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[2018] ZAECMHC 71
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Nyembezi v S (CA&R123/2017) [2018] ZAECMHC 71 (27 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE NO: CA&R123/2017
DATE HEARD: 17/08/2018
Further
submissions received 7 & 8 November 2018
DATE
DELIVERED:27/11/2018
In
the matter between
ZIZAMELE
GCOBANI NYEMBEZI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
ROBERSON
J:-
[1]
The appellant was convicted in the Regional Court, sitting in Mount
Frere, of three
counts of murder, and sentenced to life imprisonment
on all three counts. The victims were his estranged wife and
two children,
girls aged 14 years and two years respectively.
It was alleged that the appellant had killed them by burning them to
ashes
in a closed room. The cause of death of each victim was
given in the post mortem reports as “asphyxia caused by smoke
inhalation due to flame burns (undetermined) also 4
th
degree burns”. This appeal lies against convictions and
sentences. Leave to appeal was not necessary in view
of the
provisions of s 309 (1) (a) of the Criminal Procedure Act 51 of 1977
(the CPA).
[2]
It was not in dispute that the house where the deceased died was the
appellant’s
mother’s home in Dotye and that the
appellant’s wife was living there at the time. The
appellant lived elsewhere
in the same area. The two children
shared the same surname as the appellant’s wife but Counsel
were unable to confirm
if they were her children or somebody else’s
children. They were not the appellant’s children.
[3]
The evidence led by the State implicating the appellant was
circumstantial.
According to the appellant’s sister, she,
her mother, and the appellant had attended a funeral on a Saturday.
The appellant
left for home on the following Monday and on Tuesday 7
May 2013 the appellant telephoned her telling her that there was a
fire
at their mother’s home. When she enquired after the
people in the house he said that there was blood there. The
sister left for Dotye and on arrival there met the investigating
officer who showed her items of clothing, blankets, and a hammer,
all
of which belonged to the appellant. Amongst the clothing items
were a pair of boots and a shirt which the sister said
were worn by
the appellant at the funeral. Also among the items of clothing
was a jersey.
[4]
According to the police officer who was called to the scene early in
the morning on
7 May 2013, there was blood outside the house.
The hammer, which was found at the scene, had blood stains. The
remains
of the deceased were found in the house which had been
burned. The investigating officer arrived at the scene and
thereafter
the appellant arrived. The appellant said that the
electrical box had caused the damage to the house. When the
investigating
officer learned that the appellant was not on good
terms with his wife, he asked the appellant if he could search his
house and
the appellant agreed. At the appellant’s house
they discovered a pair of boots which were wet. A sack
containing
clothing was found under some bushes in front of the
house. Some of the clothing contained blood stains. The
appellant
said that he had used the clothing when skinning hides from
cattle. The accused was then informed of his rights and
arrested.
The boots were identified by a family member as
having been worn by the appellant at the funeral. The
appellant’s sister
identified the hammer as that of the
appellant. A member of the Local Criminal Record Centre took
the bloodstained clothing,
namely a jersey, trousers and a shirt.
The investigating officer arranged for material from the deceased’s
bodies to
be taken by a doctor and for a blood sample to be taken
from the appellant. He then sealed each sample and the hammer
separately
and put them in one bag which was sealed.
[5]
Captain Masetla testified that he was employed at the Forensic
Science Laboratory
in Pretoria. He received a case file
pertaining to the case from the administrative component of the
biology section of the
laboratory. A Captain Mpani had analysed
the DNA results obtained from the samples but he had left the
service. Masetla
interpreted the results himself. His
relevant findings were that the DNA of two of the deceased was found
on the hammer and
the DNA of one of the deceased was found on a
jersey which was in a sealed evidence bag. No male DNA was
found on the hammer.
Masetla’s affidavit in terms of s
212 (4), (6)(a), (6) (b) and (8) (a) of the CPA was admitted.
[6]
The appellant denied that he had telephoned his sister and told her
about the house
being burned. He said that he had been called
to the scene on 7 May 2013. There he was handcuffed by the
investigating
officer and taken to his home. Another officer
said that he had found a closed bag containing clothes in the
garden.
The clothes in the bag were the appellant’s old
clothes which he had thrown away, but had not put them in the bag.
The police did not find them at the place where he had thrown them.
They were a pair of trousers, shirts and a jersey.
He knew
nothing about the blood on the clothes. He acknowledged that he
could have said it was from slaughtering a beast
but he said so
because he was in pain from being assaulted by the police. He
denied that the hammer found at the scene was
his. He agreed
that he had suggested to the investigating officer that the fire
might have been caused by the electrical
box.
[7]
In his judgment the magistrate did not place reliance on the blood of
the victims
on the hammer because it had been submitted on the
appellant’s behalf that it had not been proved that the hammer
belonged
to the appellant. I am in agreement with this
approach. However the magistrate found that the appellant could
not explain
away the blood of one of the deceased on the jersey,
which was admittedly his. He found the contention that someone
else
could have taken the jersey, committed the crimes and returned
the jersey, to be preposterous. The magistrate found as a fact
that some of the deceased had been assaulted with the hammer before
the house was set alight. He further found that, because
the
DNA of two of the deceased (it should be one of the deceased) was
found on the appellant’s jersey, the appellant was
responsible
for the assault and the deaths. Although he did not say so
expressly, the magistrate was clearly of the view
that the appellant
deliberately set the house on fire after assaulting at least two of
the deceased with the hammer. I am
in agreement with this
inferential reasoning.
[8]
That is however not the end of the matter. While the
investigating officer was
testifying, he was asked to produce the
results of the DNA analysis. The appellant’s attorney
objected saying:
“
I think there is a broken
chain, because now he told us what he sent there, and I believe the
results – in fact Your Worship,
there will be a need for
someone to tell us how did it go.”
The
magistrate then ruled that the production of the DNA results would be
deferred.
[9]
When Masetla testified, he was cross-examined at some length by the
appellant’s
attorney. However his interpretation of the
results was not challenged, nor was it suggested to him that the
evidence kit
containing the jersey had not been properly handled and
might have been contaminated. When the appellant’s
attorney
addressed the court on the convictions, she conceded that it
had been proved that the blood of the deceased (it should have been
one of the deceased) was found on the appellant’s jersey.
She however submitted that the inference that it was the
appellant
who committed the offences was not the only inference to be drawn.
[10]
The appellant’s heads of argument did not indicate any attack
on the reliability of the
DNA results. However when the appeal
was argued before us, the appellant’s counsel challenged the
DNA results in respect
of the appellant’s jersey (the results
pertaining to the hammer were expressly not disputed), pointing out
that there was
no evidence of how the jersey was sent to the
laboratory and that therefore the chain of DNA evidence had not been
proved.
It is so that this evidence was lacking. The
investigating officer said that the clothing had been taken away by
the Local
Criminal Record Centre members. None of them
testified. While the appellant’s attorney made the
concession she
did with regard to the blood on the jersey, I am of
the view that it is in the interests of justice that the appellant is
entitled
even at this late stage to raise this missing link in the
chain of DNA evidence. One must remember that the appellant’s
attorney initially did object to the production of the DNA results on
the basis that the chain of safe custody needed to be established.
She just did not carry through with this objection and seemingly did
not focus on the handling of the jersey prior to its receipt
at the
laboratory. She was not really in a position to make the
concession which she made in argument because there was no
evidence
of the handling of the jersey prior to its receipt at the
laboratory. This was the only evidence on which the magistrate
relied to convict the appellant. Because of this missing link
in the chain of DNA evidence the convictions and sentences
should be
set aside.
[11]
However, and again, this is not the end of the matter.
Section
322 (3) of the CPA provides:
“
Where a conviction and sentence
are set aside by the court of appeal on the ground that a failure of
justice has in fact resulted
from the admission against the accused
of evidence otherwise admissible but not properly placed before the
trial court by reason
of some defect in the proceedings, the court of
appeal may remit the case to the trial court with instructions to
deal with any
matter, including the hearing of such evidence, in such
manner as the court of appeal may think fit.”
[12]
In the matter of
Tshantsani v The State
[2016] ZAECHC 3
(16 February 2016) s 322 (3) was applied. The
appellant in that matter had been convicted of housebreaking with
intent to
rape, and rape, on the basis that his DNA was detected on
the young child complainant’s panties. At the trial the
appellant
formally admitted the proper handling of the sexual assault
kit until it reached the forensic science laboratory in the Western
Cape. He admitted that the kit had been properly sealed and was
received at the laboratory still sealed, and that at the
laboratory
the seal was broken by Lieutenant Colonel Sharlene Otto for purposes
of analysis. The appellant further admitted
the contents of
Otto’s affidavit in terms of s 212 (4) of the CPA.
However in her affidavit Otto did not state that
she was the person
who had broken the seal. She merely received the case file and
interpreted the DNA results of the crime
scene and reference
samples. The point taken on appeal was that the court and
counsel for the State and for the appellant
had misconstrued Otto’s
affidavit with the result that there was a missing link in the DNA
chain of evidence, namely that
there was no proof that the process of
extraction of the DNA at the laboratory, prior to analysis by Otto,
had been performed by
the relevant competent person. The
evidence relating to DNA was therefore wrongly admitted.
[13]
Pickering J, writing for the full court, took into account that the
court and both counsel were
all under the mistaken impression that
Otto’s evidence established the necessary chain of evidence in
relation to the kit.
Had the incorrect admission not been made,
so the learned judge stated, the State would have been alerted to the
lacuna
in the chain of
evidence. The matter was therefore remitted to the trial court
in order that the requisite evidence, if available,
could be adduced
by the State.
[14]
The circumstances of the present matter are somewhat different in
that the appellant’s
attorney initially objected to the handing
in of the DNA analysis, on the basis that the chain of DNA evidence
had not been established.
However when she cross-examined
Masetla she did not raise the possibility that the kit containing the
jersey had not been properly
handled prior to its arrival at the
laboratory and that there may have been some contamination.
Further, admittedly after
both cases were closed, the attorney
conceded that it had been proved that the blood of (one of) the
deceased had been detected
on the appellant’s jersey.
[15]
In my view the difference between the two cases does not prevent the
implementation of s 322
(3) of the CPA. Had the chain of
evidence been properly proved the evidence of the DNA analysis would
have been admissible.
Had the appellant’s attorney raised
with Masetla the proper handling of the kit from inception or the
possibility of contamination,
the State may well have been alerted to
the missing link in the chain. Had the appellant’s
attorney not made the concession
that she did when she addressed the
court and had instead submitted that the chain of DNA evidence had
not been established, the
State may well have applied to re-open its
case, which application may have been granted in the interests of
justice, and in view
of the tenor of the cross-examination of
Masetla. A re-opening of the State case would not have been
prejudicial to the appellant,
who would have been given an
opportunity to challenge any further evidence which was adduced by
the State and to adduce evidence
himself to counter such evidence.
[16]
We asked for submissions from both counsel regarding a referral in
terms of s 322 (3).
On behalf of the appellant it was submitted
that the chain of DNA evidence had been contested and the State
elected nonetheless
to close its case without adducing sufficient
evidence in this respect. To remit the matter would, so it was
submitted, amount
to guiding the State in how to prosecute a case
involving chain evidence and would be prejudicial to the appellant,
who was entitled
to a fair trial. It was further submitted that
the problem with the evidence of the blood on the jersey was not the
only
hurdle for the State in proving its case. The other hurdle
was that the State had not proved the cause of the fire which caused
the death of the deceased. In this regard I have already stated
my agreement with the trial court’s inferential reasoning.
On behalf of the State it was submitted that s 322 (3) of the CPA was
paramount. However the State did not deal with the
fact that
there was no evidence of the handling of the jersey prior to its
receipt at the laboratory. It was merely submitted
that the
requirements of s 212 (4) of the CPA had been met. This
submission begged the question of whether or not the matter
should be
remitted in terms of s 322 (3) of the CPA.
[17]
In my view the circumstances of this case fall within the remit of s
322 (3). There was
an initial objection to the effect that the
chain of custody had not been established. However this
challenge was seemingly
not pursued when Masetla was cross-examined
and eventually the concession was made in relation to the blood on
the jersey.
In my view the consequence is that the DNA evidence
relating to the blood on the jersey was not properly placed before
the court
through a defect in the proceedings, which was a
combination of the factors to which I have alluded. I do not
think that
a referral in these circumstances amounts to the court
teaching the State how to prosecute a case. The circumstances warrant
a
remittal. As was said in
S v B
2003 (1) SACR 52
(SCA) (I quote from the English headnote):
“ …………
it
was important to keep in mind that justice did not only require that
an innocent person not be incorrectly convicted but also
that a
person who committed a crime was properly punished.”
[18]
The following order will issue:
[18.1] The
convictions and sentences on all three counts are set aside.
[18.2] The case is
remitted to the trial court in order for it to hear such evidence as
may be adduced by the State and/or
the defence with regard to the
handling of the evidence kit containing the jersey of the appellant
from the time the jersey was
collected by the Local Criminal Record
Centre until the analysis was performed by Captain Masetla.
______________
J
M ROBERSON
JUDGE
OF THE HIGH COURT
MLOMZALE
AJ
I
agree
____________
N
MLOMZALE
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
For
the Appellant: Adv S Njisane, Legal Aid South Africa, Mthatha
For
the Respondent: Adv D Trietsch, Director of Public Prosecutions,
Mthatha