
Duma Attorneys
FOR
THE 3
rd
, 4
th
, 6
th
& 7
th
APPELLANTS: L Barnard
INSTRUCTED
BY:
Duma Attorneys
FOR
THE RESPONDENT:
D Paver
INSTRUCTED
BY:
Deputy Director of
Public
Prosecutions
[1]
Excluding Counts 3, 7, 13, 21 and 26 which related to charges of
malicious injury to property and of which all appellants were
acquitted.