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[2018] ZALMPPHC 23
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Masuku and Another v S (AA12/2017) [2018] ZALMPPHC 23 (8 June 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
(1)
REPORTABLE
(2)
OF INTEREST TO
OTHER JUDGES
(3)
REVISED.
CASE NO: AA12/2017
8/6/2018
In
the matter between:
STEADY
THAPELO
MASUKU
1
ST
APPELLANT
LODRICK
MAKHATHINI
NGOBENI
2
ND
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
KGANYAGO
J
[1]
The appellants were charged in the Pretoria Circuit Local Division
for the Northern
Circuit District Court (Voster J) sitting at
Phalaborwa, with one count of housebreaking and attempted robbery,
one count of murder,
one count of attempted murder, one count of
possession of unlicensed firearm and one count of possession of
ammunition.
[2]
On the first count it is alleged that the appellants acting in common
purpose unlawfully
and intentionally broke into the house of Jacobus
Frederick van Standen (“deceased”) and Henriete Annelise
van Standen.
On the second count it is alleged that they unlawfully
and intentionally killed the deceased. On the third count it is
alleged
that they attempted to kill Henriete van Staden. On the
fourth count it is alleged that they were in unlawful possession of a
firearm.
On the fifth count it is alleged that they were in unlawful
possession of ammunition.
[3]
On the 18
th
August 2014 the appellants were convicted on
all the five counts they were facing. On the count of housebreaking
and attempted
robbery they were sentenced to 15 years imprisonment,
life imprisonment on the count of murder, 15 years imprisonment on
the count
of attempted murder, 10 years imprisonment on the count of
unlawful possession of a firearm, and 5 years imprisonment on the
count
of unlawful possession of ammunition. The appellants were also
declared unfit to possess a firearm.
[4]
The appellants’ appeal against both conviction and sentence.
Leave to appeal
has been granted by the Supreme Court of Appeal on
petition.
[5]
During the trial, the first witness to testify for the State was
Isaac Phako. He testified
that during February 2010 he shared the
same cell with the first appellant at Hoedspruit SAPS. He alleges
that on the day on which
the first appellant was brought to
Hoedspruit SAPS, he told him and one Duncan that he (first appellant)
and the second appellant
had gone to the house of a certain white
person known as Majomba. On arrival at Majomba’s place a white
person pulled the
curtain of the window and he (first appellant)
fired a shot through that window. They then heard shots been fired
from the house
and they ran away. The witness had also made a
statement to the police and that statement contradicts the oral
evidence that he
gave in Court.
[6]
The second witness to testify for the State was Henrietta van Staden,
the deceased
wife. She testified that on the 4
th
February
2010 at about 20h30 she was at home with the deceased who was also
known as Majomba. She saw a man pointing a firearm
through the
window. That person fired a shot that killed the deceased. He fired
the second and the third shots that missed her.
She then took her own
firearm and shot back and the assailants ran away. She could not
identify the assailants. Under cross examination
she conceded that
the assailants did not enter the house. She further conceded that the
assailants never made any demand.
[7]
The State called David Hlatswayo as its third witness. He testified
that he is the
one who arrested the first appellant on the 5
th
February 2010 and took him to Hoedspruit Police cells. On the 6
th
February 2010 he arrested the second appellant. The second appellant
made a statement alleging that he knew nothing about the offences
and
was released. After he was released, the second appellant was
rearrested on the 9
th
February 2010 and he admitted being
involved in the commission of the offences. The second appellant told
him that he was prepared
to make a statement to an officer who was
not involved in the investigation of the case. He then requested
captain Sekgobela from
SAPS Acornhoek to come and take the statement
from the second appellant.
[8]
The State then sought to hand in as evidence a pointing out and a
written statement
made by the second appellant. The defence objected
to the admissibility of the pointing out and the written statement on
the basis
that they did not comply with s 217 of the Criminal
Procedure Act 51 of 1977 (the CPA) in that the second appellant was
assaulted
and threatened to make a statement and a pointing out. They
further allege that the second appellant’s rights to legal
representation
were not explained him.
[9]
A trial within a trial was held to determine the admissibility of the
written statement
and pointing out made by the second appellant. The
State led the evidence of Captain Makhubela, warrant officer Mashile,
warrant
officer Haussman, constable Mangena and captain Sekgobela
during the trial within a trial. The second appellant testified and
also
called Peggy Ngobeni to testify as his witness.
[10]
The Court in its ruling on the admissibility of both the statement
and the pointing out, provisionally
admitted them and deferred a
final determination at the end of the main trial. The State proceeded
to call its further witnesses
and thereafter closed its case. Both
appellants testified in their defense. Both appellants’ defense
was that of an
alibi,
and they called their witnesses to
support their version.
[11]
The first issue to be determined is the finding which the trial Court
has made during the trial
within a trial in determining the
admissibility of the written statement and pointing out made by
second appellant. It is trite
that the purpose of a trial within a
trial is to determine the admissibility of either a confession,
written statement or a pointing
out. At a trial within a trial, the
admissibility of a confession, written statement or a pointing out is
determined independently
from the question of guilt. An accused can
go into the witness box on the issue of voluntariness without being
exposed to the general
cross examination on the issue of guilt. (See
Director of Public Prosecutions, Transvaal v Viljoen
2005 (1) SACR
505
(SCA) at para 39 and Gama v State
[2013] ZASCA 132
(27/09/13) at
para 13)
[12]
The trial Court was called upon to determine the admissibility of the
second appellant’s
written statement and pointing out. The
second appellant was contending that the written statement and
pointing out were not made
freely and voluntary and further that he
was not advised of his right to legal representation before making
the written statement
and pointing out.
[13]
Evidence was led during the trial within a trial by both the State
and the second appellant.
Thereafter both parties addressed the Court
on the admissibility of both the written statement and pointing out.
The trial within
a trial was limited only to the issue of
voluntariness of the written statement and pointing out. At the end
of the trial within
a trial, the trial Court did not make a final
ruling on that, but instead provisionally admitted the two documents
and deferred
the final determination at the end of the main trial.
[14]
Under normal circumstances evidence will be provisionally admitted
with a provision that evidence
will be led at a later stage to
determine its final admissibility. If no evidence is led, at the end
of the trial the evidence
that was provisionally admitted will be
ruled inadmissible. In the present case all the evidence was before
the trial Court, and
what was left was for it to make a ruling on
whether the two documents were admissible or not. It was not even
necessary for the
trial Court to give reasons for its decision at
that stage. The trial Court was only required to rule on the
voluntariness of the
two documents without venturing in the main
trial as that enquiry does not determine the guilt of the second
appellant. However,
the trial Court decided to defer the final
determination at the end of the trial.
[15]
At the end of the trial in its judgment on the main trial, the trial
Court made a final determination
and admitted the second appellant
written statement and pointing out as evidence. That was made after
the trial Court has made
credibility findings on the second
appellant. In my view, the trial Court has lured the second appellant
to testify in the main
trial in order to enable it to make a
credibility findings on him which it could not have done during the
trial within a trial.
The trial Court has therefore, failed to
separate the issue of voluntariness from the main trial.
[16]
The conviction of the second appellant was solely based on his
written statement and pointing
out. Had the trial Court at the end of
the trial within a trial made a ruling and ruled the two documents
inadmissible as evidence,
that was going to be end of the State case
on the second appellant. By failing to make a ruling at the end of
the trial within
a trial, and waited to first make a credibility
finding on him in the main trial, that has prejudiced the second
appellant. That
in itself is defeating the purpose of a trial within
a trial. In my view, the trial Court has committed a material gross
irregularity.
That now leaves this Court at large to deal with the
matter as the trial Court should have.
[17]
Turning to the second appellant’s written statement, it is
settled law that the admissibility
of a statement has constitutional
implications. Section 35(5) of
the Constitution provides
that:
“
Evidence
obtained in a manner that violates any 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.”
[18] In
Mudau and Another v S
[2017] ZASCA 34
(29 March 2017)
at para
14 the Court said:
“
A
confession made to and reduced to writing by a magistrate is upon its
mere production, admissible in evidence provided that the
requirements of s 217 are satisfied. This means that the confession
conforms to the prescripts set out in the Constitution. Even
before
the advent of the Constitution, cases are legion that emphasized the
importance of informing the accused of his constitutional
rights to
legal representation and the right to silence at every important
stage during the recording of a confession. Thus in
S v Mpetha &
Others: the court said at 408 E-H:
‘
Before
the presumption comes into operation it must be clear “from the
document in which the confession is contained”
that such
confession was made freely and voluntarily, etc. Normally no
confession of itself would refer to questions of voluntaries
or undue
influence. A person making a confession is most unlikely to volunteer
the fact that he is confessing freely and voluntarily,
that he is in
his sound and sober senses and that he has not been unduly influenced
to make such confession. It is manifest therefore
that implicit in
the whole procedure envisage by the section is a questioning by the
magistrate of the person confessing. These
questions as well as the
answers must be recorded for it to be able to appear from the
document that the confession was made under
the required conditions
of the voluntariness etc. This of course, is also in accordance with
long standing practice. It is well
known that over a period of many
years departmental instructions and the decisions of the courts have
built a series of guideline
designed to ensure that confessions are
in fact freely and voluntarily made without the exercise of undue
influence…’
These rights have since the
advent of the Constitution been entrenched in s 35”
[19]
In paragraph 7 of exhibit J recording the second appellant’s
written statement, captain
Sekgobela who took the second appellant’s
written statement had recorded injuries of handcuffs on both hands
and also injuries
to the back where he complained of pains. He has
further recorded that the second appellant had informed him that
those injuries
were as a result of an assault by his co-accused and
the police. From the form it does not appear that the captain has
probed further
and asked the circumstances under which he was
assaulted by his co-accused and the police.
[20]
When the captain testified in Court he stated that the second
appellant was assaulted by his
fellow inmates for giving information
to the police. However, that explanation was not recorded on the form
he used to record the
second appellant’s statement. His failure
to record the question and answers is not in compliance with the
principles as
formulated in S v Mphetha above, which requires
questions as well answers to be recorded for it to be able to appear
on the
document. With regard to the assault by the police even in Court the
captain failed to explain whether he attempted to find out
the
circumstances under which he was assaulted.
[21]
The photos marked exhibit H5, photo 2 and 3 shows visible injuries of
handcuffs on both wrists
of the second appellant. That should have
prompted the captain to probe the circumstances under which he
sustained them since it
was his second arrest for the same incidents,
and on his first arrest he was released on the basis that he knew
nothing about the
offences. At the bottom of page 4, the second
appellant did not sign to confirm the contents of that page. In my
view his failure
to probe the assault by the police and also to
record questions and answers in full constitute a gross irregularity.
It is clear
that the procedural requirements provided in s 217 of the
CPA have not been compiled with in obtaining that statement.
[22]
The second appellant’s pointing out has been recorded in
exhibit H. Captain Makhubela from
Acornhoek SAPS is the one who
conducted the pointing out. Paragraph 4.2 relates to the second
appellant’s right to legal
representation. In that paragraph he
is asked whether he wishes to exercise any of those rights and his
answer was a “
yes
”. Paragraph 4.3 is a follow up
question to paragraph 4.2. In paragraph 4.3 the second appellant is
asked if he wishes to
exercise that right what does he wish to do.
The answer recorded is that he indicated that he has no legal
representative and wishes
to speak on his own.
[23]
At the bottom of the same page it is required of the captain to
record steps he took to comply
with paragraph 4 and he has recorded
that the second appellant has indicated that he has no legal
representatives and wishes to
speak on his own.
[24]
In my view, the answer recorded in paragraph 4.3 and also the answer
at the bottom of that page
contradict the answer given in paragraph
4.2. Since he had indicated that he did not have a legal
representative, but wished to
be represented, he should have been
afforded an opportunity to obtain one from the Legal Aid Board or one
whom he will pay out
of his own pocket. Failure to give him an
opportunity to secure the service of a legal representative amounts
to denying him that
opportunity and that amounts to a serious gross
irregularity.
[25]
In paragraph 8 and 9 it is recorded that the second appellant was
told by inspector Mashile to
do the pointing out. However, the
circumstances under which inspector Mashile told him to do so were
not recorded. The question
in paragraph 9 is clear, it requires the
captain to record what inspector Mashile has told the second
appellant about the pointing
out. That answer has not been recorded.
The answer to that question is therefore incomplete.
[26]
In paragraph 16.1 the captain has recorded that the second appellant
has shown him injuries on
his back and hands. At the part which state
“
Observation by the Officer”
he has recorded the
following
“
Injuries
at the back and front and hands. He alleges that he was assaulted by
other five suspects. They suspect that he might be
giving information
to police. Photo no: 2 & 3.”
[27]
Photo no: 2 and 3 shows handcuffs injuries on both wrists of the
second appellant. During the
trial the captain denied that the second
appellant told him that he was assaulted by the police. He stated
that the injuries on
the second appellants hands could have been
caused by many things in the cell like a piece of blanket, a piece of
a trouser maybe
cut off or oranges bags. Surprisingly two days later
captain Sekgobela recorded the injuries on the hands of the second
appellant
as been caused by handcuffs. It is highly unlikely that the
injuries on the second appellant’s wrists might have been
caused
by what captain Makhubela alleges. Captain Sekgobela who took
the second appellant’s statement has recorded that the second
appellant informed him that he was assaulted by the inmates and
police, and those are the same injuries that was observed by captain
Makhubela two days earlier as they appear on photo 2 and 3 taken on
the day of the pointing out, even though he did not record
them. The
injuries on the second appellant’s wrists are clear and visible
injuries caused by handcuffs. It is clear that
captain Makhubela was
economic with the truth. He had simply ignored the second appellant’s
injuries and proceeded to conduct
the pointing out. In my view, his
actions amounts to a serious gross irregularity.
[28]
After the pointing out was done, the second appellant was asked
whether he is having any complaints
about the manner in which the
pointing out was conducted and he said “
Yes”.
However, Captain Makhubela did not attempt to find out what the
second appellant’s was complaining about. In my view, his
failure to enquire about the second appellant’s complains taint
the whole pointing out process.
[29]
The second appellant when he was arrested on the first occasion
informed the police that he did
not know anything about all the
offences and was unconditionally released. After the police received
a complaint from the first
appellant, the second appellant was
rearrested and he is alleged to have suddenly admitted to the
offences and made a pointing
out and a written statement admitting
all the offences. In the process he sustained injuries to his back
and both wrists. There
is a possibility that the injuries on the
second appellants both wrists, were caused by handcuffs when the
police were exerting
pressure on him in order to elicit information
as to who killed the deceased or attempted to kill the deceased wife.
That in turn
resulted in the second appellant making some admissions
and pointing out. In my view, the tactics which the police have
employed
in eliciting information from the second appellant amounted
to assault.
[30]
In
S v Tandwa and Others 2008(1) SACR 613 (SCA)
at para 120
the Court said:
“…
Though
‘hard and fast rules’ should not be readily propounded,
admitting real evidence procured by torture, assault,
beatings and
other forms of coercion violates the accused’s fair trial right
at its core, and stains the administration of
justice. It renders the
accused’s trial unfair because it introduces into the evidence
obtained by means that violate basic
civilized injunction against
assault and compulsion. And it impairs the administration of justice
more widely because its admission
brings the entire system into
disrepute, by associating it with barbarous and unacceptable conduct”
[31]
Section 35(5) of the Constitution is designed to protect individuals
from police methods of investigation
that offend basic principles of
human rights. It is clear that the written statement and pointing out
by the second appellant was
procured by assault. In my view, the
trial Court should have rendered the second appellant’s written
statement and pointing
out inadmissible as they were not made freely
and voluntarily without any undue influence.
[32]
With regard to the first appellant, his conviction was solely based
on the evidence of Isaac
Pako and the written statement that Mr Pako
had made on the 7
th
February 2010 at Hoedspruit SAPS to
inspector Mashile. In that statement he alleges that on 5
th
February 2010 he was in the same cell with the first appellant, when
the first appellant told him that they have killed a white
person
(Majombo) at Hoedspruit farm on Thursday the 4
th
February
2010. In that statement he further alleges that the first appellant
was with one Louis, Makhatini, (second appellant),
Blaas and Sekani.
He further alleges that the second appellant is the one who shot the
old man inside the house.
[33]
During his testimony in Court, Mr Pako testified that the first
appellant told him that he (first
appellant) shot the white man and
he was with the second appellant only. That is a clear and a material
contradiction from the
statement he made to the police in that in his
statement he implicates the two appellants and three others, whilst
in his oral
testimony he implicates the two appellants only. Even
under cross examination by the second appellant’s defense
counsel he
insisted that it was only the two appellants who went to
the deceased farm.
[34]
Captain Hlatswayo testified that he had arrested the first appellant
on the 5
th
February 2010 and took him to Hoedspruit Police
Station on the very same date. Under cross examination captain
Hlatswayo was confronted
with a copy of a cell register from Lulekani
Police Station that shows that on the 5
th
February 2010
the first appellant was detained at the cells of Lulekani SAPS, and
was transferred to Hoedspruit SAPS on the 6
th
February
2010. In answering that question, he gave vague answers. He stated
that it might have been so, but as far as his knowledge
is concerned,
he detained the first appellant in Hoedspruit, but the investigating
officer might have decided otherwise.
[35]
The copy of the cell register, was handed in as an exhibit. In that
cell register it shows that
on the 5
th
February 2010 the
second appellant was held at Lulekani SAPS cells. The State has
failed to counter that evidence by submitting
a copy of the cell
register of Hoedspruit SAPS showing that on the 5
th
February 2010 the first appellant was detained at Hoedspruit SAPS.
The copy of the cell register is an official document and the
State
did not challenge its authenticity and also did not object to it
being handed in as evidence. The version of the first appellant
as to
where he was detained on the 5
th
February 2010 remained
unchallenged.
[36]
In
R v Biya
1952 (4) SA 514(A)
at 521 C-D the Court said:
“
If
there is evidence of an accused person’s presence at a place
and at a time which makes it impossible for him to have committed
the
crime charged, then if on all the evidence there is a reasonably
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime”
[37]
There is unchallenged evidence that the first appellant was detained
at Lulekani SAPS on the
5
th
February 2010, and transferred
to Hoedspruit SAPS on the 6
th
February 2010. Therefore, it
is impossible for him to have been in the same cell with Mr Pako on
the evening of the 5
th
February 2010 at Hoedspruit SAPS
and made the alleged admissions. That raises some suspicions in
Pako’s evidence. Mr Pako
could not explain why his evidence in
Court materially differs from his statement to the police. On been
confronted with a copy
of the cell register of Lulekani SAPS that
shows that on the 5
th
February 2010 the first appellant
was detained at that station, he became evasive and argumentative
when answering questions. In
some instances, he had a selective loss
of memory. In my view, his evidence is not credible and therefore,
unreliable. The trial
Court erred in accepting the statement and the
evidence of Isaac Pako.
[38]
The test in a criminal case is whether the evidence establishes the
guilt of the accused beyond
a reasonable doubt. An accused is
entitled to be acquitted if there is a reasonable possibility that an
explanation which he had
proffered might be true. The test is not
whether one should believe it. In this case the appellants proffered
an explanation about
their whereabouts and even called witnesses to
support their versions. In my view the appellants’ explanation
about their
whereabouts on the day of the incident is reasonably
possibly true.
[39]
Regarding the first appellant, without the evidence of Isaac Pako,
there is no evidence to sustain
his conviction. Regarding the second
appellant, without the written statement and pointing out, there is
no evidence to sustain
his conviction. In the result this appeal must
succeed and both appellants’ convictions must be set aside. In
the light of
this finding, I do not deem it necessary to consider the
appeal against sentence.
[40] I
accordingly propose the following order:
40.1 The appeal against
conviction is upheld
40.2 The conviction of both
appellants on charges of housebreaking and attempted robbery, murder,
attempted murder, possession of
firearm and ammunition are set aside.
40.3 The order of the trial Court
is set aside in its entirety and replaced with the following:
“
Both
accused are found not guilty and discharged on all the charges”.
KGANYAGO J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
I agree
SEMENYA J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA LIMPOPO
DIVISION, POLOKWANE
I agree and it is so ordered
MOKGOHLOA DJP
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA LIMPOPO
DIVISION, POLOKWANE
APPEARENCES
On behalf of First
Appellant
:Kgatle EK
Instructed
by
:Polokwane Justice Centre
On behalf of Second
Appellant
:Nonyane DJ
Instructed
by
:Polokwane Justice Centre
On behalf of the
Respondent
:Mphahlele WKK
Instructed
by
:DPP-Polokwane
Date
heard
:11
th
May 2018
Date of
Judgment
: