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S v Bomvana (CC03/2017) [2018] ZAECMHC 38; 2019 (1) SACR 418 (ECM) (20 July 2018)

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Criminal Law
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Brief Summary

Criminal Law — Murder — Evidence — Confession — Accused charged with two counts of murder, attempted murder, unlawful possession of a firearm, and unlawful possession of ammunition; pleaded not guilty and denied involvement. The state relied on ballistic evidence linking a firearm to the crimes and a confession made by the accused after being informed of his rights. The accused contested the admissibility of the confession, claiming it was obtained unconstitutionally and involuntarily. The court held that the confession was admissible as it was obtained in compliance with the law, and the evidence sufficiently established the accused's involvement in the crimes charged.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a criminal trial in the Eastern Cape Local Division of the High Court (Mthatha) in which the accused, Vusumzi Bomvana, stood indicted on serious offences arising from taxi-related violence, namely two counts of murder, attempted murder (alternatively conspiracy to commit murder), and two counts each of unlawful possession of a firearm and ammunition.


The State prosecuted the matter. The accused pleaded not guilty to all charges and furnished a plea explanation in which he denied involvement in the killings, denied any conspiracy, denied possession of the firearm and ammunition, and denied being present at the scenes. He nevertheless admitted that the deceased persons in the murder counts died on the dates alleged and that their deaths were caused by the injuries described in the post-mortem findings recorded in the plea explanation.


During the trial, the State sought to rely materially on a statement made by the accused to a commissioned police officer as a confession under section 217 of the Criminal Procedure Act 51 of 1977. The defence objected, leading to a trial-within-a-trial on admissibility. The confession was ultimately ruled inadmissible. After the State closed its case, the defence applied for discharge under section 174 of the Criminal Procedure Act. The State conceded that the application could not be opposed. The court granted the discharge and acquitted the accused.


The dispute, in substance, concerned whether the State had produced admissible evidence linking the accused to the firearm shown by ballistics to have been used in multiple incidents, and whether the accused could be connected to the murders and attempted murder through constitutionally compliant admissions or other proof.


2. Material Facts


The accused’s plea explanation placed in issue his alleged participation in the murders and attempted murder, and his alleged possession of the firearm and ammunition. The accused admitted only the fact of death and the medical causes of death of the two deceased persons referred to in the indictment.


It was undisputed that ballistic evidence linked the various crime scenes. The ballistic reports, together with the integrity of the chain evidence supporting them, were not challenged. The reports indicated that the empty cartridges recovered at the relevant scenes had been fired from the same firearm.


The State’s investigation later focused on Oyama Matshaya, who had previously been arrested for unlawful possession of a firearm and ammunition. According to the police witnesses, their inquiries revealed that Matshaya was in prison on an unrelated matter, and the police interviewed him in prison. The police evidence was that Matshaya allegedly told them he had purchased the firearm from the accused, and that the accused had warned him to be careful because the firearm had been used in other offences. This information was presented as the principal investigative lead to the accused.


Police witnesses described that officers fetched the accused from a building site at Decoligny and took him to the Organised Crime offices. On the State version, at least initially the accused was told he was not under arrest and, according to the police, he was not informed of constitutional rights until after he implicated himself. The police evidence about what occurred during questioning, and when and how the accused was warned of his rights, was marked by significant contradictions between witnesses and within witnesses’ own versions.


A key factual development was that the State called Matshaya as a witness, but his evidence materially undermined the version relied on by the police. Matshaya denied that he purchased a firearm from the accused in 2012, denied making a statement to the investigating officer implicating the accused, and gave an account suggesting that the firearm for which he was arrested had been found in a vehicle in which he was a passenger, rather than on his person. He also testified that the police used his cellphone, identified the accused’s name and number, and later brought the accused in handcuffs, while he (Matshaya) claimed he did not know what was going on. The defence did not cross-examine Matshaya.


The confession evidence that the State sought to introduce through a commissioned officer was ruled inadmissible, which meant that the State’s case proceeded without that self-incriminatory statement.


3. Legal Issues


The first central legal issue concerned the admissibility of the accused’s statement as a confession under section 217 of the Criminal Procedure Act 51 of 1977, viewed through the constitutional lens of section 35(5) of the Constitution, namely whether the statement had been obtained in compliance with constitutional rights and whether its admission would render the trial unfair or be detrimental to the administration of justice.


This issue involved a combination of fact (what the police did and when, whether rights were explained, whether the accused was effectively under arrest, and whether any coercion occurred) and the application of law to fact (whether those facts met the statutory and constitutional standards governing confessions and admissions, and whether exclusion was required under section 35(5)).


The second central legal issue arose after the State closed its case: whether, on the admissible evidence led, there was “no evidence” on which a reasonable court might convict, justifying a discharge under section 174 of the Criminal Procedure Act. This issue primarily concerned the legal sufficiency of the State’s evidence after the confession had been excluded, assessed against the standard articulated in the authorities dealing with section 174.


A further procedural issue arose concerning the reception of Matshaya’s evidence at his home under section 169 of the Criminal Procedure Act, given his paralysis, but this was not contentious and did not drive the outcome on the merits.


4. Court’s Reasoning


On the confession and constitutional compliance, the court evaluated the State’s attempt to justify the manner in which the accused was approached, transported to police offices, and questioned. The police explanation for not warning the accused of constitutional rights at the outset was that he was allegedly not a suspect at that stage. The court considered this asserted distinction critically against the objective circumstances known to the police, including the fact that they had information (which they acted upon) that Matshaya had allegedly said he bought the firearm from the accused, and the fact that the firearm had already been linked by ballistics to serious offences under investigation.


The court placed weight on the principle that constitutional fair-trial protections, including the rights to silence and legal representation, must not be circumvented by investigative stratagems. It observed that courts should not accept at face value police assertions that a person was not under arrest merely because police say so, because the real question is whether, in the circumstances, the person would have understood that he was not obliged to accompany the police and that he retained the practical ability to assert the right to silence and legal assistance.


In assessing the police evidence, the court highlighted extensive contradictions within and between the State witnesses on material aspects, including whether Matshaya was questioned about the murders, whether the accused was already a suspect when fetched, whether the accused denied or admitted the firearm sale during confrontation, when the accused was warned of rights, and whether handcuffs were used. The court found the evidence of the investigating officer to be confused, confusing, and in important respects improbable to the point of being false. These credibility and reliability concerns informed the court’s evaluation of whether the State had shown that the confession was constitutionally and statutorily compliant.


The court then applied section 35(5) of the Constitution, emphasising that evidence obtained in violation of rights must be excluded where admission would render the trial unfair or be detrimental to the administration of justice. In doing so, it relied on the approach endorsed in Magwaza v S 2016 (1) SACR 53 (SCA), including the recognition (with reference to authority) that even where a suspect’s responses may be “voluntary”, a failure to inform a suspect of the right to silence can justify exclusion to secure trial fairness. The court also endorsed the observations in S v Melani & Others 1996 (1) SACR 335 (E) concerning the close relationship between pre-trial legal advice, the presumption of innocence, the right to silence, and protection against self-incrimination, especially in relation to vulnerable or unsophisticated accused persons.


Having considered the circumstances of the accused being approached by a large group of specialised investigators, the absence of timely constitutional warnings until after incriminating disclosures, and the court’s view that the “not a suspect” framing was employed to elicit admissions, the court exercised its discretion against admission. It concluded there was no justification to regard the admissions as compliant with section 217, and therefore ruled the confession to the commissioned officer inadmissible.


After the State closed its case, the court approached the section 174 enquiry by reference to the established standard that an accused is entitled to discharge if there is no possibility of conviction on the State’s case unless the accused were to incriminate himself. The court relied on S v Phuravhatha & Others 1992 (2) SACR 544 (V) for the proposition that discharge will normally follow where the State case is virtually non-existent, and on S v Lubaxa 2001 (2) SACR 703 (SCA) for the constitutional dimension of the duty to discharge where conviction would be possible only if the accused were to enter the witness box and incriminate himself.


On the admissible evidence remaining, the court recognised that while the ballistic evidence demonstrated that the same firearm was used across incidents, the State lacked admissible evidence connecting the accused to that firearm or to the commission of the offences once the confession was excluded, and after Matshaya’s testimony did not support the police account implicating the accused. The State accordingly conceded that there was no legal basis to oppose the discharge application.


5. Outcome and Relief


The court granted the section 174 application. The accused was found not guilty and discharged on all counts at the close of the State’s case.


No separate costs order arose, the matter being a criminal prosecution.


Cases Cited


Magwaza v S 2016 (1) SACR 53 (SCA)


S v Melani & Others 1996 (1) SACR 335 (E)


S v Phuravhatha & Others 1992 (2) SACR 544 (V)


S v Lubaxa 2001 (2) SACR 703 (SCA)


Legislation Cited


Constitution of the Republic of South Africa, 1996, section 35(5)


Criminal Procedure Act 51 of 1977, section 169


Criminal Procedure Act 51 of 1977, section 174


Criminal Procedure Act 51 of 1977, section 217


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court found that the State failed to establish that the accused’s confession was obtained in a constitutionally compliant manner, and it ruled the confession inadmissible, principally because the accused was not properly treated as a suspect for purposes of constitutional warnings despite objective indications that he was a suspect, and because admission would undermine trial fairness and the administration of justice under section 35(5) of the Constitution.


After exclusion of the confession, and in light of the remaining admissible evidence (including ballistic linkage without a proven link to the accused, and the State witness Matshaya’s evidence not implicating the accused), the court held that there was no evidence on which a reasonable court might convict. It accordingly granted a discharge under section 174 of the Criminal Procedure Act and acquitted the accused.


LEGAL PRINCIPLES


The judgment applied the principle that the admissibility of a confession or admission is not assessed only through a narrow inquiry into “voluntariness” under the Criminal Procedure Act, but must also be evaluated under section 35(5) of the Constitution, which requires exclusion of evidence obtained in violation of constitutional rights where admission would render the trial unfair or be detrimental to the administration of justice.


It affirmed that the police are required, in substance and not merely in form, to respect and communicate constitutional rights such as the right to silence and the right to legal representation, and that courts should scrutinise claims that a person was “not under arrest” or “not a suspect” when the surrounding circumstances indicate that the person was being treated as a suspect or would reasonably have felt compelled to cooperate.


It applied the section 174 standard that an accused is entitled to discharge at the close of the State’s case where there is no possibility of a conviction based on the State’s evidence, other than if the accused were to incriminate himself by testifying, and that failure to discharge in such circumstances may implicate constitutional fair-trial rights.

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[2018] ZAECMHC 38
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S v Bomvana (CC03/2017) [2018] ZAECMHC 38; 2019 (1) SACR 418 (ECM) (20 July 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. CC03/2017
In
the matter between:
THE
STATE
VS
VUSUMZI
BOMVANA
ACCUSED
JUDGMENT
Jolwana
J
[1]
The accused was indicted for the following offences:
Two
counts of murder, attempted murder, alternatively conspiracy to
commit murder, two counts of unlawful possession of firearm
and two
counts of unlawful possession of ammunition.
[2]
The accused entered a plea of not guilty and provided the following
plea explanation:
“
I plead not
guilty to all the charges put to me and deny having been involved in
their commission based on the following grounds.
1.1
That I
did not kill the deceased in counts 1 and 8, neither did I conspire
with anyone to kill them.
1.2
That I
did not conspire to kill the complainant in count 2.
1.3
That I
deny having possessed or being found in possession of the firearm in
counts 3 and 9 and neither was I ever found in possession
of
ammunition in respect of counts 4 and 10.
1.4
That I
was never at the scene of crime during the commission of the alleged
offences herein and I dispute further having acted in
concert or in
common purpose with whoever committed such offences.
2. The following
facts are not in dispute and I do admit same:
2.1 That the
deceased in counts 1 and 8 died on the dates stated on the
indictment.
2.2 That the
deceased referred to in counts 1 and 8 died as a result of
intracerebral haematoma, fractured skull and brain haemorrhage

respectively.”
[3]
The police received ballistic reports which indicated that the same
firearm was used in committing the murders and the attempted
murder
that they were investigating.  Further police investigations
revealed that one Oyama Matshaya had been arrested in
connection with
the unlawful possession of the firearm that was used in the
commission of these offences.  The police established
that he
was in prison for an unrelated crime. They interviewed him and he
told them that he had purchased the firearm from the
accused.
This is more or less the only evidence that led the police to the
accused.
[4]
The chain evidence relating to the ballistic reports was not
challenged.  The relevant witnesses mainly testified about
the
integrity of the chain evidence as well as how the conclusions made
therein were reached based on the scientific methods of
compiling
ballistic reports.  The ballistic reports showed that the empty
cartridges found in the crime scenes in respect
of these offences
were fired from the same firearm.  All the crime scene evidence
was not in dispute.
[5]
Thereafter the state called some of the members of the Directorate
for Priority Crime Investigations who played different roles
in the
arrest of the accused.  The commissioned officer to whom the
accused made a statement that the state sought to have
admitted as a
confession in terms of
section 217
of the
Criminal Procedure Act 51
of 1977
also testified.  I will deal with the said statement
later in this judgment.
[6]
The state called the investigating officer, constable Simlindile
Skwatsha.  He testified that he was investigating the
murder of
Mr Zolile Maxwell Dunga, the deceased in count 8 who was shot and
killed on the 13 November 2012 at Kenyon Street, Northcrest,

Mthatha.  He was analysing this docket when he found a copy of
another docket in which it appeared that a person had been
arrested
for being in possession of an unlicensed firearm.  He also found
a ballistic report linking some cases with the one
he was
investigating.  He established that Oyama Matshaya (Oyama) had
been arrested for the unlawful possession of the firearm
that was
used in the commission of these offences that were linked
ballistically.  He further established that Oyama was at
a
remand centre at Wellington Prison in Mthatha for an unrelated crime.
[7]
He proceeded to Wellington Prison where he interviewed Oyama on the
08 June 2016.  The interview revealed that Oyama had
shared a
prison cell with the accused.  Oyama later met the accused in
December 2012 when both of them had been released from
prison.
It was at this time that Oyama informed the accused that he needed a
firearm.  On the 15 December 2012 the accused
sold him a firearm
and warned him to be careful as the firearm had been used in the
commission of other offences.
[8]
On the 19 December 2012 Oyama was arrested at Vulindlela Heights
in Mthatha for the unlawful possession of the firearm
and 12 rounds
of ammunition which he bought from the accused.  Mr Skwatsha
further testified that when his attempts to find
the accused failed
he decided to go back to Oyama for his assistance in locating the
accused.  He, together with other police
officers took Oyama
from prison and he directed them to Slovo Park in Mthatha but they
eventually found the accused at a building
site in Decoligny.
Oyama was in a different vehicle with other police officers which was
behind his vehicle.
[9]
On their arrival constable Skwatsha told the accused that they were
police officers and that he wanted to interview him at their

offices.  He agreed and they proceeded to their offices with
him.  Before the interview commenced he informed him of
his
constitutional rights.  He told him that the interview was about
the possession of the firearm.  At that stage the
accused was
not aware that Oyama was with the police as he had remained in town.
The interview was conducted by him and colonel
Mdingi.
[10]
They told him that Oyama was alleging that the firearm used in the
murder cases they were investigating was sold to him by
the accused.
The accused then told them of his involvement in the murder of Mr
Dunga and the attempted murder of Mr Mbopha of Corana
in Ngqeleni.
However, he had no knowledge about Oyama.  They then decided to
ask the other officers to bring Oyama to
the office in which the
interview was conducted.  On his arrival Oyama told them that he
knew the accused and he is the person
who sold him the firearm.
The accused did not dispute this.  He left the accused with
colonel Mdingi to take Oyama back
to prison.
[11]
On his return the accused was no longer in the interview room.
On enquiry he was told that the accused had gone to make
a
statement.  He arrested the accused after he had made the
statement when he came out of the office in which he made a
statement.
[12]
Under cross-examination constable Skwatsha contradicted himself
initially saying he did not ask Oyama about the murder of Mr
Dunga,
to later saying he did ask him about murder which he denied but
admitted having been in possession of the firearm.
He also
testified that they questioned the accused about the murder and not
about the possession of the firearm.  He later
changed to say
that they asked the accused about the firearm and he told them that
he sold the firearm but did not disclose who
he sold it to.  He
testified that the accused told them that he knew about the murder of
Mr Dunga in Northcrest.  In
trying to explain some of the
contradictions between what he said in his statement and what he said
in court, he testified that
in the statement he was summarising the
events and minimizing as much as he could.
[13]
There were many contradictions between the evidence in chief of
constable Skwatsha and his evidence under cross-examination
as well
as the version that is contained in his statement.  I do not
deem it necessary to list them save to point out that
they all
rendered his evidence so confused and confusing and in some respects
to be so improbable as to be false.
[14]
The state indicated its intention to lead evidence relating to the
statement made by the accused to a commissioned officer
who is a
member of the South African Police Services.  The defence
indicated that it objects to the admission of the said
statement for
the following reasons:
(i) That the
statement was unconstitutionally obtained as the accused was never
informed of his constitutional rights before the
statement was taken
from him by the police.
(ii) That the
statement was obtained involuntarily from the accused as he was
subjected to assault or torture in order to make a
self-incriminatory
statement by the police and consequently he obliged.
[15]
The state then applied for the opening of a trial-within-a-trial in
order to lead evidence to establish that the said statement
was
obtained in compliance with the provisions of
section 217
of the
Criminal Procedure Act.  That
application was granted.
[16]
The state called colonel Mdingi who testified that he is the
commander of the Directorate for Priority Crime Investigations.

They had information that one Oyama Matshaya had previously been
arrested for unlawful possession of a firearm in respect of which

they had a ballistic report linking it to some of the cases they were
investigating.  The said Oyama Matshaya was incarcerated
at
Wellington Prison for an unrelated offence.  He gave
instructions that Oyama should be fetched from prison so that he
could find out from him if the said firearm which had been used in
taxi related violence was with him or not during the time when
those
offences were committed.
[17]
The investigating officer, constable Skwatsha brought Oyama to their
offices and he, colonel Mdingi led the questioning in
their
boardroom.  They established that Oyama bought the said firearm
from the accused who stayed at Chris Hani informal settlement.

He together with a team of about ten police officers, including
constable Skwatsha and captain Bambalele went in two vehicles to
look
for the accused.  Eventually they found him at a building site
in Decoligny where he was building a structure with other
people who
were assisting him.  They requested him to come to their offices
with them as they needed him to clarify something,
pointing out that
he was not under arrest.  He agreed and boarded in one of their
vehicles and they proceeded to their offices
in the CBD in Mthatha.
[18]
In their boardroom he asked him if he knew Oyama Matshaya to which he
responded in the affirmative.  He then informed
him that Oyama
Matshaya was alleging that the accused sold him a firearm which the
accused denied.  He asked for Oyama who
was then in another
office to be brought into the boardroom for what he termed
“confrontation” between the two.
Oyama was brought
in and he asked him if he knew the accused and he said yes he is the
one who sold him a firearm that was found
in his possession.
Accused did not deny or admit Oyama’s allegations.  Oyama
was then taken to another office.
[19]
He then questioned the accused about what Oyama said.  The
accused, in the absence of Oyama, admitted that he knew about
the
firearm. He then instructed constable Skwatsha to arrest the
accused.  Constable Skwatsha informed the accused that he
was
under arrest and informed him of his rights.  Colonel Mdingi
informed the accused that the said firearm had been used
in taxi
related violence.  The accused admitted being involved in the
murder of Mrs Kozana of Slovo Park and the murder of
Mr Dunga of
Northcrest.  He then informed the accused that a statement in
relation to these murders would be obtained from
him by an
independent commissioned police officer who was not involved with the
investigation.  The accused agreed to make
the statement.
[20]
He then asked for the assistance of brigadier Manyana in obtaining a
statement from the accused.  At that time he was
a colonel
working at Crime Intelligence which was not involved in their
investigations and he did not know about the case.
He denied
that the accused was assaulted or tortured.
[21]
Under cross-examination colonel Mdingi not only contradicted some of
his evidence in chief but also his evidence was contradicted
in some
respects by some of the other state witnesses who also contradicted
each other.  Without detailing all of them I will
list some of
the contradictions which were also pointed out by the defence
attorney, Mr Njisane:
(i) Colonel Mdingi
stated in his evidence in chief that he never questioned Oyama about
the murder cases.  On the contrary
both constable Skwatsha and
captain Bambalele testified that Oyama was in fact questioned about
murder cases.
(ii) Colonel Mdingi
testified that the accused was not a suspect at the stage when they
went to fetch him from Decoligny.
The purpose of fetching him
was merely to get clarity from him about something which he did not
mention.  On the other hand,
captain Bambalele conceded under
cross-examination that the accused was a suspect and they fetched him
from Decoligny to question
him in connection with the firearm
allegedly sold by him to Oyama.
(iii) Colonel Mdingi
testified that the accused initially denied when questioned about the
firearm without any explanation. This
was contrary to the evidence of
captain Bambalele to the effect that the accused told them that he
never sold any firearm to Oyama.
(iv) Under
cross-examination colonel Mdingi testified that when the accused was
confronted by Oyama he neither admitted nor denied
knowledge of the
firearm and that he came to the conclusion that since he was not
denying it he was therefore admitting it. This
is contrary to the
evidence of captain Bambalele that the accused admitted knowledge of
the firearm.
(v) In this regard
colonel Mdingi contradicted his own statement which was admitted into
the record as exhibit “P” in
which he said:
“
I further
questioned him about the firearm he sold to Oyama but he first
denied.  I decided to do a confrontation between Oyama
and
Vusumzi then he changed to say he knew the firearm and he sold it to
Oyama.”
(vi) Colonel Mdingi
testified that the accused implicated himself only in relation to the
sale of the firearm before he could be
informed of his constitutional
rights.  This is contrary to the evidence of both constable
Skwatsha and captain Bambalele
who said that the accused also
implicated himself in murder cases as well.
(vii) Colonel Mdingi
and captain Bambalele testified that the accused was never
handcuffed.  This is contrary to the evidence
of constable
Skwatsha who testified not only that he found the accused handcuffed
in the office of captain Bambalele but also that
he was still
handcuffed when he was taken by constable Bulana to colonel Manyana
for a confession.  He also explained that
captain Bambalele is
an elderly officer and that the accused was with him alone in his
office.  Therefore as he had been arrested
at that time; he had
to be handcuffed.  Furthermore, constable Bulana who took the
accused to colonel Manyana was a female
officer and therefore it was
necessary that the accused be handcuffed as she was alone in taking
him to colonel Manyana.
In addition to these contradictions the
evidence of constable Skwatsha was characterised by evasiveness,
inconsistences and improbabilities
all of which rendered it palpably
false.
[22]
I must point out that it was the evidence of colonel Mdingi and other
state witnesses that at Decoligny where the accused was
taken, before
the interview commenced at their offices and during the interview the
accused was not informed of his constitutional
rights up until he
implicated himself.  He was then arrested and informed of his
constitutional rights.  The explanation
for the accused not
being informed of his constitutional rights was that at that stage he
was not a suspect.  It boggles the
mind that the accused could
have been regarded as not being a suspect in circumstances in which,
firstly, Oyama had told the police
that he bought the firearm from
the accused.  Secondly, the accused had, during the sale of the
firearm, told Oyama that it
had been used in the commission of some
undisclosed offences.  Thirdly, the very same firearm was linked
by ballistic reports
that were in the possession of the police to the
taxi violence related cases that the police were investigating.
[23]
It is clear that the police branded the accused as not being a
suspect so as to obtain admissions from him which they might

otherwise not get if they had informed him of his rights.  In
order for them not to be obliged to inform him of his constitutional

rights they decided, disingenuously to tag him as not being a
suspect.  This, notwithstanding the information they obtained

from Oyama which they believed, followed up and which led to the
accused being taken from Decoligny to their offices where he was

questioned until he implicated himself.
[24]
This brings me to section 35 (5) of the Constitution which 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.”
[25]
In
Magwaza v S
2016 (1) SACR 53
(SCA) para 21 Ponnan JA had
this to say:
“
Both the
trial court and the full court focused solely on the voluntariness of
the appellant’s conduct.  Neither touched
even
tangentially, on the Constitution’s exclusionary provision - s
35 (5), or appeared to appreciate as Van der Merwe in
PJ Schwikkard
et
al, Principles of Evidence
3ed
(2009) para 12.9.7 points out:
‘
If an
accused was not prior to custodial police questioning informed by the
police of his constitutional right to silence, the Court
might in the
exercise of its discretion conclude that even though the accused had
responded voluntarily, all admissions made by
the accused to the
police should be excluded in order to secure a fair trial.’”
[26]
The court cited with approval the case of
S v Melani & Others
1996 (1) SACR 335
(E) at 347 e-h in which Froneman J made the
following salutary observations:
“
The right to
consult with a legal practitioner during pre-trial procedure and
especially the right to be informed of this right,
is closely
connected to the presumption of innocence, the right of silence and
the proscription of compelled confessions (and admissions
for that
matter) which “have for 150 years or more been recognised as
basic principles of our law, although all of them have
to a greater
or lesser degree been eroded by statute and in some cases by judicial
decisions” (in the words of Kentridge
AJ in Zuma’s
case).  In a very real sense these are necessary procedural
provisions to give effect and protection to
the right to remain
silent and the right to be protected against self-incrimination.
The failure to recognise the importance
of informing an accused of
his right to consult with a legal advisor during the pre-trial stage
has the effect of depriving persons,
especially the uneducated, the
unsophisticated and the poor of the protection of their right to
remain silent and not to incriminate
themselves.  This offends
not only the concept of substantive fairness which now informs the
right to a fair trial in this
country but also the right to equality
before the law.  Lack of education, ignorance and poverty will
probably result in the
underprivileged sections of the community
having to bear the brunt of not recognising the right to be informed
of the right to
consultation with a lawyer.”
[27]
These sentiments are especially apposite in this case in which
members of the Directorate for Priority Crimes Investigations

otherwise known as the Hawks organised themselves into an army of
about 11 officers, including the Commander of the Hawks in Mthatha

colonel Mdingi and captain Bambalele both of whom are long-serving
senior members of the South African Police Services descended
on the
building site of the accused, an uneducated man, who was with some
ordinary young men from the surrounding poor communities
which were
building a structure in a site at Decoligny.
[28]
According to colonel Mdingi they asked the accused to come with them
to their offices as they sought clarity from him, but
did not
disclose what the clarity was sought about.  He was informed
that he was not under arrest.  The question then
is, was he
really not under arrest?  This has nothing to do with whether he
was informed that he was under arrest or not.
Even accepting
the evidence of the police officers who testified that the accused
was not handcuffed, does that necessarily mean
that he felt that he
was not being placed under arrest in the circumstances?  Courts
should be extremely loath to accept police’s
assertions, even
under oath, that a person was not under arrest simply because they
say so or was not handcuffed or was not informed
that he was under
arrest.
[29]
Courts should probe as to whether the circumstances of the case are
such that the accused would have understood that he was
not obliged
to go with the police immediately.  It becomes significant to
check whether the accused would have been able to
challenge the
authority of the state as represented by the police where he felt
that the police were on a fishing expedition.
If the courts
fail to examine these difficult issues, they might be unwitting
participants in the use of the judiciary to lend
legitimacy to the
abuse and trampling by the police of the constitutional rights of the
citizenry.
[30]
The fact that crime and even violent crime is rampant in this country
is no excuse for the police to brazenly ignore basic
requirements of
policing, like advising a suspect of his constitutional rights
against self-incrimination.  It is similarly
no basis for the
courts to be tolerant of such infractions where they occur.  To
do so would be to undermine the very democratic
principles on which
this country is founded and to render illusory the very
constitutional values which the courts must use to
ensure that all
the citizens enjoy equal protection of the law regardless of the
state of poverty or level of education. This is
very important in our
country where the majority are poor and illiterate and are therefore
unlikely to protect themselves from
potential abuse by those who
exercise state power like the police.
[31]
In the circumstances of this case and the exercise of the relevant
discretion I have come to the conclusion that there is no

justification for the admissions to be ruled compliant with
section
217
of the
Criminal Procedure Act.  I
therefore ruled that the
confession made before colonel Manyana was inadmissible.
[32]
The last witness for the state was Oyama Matshaya.  The state
made an application in terms of
section 169
of the
Criminal Procedure
Act for
the hearing of the evidence of this witness to take place at
his home in Chris Hani informal settlement in Mthatha.  The
reason
for this was that the said witness was paralysed from the
upper body all the way down such that he is able to move his hands
only.
Therefore, it would not be possible to bring him to court
as he could not even sit on a wheelchair.  The defence did not
oppose
the application and I therefore granted it.
Section 169
of the
Criminal Procedure Act provides
as follows:
“
A court
before which criminal proceedings are pending, may from time to time
during such proceedings, if the court deems it necessary
or expedient
that the proceedings be continued at any place within its area of
jurisdiction other than the one where the court
is sitting, adjourn
the proceedings to such other place, or, if the court with reference
to any circumstance relevant to the proceedings
deems it necessary or
expedient that the proceedings be adjourned to a place other than the
place at which the court is sitting,
adjourn the proceedings, on the
terms which to the court may seem proper, to any such place, whether
within or outside the area
of jurisdiction of such court, for the
purpose of performing at such place any function of the court
relevant to such circumstance.”
[33]
In granting the application I imposed the following conditions
relevant to the conduct of a fair trial:
1. That the
proceedings shall proceed at the home of Oyama Matshaya for the
purposes of hearing his evidence.
2. That arrangements
shall be made for all court officials to be present.
3. That arrangements
shall be made for all counsel to be able to take all the notes as
they would take in any trial, if they so
desire.
4. That the state
shall make proper arrangements for the evidence of this witness to be
heard in a safe environment.
5. That all
proceedings shall be recorded mechanically with suitable mobile
recording equipment.
6. That the accused
shall be cross-examined in the normal way by defence counsel, if he
so decides.
[34]
Indeed the proceedings moved to the home of Oyama Matshaya on 12 July
2018 where he testified for the state.  However,
his whole
evidence was, in most material respects, contrary to what all the
state witnesses said about him.  He even denied
knowing or even
meeting the accused in 2012, the year on which he is alleged to have
bought a firearm from him.  His evidence
was that he only met
the accused in 2013.  He testified that he was indeed arrested
in 2012 for unlawful possession of a firearm.
And he testified
that on the day of his arrest he was in a venture motor vehicle with
seven other passengers travelling to Zimbane
in Mthatha.  When
they were at Southernwood the vehicle was stopped by the police who
searched the vehicle and found two firearms
in the vehicle.  The
firearm for which he was charged was not found in his person.
However, only two of them were arrested
and were taken to the Embasy
police offices in Mthatha.  This is how he got arrested for the
unlawful possession of the firearm.
At some stage he was
fetched from prison by constable Skwatsha who asked him about the
said firearm.  He told him that he
knew nothing about the
firearm except that it was found in a vehicle in which he was a
passenger together with six other passengers.
[35]
On the day on which he was taken to the Organised Crime Offices the
police requested his cellphone which he gave to them.
They
paged it and saw the name of the accused and they asked him about the
accused and he told them that he knew the accused and
that he stayed
at Mandela Park informal settlement.  One of the officers seemed
to know the accused and gave a description
of the accused and he
confirmed it.  They took the phone number of the accused and
called him.  They later brought the
accused in handcuffs.
The accused asked him what was going on and he said he did not know.
He denied telling constable
Skwatsha that he bought a firearm from
the accused.  He further denied making a statement to constable
Skwatsha on the 08
June 2016 about the sale of a firearm.
[36]
The defence did not cross-examine this witness.  The state
closed its case.   The defence moved an application
in
terms of
section 174
of the
Criminal Procedure Act on
the basis that
there is no evidence on the basis of which a reasonable court might
convict.
[37]
Section 174
provides that:
“
If, at the
close of the case for the prosecution at any trial, the court is of
the opinion that there is no evidence that the accused
committed the
offence referred to in the charge or any offence of which he may be
convicted on the charge, it any turn a verdict
of not guilty.”
[38]
In
S v Phuravhatha & Others
,
1992 (2) SACR 544
(V), Du
Toit AJ at page 550 stated that:
“
The
presumption in favour of innocence, the fact that the onus rests on
the state as well as the dictates of justice in my view
will normally
require an exercise of the discretion under
s 174
in favour of an
accused person where the state case is virtually and basically
non-existent. Strengthening or supplementation of
a non-existent
state case is a physical impossibility.”
[39]
Furthermore, in
S v Lubaxa
2001 (2) SACR 703
(SCA) para 18 the
Supreme Court of Appeal cemented the legal position as articulated in
S v Phuravhatha
and other cases in the following terms:
“
I have no
doubt that an accused person (whether or not he is represented) is
entitled to be discharged at the close of the case
for the
prosecution if there is no possibility of a conviction other than if
he enters the witness box and incriminates himself.
The failure
to discharge an accused in those circumstances, if necessary
mero
motu
,
is in my view a breach of the rights that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively
on his self-incriminatory evidence.”
[40]
In this case Mr Makubalo counsel for the state conceded that indeed
there is no legal basis on which the state can oppose the
application
as there is no evidence on which the accused could be convicted.
[41]
In the result I make the following order:
1. The application
in terms of
section 174
of the
Criminal Procedure Act is
granted.
2. The accused is
found not guilty and discharged.
_________________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State: M MAKUBALO
Instructed
by: NDPP
MTHATHA
Counsel
for the Accused: S NJISANE
Instructed
by: LEGAL AID BOARD
MTHATHA
Matter
heard on: 18 July 2018
Judgment
handed down on: 20 July 2018

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